Chairman, T& T Board Vs. Md. Rafiqur Gaznavi

Appellate Division Cases

(Civil)

PARTIES

Chairman, T& T Board, Telejojagaj Bhavan, 37/5, Eskaton Garden, Ramna, Dhaka …………………………………………Appellant

(in all the appeals)

-Vs-

Md. Rafiqur Gaznavi and others Respondent (inC.A. No. 85 of 2000) Abdul Quddus and others Respondent (in C.A. No. 86 of 2000)

Sobjan Bibi and others Respondent (in C.A. No.87of2000)

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

JUDGEMENT DATED : 17th August, 2005.

The (Emergency ) Requisition of property Act, 1948 (Act 13 of 1948), Section 5(7).

In case authorities take decision to requisition and acquire the land of the writ petitioners then the authority would be competent to do the same in accordance with the provision of the law relating to the matter of acquisition and requisition of land in force (2)

The contention that the facts i.e. records of right in respect of the land claimed by the writ-petitioners stand in their names and they are paying rent and that they are in possession of part of the land claimed demonstrate title of writ petitioners and as such authority cannot deprive the writ petitioners of the right to the property in question except due process of law is of no merit. The preparation of the revenue records in the name of the writ-petitioner-Respondents is of no useful purpose to them since the land claimed by them stood acquired as back as in February 14, 1950 and that possession thereof was handed over to the requiring body i.e. the appellant (17)

Civil Appeal Nos. 85-87 Of 2000

(From the Judgment and Order dated June 2,1998 passed by the High Court Division in Review Petition Nos. 4-6 of 1998).

Md. Nawab Ali, Advocate-onrecord For the Appellant (in all the appeals) Ami rid Islam, Senior Advocate, instructed by Aftab Hossain, Advocate-onrecord For Respondent

Nos. 1-79 (in C.A. No. 85 of 2000) and For Respondent Nos. 1-19 (in C.A. No.86 of 2000) For Respondent Nos. 1-46 (in C.A. No. 87 of 2000).

Not represented Respondent Nos. 80-85 (in CA.No.85 of 2000) and Respondent Nos. 20-24 (in C.A.No.86 of 2000) and Respondent Nos.47-52 (in CA.No.87 of 2000)

JUDGMENT

1. Md. Ruhul Amin J:- These appeals (3) by the writ Respondent No. 5, by leave, are against the order dated June 2, 1998 passed in Review Petition Nos. 4-6 of 1998, arising of Writ Petition Nos. 1170, 1171 and 1172 of 1995, rejecting the review petitions. The review petitions were filed against the judgment dated June 10, 1996 making the Rules obtained in the aforementioned writ petitions absolute and thereupon declaring that the land measuring 29.99 acres were not acquired in L.A. Case No. 17 of 1957-58 or under any other case or any other manner whatsoever and further directing the writ-Respondents to release the land of the writ-petitioners upon demarcating the same and to handover possession of the land within 4 months from the date of receipt of the copy of the judgment and in case of failure on the part of the authority the writ-petitioners would be at liberty to take appropriate legal action against the writ-Respondents.

2. It may be mentioned the High Court Division while making the Rule absolute observed that in case authorities take decision to requisition and acquire the land of the writ-petitioners then the authority would be competent to do the same in accordance with the provision of the law relating to the matter of acquisition and requisition of land in force.

3. Facts in short, are that the writ-petitioners in the aforementioned writ petitions approached the Ministry of Land Administration and Land Reforms seeking release of more or less 31 acres of land of mouza Mohakhali of Police Station Gulshan claiming to be the owners of the said land but unauthorisedly possessed by the T&T authority although there is no Gazette Notification for the acquisition of the said land. The Ministry of land Administration and Land Reforms called for a report from the office of the Deputy Commissioner, Dhaka. The Additional Deputy Commissioner (L.A.) reported to the Ministry that 139.01 acres of land of mouza Mohakhali, Karail and Lalasarai was acquired by L.A. Case No. 17 of 195758 and possession was handed over to the requiring body i.e. T&T but the T&T Board claimed that in total 170.47 acres of land were acquired out of which 90 acres have been given on 6.9.1989 to the Ministry of Works, that several persons are craiming more or less 31.46 acres of land, that T&T Board was called upon to furnish paper in support of their claim of 170.47 acres of land but they have only supplied the Gazette Notification showing acquisition of 139.01 acres of land, that T&T Board was asked by several letters to cooperate with the authority to demarcate the boundary of acquired land but they did not turn up. Finally the Additional Deputy Commissioner (L.A.) wrote to the Ministry that 31.46 acres of land are beyond the land acquired in L.A. Case No. 17 of 1957-58 and that the said land although not within the acquired land but is in the possession of the T&T Board and that there is an order to handover part of the said land to the Ministry of Works. On receipt of the report of the Additional Deputy Commissioner (L.A.) Dhaka a Joint Secretary of the Ministry of Land by a detail report disposed of the representation of the writ-petitioners upon observing that T&T Board is in possession of 170.47 acres of land but in support thereof the T&T Board did not furnish any paper. It was also observed in the report of the Joint Secretary of the Ministry of Land that 139.01 acres of land were acquired in L.A. Case No. 17 of 1957-58 and that by no other L.A. Case any further land was acquired. The Joint Secretary finally observed since the Government organization is in possession of the land and that as the matter is complicated one as such the party may approach the appropriate Court for decision in respect of 29.99 acres of land as claimed by the petitioners.

4. Thereupon writ-petitioner-Respondents in the respective appeal filed the aforementioned writ-petitions stating, inter alia, that the lands shown in the schedule attached to the respective writ petitions are their ancestral property, that they inherited the lands claimed by them and that record of rights have been prepared in their names, that in L.A. Case No. 17 of 1957-58 land measuring 139.01 acres of mouza Mohakhali, Karail and Lalasarai were acquired and possession thereof was handed over to the T&T Board, that except 139.01 acres of land no other land was acquired in L.A. Case No. 17 of 1957-58, that although initially 170 acres of land was requisitioned, but land beyond 139.01 acres were derequisitioned, but possession of the same was not given back to the owners, that as the land measuring 31 acres being unauthorisedly possessed by the T&T Board the writ-petitioner-Respondents in the respective appeals made representation to the Ministry of Land on September 28, 1993 seeking release of the land more or less 31 acres and thereupon Ministry called for a report from the office of the Additional deputy Commissioner (L.A.) Dhaka and it was reported by the Additional Deputy Commissioner that 31.46 acres of land is beyond the land acquired by initiating L.A. Case No. 17 of 1957-58 and on receipt of the report from the office of the Additional Deputy Commissioner (L.A. )Dhaka a Joint Secretary of the Ministry of Land Administration upon hearing the writ-petitioner-Respondents by a detail report dispose of the prayer for release upon observing that the matter being complicated one the writ-petitioner-Respondents should approach the competent Court for the redress of their grievance. Thereupon the writ-petitioner-Respondents in the respective appeals filed writ petitions seeking declaration that the land shown in the schedule attached to the respective writ petitions were not acquired in L.A. Case No. 17 of 1957-58.

5. It may be mentioned the writ petitioners sought relief in the respective writ petitions in respect of the land of mouza Mohakhali primarily contending that the land claimed by them was not acquired in L.A. Case No. 17 of 1957-58. The writ petitioners in support of their claim of release of the land more or less 29.99 acres and to substantiate their contention of acquisition of 139.01 acres of land in L.A. Case No. 17 of 1957-58 annexed the Gazette Notification dated October 6, 1966. The High Court Division on consideration of the report of the Additional Deputy Commissioner (L.A.) dated 9.11.1993 addressed to the Secretary, Ministry of Land and the detail report of the Joint Secretary of the Ministry of Land dated 17.10.1994 along with Gazette Notification dated October 6, 1966 held that land measuring 139.01 acres was finally acquired in L.A. Case No. 17 of 1957-58 although initially 170 acres of land was requisitioned and that Government failed to substantiate by producing any paper that land measuring 29.99 acres as claimed by the writ petitioners was acquired and that requiring body is legally possessing the same.

6. Respondent Nos. 5, Chairman, T&T Board and 6, Chief Engineer, PWD appeared by filing vokalatnama. The said Respondents filed affidavit-in-opposition. It was their case that 170 acres of land was requisitioned and that there was Gazette Notification for acquisition of 139.01 acres of land and that in respect of the rest quantity of the land the then Post Master General placed Tk. 66,000/- at the disposal of the requisitioning authority for the purpose of the acquisition of the said quantity of land for their utilization.

7. Since no Gazette Notification was placed before the High Court Division showing acquisition of 29.99 acres of land the said Division did not accept the aforesaid contention of the Respondent Nos. 5 and 6 and that the said land was acquired for the requiring body i.e. Post Master General. In the afore state of the matter the High Court Division made the Rules obtained in the respective writ-petitions absolute and thereupon made the direction as stated hereinbefore. It appears that as against the judgment in the writ petitions, the writ Respondent No. 5 filed petitions for leave to appeal but the same were dismissed on the ground of limitation.

8. Thereafter the appellant filed 3 review petitions i.e. Review Petition Nos. 4-6 of 1998 as against the judgment of the High Court Division in Writ Petition Nos. 1170-1172 of 1995 stating amongst others that valuable document i.e. notification No. 901-Reqn dated February 14, 1950 made under section 5(7) of the (Emergency) Requisition of Property Act, 1948 (Act 13 of 1948) published in the Dhaka Gazette on February 23, 1950 at page 126 finally acquiring 31.46 acres of land (by correction of the notification No. 901 wherein total quantity of land was mentioned 29.77 acres) could not be gathered and discovered at the time of hearing of the writ petition and as such could not be placed before the Court and that the said Gazette Notification having been discovered the review petitions are being filed by the writ Respondent No. 5 i.e. appellant herein.

9. Although the writ-Respondent No. 5 filed affidavit-in-opposition in the writ petitions but at the time of hearing of the writ petitions the learned senior Counsel represented to the Court that he had no instruction from his client and thereupon learned Counsel did not appear for the Respondent No. 5 and that the other Advocate who filed the vocalatnama was absent at the time of hearing of the writ petition and as such the writ petitions were disposed of ex-parte as against the writ-Respondent No. 5.

10. The High Court Division while heard the review petitions observed that the petition for leave to appeal filed by the writ-Respondent No. 5 against the judgment of the High Court Division in the writ petitions were dismissed on the ground of limitation and as such petitions for review of the judgment against which petitions for leave to appeal were filed but dismissed can not be entertained. The High Court Division also refused to entertain the review petition on the ground of delay and that because of absence of the explanation as to how the delay occurred. On the aforesaid findings rejected the review applications.

11. Leave was granted to consider the contention that the official Gazette containing notification No. 901-Regn dated February 14, 1950 and the official Gazette Notification number 7068-Regn dated August 15, 1951 in respect of acquisition of 31.46 acres of land in L.A. Case No. 17 of 1958-59 having been placed before the High Court Division through the Review Petition Nos. 4-6 of 1998 clearly showing conclusiveness as regard acquisition of the lands the said Division ought to have discharged the Rules on reviewing the judgment dated June 10, 1996 passed in Writ Petition Nos. 1170-1172 of 1995, that total land acquisitioned for the Post, Telegraph and Telephone Department by the erstwhile Government of East Pakistan being admittedly 170.47 acres of land and the same being in possession of the requiring body ever since and are being used for various needs of the Bangladesh T&T Board including expansion and modernization of telecommunication technology in the Country, loss of possession of any part of such land will cause irreparable injury and loss to the Board, that title to the lands in question i.e. 31.46 acres having vested with the Government upon publication of the Notification under section 5(7) of the (Emergency) Requisition of Property Act, 1948 and the official Gazette Notification having been so published in the official Gazette, the lands are not liable to be released/returned to the writ-petitioners.

12. The learned Advocate-on-record appearing for the appellant in the respective appeals retargeted the contentions upon which leave to appeal was sought for and ultimately leave was granted.

13. It may be mentioned judgment in the writ petitions was made primarily on the basis of reports, as mentioned hereinbefore, of the Additional Deputy Commissioner (L.A.), Dhaka and the report of the Joint Secretary, Ministry of Land as well as the Gazette Notification dated October 6, 1966. In the reports and in the Gazette Notification there is mention of acquisition of 139.01 acres of land and from the report of the Joint Secretary, Ministry of Land it is seen that the said land was acquired in L.A. Case No. 17 of 1957-58. It is worth mentioning that the report of the Additional Deputy Commissioner (L.A.) Dhaka and of the Joint Secretary, Ministry of Land are totally silent about the acquisition of 31.46 acres of land in L.A. Case No. 17 of 1948The 49 by the Notification No. 901 dated February 14, 1950 published in the official Gazette on February 23, 1950.

14. The appellant claimed that Government acquired for the T&T Board total quantity of 170-47 acres of land and the Board is in possession thereof. As against the claim of appellant the writ-petitioner-Respondents initially represented to the Additional Deputy Commissioner (L.A.), Dhaka and to the Ministry of Land seeking return of more or less 31 acres of land contending that the said land although not acquired for the T&T Board but the said Board is occupying the same to the prejudice of the writ-petitioner-Respondents. The Ministry having had received the representation of the writ-petitioner-Respondents seeking return of their land more or less 31 acress called for a report from the office of the Additional Deputy Commissioner (L. A.), Dhaka and the Office of the Additional Deputy Commissioner (L.A.), Dhaka reported that 31.46 acres of land were not acquired in L.A. Case No. 17 of 1957-58.

15. The Ministry of Land on receipt of the said report after hearing the writ-petitioner-Respondents and the T&T Board placing reliance on the report of the Additional Deputy Commissioner (L.A.) dated 9-11-1993 and on perusal of the record of the L.A. Case No. 17 of 1957-58 as well as the Gazette Notification dated October 6, 1966 took the view that 139.01 acres of land was acquired in the aforesaid L.A. case for the requiring body i.e. T&T Board and that 29.99 acres of land, although is under the control of the T&T Board but was not acquired for the said requiring body, but instead of making order for return of the land to the writ-petitioner-Respondents directed them to get the matter resolved through Court.

16. The case of the writ-petitioner-Respondents was that land measuring more or less 31 acres was not acquired land and that in L.A. Case No. 17 of 1957-58 quantity of land acquired is 139.01 acres but the T&T Board unauthorisedly has kept the said land i.e. more of less 31 acres of land of the writ-petitioners in its control. It may be mentioned the writ petitioners got the land claimed by them recorded in their names in the S.A. record and paying rent.

17. The moot question in the appeal whether 31.46 acres of land of mouza Mohakhali in Police Station Gulshan claimed by the writ-petitioners was acquired at any time. The appellant in support of his claim that 31.46 acres of land of mouza Mohakhali claimed by the writ-petitioners were acquired in L.A. Case No. 17 of 1948-59 and that acquisition notice No. 901 dated February 14, 1950 under section 5(7) of the (Emergency) Requisition of Property Act, 1948 was published in the Dhaka Gazette at page 126 on February 23, 1950 and the said fact of acquisition is evidenced by the Gazette Notification No. 7068 dated August 15, 1951 making correction as regard the quantity of land as 31.46 acres which in the earlier notification of 14th February, 1950 was mentioned as 29.77.

18. The learned Counsel for the writpetitioner-Respondents submits that the Gazette Notification No. 901 dated February 14, 1950 cannot be considered conclusive as to the fact of acquisition of 31.46 acres of land of mouza-Mohakhali, Police Station- Gulshan as claimed by the writ-petitioner-Respondents since in the affidavit-in-opposition of the writ Respondent No. 5 as well as before the Joint Secretary, Ministry of Land it was the case of the T&T Board that by the Gazette Notification of October 6, 1966 relating to L.A. case No. 17 of 1957-58 land measuring 170 acres were acquired but now the T&T Board is taking the stand that 31.46 acres of land of mouza- Mohakhali was also acquired in L.A. Case No. 17 of 1948-49 by the requisition notice No. 901 of February 14, 1950.

19. The learned Counsel in support of his contention that Gazette Notification No. 901 dated February 14, 1950 relied upon by the appellant cannot be considered as the conclusive one as regard the fact claimed by the T&T Board that 31.47 acres of land was acquired in L.A. Case No. 17 of 194849 placed reliance on the letter of the Assistant Controller of the Government printing press, Tejgaon, Dhaka informing in reply to the letter addressed to him by the learned Advocate of the writ-petitioner-Respondents that no Gazette Notification is available with them about the acquisition of 31.46 acres of land of mouza Mohakhali and the information supplied on 22.9.1996 by the Land Acquisition Department of Dhaka Collectorate to the effect that the L.A. Case No. 17 of 1948-49 relates to the acquisition of land of mouza Borochar in Dhaka district for the railway for the purpose of brick field at Zinardi.

20. The letter written by the Assistant Controller of the Government printing press reflects carelessness of the said official since notice acquiring 31.46 acres of land of mouza Mohakhali was published in the Dhaka Gazette on February 23, 1950. The said Gazette Notification has been located by us from our library. Suffice it to say information supplied on 22.9.1996 by the Land Acquisition office of the Dhaka Collectorate through the information slip the same is of no avail to the Respondents in the face in the Gazette Notification No. 901 dated February 23, 1950 at page 126, reflecting the fact of acquisition of the land measuring 31.47 acres of mouza Mohakhali P.S. Gulshan and from the letter of the Additional District Magistrate (L.A.) Dhaka dated 23.11.1997 at page 134 of the paper book of Civil Appeal No. 86 of 2000 and the paper at page 135 of the paper book of the said appeal. From the aforesaid papers it is seen that land measuring 31.47 acres of mouza Mohakhali was acquired in L.A. Case No. 17 of 1948-49. There is no reason to take any view other than correctness of the fact reflected in the said papers in the background of the Gazette Notification No. 901 dated February 14, 1950 published in the Dhaka Gazette on February 23, 1950, Gazette notification No.7008 Regn dated August 15, 1951 and the Gazette Notification dated October 6, 1966 in total land, inclusive of the land prayed for return by the writ petitioner, measuring 170.47 acres were duly acquired for the requiring body i.e. T&T Board.

21. The learned Counsel for the Respondents submitted that in view of conflicting materials about acquisition of 31.46 acres of land of mouza Mohakhali claimed by the writ-petitioner-Respondents this Court should look into the record of the L.A. case of he Land Acquisition office of the Dhaka Collectorate and that because of the conflicting materials i.e. the letter of the Assistant Controller of Government Printing Press and the information slip supplied by the Land Acquisition office of the Dhaka Collectorate the matter should be adjudicated by the Civil Court. The contentions made is not well founded because of the fact of publication of the notice in the official Gazette as referred to earlier showing acquisition of the land claimed by the writ-petitioner-Respondents. It has been submitted by the learned Counsel for the Respondents since the review petitions were filed on furnishing photo copy of the so called Gazette notification No. 901 dated February 14, 1950 showing acquisition of 31.47 acres of land and that original of the Gazette Notification as claimed to have been retained in the record of the L.A. Case No. 17 of 1948-49 having not been placed before the Court and that in view of the letter written by the Assistant Controller of the Government Printing Press, Tejgaon and the information slip issued by the Land Requisition and Acquisition Department of the office of the Dhaka Collectorate it cannot be said there was Gazette Notification under section 5(7) of the (Emergency) Requisition of Property Act, 1948 acquiring the land measuring 31.47 acres of mouza Mohakhali i.e. the land claimed by the writpetitioner-Respondents. It has already been mentioned that we have found out the notification No. 901-Regn dated February 14, 1950 published on February 23, 1950 in the Dhaka Gazette at page 126 from our Library and in that state of the matter there is no reason to say that the fact of acquisition was not conclusively established. The contention that the facts i.e. records of right in respect of the land claimed by the writ-petitioners stand in their names and they are paying rent and that they are in possession of part of the land claimed demonstrate title of writ petitioners and as such authority cannot deprive the writ petitioners of the right to the property in question except due process of law is of no merit. The preparation of the revenue records in the name of the writ-petitioner-Respondents is of no useful purpose to them since the land claimed by them stood acquired as back as in February 14, 1950 and that possession thereof was handed over to the requiring body i.e. the appellant. A feeble argument was made from the side of the Respondents that photo copy of the Gazette notification dated February 14, 1950 in all probability is the draft copy the notification which finally was not published in the Gazette since original of the Gazette Notification was not produced before the Court inspite of the claim made by that appellant the original Gazette Notification was in the record. The contention so made is of no merit since as has already been mentioned that there was Gazette Notification acquiring the land in question and the same was published being notification No. 901 dated February 14, 1950 in the Dhaka Gazette on February 23, 1950 at page 126. Since the lands seeking return whereof the writ-petitioner-Respondents at one time made representation to the District Magistrate and to the Ministry of Land and later on filed the writ petitions and a judgment was passed in the writ petitions in favour of the writ-petitioner-Respondents upon making direction to return the land claimed by them are not outside the land acquired for the appellant i.e. in reality land for return whereof the writpetition-Respondents moved the Hijh Court Division seeking return was acquired in L.A. Case No. 17 of 1948-49 and consequently the total quantity of land acquired for the requiring body i.e. the appellant being 170.47 acres and the requiring body being in possession thereof, the High Court Division was in serious error in making the judgment in the aforementioned writ petition, with the direction as stated above. The fact of acquisition of 31.47 acres of land, which the writ-petitioner-Respondents claimed out side the acquired land, having been established by the Gazette Notification No. 901-Regn dated February 14, 1950 published in the Dhaka Gazette on February 23, 1950 and the Gazette Notification No. 7068-Regn dated August 15, 1951 the judgment passed in the aforesaid writ petitions was not sustainable in law and as such the High Court Division was in serious error in rejecting the review petitions.

22. Accordingly the appeals are allowed with cost of Tk. 25,000/-. The order dated 2.6.1998 passed in Review Petition Nos. 46 of 1998 is set aside and consequent thereupon the judgment dated June 10, 1996 passed in Writ Petition Nos. 1170-1172 of 1995 is set aside.

Ed.

Source : III ADC (2006), 197.