AYUB HOSSAIN KHAN VS BANGLADESH AND HUMAN RIGHTS AND PEACE FOR BAMGLADESH 66 DLR AD 2014

 

Analysis of the fact:    

•      Submission of the petitioner:

The suit property was demised in favor of the petitioner on year to year lease. It was stipulated in the lease deed that lease was to be renewed at the beginning of the year following the expiry of the lease. Having procured registration from the education authority, the petitioner commenced imparting primary education to the children of Pabna. The Ministry of the Land intimated the petitioner that as there existed no provision for permanent settlement of vested properties the leasehold tenure would be renewed every year until the Government would take a decision on the settlement of the vested properties. But without taking any decision the Respondents had served the impugned notice asking the petitioner to surrender possession of the subject property and had acted without lawful authority.

•      Submission of the Respondent:

The suit property originally belonged to Korunamoiya Das Gupta who sailed to India for good before 1960. The Government requisitioned the property in 1960 and subsequently designated as a vested property. The property was demised on the temporary yearly lease to the petitioner conditionally for the year 1383 of Bengali Calendar. The legendary Diva of Bengali Film industry who occupies a cozy, irreversible place in the minds of the Bengali speaking people was indeed the only daughter of Kouramoniya Das Gupta. The Government in consonance with the popular demand and with a view to attract tourist want to establish

SHUCHITRA SEN MEMORIAL COMPLEX at her natal home.

Argument from the petitioner:

It was argued that High Court Division had misdirected them by failing to recognize

v  The principle of Natural Justice v The Doctrine of Estoppel.

v  The petitioner’s legitimate expectation

Argument from the Respondent:

It was argued that High Court Division had come up with an exquisite judgment which could not be dislodged. None of the principles submitted by the petitioner could be engaged in the backdrop of factual as well as legal elements. Nothing could impair the Government’s decision against renewing the lease particularly when they had resolved to proceed with a noble scheme of preserving the legacy of the Prima Donna of the Bengali Film Dom, Shuchitra Sen.

Issue:

Whether the direction of the Government upon the petitioner to surrender the possession of the disputed property has done with lawful authority or not?

Decision:

High Court Division’s direction upon the Government to implement the decision to establish Shuchitra Sen Smrity Sanghrohasals should be carried out without delay to protect and preserve her birth place for her in durable contribution to our cultural area by whatsoever, evicting the petitioner and his institute.

 Reasoning behind the decision:

The said decision was given on the following grounds:

Ø  Government is saddled with a Constitutional duty to adopt measures required for protecting the birth place of Shuchitra Sen, the most illustrious star in the galaxy of Bengali Film under Article 23 and 24 of our Constitution. Though they are not judicially enforceable State has an inalienable obligation to do so which can not be compromised by any promise or practice.

Ø  Fettering the authority’s discretion to adopt a different policy is not reasonable in the Wednesbury sense or irrational in the GCHQ sense in which it was held that considerations of national security were sufficient to justify the departure.

Ø  The petitioner can not claim equity because he has not come with clean hands and it would be inequitable to allow the petitioner to retain two sets of Government lands simultaneously because after obtaining a big chunk of land for a throw away price it was not ethical on his part to hold on to another Governmental property.

Ø  Estoppel can not have any threshold to prevent a state functionary from performing a Constitutional duty thrust upon it.

Ø  The legitimate expectation of the petitioner died a natural death when the authority resolved top convert the subject property into an Archive that means when a permanent decision had been taken on the vested property.

Principle:

The main principle came out from the decision of this case is that legitimate expectation is an extended form of fairness, designated to prevent abuse of power but that is liable to fall through if an overriding public interest surfaces with greater concentration.

Importance of this case:

In this case some important terms of Jurisprudence such as the meaning of promissory estoppels, legitimate expectation of the petitioner, vested property and the arena of natural justice are clearly explained. It was said that it was per miscible for the state or any public authority to resile from a legitimate expectation to fulfill a greater public interest. In this case one of the equitable principle “Equity aids those who come with clean hands” was applied. Another important issue of Constitutional Law was discussed in this case. Government was directed to protect the Birth Place of Shuchitra Sen as a Constitutional obligation provided under Article 23 and 24 of our Constitution. Though the Fundamental Principles of State Policy are not judicially enforceable Court in this case has tried to enforce that.