IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 4929 OF 2018

In the matter of:

An  application  under  article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh.

AND                           In the matter of:

Sanjib Kumar Kundu and others

                                                   ....Petitioners

-Versus-

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

..... Respondents Mr. MM Zulfikar Ali Hyder, Advocate

         ...... For the Petitioners None appears

                                                             .... For the respondents

The 19th September, 2021

Present:

Mr. Justice Md. Khasruzzaman

               and

Mr. Justice Md. Mahmud Hassan Talukder

Md. Khasruzzaman, J:

On an application under article 102 of the Constitution, the Rule Nisi was issued calling upon the respondents to show cause as to why decision of the respondents to remove/demolish part of Kundu  Market  at  Plot  No.  338,  Khatian  No.36,  J.L.  No.  191, Mouza:  Naranpur,  Police  Station:  Pangsha,  District:  Rajbari belonging  to  the  petitioner  No.1  pursuant  to  six(06)  separate

notices  vide  Memo  No.05.30.8200.020.27.007.12-409  all  dated 20.03.2018 addressed to the petitioner Nos.2 to 7 (Annexures-D series) should not be declared to have been issued without lawful and is of no legal effect and as to why a direction should not be given upon the respondents not to disturb/demolish the petitioners’ aforesaid building pursuant to the six(06) separate notices vide Memo No.05. 30. 8200. 020. 27. 007.12-409 all dated 20.03.2018 addressed to the petitioner Nos.2 to 7 (Annexures-D series) and/or pass such other or further order or orders as to this Court may seem fit and proper.  

Facts for disposal of the Rule Nisi, in short, are that:

The  petitioner  No.  1  is  the  owner  of  the  case  property measuring 15 decimals of land in R.S. Plot No. 338 appertaining to R.S. Khatian No. 36 under Mouja No. 191 Narayanpur, Police Station:  Pangsha,  District:  Rajbari.  The  petitioner  No.  1 constructed the market i.e. Kundu Market on the said land and other  petitioners  took  rent  the  shops  of  the  market  from  the petitioner No. 1.

The respondent No.3 on behalf of the respondent No.2 issued notice to the petitioners under section 5(1)of the Government and Local Authority Lands and Buildings (Recovery of Possession) Ordinance, 1970. Thereafter, the petitioners filed this writ petition and obtained the Rule.

Mr. MM Zulfikar Ali Hyder, the learned Advocate for the petitioners submits that the petitioner No.1 purchased the property and  thereafter  he  took  permission  from  the  authority  for constructing a building, accordingly, he constructed a market on the  property  and  the  respondent  No.3  without  following  the provision of law issued the eviction notice which is clear violation of law. He further submits that the petitioner No. 1 has been in possession of the case property and he deposited the tax to the government  regularly.  But  the  respondent  No.  3  without considering  the  title  of  the  petitioner  No.  1  issued  impugned notices which needs to be interfered by this Court otherwise he will be seriously prejudiced.

Heard the learned Advocate for the petitioner and perused the application and the annexures annexed thereof.

It appears from the Annexure-D series vide Memo No. 05. 30.  8200.  020.  27.  007.12-409  all  dated  20.03.2018  that  the respondent No. 3 issued impugned notices under section 5(1) of the  Government  and  Local  Authority  Lands  and  Buildings (Recovery of Possession) Ordinance, 1970 to evict the petitioners as unauthorized occupant of the case property. It further appears from section 10 of the said Ordinance that if any order passed under section 5 then any aggrieved persons can file appeal before the Divisional Commissioner.

The petitioners without going there travelled a wrong forum and as such this writ petition is not maintainable.

However, the petitioner is at liberty to file appeal before the Divisional  Commissioner  and  the  Divisional  Commissioner  is directed to dispose of the appeal on merit, if the petitioners files any appeal within 30 days from the date of receipt of the judgment.

Accordingly, the Rule Nisi is discharged.  

Communicate the order.

Md. Mahmud Hassan Talukder, J.

      I agree.