Appellate Division Cases
(Civil)
PARTIES
Government of the People’s Republic of Bangladesh,Represented by the Deputy Commissioner, Dhaka
and other …………………………..Appellants.
-vs-
Abdul Wahab Mia and others…………………. Respondents
-vs-
Mostafa Kamal and others………………. Petitioners in C. P. No. 22/97.
-vs-
Abdul wahab Mia and others………………… Respondents in C. P. No.220/97
JUSTICE
A. T. M. Afzal. C. J
Mustafa Kamal. J
Latifur Rahman. J
Mohammad Abdur Rouf J
JUDGEMENT DATE: 23rd August, 1998
Section 3 of the (Emergency) Requisition of Property Act, 1948. Article 42 of the
Constitution. Section 8 B of the (Emergency) Requisition of Property Act, 1948. 27 DLR (AD)-65.
The lawful order the learned Judgers of the High Court Division could pass under law was to direct the appellants either to derequisition the case property under section 8B of the Act or to finally acquire the same by publishing in the Bangladesh Gazette a notification under section 5 (7) of the said Act. That is all the learned Judges could have done in exercise of their jurisdiction but then the learned Judges of the High Court Division wrogly exceeded their jurisdiction in assuming the executive functions of the officials directing release of the case property in favour of the writ petitioner respondents ………………………..(11)
Civil Appeal No. 118 of 1997 With Civil Petition for leave to Appeal No. 220 of 1997
(From the judgment and order dated 20.6.1996 passed by the High Court Division in Writ Petition No. 1312 of 1993.)
Mahmudul Islam, Attorney General (B. Hossain, Deputy Attorney General and Bazhir Rahman Chana, A. A. G. with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record ,,,,,,,,,,,,,For the Appellants.
Kh. Mahbuddin Ahmed, Senior Advocate, in instructed by Shamsul Haque Siddique, Advocate-on-Record. For the petitioner C. P. No. 220/97 Rafiq-ul-Huq, Senior Advocate, instructed by Md. Nawab AH, Advocate-On-Record …….For respondent Nos. 1-13. Abdul Basel Majumder, Senior Advocate, instructed by Mrs. Azxa AH, Advocate-on-Record For respondent Nos. 14-36.
JUDGMENT
1. Latifur Rahman, J :- This appeal by the Government respondent appellant is from the
judgment and order dated 20-6-96 passed by a Division Bench of the High Court Division in Writ Petition No. 1312 of 1993 making the Rule Nisi absolute.
2. The predecessors of 13 writ petitioner respondents were owners of 11.34 acres of land,
out of a total area of 21.95 acres with in C.S. Khatian No. 3170 of Muza 211 Baunia, P.S.
Mirpur, District Dhaka. Along with other properties the case property measuring more or less 1465.05 acres of land was requisitioned under section 3 of the (Emergency) Requisition of Property Act, 1948 for the purpose of housing and settlement by the then Government of East Pakistan vide L.A. Case No. 13 of 1959-60. By Gazette Notification dated 28.11.80, Published in the official Gazette on 18.12.80 the Ministry of land Administration and Land Reforms acquired the requisitioned property , but the case property was not acquired. By a subsequent L. A. case, L. A. case No . 5 of 1972-73,
part of the two C.S. plots, namely, 3171 and 3474, were acquired by Gazette Notification
but no specific area was mentioned there in. An information slip supplied by the Land
Acquisition Department shows that in L.A. Case No.5 of 1972-73, 0.78 acres out of 9.45
acres in plot No. 3171 and 0.30 acres out of 5.10 acres of C. S. plot No. 3474 were acquired by final Notification along with other plots, but C. S. plot No. 3170 measuring 1.21 acres was not acquired in either of the two L.A. cases. In the writ petition the writ petitioner respondents prayed for releasing 1.21 acres of plot No. 3170 9. 45 acres minus 0.78 acres from plot No. 3171 and 5.10 acres minus 0.30 acres from plot No. 3474. The Additional Deputy Commissioner (1. A) by an order Dated No. 13.9.92 recommended
for release of 14. 42 acres in L. A. Case 13 of 1959-60. The writ petitioners also claimed to be in possession of the land sought to be released.
3. The respondent appellants in their affidavit-in-opposition contended that the case
property now being sought to be released was requisitioned for the purpose of acquisition to set up a satellite town at Mirpur and for housing *Tand settlement purposes. Awards were prepared in the name of the predecessors of the writ petitioners for all the plots in question and they received compensation money from the appellants without any objection. Possession of the requisitioned lands including the case property
was handed over to the requiring body, respondent No. 4 in the writ petition through a possession certificate dated 22-3-1960. The case property has been allotted to various affected persons including the writ petitioners. The allotters are possessing the case properties by construct” ing buildings and residential quarters. By a mere press release inviting general information about unauthorized occupation of lands in and around the city of Dhaka the writ petitioners have not been bestowed with any legal right for release of the case property from requisition . The writ petitioners have filed title suit
No. 188 of 1992 in the 1st Court of Assistant Judge, Dhaka and Title suit No. 96 of 1993in the 2n” Court of subordinate Judge, Dhaka in respect of the self same case property which are still pending and as such the writ petition is not maintainable.
4. The learned Judges of the High Court Division held that the case property for which
release is being sought was not at all acquired by the two Gazette Notifications. The
Additional Deputy commissioner (L. A) recommended the release of the case property but the appellants are still holding and possessing the case property. As such the High Court Division declared the possession of the respondent appellants in the aforesaid three plots to be illegal and without jurisdiction and the appellants were directed to release C. S. plot No. 3170 in full, C.S. plot No. 3171 minus .78 acres and C. S. plot No. 3474 minus .30 acres in favour of the writ petitioner respondents with in 60 days.
5. Leave was granted to consider the following points. The writ petitioners having not challenged the requisition of three plots in question, namely, C. S. Plot No. 3170, 3171 and 3474 in L. A. Case No. 13 of 1959-60 and admittedly the High Court Division having found that the case property to be in the possession of the appellants the learned Judged of the High Court Division acted wrongly and illegally in treating the possession of the appellants as illegal. The case property in question having not been derequisitioned under Section 8 B of the (Emergency) Requisition of Property Act, 1948, the mere recommendation of the Additional Deputy Commissioner (L.A) Dhaka to release the property has not given any legal right to release the property from requisition by the authority concerned and the learned Judges of the High Court Division exceeded their
Jurisdiction in assuming the executive functions of the Government officials in directing
release of the property to the writ petitioners, ignoring the dispute between the parties with regard to the title of the case property. The requisition order having been validly
passed, possession of the case property having been validly taken as far back as in 1960, payment of compensation having been made and the case property having been used for the purpose for which the same was proposed to be acquired and the requiring body having requested the additional Deputy Commissioner (L.A). Dhaka to publish the Notification of acquisition under Section 5 (7) of the Act, all that the High Court Division could direct the appellants was either to derequisition the property or to finally acquire the same by publishing in the Bangladesh Gazettee a Notification under Section 5 (7) of the said Act.
6. Mr. Mahmudul Islam, learned Attorney General appearing for the Government appellants submits that the land in question was requisitioned for the purpose of permanent acquisition in L. A. Case No. 13 of 1959-60 and the Government is admittedly in possession and as such the question of release under Section 8 of the Act does not arise. He further submits that were any requisitioned property is to be released from requisition, the Deputy Commissioner may restore the property to persons who are entitled to such possession . Section 8 of the Act contemplates the manner and to whom the property is to be restored by the Deputy Commissioner . He refers to various
clauses of section 8 of the Act and Rule 10 (1) (2) framed there under. According to the
learned Attorney General this is an administrative function of the Deputy commissioner and it is the administrative functionaries who will act according to the Act and the Rules. He cites the decision in the case of Badal Rani Vs. government of Bangladesh, 27 DLR (AD)-65, where in at paragraph 12 it has been held that the High Court Division could not pass an order of release under the Requisition of Property Act which is purely with in the Administrative function of the requisitioning authority. According to the learned Attorney General on release from requisition, delivery of possession is to be given
by the Deputy Commissioner and this administrative act is not coupled with any duty and
such the learned Judges acted wrongly and without jurisdiction in directing release of the
property assuming executive functions of the Government officials. On the contrary, Mr. Rafiq-Ul Huq, learned Advocate appearing for the writ petitioner respondents submits that a property which has been requisitioned as far back as in 1959/60 for the purpose of permanent acquisition cannot by kept hanging for such a long time when it involves a right to property of a person as contemplated under Article 42 of the Constitution. He does not, of course, challenge that requisition can be made by law of a citizen’s property for public purpose but keeping that without acquiring for such a long time cannot be said to be an administrative function of the requisitioning authority not coupled with any duty. He also argued that the requisitioned property if not acquitted for such a long time then the respondents may have a legitimate expectation to get back the land, but in the present case the land was requisitioned for the purpose of permanent acquisition and possession was taken on back and the purpose for which it was requisitioned had been completed.
In such a case the doctrine of legitimate expectation will have no bearing. This delay
of gazette notification under section 5 (7) of the Act by itself will not ipso facto give any
right to the writ petitioners to get release of the land from requisition.
8. The learned Judges of the High Court Division referred to the order passed by the
Additional Deputy Commissioner (LA). Dhaka and held that in L. A. Case No. 13 of 1959-60 it was recommended by the Additional Deputy commissioner to release 14.42 acres of land of three plots, namely plot Nos. 3170 ,3171 and .3474. This observation of the learned Judges is not correct as because the order dated 30.9.92 does not at all speak of releasing the property by the Additional Deputy commissioner (LA). Dhaka. It was only a recommendation by the Additional Deputy commissioner for disposal of the case by writing to the requiring body to depose of the long pending case of requisition.
Thus the learned Judges of the High Court Division misconstrued this order dated 30.9.92
and considered it to be an order of release.
9. The learned Judges of the High Court Division also wrongly held that the appellants
are possessing the land illegally and arbitrarily. The requisition of the case property in L. A. case No. 30 of 1959-60 is not under challenge and admittedly Government took possession in 1960 and thereafter paid compensation to the original owners and handed over the land to the requiring body which in turn gave possession to the writ petitioners and others as allottees and as such the possession of the Government and its allottees through the requiring body are not illegal and arbitrary, as held by the learned Judges of the High Court Division . Further from the possession Certificate dated 22.3.60 it
appears that possession of the land including the case property was handed over to the requiring body and the acquired land was used and it is being used by allotting amongst affected persons including the writ petitioners as affected persons to set up satellite town at Mirpur and for housing and settlement purposes. It is also on record that award was also prepared in the name of the writ petitioners and in the name of their predecessors by the government and they received compensation from the Government without any objection. In meanwhile, from the correspondences between the government and the requiring body it is palpably clear that the publication of the final notice in Gazette under
Section 5 (7) of the said Act is in process.
10. In view of the facts and circumstances of the case, the lawful order the learned Judgers of the High Court Division could pass under law was to direct the appellants either to derequisition the case property under section 8B of the Act or to finally acquire the same by publishing in the Bangladesh Gazette a notification under section 5 (7) of the said Act. That is all the learned Judges could have done in exercise of their jurisdiction but then the learned Judges of the High Court Division wrogly exceeded their jurisdiction in assuming the executive functions of the officials directing release of the case property in favour of the writ petitioner respondents. 11. In the aforesaid circumstances, the
judgment of the High court is not sustainable in law. Consequently, the appeal is allowed without any order as to costs. Civil Petition No. 220 of 1997 is also disposed of in terms of the appeal.
Ed
Source: I ADC (2004), 153