Section-3 Read with Section-5

Admittedly requisition was made only for .45 acres of Plot No. 1009 of Mouja Kafrul by Gazette Notification dated 26.7.83. Subsequently several years thereafter on 27.10.86 the Government made an amendment by Gazette Notification, saying that there was mistake in the previous Gazette Notification regarding the quantum of the land arid in place of .45 acres .51 acres is to be read—Held: Unless the property is requisitioned under section 3 of the Act it cannot be acquired without the proposal of the Deputy Commissioner. No provision of correction or amendment of the previous Gazette Notification by a subsequent Gazette Notification has been provided therein—subsequent Gazette Notification is illegal. [Paras-14 & 15]

Mst. Nurjahan Begum Vs. Bangladesh & Ors 6 BLT (HCD)-153

 

East Bengal Emergency Requisition of Property Act, 1948 [XIII of 1948]

 

Section-4

Service of notice—In matters of requisition for the purpose of acquisition notice is mandatory—the government requires to serve notice upon the occupant or the owner. That having not been done the so called acquisition and requisition is without jurisdiction. [Para-3]

M. A. Razzaque Vs. Ministry of Land 6 BLT (HCD)-95

 

Sections-5(1), 5(3) and 5(7)

Notice was issued under section 5(1) sometime in 1967-68 and final acquisition was made by a notification dated 20th July, 1983 under section 5(7), there is no time limit prescribed for final acquisition under section 5(7), but there should be proximity between the date of notice under section 5(1) and that under section-5(7). [Para 12]

Bangladesh Vs. Luxmi Bibi & Ors. 2 BLT (AD) 182

 

Section-5(7)

In the present case, the land was requisitioned for the purpose of permanent acquisition and possession was taken long back and the purpose for which it was requisitioned has been completed. In such a case the doctrine of legitimate expectation will have no bearing. This delay of gazette notification under Section 5(7) of the Act by itself will not ipso facto give any right to the writ petitioners to get release of the land from requisition. [Para-7]

Govt. of Bangladesh & Ors. Vs. Abdul Wahab Mia & Ors. 7 BLT (AD)- 169

 

Section-5B

The Government is competent to withdraw any property from acquisition and release to the original owner in exercise of the power conferred by Section 8B of the Act only before the payment of compensation and not after it. [Para-13]

Shah Ekramur Rahman Vs. Sec. Ministry of Land & Ors. 3 BLT (HCD)-35

 

Section- 14A

Plea of bar of suit—ex parte decree set aside by the High Court Division of finding that the disputed land was acquired long ago and due notification was made in the Gazette—Appellate Division refrained from interfering with the judgment of the High Court Division. Contention was raised that ex parte decree was not in accordance with law. [Para-3]

Alfu Miah and Others Vs. Bangladesh 1 BLT (AD)-25 .

 

Emergency
Requisition of Property Act [XIII of 1948]

Section 3–

Prayer for
the recovery of possession is not necessary because the Government petitioners
are not trespassers.

Government
of Bangladesh vs Basharatullah 40 DLR 554.

 

Section 3–

The suit
property having been requisitioned and taken possession of by the Government on
16–2–72, before President’s Order No.16 of 1972 came into force, it cannot be
treated as abandoned property.

Md Zaher vs
Bangladesh 42 DLR 430.

 

Sections 3 and 4(1)–

Notice for
requisition and permanent acquisition of a property under the– · Act–An order
of requisition is made under section 3 by the DC and section 4(1) provides for
notice “on the owners of the property by delivering or tendering it to
him,” etc– It further provides for proclamation of the order by beat of
drum in the locality in which the property is situate which contemplates a
personal and public service of the order of requisition.

Bangladesh
vs Basharatullah 42 DLR (AD) 91.

 

Sections 3 & 5–

Mere non-use
of the acquired land for the purpose for which it was acquired will not give
anyright to get return of the same. Once a property is validly acquired after
meeting the legal formalities it vests in the Government and its previous owner
does not have any right to ask return of the same for its non­utilisation for
the specific purpose for which it was acquired.

Abul Basher
being dead his heirs Hosne Ara Begum and others vs Bangladesh and others 50 DLR
(AD) 11.

 

Sections 3, 5–

Since there
is nothing to show that the Government decided to release the land in favour of
the petitioner and since the land was acquired and vested in the Government
free from all encumbrances, the petitioner has not acquired any right to get
back the land only because it has been allegedly kept unused.

Nur Hossain
(Md) vs Secretary, Ministry of Land and ors 52 DLR 275.

 

Sections 3, 4, 5, 5A, 5(1a)(3), 7 and 14(A)–

Acquisition
of property– Question of non–service of notice– Trial Court held that service
of notice contemplated in section 5(la) and 5(3) of the Act must be prior to
the intimation of the acquisition has been rendered invalid for the want of
statutory notice, the service of notice which is posterior to the acquisition
cannot legally have any retrospective effect and as such a subsequent fresh
service of old notice cannot have any legal effect of legalising the illegal
acquisition–Appellate Court concurred with the finding that the service of old
notice under section 5(la) along with that under sub–section (3) of the Act on
23–4–73 upon the plaintiffs giving only 7 days’ time to file objection was not
valid and legal–Revisional Court did not interfere with the finding by holding
that the absence of notice under section 5(Ia) and 5(3) was already decided in
TS No.36/68.

Bangladesh
vs Basharatullah 42 DLR (AD) 91.

 

Sections 3, 5(1) and 7(e) –

Whether the
compensation should be assessed on the average value of land during the period
of 24 months prior to the date of service of notice (14–4–1962) for acquisition
under section 5(1) of the (Emergency) Requisition of Property Act– So far as
the position of law is concerned, this is the exact position as specifically
provided in clause (e) of the section 7 of the (Emergency) Requisition of
Property Act.

Abdul Gafur
Khan vs Bangladesh 42 DLR (AD) 99.

 

Section 4A(2) –

The facts of
the present case are completely different. Save and except a view was taken
that 44 decimals was derequisitioned, nothing further was done and no enquiry
was either held as contemplated by Rule 10(2). Therefore, it cannot be said
that any right had accrued to the appellant which should not be recalled.

Amirul Islam
vs Secretary, Ministry of Land Adm 40 DLR (AD) 52.

 

Section 5(1) and 5(1a)–

Notices
under section 5(1) – Defendant-petitioners formulated a fraudulent device to
serve a copy of the alleged original notice under section 5(1) dated 21-6-60
putting a fresh date of issue in the notice under section 5(1a) upon the
plaintiffs giving 7 days’ notice instead of 15 days’ notice as required by law.

Government
of Bangladesh vs Basharatullah 40 DLR 554.

 

Section 5(aa) and 5(3)–

Notice under
section 5(1a) and 5 (3) are mandatorily required to be served before the Deputy
Commissioner submits his reports on failure of which the whole game of
compulsory acquisition of private land will be left to the ipse dixit of the
Executive.

Government
of Bangladesh vs Basharatullah 40 DLR554.

 

Section 5(1a) and 5(3)–

The suit
land was requisitioned with the object of permanent acquisition, but no notice
under sections 5(la) and (3) was served “either in the locality or on the
plaintiffs as required by law for acquisition.”

Munsif
decreed the suit in favour of the plaintiff–opposite parties and came to
conclusion that notices under section 5(la) and 5(3) of the said Act were not
served on the plaintiffs and as such there was no valid acquisition of the
disputed property.

Government
of Bangladesh vs Basharat­ullah 40 DLR 554.

 

Section 5(1A) (3)–

Service of
notice in respect of requisition of land for public purposes is mandatory
requirement of law. When such notice is served upon the owner of the land there
is no need to serve the same afresh upon the subsequent transferee of the land.

Bangladesh,
represented by the Secretary Ministry of Land vs Abul Hossain and others 51 DLR
(AD) 25.

 

Section 5(1a) (3)–

Review may
be granted only for sufficient grounds akin to those of Order XLVII, rule I of
the Code. To permit a review on the ground claimed by the petitioners will
amount to rehearing of the matter and our sitting on appeal over our own
judgment which is not permissible in law.

Abul Hossain
and 3 others vs Bangladesh represented by the Secretary, Ministry of Land and
others 51 DLR (AD) 116

 

Sections 5(1a) and 14A–

The service
of 7 days’ notice under section 5(a) is no compliance with the provisions of
section 5(1a). The bar of section 14A of the Act does not apply.

Government
of Bangladesh vs Basharatullah 40 DLR554.

 

Sections 5(B), 7 & 7 (aaa)–

Where a
property is requisitioned under section 5(B) with a view to its permanent
acquisition, the owner of the property shall be offered, before possession is
taken over, compensation to the extent of either 100% for structure and
building or 90% for lands of the provisional estimate. Section 7 lays down the
manner and principle for payment of compensation for immovable property and sub­section
(aaa) of section 7 provides for arbitration in case of non–acceptance of
compensation by the land owners and sub–sections c, cc, d, and c of section 7
lay down how an arbitrator shall proceed in calculating the market value of the
land requisitioned.

Abdul Bashar
(Alhaj), being dead his legal heirs 1(a) Hosne Ara Begum & others vs
Bangladesh and others 48 DLR 553.

 

Section 5(5)–

Inter-ministerial
letters and memos referring to the policy of the Government do not create any
legal duty upon the requiring authority and the concerned Ministry to
derequisition the unutilised land in question. The requiring authority is very
much the authority to decide what land it requires to keep and what land it may
return for being excess and unutilised land.

Abul Bashar
(Alhaj), being dead his legal heirs 1(a) Hosne Ara Begum & others vs
Bangladesh and others 48 DLR 553.

 

Section 5(7)–

A notice
under section 5(1a) and 5(3) is mandatory before the Government can at all
decide to acquire requisitioned property. If notice was not valid under law,
then subsequent acquisition under section 5(7) is also illegal.

Government
of Bangladesh vs Basharatullah 40 DLR 554.

 

Section 7–

The
plaintiff being entitled to a decree that the suit property is not an abandoned
property and the Government having disclaimed the same as requisitioned
property, the latter is liable to restore its possession to the plaintiff and ·
also to pay rent/compensation under the Requisi­tion of Property Act for its
use and occupation from 14–2– 72 till the possession of the property is
restored to the plaintiff.

Md Zaher vs
Bangladesh 42 DLR 430.

 

Section 7–

Appeal
against Arbitrator’s award of compensation–Question of limitation for the
appeal and nullity of the award–When the Arbitrator had jurisdiction to
determine compensation under section 7 of the Act but did not determine it in
accordance with the provision thereunder that would then be an error in
exercise of his jurisdiction and in such a position the award cannot be
regarded to be one without jurisdiction and a nullity. The Court cannot probe
into the question of nullity of the award sitting in appellate jurisdiction
when the appeal had not been filed within the period of limitation.

Bangladesh
vs Md Ishaque 45 DLR 223.

 

Section 7(AA)–

After a
period of 7 years notice under section 7(AA) was served on the owner of the
property. On this score the question of payment of compensation of the acquired
property in terms of market value of 1960 does not arise at all. The
compensation is to be paid as per market value which was prevailing on the date
of acquisition of the property.

Hossain Khan
(Md) and others vs Government of Bangladesh & others 55 DLR 264.

 

Section 7(e)–

Statutory
provision of law is section 7(c) of the Act in respect of determination of
compensation.

When the
Arbitrator fixed the compensation at Taka 20,000 per acre taking the average
between 1961 and 1968, Government did not file any appeal but accepted the
award– Though notice for acquisition under section 5(a) was served in 1962 the
land was actually acquired in 1968 after the expiry of 6 years when the value
of the land increased to a great extent– There should be some proximity between
the date of notice for acquisition and that of actual acquisition–Assessment
made by the High Court Division at Taka 30,000 per acre has met the ends of
justice.

Abdul Gafar
Khan vs Bangladesh 42 DLR (ADJ 99.

 

Section 7(e)–

In
determining the market value of the land acquired the Court shall take into
account the average value of similar land with similar advantage during the
twenty–four months preceding the date of service of initial notice for
acquisition.

Pak Eastern
Industries Ltd vs DC, Dhaka and another 56 DLR 259.

 

Section 7(e)–

During
determination of the price in a case where the Government takes unnecessary
longer time to publish the statutory notification resulting in an increase of
the market price, the authority may consider some compensa­tion in addition to
the price determined on the above mode and manner of calculation on the
twenty–four months’ rule preceding the date of service/publication of initial
notice for acquisition.

Pak Eastern
Industries Ltd vs DC, Dhaka and another 56 DLR 259.

 

Section 7(f) & Rule 9(6)–

Appeal against
final award before the High Court Division­– Appellate Court is not empowered
to condone the delay of time–barred appeals under section 5 of the Limitation
Act in view of clear provision of section 29(2) which excludes application of
section 5.

Ishaque vs
Bangladesh 43 DLR (AD) 28.

 

Section 8–

Restoration
of requisitioned property–it is the function of the Deputy Commissioner to
decide the claim of any person for restoration of requisitioned land. Only when
the Deputy Commissioner exercised the jurisdiction without lawful authority,
the High Court Division can exercise jurisdiction in the matter.

Sarwarjan
Bhuiyan vs Bangladesh 44 DLR 447.

 

Section 8B–

After
compensation is paid for acquisition of land no order can be made for
derequisition of such acquired land.

Bangladesh
vs Commercial Trust of Bangladesh Ltd. 46 DLR (AD) 89.

 

Section 8B–

If
compensation has not been paid order of withdrawal of requisition and
acquisition may be made.

Matiur
Rahman vs Bangladesh 46 DLR 638.

 

Section 8B–

Once a
property has been validly acquired for a public purpose, then even if the
property be utilised for a different purpose, the acquisition shall not stand
void.

Brahmanbaria
Pourashava vs Secretary, Ministry of Land Reforms, Government of Bangladesh and
others 51 DLR (AD) 84.

 

Section 8B–

If the
purpose serves some public use or interest as opposed to the particular
interest of an individual the purpose is public.

Arbi Khanom
and 4 others vs State 52 DLR 367.

 

Section 8B–

The
requisitioned land is not liable to be released even if it remains unutilised
by the requiring body.

Ali Ahmed
and others vs Government of Bangladesh and other 55 DLR (AD) 92.

 

Section 14A–

Bar of
suit–There was no question of the authorities acting without jurisdiction or
acting in a manner without following the procedure provided for in the statute
–The bar of the suit under section 14A of the Act is inexorably attracted to
this and it must be held that the suit itself was barred.

Compensation–
though not in issue in the suit is at the centre of all the litigations being
carried on from 1963–Fresh notice will have a direct bearing on the
determination of compensa­tion–But now that a whole decade has passed between
public notice under section 5(1a) dated 14–12–60 and the publication of the
Gazette under section 5(7) of the Act, the matter or compensa­tion assumes
great importance because of the phenomenal rise in the value of the land since
1960–the observation in an earlier case that there should be some proximity
between the date of notice for acquisition and that of actual acquisition is to
be taken into consideration while determining the compensation.

Bangladesh
vs Basharatullah 42 DLR (AD) 91.

 

Section 14A–

Section
imposes an express bar on the entertainment of any suit or appeal against any
order or action taken under the Act. An appeal pending against such an action
or order shall abate.

Nur Muhammad vs Mainuddin 39 DLR (AD) 1.

 

Section 21–

Unless the
property is requisitioned under section 3 of the Act it cannot be acquired
without the proposal of the Deputy Commissioner–No provision of correction or
amendment of the previous Gazette Notification by a subsequent Gazette
Notification has been provided therein.

Nurjahan
Begum vs Govern­ment of the People’s Republic of Bangladesh and others 51 DLR
426.

 

EMERGENCY REQUISITION OF PROPERTY ACT,
1948

Section—3

Requisition of property—To
justify requisition for accommodation of Government office a case of
unavailability of alternative accommodation has to be made out.

Accommodation to a Government office is no doubt a public
purpose—but to justify such an order a case is to be made out that alternative
accommodation is not available and it is essentially required for providing
accommodation to the Government Office.

Mansurul Aziz and another Vs. Secretary, Ministry of Land
Administration and Land Reforms and others; 1BLD (AD)75

 

Section-.3

 

Requisition of property

The order of requisition should contain the description of the
Government Officer or the Government Office for whom the property is
requisitioned.

Mansurul Aziz and another Vs. Secretary, Ministiy of Land Administration
and Land Reforms and others; 1BLD (AD) 75

 

Section—3

An order of requisition for collateral purposes cannot he
sustained.

Mansurtil Aziz and another Vs. Secretary, Ministry of Land
Administration and Laud Reforms and others; 1BLD(AI))75

 

Section—3

Requisition of property—public
purpose—A school must fit in with the national education policy in order that
accommodation of such school may be a public purpose or in public interest.

Establishment and accommodation of a school as such may
advance the cause of public purpose and public interest provided it conforms to
the fundamental principles of statt policy upon which such school must be
based—In order to categorise a school to serve public purpose and public interest
as referred to in section 3 of Emergency Requisition of Property Act, reference
will have in be madeas to whether such school fits in with the national
education policy pursuant to the fundamental principles of state policy
enshrined in the Constitution itself and the laws made accordingly from time to
time.

Mrs. Winifred Rubie and others Vs. Bangladesh and others; 1BLD (HCD)30

 

Scction—3

Requisition of property—public purpose—Requisition for
accommodation of a private school is for public purpose—Oblique limits and
vague grievarces cannot dislodge the purpose—Enquiry as to public purpose by
reference to the fundamental principles of state policy not warranted by the
Constitution—Constitution of Bangladesh, 1972, Articles 8 and 17.

Bangladesh Vs. Mrs. Winfred
Rubie and others; 2BLDAD) 34

(Mrs. Winifred Public Vs. Bangladesh, reported in 1 BLD (HCD)
30 has been reversed) Ref: 14 DLR 486; A.I.R. 1914 (PC) 21; 14 I) LR 634—Cited.

 

Section—3

Mandatory injunction—Such injunction requiring the authority
to start a valid acquisition proceeding whether sustainable—The authority has
no right to possess the property in question as a mere requisitioned property
for an indefinite period—They have either to dc-requisition the property and
hand over vacant possession thereof to the owners or they have to complete the
acquisition proceedings in accordance with law—The mandatory iniunction given
under the circumstances is the most appropriate decree.

Govt. of Bangladesh and ors. Vs. Basarutullah being dead his heirs and
successors Fazie Kari,n and ors., 9 BLD (HCD)97

 

Sections—3 and 5

Requisition of land—public
purpose— Requisition and acquisition of land for a cooperative society is not
per se an acquisition for a public purpose—Constructing of dwelling houses
cannot be considered per se to be a public purpose—Construction of houses as
per common plan and campus for those members of a co-operative society who have
rio land or house in Dacca city may serve as a public purpose.

Md. Ismail and others Vs. Bangladesh and others; IBLD(HCD)407

Ref: 14 DLR 604; A.I.R. 1959 Punj 478—Cited.

 

Section—5(1)

Public notice—Presumption
of service of such notice—Public notice for acquisition of property being an
official act a presumption is available under the Evidence Act that it has been
regularly performed unless the contrary is proved—Evidence Act, 1872 (1 of
1872). S. 114(e).

Government of
Bangladesh, represented by the Deputy Commissioner, Dhaka and others Vs.
Basharatuliah being dead his heirs and successors: Fazie Karim and others; 10
BLD (AD)110

(Govt of Bangladesh and others Vs. Fazie Karim and others,
reported in 9 BLD(HCD)97 has been reversed)

 

Section—5(1 a)

Public notice—Such
notice by requisitioning authority to acquire property—Whether causing a public
notice to be given is a service of .notice’—The public notice to be given at
convenient places on or near the requisitioned property does not mean that this
public notice is not meant to be a service of notice—It is a mode of service of
notice upon all the owners of the requisitioned property indicating the mind
and intention of the requisitioning authority—It is not a personal notice, but
a collective notice meant for the owners also.,

Government of Bangladesh and others Vs. Basaratullab being dead his
heirs and successors Fade Karim and others; 9 BLD (HCD) 97

[This case has been reversed by Appellate Division in the case
of Government of Bangladesh Vs. Bashartullah and others, reported in 10BLD (AD)
110.1

Section—5(3)

 

Time for answering
notice—15 days time limit for answering a personal notice relating to
acquisition of property when not strictly necessary—Notice was served on the
plaintiff on 23.4.73 requiring them to appear on 30.4.73—Admittedly, the
gazette notification on the acquisition was made on 25.6.73 about 2 months after
the said notice—In the circumstances it cannot be said that the plaintiffs have
been deprived of a reasonable opportunity to appear due to shortage of time.

Government of Bangladesh, represented by the Deputy Commissioner, Dhaka
and others Vs. Basharatullah being dead his heirs and successors: Fade Karimn
and others; 10BLD (AD) 110

(Govt of Bangladesh and others Vs. Fazie Karim and others,
reported in 9BLD (HCD)97 has been reversed).

 

Compensation—Compensation
for acquisition of land—When the value of the land was increasing but that of
money was decreasing the compensation to be paid on the valuation of the year
when notice for acquisition was served would cause substantial injury to the
land owner—There should be some proximity between the date of notice for
acquisition and that of actual acquisition.

Government of Bangladesh represented by the Deputy Commissioner, Dhaka
and others Vs. Basharatullah being dead his heirs and successors: Fade Karim
and others; 10BLD(AD) 110

(Govt. of Bangladesh and others Vs. Fazle Karim and others,
reported in 9BLD (HCD)97 has been reversed.

Ref: 4BLD(AD)283—Cited.

 

Section—7(b)

Arbitrator—Whether
an Arbitrator appointed under Ordinance II of 1982 is a Court—Such an
Arbitrator essentially conducts an inquiry into the amount of compensation that
a person may reasonably receive in respect of his acquired land and
structures—This is a limited inquiry which is investigative in nature—He does
not exercise a judicial function in course of such an inquiry, although he is
expected to act within judicial norms—The provision deeming his award to be a
decree and his statement of grounds to be a judgment does not elevate him to
the status of a Civil Court—Acquisition and Requisition of immovable Property
Ordinance (II of 1982) Ss. 10,27,32 and 36—Code of Civil Procedure (V of 1908)
Ss. 2(2)(9), 34, Or. 39 Rules 1 and 2.

Begun Lutfunnessa Vs. Nizamnuddin Ahmed and others; 8BLD(HCD)357

Ref: 38 DLR(AD)172: 20 l)LR 599 (S.B.); 25 DLR 440; 26 DLR
265: —Cited.

 

Section—7(e)

Computation of compensation
for acquisition of land—Period of twenty four months whether to precede the
date of notice for acquisition or actual date of acquisition— Average value of
the land during twenty four months preceding the date of notice of acquisition
rather than the date of actual acquisition of land is to be taken in computing
compensation—The date of acquisition is immaterial for the purpose of
determining the value of the land acquired—When value of the land was
increasing but that of money was decreasing the compensation to be paid now on
the valuation of the year 1962 would cause substantial injury to the land
owner—There should be some proximity between the date of notice for acquisition
and that of actual acquisition.

Abdul Gafur Khan and another Vs. Government of Bangladesh and othemw; 4
BLD (AD) 283

 

Section—14A

Jurisdiction—Ouster
of jurisdiction of the Civil Court—When lack of competence of the requisition
authority or non—conformity with the provisions of the Act or violation of the
fundamental principles of judicial procedure is not in question ouster clause
of the jurisdiction of the civil court in the Act cannot he avoided—Section 14A
of the Emergency Requisition of Property Act in clear and unmistakable terms
put an express embargo on entertainment of suits or application against any
order or action under the Act—Code of Civil Procedure, 1908(V of 1908), S. 9.

Nur Muhammad and others Vs. Moulvi Mainuddin Ahmned and others; 6BLD
(AD) 342

Ref: 37 DLR(AD) 161—Cited.

 

Section—14A

Bar of suit—When
such a bar in special statute does not apply—When a statutory authority acts
without jurisdiction or in a manner without following a procedure provided in
the statute itself, then it is not an act under the statute and the bar of suit
does not apply—Code of Civil Procedure, 1908 (V of 1908). –

Government of Bangladesh and others Vs. Basaratullah being dead his
heirs and successors Fade Karim and others, 9 BLD(HCD) 97.

[This case has been reversed by Appellate Division in the case
of Govt. of Bangladesh Vs. Bashartullah and others, reported in 10 BLD(AD)110]