IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 12381 of 2023
With
Writ Petition No. 12382 of 2023
And
Writ Petition No. 11943 of 2023
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. Kamal Hossain and others
..…..…Petitioners
(in W.P. No. 12381/2023) Md. Mahbub Hossain and others
..…..…Petitioners
(in W.P. No. 12382/2023) Md. Baker Hossain and others
..…..…Petitioners
(in W.P. No. 11943/2023) -Versus-
The Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Local Government, Rural Development and co-operatives, Bangladesh Secretariat, Dhaka and others.
....Respondents (In all writ petition).
Mr. Zainul Abedin Senior, Advocate with
Mr. Md. Abdur Rahman Howlader, Advocate with
Mr. Md. Iqbal Hossain, Advocate ..…For the petitioners
(In all writ petition).
Mr. S.M.Iftekhar Uddin Mahamud, DAG with Mr. Mohammad Zeeshan Hyder, DAG
…..for the respondents
Present
Mr. Justice Ashish Ranjan Das
And
Mr. Justice Fahmida Quader
Heard And Judgment On : 03.09.2024
Ashish Ranjan Das, J :
As identical question of facts and law are involved in these writ
petitions, thus these Rules have been taken up together for hearing and going to be disposed of by this single judgment.
1
In Writ Petition No. 12381 of 2023, the Rule Nisi was issued on 12.10.2023, in following terms:
“Let a R
ule Nisi be issued calling upon the respondents to show cause as to why the Memo No. 46.207.000.13.02.3859.2023 dated 20.09.2023 (Annexure-F) so far as it relates to the petitioners should not be declared to have made without lawful authority and is of no legal effect and as to why the respondents should not be directed to allot the respective shops in favour of the petitioners by receiving all the rents and taxes as may be assessed by the respondents and/or pass such other or further order or orders as to this Court may seem fit and proper.
Terms of the other 2 similar Writ Petitions are not quoted-
Facts, relevant for disposal of these Rules, are that, in the year 1983, the then original owner namely Bangladesh Road Transport Corporation handed over their entire possession of the land in favour of the then Dhaka Municipal Corporation, now the Dhaka South City Corporation by their letter dated 08.01.1985 and after receiving possession of lands, the then authority of City Corporation decided to construct multi-storied Super Market upon the said lands and constructed the same which is popularly known as "Fulbaria Super Market-2, Block-A, Fulbaria, Dhaka, Fulbaria Super Market-2, Nagor Plaza Block-B, Fulbaria, Dhaka, and Fulbaria Super Market-2, Block-C, Fulbaria, Dhaka.” That during construction, the authority of Dhaka City Corporation has decided to allocate vacant space of shops/spaces in the basement of said Super Market with the cost of respective allottees and accordingly the allotees have constructed their respective shops by investing their own money in said basement area at the rate of per square fit with the rule of City Corporation. That during construction, the authority of City Corporation raised objection regarding sub standard quality of construction materials by issuing their letter dated 16.04.1997 and then the dispute was dissolved amongst them and the entire construction was done with the standard materials instructed by City Corporation by apologies of the allotees vide Memo No. 396/2/Pro: Bi:, Bazar Circle dated 20.05.1997. After completion of construction of shops, the office of the then Dhaka City Corporation prepared a list of 176 numbers of allotees to permit and to continue their respective business in said basement area by issuing their allotment letter dated 14.10.1997 and Memo No. 46.207.000.13.02.3859.2023 dated 20.90.2023 a list of 176 numbers of allotees and Memo No. 46.207.000.13.02.3750.2023 dated 14.08.2023 a list of 188 numbers of allotees. That the design and authorized construction of said shop/spaces are showing in a lay-out plan as approved by the office of the respondents. The predecessor of the petitioners have been allotted the alleged shops/spaces by issuing their respective allotment letter dated 24.12.1997 under the signature of the Respondent No. 14 and subsequently the petitioners purchased the said shops with all the required formalities as prescribed by the City Corporation and being the owner and possessor, they are running their business in their respective shops by holding the specific shops numbers through recognition of the City Corporation being Memo No.46.207.022.10.12.4569.2018 dated 15.05.2018 with E-trade License
Being aggrieved by and dissatisfied with the impugned Memo No. 46.207.000.13.02.3859.2023 dated 20.09.2023 and Memo No. 46.207.000.13.02.3750.2023 dated 14.08.2023 and all the petitioners finding no other alternative remedy, filed these 3(three) writ petitions before this Court and obtained the present Rules.
Mr. Zainul Abedin, Senior Advocate alongwtih Mr. Md. Iqbal Hossain, learned Advocate appearing on behalf of the all the writ petitioners submits that the respective allotment of the petitioners are alive as yet and accordingly they are entitled to be allotted their said spaces under City Corporation Act, 2009 but the respondents most arbitrarily published the impugned tender (Annexure- F) in violation of the said Act and as such the same is liable to be declared as illegal, void and is of no legal effect. He submits that the impugned Tender Notice published without serving any notice upon the petitioners as mandated under Section 19(3) of the City Corporation Public Market Upo Ain, 2023 which manifested a clear malafide intention to keep the petitioners in the dark and thereby allotting the said shops, which they rightly deserve, by going behind their backs and as such the same is against the Principle of natural justice and the same publications are liable to be declared as illegal, void and is of no legal effect. He further submits that the petitioners and other members of the petitioner's Samity are expected to be allotted the proposed shops/spaces in question as per the assurance and commitments as made by the respondents again and again. Furthermore, a meeting of the shops allotment committee was held on 29.03.2010 wherein the salami and rents of the shops were fixed and decision for allotting the same in favour of the members of the petitioner's Samity was taken unanimously and due to such activities of the respondents, the petitioners as well as the petitioner's Samity have accrued vested right over the shops/spaces as they are affected persons and as being such denying of their vested rights afterwards, such conduct and activities by the respondents clearly violates the interest of justice and as such the impugned publication is liable to be declared as illegal, void and is of no legal effect. He also submits that the publications of such notification without notifying the petitioners or their Samity are in clear violation of Rule 4(2) of the Dhaka City Corporation Upo Bidhimala, 2003 and as such the same cannot be sustained in law and thus the publications and all further proceedings of the said publication are illegal and without having any legal effect. He further again submits that according to Rule 4(2) of Dhaka City Corporation Upo Bidhimala, 2003, the affected persons shall get priority in allotment of shops and the petitioners and members of their Samity as being such affected persons, are entitled to be rehabilitated on priority basis, which was not done and completely disregarded by the respondents by publishing the impugned publication. The impugned notice is ex- facie illegal and as has been issued
The learned Advocate for the petitioner further submits that after proper permission from the city Corporation constructed in Writ Petition No. 12381 of 2023 vide Memo No. 46.207.000.13.02.3859.2023 a list of 176 (one hundred seventy six) shops and Writ Petition No. 12382 of 2023 vide Memo No. 46.207.000.13.02.3859.2023 dated 20.09.2023 a list of 176 (one hundred seventy six) numbers of shops and Writ Petition No. 11943 of 2023 vide Memo No. 46.207.000.13.02.3750.2023 dated 14.08.2023 a list of 188 (one hundred eighty eight) numbers of shops on the land of City Corporation by spending a big amount of money from their own pocket and after conclusion of construction by the petitioner the Dhaka Municipal Corporation allotted the above 176 shops vide allotment letter dated 14.10.1997 and another 176 shops vide allotment letter dated 20.90.2023 and 188 shops vide allotment letter dated 14.08.2023 and after getting allotment their business in the shops and earned good-will in their respective shops.
It has been mentioned that the petitioners constructed those shops by spending their own money as such the petitioners acquired a vested right on the shops and demolition of the shops without serving any notice upon the petitioner is violative of natural justice and it is the legitimate expectation of the petitioners that they have to be allotted shops in their names, he submits.
He further submits that the impugned publications were published with an arbitrary manner and at the instance and behest of interested quarters which is an act of highhandedness and malafide as well as violative of the petitioner's right of legitimate expectations that the place of their business spaces were constructed by them by investing their own fund as per the instruction as instructed by the respondents as stated here in above and the same should not be snatched away by colourable exercise of powers. The petitioners and their staffs working in the shops/spaces have been maintaining their livelihoods depending wholly on the incomes of the aforesaid shops and they are seriously apprehending that if the Hon'ble High Court Division does not interfere with the said illegal act and stay the impugned publications, they will face tremendous difficulties and sustain irreparable loss and injury.
The learned Deputy Attorney General opposed the Rule and submits that the respondents properly and rightly issued the tender notice. It is observed from the submission of the learned advocate for the petitioners and as well as the learned Deputy Attorney General that the petitioners will pay proper rent and taxes as may be assessed by the respondents as such the respondents will not be prejudiced if the shops are allotted in favour of the petitioners who firstly constructed the shops by spending their own money and their shops are demolished without serving any notice upon them.
The respondents did not raise any objection against the petitioners, who acquired a vested right on the shops constructed by their own money in accordance with the approval and directions of the Dhaka Municipal Corporation and after completion of the construction properly and lawfully the City Corporation allotted the shops vide allotment letter dated 14.10.1997. So we find that the demolition of shops of the petitioners by South City Corporation is absolutely illegal and is of no legal effect and the petitioners has a legal expectation that the shops will be allotted in their favour.
We also find that the petitioner have been running business on the premises for some 25 years and acquired good-will which leads to presume that the petitioners will get allotment of the shops and by doing so the Respondents will not be prejudiced.
Heard the learned Advocate for the petitioners, perused the writ petitions, annexures which is annexed herewith and all other relevant documents.
Considering the facts and circumstances of the case as well as the discussion and observation made above, we are of the view that justice would be better served if we direct the respondents to allot the respective shops permanent allotment, so far it relates to the holding of the petitioners as shops by taking salamis as per the Rule of the City Corporation Act.
Accordingly, these Rules are disposed of with direction. The respondents are hereby directed to allot the respective shops, so far it
relates to the holding of the petitioners.
There is no Order as to cost. Communicate the order at once.
Fahmida Quader,J.
I agree.