IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 3148 of 2021. In the matter of:
An application under article 102 (2) of the Constitution of the People’s Republic of Bangladesh.
-And- In the matter of:
S. M. A. Rahim.
...... Petitioner
-Versus-
The Government of Bangladesh represented by the Secretary, Ministry of Land and others.
Mr. Tapan Kumar Bepary, Advocate
. . . For the petitioner.
Mr. Kazi Mynul Hassan, DAG with
Mr. Apurbo Kumar Biswas, AAG
. . . For the respondents
Present:
Mr. Justice J. B. M. Hassan and
Mr. Justice Razik Al Jalil
Heard on 17.05.2023, 24.05.2023 and Judgment on 30.07.2023.
J. B. M. Hassan, J.
The petitioner obtained the Rule Nisi in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the memo No. 31.44.4753.003.001.99.21-85 dated 03.03.2021 issued under the signature of the respondent No. 4 inviting application for leasing out of Jalmaohals, so far as it relates to ‘ Patiakhali Jalkar’ (serial No. 17 in the circular) (Annexure-J to the writ petition) should not be declared to have been issued without lawful authority and is of no legal effect and why the respondents should not be directed to dispose of the petitioner’s representation dated 07.03.2021 for receiving
1
yearly rent of ‘ Patiakhali Jolkar’ Chingrimohal from the petitioner for the year 1428 B. S. in pursuance of Miscellaneous Case No. 02 of 2004 (Annexure-K to the writ petition) and/or pass such other or further order or orders as to this Court may seem fit and proper.”
Relevant facts leading to issuance of the Rule Nisi are that the
petitioner is a bonafide fisherman. He has been cultivating shrimps in a Chingri Gher covering an area of about 60 acres situated at Mouza Dakkhin Deara, Bailaharania and Sreefaltala. Acrossing the said shrimps Gher, there remains a Government cannel (Khal), namely, ‘Patiakhali Jolkar’ measuring an area of 8.17 acres appertaining to plots No.64,413,326 and 247 under Khatian No.1. Being the owner of the adjacent shrimp Gher, the petitioner made an application on 10.09.2003 to the Deputy Commissioner, Khulna (respondent No. 2) for granting long term lease of ‘Patiakhali Jolkar’ Mohal for smooth enjoyment of his owned shrimp Gher. Pursuant to said representation, the respondent No. 2 by an office order dated 04.10.2003 directed the Upazila Nirbahi Officer (UNO), Koyra (respondent No.4) to provide report to him with sketch map upon holding field enquiry by taking opinion of the ‘Upazila Shrimp Management Committee’. Accordingly, the Upazila Fishery Officer submitted a report on 14.12.2003 to the UNO specifically mentioning that the “Patiakhali Khal Jolmohal” is surrounded by the shrimp Gher belong to the petitioner and hence the said Jolmohal may be given lease as ‘Chingrimohal’ in favour of the petitioner.
In the meantime, the ‘Upazila Shrimp Development and Management Committee’, Koyra, Khulna in its meeting dated 15.03.2004 decided to give long term lease of the Jolmohals surrounded by the Shrimp Ghers as “Chringimohals” and sent the same to the respondent No.2 for approval. On 04.10.2003 the respondent No.4 declared the ‘Patiakhali Khal Jolmohal’ as ‘Chingrimohal’ and sent proposal to the respondent No.2 for giving lease of the same as ‘Chingrimohal’ in favour of the petitioner. On 19.04.2004, the District Shrimp Development and Management Committee headed by the DC (respondent No.2) took decision to give lease of 7 Chingrimohals mentioned in the schedule “Ka” in pursuance of Shrimps Management Nitimala wherein the serial No. 2 i.e. “Patiakhali Khal” was decided to be given lease to the petitioner fixing revenue at taka 12,255/-.
Soon after approval of ‘Patiakhali Khal’ as Chignrimohal, a lease case being Misc. Case No. 02/2004 was opened in respect of the said Chingrimohal and on 19.09.2004 the petitioner paid the rent for the year 1411 B.S through Chalan and got D.C.R. for the said year and was inducted in possession of “Patiakhali Khal” Chingrimohal. Since then the petitioner has been regularly paying rent of the said Chingrimohal year to year with VAT, Tax etc. uninterruptedly. Lastly on 20.07.2020 he paid the rent for the year 1427 B.S. and got D.C.R. and the said tenure is still continuing. The District Shrimp Development and Management Committee through its yearly meetings took decision from time to time to continue the lease proceedings of the Chingrimohals and to receive revenue from the lawful possessors of the same.
While the petitioner has been peacefully possessing the “Patiakhali Khal” by paying due rents to the Government from time to time, all on a sudden, on 03.03.2021 the UNO (respondent No.4) issued a memo containing Memo No. 31.44.4753.003.001.99.21-85 dated 03.03.2021 (hereinafter referred to as the impugned memo) inviting tender for leasing out 37 cannels (Khals) as Jolmohal including the ‘Patiakhali Jolkar’ Khal as was leased out to the petitioner as Chingrimohal and the said tender has been published in the daily newspaper, namely, “The Somoyer Khabar” on 04.03.2021. The petitioner made a representation on 07.03.2021 to the respondent No.2, the DC, Khulna to take necessary steps to cancel the lease proceedings issued by the UNO vide memo dated 03.03.2021, so far as it relates to ‘Patiakhali Jolkar’ Chingrimohal and requested him to receive rent from petitioner for the year1428 B.S. for ‘Patiakhali Jolkar’ Chingrimohal. But the petitioner did not get any response which led him to file the writ petition.
The DC, Khulna as respondent No.2 appearing in the Rule has filed an affidavit in opposition contending, inter alia, are that the “Patiakhali Jolkar” is an enlisted Jalmohal. It contains all the features of Jalmohal in accordance to Jalmohal Management Policy, 2009. According to the Sairat Register (register no-6), the Jalmohal is enlisted in serial number-110. The petitioner got the lease up to Bengal year 1423 which was not renewed further. Without prior permission and/or direction of the authority, the petitioner deposited money in the Government fund through chalan. The reason behind the unsolicited deposit is to occupy Government property illegally and such deposit does not create any legal right whatsoever in his favour.
The scheduled Jalmohal described in the writ petition is completely a Government property. It was leased out as a Sairat Mohal, namely, “Patiakhali Jolkar”. But the lease holder used salty water to cultivate shrimp defying public interest. It has put a long term negative impact on environment and local community which is against the Government policy and public interest. After Bangla year 1423 no Chingrimohal was renewed considering its negative impact on environment and for public interest. It should be mentioned that no Chingrimohal was permitted in Khulna district. The mentioned “Patiakhali Jolkar” was leased earlier on a temporary basis.
The declaration as “Chingrimohal” is the absolute domain of the “National Chingrimohal Management Committee” as per clause 2 of the Nitimala dated 16.12.1998 and District Chingrimohal Committee has only authority to recommend as per clause 2(2) of the said Nitimala and there is no lawful scope to lease except for declaration as Chingrimohal and in violation of the Clause 4 (T) (S) of the ¢Qw¢sjq¡m hÉhØq¡fe¡ e£¢aj¡m¡, 16-12-1998.
Mr. Tapan Kumar Bepary, learned Advocate for the petitioner submits that the schedule property was declared by the respondents as Chingrimohal and that the petitioner being adjacent land owner of the said property made application for granting lease in his favour. He further submits that on consideration of all relevant reports and materials on record as well as considering petitioners entitlement under clause 2(4)(Ja) of the “¢Qw¢sjq¡m hÉhÙÛ¡fe¡ e£¢aj¡m¡” dated 30.03.1992 (shortly, the Chingrimohal Nitimala) the petitioner got lease and has been enjoying the same on payment of yearly lease money till 1427 BS. He also submits that although the petitioner is entitled to have the extension of lease as adjacent land owner under the Nitimala but declining the same the UNO (respondent No.4) issued impugned lease notice inviting applications for leasing the said property as Jalmohal. He again submits that since the petitioner has been paying the regular lease money he is not a defaulter. He lastly submits that the impugned notice has been issued in violaiton of clause 2(3)(Gha) of the Nitimala.
On the other hand, Mr. Kazi Mynul Hassan, learned Deputy Attorney General (DAG) contends that the Nitimala itself incorporates provision that any property has to be declared as Chingrimohal by the Government itself in accordance with aforesaid Nitimala. But the schedule property was never declared by the Government as Chingrimohal. He further contends that in connivance with the local administration, the petitioner had managed to get the lease as Chingrimohal without any approval by the Government i.e Ministry of land and although the Nitimala provides for lease agreement but without executing any such agreement the petitioner enjoyed the property for the period 1411 to 1423 BS only by taking Duplicate Carbon Receipt (DCR) and thus a huge Government fund was misappropriated by the petitioner at the connivance of the local sharimp Management Committee.
We have gone through the writ petition, affidavit in opposition filed by the DC (respondent No.2) and other materials on record.
It appears that by opening miscellaneous case bearing No. 2 of 2004 Chingrimohal, Koyra the petitioner enjoyed the schedule property as Chingrimohal from 1411-1423 on payment of certain rent by way of DCR. In the meantime the impugned tender notice having been published for leasing out the said property as Jalmohal, the petitioner filed this writ petition and claims his entitlement to continue the lease as adjacent land owner in exercise of clause 2(4)(Ja) of the Chingrimohal Nitimala under the circular dated 30.03.1992 (16.12.1998 BS).
We have gone through the relevant clauses of the said Chingrimohal Nitimala, in particular, the clause 2(4)(Ja) which runs as follows:
“(S) hÉ¢š² j¡¢mL¡e¡d£e ®Ol/O¡e¡ Hl jdÉha£Ñ M¡pS¢j M¡m h¡ S¢j CS¡l¡ ®cJu¡l ®rœ ®Ol/O¡e¡ j¡¢mL cl ANË¡¢dL¡l ®cJu¡ qC hz”
The aforesaid clause although creates entitlement of preference to get
lease by the adjacent land owner of the Chingrimohal but learned DAG has raised question about the nature of the property itself submitting that this property was never declared as Chingrimohal and as such, the clause of Chingrimohal Nitimala is not applicable regarding this particular property. In the above context, the question is whether the property has been declared as Chingrimohal.
To answer this question, we have gone through relevant clauses of the Chingrimohal Nitimala, in particular, clause 2 which runs as follows:
“2| miKvi wPswo Pv‡li GjvKvmg~n‡K wPswognvj wnmv‡e †N lYvi gva¨‡g wPswognv‡ji h‡_vchy³ e¨e¯’vcbv Ges wPswo Drcv`b wel‡q f~wg m¤ú„³Zv m¤úwK©Z myôz I b¨vqwfwËK bxwZgvjv cÖYqb I Dnv ev¯Íevq‡b wb‡¤œv³ e¨e¯’vw` MÖn‡bi wm×všÍ wbqv‡Qbt-
1| gš¿x, f~wg gš¿Yvjq mfvcwZ
2| wPswognvj GjvKv nB‡Z miKvi
g‡bvbxZ 3(wZb) Rb msm` m`m¨/m`m¨v m m¨
3| mwPe f~wg gš¿Yvjq m m¨
4| mwPe, grm¨ I cïm¤ú` gš¿Yvjq m m¨
5| mwPe, cwi‡ekI eb gš¿Yvjq m m¨
6| mwPe, †mP, cvwb m¤ú` I eb¨v wbqš¿Y
gš¿Yvjq| m m¨
7| Kwgkbvi, PÆMÖvg/Lyjbv wefvM m m¨
8| miKvi KZ©„K g‡bvbxZ 2(`yB) Rb
wPswo Pvlx| m m¨
9| hyMœ-mwPe (wPswognv‡ji `vwq‡Z¡
wb‡qvwRZ), f~wg gš¿Yvjq| m m¨-mwPe
1| wPswognvj e¨e¯’vcbv msµvšÍ RvZxq bxwZ wba©viY|
2| wPswo Pvl m¤úªmviY I Drcv`b e„w×i Rb¨ mnvqK e¨e¯’vw` MÖnY|
3| AvšÍtgš¿Yvjq/wefv‡Mi Kv‡Ri mgš^q mvab|
4| wPswognvj e¨e¯’vcbv KwgwUi Kvh©vw` ch©‡eÿb I ch©v‡jvPbv|
5| wPswognvj e¨e¯’vcbv Ges f~wg eivÏ wbqš¿‡Yi Rb¨ cÖ‡qvRbxq AvBb cÖYq‡bi mycvwik|
6| miKvi KZ©„K Awc©Z Ab¨ †h †Kvb `vwqZ¡|
mfvq wgwjZ nB‡e|
Rwg eiv‡Ïi mycvwik cÖYq‡bi Rb¨ mswkøó †Rjvmg~‡n GKwU Kwiqv KwgwU _vw‡Ke| KwgwUi MVb I Kvh©vejx wb¤œiæc nB‡et-
1| †Rjv cÖkvmK mfvcwZ
2| wefvMxq eb Kg©KZ©v/cÖwZwbwa m m¨
3| wbe©vnx cÖ‡KŠkjx, I GÛ Gg/wWwfkb
cvwb Dbœqb †evW©/cÖwZwbwa| m m¨
4| †Rjv grm¨ Kg©KZ©v/cÖwZwbwa m m¨
5| miKvi KZ©„K g‡bvbxZ 2(`yB) Rb wPswo Pvlx m m¨
6| AwZwi³ †Rjv cÖkvmK (ivR¯^) m m¨-mwPe
GZبZxZ, gš¿Yvjq KZ©„K g‡bvbxZ ¯’vbxq AšÍZt `yBRb m`m¨/m`m¨v I cÖ‡hvR¨ †ÿ‡Î ¯’vbxq wmwU K‡cv©‡ik‡bi †gqi KwgwUi Dc‡`óv _vwK‡eb|
1| mswkøó †Rjvq wPswo Pvl Dc‡hvMx bZzb Rwg wPwüZ Kiv I wPswognvj †NvlYvi e¨vcv‡i mycvwik Ges mywbw`©ó mycvwikbvgvmn wefvMxq Kwgkbv‡ii
gva¨‡g f~wg gš¿Yvj‡qi wbKU †cÖiY| ”
(Underlined) Drawing our attention to Annexure-G to the writ petition, learned
Advocate for the petitioner submits that by the minutes of the meeting of the “ Sm¡ ¢Qw¢s pÇfc Eæue J hÉhÙÛ¡fe¡ L¢j¢V” the schedule property was declared as Chingrimohal and by their decision the property was given to the petitioner at a rent of Tk. 9,126/- which was subsequently enhanced from time to time.
On the other hand, from the Nitimala, it is apparent that any particular property can only be declared as Chingrimohal by the Ministry of land or the “S¡a£u ¢Qw¢sjqm hÉhÙÛ¡fe¡ L¢j¢V” subject to government instruction. From the materials on record, we do not find such declaration regarding the schedule property as “¢Qw¢sjqm”. Therefore, the claim of petitioner to get the lease of the said property in exercise of clause 2(4) (Ja) of the Chingrimohal Nitimala is not acceptable.
Hence, the Rule Nisi fails.
In the result, the Rule is discharged without any order as to cost. The respondents are directed to take possession of the schedule property from the petitioner and to proceed for realization of arrear rent, if any.
Communicate a copy of this judgment and order to the respondents at once.
Razik Al Jalil, J I agree.