(1.) This appeal by leave by the Government respondent in writ petition No. 1041 of 1993 is from the judgment and order dated 30-1-95 passed by a Division Bench of the High Court Division making the Rule Nisi absolute.
(2.) The writ petition respondent contended in the writ petition that she was born in Tanzania in 1937 and that her parents migrated and were permanently domiciled as residents of Chittagong in 1947. The husband of the writ petitioner also came to the then East Pakistan in 1947 from Bombay and permanently settled at Chittagong. The writ petitioner was married to him in 1958 and since then she had been living with her husband at Chittagong. Her children were also born at Chittagong. At the time of filing of the writ petition the writ petitioner was a Canadian resident. She left Chittagong for U.K. on the last day of October, 1971 in connection with her business abroad and also for safety. Her husband obtained permission to reside in the U.K. in 1972. The writ petitioner was staying in U.K. from November 1971 till Bangladesh was liberated with Pakistani passport issued from Chittagong showing permanent address at 35, Panchlaish Residential Area, Chittagong. The writ petitioner and her other family members had/have interest in various industries and businesses at Chittagong and Khulna. All these industries have been returned to them by the Government of Bangladesh treating the writ petitioner as a share-holder being a resident of a neutral country. On the 23rd September 1986 the Government of Bangladesh published a Notification in the Bangladesh Gazette under the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 in the "Ka" list of which the property of the writ petitioner at 35, Panchlaish Residential Area, Chittagong was shown to be included as an abandoned property. The writ petitioner filed Case No. 814 of 1987 before the Court of Settlement for release of the said property from the list of abandoned properties and also for a declaration that the said property is not an abandoned property. The writ petitioner was the legal owner of the suit property since 1970. Previously it belonged to her father late Mohammad Ali Meghani who purchased the plot of land from the Government of East Pakistan by a lease deed executed on the 23th May, 1960 and registered on the 4th June, 1960. The father of the writ petitioner constructed a building thereon in 1963 after which the writ petitioner with her husband had been living in the first floor of the said building. Out of natural love and affection the father of the writ petitioner made a gift of the said property to her in Karachi on 20-6-70 on the occasion of her birthday and the said deed of gift was registered in Karachi on 23-6-70. The father of the writ petitioner delivered possession of the case property to her and she took actual physical possession of the case property and resided therein till the last day of October, 1971. The deed of gift was acted upon. The writ petitioner left for U.K. in October, 1971 with her family members. Thereafter the case property was under the care and custody of the caretaker of the writ petitioner who paid all rents, taxes, electricity bills, WASA bills, rates etc. Since 1972 the writ petitioner has been trying to get the said property released from the list of abandoned properties but unfortunately her prayers were rejected mainly on the ground that she was a Pakistani National and that her whereabouts were not known. The writ petitioner filed an application as early as on 25-5-72 before the Additional Deputy Commissioner (Development) Chittagong for release of the said property on the ground that it was not an abandoned property and the said application was duly received on 16-6-72. The writ petitioner thereafter made several representations to the various relevant authorities of the Government clearly stating that she was a Bangladesh Nationality by operation of law and was at present holding Canadian Nationality and that her property is not liable to be declared as an abandoned property. Pursuant to the series of representations made by her an inquiry was held into the matter. She was asked by the Deputy Commissioner, Chittagong by letter dated 6-6-84 to submit documents and papers in support of her claim on 13-6-84. Her authorized agent appeared before the Deputy Commissioner, Chittagong on 12-6-84 and submitted documents and papers in support of her claim on 12-6-84. Her authorized agent appeared before the Deputy Commissioner, Chittagong on 12-6-84 and submitted documents and papers in support of her claim 27-1-85 the writ petitioner made a similar application to the Ministry of Works (A.P. Wing) which by letter dated 1-4-85 made some inquiries from her and advised her to apply to the Deputy Commissioner, Chittagong. The writ petitioner gave satisfactory answers to all the queries made so far but even then the building was not released from the list of abandoned properties. These are the averments of the writ petitioner in the writ petition.
(3.) After hearing the writ petitioner and the Government appellant the Court of Settlement by judgment and Order dated 28-3-88 dismissed the case on two grounds, first, there being no acceptance of the physical possession of the building by the writ petitioner on the basis of the gift in question there was no valid gift, the writ petitioner did not acquire any right, title and interest in the said property on the basis of the gift and secondly, there being no oral and documentary evidence contrary to the resumption of section 5(2) of Ordinance No.54 of 1985, the writ petitioner was absent leaving her house uncared for and her whereabouts were not known on and from 28-2-72, which is amply justification for the property to be declared as abandoned.