The New Nation - Internet Edition

High court division

(Civil Revisional Jurisdiction)

Shah Abu Nayeem Mominur Rahman-J. Mayeenul Islam Chowdhury -J.

WRIT PETITION NO. 1155 OF 1996

(An application under Article 102 of the Constitution of the Peoples Republic of Bangladesh)

Delta, Jute Mills Limited ttPetitioner

Vs.

The Deputy Commissioner. Noakhali, Collectoratc Building, Noakhali and othersttttttt Respondents.

For the Petitioner Mr. K.M.S. Hassan,

Advocate ; For Respondents

No.1 and 2 Mrs. Showkat Ara

Begum, A.A.G.

Judgment: 7 December 2004

Constitution of Bangladesh-

Article 102- After the lease was granted and the lease money du1y paid. the functionaries of the Govt. are duty bound to hand over the vacant possession of the lease hold land to the lessee.

The admitted position is that the Deputy Commissioner, Noakhali, could deliver the possession of 10.l7 acres of land out of the lease hold 60 acres of land and for which the writ petitioner has paid entire consideration money and also Tk- one lac seventy two thousand in excess on humanitarian ground for eviction and rehabilitation of the illegal occupants and that the respondents are obliged under the provision of law to evict the illegal occupants and deliver vacant possession thereof to the writ petitioner-lessee. It further appears, as has been submitted, that the lease, in the meantime has been renewed. Thus we find substance in the Rule (Para 6)

Accordingly, the Rule is made absolute without any order as to costs. The respondent Nos. l and 2 are directed to evict the illegal occupiers of 10.17 acres of land in reference and to deliver vacant possession thereof to the writ petitioner within 60 days from the date of intimation about this order by or on behalf of the writ petitioner Company enclosing a copy of this order and the respondents are directed to ensure that the respondent Nos. l and 2, after evicting the illegal occupiers from the case land, deliver vacant possession of the same to the writ petitioner within time (Para 7)

JUDGMENT

SHAH ABU NAYEEM MOMINUR RAHMAN. J.:- In this Rule direction for delivery of 10.17 acres of land out of purchased 60-00 acres land by the petitioner Company from the Government has been prayed for, contending. inter-alia, that the petitioner company for establishment of a Jute Mill got allotment of lease of 60 acres of land on 29.4.63 from the Government and as per terms and conditions as agreed upon and on receipt of the payment of the entire consideration amount the Government executed and registered the formal lease deed on 7.11.69 though handed over the physical possession of the 49.83 acres of land out of the 60 acres leased out land to the petitioner Company earlier on 17.5.63, and that the possession of the balance 10.17 acres of land being in occupation of unauthorised persons could not be delivered and accordingly the Deputy Commissioner, Noakhali, was puruaded to hand over the vacant possession of the aforesaid 10.17 acres of land to the petitioner Company and that on humanitarian ground in order to rehabilitate the unauthorized occupants a Project Implementation Committee was formed by the Deputy Commissioner, Noakhali, with the D.G.M. of the petitioner-Company as convener and as per recommendation of the said committee the petitioner company paid an amount of Tk.l,42,000/ - beyond the consideration amount paid earlier as lease-premium, for the purpose of eviction and rehabilitation of the unauthorised occupants of the said 10.17 acres of land and thereafter upon request by the A.D.C (Rev.), Noakhali, the petitioner company further placed Tk.30,000/ - to the said rehabilitation committee and thus the petitioner company in total paid Tk.l,72,000/in excess for eviction and rehabilitation of the unauthorised occupants of said 10-17 acres of land and pursuant thereto process of eviction was initiated and notice under Section 5(1) of Ordinance 24/1970 was issued upon the unauthorised occupants on 25th August. 1993 but the process of eviction was not followed up by the Deputy Commissioner's Office, causing loss and damage to as well as interference in the management and affairs of the petitioner Company althrough.

2. The respondent Nos. 1 and 2 contested the Rule by filing power and the respondent No. 1 filed an affidavit - in- opposition.

3. The learned Assistant Attorney General appearing for the respondent Nos.1 and 2 taking us through the affidavit - in-opposition filed by respondent No. 1 submitted that the lease was for 30 years effective from 17.5.63 and with the expiry of the period of 30 years, there being no renewal. the petitioner has no subsisting right-to pay for eviction of the trespassers. It has been stated in the affidavit- in- opposition that physical possession of entire 60 acres was delivered to the Company and accordingly separate Khatian was opened in the name of the Company releasing the same from the khas Khutian but the learned A.A.G. appearing for the respondent submitted that the said statement as to delivery of possession of 60 acres is incorrect and in fact, possession of only 49.83 acres of land could be delivered and the balance 10.17 acres of land could be delivered as the same was in occupation of unauthorised persons and that Goven1ment took steps from time to time, at the pursuasion of the petitioner, for vacating the aforesaid 10.17 acres of land from the illegal occupiers and to deliver the same to the writ petitioner. It has been further stated in the affidavit that Mill authority themselves now being trespassers having no legal title on the case land filed the writ petition to avoid payment of government dues and to retain their illegal possession without renewing the lease period. The learned A.A.G. however could not agree with the aforesaid statements made in the affidavit - in-opposition having regard to the facts and circumstances of the case and the Annexures to the writ petition.

4. The learned Advocate appearing for the writ petitioner submitted that the lease has already been renewed on 9.1] .2003 with effect from 18.6-92 and that the affidavit -in-opposition has been sworn as far back as on 26.] 1.96 and therefore the respondent No. I took the plea of non renewal of the lease. The learned Advocate submitted that whether the lease is renewed or not the fact remains that the lease has not been cancelled either at the time when the affidavit- in- opposition was prepared or thereafter and the petitioner is in possession of the leasehold land except 10-17 acres; and althrough treated as lessee of the Government. The learned Advocate further submitted that no matter whether the writ petitioner has renewed the lease or not but the respondents are obliged to recover the 10.17 acres of land from the unauthorised occupants. The learned Advocate was also critical about the statements made in the affidavit-in-opposition. wherein the writ petitioner has been described as trespasser after the expiry date of the lease and that the writ petition has been filed to avoid the payment of the Government dues. The writ petitioner has paid Tk. 1.72.000/-. in excess beyond the lease money for the rehabilitation of the illegal occupants of 10.17 acres of land after eviction in accordance with law. The learned Advocate submitted that the deponent has made the statements intentionally and malafide to cause loss and harassment to the writ petitioner.

The learned Advocate referring to to Annexure-H-1 to the writ petition submitted that the Additional Deputy Commissioner (Rev) took steps for eviction of the illegal occupants under the provision of Ordinance No. 24/1970 but did not complete the eviction process and that thereafter at one stage the matter was placed before the Hon'ble Minister of Jute and a direction was given by the Hon'ble Minister for delivery of 10.17 acres of land to the respondents. It has been further submitted that being deprived from the enjoyment of the said 10.17 acres of land the writ petitioner prayed for refund of said Tk. 1,72,000 deposited earlier for eviction and rehabilitation of the illegal occupants therefrom but said prayer was refused by the office of respondent No.1 and that the respondents never denied the claim of the writ petitioner on the said 10.17 acres of land and have although gave assurance about delivery of possession to the writ petitioner company after evicting the illegal occupants and as the respondents failed to deliver possession to the writ petitioner was compelled to seek relief under the writ jurisdiction.

5, We have perused the writ application and the affidavit - in- opposition. We have also considered the submissions of the learned Advocate for the petitioner and the learned A.A.G, It appears from Annexures-A and B to the writ petition that 60.00 acres of land in Mouja Ganipur J.L. No, 239 P-S-Begumganj, District - Noakhali, belonged to the Waqf Department and the same was relinquished in favour of the Revenue Department to enable it to lease out the same to the petitioner Company for setting up a jute Mill through the E.P.I.D.C. under Rule 167 of the Government Estate Manual and accordingly Misc. Case No. 2/62-63 was initiated and lease was granted for 60.00 acres but possession of 49.83 acres of land could be handed over out of said 60.00 acres of land and that the government by letter dated 19.2-66 required the Deputy Commissioner, Noakhali, for delivery of possession of 10.17 acres of land to the Delta Jute Mills Ltd, and to report compliance to the Board of Revenue, evidenced by Annexure-C to the writ petition, and that the formal lease agreement was signed and executed on 7.11.69 and registered on 13.6.70 and in the meantime after getting possession of said 49-83 acres of land the Company with imported machineries the petitioner set up a jute mill on the lease-hold land but because of the presence of unauthorised occupants within the leasehold area, the writ petitioner- company has been facing problems and disturbance frequently and accordingly, the writ petitioner pursuaded the respondent No.1 to hand over possession of said 10.17 acres of land evicting the unauthorised occupants and accordingly, a committee was formed with the members consisting of D.C's office and the writ prtitioner's office and the representative from the unauthorised occupants and as per decision of the Committee the writ petitioner- Company deposited Tk. one lac seventy-two thousand in all for eviction and rehabilitation of the unauthorised occupants. But the respondents failed to deliver the possession till date and thus the petitioner is suffering on various counts due to presence of the occupants of 10,17 acres of land within the mill area. It also appears from Annexure- H to the writ petition that the writ petitioner brought the matter to the notice of the Hon'ble Minister for Jute for redress and the Hon'ble Minister in a meeting held on 29-3-93 directed for eviction of the unauthorised occupants and to deliver the 10-17 acres of land to the petitioner-company and in pursuance of said direction the A.D.C. (Rev) Noakhali, took steps for eviction and issued notice for eviction of the unauthorized occupants under Ordinance, 24/1970 but the eviction process was not completed for which a reminder was, issued from the Ministry of Jute on 22.11.94 evidenced by Annexure-I, to the writ petition. As the respondents failed to perform their duty in evicting the illegal occupants from said 10.17 acres of land the writ petitioner was compelled to move this writ petition and obtained the Rule.

6. Perusing the affidavit-in-opposition we find that irresponsible and incorrect statements have been made in the affidavit -in-opposition and as the incorrect statements have been made on oath it is necessary that the deponent should be proceeded with for making false statement for consideration by this court. However, we appreciate the submissions of the learned A.A.G. who has pointed out the incorrect statements made in the affidavit-in-opposition.

The statements made in the affidavit-in-opposition do not have any bearing or relevance to the allegation as to failure of the respondents in handing over vacant possession of said 10.17 acres of land to the writ petitioner Company. The admitted position is that the Deputy Commissioner, Noakhali, could deliver the possession of 10.17 acres of land out of the lease hold 60 acres of land and for which the writ petitioner has paid entire consideration money and also Tk- one lac seventy-two thousand in excess on humanitarian ground for eviction and rehabilitation of the illegal occupants and that the respondents are obliged under the provision of law to evict the illegal occupants and deliver vacant possession thereof to the writ petitioner-lessee. It further appears. as has been submitted, that the lease. in the meancime. has been renewed. Thus we find substance in the Rule.

7. Accordingly, the Rule is made absolute without any order as to costs. The respondent Nos. 1 and 2 are directed to evict the illegal occupiers of 10.17 acres of land in reference and to deliver vacant possession thereof to the writ petitioner within 60 days from the date of intimation about this order by or on behalf of the writ petitioner Company enclosing a copy of this order and the respondents are directed to ensure that the respondent Nos. 1 and 2 are evicting the illegal occupiers from the case land, deliver vacant possession of the same to the writ petitioner within time. The respondent No. 1 is further directed to take action against the deponent A.F.M. Rafiuddin, son of Md. Asim Uddin the deponent of the affidavit-in-opposition submitted on behalf of Respondent No-1. for making false statement on oath which is an interference with the process of justice.

(From previous issue)

9. The victim never said anything as to illegal intercourse or raised any outrage of offence of rape.

10. PW 2 Bulbul Sikder. Where the marriage was solemnised where the victim herself came to his residence and Rana Sikder asked him to make the arrangement for marriage in between Zitu anq Lipi. Rana and Bakul Laskar brought Huzur on behalf of the Kazi and he became the Ukil in that ceremony and after marriage accused appellant Zitu and victim Lipi stayed in his house from 1-00 PM to 500 PM. On' 2-2-2005 victim Lipi came to him and said that they were not accepting the marriage if Taka 5,00,000 would not be given. In cross-examination, he has stated-

ÔÔ`yR‡bB ewjqvwQjvg Avgvi †Mvc‡b weevn Kwi‡Z PvB| Zvnv‡`i evev gv‡K ewj‡j †h‡nZz †jLv cov Kwi‡Z‡Q wKQyw`b weevn †Mvcb ivLvi K_v e‡j| wRZz ivbv GKB K¬v‡m cwoZ wKbv Rvwbbv| KvRx Bgivi (mve KvRx) †gvovcvov evwo| Kwei †nv‡mb gvngy`vev` MÖv‡g gmwR‡` BgvgwZ K‡i| we‡qi c‡i wRZzi evev gv‡K Rvbvq bvB| `v‡ivMvi Kv‡Q we‡qi 1 ermi c‡i Revbew›` w`qvwQjvg| `v‡ivMvi Kv‡Q ewj bvB †h †g‡q Avgv‡K ewjqvwQj †Q‡j 5 jvL UvKv Pvq| Avgv‡K hLb Rvbvq †h weevn A¯^xKvi Ki‡Z Pvq Znb wjwci gvI wQjÕÕ

11. PW 3 Bakul Laskar who was a witness in the Kabin and stated that they are major and marriage was solemnised in presence of the witnesses by the Kazi and after marriage the victim and the appellant were only in the room.

12. PW 4 Monir Hossain who was a witness of the marriage and stated that the Imam of the mosque solemnised the marriage and in cross-examination, he has admitted that he was a witness in the Kabin on behalf of the victim girl.

13. PW '5 Jamai Miah is the hotel owner who stated that after the marriage between the appellant and the victim girl in another place there was a lunch of 15/20 persons in his hotel. In cross-examination, he stated that the marriage was solemnised in the house of Bulbul Sikder.

14. PW 6 Jahangir Alam in his examinat chief stated that the marriage was solemnised house of Bulbul Sikder and there was marriage presence of Kazi. Kazi was called by Bulbul and he is the brother of the victim and in examination he has stated that

ÔÔAvgvi †evb MÖv‡gi evwo‡Z _vwKZ| cieZ©x‡Z Avwg Rvb‡Z cviwQ Avmvgx wRZz nvmv‡bi mv‡_ Avgvi †ev‡bi †cÖ‡gi m¤úK© wQj| Avgvi †evb‡K ivbv wkK`v‡ii evwo‡Z weevn covBevi mgq Avwg wQjvg bv| eyjeyj wkK`v‡ii evwo‡Z wbqv hvIqvi mgq Avwg wQjvg| we‡qi mgq Avwg Dcw¯’Z wQjvg bv| `v‡ivMvi Kv‡Q Revbew›` w`qvwQ wKš‘ †Kv‡U© Revbew›` †`B bvB| Bnv mZ¨ bq †h, wfKwUg Avgvi †evb nIqvi wg_¨v mv¶x w`qvwQ|ÕÕ

15. In recall, he stated that two joint pictures and four letters were handed over to the police.

16. PW 7 Dr Md Shahjahan Miah, in opinion, stated that age of the victim was 19 years. No sign of sexual intercourse present and mark of violence was absent.

17. PW 8 Rana Sikder stated wjwc‡K wRZz we‡q Ki‡e e‡j mygb Avgv‡K RvbvBqv‡Q| wRZz UvKv cqmv w`‡q KvRx WvwKqv Avwbqv weevn KivBqv w`qv‡Q| and in cross-examination, he stated that marriage was solemnised hy the Kazi of Murapara Union and there '" sweets in that ceremony. "

18. PW 9 Billal Miah, Sub-Inspector of Rupganj Thana, is the Investigating Officer of this case. In cross-examination, he stated that there was no Kazi at the time of marriage in Morapara. But stated that the marriage was registered by a Kazi of Araihazar and he. further stated that there was nothing found adverse with regard to the sexual intercourse nor there was any mention of sexual intercourse in the certificate granted by the doctor.

19. PW 10 Rezaul Karim is the uncle of the victim. He stated that the marriage was solemnised in between the appellant Zitu and victim Lipi Akhter and he has informed the guardian of the victim girl. Both the victim and the appellant Zitu went to his residence and again they went to his residence at Cox's Bazar. And he has stated that if Taka 5,00,000 is not paid his parents will not admit their marriage. He then stated that

†g‡qi evev‡K NUbvUv RvbvB‡j 5 jvL UvKv †hŠZzK bv w`‡j weevn gvwbqv wb‡e bv| In cross-examination, he has stated that weev‡ni 5/6 w`b ci Avgvi evmvq †eovB‡Z hvBqv `yBw`b wQj| c~Yivq 2/3 gvm c‡i †eovB‡Z wMqvwQj| GKw`b wQj| 20-7-2004 Bs Zvwi‡L †kl evi Avgvi evwo‡Z †eovB‡Z wMqvwQj| 2004 mv‡j †g‡qi evevi evwo‡Z †eovB‡Z AvwmqvwQjvg| †Q‡j †g‡qi evwo cvkvcvwk wRZz‡K †dvb KwiqvwQjvg †g‡qi evwo‡Z Avmvi Rb¨ Av‡m bvB|

20. PW 11 Md Kabir Hossain stated that on the instruction of the people he solemnised the marriage. He deposed before the Court that he has solemnised the marriage in between Zitu and Lipi. He has stated in chief eKyj wkK`vimn Ab¨vb¨ ‡jvKR‡bi K_vq Avwg wRZz Ges wjwci weevn covBqvwQ| Ggivb KvRxi KvQ †_‡K Kvwe‡bi ewn wbqv Kvweb bvgv wjwL| In cross-examination, he has stated -Avgvi bv‡gI gvgjv nBqvwQj| †gvovcvov BDwbq‡b weevn covBqvwQjvg| Ggivb †nv‡mb †gvovcvov BDwbq‡bi KvRx| Avt ingvb wgwQi Avjxi †g‡qi weevn †iwRt Kiv nBqvwQj| Ggbvi †nv‡mb‡K wd Gi UvKv w`qvwQjvg| `v‡ivMvi Kv‡Q ewj bvB †h AvovBnvRvi _vbvaxb dLiyj Bmjv‡gi KvQ †_‡K weev‡ni †iwRóv‡ii eB AvwbqvwQjvg| Ggivb †nv‡mb †Kvb KvRx bv| weevn †iwRwói GK nvRvi UvKvi iwk` †bB bvB|

21. From the trend of examination and crossexamination no where it has been stated that there is any resistance or any act of sexual intercourse. There is also no sign of violence as certificate issued by the doctor and all the witnesses categorically stated that there was marriage in between the victim girl and the appellant. Section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain reads as follows:

al©Y, al©YRwbZ Kvi‡Y g„Zz¨, BZ¨vw`i kvw¯-& hw` †Kvb cyi“l †Kvb bvix ev wkï‡K al©Y K‡ib, Zvnv nB‡j wZwb hve¾xeb mkªg Kviv`‡Û `Ûbxq nB‡eb Ges Bnvi AwZwi³ A_©`‡ÛI `ÛYxq nB‡eb|

e¨vL¨v| hw` †Kvb cyiyl weevn eÜb e¨ZxZ †PŠ&Ï erm‡ii AwaK eq‡mi †Kvb bvixi mwnZ Zvnvi m¤§wZ e¨wZ‡i‡K ev fxwZ cÖ`k©b ev cÖZviYvg~jKfv‡e Zvnvi m¤§wZ Av`vq Kwiqv, A_ev †PŠÏ erm‡ii Kg eq‡mi Kg eq‡mi †Kvb bvixi mwnZ Zvnvi m¤§vwZmn ev m¤§wZ e¨wZ‡i‡K †hŠb m½g K‡ib, Zvnv nB‡j wZwb D³ bvix‡K al©Y Kwiqv‡Qb ewjqv MY¨ nB‡eb|

In the facts and circumstances and from the materials on record and evidence, it does not show that the victim was minor, there is no commission of rape upon her forcibly. She did not resist nor tried to resist nor created any obstruction. It is an admitted fact that the victim has visiting terms with the appellant accepting letters and they are known to each other, the marriage was solemnised by a marriage registrar and the victim could not show that the appellant applied any force or any fraudulent activities or showed threat and has committed or there was occurrence of sexual intercourse.

In the absence of any threat or any fraudulent activities the intercourse has been committed on her consent. Therefore, it Jdoes not attract any ingredients or offence under section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain. Prasticing fraud upon her, having intercourse without her consent is very much absent and therefore, we do not find that the Court below could justify itself in convicting and sentencing the appellant in the instant case. It was not a case or rape which the Court below has totally failed to appreciate in the judgment and order, as such, it is liable to be set aside.

22, In the result, this appeal is allowed. The judgment and order of conviction and sentence dated 10-8-2006 passed by the Judge, Nari-o-Shishu Nirjatan Daman Ain, Special Sessions Judge, Narayanganj in Nari-o-Shishu Case No. 113 of 2005 arising out of Rupganj Police Station Case No. 14 dated 6-2-2005 corresponding to GR. No. 58 or 2005 convicting him under section 9(1) or the Nari-o-Shishu Nirjatan Daman Ain, 2000 and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Taka 5,000 in default of which to suffer more six months simple imprisonment is hereby set aside.

23. Appellant Zitu Ahsan alias Apon, son of Md Ayet Ali, of village Gutib Agarpara, Police Station Rupganj, District Narayanganj is found not guilty of the charges leveled agaist him of the said Ain. The appellant be set at liberty at once if not wanted in connection with any other case.

(Concluded)