Appellate Division Cases
Md. Kamaluddin and others ……………………Petitioners
(In C.P. No. 1735 of2005)
Abdus Sattar and others ………………………Petitioners
(In C.P. No 50 of 2006)
Bangladesh represented by the Secretary,
Ministry of land, Bangladesh Secretariat,
Ramna, Dhaka and others …………………….Respondents (In both the cases)
Syed J.R. Mudassir Husain CJ
M.M. Ruhul Amin J
Amirul Kabir Chowdhury J
Order Dated: 25th June 2006
Section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982
Section 38 read with Section 43, 73 of Town Improvement Act, 1953
High Court Division committed error in not finding that RAJUK failed to make out
any case of public purpose for which the land of the writ petitioners was going to be
Thus it is evident that the purpose of acquistion of the petitioners land for the said project does not amount to a public purpose within the meaning of the law, and
thus the High Court Division erred in discharging the Rule ……………(13)
The High Court Division failed to consider the grounds raised above in particular disregarded authoritative decisions of this Court that it is not sufficient for the government merely to state that acquisition of land is for a public purpose rather the government of materials been satisfied that the acquisition of land is required for a public purpose or in the public interest and it is manifestly evident that the respondent has totally failed to discharge this responsibility and thus the High Court Division erred in discharging the rule ……………..(14)
Civil Petition For Leave to Appeal No. 1735 of 2005 (From the Judgment and order dated
31.08.2005 passed by the High Court Division in Writ Petition No. 3941 of 2002.)
Civil Petition For Leave to Appeal No. 50 of 2006 (From the judgment and order dated
31.08.2005 passed by the High Court Division in Writ Petition No. 3941 of 2002.)
Amirui Islam, Senior Advocate, instructed by Sufia, Khatun, Advocate-on-Record……………For the Petitioners (In C.P. No. 1735 of 2005)
Dr. Kamal Hossain, Senior Advocate, (Sara Hossain, Advocate with him) instructed by
Sufia Khatun, Advocate-on-Record………….For the petitioners (In C.P. No 50 of 2006)
A.J. Mohammad AH, Senior Advocate, instructed by Zainul Abedin, Advocate-on-
Record For Respondent No. 5 (In both the cases)
Respondent Nos. 1-4, 6-42 (In C.P. No. 1735 of 2005)………….Not represented.
Respondent Nos. 1-4, 6-45 (In C.P. No 50 of 2006)…………Not represented.
1 Amirul Kabir Chowdhury J– Civil Petition for Leave to Appeal No. 1735 of 2005 has
been preferred by Md. Kanialuddin and 23 other writ petitioners calling in question the
judgment and order dated 31.08.2005 passed by a Division Bench of the High Court
Division in Writ Petition No. 3941 of 2002.
2. Civil Petition for Leave to Appeal No. 50 of 2006 is at the instance of Abdus Sattar and 15 other writ petitioners challenging the aforesaid judgment and order dated 31.08.2005.
3. Both the leave petitions arising out of the same judgment passed in the same writ petition are disposed of by this single order.
4. The facts necessary for disposal of the leave petitions are that the petitioners claiming
to be land owners and cultivators in Parabarta and Borokaw Mouza in the district of Gazipur filed the above mentioned writ petition claiming it to be a public interest litigation. They challenged notice dated 22.06.2002 issued under Section 3 of the
Acquisition and Requisition of Immovable Property Ordinance, 1982 hereinafter referred
to as the Ordinance alleging that the respondents without application of their mind as to
the suitability of Parabarta and Borokaw Mouza for developing the satellite town and
overlooking the master plan i.e. Dhaka Metropolitan Development Plan, in short, DMDP which forbids any such project in the habitat of Kaliganj Police Station and without
considering that the project would affect the flow of the river Shitalakkha and thus would
lead to environmental hazard due to destruction of forest and vegetation of a vast area
consisting of 15 lash green Villages and that RAJUK initiated a proposal for acquiring the land for Yusufganj project and thereby causing the acquisition of land in L.A. Case Nos. 2/2000-2001, 3/2000-2001 and 7/2001-2002 violating the provision of Section 38 read with Section 43 of Town Improvement Act, 1953 in short the Act and that under the provision of Section 38 under “improvement scheme” as defined in Section 2(f) of the Act, RAJUK cannot proceed with the acquisition and that RAJUK started the acquisition of the land in question contrary to its master plan i.e. DMDP. It was further stated that under Section 73(1) of the Act, RAJUK may prepare a Master Plan for an area but for acquistion of the case and no such Master Plan has been prepared. Moreover in the DMDP, Volume-I: Dhaka Structure Plan (1995-2015) purbachal/Yousufuganj and Kaliganj projects (for which the case lands are going to be acquired) scored negative and thus DMDP specifically excluded Kaliganj Thana from the RAJUK area. It was further averred that the Acquiring Body issued the impugned notices under Section 3 of the Ordinance for Purbachal (Yousufganj) Upo-Shohar project allegedly for public interest/public purpose but in fact it was not for any public purpose or public purpose
and upon receipt of the notice the writ petitioners lodged objection against the proposed
acquisition to the Deputy Commissioner as per Section 4 of the Ordinance but their objections were rejected illegally by the Deputy Commissioner and as such the petitioners moved the High Court Division in its writ jurisdiction.
5. The rule was contested by the writ respondent Nos. 1 to 4 filing affidavit-in-opposition
denying material averments of the writ petition. It was stated that Government for public
purpose and for public interest therough Rajdhani Unnoyan Kartipakkah (RAJUK)
undertook a model town project, namely, Purbachal (Yusufganj) Upo-Shohar in 9931994 and has been acquiring land for the purpose of building model towns (Upo-Shohar)
and for the purpose at the instance of RAJUK government started the process of acquistion of 4,5000 acres of land in 14 mouzas of Rupgonj Police Station of the district of Narayangonj and 61589. 8925 acres of land in two mouzas in question in Case No. 2/20002001, 3/2000-2001 and 7/2001-2002 and accordingly the Deputy Commissioner issued notice under Section 3 of the Ordinance 1982. It was further stated that major part of the project with 4,500 acres of land under Rupgonj Police Station have been completed
and the area of 1589.8925 acres in mouza Parabarta and Borokaw of Kaligonj Police
Station under the district of Gazipur is part and parcel of the project which is number
process of acquisition and as such notices under Section 3 of the Ordinance have been
served on 22.05.2002 for the purpose of requisition and acquisition and that the requiring
body has no malafide intention and that the objections filed by some of the writ petitioners have been rejected assigning reasons. It was also stated in the affidavit-in-opposition that the writ petition is not maintainable and the rule liable to be discharged. The High Court Division after hearing the parties by the impugned judgment and order discharged the rule.
6. Hence are these petitions. Mr. Amir-ul Islam, learned Counsel appeared
for the petitioners in Civil Petition for leave to Appeal No. 1735 of 2005 while Dr. Kamal
Hossain, learned Counsel represented the petitioners in Civil Petition for Leave to
Appeal No. 50 of 2006.
7. Referring to Section 73 of the Town Improvement Act, 1953 Mr. Amir-ul Islam
submits that under the aforesaid provision RAJUK is required to prepare a master plan
for the area within its jurisdiction indicating the manner in which it proposes to use the
land and stages by which any such development should be carried out and that in the
instant case RAJUK failed to produce any such plan to show that the case lands have
been included in any such plan. Rather government approved a master plan named as
Dhaka Metropolitan Development Plan (DMDP) wherein the case lands being situated, within Kaliganj Police Station have been excluded.
8. He then refers to Section 74(1) of the Act and submits that the master plan so prepared
by RAJUK and approved by the Government under Section 73 of the Act is binding both
upon the requiring body and the acquiring body and it would be unlawful for anybody to
use the land in any other way.
9. Elucidating the argument he refers to the aforesaid DMDP Structure Plan and submits
that six possible candidate locations for dispersed development were evaluated by
DMDP against the above criteria these were, in descending other of priority, Tongi, Savar, Dhamsona, while Purbachal/Yousufganj and Kaliganj secred negative. Any decision to proceed with major government initiated develpoment at these locations are to be deferred until after the end of the DMDP Structure Plan period, upto 2015 [page 39-40
of Dhaka Metropolitan Development Plan (DMDP), Vol-I: Dhaka structure Plan (19952015)]
10. He thereafter refers to Section 38 of the Act and submits that if it appears to RAJUK
that it is expedient and for the public advantage to acquire the land to provide housing
accommodation, RAJUK may pass resolution to that effect and may then proceed to frame an improvement scheme but in the instant case RAJUK failed to produce any resolution in support of its acquisition of the land of the petitioners and so, according to the learned Counsel, the acquisition of the land without any such resolution is without jurisdiction.
11. He thereafter submits that the High Court Division committed error in not finding that
RAJUK failed to make out any case of public purpose for which the land of the writ
petitioners was going to be acquired.
12. He lastly submits that the finding of the High Court Division that the . alleged
violations of the provisions of Town Improvement Act, 1953 have no nexus in this
case is illegal inasmuch as when a notice has been served under Section 3, objection was
made and decision was taken under the acquisition and requisition of Immovable Property Act, 1982 the grievance of the writ petitioners as to violation of the Town Improvement Act, 1953 ought to have been considered by the High Court Division and that the High Court Division erred in law in avowing that despite Violation of certain provisions under Town Improvement Act, 1953 in initiating the acquisition process, it has no nexus in the instant case.
13. Dr. Kamal Hossain, learned Counsel appearing in Civil Petition for Leave to
Appeal No. 50 of 2006 submit, inter alia, that the High Court Division failed to consider the grounds raised in the case in particular the manifest violation of the Dhaka Meropolitan Development Plan which expressly stated that even any decision to proceed with the Purbachal Yusufganj Project itself shall be deferred until ‘after the completion of the Structural Plan Period’ that is 2015, and thus it is evident that the purpose of acquistion of the petitioners land for the said project does not amount to a public purpose within the meaning of the law, and thus the High Court Division erred in discharging the Rule.
14. He further submits that the High Court Division failed to consider the grounds raised
above in particular disregarded authoritative decisions of this Court that it is not sufficient for the government merely to state that acquisition of land is for a public purpose rather the government of materials been satisfied that the acquisition of land is required for a public purpose or in the public interest and it is manifestly evident that the respondent has totally failed to discharge this responsibility and thus the High Court Division erred in discharging the rule.
15. Mr. A.J. Mohammad AH, learned Attorney General on the other hand appearing
on behalf of the respondents opposes the petitions. He refers to the notice issued under
Section 3 of the Ordinance and submits, inter-alia, that the writ petition was filed challenging the notice under Section 3 and the land acquisition cases in question were not challenged and that in the meantime Land Acquisition case No. 3/2000-2001 had been
disposed of and even acquisition being finalized it has been notified in the Bangladesh
Gazette on 15 September 2005 and so the writ petition has become infructuous.
16. He further submits that the major part of the project in 4,500 acres of land under
Rupgonj P.S. in Narayangonj district has been duly acquired and compensation has been
paid to the land owners and affected persons. The area of 1589.8925 acres in mouza
Parabarta and Borokaw of Kaligonj P.S. under Gazipur District is part and parcel of the
Purbachal (Yusufgonj) Uposhahar Project. Major part of the Project has already been
completed and the rest part of 1589.8925 acres in Gzipur district is under process of
acquisition and notice under section 3 of Acquisition and Requisition of Immovable
Property Ordinance, 1982 has already been served on 22.06.2002 for the purpose of
acquisition and requisition and of the purpose of wide circulation for greater public interest. He further submits that objections filed by some of the writ petitioners have been
rejected after hearing them there being no substance and that the project being almost
complete the action of the writ petitioners in stopping the completion of the project
unnecessarily is malafide and further prolongation of the project shall entail
complications and as such the High Court Division correctly decided the case and
discharged the rule. There is nothing to interfere.
17. The submissions made on behalf of the petitioners in both the petitions merit consideration.
18. Lave is granted in both the petitions to consider the same.
19. Security of Tk.1,000/- in each cases is to be deposited within one month.
20. Preparation of paper book is dispensed with as prayed for.
21. Stay granted earlier be extended for further 2 (two) months from date.
22. The parties are directed to file the concise statement within one month.
Source: IV ADC (2007), 27