Case Study on Abandoned property

One Mr. Muntakim filed a suit to the court of the settlement for settlement/declaration that he purchased plot 2-C, 11/F Nurjahan Road, Mohammadpur, Dhaka from one Zabbar Elahi subsequently the said plot was enlisted as an abandoned property in the ‘KHA’ list published in gazette notification. In fact behind this case one Elahi Khan was a refuge and he was allotted the said plot in the year 1965, after liberation in the year 1974 Elahi died left behind his only son Mr. Zabbar Elahi as his heir, who sold the same plot to the petitioner Mr. Muntakim.

Advice Mr. Muntakim

Analysis of the Abandoned Property Order 1972:

The Law of Abandoned Property is an off-shoot of Bangladesh War of independence, so it is the creature of War. It is to be borne in mind that after the surrender of Pakistan occupation army on 16.12.1971 many of the owners of the properties, have abandoned their properties and left uncared for by the owners on account of conditions arising from the liberation war of Bangladesh (30 DLR 23 SC, 27 DLR 868). So from the above it is clear that ‘on and from 26^th February, 1972 when Abandoned property (Control, Management and Disposal) order, 1972 (P.O 16/72)’ was promulgated, any property which own by any person, who is not present in Bangladesh or whose whereabouts are not known or who has ceased to occupy, supervise or manage in person, his property will be abandoned property. Such property will also include 1. any property owned by person who  is a citizen of a state which was at war with Bangladesh and (ii)  any property taken over under the Acting President’s order I of 1972 (30 D.L.R 169 S.C vide also Ante p-58). On a careful perusal of the definition of the word ‘Abandoned property’ as provided by Article 2(1) of the P.O 16/72 lends to the conclusion that the abandoned property is nothing but the property of the enemy of Bangladesh.

Note 1: In the above-stated fact there was no indication that late Mr. Elahi was an enemy. Moreover, his uninterrupted possession till death in 1974 proved that he need not require leaving his abode after liberation. Moreover, as he received allotment of the plot as refugee in 1965 (in East Pakistan), his originally came from India, because West Pakistani cannot be treated as refugee in East Pakistan. So, his citizenship of an enemy state also doesn’t stand.

It clearly says in the President order 7(1) that any person who is not in possession, the Deputy Commissioner or the Sub-divisional Magistrate, or the authorised officer shall take possession of the property in such manner as may be prescribed, order 7(2) also says that where any abandoned property is in possession of any person such person shall within seven days of the commencement of this order, surrender such property to the Deputy Commissioner or the Sub-divisional Magistrate or the authorised officer 

Note 2: In this case as Late Mr. Elahi never surrendered the property neither government took possession or cancelled that lease deed 10(1). But Mr. Elahi died within that land and it proves he never fled away.

From the above mentioned fact it is clear that Mr. Muntakim has right to purchase the aforesaid mentioning land though the land was enlisted as an Abandoned property because when a person is in possession of the property under a valid agreement for sale with the owner from before the law regarding abandoned property came into force he cannot be evicted there from treating the same as abandoned property (Government of Bangladesh Vs A. Subhan 32 DLR- AD- 255)     

Here, Mr. Muntakim purchased that land to Mr. Zabbar Elahi who is a son of late Elahi Khan. Mr. Elahi khan got the land from the Government in the year of 1965 and he was living there till the last date of his death. So, here no cases of Anandoned Property according to the Abandoned property (Control, Management and Disposal) order, 1972 (P.O 16/72)

Advice to Mr. Muntakim

As Mr. Muntakim purchased an abandon property which is not permissible by law, it purchase deed stands void from the very beginning. In this situation Mr. Muntakim has the only option to establish the fact before the court that the said property was wrongly been enlisted in the ‘Kha’ list. Mr. Muntakim has a very strong point in this regard that Late Mr. Elahi never left the administration or possession of his property during or after the end of liberation war, which stands as an active evidence of not declaring him as collaborator of Pakistani and also proves that he was not under any threat for supporting the Pakistani.

Before deciding, whether a Property is to be treated as abandoned it is just and proper to issue notice to the owner of property(28 DLR 27H). According to the apex court decisions any person claiming title to Abandoned property may file petition. Abandoned property under article 2 of P.O order mentioned above vests in the Government only the prescribed authority can release the property under the Article 15. Government is bound to restore possession of the property taken as Abandoned property which is not really so, if the owner some-how failed to follow the procedure to get back the property (30 DLR 169 SC 33 DLR 116H).

It is also very important to Mr. Zabbar Elahi a party in Mr. Muntakim’s suit because failure to establishment the lawful right of Mr. Elahi will turn all kind of transfer void.