IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Present:
Mr. Justice Ashish Ranjan Das
And
Mr. Justice Fahmida Quader
WRIT PETITION NO. 364 OF 2017.
IN THE MATTER OF:
An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.
-AND -
IN THE MATTER OF:
Md. Nurul Haque
.....Petitioner
-VS-
Secretary, Ministry of Local Land and others
.......Respondents Mr. Md. Moinul Islam, Advocate
…..For the Petitioner Mr. Md. Saiefuddin Khaled, D.A.G
....For the respondents
Heard on. 22.08.2024 Judgment on: 28.08.2024.
Fahmida Quader, J.
This Rule Nisi, at the instance of the application filed under Article 102(2) of the Constitution, by the petitioner Nurul Haque issued on 11.01.2017, was in the following terms-
“Let Rule Nisi be issued calling upon the respondents to show cause as to why the impugned order under memo No. 31.60.9089.000.05.003.14-1483(4) dated 01.09.2016 issued under the signature of the respondent No. 5 Assistant Commissioner (Land) Sunamgonj directing the surveyor office
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Assistant and Union land assistant officer to hand over all ‘the records of Aukkay Nagar, Mouza under J.L No. 13 of Sunamgonj Sadar Upazilla as contained in Annexure-D to the writ petition should not be declared to have been done without lawful authority and is of no legal effect and as to why they should not be directed to allow the inhabitants of Aukynagar Mouza under J.L. No. 13 under Sunamgonj District to be under SAdar Upazilla Sunamgonj and/or pass such other or further order or orders as to this court may seem fit and proper.”
The key assertions made in the petition, leading to the issuance of the Rule Nisi, are as follows:-
The petitioner is the rightful owner and resident of land within Aukkaynagar Mouza. From its inception, the Aukkaynagar Mouza was part of Sunamgonj Sadar Upazila. However, with the creation of Bishambarpur Police Station, 60 mouzas, including Aukkaynagar, were reassigned by a notification dated June 23,1967. Given that the inhabitants of Aukkynagar Mouza are more closely associated with Sunamgonj Sadar, the Deputy Commissioner of Sunamgonj instructed the Assistant Commissioner (land) of Bisbomborpur to transfer the records of the land under Aukkynagar Mouza to the Sadar Upazilla Sunamgonj for better convenience in collecting revenue, rent etc. Sadar Upazilla Sunamganj issued an office order dated 28.05.1990. Consequently, the Assistant Commissioner (Land) of Bishombarpur directed the Tohshilder of Palash Tohshil office to transfer the records of land of Aukkynagar Mouza to Sadar Upazilla, Sunamgonj. As a result, the Land Registry office and
Revenue Rent Collection office of Aukkynagar Mouza remain under Sunamgonj Sadar Upazilla.
In 2009, the petitioner submitted an application to the Member of the parliament Sunamgonj-4 seeking to include the Akkynagar Mouza within the Sadar Upzilla for the purpose of R.S operation. Based on the report from the Union Land Assistant Officer of Sadar, Sunamgonj, the Deputy Commissioner of Sunamgonj, issued office orders dated June 17,2009, and October 10, 2009, directing the Zonal Settlement officer, Sylhet Zone, to transfer the office records for R.S operation of Aukkynagar Mouza to Sadar in the public interest.
Several inquires were conducted by respondent No. 5, The Assistant Commissioner (Land), and others, Who in their report opined that the Aukkynagar Mouza should have remain under Sadar Upzilla for the benefit of the public. Despite of all these reports and previous orders, the Assistant Commissioner (Land), respondent no. 5, issued the impugned order on October 1, 2016, directing his surveyor or and Union Land Assistant to transfer the records of the land under Aukkynagar Mouza to Bishombarpur Upazilla. In this context, the petitioner filed this writ petition challenging the aforementioned order dated October 1, 2016.
Mr. Md. Mainul Islam, the learned Advocate for the writ petitioner, after presenting the petition, the impugned letter and other relevant materials on records, advanced following arguments:-
Akkynagar Mouza is located one Kilometer far from Sunamgonj Sadar, while Bishamborpur is approximately 15 kilometers far from Aukkynagar, situated in a remote and rural area. This considerable distance makes it significantly
much more difficult for the inhabitants of Aykkynagar to travel to Bishomparpur for land registration and payment of rent, revenue etc. Therefore, the residents of Aukkynagar Mouza are typically associated with Sunamgonj Sadar due to better communication and convenience.
In his elaboration, the learned counsel further contends that by the order of Deputy Commissioner of Sunamgonj, dated May 28, 1990, the land records of Aukkynagar Mouza were transferred back to the Sadar and since then, these records have been under the custody of Sadar Upazilla, Sunamgonj for the purpose of smooth office dealings for benefiting both the respondents and the inhabitants of Aukkynagar Mouza. Consequently, this Rule Nisi is likely to be absolute, and the impugned officer order issued by the respondent No.5 on September 1, 2016, directing the transfer of land records of Aukkynagar Mouza from Sadar Upazilla Sunamganj to Bishombarpur, is liable to be declared illegal having been enacted without lawful authority.
At the time of hearing of this Rule Nisi, Mr. Md. Saiefuddin Khaled, the learned Deputy Attorney General, frankly conceded that several inquiries have been conducted by respondent No.5 and others and based on their inquiry reports, the Deputy Commissioner Sunamgonj through his orders dated May 28,1990, June 17, 2009, and October 10,2009 directed the transfer of land records under Aukkynagar to Sadar for public interest. Hence the learned Deputy Attorney General Concurs.
We have heard the learned Advocates for the respective parties and thoroughly examined the writ petition, Annexures and other materials on record. The petitioner filed this writ petition challenging the legality of the order dated September 01, 2016 issued by respondent No.5,the Assistant Commissioner (Land), of Sunamgonj, Sadar. This letter annexed as Annexure-D, indicates that Md. Mamun Khandkar, Assistant Commissioner (Land), issued the directive to the surveyor, Office Assistant and Union Land Assistant officer to take necessary action in order to hand over all the records
of Aukkaynagar Mouza from Sunamganj Sadar to Bishombarpur Mouza. Surprisingly, the same individual, i.e. Md. Mamun Khandkar, Assistant commissioner (Land), of Sunamganj had previously issued a similar letter to
the Upazilla Nirbahi Officer, Sadar, Sunamgonj, on July 2, 2015. The contents of the letter are very much crucial for decision making regarding the
Rule, which reads as follows :-
“Efk¤Ñš² ¢hou J p§−œ¡š² pÈ¡l−Ll f¢l−fТr−a p¤e¡jN” pcl Ef−Sm¡l A¿aÑNa ArueNl ®j±S¡l ®lLXÑfœ ¢hnÄñlf¤l EfSm¡ ®b−L p¤e¡jN” pcl Ef−Sm¡l Ad£−e Beu−el ¢ho−u CE¢eue i¨¢j pqL¡l£ LjÑLaÑ¡, p¤e¡jN” pcl 29/6/2015 a¡¢l−Ml 344 ew pÈ¡l−L fÊ¢a−hce c¡¢Mm L−lez fСç fТa−hce cª−ø ®cM¡ k¡u ®k, 13 ew ®SHm¢ÙÛa ArueNl ®j±S¡¢V p¤e¡jN” pcl Ef−Sm¡ q−a 2 (c¤C) ¢L−m¡¢jV¡l Hhw ¢hnÄðlf¤l Ef−Sm¡ q−a 13 (®al) ¢L−m¡¢jV¡l c§−l Ah¢ÙÛaz ArueNl −j±S¡l Sep¡d¡l−Zl ¢hnÄñlf¤l q−a p¤e¡jN” pcl Ef−Sm¡u k¡a¡u¡a hÉhÙÛ¡ i¡m Hhw p¡d¡lZ SeNe ®j±S¡¢Vl L¡kÑœ²j p¤e¡jN” pcl Ef−Sm¡l BJa¡d£e b¡L¡l f−r ja¡ja ¢c−u−Rez haÑj¡−e i¥¢j pwœ²¡¿¹ hÉhÙÛ¡fe¡ L¡kÑœ²j p¤e¡jN” pcl Ef−Sm¡d£e Hhw i¥¢j pwœ²¡¿¹ Qmj¡e Sl£f L¡kÑœ²j ¢hðñlf¤l Ef−Sm¡d£e f¢lQ¡¢ma q−µRz SeN−el Q¡¢qc¡ Ae¤k¡u£ ArueNl ®j±S¡l hÉhÙÛ¡fe¡
J Sl£f L¡kÑœ²j p¤e¡jN” pcl Ef−Sm¡l BJa¡u f¢lQ¡¢ma q−m SeN−el p¤¢hd¡ q−h h−m fÐa£uj¡e qu j−jÑ CE¢eue i¥¢j pqL¡l£ LjÑLaÑ¡, p¤e¡jN” pcl fÊ¢a−hc−e E−õM L−lez
EfkѤš² fТa−hc−el p¢qa ¢ejÀü¡rlL¡l£ HLja ®f¡oZL−l l fha£Ñ fÐ−u¡Se£u hÉhÙÛ¡ NËq−el SeÉ Hp¡−b ®fÐlZ Ll¡ q−m¡ z”
This letter was issued after considering various inquiry reports and the greater interest of the inhabitants of Aukkynagar Mouza. Therefore after issuance of
this letter, the issuance of the impugned letter by the same person, which reverses the decision of his previous letter, cannot be considered proper and
legal.
A careful scanning of the record reveals that, in response to the requests of
the villagers of Aukkynagar Mouza, several inquires were conducted. Based
on these reports multiple letters were issued in different dates, directing the transfer of records of Aukkynagar Mouza to Sadar. Annexure-A shows that a
letter was issued by Deputy commissioner of Sunamganj to the Assistant Commissioner (Land),of Bishamborpur on May 28,1990, stating that
“Ef−Sm¡ ¢ehÑ¡q£ A¢gp¡l, p¤e¡jN” pc−ll p§−œ h¢ZÑa pÈ¡l−L c¡¢MmL«a fÊ¢a−hc−e ®cM¡ k¡u, ¢ho−u E−õ¢Ma ®j±S¡ pj§q p¤e¡jN” pcl Ef−Sm¡l l‰¡ylQl CE¢eu−e Ah¢ÙÛaz H ®j±S¡…−m¡l k¡ha£u ®lLXÑfœ ¢hnÄñlf¤l Ef−Sm¡u ¢eu¿»Z¡d£e b¡L¡u i¨¢j Eæue Ll Bc¡u, üaÅ ®j¡LŸj¡ f¢lQ¡me¡u J M¡pS¢j h−¾c¡hÙ¹ CaÉ¡¢c L¡NS p¤e¡jN” pcl Ef−Sm¡ l¡Sü fÐn¡p−e S¢Vma¡l pª¢ø q−µRz
Ef−l¡š² AhÙÛ¡u ArueNl J ®gV¡l N¡yJ ®j±S¡l k¡ha£u −lLXÑfœ ®pp¾p Bl J Bl, ¢f, Bl Bl, ®l¢SøÌ¡l (Ⅱ), ¢fJ 96/72 J 98/72 pwœ²¡¿¹ ¢lV¡ZÑ, ¢i¢f a¡¢lM CaÉ¡¢c A¢hm−ð Ef−Sm¡l i¨¢j A¢gp, p¤e¡jN” pc−ll ¢eLV qÙ¹¡¿¹l Ll¡l SeÉ ¢e−cÑn fÐc¡e Ll¡ qCm”.
In compliance with this directive from the DC, the Assistant Commissioner (Land), Bishombarpur issued a letter on October 08,1990 (Annesure-A-1). Subsiquently, the Deputy Commissioner of Sunamganj issued two additional letters dated 17.06.2009 and 10.09.2009 directing the Zonal Settlement Officer, Sylhet zone to take necessary action to transfer the recodes to the Sunamganj Sadar Upazilla from Bishombarpur for the purpose of preparing R.S. Records (Annexure B-B1). Ignoring the above decisions and directives from higher officer i.e. Deputy Commissioner, the Assistant Commissioner (Land), of Sunamganj Sadar, Sunamganj had no authority to issue impugned letter dated September 01, 2016.
In the result the Rule is made absolute.
The impugned order dated 01 October, 2016 issued by the respondent No-5, Assistant Commissioner (Land), Sunamganj is declared to have been done without lawful authority.
The respondents are directed to allow the inhabitants of Aukkyanagar Mouza under J.L. No.13 under Sunamganj District to be under Sadar Upazilla Sunamganj.
Should any records have already been transferred to Bishombarpur, the respondents are instructed to promptly return those records to Sadar, Sunamganj.
Ashish Ranjan Das, J.
I agree.
Anower B.o