(Special Original Jurisdiction)
Moyeenul Islam Chowdhury J
Khandaker Diliruzzaman J
Ruhul Amin Khan Lipton (Md) ……….Petitioner
vs
Rajdhani Unnayan Katripakkhya (RAJUK)
Represented by its Chairman, Dhaka
and others…………….Respondents.
Judgment
October 30th, 2019
Constitution of Bangladesh, 1972
Article 102(2)
Principle of natural justice-It is an indubitable fact that the principle of “audi alteram parterm” was not adhered to. It is manifestly clear that the petitioner was entitled to a fair hearing before cancellation of the Plot by the authority. The RAJUK authority did not act fairly by not affording the petitioner an opportunity of being heard……………………………………(22)
Rajdhani Unnayan Kartipakkha (RAJUK), represented by its Chairman vs Rangs Properties Limited, 12 ADC (AD) 314; University of Dacca vs Zakir Ahmed, 16 DLR (SC) 722; Sk. Ali Ahmed vs Secretary, Ministry of Home Affairs, 40 DLR (AD) 170; Habibullah Khan vs Shah Azharuddin Ahmed, 35 DLR (AD) 72; Hamidul Huq Chowdhury vs Bangladesh, 33 DLR 381 and Farzana Haque vs The University of Dhaka, 42 DLR 262 ref.
Md Mutahar Hossain with Md Raziuddin Sarwar, Advocates-For the Petitioner.
Md Imam Hasan with Mohammad Joynal Abedin with Ashiquzzaman Linju, Advocates-For the Respondent No.2 and 3.
Judgment
Khandaker Diliruzzaman J : On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioner, a Rule Nisi was issued calling upon the respondents to show cause as to why they should not be directed to accept the balance amount of the final price/value of the allotted Plot being No. 015, Road No. 211D, Sector No. 29, Purbachal New Town Project, Dhaka (appertaining to Allottee Code No. 2460 under the “Expatriate” category) from the petitioner and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. At the time of issuance of Rule this Court also passed a direct ion to the writ respondents not to allot the case Plot being No. 015, Road No. 211D, Sector No. 29, Purbachal New Town Project, Dhaka (appertaining to Allottee Code No. 2460 under the “Expatriate” category) in favour of any person.
3. The case of the petitioner, as set out in the Writ Petition, in short, is as follows:
The respondent No.2 published Notice in various daily newspapers inviting applications from, amongst others, the Bangladeshi expatriates for allotment of Plots under the “Expatriate” category in Purbachal New Town Project, Dhaka and, accordingly the petitioner in pursuance to the said notice applied for allotment of a Plot measuring 7.5 katha against his name. Subsequently, the respondent No.2 under the signature of respondent No.3 issued a letter of provisional allotment being Memo No. RAJUK/ESTATE/PURBACHAL/342-PO dated 27-2-2003 confirming that a plot has been allotted in favour of the petitioner and further requested to make a payment of USD 11000 (Eleven Thousand) in favour of respondent No.2. Accordingly, the petitioner issued Bank Draft dated 6-6-2003 (as evidenced by money receipt No. 378 dated 17-6-2003 issued by Janata Bank, RAJUK Bhaban Branch, Dhaka Annexure- A-2 to the writ petition) for the said amount in favour of respondent No.2. Upon receiving the payment, the respondent No.2 allotted a Plot measuring an area of 7.5 Katha being Plot No. 015 located at Road No. 211D, Sector No.29, Purbachal New Town, Project in favour of the petitioner. In the allotment letter it has been stated that the security deposit and the additional payment made by the allottees shall be adjusted with the final price/value of the Plot and furthermore, the final price/value of each Katha shall be determined upon taking into account of land development cost and accordingly, the respondents were supposed to issue periodic invoices for payment of installments against the said Plot being allotted in favour of the petitioner. But the respondents have not issued any notice demanding payments of periodic installments from the petitioner against the said Plot. In order to redress this situation the petitioner had made several requests and issued several letters to the respondent No.2 requesting him to inform the petitioner of the remaining amount to be paid in favour of the respondents. Furthermore, the petitioner by his representation also informed the respondents that the petitioner is ready and willing to pay the remaining amount, if any, if the respondents inform the petitioner of the said amount. The petitioner on several occasions had tried to communicate with respondent No.2 over telephone and email, but in vain. Lastly, on 7-9-2015 the petitioner wrote another letter to the responded No.2 requesting him for providing the details of the remaining amount of the final price/value required to be paid for the allotted Plot, but the respondents failed to pay any heed to the same. In the- premises the petitioner by a Notice demanding Justice dated 9-12-2015 called upon the respondents to inform the petitioner if there is any remaining amount required to be paid to the respondents against the said Plot, and further, requested the respondents to inform the petitioner if the final rate of each Katha has yet been determined, but to no avail. Finding no other alternatives the petitioner is constrained to file the instant writ petition before this Court.
4. Both the respondent Nos. 2 and 3 have contested the Rule by filing joint Affidavit-in-Opposition. Their case, as set out in their Affidavit-in-Opposition, in short, runs as follows:
The case Plot measuring of 7.5 Katha was allotted in favour of the petitioner as “Expatriate” category under Code No. 2460 in Purbachal New Town Project, Dhaka. Accordingly a allotment letter was issued in favour of the petitioner. Against that allotment, the petitioner paid GBP 6500 on 17-6-2003. Thereafter, on 25-5-2005 final allotment letter was issued in favour of the petitioner allotting a Plot measuring 7.5 Katha under Sector 29, Road No. 211D, Plot No. 015, Code No.2460. In the said allotment letter there was a condition that if the allottee fails to pay the balance amount of the said Plot at a time or installments within stipulated time, his allotment will be treated as cancelled, but the petitioner has failed to pay the balance amount as per the condition of the allotment letter within stipulated time, accordingly his allotment was cancelled.
5. In the supplementary affidavit-in-opposition dated 1-8-2016 filed on behalf of the respondent Nos.2 and 3 it has been stated that the respondents issued final allotment letter in favour of the petitioner on 25-5-2005 thereby asking him to pay balance amount of USD 8876 within 31-7-2005 against the said Plot or 2nd installment of USD 4438 within 31-7-2005 and 3rd installment of USD 5148 (including interest) within 31-7-2006. In the said allotment letter there was a condition that, if the allottee fails to pay the balance amount or installments in time, his allotment shall be treated as cancelled and the allotment letter was sent to the allottee through registered post. RAJUK also published notice in the national dailies asking the allottees to make payment in time, but the petitioner did not make payment within stipulated time.
6. In reply to the affidavit-in-opposition and supplementary affidavit-in-opposition filed on behalf of the respondents, wherein it has been stated that the respondents categorically admitted that the petitioner paid GBP 6500 on 17-6-2003 and also stated that the respondents have not adduced any document in respect of any letter of allotment or the said final allotment letter dated 25-5-2005 which proves that no letter/notice of allotment has been served upon the petitioner. Moreover, the address of the recipient of the final allotment letter dated 25-5-2005 does not include “C/O Md Idris Khan” which is present in the provisional allotment letter dated 27-2-2003.
7. At the outset, Mr Mohammad Motahar Hossain, learned Advocate appearing on behalf of the petitioner, submits that the case Plot has been lawfully allotted by the respondents in favour of the petitioner and, as such, it is the vested and indefeasible accrued right of the petitioner that he would be informed in due time of any remaining amount required to be paid by the petitioner in favour of the respondents against the allotted Plot but the respondents have failed to do so, therefore, the respondents are required to receive the remaining amount of the final price/value of the allotted Plot from the petitioner.
8. Mr Mohammad Motahar Hossain, further submits that after getting allotment of the case Plot, the petitioner has already made substantial payment as per the demand of the respondents without any delay and, hence, it is the legitimate expectation of the petitioner that the respondents would receive the remaining amount of the final price/value of the allotted Plot from the petitioner and hand over the possession of the said Plot in favour of the petitioner within stipulated time.
9. Mr Mohammad Motahar Hossain, also submits that the petitioner has repeatedly requested the respondents to take appropriate steps in allotting the said Plot in his favour upon receiving the remaining payments and, as such, the petitioner has legitimate expectation that he would be allowed to pay the remaining payments but the respondents did not at all respond to his request and, as such, the respondents may be directed to transfer the possession of the Plot measuring 7.5 Katha under Sector 29, Road No. 211, Plot No. 015, Code No.2460 in favour of the petitioner.
10. Mr Mohammad Motahar Hossain, next submits that the allotment of the said Plot in favour of the petitioner cannot be unilaterally cancelled without serving any show cause notice and providing reasonable opportunity of hearing and, as such, the respondent Nos. 2 and 3 purported claim of cancellation of Plot allotment without serving any show cause notice infringes the cardinal principle of natural justice and as such, respondents may be directed to transfer the possession of the allotted Plot in favour of the petitioner upon receiving the remaining amount, if any.
11. Per contra, Mr Md Imam Hasan, learned Advocate appearing on behalf of the respondent Nos. 2 and 3, submits that the case Plot measuring of 7.5 Katha was allotted in favour of the petitioner as “Expatriate”, category under Code No. 2460 in Purbachal New Town Project, Dhaka., Accordingly a allotment letter was issued in favour of the petitioner and against that allotment the petitioner paid GBP 6500 on 17-6-2003. Thereafter, on 25-5-2005 final allotment letter was issued in favour of the petitioner allotting the Plot measuring 7.5 Katha under Sector 29, Road No. 211D, Plot No. 015, Code No. 2460. In the allotment letter there was a condition that if the allottee fails to pay the balance amount of the said Plot at a time or installments within stipulated time, his allotment will be treated as cancelled, but the petitioner has failed to pay the balance amount as per allotment letter within stipulated time; accordingly his allotment was cancelled.
12. Mr Mr Md Imam Hasan, learned advocate submits that the petitioner was fully aware about making payment and installments against his allotted Plot but he did not make payment in time, thus his allotment has automatically been cancelled as per terms of allotment letter. The petitioner has failed to make payment in time and he has created “C” series documents for the purpose of filling of the Writ petition.
13. Mr Mr Md Imam Hasan, learned Advocate also submits that the allotment letter was sent to the allottee through registered post. RAJUK also published notice in the national dailies asking the allottees to make payment in time, but the petitioner did not make payment within stipulated time and accordingly, his allotment has already been cancelled as per clause 5 of the allotment letter dated 25-5-2005.
14. We have heard the submissions of the learned Advocate Mr Mohammad Motahar Hossain and the counter-submissions of learned Advocate Mr Md Imam Hasan and perused the Writ Petition, Supplementary Affidavit, Affidavits-in-Opposition and relevant Annexures annexed thereto.
15. Admittedly, the respondent No.2 under the signature of respondent No.3 issued a letter of allotment dated 27-2-2003 confirming that a Plot measuring 7.5 Katha has been allotted in favour of the petitioner. As per condition of the allotment letter the petitioner on 17-6-2003 issued a Bank draft of GBP 6,500 equivalent to USD 11,000 in favour of the RAJUK. It is also admitted that on 25-5-2005 RAJUK finally allotted a Plot measuring 7.5 Katha under Sector 29, Road No. 211D, Plot No. 015, Code No. 2460 in favour of the petitioner with the condition that the petitioner will pay USD 4438 within 31-7-2005 as first installment and USD 5148 including interest will pay within 31-7-2006 as second installment and if he fails to pay the balance amount of the Plot at a time or installments within stipulated time his allotment will be treated as cancelled. But this final allotment letter was not served upon the petitioner. Although in paragraph 5 of the supplementary affidavit-in-opposition dated 1-8-2016 filed on behalf of the respondent No.2 and 3, it has been stated that the allotment letter was sent to the allottee through registered post and also RAJUK published notice in the national dailies asking the allottee to make payment in time, but the petitioner did not make payment within stipulated time. But there is nothing in the affidavit-in-opposition submitted by RAJUK to show that the final allotment letter was ever served upon the petitioner either by post or otherwise. In the writ petition the writ petitioner categorically stated that he had made several requests and issued several letters in favour of respondent No.2 requesting him to inform, the petitioner of the remaining amount to be paid in favour of the respondents. He had also tried to communicate with respondent No. 2 over telephone and email, but in vain. Finally on 7-9-2015 he wrote a letter to respondent No.2 requesting him for providing the details of the remaining amount of the final price/value required to be paid for the allotted Plot but the respondents failed to pay any heed to the same. It appears from the annexure-2 and 3 of the supplementary affidavit-in-opposition dated 1-8-2006 that final allotment letter dated 25-5-2005 does not include “C/o Md Idris Ali Khan” which was present in the provisional allotment letter dated 27-2-2003.
16. Assuming for the sake of argument that the petitioner has duly received the final allotment letter and he has not complied with condition of the letter within stipulated time, now the question is whether his allotted Plot will stand cancelled automatically?
17. Admittedly the petitioner got an allotment of a Plot measuring 7.5 Katha under Sector 29, Road No. 211, Plot No. 015, Code No.2460 of as “Expatriate Category” from the RAJUK and he has already paid an amount of GBP 6500 equivalent to USD 11000 in favour of the RAJUK against that Plot. Therefore, he has already acquired a right to that Plot and RAJUK cannot cancel his allotment without issuing any show cause notice. Moreover, RAJUK unilaterally made some conditions in the allotment letter but those conditions have not been communicated to the petitioner before allotment of the Plot. Had that been served upon him he would not have applied for a Plot of RAJUK or he could raised objection to those conditions.
18. Learned Advocate appearing on behalf of the petitioner in support of his contention has relied upon a decision of Rajdhani Unnayan Kartipakkha (RAJUK), represented by its Chairman vs Rangs Properties Limited reported in 12 ADC (AD) 314; wherein their Lordships held:
“We find that no notice for showing cause was issued upon the respondent, and no opportunity was afforded to it before cancellation of those plots. Such being the case, we can safely hold that cancellation was done behind the back of the respondent without affording it any opportunity of being heard and without issuing any notice for showing cause. Therefore, the impugned actions of RAJUK are clear violation of the principles of natural justice. Consequently, the action of RAJUK cancellation allotment of those plots and floating the impugned tender was without lawful authority”.
19. The present case is better than the case of Rangs Properties Limited case. In that case letter of cancellation of plots have been served upon the petitioner, but in the present case no letter of cancellation of plot has been served upon the petitioner.
20. Learned Advocate appearing on behalf of the respondent Nos.2 and 3 has relied upon an unreported decision of MR Bhanu Dutt. vs DDA case delivered by a single Bench of the Delhi High Court on 22-4-2013, but this decision is not binding upon us rather the decision which the learned Advocate for the petitioner has relied upon is binding upon us and also related to RAJUK issues. Therefore, we are unable to accept the views taken by the Single bench of the Delhi High Court.
21. In a case of Md Moniruddin Ahmed vs Rajdhani Unnayan Katripakkhya a Division Bench of this Court presided over My Lord Mr Justice Moyeenul Islam Chowdhury relying on the decisions in the cases of The University of Dacca vs Zakir Ahmed, 16 DLR (SC) 722; Sk. Ali Ahmed vs The Secretary, Ministry of Home Affairs, 40 DLR (AD) 170; Habibullah Khan vs Shah Azharuddin Ahmed, 35 DLR (AD) 72; Hamidul Huq Chowdhury vs Bangladesh, 33 DLR 381 and Farzana Haque vs The University of Dhaka, 42 DLR 262 and by referring to several decisions of this subcontinent and also English and USA Court, delivered an elaborate judgment dated 9-2-2015 wherein their Lordships observed:
“The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrariness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has to deal with. These principles are classified into two categories-(i) a man cannot be condemned unheard (audi alteram partem) and (ii) a man cannot be the judge in his own cause (nemo debet esse judex in propria causa). The contents of these principles vary with the varying circumstances and those cannot be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application.
The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford him a fair opportunity to answer the case against him and to put his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party”.
22. In the present case, it is an indubitable fact that the principle of “Audi Alteram Partem” was not adhered to. It is manifestly clear that the petitioner was entitled to a fair hearing before cancellation of the Plot by the RAJUK authority. In other words, the RAJUK authority did not act fairly by not affording the petitioner an opportunity of being heard.
23. Admittedly the provisional allotment letter was issued on 27-2-2003 and the petitioner filed the instant writ petition on 14-12-2015. Before filing of the writ petition the petitioner had made several requests and issued several letters to the respondent No.2 requesting him to inform the petitioner of the remaining amount to be paid in favour of the respondents. The petitioner by his representation also informed the respondents that the petitioner is ready and willing to pay the remaining amount, if any, if the respondents inform the petitioner of the said amount. The petitioner on several occasions had tried to communicate with respondent No.2 over telephone and email, but in vain. Lastly, on 7-9-2015 the petitioner wrote another letter to the respondent No.2 requesting him for providing the details of the remaining amount of the final price/value required to be paid for the allotted Plot, but the respondents failed to pay any heed to the same. It is true that there is a delay of about 12 years in filing the writ petition. There is a maxim that “Delay Defeats Equity” but the explanation that has been furnished by the petitioner for delay in filing the writ petition appears to be reasonable, satisfactory and cogent.
24. The petitioner paid an earnest amount of GBP 6500 equivalent to USD 11,000 in favour of RAJUK against his allotted Plot and was willing to pay the remaining amount and conveyed his intention in this regard to RAJUK by a letter dated 7-9-2015, but RAJUK either failed to reply or abstained from giving any reply to that letter.
25. Admittedly, the petitioner could not pay the entire amount of the Plot within stipulated time frame. Meanwhile, the price of the land has increased by leaps and bounds and the learned Advocate appearing on behalf of the petitioner submits that the petitioner is ready to pay the balance amount with interest as the Court deems fit and proper.
26. In view of what have been discussed above and regard being had to the facts and circumstances of the case, we find merit in the Rule. The Rule, therefore, succeeds.
27. Accordingly, the Rule is made absolute without any order as to costs. Respondent No. 2 Chairman, Rajdhani Unnayan Kartipakkha (RAJUK), RAJUK Bhaban, Motijheel, Dhaka is directed to accept the balance amount of the final price/value of the allotted Plot along with 10% (Ten percent) interest thereon being No.015, Road No. 211D, Sector No. 29, Purbachal New Town (appertaining to Allottee Code No. 2460) under the “Expatriate Category” from the petitioner and to execute and register the contemplated lease deed and hand over the possession of the Plot in question in favour of the petitioner within 3 (three) months of the payment of the same.
