Bangladesh Sugar and Food Industries Corporation Adamjee, Dhaka vs. Respondent: Md. Kashem, Proprietor of Kashem Motor Works and Ors.

Jun 18, 2022

IN THE SUPREME court OF BANGLADESH(HIGH court DIVISION)

Civil Revision No. 4973 of 1999 with Civil Revision No. 4974 of 1999

Decided On: 20.03.2002

Appellants: Bangladesh Sugar and Food Industries corporation Adamjee, Dhaka
Vs.
Respondent: Md. Kashem, Proprietor of Kashem Motor Works and ors.

Hon’ble Judges:Md. Abdul Wahhab Miah, J.

Subject: Corporate Law

Catch Words

Mentioned IN

Acts/Rules/Orders:Code of Civil Procedure, 1908 (CPC) - Order VII Rule 7; Constitution Of The People’s Republic Of Bangladesh - Article 111, Constitution Of The People’s Republic Of Bangladesh - Article 144; Specific Relief Act, 1877 - Section 39; Transfer Of Property Act, 1882 - Section 105, Transfer Of Property Act, 1882 - Section 106, Transfer Of Property Act, 1882 - Section 107

Counsels:
For Appellant/Petitioner/Plaintiff: Mahmudul Islam with Mahbubey Alam, Advocates, for the petitioner in C. Revision No. 4973 of 1999, Farid Ahmed, Deputy Attorney, for the petitioner in Civil Rev. no. 4974 of 1999

For Respondents/Defendant: Rafiqul Haque with Syed A.B. Mahmudul Hoque, Advocates

Citing Reference:

Discussed

 

 4

Dissented

 

 5

Distinguished

 

 1

Case Note:Code of Civil Procedure, 1908Companies ActTransfer of Property ActSections - 105,107The term ‘Allotment’ has been used in the Companies Act in connection with allotment of shares of the company. The term has not been defined in the General Clauses Act. The dictionary meaning of the term ‘allot’ is “to divide as by lot”; “to distribute in portions”, “to parcel out”. The terms ‘lease’, ‘lessor’ and ‘lessee’ have been defined in section 105 of the Transfer of Property Act. The terms “allotment” and ‘allottee’ cannot be synonymous to the terms ‘lease’ and ‘lessee.‘Allotment of a government plot or house means to give a right to a person to enjoy the same on certain conditions and by such allotment no right to permanent nature for perpetual lease can be claimed. The concept of ‘allotment’ is a new device of Government to give the right of enjoyment of the government property to a person, which has its own distinct feature and cannot be equated with the term ‘lease’

Subject Category :
Allotment

JUDGMENT

Md. Abdul Wahhab Miah, J.

  1. These two rules have arisen out of an analogous judgment and are disposed of by this single judgment. The opposite party No. 1 (in both the rules) filed Title Suit No. 144 of 1975 in the court of Subordinate Judge, 3rd court, Dhaka, on 3.9.1975 for declaration that the letter dated 25.8.1975 issued by the defendant No. 1 cancelling his lease/allotment was illegal, void, malafide and of no legal effect, for permanent injunction restraining the defendants from interfering with his peaceful possession in the suit land and for further declaration that the plaintiff with his structures in the suit land was entitled to continue with his lease hold right on payment of usual rent.

  2. The plaint case is that the suit land was leased out to M/S North Bengal Sugar Mills Ltd. But, the said company did not fulfill the terms of the lease for which defendant No. 1 namely, the Government of Bangladesh cancelled the lease. The plaintiff approach the government who gave him understanding that if he could raise the suit land by filling earth and make some tin roof construction at his own cost the suit land would be leased out to him. Accordingly, the plaintiff raised the suit land and made pucca construction with Tin-shed in the latter part of 1970 and since then he has been carrying on his business of workshop in the name and Style M/s Kashem Motor Works. In the meantime liberation movement started and the plaintiffs file regarding lease remained unattended. After the emergence of Bangladesh the plaintiff against approached the government when the suitland was leased out to him at a monthly rent of taka 880/00-The plaintiff was also directed to pay rent from 1st January, 1972 and accordingly, the plaintiff paid Taka 22,000/00 by two installments on 19.2.1974 and on 4.3.1974. The plaintiff in order to construct a building in the suit land sought permission from the government, namely, defendant No. 1 by letter dated 12.4.1974. The plaintiff was given assurance that permission may be given on a revised rent and on suitable terms and conditions and since then no chalan at the old rate was passed. And the plaintiff was awaiting for the order after due process of the file. The lease order was passed by defendant No. 1 through a section officer of the abandoned property section as the suit land was declared abandoned. The government suddenly served a letter dated 25.8.1975 upon the plaintiff which was received by him on 1.9.1975 cancelling the lease/allotment of the suitland was not an abandoned property and the plaintiffs existing structures were illegal. The letter dated 25.8.1975 cancelling the plaintiffs lease hold right over the suit land was illegal, malafide and without lawful authority. The plaintiff raised the suit land and made construction therein by spending taka 60,000/- and he also installed Electric Connection and set up fixtures and fittings at a huge cost. The plaintiff made those constructions with the consent of the government and those structures were neither unauthorized nor illegal and there was no allegation that the plaintiff ever violated any terms of the lease. The defendant No. 1 acted malafide and without lawful authority in cancelling the lease of the plaintiff and as such the plaintiffs was compelled to file the suit.

  3. The suit was heard ex parte on 20th December, 1975. The suit was dismissed by the trial court, against which the plaintiff filed First Appeal No. 161 of 1976 before this court and the said appeal was dismissed on 10.7.1980. Against the said judgment and decree passed in the first Appeal the plaintiff filed Civil Appeal No. 31 of 1981 before the Appellate Division and the same was allowed on 15.1.1982 with the direction as under;

In view of the facts and circumstances stated above, the appeal is allowed and the decisions of the courts below set aside and remanded back to the trial court for disposal after allowing the principal defendant leave to file written statement and in accordance with law. There will be no order as to costs.

  1. Their Lordship of the Appellate Division when remanded the suit made some observations, which will be referred to at the appropriate place. After remand the plaint was amended on 28.12.1987 on which date Sugar and Food Industries corporation was impleaded as defendant No. 5. The suit was contested by defendant No. 1, and defendant No. 5 by filing two separate sets of written statement. After the filing of the written statements the plaint was amended on 21.3.1992 vide Order No. 51 by adding a prayer to the prayer (b) to the effect;

get allotment of the suit property is holding No. 76, Motijheel Commercial Area for 99 years of the lease as khas land of the defendant No. 1, after due notification of his earlier lease order No. APIE-152/73/202(3) dated 10.4.1974 in respect of suit property issued by defendant No. 1 and or to give a direction to the defendant No. 1 to issue the said allotment order in favour of the plaintiff as usually or to pass a decree for both and to communicate the same to the plaintiff accordingly.

  1. In the written statement filed by defendant No. 1 it was contended, inter alia, that the suit was not maintainable and that plaintiff got no cause of action to file the same. The suit land was the khas land of the then Government of East Pakistan and was leased out to North Bengal Sugar Mills (Defendant NO. 4) by a registered deed of lease dated 14.5.58 for 99 years. The said company also constructed some Tin Shed over the suit land. The properties of the said company was declared as Enemy property and the Government took over the same and subsequently handed over same to the East Pakistan Industrial Development corporation. Subsequently, the Government nationalized the said Mill by Presidents order No. 27 of 1972. In the meantime in the 1969 Government cancelled the said lease as the company did not make any construction according to the approved plan and thereby the suit land again became khas land of the Government. On 10.4.74 one section officer of public works Department of the Ministry of Public Works and urban Development allotted the suit land and the temporary Tin Shed standing thereon to the plaintiff fixing monthly rent at Taka 880/- Mistakenly treating the same as an abandoned property on certain terms. One of the terms mentioned in the letter of allotment was that if the plaintiff failed to pay the rent in respect of the suit property the allotment letter will be treated as cancelled and the plaintiff will be liable to be evicted without any notice. Further term was that if the plaintiff sublet any structure of the suit land or change the nature and character thereof his allotment would also be liable to be cancelled. As per the aforesaid terms and conditions of the allotment the plaintiff did not deposit rent of the suit property and sublet the same without the consent of the Government and also changed the nature and character thereof for which his allotment was liable to be cancelled. Subsequently Government found that the suit property was not an abandoned property, rather khas land of the Government and as such the allotment dated 10.4.1974 was cancelled on 25.8.1975 and the plaintiff was asked to handover possession of the suit property to the Government. Against the said order of cancellation of the allotment, the plaintiff filed the suit against defendant Nos. 1-4 without impleading defendant No. 5. As the Government did not file written statement the suit was fixed for ex parte disposal on 20.12.1975. The plaintiff failed to prove his case and consequently the suit was dismissed. Against the said decree of dismissal, the plaintiff filed First Appeal No. 161 of 1976 before tins court and a Division Bench, which heard the said appeal, dismissed the same on 10.7.1980 affirming the decision of the trial court. Against the said judgment and decree passed in the first appeal, the plaintiff filed Civil Appeal No. 31 of 1981 before the Appellate Division which was allowed on 15.1.1982 and the suit was remanded to the trial court for disposal after giving opportunity to defendant No. 1 to file written statement. After remand defendant No. 5 was added on 28.12.1987. Though for violation of the terms and conditions of the letter of allotment, the allotment stood cancelled on 25.8.1975 and the same was communicated to the plaintiff on 01.9.1975, yet, again the plaintiff was informed by a letter dated 21.7.1980, that his allotment dated 10.4.1974 will be treated as cancelled with effect from 1.9.1980 and within the said time the plaintiff was asked to vacate the suit property. After cancellation of the lease of North Bengal Sugar Mills Ltd. defendant No. 5 applied to the government for granting it lease for 99 years and accordingly, the same was granted to it on 13.3.1975. As per allotment lease deed was registered infavour of the defendant No. 5. Since the plaintiff did not vacate the suit property he was evicted there from by the government on 16.11.1982 and possession of the suit property was handed over to defendant No. 5 on the same date and they are possessing the suit land and have taken preparation to make construction of multi stored building. In the facts and circumstances of the case as asserted in the written statement the suit was liable to be dismissed.

  2. In the written statement filed by defendant No. 5 it was contended, inter alia, that the suit property being treated as abandoned property was listed in the list of abandoned property and a litigation was going on in respect of the same in between defendant No. 5 and the government of Bangladesh. The suit property was leased out to North Bengal Sugar Mills Ltd. by the then Government of East Pakistan and after the Indo-Pak War of 1965 the same was declared as Enemy Property and the then government took its management. Thereafter, the suit property was handover to the then East Pakistan Industrial Development corporation. The then Government of East Pakistan cancelled the lease of North Bengal Sugar Mills as they did not make any construction over the suit plot as per approved plan and in view of such cancellation the same became khas land of the government but possession of the suit property remained with said North Bengal Sugar Mills. After the Liberation of Bangladesh North Bengal Sugar Mills was nationalized and its management vested in Bangladesh Sugar Mills corporation. Thereafter, Government of Bangladesh by a registered deed of lease dated 11.7.1975 granted lease of the suit property in favour of this defendant for 99 years and the Ministry of Works and Urban Development handed over possession of the suit property in its favour on 16.11.1982 and since then it is possessing the entire suit property being holding No. 76, Motijheel Commercial Area by mutating its name, paying rent. The defendant have undertaken plan to construct multi storied building therein. The Defendant have undertaken plan to construct multi storied building therein. The plaintiff had/has no right, title and legal possession in the suit property and as such the suit was liable to be dismissed.

  3. Before the trial court the plaintiff examined himself as P.W. 1 and filed documents in supported of his case which were marked as Exhibits 1, 2, 3, 4-4(ka), 5, 6-6(Ka), 7-11, 11(1)-12(2), 11(3), 12-12(1). On behalf of the contesting defendants, namely, the Government of Bangladesh one witness was examined and defendant No. 5 two witnesses were examined. The defendants also filed documents in support of their respective cases. The documents filed on behalf of defendant No. 1 were marked as Exhibits Ka-Cha. But unfortunately the documents filed on behalf of defendant No. 5 were not maked as exhibits although D.W. 2 proved the same. The trial court by its judgment and decree dated 30.3.1995, decreed the suit in the following terms:

  4. Against the said judgment and decree of the trial court two sets of appeals that is one by the Government of the peoples Republic of Bangladesh being Title Appeal No. 123 of 1995 and the other at the instance of defendant No. 5, namely, Bangladesh Sugar and Food Industry corporation being Title Appeal No. 114 of 1995 were filed before the District Judge, Dhaka. Eventually, the said appeals were heard by the learned Additional District Judge, First court, Dhaka who by the impugned judgment and decree dismissed the appeals and affirmed those passed by the trial court. Against the said judgment and decree of affirmance these rules have been obtained by the respective petitioners.

  5. Mr. Mahmudul Islam, learned Advocate appearing with Mr. Mahbube Alam, learned Advocate for the petitioner in Civil Revision No. 4973 submitted that both the courts below failed to consider the most important and relevant condition of the letter of “Allotment’, dated 10.4.1974, namely, term(e) in its proper perspective both on factual and legal implication which in unambiguous language stipulated that allotment could be cancelled on months notice if and when the house/property was released or otherwise disposed of by the government. He submitted that term(e) prima facie shows that the government reserved its right to dispose of the suit property subject to the condition that before cancelling the allotment months notice would be given and the plaintiff having accepted the allotment on such terms and conditions could not have any grievance and claim that he was entitled to get permanent lease of the suit property. Mr. Islam submitted that letter cancelling the allotment was given on 25.8.1975, which was received by the plaintiff on 1.9.1975 and since then the plaintiff got enough time to vacate the suit property and as such the plaintiff could not have any grievance even if months notice was not given before the cancellation of the said allotment. Mr. Mahmudul Islam further submitted that after cancellation of the allotment plaintiff occupation in the suit property became absolutely illegal and unauthorised and as such he was not entitled to take recourse to law for protecting his illegal possession. Mr. Mahmudul Islam further submitted that in view of the terms (e) as embodied in the letter of allotment cancellation of the allotment was absolutely legal. Mr. Islam lastly submitted that a notorious fact in the meantime took place, namely, that the suit property was leased out to defendant No. 5 for 99 years by executing and registering a lease deed on 11.7.1975 and possession of the same was also delivered to it on 16.11.1982, but no relief was prayed for against the said deed, so also for recovery of khas possession of the suit property, suit itself was not maintainable in law, both the courts below committed error of law resulting in an error in the decision occasioning failure of justice in decreeing the suit and as such interference is called for by this court.

  6. Mr Farid Ahmed learned Deputy Attorney General appearing for the petitioner in Civil Revision No. 4974 of 1999 adopted the argument of Mr. Mahmudul Islam and submitted that the suit be dismissed.

  7. Mr. Rafiqul Haque, learned Advocate appearing for the plaintiff opposite party in both the rules with Mr. Syed A.B. Mahmudul Hoque, on the other hand, terming the allotment as a lease submitted that the cancellation of the petitioners lease was ex-facie illegal and malafide as before the cancellation of the lease, the government allotted the same again in favour of defendant No. 5. On 13.3.1975 to give lease for 99 years and then executed the registered lease deed on 13.7.1975, whereas, lease was cancelled on 25.8.1975 copy of which as received by the referring to Article-144 of the Constitution of the People’s Republic of Bangladesh and Section 105 of the Transfer of Property Act submitted that by the lease dated 10.4.1974 the plaintiff acquired a vested legal right in the suit property to carry on his business in the name and style “Kashem motor Works” and his lease could only the government could allot it to other person. Mr. Rafiqul Haque submitted that the Appellate Division in Civil Appeal No. 31 of 1981 which has been reported in BCR 1983(AD)46 having accepted the plaintiff as a lessee’ and the ‘allotment dated 10.4.1974 as a lease there is no scope to decide otherwise by this court. In support of his contention he referred to article-111 of the Constitution of the People’s Republic of Bangladesh and submitted that the court below rightly decreed the suit relying on the observations and findings of the Appellate Division. Mr. Rafiqul Hoque in support of his contentions referred the case of Mrs. Husna Mansur and others Vs. Secretary Ministry of Public Works and Urban Development reported in 34 DLR(AD)35, the case of Mr. Ismail and others Vs. Trans Oceanic Steamship Co. Ltd. through its Agent Messrs Bird and Co. (Pak) Ltd and others reported in 17 DLR (Dhaka) 269.

  8. Mr. Mahmudul Islam in reply to the submission of Mr. Rafiqul Haque submitted that here in this case the lease of the suit property having been given in favour of a statutory body the question of malafide does not arise at all. Mr. Islam further submitted that judgment of the Appellate Division shall be binding only when two conditions are present, one being that if the principle of Resjudicata can be made applicable and the other being that if a principle of law has been enunciated. But, here in this case the Appellate Division neither enunciated law nor decided the fact, namely, whether the letter of allotment in respect of the suit property given to the plaintiff was a lease or whether the allottee was a lessee thereof and as such observation made by the Appellate Division in the suit appeal can not be said to be binding. In support of his contention he has referred the case of Dalbir Singh and other Vs. State of Punjab reported in AIR 1979 (SC) 1384 and the case of Krishena Kumar. Vs. Union of India and others reported in AIR 1990 (SC), 1782.

  9. Now let me consider the respective submissions of the learned Advocates. From the reading of the judgments of the courts below it appears that both the courts below heavily relied upon the observations made by the Appellate Division in the previous appeal being Civil Appeal no. 31 of 1981 which has been reported in BCR 1983(AD)46. So far as the trial court is concerned it took exception to the fact that possession of the suit property was given to defendant No. 5. On 16.11.1982 violating the order of temporary injunction passed in favour of the plaintiff although lease was given to it on 11.7.1975, without considering that at the relevant time the order of temporary injunction was not in force because of the Martial Law order No. 40 of 1982. And that possession of the suit property was delivered to defendant No. 5 in due process of law after the plaintiff failed to vacate the same as evident from Ext. “Gha’, dated 21.7.1980. The trial court also took adverse view against the contesting defendants for the reasons that DWS gave some evasive reply in their cross-examination about the filing of the appeal before this court, before the Appellate Division, about the delivery of possession of the suit property to defendant No. 5 and the order of temporary injunction, although those are not at all material and relevant for deciding the merit of the suit in view of the pleading of the parties and the evidence adduced. Both the Courts below came to the finding that infect the allotment given to the plaintiff was a lease and as such the same could not be leased out to defendant No. 5 in denial of the claim of the plaintiff cancelling his leasehold right.

  10. Mr. Rafiqul Haque also in support of the judgments passed by the courts below relied upon the observations made by the Appellate Division in the said appeal and reiterated his submission that in fact the allotment given to the plaintiff was a lease as found by the Appellate Division and as such this court has no scope to decide otherwise, than to accept the allotment dated 10.4.1974 as a lease with all its incidents and that the plaintiff had has a legal right to continue with his possession therein and then get necessary deed to complete the lease. The observations made by the Appellate Division on which Mr. Haque relief are as under:

Whether the suit property is abandoned property to public property is immaterial. So far as the power to lease it is concerned, both kinds of property can be dealt with and disposed of by the Government though the incidents of the lease will depend on the nature of the property. As soon as any property is taken over as abandoned property, it vests owner of such property succeeds in getting it back on obtaining the declaration that it is not abandoned property or for any other reason government released the property. Since it was later on, found that it was not abandoned property but government property it is all the better for the appellant. This discovery makes no difference and does not alter the position of the Government, as lessor or of the appellant as lessee. That so far as the power two lease out the property is concerned the government cannot be said to have lost it. Moreover, it is not the appellant who is responsible for making the mistake…. Responsibility for any loss, if at all incurred in leasing out the suit property must in all fairness be borne by and rests with the Government.

  1. In the case of Mr. Ismail and sons… Vs. Trans Oceanic Steamship Co. Ltd. and others reported in 17DLR(Dhaka) 269, his Lordship Mr. Justice. Hassan who delivered the judgment held that any observation by the Supreme court even obiter is binding on the High court. Now in order to decide as to whether the Appellate Division in fact decided the issue as now argued by Mr. Haque, it is also necessary to quote the concluding portion of the judgment of the Appellate Division passed in the said appeal, which is to the effect:

In any event government must spell out its case in a property filed written statement Any further observation is not possible on the materials on record. No full adjudication is possible unless both sides put in their pleadings and lead evidence.

  1. Relying on the concluding portion of the judgment, I hold that in fact in Civil Appeal No. 31 of 1981 mere had been no adjudication by the Appellate Division on the questions as to whether the allotment in question was a lease and as to whether relationship between the plaintiff and defendant No. 1 was that of a lessor and lessee. It is true that the Appellate Division in narrating the case of the plaintiff has used the terms ‘lease’, ‘lessor’ as because in the plant the plaintiff described the ‘allotment’ as a lease and although he was an allottee described him as a lessee. Thus, even if the Appellate Division has referred the allotment as a ‘lease’ and the plaintiff as a lessee, those cannot be even taken as an obiter. In this regard I find substance in the submission of Mr. Islam that observation of the superior court will be binding only when two conditions are present, first one being that the higher court decided any issue on fact between the parties and the second one being that the higher court enunciated any law, and I find support of this view in the cases of Dalbir Singh and others. Vs. State of Punjab reported in AIR 1979(SC) 1384 and Krishena Kumar vs. Union of India and others reported in AIR 1990(SC) 1782. Since previously the suit was heard ex parte and the same was remanded back to the trial court by the Appellate Division giving leave to the Government to file written statement, and the point whether the allotment dated 10.4.1974 was simply a letter of ‘allotment’ or a ‘lease’ was not thrashed out, I am constrained to hold that the ‘terms’, ‘lessor’ and ‘lessee’ as referred to by the Appellate Division in the said Civil Appeal cannot be taken as a ratio decidendi and even obiter and therefore, a legal bar on my part to decide the question as has been raised before me.

  2. Exhibit. 5 marked on behalf of the plaintiff is the letter of allotment dated 10.4.1974 and the same also has been marked on behalf of the defendant government as exhibit. Ka (I shall refer the letter of allotment as exhibit. 5). Exhibit. 5 was issued by a section Officer of the Ministry of Public Works and Urban Development, Public Works Division to the Chief Engineer (Building) Directorate giving copy to the plaintiff. In the said Ext subject has been written as under:

Allotment of Abandoned house/building at 76, Motijheel Commercial Area.

And the opening of the letter is as under;

The house/property at 76, Motijheel Commercial area is hereby allotted on rental basis to Mr. M/s Mr. Kashem (Kashem Motor Works), on the following terms and conditions.

  1. In the terms and conditions of the letter of allotment the terms, ‘allotment’, and ‘allottee’ have been used. Now the question is when the terms and conditions for the disposition of a property have been reduced to the form of a document and the language of such disposition, here the letter of allotment being absolutely, clear, is there any scope to give other meaning or read the term ‘allotment’ in place of ‘lease’ as has been argued by Mr. Haque and decided by the courts belows. In order to answer this question, I tried my best to find the term ‘allotment’ or ‘allottee’ in the relevant law, namely. The Transfer of Property' Act and the other law akin to it but I failed. The term' allot' or' allotment' have only been used in the Companies Act in different context in connection with allotment of shares of the company without defining the same the terms of ‘allotment’ and ‘allottee’ have also not been defined in the General Clauses Act as well. The Dictionary is ‘to divide as by lot; to distribute in portions; to parcel out; and that of ‘allotment’ as “the act of alloting; part or share allotted a portion of a field assigned to cottager to labour for himself. And in the Law Lexicon by Ramanatha Alyars ‘allottee’ has been described as a person to whom land under an enclosure act or shares in a public undertaking are allowed; A person to whom allotment has been made. In the case of B.M. Bhattacharjee Vs. Russe (Estate corporation reported in AIR (1993)(SC) 1632 it has been held that the word ‘allotment’ in the context of construction of flats means making over of the flats. It means delivery of possession and registration of the sale deeds. Whereas, the terms ‘lease’, lessor’ and ‘lessee’ have been clearly defined in Section 105 of the Transfer of Property Act which are as under:

Lease Defined: A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

Lessor, Lessee, Premium and Rent Defined: The transfer is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

  1. In Section 107 of the Transfer or property Act it has been spelt out as to lease to be made Section 107 is as under.

107 Lease how made: A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.”.

(All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession).

(Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one each such instrument shall be executed by both the lessor and the lessee).

(Provided that the Government) may from time to time, by notification in the (Official Gazettee), direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, may be made by unregistered instrument or by oral agreement without delivery of possession.

  1. If we consider Section 105 with section 107 of the Transfer of property Act it will be clear that in order to constitute lease of an immoveable property of the nature as claimed by the plaintiff a registered instrument signed by both the Government, that is, Defendant No. I and the plaintiff was necessary mentioning a period and a price to be paid or promised to be paid which is totally absent in this case. I am of the view that the terms ‘allotment’ and ‘allottee’ cannot be synonymous to the terms ‘lease’ and ‘lessee’ cannot be synonymous to the terms ‘lease’ and “lessee' as have been sought to have been argued by Mr. Haque. If the term ‘allotment’ is construed as ‘lease’ then it will create unnecessary legal complications. Allotment of a government plot or a house either it is a khas land or an Abandoned property means to give a right to a person to enjoy the same on certain conditions and by such allotment no right to permanent nature for perpetual lease can be claimed. And the term ‘allotment’ cannot entail any other liabilities on the part of the government except to abide by the terms mentioned therein. The concept of Allotment' is a new device of the modem government to give the right of enjoyment of the government property to a person on the terms and conditions mentioned therein which has its own distinct feature and unique of its own and cannot be equated with the term ‘lease’. Here in this case it is clear from the letter of allotment (Ext. 5) that the plaintiff was allotted the suit property in question on as many as 7(seven) terms, namely. (a)-(g) which are quoted below in order to see the nature of the terms, to answer the question raised by Mr. Haque:

(a) Monthly rent at the rate of Taka 880/00 per month payable into treasury Bangladesh Ban, by 7th of the following month through the Executive Engineer under Head of account. Detailed Head-Rent from Abandoned Building.

Minor Head-Rent.

Major head-XXXIX Civil Works.

  1. The allotment will be terminated for default of payment of rent by the fixed date without notice and allottee will be bound to vacate the house forthwith, failing which he will be evicted and arrear rents realised from him as public demand.

(b) No addition and alternation to the house shall be made/no repair etc done, without previous orders from the Government.

(c) The allottee will be bound to pay the compensation to the Government for any damage caused to the house by him or for his negligence.

(d) In case it transpires that the allottee owns a house of his own or in the name of his wife/Children within 20 Miles radious of Dacca, the allotment will be cancelled on one months notice.

(e) That allotment will be cancelled on months notice if any when the house/property is released or otherwise disposed of by the Government.

(f) The allotment will be cancelled if the allottee sublets the house.

(g) An inventory of the property both moveable and immoveable should be prepared in triplicate and copy the same along with a report in the action taken should be forwarded to this Ministry.

  1. In term-(a) monthly rent as well as the head under which that would be paid was fixed. In the said term it was made clear that allotment would be terminated if any default was made in the payment of rent. Of the terms and conditions of allotment as quoted hereinbefore, term(e) is very pertinent and important which clearly reserved the right of the Government to cancel the allotment on months notice if and when the house/property was released or otherwise disposed of by it. The plaintiff knowing fully well about the said terms accepted the allotment and as it appears from the plaint and the evidence on record at no point of time any objection was raised by the plaintiff to the said term. In view of the terms (a) and (3) of the letter of allotment, the plaintiff cannot say that the government had no authority to cancel the same and that he was entitled to get permanent lease of the suit property as has been claimed by him. From Ext. 5 it is also clear that the plaintiff was only asked to pay monthly rent. From Ext. 3 letter dated 19.2.1974 it further appears that the plaintiff was asked to pay the rental compensation at the rate of Taka 880/- per month and in none of the exhibits filed by the plaintiff there is any reference of payment of any premium or lease money for the purpose of lease for any period within the meaning of Sections 105 and 107 of the Transfer of Property Act It is very interesting to state that by amending the plaint the plaintiff prayed that he was entitled to get allotment of the suit land for 99 years as the khas land of the defendant No. 1, which totally destroys the plaintiffs case that by the allotment in question he acquired a lease hold right. Furthermore, from Exhibit ‘9’ no date is available in the exhibit) addressed to the Minister-in-Charge of the Ministry of Works and Urban Development with reference to a letter dated 1.11.1982 of the said Ministry it appears that the plaintiff prayed for allotting him khas land beneath the water near the Jheel in front of 76. Motijheel Commercial area (the suit property) or to allow him to run his business on the ground floor thereof or to allow him 3(three) months time for shifting elsewhere. Thus, the plaintiff himself gave up his claim of lease” of the suit property. I am also of the view that the plaintiff being an allottee could claim no legal to the suit property and for that matter to maintain the suit of the instant nature. The only, right, which the plaintiff had, is that he was entitled to month’s notice as per term(e) of the letter of allotment before cancellation of the allotment. From Ext. 8 that is the letter dated 25.8.1975 by which allotment was cancelled it appears that the allotment was cancelled on the ground that the allotment was made on a mistaken fact the suit property was an abandoned property but in fact the same was a khas land. It is also in evidence that the said letter of cancellation of allotment was received by the plaintiff on 1.9.1975, which shows that time of one month was not given. But for that letter of cancellation of allotment was received by the plaintiff on 1.9.1975, which shows that time of one month was not given. But for that letter of cancellation of the allotment cannot be termed to be illegal for the simple reason that the plaintiff continued his possession till 16.11.1982 when possession was taken over from him. Besides, by Ext. “Gha” that is letter dated 21.7.1980 issued by the Section officer of the Ministry of Public Works and Urban Development letter of allotment dated 10.4.1974 was again cancelled adding further ground that the plaintiff changed the nature of the suit property and sublet the same. By the said letter the plaintiff was asked to hand over vacant possession of the suit property on 1.9.1980. But, he did not comply with the said direction thus; term(e) of the letter of allotment was clearly complied with. And as such the submission of Mr. Rafiqul Haque that the plaintiffs lease could be cancelled only after due process of law as required by Section 106 the Transfer of Property Act has got no substance. For the same reasons Article-144 of the Constitution of the People’s Republic of Bangladesh does not help the plaintiff.

  2. Now the next question for consideration is as to whether the government could lease out the suit land to defendant No. 5, before cancellation of the allotment of the plaintiff. My answer is definitely in the affirmative. As if term(e) of the letter of Allotment is read with patience it will be found that it was never the precondition that before disposing of the allotted property other wise by the government allotment given in favour of the plaintiff must be cancelled. I fail to understand how could there be any bar on the part of the government to allot the suit property in favour of defendant No. 5 with a view to leasing out the same to it perpetually before cancelling the allotment of the plaintiff in the face of term(e) of the letter of allotment As discussed above, only precondition was to give months notice, which was subsequently complied with Vide Ext. Gha, as, found hereinbefore.

  3. The argument of Mr. Rafiqul Haque that the decision of the Government to leasing out the suit land permanently to defendant No. 5 before the cancellation of the plaintiffs allotment was malafide has got no factual basis. Malafide is a question of fact that it has to be pleaded and proved by evidence. I have perused the plaint, but within the four corners of the plaint no fact, whatsoever, to constitute malafide has been furnished, except terming the cancellation of the allotment malafide in a stereotyped manner. By making mere verbal submission malafide cannot be established. Mr. Mahmudul Islam rightly answered the submission of Mr. Haque pointing out that the lease having been given to a corporation and not to an individual question of malafide on the part of the government does not arise all in this regard Mr. Rafiqul Haque tried to rely on the case of Mrs. Husna Mansur and others Vs. Secretary, Ministry of Public Works Division, Government of Bangladesh and others reported in 34 DLR(AD)35. But, the facts of that case were unique of its own. In that case a permanent lease was given to the petitioners predecessor and while they had been in possession there of, by mutating their names the same was allotted to one Amena Monsur wife of Late Captain Monsur Ali, former Prime Minister of Bangladesh and then the government entered into the property and demolished the structures. Thereafter, show cause notice was given to the petitioners as to why lease should not be cancelled for violation of the terms of the lease deed. In the said facts and circumstances of the case the Appellate Division interfered on the ground that allotment was made by the government to the new leasee prior to the cancellation of the lease and therefore, the allegation of malafide in the cancellation of the lease was justified. Whereas, the facts of the present case are otherwise, as have been discussed here in before and as such principle of law enunciated in Husna Mansur’s case does not help Mr. Haque.

  4. As it appears both the courts below without considering the factual and legal implications of the terms(a) and (e) of the letter of allotment dated 10.4.1974 simply relied upon the observations of the Appellate Division made in Civil Appeal No. 31 of 1981 as have been quoted here in before. The courts below also failed to consider that the suit was remanded back to the trial court for disposal after giving the principal defendant leave to file written statement. Both the Courts below took the allotment as ‘lease’ and were swayed by the fact that before cancellation of the lease of the plaintiff the suit property was leased out to defendant No. 5. The courts below totally failed to consider the legal implication as to the registration of the lease deed in favour of the defendant No. 5. On 11.7.1975 by which the suit land was leased out to the said defendant for 99 years. Mr. Mahmudul Islam submitted that a registered lease deed cannot be set at naught as has been done by the Courts below in the absence of any specific prayer for cancellation there of by paying ad valorem court fees. Mr. Rafiqul Haque, on the other hand, argued that although the registered lease deed is with the record, yet, as the same was not proved in accordance with law and was not marked as an exhibit this court cannot look into that. Mr. Rafiqul Haque further submitted that had the lease deed been marked as an exhibit, then possibly it would have been difficult for this court to affirm the decree as has been passed by the trial court. I am unable to accept the submission of Mr. Rafiqul Haque for the simple reason that in the written statements filed by defendant No. 5 as well as defendant No. 1 it was specifically stated that the suit property was leased out to defendant No. 5 by a registered lease deed on 11.7.1975 and the said fact was also asserted by the DWS, and the courts below, particularly the appellate court having given finding on the said registered lease deed terming the same as illegal, void abinitio, I can very much see the document which is with the record. It is true that no exhibit mark has been put to it, but the plaintiff did not dispute the said fact of giving permanent lease of the suit property to defendant No. 5 by a registered lease deed. D.W. 2 S.A. Yeasin in his deposition categorically stated, about the registered lease deed and proved the same as Exhibit. ‘Ka’ on behalf of defendant No. 5, but unfortunately no mark was given which is a mistake committed by the court and for that mistake a party cannot suffer. It is an admitted position that inspite of the categorical statements made in the written statements by the contesting defendants that the suit land was leased out to defendant No. 5, by a registered lease deed on 11.7.1975, neither the plaint was amended incorporating the said fact nor any prayer was made against the lease deed either by way of declaration that the same was void, not binding upon him or that by the said deed plaintiffs leasehold right to the suit property was not affected. Not only that even P.W. 1, the attorney of the plaintiff the lone witness examined on his behalf in his deposition neither stated the said fact nor sought any relief against the said lease deed. I am of view that the plaintiff not being a party to the lease deed the prayer for cancellation of the same within the meaning of section 39 of the Specific Relief Act was not necessary, but in no case without such prayer and payment of ad valorem court fees the plaintiff was not entitled to get a decree declaring the lease dated 11.7.1975, illegal as has been passed by the courts below as by such declaration in fact the registered lease deed of the defendant No. 5 has been cancelled.

  5. Another feature of the case is that admittedly the possession of suit property was taken over by the government on 16.11.1982, but no prayer was made for its recovery. Mr. Haque submitted that a suit is to be decided on the facts as it stood on the date of filing of the suit and subsequent events which took place after the filing of the suit can be noticed by the court and it can give the plaintiff appropriate relief considering such acts, even if plaint was not amended making such prayer. Mr. Haque relief on the provision of Rule-7, Order-VII of the Code of Civil Procedure. In support of his contention he has relied on the case of Mohammad Abdul Nasir and others vs. People’s Republic of Bangladesh and others reported in 28DLR(HD) 392, case of I. Shiv Dayal Kapoor and others Vs. Union of India. New Delhi and another reported in AIR 1963(Punjab)538. case of Dhani Sana and others. Vs. Bishun Prasad Singh and others reported in AIR 1942 (Patna) 247, case of Chennaru Naghbhusan Rao Vs. M. Ram and others reported in AIR 1992(Ori) 76 and the case of Commander (Rtd) A.A. Chowdhury Vs. A.K.M. Iman Hossain and others reported in 49 DLR(HD) 23.1 have gone through the said cited cases. In all those cited cases the principle of law enunciated is that Order-7, Rule-7 of the Code of Civil Procedure permits the court to grant such general or other relief as the plaintiff is entitled to get on the evidence even if the plaint does not contain a prayer for the relief,. But, in the facts and circumstances of the instant case the principle of law enunciated in those cited cases cannot be made applicable for the simple reason that the fact of dispossession by the defendant government during the pendency of the suit has not been brought on record by way of amendment of the plaint and no evidence led as well except a feeble statement by P.W. 1 on re-examination to the effect:-

  6. Rather it is the contesting defendants who in their written statements asserted the fact of taking over possession of the entire suit property on 16.11.1982 from the plaintiff and then possession by defendant No. 5, since that date and the D.Ws. also owned the said assertions in their deposition. It is to be further noted that the plaintiff was evicted from the suit land with help of police as he did not vacate the suit land even after the cancellation of the allotment and expiry of time allowed to him to vacate as per terms of the ‘allotment’ dated 10.4.1974 as discussed above. I am of the view that when P.W. 1 admitted that the plaintiff was dispossessed from a portion of the suit property it was a must for the plaintiff to incorporate the said fact and add necessary prayer by way of amendment of the plaint specifying the area dispossessed but having not done so there was no scope to give relief to the plaintiff invoking the provision of Order-7 Rule. 7 of the Code of Civil Procedure as has been given by the Courts below and as such the submission of Mr. Haque in that respect fails.

  7. Mr. Haque also tried to submit that presently the plaintiff got back his possession in a portion of the suit land and relief may be given to him partially. That submission of Mr. Haque is also beyond the pleading and the evidence. The total area of the suit land having been leased out to defendant No. 5 and possession there of having been given to it as evident from Ext. “Cha' the question of giving partial relief does not arise at all and that too without the specification of the area now allegedly in possession of the plaintiff.

  8. Mr. Rafiqul Haque lastly submitted that before evicting the plaintiff from the suit property no notice was given to him as required under the provision of East Pakistan Ordinance-24 of 1970 (hereinafter referred to as the Ordinance) action of the government in evicting the plaintiff was illegal and as such he is entitled to get back possession of the suit property. I also do not find any substance in this submission of Mr. Haque. As per terms of the “Allotment' plaintiff was entitled to get one months notice only which was given to him as is evident from ext. ‘gha’. Since the plaintiff did not vacate the suit property even after the expiry of the period mentioned in Ex. ‘gha’ the government had no other alternative but to evict him. For the discussions made above. I am constrained to hold that the courts below committed error of law resulting in an error in the decision occasioning failure of justice in decreeing the suit.

In the result these rules are made absolute without any order as to costs. The impugned judgments and decrees dated 23.8.1999 passed by the Additional District Judge, 1st court. Dhaka, in Title Appeal No. 114 of 1995 and Title Appeal No. 123 of 1995 affirming those dated 30.3.1995 passed by the Subordinate Judge, 3rd court, Dhaka, in Title suit No. 144 of 1975 are hereby set aside and the suit be dismissed.

The International Arbitration Review: Bangladesh

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