Deputy Commissioner Vs. Abdur Rahman and others

Appellate Division Cases

(Civil)

PARTIES

Government of the People’s Republic of Bangladesh represented by the Deputy Commissioner, Dhaka and another ……………………..Appellant

-vs-

Abdur Rahman and  others …………………………………Respondent

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

JUDGEMENT DATED : 16th November 2005.

The Acquisition and Requisition of the Immovable property Ordinance, 1982, (Ordinance NO. II of 1982), Section 27, 31.

The Arbitrator made the award awarding amount exceeding 10% of the amount awarded by the Deputy Commissioner.

When a person whose land was acquired and the Deputy Commissioner awards compensation for said acquired land files a revision award case that itself can sufficiently be considered that the affected person did not accept the award made by the Deputy Commissioner as correct and thereupon having been aggrieved filed the revision award case, in that state of the matter it cannot be said that money awarded by the Deputy Commissioner for the acquired land was received by the affected persons without protest (10)

Civil Appeal No. 211 of 2000

(From the Judgment and Order dated May 28,1998 passed by the High Court Division in Civil Revision No. 34 of 1996)

Mvi. Md. Wahidullah, Advocate-onrecord. For the Appellant

Md. Nawab Ali, Advocate-on-Record For Respondent No. 1

Not represented Respondent Nos. 2 &3.

JUDGMENT

Md. Ruhul Amin J :- The appeal by leave is against the Judgment dated May 28, 1998 of the High Court Division in Civil Revision No. 364 of 1996 making the Rule absolute. The revisional application was filed against the judgment and order dated November 13, 1995 of the Arbitration Appellate Tribunal, Dhaka in Arbitration Appeal No. 43 of 1994 allowing the appeal and thereby setting aside the award dated September 18, 1994 of the Arbitrator (appointed under Section 27 of the Acquisition and Requisition of the Immovable property Ordinance, 1982) in Arbitration Revision Case, No .1636 of 1990 and sensing the Arbitration Revision case to the Court of the Arbitrator to dispose of the Arbitration revision case upon hearing the parties.

2. It may be mentioned the Arbitration Appellate Tribunal set aside the judgment and order of the Arbitrator on the finding that the Arbitrator passed the award in the arbitration revision case awarding award for an amount which was more than 10% of the amount awarded by the Deputy Commissioner in respect of the land acquired belonging to the Respondents. The Arbitration Appellate Tribunal set aside the award made by the Arbitrator, upon placing reliance on the provision of section 31 of the Acquisition and Requisition of the Immovable Property Ordinance, 1982 (Ordinance No. II of 1982), hereinafter referred to as the Ordinance, on the view that the amount awarded by the Arbitrator was more than 10% of the amount awarded by the Deputy Commissioner. It may be mentioned award was made in the Arbitration Revision Case No. 1636 of 1990 on September 18, 1994, i. e. at a time when the Arbitrator could make award of the amount as in his view in the facts and circumstance of the case proper i. e. it was not the law that Arbitrator could only make award to extent of 10% over the amount awarded by the Deputy Commissioner. The provision of law putting the embargo on the power of the Arbitrator to award amount not exceeding 10% on the award already made by the Deputy Commissioner was made by the amending Act No. 20 of 1994 upon adding a proviso to Section 31 of the Act. The said Act No. 20 of 1994 was published in the Bangladesh Gazette ( Ordinary) 1st of December, 1994. The amending Act was prospective one. This being the position the Arbitration Appellate Tribunal was in error in setting aside the award made by the Arbitrator on September 18, 1994 on the view that the said award was made in violation of section 31 of the Ordinance i. e. amount awarded exceeded 10% of the award made by the Deputy Commissioner.

3. As against the order of the Arbitration Appellate Tribunal the Respondents moved the High Court Division in revisional jurisdiction and obtained the Rule in the aforementioned revisional case. It was contended by the Respondents herein before the High Court Division that the date on which award was made by the Arbitrator there was no law putting embargo on the power of the Arbitrator in making the award exceeding 10% on the amount awarded by the Deputy Commissioner. It was further contended since the law putting embargo on the power of the Arbitrator in making award exceeding 10% of the amount awarded bv the Deputy Commissioner came into operation on December 1, 1994 and that the Arbitrator as passed the award on September 18, 1994 the Arbitration Appellate Tribunal was in error in setting aside the award made by the Arbitrator.

4. Before the High Court Division it was submitted on behalf of the Appellant Nos. 1 and 2 that as the appeal has not been disposed of on marit, the High Court Division should sent back the appeal to the Arbitration Appellate Tribunal for disposal on merit.

5. So it is seen that the opposite party before the High Court Division i. e. the appellants herein, did not dispute the contention of the petitioner before the High Court Division, i. e. the Respondents herein, that Arbitration Appellate Tribunal was wrong in setting aside the award made by the Arbitrator on the view that the Arbitrator made the award exceeding 10% over the amount awarded by the Deputy Commissioner since law putting embargo on the power of the Arbitrator to make award exceeding 10% on the amount awarded by the Deputy Commissioner come into force on December 1, 1994.

6. The High Court Division made the Rule absolute and thereupon set aside the judgment and order of the Arbitration Appellate Tribunal on the finding that the contention made by the petitioners i. e. the Respondents herein was of merit i. e the law putting embargo on the power of the Arbitrator in making award not exceeding 10% over the amount awarded by the Deputy Commissioner come into force on a date later than the date of award made by the Arbitrator i. e. the law come into operation on December 1, 1994, but the award was made on September 18, 1994.

7. It is seen from the judgment of the High Court Division that the said Division did not find merit in the contention of the appellants, who were opposite parties before the High Court Division, that the case may be sent back to the Arbitration Appellate Tribunal since the said appeal was not disposed of on marit.

8. Leave was granted to consider the contention of the appellants that the Arbitration Appellate Tribunal dismissed the Arbitration revision case on the view that the Arbitrator made the award awarding amount exceeding 10% of the amount awarded by the Deputy Commissioner and that as the Arbitration Appellate Tribunal did not dispose of the appeal on merit and that High Court Division having had held that the view taking which the Arbitration Appellate Tribunal allowed the appeal and sent back the revisional arbitration case to the Court of Arbitrator for disposal afresh was not correct, the said Division was in error in not remanding the appeal to the Arbitration Appellate Tribunal for disposal on merit or in other words to decide the case on consideration of the materials brought on record by the award holders in support of their claim of revision of the award made by the Deputy Commissioner.

9. We have heard the learned Advocate-on-record for the appellants as well as for the Respondent No.l and perused the materials on record. It is seen from the judgment of the Arbitrator that the Arbitrator considered the judgment made in the Arbitration revision case filed in connection with the acquisition of land in L. A Case No. 13 of 1987-88. In the Said L. A. case land of plot No. 1310 was acquired and the nautre of the land was nul. In the said arbitration revision case the Arbitrator fixed the price of per acre of nal land at Tk. 55 lacs. From the said of the appellants no material was placed before the Arbitrator to show that the award made in the Arbitration revision cases which were filed in connection with the acquisition of land of plot No. 1310 upon starting L.A. Case No. 13 of 1987-88, was set aside or modified by the Arbitration Appellate Tribunal or by higher Court. It may be mentioned Respondents land was in matuail Mouza i. e. of the Mouza land whereof was acquired in L. A. Case No. 13 of 1987-88 and the land so acquired in said L. A. case was nul land i. e. class of land as was ofthe Respondents. The land of the Respondents was acquired upon initiating L. A. Case No. 13 of 1987-88 and the quantity ofthe land so acquired was 17 decimals and the land so acquired was of plot No. 3979 and the class of land was nul. The Arbitrator having found that the award revision cases filed in connection with the acquisition of land in L. A. Case No. 13 of 1987-88 were disposed of fixing the value at TK. 50,00,000/- per acre of nal land and that the land acquired belonging to the Respondents being of the same Muza as well as being of the same class and also of being the same nature held that the Deputy Commissioner while making the award deprived the owners of the legitimate value of the land of which they were entitled. The Arbitrator in the background of the fact as stated hereinbefore fixed the price of per acre of nal land at TK. 50,00,000/- and thereupon awarded TK. 8,50,000/- for the acquired land i. e. 17 decimals of nal land and the statutorily compensation TK. l,73,000/-in total 10,20,000/- since the Respondent earlier received compensation of TK. 2,73, 964/- the Arbitrator upon deducting the said amount made an award of TK. 7,26,000/-/

10. It was contended before the Arbitrator that the Arbitration revision case was barred by limitation and that the same was not maintainable since the Respondents, i. e. affected persons, without protest received the amount earlier awarded by the Deputy Commissioner. The Arbitrator held that the arbitration revision case filed within time as prescribed by law and also held that arbitration revision case was quite maintainable since filing of the very arbitration revision case manifestly demonstrates that the persons in whose favour Deputy Commissioner made the award were not agreeable to the amount so awarded by the Deputy Commissioner and as such it can not be said that withdrawal of the money awarded by the Deputy Commissioner, is to be construed, that the affected persons accepted the award made by the Deputy Commissioner without protest. It may be mentioned that when a person whose land was acquired and the Deputy Commissioner awards compensation for said acquired land files a revision award case that itself can sufficiently be considered that the affected person did not accept the award made by the Deputy Commissioner as correct and thereupon having been aggrieved filed the revision award case, in that state of the matter it cannot be said that money awarded by the Deputy Commissioner for the acquired land was received by the affected persons without protest.

11. The contention upon making which the leave was obtained would have been the good grounds for allowing the appeal and sending revision award case back to the Arbitration Appellate Tribunal for disposal of the appeal on marit, if the appellants would have filed any material before the Arbitrator in rebuttal of the materials brought on record by the Respondents in support of their case before the Arbitrator. It is seen from the judgment of the Arbitrator that Respondents land as well as some others land was acquired upon starting L.A. Case No. 13 of 1987-88 other than the Respondents filed some arbitration revision case questioning the correctness of the award made by the Deputy Commissioner. The Arbitrator in those revision cases fixing the value of per acre of the nul land at TK. 50,00,000/- made the award. No material was placed on the record from the side of the appellants before the Arbitrator to show that the award made in the arbitration revision cases fixing value of the nul land of Mouza Matuail per acre at TK. 50,00,000/was revised on appeal by the Arbitration Appellate Tribunal or by the superior Court. This being the position we are of the view that no error was committed by the High Court Division in not sending back the appeal to the Arbitration Appellate Tribunal while making the Rule absolute. In the afore state of the matter we are of the view no useful purpose would be served in sending back the appeal to the Arbitration Appellate Tribunal for disposal afresh and as such we do not find any merit in the contention made by the appellants for sending back the appeal to the Arbitration Appellate Tribunal.

In view of the discussions made hereinabove we find no merit in the Appeal.

Accordingly the appeal is dismissed with cost to be paid by the appellant No.l.

Ed.

Source : III ADC (2006), 232.