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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

petition are partially true since all the respondents are not

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.


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’.


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

President’s 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 People’s

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’.


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 President’s

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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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 un-

successfully 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

President’s 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 Hon’ble 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 Hon’ble 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 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. 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 Hon’ble 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 Hon’ble High Court Division. The Appellate Division of the

Hon’ble 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 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, 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 Hon’ble Supreme Court of

Bangladesh, Appellate Division are annexed hereto and marked

as ANNEXURE - ‘IX’.



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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 President’s

Order No. 16 of 1972 and are not valid, binding or effective.


petition it is stated that the government treated the property as

abandoned property. According to the President’s 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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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. 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’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. 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.


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 People’s Republic

of Bangladesh, Bangladesh

Secretariate, Dhaka and another.

... ... RESPONDENTS.

Through :

A. F. Hassan Ariff, Advocate

Borhanuddin, Advocate

Ziauddin Ahmed Mamun, AdvocateMd. Ashik-al-Jalil, Advocate



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