IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

     PRESENT:

Mr. Justice Hasan Foez Siddique

Chief Justice Mr. Justice M. Enayetur Rahim 

Mr. Justice Jahangir Hossain

CIVIL PETITION FOR LEAVE TO APPEAL NOS.901 OF 2018 with C.P.1466 of 2022.

(From the judgment and order dated 16.10.2017 passed by the High Court Division in Writ Petition No.9876 of 2014.)

Md. Abdur Rashid and others :

Syed Sohrawardi and another :

=Versus=

A.B.M. Yousuf Abdullah and others  :

Petitioners. (In C.P.901/18)

Petitioners. (In C.P.1466/22)

Respondents. (In both the cases)

 For the Petitioners     : Mr.A.M.  Aminuddin,  Senior (In C.P. 901/2018)  Advocate,  instructed by Mr.

Md. Helal Amin, Advocate-on- Record.

For the Petitioners     : (In C.P. 1466/2022)

For the Respondent No.1-5: (In C.P.901/18)

Respondent Nos.6-11: (In C.P.901/18)

Mr.  Probir  Neogi,  Senior Advocate,   instructed  by Mrs.  Madhumaloti  Chowdhury Barua, Advocate-on-Record.

Mr. Mr. Abdul Wadud Bhuiya, Senior  Advocate  with  Mr. Md.  Nurul  Amin,  Senior Advocate and Mr. M. Qumrul Hoque  Siddique,  Advocate, instructed  by  Mr.  Bivash Chandra  Biswas, Advocate-on-Record.

Not represented

Respondents       :  Not represented (In C.P.1466/22)

Date of hearing and judgment  : 22-01-2023

J U D G M E N T

Hasan Foez Siddique, C. J: The delay in filing in Civil Petition for Leave to Appeal No.1466 of 2022 is condoned.

These two civil petitions for leave to appeal have been filed against the common judgment and order dated 16.10.2017 passed by the High Court Division in Writ Petition No.9876 of 2014 making the Rule absolute and directing the Land Survey Department to make final publication of the City Survey Khatians in respect of case khatian.

The respondent Nos.1-5, A.B.M.Yousuf Abdullah and others  filed aforesaid writ petition challenging the notice issued under Memo No.31.03.2600.022.16.002.14 dated 28.09.2014 under the signature of the Charge Officer and Investigating Officer, Dhaka Zonal Settlement Office (writ respondent No.4) directing the parties of the Appeal Nos.44896- 44901 of 2001 to appear with the documents on 14.10.2014 before him. The contents of the said notification dated 28.09.2014 were as under:

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15bs fvUviv †gŠRvi 44896/2001 n‡Z 44910/2001bs Avcxj gvgjvi iv‡qi

wei“‡× Rbve †gvt Avãyi iwk` Ms Gi `vwLjK…Z cybt ïbvbxi Av‡e`‡bi wel‡q Z`š— AvMvgx 14/10/2014 wLªt ZvwiL mKvj 11.00 NwUKvq wbg¥ ¯^v¶iKvixi Awdm K‡¶ AbywôZ n‡e| mswk­ó mKj‡K cª‡qvRbxq KvMRcÎvw`mn h_vmg‡q

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Against said notification, the writ petitioners, filing the aforesaid writ petition, obtained Rule.

The leave petitioners (respondent No.5) of Civil Petition for Leave to Appeal No.901 of 2018 and writ respondent Nos.8-10 appeared in the said writ petition and filed Affidavit-in- Opposition.

The High Court Division, by the impugned judgment and order dated 16.10.2017, made the said Rule absolute.

Then the writ respondent No.5 Md. Abdur Rashid and 3 others filed Civil Petition for Leave to Appeal No.901 of 2018 and third party namely, Syed Sohrawardi and another filed Civil Petition for Leave to Appeal No.1466 of 2022 in this Division.

 Mr. A.M. Aminuddin, learned Senior Advocate appearing for the petitioners in Civil Petition for Leave to Appeal No. 901 of 2018, submits that they purchased the disputed land by separate registered sale deeds and have been possessing the same upon mutating their names and paying rent to the Government regularly. He submits that C.S., S.A. and R.S. khatians were duly prepared in the names of their predecessors and that the writ petitioner- respondents obtained an order in appeal by practising fraud. He submits that since there was specific allegation of fraud in the applications, the High Court Division erred in law in making the Rule absolute and declaring the notification unlawful.

Mr. Probir Neogi, learned Senior Advocate appearing for the third party leave petitioners in Civil Petition for Leave to Appeal No.1466 of 2022, submits that leave petitioners of this petition purchased .38 acre of land from one Narayan by two sale deeds No.12500 and 12501

dated 24.09.2000 from C.S. and S.A. khatian No.105 and 115 respectively and plots No.2375, the High Court Division erroneously made the Rule absolute, consequently, these two petitioners have been prejudiced seriously. He submits that after purchasing the aforesaid land, the leave petitioners of this petition mutated their names in the khatian from the office of the Assistant Commissioner of Land, Tejgaon, Dhaka in Namjari O Jomabhagh Case No.10302 of 2001 on 22.07.2001 and they also mutated their names in the khatian in Namjari- O- Jomabhagh Case No.18819 of 2005 dated 27.12.2005 and paid rent to the Government, the High Court Division erred in law in making the Rule absolute in respect of their portion of their land.

Mr. Abdul Wadud Bhuiya, learned Senior Advocate appearing with Mr. Md. Nurul Amin, learned Senior Advocate and Mr. Qumrul Huq Siddique, learned Advocate for the respondents in both the petitions in their submissions supported the judgment and order of the High Court Division.

From the impugned notice dated 28.09.2014 as quoted above, it appears that at the instance of Zonal Settlement Officer, Dhaka, Charge Officer and Investigating Officer, issued the aforesaid letter  for further hearing and communicated the said letter for holding inquiry on 14.10.2014.  The writ petitioner respondents challenged the same without appearing before the concerned office. It further appears from the materials on record that on the basis of the application dated 21.07.2014 Zonal Settlement Officer issued a notice for holding inquiry under the provision of Rule 42A of the State Acquisition and Tenancy Rules, 1955 to ascertain as to whether any fraud has been committed in making entry of draft record-of-rights or not. The contents of

the said notice were as follows.

 ÒMYcªRvZš¿x evsjv‡`k miKvi

‡Rvbvj †m‡Uj‡g›U Awdmv‡ii Kvh©vjq, XvKv

28, knx` ZvRDwÏb Avng` m¥ibx

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welqt 1955 m‡bi cªRvZ¯^Z¡ wewagvjvi 42K wewai †Kvb Dcv`vb Av‡Q wKbv Zv hvuPvB A‡š— cªwZ‡e`b `vwLj|

m~Ît Rbve ‡gvt Avãyi iwk` Gi 21/07/14 wLªt Zvwi‡Li `vwLjK…Z Av‡e`b|

Dchy³ welq I m~‡Î cªvß Rbve †gvt Avãyi iwk`, mvs-12/O/1, k¨vgjx, moK-

02, XvKv Gi XvKv wmwU Rwi‡ci ¸jkvb avbvaxb 15bs fvUviv †gŠRvi 44896/2001

n‡Z 44901/2001 bs †gvU 06 wU Avwcj gvgjvi iv‡qi Amg¥wZ‡Z 1955 m‡bi

cªRv¯^Z¡ wewagvjvi 42K wewa g‡Z ïbvbxi g~j Av‡e`bmn Avbymw½K KvMRcÎ G mv‡_ †cªiY Kiv n‡jv|

02| gnvcwiPvjK, f~wg †iKW© I Rwic Awa`ßi g‡nv`‡qi 14/7/2010wLªt

Zvwi‡Li f~t †i./75/2009/2001bs ¯^vi‡K cªRv¯^Z¡ wewagvjv-1955 Gi 42K I L wewai

cª‡qvM m¤ú‡K© †m‡Uj‡g›U Awdmvi/†Rvbvj †m‡Uj‡g›U Awdmvi eivei RvixK…Z wb‡`©kbvi Av‡jv‡K Av‡e`bKvixi Av‡e`‡bi wel‡q  1955 m‡bi cªRv¯^Z¡ wewagvjv AbymiYiZ wbg¥ ewb©Z Z_¨mn my¯có gZvgZmn cªwZ‡e`b `vwL‡ji Rb¨ Aby‡iva Kiv

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03| cªwZ‡e`‡bi mv‡_ g~j Av‡e`b I AvbymswMK KvMRcÎ cªZ¨c©Y‡hvM¨|

mshy³t 144 d`©|  ¯^vt A¯có

24/8/14

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Thereafter, by the impugned notice dated

28.09.2014, it was directed to the parties to appear before the Zonal Settlement Officer on 14.10.2014. Rule 41, 42A of the State Acquisition and Tenancy Rules, 1955 authorized the Revenue Officer to hold enquiry to ascertain as to whether any fraud has been committed in making entry in record-of-right or not and such application should be filed before final publication of the record-of-rights. The said provision run as follows:

“42A. Correction of fraudulent entry before final publication of record-of- rights- The Revenue Officer, with the additional designation of ‘Settlement Officer’ shall, on receipt of an application or on receipt of an official report for the correction of an entry that has been procured by fraud in record-of- rights before final publication thereof, after consulting relevant records and making such other enquiries as he deems necessary, direct excision of the fraudulent entry and his act in doing so shall not be open to appeal. At the same time, the Revenue-Officer shall make the correct entry after giving the parties concerned a hearing and recording his finding in a formal proceeding for the purpose of future reference.”

Admittedly, record-of-right in the instant

case, has not yet been published finally. Since petitioner Abdur Rashid  brought specific allegations that the writ petitioners procured the order by practising fraud, the Revenue Officer with the additional designation of Settlement Officer can examine as to whether such order has been procured by practising fraud or not.

The instant case, it appears that  the Zonal Settlement Officer simply issued a notice directing the parties to appear before him with their respective papers. The writ petitioners, without appearing before the said Officer, directly filed the instant writ petition and obtained Rule which was finally made absolute. Since the law authorizes the Revenue officer with additional designation of settlement officer to hold inquiry to ascertain as to whether any fraud had been committed in procuring entry for preparation of the record- of-rights before final publication or not, we are of the view, that the said Office acted in its jurisdiction as conferred under the Rule 42A of the State Acquisition Rules, 1955 rightly, the High Court Division erred in law in interfering with the matter at the stage when the writ petitioners have ample opportunity to appear before the Zonal Settlement Officer and to produce documents to justify their claims.  

Accordingly, we find substance both the petitions.

Thus, both the petitions are disposed of. The judgment and order dated 16.10.2017 passed by the High Court Division in Writ Petition No.9876 of 2014 is hereby set aside.

C. J.

                                                                                            J.                                                                                             J.

The 22nd  January, 2023. halim/words-1625 /