IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 289 of 2019 with Writ Petition No. 3824 of 2016 with Writ Petition No. 4479 of 2019 with Writ Petition No. 7709 of 2019 with Writ Petition No. 7710 of 2019 with Writ Petition No. 5060 of 2020 with Writ Petition No. 8644 of 2021

In the matter of:

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

AND

In the matter of:

Md. Rezaul Karim and others

                  ...Petitioners (In W.P. No. 289 of 2019) Kushtia City College

                  ...Petitioner (In W.P. No. 3824 of 2016) Md. Saiful Alam and others

                  ...Petitioners (In W.P. No. 4479 of 2019) Md. Nazam Uddin and others

                  ...Petitioners (In W.P. No. 7709 of 2019) Md. Md. Rakibul Islam and others

                  ...Petitioners (In W.P. No. 7710 of 2019) Md. Shoriful Kobir Shopon and others

                  ...Petitioners (In W.P. No. 5060 of 2020) Md. Ziaur Rahman

                  ...Petitioner (In W.P. No. 8644 of 2020)          -Versus-

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

                 ... Respondents (All the Writ Petitions).

Mr. M. Ashraf Ali, Advocate,

       ......For the petitioners. (In W.P. No. 289 of 2019)

Mr. Nakib Saiful Islam, Advocate,

       ......For the petitioner. (In W.P. No. 3824 of 2016)

Mr. Md. Shahadat Alam, Advocate,

       ......For the petitioners. (In W.P. No. 4479 of 2019)

Mr. Munshi Moniruzzaman, Advocate, with Mr. Sakib Rajwan Kabir, Advocate

       ......For the petitioners. (In W.P. No. 7709 of 2019)

 (In W.P. No. 7710 of 2019)

(In W.P. No. 5060 of 2020)

Mr. Mustafa Hamid Siddique, Advocate,

       ......For the petitioner. (In W.P. No. 8644 of 2020)

Mr. Md. Masud Hasan Chowdhury, Advocate

.....For the respondent No.3. (In W.P. No. 289 of 2019)

(In W.P. No. 4479 of 2019) (In W.P. No. 7709 of 2019) (In W.P. No. 7710 of 2019) (In W.P. No. 5060 of 2020) (In W.P. No. 8644 of 2020)

Mr. S.M. Monir, Additional Attorney General with

Mr. B.M. Abdur Rafell, D.A.G

        ..For the respondent No.4 (All the Writ Petitions).

Mr. Md. Masud Hasan Chowdhury, Advocate

.....For the respondent No.4. (In W.P. No. 3824 of 2016)

Judgment on: 14.12.2023

Present:

Mr. Justice Md. Khasruzzaman

and

Mr. Justice K M Zahid Sarwar

Md. Khasruzzaman, J:

In the present writ petitions, the subject matter and point of law involved are same although the parties are different. As such,  the  above  writ  petitions  are  taken  up  together  for hearing and are being disposed of by this single judgment.

In Writ Petition No. 289 of 2019 the Rule Nisi was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the order dated 11.11.2018 passed by the respondent No.4 in Resume Case No. 1 of 2018 resuming 16.24 acres of land out of 17.27 acres, acquired in L.A. Case No.38/62-63 and L.A. Case No. 75/62-63 (Annexure-K)  so  far  it  relates  to  the  petitioner’s  land measuring 12 kathas should not be declared to have been done  without lawful authority  and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”

In  Writ  Petition  No.  3824  of  2016  the  Rule  Nisi  was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show  cause  as  to  why  the  impugned  order  dated 25.05.2015  passed  by  the  respondent  No.6  in  Resume Case No. 3 of 2015 arising out of L.A. Case No.38/62-63 and  75/-62-63  resuming  the  leasehold  property  of  the petitioner measuring 3.00 acres out of 5.00 acres of R.S. Dag No. 5931, R.S. Khatian No. 9 under District- Kushtia, Mouja-Kalishankorpur,  Thana-  Kotwali  (Annexure-K) should  not  be  declared  to  have  been  passed  without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.”

In  Writ  Petition No.  4479 of  2019  the  Rule  Nisi  was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause why the order dated 11.11.2018 passed by the  respondent  No.4  in  Resume  Case  No.  1/2018 resuming  16.24  acres  of  land  acquired  in  L.A.  Case No.38/62-63 and L.A. Case No. 75/62-63 (Annexure-O) so far it relates to the land of the petitioner’s land measuring 20.5 kathas should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”

In  Writ  Petition  No.  7709  of  2019  the  Rule  Nisi  was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Order No. 03 dated 11.11.2018 passed  by  the  respondent  No.4  in  Resume  Case  No. 1/2018 resuming 16.24 acres of land  out of 17.2769 acres of land which was acquired in L.A. Case No.38/62- 63 and L.A. Case No. 75/62-63 (Annexure-O) so far it relates  to  the  land  of  the  petitioners  measuring  20.50 (twenty point five zero) kathas should not be declared to have been passed without lawful authority and of no legal effect and why the respondents should not be directed to complete the process of lease pursuant to the respective lease order of the petitioners and/or pass such other or further order or orders as to this Court may seem fit and proper.”

In  Writ  Petition  No.  7710  of  2019  the  Rule  Nisi  was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show  cause  why  the  Order  No.  03  dated  11.11.2018 passed  by  the  respondent  No.4  in  Resume  Case  No. 1/2018 resuming 16.24 acres of land  out of 17.2769 acres which was acquired in L.A. Case No.38/62-63 and L.A. Case No. 75/62-63 [Annexure-Z(21)] so far it relates to the land of the petitioners measuring 58 (fifty eight) kathas should  not  be  declared  to  have  been  passed  without lawful authority and is of no legal effect and why  the respondents should not be directed to complete the process of  lease  pursuant  to  the  respective  lease  order  of  the petitioners  and/or  pass  such  other  or  further  order  or orders as to this Court may seem fit and proper.”

In  Writ  Petition  No.  5060  of  2020  the  Rule  Nisi  was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Order No. 03 dated 11.11.2018 passed  by  the  respondent  No.4  in  Resume  Case  No. 01/2018  resuming  16.24  acres  of  land  which  was

acquired in L.A. Case No.38/62-63 and L.A. Case No. 75/- 62-63 (Annexure-N) so far as it relates to the land of the petitioners measuring 17 (seventeen) kathas should not be declared  to have been passed  without lawful  authority and is of no legal effect and as to why a direction should not be given upon the respondents to complete the process of  lease  pursuant  to  the  respective  lease  order  of  the petitioners and/or such other or further order or orders passed as to this Court may seem fit and proper.”

In  Writ  Petition  No.  8644  of  2021  the  Rule  Nisi  was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Order No. 03 dated 11.11.2018 passed by the respondent No.4 in Resume Case No. 01 of 2018 resumed 16.24 acres of land out of 17.2769 acres of land which was acquired in L.A. Case No.38/62-63 and L.A. Case No. 75/62-63 (Annexure-I) so far it relates to the land of the petitioner measuring 5 (five) kathas shall not be declared  to have been passed  without lawful  authority and is of no legal effect and as to why a direction shall not be given upon the respondents to complete the process of lease pursuant to the respect lease order of the petitioner and/or such other or further order or orders passed as to this court may seem fit and proper.”

At  the  time  of  issuance  of  the  aforesaid  Rules  Nisi, operation  of  the  order  dated  11.11.2018  passed  by  the respondent No.4 in Resume Case No. 1 of 2018 resuming 16.24 acres of land out of 17.27 acres acquired in L.A. Case No.38/62-63 and L.A. Case No. 75/62-63 (Annexure-K) so far it relates to the petitioner’s land measuring 12 kathas was stayed for a period of 04(four) months and the respondents were directed not to distrub the peaceful possession of the petitioner for a period of 04(four) months. Subsequently, the interim order of stay and direction were extended. 

Facts relevant for disposal of the Rule, in short, are that the  land  measuring  46.5425  acres  of  different  C.S.  Plots appertaining to J.L. No.21, Mouza-Kalishankarpur, District- Kushtia were acquired under L.A. Case Nos. 38/62-63 and 75/62-63  by  the  government  through  the  Deputy Commissioner,  Kushtia  on  the  requisition  of  the  National Housing  Authority  (in  short,  the  NHA)  for  implementing  a brick field construction project (Annexure-A). Afterwards, the acquired  land  was  handed  over  to  the  National  Housing Authority. Out of the total lands, 29.2656 acres were recorded in R.S. Plot No. 5931, and 17.2769 acres were recorded in R.S. Plot No. 6540. The land in question remained unutilized for long  which  was  acquired  for  the  project.  However,  the government handed over 20 (twenty) acres of land to Kushtia

Medical College and the rest of the land i.e. 26.5425 acres of the land was kept under the control and possession of the National Housing Authority. In 2015, respondent No.4, Deputy Commissioner, Kushtia, initiated Resume Case No.03 of 2015 vide  his  order  No.3  dated  25.05.2015  re-acquired  the remaining 26.5425 acres of land kept in the NHA and put it in the khas possession of the government. In this regard, gazette notification was published (Annexures- B and B-1 respectively in Writ Petition No. 289 of 2019). Thereafter, the respondent No.1  vide  Memo  No.31.00.0000.048.68.072.16-244  dated 01.09.2016 set aside the order dated 25.05.2015 passed by the  respondent  No.  4,  Deputy  Commissioner,  Kushtia  in Resume Case No. 03 of 2015. In compliance of the aforesaid Memo  dated  01.09.2016,  the  respondent  No.4,  Deputy Commissioner, Kushtia vide his order No.4 dated 17.11.2016 has  cancelled  his  earlier  order  of  resuming  the  aforesaid remaining  26.5425  acres  of  land  (Annexures-C  and  C-1 respectively to Writ Petition No. 289 of 2019).

Respondent No.4, Deputy Commissioner, Kushtia again initiated Resume Case No.01 of 2016 for re-acquisition of the aforesaid 26.5425 acres of land from the National Housing Authority.  Ultimately,  the  respondent  No.1  vide  its  Memo dated  09.01.2017  directed  the  respondent  No.4,  Deputy Commissioner,  Kushtia  to  stay  further  proceeding  of  the aforesaid Resume Case No.01 of 2016 (Annexure-D to Writ Petition No. 289 of 2019). Thereafter, the order of cancellation of the resume order dated 25.05.2015 passed in Resume Case No.  03  of  2015  was  published  in  the  official  gazette  on 30.03.2017 (Annexure-E to Writ Petition No. 289 of 2019). It is stated  that  the National  Housing  Authority  meanwhile  has undertaken  a  housing  project  namely-  “Sight  and  Services Residential  Plot  Development  Project  (4th  Phase)”  on  the aforesaid 26.5425 acres of land and invited applications from the aspirants for allotment of plots in the said housing project (Annexure-F series to Writ Petition No. 289 of 2019).

Accordingly, the petitioners in all writ petitions applied for allotment of plots in the said housing project and got lease by  respective  allotment  letters  from  the  National  Housing Authority.

After that, in writ petition No. 289 of 2019 the petitioner Nos. 1 and 2 paid entire consideration money and as such, on 15.05.2018 and 06.06.2018 lease deeds were executed and registered  in  favour  of  the  petitioner  Nos.1  and  2  and possession of the land was handed over to them (Annexures- H, H-1, I, and I-1 respectively). The petitioner No.3 deposited the first installment of the consideration money on 04.12.2018 (Annexure-J to Writ Petition No. 289 of 2019).

In writ petition No. 3824 of 2016 the petitioner, Kushtia City College, got allotment of 5 acres of land from the National Housing Authority and the petitioner paid entire lease money and  thereafter  lease  deed  was  executed  and  registered  in favour  of  the  petitioner  vide  lease  deed  No.  7326  dated 21.12.1999.

In Writ Petition No. 4479 of 2019 all the pertitioners got allotment of land from the National Housing Authority and they paid entire lease money. But lease deed No. 7943/2018 dated 27.09.2018 was executed and registered in favour of the petitioner No. 1.

In Writ Petition Nos. 7709 of 2019, 7710 of 2019, 5060 of 2020 and 8644 of 2021 all the petitioners got allotment of land from the National Housing Authority and they paid entire lease money to the government. But no lease deed was executed and registered in favour of these petitioners.

But all of a sudden the petitioners came to know that respondent  No.4,  Deputy  Commissioner,  Kushtia  again initiated Resume Case No.01 of 2018 for re-acquisition of the aforesaid 26.5425 acres of land from the National Housing Authority. On search, the petitioners found that respondent No.4 Deputy Commissioner, Kushtia vide his Order No.3 dated 11.11.2018 re-acquired 16.24 acres of land and put the same in the khas possession of the government (Annexure-K to Writ Petition No. 289 of 2019).

Under  such  circumstances,  all  the  petitioners  have challenged the said resume order dated 11.11.2018 passed by the respondent No.4 in Resume Case No. 01 of 2018 with regard to 16.24 acres of acquired land in the instant writ petitions and obtained the above Rules Nisi.

These matters were sent by the Hon’ble Chief Justice of Bangladesh for early hearing and disposal.

In the midst of hearing of the Rules Nisi, Mr. B.M.Abdur Rafell,  the  learned  Deputy  Attorney  General  appearing  on behalf of respondent No.4, Deputy Commissioner, Kushtia has filed an application for disposing of the Rules Nisi in the light of recommendations given in the enquiry report being Memo No.RvM„K/f~me¨/cwi:/cwi`k©b bw_-01/6872 dated 22.08.2023. Referring to the application and the enquiry report vide Annexure-II to the application, the learned Deputy Attorney General submits that by challenging the impugned order of resuming 16.24 acres of acquired land of the National Housing Authority passed in Resume Case No.01 of 2018, the allottees of the residential project filed above mentioned writ petitions. Consequently, the works  of  several  development  projects  i.e.  Kushtia  Medical College, IT Training Centre, Model Mosque, District Council Auditorium and Lahini School could not be completed. He further submits that considering the interest of the public at large  based  on  the  aforesaid  development  projects,  the respondent No.4 sat in a meeting held in his office in presence of the representative of Kushtia Medical College and Executive Engineer of the Public Works Department wherein the issues were  discussed  and  public  interest  was  considered  and ultimately,  it  was  agreed  with  the  enquiry  report  dated 17.08.2023 and thereby canceled Resume Case No.01 of 2018 so that the respondent No.3, National Housing Authority can complete its housing project on the land in question.

Mr. M. Ashraf Ali, the learned Advocate appearing on behalf  of  the  petitioners  in  Writ  Petition  No.  289  of  2019 submits that since the respondent No.4 who the impugned order passed in Resume Case No. 01 of 2018 has accepted the recommendations  made  in  the  enquiry  report  with undertaking to co-operate the respondent No.3 to complete the housing project, on that count the Rule Nisi is required to be made absolute.

However, he further submits that admittedly the land in question is the acquired land of the respondent No.3, National Housing Authority, and before passing the impugned order of resuming the land, the respondent-National Housing Authority in order to establish a residential project leased out the plots to  the  aspirant  candidates  including  the  petitioners  and executed and registered lease deeds for 99 years in favour of the petitioner Nos.1 and 2, and as such, the action of the respondent No.4, Deputy Commissioner, Kushtia in resuming the land is out and out illegal and without lawful authority. Referring to the office order under Memo dated 02.10.1990 (Annexure-L to Writ Petition No. 289 of 2019) he also submits that  the  acquired  land  cannot  be  resumed  if  the  same  is required for the requiring body in future and as such, there is no scope to resume the case land by the respondent No.4 on the ground of being unutilized by the requiring body. He also pointed out that the instant land was acquired under the Act of 1948 wherein there is no provision with regard to resume of any acquired land which vests absolutely upon the requiring body i.e. the National Housing Authority as in the instant case through  the  government.  By  placing  the  aforesaid submissions, the learned Advocate prays for making the Rule Nisi absolute.

Mr. Nakib Saiful Islam, the learned Advocate, Mr. Md. Shahadat  Alam,  the  learned  Advocate,  Mr.  Munshi Moniruzzaman, the learned Advocate along with Mr. Sakib Rajwan Kabir, the learned Advocate Mr. Md. Masud Hasan Chowdhury,  the  learned  Advocate,  Mr.  Mustafa  Hamid Siddique, the learned Advocates adopted the submissions of Mr Mr. M. Ashraf Ali, the learned Advocate in Writ Petition No. 289 of 2019.

Mr. Md. Masud Hasan Chowdhury, the learned Advocate appearing on behalf of the respondent No.3, National Housing Authority,  by  referring  to  the  affidavit  of  facts  and supplementary  affidavit  of  facts,  submits  that  since  the respondent No.4 who passed the impugned order in Resume Case No. 01 of 2018 has accepted the recommendations made in  the  enquiry  report  with  undertaking  to  co-operate  the respondent No.3 to complete the housing project, the Rule Nisi is required to be made absolute.

We  have  considered  the  submissions  of  the  learned Deputy Attorney General and the learned Advocates of the respective  parties  and  perused  the  writ  petition  and  the application for disposing the Rule and other papers annexed thereto as well as the relevant laws.

Admittedly,  respondent  No.  4,  Deputy  Commissioner, Kushtia acquired 46.5425 acres of land for the respondent No.3 i.e. National Housing Authority for implementation of its Brick  Field  Construction  Project  vide  two  L.A.  Case  Nos. 38/62-63 and 75/62-63. Acquired lands were rightly recorded in the name of the National Housing Authority in R.S. Plot Nos.5931 and 6540. Out of the acquired land in question, 20.00 acres of land were given to Kushtia Medical College and

as such, the remaining 26.5425 acres of acquired land were

left  under  the  control  of  the  National  Housing  Authority. Consequently, the National Housing Authority has undertaken

a project namely- G‡÷‡U ¯^í I ga¨g Av‡qi †jvK‡`i Rb¨ mvBU GÛ mvwf©‡mmA vevwmK cøU Dbœqb(4_© ce©) cÖKíÕ on the said land and created a total 280 plots

in  the  said  project.  In  this  regard,  the  National  Housing Authority  prepared  a  layout  plan  of  the  housing  project approved by the respondent No.1 on 21.25 acres of land. It further appears that the housing project has reserved 0.9 acre

for  its  IT  Park,  2.81  acres  for  its  Mosque,  Eidgah  and Playground.

Despite of the housing project being undertaken by the National  Housing  Authority,  respondent  No.4,  Deputy Commissioner, Kushtia initiated two Resume Cases being Nos. 03 of 2015 and 01 of 2016 for 26.5425 acres of acquired land. Respondent  No.4,  Deputy  Commissioner,  Kushtia  again  in 2018  initiated  Resume  Case  no.  01  of  2018  and  by  the impugned  order  took  16.24  acres  of  acquired  land  of  the respondent No.3 in khas possession of the government. In such circumstances, the petitioners being the allottees of the housing project have challenged the resume order by filing the writ petitions and obtained the above Rules.

Due to pendency of the Rules, some other development projects of the government have been unimplemented. In the meantime,  to  resolve  the  dispute,  the  National  Housing Authority  constituted  an  enquiry  committee.  The  enquiry committee  ultimately  submitted  their  physical  inspection report with 07 recommendations. In the first and foremost recommendation the Committee recommended to cancel the order dated 11.11.2018 passed in Resume Case No.01 of 2018 finding  that  the  residential  project  was  approved  by  the authority and that allotment letters were already issued in favour of 173 allottees out of 212 plots keeping aside the quota of the Ministry and the allottees already deposited their lease money against their plots. 

Amongst  other  recommendations,  it  has  been  stated that some areas should be kept under preservation for Kushtia Medical College, IT Training Centre, Model Mosque, District Council Auditorium and Lahini School in order to continue the development  projects  of  other  government  organizations  of which they shall receive allotment and actual possession upon payment of the usual value. It also recommended that the land illegally  possessed  must  be  dispossessed  in  favour  of  the authority,  and  the  Deputy  Commissioner  and  local representatives  of  the  National  Housing  Authority  shall conduct joint survey and eviction programme if required to demarcate and build boundaries. Following the eviction of the illegal possessors, the recovered land shall be allotted as a rehabilitation plot to the persons affected by the development projects.

These being the recommendations of the enquiry report and the respondent No.4, Deputy Commissioner, Kushtia who passed the impugned order under adjudication in the instant Rules  have  accepted  the  enquiry  report  containing  the recommendations as evident from the application for disposing of the Rules filed by the learned Deputy Attorney General.

In Writ Petition No. 3824 of 2014, it appears that the petitioner challenged the impugned order dated 25.05.2015 passed by respondent No. 6 in Resume Case No. 3 of 2015 resuming 3 acres of land of the petitioner. But on 01.09.2016 respondent No. 1 set aside the order dated 25.05.2015 in Resume Case No. 3 of 2015. Subsequently, on 17.11.2016 the Deputy Commissioner, Kushtia cancelled his earlier resuming order  of  26.4525  acres  of  land.  Since  the  order  dated 25.06.2015 in Resume Case No. 3 of 2015 has been cancelled, the  Rule  Nisi has become infructuous and thus, the same should be discharged as being infructuous.

It is noted that the learned Advocate for the National Housing Authority submits that a portion of the acquired land has been in illegal possession by the local influential persons and  as  such  he  has  prayed  for  a  direction  upon  the respondents to evict the illegal possessors.

Considering the submissions of the learned Advocate, the Deputy  Commissioner,  Kushtia  and  the  National  Housing Authority are directed to conduct a joint survey and evict the illegal possessors, if any, from the acquired land by fallowing the provision of law.

Considering the facts of the case, we are inclined to make the Rules of Writ Petition Nos. 289 of 2019, 4479 of 2019, 7709 of 2019, 7710 of 2019, 5060 of 2020 and 8644 of 2021 absolute except the Rule in Writ Petition No. 3824 of 2016 so that  the  government  development  projects  might  not  be hampered any more.

In the result, the Rules except the Rule in Writ Petition No. 3824 of 2016 are made absolute with the above directions and the following observations:

The  impugned  order  dated  11.11.2018  passed  by  the respondent No. 4 in Resume Case No. 1 of 2018 resuming 16.24 acres of land out of 17.27 acres, which was acquired in L.A. Case No.38/62-63 and L.A. Case No. 75/62-63 so far it relates to 12 kathas of land the subject matter in W.P. No. 289 of 2019, 3.00 acres of land the subject matter in W.P. No. 3824 of 2016, 20.5 kathas of land the subject matter in W.P. No. 4479 of 2019,  20.50 kathas of land the subject matter in W.P. No. 7709 of 2019, 58 kathas of land the subject matter in W.P. No. 7710 of 2019, 17 kathas of land the subject matter in W.P. No. 5060 of 2020 and 5 kathas of land the subject matter in  W.P.  No.  8644  of  2021  is  declared  to  have  been  done without lawful authority and is of no legal effect and set aside.

The  Rule  Nisi  in  Writ  Petition  No.  3824  of  2016  is discharged as being infructuous.

Since the resuming order dated 11.11.2018 passed by respondent No. 4 in Resume Case No. 1 of 2018 has already been declared to have been passed without lawful authority, the other allottees of the project who are not the petitioners but on the same footing would get same benefit as like as the petitioners.

There will be no order as to costs. Communicate the order.

             K M Zahid Sarwar, J.

             I agree.