Abdul Gafur Khan and others Vs. Government of Bangla­desh and others, 42 DLR (AD) (1990) 99

Case No: Civil appeal Nos. 60 and 137 of 1983

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. B. Hossain,Mr. Golam Rabbani,A. W. Mallick,,

Citation: 42 DLR (AD) (1990) 99

Case Year: 1990

Appellant: Abdul Gafur Khan and others

Respondent: Government of Bangla­desh and others

Subject: Land Law, Requisition of Property, Property Law,

Delivery Date: 1984-1-24

 
Supreme Court
Appellate Division
(Civil)
 
Present:
FKMA Munim, CJ.
Badrul Haider Chowdhury, J.  
Shahabuddin Ahmed, J.
Chowdhury ATM Masud, J. 
Syed Md. Mohsen Ali, J.
 
Abdul Gafur Khan and others
….....................Appellants
Vs.
Government of Bangla­desh and others
.........................Respondents
 
Judgment
January 24, 1984.
 
The Emergency Requisition of Properly Act, 1948
Section 3
Notice was served in 1962 but acquisition was made in 1968. So 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. The valuation ascertained by the High Court Division has met the ends of justice, fairness and equity even though the Learned Judge of the High Court Division missed the appropriate law for latches of the parties. The Appeals are dismissed…………..(5) 
 
Lawyers Involved:
M. Gholam Rabbani, Advocate, instructed by Md. Sajjadul Huq, Advo­cate-on-Record (absent)— For the Appellants (In Civil Appeal No. 60 of 1983)
A.  W.  Mallick, Advocate-on-Record—For the Respondents (In Civil Appeal No. 60 of 1983)
B. Hossain, Advocate-on-Record—For the Appellants (In Civil Appeal No. 137 of 1983)
M. Gholam Rabbani, Advocate instructed by Md. Sajjadul Huq, Advo­cate-on-Record (absent)— For the Respondents (In Civil Appeal No. 137 of 1983)
 
Civil appeal Nos. 60 and 137 of 1983.
(From the Judgment and order dated 14-11-1982 passed by the High Court Division, Rangpur Bench in F.M.A. No. 242 of 1979.)
 
JUDGMENT
 
Shahabuddin Ahmed J.
 
           These two ap­peals, one by the Government, and the other by the land owner whose land has been acquired, are directed against the common judgment of a Single Judge of the High Court Division, Rangpur Bench, dated 14 November, 1982. By this judgment the compensation as award­ed by the Arbitrator (District Judge) was enhanced; but both the parties challenged the enhancement contending that the enhance­ment was made arbitrarily and not in accor­dance with law though they differ as to which is the appropriate law governing the subject.
 
2. An area of 9.09 acres of land inclu­ding a tank, which admittedly belonged to appellants in Civil Appeal No, 60 of 1983, was requisitioned under section 3 of the Emergency Requisition of Property Act, and possession was taken on 8 March 1961 for construction of WAPDA Colony. Subse­quently, the land was acquired on 1 Novem­ber 1968. The Deputy Commissioner, Rajshahi, assessed compensation at Tk. 41,053.03 paisa, the rate of which comes to about Tk. 4,500/- per acre. The land owners did not accept this assessment on the ground that it was very inadequate and brought the matter to the Arbitrator appointed under this Act. Before the Arbitrator the Go­vernment produced some sale-deeds of the years 1958-61 in order to show that the average value of similarly situated lands in the neighborhood was Tk. 6,000/- per acre; whereas  the land owners produced some sale deeds of the year 1968 showing per acre value of land in the vicinity at Tk. 60,000/-. The Arbitrator did not accept either of these two widely divergent claims and fixed valuation at Tk. 20,000/- per acre, and on that basis made an award for Tk. 2,52,361/-. The owners filed an appeal First Miscellaneous Appeal No. 242 of 1979—and the learned Single Judge of the High Court Division by the impugned judg­ment took the average value of land during the period between the year 1961 in which the land was requisitioned, and the 1868 in which the land was finally acquired, and on that basis fixed the valuation at Tk, 30,000/- per acre. Accordingly, the learned Single Judge raised the assessment from Tk. 2,52, 361/- to Tk. 3,50,000/-.
 
3. Leave was granted to both Govern­ment in Civil Appeal No. 137 of 1983 and the land owners in Civil Appeal No. 60 of 1983 to examine whether the assessment as finally made by the learned Single Judge was in accordance with the law governing the subject.
 
4. Mr. B. Hossain, learned Assistant Attorney-General, has contended that com­pensation should be assessed on the average value of land during the period of 24 months prior to the date of service of notice for acquisition under section 5(1) of the Emerge­ncy Requisition of Property Act. He has submitted that the notice under section 5(1) for acquisition of this land was served on 14 April 1962 and as such the average value of land during twenty four months preceding this date- 14-4-62— would be the determining factor. So far as the position of law is con­cerned, this is the exact position as specifically provided in clause (e) of section 7 of the Emergency Requisition of Property Act, which is quoted below:

 
"the arbitrator in making his award shall have regard to the provisions of sections 23 and 24 and sub-section (2) of section 35 of the Land Acquisition Act, 1894, so far as the same can be made applicable:
Provided that—(i) the market-value of any immovable property for the purpose of this section shall be the weighted average value of the proper­ties of a similar description and, with similar advantages in the vicinity, dur­ing the twenty-four months preceding the date of the service of notice under sub-section (1a) of section 5."
 
Date of acquisition of this property is 1-11-68; but Mr. B. Hossain has contended, and we see, very rightly, that the date of acquisition is immaterial for the purpose of determining the value of land acquired. In the appeal filed by the owners namely. Civil Appeal No. 137 of 1983, none has appeared before us; but the ground taken therein, as well as urged by Mr. Gholam Rabbani, learned advocate who took leave to appeal, was that the period of twenty-four months should precede the date of acquisition— namely November 1, 1968. This contention is palpably wrong being contrary to the statutory provision as quoted above. The learned Single Judge as well as the learned Arbitrator did not notice this statutory provision and erroneously took, the average value during the period between requisition in 1961 and acquisition in 1968.
 
5. But neither the Government nor the land owner in this case is entitled to any benefit from this erroneous view taken by the learned Single Judge. Neither party was aware of this provision in section 7(e) of the Act, or at least they did not place it before the Single Judge of the High Court Division or before the Arbitrator. In those forums Government's contention was that ''twenty four months' should precede the date of requisition; and the land owners' conten­tion was that ''twenty-four months" should precede the date of acquisition. Government did not take the ground under section 7(e) even in their application for leave or in their concise statement, but insisted on the earlier contention that the date of requisition would be the determining factor. It is only during the hearing of these appeals today, that Mr. B. Hossain, learned Assistant Attorney General, verbally disclosed before us that the date of notice for acquisition under section is 14 April 1962 and has referred to section 7(e) for the first time. Secondly, when the Arbitrator fixed the compensation at Tk. 20,000/- per acre taking the average between 1961 and 1968, Government did not file any appeal but accepted the award. It is the owner who had filed appeal against the Award before the High Court Division. Again, though notice for acquisition under section 5 (e) was served in 1962 the land was actually acquired in 1968, that is, after the expiry of 6 years when the value of the land increased to a great, extent. Govern­ment did not explain why notice was served in 1962 but acquisition was made in 1968. Although there is no particular period within a week a requisitioned land is to be acquired after notice for acquisition has been served, yet when the 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. Be that as it may, the point of law now taken during the hearing of the appeal before us was not raised before any of the courts below. The learned Single Judge missed the appropriate law for latches of the parties, particularly, the Government; but the valuation at Tk. 30,000/- per acre is found to have met the ends of justice, fairness and equity in this case in the circumstances as shown above. We therefore do not think that any interference is called for. Substantial justice is found to have been done to both the parties.
 
In the circumstances, both the appeals are dismissed without any order as to costs.
 
Ed.