Bangladesh Railway and ors. (Defendant Appellants )
Pranab Kumur Chakraborty and ors. (Respondent)
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Judgment : November 25, 1996.
The Railways Act, 1890 (IX of 1890), Section 6(3)
The Contract Act, 1872 (IX of 1872), Section 23
The suit land being the property of the Government the Railway Administration could not make any contract with respect to the same as this will plainly offend section 23 of the Contract Act……………….(12)
Shaheed Alam, Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record-For the Appellants.
Syed Ishtiaq Ahmed, Senior Advocate, (Mahmudul Islam, Senior Advocate with him) instructed by M Nawab Ali, Advocate-on-Record-For the Respondents.
Civil Appeal No. 11 of 1996.
ATM Afzal CJ.- This appeal, following leave, by the Bangladesh Railway-defendant No.2, is from judgment and decree dated 16 February, 1993 by a Division Bench of the High Court Division in First Appeal No. 53 of 1985 allowing the appeal, reversing those of the Subordinate Judge, Narsingdi passed in Title Suit No. 85 of 1985, and decreeing the suit.
2. The plaintiff-respondents brought the aforesaid suit for specific performance of contract for transfer of the suit land on the averments, inter alia, that they are members of the executive committee of Jinardi Union Unnayan Parishad which was formed with the object of eradicating unemployment problem of the locality by setting up industrial and commercial ventures through collective efforts. The Unnayan Parishad filed an application on 12-12-79 to the Secretary, Ministry of Railways, for getting lease of 12 acres of excess land of the Railway at village Jinardi for the purpose of setting up an industry there. The Ministry forwarded the application to the Bangladesh Railway Board for necessary action. The Government informed the Secretary of the Unnayan Parishad to get in touch with the Railway authorities and to supply them all necessary papers for the purpose of getting lease of the land. Accordingly all necessary information were supplied and papers shown to the Officer of the Railway Department in the locality. The Divisional Estate Officer informed the Chief Estate Officer of the Bangladesh Railway that the bonafides of Jinardi Union Unnayan Parishad was established by an inquiry. Thereafter on 9-1-81 the Chief Estate Officer in his letter to the Secretary of the Unnayan Parishad communicated the decision of the Railway Administration to transfer 12 acres of land in favour of the Unnayan Parishad on payment of Taka 35,000.00 per acre, the total amount being Taka 4,20,000.00. Accordingly the plaintiffs deposited the entire amount through separate bank drafts. This was followed by delivery of possession by the Railway authorities to the plaintiffs who raised a portion of the said land with earth and erected CI tin-shed thereon for the purpose of setting up an industry, On the prayer of the plaintiffs the Government in the Ministry of Textiles under Memo dated 2-7-81 conveyed their sanction for setting up a spinning mill with a capacity of 12,500.00 spindles, but as the Railway administration delayed in the execution and registration of the lease deed in spite of payment of full consideration amount for the land in question, the Unnayan Parishad faced difficulties in implementing the project. The plaintiffs sent several reminders to the defendants for getting a deed of lease executed and registered by them but to no avail. Hence the suit.
3. The appellant contested the suit by filing a written statement in which it was stated, inter alia, that the application of the plaintiffs to the Secretary, Ministry of Railways was forwarded to the Secretary. Railway Board to let the Government know the position in the matter and further to take necessary action. The matter was inquired into by officers of the Railway at lower level on whose recommendation, the Chairman of the Railway Board agreed to the proposal of the plaintiffs to settle the suit land on lease but subsequently it was detected that transfer of Government land to a private party was not legal and regular and in direct violation of the rules of the Government Land Acquisition Manual as well as section 17 of the Acquisition and Requisition of Immoveable Property Ordinance, 1982. In the circumstances the Railway Administration could not take any further steps to finalise the matter about the transfer of the suit land to the plaintiffs.
4. It was also asserted that an enquiry was conducted by the Co-ordination and Control Cell of the CMLA on the above issue and the case was referred to the Ministry of Land Administration and Land Reforms Division of Government of Bangladesh. The Additional Director of the Co-ordination and Control Cell by his letter dated 26-7-83 communicated the decision of the Ministry of Land Administration and Land Reforms saying that the proposed transfer of acquired land by the Railway Administration was in contravention of the provisions laid down in the acquisition manual and, as such, the Railway Administration could not take any further action. No officer of the appellant had made over possession of the suit land to the plaintiffs. They might have trespassed upon and unauthorisedly occupied the Railway’s land without the knowledge of the appellant. The Railway Administration was not legally bound to execute and register any deed of transfer in favour of the plaintiffs and the suit was liable to be dismissed.
5. The learned Subordinate Judge found that the letter from the Chief Estate Officer of the appellant dated 9-1-8 1 (Ext 1(c) agreeing to transfer 12 acres of land in favour of the Jinardi Union Unnayan Parishad (by the Railway Administration) was not at all a valid contract in the eye of law as per section 23 of the Contract Act because the plaintiffs made their proposal to the Government but the Chief Estate Officer of the Bangladesh Railway accepted the proposal on behalf of the Railway Administration and agreed to transfer the land to the plaintiffs; but the Chief Estate Officer or any other person on behalf of the Bangladesh Railway was not the proper authority for transferring the acquired land as per law. The proposal of the plaintiffs ought to have been accepted by the Government of Bangladesh. The Railway Administration had no lawful power or authority whatsoever to enter into such contract. The learned Subordinate Judge further observed that there was no valid and legal contract between the plaintiffs and the defendant. Accordingly the Suit was dismissed by judgment and decree dated 29-8-1985.
6. As already noticed, the High Court Division by the impugned judgment and decree passed in the First Appeal taken by the plaintiff-respondents, set aside those of the learned Subordinate Judge and decreed the suit.
7. Leave was granted to consider (i) whether the High Court Division erred in not holding that Rule 135 of the Land Acquisition Manual was binding upon the appellant since violation of the same would call for a disciplinary action against the employees of the appellant and that the appellant and no capacity to transfer the land to the plaintiff-respondents by overriding Rule 135; (ii) whether the High Court Division erred in law in not considering that the plaintiffs suit for specific performance of contract could not be decreed as it would affect the Government adversely; (iii) whether the alleged contract was in contravention of section 17 of the Acquisition and Requisition of Immoveable Property Ordinance, 1982.
8. Although the learned Advocate for the appellant mainly argued against the validity of the alleged contract which was sought to be enforced relying on rule 135 of the Land Acquisition Manual and section 17 of the aforesaid Ordinance, the crux of the matter is whether the appellant was at all authorised to make any transfer of the acquired land in favour of the plaintiffs. In other words, the question is whether there was a valid and lawful agreement between the plaintiffs and the defendants to be enforced. It is not disputed that the suit land was acquired by the Government as far back in 1911 under the Land Acquisition Act 1894 for the purpose of the Railway. Section 16 of the Act provides that when the Collector has made an award under section 11 he may take possession of the land which shall there upon vest absolutely in the Government free from all encumbrances. The suit land having thus vested in the Government it was the Government alone which could deal with the same if it was no longer required for the purpose originally intended in the manner provided by the rule 135 of the Land Acquisition Manual which is as follows:
“135. All lands which have been permanently acquired for public purposes by Government in any Department or for a Railway, whether by private purchase or compulsory acquisition and which are no longer required for the purposes originally intended, shall be relinquished under the orders of Government in the Administrative Department concerned which will issue instructions to the Government in the Revenue Department for resumption of the lands and for their disposal in the manner hereinafter described, on receipt of these instructions Government in the Revenue Department will issue orders to the Divisional Commissioner for communication to the Collector of the District concerned, in order to give effect to the orders of Government.
Lands acquired for a Municipality, District Board or any other local authority legally entitled to or entrusted by the Government with control or management of any municipal or local funds do not come within the scope of this rule.”
All lands in a Native State which a Railway Company intends to relinquish should be made over to the State through the Political Officer or to any other officer duly authorised in this behalf. In this case the Government in the Political Department and not in the Revenue Department, should be moved to issue the necessary instruction to the Political Officer.
When the Revenue Department is the Administrative Department concerned, the necessary orders for the resumption and disposal of the land relinquished will be issued to the Divisional Commissioner from that Department.
Whether the Rules in the Land Acquisition Manual are administrative guidelines and have got no statutory force as held by the High Court Division is not a very material question in the present case. The material question is whether the Chief Estate Officer of the Railway was authorised under the law to agree to the proposal of the plaintiffs for transfer of the suit land on behalf of the Railway Administration in order to make it binding with the Government. The trial Court found that he had no such authority. Indeed no statutory provision has been referred to by the High Court Division in the impugned judgment which decreed the Suit, providing that the Chief Estate Officer or for that matter the Railway Administration had any authority to transfer any part of the land acquired for it by the Government. The contention of the appellant that the Government alone in the Railway Ministry was competent to enter into the contract with the plaintiffs for transfer or lease of the Government land was met by the High Court Division with reference to the definition of “Railway Administration” in section 3 sub-section (6) of the Railways Act, 1890 which is as follows:
“Railway Administration” or ‘Administration” means the manager of the Bangladesh Railway and includes the Government.”
The High Court Division apparently took the view that since “Railway Administration” included ‘the Government”, anything that was done by the Railway Administration amounted to an action by the Government. The “Railway Administration” having agreed to the proposal of the plaintiffs for transfer of the suit land it was to be treated as an agreement by the Government. This view, on the face of it, cannot be accepted because the definition of the “Railway Administration” as above was applicable with reference to that particular Act and there is nothing in the said Act to show that it is one of the functions of the Railway Administration to make any transfer of the acquired land. The authority which has been given to the Railway Administration under the said Act can be attributed to the government also in view of the aforesaid definition and no further.
9. The other reason given by the High Court Division in support of the alleged contract was that the Government represented by the Secretary, Ministry of Railway although was made defendant No. 1 in the suit did not file any written statement or contested the suit denying the competence of the Railway Board to conclude any such contract for granting lease of the suit land. This reason is equally unacceptable because admittedly the Government was not a party to the alleged contract and, as such, the same could not be enforced against the Government whether it came to contest the suit or not. The question is whether the Government will be bound by the alleged contract made with the Railway Administration. That the Government did not come to contest the suit cannot be a lawful ground for holding that the Government will be so bound unless any provision of law made the Government bound by such contract.
10. Then the last reason given by the High Court Division was that it found substance with the contention of the plaintiffs that the Railway Board having been merged with the Government the contract concluded by the Board was to be treated as one concluded by the Government. There is nothing on record to show whether the Railway Board was merged with the Government before the alleged agreement was made with the plaintiffs nor there is anything to show the terms upon which the alleged merger had taken place. It may be observed that no such case was made out or even suggested to the only witness who came to depose for the appellant.
11. Mr. Syed Ishtiaq Ahmed, learned Advocate for the plaintiff-respondents referred to the plaintiff’s documents, particularly Exts. 1-1(c) and submitted that the Railway Administration had taken the action at the direction of the Government in the Ministry of Railways who informed the Ministry of the action taken and the Ministry had not taken any objection/exception to it. Mr. Ahmed laid emphasis on the fact that the Government of Bangladesh was a party both in the suit and in the appeal before the High Court Division but it neither flied any written statement nor opposed the suit or the appeal. No petition for leave to appeal was filed by the Government against the impugned judgment. On the one hand, the evidence produced shows that the Revenue Officers of the Government demanded and realized land development tax from the respondents for the possession of the land in Suit and on the other hand, the appellant did not prove, though it was within their exclusive knowledge the facts as to how and in which manner the Railway Administration had acted in this matter and in what circumstances the Chief Estate Officer of the Bangladesh Railway who, by no means is a lower level officer conveyed the agreement of the Railway Administration to transfer the lands in suit to the respondents and realized salami. Mr. Ahmed submitted that in the circumstances of the case the High Court Division was right in concluding that there was a competent and valid contract to be enforced.
12. We have already indicated that the reasons given by the High Court Division for passing the decree in favour of the plaintiffs are not sustainable either in law or on facts. Similarly the submissions made by Mr. Ahmed which include partly the reasons of the High Court Division are equally unacceptable. It is very clear that the all important letters from the Chief Estate Officer of the Railway dated 9-1-81 upon which the plaintiffs’ claim for specific performance of contract was based was not approved by the appropriate authority of the Government at any point of time. The land being the property of the Government the Railway Administration could not make any contract with respect to the same as this will plainly offend section 23 of the Contract Act. We thus find no way to support the impugned judgment and decree.
Accordingly, the appeal is allowed without any order as to costs. The impugned judgment and decree passed by the High Court Division are set aside.
Source : 50 DLR (AD) (1998) 150