(From previous issue) :
21. It is clear that the Government respondent always treated the land as “Kha” Schedule land but when the Act No. 23 of 2011 came into force the authority changed its mind and without assigning any reason changed the Schedule of the land in question whimsically. We do not find any reason whatsoever to change the property from “Kha” Schedule to “Ka” Schedule. It is clear from the relevant laws that the legislature by its wisdom has amended the defination of “gvwjK” (Owner) for which the petitioner has become the owner of the land apart from his inherited land and Keeping it in mind the respondent has taken’the decision for changing of the land from “Kha” schedule to “Ka” Schedule which is nothing but colorable exercise of power only to frostrate the case of the petitioner. It is clear from the amendment of 2011 (Act No. 23 of 2011) that the petitioner has become the owner as per the definition of owner (~) and this right of the petitioner has been curtailed by issuing a correction notification with a mala fide intention.
22. On plain reading of Section 28 of the Act 46 of 2013 we do not find any authority of the respondent to issue the impugned notification and constrained to believe that having no other alternative some vested quarter in collusion with the Government officials has managed to issue the memo of Correction as to insertion of the property of the petitioner in the “Ka” Schedule property stating that inadvertently it was listed in “Kha” Schedule which is nothing but colorable exercise of power only to harass the citizen. In our view the notification for changing of the “Kha” schedule land into “Ka” schedule is arbitrary and gross violation of natural Justice and malafide and, as such, it can not be allowed.
23. The executive authority is not allowed to twist the Law at their sweet will and to their advantage. It is well settled that malafide vitiates everything and a malafide act is a nullity and void. Malafide means bad faith, it is opposed to bonafide.
24. Though, we are not sitting over the ownership of the pond in question but it is clear that the claim of the respondent that the part of the pond is vested property and it has been leased out to respondent No.6 is futile. In the case of Benoy Bhusan Bardhan vs SDO Brahmanbaria, reported in 30 DLR (SC) 139, it was held,:
“The custodian of Enemy property representing share of the enemy owner cannot go into possession of the joint land by dispossessing the Co-Sharers in possession of the said land without partitioning the same according to law nOr can he arbitrarily specify certain area representing the Share of the enemy owner and lease out the same to others”.
25. Similar view has been taken in the case of Nriperidra Nath Dhar vs Deputy Custodian, Enemy property (Land and Building) Dacca, reported in 1 ‘BCR (AD) 109, wherein it was held,:
” Custodian of Enemy property cannot take over possession without effecting partition: ….. ”
26. As it, appears from the record that the property in question is a pond, which has been admittedly possessing. by the petitioner, the
claim of the respondent Covernment that some portion of it became enemy property (vested Property) and it has been leased out to respondent No.6 is of no avail. But as per the above cited decisions the land must be partitioned first but practically a pond cannot be partitioned and admittedly, the pond was neither portioned nor enjoyed by the respondent No.6, the alleged lessee, rather, the same has been possessing by the present petitioner. So, the claim of the respondents has no basis at all.
27. It cannot be said that the decision which has been published in the Gazette in the name of correction notification has been done in good faith rather, it is crystal clear that the authority has taken this diciscion with a malafide intention. Natural Justice includes impartiality and fairness. It is clear that the authority has changed the Gazette notification in the name of correction notification of the “Kha” schedule land into “Ka” schedule land in an arbitrary manner which is beyond Jurisdiction and violative to the principles of natural Justice.
28. Thus, we find substance in the instant Rule.
29. In the result, the Rule is made absolute.
30. However, there will be no order as to cost.
The correction Notification No. 31.00.0000.045.53.065.2012-2876 dated 31-12-2012 issued by the respondent No.2 and published in the Bangladesh Gazette, Extraordinary on 30-12-2012 (Annexure-F) is declared to have been passed without lawful authority and is of no legal effect. Accordingly, the said notification as it relates to the land (Pond) of the petitioner is set aside.
(Concluded)
21. It is clear that the Government respondent always treated the land as “Kha” Schedule land but when the Act No. 23 of 2011 came into force the authority changed its mind and without assigning any reason changed the Schedule of the land in question whimsically. We do not find any reason whatsoever to change the property from “Kha” Schedule to “Ka” Schedule. It is clear from the relevant laws that the legislature by its wisdom has amended the defination of “gvwjK” (Owner) for which the petitioner has become the owner of the land apart from his inherited land and Keeping it in mind the respondent has taken’the decision for changing of the land from “Kha” schedule to “Ka” Schedule which is nothing but colorable exercise of power only to frostrate the case of the petitioner. It is clear from the amendment of 2011 (Act No. 23 of 2011) that the petitioner has become the owner as per the definition of owner (~) and this right of the petitioner has been curtailed by issuing a correction notification with a mala fide intention.
22. On plain reading of Section 28 of the Act 46 of 2013 we do not find any authority of the respondent to issue the impugned notification and constrained to believe that having no other alternative some vested quarter in collusion with the Government officials has managed to issue the memo of Correction as to insertion of the property of the petitioner in the “Ka” Schedule property stating that inadvertently it was listed in “Kha” Schedule which is nothing but colorable exercise of power only to harass the citizen. In our view the notification for changing of the “Kha” schedule land into “Ka” schedule is arbitrary and gross violation of natural Justice and malafide and, as such, it can not be allowed.
23. The executive authority is not allowed to twist the Law at their sweet will and to their advantage. It is well settled that malafide vitiates everything and a malafide act is a nullity and void. Malafide means bad faith, it is opposed to bonafide.
24. Though, we are not sitting over the ownership of the pond in question but it is clear that the claim of the respondent that the part of the pond is vested property and it has been leased out to respondent No.6 is futile. In the case of Benoy Bhusan Bardhan vs SDO Brahmanbaria, reported in 30 DLR (SC) 139, it was held,:
“The custodian of Enemy property representing share of the enemy owner cannot go into possession of the joint land by dispossessing the Co-Sharers in possession of the said land without partitioning the same according to law nOr can he arbitrarily specify certain area representing the Share of the enemy owner and lease out the same to others”.
25. Similar view has been taken in the case of Nriperidra Nath Dhar vs Deputy Custodian, Enemy property (Land and Building) Dacca, reported in 1 ‘BCR (AD) 109, wherein it was held,:
” Custodian of Enemy property cannot take over possession without effecting partition: ….. ”
26. As it, appears from the record that the property in question is a pond, which has been admittedly possessing. by the petitioner, the
claim of the respondent Covernment that some portion of it became enemy property (vested Property) and it has been leased out to respondent No.6 is of no avail. But as per the above cited decisions the land must be partitioned first but practically a pond cannot be partitioned and admittedly, the pond was neither portioned nor enjoyed by the respondent No.6, the alleged lessee, rather, the same has been possessing by the present petitioner. So, the claim of the respondents has no basis at all.
27. It cannot be said that the decision which has been published in the Gazette in the name of correction notification has been done in good faith rather, it is crystal clear that the authority has taken this diciscion with a malafide intention. Natural Justice includes impartiality and fairness. It is clear that the authority has changed the Gazette notification in the name of correction notification of the “Kha” schedule land into “Ka” schedule land in an arbitrary manner which is beyond Jurisdiction and violative to the principles of natural Justice.
28. Thus, we find substance in the instant Rule.
29. In the result, the Rule is made absolute.
30. However, there will be no order as to cost.
The correction Notification No. 31.00.0000.045.53.065.2012-2876 dated 31-12-2012 issued by the respondent No.2 and published in the Bangladesh Gazette, Extraordinary on 30-12-2012 (Annexure-F) is declared to have been passed without lawful authority and is of no legal effect. Accordingly, the said notification as it relates to the land (Pond) of the petitioner is set aside.
(Concluded)
