Acquisition and Requisition of Immovable Property Ordinance, 1982

 

Section 2(b)

"Deputy Commissioner" includes an Additional Deputy Commissioner and any other officer authorised by him.

Under section 3 of the Ordinance it is the Deputy Commissioner who has to cause a notice to be published under the said Ordinance, Under section 2(b) "Deputy Commissioner" includes an Additional Deputy Commissioner and any other officer authorised by the Deputy Commissioner to exercise any power conferred, or to perform any duty imposed, on the Deputy Commissioner by or under this Ordinance.

Sankar Gopal Chatterjee vs Addi Commissioner, Dhaka Division 41 DLR 326.

Section 3

The law of acquisition gives the Deputy Commissioner power to acquire property in two likely situations; if the property is needed or if the property is likely to be needed.

The use of two alternative expressions in the notice under section 3 is indicative of a lack of application of mind and the notice under section 3 is liable to be struck down on this ground.

The law of acquisition gives the Deputy Commissioner the power to acquire property in the likelihood of two situations. First, if the property is needed. Or, if the property is likely to be needed. A property is either needed or it is likely to be needed but while acquiring a property the Deputy Commissioner cannot keep both the alternatives in his pocket. He has to choose between the two. If he keeps both the options open, then he does not know whether the property is needed for immediate use or it is likely to be needed for some future use. The use of both these alternative expressions in the notice under section 3 is indicative ofa lack of application of mind and the notice under section 3 is liable to be struck down on that ground as well.

Sankar Gopal Chatterjee vs Addi Commissioner Dhaka Division 41DLR326.

Section 3

Acquisition for a co-operative society per se is not a public purpose. The need to state the precise public purpose in the body of the notice under section 3 is imperative. Besides, under section 17 no acquired property under the Ordinance shall be used for any purpose other than the purpose for which it is acquired.

Acquisition for a co-operative society per se is not a public purpose. The purpose for which the Co-operative Society proposes to use the acquired land is the ultimate test for a decision as to whether the acquisition is for a public purpose or not. There is a total lack of disclosure in the notice under section 3 as to for what purpose the Co-operative Society needs the acquired land. The need to state the precise public purpose in the body of the notice under section 3 is imperative, because under section 4 of the Ordinance any person interested in the disputed property has the right to object to the acquisition of the property challenging the public purpose stated therein, but if no specific public purpose is stated in the notice, then the right given to the objector under section 4 is rendered nugatory and illusory. Besides, under section 17 no property acquired under the Ordinance shall be used for any purpose other than the purpose for which it is acquired without the prior approval of the Government.

Hence on the ground of lack of public purpose the acquisition proceedings fail.

Sankar Gopal Chatterjee vs Additional Commissioner, Dhaka Division 41 DLR 326

Sections 3 and 4

The objection raised in the facts of the case is merely technical and does not touch upon the genuineness of the requirement which is obviously of an immediate nature. It is on record that the petitioner filed successive objections for consideration. There being a consideration by the acquiring authority the impugned judgment need not be interfered.

Zahed Hossain Mia vs Deputy Commissioner 50 DLR (AD) 15.

Sections 3 and 4(3)(b )

The notice under section 3 suffers from a total lack of jurisdiction.

When the Additional Commissioner directed the Deputy Commissioner, Kishoregonj to proceed from the stage of section 4(3)(b) of the Ordinance, there is a presumption thathe rejected the petitioner's contentions upheld by the Additional Deputy Commissioner. In all fairness the Additional Commissioner should have given a finding on those issues. Without disposing of those issues the Additional Commissioner could not have directed the Deputy Commissioner, Kishoregonj to proceed under section 4(3)(b) of the Ordinance. As we have independently found that the notice under section 3 suffers from a total lack of jurisdiction, no need to dwell at length on this point.

Sankar Gopal Chatterjee vs Additional Commissioner, Dhaka Division 41DLR326,

Sections 3 and 6

The description of the land sought to be acquired are vague, indefinite, unspecified and uncertain and did not enable the owners to make an effective objection in writing against the order of acquisition and the same has rendered the acquisition proceeding illegal.

Haji Abdur Rahim vs Secretary, Ministry of Land Administration and Land Reforms 46 DLR 378.

Sections 3 and 15

The provision of section 15 is mandatory-An agreement with the non­Government requiring body is a sine qua non for the exercise of power, before the Deputy Commissioner acquires the jurisdiction to publish a notice under section 3 of the Ordinance.

The provision of section 15 is not directory but mandatory. Before the Deputy Commissioner acquires the jurisdiction to publish a notice under section 3 an agreement with the non-Government requiring body is a sine qua non for the exercise of such power. It is a condition precedent. It cannot be whittled down by any device. It cannot be even accepted that an acquisition proceeding may be started without any agreement, but if a subsequent agreement is reached then it amounts to validation. The principle of subsequent validation cannot be entertained in a matter where the property rights of the citizen are involved.

Sankar Gopal Chatterjee vs Additional Commissioner Dhaka Division 41DLR326.

Sections 3 and 1

The acquisition proceedings are a colourable exercise of power as they were started without any agreement with the requiring body under sectiori 15 of the Ordinance and for circumventing a valid decree of the Civil Court.

Sankar Gopal Chatterjee vs Addi Commissioner Dhaka 41DLR326.

Sections 7 and 8

Assessment of award­ – Under section 7 the Deputy Commissioner is to make the award and while making it he must determine the compensation on matters as mentioned in section 8. The question of agreement between the Awardee and the Requiring Body is not very relevant within the scheme of the Ordinance in this regard. This is unlike the provision in the Emergency Requisition of Property Act, 1948.

Khaled Akbar vs Govt of Bangladesh 42 DLR 66.

Sections 8, 12(1) and 28

Petitioner's case is that the Award passed by the Deputy Commissioner is inadequate and not based on matters to be considered in determining the assessment of the award under section 8 of the Ordinance, by reducing the amount as awarded by Arbitrator in respect of each of the items, viz market value of the property, the question of damage by severance of the property from the other properties of the petitioner and on other necessary considerations, as contemplated under section 8 of the Ordinance has rightly been done.

Khaled Akbar vs Govt of Bangladesh 42 DLR 66.

Sections 10 and 12

The provision of section 12 will come into play only when the compensation is not paid or not kept in deposit account under section 10(1). Under section 12 no obligation as such is placed on the requiring body to deposit compensation within six months from the date of decision for acquisition.

Bangladesh vs Subash Chandra Das 46 DLR (AD) 63.

Sections 10(2) and 30

The Arbitrator does not exercise a judicial function in course of inquiry or investigation into the amount of compensation although he is expected to act within judicial norms.

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Section 12

The question of abatement under section 12 of the Ordinance is not relevant in as much as there was no averment in the Writ Petition that no compensation was paid under sub-section (I) of section IO or deposit made in the Public Account of the Republic as per provision of sub­section (2) of section 10.

Subash Chandra Das & ors. vs Bangladesh, represented by the Secretary, Ministry of Land Administration and Land Reforms, Government of the People's Republic of Bangladesh and others 50 DLR (AD) 106.

Section 12

Non-payment of compensation within one year from the date of decision of the Government for acquisition ofland as contemplated under section 12 of 1982 Ordinance does not render such land liable to be released in that section 12 is riot applicable to the facts of the instant cases which were started long before the Ordinance came into force in view of the provision of amended section 79 of the 1953 Act as no retrospectivity can be read into section 12 of the 1982 Ordinance.

Jamir Ali (Md) and others vs Secretary, Ministry of Land & others 52 DLR (AD) 176.

 

Article 12

In spite of repeal of sections 93A and 93B of the Act the pending acquisition of the disputed land shall be continued under the aforesaid provisions as if those have not been repealed and the provision of section 12 or other provisions of Acquisition and Requisition of Immoveable Property Ordinance shall not apply to the acquisition proceedings started under section 93A of the Act.

Jamir Ali (Md) and others vs Secretary, Ministry of Land and others (Spl. Orginal) 52 DLR 125.

Sections 27 & 28

The Arbitrator appointed under section 27 of the Ordinance is a persona designata, i.e. a person designated not by name but by as one of a class. Such Arbitrator appointed under section 28 is not a civil Court at all within the meaning of the Code and, as such, he is not a court subordinate to this court. So, the instant revision application under section 115 of the Code is also not maintainable.

Thomarshu alias Majhi vs Bangladesh 52 DLR 516.

Sections 27 and 34(2)

Member, Arbitration Appellate Tribunal to hear the Arbitrator's. decision. There is no conflict between the two expressions "Persona designata" and "Court"-if the function of the designated person is judicial in character then it is a Court.

District Judge of a District is a Member, Appellate Tribunal. Tribunal for hearing of the appeal from the decision passed by the Arbitrator appointed under section 27 of the Ordinance. If the function is a judicial one then it is amenable to the jurisdiction of this court under section 115 of the Code of Civil Procedure, otherwise not.

Khaled Akbar vs Govertment of Bangladesh 42 DLR66.

Section 28

The petitioner failed to show that he received the money of the award 'under protest' as found by the Arbitrator and therefore he is not a person entitled to make the application for revision of the award and for this reason alone his application under section 28 is simply maintainable.

Thomarshu alias Bangladesh 52 DLR 516.

Section 31

It is an universal law that a restrospective operation is not to be given to a statute so as to impair an existing right.

Former Modern Shishu Hospital, presently Institute of Child Mother Health vs Abdus Salam, son of Late Yusub Molla and another & 5 others 49 DLR 160.

Sections 31 and 32(3)

In view of the deeming provision in section 32(3) of the Ordinance the award of the Arbitrator is appealable as a decree and also executable as a decree. But the status of the Arbitrator has not undergone any change thereby. He is not elevated to the status of a Civil Court by virtue of deeming clause (3) of section 33.

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Sections 31 and 34

Since Legislature is competent to legislate fixing amount of compensation as well as manner of assessment of compensation, the amendment made in sections 31 and 34 of the Ordinance cannot be said to have violated the right of the petitioners to have adequate compensation in respect of the land acquired under the Ordinance.

Shahjahan Ali Khan (Md) and others vs Government of Bangladesh and others 52 DLR 99.

Sections 32(3) and 36

Award given by an Arbitrator shall be deemed to be a decree and the statement of the ground of such award to be a judgment within the meaning of section 2(2) and section 2(9) of the Code of Civil Procedure respectively. The Arbitrator shall have all the powers of a Civil Court under section 36 of fhe Ordinance No. 2 of 1982.

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Section 34(1)

As appeal from the order making award by the Arbitrator lies to the Arbitration Appellate Tribunal; the present appeal before the High Court Division is incompetent.

Bangladesh vs Md Mazibur Rahman 47 DLR 559.

Section 34(3)

Whether a revision under section 115 of the Code of Civil Procedure is maintainable in respect of the judgment passed by the Arbitration Appellate Tribunal. In view of the decision reported in 38 DLR (AD) 172 Member Appellate Tribunal in deciding the appeal over the decision of the Arbitrator exercised a judicial function and as such he is a Court and for that matter his decision is amenable to the revisional jurisdiction.

Khaled Akbar vs Government of Bangladesh 42 DLR 66.

Sections 43 and 44

Exclusion of jurisdiction of a civil Court should not be readily inferred. If the order passed or action taken by any authority is malafide, such court shall have jurisdiction to entertain a suit to see whether the action is in conformity with the law in question.

Soleman Bibi and ors. vs ·Administrator, Farajikandi Complex and ors 45 DLR 727.

Section 44

It cannot be the intention of the legislature that when an award was made in the name of wrong person, through collusion or otherwise, the rightful owner of such property will have no remedy under the general law to establish his title to the compensation as awarded.

Animal Protection Society, Chittagong vs Laxman Chadra Das and ors 56 DLR 522.

Section 47

The provision give life to all proceedings and matters including all notices, notifications and orders relating to requisition and acquisition of any property under the (Emergency) Requisition of Property Act, 1948 "as if that Act had not ceased."

Abdul Bashar (Alhaj), being dead his legal heirs (a) Hosne Ara Begum & others vs Bangladesh and others 48 DLR 553.

 

Acquisition of Immovable Property Rules, 1952

 

Rule 4

Service of notice for acquisition of land-Petitioner annexing photo copy of notices while alleging their non-service. No such copy could be legally obtained. Had they obtained certified copies and annexed the same then it could be ascertained when they obtained the same. When photostat copies of the notices were produced it can be inferred that these were served in the manner prescribed by law.

Anwara Rashid vs Deputy Commissioner 45 DLR 207.

ACQUISITION AND REQUISITION OF IMMOVABLE PROPERTY ORDINANCE,
1982

 

Sections—2(b)
and 3

Acquisition of property—Authority to issue
notice for acquisition of property—It is the Deputy Commissioner who has to
,cause a notice to be published under the Ordinance—In 4he absence of any
authorisation, the order passed and notice signed by the Land Acquisition
Officer are unauthorised and are without our jurisdiction.

Sankar Gopal
Chatterjee and others Vs. Additional Commissioner, Dhaka Division and others, 9
BLD (HCD) 546.

 

Sections—3
and 15

Acquisition
of property—Pre-condition for notice to sue acquire–Before the Deputy
Commissioner acquires jurisdiction to publish .i notice of acquisition of
property an agreement with the non-government requiring body i sine qua non for
the exercise of such power—It cannot be accepted that an acquisition proceeding
may be started without any agreement, but if a subsequent agreement is reached,
then it amounts to validation—The “principle of subsequent validation cannot’
be entertained in a matter where the property rights of the citizen is involved

Sankar Gopal
Chatterjee and others Vs. Additional Commissioner, Dhaka Division and others, 9
BLD (HCD) 546.

 

Section—3

Acquisition
of property—Power to acquire when to be exercised—The law of acquisition
gives the Deputy Commissioner the power to acquire in the likelihood of two
situations, first, if the property is needed or, it is likely to be needed—A
property is either needed or it is likely to be needed, but while acquiring a
property the Deputy Commissioner cannot keep both the alternatives in his
pocket—The use of both these alternative expressions in the notice is
indicative of a lack of application of mind and the notice is liable to be
struck down on that ground.

Sankar Gopal
Chatterjee and others Vs. Additional Commissioner, Dhaka Division and others, 9
BLD (HCD) 546.

 

Section—3

Acquisition
of property—Acquisition for a co-operative society whether public
purpose—Acquisition for a co-operative society per see is not a public
purpose—The purpose for which the co-operative society proposes to use the
acquired land is the ultimate test for a decision as to whether the acquisition
is for a public purpose or not.

Sankar Gopal
Ckatterjee and others Vs. Additional Commissioner, Dhaka Division and others, 9
BLD (HCD) 546.

 

Sections—3,
4 and 17

Acquisition
of property—Need to state the precise public purpose in the notice—There is a
total lack of disclosure in the notice as to for what purpose. The co-operative
society needs the acquired land—the need to state the precise public purpose in
the body of the notice is imperative—If no specific public purpose is stated
then the right given to object to the acquisition challenging the public
purpose stated is rendered nugatory and illusory—Sinceno property acquired
under the Ordinance shall be used for any purpose other than the purpose for
which it is acquired, without the prior approval of the Government, if the
public purpose is left completely vague and unspecified, then this will give a
handle to the requiring body to use the acquired property in any manner it
deems fit.

Sankar Gopal
Chatterjee and others Vs. Additional Commissioner, Dhaka Division and others, 9
BLD (HCD) 546.

 

Sections—10,
27, 32 and 36

Arbitrator—Whether an
Arbitrator appointed under Ordinance II of 1982 is a Court—Such an Arbitrator
essentially conducts an inquiry into the amount of compensation that a person
may reasonably receive in respect of his acquired land and structures—This is a
limited inquiry investigative in nature—He does not exercise a judicial
function in course of such an inquiry, although he is expected to act within
judicial norms—The provision deeming his award to be a decree and his statement
of grounds to be a judgment does not elevate him to the status of a civil
Court— Code of Civil Procedure, 1908 (V of 1908), Ss. 2(2)(9), 34, Or. 39 Rs 1
and 2; East Bengal (Emergency) Requisition of Property Act, 1948 (XIII of
1948), S. 7(b);

Begum Lutfunnessa
Vs. Nizamuddin Ahmed and others, 8 BLD (HCD) 357.

Ref:
38 DLR (AD) 172; 20 DLR 599 (SB.); 25 DLR44O; 26 DLR265; —Cited.

 

Section—44

The
suit comes within the mischief of section 44 of the Ordinance. Although it is
true that the plaint contains some general allegations of malafide, it cannot
be held that the Courts below committed any illegality in rejecting the plaint
of the suit.

Din Mohammad
Molla and another Vs. Chairman, Khulna Development Authority and others, 12 BLD
(HCD) 362.

Ref:
39 DLR (AD) 1.

 

Acquisition
And Requisition Of Immovable Property Ordinance, 1982 (11 Of 1982)

 

Public
Purpose

The
term public purpose’ as used in the Ordinance means a purpose in which the
interest of the public is directly and primarily concerned. But action taken
for serving a public purpose must be shown to be not merely that this specific
result will be reached as a final end, but that the public has itself a direct
interest in it.

Md. Masudul
Hussain Vs The Deputy Commissioner, Dhaka &ors, 15BLD (HCD) 493.

 

Section—3

Conclusion
of an agreement between the requisitioning authority and the requiring body is
a sine quo non for the exercise of power under section 3 of the Ordinance for
publication of the preliminary notice of acquisition of property. When there is
no material to show that the person or the body for whom the property was
sought to be acquired has already entered into an agreement with the Government
before issuing notice of acquisition under section 3 of the Ordinance, the
purported order of acquisition is not legal.

Md. Masudul
Hussain Vs. The Deputy Commissioner, Dhaka and others, 15 BLD (HCD) 493

Ref:
Sankar Gopal Chatterjee and others Vs. The Additional Commissioner, Dhaka
Division and others, 41 DLR 326; Sk. Aminuddin and another Vs. Deputy
Commissioner and others, 15DLR 442; Abdus Sobhan Sowdagor and another Vs.
Province of East Pakistan and others, 14DLR 496; Province of East Pakistan Vs.
Dr. Azizul Islam, PJ.D 1963 (SC) 296; 8 DLR (1965) 210; Md. Mansur Rahman and
others Vs. Province of East Pakistan, 14 DLR 604; A.I.R. 1961(SC) 342—Cited.

 

Section—4(b)
and 5

Whether
the requiring body had paid the amount within one year of the said date is a
matter between the Government and the requiring body. It is not the case of the
petitioner that he was not paid compensation or that his compensation money was
not deposited within one year from the date of decision to acquire under
section 5 or the proviso to section 4(3)(b) of the Ordinance. As such he has no
business to enquire when the requiring body paid the amount of compensation to
the Government.

Md. Alauddin
Khandker Vs Government of Bangladesh, 20 BLD (AD) 147.

Ref:
Bangladesh vs. Subash Chandra Das, 46 DLR (AD) 63; Subash Chandra Das vs.
Bangladesh, 5ODLR (AD) 106—Cited.

 

Section—5

The
decision of the Government about the acquisition of any property for a public
purpose or in the public interest shall be final and such decision of the
Government shall be conclusive evidence that the property is needed for a
public purpose or in the public interest.

There
is no provision in the Ordinance for withdrawal from acquisition after the
property has been acquired for a public purpose or in the public interest after
the process of acquisition has reached its finality. If after meeting the
requirement of the specified purpose, for which acquisition was made, there
remains any excess land, it is open to the Government to decide as to whether
the requiring body will be allowed to use the same for any public purpose other
than from the one for which it was acquired.

M. A. Salam
alias Abdus Salam Vs. Government of the Bangladesh and others, 15 BLD (HCD) 578

Ref:
Mamtaz Begum Vs. The Province of East Pakistan, 14 DLR 608; Province of East
Pakistan and ors. Vs Jogesh Chandra Lodh and ors, 1 LDLR (SC) 411; Sufla Khatun
Vs. Secretary, Revenue Department and ors, 20 DLR (SC) 18; Amiruddin Ahmed
Chowdhury Vs. The Land Acquisition and ors, 15 DLR 51; Writ Petition No. 72 of
1988 (Unreported)—Cited.

 

Sections—10
and 12

Payment of
compensation and abatement or revocation of the acquisition proceeding for
non-payment or non-deposit of compensation.

Section
10 of the Ordinance provides for payment of compensation after an award is made
under section 7 and it stipulates that the Deputy Commissioner shall, before
taking possession of the property, tender payment of compensation awarded by
him to the persons entitled thereto according to the award and shall pay to
them unless prevented by one or more of the contingencies mentioned in
subsection (2) of section 10 of the Ordinance.

The
provision of section 12 will come into play when the compensation is not paid
to the persons interested or not kept in a deposit account in the Public
Account of the Republic under sub-section (1) of section 10. Under this section
no obligation has been placed on the requiring body to deposit compensation
within six months from the date of decision for acquisition.

The
expression “compensation has not been paid or deposited within 6 (six) months
from the date of decision” for acquisition in sub-section (1) of section 12 is
to be understood with reference to section 10 of the Ordinance.

In
the absence of any material or averment to show that no compensation was paid
under sub- section (1) of section 10 and there being no occasion for deposit of
compensation in the Public Account under sub-section (2) of Section 10, the
question of abatement does not arise. It is only in case of noncompliance of
the provisions of Section 10 the question of abatement or revocation of the
acquisition proceeding arises.

Reading
Sections 8,9,10,12 and 15 of the Ordinance together, it is clear that abatement
will take place if the acquiring authority fails to “pay” or “deposit”
compensation in terms of section 10 within one year from the date of decision
of the Government made under section 5 of the Ordinance. The requiring body is,
therefore, required to deposit the compensation money before the expiry of one
year from the date of decision of the Government.

Bangladesh,
represented by the Secretary, Ministry of Land Administration Vs. Subash
Chandra Das and others, 15 BLD (AD) 17

 

Section—12

Abatement of
an acquisition proceeding

Under
section 12 of the Ordinance an acquisition proceeding shall stand abated if
compensation has not been paid or deposited within 6 months (now one year) from
the date of the decision of the authority concerned for acquisition of the
property notwithstanding anything contained in the Ordinance. But in the
instant case the question of abatement under section 12 of the Ordinance is not
relevant in as much as there was no averment in the Writ Petition that no
compensation was paid under subsection (1) of section 10 or deposit made in the
Public Account of the Republic as per provision of sub-section (2) of section
10.

Subash
Chandra Das and others Vs Bangladesh, represented by the Secretary, Ministry of
Land Administration and Land Reforms, Government of the People s Republic of
Bangladesh and others, 16 BLD (AD) 119.

 

Section—17 Sub-Section
I

Sub-Section
I of Section 17 of the Ordinance provides that no property acquired by the
Government shall, without prior approval of the Government, be used for any
purpose other than the purpose for which it was acquired. The Ordinance coming
into force on 13.4.82 and having not being given retrospective operation,
cannot hit the contract earlier concluded with the Plaintiff.

Pronab Kumar
Chakraborty and Others Vs. The Govt. of the Peoples Republic of Bangladesh and
others, 14 BLD (HCD) 2

 

Section—34

It
prescribes no special period of limitation for preferring an appeal before the
Arbitration Appellate Tribunal. In the absence of any special period of
limitation prescribed in the Ordinance for preferring an appeal before the
Arbitration Appellate Tribunal, the general law of limitation comes into play
and as such section 5 of the Limitation Act may be restored to in such cases.

Govt. of
Bangladesh Vs District Judge, Dhaka and Arbitration Appellate Tribunal, Dhaka
and others, 17 BLD (HCD) 448.

Ref:
43 DLR (AD) 28; 6 BLD (AD) 180— Cited.

 

Sections—34(1)
(4)

An
award made by the Arbitrator is appealable under Section 34(1) of the
Ordinance: Sub-section 4 of Section 34 of the Ordinance gives finality to the
decision of the Arbitration Appellate Tribunal as in such cases it acts as a
Court deciding the rights of the parties to receive compensation.

Bangladesh
vs. Md. Mazibur Rahman, 14 BLD (HCD) 362