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 ....View Full Judgment

Given this Court’s understanding of the essentials of enquiry as to the status of property under the relevant provisions of Ordinance as above explained, it is found that the claimant had duly discharged her onus of proving her case independently of the Government and that in doing so she had by a set of mutually reinforcing evidence produced generally established a continuous scenario of active ownership, occupation, supervision and management of the said property through her principal both before and after the promulgation of P.O. 16 of 1972. There was nothing on record that could have reasonably led the Court of Settlement to find otherwise. However, the Court of Settlement without following a judicial approach in determining the question of facts involved in this case unfortunately passed the Judgment without giving a judicial consideration of the whole dispute between the parties and decided the matter erroneously. By that reason, and by confining this Court’s scrutiny to the objective of finding whether the impugned Judgment is perverse or not, this Court has inevitably arrived at the conclusion that the Court of Settlement’s Judgment and Order dated 22.2.2001 is indeed a highly perverse one being contrary to the facts and circumstances and evidences on record and by that reason we are inclined to interfere with the impugned Judgment of the Court of Settlement as prayed for. ...Shamsun Nahar Begum Shelly Vs. Bangladesh & ors, (Civil), 5 SCOB [2015] HCD 67 ....View Full Judgment

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 ....View Full Judgment

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, (Civil), 2021(1) [10 LM (AD) 83] ....View Full Judgment

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, (Civil), 2021(1) [10 LM (AD) 134] ....View Full Judgment

President’s Order No.16 of 1972
Abandoned property–
36 DLR (AD) 146, that once a Property vests in the Government under Presidents Order No.16 of 1972 no legal proceedings can be taken against such property– In a mortgage the stipulations are to be settled between the mortgagor and mortgagee, the Government has no function in the private mortgage deed, so, the issue to be decided in a such suit for foreclosure between the mortgagor and mortgagee, whether, mortgage is genuine, and stipulations of the mortgage was proved or not, so, even if, in the suit the Government is defendant nothing has to be decided against the Government, in the suit for foreclosure, such a decree in law is not binding upon the Government for the enlisted abandoned property. However, the High Court Division has missed the point as discussed. Therefore, by dint of ex-parte decree in the instant foreclosure suit the writ petitioner did not acquire any right and title in the case property. The judgment of the High Court Division is hereby set aside. ...Ministry of Housing and Works, BD =VS= Md. Shafiqullah, (Civil), 2021(1) [10 LM (AD) 62] ....View Full Judgment

Abandoned property– The writ-petitioner failed prove his right, title and possession in the case land– There is no iota of evidence on record to show that the writ-petitioner or Ghulam Rabbani ever obtained any permission from the housing settlement authority which causes another hurdle on the part of the writ-petitioner. Since the original kabala dated 08.06.1972 has not been produced by the writ-petitioner (present respondent) and since no voter list, birth, death certificate has not been filed, Appellate Division is in hesitation as to whether executant of such kabala is local and resident of this country. From those facts, circumstances and materials on record, it appears that the writ-petitioner failed prove his right, title and possession in the case land and as such, it appears that learned Judges of the Division Bench are not justified in making the Rule absolute. .....Ministry of Works, Bangladesh =VS= Nazirul Hoq, (Civil), 2022(2) [13 LM (AD) 141] ....View Full Judgment

The President’s Order.46 of 1972
Article 27(1)(i)/ (d) & 40(2)(t) r/w
The Bangladesh legal practitioners and Bar Council Rules, 1972
Rule 65A
Appellate Division opinion is as under:
(a) A profession of law being founded on great traditions that it is not a business but a part of a scheme of a welfare State where all segments of public reposed faith in them to protect their fundamental rights, they are answerable to the social conscience of the society and have moderate obligation towards them who are unable to protect their interest.
(b) Lawyers are duty bound to contribute in building social order so that the fruits of the social economic justice reach to the poor segment of people of the country, and therefore, a lawyer owes a duty to be fair not only to his client but also to the society.
(c) Bangladesh Bar Council is rendering public utility service and law cast on this Body in the national hope that the members of legal profession will serve society and keep the cannons of ethics defeating an honourable order.
(d) The Bar Council shall frame Rules with approval of the government to monitor the standard of legal education to be observed by universities and law colleges in Bangladesh and the inspection of the universities and colleges for that purpose in accordance with article 40(2)(t) of P.O.46 of 1972.
(e) The Bar Council shall publish a syllabus to be taught by the universities and law colleges compulsorily which will award LLB honours and pass course degree certificates and that no person shall be allowed to be enrolled as an advocate unless he/she obtains a graduation certificate on law on those subjects in accordance with article 27(1)(i) and (d) of P.O. 46 of 1972.
(f) The Bar Council has exclusive power to recognize a decree in law obtained by any person from any university or college and it has power to curtail/exonerate the power to practice of any person either in the district courts or in the High Court Division.
(g) No private university shall issue Bachelor of Law degree unless such person undergoes four years education in law course and this direction shall have prospective effect. No public or private university shall admit students in bachelor of law course more than 50 (fifty) students in a semester.
(h) The Bar Council has power not to recognize any degree in respect of any student for being enrolled as an advocate who has not studied four years horours course in law along with other subjects in any private university.
(i) No public or private university or law college shall issue any law degree certificate to a student which does not have sufficient number of teachers to teach the law subject, as may be prescribed by the Bangladesh Bar Council.
(j) The Bar Council may limit/increase the age limit of a person to be enrolled as an advocate either in the district courts or the High Court Division by framing rules.
(k) Rule 65A of the Bangladesh legal practitioners and Bar Council Rules, 1972 intravires the constitution and P.O. 46 of 1972.
The Bar Council shall complete the enrolment process of the applicants to be enrolled as advocates in the district courts each calendar year. .....Bangladesh Bar Council =VS= A.K.M. Fazlul Kamir, (Civil), 2017 (2)– [3 LM (AD) 132] ....View Full Judgment

Doctrine of estopple:
It is known to all that Bangladesh at a time suffered so many disadvantages because of lack of electricity supply. It is very much understandable that as against such background this kind of facilities or fiscal benefits have been given by the government through the said SRO. Therefore, we do not find any other appropriate word in any dictionary to describe them by any other term than “incentives”. The ordinary dictionary meaning of the word “incentive” as given by the Oxford Advanced Learner’s Dictionary (new 8th Edition) also supports this view of ours. Thus, it appears that the benefits given by the said SRO were in fact ‘incentives’ given to such establishments who were willing to establish power generation station in the private sector to generate electricity. The very basic term of the contract does also denote that the same was entered into for establishment of power generation plant on rental basis for generation of electricity, and the BPDB also entered into contract under sub-article (5) of Article 10 of P.O. 59 of 1972 to purchase such electricity from the petitioner company in accordance with the said agreement in order to distribute the same in the country. Therefore, while the petitioner was executing the said contract with BPDB in 2008, the contents of the said SRO issued in 1997 were very much within the knowledge of the petitioner, and knowing very well that it would not be able to get any benefit from the said SRO, it executed the said contract. Therefore, we are of the view that since the petitioner entered into contract with a clear declaration that it would not take any benefit from the fiscal incentives already given or to be given by the government in the private power generation sector of the country, it is now estopped from going back and say that it is entitled to such incentives. ...Barakatuallah Electro Dynamics Ltd Vs BPDB & ors, (Civil), 6 SCOB [2016] HCD 56 ....View Full Judgment

State Acquisition and Tenancy Act, 1950
Section 95A
P.O. 88 of 1972
Usufructuary mortgage– The facts of the case of Abdul Khaleque Sarnamat (Supra) are the same and similar of the instant case. In the instant case, the parties agreed to create the mortgage for a period of 2(two) years and the period of re-conveyance expired on the 31st Chaitra, 1376 B.S. corresponding to 18.04.1970, whereas President’s Order No.88 of 1972 came into force on 03.08.1972 and thus the transaction became a past and closed one, so the plaintiff was not entitled to get redemption of the mortgage created by the kabala dated 18.12.1969. But the High Court Division totally misconceived the facts of the case and failed to appreciate the purport and scope of section 95A of the Act, 1950 vis-a-vis the principle of law enunciated in the case of Abdul Khaleque Sarnamat (supra). ...Abdul Hamid Gayeen(Md.) =VS= Abdul Karim Khan, (Civil), 2021(2) [11 LM (AD) 629] ....View Full Judgment

Bangladesh Freedom Fighters Welfare Trust Act, 2018
Section 2(11)
P.O. 94 of 1972
Article 2(h)
Age of freedom fighters;
It is well settled that in exercise of executive functions of the government, the government can issue circulars, notifications, paripatra etc. to keep its work transparent. Such notifications or circular etc. may be issued in order to give benefits of the enlisted freedom fighters, which is no doubt an appreciable job by the government. But in doing so, the government cannot amend the parent law, namely the definition of freedom fighter as provided by Article 2(h) of P.O. 94 of 1972.
When parliament itself cannot fix the age of freedom fighters as the fixing of such age of freedom fighters will be contrary to the Speech of Bangabandhu and the Declaration of Independence by Bangabandhu, which are part of the Constitution, the same Parliament cannot empower the government to fix such age. On this very simple ground, this empowerment “উক্ত সময়ে যাহাদের বয়স সরকার কর্তৃক নির্ধারিত বয়স সীমার মধ্যে” as incorporated in the definition of ‘বীর মুক্তিযোদ্ধা’ under section 2(11) of the Bangladesh Freedom Fighters Welfare Trust Act, 2018 (Act No.51 of 2018), has become untra-vires the Constitution.
It has long been decided by various judicial pronouncements that which you cannot do directly, you cannot do the same indirectly. As stated above, when the Parliament itself cannot fix the age of the freedom fighters even by enactment of law without amending the Constitution, it cannot empower anybody including the government to fix such age of freedom fighters. ...S.M. Sajjad Hossain Vs. Govt of Bangladesh & ors., (Civil), 13 SCOB [2020] HCD 137 ....View Full Judgment