Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Abandoned Buildings (Supplementary Provision) Ordinance (LIV Of 1985)
Section/Order/Article/Rule/Regulation Head Note
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. ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

Sections 5(l)(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 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 ....View Full Judgment

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 ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

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] ....View Full Judgment

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 ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Abandoned property–
The disputed property was enlisted in the ‘Ka’ list of the abandoned properties so it is to be presumed that the same was enlisted rightly and the Government has been possessing the same. The onus is upon the writ petitioner to prove that the same is not an abandoned property.
The materials on record, it is apparent that writ petitioner Md. Tarique Sultan never appeared before the Court and those three persons namely, (1)Rashed Zahid, (2)Firoza Begom and (3) Shamsun Nahar, creating some documents, attempted to get the disputed valuable property released
Facts clearly questioned the identity of the writ petitioner. Though the papers produced in the High Court Division were highly doubtful, the High Court Division, ignoring those aspects, erroneously believing the papers released the property, in question. The civil for leave to appeal is disposed of. …Ministry of Works, Bangladesh =VS= Tariq Sultan(Md.), (Civil), 2019 (2) [7 LM (AD) 200] ....View Full Judgment

Abandoned property–
The High Court Division only could interfere with the finding of the Court of Settlement, if could be shown that the tribunal had acted without jurisdiction or made findings upon no evidence or without considering any material evidence causing prejudice to a party or it had acted malafide or in violation of any principle of natural justice. The High Court Division has failed to appreciate any such lacking in the judgment of Settlement Court. …Murtuza Shah(Md.) =VS= Ataharul Haque, (Civil), 2019 (2) [7 LM (AD) 158] ....View Full Judgment

Abandoned property–
The High Court Division found that the certificate issued by the Sub-Divisional Magistrate, the competent authority proved that the property is not an abandoned property. The High Court Division observed that the Government did not file any affidavit-in-opposition controverting the statements made in the writ petition and, as such, it could safely be presumed that the appellants had accepted the statements made in the writ petition.
The Court of Settlement held that there was no evidence whatsoever oral or documentary to prove the oral gift by Mr Dossani in favour of Mrs Gulbanu on 1-7-1962. In order to prove the oral gift, the writ-petitioner filed an affidavit sworn by Mr Dossani on 13-10-1971 (Annexure-D to the writ petition). Having gone through the affidavit, we find that this affidavit was sworn before a Magistrate at Karachi, Pakistan then an enemy country at war with Bangladesh. There is no explanation for the long gap of 9 years between the alleged oral gift and the affidavit.
The findings arrived at and the decision made by the Court of Settlement have been based on proper appreciation of materials on record.
But the findings and decision made by the High Court Division having not been based on proper appreciation of materials on record call for interference.
We find substance in this civil appeal. Accordingly, this appeal is allowed without any order as to costs and the impugned judgment delivered by the High Court Division is set aside and the judgment and order passed by the Court of Settlement is restored. …Ministry of Works, Bangladesh =VS= Abdul Mannan(Md), (Civil), 2019 (2) [7 LM (AD) 323] ....View Full Judgment

Abandoned building–
The High Court Division in exercise of its writ jurisdiction cannot sit as a court of appeal over the judgement of the Court of Settlement for re-settling the questions of fact. In that case also the Court of Settlement on consideration of the materials on record arrived at a finding that the petitioner in that case was not the daughter and heir of the original lessee and that she had not been in possession of the house in question at the relevant time. The respondent failed to prove her claim to be the heir of the original allottee and also that the building was unlawfully declared abandoned. She could not prove that she was in possession of the building. The Court of Settlement, having called the relevant records for the building in question, came to a finding that the building was in the possession of the Government and declared it as having been lawfully declared as abandoned property. We find merit in the appeal, which is accordingly allowed, without however, any order as to costs. The impugned judgement and order of the High Court Division is set aside. .....Government of Bangladesh =VS= Musammat Amikun, (Civil), 2018 (2) [5 LM (AD) 1] ....View Full Judgment

Abandoned Building–
The respondent purchased the disputed house by a registered deed of sale on 29.09.1987 from Lawrence Benefit although the disputed house was listed in the ‘Ka’ list as abandoned buildings by the gazette notification dated 23.09.1986 and therefore, the alleged purchase of the respondent dated 29.09.1987 was illegal.
The High Court Division stated that the respondent produced all the original deeds from her custody. In fact, the respondent filed the certified copy of the deed of lease dated 30.12.1963 and the certified copy of the registered power of attorney dated 21.08.1972. Therefore, the High Court Division erroneously held that all the original deeds in respect of the disputed house were produced from the custody of the respondent.
In the light of the findings, we find substances in this appeal. Accordingly, the appeal is allowed with cost and the impugned judgment is set aside. …Ministry of Housing and Public Works, BD =VS= Shahida Begum, (Civil), 2020 (1) [8 LM (AD) 10] ....View Full Judgment

Abandoned Property–
It appears that the suit property is a Government Khas Mohal property and all parties failed to prove their respective case and unlawful lease extension period of Khadiza already expired. Raisa's lease period expired long before and she is not before us with any claim on the suit property. Therefore, the suit property is now a Khas Mohal property of the Government as the Abandoned Property Authority excluded it from the list of abandoned properties unlawfully and collusively.
We are of the view that Khadiza Islam is not entitled to get any further extension of her lease from the Government. She had no legal right for extension of Raisa's leasehold right at any time. We are further of the view that the Government must take over actual/physical possession of the suit property from Waziuddin/ Khadiza/ the persons/ person, whoever be in possession thereof within 60 days from the date of receiving the copy of this judgment in its present condition. …Noor Mohammad Khan =VS= Raisa Aziz Begum, (Civil), 2020 (1) [8 LM (AD) 248] ....View Full Judgment