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

-:( 2 ):-

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

That the statements made in paragraph 9.N. 5. That the statements made in paragraph 8 is incomplete and as such the respondent no. 7. 5.10. Sunamgonj. It is stated that respondent 9 is a private party and is the director of Balaka C.-:( 3 ):- misstated by the petitioner and hence denied. Conversion and Filling Station. 6. 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. . 8.12 and 13 of the writ petition are matters of record and as such it is strictly conferred upon the petitioner to prove the facts. 9 stated that the petitioner kept the paragraph 8 incomplete with undue motive and to abuse the process of the court. That the statements made in paragraph 4. Oaskhali. 11.G.

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 . 1971 the said property having been abandoned pursuant to President Order No. The said Abdul Khaleque Bain was never vendor of the petitioner before 25th March. 6. 1971.-:( 4 ):- 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. or could have been vendor after 25th March. 16 of 1972.

7. It is a blatant lie after lie that Abdul Khaleque Bain handed over possession to the petitioner.-:( 5 ):- forged and creation of the petitioner to grab the government abandoned property fraudulently. 1971. Suruchi Snacks. M/s. That the statements made in paragraph 6 of the writ petition are not true and hence denied. It was under control and possession of the Ministry of Works. Government of Bangladesh. At that time the counter was engaged in war with Pakistan. Sunshine Cable and Rubber Works. Possession of the said property was never handed over to the petitioner. 8. Ideal Motor Works and M/s. The petitioner or his alleged vendor Abdul Khaleque Bain was not in possession of the case property since 25th March. They deposited house rent as abandoned property by Chalan to the . 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.

50/. The petitioner might have used address of his sister office.for each set of documents from some selected Sonali Bank. Dilkusha and Motijheel Commercial Area including the case property 68. The petitioner was neither an allottee of the government nor in possession of the case property.-:( 6 ):- Government account. The ANNEXURES “C” series does not alter the character of the property as abandoned property. It was also advised to deposit 5% of the offered bid money as earnest money in any . Dhaka on any working day on or before 30-01-1985. The full sister of the petitioner M/s. 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. 9. It was advised to purchase the tender documents and schedule on payment of Tk. 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. Jahanara Begum was also one of the allottee of the Government in the case holding. Motijheel Commercial area.

-:( 7 ):- schedule Bank in favour of Executive Engineer. the petitioner filed the Title Suit No. Maintenance Division. 1765510 dated 30-01-1985 as 5% offered value as of earnest money and participated in the tender by offering Tk. Nazimuddin road Branch. Dhaka in the form of Pay Order or demand draft and to enclose the same with tender document.lacs became highest and his bid was accepted by the Government on the recommendation of Tender Committee.000/. purchased a tender document with schedule from Sonali Bank.000/lacs only and the respondent No.2. P.D. 2. Dhaka on 22-01-1985. Dilkusha. The tender was opened on 31-01-1985 while in the comparative statement the said Jahanara Begum became lowest by offering Tk.00. But on getting the result of tender bid.W. 84. 84. In all 5 candidates including Jahanara Begum full sister of the petitioner participated in the tender. 206 of 1985 on 18-02-1985 in the 3rd Court of Subordinate Judge. 15. offering Tk.000/.000/. 5.00. Dhaka by Pay Order No. Dhaka for specific performance of contract on forged document against the original owner of the case property Abdul Khaleque .00.Lacs only. Accordingly respondent No.00. He deposited Tk.at Pubali Bank.

It out and out false statement that respondents attempted to take over possession of the property as abandoned property. Dhaka as defendants vide ANNEXURE ‘D’ page 47 of the Writ Petition. 2 (Syed Md.-:( 8 ):- Bain (2) The auction purchaser the respondent 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. that the title suit No. 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. it is evident. represented by the Deputy commissioner. The petitioner of Title Suit No. 698 of 1985 filed in the 3rd Court of Dhaka was collusive and filed through impersonation. 1. 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. Abdul Khaleque . The original tenants were occupying as allottees under respondent No. The Title Suit No. Thus.

‘I’. 16 of 1972. the suit was filed through fraudulent collusive means and through impersonation.-:( 9 ):- Bain being a Pakistani citizen and 2nd the property being a covered by Presidents Order No. The alleged sale deed dated 10-08-1985. 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 . 10. 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 President’s Order No. In this respect. Photo copy of daily news paper The Ittefaque dated 02-01-1985 is annexed hereto as ANNEXURE .‘II’. 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. Photocopy of tender documents purchased by the respondent No. collusive and fraudulent and hence denied. 16 of 1972. 2 is annexed hereto ANNEXURE .

Dhaka under Pay Order No. 5. to make down payment of 15% of the offered price in favour of the Executive Engineer.000.00 including Tk. Nazimuddin Road Branch. 16. 16.000/-. 2. Dhaka which formed 1st instalment.00. No. Nazimuddin Road Branch. 1765510 dated 30-01-1985 of Pubali Bank. 2. Section V.000. The down payment of 15% and the earnest money of 5% together with from 1st instalment amounting to Tk. Government of the peoples Republic of Bangladesh under memo No.Lacs..10.-:( 10 ):- Bangabandhu Avenue. Dilkusha and Motijheel Commercial Area including the suit holding property to the highest bidder and the respondent No.80. Accordingly respondent No. But the possession .000/.00 at the Pubali Bank.000/.80. offered the highest price of Tk. was accepted by the tender committee consisting of high officials of different Ministry of the Government of Bangladesh. 2.paid earlier as earnest money under P. Thereafter a letter of acceptance of tender was issued by the Ministry of Works.2. 84. O.80. The tender of the respondent No. deposited Tk. 1826732 dated 11-06-1985 making a total Tk. Sec-V/IME-107/84/336 dated 28-05-19985 to the respondent No. PWD Maintenance Division.00.

-:( 11 ):- of the case building could not be delivered to him at that time due to the obstruction created by filing Title Suit No. 698 of 1985 filed by through impersonation for simple declaration. 206 of 1985 by the petitioner for specific performance of Contract and thereafter a collusive Title Suit No. 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. After getting entry as co-plaintiff No. judgement or any order from the learned Court. 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. declaration. during pendency of those two cases. 698 of 1985 which was allowed by the learned Court. 698 of 1985 on 01-08-1985 for simple declaration though the . 2. 2 in the said Title Suit No. in Title Suit No. 698 of 1985. 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. But before any hearing.

the Ministry of Works. Dhaka was dismissed on 08-08-1992 on hearing both the parties on ground of non-maintainability. It may also be mentioned here that there was not mention any where in the said Title Suit No. Management Board of Abandoned Property. 2. However. 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. Government of Republic of Bangladesh contested both the cases and ultimately Title Suit No. After dismissal of the Title Suit no. is still in possession of the . Government of the People’s Republic of Bangladesh and the auction purchaser respondent No. 18 of 1992 in the Court of Additional Subordinate Judge. 698 of 1985 about so called alleged agreement of sale of the case property to the petitioner.-:( 12 ):- Ministry of Works started process of selling the case property in Public auction long before by wide circulation through news papers. 698 of 1985 re-numbered as Title Suit No. 698 of 1985 re-numbered 18 of 1992 a sale agreement was signed between the Commissioner. 2. The said judgement and order have been affirmed by the High Court Division and the Appellate Division of the Supreme Court of Bangladesh.

‘III’.‘IV’. 187/94 was also filed by the petitioner and his wife in the Court of 2nd Sub-Judge. V/ IME-107/84/336 dated 28-05-1985 regarding acceptance of tender is annexed hereto and marked as ANNEXURE . Sec.-:( 13 ):- case property. 154 of 1992 on 11-07-1992 in the Curt of 4th Assistant Judge. A Title Appeal being No. . 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 . Dhaka for cancellation of the said auction sale and on hearing of both the parties it was dismissed. A photocopy of memo No. All those acts of the petitioner were to grab the Government abandoned property fraudulently and illegally. It may also be mentioned here that the petitioner and his wife Dr. Dhaka which was also dismissed on hearing the parties on 10-11-1997. Hasmat Ara Begum filed Title Suit No. Dhaka re-numbered as 7/94 in the Court of First Additional Assistant Judge.

154 of 1992 re-numbered as Title Suit No.‘V’. A photocopy of the certified copy of Judgement of Title Suit No. The original owner was not in possession in part or . the petitioner was never in possession of any part or whole of the property.‘VII’ and ‘VIII’. A photocopy of the delivering possession the case property on 09-08-1992 to the respondent No. 11. 7 of 1992 and a photocopy of the certified copy of judgement on Title Appeal No. 2. is annexed hereto and marked as ANNEXURE .-:( 14 ):- A photocopy of the sale agreement between the management board of abandoned property and the auction purchaser respondent No. That the statements made in paragraph 10 of the writ petition are blatant lies and concoctions and hence denied. 2 by the management of the abandoned property is annexed hereto and marked as ANNEXURE . 187 of 1994 regarding cancellation of auction sale are annexed hereto and marked as ANNEXURE .‘VI’.

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.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.-:( 15 ):- whole of the property since 25th March. . 1971. 1985. with respondent No. extra ordinary dated 23rd September. 1. It is stated that the case property was an abandoned property under President’s Order No. The respondent No. Ministry of Works Government of Bangladesh is baseless. 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. 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. The Petitioner was neither an allottee of the Government nor a tenant of the original owner non Bengali Abdul Khaleque Bain.

It is stated that the petitioner was neither an allottee of the government nor the tenant of the original owner of 68. That the statements made in paragraph 11 of the writ petition are blatant lies and hence denied.-:( 16 ):- 12. The question of fact pleaded in Suit No. Motijheel Commercial Area. 13. The full sister (Jahan Ara Begum) of the petitioner was a tenant under original owner and later an allottee of the Government. He was a trespasser in the occupying his sisters office. 698 of 1985 was dismissed as not-maintainable. 698 of 1985 and subsequent proceedings arising therefrom. The petitioner unsuccessfully went upto Appellate Division of the Supreme Court of Bangladesh. 206 of 1985 and Title Suit No. The Title Suit No. 12 to 25 of the writ petition it is stated that the statement made in those paragraphs are matters of Title Suit No. The petitioner might have used the office address of his sister an allottee to create document for grubbing the property. That with regard to the statements made in paragraph Nos. 206 of 1985 was dismissed for non-prosecution. He had to be evicted by the Government as unauthorised occupant. . The Title Suit No.

Motijheel commercial Area for simple declaration. 1997 holding that enlistment of the building was conclusive evidence of its being an abandoned property. Those statement are repetitions of facts of paragraph Nos. 16 of 1972. 14-08-1985 and 17-08-1985 for the said holding 68. 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.-:( 17 ):- 698 of 1985 therefore has been concluded by concurrent findings that the property is an abandoned property covered by President’s Order No. The fact in brief is that one Abdul Khaleque Bain (a Pakistani National) filed Title Suit No. Motijheel commercial Area from the said Pakistani National Abdul Khaleque Bain . 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 Hon’ble Supreme Court of Bangladesh by a Judgement dated 21st July. 698 of 1985 on 01-08-1985 in respect of the suit property of 68.

After being added as co-plaintiff No. 18 of 1992. Additional Court. Dhaka on 23-11-1988 and added in the original plaint. LIV of 1985 challenging the inclusion of the . 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. 698 of 1985 was made after coming into force of the ordinance No. Dhaka 25-01-1992 where it was re-numbered as Title Suit No.” The above amendment was allowed by the learned Subordinate Judge. The Title Suit No. 698 of 1985 was subsequently transferred to the Court of Subordinate Judge. 698 of 1985 the petitioner as co-plaintiff No. 2 in Title Suit No. The amendment in the original Suit No.-:( 18 ):- 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.

As such the learned subordinate Judge Additional Court. 18 of 1992.-:( 19 ):- case property in the “KA” list of abandoned property. 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 . The petitioner filed first appeal No. The Hon’ble High Court Division Bench on hearing both the parties made the following observation on 26-08-1996 in the said first appeal No. “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. 230 of 1992 in the Hon’ble High Court against the Judgement dated 08-08-1992 passed by the learned Subordinate Judge Additional Court Dhaka in Title Suit No. 230 of 1992 filed by the petitioner. Dhaka after hearing both the parties dismissed the suit under Order 7 Rule 11 on 08-08-1992.

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. The petitioner filed leave petition being Civil Petition No. 27 and 28 of the writ petition are matters of record relating to the Judgement of the Hon’ble High Court division and the Supreme Court of Bangladesh. 38 of 1997 before the Appellate Division of the Supreme Court of Bangladesh challenging the Judgement of the Hon’ble High Court Division. 26.-:( 20 ):- averments in the plaint. We therefore find nothing to interfere with the impugned judgement. That the statements made in paragraph Nos. The Appellate Division of the Hon’ble Supreme Court of Bangladesh after hearing both the . This appeal is dismissed without cost.” 14.

e. The suit was thus rightly dismissed. . The Hon’ble 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.‘IX’.-:( 21 ):- 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 original suit itself became not maintainable because the ordinance provided that enlistment of the building was conclusive evidence of is being an abandoned property. it would relate back to the date of institution of the suit i. The prayer was as if still born not to speak of having life from 01-08-1985. 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. Appellate Division are annexed hereto and marked as ANNEXURE .” The Judgement of the Hon’ble Supreme Court of Bangladesh.

. 30 of the writ petition it is stated that the government treated the property as abandoned property. 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. The original owner Abdul Khaleque Bain was not in possession of the case property after liberation war of Bangladesh. 16 of 1972 and the respondent No. binding or effective.-:( 22 ):- 15. 29 of the writ petition are not correct and hence denied. The sale deeds were illegal and collusive which are null and void as per section 6 of the President’s Order No. That the statements made in paragraph No. According to the President’s Order No. 16. 16 of 1972 and are not valid. That the statements made in paragraph No. Ministry and he is in possession of the case property since then. 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.

LIV of 1985 section 7. That the statements made in paragraph No. provides . 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. 38 of 1997. That the statements made in paragraph 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 petitioner having failed to establish his title in the property before any appropriate body. 18. he cannot claim any “fundamental right” in respect of non existent right. The Petitioner’s 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.-:( 23 ):- 17. The question whether the property is abandoned or not has been concluded by the finding of the Appellate Division in Civil Petition No. 31 of the writ petition it is submitted that the full bench of the Appellate division of the Hon’ble Supreme Court of Bangladesh by a Judgement dated 21-07-1997 in the leave petition No.

33 of the writ petition it is asserted that S. LIV of 1985 as per Government decision. 19. The petitioner therefore has no fundamental right in respect of abandoned property.R.O. . 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. 364-L/86 was Lawfully and rightly published as per section 5 of the ordinance No. The property being abandoned the alleged sale deeds are void. 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. As regards the grounds made in paragraph No. 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. 1985 and again thereafter till date. The grounds set forth are not tenable at all in law.-:( 24 ):- that any person claiming any right or interest in any building which is included in any list may.

Advocate Solemnly affirmed before me by the said deponent on this the day of . Prepared in my office Advocate Deponent The deponent is known to me and identified by me. 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. DHAKA .-:( 25 ):- 20. COMMISSIONER OF AFFIDAVITS SUPREME COURT OF BANGLADESH HIGH COURT DIVISION. 1999.

. . . Dhaka and another. represented by the Secretary. Advocate Md.. RESPONDENTS.. Advocate Borhanuddin. . Bangladesh Secretariate. Advocate . Ashik-al-Jalil.. Advocate Ziauddin Ahmed Mamun. Hassan Ariff... . PETITIONER.. Through : A. Government of the People’s Republic of Bangladesh. F. Ministry of Public Works..V E R S U S - Bangladesh.IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) WRIT PETITION NO. 6917 OF 1997 Al-Haj Seraj-ud-dowla .

-:( 27 ):- .