IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 7411 OF 2011

Engineer Sajib Ranajan Das ... ... PETITIONER. - V E R S U S Bangladesh and Others
... ... RESPONDENTS.

Affidavit-in-Opposition on behalf of the Respondent No. 9, Md. Moshiur Reza I, Md. Moshiur Reza son of Hazi Md. Chan Miah, aged about 35 years, of 22 Surovi Notun Hassan Nagor, Sunamgonj, by faith Muslim, by Occupation Business, by Nationality Bangladeshi, do hereby solemnly affirm and state as follows :1. That I am the respondent No. 9 of the aforesaid writ

petition and in that capacity I am thoroughly conversant with

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the facts and circumstances of the case and as such I am competent to swear this affidavit. 2. That a copy of the writ application whereupon the said

Rule Nisi have been issued having been served upon this respondent No.9 the deponent going through the same have understood the meaning of the contents thereof fully and this deponent has been advised to controvert only those statements which are relevant and necessary for the purpose of disposal of this Rule and those statements which are not specifically admitted hereinafter shall be deemed to have been denied by the respondent and the petitioner shall have to prove the same. 3. That the statements made in paragraph 1 and 2 of the writ

petition are matters of record. 4. That the statements made in paragraph No. 3 of the writ are partially true since all the respondents are not

petition

holding respective official position concerning issues related to the Ministry of Energy and Mineral Resources. Thus, the respondent no.9 stated that his identification was deliberately

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misstated by the petitioner and hence denied. It is stated that respondent 9 is a private party and is the director of Balaka C.N.G. Conversion and Filling Station, Oaskhali, Sunamgonj. 5. That the statements made in paragraph 4, 5, 6 and 7 of

the writ petition are matters of record and as such it is strictly conferred upon the petitioner to prove the facts. 6. That the statements made in paragraph 8 is incomplete and as such the respondent no. 9 stated that the petitioner kept the paragraph 8 incomplete with undue motive and to abuse the process of the court. 7. That the statements made in paragraph 9,10, 11,12 and 13 of the writ petition are matters of record and as such it is strictly conferred upon the petitioner to prove the facts. 8.

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That with regard to the statements made in paragraph 4 of the writ petition, it is stated that the original owner of the case property Abdul Khaleque Bain was non-Bengali and a citizen of Pakistan which was at war against the Republic of Bangladesh and he left former East Pakistan during the war of Liberation abandoning the property and his whereabouts were not known since 25th March 1971 and since then he was not in possession of the case property. The said Abdul Khaleque Bain was never vendor of the petitioner before 25th March, 1971, or could have been vendor after 25th March, 1971 the said property having been abandoned pursuant to President Order No. 16 of 1972. 6. That the statements made in paragraph 5 of the writ

petition are not true and hence denied. The so called agreement for sale dated 25-05-1971 of the case property between the petitioner and the original owner Abdul Khaleque Bain is

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forged and creation of the petitioner to grab the government abandoned property fraudulently. At that time the counter was engaged in war with Pakistan. It is a blatant lie after lie that Abdul Khaleque Bain handed over possession to the petitioner. Possession of the said property was never handed over to the petitioner. 7. That the statements made in paragraph 6 of the writ

petition are not true and hence denied. The petitioner or his alleged vendor Abdul Khaleque Bain was not in possession of the case property since 25th March, 1971. It was under control and possession of the Ministry of Works, Government of Bangladesh. 8. As regards the statements made in paragraph 7 of the writ

petition it is stated that the case property was in possession and control of the Ministry of Public Works and Urban Development of the Government of Bangladesh as abandoned property through its allottee M/s. Sunshine Cable and Rubber Works, M/s. Ideal Motor Works and M/s. Suruchi Snacks. They deposited house rent as abandoned property by Chalan to the

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Government account. The full sister of the petitioner M/s. Jahanara Begum was also one of the allottee of the Government in the case holding. The petitioner was neither an allottee of the government nor in possession of the case property. The petitioner might have used address of his sister office. The ANNEXURES C series does not alter the character of the property as abandoned property. 9. That with regard to the statements made in paragraph 8

of the writ petition it is stated that the government invited sealed tender for sale of 13 abandoned property of Bangabandhu Avenue, Dilkusha and Motijheel Commercial Area including the case property 68, Motijheel Commercial area. It was advertised in the Daily News Paper like Ittefaque etc. on 02-01-1985 inviting tender from intending purchaser with closing date on 31-01-1985. It was advised to purchase the tender documents and schedule on payment of Tk. 50/- for each set of documents from some selected Sonali Bank, Dhaka on any working day on or before 30-01-1985. It was also advised to deposit 5% of the offered bid money as earnest money in any

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schedule Bank in favour of Executive Engineer, P.W.D. Maintenance Division, Dhaka in the form of Pay Order or demand draft and to enclose the same with tender document. Accordingly respondent No. 2, purchased a tender document with schedule from Sonali Bank, Dilkusha, Dhaka on 22-01-1985. He deposited Tk. 5,00,000/- at Pubali Bank, Nazimuddin road Branch, Dhaka by Pay Order No. 1765510 dated 30-01-1985 as 5% offered value as of earnest money and participated in the tender by offering Tk. 84,00,000/- Lacs only. In all 5 candidates including Jahanara Begum full sister of the petitioner participated in the tender. The tender was opened on 31-01-1985 while in the comparative statement the said Jahanara Begum became lowest by offering Tk. 15,00,000/lacs only and the respondent No.2, offering Tk. 84,00,000/- lacs became highest and his bid was accepted by the Government on the recommendation of Tender Committee. But on getting the result of tender bid, the petitioner filed the Title Suit No. 206 of 1985 on 18-02-1985 in the 3rd Court of Subordinate Judge, Dhaka for specific performance of contract on forged document against the original owner of the case property Abdul Khaleque

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Bain (2) The auction purchaser the respondent No. 2 (Syed Md. Altaf Hussain) (3) another participants in the tender Serajul Islam (4) Secretary Ministry of Public Works and Urban Development of the Government of Bangladesh and (5) Bangladesh, represented by the Deputy commissioner, Dhaka as defendants vide ANNEXURE D page 47 of the Writ Petition. The petitioner of Title Suit No. 206 of 1985 never appeared in the surface with the so called agreement for sale nor he claimed any right under the said contract to the government at any time before opening the tender for auction sale although his full sister Jahanara Begum participated in the tender. Thus, it is evident, that the title suit No. 206 of 1985 was filed by the petitioner by creating forged document of alleged Bainanama to prevent the Government from selling the abandoned property and to grab the same fraudulently. It out and out false statement that respondents attempted to take over possession of the property as abandoned property. The original tenants were occupying as allottees under respondent No. 1. The Title Suit No. 698 of 1985 filed in the 3rd Court of Dhaka was collusive and filed through impersonation. Abdul Khaleque

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Bain being a Pakistani citizen and 2nd the property being a covered by Presidents Order No. 16 of 1972, the suit was filed through fraudulent collusive means and through impersonation. Photo copy of daily news paper The Ittefaque dated 02-01-1985 is annexed hereto as ANNEXURE - I. Photocopy of tender documents purchased by the respondent No. 2 is annexed hereto ANNEXURE - II. 10. That the statements made in paragraph 9 of the writ

petition are creation of fertile brain of the petitioner and the alleged agreement and deeds are forged, collusive and fraudulent and hence denied. The alleged sale deed dated 10-08-1985, 14-08-1985 and 17-08-1985 are collusive

fraudulent and void document the so called Vendor had no subsisting interest in the abandoned property covered by Presidents Order No. 16 of 1972. In this respect, it is stated that the Government by a notification through press published in the daily Ittefaque dated 02-01-1985 invited tender from intending candidates for sale of 13 abandoned houses of

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Bangabandhu Avenue, Dilkusha and Motijheel Commercial Area including the suit holding property to the highest bidder and the respondent No.2, offered the highest price of Tk. 84,00,000/- Lacs. The tender of the respondent No. 2, was accepted by the tender committee consisting of high officials of different Ministry of the Government of Bangladesh. Thereafter a letter of acceptance of tender was issued by the Ministry of Works, Section V, Government of the peoples Republic of Bangladesh under memo No. Sec-V/IME-107/84/336 dated 28-05-19985 to the respondent No., 2, to make down payment of 15% of the offered price in favour of the Executive Engineer, PWD Maintenance Division. The down payment of 15% and the earnest money of 5% together with from 1st instalment amounting to Tk. 16,80,000/-. Accordingly respondent No. 2, deposited Tk.10,80,000.00 at the Pubali Bank, Nazimuddin Road Branch, Dhaka under Pay Order No. 1826732 dated 11-06-1985 making a total Tk. 16,80,000.00 including Tk. 5,00,000/- paid earlier as earnest money under P. O. No. 1765510 dated 30-01-1985 of Pubali Bank, Nazimuddin Road Branch, Dhaka which formed 1st instalment. But the possession

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of the case building could not be delivered to him at that time due to the obstruction created by filing Title Suit No. 206 of 1985 by the petitioner for specific performance of Contract and thereafter a collusive Title Suit No. 698 of 1985 filed by through impersonation for simple declaration. But before any hearing, declaration, judgement or any order from the learned Court, during pendency of those two cases, the petitioner fraudulently obtained the alleged three deeds of sale of the case property from the said non-Bengali Abdul Khaleque Bain illegally and collusively and then he applied for impleading himself as co-plaintiff No. 2 in the said Title Suit No. 698 of 1985 which was allowed by the learned Court. After getting entry as co-plaintiff No. 2, in Title Suit No. 698 of 1985, he prayed for withdrawal of Title Suit No. 206 of 1985 for specific performance of contract and accordingly it was dismissed on 10-12-1985 for non prosecution. It may be mentioned here that the original owner of the case property Abdul Khaleque Bain also never appeared in the surface or claimed any right over the case property to the government before filing the Title Suit No. 698 of 1985 on 01-08-1985 for simple declaration though the

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Ministry of Works started process of selling the case property in Public auction long before by wide circulation through news papers. It may also be mentioned here that there was not mention any where in the said Title Suit No. 698 of 1985 about so called alleged agreement of sale of the case property to the petitioner. However, the Ministry of Works, Government of Republic of Bangladesh contested both the cases and ultimately Title Suit No. 698 of 1985 re-numbered as Title Suit No. 18 of 1992 in the Court of Additional Subordinate Judge, Dhaka was dismissed on 08-08-1992 on hearing both the parties on ground of non-maintainability. The said judgement and order have been affirmed by the High Court Division and the Appellate Division of the Supreme Court of Bangladesh. After dismissal of the Title Suit no. 698 of 1985 re-numbered 18 of 1992 a sale agreement was signed between the Commissioner, Management Board of Abandoned Property, Government of the Peoples Republic of Bangladesh and the auction purchaser respondent No. 2, on 09-08-1992 and the possession of the case property was delivered to him by the Magistrate of the concerned Ministry and the respondent No. 2, is still in possession of the

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case property. It may also be mentioned here that the petitioner and his wife Dr. Hasmat Ara Begum filed Title Suit No. 154 of 1992 on 11-07-1992 in the Curt of 4th Assistant Judge, Dhaka re-numbered as 7/94 in the Court of First Additional Assistant Judge, Dhaka for cancellation of the said auction sale and on hearing of both the parties it was dismissed. A Title Appeal being No. 187/94 was also filed by the petitioner and his wife in the Court of 2nd Sub-Judge, Dhaka which was also dismissed on hearing the parties on 10-11-1997. All those acts of the petitioner were to grab the Government abandoned property fraudulently and illegally. A photocopy of memo No. Sec. V/ IME-107/84/336 dated 28-05-1985 regarding acceptance of tender is annexed hereto and marked as ANNEXURE - III. A photocopy of the certified copy of Judgement in Title Suit No. 698 of 1985 re-numbered as 18 of 1992 are annexed hereto and marked as ANNEXURE - IV.

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A photocopy of the sale agreement between the management board of abandoned property and the auction purchaser respondent No. 2, is annexed hereto and marked as ANNEXURE - V. A photocopy of the delivering possession the case property on 09-08-1992 to the respondent No. 2 by the management of the abandoned property is annexed hereto and marked as ANNEXURE - VI. A photocopy of the certified copy of Judgement of Title Suit No. 154 of 1992 re-numbered as Title Suit No. 7 of 1992 and a photocopy of the certified copy of judgement on Title Appeal No. 187 of 1994 regarding cancellation of auction sale are annexed hereto and marked as ANNEXURE - VII and VIII. 11. That the statements made in paragraph 10 of the writ

petition are blatant lies and concoctions and hence denied. the petitioner was never in possession of any part or whole of the property. The original owner was not in possession in part or

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whole of the property since 25th March, 1971. It is stated that the case property was an abandoned property under Presidents Order No. 16 of 1972 and its possession was taken by the government and subsequently it was Lawfully included in the KA list of the abandoned building under section 5(1)(a) of Ordinance No. LIV of 1985 Published in the Bangladesh Gazette, extra ordinary dated 23rd September, 1985. The case property was actually in possession and control of the ministry of Public Works and Urban Development of the Government of Bangladesh through its allottees. The Petitioner was neither an allottee of the Government nor a tenant of the original owner non Bengali Abdul Khaleque Bain. The respondent No.2, is a bonafide purchaser of the case property for value from the Government and as such he is entitled to hold and enjoy the property. He was never in the scene of the case property before participation in the tender of the auction sale of the case property and hence the question of collusion of respondent No.2, with respondent No. 1, Ministry of Works Government of Bangladesh is baseless.

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12.

That the statements made in paragraph 11 of the writ

petition are blatant lies and hence denied. The full sister (Jahan Ara Begum) of the petitioner was a tenant under original owner and later an allottee of the Government. The petitioner might have used the office address of his sister an allottee to create document for grubbing the property. It is stated that the petitioner was neither an allottee of the government nor the tenant of the original owner of 68, Motijheel Commercial Area. He was a trespasser in the occupying his sisters office. He had to be evicted by the Government as unauthorised occupant. 13. That with regard to the statements made in paragraph

Nos. 12 to 25 of the writ petition it is stated that the statement made in those paragraphs are matters of Title Suit No. 206 of 1985 and Title Suit No. 698 of 1985 and subsequent proceedings arising therefrom. The Title Suit No. 206 of 1985 was dismissed for non-prosecution. The Title Suit No. 698 of 1985 was dismissed as not-maintainable. The petitioner unsuccessfully went upto Appellate Division of the Supreme Court of Bangladesh. The question of fact pleaded in Suit No.

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698 of 1985 therefore has been concluded by concurrent findings that the property is an abandoned property covered by Presidents Order No. 16 of 1972. Those statement are repetitions of facts of paragraph Nos. 3 to 18 of the Civil Petition for special leave to Appeal No. 38 of 1997 filed by the Petitioner which was dismissed by the full bench of the Appellate Division of the Honble Supreme Court of Bangladesh by a Judgement dated 21st July, 1997 holding that enlistment of the building was conclusive evidence of its being an abandoned property. The fact in brief is that one Abdul Khaleque Bain (a Pakistani National) filed Title Suit No. 698 of 1985 on 01-08-1985 in respect of the suit property of 68, Motijheel commercial Area for simple declaration. But during pendency of the said suit before hearing or any declaration or Judgement or order from the learned Court the petitioner obtained 3(three) registered sale deed fraudulently on 10-08-1985, 14-08-1985 and 17-08-1985 for the said holding 68, Motijheel commercial Area from the said Pakistani National Abdul Khaleque Bain

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illegally to grab the Government abandoned property and after obtaining the said illegal deed from Abdul Khaleque Bain the petitioner applied for impleading him as co-plaintiff in the above suit which was allowed on 04-11-1985. After being added as co-plaintiff No. 2 in Title Suit No. 698 of 1985 the petitioner as co-plaintiff No. 2 sought for further declaration amending the original plaint in 1988 which are as follows:A decree declaring that the treating of the suit property as abandoned and enlisting the same as such in the Bangladesh Gazette published on 23-09-1986 is without jurisdiction malafide and of no legal effect. The above amendment was allowed by the learned Subordinate Judge, Dhaka on 23-11-1988 and added in the original plaint. The Title Suit No. 698 of 1985 was subsequently transferred to the Court of Subordinate Judge, Additional Court, Dhaka 25-01-1992 where it was re-numbered as Title Suit No. 18 of 1992. The amendment in the original Suit No. 698 of 1985 was made after coming into force of the ordinance No. LIV of 1985 challenging the inclusion of the

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case property in the KA list of abandoned property. As such the learned subordinate Judge Additional Court, Dhaka after hearing both the parties dismissed the suit under Order 7 Rule 11 on 08-08-1992. The petitioner filed first appeal No. 230 of 1992 in the Honble High Court against the Judgement dated 08-08-1992 passed by the learned Subordinate Judge Additional Court Dhaka in Title Suit No. 18 of 1992. The Honble High Court Division Bench on hearing both the parties made the following observation on 26-08-1996 in the said first appeal No. 230 of 1992 filed by the petitioner. Added new relief which was apparently not continuation of the original relief and necessitated due to the subsequent inclusion of the suit property in the list published under the provisions of the ordinance cannot come within the logic that the amendment will have to be taken as if it was in the plaint on the date of filing of the suit. True even inconsistence or alternative relief may be added by amending the plaint but that can only be allowed if the added relief is based upon the original

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averments in the plaint. The moment the plaintiff challenged the inclusion of the suit property in the list prepared under the provision of the ordinance by adding new averments as Paragraph 4(A) to 4(I) after the original paragraph 4 of the plaint his suit became expressly barred under section 6 of the ordinance and also became impliedly barred as the ordinance provides remedy for wrong inclusion of the property in the list in question. We therefore find nothing to interfere with the impugned judgement. This appeal is dismissed without cost. 14. That the statements made in paragraph Nos. 26, 27 and

28 of the writ petition are matters of record relating to the Judgement of the Honble High Court division and the Supreme Court of Bangladesh. The petitioner filed leave petition being Civil Petition No. 38 of 1997 before the Appellate Division of the Supreme Court of Bangladesh challenging the Judgement of the Honble High Court Division. The Appellate Division of the Honble Supreme Court of Bangladesh after hearing both the

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parties dismissed the petition by a judgement dated 21-07-1997 quoting the facts and circumstances of the case and relevant sections of Law. The Honble supreme Court of Bangladesh Dhaka in the Judgement dated 21-07-1997 held that : The submission that when the amendment was no objection to it, it would relate back to the date of institution of the suit i.e. on 01-08-1985 and the suit cannot therefore he held to be barred overlooked the legal reality that such a relief could not be even prayed for after coming into force of the ordinance. The prayer was as if still born not to speak of having life from 01-08-1985. The original suit itself became not maintainable because the ordinance provided that enlistment of the building was conclusive evidence of is being an abandoned property. The suit was thus rightly dismissed. The Judgement of the Honble Supreme Court of Bangladesh, Appellate Division are annexed hereto and marked as ANNEXURE - IX.

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15.

That the statements made in paragraph No. 29 of the writ

petition are not correct and hence denied. The original owner Abdul Khaleque Bain was not in possession of the case property after liberation war of Bangladesh. He being Pakistani Citizen left for his native district in erstwhile West Pakistan during liberation war of Bangladesh following which the suit property was rightly and Lawfully enlisted in the KA list as abandoned property. The sale deeds were illegal and collusive which are null and void as per section 6 of the Presidents Order No. 16 of 1972 and are not valid, binding or effective. 16. That the statements made in paragraph No. 30 of the writ

petition it is stated that the government treated the property as abandoned property. According to the Presidents Order No. 16 of 1972 and the respondent No. 2 is the auction purchaser of the suit property being highest bidder and the possession of the case property was handed over to him on 09-08-1992 by he Magistrate of the concerned, Ministry and he is in possession of the case property since then.

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17.

That the statements made in paragraph No. 31 of the writ

petition it is submitted that the full bench of the Appellate division of the Honble Supreme Court of Bangladesh by a Judgement dated 21-07-1997 in the leave petition No. 38 of 1997 already decided the matter that the enlistment of building in the KA list was conclusive evidence of is being an Abandoned Property. The Petitioners claim under Article 42 of the constitution does not arise within the purview of Article 42(1) & (3) of the constitution as the property belongs to Government. The petitioner having failed to establish his title in the property before any appropriate body, he cannot claim any fundamental right in respect of non existent right. The question whether the property is abandoned or not has been concluded by the finding of the Appellate Division in Civil Petition No. 38 of 1997. 18. That the statements made in paragraph No. 32 of the writ

petition are not correct and the plea of the petitioner for not filing application before the court of settlement in time is not tenable because ordinance No. LIV of 1985 section 7, provides

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that any person claiming any right or interest in any building which is included in any list may, within a period of one hundred and eighty days from the date of publication of the list in the official Gazette make an application to the Court of Settlement for exclusion of the building from such list. 19. As regards the grounds made in paragraph No. 33 of the

writ petition it is asserted that S.R.O. 364-L/86 was Lawfully and rightly published as per section 5 of the ordinance No. LIV of 1985 as per Government decision. The alleged presence of Abdul Khaleque Bain in Bangladesh on and from 25-03-1971 is a question of fact and cannot be decided in a petition from under Article 102 of the Constitution. There is nothing on record about his whereabouts in Bangladesh or and from 25-03-1971 till alleged execution of fraudulent sale deed in August, 1985 and again thereafter till date. The property being abandoned the alleged sale deeds are void. The petitioner therefore has no fundamental right in respect of abandoned property. The grounds set forth are not tenable at all in law.

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20.

That the statements made herein above are true to my

knowledge and information obtained from the office records and in truth were of I sign this affidavit. Prepared in my office Advocate Deponent The deponent is known to me and identified by me.

Advocate Solemnly affirmed before me by the said deponent on this the day of , 1999.

COMMISSIONER OF AFFIDAVITS SUPREME COURT OF BANGLADESH HIGH COURT DIVISION, DHAKA

IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 6917 OF 1997

Al-Haj Seraj-ud-dowla
... ... PETITIONER. - V E R S U S -

Bangladesh,

represented

by

the

Secretary, Ministry of Public Works, Government of the Peoples Republic of Bangladesh, Bangladesh Secretariate, Dhaka and another.
... ... RESPONDENTS.

Through : A. F. Hassan Ariff, Advocate Borhanuddin, Advocate Ziauddin Ahmed Mamun, Advocate Md. Ashik-al-Jalil, Advocate

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