Appellate Division Cases
(Civil)
PARTIES
Agrabad Hotel Ltd. & another …………………………………..Appellants
-vs-
Revenue Deputy Judgment Collector, Cox’s Bazar & others ………..Respondents
Fixing premium for long term lease and granting such lease to the appellants, Government was exercising sovereign power of the State and as such no action could have been taken in derogation of the rights of the allottee/lessee except upon giving an opportunity to defend against the proposed action, and as such the High Court Division has erred in holding that “the question of principle of natural justice does not arise (4)
The authority that has the power to do a thing has also the power to undo the same provided in the meantime no right is accrued in favour of the party going to be affected bv such cancellation (9)
Granting long terms lease of land government was exercising sovereign power of the State and accordingly the High Court Division erred in holding that “the question of principle of natural justice does not arise (11)
Civil Appeal No. 323 of 2001
(From the Judgment and Order dated 13.07.2000 passed by the High Court Division in Writ Petition No. 1605 of 1998)
Khondaker Mahbubuddin Ahmed, Senior Advocate instructed by S.R. Khoshnabish Huq, Advocate-on-Record. For the Appellants
A.J. Mohammad AH, Additional Attorney General instructed by B. Hossain, Advocate-on-Record….For the Respondents
JUDGMENT
1. M. M. Ruhul Amin J: – This appeal by leave is directed against the judgment and order dated 13.07.2000 passed by a Division Bench of the High Court Division in Writ Petition No. 1605 of 1998 discharging the Rule.
2. Short facts are that the appellant No. 1, a Public Limited Company and the appellant No. 2, Managing Director of the said Company filed the above mentioned writ petition stating, inter alia, that the Government of Bangladesh allotted 5 acres of land of Plot No. 14/4 of Mouza-Jhilwanja District-Cox’s Bazar to the appellant company by letter dated 24m March, 1986 for the construction of a 5-Star Hotel. The Company was directed to deposit Tk. 3,53,335/- by letter dated 24th April, 1986. Accordingly the Company deposited the entire money and a registered deed of lease dated 19.06.1986 was executed between the parties. The appellant took possession of the land and started the construction of the proposed 5-Star Hotel. During the progress of construction the respondent Non. 2 issued a letter dated 03.12.1988 asking the writ-petitioner to deposit a further sum of Tk. 7,30,488/- on the ground that the Controller of Accounts of Land Administration Board of Bangladesh, Dhaka had fixed the salami amount of the allotted land at Tk. 10,83,823/-. The appellant Company by the letter dated 19.01.1989 raised objection to the refixation of the salami amount. Thereafter, the Company was directed to pay additional amount of Tk. 2,79,312/-. The appellant while preparing for payment of the said additional amount of salami the Ministry of Land cancelled the lease earlier made in favour of the Company by the letter dated 18.06.1990. The appellant filed a review petition on 21.07.1990 before the concerned Minister and it was considered and the respondent No. 3 the Deputy Commissioner, Cox’s Bazar was given direction on 15.12.1991 (Annexure-D) for effecting long term settlement of the land in favour of the writ petitioner. The respondent No. 3 in spite of receiving the said letter did not take any action until 20.03.1995 when he issued a letter fixing salami amount at Tk. 27′,37,632/’- without mentioning the basis of such fixation. The writ-petitioner then filed an application to the State Minister for land for payment of the said salami money by 10 installments after adjusting the amount already deposited. The review application was allowed and the appellant was allowed to pay the salami money by 4 installments. In the meantime the respondent No.l, the Revenue Deputy Collector, Cox’s Bazar informed the writ-petitioner that the salami amount was revixed at Tk. 45,42,639.35 instead of Tk. 27,37,632/-. The appellant on receiving the said letter filed a letter of objection for . reviewing refixation of salami money but the same was rejected. The appellants, therefore, agreed to pay the salami money of Tk. 45,42,639.35/- against their will. The respondent No. 3 again refixed the salami money at Tk. 74,22,773.50/- and informed the appellant by letter-dated 04.03.1998. The appellant then filed writ petition No. 853 of 1998 against the said enhancement of salami money but did not press the writ petition filed by the appellant. The appellant having agreed to pay Tk. 74,22,773.50 requested the respondent Nos. 1-3 to pass the chalan to deposit the first installment of Tk. 18,55,694.63/- but no chalan was passed. The appellant wrote a letter on 14.05.1988 to the respondent No. 3 with a request to pass necessary chalan to enable the appellant to deposit the first installment of salami money. The respondent No. 3 was delaying in passing the chalan with ulterior motive and ultimately by a letter dated 09.06.1998 (Annexure-I) cancelled the allotment of the plot made in favour of the company. The appellant then moved the High Court Division and obtained the Rule.
3. The Rule was contested by respondent No. 4 by filing affidavit-in-opposition denying the material allegations made in the writ petition and contended, inter al’ia, that as the construction work was not completed within two years the lease granted by the lease deed dated 19.06.1986 was cancelled, that the appellant No.l did not deposit the salami money nor constructed building on the land and no plan for the proposed building was passed as yet. The further contention is that as no deed of lease was executed between the parties, appellant has no locus standi to challenge the order of cancellation of the allotment of the plot in question.
4. Leave was granted to consider the submission that the High Court Division having misconstrued the Government’s order dated 15.12.1991 (Annexure-D to the writ petition) to be a letter of allotment, erred in accepting the submission advanced by the learned Assistant Attorney General on behalf of the Government and discharging the Rule on such basis and the submission that the Deputy Commissioner, Cox’s Bazar having not complied with the Government’s order dated 15.12.1991 by issuing a letter of allotment concerning the plot of land for long term lease to the appellants fixing premium under clause (Ka) of the order and incorporating the clauses (Kha) to (Uma) thereof as the conditions for compliance by the allottee, there was no lapse or default on the part of the appellants and as such the High Court Division erred in discharging the Rule and the further submission that in fixing premium for long term lease and granting such lease to the appellants, Government was exercising sovereign power of the State and as such no action could have been taken in derogation of the rights of the allottee/lessee except upon giving an opportunity to defend against the proposed action, and as such the High Court Division has erred in holding that “the question of principle of natural justice does not arise.”
5. We have heard Mr. Khandaker Mahbubuddin Ahmed, the learned Counsel for the appellants and Mr. A.J. Mohammad Ali, the learned Additional Attorney General for the respondents and perused the judgment of the High Court Division and other connected papers.
6. It is not disputed that the Government allotted 5 acres of land of Plot No. 14/4 of Mouza-Jhilwanja District-Cox’s Bazar by letter dated 24.03.1986 in favour of the appellant for the construction of a 5-Star Hotel and the appellant was directed to deposit Tk. 3,53,335/- by letter dated 24.04.1986 and the appellant duly deposited the said amount and a deed of lease was executed between the parties on 19.06.1986.
7. It is undisputed that the amount of salami money was later on enhanced to Tk. 10,83,823/- on the ground that the Controller of Accounts of Land Administration Board of Bangladesh, Dhaka had refixed the salami money. It is also undisputed that the lease in favour of the appellant was cancelled by letter dated 18.06.1990 and the appellant filed a review application before the Minister in charge of the Ministry of Land against the cancellation of lease and the review application was allowed and by letter dated 15.12.1991 the Ministry of Land directed the Deputy Commissioner, Cox’s Bazar for affecting a long term lease of the land in favour of the appellant but no action on this letter was taken by the Deputy Commissioner and by letter dated 20.03.1995 the salami money was again enhanced to Tk. 27,37,632 and on prayer of the Appellant the Government allowed payment of salami money by four installments. Undisputedly in the meantime the Revenue Deputy Collector, Cox’s Bazar enhanced the salami money to Tk. 45,42,639.35/-. The appellant filed chalan to the Deputy Commissioner for passing the same for depositing the first installment of salami money but the chalan was not passed and the amount of salami money was ultimately enhanced to Tk. 74,22,773.50/- by letter dated 04.03.1998. The appellant then filed a writ petition challenging enhancement of salami money but ultimately did not press the writ petition and again filed chalan to the office of the Deputy Commissioner, Cox’s Bazar to pass the same for depositing the first installment of salami money but instead of passing the Chalan the allotment was cancelled by letter dated 09.06.1998.
8. Mr. Ahmed argued that this Annexure-I was issued by the Deputy Commissioner as per decision taken in a meeting at the local Circuit House presided over by the them Minister in charge of the Ministry for Civil Aviation and Tourism on the ground that salami money was not paid within time although appellant did all on his post for payment of salami and the allotment also was issued in violation of Government policy which is not correct. Mr. Ahmed has strenuously argued that Annexure-D was issued by the Ministry of Land which is the proper authority for cancellation of allotment of land but Annexure-I was issued by the Deputy Commissioner on the basis of resolution taken in a meeting held at the local Circuit House and presided over by the then Minister in charge of the Ministry of Civil Aviation & Tourism. He submits that the Ministry of Civil Aviation and Tourism or the Deputy Commissioner had no authority to cancel the allotment of land. He further submits that only the Ministry of Land had authority to cancel the allotment on valid grounds and no other authority.
9. It is true that the authority that has the power to do a thing has also the power to undo the same provided in the meantime no right is accrued in favour of the party going to be affected by such cancellation.
10. We have earlier indicated that it is undisputed that the appellant filed chalans on more than one occasion to deposit the first installment of salami money but the authority did not pass the chalan and as such the appellant could not deposit the installments. It is needless to mention here that the amount of salami money is to be deposited in a particular Head of account in favour of the Government in the Treasury and for this purpose chalan is to be passed by the office of the Deputy Commissioner before depositing the amount of salami money by the appellant in the Government Treasury.
11. It is not disputed that in terms of Annexure-D no action was taken by the Deputy Commissioner as per provision of G.E. Manual in the matter of granting long term lease of the land in favour of the appellant.
12. We find substance in the submission of Mr. Ahmed that in the matter of granting long terms lease of land government was exercising sovereign power of the State and accordingly the High Court Division erred in holding that “the question of principle of natural justice does not arise.”
13. The respondent in the affidavit-inopposition did not assign any reason for not passing the chalan filed by the appellant to deposit the amount of salami money.
14. Regarding violation of the terms and conditions of contract or agreement by the appellant as alleged by the respondent, it is to be mentioned that no lease deed has yet been executed between the parties, after allotment for the second time.
15. Therefore having regard to the facts and circumstances of the case and the discussions made above, we are of the view that the High Court Division was not justified in discharging the Rule. The appeal is, accordingly, allowed. No order of cost.
Ed.
Source : III ADC (2006), 146.