SERAJUL HUQ Vs. BANGLADESH

JUDGEMENT

(1.) This appeal, by leave, has arisen out of the judgment and order dated 9.12.1996 of the High Court Division passed in Writ Petition No. 321 of 1989 discharging the Rule obtained against the judgment and order dated 19.1.1988 of the Court of Settlement Dhaka passed in Case No.566 of 1987 dismissing the case.

(2.) Brief facts for disposal of this appeal are that the appellants and their predecessors filed the above Case No.566 of 1987 in the Court of Settlement Dhaka stating that their predecessor Md. Hanif migrated from India to the then East Pakistan along with his wife Aliman Khatoon and son Serajul Huq, the petitioner Nos.1 and 2 in the above case, and his other two sons Shamsul Huq and Aynul Huq, the petitioner Nos. 3 and 4 in the above case who are the appellant Nos. 2 and 3 herein, were born in Bangladesh; Md. Hanif, who was a Government servant, having retired from service in the year 1964, had been living in Bangladesh with his family as citizens thereof and while drawing, pension from the exchequer of the Government as a retired Government servant he died at Mirpur, Dhaka on 3.9.1981 leaving behind the petitioners in the above case as his successors and to that effect the above successors, Aliman Khatoon, Serajul Huq, Shamsul Huq and Aynul Huq, also obtained a certificate from the Court of District Delegate Judge, Dhaka in Succession Certificate Case No. 365 of 1985; Md. Hanif, who drew pension money from the exchequer of the Government upto 31.8.81, was the owner in possession of a house situated at Plot No. 43, Road No.2, Block-B, Section-1, Mirpur Housing Estate, Mirpur, Dhaka, which he got under a lease deed dated 1.12.1961 for a period of 99 years on payment of full cost of Tk. 2700/- to the Government; while the said Md. Hanif and his wife and sons were in peaceful possession of the said house, Bangladesh was liberated on December 16, 1971 followed by some law and order situation and in the abnormal circumstances, then prevailing, Md. Hanif and his wife and sons were dispossessed from the said house in the last week of March, 1972 by the anti-social elements who also looted their belongings and house-hold effects including the original documents of title and occupied the above house; during his life time Md. Hanif made several representations to different authorities for release of the said house from the list of abandoned properties but in vain and he died on 3.9.1981; thereafter the said house being enlisted in "Ka" List as an abandoned property the above Aliman Khatoon, Serajul Huq, Shamsul Huq and Aynul Huq filed application under section 7 of the Abandoned Buildings (Supplementary Provisions) Ordinance 1985, Ordinance No.54 of 1985, for release of the said house from Ka List which was registered as Settlement Case No. 566 of 1987 in the Court of Settlement, Dhaka and the respondents herein, who were the opposite parties in the above case, did not contest the above case and after hearing the Court of Settlement dismissed the case. As against that the above heirs of Md. Hanif moved the High Court Division and obtained Rule in Writ Petition No. 321 of 1989 and the High Court Division, after hearing, discharged the Rule holding, inter alia, that the above heirs failed to rebut the presumption regarding the abandoned character of the above house. In the meantime Alima Khatoon died.

(3.) Leave was granted on the submissions that the property in question was allotted to Md. Hanif, predecessor of the petitioners, who was a Government servant and he constructed a house in the said property and died in Bangladesh in the year 1981 and he withdrew his pension up to the last day of his life and in such a situation the Court of Settlement as well as the High Court Division committed error in holding that whereabouts of Md. Hanif were not known since liberation of Bangladesh in as much as this very fact of drawing pension from Government Exchequer up to 31.8.1981 is sufficient to prove that Md. Hanif was living in this country as a citizen till his death on 3.9.1981 and further the Certificate dated 30.4.85 issued by the District Accounts Officer Dhaka, and the Pension Book of Md. Hanif, which were filed before the Court of Settlement as Exts.1 and 2 and before the High Court Division as Annexures C and C(1), were most illegally and arbitrarily rejected by both the Courts and the above Pension Book and the Certificate if properly considered, will lead to the only legitimate inference that the whereabouts of Md. Hanif were very much known to the Government since liberation till 1981 as during the above period the Government admittedly paid him pension from its exchequer and in that view of the matter the Court of Settlement ought to have found that the above house is not abandoned property and further the High Court Division also committed error in observing that the writ petitioners failed to rebut the presumption of abandoned character of the property.