Atik Ullah & another Vs. Govt. of Bangladesh, V ADC (2008) 138

Case No: Civil Review Petition Nos. 11-13 of 2006

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,,

Citation: Civil Review Petition Nos. 11-13 of 2006

Case Year: 2008

Appellant: Atik Ullah and another

Respondent: Government of Bangladesh

Subject: Arbitration/Mediation,

Delivery Date: 2006-12-12

 


Supreme Court
Appellate Division
(Civil)
 

Present:
Md. Ruhul Amin, J.
MM Ruhul Amin, J.
Md. Tafazzul Islam, J.
 
Atik Ullah & another
…………Petitioners (In all cases)
Vs.
Government of Bangladesh, rep­resented by Land Acquisition Collector, Dhaka & others
…………Respondents (In all cases)
 
Judgment Date:

December 12, 2006.
 
The Code of Civil Procedure, Section 151
Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance No. 11 of 1982)
This Court while dismissing the appeals held that the Arbitrator is a creature of the statute (Ordinance of 11 of 1982) and under section 36 of the Ordinance he has been vested with some limited powers of Civil Court. Therefore, the Arbitrator has no power of review. It was further held that in view of provision for appeal under section 34 of the Ordinance and the appellants having preferred review application without filing appeal before the Arbitrator, the same was not mainatainable. ….(2)
 
Lawyers Involved:
Mahbubey Alam, Senior Advocate, instruct­ed by Chowdhury Md. Zahangir, Advocate-on-Record-For the Petitioner (In all cases).
Not repre­sented- Respondent (In all cases).
 
Civil Review Petition Nos. 11-13 of 2006
(From the judgment and order dated 11.01.2004 passed by the Appellate Division in Civil Appeal Nos.259-261. of 2001).
 
JUDGMENT
MM Ruhul Amin J.

            By these petitions the petitioners seek review of this Court's judgment dated 11.01.2004 passed in Civil Appeal Nos.259-261 of 2001 dismissing the appeal with modification.
 
2.         Short facts are that the Land Acquisition Collector, Dhaka under the provisions of the Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance No.11 of 1982) (shortly the Ordinance) in Land Acquisition Case No. 12 of 1987-88 acquired the case land of the petitioner on 18.03.1989. Accordingly on 28.03.1989 notifications were issued and compensation award was prepared on 16.10.1991. The appellant—petitioners received the awarded compensation on protest. Being dissatisfied with the quantum of award money the appellant-petitioners filed Arbitration Revision Case No.1836 of 1990 before the learned Subordinate Judge (now Joint District Judge) and Arbitrator, Dhaka who dismissed the same on 15.08.1991 and affirmed the award made by the Collector. The appellants then filed Arbitration Revision Miscellaneous Case No. 14 of 1991 under the provisions of Order 47 Rules 1 and 2 read with section 151 of the Code of Civil Procedure for review of the 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 amount from Tk.2,12,0001.00/- to Tk.5, 99,637.63/- as compensation for acquisition. The Government being aggrieved by the judg­ment and order passed in the Arbitration Revision Miscellaneous case (review) filed an application under Article 102(2) of the Constitution of the People's Republic of Bangladesh before the High Court Division and the High Court Division by the 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 and 2 read with section 151 of the Code of Civil Procedure seeing remedy against the order of the Arbitrator. It was further held that Section 34 of the Ordinance provides for 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 application. The High Court Division also did not accept the plea of natural justice, as there is specific provision in the ordinance to prefer revisional application. This Court while dismissing the appeals held that the Arbitrator is a creature of the statute (Ordinance II of 1982) and under section 36 of the Ordinance he has been vested with some limited powers of Civil Court. Therefore, the Arbitrator has no power of review. It was further held that in view of provision for appeal under section 34 of the Ordinance and the appellants having pre­ferred review application without filing appeal before the Arbitrator, the same was not maintainable.
 
3.         In the circumstances, this Court decided to do complete justice in the matter under Article 104 of the Constitution and the respondent No.1 was directed to pay Tk.6, 38,797.63 to the appellant within 60 days.
We have heard Mr. Mahbubey Alam, the learned Counsel for the petitioner in all the petitions and perused the connected papers.
 
4.         His only argument is that since this Court has granted enhanced amount, the appel­lant-petitioners were entitled to get 10% interest per annum as per section 32(2) of the Acquisition and Requisition of Immovable Property Ordinance-2 of 1982 and they will be deprived of the said statu­tory benefit unless the impugned judgment is reviewed.
 
5.         We have perused the judgment sought to be reviewed and the connected papers. We have already pointed out the appeals were dismissed on merit. But in exercise of pow­ers under Article 104 of the Constitution, the respondent No.1 was directed to pay Tk.6,38,797.63/- within 60 days to the appellants.
 
6.         Therefore, we do not find any substance in the submission of the learned Counsel for the petitioner in the respective petitions that the appellant-petitioners were also entitled to get 10% interest per annum on the above mentioned amount.
 
Accordingly, the review petitions are dis­missed.
 
Ed.