Appellate Division Cases
(Civil)
PARTIES
Government of Bangladesh, represented by the Secretary, Ministry of Land Administration and land Reforms, Bangladesh Secretariat, Ramna, Dhaka and others ……………………………..Appellants
-Vs-
Most. Nurjahan Begum…………………………………………..Respondent
JUSTICE
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATED : 11th July 2005.
The Emergency Requisition of Property Act, (XIII of 1948), Section 3, 5(7).
Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance No. II of 1982).
Declaration of her title in respect of the compensation money.
A bonafide mistake as to the quantity of land in the Gazette notification of August 11, 1983 the said mistake was corrected by the subsequent Gazette Notification (3)
So it appears that unless the property is requisitioned under section 3 of the Act it can not 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 (5)
The submission so made in our view is not well founded because of the fact that the material brought on record from the side of the Respondent i.e. writ-petitioner clearly shows that proceeding in L.A. Case No. 41 of 1964-65 was initiated so far the land of plot No. 1009 is involved was for .45 acre of land and this fact has not been disproved by placing the records of the L.A. Case No. 41 of 1964-65. So even if there has been averment in the plaint of Title Suit No. 166 of 1972 that entire land of plot No. 1009 was acquired but same being not the correct state of the matter, the averment in the plaint of title suit cannot be made basis by the appellant to substantiate its claim, that in fact proceeding was initiated under the Act for requisition and acquisition of .51 acre of plot No. 1009. The correction as has been made by the notice dated October 27, 1986 published in the Gazette of November 6,1986 in the background of the discussions made hereinbefore cannot be considered legal one since by the said correction in fact Respondent’s land measuring .06 acre has been acquired without initiating any proceeding under the existing law i.e. under the provision of the Ordinance II of 1982 (8)
Civil Appeal No. 100 Of 2000.
(From the Judgment and Order dated May 19,1998 passed by the High Court Division in Writ Petition No. 690 of 1987)
M.A. Azim, Deputy Attorney General, instructed byAdvocate-on rethe Appellants Mvi Md.cord Wahidullah, For Md. Aftab Hossain, Advocate-on-record…………… For the Respondent
JUDGMENT
1. Md. Ruhul Amin J:- The appeal, by leave, is against the judgment of the High Court Division dated May 19, 1998 in writ petition no. 690 of 1987. The writ petition was filed challenging the notification dated October 27, 1986 published in the Bangladesh Gazette on November 6, 1986 making correction of the Gazette Notification published in the Bangladesh Gazette on August 11, 1983 acquiring 45 decimals of land out of 51 decimals of land of plot No. 1009. Correction was made to the effect that in the Gazette Notification of August 11, 1983 land measuring .51 acre is to be read for the quantity of land measuring .45 acre. The writ-petitioner also impugned notice dated September 2, 1987 asking her to handover possession of the land in the light of the Gazette Notification of 6th November 1986 and the notice dated October 24, 1997 addressed to the writ-petitioner asking her to remove the structures from the plot No. 1009 i.e. the land which is claimed to have been acquired in pursuant to the Gazette Notification of 6th November, 1986.
2. The writ petition was filed stating, amongst others, that C.S. Plot No. 1009 comprises 60 decimals of land and out of that 9 decimals of land were acquired some time in 1920 and the rest was owned and possessed by the recorded tenants namely, Sobhan Matbar and Nazar Bibi in equal share, that Nazar Bibi and her son sold .08 acre of land to the writ-petitioner on April 27, 1959 and since then she is owning and possessing the purchased land by erecting semi pdfcca structures, that she got her name mutated in the S.A. record and that also Municipal holding was opened in her name and thereupon paying taxes to the authorities, that by initiating land Acquisition Case No. 41 of 1964-65 land measuring. 45 acre out of .51 acre was requisitioned on 25.5.1967, that the said .45 acre of land was requisitioned from the northern side of Plot No. 1009, that notice under section 3 of the Emergency Requisition of Property Act, 1948 was issued for .45 acre of land from Plot No. 1009, that in due course the requisitioning authority took possession of the .45 acre of land from the northern side of plot No. 1009 and thereby land purchased by the writ-petitioner remained in her possession, that the land requisitioned also covered 2 decimals of land owned by the writ-petitioner and thus the writ-petitioner’s right, title and interest in respect of .06 acre of land remained outside the requisitioned land i.e. .45 acre, that although 2 decimals of land of the writ-petitioner was requisitioned and finally acquired but compensation was not paid and thereupon writ-petitioner filed Title Suit No. 166 of 1972 for declaration of her title in respect of the compensation money, that the suit was decreed but on appeal was reversed and thereupon the petitioner filed revision before the High Court Division and the same is still pending, that while the writ-petitioner was in possession the writ-Respondent No.l by the notification dated October 27, 1986 which was published in the Bangladesh Gazette on November 6, 1986 made correction by inserting .51 acre of land in the Gazette Notification dated August 11, 1983 although by the said Gazette Notification .45 acre of land was acquired from C.S. Plot No. 1009 and thereupon served notice on the writ-petitioner on two occasions threatening her to dispossess from the land owned and possessed by her and that thereafter on 24.10.1997 directed the writ-petitioner to remove within 10 days the structures in the land owned and possessed by her from the date of receipt of the notice otherwise she will be evicted. In the background of the facts as stated hereinabove the writ-petitioner filed the aforementioned writ-petition.
3. The rule obtained in the writ petition was opposed by the writ-Respondent No.l i.e. Government of Bangladesh, represented by the Secretary, Ministry of Land Administration and Land Reforms stating, inter alia, that L.A. Case No .41 of 1964-65 was initiated for acquisition of .51 acre of C.S. Plot No. 1009 but through inadvertent mistake while the Gazette Notification for acquisition was made quantity of land acquired was printed .45 acre of land instead of .51 acre of land and that the said mistake has been corrected by the notification dated August 27, 1986 published in the Bangladesh Gazette on November 6, 1986 and thereby necessary correction was made in the Gazette Notification dated August 11, 1983 by inserting .51 acre in place of .45 acre of land. It was the case of the writ-Respondent since there was a bonafide mistake as to the quantity of land in the Gazette notification of August 11, 1983 the said mistake was corrected by the subsequent Gazette Notification dated November 6, 1986 and by the subsequent Gazette Notification it has been inserted that in the Gazette Notification of August 11, 1983 as regard total quantity of land acquired of plot no. 1009 .51 acre is to be written in place of .45 acre of land and as such the writ-petition so filed as a misconceived one and that the contention of the writ-petitioner that the con-ection so made is illegal and malafide is not correct and the further contention was that writ petitioner’s land in fact was acquired as per provision of the law which has ceased to exist because of the enactment of Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance No. II of 1982).
4. It was the primary contention of the writ-petitioner that the Government only to deprive her from proper compensation has made the correction in the Gazzete Notification and that the correction so made is illegal and that her land could only be acquired under Ordinance II of 1982 on paymen of compensation provides by the said law.
5. The High Court Division made the Rule absolute upon observing “So it appears that unless the property is requisitioned under section 3 of the Act it can not 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 Admittedly requisition was made only for .45 acre of plot No. 1009 of Mouza- Kafrul (vide Annexure-D) by Gazzette notification dated 26.7.1983 (sic) (notification dated 26.7.1983 published in the Bangladesh Gazzette, August 11, 1983). Subsequently several years thereafter on 27.10.1986 the Government made an amendment by Gazette Notification impugned saying that here was mistake in the previous Gazette Notification regarding the quantum of the land in place of .45 acre .51 acre is to be read. But we have found that this amendment by the impugned Gazette Notification is illegal as it has been made in clear violation of mandatory provision of law aforesaid.”
6. Leave was granted to consider the contention that on the facts and circumstances of the case the High Court Division was wrong in declaring the notification dated October 27, 1986 as illegal and malafide.
7. The writ petitioner in support of his contention that the requisitioning authority initiated the proceeding for requisitioning of .45 acre of land froirTc.S. Plot No. 1009 annexed the notification served under section 3 of the Emergency Requisition of Property Act, 1948 (the Act). It is seen from the provision of section 4 of the Act when any property is required for a public purpose of in public interest and then the Deputy Commissioner may requisition the said property by order in writing and the same is served on the owner of the land. Thereafter for the purpose of acquisition of any requisitioned property provision of section 5 of the Act is followed. The procedure so provided in the said section is quite elaborate and finally notice for the acquisition is published under section 5 (7) of the Act and this publication of the Gazette Notification reflects the final decision of the acquisitioning authority. In the instant case as mentioned earlier the Government decide to requisition the land with the end in view of acquisition and thereupon served the notice under section 3 and as per provision of section 4 caused the service of notice on the owner of the land and thereafter upon following the elaborate process of acquisition finally published in the Gazette Notification on August 11, 1983 showing acquisition of .45 acre of land of C.S. plot No. 1009. It is the case of the writ-petitioner, herein Respondent, that she purchased 8 decimals of land from the C.S. recorded tenant and that in L.A. Case No. 41 of 1964-65 .45 acre of land from the northern side of the said plot was acquired and the said .45 acre of land also comprises her .02 acre of land and thereby .06 acre of land owned and possessed by her remained outside requisition and acquisition. Although from the appellant’s side it was contended that in fact .51 acre of Plot No. 1009 was acquired but there was bonafide mistake at the time of Gazette Notification showing quantity of acquired land .45 acre and lateron said mistake having been detected by the subsequent Gazette Notification i.e. Gazette Notification dated November 6, 1986 necessary correction was made in the aforesaid manner in the Gazette Notification of August 11, 1983 i.e. .51 acre of land is to be read for .45 acre of land. The requisitioning authority served notice under section 3 of the Act showing quantity of land .45 acre of plot No. 1009. The correctness and genuineness of the notice served under section 3 of the Act has not been dislodged by bringing on the record any material, although it was contended from the appellant’s side that in fact proceeding was initiated for the purpose of acquisition of .51 acre of land but through bonafide mistake at the time of publication of the Gazette Notification quantity of land was shown .45 acre of land instead of .51 acre of land. As stated hereinbefore that in elaborate process is provided in section 5 of the Act prior to the publication of the Gazette Notification under section 5(7) of the Act showing acquisition of land earlier requisitioned. The proceedings of the acquisition case were not placed before the Court either at the time of hearing of the writ petition or at the time of hearing of the appeal to show that in fact there was at the initial stage proposal for requisition of .51 acre of land and that when the process for acquisition was initiated the authority proceeded to make acquisition of .51 acre of land. It is evident from the notice under section 3 of the Act that the proceeding for requisition, which ended in acquisition, was initiated in respect of .45 acre of land of plot No. 1009 and as such the contention of the appellant that in fact proceeding was initiated for acquisition of .51 acre of land but there having had bonafide mistake Gazette Notification was made for .45 acre of land appears to be not well founded one.
8. It has been submitted from the appellant’s side that the writ-petitioner filed Title Suit No. 166 of 1977 claiming compensation in respect of 8 decimals of land. It may be mentioned the said suit was filed when the compensation money assessed was not paid to the writ-petitioner. It is the case of the writ petitioner that acquired land measuring .45 acre also comprises .02 acre of land owned by her. The learned Counsel for the appellant has submitted that in the plaint of the saidt suit the plaintiff, herein writ-petitioner-respondent asserted that entire suit plot i.e. plot no. 1009 was acquired in L.A. Case No. 41 of 1964-65 and as such the writ-petitioner is estopped from saying anything contrary to the averment made in the plaint of Title Suit No. 166 of 1972. The submission so made in our view is not well founded because of the fact that the material brought on record from the side of the Respondent i.e. writ-petitioner clearly shows that proceeding in L.A. Case No. 41 of 1964-65 was initiated so far the land of plot No. 1009 is involved was for .45 acre of land and this fact has not been disproved by placing the records of the L.A. Case No. 41 of 1964-65. So even if there has been averment in the plaint of Title Suit No. 166 of 1972 that entire land of plot No. 1009 was acquired but same being not the correct state of the matter, the averment in the plaint of title suit cannot be made basis by the appellant to substantiate its claim, that in fact proceeding was initiated under the Act for requisition and acquisition of .51 acre of plot No. 1009. The correction as has been made by the notice dated October 27, 1986 published in the Gazette of November 6, 1986 in the background of the discussions made hereinbefore cannot be considered legal one since by the said correction in fact Respondent’s land measuring .06 acre has been acquired without initiating any proceeding under the existing law i.e. under the provision of the Ordinance II of 1982. In the background of the discussion made hereinbefore we find no merit in the appeal.
Accordingly the appeal is dismissed with costs at all stages.
Ed.
Source : III ADC (2006), 205.