IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

In the matter of:

WRIT PETITION NO. 6377 of 2016

In the matter of:

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

-And-

In the matter of :

Dipok Guho Roy and another

..…. Petitioners

Versus-

Government of Bangladesh and others

     ..... Respondents

Mr. M. I. Farooqui, Senior Advocate with

Mrs. Nazneen Nahar, Advocate(s)

   ……For the petitioners Mr. A.M. Aminuddin, Attorney General with

Mr. Debashish Bhattacharya, Deputy Attorney General

   ……For the respondents Heard on 13.10.2020, 03.12.2020, 10.12.2020

& Judgment on 10.02.2021

 Present:                   

Mr. Justice Md. Ashfaqul Islam

And

Mr. Justice Mohammad Ali

Md. Ashfaqul Islam, J:

This Rule under adjudication, issued on 17.08.2016, at the instance of the petitioners, was in the following terms:

“Let a Rule Nisi issue calling upon the respondents to show cause as to why the inaction of land measuring 10.20

decimals of land appertaining to District-Dhaka, Police Station- Kotwali, present Sutrapur, Mouza-Wari, under S.A. Khatian No. 3105, Plot No. 7636, corresponding to R.S. Khatian No. 2283, Plot No. 11355 in the ‘Ka’ list of the vested property published in the Bangladesh Gazette, Additional 6th May, 2012 (Annexure-‘H’) should not be declared to have been done 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.”      The petitioners in this writ petition have challenged inclusion of

land measuring 10.20 decimals in the ‘Ka’ list of the Vested Property, published in the Bangladesh Gazette, Additional, 6th May, 2012 (Annexure-‘H’).

The background leading to the Rule is that the land situated at present Sutrapur under S.A Khatian No. 3105, Plot No. 7636 corresponding to R.S. Khatian No. 2283, Plot No. 11355 along with other land originally belonged to one Chandra Kanto Ghosh and Lalit Mohon Ghosh. Chandra Kanto Ghosh died leaving behind three sons namely Provat Chandra Ghosh, Satish Chandra Ghosh and Girish Chandra Ghosh and their names have been correctly prepared in C.S. Record of Rights. Girish Chandra Ghosh died leaving behind two sons namely Horpada Ghosh and Thakur Dhas Ghosh who sold their share to one Kusum Kumar Roy. Provat Chandra Ghosh made a gift of his share to his wife Labonnomoyee who instituted Title Suit No. 117 of 1932 in the Court of Second Sub-Judge, Dhaka for partition and in the final decree Satish Chandra Ghosh obtained saham of the case land. Staish Chandra Ghosh died leaving behind his wife Indu Prova Ghosh and three sons namely Sunil Kumar Ghosh, Anil Kumar Ghosh and Ronjit Kumar Ghosh. By an amicable partition Sunil Kumar Ghosh became owner and possessor of the case land. In S.A Khatian the name of Sunil Kumar appeared along with his brothers and mother. But they did not possess the case land (Annexure-‘A’).

On 20.03.1974 Sunil Chandra Ghosh gifted the case land to his sister Niva Rani Guho Roy by a registered Deed No. 5807 and her name was correctly prepared in R.S. Khatian No. 2283 (Annexure-‘B’). Since the case land was declared as abandoned property as such Niva Rani Guho Roy filed Title Suit No. 520(A) of 1978 in the Court of First Sub- ordinate Judge, Dhaka for declaration of title. Said Suit was decreed exparte on 05.05.1981 (Annexure-‘C’).

Niva Rani Guho Roy filed Case No. 35 of 1989 in the First Court of Settlement or exclusion of case land from the list of abandoned Buildings. On 11.12.1993 said Court allowed the case by a Judgment declaring that the case property be excluded from the list of Abandoned Buildings (Anneuxre-‘D’). Niva Rani Guho Roy died leaving behind two sons namely Sujos Chandra Guho Roy and dipok Guho Roy. On 07.06.2001 Sujos Chandra Guho Roy died leaving behind his wife Susmita Guho Roy and daughter Debolila Guho Roy.

That is the genealogy of the case. However, the petitioners mutated their names in the Khatian and have possessed the case land by paying rents. Since the case was not recorded in the City Survey petitioners filed Land Survey Tribunal Case No. 536 of 2008 in Land Survey Tribunal, Dhaka. Said Case was decreed exparte on 03.01.2011 (Annexure-‘G’).

In paragraph 10 of the petition the petitioner stated that recently they came to know that the above land has been wrongly included in ‘Ka’ list of the Vested Property published in the Bangladesh Gazette, Additional, 6 May, 2012 in serial No. 903 in the name of Anil Kumar Ghosh and others (Annexure-‘H’) which is the impugned order.

Mr. M.I. Farooqui, the learned Senior Advocate appearing with Mrs. Nazneen Nahar, the learned Advocate for the petitioners after placing the petition and other materials on record have pressed into service several arguments. He mainly submits that the inclusion of the property in question as per section 2 of the Arpita Shampatti Prattarpan Ain, 2001 (hereinafter referred to as Ain, 2001) is illegal and absolutely in  violation  of  Section  6(Ka)  of  the  Ain,  2001.  In  elaborating  his submissions the learned Senior Advocate clearly submits that it is a shut and  close  case.  He  clarifies  that  the  property  in  question  has  been enlisted in Arpita Shampatti Talika 2012 without any lawful authority in that a decree has been passed by a proper Court of law in respect of the said property declaring the same being not a vested property. Therefore, it squarely comes within the meaning of section 6(ka) of the Ain, 2001.

Next he submits that neither the petitioners nor their predecessors have  ever  migrated  to  India  and  the  property  in  question  has  been recorded in the names of the predecessor of the petitioners as correctly published in C.S, S.A and R.S record of rights. Title suit for declaration of  title  was  decreed  in  favour  of  the  petitioners  and  the  court  of Settlement allowed the case and ordered to exclude the property from the list of Abandoned Property and accordingly thereafter the land Survey Tribunal by Judgment ordered to record the property in the name of the petitioners  who  mutated  their  names  in  the  Khatian  and  have  been paying rents regularly to the government and as such the chain of title being well established, the petitioners are  under Section 2(da) of the Ain, 2001. That is the sum and substance of the submissions of the learned Senior Advocate Mr. M.I Farooqui.

By filing affidavit-in-opposition on behalf of the respondent No. 2, the Deputy Commissioner, Dhaka the Rule has been vehemently opposed by the Government. The learned Deputy Attorney General Mr. Debashish Bhattacharya argued the case at length and he has also submitted a written submissions covering the total aspect of the case. In that written submissions he has highlighted the following things:-

“Neither the decree as obtained by the petitioner does contain a declaration to the effect that the property in question is not a vested property nor the petitioner after promulgation of the Ain, 2001 approached Arpita Shampatti Prattarpan Tribunal for release of his property from the list of vested property.

Inclusion of the property in the list of vested property by way of gazette notification is the conclusive proof of the fact that property in question falls within the description of the vested property. Such presumption can only be discarded by way of adducing evidence. In an application for certiorari this Division cannot assume the power of Court of Appeal and thereby discusses the evidence.

More pertinently a declaration of title by and under mandate of Section 42 of the Specific Relief Act, 1877 does not change the vested character of the property. Vested character of the property will remain unharmed despite that of the exparte judgment and decree of title as obtained by the petitioner.”

We have heard the learned Senior Advocate Mr. M.I. Farooqui, the learned Attorney General, the learned Deputy Attorney General and the  Assistant  Attorney  General  at  length  and  considered  their submissions carefully.

Let us first digress what is the scheme of

.

In the preamble of the Ain it has been clearly mentioned:-

(Successor-in-interest) এ            এ        

      ই ৷”

Section 2 contains some definitions which are very important to

note:

২৷                                 , এই  ই ,-

( ) “        ”             ই                    ; (খ) “          ই ” -

( ) Defence of Pakistan Ordinance, 1965 (Ord. No. XXIII of 1965) (    ১৬/০২/১৯৬৯ ই     খ              ); ( )  Ordinance No. XXIII of 1965  এ           Defence of Pakistan Rules, 1965 এ    Rules এ                       ( )     খ  Act            ;

(ই) Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (Ord. No. I of 1969) (    Act XLV of 1974        );

(ঈ) Bangladesh (Vesting of Property and Assets) Order, 1972 (P. O. No. 29 of 1972) এ        -   ( ), ( ) এ  (ই)-       খ  Ordinance এ  Rules এ      

       ;

( ) Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974 (XLV of 1974); এ  (ঊ) Vested and Non-resident Property (Administration) Act, 1974 (XLVI of 1974) (    Ord. No. XCII of 1976        )এ        -   ( ),( )এ  

(ই)-     খ  Ordinance এ  Rules এ             ; ……………

 (ঞ)“              ”             ই                                                 ই    এই           -

( )    এই  ই                             খ          ;

( )     “                     ”                ,  ঠ,    ,                                            

                           এ      এই  ই  

                           খ            ;

  খ ৷-     ৬ এ     ( )  ই  (চ)     খ               

               ই   -   

         (চ) এ            খ                             

         ই ;

………….

 (ড) ‘    ’                                       ই    

ই                         ,                                     (Successor in interest),                          

     এ   -                   ই                

              খ         (Co-sharer in possession by lease or in any form)                           

            (Successor in interest)                -       (Co-sharer in possession by lease or in any form)                 ও            ;]

Section 4 of the Ain enjoins the limited scope of application of Code of Civil Procedure in the manner:

৪৷ এই  ই                     ও                                                      ই   ,   :-

( ) এই  ই                    ও                           

; এ 

(খ)          ১১    ৷

Section 6 of the Ain, 2001 reveals that:

৬৷ [                      ]                       ই   ,   :-

( )                         এই  ই                   

     চ                         ই    ;

(খ) এই  ই                             

       ই           ই    এ          ;

In addition to the above Section 7 of the Ain, 2001 further reveals that:

৭৷ (১) এই  ই                           [                          ]                                      এই   

৷

(২) এই                                   ই         

                                   চ

     ৷

Further Section 10(1) and 1(ka) of the Ain, 2001 made following provisions:

১০৷(১)[    ৯ এ                                ]     

                                ,             

      [৩০০ (    )]        , ই                      

        এ                                           ৷

(১ ) -    (১) এ                                  ও    ও এই ই         ই     [৩১  ড   ] ২০১৩         খ      ই                     ই 

Be it mentioned that in this case at the very outset the learned Attorney General Mr. A.M. Aminuddin appeared and rebutted the first argument of Mr. Farooqui contending that the argument is erroneous in that the decree as it appears in Annexure-‘C’ to the petition relates to a suit for declaration of title and not a decree declaring the property not being a vested property. There is a certified copy of the original suit which is before us fortifies his submissions that the suit was for declaration of title. Therefore, the learned Attorney General submits that by no stretch of imagination the said decree would operate within the meaning of Section 6(ka) of the Ain, 2001. The argument as it has been advanced by the learned Attorney General have force. And the submissions of the learned Deputy Attorney General has also aided to that when he submitted that the mandate of section 42 of the specific relief Act, 1877 does not change the vested character of the property. Vested Character of the property will remain unharmed despite that of the exparte Judgment and decree as obtained by the petitioners. From that point of view the argument on this score by the Senior Counsel Mr. M.I Farooqui seems to be a fallacious one.

Next comes the question that even if the facts and circumstances of the present case have been admitted to be true in its entirety, whether this Division in exercise of its jurisdiction under Article 102 of the Constitution in the nature of writ certiorari would interfere with the same. To appreciate let us referred a decision of ours in the case of Abdur Rahman and others vs. District Judge, Arpita Shampatti Prattarpan Tribunal, Brahmanbari and others 72 DLR 735 in which while considering propriety of the decision of the Arpita Shampatti Appellate Tribunal, Barahmanbaria we observed:

“Now the question comes how far sitting in writ certiorari we can deal with all these aspects though we have discussed everything in minute details. It is well settled that in writ certiorari this Division would be loath to interfere with a decision of a Tribunal in specific, if the same is not a perverse one or a gross miscarriage of justice has been done. A lucid observations of the Hon’ble Appellate Division in the case of Shahidul Haque vs. Court of settlement 69 DLR AD 241 in this context has been quoted below: (Paragraph 44 and 45)

“A writ of certiorari is maintainable only if it can be shown that the tribunal erroneously held that the property was illegally declared as abandoned property without admitting legal evidence or it has misconstructed the law. In other words, a writ of certiorari does not lie for an erroneous decision in respect of a matter which is within the jurisdiction of the inferior tribunal. Unless such erroneous decision relates to anything collateral, an erroneous decision upon which might affect jurisdiction and the statute does not confer upon the tribunal final jurisdiction to decide such question. A writ of certiorari is maintainable only in a case where erroneous decision within it jurisdiction. Even if there is mere error of law that will not confer any power on the High Court Division to issue a writ of certiorari except where there is an error apparent on the face of the record, that means, the error must be something more than a mere error. The High Court Division can issue writ of certiorari only if it can be shown that the judgment has been obtained by fraud, collusion or corruption or where the tribunal has acted contrary to the principles of natural justice or where there is an error apparent on the face of the record or where the tribunal’s conclusion is

The crux of the matter is whether the disputed property is abandoned property within the meaning of Abandoned Property (Control, Management and Disposal) Order, 1972 and that the whereabouts of the owners were not in this country on 28th February, 1972. On both counts the Court of Settlement found in affirmative. The first groups of appellants are claiming the property by way of alienation after 28the February, 1972. In Government Vs. Orex Network Ltd.,10 ADC 1, the claimant claimed the property on the basis of oral gift followed by an affidavit acknowledging the gift on taking prior permission from the Ministry of Works for transfer, and the Ministry on accepting transfer fees muted the name of the claimant. Three of us (CJ, Md. Abdul Wahhab Mia and Syed Mahmud Hossain, JJ.) were members of the Bench in which it was held that “Admittedly the disputed property was published in the ‘Kha’ list of the abandoned buildings by Gazette Notification dated 23.09.1986. Therefore, all the permissions accorded by the Ministry or works and from 23.09.1986 allowing mutation and transfer were void and those orders were obtained by collusion and fraud’. So, in this case also all the deeds and transfers were collusively made  after  PO  16  of  1972  came  into  force  and  these transfers are hit by article 6 of PO 16 of 1972. Similarly, Abdus  Sobhan  failed  to  substantiate  his  clean  title  and possession. He being a citizen of this country ought to have given explanation why he was not in possession in 1972 has he been really inherited the same.”

Unequivocally, we are in respectful agreement with the said decision  of  the  Appellate  Division  and  hold  that  the judgment passed by the Lower Appellate Tribunal was a proper judgment which cannot be at all interfered under Article 102 of the Constitution that is to say under the writ certiorari. Therefore, in all fairness this Rule should be discharged.”

To  sum  up  the  same  we  reiterate  that  in  writ  certiorari  this Division would be reluctant to interfere sitting as a court of appeal in deciding the issue before it. However, we do not want to embark upon the merit of the case. The petitioners, if so advised, still can approach the Arpita Shampatti Prattarpan Tribunal with this case. In a recent decision of Abdul Hye vs. Bangladesh 70 DLR 313, where the Ain, 2001 was under  challenge,  His  Lordships  Mr.  Justice  Obaidul  Hassan  after exhaustive  and  elaborate  discussion  in  para  140  gave  the  following directions:

“a. All the government officials are hereby directed not to take  any attempt in  future to  enlist any  property in the official gazette as the vested property;

2. Government may set up an exclusive Tribunal having no other jurisdiction, under section 10 of the Act No. 16 of 2001 in each District and where huge number of petitions are pending more than one Tribunal may be set up;
3. The Tribunals already set up under the Act No. 16 of 2001 are directed to dispose of the applications maintaining the time frame strictly as provided in the Act No. 16 of 2001;
4. The Limitation Act should be made applicable in filing application under Section 10(1) of the Act;”

Notably,  in  paragraph  37  of  the  said  decision  their  Lordships highlighted the submissions of the learned Attorney General which is quoted below :

“The  learned  Attorney  General  added  that  in  filing application for claims to the Tribunal, provision of section 5 of the Limitation Act may be made applicable.”

The law of limitation under section 10(1) and 1(ka) of the Ain, 2001 has already been quoted above. Considering the overall aspect, in the 70 DLR’s case their Lordships gave a clear directive (d) that the limitation Act should be made applicable in filing application under Section 10(1) of the Ain, 2001.

Therefore, the petitioners if so advised, may seek remedy in terms of the decision as stated above. On the context we refrain from making any deliberations on the point of merit of the case.

With  these  observations  and direction  this  Rule  is  discharged, however, without any order as to cost.

Communicate at once.

Mohammad Ali, J:

                                          I agree.

Ismail (B.O)