MARZIANA KHATUN Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(1.) This petition for leave to appeal at the instance of the petitioner is directed against the judgment and order dated 24-8-2005 passed by the High Court Division in Writ Petition No. 2279 of 2001 discharging the Rule and refusing to declare that inclusion of the property in question in the 'Ka' list of abandoned properties appeared at Serial No. 190 in the gazette notification dated 23-9-1986 was illegal and the direction of respondent No. 3 dated 8-9-1998 to the petitioner to deposit Taka 58,261.00 as house rent for the said property was also illegal, without any lawful authority and is of no legal effect.

(2.) The case of the petitioner, in short, is that she is the owner in possession of the case property being House No. J-59, Sherioil, Police Station Boalia, District Rajshahi by virtue of 5 (five) registered title deeds of the year 1974. Since 1974 she has been possessing and enjoying the same peacefully and uninterruptedly by getting her name mutated in various departments with reference thereto. After mutation of the name of the petitioner vide Mutation Case No. 382/91/91-92, she paid rent to the revenue office and municipal taxes in respect of the case property. However, on 16-10-1974 the Executive Engineer, C & B, Rajshahi and Secretary, Abandoned Property Management Board, Rajshahi served a notice upon the husband of the petitioner for eviction from the case property on the score that the said property is an abandoned property. Thereafter the petitioner instituted OC Suit No. 408 of 1976 in the Court of Assistant Judge, Rajshahi Sadar, Rajshahi praying for permanent injunction against the Government in relation to the case property. The said Title Suit was subsequently transferred to the Additional Court of Assistant Judge, Rajshahi and renumbered as OC Suit No. 119 of 1983. Ultimately, the said OC Suit No. 119 of 1983 was decreed on contest on 24-4-1983. While the petitioner had been enjoying and possessing the case property in accordance with the aforesaid judgment and decree of the Civil Court, she came to know in the month of October, 1996 that the said property was enlisted in the "Ka" list of abandoned buildings. Thereafter, she made a representation to the respondent No. 1 paying for release of the property from the 'Ka1 list of abandoned buildings, but in vain. However, the respondent No. 3 sent a notice to the petitioner directing her to deposit a sum of Taka 58,261 within 15 (fifteen) days from the date of receipt of the notice on account of the rent of the property in question vide Memo No. Je:Pra:Ra/Ra:Mu:1256 dated 8-9-1998. On receipt of the aforesaid notice dated 8-9-1998, the petitioner being a sexagenarian made all out efforts to get the case property released, but without any result. Be that as it may, the petitioner being a purdanashin ordinary woman was not aware of the inclusion of the case property in the he 'Ka' list of abandoned buildings till October, 1996 and, as such, she could not make any application for release of the same before the Court of Settlement concerned within the given time frame. The Government did not take over possession of the case property prior to its inclusion in the 'Ka' list of abandoned buildings in accordance with the provisions of section 5(l)(a) of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (Ordinance No. 54 of 1985). The case property is not an abandoned property within the meaning of the Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (PO No.16 of 1972). Hence the inclusion of the property in the 'Ka' list if abandoned buildings is without lawful authority and of no legal effect.

(3.) Mr. KZ Alam, learned Counsel appearing for the petitioner submits that the petitioner and her vendor being present in Bangladesh having possession and occupation of her property in question, the property could never be declared as an abandoned property and the learned Judges of the High Court Division erred in law in not declaring that the inclusion of the petitioner's property in the "Ka" list or for that matter having declared the same as an abandoned property contrary to the provision of law, and, as such, the same is liable to be set aside by this Court; that the petitioner having proved her purchase of the property in question from the owners who were and are present in Bangladesh living in the territory since 25th March, 1971, the learned Judges of the High Court Division were in error in discharging the Rule under Article 102 of the Constitution; that the petitioner being a citizen of Bangladesh and so are the petitioner's vendors on the date when the PO 16 of 1972 came into operation, the property could not be treated as abandoned property and the learned High Court Division were wrong in holding the same as and abandoned property; that the petitioner under duress and coercion acted in a most silly way without realising that her application to the respondent No. 4 would be treated as her application for allotment and in any view of the matter a property which could not be treated as an abandoned property in law, the High Court Division were in error in declaring her property to be an abandoned property and needs to be rectified by this Court; that the High Court Division was in error in not considering the judgment and decree dated 24-4-1983 in OC Suit No. 408 of 1976 (renumbered as 119 of 1983) passed by a competent Civil Court decreeing the suit for permanent injunction and hence the same could not be declared as such and needs to be rectified by this Court; that the property if it was to be included in the list of abandoned property, it was incumbent upon the respondents to show that it was within the mischief of law clearly for it betrays the fundamental right of the petitioner to hold her own property; that no notice as contemplated under the President's Order No. 16 of 1972 or Order LIV of 1985 issued to petitioner, inclusion of her property in the 'Ka' list of the abandoned buildings being without lawful authority and this Court will be pleased to set aside the judgment and order dated 24-8-2005 passed by the High Court Division on an erroneous view and direct the respondents to take off the petitioner's property from the list of abandoned property; that the petitioner purchased the case property in 1974 from one Halima Khatun and her two sons namely Mahbubul Alam and Rafiqul Islam respectively by 5 registered deeds and since her purchase she has been owning and possessing the same and though the abandoned property office issued notice for vacating the house and though under-duress she took allotment of the same from the property authority but at no point of time the property in question was enlisted as abandoned property because Rabeya Khatun, the previous owner, was all along in Bangladesh during the war of liberation and to that effect she affirmed an affidavit in 1974 and in spite of Court's order in Other Class Suit No. 119/1983 Government failed-to produce any paper to show that the case property was an abandoned property and in the judgment Munsif clearly found title and possession in favour of the petitioner but the High Court Division, on an erroneous view of the matter and without considering the judgment of Other Class Suit No. 119/1983, found that the case property was an abandoned property and its subsequent inclusion in the 'Ka' list was not illegal and accordingly, discharged the Rule causing serious miscarriage of justice and prejudice to the petitioner; that the Other Class Suit No. 119/1983 the petitioner by examining 6 PWs proved that Rabeya Khatun was in Bangladesh on or before the promulgation of PO 16 of 1972 and Rabeya Khatun by affirming an affidavit before a Magistrate, 1st Class, Dhaka on 13-12-1974 stated the fact that she was all along in Bangladesh at the relevant time and, as such, her where about was very much known and the property in question could not be declared as such nor could be included in the list of the abandoned property and the respondents having failed to produce and prove as to the property being an abandoned property as per the provisions of law had claimed illegally and arbitrarily but the High Court Division by misinterpreting Article 2(1) of PO 16 of 1972 arrived at a wrong finding that the property is an abandoned property and the same was vested in the Govt. by operation of law and accordingly discharged the Rule which has caused a grave failure of justice; that as per advice of the lawyer, the petitioner instituted Other Class Suit No. 119/1983 for permanent injunction, title and possession of the plaintiff as a condition precedent for getting permanent injunction and considering the same, a decree was passed by the Munsif in favour of the plaintiff-petitioner and the respondents having contested the suit but did not prefer any appeal against the said judgment and order dated 24-4-1983 and, as such, keeping the judgment of a competent Civil Court unchallenged before any higher forum, subsequent inclusion of the property in question in the 'Ka' list of the abandoned properties is illegal, arbitrary and without jurisdiction but the High Court Division on an erroneous view of Article 14(1) of the PO 16 of 1972 held, that granting injunction by the Munsif was illegal because Article 14(1) of PO 16 of 1972 was a bar and the subsequent inclusion in 'Ka list was lawful and accordingly, discharged the Rule and, as such, the same should be set aside by this Court; that the original owner of the property in question, namely Rabeya Khatun, was in Bangladesh during the war of liberation and thereafter her property could not be taken over as an abandoned property and since it was not in the abandoned property list, Article 6 of PO 16 of 1972 being not applicable and the High Court Division, without at all considering facts and circumstances of the case arrived at a wrong conclusion thereby erred in law in discharging the Rule contrary to the clear finding of the Munshif in the judgment of OC Suit No. 119/1983; that the petitioner being an elderly pardanashin lady having no support from members of her family or from any relation or friend, she under duress took allotment which was stated in the plaint of OC Suit No.119/ 1983 but never paid any rent as an allottee and she instituted Other Class Suit No. 408/1976 (renumbered as OC Suit No. 119/1983) and obtained an order of permanent injunction restraining the respondents from taking over possession of the house in question from the petitioner and also not to collect rent from her in respect of the same though this fact was inadvertently omitted from the Writ petition and not an intentional suppression of fact, and the High Court Division failed to consider the moot point in law and discharged the Rule causing serious miscarriage of justice which is to be set aside by this Court; that as per provision of section 5(1) of PO 16 of 1972, notice taking over possession of an abandoned property is a condition precedent for its inclusion in 'Ka list of abandoned properties and in the instant case at no point of time the respondents took over possession and though the petitioner took allotment of the same in 1975 she was dispossessed by the respondents and though she took allotment from Government but never paid any rent and thereby the allotment was not acted upon and, as such, its inclusion in the 'Ka' list on 23-9-1986 in the Bangladesh Gazette was violative of the provisions of law and on a total misreading of the evidence on record of the High Court Division discharged the Rule which has caused grave failure of justice and need be rectified by this Court; that in the light of the decision by this Court in respect of any property allegedly taken over or included in the list of abandoned property or trying to be taken over as an abandoned property, the High Court Division erred in law and on facts in not declaring that the appellant-petitioners property included in the 'Ka' list of the abandoned properties is without any lawful authority and is of no legal effect, and need be so declared by this Court; that in any view of the matter the High Court Division erred in holding that inclusion of the property of the appellant-petitioner as an abandoned property lawful, the same is liable to be set aside by this Court.