Mujibul Haque Vs. Lokman Mia

Appellate Division Cases

(Civil)

PARTIES

Mujibul Haque …………………..Petitioner

-vs-

Lokman Mia ……………………..Respondents

JUSTICE

Mainur Raza Chowdhury. C. J

Mohammad Fazlul Karim. J

K. M. Hasan. J

JUDGEMENT DATE: 20th July, 2002

The Land Acquisition Act 1894, Section 16,11.

Bangladesh Vs. Barekunnessa 4 BLC (AD) (1999) 130.

A careful reading of section 16 indicates that where the collector has made an award under Section 11 in respect of land acquired under this Act such land shall vest absolutely in the Government free from all encumbrances. Thus, vesting title in the land acquired becomes absolute as soon as compensation award is made. If the Government after making compensation award does not elect to go physically into possession of land, it cannot be said that because of that title does not vest absolutely in the government. According to Section 16 vesting is absolute as soon as commendation award is made ………………………..(4)

It is also submitted that the petitioner made a search in the office of the Deputy Commissioner, Noakhali as to whether the suit land or its portion was acquired at all by the Government. The office of the Deputy Commissioner, Noakhali on 31.1.2001 replied to that the Government did not acquire the aforesaid suit land or any portion of it. It is further submitted that the petitioner of the aforesaid Title Suit No. 176 of

Civil Review Petition No. 23 of 2001. (From the judgment and Order dated 25 July

2002 passed by the Appellate Division in Civil Appeal No. 75 of 1997).

1984 due to mistaken belief had wrongly described the suit land as acquired by the government. These submissions were never made at any stage in disposing of the title Suit No. 176 of 1984. The petitioner is now making out a third case with completely now facts which cannot be considered and decided in review…………………… (5)

Khondker Mahbubiiddin Ahmed Senior Advocate, instructed by, Aftab Hossain,

Advocate-on-record…………… For the Petitioner

Not represented ……………………Respondent

JUDGMENT

1. Mainur Reza Chowdhury, C. J :- This civil review petition arises from the judgment of this division passed in civil Appeal No. 75 of 1997 allowing the appeal after setting aside the judgment and order passed by the High Court Division in Civil Revision No. 5089 of 1991 (Civil Revision No. 139 of 1989 Comilla) making the Rule absolute.

2. The review petitioner as plaintiff filed Title Suit No. 176 of 1984 in the Court of Upazila Munsif, Begumganj for declaration of his title to . 19 acres of suit land with prayer for injunction restraining the Government from leasing out .08 acres of his share of the suit tank to the defendant appellant respondent Lokman Mia, restraining him from disturbing his possession of the suit tank and for partition of the suit land .His case is that the Government of India acquired entire land of C. S. Plot No. 21 which originally belonged to one Aslam Mia and land of others under the land Acquisition Act. 1894 during 1940 -41 for the purpose of establishing the district headquarters of Noakhali, but the government never took possession of the acquired lands and he purchased the suit land from the admitted owner by three registered kabalas dated 24.3.74 and 24. 12.77. Since then he has been in possession of the suit land and the Government was now contemplating to lease out the same including the suit tank to the respondent. The respondents contested the suit by filing written statements stating inter alia that the appellant did not acquire any title to the suit land by purchase as the suit land was acquired and there by the title vested in the government. The trial court decreed the suit.

3. The respondent Lokman Mia filed Title Appeal No. 101 of 1988 and the Government respondent filed Cross Appeal No. 128 of 1988. The appeals were heard together by the lower appellate court which allowed the appeals setting aside the judgment and decree of the trial court dismissing the suit. The respondent, against the decree of the lower appellate court, filed Civil Revision NO. 5089 of 1991 and the same was made absolute by the learned Single Judge by the judgment and order dated 19.3.1997.

4. Being aggrieved the respondent filed Civil Appeal No. 76 of 1997 before this Division which allowed. This Division found that the High court Division had committed an error in misapplying section 16 of the Land Acquisition Act 1894 by holding “therefore, the suit land has not yet been vested absolutely in the Government and the plaintiff can hold the suit land till the Government takes possession there of in accordance with law. On perusal of the judgment passed by the learned District Judge we fined that he did not consider the case in this aspect and consequently he has committed an eiTor of law resulting error in his decision occasioning failure of justice. ” This Division held that this was an erroneous view of the law by the learned Judge of the High Court Division. A careful reading of section 16 indicates that where the collector has made an award under Section 11 in respect of land acquired under this Act such land shall vest absolutely in the Government free from all encumbrances. Thus, vesting title in the land acquired becomes absolute as soon as compensation award is made. If the Government after making compensation award does not elect to go physically into possession of land, it cannot be said that because of that title does not vest absolutely in the government. According to Section 16 vesting is absolute as soon as commendation award is made. This view was also expressed in the case of Bangladesh vs. Barekunnessa 4 BLC (AD) (1999) 130. In the instant case it was evidently found by the Court below that compensation money was deposited in the Civil deposit which sufficiently indicates that award was made by the Collector in terms of Section 11 of the Act. Further the plaintiff without challenging the validity or otherwise of the acquisition proceeding challenged the right of the Government to lease out the suit land on the ground that he was in possession by purchase from the original owner and sought for declaration of his title to the suit land. It also appears that the suit land along with other land was recorded in the Government Khas Khatain No . 1 in 1960 and the Court of appeal below reversed the finding of the trial court that Government received rents from the original owner as the same is based on no evidence and this has not been reversed by the High court Division. Accordingly this Division held that the High Court Division in revision committed an illegality in setting aside the judgment of the lower appellate court.

5. It is now submitted by the plaintiff review petitioner that in the meantime he has come to know from Serajuddin Ahmed one of the heirs of the recorded tenant Md. Musa Mia that the suit property was never acquired by the Government and as such the Title Suit No. 176 of 1984 in the Court of Upazial Munisf, Begumgaj filed by the petitioner was in wrong forum and as such a review is justifiable in this appeal. It is also submitted that the petitioner made a search in the office of the Deputy Commissioner, Noakhali as to whether the suit land or its portion was acquired at all by the Government. The office of the Deputy Commissioner, Noakhali on 31.1.2001 replied to that the Government did not acquire the aforesaid suit land or any portion of it. It is further submitted that the petitioner of the aforesaid Title Suit No. 176 of 1984 due to mistaken belief had wrongly described the suit land as acquired by the government. These submissions were never made at any stage in disposing of the title Suit No. 176 of 1984. The petitioner is now making out a third case with completely now facts which cannot be considered and decided in review. The petition is therefore dismissed.

Ed

Source: I ADC (2004), 431

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