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Mutation of government properties

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11th-Feb-2017       
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Faruque Ahmed :
As we know that a final decree or order passed and drawn by a competent civil court/ tribunal is binding upon its parties and even binding upon all as to its existence as per Section 43 of the SR Act. Formerly Section 143(a) of the State Acquisition and Tenancy Act. 1950 was inserted after Section 143 by EP Ordinance No. VIII of 1965, had authorised a person aggrieved by a wrong order or omission of entry in record of rights finally prepared or revised and published under Chapter IV of the Act to file an application for correction of such record of rights in the civil court, and in pursuance of the order or decree of civil court the revenue officer shall make such alteration in the record of rights as may be necessary to give effect to such orders or decrees.
Of course, Section 143(a) was omitted by the Ordinance No. LXIV of 1975, which came into force in January, 1976. After omission of the aforesaid Section an aggrieved person is to file a regular title suit whose title is clouded due to wrong record of right. Now, power of correction of RS Record of-Rights has been invested to the Survey & Settlement Tribunal again.
2. Anyway, as we know as an ordinary person when right, title, possession and interest i.e. right to property of a person is declared by a civil court or revised record of right is declared wrong and concerned authority is directed to correct the same in favour of the plaintiff by the tribunal in that case the Revenue Authority has, in fact, no option in law but to mutate the name of the persons by correcting the record of right under Section 54 read with 143 of the SAT Act (vide Ref 53 DLR 506 and other case laws).
Moreover, Rule 535 of the Survey and Settlement Manual, 1935 provides thus. Òwmwfj †Kv‡U©i ivq †gvZv‡eK †iKW© ms‡kvab Kiv hv‡e| Aek¨ G‡ÿ‡Î ‡m‡Uj‡g›U I Kv‡j±i‡K cÿ Kivi wbqg i‡q‡Q|Ó  But it is a matter of great concern that the Revenue Authority is very much reluctant in mutating the name of the decree/order holder of civil court or tribunal and as such litigant public suffer a lot.
3. On the other hand a circular issued by the Ministry of Land under Memo No fztgt/kv-9-19/93/214(582) wewea ZvwiL 28-9-1409 evsjv 11-5-1994Bs evsjv which provides that approval of Ministry of Land is necessary before mutation of the government property and thus creating embargo in mutating he name in the record of a decree holder of the civil court/tribunal.
Decree or order of a civil court/tribunal are creature of the statutory law i.e. code of civil procedure or special law and these have binding effect unless or until set a side by higher court of civil jurisdiction.
On the contrary, Govt. Circular, inter-ministerial communications, manuals etc. have no force of law. In this regard there are good number of case laws have been enunciated by our Hon'ble Apex Court. If so, it can be questioned why the approval of the Ministry of Land is to be obtained before mutation?
4. Of course,     if the government is able to get the decree or order of civil court/tribunal set aside by the higher court of civil jurisdiction in that case the revenue authority has the statutory power to reverse or set aside the mutation order passed earlier as per law i.e.
The SAT Act. The Revenue authority has been invested power under Section 147 & 149 of the aforesaid law to set aside or revise any order as to mutation and hence the government need not at all to issue circular to create unnecessary barrier in the mutation process.
5. Here I am tempted to disclose my personal experience in this regard, The mother of my maternal grandfather purchased 2 poua land (0.18 acres) vide two registered deed being the year of 1942 & 1950 from Arjun Nath and Raman Nath who were under Raiyat of the then Zaminder Babu Gayanandra Kumar Paul Chowdhury & Amio Bala Paul Chowdhury and had been in possession of the same through her sons. Unfortunately, the purchased land by the aforesaid registered deeds had been wrongly recorded in the name of "Railway Board" during the SA settlement operation.
6. My maternal grandfather find his brother (since dead) carried to a title suit being No. 76 of 1979 before the then Munsif 1st Court, Habiganj (Now Assistant Judge Court) for a declaration of a title with respect of the aforesaid purchased land but unfortunately got a dismissal decree on contest and then we went to the District Judge's Court, Habiganj with an appeal being No. 38 of 1994 and we won and then the Railway authority approached the Hon'ble High Court Division with a civil Revision being No. 2038 of 2001 which was discharged on 10-112008 by his Lordship justice AFM Ali Asgar and the judgment of the aforesaid civil revision reported in 14 BLC 556 as case law or precedent.
7. And then we approached the local revenue authority for mutation in 2008, which delayed and wasted time on different plea & pretext and once we realized the negative approach of the local revenue officials including Deputy Commissioner, we went to the Hon1ble High Court Division with a petition for writ of mandamus being No. 8912 of 2009 which was made absolute on 27-5-2012 by their Lordships Madam Justice Naima Haider and ......... with a direction to the writ respondents i.e. local revenue Authority to mutate the name of the writ petitioners in roll of the record of rights within 60 days from the receipt of the judgment.
However due to delay in signing the judgment and order by the Hon'ble Justices concerned, the judgment and order could not be implemented. But we are lucky enough by this time, we won in the legal battle again before the Hon'ble Appellate Division of Bangladesh Supreme Court which was pleased enough to dismiss the civil petition for Leave to Appeal being No. 949 of 2009 on 28-1-2013. Preferred by Bangladesh Railway against the Judgment & Order dated 20-11-2008 passed in Civil Revision No. 2038 of 2001.
8. Thus, we ended our long mutation journey on the basis of the judgment & order of the Hon1ble Appellate Division of Bangladesh Supreme Court.
In doing so, we incurred heavy costs and expenditures and waited for since 1979 till 2013 i.e. 34 years. Not only us but also there are good number of litigant public are suffering in this connection and many of them approached both the Divisions of Bangladesh Supreme Court for getting their redress.
There are so many judicial pronouncements have already been made by both the Divisions of Bangladesh Supreme Court in this regard but the concerned govt. revenue officials by showing utter disregard and disrespect have chalked out an opposite direction contrary to the judgment and order of the civil court or tribunal even Apex Court of country and thus creates untold suffering & predicament for the litigant public.
9. Anyway, in my narrow view, for establishment of rule of law and for the greater interest of the public, the circular under Memo No. f~tgt/kv-9-19/93/214(582) wewea ZvwiL 28-9-1409 evsjv ‡gvZv‡eK 11-5-1994Bs or issued by the Ministry of Land imposing hindrance in the process of mutation should be lifted at an earliest possible date or by amending the law, a high level revenue authority of the government be given absolute power to deal with the matter quickly in lieu of court or tribunal so that mutation can be done in a shortest possible time.

(The writer is Advocate, District Judge's Court, Hobiganj.)

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