Man's battle restores people's right

Maqsud Alam's fundamental right to property was infringed. He sought redress from all government departments concerned, but they did not quite extend a helping hand.
So finally he embarked on a lengthy legal battle for his right, but could not move forward without challenging the 5th amendment to the country's constitution.
His challenge to the legality of the 5th amendment paved the way for the Supreme Court Appellate Division's recent landmark ruling which declared that amendment illegal and void.
And his victory in the 34-year long battle not only restored his family's ownership of the property at 11 Waizghat Road in the capital, but also restored the constitution's legal supremacy.
The judgment declared illegal the first martial law regime that ushered in the 5th amendment. It also scathingly denounced the regime's trampling of the constitution and the people's fundamental rights.
"Any person aggrieved by the then martial law regime's actions, violating his or her rights, may now easily seek redress through the court. The nullification of the fifth amendment opened the opportunity for them," eminent jurist Shahdeen Malik told The Daily Star yesterday.
He said the 5th amendment blocked the way for victims of the first martial law regime to seek recourse in courts, as the amendment precluded the courts' jurisdiction to review any action of that regime.
"Colonel Abu Taher's wife and brother could recently challenge Taher's trial and conviction by a special martial law tribunal under that regime, because of the cancellation of the amendment," said Shahdeen.
Col Taher was a decorated freedom fighter condemned to death in 1976 by a martial law tribunal, and was executed by that regime.
THE BATTLE
Registered with the joint stock companies of the erstwhile East Pakistan, Pak Italian Marble Work Ltd became the owner of the property in 1962 through purchase, and constructed Moon Cinema Hall there in 1964. The company was owned by Maqsud's family.
After the liberation of Bangladesh, the company's name was changed to Bangladesh Italian Marble Works Ltd.
In the last week of December 1971 some people, taking advantage of the poor law and order situation in the just liberated country, forcible took over possession of the cinema hall from the staff of the company.
Just a few days later on December 31 the industries ministry took over the management of the cinema hall, declaring the property abandoned.
At the end of 1972 the property was awarded to Bangladesh Freedom Fighters Welfare Trust by the then government.
But before that, on April 28, 1972, Maqsud, the managing director of the marble company, filed an application with the sub-divisional officer (south) of Dhaka for return of his family property.
The officer on December 1 that year ordered an enquiry, the report of which came in two years later in 1974, concluding that Moon Cinema Hall was not an abandoned property.
Then the sub-divisional officer placed the matter to the Dhaka deputy commissioner's office on December 18 that year.
The deputy commissioner's office on January 6, 1975 recommended return of the property to Maqsud's family.
But the industries ministry informed Maqsud in June 1975 that the cinema hall was still an abandoned property, and could not be returned to him.
So he submitted another application to the then ministry of planning and industries in December that year, praying once again for the return of his property, but in vain.
He then filed a petition with the High Court in 1976 challenging the government notification that had declared the cinema hall an abandoned property.
The HC in June 1977 declared the notification illegal, and directed the authorities to hand over the possession of the cinema hall to Maqsud at once.
In compliance with the judgment, the industries ministry in August the same year deleted Moon Cinema Hall from the list of abandoned properties, and ordered Bangladesh Freedom Fighters Welfare Trust to handover the physical possession of the property to Maqsud.
But the trust refused to give up the possession, and filed a civil petition for a special leave to appeal with the Appellate Division of the Supreme Court against the HC order, and obtained a stay.
Meanwhile, since August 15, 1975 the country had been under the first martial law regime which promulgated Abandoned Properties (Supplementary Provisions) Regulation on October 10, 1977, nullifying all abandoned property related court judgments and pending cases against the government.
Taking advantage of the martial law regulation, the trust refused Maqsud's repeated pleas for getting back his property.
Fifteen years after the martial law had been lifted in 1979, Maqsud again filed a petition with the HC in 1994 seeking restoration of his family's ownership of the cinema hall.
But the HC rejected the petition summarily, saying, since he had not challenged the legality of the 5th amendment which had ratified all martial law regulations, he was not allowed to claim the ownership of the cinema hall.
Three years later in 1997, he filed a civil appeal, but that was also dismissed by the HC after two more years in 1999.
The judgment, this time however, said the petitioner must challenge the legality of the 5th amendment to get redress.
Finally in 2000, he filed a petition against the 5th amendment with the HC, and the court delivered the landmark nullification of the amendment on August 29, 2005, which was upheld by the Appellate Division on February 2 this year with some modifications.
CURRENT SITUATION
As Maqsud and his family are now set to take possession of the long lost property, the 72 decimal land is still there, but the talkie house is no more. Rather a five-storey shopping mall owned by the freedom fighters welfare trust is now occupying the land.
The trust is now preparing to hand over the property. It formed two committees to complete the process, its officials said.
"The law ministry and the Office of the Attorney General recently said the property must be handed over according to the court's order. We are taking necessary preparation to do so," Maj Gen (retd) AK Mohammad Ali Shikder, managing director of the trust, told The Daily Star early this month.
He said they sent letters to the counsels of Maqsud regarding the expected handover.
But Maqsud's counsels, in a legal notice to the trust, demanded that it must return the property as vacant, as many shop owners are currently occupying the building.
"But how is it possible to do so, as the shopping mall was built under an agreement with a developer in 2001, allowing them to sell some of the shops in the building. We requested him [Maqsud] through his counsels to reach a mutual understanding to resolve the difficulties," said the trust's managing director.
Asked to comment on the verdict and the lengthy legal battle, ABM Siddiqur Rahman Khan, one of the counsels of Maqsud, said it is a victory for the people's fundamental rights. It also proves that one should continue fighting to achieve something, without being frustrated, he added.