Bangladesh Vs. Mrs. Anwara Huq

Appellate Division Cases

(Civil)

PARTIES

Government of Bangladesh , represented by DeputyCommissioner, Dhaka ………………..Appellant

-Vs-

Mrs. Anwara Huq and others ………………………………..Respondents

JUSTICE

Md. Ruhul Amin. J

M.M .Ruhul Amin. J

Md.Talfazzal Islam. J

JUDGEMENT DATE: 25th May, 2004

The Land Acquisition Act, 1894. Section 23,24 & 3(a). The said (Act 1948) Section 2 (III).

Assessment of compensation to be awarded for the acquired land, but there is nothing therein that in awarding compensation for the acquired land only land is to be taken into consideration and that benefit arisen out it, things attached to the earth or permanently fastened to anything attached to the earth shall not be taken into consideration. The learned Additional Attorney General in view of the definition given in the Act felt difficulty to assail the Award on the ground of allowing 15% rather compensation in respect of structures, excavation, tank, trees, recurring income in respect of house rent, fruits, crops and fish etc. In our view the Arbitrator in assessing compensation for the aforesaid matters was quite correct since there is nothing in the property Act, 1948 and in the land Acquisition Act, 1894 in assessing compensation for acquired land statutory compensation is to assessed only for the land, statutory compensation is to be assessed for the benefits arising out of the land, things attached to land and permanently fastened to anything attached to the earth or in other words the compensation is to be assessed both for the movable and immovable properties ……………..…(5)

Civil Appeal No. 67 of 1998 (From the judgment and order dated August 14, 1994 passed by the High Court Division in First Miscellaneous Appeal No.476 of 1991)

A.J.Mohammad AH , Additional Attorney General, instructed by B.Hossain, Advocateon-record ……………………For the Appellant

Md. Aftab Hossain, Advocate-on-Record………………. For the Respondents

JUDGMENT

1. Md Ruhul Amin, J :- The appeal ,by leave is against the judgment and order dated August 14,1994 of a Division Bench of the High Court Division in first Miscellaneous Appeal No. 476 of 1991dismissing the same . The appeal was filed against the judgment and order dated April 4, 1991 passed by the Court of subordinate Judge (Arbitrator) in Arbitration Case No .1 of 1987 making award of Tk.37,23,664.41/- and thereupon deducting the amount of Tk.3,69,786.22/- already received by the Respondents on protest made the final order for payment of Tk.33,53,878.19/-.

2. Facts, in short, are that Respondents’ property measuring 5.4250 acres with structures;

orchard, tank etc. were acquired under L.A. Case No. 13 of 1972-73. The Government

assessed the compensation of the land, structures, and trees, tank act. The Respondents

received the compensation so assessed on protest. Thereafter they failed Arbitrating Case

claiming in all Tk.71,84 366/-. The learned subordinate Judge (Arbitrator) upon hearing the parties made the award of Tk.37,23,664.41/- in all .The Government as against the said award filled the appeal .First Miscellaneous Appeal (award ) No.476 of 1991.It was contended before the High Court Division that the Arbitrator was in error in allowing 15% statutory compensation in respect of structures, tank, excavation of tank, house rent, fruits, fish etc. other then the land although the Arbitrator ought to have allowed statutory compensation in respect of the land only as Law provides 15% statutory compensation in respect of the land alone. The High Court Division rejected the said contention and dismissed the appeal upon observing “the word” land” for the purpose of compensation does not mean the land Simplicities but all types of immovable properties acquired by the Government. The object of the legislature is to give some benefit to the persons who have lost their lands by acquisition. Therefore we must not narrow the scope of this benefit, but extend the benefit to the owners of the acquired properties, as it will then fit with

the object of the legislator more fully. This is the rule of beneficial construction.”

3. Leave was granted to consider the submissions that the learned Arbitrator was wrong

in allowing 15% statutory compensation on all items except land, such as structures, tank,

excavation, house rent, fruits, fish etc. which was in violation of section of sections 23 and 24 of the Land Acquisition Act, that the High Court Division wrongly rejected the objection of the state on the above point upon a misconception of Law and mis-interpretation of the word ‘land’ as occurring in the aforesaid sections and further wrongly relying upon what has been called, “the Rule of beneficial construction”.

4. From the materials on record it appears that the land of the Respondents was acquired under the provision of the Emergency Requisition of property Act, 1948. The said Act in Section 2 (III) definition of the property has been given as follows: “‘The property means any movable and immovable property”. The Government acquired property-measuring

5.4250acres with structure etc. so it acquired both movable and immovable property

of the Respondents. In section 3(a) of the land Acquisition Act, 1894 ‘land’ has been defined as follows: “The expression “land” includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth”.

So the definition of land, as given in the Act is not limited to land alone but it includes benefit arising out of it and things attached to earth and things permanently fastened to anything attached to the earth.

5. The provision of Section 23 of the land Acquisition Act, 1894 relates to the matters to

be taken into consideration in determining the amount of compensation to be awarded for the land acquired and the provision of section 24 relates to the matters to be neglected in determining compensation. The provision of the aforesaid sections relates to the matter of

assessment of compensation to be awarded for the acquired land, but there is nothing therein that in awarding compensation for the acquired land only land is to be taken into consideration and that benefit arisen out it, things attached to the earth or permanently fastened to anything attached to the earth shall not be taken into consideration. The learned Additional Attorney General in view of the definition given in the Act felt difficulty to assail the Award on the ground of allowing 15% rather compensation in

respect of structures, excavation, tank, trees, recurring income in respect of house rent, fruits, crops and fish etc. In our view the Arbitrator in assessing compensation for the aforesaid matters was quite correct since there is nothing in the property Act, 1948 and in the land Acquisition Act, 1894 in assessing compensation for acquired land statutory compensation is to assessed only for the land, statutory compensation is to be assessed for the benefits arising out of the land, things attached to land and permanently fastened to anything attached to the earth or in other words the compensation is to be assessed both for the movable and immovable properties.

6. The learned Additional Attorney General has not disputed that 15% statutory compensation is allowable under the Law in respect of the matters as cover by the definition of property in the Acts. As we have already found that land does not mean the land simplicities, but also includes benefit arising out of the land things attached to the earth or permanently fastened to anything attached to the earth and in that state of the matter in assessing statutory compensation @ 15% in respect of the acquired land the

arbitrator has not committed any error of Law. In view of the discussions made hereinabove we do not find any merit in the appeal. Accordingly the appeal is dismissed with costs.

Ed

Source: I ADC (2004), 280

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