Md. Atiqullah Vs. Bangladesh | The Lawyers & Jurists

Appellate Division Cases

(Civil)

PARTIES

Md. Atiqullah.. …………………………Appellants

-vs-

Government of the People’s Republic of Bangladesh ,

represented by the Land Acquisition Collector & others ………………Respondents,

(in all the cases)

JUSTICE

Md. Ruhul Amin. C.J

Syed J. R. Mudassir Husain. J

M. M. Ruhul Amin J

JUDGEMENT DATE: 11^th January, 2004

The Code of Civil Procedure 1908 (v of 1908), Section, 2(2) and 2(9), 114, 117, 151.

The Ordinance (Ordinance II of 1 1982), Section, 32 (3), 34, 36, (2 of 1982).

The constitution, Article 102(2).

Order 47, Rule 1& 2 of the Code of Civil Procedure. Behari Lai and another vs M. M.

Gobardhan Lai . A. I. R 1948 (Allahabad) 353. Jwala Peasad vs Jawala Bank Ltd AIR 1961 Allahabad 381. AbulBasaher Chowdhury vs. Mehar Khatun reported in 35 DLR (1983)6. Hussain Bakhsh Vs. Settlement Commisioner 21 DLR (SC) 456. 25 DLR (1983)6. Begum Lutfunnessa vs. Nazimuddin Ahmed and others reported in 40 DLR 232. Khaled Akbar vs. The Government of Banghladesh 42 DLR 66. Adalat Khan Chowdhury & other vs. Province of East Pakistan reported in P.L.R 1959 Dhaka Series 688.

Right to file in appeal is a general right which is not restricted in any way. The right

to apply for review of a judgment is restricted under section 114 and order, 47, Rule 1 of the code of Civil Procedure …………………….(9)

It is clear that the arbitrator is a civil court for a limited purpose as enumerated in

Section 36 of the Ordinance and by no stretch of imagination it can be said that the

Arbitrator is a Civil Court for all purposes, although in section 32 (3) it has been provided that every award passed by the Arbitrator shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2(2) and Section 2(9) respectively of the Code of Civil procedure 1908(v of 1908) ……………………(17)

Abdul Wadud Bhuiyan, Senior Advocate instructed by Fakrul Islam, Advocate-on-

Record…………… For the Appellant (in all the cases)

Ex-parte ……………………For the Respondent (in all the cases)

JUDGMENT

1. M. M. Ruhul Amin, J : These three appeals by leave have arisen out of the judgment

and order dated 03.03.1998 passed by a Division Bench of the High Court Division in

writ Petition Nos. 2153 , 2154 and 2155 of 1993 making the Rules absolute against the

judgment and ward dated 31.08.1992 passed by the learned Subordinate judge (now Joint district Judge) and Arbitrator, Dhaka in Arbitration Revision Miscellaneous case No. 14 of 1991 arising out of Arbitration Revision case No. 1816 of 1990 filed against the land Acquisition Collector Award in Requisition and Acquisition Case No. 12 of 1987-88.

2. Common questions of facts and law being involved the writ petitions were disposed

of by one judgment. So these three appeals were also heard together and are disposed of by this judgment, which shall govern all.

3. Short facts are that the land Acquisitions Collector, Dhaka under the provisions of the

Acquisition and Requisition of Immovable property Ordinance, 1982 (Ordinance No. II of 1982) hereinafter referred to as the Ordinance in Land Acquisition case No. 12 of 1987-88 acquired the case land of the petitioner on 18.03.1989. On 28.03.1989 notifications were issued accordingly and compensation assessment was prepared on 16.10.1991. The petitioner received the award on protest. The petitioner being dissatisfied with the quantum of award filed Arbitration Revision Case No. 1836 of

1990 before the learned Subordinate Judge, (now Joint District Judge) and Arbitrator,

Dhaka who by his judgment and award dated 15.08.1991 in the Arbitration Revision Case dismissed the same and affirmed the award made by the collector. The petitioners then filed Arbitration Revision Miscellaneous Case No. 14 of 1991 under the provisions of Order 47 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure for the review of judgment and order dated 15.08.1991. The learned Subordinate Judge ( now Joint district Judge) and Arbitrator allowed the Arbitration Revision Miscellaneous Case, recalled the judgment and order dated 15.08.1991 and set aside the award dated 18.03.1989 made by the Collector and enhanced the award from Tk. 2,12,001.00 to Tk. 5,99,637.63 only as compensation for acquisition . The respondent government being

aggrieved by the judgment and order passed in the revision misc. case (review) filed and application under Article 102(2) of the constitution of the People’s Republic of Bangladesh in the High Court division . The writ petition was contested by the petitioners appellants on the ground, inter alia, that the Review Miscellaneous petitioner was filed only after obtaining Certain valuable documents which could not be produced earlier before the Arbitrator.

4. The High Court Division by its judgment and order dated 31.03.1998 held that Section 28 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 provides

that any person interested who has not accepted any award made by the Deputy Commissioner within 45 days from the date of service of notice of the award may make an application to the Arbitrator for revision of the award but there is no provision in the Ordinance enabling such a person to file review Miscellaneous Petition under Order 47 rules 1 & 2 read with Section 151 of the Code of Civil Procedure for remedy. Section 34 of the Ordinance provides the filing of appeal against an award made by the Arbitrator, but in the instant case the petitioner without filing appeal under section 34 filed the review petition. The High Court Division did not accept the plea of natural justice as there is no provision in the Ordinance to prefer review application.

5. Leave was granted to consider the submissions that the writ petition filed against the

judgment and award dated 31.08.1992 passed by the learned Subordinate Judge (now Joint district Judge) and Arbitrator, Dhaka in Arbitration Revision Miscellaneous Case No. 14 of 1991 without Exhausting the remedy by way of appeal to the Arbitration Appellate Tribunal under Section 34 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 were wholly unmentionable in law and the High Court Division having not adverted to this aspect fell into an error of law and there fore the impugned judgment and order were wholly illegal and unsustainable in laws that in terms of the provisions of Section 32 (3) of the Acquisition and Requisition of Immovable Property Ordinance, 1982 read with Section 2(2) and 2 (9) of the code of Civil Procedure, the award made by the Arbitrator under the said Ordinance shall be deemed to be a decree against which a review application under order 47 Rules 1 & 2 of the Code of Civil Procedure is maintainable and the application for review having been filed earlier in point of time before the filing of the appeal on the grounds inter alia, on discovery of new and important matter, the court had jurisdiction to deal with the review application , that the Court having granted the review and having modified the award before the disposal of the appeal (which was filed after the filing of the review application ) the appeal became in fructuous and the court did not commit any illegality in allowing the review application and the High Court division, therefore, committed an error of law in interfering with the award dated 31.08.1992 made by the Arbitrator in Arbitration Revision Miscellaneous Case No. 14 of 1991 arising out of Arbitration Revision Case No. 1836 of 1990.

6. we have heard Mr. Abdul Wadud Bhuiyan, the learned Senior Counsel for the

appellants. The pertinent question for determination in this matter is whether the learned Joint District Judge and Arbitrator has power to review his judgment earlier passed in view of the fact that in the Acquisition, and Requisition of Immovable Property Ordinance, 1982 there is no provision for such review.

7. Mr. Bhuiyan mainly argued that Section 32 (3) of the Ordinance provides that every

award under the Ordinance shall be in writing signed by the Arbitrator. Every such award

shall be deemed to be a decree and the statement of the grounds of every such award a

judgment within the meaning of Section 2(2) and Section 2(9) respectively of the Code of

Civil Procedure, 1908 (v of 1908). Therefore, the right to review is available although there is no express provisions for review in the Ordinance. He further argued that the learned Arbitrator made review of the decree earlier passed by him. So he correctly did it.

8. In support of his contention the learned advocate has cited the case of Adalat Khan

Chowdhury & other Vs. Province of East Pakistan reported in P. L. R. 1959 Dhaka series

688 and submitted that in that case it was held that the Arbitrator can, at the instance of a party, review his order in accordance with law under order 47 Rule 1 of the Code of Civil Procedure. In that case it was held as follows :”The fact remains that the landlord not

only suppressed the facts, but also misled the arbitrator in thinking that only the ground floor had been let out in 1938 at a rental of Rs. 100 per month. The fraud was a new and important matter which was not within the knowledge of the Government at the time of

arbitration. Further, the contention that they could not detect it at the time with due diligence has also some substance. Hence the allegations made are sufficient to attract the provisions of Order 47, Rule 1 of the Civil Procedure Code.”

9. He next cited the case of Behari Lai and another Vs. M. M. Gobardhar Lai and others

reported in A. I. R 1948 (Allahabad) 353. In that case, it was held that the right to file an

appeal is a general right which is not restricted in any way. The right to apply for review of a judgment is restricted under section 114 and Order 47, Rule 1 of the code of Civil Procedure. It should not, therefore, be an appeal subsequently filed which should be rejected as being incompetent in view of a review application having been filed earlier, but it should be the review application which should be rejected on the ground that it is no more competent, an appeal having been filed against the decree sought to be reviewed and the matter being within the purview of the appellate court which can look into the grounds on which the review application is presented.

10. He then cited the case of Jwala Prased vs Jwala Bank Ltd. reported in AIR 1961 Allah bad 381 and submitted that in that case, it was held by virtue of Section 117, Section 114, C.P.C applies to proceedings taken by the High court in the exercise of its appellate jurisdiction . thus the High Court may (subject to the conditions and limitations to be found in Order 47 of the code of Civil Procedure) review its judgment in all cases except where an appeal from a decree or order founded upon that judgment is allowed under the code and has been preferred. Where, therefore, no appeal has been preferred,

a decision given by the High Court in a special appeal is open to review. A special appeal is the name given by the rules of the Allahabad High Court to an appeal which lies from judgment of one judge of the High Court in the Circumstances mentioned in Cl. 10 of the

Letters patent.

11. He next cited the case of Abul Basher chowdhury Vs. Mehar Khatun reported in 35

DLR (1983)6 and submitted that under Order 47 Rule 1 a review may be granted only under specific circumstance to meet certain specific situations and not for re-opening the order or decree on any pretext.

12. He then cited the case of Hussain Bakhsh Vs. Settlement Commissioner and

another reported 21 DLR (SC) 456. In that case, it was held that the High Court in its writ jurisdiction is competent to review its own decision under clause (b) of Section 114 of the code. It was further held that the right to claim review of any decision of a court of law, like the right to appeal, is a substantive right and not a mere matter of procedure.

13. He next cited the case of Begum Lutfunnessa Vs. Nazimuddin Ahmed and others

reported in 40 DLR 232, In that case, it was held that, award given by an Arbitrator shall be deemed to be a decree and the statement of the grounds of such award to be a judgment within the meaning of Section 2(2) and section 2(9) of the Code of Civil Procedure respectively. The Arbitrator shall have all the powers of a Civil Court under Section 36 of the Ordinance No. 2 of 1982. In that case, it was further held that Arbitrator is a persona designate, a functionary designated not by name but as one of a class and as the Arbitrator is not a Court at all within the meaning the code of Civil Procedure there

can be no question of his being subordinate to High Court Division. Hence no contempt proceedings can be drawn against the opposite parties. In that case it was further held that the Arbitrator does not exercises a judicial function in course of inquiry or investigation into the amount of compensation although he is excepted to act within judicial norms. It was further held that in view of the deeming provision in section 32 (3) of the Ordinance the award of the Arbitrator is appeal able as a decree land also executable as a decree. But status of the Arbitrator has not undergone any change thereby . He is not elevated by virtue of the deeming clause in sub section (3) of Section 32 of the Ordinance to the position of a civil Court.

14. He lastly cited the case of khaled Akbar Vs. The government of Bangladesh and other

reported in 42 DLR 66. In that cases it was held that Member of the Arbitration Appellate

Tribunal is a court and his decision is amenable to the revision jurisdiction of High Court division. In the above-cited cases accepting the case reported 42 DLR 66 all the cases were civil proceedings governed by the Code of Civil Procedure.

15. Section 36 of the Ordinance Provides that the Arbitrator, while holding any enquiry or proceeding under this Act, shall have the same powers as are vested in a civil court under the court of civil Procedure 1908 (v of 1908) for the purpose as enumerated in the Section itself that is for the following purpose: -Summoning and enforcing the attendance

of any person, and examining him on oath; Compelling the production of any document

of record Reception of evidence on affidavit issuing commission for examination of witnesses requisitioning any public record from any court of office.

16. The Arbitrator is a creature of statue (Ordinance II of 1 1982) and under Section 36

of the Ordinance he has been vested with some limited powers of the Civil Court while holding any enquiry or proceedings as stated above.

17. Therefore, from our above discussion it is clear that the arbitrator is a civil court for a

limited purpose as enumerated in Section 36 of the Ordinance and by no stretch of imagination it can be said that the Arbitrator is a Civil Court for all purposes, although in section 32 (3) it has been provided that every award passed by the Arbitrator shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2(2) and Section 2(9) respectively of the Code of Civil procedure 1908(v of 1908).

18. It is needless to mention that section 114 of the Code of Civil Procedure provides for

substantive right of review by the aggrieved party and Order 47. C. P. C provides for the procedure. The mere fact that in section 32 (3) of the Ordinance it has been said that the award shall be deemed to be a decree and the statement of the grounds of such award a judgment within meaning of Section 2(2) and Section 2(9) respectively of the Code of Civil Procedure it will not confer any substantive right of review on the petitioner in the absence of any specific provision for review in the Ordinance. Therefore the submission of Mr. Bhuiyan that only because the award passed by the arbitrator shall be deemed to be a decree, the right of review is available to the petitioner can not be accepted.

19. Since there is provision for appeal under Section 34 of the Ordinance and the

appellants without filing appeal preferred review application before the Arbitrator, the

review application is not maintainable.

20. Mr. Bhuiyan lastly submitted with reference to judgment passed by the Arbitrator in

Review Arbitration Misc, Case 16 of 1991 the Arbitrator in the judgment held that land

acquired in the same L.A case in respect of the same and other adjoining Mouzas the compensation money was assessed at a higher rate and the petitioner was entitled to that rate . In this view of the matter the Arbitrator reviewed the earlier judgment and fixed the amount of award at Tk. 6,38, 797. 63 Mr. Bhuiyan submitted that the reasons assigned by the Arbitrator for enhancing the rate of compensation money are quite legal and based on the facts on record. He accordingly submitted that under Article 104 of the Constitution, this court has power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance of any person or the discovery or production of any document.

21. He further submitted that after getting favorable order in the review case, the petitioner allowed the arbitration revision appeal No. 16 (which) filed by him subsequent to the filing of the review case) to be dismissed for non prosecution and as such he is now left with no remedy. We fined substance in this submission of Mr. Bhuiyan. In view the Discussion made above, these appeal are dismissed with modification without any order as to costs. To do complete justice in the matter under Article 104 of the constitution the respondent No. 1 is directed to pay within 60 days Tk. 6,38.797.63/- to the appellants.

Source: I ADC (2004), 320