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In the Supreme Court of Bangladesh High Court Division

(Special Original Jurisdiction ) Writ petition No.2910 of 2009

In the matter of:

An application under article 102 of the Constitution of

the People’s Republic of Bangladesh .

And -

In the matter of:

Begum Khaleda Zia ...........petitioner.

-Versus- Government of Bangladesh and others

.......... respondents. Mr. T.H. Khan, Senior Counsel with Mr. Rafiqul Huq, Senior Counsel and Mr. Khondker Mahbub Uddin Ahmed, Senior Counsel and Mr. Moudud Ahmed, Senior Counsel and Mr. Mohammad Zamiruddin Sircar, Senior Counsel and Mr. Khandker Mahbub Hossain, Senior Counsel and Mr. Nazmul Huda, Senior Counsel and Mr. Zainul Abedin, Senior advocate and Mr. Rafiqul Islam Mia, Senior Advocate and Mr. A.M. Mahbub Uddin, Advocate and Mr. Md. Humayun Kabir Bulbul, Advocate

............ For the petitioner.

Mr. Mahbubey Alam, Attorney General with Mr.M.K.Rahman, Additional Attorney General and Mr.Momtazuddin Fakir, Additional Attorney General and Mr.Mojibar Rahman Miah, Deputy Attorney General and Mr.Md.Motaher Hossain Sazu,Deputy Attorney General and Mr.Md.Ekramul Hoque, Assistant Attorney General and Mr.A.B.M.Altaf Hossain, Assistant Attorney General and Mr.Khandaker Diliruzzaman, Assistant Attorney General and Ms.Fazilatunnassa Bappy, Assistant Attorney General

.......For the Respondent Nos.1, 3 and 5. Mr.Anisul Hoque, Senior Counsel

..........For Respondent No.2.

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Heard on 06-08.06.2010,06-8.7.2010,11-12.07.2010,

19-22.07.2010, 29.07.2010,01.08.2010, 19.08.2010,

22.08.2010, 23.8.2010, 29.9.2010, 30.09.2010, 03.10.2010,

04.102010, 06.102010 and Judgment on the 13th of

October, 2010.

Present: Ms. Justice Nazmun Ara Sultana

And

Mr . Justice Sheikh Hassan Arif

Nazmun Ara Sultana, J: This Rule was issued at the instance of Begum Khaleda Zia, former

Prime Minister and now Leader of the Opposition in Parliament calling upon

the respondents to show cause as to why the impugned notice dated

24.5.2009 (annexure C-2) asking the petitioner to return the demised property

during the subsistence of a registered lease in perpetuity dated 8.7.1981

situated at 6, Shaheed Moinul Road, Dhaka Cantonment, Dhaka without due

process of law shall not be declared to have been made without lawful

authority and is of no legal effect and also violative of the fundamental rights

guaranteed to the petitioner under article 27,31 and 42 of the Constitution

and/or such other or further order or orders passed as to this court may seem

fit and proper.

At the very out-set it requires to be mentioned here that this writ

petition was initially filed impugning a notice dated 20.4.2009 (annexure-C)

asking the petitioner to return the property situated at 6, Shaheed Moinul

Road, Dhaka Cantonment stating the reasons that there was no law for

transferring the military property in question to any civilian and that there

was also no reason of any public nature for transferring the said property as

per rule 26 of Cantonment Land Administration Rules (C L A Rules) 1937

and also stating that the petitioner conducted political activities during the

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last 27 years from that house situated in the restricted area of Dhaka

Cantonment. When the writ petition was waiting for motion hearing the

respondents served a supplementary notice dated 7.5.2009 upon the petitioner

(annexure-C1) asking her to show cause as to why she should not be directed

to return the property in question within 15 days stating further reasons that

the land in question being Class A-1 military land as per rule 5(i) of CLA

Rules, 1937 the leasing of the same infavour of the petitioner was “void ab-

initio” being in contravention of the statutory rules and stating also that after

the death of petitioner’s husband President Ziaur Rahman the government, in

a meeting of council of ministers headed by President held on 12.06.1981,

took decision to give huge financial and other benefits including a house with

all modern amenities in Gulshan or other posh area of Dhaka City to the

petitioner and her sons and that when that decision of the government was

being materialized (and ultimately on 17.7.1982 a house on 1 bigha 10 Katha

& 11 chhatak land in Gulshan Model Town was transferred to the petitioner)

the leasing out of the property in question-which includes 2.72 acres of land

and the buildings standing thereon to the petitioner without any decision of

the government was illegal, unethical and against public interest. The

respondents served the 3rd final notice dated 24.5.2009 annexure C-2 on the

petitioner asking her to hand over the possession of the house in question to

the Military Estate Officer by 30.06.2009 when the writ petition was still

pending for motion hearing. The petitioner, by filing two supplementary

affidavits, has impugned both these subsequent notices also-the annexure-C1

and C2. However, the rule was issued calling in question the final notice-

dated 24.5.2009-the annexure C2 only.

The petitioner’s material case, in short, is that her husband Shaheed

President Ziaur Rahman was a valiant freedom fighter and he was a sector

Commander during the Liberation War of Bangladesh and that in recognition

of his service in the Liberation War he was awarded the highest gallantry title

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“Bir Uttom” by the Government. Late President Ziaur Rahman was the Chief

of the Bangladesh Army and he subsequently became the first elected

President of Bangladesh. That President Ziaur Rahman while in office as the

President of Republic of Bangladesh was brutally killed by a group of

miscreants at the Chittagong Circuit House on the night between 29th and 30th

May, 1981. That although late President rendered invaluable services to the

country and the nation but he left behind the petitioner and her two minor

sons without any property or any source of income for living. That after

killing of Shaheed President Ziaur Rahman there was tremendous public

reaction all over the country and in the face of an overwhelming public

demand the government decided to demise the house in question at 6,

Shaheed Moinul Road, Dhaka Cantonment where they were residing from

before in favour of the petitioner. That late President Ziaur Rahman entered

the said house in 1972 as the Deputy Chief of Army Staff and since then he

lived with his family in the same house as Chief of Army Staff and continued

to live in that house as the elected President of the Republic till his

assassination on 30th May, 1981. He did not move to Banga Bhaban- official

residence of the President as he preferred to live in the said house.

That in consideration of the condition of his family and in recognition

of the invaluable services rendered by the late President Ziaur Rahman, the

government of Bangladesh, after complying with all the procedures in

accordance with law, demised the plot and structure at 6, Shaheed Moinul

Road, Dhaka Cantonment in favour of the petitioner by a registered lease

deed dated 8.7.1981. The said lease deed was executed between the President

of Bangladesh and Begum Khaleda Zia and it was signed by the respondent

No.4-the Military Estate Officer on behalf of the President of Republic and

was registered on 30th July, 1981. That after the killing of Shaheed President

Ziaur Rahman and pursuant to the execution and the registration of the said

lease deed the petitioner and her family members have been living peacefully

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in the demised property for the last 28 years without any complain from any

quarter. The property stands mutated in the name of the petitioner since

February, 1982 and she paid rent and land developing tax regularly up to

date. That pursuant to a decision of the Cabinet taken on 8.4.2009 the

government has instructed the respondents to take immediate measures to

evacuate the house and in order to do so the respondent No.4 has issued the

impugned notices asking the petitioner to return the house in question.

The petitioner has alleged that the impugned notices are not only

misconceived and misleading but irrelevant as the lease in perpetuity was

executed and registered as long back as on 8.7.1981. It is stated that the

allegations contained in paragraph “Gha” of the impugned notice dated

20.4.2009-the annexure-C that the petitioner conducted political activities for

the last 27 years from the demised property is baseless inasmuch as that

neither such a condition was imposed in the registered lease deed nor the

petitioner has ever held any meeting of the party at her residence. That the

statements made in the impugned notices to the effect that in the Cantonment

area no military land can be sold or leased or transferred to civilians is totally

false, that a large number of private citizens have been allotted land in the

Cantonment area by way of lease or otherwise under the own Rules and Laws

of Cantonment. That the government has the sovereign authority over any of

its lands. That the Cantonment Act, 1924 and the Rules made thereunder do

not take away the sovereign authority of the government to execute such

lease deed with regard to any land or property within Cantonment area.

Rather the said Rules and above all the Articles 144 and 145 of the

Constitution recognize the ultimate authority of the government to deal with

such lands. That the statements made in several paragraphs of the impugned

notices have no application in respect of the property in question transferred

to the petitioner by a registered lease deed as long back as on 08.7.1981. That

a registered deed can never be cancelled without another registered deed

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executed between the same parties or without an order of a competent court.

That the attempt of the respondents to dispossess the petitioner from this

property violates the fundamental rights of the petitioner guaranteed by

Article 42 of the Constitution read with Article 27 & 31.

The petitioner has alleged that the government’s decision on the subject

is politically motivated and has been taken to harass and victimize the

petitioner as a political opponent; that it is an act of vendetta and vengeance

on the part of the government to humiliate the petitioner in public eye.

It has been also stated in writ petition that an attempt was made to

evict the petitioner from the house in question by the then Government in

2001 on the allegation that the petitioner violated the conditions of the lease

deed but that attempt did not succeed. That the petitioner never violated any

condition of the lease deed in questions. The petitioner has stated further that

she was given two houses by the government, one for her residence at 6,

Shaheed Moinul Road in the Cantonment and the other one in Gulshan to rent

out as a means to sustain livelihood by way of registered deed of sale dated

17, July 1982. That the aforesaid deeds were executed by the Government

and the Cantonment Board on its own and the petitioner did not submit any

application for those.

That after having possessed this house for 28 years peacefully under a

registered lease deed in perpetuity dispossessing of the petitioner there from

will be contrary to the applicable laws and fundamental rights guaranteed by

the Constitution. That the petitioner has acquired a vested right in the

property in question by enjoying it for long 28 years and the respondents are

now estopped from denying the right of the petitioner in the property in

question. That no authority other then a competent court of law can declare or

can come to a decision that a registered deed is void.

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In para 25 of the first supplementary affidavit dated 17.5.2009 the

petitioner has stated also to the effect that

“The reasons shown in the impugned supplementary notice to treat the lease deed as

‘void’ are internal matters of the respondents not known to the petitioner. The petitioner

is innocent and she had no role to play in processing or granting the lease nor she

submitted any representation or application to obtain the leased property.”

However the petitioner has alleged that the impugned notice is illegal, malafide,

collusive, arbitrary and is of no legal effect.

The respondent Nos.1, 3 and 5 have contested the rule by filing an

affidavit-in-opposition. The respondent no.2 also has made appearance

through learned Advocate Mr. Anisul Hoque and contested the rule though

he did not file any affidavit-in-opposition.

However the respondent Nos.1, 3 and 5 in their affidavit-in-opposition

have denied the material case of the writ-petitioner and have asserted that the

lease of the property in question in favour of the petitioner being void ab-

nitio the impugned notices-the annexure C series are very much lawful. The

material case of these respondents is that the house in question standing on a

plot of 2.72 acres of land includes a big residential house (Bungalow),

reception rooms, guard rooms, garden, open space etc. and this house was

always used as bungalow of high ranking military officers. That as per Rule 5

of the Cantonment Lands Administration Rules, 1937 this land is Class A-1

land and that Class A-1 land can not be used or occupied for any purpose

other than the bungalow of military officers and as such the same can not be

subjected to any lease or transfer. That the lease of the house in question in

favour of the petitioner has been in violation of Cantonment Lands

Administration Rules, 1937 and as such this lease is void ab-intio. That lease

of such vast military land with the valuable buildings standing thereon to a

private individual is against public interest and the interest of the armed

forces also and that there is no provision to lease out such a big area as a

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gesture of good will. That in the Cantonment Land Administration Rules

1937 there is a provision to lease out building sites through private

negotiation for public purposes only with the approval of the government and

in consultation with the collector, but the alleged lease deed was not executed

for any public purpose and for this reasons also this lease is void ab-initio.

The respondents have stated further that late President Ziaur Rahman as

a retired senior Army Officer had been receiving pension and other benefits

from the government and after his death his family i.e. the petitioner being

his wife became the recipient of the life long pension of late President Ziaur

Rahman. Besides that, after the death of late President Ziaur Rahman the then

Council of Ministers in its meeting held on 12.6.1981 chaired by the then

acting President Justice Abdus Sattar took a decision for providing huge

financial and other benefits including a house with all modern amentities in

Gulshan or other posh area of Dhaka City to the petitioner and her 2 sons and

according to that decision of the government the petitioner and her sons were

given huge benefits and also a big house in Gulshan area. That when the said

decision of the council of Ministers was being materialized the alleged lease

deed was executed and registered by the Military Estate Officer most illegally

against the public interest and beyond all fairness. The respondents have

contended that this country belongs to people which has been clearly

mandated in Artice-7 of the Constitution, that when the majority of the

inhabitants of the city area have no plots of land of their own and when the

government already took decision to give a house and other huge benefits to

the petitioner and her sons the lease of the property in question and taking of

the same by the petitioner as a lessee has been illegal, unethical and unfair

and also against public interest. The respondents have stated also that many

other important persons made invaluable contribution in the emergence of the

Republic of Bangladesh and some of them were murdered, but none of the

families of them was given any sort of help; that the petitioner and her sons

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were given an extravagant compensation by way of gift of an official

bungalow against the interest of the public and the state. The respondents

have denied also the petitioner’s case that many private individual have been

given lease of this type of land within the Cantonment area and have asserted

that the lands which have been given by way of lease or otherwise to the

private individuals are not at all Class A-1 land; that there is no provision in

the relevant laws and rules for transferring Class A-1 land or any official

residence earmarked for a high ranking military officer to any private

individual. The respondents have denied also the petitioner’s allegation that

the government’s decision on the subject was politically motivated and was

taken to victimize the petitioner as political opponent and have asserted that

the property in question being Class A-1 land and there being no reason of a

public nature, the lease of the property in question in favour of the petitioner

was void ab-initio and also against public interest and as such the impugned

notices-the annexure C series were issued lawfully and there was no political

motive at all. The respondents have prayed for discharge of the rule with cost.

We have heard the learned Advocates for both the sides for several

days Mr. T.H. Khan, Mr. Rafiqul Huq and Mr.Maudud Ahmed –the learned

senior counsels have made elaborate submissions on behalf of the petitioner

for several days. On other hand Mr. Mahbubey Alam, the learned Attorney

General has made submissions on behalf of the respondent Nos.1, 3 and 5 for

several days and Mr. Anisul Hoque the learned senior counsel has made some

submission on behalf of the respondent No.2.

Mr. T.H Khan the learned Senior Counsel firstly read over the writ

petition and two supplementary affidavits filed by the writ petitioner before

us and thereafter he placed his elaborate arguments. The learned senior

Counsel has argued that the property in question is the government property

and the President as the Head of the Government (as he was at that relevant

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time) and also as Head of the State was authorized to exercise the sovereign

authority of the government and in exercise of the sovereign authority of the

government the President transferred the house in question to the petitioner in

consideration of invaluable contribution of her husband late President Ziaur

Rahman to country and nation; that there has been no illegality at all in the

demise of the property to the petitioner by the President; that there was no

legal bar in transferring the property in question to the petitioner. Referring to

Articles 145 and 56 (as it stood at the relevant time) of the Constitution of the

People’s Republic of Bangladesh the learned Advocate has argued also that

the President being the Chief executive of the government had authority to

execute and register the lease deed in question in favour of the petitioner in

respect of the government property and as such the impugned lease deed

cannot be said illegal and void at all. The learned senior Counsel has argued

also that in the relevant law and the rules there is no provision barring the

transfer of any military land within the Cantonment to the private individual.

The learned Advocate has pointed out that rule 26 of Cantonment Land

Administration Rules, 1937 has allowed lease of any land irrespective of

class to any private individual by private negotiation and that the lease deed

in question was executed and registered as per this rule 26 of Cantonment

Land Administration Rules, 1937; that this lease deed being executed and

registered in accordance with statutory rules can not be said void by any

authority other then a competent court. The learned Advocate has contended

also that there is no element at all to render the lease deed in question void;

that the alleged violation of rules in execution and registration of the lease

deed in question, if any at all, was committed by the government and not by

the petitioner and hence the government cannot now take advantage of its

own wrong. The learned Advocate has argued also that in this case the

respondents have miserably failed to pin point the actual violation of any rule

or regulation to render the registered lease deed in question void. Mr. T.H.

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Khan has made argument to the effect also that the land in question is not

actually Class A-1 land as alleged by the respondents but it is actually Class

B-4 land which, according to the learned Counsel, is very much apparent

from the relevant Official files. The learned Advocate has read out relevant

provisions namely Rules 15, 16 and 26 of the Cantonment Land

Administration Rules, 1937 and has contended that the provisions of these

statutory rules have allowed transfer of land by the Military Estate Officer

(M.E.O). The learned Advocate has contended that in these provision of

Cantonment Land Administration Rules, 1937 there is no mention of any

class of land and as such it cannot be said that Class A-1 land is not

transferable. The learned Advocate, has argued that the land in question is

actually B- 4 land and if the General Land Register of the military land had

been produced by the respondents it would been clearly proved that this land

in question is Class B-4 land. The learned Advocate has contended that since

the respondents did not produce the General Land Register of the military

lands before this court inspite of having the said register in their custody the

petitioner is entitled to get advantage of section 114(g) of the Evidence Act.

Refuting the argument of the learned Attorney General Mr. Khan has argued

also that since the land in question belonged to the defence Ministry and

since the proposal of lease in question was initiated from the defence

Ministry the President did not require to consult with the council of Ministers

to take decision to lease out the property in question in favour of the

petitioner. Mr. Khan has opposed the learned Attorney General’s contention

that the Military Estate Officer was not authorized to execute the lease deed

in question on behalf of the President and has stated that since the property in

question was under the Defence Ministry the lease deed required to be

executed by the Military Estate Officer and there has been no illegality in the

execution of the lease deed by Military Estate Officer on behalf of the

President. The learned Advocate has also argued that though the respondents

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have made some allegations as to violation of relevant rules in execution and

registration of the impugned lease deed but this alleged violation of rules, if

any at all, cannot render registered lease deed in question void or illegal. The

learned Advocate has argued also that the writ petitioner has acquired a

vested right in the property in question by enjoying the same peacefully for

long 28 years and as such the respondents action to evict her from this

property is not only illegal but malafide also.

Mr. Rafiqul Huq, the other senior Counsel for the petitioner also has

made elaborate submissions. Mr.Huq has submitted much on the impugned

notices–the annexure-C series. The learned Advocate has impugned the first

notice dated 20.4.2009-the annexure-C terming it as an absolutely illegal and

unlawful notice. The learned Advocate has argued that this notice asking the

petitioner to vacate the house in question without giving her prior show cause

notice and without giving her any opportunity of being heard has been highly

illegal and malafide and that the subsequent supplementary notice asking the

petitioner to show case could not cure this illegality of the first notice. The

learned advocate has contended that the subsequent notice is also illegal

which is nothing but an attempt to fill in the lacuna which is not permitted to

be cured. The learned advocate has argued also that the Military Land

Administrator who issued these notices has no authority to issue these notices

as the lease deed in question was executed by the president who was Chief

Executive of the government at that relevant time. That only under the

authority of the Chief Executive of the government the show cause notice can

be issued.

Mr. Rafiqul Haque has advanced argument to the effect also that the

land in question was not Class A-1 land at the time of lease in question

inasmuch as at that time the said land was in occupation of some civilians-the

heirs of President Ziaur Rahman. Mr. Haque has argued also that the lease

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deed in question was executed and registered as per rule 26 of CLA Rules,

1937 and that this rule 26 does not postulate a condition that lease by private

agreement must be for a reason involving public interest. The learned

Advocate has argued that there is no express provision in any law or rules

barring leasing out any military land to any private person and as such the

executive has residuary power in the name of the President to fill in the

vacuum. In support of this contention the learned Advocate has referred to a

decision of our Appellate Division reported in 50 DLR (AD) 27 (para 40 and

41). Mr. Huq has argued also that a registered deed cannot be cancelled by an

order of the executive, that only a competent court or a registered deed

executed between the same parties can cancell a registered deed; that by the

order of the executive a registered deed can not be rendered void also. The

learned Advocate has argued that if there is any illegality or wrong in the

process of lease in question that was committed by the lessor-the government

and not by the petitioner-the lessee and that now the government cannot take

advantage of his own wrong. Mr. Huq has made submissions on legitimate

expectation, estopple and vested right stating to the effect that since the lease

agreement has been concluded and the petitioner has acted in furtherance to

that deed the petitioner has a legitimate expectation that she should be treated

fairly and that the government having made promise by executing the lease

deed is now estopped to raise the plea that it had no authority to make the

lease; that the petitioner having enjoyed the property in question on the basis

of lease deed in question for 28 years has acquired a vested right and now the

respondent can not say that the lease deed is void ab-initio. Mr. Huq has

argued also that as per Non-Agricultural Tenancy Act, 1949 the petitioner

having possessed the house in question for more then 12 years cannot be

evicted now from there.

Mr. Moudud Ahmed, the other learned Senior Counsel adopting the

arguments advanced by Mr. T.H.Khan and Mr. Rafiqul Huq has argued

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further to the effect that the President being the head of the Government (as

he was at that relevant time) had power to exercise the sovereign authority of

the Government and that this sovereign authority of the government can not

be taken away by any law or rules and that the impugned lease deed was

executed by the President in exercise of this sovereign power of the

government and as such the legality of this deed can not be questioned now.

Referring to Article 144 and 145 of the Constitution the learned Advocate has

argued that in exercise of the executive authority of the Republic the

President demised this property to the petitioner in consideration of some

exceptional reasons and as such this lease deed is very much lawful; that the

petitioner has been enjoying and possessing this property for the last 28 years

and the government did not raise any objection to that, rather in an earlier

criminal case filed against the petitioner the government admitted the

petitioner as the owner of the property and as such the government can not

now be allowed to evict the petitioner from the house in question on the plea

that the lease deed is void. Mr. Moudud Ahmed has argued also that the class

of the land in question is immaterial, since the President, in exercise of the

sovereign authority of the Government has executed the lease deed this lease

deed is very much legal and lawful.

On the other hand the learned Attorney General Mr. Mahbubey Alam

also has made long argument. Firstly he has made submissions to the effect

that the Hon’ble President of the Republic is to exercise his power on behalf

of the People of the Republic as per Article 7 of the Constitution and that

power has to be effected only under the authority of the Constitution; that the

Constitution does not permit the President to do anything against the interest

of the people of the Republic. The learned Attorney General has argued that

in this case the granting of lease of 2.72 acres equivalent to 165 kathas of

land with valuable buildings has been made without considering the interest

of the people of Republic and thus the alleged lease deed has been in gross

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violation of the provision of Article 7 of the Constitution and as such the

alleged lease is void. Referring to Article 8 of the Constitution the learned

Attorney General has contended that after taking decision to give the writ

petitioner and her sons a house in Gulshan or other posh area of Dhaka City

and other huge financial benefits granting of lease of such a house standing

on 165 kathas of land in Cantonment area in favour of the petitioner has been

against the principles of social and economic justice and thus the alleged

lease deed has been in violation of the principle laid down in Article 8 of the

Constitution also and for this reason also this lease deed has been illegal. The

learned attorney General has submitted also that many other military officers

and top national leaders also contributed their invaluable services to the

country and nation and also in the liberation war and some of them were

assassinated, but none of their families were given any property or donation.

Mr. Mahbubey Alam has made submissions to the effect also that after the

death of President Ziaur Rahman the government in a meeting of the Council

of Ministers headed by the acting President held on 12.6.1981 took decision

to give the petitioner and her sons a house in Gulshan or other posh area of

Dhaka City along with huge other benefits and according to that decision of

the Government the petitioner and her sons were given a big house on more

than 112 bighas of land in Gulshan Model Town and also other huge benefits,

but neither in that meeting of Council of ministers held on 12.6.1981 nor in

other meeting of the council of Ministers the Government took any decision

to demise the property in question to the petitioner. The learned Attorney

General has argued that in fact there was no decision at all of the Government

to demise such valuable property to the petitioner and has contended that for

this reasons also the impugned lease deed has been illegal and void. The

learned Attorney General has read over the relevant provisions of the

Cantonment Act, 1974 and the Rules made thereunder and has contended

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that the land in question is clearly Class A-1 land and that Class A-1 land is

not transferable at all according to the provisions of Cantonment Land

Administration (CLA Rules) Rules, 1937. The learned Attorney General has

also pointed out that for leasing out any building site to any individual

through private negotiation as per rule 26 of the CLA Rules, 1937 the most

essential requirement is existence of reasons of a public nature, but in this

case, evidently, there was no reason of a public nature, for leasing out this

land to the petitioner. The learned Attorney General has contended that for

absence of any reason of a public nature also this lease deed executed as per

rule 26 of the CLA Rules, 1937 has been illegal and void. The learned

Attorney General has made long argument in support of his contention that

the lease of such a valuable property in favour of a private individual has

been against the public interest and for this reason only also this lease has

been void.

Mr. Anisul Hoque, the learned Senior Counsel appearing on behalf of

the respondent No.2 has made some submission to the effect that the

petitioner has violated the terms and conditions of the lease deed, but since in

the impugned notices-the Annexure-C series no such allegations of violation

of the terms and conditions of the lease deed have been made we shall not

consider these allegations tried to be brought before us by the learned

Counsel for the respondent no.2 into consideration at all.

However, we have considered the submissions of the other learned

Advocates of both the sides deeply and gone through the writ petition, the

supplementary affidavits, the reply to the affidavit-in-opposition and also the

affidavit in opposition filed on behalf of the respondent Nos.1, 3 and 5 and

the annexures attached thereto.

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The subject matter of this writ-petition is 2.72 acres equivalent to 165

Katha of military land with buildings standing thereon situated at 6 Shaheed

Moinul Road of Dhaka Cantonment which was earmarked for high ranking

military officers as official residence. And the question which will have to be

determined in this writ-petition is whether the lease of this land with the

buildings thereon infavour of the petitioner by a registered lease deed dated

08.7.1981 executed by the Military Estate Officer on behalf of the President

is void ab-initio or not. The present Government has termed this lease as void

ab-inito stating several reasons.

One of these stated reasons is that the land in question being Class A-1

land it was not transferable at all.

The land in question, admittedly, is military land within Cantonment

belonging to the government. For the purpose of management, control,

disposal etc of the military land different Rules have been framed under the

Cantonment Act, 1924. The Cantonment Land Administration Rules, 1937 is

one of such Rules made under the Cantonment Act, 1924 which has provided

detailed provisions as regards classification, control, management disposal

etc. of Cantonment lands. Rule 4 of this Cantonment Land Administration

Rules, 1937 ( C L A Rules, 1937 for short) has dealt with the classification of

Cantonment lands. According to this Rule-4 of CLA Rules, 1937 the lands in

Cantonment fall in main 3 categories namely class “A” land, class “B” land

and class “C” land. Class- A and Class –B lands vested in the government

and Class C land vested in the Cantonment Board. Class-A land has been

stated to be those which are required or reserved for specific military

purposes and Class-B land are those which are not so required or reserved,

but which are retained in the cantonment for the effective discharge of the

duties of the Government in respect of the military administration. Rule 5 of

CLA Rules, 1937 has devided Class-A land into 2 sub-classes, namely Class

18

A-1 land and Class-A-2 land. We think it necessary to quote rule 5 of CLA

Rules,1937 here.

5. Class “A” land-Class “A” land shall be divided by the Central Government, or such authority as they may empower in this behalf, into the following sub-classes, namely:- (i) Class “A” (I) Land which is actually used or occupied by the

Military Authorities, for the purposes of fortifications, barracks, stores, arsenals, aerodromes, bungalows for military officers which are the property of Government, parade grounds, military recreation grounds, rifle ranges; grass farms, dairy farms, brick fields, soldiers and hospital gardens as provided for in paragraphs 419, 421 and 425 of the Regulations for the Army in India and other official requirements of the Military Authorities.

(ii) Class “A” (2) Land which is not actually used or occupied by the Military Authorities, but to the use or occupation of which for any other purpose, except temporarily, there exist specific military objections.

From this very description Class-A1 land it is evident that Class-A-1

land are very special lands in nature which are used for very special purposes

including bungalows for military officers. The land in question and the

buildings standing thereon, admittedly, was being used as the official

bungalow of high ranking military officer since long. Shaheed President

Ziaur Rahman with the members of his family started to reside in this official

bungalow at 6 Shaheed Moinul Road of Dhaka cantonment as the Deputy

Chief of Army Staff and thereafter as the Chief of Army Staff also he resided

in that house with his family members. So, admittedly, this house in question

was being used as a bungalow of high ranking military officers since long

and as such the land on which this bungalow stands, is, obviously Class-A1

land as per the above quoted rule 5 of the CLA Rules, 1937.

From the side of the petitioner it has been argued that this land in

question is actually Class-B(4) land as per General Land Register and that in

some correspondences also in between the defence Ministry and the military

19

authority as available from the relevant office files this land has been

mentioned as Class B(4) land. It might be that in the General Land Register

prepared by the Military Estate Officer (MEO) as per rule 3 of the CLA

Rules, 1937 this land has been mentioned as Class-B(4) land, but this mere

entry of this land in the General Land Register prepared by the MEO as

Class-B(4) land cannot change the actual nature and character of this land

which it acquired by virtue of statutory rules, namely rule 5 of CLA Rules,

1937. The above quoted rule 5 of CLA Rules, 1937 tells it very clearly that

the lands in question with the bungalow standing thereon is Class-A1 land.

The statutory rule has brought this land in question within the category of

Class-A1 land- it cannot be changed for any wrong entry of it in the General

Land Register. The learned Attorney General has given an explanation as to

this wrong entry of the land in question in the General Land Register. He has

stated that this land was acquired as vacant land and it might be entered in the

General Land Registered as class B-4 land while it was vacant, but

subsequently when it was converted into a bungalow for military officers the

entry of the General Land Register perhaps was not corrected accordingly.

We find this explanation of the learned Attorney General most probable. It

should be mentioned here that from the relevant official file brought before

us, viz, MLC file No.2 6 ML and C/MEO/283-2/sha-3 Part-2 it appears that

at page no. 82 of this file there is a letter dated 18.11.1998 bearing memo

No.BD/LC/906/81/61 written by MEO to Director, Military Land and

Cantonment (DMLC). In this letter it has been stated clearly that this land

was Class-B(4) land from before and the classification of this land was never

changed. Obviously this letter supports the learned Attorney Generals’

explanation that this land was entered in the General Land Register as a

vacant land after his acquisition and as such it was mentioned as Class-B(4)

land and thereafter no correction was made as regards the classification of

this land in the General Land Register after the construction of official

20

bungalow on this land. However, since, admittedly, this land was being used

as bungalow of high-ranking military officer it cannot be accepted that for the

mere wrong entry of this land in General Land Register as B-4 land this land

is actually B-4 land. In this connection we have considered the argument

advanced by Mr. Rafiqul Huq, the learned Senior Counsel for the writ

petitioner. Mr. Huq has argued that at the time of execution of the lease deed

in question this land did not remain Class-A1 land as at that time this land

was under the occupation of some civilian-the heirs of Shaheed President

Ziaur Rahman. The learned Advocate has contended that as per rule 4 of

CLA Rules, 1937 Class-A land is that land which is in active occupation of

the army, but since admittedly, when the impugned lease deed was executed

and registered this land and the house thereon was occupied by the petitioner

and her sons-who were civilians there is no scope to say that the said land

was in active occupation of the army. But we can not accept this contention

of the learned Advocate. Shaheed President Ziaur Rahman started to live in

this bungalow under the military authority while he was a military officer and

lived in that bungalow for a long period as a high ranking military officer-

even as a Chief of Army Staff. After being elected as President and became

commande-in-Chief of Armed Forces also he continued living in that

bungalow without shifting to Bango Bhaban and after his death his family

continued living in that house. But for this reason only the bungalow

earmarked for military officers can not lose or change its nature and

character. President Ziaur Rahman being the Commander-in-Chief of Armed

Forces continued living in this bungalow earmarked for military officers not

as of his own, rather admitting that house to be of military authority and as

such the military authority was very much in occupation of that bungalow.

According to rule 5(i) of the CLA Rules, 1937 Class-A-1 land are those lands

which are actually used or occupied by the military authority. When a

bungalow is allotted to a military officer as his official residence that military

21

officer resides in that bungalow under the military authority and thus that

bungalow remains under the occupation of the military authority. The

military authority remains in active occupation of the bungalows earmarked

for military officers through the allottees when the allottees are in possession

of the same. So, it is not acceptable at all that since the original allottee died

and his heirs as civilians continued living in that bungalow that bungalow no

more remained under the occupation of the military authority.

However, in view of above discussion it is evident that the land in

question is clearly class A-1land according to rule 5(i) of CLA Rules, 1937.

Now the question is whether Class-A1 land can be transferred to any

one.

We have already quoted above rule 5 of CLA Rules, 1937 which has

described the Class-A 1 and Class-A-2 lands. Rule 14 of the CLA Rules,

1937 has provided special rules for Class-A land. The relevant portion of rule

14 of CLA Rules, 1937 needs to be quoted here.

14. Special Rules for Class “A” Lands.-(1) The administrative control of Class “A”

(1) land including the detection and prevention of encroachments thereon, shall vest in

the Military Authority for the time being in occupation of the land. The administrative

control of Class “A” (2) land shall vest in the Central Government.

(2) The Military Estates Officer shall conduct his management of Class “A” land (which

shall include the development of the resource of the land, the disposal of usufruct and the

planting and maintenance of trees), in consultation with and under the general

supervision of the Officer Commanding the Station, at whose discretion expenditure will

be incurred within the allotment made to the Military Estates Officer and in accordance

with the military regulations in force regarding the planning of trees and the cultivation of

land in military areas.

(3) Land in Class “A” (1) shall not be used or occupied for any purpose other than those

stated in sub-rule (i) of rule 5 without the previous sanction of the Central Government or

such authority as they may appoint in this behalf.

22

Provided that the temporary use of Class “A” (1) land which is under the management of

the Military Authority may be permitted by those Authorities for the storage of materials

by contractors for the purpose of carrying out Government work. Such permission shall

be given in writing by the officer of the Military Engineer Services in charge of the work

and shall remain in force only for such period as he may consider reasonable.

(4) Class “A” (2) land shall ordinarily be kept vacant but its temporary use or occupation

may be licensed by the Military Estates Officer under rule 39, or it may be leased by the

Military Estates Officer by private treaty for periods not exceeding five years with the

previous sanction of the Officer Commending-in-Chief, the Command, or for any other

period with the previous sanction of the Central Government.

From the above quoted rule 14 of the CLA Rules, 1937 it is evident

that the use and occupation of Class-A-1 land for any purpose other than

those stated in sub-rule (i) of rule 5 has been restricted. Only with the

previous sanction of the government or such authority as may be appointed in

this behalf the Class-A-1 land can be used or occupied for any purpose other

than those stated in sub-rule (i) of rule 5 of CLA Rules, 1937. This sanction

is only for use and occupation and not for transfer by way of lease or

otherwise. From the above quoted sub-rule (4) of rule 14 it is evident that

Class-A-2 land have been allowed to be transferred by way of lease by the

Military Estate Officer with the previous sanction of officer commanding-in-

charge, the command for a maximum period of 5 years and with the previous

sanction of the Government for any period. But for Class-A1 land this rule

14 has not given any allowance for lease or any other kind of transfer with

the sanction of the Government even-obviously in consideration of the very

special nature of the Class-A1 land as stated in rule 5(i) of CLA Rules, 1937 .

The Class-A1 lands are used for the purposes of special nature, such as for

fortification, barraks, stores, arsenals, aerodromes, bungalows for military

officers, parade grounds, military recreation grounds, rifle ranges grass firms,

dairy farms, brick fields, soldiers and hospitals gardens etc. These very nature

and character of class A-1 lands suggest that these lands cannot be leased out

23

in perpetuity or transferred otherwise to any private individual. And it is,

obviously, for this reason that though sub-rule (4) of rule 14 of CLA Rules,

1937 has allowed lease of Class A-2 land by the MEO but there is no such

allowance for lease of Class-A1 land by MEO in rule 14 or in any other rule.

From the side of the writ petitioner it has been argued that since there is no

express bar in disposal of Class-A 1 land the M.E.O can lease out these lands

as per rule 16 and rule 26 of the CLA Rules, 1937. Mr. Rafiqul Huq-the

learned senior Counsel has argued that in the absence of express provision of

law debarring lease of military land to private persons the executive has

residuary power in the name of President to fill in the vacuum/void. The

learned Advocate has contended that the lease deed in question executed in

the name of the president has been made in exercise of the residuary power of

the executive and as such it is not illegal. In support of this argument the

learned Advocate has cited a decision of our Appellate Division reported in

50 DLR (AD) 27. We have gone through this cited judgment by which 3

appeals were disposed of. The writ-petitioner-respondents in all those 3

appeals challenged the constitution of the promotion committees and

procedure and criteria for promotion to the posts of Joint Secretary and

Deputy Secretary of the Government which took place in 1992 on the

contention amongst others, that the said Promotion Committees being

constituted as per administrative order and not by any law or rules framed

under Article 133 of the Constitution were ultra vires Article 133 of the

Constitution. Their Lordships, however, held that in the absence of any law

or rules framed under Article 133 of the Constitution the void created could

be filled up by the executive power expressed to be taken in the name of the

President. We do not find any application of this cited decision in this present

case. In this present case there is no such ‘void’ as regards ‘transfer’ of Class

A-1 military land, rather, as we have already pointed out above, the relevant

rules have very clearly expressed that the Class A-1 land is not transferable at

24

all. So, we are unable to accept the argument of the learned advocate for the

writ petitioner that there is no bar in leasing out the Class A-1 land and as

such the impugned lease deed executed by the executive in the name of the

president is legal. We think that rule 5(i) and rule 14 of the CLA Rules, 1937

together makes it very clear that Class-A-1 land is not transferable. The

framers of the Cantonment Land Administration Rules, 1937 purposely did

not sanction any allowance for transfer of Class-A1 land considering the very

special nature of these lands though they allowed transfer of Class-A-2 land

expressly. Where special provisions have been provided for Class-A land by

rule 14 of CLA rules, 1937 and where this rule 14 has expressly allowed

transfer of Class-A2 land only and did not give any such allowance for

transfer of class A-1 land there can be no doubt that the class –A1 land has

not been allowed to be transferred.

It has been argued from the side of the petitioner that the house and its

adjoining land in question are “Building site” according to the interpretation

given in rule 2(c) of the CLA Rules, 1937 and as such it can be leased out for

any period with the sanction of the government as per rule 26 of CLA Rules,

1937. Rule 2(c) of CLA Rules, 1937 has interpreted building site thus:

(c) “ building site” means a portion of land held or intended to be held for building purposes, whether any building be erected thereon or not, and includes the open ground or courtyard enclosed by, or adjacent to, any building erected thereupon;

In view of this interpretation of the “Building site” the house and the

land in question, no doubt, can be treated as ‘building site’. But can it be

argued that any building site cannot be treated as Class-A1 land? The

bungalows for military officers come within the category of “building site” as

per interpretation of rule 2(c) of CLA rules 1937. But rule 5 of this CLA

Rules, 1937 has categorically stated that the bungalows for military officers

(which are properties of government) are Class-A1 land. So even if the

bungalows for military officers be ‘building site’ according to rule-2(c) of the

25

CLA Rules, 1937, these having been classified as Class-A1 land by rule 5 of

CLA Rules, 1937 are not transferable in view of rule 14 of CLA Rules, 1937.

Nevertheless, in view of strong argument from the side of the petitioner

to the effect that the house in question being a ‘building site’ it was lawfully

leased out to the petitioner as per rule 26 of CLA Rules, 1937 we shall

discuss about what has been provided in CLA Rules, 1937 about leasing of

any ‘building site’ to any private person. Chapter V of CLA Rules, 1937 has

dealt with disposal of land by Military Estate Officer (MEO). The first rule of

this chapter, namely rule 15 has prohibited sale of land for any purpose

without order of the government. Rule 16 of this chapter has allowed lease of

‘building site’ by M.E.O through public auction for a minimum period of 30

years up to maximum period of 90 years. Rules 17,18,19,20,21, 22, 23 and 24

of this chapter have provided detailed procedure for leasing out ‘building

site’ by the MEO through auction. We need not discuss these details of lease

of any ‘building site’ through public auction since the impugned lease in

question was not through public auction as per procedures prescribed by

these rules. The lease in question was by private agreement as per rule 26 of

this chapter V of CLA Rules, 1937. This rules 26 requires to be quoted here.

26. Disposal of Lease by Private Agreement.--- Notwithstanding anything contained in rules 16 to 24 , the Military Estates Officer may, in exceptional cases for exceptional reasons to be recorded in writing , and subject to the approval of the Central Government, or such other authority as the Central Government may appoint for this purpose, dispense with the deposit of the cost of survey and demarcation, as prescribed by rule 20, or with the auction of the lease, as prescribed by rule 22, or with both, and may lease any site by private agreement, at such rate of rent, and on payment of such premium, as the Central Government or the appointed authority may approve in each case:

Provided that the concurrence of the Collector and the approval by the Officer Commanding the Station shall be obtained before application is made for the approval of the Central Government or the appointed authority.

From the side of the petitioner it has been argued strongly that the

property in question was leased out to the petitioner on observance and

fulfillment of the mandatory requirements of this rule 26 and on obtaining

approval of the president and thus this lease is very much lawful and the

26

validity of it cannot be questioned. However, keeping the question whether

this property could be leased out by the MEO-aside, we, for the purpose of

giving reply to the above argument advanced from the side of the petitioner,

shall examine whether the requirements of this above quoted rule 26 of the

CLA Rules,1937 were met in granting the lease of the house in question in

favour of the petitioner. From the above quoted rule 26 it is evident that in

exceptional cases and for exceptional reasons to be recorded in writing and

with the approval of the Government or other authority appointed by the

Government for this purpose the MEO is authorized to lease out any site at

any rate of rent and on payment of any premium by private agreement

without following procedures laid down in rules 16-24. Evidently for leasing

out any site by private agreement as per rules 26 of the CLA Rules, 1937 the

most essential requirement is existence of exceptional reasons which has to

be recorded in writing. What may be treated as exceptional reasons- that has

not been stated in this rule 26. But in the supplemental note to this rule 26 the

exceptional reasons has been explained as “reasons of a public nature”. We

should reproduce this supplemental note (i) (a) (b) to this rule 26 here.

(i) Application of Rule 26. (a) Leases under these rules are normally to be granted in accordance with the provisions of rules 16 to 25. The provisions of rule 26 should be interpreted as applying primarily to the grant of a new site, and the only exceptional reasons which would normally justify the grant of a lease of a new site under this rule would be “ reasons of a public nature”.

(b) “ Reasons of a public nature” justifying the disposal of a site under this rule are to be strictly construed before any recommendation for the grant of a lease by private treaty is made. The services and deserts of an applicant are not to be considered as a ground for making a recommendation and no grant of a lease under this rule may be made without the specific sanction of the Central Government or such other authority as the Central Government may appoint for the purpose. The fact that a man owned the adjoining site and wished to extend his business would, by itself, be no reason for dispensing with the ordinary procedure of auction, though the fact that the business was essential to the welfare of the troops might be a reason . The criterion in doubtful cases must be whether the area applied for could or could not, be reasonably and profitably disposed of to anyone except the applicant. (underlined by us)

27

From the above quoted supplemental note to rule 26 it is evident that

the only exceptional reason which would justify the grant of lease of a site by

private negotiation as per rule 26 would be “reasons of a public nature” and

these “reasons of a public nature” justifying the disposal of a site under rule

26 are to be strictly construed before any recommendation for the grant of a

lease by private treaty is made. The services and deserts of an applicant

cannot be considered as “reasons of a public nature” .

Mr.Rafiqul Huq, the learned Counsel for the petitioner has argued that

rule 26 of the CLA Rules, 1937 does not postulate a condition that a lease by

private agreement must be for a purpose involving public interest and as such

it is not acceptable that the lease in question being not for any public purpose

is void. But we cannot accept this argument of the learned Advocate in view

of the above quoted supplemental note to rule 26. The supplemental notes

added to the rules of CLA Rules, 1937 have been endorsed by the

Government and these are to be acted upon accordingly. These notes

supplement, of course, can not over ride the provisions of statutory rules. The

above quoted supplemental note (i) (a) (b) to rule 26, evidently, do not over

ride or are in conflict with the provision of rule 26 and as such these are to be

followed and acted upon. (See introductory notes to “Military Lands Manual”

and commentary below rule 1 of CLA Rules, 1937). These supplemental

notes to rule 26 of CLA Rules, 1937 have been added by the Government

which has made the rule and as such these supplemental notes are as effective

and binding as the statutory rules. These supplemental notes being added to

the statutory rule by the authority which made the rule have the force of law.

The framers of this rule 26 purposely added these supplemental notes to this

rule to keep a ‘check’ on disposal of government property by private

negotiation. If any disposal of government property in contravention of the

supplemental notes added to rule 26 of CLA Rules, 1937 is approved by the

court that will amount to giving of license to the authority concerned to

28

dispose of public property arbitrarily and unreasonably at their sweet will.

However it is evident that according to rule 26 of CLA Rules,1937 and the

supplemental notes thereto the MEO is authorized to lease out any site by

private agreement for exceptional ‘reasons of a public nature’ only and not in

consideration of the service and deserts of the applicant. In the present case

the lease in question was granted allegedly on compassionate ground as a

gesture of good will in consideration of the facts (as it appears from the

impugned lease deed-the annexure-A) that President Ziaur Rahman was

brutally killed by some miscreants, that he during his life time rendered

invaluable service to the country and the nation and that late President Ziaur

Rahman left behind his wife and 2 minor sons without any known and

substantial means of living. Obviously these stated reasons for leasing out

the property in question to the petitioner are not of a public nature. According

to the above quoted note (i)(b) to rule 26 of CLA Rules,1937 these stated

reasons can not be considered as a ground for granting lease by private

negotiation under rules 26 of CLA Rules, 1937. So, it is evident that there

was no reason at all of a public nature to lease out the property in quesstion to

the petitioner as per rule 26 of CLA Rules, 1937.

It has been argued from the side of the petitioner that undoubtedly it

was a very exceptional case and the reasons for granting the lease also, as

mentioned in the impugned lease deed, were exceptional and in this

circumstances the granting of lease by private agreement as per rule 26 of

CLA Rules, 1937 was not at all unlawful. The learned Attorney General for

the respondents has opposed this argument of the petitioner. The learned

Attorney General has stated that the government already considered these

exceptional reasons and in a meeting of Council of Ministers headed by the

President held on 12.6.1981 the government took decision to give huge

financial and other benefits including a house with all modern amentities in

Gulshan area or other posh area of Dhaka City and according to this decision

29

of the government the petitioner and her sons were given all those benefits

including a house on more than 112 bighas of land in Gulshan Model Town

and in that circumstances there remained no reason for leasing out such

valuable property in question to the petitioner at a premium of Tk.1/- only.

For considering these arguments of the learned Advocates of both the sides

some facts should be made clear. Admittedly the land in question belonging

to the government was allocated to the military authority and the military

authority was in occupation of the same. The government has enacted several

laws and rules for the management, control and disposal of the military lands

and according to the these rules the MEO, who is the agent of the government

(see rule 2(e) of CLA Rules, 1937 and the supplemental notes thereto) has

been authorized for the management, control and also disposal of some

military lands by way of lease. In this case it appears from relevant files

namely file No.6/ML & C/MEO/283 Part-I of the office of Military Lands

and Cantonment Directorate that on 9.6.1981 the Director, Military lands

and Cantonment wrote two letters to the Military Estate Officer and DW &

CE, Army Head Quarter, Dhaka Cantonment asking for some particulars

about the house in question and in both those two letters there is a foot note

to the effect “ with reference to telephonic order by the CAS to the DML

& C on 9th June, 1981.” The subject of both these letters were written thus:

“TRANSFER ON LEASE OF THE PREMISES KNOWN AS PRESIDENT

BHABAN” DACCA CANTONMENT. The Copies of those two letters

appear to have been forwarded also to CAS Secretariat, Army Head Quarters,

Dacca Cantonment. We have examined all the relevant official files in

connection with the lease in question and we have found that these two

letters were the first written correspondence as regards the impugned lease

and on the basis of these two letters the process of lease in question was

started and files were opened . So these two letters amply prove that the

30

proposal for leasing out the property in question to the petitioner was started

on the order of the Chief of Army Staff as per his desire. From the relevant

files of the defense Ministry and of the office of the DMLC it appears

sufficiently that the proposal for leasing out the property to the petitioner at a

premium of Tk.1/- only and at annual rent of Tk.1/- only was initiated as per

order of the Chief of Army Staff and the said proposal was sent to the defense

Ministry for approval of Government as per requirement of the rule 26 of the

CLA Rules, 1937 and Acting President-who was in charge of the Defense

Ministry gave approval only to that proposal. Evidently, there was no

decision of the government to demise the property in question to the

petitioner. It should be mentioned here again that the government earlier, in

consideration of the facts mentioned in the impugned lease deed, took

decision in a meeting of Council of Ministers held on 12.6.1981 to give huge

financial benefits including a house in Gulshan area or other posh area of

Dhaka City to the petitioner and her sons (and that decision was

materialized also) but no decision to demise the property in question to the

petitioner was taken by the Government in the said meeting of council of

Ministers held on 12.6.1981 or in any other meeting. The decision for leasing

out the property in question to the petitioner was of Chief of Army Staff and

the President alone gave formal approval only to that decision. The Chief of

Army Staff had no authority to demise any government property or even to

take any decision to demise any Government property to anybody. The MEO

only-who is appointed by the Government and is the agent of the

Government for the management, disposal etc. of military land belonging to

the Government-had the authority to lease out ‘building site’ following the

prescribed procedures and also by private negotiation for ‘reason of a public

nature’ only. The lease of the property in question to the petitioner as per

decision and order of the Chief of Army Staff has been highly illegal. The

military authority has no authority to demise such valuable property to any

31

private individual on any consideration. The lease of the property in question

to the petitioner as per decision and order of Chief of Army Staff, on

whatever consideration it might be, has been highly illegal and void.

There are some other illegalities also in the process of lease in question.

According to proviso to rule 26 of CLA Rules, 1937 concurrence of the

collector and approval of the officer commanding the station were essential

for submitting the proposal of the lease for approval of the Government. But

the relevant files mentioned above show that no concurrence of the collector

and approval of officer commanding the station was obtained before

submission of the proposal for approval of the government.

All the learned Advocates for the petitioner have made strong

arguments to the effect that the property in question, admittedly, is

government property and the President being the Head of the Government

and also of the state (as the President was at that relevant time) had power to

demise the property in question to the petitioner in exercise of the sovereign

authority of the government. Referring to Articles 144 and 145 of the

Constitution Mr. Moudud Ahmed-the learned Senior Counsel for the

petitioner has argued that no law or rule or regulation can take away the

sovereign power of the government, that the President being head of the

Government had power to demise this property owned by the government in

exercise of sovereign power of the government. Mr. T.H.Khan, the learned

Senior Counsel for the petitioner also has referred to Article 56 (as it stood at

that relevant time) and argued to the effect that at that relevant time the

executive authority of the Republic vested in the President and in exercise of

this power the President leased out the property in question to the petitioner

most lawfully and it cannot be questioned. The learned Advocates for the

petitioner have contended that since the property in question, admittedly,

32

belonged to the government the president, in exercise of sovereign power of

the government, lawfully demised this property to the petitioner.

On the other hand Mr. Mahbubey Alam, the learned Attorney General

has made submissions to the effect that the President of the Republic is to

exercise his powers on behalf of the people of the Republic as per Article 7 of

the Constitution and that power is to be effected only under the authority of

the Constitution. That Constitution does not permit the President to do

anything against the interest of people. That granting of lease of 165 Kathas

of land with valuable buildings-which was earmarked as official residence of

high ranking military officers-was against the interest of the people and the

state and thus the lease was in gross violation of Article 7 of the Constitution.

Learned Attorney General has argued also that after taking decision to give a

house in Gulshan along with other huge benefits to the petitioner and her sons

the granting of lease of such valuable state property to the petitioner was

against the principle of social and economic justice and thus the lease in

question has been in violation of the principle laid down in Article 8 of the

Constitution. The learned Attorney General has put an emotional question

also to the effect that “whether the court will approve the demise of

“Bangabhaban” in a like situation by any party government to the heirs of

any slain President even if there be no express bar anywhere against such

demise of ‘Bangabhaban’? The learned Attorney General has submitted also

that if this type of disposal of important state property is approved by the

court that will be devastating for the nation.

It is true that the president being the head of the state and of the

Government (as he was at that relevant time) had power to exercise the

sovereign authority of the Government, but that power, certainly, was subject

to law. The president was/ is not above law. The President also has to abide

by the laws of the country and has to exercise his power in accordance with

33

law in the interest of the people of the country. As regards state/public

property the President cannot have an absolute or open-end discretion to

dispose of public property to whomsoever he likes, at any price he likes and

in any manner he likes. While disposing of state property the president must

keep in consideration the interest of the state and its people. There may be

circumstances when it becomes necessary to demise any public property to

any individual in consideration of any exceptional reasons, and in those

circumstances the Government can demise those public properties only-the

disposal of which is not prohibited by any law and also the disposal of which

will not be against the interest of the state and its people. The demise of any

state property of national importance to any individual will be undoubtedly

against the interest of the state and the nation. So, even if there be no express

bar against disposal of any such state property of public or national

importance the demise of the same to any individual will be against the

interest of the state and its people and therefore, will be unapprovable and

void. The properties belong to the state and the position of the Government is

that of a trustee and as such the Government should look to the interest of the

state and its people while disposing of any state property. The aim of the

courts is to ensure that the Government does not confer benefits on individual

or dispose of public property in an arbitrary or discriminatory manner against

the interest of the people and the state. It is for this reason that the Supreme

Court of India in a land mark case of Kasturi Lal Lakshmi Reddy Vs. State of

Jammu and Kashmir, AIR 1980 SC 1992 held thus:

“every action taken by the government must be in the public interest; the government

cannot act arbitrarily and without reason and if it does its action would be liable to be

invalidated.”

So if the government disposes of any public property its action would

be liable to be tested for its validity on the touchstone of reasonableness and

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public interest and if it fails to satisfy either test it would be unconstitutional

and invalid.

In the present case the lease of a big official bungalow of high ranking

military officer-which is a state property of national importance was,

undoubtedly, against public interest and the same was also unreasonable in

consideration of the facts that the petitioner and her two sons were given

huge financial and other benefits including a big house on more than 112

bighas of land in Gulshan Model Town by the government after the death of

President Ziaur Rahman on consideration of the same facts and

circumstances which have been stated in the impugned lease deed-the

annexure-A as the reasons of this lease.

However, in view of above discussion we may list the reasons which

have rendered the lease in question void-as under;

No.1. The land in question being Class A-1 military land was not

transferrable according to CLA Rules, 1937.

No. 2. There was no “reason of a public nature” to lease out the

property in question as per rule 26 of the CLA Rules, 1937.

No.3.There was no government decision to demise the property in

question to the petitioner.

No.4. The decision for leasing out the property in question to the

petitioner being taken by the Chief of Army Staff-the whole process of

the lease was highly illegal.

No.5. The property in question being Official Bungalow earmarked for

high ranking military officers and being used as official residence of

Chief of Army Staff and also of President is a property of national

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importance and as such its demise to the petitioner was against public

interest.

Before drawing concluding order we need to consider some other

points raised by the learned advocates for the petitioner.

Mr. Rafiqul Haque the learned senior advocate for the petitioner has

made submissions on the legality of impugned notices-the annexure-C series.

The learned advocate has contended that the 1st notice dated 20.4.2009-the

annexure-C asking the petitioner to hand over the property in question within

15 days is highly illegal inasmuch as before issuance of that notice no show

cause notice was served upon the petitioner giving her opportunity of being

heard. The learned advocate has contended further that the subsequent show

cause notice dated 7.5.2009 also was illegal as it was nothing but an act to fill

in the lacuna which is not permitted to be cured and it, in fact, could not cure

the initial illegality of not issuing the show-cause notice. To substantiate this

contention the learned Counsel has cited some decisions of our Appellate

Division. We have gone through the cited decisions of our apex court. In all

those decisions their lordship held to the effect that a lease can not be

cancelled/terminated without hearing the lessee. In the present case, however,

the respondents, subsequently served a show cause notice dated 07.5.2009

asking the petitioner to show cause within 15 days from the date of service of

that notice as to why she should not be directed to hand over possession of

the property in question. That show cause notice dated 07.5.2009 was stated

to be supplemental to the first notice dated 20.4.2009 which was also

converted into a show-cause notice by that supplemental notice. We do not

find any illegality or malafide in this act of the respondent as alleged from the

side of the petitioner. The supplemental notice to show cause was served

before taking any action on the basis of first notice dated 20.4.2009 and by

that supplemental notice to show-cause the petitioner was given further time

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of 15 days from the date of service of that supplemental notice to show cause.

And after expiry of that ‘15 days’ the respondents served the final notice

dated 24.5.2009-the annexure C-2 asking the petitioner to hand over

possession of the house in question. Since this notice to show cause was

served before taking any action on the basis of first notice providing a fresh

time limit for show cause this notice cannot be said illegal at all. Had it been

so that after taking action on the basis of the first notice dated 20.4.2009 the

respondents served this show-cause notice then it could have been argued that

this show-cause notice was illegal, for, it was an act to fill in lacuna and for,

it could not cure the mischief which was already committed by the first

notice. This argument is not acceptable at all that a wrong or defect in any

notice can not be cured by issuing a fresh valid notice at any point of time.

The learned advocates for the petitioner have argued also that these notices

were issued by the Military Land Administrator as per dictate of the higher

authority as it appears from these very notices and for this reason also these

notices are illegal. But this argument also are not acceptable. The impugned

lease-deed was executed on behalf of the President-who was then Chief

executive of the Government. So, the Chief executive of the government is

now the proper authority to take decision to issue these notices and the

Military Land Administrator has only communicated this decision of the

proper authority as per their direction by the impugned notices. There has

been no illegality in this. However, we do not find any illegality in the

impugned notices and also do not think that the principle of natural justice

has been violated in issuance of these impugned notices.

The learned advocates for the writ-petitioner have argued much to the

effect that a registered lease deed can not be cancelled by an order of the

executive, that only a competent court can cancel a registered lease deed or

declare a registered lease deed void. But we do not accept this argument also

of the learned advocates in the present facts and circumstances of this case. In

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this case the impugned lease deed has not been cancelled or sought to be

cancelled by any order of the executive, rather it has been very clearly

alleged that this impugned lease deed is void ab-initio. It is a well settled

principle of law that void deeds need not be cancelled. A void deed does not

require to be cancelled by the order of the court. In the present case we have

already found that the impugned lease deed is void ab-initio.

The learned advocates for the petitioner have argued also that the

government itself granted the lease in question in favour of the petitioner and

as such the government is now estopped to challenge the validity of this

lease on the ground of illegality, that no one can be allowed to take advantage

of his own wrong. In support of this argument the learned senior counsel Mr.

Rafiqul Haque has cited a decision reported in 17 DLR (SC) (1965) 369. In

that case their lordship held,

“where a person invoking the aid of a court to invalidate a contract on the ground of

illegality is himself implicated in illegality the court will not, as a rule, assist him.”

We are in respectful agreement with the above cited decision. But we

cannot ignore the fact of coming of different political party-Government in

power at different times. At the time of execution and registration of the

impugned lease deed a different political party-government was in power and

the present government-which is impugning the lease in question-is of other

political parties. The Government formed by one political party can not be

said to be the ‘representative’ (as mentioned in section 115 of the Evidence

Act stating the concept of Estoppel) of the earlier government of another

political party in the matter of rectification of any wrong committed by

earlier government. So if any wrong is committed by one political party-

government the another political party-government can not be estopped to

rectify that wrong.

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The learned advocates have made submissions to the effect also that the

petitioner is in possession of the property in question on the basis of

impugned lease deed for the last 28 years without any objection from the

government, rather in an earlier criminal case filed against the petitioner this

government admitted the petitioner as the owner of the property in question

and as such the government is now estopped by the principle of waiver and

acquiescence from raising any question as to the validity of the impugned

lease.

But we do not accept this argument also of the learned advocates of the

petitioner. The petitioner herself has admitted in her very writ-petition that

this present government has been trying to recover the property in question

from her since after coming in power in its earlier regime and also served

several notices to the petitioner to that effect. The criminal case mentioned by

the petitioner was filed against her on the allegation that she defalcated public

money for repair, furniture etc. of her private residence. In that criminal case

the lease in question was not a point at issue nor the government admitted

this petitioner as the rightful owner of the property in question in that

criminal case. So we do not find substance in the argument of the learned

advocates for the petitioner that the government is now estopped by the

principle of waiver and acquiescence to raise any question as to the validity

of the impugned lease.

It has been argued also that the writ-petitioner has been possessing the

property in question for long 28 years on the basis of impugned lease deed

and thus has acquired a vested right in this property and as such the

respondents now can not evict the petitioner from this property. But we are

unable to accept this argument also of the learned advocates. Petitioner’s

possession for 28 years on the basis of a void deed can not create vested right

against the government.

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Mr. Rafiqul Haque has argued that the petitioner is possessing this non-

agricultural land for more than 12 years and as such she is now entitled to get

the protection of section 7 of Non-Agricultural Tenancy Act, 1949 and so she

can be evicted from this land now. But we do not accept this argument also.

We have already found the lease deed void and as such no tenancy was

created at all. Moreover, the land in question being government land the

provisions of Non-Agricultural Tenancy Act, 1949 are not applicable at all to

this land according to section 85(2) of this very Act.

It has been argued also that the government’s action to evict the

petitioner from the property in question is violative of section 3 and 5 of

Government and Local Authority Land and Building (Recovery of

Possession) Ordinance, 1974 since no notice under the said ordinance was

served upon the petition. But this argument also is not acceptable. Petitioner

is possessing the property in question on the basis of a lease lead executed on

behalf of the President. The respondents have served notice upon the

Petitioner asking her to return this property stating the reason that the said

lease is void ab-initio. In this circumstances there is no necessity at all to

serve further notices as per the said ordinance of 1974.

As the impugned lease deed has been found void ab-intio the

petitioner’s claim of “legitimate expectation” also cannot be entertained.

However from the above discussion it is evident that there has been no

illegality in the impugned notice dated 24.5.2009-the annexure-C (2) asking

the petitioner to hand over possession of the property in question.

In the circumstances this rule is liable to be discharged.

Hence the rule be discharged on contest without cost.

The stay order granted at the time of issuance of rule and extended time

to time stands vacated.

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However, the respondents will allow at least 30 (thirty) days’ time from

this day to the petitioner to vacate the house in question.

SHEIKH HASSAN ARIF, J

I agree.