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

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

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