IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)
Writ Petition No. 6322 of 2003
Decided On: 07.03.2007
Appellants: Taher Ahmed Siddiqu
Vs.
Respondent: Government of Bangladesh and Ors.
Hon’ble Judges/Coram:
Nozrul Islam Chowdhury and Zubayer Rahman Chowdhury, JJ.
Subject: Property
Catch Words
Mentioned IN
Disposition:
Rule Discharged
JUDGMENT
Zubayer Rahman Chowdhury, J.
1. This Rule at the instance of the petitioner was issued calling upon the respondents to show cause as to why they should not be directed to exclude the petitioner’s property, being House No. 2/2, Block-C, Shahjahan Road, Mohammadpur, Dhaka from the ‘Ka’ list of Abandoned Buildings pursuant to the judgment and order dated 25.05.2000 passed by the First Court of Settlement, Bangladesh Abandoned Buildings in Case No. 193/96 (Ka-2, Block-C, Mohammadpur, Dhaka), House No. 2/2, Block-C, Mohammadpur, Dhaka and/or such other or further order or orders as to this Court may seem fit and proper.
2. Relevant facts necessary for disposal of the Rule, briefly stated, are as under :
One Nazir Ahmed, son of late Sabbir Ahmed, was granted lease of Plot no. 2/2, Block-C, Mohammadpur, Dhaka, by virtue of a lease, being Deed No. 1952 dated 13.01.1962. The allottee built a house thereon and whilst being in possession of the same, entered into a contract on 01.06.1969 to sell the said property to the petitioner for a sum of Tk. 60,000/-. Upon payment of Tk. 50,000/- a written agreement was executed and possession was delivered to the petitioner on 01.06.1969. However, since the said Nazir Ahmed failed to execute and register the sale deed, the petitioner filed Title Suit No. 894 of 1985 on 02.07.1985 for specific performance of contract in the 2nd Court of Subordinate Judge, Dhaka and it was decreed on contest by judgment and decree dated 30.07.1987.
3. Against the aforesaid judgment and decree dated 30.07.1987, the Government preferred Title Appeal No. 309 of 1987 before the Additional District Judge, 4th Court, Dhaka and the same was dismissed on contest on 31.10.1990. Thereafter, the petitioner filed Execution Case No. 5 of 1988 and got the Deed of Sale executed and registered through Court, being Deed No. 1404 dated 18.05.1991.
4. In the meantime, the list of abandoned buildings was published in the Bangladesh Gazette Extra Ordinary dated 23.09.1986 which included the said building in the ‘Ka’ list. The petitioner filed Case No. 193 of 1996 before the Court of Settlement, Dhaka under section 7(1) of Ordinance 54 of 1985 for exclusion of the said property from the list of abandoned buildings. The Court of Settlement, vide judgment dated 25.05.2000, allowed the petitioner’s case and directed the Government to release the said building from the list of abandoned properties.
5. Earlier, during pendency of the case before the Court of Settlement, the petitioner filed an application on 20.06.1995 to the Assistant Commissioner Settlement, Housing and Public Works for effecting mutation of his name in place of Nazir Ahmed, the original lessee of the Government. Subsequently, after the passing of the judgment by the Court of Settlement, the petitioner filed a petition on 24.01.2001 for issuing a notification in the Gazette to exclude the said property from the list of abandoned buildings in terms of the said judgment. The petitioner filed applications to the Ministry of Housing and Public Works, Secretariat, Dhaka, briefly, ‘the Ministry’ on 25.06.2002 and 26.09.2002 with similar prayer. However, since the respondents failed to take steps in the matter, the petitioner was constrained to move this Court and file the instant writ petition praying for a direction upon the respondents to exclude the said house from the ‘Ka’ list of the abandoned buildings and to mutate the petitioner’s name in respect of the said house.
6. Mr. Mohammad Ozair Farooq, the learned Advocate appearing for the petitioner submits at the outset that the petitioner has been pursuing the matter for the last 20 years. He further submits that although the Court of Settlement, Dhaka allowed the petitioner’s case and directed the Government to exclude the said house from the ‘Ka’ list of abandoned buildings, yet, the Government neither complied with the aforesaid order nor did it file any writ petition challenging the said judgment of the Court of Settlement. Mr. Farooq contends that the action of the Government in not challenging the order of the Court of Settlement, Dhaka indicates that they have accepted the verdict, but unfortunately, they have not complied with the directive given in the said verdict. Mr. Farooq substantiates his contention by referring to the Memo No. 
dated 30.09.2001, evidenced by Annexure-X to the supplement affidavit, which reads as under:
7. Mr. Farooq lastly submits that the petitioner has been in possession and occupation of the house in question along with the members of his family since 1969 and the respondents have not been able to produce any evidence to the contrary in support of their claim that the said building was an abandoned building and hence, its inclusion in the ‘Ka’ list was without any basis and, therefore, illegal.
8. Although the respondents have not filed any affidavit-in- opposition, Mr. Razik Al-Jalil, the learned Deputy Attorney General appearing in opposition to the Rule, submits that the finding of the Court of Settlement was not based on proper assessment and evaluation of the evidence on record. The learned Deputy Attorney General submits that it has been decided by our Apex Court that the inclusion of a building in the list of abandoned properties carries with it the presumption that it has been listed in accordance with law. The Deputy Attorney General further contends that although the petitioner claimed to have been occupying and residing in the said property in 1969, yet he has not been able to produce any documents to establish his title over the said property. The Deputy Attorney General lastly submits that since the original allottee was found absent after the war of liberation, the building was listed in the ‘Ka’ list in accordance with law.
9. Upon conclusion of hearing, the matter was fixed for delivery of judgment on 08.02.2007. However, having gone through the materials before us, we found it necessary to call for the official file relating to the house in question from the Ministry and accordingly, the delivery of judgment was deferred until today. In the meantime, as per the Court’s order dated 15.02.07, the official file relating to the said house has been sent to the Court and we have perused the same. We have also permitted Mr. Ozair Farooq, the learned Advocate for the petitioner to peruse the file.
10. A detailed perusal of the “Note-sheet” and the connected files containing the official letters and other relevant documents and papers not only make a very dismal reading, but also reveal the entire episode in its true perspective. To begin with, many pages in the official file are missing.
At page 4, serial no 10 of the note-sheet, it has been stated:
11. In the official file referred to in the note-sheet quoted above, a notice to show cause dated 3.7.85, a copy of the order of temporary injunction dated 8.7.85 passed by the Sub-Judge, 2nd Court, Dhaka and the hand written copy of the written statement and the written Objection by the defendant nos. 2-4 in Title Suit No. 894/85 make up pages 1-15, although the first notice bears page mark ‘17’ which has been crossed out and renumbered as page ‘1’. Moreover, the typed copy of the very same written statement has been appended in the file at pages 16-19 and again at pages 30-33.
12. Although there is no explanation as to the circumstances or reason for the non availability of such papers in the official file, nevertheless, the continuity of the pages has been maintained by inserting photocopies of different documents (e.g. plaint of the title suit, written statement etc.) which, apparently, are irrelevant and out of place in that order of the file. To note a few instances:
The Written Objection filed by defendant nos. 2-4 in Title Suit No. 894/85 appear twice, at page 20-24 and again at pages 26-30.
A photocopy of the certified copy of the decree passed in Title Suit No. 894/95 is appended in as many as 4 (four) different places in the file, namely, at pages 47-49, 63-65, 210-212 and 243-245.
The copy of an application for Injunction (10 pages) filed by the plaintiff in Title Suit No. 894/95 is to be found thrice; at the next page following page 74 (with no number) and continuing upto page 83, pages 126-136 and again at pages 137-147.
The plaint Title Suit No. 894/95 appears at the next page after page 150 (with no number) and ends at page 159 and the identical document appears again at pages 166-173.
13. In other words, for reasons best known to the concerned officials of the Ministry, the same document has been inserted in the file at different places, thereby replacing several pages in the original file.
14. In course of his submission, the learned Advocate for the petitioner has relied heavily upon Annexure-X of the supplementary affidavit and submitted with great force that although the Government had decided not to file any writ petition against the order of the Court of Settlement, they have not released the said building from the ‘Ka’ list, thereby causing harassment and agony to the petitioner for the past several years. A perusal of the official file indicates that it is far from that; in fact, it is otherwise. From the official noting, it appears that not only was a specific direction given by the then Secretary of the Ministry to challenge the order of the Court of Settlement by filing a writ petition, an order was also passed for enquiring into the reasons for non-filing of the writ petition.
At page 15, Serial No. 40 of the note sheet, it reads:
15. At page 19, Serial No. 46 of the note sheet, on 17.07.2001, the Secretary of the Ministry himself wrote as follows:
16. Despite such clear and categorical directives, no writ petition was filed on behalf of the Government. On the contrary, efforts appear to have made for release of the said property from the ‘Ka’ list which is manifested by the issuance of Annexure-X to the supplementary affidavit. We are quite baffled, to say the least, as to how the same could have been issued. We have also noticed, albeit with some astonishment, that although the Memo contained in Annexure X is dated 30.9.2001, it was signed by the concerned Senior Assistant Secretary (Writ) on 27.9.2001, ie, 3 days earlier.
17. It is quite apparent that some of the officials of the Ministry acted in utmost haste and eagerness to have the property released from the ‘Ka’ list. After a series of notings and opinions, the file was placed before the then Minister, Ministry of Housing and Public Works for necessary approval, who, instead of according approval, passed the following order on 24.04.2002, which is evident from serial no. 59 of the note sheet at page 23:
18. Thereafter, there was no further development in the matter.
19. It further transpires from the official file that an affidavit-in-opposition was prepared on behalf of the Ministry in the instant writ petition which was duly signed by the Law Officer, Ministry of Housing and Public Works, Bangladesh Secretariat, Dhaka on 6.7.04. However, we also find, much to our dismay, that it was neither affirmed nor filed in Court. On our query, the learned Deputy Attorney General informs the Court that he has no knowledge about the same.
20. Although it has been stated an oath in paragraph no. 1 of the writ petition that “the petitioner has been living in the house with the members of his family since 1.6.69”, it transpires from the official file that such statement is not only misleading, but factually incorrect too. The house in question was allotted not once, but twice since independence in 1971 by the respondent no. 1, being in possession and control of the same. It was first allotted to one A. Wahed Khan, a Secretary to the Government, who, at the relevant time, was serving as OSD in the Ministry of Agriculture. Thereafter, the Government, by Memo No. S-IX/D-219/82/117 dated 22.01.1984, at page 23 of the file (second part), allotted the said house to the National Games for Disabled Association (NGDA) and the subject-matter of the allotment letter reads as under: 
2/2, Shajahan Road, Mohammadpur, (On Rental Basis at the rate of Tk. 4,258.00 P.M.), 
21. However, the aforesaid allottee could not take possession of the house as it was being occupied by ‘unauthorised persons’ and requested the then Minister, Ministry of Housing and Public Works to take action in this regard. A G.D. was made with Mohammadpur Police Station, which is evident from page 41 of the file, which contains a letter bearing No. NGDA/209/85 dated 06.11.1985 addressed to the Joint Sectary, Ministry of Works, A.P. Wing, Bangladesh Secretariat, Dhaka from Lt. Colonel Khan Golap, Chairman of National Games for Disabled Association, wherein it was stated:
“1. A.P. House No. 2/2, Shahjahan Road, Mohammadpur, Dhaka-7 has been allotted to National Games for Disabled Association vide Ministry of Works memo No. S-IX/D-219/82/117 dated 22nd January, 1984 (copy attached). The possession of the house was not handed over by the Superintending Engineer, A.P. Circle as the house was in possession of Mr. A. Wahed Khan, an Officer on Special Duty of Ministry of Agriculture. On our repeated request to the Ministry of Works as well as the concerned Superintending Engineer of A.P. Circle to take necessary action or handing over the possession of the house to National Games for Disabled Association as soon as possible, Executive Engineer and Superintending Engineer of A.P. Circle requested Ministry of Works vide their letter No. 3988 dated 6th August, 1985 and letter No. M.C/4739 dated 7th October, 1985 respectively to take necessary action in this respect.
- Mr. A. Wahed Khan vacated the possession of the house on 6th July, 1985 and the same was under the custody of Mohammadpur Police Station as intimated vide Superintending Engineer, A.P. Circle letter No. M.C/4849 dated 14th October 1985 (copy attached). There it has also been mentioned that an unauthorised person has occupied the house due to shortage of police personnel in the concerned Police Station. It sounds to be a matter of great concern as it involves the efficiency and effectiveness of the police authority.”
22. In this context, reference may also be made to the letter dated 6.8.1985 written by the Executive Engineer, PWD to the Superintending Engineer, PWD to that effect, as evident from page 16 of the official file (second part), which reads as under:
23. The fact of taking over possession of the said house is further substantiated from the Note sheet in Title Suit No. 894 of 1985 appearing at page 182 of the file which reads as under:
“11-1-86
The suit has been fixed on 18-1-86. Mr. Quamrul Hassan, Section Officer, Ministry of Works who took over possession from the allottee Mr. A. Wahed Khan an officer on special duty, Ministry of Agriculture, is required to depose in the suit to prove the case of the Govt. the ministry may be requested to arrange for his attendance in Court on the date fixed.
Md. Idris
G. P.
11-1-86”
24. It is perhaps pertinent to note that it is at this point of time that the ‘Advocate Commissioner’, appointed by the Court during the pendency of Title Suit No. 894/85, claims to have found the petitioner to be in occupation of the said house.
25. Earlier, after the eviction of the unauthorised occupants, the house in question was placed under the ‘Abandoned Buildings Circle’, which is evident from the letter dated 21.7.85, at page 4 of the file (second part), which is as follows :
26. The aforesaid documents, as evident from the official file, leaves no room for doubt in our minds that the house in question was under the possession and control of the Government through the Ministry of Housing and Public Works as an abandoned property.
27. The contention of Mr. Farooq that the petitioner is armed with a decree in his favour, and that too contested, in respect of the said house by way of specific performance of contract has been well and truly answered by the Apex Court in Md. Ayub Ali v Bangladesh, reported in 47 DLR AD 71 in the following terms:
“……………………………………………
……………………………………………
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. I have, therefore, no hesitation to hold that 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.”
(Per A.T.M. Afzal, J, as his Lordship then was)
28. We are quite conscious of the fact that the judgment of the Court of Settlement is not under challenge before us. At the same time, it is apparent from the notings and documents in the official file that for reasons best known to some concerned officials, the said judgment of the Court of Settlement was allowed to remain unchallenged despite directives from the top two officials of the Ministry of Works, namely the then Hon’ble Minister and the then Secretary, to file a writ petition against the aforesaid judgment.
29. The entire episode appears, ex-facie, to be tainted with manipulation, distortion and falsity. The conduct of certain officials in the Ministry raises considerable doubt in our minds as to the bonafide of both their intention and actions, although, the real and only beneficiary of the entire exercise is none other than the petitioner himself.
30. In R. v. Kensington Income Tax Commrs., (1917) 1 KB 486, Viscount Reading, CJ, observed:
“Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived.”
31. Exactly half a century later, a similar view was expressed in the case of Barium Chemicals Ltd. v. Company Law Board, reported in AIR 1967 SC 295, where it was held : “though an order passed in the exercise of powers under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose”.
32. In the instant case, the petitioner has prayed for a direction from this Court upon the respondents for implementation of the judgment passed by the Court of Settlement. However, while doing so, the Court should not pass such a directive by merely endorsing the judgment in question, but ought to be satisfied that the judgment sought to be implemented is based upon sound legal foundation, i.e., supported by legal documents and materials on record. If it is not so, this Court, in exercise of its equitable jurisdiction, should refrain from passing such a directive. To do otherwise would, in our view, be “inequitable”.
33. Our aforesaid view finds support and endorsement in the decision of Municipal Board, Pratabgarh V. Mahendra Singh Chawla and others, reported in AIR 1982 Supreme Court 1493 where their Lordships held:
“While administering law it is to tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Any other approach, would render this Court a normal Court of appeal which it is not.”
34. In the instant case, the judgment passed by the Court of Settlement is not supported by the documents in the official file; rather, the glaring inconsistencies and contradictions run contrary to the petitioner’s case. This is somewhat akin to a very recent development in the English Jurisdiction which has been termed by the English Courts as a ‘material error of fact’ doctrine. According to Professor Peter Leyland and Gordon Anthony:
“This doctrine goes for beyond issues of jurisdictional fact to allow challenges to decisions on a point of law where it can be shown that an error of fact has given rise to unfairness.”
(Textbook on Administrative Law, 5th Edition, 2005, at page 314).
35. In Niranjan Prasad v. State, reported in AIR 1960 All 323, the Court held : “A finding of fact can be quashed if the Court holds that it could not reasonably have been founded on the materials before the enquiry Tribunal.”
36. To quote the distinguished English jurist Professor H.W.R. Wade:
“An order or determination will not be conclusive if it has been obtained by fraud or misrepresentation.”
(Administrative Law, Fifth Edition, page 228)
37. We are reminded of the pronouncement by no less an authority than Lord Denning, Mr. himself in Lazarus Estates Ltd. v. Beasley, reported in (1956) 1 Q.B. 702, where his Lordship stated so aptly:
“No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything”.
38. In view of the foregoing discussion and having regard to the documents which have come to our notice from the official file relating to the house in question, we are of the view that a serious fraud has been committed by way of manipulation of the official file, distortion of documents and last, but not least, by making misleading, false and incorrect statements before the Court of law. In such premises, the Rule is liable to be discharged.
39. Accordingly, the Rule is discharged.
40. Although we were inclined to award cost against the petitioner, we refrain from doing so. However, the respondents are at liberty to realize the rent of the said house in question from the petitioner for his unauthorised use and occupation of the same since 1986 till date.
Send a copy of the judgment to respondent No. 2 for information.