High Court Division :
(Special Original Jurisdiction)
Md Rezaul Haque J
Md Khurshid Alam Sarkar J
Srijan Paul Chowdhury ......Petititioner
Government of the People's Republic of Bangladesh, represented by it Secretary, Ministry of Land and others. .........Respondents
June 8th, 2016
Constitution of Bangladesh, 1972
Natural justice includes impartiality and fairness. The authority has changed the gazette notification in the name of correction notification of the "Kha" schedule land into "Ka" schedule land in an arbitrary manner which is beyond jurisdiction and violative to the principles of natural Justice. . ..... (27)
Benoy Bhusan Bardhan vs SDO Brahmanbaria, 30 DLR (SC), 139 and Nath Dhar vs Deputy Custodian, Enemy property (Land and Building) Dacca, 1 BCR (AD) 109 ref.
Abdus Salam Mamun, Advocate-For the Petitioner.
Md Khurshedul Alam, DAG with Nasrin Parvin, AAG-For the Respondents No.2.
SM Arif, Advocate-For the Respondent No.6.
Md Rezaul Haque J : This Rule Nisi was issued calling upon the respondent Nos. 1 and 2 to show cause as to why correction Notification No. 31.00.0000.045.53.065.2012-2876 dated 31-12-2012 issued by the respondent No.2 and published in the Bangladesh Gazette, Extraordinary, on 30-12-2012 (Annexure-F), should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts, for disposal of this Rule, in short, are that the petitioner is the owner, possessor and person in interest of the pond recorded in RS Plot No. 2551 under RS Khatian No. 1078 and PS Khatian No. 1099 Hal Plot No. 3025 under Hal Khatian No. 1045 in Mouza East Bhujpur, Upazila-Fatikchari, District-Chittagong measuring an area of 0.49 acre.
3. The petitioner instituted Other Suit No. 128 of 1987 in the Court of the Senior Assistant Judge, Fatikchari, Chittagong, on 10-9-1987 against the respondents and others praying for a decree amongst others that he is the owner, possessor and person in interest of the suit property measuring an area of 0.73 satak pond including the above mentioned portion of the pond in RS Plot No. 2551 under RS Khatian No. 1078 in Mouza Bhujpur, Upazila-Fatkchari, District- Chittagong and that the VP Case No. 24/82-83 in respect of 0.49 acres is illegal, collusive, malafide and inoperative and the said case has not affected the interest of the petitioner.
4. After hearing the case, the learned Assistant Judge, Fatikchari, by his judgment and order dated 9-5-1991 decreed the suit declaring that the suit property is inherited ancestral property of the plaintiff and the enlistment of 0.49 sataks in VP Case No. 24/82-83 and all actions taken thereunder is illegal, collusive and inoperative.
5. Being aggrieved by the judgment and decree of the trial court, the defendant being appellant preferred appeal and the appeal was allowed and it was remanded for retrial, against which the present petitioner filed a civil Revision before the High Court Division and obtained Rule and stay and after hearing the parties the Rule was discharged. Thereafter, the other class suit No.128 of 1987 was dismissed against which the present petitioner being appellant preferred other Appeal No. 224 of 2009. During pendency of the appeal the Awc©Z m¤úwË cÖZ¨vc©Y AvBb-2001 (Act No. 16 of 2001) was enacted by the Parliament and published in the Bangladesh Gazette extraordinary on 11-4-2001 with the purpose as expressed in the long title as “অর্পিত সম্পত্তি হিসাবে তালিকাভুক্ত কতিপয় সম্পত্তি বাংলাদেশী মূূল মালিক বা তাহার বাংলাদেশী উত্তরাধিকারী বা উক্ত মূল মালিক বা উত্তরাধিকারী বাংলাদেশী স্বার্থাধিকারী (ংঁপপবংংড়ৎ-রহ-রহঃবৎবংঃ) এর নিকট প্রত্যার্পণ এবং আনুসংগিক বিষয়াদি সম্পর্কে বিধান প্রণয়নকল্পে প্রণীত আইন।”
6. On 1-1-2013 the respondent Nos. 1-3 made an application in Other Appeal No. 224 of 2009 pending in the Court of the Additional District Judge, 4th Court, Chittagong, praying for an order of abatement of appeal as per Section 13 (ka) of the said Act No. 16 of 2001, accordingly, by order No. 26 dated 4-6-2013 the learned Additional District Judge, 4th Court, Chittagong, passed an order for abatement of Other Appeal No. 224 of 2009 preferred by the petitioner. Thereafter, on 12-9-2012 the petitioner filed Arpita Sampatti Pyatarpan case No. 4924 of 2012 before the Tribunal (District Judge) Chittagong praying for release of the said 049 sataks of pond from "Kha" schedule of vested properties.
7. Section 9 of Act No. 16 of 2001 provides for preparing two lists namely 'ka' and 'kha' list and Act No. 22 of 2002 provides publication of District-wise lists in the Government Gazette by Notification and thus, a list was prepared by the respondents for Fatikchari Upazilla and published it in the Bangladesh Gazette dated 12-6-2012 (page- 88911)showing the petitioner's pond in question in the "kha" list in serial No. 53 measuring 049 sataks of the pond in RS Plot No. 2551 and Hal Plot No. 3025 under Hal Khatian No. 1045 in Mouza-East-Bhujpur, Upazila-Fatkchari, District-Chittagong. But after Publication of Act No. 23 of 2011 Government Published Act No. 46 of 2013, and as per the said Act (Act 46 of 2013) the petitioner has became the owner of the property in question, Section 28Ka of the Act No. 46 of 2013 deleted the "Kha" schedule.
8. But, suddenly, with a malafide intention the respondent No.2 issued a notification being No. 31.00.0000.045.53.065. 2012-2876 dated 30-12-2012 and published in the Bangladesh Gazette on 30-12-2012, (vide Annexure-F to the Writ Petition) stating that the said 049 sataks of the Pond (out of 073 sataks) was wrongly included in the "Kha" schedule and by the impugned notification included it in "Ka" schedule of vested properties and, as such, the petitioner being aggrieved by the said notification filed the instant writ petition and obtained this Rule.
9. Mr Abdus Salam Mamun, the learned Advocate appearing for the petitioner submits that at the behest of the local enemy of the petitioner, who are trying to grab the petitioner's property, the respondent No.2 has illegally issued the impugned Memo No. 31.00.0000.045.53.065.2012-2876 dated 31-12-2012 from the Ministry of land in the name of so called correction notification stating that the land measuring 0.49 acre in SA Plot No. 2551 under the RS Khatian No. 1078, PS 1099 and Hal plot No. 3025 under Khatian No. 1045 pond in VP Case No. 24/82-83 dated 10-1-83 has been wrongly enlisted in the "kha" schedule due to mistake and that should be listed in the "ka" schedule as left out property from the "ka" schedule.
10. Learned Advocate further submits that the said correction notification has been issued and published by the respondent No. 2 in contravention of law and issuance of the said notification in itself beyond jurisdiction of the respondent No.2 and that respondent No.2 was not empowered to do so and the same is malafide and void. Learned Advocate contends that the property in question was published in "Kha" list but when the property of "Kha" list has been returned to the 'owner' the authority has taken whimsical decision as to change of the schedule arbitrarily which is violation of natural Justice.
11. Mr Khurshidul Alam, the learned Deputy Attorney-General appearing for the respondents, submits that .the property in question was enlisted in the "Kha" Schedule wrongly instead of "ka" Schedule and latter on, the Deputy Secretary (Law Section-4), Ministry of Land, Bangladesh Secretariat, has published the amended Notification No. 31.00.0000.045. 53.065.2012-2876 dated 31-12-2012 and published it in the Bangladesh Gazette dated 30-12-2012 in respect of 49 sataks of the Pond which has been wrongly listed in the "Kha" schedule due to mistake and that it should be listed in the "ka" schedule and accordingliy, corrected. The petitioner filed the instant writ petition challenging the amended Notification No. 31.00.0000.045.53.065. 2012-2876 dated 31-12-2012 issued by the respondent No. 2 and published in the Bangladesh Gazette dated 30-12-2012, but the petitioner filed the instant writ petition after 3 (three) years. He further submits that the claim of the petitioner to be in possession of the disputed land is totally false and fabricated. Neither the said petitioner nor his family was ever in possession of the disputed pond. Learned Deputy Attorney General Contends that the respondent No. 6(Lessee) after taking lease of that part of the pond in lease case No. 24/82-83 possessing the same peacefully till today. The government has the right to give lease of the suit land to anybody and after proper investigation and following the rules and regulations the government legally and lawfully accepted the application of respondent No.6 and gave lease of the said Vested land (pond) in favour of respondent No.6. The respondent No.6 after taking lease in 1982 is possessing it peacefully till today. Mr Khurshidul Alam further submits that the writ petitioner has no vested right and locus standi to file the instant writ petition relating to the land measuring 0.49 Satak out of total area 0.73 Satak in RS Plot No. 2551 under the RS Khatian No. 1078 corresponding BS. Plol No. 3025 under B.5 Khatian No. 1045, pond which is now under the possession of respondent No.6. By the impugned amendment notification the petitioner was allowed to possess the land which is in his possession. On the other hand, the writ petitioner has not even applied for lease of the above suit land as per guidelines and on this ground alone the instant rule is liable to be discharged.
12. Mr SM Arif, the learned Advocate, appearing on behalf of the respondent No. 6 has adopted the submission of the learned Deputy Attorney-General and submits that he is the lessee of the pond in question. The Pond has been leased out in his favour and, as such, it is clear that the petitioner has no possession over the pond, and thus, the property should have been listed in 'Ka' schedule but inadvertantly it was listed and notified in the 'Kha' schedule and the authority has properly corrected the same. Learned Advocate contends that the petitioner has no right and title over the suit land measuring 0.49 Satak in RS Plot No. 2551 under the RS Khatian No. 1078 corresponding BS Plot No. 3025 under B.5 Khatian No. 1045 pond and therefore, the petitioner cannot be the aggrieved person by the impugned amendment within the meaning of Article 102 of the Constitution and, as such, the instant writ petition is not maintainable and lhe rule is liable to be discharged.
13. We have heard the learned Advocate for the petitioner, the learned Deputy Attorney General and the learned Advocate for respondent No.6, perused the writ petition, affidavit-in-opposition and other materials on record.
14. It appears from the record that the property in question is a pond of an area of 073 satak. The RS Khatian was recorded in the name of One Purna Chandra, son of Brindaban Chandra Paul Chowdhury under Mouza- East Bhugpur, Police Station Fatikchari, District Chittagong. PS Khatian was recorded in the names of three sons and one wife of Purnachandra Paul Chowdhury. A provincial Special case was started against Harihar Paul Chowdhury, son of Puma Paul Chowdhury and it was numbered as Provincial Special case No. 22 of 1968. In that case it has been observed that the property of the three brothers namely Gapal Krishna Paul Chowdhury, Radheshyam Paul Chowdhury and Harihar Paul Chowdhury are in ejmali and Harihar Paul has been managing the properties on behalf of brothers. Thereafter, in different cases it has been proved by different Judgments that the property in question has been possessing by Harihar Paul Chowdhury in ejmali. The petitioner is the son of Harihar Paul Chowdhury. Though respondent No. 6 has tried to prove his possession but that has not been believed by any court.
15. It appears that the land in question was listed in the "Kha Schedule" as per the provision of Act No. 16 of 2001 by the respondents and for its release from the "Kha Schedule" a case was filed by the petitioner and the same was pending before Arpito Shampotti Prattarpan Tribunal. It further appears that the Act No. 23 of 2011 came into force and the defination of 'owner' has been amended and thereafter the Act No. 46 of 2013 came into force and Section 28 Ka of the said Act provides for releasing the property from the list of vested property described in 'Kha' schedule.
16. It appears from the ‘অর্পিত সম্পত্তি প্রত্যার্পন আইন 2001 Act No. 16 of 2001) that the purpose of the Ain .(Act No. 16 of 2001) is that “অর্পিত সম্পত্তি হিসাবে তালিকাভুক্ত কতিপয় সম্পত্তি বাংলাদেশী মূল মালিক বা তাহার বাংলাদেশী উত্তরাধিকারী বা উক্ত মালিক বা উত্তরাধিকারী বাংলাদেশী স্বার্থাধিকারী (ংঁপপবংংড়ৎ-রহ-রহঃবৎবংঃ) এর নিকট প্রত্যার্পণ এবং আনুসংগিক বিষয়াদি সম্পর্কে বিধান প্রত্যার্পণ কল্পে প্রণীত আইন”
17. In the year 2011 the aforesaid Act of 2001 has been amended and the amendment was published in Gazzettee which is known as “অর্পিত সম্পত্তি প্রত্যার্পণ AvBb, 2001 Gi AwaKZi msশোধন কল্পে প্রণীত আইন (Act No. 23 of 2011) and in Section 2(L)(D) of Act 16 of 2001 has been amended and the defination of Owner (gvwjK) has been amended in the following manner-
“(ড) ‘মালিক অর্থ, যে ব্যক্তির সম্পত্তি অর্পিত সম্পত্তি হিসাবে তালিকাভুক্ত হইয়াছে সেই মূল মালিক বা তাহার উত্তরাধিকারী, বা উক্ত মূল মালিক বা উত্তরাধিকারী স্বার্থাধিকারী (ঝঁপপবংংড়ৎ রহ রহঃবৎবংঃ) বা তাহাদের অনুপ¯ি'তিতে তাহাদের উত্তরাধিকার সূত্রে এমন সহ-অংশীদার যিনি বা যাহারা ইজারা গ্রহণ দ্বারা বা অন্য কোনভাবে সম্পত্তির দখলে রহিয়াছে (ঈড়-ংযধৎবৎ রহ ঢ়ড়ংংবংংরড়হ নু ষবধংব ড়ৎ রহ ধহু ভড়ৎস) যদি উক্ত মূল মালিক বা উত্তরাধিকারী বা স্বার্থাধিকারী (ঝঁপপবংংড়ৎ রহ রহঃবৎবংঃ) বা উত্তরাধিকার সূত্রে সহ-অংশীদার (ঈড়-ংযধৎবৎ রহ ঢ়ড়ংংবংংরড়হ নু ষবধংব ড়ৎ রহ ধহু ভড়ৎস) বাংলাদেশের নাগরিক ও ¯'ায়ী বাসিন্দা হন”
18. The record shows that the petitioner is the permanent citizen of Bangladesh and he has been possessing and managing the properties of his father and uncles in ejmali though two of his uncles left this country for India. The aforesaid defination of Section 2(W) has clearly defined 'Owner (gvwjK)'. From the aforesaid definition it is clear that the petitioner is the owner in respect of his fathers share and full uncles and successor in interest of his two as such, he is the owner of the share of his full uncles.
19. Earlier it is stated that the petitioner filed suit for declaration in the civil court in which the court dismissed the suit. Against which the petitioner being appellant preferred appeal No. 224 of 2001, which was pending before the court of Additional District Judge, 4th Court, Chittagong and after publication of the Gazattee Notification the respondent filed an application before the Court of Additional District Judge, 4th Court, Chittagong under Section 13 of the Arpita Sampatti Partarpon Ain,
2001 for an order of abatement. The application was allowed. The petitioner then filed a case before the Arpita Samppatti Partarpon Tribunal for releasing the pond from "Kha" Schedule which was numbered as 4924 of 2012. During pendency of the case before the Arpito Shampalti Partarpon Tribunal, Act. No. 46 of 2013 came into force on 10-10-2013 and Section 28 "Ka" (28-K) of the said Act, (No. 46 of 2013) namely Awc©Z m¤úwË cÖZ¨vc©b (wØZxq ms‡kvab) AvBb, 2013 Provided that:
“২৮ক। খ তফসিল বিলুপ্তি, ইত্যাদি সম্পর্কিত বিশেষ বিধান। -- (১) অর্পিত সম্পত্তি প্রত্যর্পন (দ্বিতীয় সংশোধ) আইন, ২০১৩ কার্যকর হইবার সঙ্গে সঙ্গে সম্পত্তি সম্পর্কিত খ তফসিল বাতিল হইবে এবং উহা এমনভাবে বাতিল হইবে যেন, উক্ত তফসিলভুক্ত সম্পত্তি কখনোই অর্পিত সম্পত্তির তালিকাভুক্ত হয় নাই।
(২) এই আইনে অধীন ¯'াপিত ট্রাইব্যুনাল, আপীল ট্রাইব্যুনাল বা বিশেষ আপীল কর্তৃক উপ-ধারা (১) এর অধীন বিলুপ্তকৃত খ তফসিলভুক্ত সম্পত্তির বিষয়ে ইতোমধ্যে নিস্পত্তিকৃত যে কোন মামলার রায় বা ডিক্রি বাতিল ও অকার্যকর বলিয়া গণ্য হইবে এবং উক্ত ট্রাইব্যুনাল, আপীল ট্রাইব্যুনাল বা বিশেষ ট্রাইব্যুনালে বিচারাধীন উক্ত খ তফসিলভুক্ত সম্পত্তি সম্পর্কিত সকল মামলা ধনধঃব হইয়া যাইবে এবং এইরূপ ধনধঃবসবহঃ এর জন্য সংশ্লিষ্ট আদালত কর্তৃক আনুষ্ঠানিক আদেশ প্রদানের প্রয়োজন হইবে না।
(৩) উপ-ধারা (১) এর অধীন বাতিলকৃত খ তফসিল সম্পর্কিত কোন আবেদন বা নালিশ জেলা কমিটি, বিভাগীয় কমিটি বা কেন্দ্রীয় কমিটিতে যে কোন পর্যায়েই থাকুন না কেন উহা স্বয়ংক্রিয়ভাবে বাতিল হইয়া যাইবে।
(৪) উপ-ধারা (১) এর অধীন খ তফসিল বাতিল হওয়া সত্বেও উক্ত তফসিলভুক্ত সম্পত্তিতে সরকার বা কোন ব্যক্তির কোন স্বত্ব বা স্বার্থ সম্পর্কে প্রচলিত আইনের প্রতিকার লাভে কোন আইনগত বাধা থাকিবে না।
(৫) ধারা ২০ক বিলুপ্ত হওয়া সত্বেও উক্ত ধারার অধীন গঠিত কোন বিশেষ আপীল ট্রাইব্যুনালে ক তফসিল সম্পত্তি সম্পর্কিত কোন মামলা বিচারাধীন থাকিলে উহা এমনভাবে চলমান থাকিবে যেন, উক্ত ট্রাইব্যুনাল বিলুপ্ত হয় নাই এবং উক্ত মামলার প্রদত্ত ডিক্রী ধারা ২(ছ) এর উদ্দেশ্য পূরণকল্পে প্রদত্ত ডিক্রী হিসাবে গণ্য হইবে।”
20. So, it is clear that by virtue of the new amendment of 2013 the land of the petitioner was released from "Kha" Schedule by operation of law, and the petitioner has become the owner of the land as per defination of 'Owner'. But it appears that the Government has published a correction gazettee notification including the said land (pond) of the petitioner in the "Ka" Schedule stating that the earlier notification as to publication of the land of the petitioner was wrongly published in "Kha" Schedule and it should have been published in "Ka" Schedule.
(To be continued)
21. It is clear that the Government respondent always treated the land as "Kha" Schedule land but when the Act No. 23 of 2011 came into force the authority changed its mind and without assigning any reason changed the Schedule of the land in question whimsically. We do not find any reason whatsoever to change the property from "Kha" Schedule to "Ka" Schedule. It is clear from the relevant laws that the legislature by its wisdom has amended the defination of "gvwjK" (Owner) for which the petitioner has become the owner of the land apart from his inherited land and Keeping it in mind the respondent has taken'the decision for changing of the land from "Kha" schedule to "Ka" Schedule which is nothing but colorable exercise of power only to frostrate the case of the petitioner. It is clear from the amendment of 2011 (Act No. 23 of 2011) that the petitioner has become the owner as per the definition of owner (~) and this right of the petitioner has been curtailed by issuing a correction notification with a mala fide intention.
22. On plain reading of Section 28 of the Act 46 of 2013 we do not find any authority of the respondent to issue the impugned notification and constrained to believe that having no other alternative some vested quarter in collusion with the Government officials has managed to issue the memo of Correction as to insertion of the property of the petitioner in the "Ka" Schedule property stating that inadvertently it was listed in "Kha" Schedule which is nothing but colorable exercise of power only to harass the citizen. In our view the notification for changing of the "Kha" schedule land into "Ka" schedule is arbitrary and gross violation of natural Justice and malafide and, as such, it can not be allowed.
23. The executive authority is not allowed to twist the Law at their sweet will and to their advantage. It is well settled that malafide vitiates everything and a malafide act is a nullity and void. Malafide means bad faith, it is opposed to bonafide.
24. Though, we are not sitting over the ownership of the pond in question but it is clear that the claim of the respondent that the part of the pond is vested property and it has been leased out to respondent No.6 is futile. In the case of Benoy Bhusan Bardhan vs SDO Brahmanbaria, reported in 30 DLR (SC) 139, it was held,:
"The custodian of Enemy property representing share of the enemy owner cannot go into possession of the joint land by dispossessing the Co-Sharers in possession of the said land without partitioning the same according to law nOr can he arbitrarily specify certain area representing the Share of the enemy owner and lease out the same to others".
25. Similar view has been taken in the case of Nriperidra Nath Dhar vs Deputy Custodian, Enemy property (Land and Building) Dacca, reported in 1 'BCR (AD) 109, wherein it was held,:
" Custodian of Enemy property cannot take over possession without effecting partition: ..... "
26. As it, appears from the record that the property in question is a pond, which has been admittedly possessing. by the petitioner, the
claim of the respondent Covernment that some portion of it became enemy property (vested Property) and it has been leased out to respondent No.6 is of no avail. But as per the above cited decisions the land must be partitioned first but practically a pond cannot be partitioned and admittedly, the pond was neither portioned nor enjoyed by the respondent No.6, the alleged lessee, rather, the same has been possessing by the present petitioner. So, the claim of the respondents has no basis at all.
27. It cannot be said that the decision which has been published in the Gazette in the name of correction notification has been done in good faith rather, it is crystal clear that the authority has taken this diciscion with a malafide intention. Natural Justice includes impartiality and fairness. It is clear that the authority has changed the Gazette notification in the name of correction notification of the "Kha" schedule land into "Ka" schedule land in an arbitrary manner which is beyond Jurisdiction and violative to the principles of natural Justice.
28. Thus, we find substance in the instant Rule.
29. In the result, the Rule is made absolute.
30. However, there will be no order as to cost.
The correction Notification No. 31.00.0000.045.53.065.2012-2876 dated 31-12-2012 issued by the respondent No.2 and published in the Bangladesh Gazette, Extraordinary on 30-12-2012 (Annexure-F) is declared to have been passed without lawful authority and is of no legal effect. Accordingly, the said notification as it relates to the land (Pond) of the petitioner is set aside.