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
1
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:
“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.
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.