Alhaj Sona Ullah Vs. Aminur Rahman, Secretary, Ministry of Works, Bangladesh Secretariat, Dhaka and others

Appellate Division Cases

(Criminal)

PARTIES

Alhaj Sona Ullah………………………………………..Petitioner

Vs.

Aminur Rahman, Secretary, Ministry of Works, Bangladesh Secretariat, Dhaka and others………………………………………………….. Respondents.

JUSTICES

Md. Ruhul Amin. J

Md. Tafazzul Islam, J

Amirul Kabir Chowdhury, J

Date Judgment

5th January 2005

The Town Improvement Act, 1953. Section 93A, 93(A)(a), Sub-section (5), (4), 4(a), 4(h)

Any provision to show that final assessment is to be made on the basis of the current, market value after Gazette publication of notice under section 93A 4(h), the proceeding

under the contempt Act is a quasi criminal proceeding. When it appears to us that there is confusion about the legal position as to what is meant by ‘Final assessment’ it is not possible to arrive at a conclusion that the contemners committed contempt of court by violating this courts order as mentioned above (6)

ADVOCATES

Mahbubey Alam, Senior Advocate, instructed By Md. Nawab Ali, Advocate-on Record.

For the Petitioner. Respondents Not represented. Criminal Petition for leave to Appeal No. 147 of 2003 (From the judgment and order dated 21st June, 2003 passed by the High Court Division in Contempt Petition No. 82 of 2002).

Judgment

1. Md. Tafazzul Islam, J: This Petition for leave to appeal arises out of judgment and order dated 21.6.2003 passed by a Division Bench of the High Court Division in Contempt Petition No. 82 of 2002, arising out of Writ Petition No. 2382 of 1999.

2. The Petitioner preferred the above contempt petition stating inter alia that he filed Writ Petition No. 2382 of 1999 seeking direction to finalise the process of acquisition of the land of the-petitioner involved in Special L.A. Case No. 8 of 1964-65 of District Dhaka stating inter alia that total area of 1.8712 acres of land of Mouza Faridabad and Mouza Bownia of Uttara Police Station, Dhaka belonging to the petitioner was requisitioned along with other lands in the above Special L.A. Case No. 8 of 1964-65 purportedly under section 93A of the Town Improvement Act, 1953 for utilization in the scheme of Uttara Model Town; subsequently another notice purportedly under section 93(A)(a) of tho above Act was issued for acquisition of ilie said land for the aforesaid purpose but the

above notice was not served upon the petitioner and a very small amount of money, on the basis of preliminary assessment, was paid to the petitioner which her received on protest; thereafter the petitioner made repeated representations to the respondents for payment of compensation after finalizing the process of acquisition by way of publishing it in the official Gazette but the respondents did not care to finalise the same; the High Court Division, after hearing; by judgment and order dated 14.01.2002 made the Rule absolute with the observations “from the submission of the learned Assistant Attorney General, it is clear that so for no Gazette Notification has been published by the Government and as such the government should take immediate appropriate steps in this regard. After publication of such notification the official Gazette the petitioner will be entitled to get payment of compensation money and the Deputy Commissioner, Dhaka, respondent No. 3, must make final assessment of compensation of the land in question of the petitioner within 2(two) months after such gazette notification” but inspite of the above the respondents failed to comply with the above direction of the High Court Division within the specified time for final assessment and make payment of compensation to the petitioner; the petitioner also submitted representations on 4.2.2002,

25.2.2002 and 2.4.2002 to the respondent No. 3 to finalise the process of acquisition of the land of the petitioner by publishing notification in the official gazette and making payment of compensation and there being no result the petitioner served a Justice Demand Notice on 8.4.2002 upon the respondent Nos. 2,4 and 5 and on receipt of the above notice the respondent No.4 requested the respondent No. 5 merely to remit the balance amount of final assessment of the value of the land towards implementation of the judgment of the High Court Division but even then no progress was intimated to the petitioner in this regard and so the petitioner had to file the above contempt petition . The High Court Division issued rule upon the respondents on 30.3.2003 and after hearing the High Court Division discharged the Rule.

3. The learned counsel appearing for the petitioner submits that the High Court Division erred in not considering that the condemners failed to comply with the specific orders and

directions passed by the High Court Division to make the final assessment and make payment of compensation within two months and the above order though being binding, the respondents did not comply with the said direction. The learned counsel further submits that the High Court Division erred upon holding that the question raised by the petitioner is not a question which can be decided by the High Court Division acting as a court taking upon contempt matters and the High court Division also erred in law in holding that there is confusion about the legal position of final assessment to arrive at. 4 As it appears the High Court Division discharged the Rule holding as follows:” We have perused the relevant provisions of the Town Improvement Act, we find that the relevant provisions have been amended several times and ultimately sections 80 to section 93 B were omitted by the Act. No. XXIX of 1987. However, we are of the view that the question raised before us is not a question which can be decided by this court acting as a

court taking up contempt matters. Whether the final assessment has been made or not, is a relevant question but we find that the assessment was made at the time of requisition and 90% of the compensation money was taken and accepted by the petitioners and only 10% remained.

5. Mr. Md. Rafiqul Islam has insisted that the petitioners are entitled to get the compensation on the present market value of the property but there is no such provision even in the omitted sections. It was provided in sub section (5) of Section 93A that for the purpose of assessment of compensation under that section market value shall be the average market value according to disposition of properties of similar description in the vicinity during five years from the service of notice under clause (a) sub-section (4) of this section. Sub-section 4(a) of Section 93A is relating to service of notice to acquire a requisitioned property and this notice was served long ago and only Gazette notification under sub-section 4(h) of section 95A was made in the year 2003. 6. So. we do find any provision to show that final assessment is to be made on the basis of the current market value after Gazette publication of notice under section 93A 4(h), the proceeding under the contempt Act is a quasi criminal proceeding. When it appears to us that there is confusion about the legal position as to what is meant by ‘Final assessment’ it is not possible to arrive at a conclusion that the contemners committed contempt of court by violating this courts order as mentioned above. Moreover, we find that the contemr.er  complied with the order of this court and published the notice in the Gazette and also offered the balance amount of the compensation money to the petitioner.

7. In view of the above position “we do not like to proceed further against the condemners”. 8. We find that the above decision of the High Court Division is based on correct interpretation of law and we do not find any cogent reason to interfere with the judgment of the High Court Division.

9. Accordingly the petition is dismissed.

Source: III ADC (2006) 846

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