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IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. 7411 OF 2011
Engineer Sajib Ranajan Das
... ... PETITIONER.
- V E R S U S -
Bangladesh and Others
... ... RESPONDENTS.
Affidavit-in-Opposition on behalf of the Respondent No. 9,
Md. Moshiur Reza
I, Md. Moshiur Reza son of Hazi Md. Chan Miah, aged about
35 years, of 22 Surovi Notun Hassan Nagor, Sunamgonj, by
faith Muslim, by Occupation Business, by Nationality
Bangladeshi, do hereby solemnly affirm and state as follows :-
1. That I am the respondent No. 9 of the aforesaid writ
petition and in that capacity I am thoroughly conversant with
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the facts and circumstances of the case and as such I am
competent to swear this affidavit.
2. That a copy of the writ application whereupon the said
Rule Nisi have been issued having been served upon this
respondent No.9 the deponent going through the same have
understood the meaning of the contents thereof fully and this
deponent has been advised to controvert only those statements
which are relevant and necessary for the purpose of disposal of
this Rule and those statements which are not specifically
admitted hereinafter shall be deemed to have been denied by
the respondent and the petitioner shall have to prove the same.
3. That the statements made in paragraph 1 and 2 of the writ
petition are matters of record.
4. That the statements made in paragraph No. 3 of the writ
petition are partially true since all the respondents are not
holding respective official position concerning issues related to
the Ministry of Energy and Mineral Resources. Thus, the
respondent no.9 stated that his identification was deliberately
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misstated by the petitioner and hence denied. It is stated that
respondent 9 is a private party and is the director of Balaka
C.N.G. Conversion and Filling Station, Oaskhali, Sunamgonj.
5. That the statements made in paragraph 4, 5, 6 and 7 of
the writ petition are matters of record and as such it is strictly
conferred upon the petitioner to prove the facts.
6. That the statements made in paragraph 8 is incomplete and as
such the respondent no. 9 stated that the petitioner kept the
paragraph 8 incomplete with undue motive and to abuse the
process of the court.
7. That the statements made in paragraph 9,10, 11,12 and 13 of
the writ petition are matters of record and as such it is strictly
conferred upon the petitioner to prove the facts.
8.
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That with regard to the statements made in paragraph 4 of the
writ petition, it is stated that the original owner of the case
property Abdul Khaleque Bain was non-Bengali and a citizen
of Pakistan which was at war against the Republic of
Bangladesh and he left former East Pakistan during the war of
Liberation abandoning the property and his whereabouts were
not known since 25th March 1971 and since then he was not in
possession of the case property. The said Abdul Khaleque Bain
was never vendor of the petitioner before 25th March, 1971, or
could have been vendor after 25th March, 1971 the said
property having been abandoned pursuant to President Order
No. 16 of 1972.
6. That the statements made in paragraph 5 of the writ
petition are not true and hence denied. The so called agreement
for sale dated 25-05-1971 of the case property between the
petitioner and the original owner Abdul Khaleque Bain is
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forged and creation of the petitioner to grab the government
abandoned property fraudulently. At that time the counter was
engaged in war with Pakistan. It is a blatant lie after lie that
Abdul Khaleque Bain handed over possession to the petitioner.
Possession of the said property was never handed over to the
petitioner.
7. That the statements made in paragraph 6 of the writ
petition are not true and hence denied. The petitioner or his
alleged vendor Abdul Khaleque Bain was not in possession of
the case property since 25th March, 1971. It was under control
and possession of the Ministry of Works, Government of
Bangladesh.
8. As regards the statements made in paragraph 7 of the writ
petition it is stated that the case property was in possession and
control of the Ministry of Public Works and Urban
Development of the Government of Bangladesh as abandoned
property through its allottee M/s. Sunshine Cable and Rubber
Works, M/s. Ideal Motor Works and M/s. Suruchi Snacks. They
deposited house rent as abandoned property by Chalan to the
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Government account. The full sister of the petitioner M/s.
Jahanara Begum was also one of the allottee of the Government
in the case holding. The petitioner was neither an allottee of the
government nor in possession of the case property. The
petitioner might have used address of his sister office. The
ANNEXURES “C” series does not alter the character of the
property as abandoned property.
9. That with regard to the statements made in paragraph 8
of the writ petition it is stated that the government invited
sealed tender for sale of 13 abandoned property of
Bangabandhu Avenue, Dilkusha and Motijheel Commercial
Area including the case property 68, Motijheel Commercial
area. It was advertised in the Daily News Paper like Ittefaque
etc. on 02-01-1985 inviting tender from intending purchaser
with closing date on 31-01-1985. It was advised to purchase the
tender documents and schedule on payment of Tk. 50/- for each
set of documents from some selected Sonali Bank, Dhaka on
any working day on or before 30-01-1985. It was also advised
to deposit 5% of the offered bid money as earnest money in any
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schedule Bank in favour of Executive Engineer, P.W.D.
Maintenance Division, Dhaka in the form of Pay Order or
demand draft and to enclose the same with tender document.
Accordingly respondent No. 2, purchased a tender document
with schedule from Sonali Bank, Dilkusha, Dhaka on
22-01-1985. He deposited Tk. 5,00,000/- at Pubali Bank,
Nazimuddin road Branch, Dhaka by Pay Order No. 1765510
dated 30-01-1985 as 5% offered value as of earnest money and
participated in the tender by offering Tk. 84,00,000/- Lacs only.
In all 5 candidates including Jahanara Begum full sister of the
petitioner participated in the tender. The tender was opened on
31-01-1985 while in the comparative statement the said
Jahanara Begum became lowest by offering Tk. 15,00,000/-
lacs only and the respondent No.2, offering Tk. 84,00,000/- lacs
became highest and his bid was accepted by the Government on
the recommendation of Tender Committee. But on getting the
result of tender bid, the petitioner filed the Title Suit No. 206 of
1985 on 18-02-1985 in the 3rd Court of Subordinate Judge,
Dhaka for specific performance of contract on forged document
against the original owner of the case property Abdul Khaleque
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Bain (2) The auction purchaser the respondent No. 2 (Syed Md.
Altaf Hussain) (3) another participants in the tender Serajul
Islam (4) Secretary Ministry of Public Works and Urban
Development of the Government of Bangladesh and (5)
Bangladesh, represented by the Deputy commissioner, Dhaka
as defendants vide ANNEXURE ‘D’ page 47 of the Writ
Petition. The petitioner of Title Suit No. 206 of 1985 never
appeared in the surface with the so called agreement for sale
nor he claimed any right under the said contract to the
government at any time before opening the tender for auction
sale although his full sister Jahanara Begum participated in the
tender. Thus, it is evident, that the title suit No. 206 of 1985
was filed by the petitioner by creating forged document of
alleged Bainanama to prevent the Government from selling the
abandoned property and to grab the same fraudulently. It out
and out false statement that respondents attempted to take over
possession of the property as abandoned property. The original
tenants were occupying as allottees under respondent No. 1.
The Title Suit No. 698 of 1985 filed in the 3rd Court of Dhaka
was collusive and filed through impersonation. Abdul Khaleque
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Bain being a Pakistani citizen and 2nd the property being a
covered by Presidents Order No. 16 of 1972, the suit was filed
through fraudulent collusive means and through impersonation.
Photo copy of daily news paper The Ittefaque dated
02-01-1985 is annexed hereto as ANNEXURE - ‘I’.
Photocopy of tender documents purchased by the
respondent No. 2 is annexed hereto ANNEXURE - ‘II’.
10. That the statements made in paragraph 9 of the writ
petition are creation of fertile brain of the petitioner and the
alleged agreement and deeds are forged, collusive and
fraudulent and hence denied. The alleged sale deed dated
10-08-1985, 14-08-1985 and 17-08-1985 are collusive
fraudulent and void document the so called “Vendor” had no
subsisting interest in the abandoned property covered by
President’s Order No. 16 of 1972. In this respect, it is stated
that the Government by a notification through press published
in the daily Ittefaque dated 02-01-1985 invited tender from
intending candidates for sale of 13 abandoned houses of
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Bangabandhu Avenue, Dilkusha and Motijheel Commercial
Area including the suit holding property to the highest bidder
and the respondent No.2, offered the highest price of
Tk. 84,00,000/- Lacs. The tender of the respondent No. 2, was
accepted by the tender committee consisting of high officials of
different Ministry of the Government of Bangladesh. Thereafter
a letter of acceptance of tender was issued by the Ministry of
Works, Section V, Government of the peoples Republic of
Bangladesh under memo No. Sec-V/IME-107/84/336 dated
28-05-19985 to the respondent No., 2, to make down payment
of 15% of the offered price in favour of the Executive Engineer,
PWD Maintenance Division. The down payment of 15% and
the earnest money of 5% together with from 1st instalment
amounting to Tk. 16,80,000/-. Accordingly respondent No. 2,
deposited Tk.10,80,000.00 at the Pubali Bank, Nazimuddin
Road Branch, Dhaka under Pay Order No. 1826732 dated
11-06-1985 making a total Tk. 16,80,000.00 including
Tk. 5,00,000/- paid earlier as earnest money under P. O. No.
1765510 dated 30-01-1985 of Pubali Bank, Nazimuddin Road
Branch, Dhaka which formed 1st instalment. But the possession
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of the case building could not be delivered to him at that time
due to the obstruction created by filing Title Suit No. 206 of
1985 by the petitioner for specific performance of Contract and
thereafter a collusive Title Suit No. 698 of 1985 filed by
through impersonation for simple declaration. But before any
hearing, declaration, judgement or any order from the learned
Court, during pendency of those two cases, the petitioner
fraudulently obtained the alleged three deeds of sale of the case
property from the said non-Bengali Abdul Khaleque Bain
illegally and collusively and then he applied for impleading
himself as co-plaintiff No. 2 in the said Title Suit No. 698 of
1985 which was allowed by the learned Court. After getting
entry as co-plaintiff No. 2, in Title Suit No. 698 of 1985, he
prayed for withdrawal of Title Suit No. 206 of 1985 for specific
performance of contract and accordingly it was dismissed on
10-12-1985 for non prosecution. It may be mentioned here that
the original owner of the case property Abdul Khaleque Bain
also never appeared in the surface or claimed any right over the
case property to the government before filing the Title Suit No.
698 of 1985 on 01-08-1985 for simple declaration though the
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Ministry of Works started process of selling the case property
in Public auction long before by wide circulation through news
papers. It may also be mentioned here that there was not
mention any where in the said Title Suit No. 698 of 1985 about
so called alleged agreement of sale of the case property to the
petitioner. However, the Ministry of Works, Government of
Republic of Bangladesh contested both the cases and ultimately
Title Suit No. 698 of 1985 re-numbered as Title Suit No. 18 of
1992 in the Court of Additional Subordinate Judge, Dhaka was
dismissed on 08-08-1992 on hearing both the parties on ground
of non-maintainability. The said judgement and order have been
affirmed by the High Court Division and the Appellate Division
of the Supreme Court of Bangladesh. After dismissal of the
Title Suit no. 698 of 1985 re-numbered 18 of 1992 a sale
agreement was signed between the Commissioner, Management
Board of Abandoned Property, Government of the People’s
Republic of Bangladesh and the auction purchaser respondent
No. 2, on 09-08-1992 and the possession of the case property
was delivered to him by the Magistrate of the concerned
Ministry and the respondent No. 2, is still in possession of the
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case property. It may also be mentioned here that the petitioner
and his wife Dr. Hasmat Ara Begum filed Title Suit No. 154 of
1992 on 11-07-1992 in the Curt of 4th Assistant Judge, Dhaka
re-numbered as 7/94 in the Court of First Additional Assistant
Judge, Dhaka for cancellation of the said auction sale and on
hearing of both the parties it was dismissed. A Title Appeal
being No. 187/94 was also filed by the petitioner and his wife in
the Court of 2nd Sub-Judge, Dhaka which was also dismissed
on hearing the parties on 10-11-1997. All those acts of the
petitioner were to grab the Government abandoned property
fraudulently and illegally.
A photocopy of memo No. Sec. V/ IME-107/84/336
dated 28-05-1985 regarding acceptance of tender is annexed
hereto and marked as ANNEXURE - ‘III’.
A photocopy of the certified copy of Judgement in Title
Suit No. 698 of 1985 re-numbered as 18 of 1992 are annexed
hereto and marked as ANNEXURE - ‘IV’.
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A photocopy of the sale agreement between the
management board of abandoned property and the auction
purchaser respondent No. 2, is annexed hereto and marked as
ANNEXURE - ‘V’.
A photocopy of the delivering possession the case
property on 09-08-1992 to the respondent No. 2 by the
management of the abandoned property is annexed hereto and
marked as ANNEXURE - ‘VI’.
A photocopy of the certified copy of Judgement of Title
Suit No. 154 of 1992 re-numbered as Title Suit No. 7 of 1992
and a photocopy of the certified copy of judgement on Title
Appeal No. 187 of 1994 regarding cancellation of auction sale
are annexed hereto and marked as ANNEXURE - ‘VII’ and
‘VIII’.
11. That the statements made in paragraph 10 of the writ
petition are blatant lies and concoctions and hence denied. the
petitioner was never in possession of any part or whole of the
property. The original owner was not in possession in part or
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whole of the property since 25th March, 1971. It is stated that
the case property was an abandoned property under President’s
Order No. 16 of 1972 and its possession was taken by the
government and subsequently it was Lawfully included in the
“KA” list of the abandoned building under section 5(1)(a) of
Ordinance No. LIV of 1985 Published in the Bangladesh
Gazette, extra ordinary dated 23rd September, 1985. The case
property was actually in possession and control of the ministry
of Public Works and Urban Development of the Government of
Bangladesh through its allottees. The Petitioner was neither an
allottee of the Government nor a tenant of the original owner
non Bengali Abdul Khaleque Bain. The respondent No.2, is a
bonafide purchaser of the case property for value from the
Government and as such he is entitled to hold and enjoy the
property. He was never in the scene of the case property before
participation in the tender of the auction sale of the case
property and hence the question of collusion of respondent
No.2, with respondent No. 1, Ministry of Works Government of
Bangladesh is baseless.
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12. That the statements made in paragraph 11 of the writ
petition are blatant lies and hence denied. The full sister (Jahan
Ara Begum) of the petitioner was a tenant under original owner
and later an allottee of the Government. The petitioner might
have used the office address of his sister an allottee to create
document for grubbing the property. It is stated that the
petitioner was neither an allottee of the government nor the
tenant of the original owner of 68, Motijheel Commercial Area.
He was a trespasser in the occupying his sisters office. He had
to be evicted by the Government as unauthorised occupant.
13. That with regard to the statements made in paragraph
Nos. 12 to 25 of the writ petition it is stated that the statement
made in those paragraphs are matters of Title Suit No. 206 of
1985 and Title Suit No. 698 of 1985 and subsequent
proceedings arising therefrom. The Title Suit No. 206 of 1985
was dismissed for non-prosecution. The Title Suit No. 698 of
1985 was dismissed as not-maintainable. The petitioner un-
successfully went upto Appellate Division of the Supreme
Court of Bangladesh. The question of fact pleaded in Suit No.
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698 of 1985 therefore has been concluded by concurrent
findings that the property is an abandoned property covered by
President’s Order No. 16 of 1972. Those statement are
repetitions of facts of paragraph Nos. 3 to 18 of the Civil
Petition for special leave to Appeal No. 38 of 1997 filed by the
Petitioner which was dismissed by the full bench of the
Appellate Division of the Hon’ble Supreme Court of
Bangladesh by a Judgement dated 21st July, 1997 holding that
enlistment of the building was conclusive evidence of its being
an abandoned property.
The fact in brief is that one Abdul Khaleque Bain (a
Pakistani National) filed Title Suit No. 698 of 1985 on
01-08-1985 in respect of the suit property of 68, Motijheel
commercial Area for simple declaration. But during pendency
of the said suit before hearing or any declaration or Judgement
or order from the learned Court the petitioner obtained 3(three)
registered sale deed fraudulently on 10-08-1985, 14-08-1985
and 17-08-1985 for the said holding 68, Motijheel commercial
Area from the said Pakistani National Abdul Khaleque Bain
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illegally to grab the Government abandoned property and after
obtaining the said illegal deed from Abdul Khaleque Bain the
petitioner applied for impleading him as co-plaintiff in the
above suit which was allowed on 04-11-1985. After being
added as co-plaintiff No. 2 in Title Suit No. 698 of 1985 the
petitioner as co-plaintiff No. 2 sought for further declaration
amending the original plaint in 1988 which are as follows:-
“A decree declaring that the treating of the suit property
as abandoned and enlisting the same as such in the
Bangladesh Gazette published on 23-09-1986 is without
jurisdiction malafide and of no legal effect.”
The above amendment was allowed by the learned
Subordinate Judge, Dhaka on 23-11-1988 and added in the
original plaint. The Title Suit No. 698 of 1985 was
subsequently transferred to the Court of Subordinate Judge,
Additional Court, Dhaka 25-01-1992 where it was re-numbered
as Title Suit No. 18 of 1992. The amendment in the original
Suit No. 698 of 1985 was made after coming into force of the
ordinance No. LIV of 1985 challenging the inclusion of the
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case property in the “KA” list of abandoned property. As such
the learned subordinate Judge Additional Court, Dhaka after
hearing both the parties dismissed the suit under Order 7 Rule
11 on 08-08-1992. The petitioner filed first appeal No. 230 of
1992 in the Hon’ble High Court against the Judgement dated
08-08-1992 passed by the learned Subordinate Judge Additional
Court Dhaka in Title Suit No. 18 of 1992. The Hon’ble High
Court Division Bench on hearing both the parties made the
following observation on 26-08-1996 in the said first appeal
No. 230 of 1992 filed by the petitioner.
“Added new relief which was apparently not continuation
of the original relief and necessitated due to the
subsequent inclusion of the suit property in the list
published under the provisions of the ordinance cannot
come within the logic that the amendment will have to be
taken as if it was in the plaint on the date of filing of the
suit. True even inconsistence or alternative relief may be
added by amending the plaint but that can only be
allowed if the added relief is based upon the original
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averments in the plaint. The moment the plaintiff
challenged the inclusion of the suit property in the list
prepared under the provision of the ordinance by adding
new averments as Paragraph 4(A) to 4(I) after the
original paragraph 4 of the plaint his suit became
expressly barred under section 6 of the ordinance and
also became impliedly barred as the ordinance provides
remedy for wrong inclusion of the property in the list in
question. We therefore find nothing to interfere with the
impugned judgement. This appeal is dismissed without
cost.”
14. That the statements made in paragraph Nos. 26, 27 and
28 of the writ petition are matters of record relating to the
Judgement of the Hon’ble High Court division and the Supreme
Court of Bangladesh. The petitioner filed leave petition being
Civil Petition No. 38 of 1997 before the Appellate Division of
the Supreme Court of Bangladesh challenging the Judgement of
the Hon’ble High Court Division. The Appellate Division of the
Hon’ble Supreme Court of Bangladesh after hearing both the
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parties dismissed the petition by a judgement dated 21-07-1997
quoting the facts and circumstances of the case and relevant
sections of Law. The Hon’ble supreme Court of Bangladesh
Dhaka in the Judgement dated 21-07-1997 held that :
“The submission that when the amendment was no
objection to it, it would relate back to the date of
institution of the suit i.e. on 01-08-1985 and the suit
cannot therefore he held to be barred overlooked the legal
reality that such a relief could not be even prayed for
after coming into force of the ordinance. The prayer was
as if still born not to speak of having life from
01-08-1985. The original suit itself became not
maintainable because the ordinance provided that
enlistment of the building was conclusive evidence of is
being an abandoned property. The suit was thus rightly
dismissed.”
The Judgement of the Hon’ble Supreme Court of
Bangladesh, Appellate Division are annexed hereto and marked
as ANNEXURE - ‘IX’.
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15. That the statements made in paragraph No. 29 of the writ
petition are not correct and hence denied. The original owner
Abdul Khaleque Bain was not in possession of the case
property after liberation war of Bangladesh. He being Pakistani
Citizen left for his native district in erstwhile West Pakistan
during liberation war of Bangladesh following which the suit
property was rightly and Lawfully enlisted in the “KA” list as
abandoned property. The sale deeds were illegal and collusive
which are null and void as per section 6 of the President’s
Order No. 16 of 1972 and are not valid, binding or effective.
16. That the statements made in paragraph No. 30 of the writ
petition it is stated that the government treated the property as
abandoned property. According to the President’s Order No. 16
of 1972 and the respondent No. 2 is the auction purchaser of the
suit property being highest bidder and the possession of the
case property was handed over to him on 09-08-1992 by he
Magistrate of the concerned, Ministry and he is in possession of
the case property since then.
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17. That the statements made in paragraph No. 31 of the writ
petition it is submitted that the full bench of the Appellate
division of the Hon’ble Supreme Court of Bangladesh by a
Judgement dated 21-07-1997 in the leave petition No. 38 of
1997 already decided the matter that the enlistment of building
in the “KA” list was conclusive evidence of is being an
Abandoned Property. The Petitioner’s claim under Article 42 of
the constitution does not arise within the purview of Article
42(1) & (3) of the constitution as the property belongs to
Government. The petitioner having failed to establish his title in
the property before any appropriate body, he cannot claim any
“fundamental right” in respect of non existent right. The
question whether the property is abandoned or not has been
concluded by the finding of the Appellate Division in Civil
Petition No. 38 of 1997.
18. That the statements made in paragraph No. 32 of the writ
petition are not correct and the plea of the petitioner for not
filing application before the court of settlement in time is not
tenable because ordinance No. LIV of 1985 section 7, provides
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that any person claiming any right or interest in any building
which is included in any list may, within a period of one
hundred and eighty days from the date of publication of the list
in the official Gazette make an application to the Court of
Settlement for exclusion of the building from such list.
19. As regards the grounds made in paragraph No. 33 of the
writ petition it is asserted that S.R.O. 364-L/86 was Lawfully
and rightly published as per section 5 of the ordinance No. LIV
of 1985 as per Government decision. The alleged presence of
Abdul Khaleque Bain in Bangladesh on and from 25-03-1971 is
a question of fact and cannot be decided in a petition from
under Article 102 of the Constitution. There is nothing on
record about his whereabouts in Bangladesh or and from
25-03-1971 till alleged execution of fraudulent sale deed in
August, 1985 and again thereafter till date. The property being
abandoned the alleged sale deeds are void. The petitioner
therefore has no fundamental right in respect of abandoned
property. The grounds set forth are not tenable at all in law.
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20. That the statements made herein above are true to my
knowledge and information obtained from the office records
and in truth were of I sign this affidavit.
Prepared in my office
Advocate Deponent
The deponent is known to
me and identified by me.
Advocate
Solemnly affirmed before
me by the said deponent on
this the day of
, 1999.
COMMISSIONER OF AFFIDAVITS
SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION, DHAKA
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IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. 6917 OF 1997
Al-Haj Seraj-ud-dowla
... ... PETITIONER.
- V E R S U S -
Bangladesh, represented by the
Secretary, Ministry of Public Works,
Government of the People’s Republic
of Bangladesh, Bangladesh
Secretariate, Dhaka and another.
... ... RESPONDENTS.
Through :
A. F. Hassan Ariff, Advocate
Borhanuddin, Advocate
Ziauddin Ahmed Mamun, AdvocateMd. Ashik-al-Jalil, Advocate