Appellate Division Cases
(Civil)
PARTIES
Ameena Ahmed……………………. Petitioner(In all the cases)
-Vs-
Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of land, Bangladesh Secretariat, P.S. Ramna, District-Dhaka and ors. ……………………….Respondents (In all the cases)
JUSTICES
Md. Ruhul Amin CJ
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Abdul Matin J
Judgment Dated: 15th January 2008
The Acquisition and Requisition of Immovable Property Ordinance, 1982, Sections 3, 7, 11
The Said Act, Section 6
Late A. R. M. Inamul Haq father of the petitioner was a philanthropist and did many things during his lie time for the advancement of education. Before his death he expressed his desire to donate his eyes after his death for the purpose of placing cornea to blind persons and as per this desire after his death his eyes were collected by the doctors and those were placed in the eye of two blind persons and he was the first man of this country who donated his eyes were collected by the doctors and those were placed in the eye of two blind per-sons and he was the first man of this country who donated his eyes. …………………….(3)
Is a place of worship. The Muslims say their prayers and the people of other faith also worship thereby way of meditation and worshipping for spiritual advancement and as such the aforesaid land cannot be the subject matter of acquisition in any way………. (8)
For promotion of foreign investment and for resolving the problem of unemployment of this country the Government according to Master Plan took measures for acquiring land measuring 214.34 acres in Mouza Ganakbari and Baipal contiguous to Export Processing Zone under Savar Thana, Dhaka in view of extending the area of Export Processing Zone (EPZ) by placing proposal to the Government which was acceded to by the Ministry of Land and thereafter the Government accorded approval dated 26.10.1996 under Section 5(1). On securing approval, notice under Section 6 of the Acquisition and Requisition Act was served upon the petitioner and others and everything was within the knowledge of the petitioner…………………. (20)
That during the joint survey no existence of mosque was found and after obtaining the stay the petitioner, even if, created any structure or obstruction these are all unauthorized acts of the petitioner to frustrate the acquisition. The acquired land can only be excluded by the Government and the court has nothing to do in the matter……………. (3)
Khandaker Mahbubuddin Ahmed, Senior Advocate (Mahbubey A lam, Senior Advocate with him) instructed by Chowdhury Md. Zahangir, Advocate-on-Record …………..For the Petitioner (In all the cases)
Fida M. Kamal, Attorney General instructed by Md. Nawab Ali……………… For the
Respondents (In all the cases)
Civil Petition For Leave To Appeal Nos.384-388 of 2006
(From the judgment and order dated 30.08.2005 passed by the High Court Division in Writ Petition No.5513 of 1996.)
JUDGMENT
Md. Abdul Matin J : This petition for leave to appeal is directed against the judgment and order dated 30.08.2005 passed by the High Court Division in Writ Petition No.5513 of 1996 discharging the Rule.
2. The facts, in short, are that the Writ Petition No.5513 of 1996 was filed by the petitioner before the High Court Division stating, inter-alia, that C.S. Plot Nos.76,77,78′,79,80,81 and 82 of Mouza Baipile and C.S. Plot Nos.731,732,733,746 and 749 of Mouza Ganakbari are situated contiguously and in a block. Total land of those plots is 8.50 acres and the said land is demarcated by iron grills and R.C.C. pillar with a height of 7 feet from the ground level and has been developed over a period of last 30 years.
3. Late A. R. M. Inamul Haq father of the petitioner was a philanthropist and did many things during his lie time for the advancement of education. Before his death he expressed his desire to donate his eyes after his death for the purpose of placing cornea to blind persons and as per this desire after his death his eyes were collected by the doctors and those were placed in the eye of two blind persons and he was the first man of this country who donated his eyes.
4. A.R.M. Inamul Haq had a vision to establish a school and a centre for Spiritual development and to fulfill his desire he and one of his friend purchased 2.25 acres of land out of the aforesaid plots in the year 1966 and subsequently his friend transferred his share to him. But as he died in the year 1977 his desire could not be implement during his life time.
5. Thereafter the petitioner and other members of their family purchased further land from the adjoining areas and built a Katcha Mosque and several structures for the purpose of saying prayers and for mediation for spiritual advancement.
6. At the time of purchase of those lands by the petitioner and his other co-sharers those were low lying area, ditches and barren land. The petitioner and her other co-sharers had to spend huge amount of money for the development of those low lying, ditches by filling with sand, viti sand, cowdung, fertilizer and green fertilizer.
7. The local people as well as the visitors from Dhaka and other part of the country used to say their prayers in the Katcha Mosque and the worshippers who used to meditate in the said premises sometime used to sit under the said structures and sometime they used to sit under the trees for meditation by way of controlling their mind and to keep them isolated from the worldly affairs and to surrender themselves to the almighty for spiritual salvation and for that purpose the petitioner and her other co-shares, family members raised structures on the aforesaid land and also planted thousand of valuable trees.
8. The aforesaid place owned by the petitioner and her other family members is a place of worship. The Muslims say their prayers and the people of other faith also worship thereby way of meditation and worshiping for spiritual advancement and as such the aforesaid land cannot be the subject matter of acquisition in any way.
9. The petitioner, and her family members started an Agrobased Industry to meet up the cost of maintenance for running the aforesaid centre for worship and meditation. At least 20 to 25 regular workers are working there and they along with their family members are being maintained by the income, from the said Agro-based Industry and some of them also live there.
10. If the land in question is acquired in that case the valuable trees planted by important dignitaries and persons will be destroyed and the purpose of plantation of those trees will be frustrated and the petitioner and her family members will suffer irreparable loss and injury which cannot be compensated by way of monitory compensation.
11. There is a main highway in front of the aforesaid plots of the petitioner and on the other side of the said road the Export Processing Zone is situated. There is vacant lands contiguous to the existing boundary line of Export Processing Zone. If the authority takes the contiguous land from the existing boundary line in that case an influential Cabinet Minister and a former Cabinet Minister will be affected as their land is situated contiguous to the existing boundary line of Export Processing Zone and to safeguard the interest of those influential persons the respondents with a malafide intention have decided to acquire the land on the other side of the road and being illegally influenced by some interested persons the respondents have decided to include the land of the petitioner and her family members.
12. The land of the petitioner and her family members are situated in the extreme west southern corner of the proposed acquisition. Though the respondents have huge land besides the land of the petitioner and her family members but the land of the petitioner and her family members has been chosen at the instigation of some influential persons who are jealous of the petitioner and her family members.
13. The petitioner has not received any notice under Section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 and as such she could not make any effective representation to the respondents against their decision for acquisition of the petitioner’s land.
14. Subsequently a notice signed by respondent No.3 has been served upon the petitioner under Section 6 of the said Act.
15. The further case is that initiation of the instant L.A. Case for acquisition of the land of the petitioner is absolutely illegal and violative of her fundamental rights of worship and is contrary to the provision of Acquisition and Requisition of Immovable Property Ordinance, 1982 and in the aforesaid facts and circumstances the petitioner sent notice of demand of justice through their learned Advocate Mr. Mahbubey Alam to the respondents requesting them to withdraw, rescind and or cancel their decision to acquire.
16. The case of the respondent No.4 the Bangladesh Export Processing Zone Authority (BEPZA) is that in order to extend Dhaka EPZ, the present added respondent No.4 Bangladesh Export Processing Zone Authority under L.A. Case No.5 of 1996-1997 acquired 4.88 acres of land of Plot Nos.76,78,79,80,81 and 82 of Mouza Baipal and Acquired 3.95 acres of land of Plot Nos.731,733,746,749 of Ganakbari, but the petitioner in the schedule of her claim has asserted ownership on 0.15 acres of land of Plot No.732 under Mouza Ganakbari and 0.77 acres of land of Plot No.77, 1.35 acres of land of Plot No.78, 0.0825 acres of land of Plot No.80, 0.485 acres of land of Plot No.81 under Mouza Baipal and in fact the petitioner’s title could not be established.
17. At the time of joint survey no existence of any Mosque or any place of worship were found on the land in the question and since the petitioner’s title was not established, it was not possible to determine the area of land owned by the petitioner or other share holder situated in the alleged boundary.
18. Nor the petitioner or any of her relative used to live in the suit land but she employed some employee there and possibly the petitioner used to visit but no existence of any Mosque or any place of worship were found at the time of joint survey. Hence it is not true that peoples used to say 5(five) times prayers there.
19. The real owners were offered to accept the value of the trees and in fact this added respondent has already paid the entire compensation money to the respondent No.2 including the value of the trees.
20. For promotion of foreign investment and for resolving the problem of unemployment of this country the Government according to Master Plan took measures for acquiring land measuring 214.34 acres in Mouza Ganakbari and Baipal contiguous to Export Processing Zone under Savar Thana, Dhaka in view of extending the area of Export Processing Zone (EPZ) by placing proposal to the Government which was acceded to by the Ministry of Land and thereafter the Government accorded approval dated 26.10.1996 under Section 5(1). On securing approval, notice under Section 6 of the Acquisition and Requisition Act was served upon the petitioner and others and everything was within the knowledge of the petitioner. 21. The requiring body served the notice under Sections 3 and 6 and after service of notice the petitioner’s representatives appeared in the office of the respondent for hearing.
22. The petitioner also filed affidavit-inreply stating further facts about the internal record of the respondents and other papers to show that the case land being a mosque and lands having plantation of rare trees cannot be acquired.
23. The High Court Division after hearing the parties by the impugned judgment and order discharged the Rule.
24. As against the judgment and order of the High Court Division the writ petitioner has filed the petition.
25. We have heard the learned Counsel and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
26. The learned Counsel submits that the L.A Case No.5 of 1995-96 was started to acquire about 214 acre of land including the land of the petitioner, but Gazette having
been made excluding the land of the petitioner, the High Court Division erred in not holding that the aforesaid L.A. Case has been reached to its finality and conclusion said land acquisition case cannot proceed in respect of the petitioners land.
27. The learned Counsel further submits that the case land cannot be acquired in view of existence of mosque, grave yard and lands having rare trees thereon.
28. It appears that the High Court Division rightly found that the notice was duly served under Section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982.
29. It further appears that the High Court Division rightly held that in respect of 8.5 acres of land acquisition processing could not be proceed due to issuance of stay order issued by the High Court Division but the proceedings of L.A. case, however, continued in respect of remaining lands and gazette notification under Sections 7 and 11 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 were duly served.
30. It further appears that there is no decision by the Government to exclude any land covered by Section 3 notice from acquisition.
31. The learned Attorney General submits that during the joint survey no existence of mosque was found and after obtaining the stay the petitioner, even if, created any structure or obstruction these are all unauthorized acts of the petitioner to frustrate the acquisition. The acquired land can only be excluded by the Government and the court has nothing to do in the matter.
32. In the facts and circumstances of the case we find no merit in this petition which is accordingly dismissed.
Source : V ADC (2008) 397