AMC Bennett and others Vs. Government of Bangladesh and others, 59 DLR (2007) 178

Case No: Writ Petition No. 6928 of 2001

Judge: Md. Awlad Ali ,

Court: High Court Division,,

Advocate: Khan Saifur Rahman,Shah Khashruzzaman,,

Citation: 59 DLR (2007) 178

Case Year: 2007

Appellant: AMC Bennett and others

Respondent: Government of Bangladesh and others

Subject: Property Law,

Delivery Date: 2006-2-6

AMC Bennett and others Vs. Bangladesh and others, 59 DLR (2007) 178
 
Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Md. Awlad Ali, J.
Zinat Ara, J.
 
AMC Bennett and others
……………..Petitioners
Vs.
Bangladesh and others
….…………Respondents
 
Judgment
February 6, 2006
 
General Clauses Act (X of 1897)
Section 3 (25)
Constitution of Bangladesh, 1972
Article 27
RAJUK has the authority to allot plots to any other persons other than the affected persons according to the scheme of RAJUK for the purpose of development of that area. No legal right or constitutional right had accrued to the petitioners who purchased the land long after the acquisition notice was published. Therefore, they cannot claim alternative plots as of right. The petitioners must first establish their right before invoking Article 27 of the Constitution. … (11)
 
Case Referred To-
Hasina Begum and others vs. Chairman RAJUK & others 57 DLR 237.
 
Lawyers involved:
Khan Saifur Rahman with MM Zulfikhar Ali Hyder and Md. Shakir Hossain, Advocates—For the Petitioners.
Shah Khashruzzaman with Reshma Sultana, Advocates—For Respondent No. 3.
 
Writ Petition No. 6928 of 2001.
 
JUDGMENT
 
Md. Awlad Ali J.
 
This Rule Nisi was issued calling upon the respondents to show cause as to why they should not be directed to refrain from transacting any business on the provisional list Annexure D, pending disposal of the applications of the petitioners for rehabilitation plots of Mouza Bailjuree corresponding to Sector 11 of the Uttara Residential Model Town.
 
2. The material facts for disposal of this Rule are, that the petitioner's predecessor's lands were requisitioned and acquisitioned in LA Case No. 2 of 1987-88 under the provision of the Acquisition and Requisition of Immovable Property Ordinance, 1982. The respondent No. 2, Ministry of Lands, imposed a precondition amongst others, that the family of the owners affected by the acquisition would be awarded in advance a plot measuring an area comprising 3-5 Khatas, by a Circular issued on 28-11-1988 and such allotment must follow before finalisation of the acquisition process as measures of rehabilitation of the affected owners. The petitioners are awardees in the said LA Case No. 2/1987-88 and they are entitled to allotment of alternative plots of land before the completion of the process of acquisition in the LA Case. The respondent No. 3 by notice published in the daily "Janakhanta" dated 12-11-1997 invited applications from the intending persons for allotment of plots in the Uttara Model Town excluding Sectors 1-9. In the said notice, the applications from the affected persons of Sector No. 11 were also invited, and the petitioners are the residents of Sector 11. The respondent No. 3 intended to allot plots to the affected persons in question, and the respondent No. 3 reserved the authority to accept or reject the appli­cation of the petitioners although they are affected persons. The petitioners in response to the notice dated 12-11-1997 individually applied to the Authority, as affected persons, for a plot in the proposed extension of Uttara Model Town scheme complying with the conditions contained in the said notice and the prospectus and the petitioners also observed all formalities in making the applications for allotment and claimed that they are entitled to DIT plots from Bailzuri mouza comprising Sector 11 of the Uttara Model Town. No allotment having been made to the petitioners pursuant to their application the petitioners filed writ petition Nos. 2885 and 2893 and 2889 and 2892 and 2895, 2897 and 2897 and 2898 in the year 1998 and those Writ Petitions were heard and judgment was delivered in Writ Petition No. 2885 of 1998 of the petitioner No. 1 and judgment of other writ petitions were also delivered thereafter (Annexure A-A6). It has been contended that although it was the legal obligation of the respondents to make advance allotment of plots before acquisition but it has not been done in spite of the judgment and directions of this court. The right of the petitioners to have allotment of plots in advance, for rehabilitation purpose are benefits that arise out of the land, and, as such, benefit is immovable property and such right is an inalienable right of the petitioners to the property. Despite notice given to the respondents, the respondents did not care to take up the case of the petitioners for consideration, thereafter, the petitioners served a notice demanding justice on 24­11-2001 for mitigating their grievance. In supplementary affidavits filed by all the petitioners, it has been stated that they are affected persons in LA Case No. 2 of 1987-88 and the awards were prepared in their names. It has been stated in the supplementary affidavit filed by the petitioner Nos. 1-5 that the petitioners purchased the lands from the original owners by different registered sale deeds in the year of 1997 and by their purchase the petitioners became the affected persons consequent to the acquisition and accordingly, their names were in the award list. The petitioner Nos. 1-5 got information that some of the co-purchasers namely, Afroza Sultana and another, got allotment of plots on the basis of their sale deeds and the petitioners are also entitled to same kind of allotment of plots to be made by the RAJUK.
 
3. The respondent No. 3 has filed affidavit-in-opposition and also filed a supplementary affidavit-in-opposition stating, inter alia, that at the time of acquisition of the land in question the Rajdhani Unnayan Kartripakkha (RAJUK) placed the entire estimated amount of compensation for the lands to be acquired at the disposal of the Deputy Commissioner, Dhaka as per his requirement and the Additional Deputy Commissioner (LA) had paid the compensation money to the bona fide affected persons and after acquisition the lands in question and other lands in LA case No. 2/87-88 vested in RAJUK free from all encumbrances. The petitioners are neither the owners nor the affected family, as such, they cannot claim allotment of residential plots as the right to allotment will depend on the internal policy of RAJUK. After scrutiny of the papers and documents some application were found to be genuine affected persons and they have already been allotted plots by the respondent No. 3, and the present petitioners are not affected persons and, as such, no allotment was made in their favour. After payment of compensation to the bona fide affected persons the ADC (LA), on behalf of the Deputy Commissioner, handed over physical possession of the acquisitioned lands of Bailjuree Mouza to RAJUK on 18-9-90, 23-9-90, 27-9-90, 18-1-90 and 24-1-1990 after completing the process of acquisition and the property acquired vested absolutely in the RAJUK. Having taken over possession of the land RAJUK proceeded to develop such lands along with other lands by earth filling for establishing the said residential model town. The petitioner purchased the acquired land of said LA Case No. 2/87-88 on different dates in the year of 1997 and, as such, the purchase is not permissible under law and the petitioners have not acquired any right, title and interest by purchase subsequent to acquisition and they are not and cannot be said to be the affected persons. The persons whose lands were acquired are only entitled to have compensation, and as of right they cannot claim alternative plot under the rehabilitation scheme.
 
4. Mr. Khan Saifur Rahman, the learned Counsel appearing for the petitioner, has mainly placed before us the supplementary affidavit dated 18-4-2005 filed by the petitioner Nos. 1-5 and contended, pointing out Annexure H-I the purchase deeds, standing in the names of (1) Irani Ahmed (2) Afroza Sultana (3) Md. Shaheen (4) Md. Osman (5) Md. Abdul Aziz, that some of the petitioners are parties to said sale deed dated 1-2-1997 and that till the date of purchase the acquisition process had not been completed, so the petitioner although purchased subsequent to the acquisition but they purchased the benefits attached to the land sold, according to clause 25 of section 3 of General Clauses Act. He has further contended, pointing out the allotment letters granted in favour of Hosneara Begum and Jobeda Khatun, that alternative plots have been allotted to those persons who became the awardees in the said LA Case and as such the petitioners are affected persons under the provision of law, and the petitioners claim for alternative plots cannot be refused by the respondent RAJUK.
 
5. Mr. Khan has specifically placed reliance in support of the said claim on an information slip, Annexure 5 and argues that award had been prepared in the name of Afroza Sultana who got allotment of plot from RAJUK.
 
6. Mr. Shah Khashruzzaman, the learned Advocate appearing for the respondent No. 3, has contended that the petitioners being the subsequent purchasers cannot claim as of right the allotment alternative plots of land as the compensation for the acquisition of lands had already been paid to the original owners, the affected persons and the physical possession of the lands had been handed over on different dates to RAJUK in the year of 1990 and the present petitioners claimed to have purchased their land in the year 1997. He has referred to Annexure Y-2 and submits that the possession of the land of the plots in question was handed over to the RAJUK by the Land Acquisition Officer, Dhaka on 18-9-1990 and therefore the petitioners being the purchasers subsequent to the acquisition of the lands which vested in the RAJUK are not entitled to get alternative plots of lands. His further contention is that the similar question raised and the claim made by others have already been decided by the Appellate Division in judgment of Civil Petition for Leave to Appeal No. 1372 of 2002 and also in the decision in the CPLA Nos. 1292, 908 and 912 of 2002.
 
7. Mr. Shah Khashruzzaman has referred to us sections 10 and 11 of the Acquisition & Requisition of Immovable Property Ordinance, 1982 and argued, that when payment of compensation as provided under section 10 has been made or is deemed to have been made the property stands acquired and vested absolutely in the Government free from all encumbrances as envisaged under section 11 of the Ordinance.
 
8. Section 11 of the Acquisition & Requisi­tion of Immovable Property Ordinance, 1982 is as follows:
 
"Acquisition and possession.— (1) When the compensation mentioned in the award has been paid or is deemed to have been paid in pursuance of section 10, the. property shall stand acquired and vest absolutely in the Government free from all encumbrances, and the Deputy Commissioner shall thereupon take possession of the property.
 
9. He has further argued that although the declaration as contemplated under sub-section (2) of section 11 has not been published in the Official Gazette by the Deputy Commissioner but the petitioner and even the original owners had lost their right in the acquisitioned land as the land stood acquisitioned according to section 11 of the Ordinance and that the publication of declaration is a mere formality. In the judgment of CPLA 1372 of 2002 dated 20-7-2004 the Appellate Division in the similar facts and circumstances and having in the view the same circular dated 28-11-1988 issued by the Ministry of Land has observed as follows:
 
"We are of the view the cause of the writ petitioner would be served best if instead of granting leave to appeal the petition for leave to appeal is disposed of on modification of the direction of the High Court Division, since the same would not prejudice the writ petitioner in any respect, to the extent that RAJUK would scrutinise the petition filed by the writ petitioner seeking allotment of land in the Rehabilitation Zone as affected person and that if the writ petitioner satisfies the conditions and criteria set down by the RAJUK entitling a person to have the allotment of land as affected person then the RAJUK would make allotment to the writ petitioner, otherwise not".
 
10. In the decision given by the Appellate Division in the Civil Petitions for Leave to Appeal Nos. 1292 & 908-912 of 2002, dated July 30, 2004 contention of the learned Counsel for the RAJUK was to the effect that the High Court Division was in error in holding that RAJUK must allot alternative plots to the writ petitioners who are in fact the affected persons whose lands were acquired and that by making the direction that the RAJUK must allot the lands to the writ petitioners the High Court Division created a situation for the RAJUK to allot lands to the writ petitioners, even if they do not fulfill the criteria for having allotment as affected person and thus the direction of the High Court Division would amount to make allotment to a persons (s) who does not fulfill the criteria of having allotment of land as affected person and, as such, the order of the High Court Division needs modification to the extent that RAJUK would allot lands to the persons whose land have been acquired and that allotment of land would be made to the petitioners as affected persons if they fulfill the criteria of having the allotment of land as affected person. Considering the above submission, the Appellate Division has observed that the submission so made appears to be reasonable and, as such, merits consideration and modified the order of the High Court Division in the following terms:
 
"The writ petitioners would be entitled to have the allotment as affected persons in case of their fulfillment of the criteria fixed by the RAJUK for allotment of land to the persons whose land have been acquired in the aforementioned LA Case.”
 
11. As to the entitlement of the benefit to arise out of the land purchased which comes under the definition of immovable property according to section 3(25) of the General Clauses Act, 1897, as contended by Mr. Khan Saifiu Rahman, the learned Advocate for the petitioners, our opinion is that the question of benefit or entitlement of the petitioners in the immovable property cannot be the subject matter in this writ petition and cannot be determined in the writ jurisdiction. From the alleged allotment letter as granted to Hosneara Begum, Jobeda Khatun and Afroza Sultana who were, according to Mr. Khan Saifur Rahman, co-purchasers, it does not appear to us that the allotment was granted to those allottess as an alternative plot as their lands having been acquisitioned in the said LA Case in the scheme of RAJUK allotment may be made even to a stranger person in the developing sone if the applicant becomes eligible to have an allotment according to the criteria set down, therefore, the question of discrimination did not arise at all. In the case of Hasina Begum and others vs. Chairman RAJUK & others, reported in 57 DLR 237, this Division considering almost the similar claim has stated that the petitioners have placed before us under supplementary affidavit the title deed dated 9­4-1972 in the name of Mir Idris Ali Miah who is alleged to have been allotted land. Although the said Idris Ali purchased in the year 1972 subsequent to requisition and acquisition but whether the land has been allotted to the said purchaser on the basis of the said title deeds or for being the subsequent purchaser of the requisition land cannot be determined in this jurisdiction. Besides, RAJUK has the authority to allot plots to any other persons other than the affected persons according to the scheme of RAJUK for the purpose of development of that area. No legal right or constitutional right had accrued to the petitioners who purchased the land long after the acquisition notice was published. Therefore, they cannot claim alternative plots as of right. The petitioner must first establish their right before invoking Article 27 of the Constitution.
 
12. Having examined the Rule issuing order and the prayer made in the writ petition it appears that the petitioners sought for a direction upon the respondents Nos. 1-3 restraining them from transacting any further business on the provisional list, Annexure D to the writ petition pending disposal of the applications of the petitioners for rehabilitation in plots in Mouza Bailjuree corresponding to section 11 of the Uttara Residen­tial Model Town. The petitioners have not made any claim nor sought for any relief for allotment of alternative plots to them. Annexure D contained the publication of the names of the provisional allottees. Therefore the petitioners had not any good cause to challenge the said publication. The petitioners, even have not been able to produce before us the copy of the application made to the respondent No. 3 praying for allotment of alternative plots being the affected persons of LA Case No. 2 of 1987-88. In view of what has been stated above, the writ petition seems to be frivolous and without any substance.
 
Accordingly, the Rule is discharged with cost of Taka 15,000 (fifteen thousand).
 
Ed.