Vested Properties
It appears from the record that the Government has accepted rent from the petitioners up to 1421 BS and since their respective date of purchase, the petitioners are possessing the land by erecting residential houses on payment of revenue rent as per the latest Mohanagar Khatian as evidenced from annexures G to G (iv) respectively of the writ petition. Moreover, the possession of the petitioners has not been disturbed from any quarter in any way. Therefore, it is natural that they had no knowledge about their land being enlisted as vested property until the office of the respondent No.4 refused to accept the rent for the year of 1422 BS. Admittedly, by this time, the last date for filing a suit before the “অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১” expired. As such, they have no other alternative remedy other than filing this writ petition. [73 DLR 110]
As the petitioners have alleged of violation of their fundamental right, namely the right to property under Article 42 of the Constitution of Bangladesh, the present writ petition is very much maintainable. For invoking writ jurisdiction under Article 102 of the Constitution, the petitioners do not require to show alternative, efficacious remedy. In this connection, reliance may be placed on the view of our Apex Court in the case of Government of Bangladesh vs Syed Chand Sultana, reported in 51 DLR (AD) 24, wherein it has been held that:
"The writ-petitioners can come directly to the High Court Division for protection of their fundamental right even though an alternative remedy is available." [73 DLR 110]
In the present case, it appears that the petitioners are in possession and continuously enjoying the case property since long on the basis of their purchase without any interruption of any quarter and they never left the country nor they have been dispossessed from the property in question. In such a situation, inclusion of their property in the "Ka" list of the vested property and treating it as vested property is violative of fundamental right to hold property as guaranteed under Article 42 of the Constitution of the People's Republic of Bangladesh. [73 DLR 111]
It further appears that the Vested Property Case No.523 was started in the year of 1979. It has already been settled by our Apex Court in the case of Saju Hosein vs Bangladesh, reported in 58 DLR 177, that:
"Since the law of enemy property itself died with the repeal of Ordinance No.1 of 1969 on 23-3-1974 no further vested property case can be started thereafter on the basis of the law which is already dead. Accordingly, there is no basis at all to treat the case land as vested property upon starting VP Case No.210 of 1980." [73 DLR 111]
The Vested Property Authority issued notice on 31.08.1978 in VP Case No. 22 of 1978-79 claiming the entire land as vested property, but, after production of the necessary papers by the appel- lants that notice withdrawn. However, the Court of Appeal did not consider these aspects of the case rather, the High Court Division also committed in failing to find out the said error of the Court of fappeal below and there- by committed error in affirming the decision of the Court of appeals ..... (13)
Mostafa Shahriar vs. Mostafa Ahmed (Krishna Debnath J) (Civil) 20 ADC 256
Suit for declaration without further relief not maintainable The Specific Relief Act section 42
It is a suit for declaration that the Vested Property Case is illegal, collu- sive and void. Now that the appellant is not found to have title to the entire suit land the greater part of which is in fact an enemy and vested property, the appellant-plaintiff is not entitled to a decree he prayed for. He may seek rem- edy by way of partition in an appropri- ate forum .....(14)
Md. Sarhab Ali Molla vs. Md. Farid Master (Md. Abu Zafor Siddique J) (Civil) 20 ADC 545