Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972
Article 2-Whether a third party has any legal right over the property in question pending settlement case between the admitted allottee owner and Government Lessor.
The Appellate Division held that writ petition by the third party could not be maintainable, rather, it is quite superfluous. In this regard held that before issuing the Rule the High Court Division ought to have gone through the merit of the Writ Petition and if it is apparent from the statement of the Writ Petition that the Petitioner neither aggrieved person nor have any locus standi to file the Writ Petition, such type of Vexatious application should be rejected summarily. Md. Murtuza Shah and another -Vs-Ataharul Haque and others (Civil) 18 ALR (AD) 180-186
Article 4- 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]
Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972
Article 6-Admittedly the disputed property was published in the 'kha' list of the abandoned buildings by Gazette Notification dated 23.09.1986. Therefore, all the permissions accorded by the Ministry of Works and from 23.09.1986 allowing mutation and transfer were void and those orders were obtained by collusion and fraud.
The Appellate Division observed that the crux of the matter is whether the disputed property is abandoned property within the meaning of Abandoned Property (Control, Management and Disposal) Order, 1972 and that the whereabouts of the owners were not in this country on 28th February. 1972. On both counts the Court of Settlement found in affirmative. The first groups of appellants are claiming the property by way of alienation after 28th February, 1972. In Government V. Orex Network Ltd., 10 ADC 1, the claimant claimed the property on the basis of oral gift followed by an affidavit acknowledging the gift on taking prior permission from the Ministry of Works for transfer, and the Ministry on accepting transfer fees mutated the name of the claimant. Three of us (C.J., Md Abdul Wahhab Mia and Syed Mahmud Hossain, JJ.) were members of the Bench in which it was held that 'Admittedly the disputed property was published in the 'kha' list of the abandoned buildings by Gazette Notification dated 23.09.1986. Therefore, all the permissions accorded by the Ministry of Works and from 23.09.1986 allowing mutation and transfer were void and those orders were obtained by collusion and fraud. So, in this case also all the deeds and transfers were collusively made after P.O. 16 of 1972 came into force and these transfers are hit by article 6 of P.O. 16 of 1972. Similarly, Abdus Sobhan failed to substantiate his clean title and possession. He being a citizen of this country ought to have given explanation why he was not in possession in 1972 has he been really inherited the same. Md. Shahidul Haque Bhuiyan and others-Vs- The Chairman First Court of Settlement and another (Civil) 23 ALR (AD) 114
Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972
Section 7-The civil courts have been excluded to take cognizance of any suit for specific performance of contract in respect of any building the possession of which has been taken by the government as abandoned property, or a declaration that the building is not an abandoned property or has been vested in the government under P.O.16 of 1972. Section 7 provides the remedy to the Court of Settlement within a period of one hundred and eight days from the date of publication of the lists in the official Gazette. Md. Shahidul Haque Bhuiyan and others Vs. The Chairman First Court of Settlement and another (Civil) 23 ALR (AD) 114
Article 7- 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, Management and Disposal) Order, 1972
Section 7-While interpreting a non statute clause the court is required to find out the extent to which the legislature intended to give it overriding effect.
In case there is any inconsistency or a departure between a non-obstante clause and other provision, one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail over other clauses.
The Ordinance is a special law and it is promulgated for special objects for special purposes of finally determining the right or interest of any person relating to abandoned buildings situated in urban areas in a summary manner.
The Court of Settlement is not a court invested with all the powers determining the title of the rival claimants. It is a tribunal established to determine whether the building has been legally enlisted as abandoned property or not.
The Appellate Division held that in the cases in hand admittedly there are rival claimants and therefore, the Court of Settlement has no jurisdiction to resolve the dispute of the rival claims of the parties the determination of which requires determination of title in the property. In this regard the learned Counsel of both the parties have made no effort to repel the admitted rival claims made by the parties. They consciously avoided the said point whenever their attention was drawn in that regard. Their reply is that after the order of release the parties will resolve their dispute in appropriate forum. Both the applicant groups claim deletion of buildings from the list of abandoned buildings but they did not clarify to whom the possession will be delivered. Admittedly they are not in possession of the entire buildings which they have admitted. Secondly, both the groups cannot possess the same buildings at a time. They are not claiming joint possession. When there is conflicting title over the disputed property, the remedy lies in a forum other than the one provided by the Ordinance. Md. Shahidul Haque Bhuiyan and others-Vs.- The Chairman First Court of Settlement and another (Civil) 23 ALR (AD) 114
Article 25
The case property belonged to Rafi Ahmed Fidai who got the same by way of allotment from the then Government of East Pakistan. Rafi Ahmed Fidai sold the suit land to Mrs. Zakia Khatoon at and Zakia Khatoon sold the suit property again in favour of the appellant, Mrs. Ambia Khatun. Mosammat Ambia Khatun vs. Bangladesh (Mohammad Fazlul Karim J) (Civil) 7 ADC 655
