Sunday, August 18, 2019 | ePaper

Principles of the Natural Justice

Notice Be Served Prior To Allotment Cancellation

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Appellate Division :
(Civil)
Syed Mahmud Hossain C J
Md Imman Ali J     
Hasan Foez Siddique J
Mirza Hussain Haider J
Engineer AB Siddique….
………………..Petitioner
            vs
Kazi Akramuddin Ahmed
and others………….Respondents.

Judgment
March 29th, 2018
    
Constitution of Bangladesh, 1972
Article 102(2)

The writ petition was maintainable since the same was filed before filing the title suit.
We have gone through the judgment and order of this Division. We found that this Division answered the point raised by Mr Fida M. Kamal in its judgment. Moreover, since land, in question, was allotted to the writ petitioner on 15-7-2001 who deposited 25% of the price money fixed by the authority concerned and thereafter, without serving any notice to him that allotment was cancelled and the said land was allotted to the review petitioner on 4-12-2004 which clearly shows that the right of the writ petitioner in the disputed land has been infringed due to cancellation of the allotment so he have locus standi to challenge the order of cancellation and subsequent allotment to the review petitioner. This Division also found that admittedly before such cancellation no notice was served to the respondent No.1. That is such order of cancellation of his plot was passed violating the principles of natural justice. This Division also held that the writ petition was maintainable since the same was filed before filing the Title Suit.     (11)
Fida M Kamal, Senior Advocate, instructed by Nurul Islam Bhuiya, Advocate-on-Record-For the Appellant (plaintiffs).
Rokanuddin Mahmud 7 Senior Advocate, instructed by Chowdhury Md Zahangir, Advocate-on-Record-For the Respondents.
Judgment
Hasan Foez Siddique J : This review petition is directed against the judgment and order dated 3-2-2016 passed by this Division in Civil Appeal No. 184 of 2011 dismissing the appeal.
2. The relevant facts for the disposal of the petition, are that on 16-9-2000, writ petitioner filed an application to writ respondent No.1 for getting allotment of 3 kathas of land appertaining to RS Plot Nos. 1101 (part) and 1435 (part) of Chittagong, Agrabad Commercial Area for running his business. In view of the aforesaid application of the writ petitioner, writ respondent No.4 issued allotment letter on 15-7-2001, vide Memo No. kvLv -9/1Gj-22/2000/174 on the terms and conditions mentioned therein. Thereafter, writ-respondent No.6 issued a letter on 1-8-2001 asking the writ petitioner to deposit 25% of the price of the allotted land which was duly paid on 19-8-2004. Writ respondent No.6 wrote a letter to writ respondent No.5 seeking direction in respect of execution of lease deed and handing over possession of the allotted land to the writ petitioner. Since handing over of possession of the allotted land to the writ petitioner was being delayed, he filed an application to writ respondent No.1 on 2-10-2004 making a request to hand over-possession of the said allotment land to him. After that, on 6-10-2004 writ respondent No.6 wrote a letter to writ respondent No.5 making proposal for some correction in the letter dated 19-8-2004. By his order communicated under Memo No. kvLv-9/1Gj-22/2000/692 dated 4-12-2004 writ respondent No.4 cancelled the allotment of the writ petitioner without issuing any notice for showing cause. There was no allegation of violation of the terms and conditions of the letter of allotment by the writ petitioner and no notice for showing cause was served upon him giving him any opportunity of being heard. In the circumstances, the writ petitioner through his learned Advocated sent a telegraphic notice to writ respondent No.4 demanding justice but to no avail. Thus, the writ petitioner filed the writ petition and obtained Rule.
3. After issuance of the Rule, the writ petitioner filed an application for addition of party as well as for issuing further Rule reiterating the facts stated in the writ petition and stating further that one Abu Bakkar Siddique (the petitioner) prayed for allotment of the said allotted land by cancelling the allotment of the writ petitioner and the respondent No.4, by his order communicated under Memo No. dated 4-12-2004 cancelled the allotment of the writ petitioner. The allotment of the writ petitioner was cancelled on 4-12-2004 and on the same date the land in question was allotted to Abu Bakar Siddique, the present petitioner. The High Court Division was in seisin of the matter and knowing fully well about the issuance of Rule, respondent No.4 by his letter communicated under Memo No. kvLv-9/1Gj-22/2000/743/1(K) dated 23-12-2004 permitted said Abu Bakar Siddique to deposit money is respect of the land in question and on 28-12-2004, possession of the said land was handed over to him. In the aforesaid circumstances, allottee Abu Bakar Siddique was added as respondent No.7 and further Rule Nisi was issued calling upon the writ respondents to show cause as to why the letter communicated under Memo No. kvLv-9/1Gj-22/2000/174 dated 4-12-2004 and the letter communicated under Memo No. kvLv-9/1Gj-22/2000/743/17(5) dated 23-12-2004 (annexure-K and L to the writ petition) issued by writ respondent No.4 in favour of writ respondent No.7 should not be declared to have been made without lawful authority and to be of no legal effect.
4. The Rules were contested by writ respondent Nos. 6 the Executive Engineer, Public Works Circle-1, Chittagong and added writ respondent No.7 by filing separate sets of affidavits-in-opposition.
5. In his affidavit-in-opposition writ respondent No.7 controverted the material allegations made in the writ petition. His case, in short, was that the writ petition involves question of facets. After filing the same, the writ petitioner has filed Other Suit No.32 of 2005 in Court of Joint District Judge Second Court Chittagong, which was pending so the instant writ petition was not maintainable. Office of writ respondent No.4 by letter dated 18-4-2000 instructed writ respondent No.7 to file the order of dismissal for default withdrawal of Other Appeal No.311 of 1991 filed by the original land owner Amena Khatun and others to facilitate allotment of the land in question to him. Writ respondent No.7 obtained certified copy of the order of dismissal on 27-7-2004 and submitted the same to the Ministry of Housing and Public Works on 31-7-2004 for taking necessary action. After submitting the certified copy of the order of dismissal for default of the said appeal by writ respondent No.7 the writ petitioner submitted the self same certified copy on 4-10-2004. On 15-7-2001 the writ petitioner illegally obtained allotment of the strip of land of RS Plot No.1101 (part) with RS. Plot No. 1435 (part) owned by writ respondent No.7 from the Ministry of Public Works by suppressing the fact that RS plot. No. 1435 is not an acquired land but is a private land exclusively owned by writ respondent No.7 by way of purchase from its original owner Amena Khatun and others. The writ petitioner also suppressed the fact that RS plot No. 1101 is adjacent to RS plot No. 1435 and is the only passage of the writ respondent No.7 for his ingress and egress from the other adjacent private land owned by him. In obtaining the allotment, the earlier applications dated 17-1-1999 and 13-7-2001 (filed by the writ respondent No.7 to respondent No.1 for granting him lease of RS plot No.1101 (part) were bypassed on 27-5-2003, writ respondent No.7 filed an application to writ respondent No.1 for cancelling the illegal allotment given to the writ petitioner and then to give allotment to him the land of plot No. 1101 (part). In the application writ respondent No.7 stated in detail about the fraudulent activities of the writ-petitioner and suppression of actual facts by him in obtaining the allotment of the land in question. On the basis of the application of writ respondent No.7 dated 27-5-2003 two physical inquires were held, one by respondent No.4 on 15-8-2002 and the other by the concerned Ministry itself on 20-11-2003 within the knowledge of the writ petitioner and they submitted their reports in the matter. Both the inquiry reports revealed that RS plot No. 1435 is not acquired land of the Government and that it is owned by writ respondent No.7. The inquiry reports, also disclosed that the land of RS plot No.ll01 acquired by the government is adjacent to RS plot No. 1435 and, as such, the claim of the writ petitioner in the application filed by him on 2-10-2004 that writ respondent No.7 has no land adjacent to RS plot No.1101 was not proved. The entire matter has been reflected in the opinion of the legal Adviser of the Ministry of Housing and Public Works dated 5-8-2003. Respondent No.4 also in his inquiry report dated 5-8-2002 passed similar opinion. Moreover, it is evident from note No.37 of the note sheets of the Ministry dated 24-8-2002 that writ respondent No.4 in his inquiry report gave indication for resolving the dispute with the writ petitioner, the previous allottee by allotting him another plot instead of the land in question.
6. In the affidavit-in-opposition filed by writ respondent No.6 it has been contended, inter alia, that the Public Works Department/Circle-1, Chittagong owned a strip of land in RS plot No. 3101 (part) adjacent to RS plot No. 1435 owned by Engineer AB Siddique, the present lessee of the strip of land. The writ petitioner prayed for giving him lease of 3 (three) kathas of land of RS plot No.ll01 (part) and RS plot No. 1435 (part) vide his application dated 16-9-2000 and writ respondent No.7 filed application for allotment on 17-7-1999. The present lessee was instructed by the office of writ respondent No.4 by letter dated 18-4-2004 to file the order of dismissal of Other Appeal No.311 of 1991 to facilitate allotment of the land in question. Accordingly, he filed the order of dismissal dated 24-7-2004 which was sent to the Ministry on 31-7-2004 for necessary action. The Government had adopted policy from time to time for allotment of plots and strips of land and according to that policy writ-respondent No.4 issued memo No. Shakha 9/1, L-22/200/692 dated 4-12-2004 cancelling the allotment of the writ petitioner. Only 25% of the value was deposited by the writ petitioner out of total amount of value of the land. But because of the pendency of Other Appeal No.311 of 1991 before the Sixth Additional District Judge, Chittagong and objection of adjacent plot owner, writ respondent No.7, the possession of the land could not be delivered to the writ petitioner. The whole process of cancellation of allotment was completed within the knowledge of the writ petitioner. Actually, writ respondent No.7 is the owner of RS plot No.1435 which is adjacent to the disputed land owned by the government and his application was earlier than that of the writ petitioner and, as such, cancellation of allotment of the writ petitioner and allotment of the land in question in favour of writ respondent No.7 were done owing to legal obligation. As the writ petitioner led Other Class Suit No.32 of 2005 in the Second Court of Joint District Judge, Chittagong seeking selfsame relief for the same subject matter, the Rule is liable to be discharged.
7. The High Court Division, upon hearing the parties,  by the judgment and order dated 3-10-2010 made the Rule absolute and declared Annexure-'K' and 'L' to the writ petition to have been issued without lawful authority.
8. Against the said judgment and order of the High Court Division, the petitioner filed Civil Appeal No. 184 of 2011 on getting leave. This Division by the impugned judgment and order dismissed the said appeal. Thus, the petitioner has filed this review petition.
9. Mr Fida M Kamal, learned Senior Counsel appearing for the petitioner submits that there is an error of law apparent on the face of record in the judgment and order of this Division, sine this Division failed to take notice that writ petitioner had no locus standi to file writ petition for enforcement of an incomplete and inconclusive contract of the lease. So he cannot complain of any grievance.
10. Mr Rokanuddin Mahmud learned Senior Counsel appearing for the respondent No.1, submits that the ground, raised by the learned Counsel for review petitioner, leave was granted and this Division on proper appreciation of materials on record considered the said ground and dismissed the appeal.
11. We have gone through the judgment and order of this Division. We found that this Division answered the point raised by Mr Fida M. Kamal in its judgment.
Moreover, since land, in question, was allotted to the writ petitioner on 15-7-2001 who deposited 25% of the price money fixed by the authority concerned and thereafter, without serving any notice to him that allotment was cancelled and the said land was allotted to the review petitioner on 4-12-2004 which clearly shows that the right of the writ petitioner in the disputed land has been infringed due to cancellation of the allotment so he have locus standi to challenge the order of cancellation and subsequent allotment to the review petitioner.
This Division also found that admittedly before such cancellation no notice was served to the respondent No.1.  That is such order of cancellation of his plot was passed violating the principles of natural justice. This Division also held that the writ petition was maintainable since the same was filed before filing the Title Suit.
12. In such view of the matter, we do not find any error of law apparent on the face of the record in the judgment of this Division.
13. Accordingly, we do not find any substance in this review petition.
Thus, the review petition is dismissed.

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