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Tuesday, November 21, 2017 07:50:39 PM
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Court of Settlement should apply judicial consideration impartially

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19th-Nov-2016       
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(From previous issue) :
“এ বাড়ী সংক্রান্তে অত্র কার্যালয় হতে ‘খ’ তালিকায় ৬৩৪ নং ক্রমিকে গেজেটে প্রকাশের জন্য ২২-৪-১৯৮৬ তারিখে প্রেরণ করা হয়। সে মতে ১৯৮৬ সালে ২৮শে এপ্রিল মাসের গেজেটে ৬৩৪ নং ক্রমিকে পরিত্যক্ত বাড়ী হিসেবে ঘোষিত হয়েছে। কিসের বুনিয়াদে বা কোন প্রতিবেদনের উপর পরিত্যক্ত বলে এ বাড়ী ঘোষিত হবে তার কোন তথ্য অত্র দপ্তরে বর্তমানে খুঁজে পাওয়া যাচ্ছে না বা এ সংক্রান্তে কোন নথিও নেই। ঘোষণা হয়েছে কিনা তাও পরিদৃষ্ট হচ্ছে না।
উপরোক্ত তথ্য প্রমাণ হতে বাড়ীটি পরিত্যক্ত সম্পত্তির তালিকা হতে অবমুক্তির যোগ্য প্রতীয়মান”।
17. The above mentioned observation of the concerned Officer of the Abandoned Property Division, Khulna, establishes that the Government never declared the property as abandoned. In the present case the ownership of the property is not paramount consideration for this Court. The main question is whether the property in question has been rightly included in the "Kim" list of the Abandoned Building in accordance with law. This court also finds that the Government- Respondent never issued and served any notice upon the owner and the occupier under Article 7 of PO 16 of 1972 or under Section 5(1)(b) of the Ordinance, 1985 non-service of notice as required by law disentitled the Government-Respondent to claim that the property was legally declared abandoned and enlisted in the "Kha" list of the Abandoned Buildings. It is also noted that there is nothing on record to show that the Petitioner was ever asked to show cause about inclusion of the property or to surrender the same which has definitely denied the right of natural justice to the Petitioner.
18. In the case of Syeda Chand Sultana vs Bangladesh reported in 1 MLR 310 = 48 DLR 547 which was affirmed by the Appellate Division and reported in 51 DLR (AD) 24, it has been held that,
"Where the owners as Bangladeshi nationals having lawful title have been in possessions of the property all through and never having ceased to manage or supervise the same and not having "left the country and when there was no proper service of notice upon the petitioners as required under Article 7 of the PO No. 16 of 1972, the inclusion of the said building in the "Kha list" of abandoned properties being violative of the fundamental right as contained in Article 42 of the Constitution is illegal, without jurisdiction and of no legal effect and as such the petitioners are entitled to invoke the writ jurisdiction for enforcement of fundamental rights.
19. In the present facts and circumstances, this Court finds itself wholly subscribing to that ratio decidendi in the Syeda Chand Sultana Case.
20. Given this Court's understanding of the essentials of enquiry as to the status of property under the relevant provisions of Ordinance as above explained, it is found that the claimant had duly discharged her onus of proving her case independently of the Government and that in doing so she had by a set of mutually reinforcing evidence produced generally established a continuous scenario of active ownership, occupation, supervision and management of the said property through her principal both before and after the promulgation of PO 16 of 1972. There was nothing on record that could have reasonably led the court of Settlement to find otherwise. However, the Court of Settlement without. following a judicial  approach in determining the question of facts involved in this case unfortunately passed the Judgment without giving a judicial consideration of the whole dispute between the parties and decided the matter erroneously. By that reason, and by confining this Court's scrutiny to the objective of finding whether the impugned Judgment is perverse or not, this Court has inevitably arrived at the conclusion that the Court of Settlement's Judgment and Order dated 22-2-2001 is indeed highly perverse, one being contrary to the facts and circumstance and evidence on record and by that reason we are inclined to interfere with the impugned Judgment of the Court of Settlement as prayed for.
21. In the result, the Rule is made absolute without any order as to costs.
22. It is hereby declared that the Judgment and Order dated 10-12-2009 passed by the Respondent No.3 in Case No. 221 of 1992 dismissing the case and thereby refusing to release the property being House No. T-57, Khalishpur Housing Estate Khulna from the "Kha" list of abandoned buildings. published in the Bangladesh Gazette on 23-9-1986 at Page No. 9764(36) against serial No. 615 (mistakenly mentioned in the decision as published in the Bangladesh Gazette dated 28-4-1986 against serial No 634 is without lawful authority and is of no legal effect and the Respondents are hereby directed to exclude the same from the "Kha" list of the Abandoned Buildings within 60 (sixty) days from the date of receipt of this Judgment and Order.
23. The order of stay granted at the time of issuance of this Rule is stand vacated.
Communicate a copy of this Judgment and Order to the Court of Settlement concerned at once.
(Concluded)

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