Appellate Division Cases
(Civil)
PARTIES
Bangladesh represented by the Secretary Ministry of L.A. & L.R. and ors. ………. Appellants.
-VS
M/S. Commercial Trust of Bangladesh Ltd. and ors ………………….Respondents.
JUSTICE
Shahabuddin Ahmed CJ
M.H. Rahman J
A.T.M. Afzal J
Latifur Rahman J
JUDGEMENT DATE: 4th January 1994.
Section 8B of the Emergency Requisition Act, 1948
Abdul Mannan V. Ministry of Land Administration and Land Reforms, Govt. of
Bangladesh 27 DLR 597
The Ministry passed the impugned order for derequisition “for avoiding legal complication”. Legal complication has not been explained or elaborated in the impugned order. It appears that soon after the order of derequisition dated July 20, 1983, the owner got the land back and transferred the same to different persons. What ever may be the legal complication there, it was the appellants’ own seeking. The order of derequisition was passed in violation of Section 8B of the Emergency Requisition Act, 1948. After Compensation is paid for acquisition of land no order can be made for derequisition of such acquired land.…………….(10)
Apart from the violation of Section 8B of the Act the impugned order also suffers from another infirmity. The impugned order was passed by the Ministry without giving any hearing to respondent No.l. The apellants’ contention that respondent No.l was given a hearing during on-the spot-enquiry by the Deputy Land Reforms Commissioner will not be a sufficient compliance of the principle of natural justice, because the impugned order was passed not by the Deputy Land Commissioner, but the Ministry. Respondent No.l did not get any opportunity to place his case and his views on the enquiry report of the Deputy Land Reforms Commissioner………. (11)
Civil Appeal No. 70 of 1990 (From the Judgment and Order dated June 7, 1988 passed by the High Court Division, Dhaka in Writ Petition No. 162 of 1985).
B. Hossain, Deputy Attorney General, instructed by M.R. Khan, Advocate-on-Record (absent)…………………. for the Appellants
Moksudur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocateon-
Record…………………. for Respondent No. 1.
Respondent Nos. 2-17……………… Not Represented.
JUDGMENT
1. M.H. Rahman J : This appeal by leave, at the instance of the Government, is directed
against the judgment and order dated June 7,1988 passed by the High Court Division in Writ Petition No. 162 of 1985 striking down an order of derequisition.
2. Respondent No. 1, M/S Commercial Trust of Bangladesh, a Private Limited Company, filed that writ petition calling in question, the memo dated June 4, 1985 of the Ministry of Land Administration and Land Reforms upholding the order of derequisition of 1.182 acres of land which was earlier resumed by its order dated July 10, 1983.
3. For the puipose of setting up a coconut oil, coir and other allied industries at Barisal
respondent No.l was settled with 8.30 acres of Government Khash land and necessary
lease deed was executed and registered on November 2,1962. As respondent No.l
required some more lands it moved the Government and in L.A. Case No. 5 of 1959-1960, 1.24 acres of land was requisitioned and acquired for the respondent-company out of which .06 acres was later on derequistioned. After finally acquiring 1.182 acres by a gazette notification dated December 2, 1963 and a deed of transfer was executed and registered between the respondent company and the Government on September 24, 1970. The company could not make much headway in establishing the proposed industries because of litigations over the land in question.
4. Tarini Kanta Das, the predecessor-ininterest of respondents No. 2 to 5. was the original owner of 8 annas share of the acquired land. He filed several applications to the Additional Deputy Commissioner (General) Barisal on different dates, the last
one being on September 25, 1982, alleging that respondent No.l used the acquired land
for purposes other than that for which it was acquired. Respondent no.l filed written
objection to the same, but the Additional Deputy Commissioner without giving any
hearing to the company sent a proposal to the Ministry on June 13, 1980 for derequisition
of the said 1.182 acres of land, keeping the written objection with him. The Ministry by its memo dated July 20, 1983 informed the Deputy Commissioner, Bakergonj that the Government had taken a decision on July 10, 1983 for resumption of the land acquired under L.A. Case No. 5 of 1959-1960. On October 18, 1983 possession of the said land was handed over to the owner Tarini Kanta Das. Respondent No.l. thereafter, filed an application before the Joint Secretary of the Ministry for review of the exparte order dated July 10, 1983. The review petition was contested by Tarini Kanta Das. After finding that the resumption of the transferred land could only be made under clause 7 of the deed of transfer, and that when the owner of the land had already been paid compensation long ago there could not be any order of derequisition the Joint Secretary by his order dated October 15, 1984 revised the order dated July 10, 1983 and cancelled the earlier order dated July 20, 1983. The Deputy Commissioner, Barisal, was also directed to hand over possession of 8.30 acres of khas land that had earlier been settled with respondent No.l. That decision was endorsed by the Secretary of the Ministry.
On a further review petition by Tarini Kanta Das, the Ministry without giving any opportunity to the respondent, by impugned order dated June 4, 1985 upheld the order of
derequisition of the acquired land on the ground of avoiding legal complications.
4. The Government’s case is that from April 2, 1963 to October 18, 1983 the respondent
company did not use the land for the purpose for which it was acquired, and, hence,
by giving notice to the company and upon hearing a decision was taken to resume the
land. The impugned order was passed on the basis of local enquiry made by the Deputy Land Reforms Commissioner, Khulna Division before whom the respondent company was represented by its Governing Director.
5. After referring to clause 7 of the lease deed in respect of the acquired land which
provided for re-entry of the Government upon the acquired land under certain circumstances, the High Court Division held that the impugned order cannot stand
because (1) the respondent company was never given any notice of resumption under
clause 7 of the lease deed, (2) the respondent company was not given an opportunity to establish its case either before the Additional Deputy Commissioner, Barisal or before the Ministry when it took the decision to resume land on July 10, 1983, and (3) the Government illegally allowed a stranger, Tarini to act and operate as a party to the resumption proceeding between the lessor and the leasee.
6. The appellant’s first contention is that the High Court Division was wrong in interpreting the notice dated September 15, 1978, issued from the office of the Deputy
Commissioner, Barisal to show cause “why the matter should not be referred to
Government for taking necessary action” for non untilisation of the acquired, land for the purpose for which it was acquired, as a notice not to show cause against resumption. The next contention is that the High Court Division was wrong in holding that there was a violation of the principle of natural justice in the making of the impugned order in as such as it was not noticed that upon the representation of Tarini Kanta Das to the Secretary of the Ministry concerned for re-consideration of the decision of the Joint Secretary, there was a spot-enquiry by the Deputy Land Reforms Commissioner, Khulna Division, after notice to the parties, who not only heard Mr. Md. Hayder Ali, Governing Director of respondent No. 1, but also examined the papers and documents produced before him and then submitted his report to the Ministry on the basis, of which the impugned order was passed.
7. With regard to the notice for resumption the High Court Division correctly held:
“This notice was issued from the office of the Deputy Commissioner. Bakerganj. There is no specific notice requiring the petitioner-company to show cause as to why the acquired land should not be resumed. In order to exercise the power of resumption given under clause 7 of the lease deed, a clear, specific, open and unambiguous notice must be issued to the lessee that the Government intends to resume the acquired land.” The notice (annexure12) only requires the petitioner-company to show cause why the matter should not be referred to the Government for taking necessary action.”
8. Respondent No.l’s allegation that without giving any hearing and keeping the written objection of the company with him, the Additional Deputy Commissioner sent the proposal for derequisition to the Ministry on June 13, 1983 have not been denied by the appellants in their affidavit-in-opposition before the High Court Division. Again, there is nothing on record to indicate that the resumption proceeding was completed by strictly following the terms of clause 7 of the deed of transfer as to re-entry and payment of compensation to the requiring body on such re-entry.
9. In substance the appellants have no case of resumption. They did not act on the
ostensible reason, namely, that the requiring body was suing the acquired land for purposes other than for which the land was acquired. The appellants did not stick to that
stand. The Ministry did not interfere with the Joint Secretary’s order dated October 15, 1984 directing the Deputy Commissioner, Barisal to hand over possession of 8.30 acres of khas land, settled earlier, to respondent No.l.
10. The Ministry passed the impugned order for derequisition “for avoiding legal
complication”. Legal complication has not been explained or elaborated in the impugned order. It appears that soon after the order of derequisition dated July 20, 1983, the owner got the land back and transferred the same to different persons. What ever may be the legal complication there, it was the appellants’ own seeking. The order of derequisition was passed in violation of Section 8B of the Emergency Requisition Act. 1948. After Compensation is paid for acquisition of land no order can be made for derequisition of such acquired land. This was clearly pointed by the Joint Secretary in his order dated October 15, 1984 and that order was endorsed by the Secretary of the Ministry. With regard” to section 8B of the Act of 1948 it was held in Abdul Mannan V. Ministry of Land Administration and Land Reforms, Govt. of Bangladesh 27 DLR 597: “The words limiting the power of the Government to withdraw any property from acquisition are contained in the words “at any time before the payment of compensation”. If the Govt. had ihe power to withdraw any property from acquisition after compensation had
been made there would be no finality to the acquisition proceedings nor any sanctity would attach to the Government order acquiring any property. Any persons who might have acquired any right to any property after the acquisition of such property by the
government and after compensation has been paid for such acquisition can be deprived of it as there would be no sanctity attached to such right. We think that for these reasons the Govt’s choice to withdraw any property from acquisition as conferred by section 8B
of the Act must be exercised before the payment of compensation and not after it. The second limitation is that such order of withdrawal must be done by a notification published in the official gazette.” One of us, Shahabuddin Ahmed J, as he was then, was a party to that decision.
11. Apart from the violation of Section 8B of the Act the impugned order also suffers
from another infirmity. The impugned order was passed by the Ministry without giving
any hearing to respondent No. 1. The apellants’ contention that respondent No.l was
given a hearing during on-the spot-enquiry by the Deputy Land Reforms Commissioner will not be a sufficient compliance of the principle of natural justice, because the impugned order was passed not by the Deputy Land Commissioner, but the Ministry. Respondent No.l did not get any opportunity to place his case and his views on the enquiry report of the Deputy Land Reforms Commissioner.
12. For these reasons, different from those given by the learned Judges of the High
Court Division, we uphold the order appealed against. The appeal is dismissed with costs.
Ed.
Source: IV ADC (2007), 331