Abandoned Buildings (Supplementary Provision) Ordinance (LIV Of 1985) | Case Reference

Abandoned Buildings (Supplementary Provision) Ordinance (LIV Of 1985)

Section 2(b)

Court of Settlement

When the competent authority has certified that the deed has been duly registered the Court of Settlement cannot question the registration. Whether the executant has signed the volume or not is the concern of the registering authority and not of the Court of Settlement. It further appears that none has challenged this, registration of the deed of gift. The only duty of-the Court of Settlement is to look into the claim of the respondent on the basis of deed of gift. In such a situation the Court of Settlement very well may look into whether the deed of gift has been acted upon or not. Bangladesh and another Vs Mrs. Shirely Anny Ansari, 20 BLD (AD) 284.

Sections 2(a), 5 & 6        

The expression 'building' has been defined in section 2(a) of the Ordinance, which means "any residential or other building or structure of any kind in an urban area and includes the land adjunct thereto, and the Court yard, tank, place of worship and private burial or cremation ground appertaining to such building". From the above definition there is no gainsaying that building includes any structure in the urban area and any land adjunct thereto. There is no dispute that there are structures on the disputed land as has been admitted by the writ petitioner in the writ petition. In view of this admitted position, there is no merit in the contention of the learned Advocate for the respondent. Over and above, admittedly the property has not been enlisted in the abandoned property list in accordance with section 5 of the Ordinance. Jahangir Alam (Md) vs Md. Shamsur Rahman Sarder 16 BLC (AD) 22

 

Section 2(b)

The Court of Settlement was not a Court for determining the title of the rival claimants. It is a court only for determination as to whether the case property is an abandoned property or not.

Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Public Works vs Chairman, Court of Settlement and others 50 DLR (AD) 93.

 

Section 3     

Section 3 of the Ordinance provides that the provisions of Ordinance shall have effect notwithstanding anything inconsistent herewith contained in any other law for the time being in force. The provisions of the Ordinance shall have overriding effect over the provisions of the Bangladesh Abandoned Property Order, 1972. Government of the People's Republic of Bangladesh vs Orex Network Ltd 17 BLC (AD) 196.

 

Section 3(2)

The Settlement Court correctly applied the provision of law i.e. Article 2 of the PO No.16 of 1972 as there was absolutely no iota of evidence or material produced by the petitioner to show that Abdur Rahman, the alleged vendor of the respondent was present in Bangladesh or his whereabouts were known on 28-2-1972 and, as such, the alleged kabala of the respondent dated 24-4-1974 was by a fictitious non­existent Abdur Rahman by impersonation. Bangladesh vs Mohiuddin 15 BLC (AD) 179.

 

Section 4     

Since no notice for surrendering possession of the property was issued, it can hardly be said that the property has been lawfully included in the list of abandoned buildings. Nurul Hoque vs Bangladesh 46 DLR 601.

Section 4-The case property having been included in 'Kha' list on 25-12-1988 for the first time it cannot be included in the list of abandoned property. Nasir Hossain (Md) vs Bangladesh and others 49 DLR 557.

Section 5-No notice has been served upon the original lessee, or the predecessor of the respondents. As the original lessee was in possession of the suit land at the time of selling of the land and thereafter, the predecessor of the respondents had been enjoying the possession of the same, the inclusion of the case property in the list of the abandoned buildings cannot be said to have been done legally rather it was done without lawful authority. Government of Bangladesh, represented by the Secretary, Ministry of Housing and Public Works vs Tahera Begum (Civil), 73 DLR (AD) 356

Section 5     

No notice under section 5 of the Ordinance–

The High Court Division found that all the documents including the original lease deed, the original allotment letter and other papers and documents relating to the case property had been placed before it. The High Court Division had gone through the papers and on consideration of those documents found that the respondents had been in possession of the disputed property before promulgation of Abandoned Buildings (Supplementary Provision) Ordinance,1985. Admittedly, no notice under section 5 of the Ordinance had been served upon the respondents before enlistment of the property in the list of abandoned buildings to surrender possession of the disputed building to the appellant. We do not find any substance in this appeal. Accordingly, this appeal is dismissed. There is no order as to costs. .....Ministry of Public Works & Housing =VS= Md. Haroon, (Civil), 2018 (2) [5 LM (AD) 348] 

Section 5-In a suit for specific performance of contract the only issue to be decided whether the contract was genuine or not and as such, though the Government is made a party to a suit for specific performance of contract as a requirement of law it is not bound by the decree.

The Appellate Division held that not only the suit for specific performance of contract was decreed but also the disputed property was declared to be not an abandoned property. Such a declaration in a suit for specific performance of contract is beyond the scope of the suit and such declaration has no legal value at all. For argument sake even if the decree was obtained legally the Government is not bound by the decree passed in a suit for specific performance of contract. Government of Bangladesh, represented by the Secretary, Ministry of Works. -Vs.- Abdul Mannan and others. (Civil) 16 ALR (AD) 98-103

Abandoned Buildings (Supplementary Provisions) Ordinance [LIV of 1985]

Section 5 (1)-The negligence and laches on the part of the appellant who managed to lose the file twice before the appeal was finally lodged after an inordinate 1155 days, of delay accordingly the appeal is dismissed. 

The Appellate Division observed that the High Court Division noted that against the judgement and decree of the trial Court dated 12.09.1995 application for certified copy was made on 26.09.1995 and certified copy was obtained on 27.01.1996. The office of the Solicitor received the certified copies on 17.04.1996 and the Deputy At- torney General (Civil) received the file on 23.04.1996 and on 05.05.1996 he allotted the file for preferring the appeal. The Appellate Division cannot ignore the fact that by this time the appeal was already out of time. Before the appeal was ultimately filed with the application for condonation of delay, it appears that the file was lost twice in the office of the Attorney General. The High Court Division observed that the appellant must be held guilty of negligence and laches and discharged the Rule, thereby dismissing the connected memorandum of appeal vide F.A.T. No. 2 of 1998. In the facts and circumstances, the Appellate Division does not find any illegality or infirmity in the decision of the High Court Division in refusing to exercise its discretion to condone the delay. The High Court Division rightly took into account the negligence and laches on the part of the appellant who managed to lose the file twice before the appeal was finally lodged after an inordinate delay of 1155 days. In view of the discussion above, the Appellate Division does not find any merit in this appeal which is accordingly dismissed. Executive Engineer, Public Works Department and others -Vs.- Md. Nizamuddin and others (Civil) 15 ALR (AD) 04-06

Section 5(1)

As per Article 2(1) of the P.O. No.16 of 1972 abandoned property denotes property owned by a person who is either (i) not present in Bangladesh, or (ii) whose whereabouts are not known, or (iii) who has ceased to occupy, supervise or manage in person his property. ...(19)

Section 5(1) of the Abandoned Buildings (Supplementary Provision) Ordinance, 1985 (shortly the Ordinance, 1985) lays down that the government shall, after the commence- ment of the Ordinance and before the 31st day of December, 1988, publish, from time to time, in the official Gazette, lists of buildings the posses- sion of which have been taken as aban- doned property under the P.O. No.16 of 1972. ....(25)

Government of Bangladesh vs. Sinku Akramuzzaman (Obaidul Hassan J) (Civil) 20 ADC 78

Section 5    

Leave was granted to consider whether, the learned Judges of the High Court Division were justified in holding that the listing of the disputed property as abandoned property is not hit by proviso (a) to section 5 of the Abandoned Build- ings (Supplementary Provisions) Ordinance, 1985 (Ordinance No.LIV of 1985) since the appellant had obtained decrees in Title Suit Nos. 1013 of 1980, 408 of 1982 and 213 of 1985 from competent civil courts prior to the date of inclusion of the disputed property in the abandoned property list on 23rd September, 1986. Mrs. Amena Khatun vs. The Chairman, Court of Settlement (S.K. Sinha J) (Civil) 7 ADC 911

Section 5     

Since the property has been listed under Section 5(1) of the Ordinance as abandoned property and the said list has been published in the official gazette the claimant of the property are required to dislodge the statutory presumption as under Section 5 (2) of the Ordinance that the property in question is not an abandoned property and the same has been wrongly enlisted. Shahida Khatun & ors Vs. Chairman, 1st Court of Settlement & anr, (Civil), 8 SCOB [2016] HCD 93

 

Abandoned Buildings (Supplementary Provisions) Ordinance (LIV of 1985) 

Section 5

No notice has been served upon the original lessee, or the predecessor of the respondents. As the original lessee was in possession of the suit land at the time of selling of the land and thereafter, the predecessor of the respondents had been enjoying the possession of the same, the inclusion of the case property in the list of the abandoned buildings cannot be said to have been done legally rather it was done without lawful authority. [73 DLR (AD) (2021) 356]

 

Section 5     

Presumptive value of enlistment of abandoned property-

A building which was not occupied, managed or supervised by the owner at the time when the P.O. 16 of 1972 came into effect, became abandoned and vested in the Governme nt by operation of law and the enlistment of the building in the "Ka" list has presumptive value" of correctness unless such presumption is rebutted by contrary proof. Government of Bangladesh Vs. Ashraf Ali & another. 2, MLR(1997) (AD) 96.

Sections 5 and 10(5) Suit for specific performance of contract-Even if the decree was obtained legally the Government is not bound by the decree passed in a suit for specific perfor- mance of contract. In a suit for specific performance of contract the only issue to be decided whether the contract was genuine or not and, as such, though the Government is made a party to a suit for specific performance of contract as a requirement of law it is not bound by the decree. Bangladesh vs Md Abdul Mannan (Civil) 71 DLR (AD) 338

Sections 5, Article 7        

Since there was no notice contemplated under Article 7 and there was non-com­pliance of the provision of section 5 of the Ordinance No. 54 of 1985 as no notice under section 5(1) (a) of the Ordinance was ever served and as such the property was wrongly included in the 'ka' list of the abandoned building and the listing as such is undoubtly has been done illegally and without any lawful authority. Abdur Rashid Mollah vs Bangladesh (Mohammad Fazlul Karim J) (Civil) 2 ADC 45

 

Section 5     

Service of notice as to enlistment of abandoned Property—

Before enlistment of abandoned building prior notice under section 5 is a condition precedent. When no such notice was served and the occupant was not asked to handover possession of the building, the so called enlistment is not a valid enlistment and as such the petitioner was not required by law to go to the court of Settlement for remedy. Bangladesh represented by the Secretary Ministry of Works and others Vs. Helaluddin Ahmed. 4, MLR (1999) (AD) 140.

 

Section 5     

Decree in a suit for Specific Performance of Contract-whether such a decree can be pleaded as a bar for inclusion of a building in the list of abandoned property.

The decree in the suit for specific performance of contract will show that it has only decided the controversy between the vendor and the vendee and directed the vendor to execute the necessary document in favour of the vendee. Such a decree is not the one which is mentioned in Proviso (a) and, as such, the existence of such a decree cannot be pleaded as a bar for inclusion of the building in the list. CQMH Md Ayub Ali vs Bangladesh and others 47 DLR (AD) 71.

 

Section 5     

Proviso (a) The ex parte decree obtained by the writ petitioner is a declaratory decree simpliciter without any prayer for recovery of possession, when, admittedly, the writ petitioenr was not in possession thereof. Such a decree is not within the contemplation of proviso (a) to Section 5. Bangladesh vs Anwar Ahmed and others 51 DLR (AD) 42.

Section 5- No notice under section 5 of the Ordinance- The High Court Division found that all the documents including the original lease deed, the original allotment letter and other papers and documents relating to the case property had been placed before it. The High Court Division had gone through the papers and on consideration of those documents found that the respondents had been in possession of the disputed property before promulgation of Abandoned Buildings (Supplementary Provision) Ordinance, 1985. Admittedly, no notice under section 5 of the Ordinance had been served upon the respondents before enlistment of the property in the list of abandoned buildings to surrender possession of the disputed building to the appellant. We do not find any substance in this appeal. Accordingly, this appeal is dismissed. There is no order as to costs...... Ministry of Public Works & Housing =VS= Md. Haroon, [5 LM (AD) 348]

Section 5- Abandoned property- We are of the view that the learned Judges of the High Court Division are perfectly justified in maintaining the judgment and order of the Court of Settlement. Realizing the position of law learned Counsel finally submits that since the appellant is in possession of the disputed property over 40 years, an observation may be made directing the respondents to lease out the building in her favour. As regard possession, the High Court Division on consideration of the materials on record affirmed the findings of the Court of settlement that the government is in possession of the disputed property and has been managing the same through its temporary allottees namely Hafiz Uddin. The appeal is, dismissed without any order as to costs. Amena Khatun(Mrs.) =VS= The Chairman, Settlement, [9 LM (AD) 128] Court of

Section 5(1)- Condonation delay of 1155 days We do not find any illegality or infirmity in the decision of the High Court Division in refusing to exercise its discretion to condone the delay. The High Court Division rightly took into account the negligence and laches on the part of the appellant who managed to lose the file twice before the appeal was finally lodged after an inordinate delay of 1155 days. We do not find any merit in this appeal which is accordingly dismissed, without any order as to costs. ... Public Works Department -VS- Md. Nizamuddin, [5 LM (AD) 374]

 The Ordinance 1985 (L IV of 1985)

Section 5, (1), (2), 7 

Section 5(2) of the Ordinance Clearly provides that the list published under sub-section (1) shall be conclusive evidence of the fact that the buildings included therein are abandoned property. and have vested in the Government as such... The onus therefore is squarely on the claimant of the building to prove that the building is not an abandoned property. Bangladesh vs Jalil (A. TM. Aftal. CJ) (Civil) IADC 415

Ordinance No. 54 of 1985

Section 5(2) 

That the building in question is in possession, control and custody of the Government since promulgation of P. O. No. 16 of 1972 that the High Court Division committed a grave error of law in entertaining new facts without considering that in interfering with the decision of an inferior Tribunal all that is to be seen is whether the Tribunal has exceeded its jurisdiction or there is want of jurisdiction or there is an error apparent on the face of the record or a finding of fact based on inadmissible evidence, non consideration of material evidence on record or on no evidence at all. Bangladesh vs Jahanara Rashid (Mustafa Kamal J (Civil) 2ADC 563 

Abandoned Buildings (Supplementary Provisions) Ordinance (LIV of 1985)

Section 5-No notice has been served upon the original lessee, or the predecessor of the respondents. As the original lessee was in possession of the suit land at the time of selling of the land and thereafter, the predecessor of the respondents had been enjoying the possession of the same, the inclusion of the case property in the list of the abandoned buildings cannot be said to have been done legally rather it was done without lawful authority. Government of Bangladesh, represented by the Secretary, Ministry of Housing and Public Works vs Tahera Begum (Civil), 73 DLR (AD) 356

Section 5     

The Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Section 5 read with

P.O.16 of 1972

Articles 6 and 14(1)

Abandoned property– We are of the view that the learned Judges of the High Court Division are perfectly justified in maintaining the judgment and order of the Court of Settlement. Realizing the position of law learned Counsel finally submits that since the appellant is in possession of the disputed property over 40 years, an observation may be made directing the respondents to lease out the building in her favour. As regard possession, the High Court Division on consideration of the materials on record affirmed the findings of the Court of settlement that the government is in possession of the disputed property and has been managing the same through its temporary allottees namely Hafiz Uddin. The appeal is, dismissed without any order as to costs. ...Amena Khatun(Mrs.) =VS= The Chairman, Court of Settlement, (Civil), 2020 [9 LM (AD) 128] 

 

Section 5     

President’s Order No.16 of 1972

Article 7 and

The Ordinance No. LIV of 1985

Section 5

Abandoned properties– The respondents filed the writ petition challenging the judgment and order passed by the Court of Settlement and the High Court Division issued Rule under Article 102 of the Constitution of the People’s Republic of Bangladesh. So, it appears that the writ petition was filed to challenge the propriety of the judgment and order of the First Court of Settlement, Dhaka and in the instant case, the High Court Division interfered with the findings of facts of the Court of Settlement in exercising the power of writ jurisdiction not being the appellate authority. We do not find any illegality in the judgment and order passed by the High Court Division. ...First Court of Settlement, Dhaka =VS= Mrs Tahera Begum, [10 LM (AD) 134] 

Bangladesh Abandoned Property (Control, Manage and Disposal) Order, 1972 (President's Order No. 16 of 1972).

The High Court Division while exercising its jurisdiction under Article 102(2) of the Constitution in respect of the judgment of a tribunal or in other words exercises its jurisdiction in certiorari is certainly not acting as a Court to appeal and to re assess the evidence and finally to arrive at a view different from the tribunal in the absence of arriving at a finding that the view taken by the tribunal in the background of the materials noticed by its is not legally tenable or logically not well founded. Bangladesh vs Rowshan Ara Begum (Md. Ruhul Amin J)(Civil) 3ADC 210

 

Section 5(1)(a) (b) (2), 7

Settlement the initial presumption is that the enlisted building is an abandoned property and that the onus lies on the claimant to show that it is not an abandoned property. The onus will be dis-charged by showing that on the dated of promulgation of P.O. No. 16 of 1972 the owner of his Attorney or his representative was in possession of the disputed property and was managing the same. Bangladesh vs. Mr. K.M. Zaker Hossain (Md. Ruhul Amin J) (Civil) I ADC 371

 

Section 5(1)(a)      

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985:

Section 5(1)(a)

It is clear from the wordings of Section 5(1)(a) of the Abandoned Buildings (Supplementary provisions) Ordinance, 1985 that the Government must take possession of the property in question; this is a mandatory precondition for inclusion of a property in the list of abandoned property under Section 5(1)(a) of the 1985 Ordinance. This is also the consistent view of both Divisions of the Supreme Court of Bangladesh. The Hon’ble Appellate Division, in the case of Marzina Khatun vs Bangladesh [13 BLC (AD) 140] took the view that in certain circumstances, actual possession is not necessary; constructive possession would suffice. Md. Lutfor Rahman & ors. Vs. Bangladesh & ors., (Civil), 15 SCOB [2021] HCD 21

 

Section 5(1)(b)      

The Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Section 5(1) (b) And Article 7 of P.O. 16 of 1972:

The Government- Respondent never issued and served any notice upon the owner and the occupier under Article 7 of P.O. 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. ...Shamsun Nahar Begum Shelly Vs. Bangladesh & ors, (Civil), 5 SCOB [2015] HCD 67 

 

Section 5(1)(a)      

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Section 5(1)(a) and

Order 7 and 18 of P.O 16 of 1972:

Section 5(1)(a) of the 1985 Ordinance is attracted if and only if the Government took possession of the property. So the attributable interpretation is that Section 5(1)(a) of the 1985 Ordinance can be applied if the possession has been taken by the Government under Order 7 of P.O. 1972. Order 18 of P.O. 16 of 1972 provides that the Government shall maintain a separate account for each abandoned property. P.O. 16 of 1972 also provides that Government shall impose fine on tress passers on abandoned property. In respect of the property in question, the respondents failed to show that the Government took possession in accordance with the provisions of P.O. 16 of 1972. The respondents also failed to show the account for the property in question. If the predecessors of the petitioners were infact unlawfully occupying the property in question, then the Government would have proceeded against them. No such evidence was shown. To the contrary, the petitioners have annexed documents which suggest that even in 1979, the predecessor of the petitioners was the owner on record of the property in question; even in 1979 the Government received land tax from the predecessor of the petitioners. Therefore, the only logical conclusion that this Division has arrived is that the property in question is not an abandoned property and the property was erroneously included in the impugned Gazette. Md. Lutfor Rahman & ors. Vs. Bangladesh & ors., (Civil), 15 SCOB [2021] HCD 21

 

Section 5(1)

Condonation delay of 1155 days–

We do not find any illegality or infirmity in the decision of the High Court Division in refusing to exercise its discretion to condone the delay. The High Court Division rightly took into account the negligence and laches on the part of the appellant who managed to lose the file twice before the appeal was finally lodged after an inordinate delay of 1155 days. We do not find any merit in this appeal which is accordingly dismissed, without any order as to costs. ..... Public Works Department =VS= Md. Nizamuddin, (Civil), 2018 (2) [5 LM (AD) 374] 

 

Section 5(l) 

Notice for surrendering or taking possession-Held: On going through the judgment of the Court of Settlement we find that those notices were issued on the respondent Nos.l-6 to produce their vendor Bib Homier when they had applied for mutating their names after their purchase from Bib Homier. Thus it appears that the Government petitioner did neither treat the disputed property as abandoned property nor nook any step to take over possession of the same till publication of Gazette notification in question. Since no notice as contemplated under Section 5(1 )(b) of the said Ordinance was issued to the respondent Nos.l-6 or any other person inclusion of the disputed property in the "Kha" list of the abandoned buildings is without lawful authority. Bangladesh Vs. Amela Khatoon & Ors. 9 BLT (AD)-98.

 

Sections 5(l)(a) (b) (2), 7 

Settlement the initial presumption is that the enlisted building is an abandoned rroperty and that the onus lies on the claimant to show that it is not an aban­doned property. The onus will be dis­charged by showing that on the date of promulgation of P.O. No. 16 of 1972 the owner of his Attorney or his representa­tive was in possession of the disputed property and was managing the same. Bangladesh vs Mr. K.M. Zaker Hossain (Md. RuhulAmin J) (Civil) 1 ADC 371

 

Section 5(2)

In a situation when the heirs of original allottee were all through in this country the High Court Division rightly found that the property has been wrongly enlisted as abandoned property. This aspect of the matter has not been prop­erly considered by the Court of Settlement". Govt. BMWUD. Dhaka vs Alhaj Shamsul Hoque (Md Ruhul Amin J) (Civil)2 ADC 48

 

Section 5(l)(b)       

Decree of specific performance of contract is no bar to enlistment—

The Court has complete power in its discretion to refuse specific performance of contract if it is opposed to statute or an attempt to evade a statute like P.O. 16 of 1972. As provided in proviso (b) a suit or appeal or application pending in any court in which the vesting in or possession of Government -building as abandoned property under P.O. 16 of 1972 has been called in question praying for return, restoration or transfer by the Government or by any officer to any person shall operate as bar to the inclusion of such building in list "Ka". Decree of specific performance of contract cannot be pleaded as bar for inclusion of the building in the list because such a decree does not determine title and possession of the property in relation to the parties to the contract. CQM.H. Md. Ayub Ali Vs. Bangladesh & others. 1, MLR (1996) (AD) 75.

 

Section 5(1)(a)      

The High Court Division, in our opinion, could itself interfere, notwithstanding correctly observing that there was an alternative remedy under section 7 of the Ordinance, in view of the particular facts of the case. The Ordinance was promulgated on 28 November 1985 and the list under section 5(l)(a) thereof was published in the gazette on 28-4- 1986. Section 7 provides that any person claiming any right or interest in any building which is included in the list may within a period of 108 (perhaps 190) days from the date of the publication of the list in the official gazette make an application to the court of settlement for exclusion of the building from such list, etc. It is not disputed that although the notification was published on 28-4-1986 the court of settlement was constituted on 21-10-1986. The appellant filed the writ petition on 19-8-1986, apparently at a time when the court of settlement was yet to be constituted. The High Court Division may not have admitted the petition at all because of the aforesaid provision but having admitted the same, apparently being aware that the court · of settlement was not constituted then, it was not quite proper to decline interference after three yars on the ground of alternative remedy, more so. having itself noticed that the Ministry of Home Affairs did not even come up with an affidavit to asert the presence of a Police Box as stated by the contesting respondents in their affidavit-in­opposition in spite of a specific direction in that behalf.

Held: In the result, the appeal is allowed declaring the impugned notification has been made without lawful authority and is of no legal effect. Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86.

 

Section 5(1)(b)      

Since no notice as contemplated under section 5(1)(b) of the Ordinance was issued to the respondent or any other person inclusion of the disputed property in the "Kha" list of the abandoned buildings is without lawful authority. Bangladesh vs Amela Khatoon and ors 53 DLR (AD) 55.

 

Section 5(2)

The Ordinance has created a special forum to deal with a property enlisted as abandoned property. A special procedure has also been made therein to decide those cases. A legal presumption has also been attached under section 5(2) of the Ordinance to the list published under sub-section (1) as a conclusive evidence that the enlisted property is an abandoned property. Bangladesh vs Anwar Ahmed and others 51 DLR (AD) 42.

 

Sections 5(2) & 7  

The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant. Government of Bangladesh, represented by the Secretary, Ministry of Works vs Md Jalil & others 49 DLR (AD) 26.

 

Section 5(2)

Section 5(2) of the Ordinance provides that the list published under sub-section (1) shall be conclusive evidence of the fact that the buildings included in the list are abandoned properties and have vested in the Government. Government of Bangladesh -Vs.- A. T. M. Mannan 2 ALR (2013)(AD) 50

 

Article 5(2) 

President’s Order No.16 of 1972

Article 4 and

The Ordinance No. LIV of 1985

Article 5(2)

Abandoned property– In the judgment of the High Court Division it is apparent that it’s clearly misconstrued and misread the relevant law i.e. the provisions of P.O. No.16 of 1972 because property in question was abandoned first in 1972 as owner Mr. Raisat was untraceable from 25th March 1971, after liberation he never took possession, control and manage the property. He also never claimed this property and, as such, the property in question was vested in the Government under Article 4 of the P.O. No.16 of 1972. Thereafter, Gazette dated 23.09.86 vide Ordinance No.LIV of 1985 the property was vested as an abandoned property in the Government. As per provisions of Article 5(2) of the Ordinance No.LIV of 1985 such vesting shall be the conclusive evidence of the fact that buildings included therein are abandoned property. ...Ministry of Housing and Works, Bangladesh =VS= Ala Box, [10 LM (AD) 83] 

Section 5(1)

Having been enlisted in the 'Ka' list of Abandoned Buildings published in Bangladesh Gazette dated 23.09.1986 under serial No.Sutrapur-9 at page No.9762(9) under the provisions of Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (Ordi- nance No.LIV of 1985). Mohammad Abdul Alim VS. Government of Bangladesh (Mohammad Fazlul Karim J) (Civil) 8 ADC 233

Section 5, 6,12

It has been now well settled by different pronouncements of this Division that the onus is on the claimant of the build- ing to prove that the building is not an abandoned property and that the Gov- ernment has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the prop- erty as abandoned property merely be- cause the same is disputed by the claimant. Government of Bangladesh vs. A. T. M. Mannan (Syed Mahmud Hossain J) (Civil) 10 ADC 211

Abdul Jalil Vs. Khorshed Ali, 27 DLR(AD) 143

Civil Revision No.2305 of 1997 making the rule absolute and thus decreeing the suit by setting aside the judgment and decree passed by the appellate court below and affirming the judgment and decree passed by the trial court. Probir Kumar Rakshit vs. Abdus Sabur (Md. Joynul Abedin J) (Civil) 6 ADC 74

Abandoned Building Provision of ordinance No. 54 of 1985

Erred in law in importing a theory of certificate as to the non abandoned character of the suit land and in imputing ill motive. Additional Deputy Commissioner (Rev) Dhaka vs Mst. Farhad Begum (Md. Tafazzul Islam J) (Civil) 1 ADC 256

Section 5(1)(a) (b) (2), 7

Settlement the initial presumption is that the enlisted building is an abandoned rroperty and that the onus lise on the claimant to show that it is not an aban- doned property. The onus will be dis- charged by showing that on the date of promulgation of P.O. No. 16 of 1972 the owner of his Attorney or his representa- tive was in possession of the disputed property and was managing the same. Bangladesh vs Mr. K.M. Zaker Hossain (Md. Ruhul Amin J) (Civil) 1 ADC 371

Section 5, Article 7

Since there was no notice contemplated under Article 7 and there was non-com- pliance of the provision of section 5 of the Ordinance No. 54 of 1985 as no notice under section 5(1) (a) of the Ordinance was ever served and as such the property was wrongly included in the 'ka' list of the abandoned building and the listing as such is undoubtly has been done illegally and without any lawful authority. Abdur Rashid Mollah vs Bangladesh (Mohammad Fazlul Karim J) (Civil) 2 ADC 45

Section 5(2)

In a situation when the heirs of original allottee were all through in this country the High Court Division rightly found that the property has been wrongly enlisted as abandoned property. This aspect of the matter has not been prop- erly considered by the Court of Settlement". Govt. BMWUD. Dhaka vs Alhaj Shamsul Hoque (Md Ruhul Amin J) (Civil)2 ADC 48

Section 5(1)

For enlistment of a property in "ka" list the Government must satisfy the court that the possession of the property was taken over by it and for enlistment in "kha" list the government must establish that it gave notice upon the person in possession of the property to surrender possession before it's enlistment in "kha" list. In these cases neither posses- sion of the property was taken before publication of Gazette Notification wherein the property was enlisted under "ka' schedule nor any prior notice for surrender of possession was served upon the person in possession of the building. In view of these factual posi- tions the Government had no authority to publish the Gazette Notification enlisting the property in question in "ka" schedule and accordingly the learned Judges of the High Court Division rightly declared that the prop- erty in question could not be declared as an abandoned property nor can it be enlisted in 'kha' list of the list of aban- doned property as published in the impugned Gazette Notification. Bangladesh vs Md. Shajahan & Showkat Jong Hsami (A. M. Mahmudur Rahman J)(Civil) 2 ADC 411 

The essence of the matter is that owner must receive back possession of the property actually and effectively from those who took it over as aban doned properties. The actual and effec tive restoration or transfer may take place either by physical delivery of pos session or by other appropriate means Bangladesh vs Gvt. (Mustafa Kamal C J) (Civil)2 ADC 553 the

Section 5, 7

The onus, therefore, is squarely on the claimant of the building to prove that the building is not an abandoned proper- ty. The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treat- ing the property as abandoned property merely because the same is disputed by the claimant. Bangladesh vs Md. Jalil (A.T. M. Afzal C J) (Civil) 2 ADC 684

Section 5-Maintainability of suit in Civil Court-The suit building was included in the list published in the official Gazette in contravention of section 5(1)(a)(b) of the Ordinance and as such the Civil Court had jurisdiction to try the suit. The Court clearly fell into error in holding that because of inclusion of the building in the official Gazette the suit was not maintainable. Md Zaher vs Bangladesh 42 DLR 430.

Section 5-Decree in a suit for Specific Performance of Contract-whether such a decree can be pleaded as a bar for inclusion of a building in the list of abandoned property.

The decree in the suit for specific performance of contract will show that it has only decided the controversy between the vendor and the vendee and directed the vendor to execute the necessary document in favour of the vendee. Such a decree is not the one which is mentioned in Proviso (a) and, as such, the existence of such a decree cannot be pleaded as a bar for inclusion of the building in the list. CQMH Md Ayub Ali vs Bangladesh and others 47 DLR (AD) 71

Section 5-It is a condition precedent that the physical possession of a building must have been taken over by the Government before it could be listed as an abandoned property. Iqbal Ahmed Quraishi vs Bangladesh 45 DLR 416.

Section 5-When the petitioner as well as his vendor are citizens of Bangladesh and the disputed property had been in their possession successively without a notice under President's Order 16 of 1972 and the Rules thereunder the property cannot be treated as abandoned property, Petitioner's assertion that no notice was served at any time to treat the disputed property as an abandoned property having not been controverted we have no option but to hold that inclusion of the disputed property in the list of the abandoned properties published on 23.9.86 in pursuance of section 5 of the aforesaid Ordinance is without jurisdiction. Alhaj Mohammad Rahim uddin Bharsha vs Bangladesh 46 DLR 130.

Section 5-Proviso (a) The ex parte decree obtained by the writ petitioner is a declaratory decree simpliciter without any prayer for recovery of possession, when, admittedly, the writ petitioenr was not in possession thereof. Such a decree is not within the contemplation of proviso (a) to section 5. Bangladesh vs Anwar Ahmed and others 51 DLR (AD) 42.

Section 5-The mere fact that the petitioner was not found by the survey team in the building in question cannot be the basis for holding the petitioner as an imposter of the original lessee. Abul Hossain and others vs Bangladesh and others 53 DLR 94.

Section 5-The next contention as to obtaining a decree for specific performance of contract is of no avail as the Government is not bound by such a decree. Hamayet Uddin Ahmed vs 1st Court of Settlement, Bangladesh Abandoned Building & ors 53 DLR 426.

Section 5-The decision of the court declaring the property as not being abandoned property and excluding the property from the list of abandoned property was sufficient relief and from the date of such judgment the property stood excluded from the list of abandoned properties (Vide 48 DLR 291). Wahidul Haque vs Bangladesh and others 54 DLR 165.

Section 5-After the decision of the courts of law declaring any property as not being abandoned property a further release order of the same property by the government is not necessary. From the date of such judgment the property stands excluded from the list of abandoned properties. Wahidul Haque vs Bangladesh and others 54 DLR 165.

Section 5-No rebuttable evidence could be adduced to show that original owner Yahiya was present in Bangladesh and he occupied, managed or supervised the disputed building when President's Order 16 of 1972 came into operation. Hence, the listing of the property as an abandoned property in the Supplementary Provisions Ordinance, 1985 was lawful as it was an abandoned property by operation of law. Government of Bangladesh vs Ashraf Ali @ Ashraf Ali and another 49 DLR (AD) 161.

Sections 5 and 6-List of abandoned property-In the instant case the suit building was requisitioned before President's Order 16 of 1972 came into force on 10-3-1972. The list of buildings for publication in the official Gazette refers to buildings the possession of which has been taken over as abandoned property or the building in respect of which notice for surrendering or taking possession under PO 16 of 1972 has been issued. The requisition of the property and complete possession thereof having been final on 16-2-1972 and the same having never been taken over as abandoned property, sections 5 & 6 of the Ordinance have no application with regard to the suit building. Md Zaher vs Bangladesh 42 DLR 430.

Sections 5 and 7-The writ petitioners can come directly to the High Court Division for protection of their fundamental right even though an alternative remedy is available. Government of Bangladesh, represented by Ministry of Works and another vs Syed Chand Sultana and others 31 DLR (AD) 24

Sections 5 and 7-The onus is on the claimant of the building to prove that the building is not an abandoned property. The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant Government of Bangladesh vs Md Jalil and others 48 DLR (AD) 10.

Section 5(1)(a)-The High Court Division, in our opinion, could itself interfere, notwithstanding correctly observing that there was an alternative remedy under section 7 of the Ordinance, in view of the particular facts of the case. The Ordinance was promulgated on 28 November 1985 and the list under section 5(1)(a) thereof was published in the gazette on 28-4- 1986. Section 7 provides that any person claiming any right or interest in any building which is included in the list may within a period of 108 (perhaps 190) days from the date of the publication of the list in the official gazette make an application to the court of settlement for exclusion of the building from such list, etc. It is not disputed that although the notification was published on 28-4-1986 the court of settlement was constituted on 21-10-1986. The appellant filed the writ petition on 19-8-1986, apparently at a time when the court of settlement was yet to be constituted. The High Court Division may not have admitted the petition at all because of the aforesaid provision but having admitted the same, apparently being aware that the court of settlement was not constituted then, it was not quite proper to decline interference after three years on the ground of alternative remedy, more so, having itself noticed that the Ministry of Home Affairs did not even come up with an affidavit to assert the presence of a Police Box as stated by the contesting respondents in their affidavit-in- opposition in spite of a specific direction in that behalf.

Held: In the result, the appeal is allowed declaring the impugned notification has been made without lawful authority and is of no legal effect. Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86.

Section 5(1)(b)-Serving notice to a wrong address making no attempt to take possession or to ascertain the status of the property casts doubt as to the bonafide of the respondents' intention to serve a proper and effective notice to surrender the possession of the property included in the 'Kha' list. Such a notice cannot be considered a notice in the eye of law. Syeda Chand Sultana and others vs Goernment of Bangladesh, represented by the Ministry of Works, and others 48 DLR 547.

Section 5(1)(b)-Since no notice as contemplated under section 5(1)(b) of the Ordinance was issued to the respondent or any other person inclusion of the disputed property in the "Kha" list of the abandoned buildings is without lawful authority, Bangladesh vs Amela Khatoon and ors 53 DLR (AD) 55.

Section 5(1)(b) Notice as contemplated under section 5(1)(b) of the Ordinance having not been issued to the respondent inclusion of the disputed property in the 'Kha' list of the abandoned buildings is without lawful authority. Government of Bangladesh and others vs Bibi Marium and others 54 DLR (AD) 100.

Section 5(1)(a)(b) & (2) Ex parte decree for specific performance of contract against the seller whose whereabouts were not known and the transfer on the basis thereof are in contravention of sections 6 and 14 of President's Order 16 of 1972 read with section 5 of Ordinance 54 of 1985 and the same are void and inoperative and need not be avoided. The inclusion of the property in question in the official Gazette as an abandoned property is not hit by the provisos (a) and (b) of section 5(1) of the Ordinance. CQM Md Ayub Ali vs Bangladesh 45 DLR 746.

Section 5(2)-It must be presumed that the law as made is consistent and valid unless the presumption is rebutted. Karamat Ali and others vs Government of the People's Republic of Bangladesh & others 50 DLR 372.

Section 5(2)-Presumption of conclusive- ness of evidence flowing from publication of the disputed house in 'Ka' list of abandoned property when remained unrebutted, the Court of Settlement was justified in holding that the property was rightly enlisted as such. Shamima Khatoon vs Bangladesh 46 DLR 511.

Section 5(2)-Property listed as abandoned property-The burden is on the claimant to prove that it is not an abandoned property. Presumption of correctness of the entries in the Gazette Notification does not absolve the government of disclosing the basis for treating the property as abandoned property when it is disputed. Jalil vs Chairman, Court of Settlement 44 DLR 288.

Section 5(2)-Enlistment as abandoned property-If the criteria set forth in section 5 are not fulfilled in regard to any property, that property cannot be enlisted as abandoned property. The moment it is found that the property is not qualified to be enlisted as abandoned property, the jurisdiction of the Court of Settlement ceases to operate. Abdul Khaleque vs The Court of Settlement 44 DLR 273.

Section 5(2)-The Ordinance has created a special forum to deal with a property enlisted as abandoned property. A special procedure has also been made therein to decide those cases. A legal presumption has also been attached under section 5(2) of the Ordinance to the list published under sub-section (1) as a conclusive evidence that the enlisted property is an abandoned property. Bangladesh vs Amear Ahmed and others 51 DLR

(AD) 42

Section 5(2) The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed. Hamayet Uddin Ahmed vs Ist Court of Settlement, Bangladesh Abandoned Building & ors 53 DLR 426.

Sections 5(2) & 7-The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant. Government of Bangladesh, represented by the Secretary, Ministry of Works vs Md Jalil & others 49 DLR (AD) 26.

Section 5(2), 7

The High Court Division while exercis- ing its jurisdiction under Article 102(2) of the Constitution in respect of the judgment of a tribunal or in other words exercises its jurisdiction in certiorari is certainly not acting as a Court to appeal and to re assess the evidence and finally to arrive at a view different from the tri- bunal in the absence of arriving at a finding that the view taken by the tribu- nal in the background of the materials noticed by its is not legally tenable or logically not well founded. Bangladesh S Rowshan Ara Begum (Md. Ruhul Amin J) (Civil) 3 ADC 210

Section 6     

Abandoned property–– In the writ petition he did not clarify as to how he acquired title in the disputed property. He stated in paragraphs 6 and 7 that he got possession of the disputed land through Court in pursuance of the judgment passed "in Civil Suit No.371 of 1991". This is totally based upon distorted fact. Abdul Wahed Sarder instituted the above suit who got ex-parte decree. The writ petitioner is neither claiming title on the basis of purchase from Abdul Wahed Sarder nor as a successor of Abdul Wahed Sarder. Admittedly he is not the son of Abdul Wahed Sarder. In such view of the matter, Appellate Division finds that the High Court Division upon superficial consideration of the materials on record made the rule absolute. Therefore, the reasons basing upon which the High Court Division declared the impugned notice illegal are not available to the writ petitioner. In view of the above, the High Court Division committed fundamental error in making the rule absolute. .....Jahangir Alam(Md.) =VS= Md. Shamsur Rahman Sarder, (Civil), 2022(2) [13 LM (AD) 212]

 

Section 6 Clause (a)        

Under Clause (a) of section 6 of the Ordinance a suit for specific performance of a contract in respect of a property which has been officially listed as abandoned property is not maintainable in law.

Government of Bangladesh -Vs.- A. T. M. Mannan 2 ALR (2013)(AD) 50

Section 7-Unless the claimant/complainant can prove by filing application under section 7 of the Ordinance before the Court of Settlement within 180 days from the date of publication of such list in the official gazette for exclusion of the same from such list or return or restoration of the same to him on the ground that the building is not an abandoned building and has not vested in the government as the owner's whereabouts are known and she/he did not leave this country during the war of liberation and he/she is a citizen of Bangladesh, the presumption would be that the property is an abandoned property and vested in the government. The writ-petitioner could not prove either of the qualifications to be the rightful owner of the property though he moved the Court of Settlement but the Court of Settlement found the application barred by limitation. Government of the People's Republic of Bangladesh vs Sabia Yasmin Hena (Civil), 73 DLR (AD) 98 

Section 7 and 8     

The application under sub-section (1) of section 7 shall contain the particulars as stipulated in Sub –section (1) of section 8 and also shall be accompanied by all the documents or the Photostat or true copies, as stipulated in Sub-section (2) of section 8 of the Ordinance No. LIV of 1985. In both the Sub-sections (1) and (2) of section 8 of the said Ordinance, the word ‘shall’ has been used i.e. “shall contain” and “shall be accompanied. So the particulars in sub-section (i) and documents as per sub-section (2) of section 8 of the Ordinance are the essential condition in making an application under sub-section (1) of section 7 of the said Ordinance. Without any of the said particulars and documents, it is not possible to file an application under section 7 of the said Ordinance. ...Mrs. Sitara Siddiq Vs Bangladesh & ors., (Civil), 5 SCOB [2015] HCD 57 

 

Section 7(1)

A judgment obtained by playing fraud is a nullity–

A judgment obtained by playing fraud is a nullity and non-est in the eye of law. The writ petitioner, while obtaining the judgment of the High Court Division, suppressed the material document which amounted to fraud. The judgment and order of the Court of Settlement has been obtained by practising fraud and pursuant to the said order, the writ petitioner-respondent managed to get the impugned judgment from the High Court Division, the same is a nullity. The appeal is allowed. The judgment and order of the High Court Division is hereby set aside. .....Ministry of Housing & Public Works =VS= M/S. Hanif Brothers, (Civil), 2018 (2) [5 LM (AD) 92] 

 

Section 7     

Abandoned property– Unless the claimant/ complainant can prove by filing application under section 7 of the said Ordinance of 1985 before the Court of Settlement within 180 days from the date of publication of such list in the official gazette for exclusion of the same from such list or return or restoration of the same to him on the ground that the building is not an abandoned building and has not vested in the government as the owner's whereabouts are known and she/he did not leave this country during the war of liberation and he/ she is a citizen of Bangladesh, the presumption would be that the property is an abandoned property and vested in the government. On the contrary the present appellant produced a good number of papers to show that after taking over the property and publishing the same in the "Ka" List the property has been leased out by the Government to different lessees on receipt of rents and lastly the same has been allotted to a widow of a freedom fighter who while residing there died in the said property and her successor, as a subsequent allottee, is in possession of the same. Hence Appellate Division is of the view that the High Court Division did not consider either of the aforementioned aspects and exceeded its jurisdiction under Article 102 of the Constitution to make the Rule Nisi absolute by the impugned judgment and order which is liable to be interfered with by this Court. .....Ministry of Works, Bangladesh =VS= Sabia Yasmin Hena, (Civil), 2022(2) [13 LM (AD) 21] 

 

Article 7-The Court of Settlement has power to decide the right or interest of any aggrieved person in respect of abandoned buildings but no right of appeal or revision has been afforded to an aggrieved person against any order or judgment passed by a Court of Settlement. Md. Shahidul Haque Bhuiyan and others Vs. The Chairman First Court of Settlement and another (Civil) 23 ALR (AD) 114

Section 7-Unless the claimant/complainant can prove by filing application under section 7 of the Ordinance before the Court of Settlement within 180 days from the date of publication of such list in the official gazette for exclusion of the same from such list or return or restoration of the same to him on the ground that the building is not an abandoned building and has not vested in the government as the owner's whereabouts are known and she/he did not leave this country during the war of liberation and he/she is a citizen of Bangladesh, the presumption would be that the property is an abandoned property and vested in the government. The writ-petitioner could not prove either of the qualifications to be the rightful owner of the property though he moved the Court of Settlement but the Court of Settlement found the application barred by limitation. Government of the People's Republic of Bangladesh vs Sabia Yasmin Hena (Civil), 73 DLR (AD) 98

Section 7- The Settlement Officer was not authorized to declare any property as an abandoned property under P.O.16 of 1972 and that except those properties which were listed in the Gazette notification under the Ordinance No.54 of 1985, no further property could be declared as abandoned property....Government of Bangladesh -VS- Mir Md. Imam Hossain, [8 LM (AD) 176]

Section 7(1) A judgment obtained by playing fraud is a nullity- A judgment obtained by playing fraud is a nullity and non-est in the eye of law. The writ petitioner, while obtaining the judgment of the High Court Division, suppressed the material document which amounted to fraud. The judgment and order of the Court of Settlement has been obtained by practising fraud and pursuant to the said order, the writ petitioner-respondent managed to get the impugned judgment from the High Court Division, the same is a nullity. The appeal is allowed. The judgment and order of the High Court Division is hereby set aside. Ministry of Housing & Public Works =VS= M/S. Hanif Brothers, [5 LM (AD) 92]

Section 7     

Court of Settlement not to decide title—

Court of Settlement is not a court having jurisdiction to decide title of the contending parties. It is vested with the jurisdiction only to decide whether the disputed property is abandoned property or not. Government of Bangladesh Vs. Chairman, Court of-Settlement 50 DLR (AD) 93.

 

Section 7     

Decision given by Court of Settlement not properly constituted—

If the court of settlement was not properly constituted the only resultant conclusion is that the matter was not legally disposed of by that court and should be taken to be pending. Hasina Khatun and others Vs. Bangladesh & Others. 48 DLR (AD) 13.

 

Section 7     

Decision of the civil court is binding upon court of Settlement and the party as well—

The decision of the civil court with regard to the nature of the property and plaintiffs claim thereto is not only binding upon the present petitioner but also upon the court of Settlement. Moinuddin (Md.) Vs. Bangladesh and another- 48 DLR(AD) 56.

 

Section 7     

For excluding his purchase property from the ‘Kha’ list of abandoned properties published in the Bangladesh Gazette– The said facts were required to be urged evidentially before the courts below. Unless such a factual foundation is available it is not possible to decide such a mixed question of law and facts. Therefore, such a mixed question of law and facts should not be allowed to be raised at the time of final hearing of appeal before this Division. It is apparent that the decision of the Court of Settlement is based on mere speculation or mere suspicions having no quality affording proof of evidence. There is no substantial evidence to rebut the claim of PW.2 Salma Khatun who in her deposition asserted that her father died in Dhaka in 1972 leaving behind her as only heir to succeed. Appellate Division finds no merit in the appeal. Accordingly, the appeal is dismissed. The judgment and order dated 07.04.1997 passed by the High Court Division in Writ Petition No.784 of 1991 is hereby maintained. .....Chairman, Court of Settlement =VS= Moulavi Syed Karim, (Civil), 2022(1) [12 LM (AD) 87] 

 

Section 7     

Abandoned Buildings (Supplementary Provision) Ordinance

Section 7 read with

President Order 16 of 1972

Article 2(1)

The Settlement Officer was not authorized to declare any property as an abandoned property under P.O.16 of 1972 and that except those properties which were listed in the Gazette notification under the Ordinance No.54 of 1985, no further property could be declared as abandoned property. …Government of Bangladesh =VS= Mir Md. Imam Hossain, (Civil), 2020 (1) [8 LM (AD) 176] 

 

Ordinance No.54 of 1985

Section 7 

The writ petition was filed challenging the legality of the judgment dated January 3, 1988 of the Court of Settlement in Case No. 119 of 1987 (Kha-145-Tinshed Colony, Block-D), Quarter No. 169 (Holding No. 38), Tinshed Colony, Mohammadpur, Dhaka. The said case was filed chal- lenging the listing of the property in the 'Kha' list and publishing thereof in the Bangladesh Gazette (Extra-Ordinary) dated September 23, 1986. Rowshan Ara Begum vs. The Secretary, Ministry of Works (Md. Ruhul Amin J) (Civil) 4ADC 876

 

Ordinance No.54 of 1985

Section 7 

The writ petition was filed challenging the legality of the judgment dated January 3, 1988 of the Court of Settlement in Case No. 119 of 1987 (Kha-145-Tinshed Colony, Block-D), Quarter No. 169 (Holding No. 38), Tinshed Colony, Mohammadpur, Dhaka. The said case was filed challenging the listing of the property in the 'Kha' list and publishing thereof in the Bangladesh Gazette (Extra-Ordinary) dated September 23, 1986. Rowshan Ara Begum vs. The Secretary, Ministry of Works (Md. Ruhul Amin J) (Civil) 4ADC 876

 

Ordinance 54 of 1985

Section 7 

Abandoned property in 'Ka' list. On this score we are of the view that the judgment and order of the High Court Division in setting aside the judgment and order of the Court of Settlement cannot be found fault with. Regarding the emphasis laid by the learned Attorney General that the High Court Division cannot re-assess the evidence on record and base its judgment on fresh appreciation of evidence we do not dis- agree. Bangladesh represented by the Secretary vs. Miss Nasima Khatoon (Amirul Kabir Chowdhury J)(Civil 4ADC 901

 

Ordinance No. 54 of 1985

Section 7

Challenged the judgment and order of the Court of Settlement. Recommended for release of the same 10 the Commissioner of Chittagong Division from the list of abandoned buildings. The further case is that Md. Shafi and she are Bangladeshi nationals by birth and hence no permission for transfer of the property is required but still the building was not released and she was constrained to file the case before the Court of Settlement which after hearing arbitrarily dismissed the case. Government of Bangladesh vs. Rabaya Begum & another (M.M. Ruhul Amin J)(Civil) 4ADC 863

Section 7-The petitioner cannot invoke the writ jurisdiction at the first stage without exhausting the other remedy provided for in the Ordinance (LIV of 1985).

The Court of Settlement has been given the specific power to exclude the disputed property from the list (a). The petitioner has been given a specific right to argue before the Court of Settlement that the building is not an abandoned property, that it was not vested in the Government or that right or interest in the building has not been affected by the provisions of President's Order No. 16 of 1972. When the statute has devised an alternative forum for giving complete relief to the petitioner, it is not understood how the petitioner can invoke this jurisdiction at the first stage without exhausting the remedy provided for in the Ordinance. Begum Lutfunnessa vs Secretary, Ministry of Home & others 41 DLR 193.

Section 7-One need not seek remedy before the Court of Settlement once his right and status in respect of a disputed house was decided by a legally constituted forum. Sarwari Begum vs Bangladesh 45 DLR 571.

Section 7-If the Court of Settlement was not properly constituted as alleged by the petitioners and accepted by the High Court Division then the only conclusion should have been that the matter was not legally disposed of by that Court and should be taken to be pending. Hasina Khatoon and others vs Bangladesh and others 48 DLR (AD) 13.

Section 7-The minimum the government must show in a proceeding where publication of the list of property taken over as abandoned property is challenged by its owner is that the possession of the property has at some point of time been taken over as abandoned property. Karamat Ali and others vs Government of the People's Republic of Bangladesh & others 50 DLR 372.

Section 7-Decision of the civil Court with regard to the nature of the property and also the plaintiff's claim thereto is not only binding upon the present petitioner but also upon the Court of Settlement. Moinuddin (Md) vs The People's Republic of Bangladesh, represented by the Secretary Ministry of Works and another 48 DLR (AD) 56.

Section 7-Since the property in question never vested in the Government as abandoned property the question of limitation in filing of the case does not arise. People's Republic of Bangladesh, represented by the Secretary, Ministry of Public Works, Secretariat Building vs Chairman Court of Settlement and others 49 DLR 560.

Section 7-The lease deed together with other documents showing the continuity of petitioner's possession and the failure of the government to show any basis of the owner of the property in dispute leaving the country and acquiring citizenship of other country go to show the title of the petitioner in the property and renders its enlistment in the "Ka" list denude of any legal authority. Shamsul Haque vs. Court of Settlement and others 49 DLR 469.

Section 7-The High Court Division appears to have misconstrued and misconceived their jurisdiction under Article 102 in holding that the writ petition is maintainable, where the writ petitioner had already availed of the special remedy provided under section 7 of the Ordinance. Bangladesh vs Anwar Ahmed and others 51 DLR (AD) 42.

Section 7-The plea taken by the respondent. depending on the decisions in 42 DLR (AD) 86 and 51 DLR (AD) 25 that the writ petitioner could invoke the writ jurisdiction without having recourse to the Court of Settlement does not seem tenable because the jurisdiction of the Court of Settlement in this particular case in including the property in the list of abandoned properties cannot be said to be ex facie void. Bangladesh and another vs Habib Zamil 52 DLR (AD) 174.

Section 7-Since the Court of Settlement has already directed for exclusion of the property from the list of abandoned property no further direction by the High Court Division is necessary to the same effect. The respondents are directed to restore possession of the property to the petitioner evicting the occupier respondent. Akhtar Hossain vs Bangladesh, and others 52 DLR 148.

Sections 7 and 9-Court of Settlement- Validity of its orders-In view of the provision for constitution of the Court of Settlement order passed by the court in the absence of one member is not lawful. No provision has been made in the Ordinance that the order passed in the absence of one member shall not be invalid. It is clear that it was the intention of the Legislature that the Court of Settlement must be constituted to hear and dispose of matters with 3 members including the Chairman. Unless an order is passed by a properly constituted court it has no effect and it is no order in the eye of law even if it is otherwise proper. Mst Fatima Begum vs Bangladesh 42 DLR 342

Sections 7 and 10(5) There being no scope for dismissal of the case for default, the Court of Settlement acted without jurisdiction in dismissing the case for default. The case is sent back on remand for disposal in accordance with law. Shamim Begum vs Chairman, Court of Settlement and others 52 DLR 456,

Section 7(1)-We failed to understand under what reason the period of limitation has been fixed at 108 days. Either it would be one month, three months or six months but section 7(1) has provided the limitation of 108 days which means 3 months 18 days and such period of limitation could nowhere be found in the Limitation Act or in any other special Act providing limitation, this may be through inadvertence or mistake that 180 day's has been printed as 108 days. Jamal Hossain (Md) and others vs Chairman, 2nd Court of Settlement, Abandoned Buildings, Dhaka and others 52 DLR 67.

Section 7(3) 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. Nasir Hossain (Md) vs Bangladesh and others 49 DLR 557.

Section 7(3) An abandoned property in possession of any person can only be included in the list of "Abandoned properties", called "Kha" list, in respect of which notices for surrender have been issued and possession taken over as "Abandoned Property". Lalima Begum and another vs. Chairman, Court of Settlement, Ist Court Dhaka and another 49 DLR 325.

Section 9(2)

Court of Settlement shall consist of a Chairman and two other members who shall be appointed by the Government. Secretary, Ministry of Public Works vs Court of Settlement (I st Court) Bangladesh Abandoned Building 51 DLR 396.

 Section 9(2) Court of Settlement shali consist of a Chairman and two other members who shall be appointed by the Government. Secretary, Ministry of Public Works vs Court of Settlement (1st Court) Bangladesh Abandoned Building 51 DLR 396.

Section 10-High Court Division in exercise of its writ jurisdiction cannot sit as a Court of Appeal over the judgment of the Court of Settlement for resettling questions of fact. Mostafa Kamal (Md) vs First Court of Settlement and others 48 DLR (AD) 61.

Section 10-Decree by Civil Court- Whether Court of Settlement is competent to disturb it-The decree is binding on the Govern- ment until it is set aside by a court of competent jurisdiction. A party to the suit cannot say that an agreement, which was the basis of the suit, was forged. The Court of Settlement has no power to set aside a decree of the civil Court but it has the jurisdiction only to decide the matter on the basis of papers produced and so the decree stands against the Government. Rahela Khatun vs Court of Settlement 45 DLR 5.

Section 10-By not deciding the case on merit the Court of Settlement acted illegally and without lawful authority. Government of Bangladesh and others vs Md Hafizur Rahman and another 53 DLR (AD) 99.

Section 10(2) Court of Settlement- Jurisdiction-The Court of Settlement is competent and within its jurisdiction to allow the prayer of any petitioner to exclude a building from the list of abandoned buildings and order the building to be restored to him. Abdul Quddus va Bangladesh 44 DLR 484.

Section 10(5)-Dismissal of case for default whether permissible-The Court of Settlement is not empowered to dismiss the case pending before it for default simpliciter. The law requires a decision on the issue raised the same having not been given, the case must be sent back for trial. Chand Miah Talukder vs Chairman, Court of Settlement and others 45 DLR 304.

Section 10(5)-The presumption of correctness of the entries in the Gazette Notification does not absolve the Government from disclosing the basis of treating the property as abandoned when it is disputed. Nurul Hoque vs Bangladesh 46 DLR 601.

Section 10(5) The denial of a fair trial will only arise if a proper opportunity is not afforded to the person for producing his evidence or any evidence sought to be adduced by him is unreasonably shut out or he is not given a reasonable opportunity of being heard. A Court of Settlement under section 10(5) is obliged to make such enquiry as it may deem necessary and give reasonable opportunity to the parties concerned of being heard and to produce evidence, both oral and documentary, if any. CQMH Md Ayub Ali vs Bangladesh and others 47 DLR (AD) 71.

Section 10(5) There is no scope for the Court of Settlement to pass an ex parte order of dismissal for default as the Court of Settlement is required to give a decision on the issues raised by the parties. Sukurjan Bibi vs Chairman, Court of Seulement, Dhaka 54 DLR 215.

Section 10(5)-The petitioner ought to have been given chance to adduce evidence to prove the deed of sale in his name-His prayer should not be thrown away on the plea that his Advocate previously expressed intention not to examine any further witness. Abdur Rahman vs Government of Bangladesh and another 55 DLR 196

Sections 10(5) and (6) The decision of the Court of Settlement declaring the disputed house as not being abandoned property and excluding the house from the 'Ka' list of abandoned property is sufficient relief and from the date of judgment the property is not an abandoned property and it stands excluded from the list of abandoned buildings, whether the Government by a further notification excludes it from the list of abandoned buildings or not. Akbar Hossain (Md) vs Bangladesh and others 48 DLR 291.

Section 10(6) There is no provision in this Ordinance that after the decision of the Court of Settlement the Government is required to make a further notification in the official Gazette notifying that the property has been excluded from the list of abandoned buildings. Akbar Hossain (Md) vs Bangladesh and othes 48 DLR 291.

Section 10   

High Court Division not a court of appeal against judgment of Court of Settlemnt—

The High Court Division in exercise of its Writ jurisdiction can not sit as a court of appeal over the judgment of the Court of Settlement and resettle the question of facts. Mustafa Kamal (Md.) Vs. First Court of Settlement and others. 48 DLR(AD) 61.

 

Section 10   

Rent actually received by the Government from the date of unauthorised occupation till the date of restoration of possession be paid and vacant possession of the property be restored to the respondent as directed by the High Court Division.

Government of Bangladesh, represented by the Secretary, Ministry of Housing and Public Work and others vs Md Javed Alam 56 DLR (AD) 21.

 

The Abandoned building (Supplementary provisions) ordinance (LIV of 1985)

Section 10(5)

When his possession in the case proper- ty has been proved on the basis of the deeds of agreement, the last one being executed in February, 1970, there is no scope of enlisting the case property in the "Ka" list as abandoned property. Bangadesh. vs The Chairman, Ist Court of Settlement, (Md. Hamidul Haque J) (Civil) 2 ADC 346

Section 10(5)        

The Court of Settlement dismissed the case for default although the law requires a decision is to be given as to whether the enlistment of the abandoned building had been done legally or not- The High Court Division rightly sent the case back on remand for deciding the issue in the light of the observation made.

Government of the People's Republic of Bangladesh and another vs Md Shamsul Haque and anr. 56 DLR (AD) 101.

 

Section 10(5)        

The denial of a fair trial will only arise if a proper opportunity is not afforded to the person for producing his evidence or any evidence sought to be adduced by him is unreasonably shut out or he is not given a reasonable opportunity of being heard. A Court of Settlement under section 10(5) is obliged to make such enquiry as it may deem necessary and give reasonable opportunity to the parties concerned of being heard and to produce evidence, both oral and documentary, if any.

CQMH Md Ayub Ali vs Bangladesh and others 47 DLR (AD) 71.

 

In our view, the petitioner had rightly approached the Court of Settlement, Dhaka for releasing the property in question from the Kha list of Abandoned Buildings. However, as his case was found to be barred by limitation and since he had no other equally efficacious remedy to enforce his rights, the petitioner was entitled to invoke the writ jurisdiction. ...Abdul Jalil Biswas Vs. Bangladesh & ors, (Civil), 3 SCOB [2015] HCD 47