IN THE SUPREME COURT OF BANGLADESH

                   HIGH COURT DIVISION

                  (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION No. 14631 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. Ibrahim and others   

.....................Petitioner -Versus-

Bangladesh,  represented  by  the  Secretary, Ministry  of  Land,  Bangladesh  Secretariat, Shahabagh, Dhaka and others  

................ Respondents Mr. Kazi Eklasur Rahman, Advocate

Mrs. Satika Hossain, Advocate

                ........ For the Petitioners Mr. Bepul Bagmar, D.A.G.

Mr. Md. Sirajul Alam Bhuiyan, A.A.G. and

Mr. Md. Delwar Hossian, A.A.G.

                                                                     …. For the respondents

Judgment on: 01.12.2022

            Present:

Mr. Justice Md. Khasruzzaman                and

Mr. Justice Md. Iqbal Kabir

Md. Khasruzzaman, J:

In the application under article 102 of the Constitution, on 05.11.2017 the Rule Nisi was issued calling upon the respondent

Nos. 1-4 to show cause as to why they should not be directed to release the property from the “Ka” schedule of the Arpito Sampotti Prottarpon  list  published  in  Bangladesh  Gazette  Extraordinary issue on 25th April, 2012 at page 24638, serial No. 797 under the provisions of section 6 of the Arpito Sampotti Prottarpon Ain, 2001 (Act No. 16 of 2001) pursuant to the judgment and decree dated  22.03.1990  (decree  signed  on  03.04.1990)  passed  by  the learned Joint District Judge and Commercial Court No. 2, Dhaka in Title Suit No. 149 of 1989 with a further direction to mutate the disputed property in the name of the petitioners in accordance with law and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts as stated in the writ petition, in short, are as follows:

The  land  described  in  the  schedule  of  the  writ  petition originally  belonged  to  Protima  Bewa  and  C.S.  record  was published  in  her  name  and  accordingly,  she  paid  taxes  to  the government.  Thereafter,  C.S.  recorded  tenant  Protima  Bewa transferred  1.05  acres  of  land  under  C.S.  Khatian  No.  123 corresponding to C.S. Plot No. 1409 to Bidhu Bhushon Roy and handed over possession to him. Subsequently, Bidhu Bhushon Roy transferred  said  1.05  acres  of  land  to  Horomohon  Shaha  vide

registered deed No. 1408 dated 24.02.1947, and also handed over possession of the same to him. Being owner in the above way, Horomohon Shaha got his name recorded under S.A. Khatian No. 166 corresponding to S.A. Plot No. 1409 and under R.S. Khatian No. 1045 corresponding to R.S. Plot No. 1319 of the said land. Thereafter, Horomonhon Shaha transferred the said 1.05 acres of land  to  Abdul  Mazid  vide  registered  deed  No.  23571  dated 11.08.1977  and  handed  over  possession  to  him.  Subsequently, Abdul Mazid transferred the said land to (1) Md. Ibrahim Miah, (2) Md. Musa Miah, (3) Md. Yousuf Miah, (4) Md. Zahidul Islam and (5) Md. Shahidul Haque all sons of late Md. Erfan Miah through registered deed No. 7984 dated 18.06.1980. On 07.05.1992 Md. Musa Miah died as unmarried and then his rest 4(four) brothers became the owners of the land. Erfan Miah got the land through amicable settlement amongst his brothers and after his death the land was mutated in the name of the petitioners all sons of late Md. Erfan Miah vide Mutation and Separation Case No. 6588/1990- 1991  dated  17.06.1991.  Thereafter,  they  paid  taxes  to  the government. Horomohan Shaha never migrated to India before or after in the year 1965 and he was not an Indian national and he never resided in India as an Indian national and the government failed to prove that he left this country in between 06.09.1965 to 16.02.1969  leaving  the  property  uncared.  The  Sub-Divisional Officer asked Abdul Mazid in V.P. Case No. 992 of 1979 to appear before him with the relevant paper and documents of the land and then Abdul Mazid appeared before the authority and thus the land was released on 15.02.1980. Again on 03.04.1982 the said Sub- Divisional Officer in his Memo No. 354/VP Case issued notice to Md. Erfan father of the petitioners directing him to appear before the Vested Property Authority with all relevant documents of the property, then the petitioners as plaintiffs filed Title Suit No. 56 of 1983 before the learned Joint District Judge, 2nd Court, Dhaka against the government and others for declaration of title of the scheduled land and also for a further declaration of the scheduled land as vested property was illegal, void and without jurisdiction, and  the  suit  was  transferred  to  the  Joint  District  Judge  and Commerical Court No. 2, Dhaka and re-numbered as Title Suit No. 249 of 1989, and after hearing both the sides, the suit was decreed in favour of the petitioners that the inclusion of the suit property as vested  property  by  the  defendant  was  illegal  and  without jurisdiction. Subsequently, the said land was also included in the ‘Ka’  schedule  of  the  Arpito  Sampotti  Prottarpon  list.  Being

The respondent Nos. 2-4 by filing an affidavit-in-opposition contested the Rule Nisi denying the material facts as stated in the writ petition contending inter alia that the property in question was enlisted in the “Ka’ schedule of the Arpito Sampotti Prottarpon list rightly and it was published in the Bangladesh Gazette and as such the Rule Nisi is liable to be discharged.

Mrs. Satika Hossain, the learned Advocate for the petitioners submits that Bidhu Bhushon Roy purchased the land from the C.S. recorded tenant and thereafter Horomohan Shaha purchased the same  and  S.A.  and  R.S.  Khatians  were  prepared  in  his  name (Horomohan  Shaha).  Subsequently,  it  was  transferred  to  the present petitioners and Horomohan Shaha never left this country leaving his property uncared, and in V.P. Case No.992 of 1979 and in Title Suit No. 56 of 1983 the property in question was released, and the title of the petitioners was declared but the authority by violating section 6 of the Arpito Sampotti Prottarpon Ain, 2001 again included the property in the ‘Ka’ schedule of the Arpito Sampotti Prottarpon list. She further submits that the Defence of Pakistan Ordinance and the Rules were repealed by Act No. 45 of 1974. Thus, on the basis of the repealed Ordinance no further vested  property  case  to  be  started  as  after  the  repeal  of  the Ordinance, it has already been dead. In support of her submissions she cited a case of Mrs. Saju Hosein (in C.A.No. 129/01), Mrs. Rani Begum and others (in C.A.No. 130/01) Vs. The Government and another (in both the appeals) reported in 2 ADC 506. She also submits that the scheduled property was not enlisted in the census list of the enemy property. Moreover, the respondents have also failed to show any material document regarding census list of the enemy property. Accordingly, the Gazette notification in so far as it relates to the scheduled land is liable to be declared to have been done without lawful authority and is of no legal effect.

On the other hand, Mr. Bepul Bagmar, the learned Deputy Attorney General for the respondents submits that the property was rightly  included  in  the  ‘Ka’  schedule  of  the  Arpito  Sampotti Prottarpon list.             

It appears from the Annexure-H to the writ petition that the Sub-Divisional  Officer,  Dhaka  Sadar,  Dhaka  in  V.P.  Case  No. 992/1979 issued a letter asking Abdul Mazid to appear before the authority  directing  to  submit  the  nationality  certificate  of Horomohon  Shaha.  Thereafter,  Abdul  Mazid  submitted  the

nationality certificate of Horomohon Shaha issued by the Assistant Commissioner,  Dhaka  Sadar  (South)  dated  14.02.1980. Accordingly, on 15.02.1980 the Sub-Divisional Officer in Charge, in  V.P.  Case  No.  992  of  1979  released  the  property  from  the category of Vested and Non Resident property. It further appears from the Annexure-I that again on 03.04.1982 the Sub-Divisional Officer,  Dhaka  Sadar,  Dhaka  vide  Memo  No.  354/V.P.  dated 03.04.1982 issued a letter to Erfan Ali son of Rajjob Ali, Village: Beraid,  Police  Station:  Savar  asking  him  to  appear  before  the authority on 26.04.1982 in V.P. Case No. 131/1969 Police Station: Savar  regarding  the  same  land.  Thereafter,  Erfan  Ali  appeared before the authority on the basis of the said letter with relevant documents, and after hearing said land was released from the V.P. list,  which  has  not  been  denied  by  the  respondents  in  their affidavit-in-opposition. It also appears from the Annexure-J and J- 1 that Md. Ebrahim Miah and his four brothers all sons of Md. Erfan Miah filed Title Suit No. 56 of 1983 before the learned Joint District Judge, 2nd Court, Dhaka against the Custodian, Vested Property (L and B) represented by the Secretary, Ministry of Law and  Land  Reforms  and  others  for  a  declaration  of  title  of  the scheduled land and for a further declaration that the inclusion of

the scheduled land in the list of vested property was illegal and

without  jurisdiction.  Subsequently,  the  suit  was  renumbered  as

Title Suit No. 249 of 1989 and after hearing the suit was decreed

on  22.03.1990  (decree  signed  on  03.04.1990).  But  no  appeal  /

revision / review was filed by the government against the said

judgment  and  decree.  Thus,  the  decree  is  binding  upon  the

government. After decreeing the suit, the petitioners mutated their

names and paid taxes to the government. Again the said land was

published  on  25.04.2012  in  the  “Ka’  schedule  of  the  Arpito

Sampotti Prottarpon list.

For better understanding and easy reference section 6 of the

Arpito Sampotti Prottarpon Ain, 2001 is quoted below:

aviv 6| KwZcq m¤úwË cÖZ¨vc©Y‡hvM¨ m¤úwËi ZvwjKvq AšÍf©~w³ wbwl×:

(L) −L¡e pÇf¢š A¢fÑa pÇf¢š e−q j−jÑ HC BCe fËha −el §− fhÑ

kb¡kb Bc¡ma P~s¡¿¹ ¢pÜ¡¿¹ fËc¡e L¢lu¡ b¡¢L−m ®pC pÇf¢š;

(M) HC AvBb fËhaÑ−el f§−hÑ ®k ®L¡e pju ašÅ¡hd¡uL LaѪL A¢fÑa

pÇf¢šl a¡¢mL¡ qC−a Ahj¤š² Ll¡ qCu¡−R Hl©f ®L¡e pÇf¢š z      

It is admitted that no appeal, revision or review was filed by

the government against the aforesaid judgment and decree dated

22.03.1990 (decree singed on 03.04.1990) in Title Suit No. 249 of

1989 declaring the title of the land and also declaring without

lawful authority regarding the inclusion of the land in the ‘Ka’ list of  the  Arpito  Sampotti  Prottarpon  and  as  such  the  aforesaid judgment and decree is still inforce and therefore, the government respondents  cannot  claim  the  scheduled  property  as  vested property  and  consequently,  they  cannot  include  the  scheduled property  either  in  the  ‘Ka’  schedule  or  ‘Kha’  schedule  of  the Arpito Sampotti Prottarpon list.

In the case of Laxmi Kanta Roy vs. Upazila Nirbahi Officer and another, 46 DLR 136, in paragraph Nos. 5 and 6, his lordship discussed and held that:

5. At the very outset it his dwawn my attention in this case as to whether the institution of the VP Case No. 142 of 1980 was maintainable in the eye of law. The Defence of Pakistan Ordinance and Rules came in the year  1965.  The  Defence  of  Pakistan  Ordinance  and Rules were repealed in the year 1969, but by Ordinance No.  1  of  1969  promulgated  by  the  then  Central Government of Pakistan, some of the provisions of the Defence  of  Pakistan  Rules  were  kept  alive  and continued.  Thereafter  by  Act  No.  XLV  of  1974,  the Ordinance No. 1 of 1969 was repealed on 23.03.1974. After the repeal of Ordinance No. 1 of 1969 in 1974 whether any proceeding under the said Ordinance and Rules could be started. Admittedly, the present Vested Property  case  was  started  in  the  year  1980. Unfortunately,  this  point  was  neither  raised  by  the learned  Advocate  for  the  plaintiff,  nor  the  learned Judges had taken notice of the law which was repealed in  the  year  1974.  This  point  was  not  specifically agitated  and  no  issue  was  framed  on  it.  Mr.  Abdul Quayum,  the  learned  Advocate  appearing  for  the petitioner, submits that since it is a question of law it can be agitated in this Court at this revisional stage. In this case Mr. Quayum his referred to the case of Nittya Gopal Roy Barman Vs. Pran Gopal Nandi and others, 32  DLR  11.  In  the  aforesaid  Judgment  it  is categorically held by his Lordship that after repeal of the Ordinance No. 1 of 1969 by Act No. XLV of 1974 on 23.03.1974  the  authority  was  not  competent  to  start such vested property proceeding in the eye of law. In the aforesaid Judgment his Lordship held as follows:

“Mere claim of the Assistant Custodian that the property  of  the  deceased  testator  is  an  enemy property in respect of which an enemy property case  was  started  in  1978  is  not  sufficient  for coming to a conclusion that the property is an enemy property.”

I fully agree with the view of his Lordship expressed in the  aforesaid  decision.  Since  the  law  on  Enemy Property itself died with the repeal of Ordinance 1 of 1969 on 23.03.1974 by Act XLV of 1974, no further vested property case can be started thereafter on the basis of the law which is already dead. So I find that the starting of the vested property case No. 142 of 1980 in the year 1980 is absolutely without jurisdiction and has no legal basis at all.

6. Learned Advocate appearing for the opposite parties submits that the present case comes within the saving clause as provided in section 3 of Act XLV of 1974. but in  support  of  such  contention  the  learned  Advocate failed to produce any papers whatsoever in order to show that such a property assumed the character of Enemy  Property  or  any  proceeding  was  started  in respect of this property under the vested properties Law before  repeal  of  Ordinance  No.  1  of  1969.  I  have perused the papers and documents filed in this case and I am of the view that the instant case does not come within the saving clause of section 3 of Act XLV of 1974. So, the contention of the learned Advocate does not find any merit in the case.

In the case of Additional Deputy Commissioner (Revenue) Dhaka Vs. Md. Mostafa Ali Mridha and others, 48 DLR 193, their Lordships considering the submissions of the learned Advocate for the respondent No. 1 took similar view as decided in the case of Laxmi Kanta Roy vs. Upazila Nirbahi Officer and another, 46 DLR 136.

It is mentioned that during Indo-Pak war on 06.09.1965 the President of Pakistan in exercise of the powers conferred under clause (1) of article 30 of the Constitution, issued a Proclamation of Emergency. On 06.09.1965 the President was pleased to make and  promulgate  the  Defence  of  Pakistan  Ordinance,  1965 (Ordinance No. XXIII of 1965) and on 29.09.1965 under section 3 of  the  Ordinance  No.  XXIII  of  1965,  the  Defence  of  Pakistan Rules was made. In pursuance of clause 3 of article 30 of the Constitution, the President was pleased to revoke the aforesaid proclamation,  on  and  from  the  17th  February  1969.  Thus  the defence  of  Pakistan  Ordinance,  1965  remained  valid  till 16.02.1969. Thereafter, on 23.03.1974 the Ordinance and the Rules were repealed and replaced by the Enemy Property (Continuance of  Emergency  Provisions)  Ordinance,  1969  (Ordinance Commencement No. I of 1969) wherein some provisions of the Emergency Power / the Defence of Pakistan Rules were kept alive. After the withdrawal of emergency, the Enemy Property Ordinance (Emergency Provisions), 1969 came into force in which several provisions  of  the  Emergency  Powers  Rules  were  kept  alive. Thereafter, the Emergency Property (Continuance of Emergency Provisions) (repeal) Ordinance, 1974 was promulgated which was subsequently made Act No. XLV of 1974 and it was come into force  on  23.03.1974.  Then  Vested  and  Non-Resident  Property (Administration) Ordinance, 1974 came into force vide Ordinance No. V of 1974 which was subsequently converted into Act No. XLVI of 1974. Under the provisions of the said Ordinance, the vested and non-resident properties were being administered. Then the Vested and Non-Resident Property (Administration) (Repeal)

Appellate  Division  in  the  case  of  Artoti  Rani  Paul  Vs. Sudarshan Kumar Paul and others, 56 DLR (AD) 73 approving the principle laid down in the case of Laxmi Kanta Roy vs. Upazila Nirbahi Officer and another, 46 DLR 136, held that:

Since the law of enemy property itself died with the repeal of Ordinance No. 1 of 1969 on 23.3.1974, no further vested property case can be started thereafter on the basis of the law which is already dead.

After the repeal of the Vested and Non-Resident Property

Ordinance vide Ordinance No. 92 of 1976, there was no scope for starting any VP case under the provisions of the aforesaid law afresh, and if any proceeding is started for treating a property as vested  property  under  law  that  will  be  absolutely  without jurisdiction.

As per section 6(Ka) the Arpito Sampotti Prottarpon Act, 2001 any property will not be treated as Arpito Sampotti if the same was declared by the competent civil Court as the property is not Arpito Sampotti before enactment of the Act. In the present case,  the  property  was  declared  as  the  same  was  not  Arpito Sampotti in Title Suit No. 56 of 1983 (renumbered as Title Suit No.  249  of  1989).  Thus  the  inclusion  of  the  property  in  ‘Ka’ schedule of the Arpito Sampotti Prottarpon list after declaration the same was not vested property was illegal, and without jurisdiction. Moreover,  the  petitioners  in  their  writ  petition  stated  that  the

schedule property has not been included in the census list of the vested property and the same was not denied in the affidavit-in- opposition by the government. Besides, the petitioners have proved that Hormohon Shaha who was the recorded owner migrated to India from 06.09.1965 to 16.02.1969 when the Defence of Pakistan Ordinance 1965 was in force. It has already been settled that after 23.03.1974 no further vested property case can be started on the basis of the repealed Ordinance.

Considering the facts of the present case, relevant laws and the  decisions  cited  by  the  parties,  we  find  substance  in  the submissions of the learned Advocate for the petitioners.  

In the result, the Rule Nisi is made absolute without any order as to costs.

Thus the respondent are directed to release the property from “Ka” schedule of the Arpito Sampotti Prottarpon list published in Bangladesh  Gazette  Extraordinary  issue  on  25th  April,  2012  at page 24638, serial No. 797

Send down the lower Court’s records.

Communicate the order.

Md. Iqbal Kabir, J:

I agree.