Case No: Civil Appeal No. III of 1978
Judge: Kemaluddin Hossain,
Court: Appellate Division ,,
Citation: 32 DLR (AD) (1980) 92
Case Year: 1980
Appellant: Government of Bangladesh
Respondent: Abdur Rashid and others
Delivery Date: 1979-8-9
Kemaluddin Hossain, CJ
Ruhul Islam, J
KM Subhan, J
Badrul Haider Chowdhury, J
Abdur Rashid and others
August 9, 1979.
The Town Improvement Act, 1953
Sections 78,79,93(A), 93(B), 93A (5)(b)(II)
When no Tribunal has been set up, any reference to the Tribunal under section 93A shall be construed as referring to Court under the Land Acquisition Act, 1894……..(6)
There is no scope for invoking the general provision of the Land Acquisition Act, 1894 to invest the said Court with a power to grant interest. The orders of the High Court and the Additional District Judge, 3rd Court Dacca, awarding interest are set aside.………(7)
Cases Referred to-
Bangladesh vs. Abdul Mannan (1977) 29 DLR (S.C.) 17; Bangladesh Vs. Abdul Mannan 29 DLR (SC) 17.
Abdus Sobhan, Addl. Attorney-General, with B. B. Roy Chowdhury, Asstt. Attorney-General, instructed by M. R. Khan, Advocate-on-Record—For the Appellant.
Ex parte—The Respondents.
T. H. Khan, Senior Advocate—Amicus Curiae.
Civil Appeal No. III of 1978.
(From the Judgment and order dated 18th July, 1977 passed by the High Court In F.A. No. 362 of 1969).
K. Hossain, CJ.
The short question of law involved in this appeal is when land is acquired under section 93 A of the Town Improvement Act and in the absence of Tribunal constituted thereunder, whether the Land Acquisition Court in assessing compensation in terms of section 93A (5) (b) (ii) read with 91A of the Act is competent to direct for payment of interest on the compensation assessed.
2. Facts are that the land recorded in C. S. Plot Nos. 59, 60, 89 and 90 measuring 2.55 acres of land of Mouza Bhola under P.S.Tejgaon, District Dacca of the respondents were requisitioned on January 27, 1969 and its possession was taken over on the same date by the Deputy Commissioner, Dacca under sub-section (1) of section 93A of the Town Improvement Act, 1953. The land was subsequently acquired on June 23, 1969 after serving notices on the respondents on April 30, 1960 as required under sub-section (4) (a) and (b) of section 93A of the Act. The Deputy Commissioner, Dacca, assessed compensation of the lands at Tk. 8,286-12 but the respondents did not accept. They made an application for arbitration before the Tribunal in terms of section 91A of the Act for determination of the compensation claiming much higher rates. In the absence of the Tribunal set up under the said Act, the Land Acquisition Court set up with the Additional District Judge, 3rd Court, Dacca under the Land Acquisition Act, 1894 acted as the Arbitrator in the case. The claim was contested by the then Government of East Pakistan contending that the claim was highly inflated; that the Deputy Commissioner awarded a fair and reasonable amount of compensation having regard to the quality of the land, the situation and all other advantages and disadvantages thereof, according to law prevailing at the time of final acquisition. The Land Acquisition Court by an order dated July 5, 1968 determined the compensation at Tk. 32,076/00 which included a sum of Tk. 4,765/00 as compensation for some trees and plants standing on the land. The Land Acquisition Court directed the payment of interest at the rate of 6 per cent per annum on the compensation if not paid within the date fixed in the award. As against that award there was an appeal before the High Court being F.A. No. 262 of 1969 which was allowed in part. Leave was granted to consider the question set out above.
3. The learned Judges of the High Court Division with reference to the decision of this Division in the case of Bangladesh vs. Abdul Mannan (1977) 29 DLR (S.C.) 17 held that the Land Acquisition Court holds the power of granting interest on the compensation assessed. It is being challenged by the Additional Attorney-General appearing for the Government appellant. On finding the importance of the question involved we required the assistance of an amicus curiae and requested Mr. T. H. Khan to render his assistance to this Division and had the advantage of hearing a very learned argument on the exposition of the law.
4. To appreciate the question, it is to be observed that under the terms of the Town Improvement Act 1953 land can be acquired in three ways under three different sections; One is by purchase on agreement under section 78, the other is by compulsory acquisition under the provisions of the Land Acquisition Act 1894 under section 79 and the third is acquisition on requisition of land under section 93A (4) (a) of the Act. It is to be noted that for the land acquired under section 79 of the Act the mode of payment of compensation and the settlement of dispute in the assessment of compensation have been elaborately provided in the Act, which has been enacted for setting up of Tribunal under section 80 with the provision for appeals from the award made by the Tribunal under certain circumstances and for that purpose a schedule has been appended to the Act. Reading the relevant provisions of the Act it is found that sections 93A and 93B of the Town Improvement Act, 1953 are related to the acquisition of land preceded by an order of requisition and they provide almost a self-contained code for the specific purpose, the third mode of acquisition under the Act.
5. If we look at the provision for assessment of compensation in this section, we find that it has been provided under sub-section (5) which consists of three clauses. Clause (a) enacts for payment of compensation on agreement and clause (c) as to the right of the contending parties to state their cases before the Tribunal. The provision regarding the power of the Tribunal and mode of assessment of compensation is in clause (b). It may be set out:
"Section 93A. (b) (i). Where no such agreement can be reached, the Deputy Commissioner shall assess a compensation for the immovable property having regard to the provisions of sections 23, 24 and 24A, as modified by section 81 of this Act, and sub-section (2) of section 36 of the Land Acquisition Act, 1894, so far as the same can be made applicable, and he shall give immediate notice of the assessment to the person or persons interested:
Provided that in determining such market value the Court shall take into account the average value of the properties of the similar description and with similar advantage in the vicinity during twenty-four months preceding the date of service of the notice under clause (a) of sub-section (4) of this section:
Provided further that in assessing compensation for the acquisition of any immovable property to which the provisions of any other law for the time being in force, for the control of house-rent, apply, the Deputy Commissioner shall have regard to those provisions, so that the compensation awarded may not exceed the amount of rent allowable in respect of such property under those provisions; and
(ii) Any person interested who has not accepted assessment, may, by written application, move the Tribunal to determine the matter;
(iii) The application shall state the grounds on which objection to assessment is taken:
Provided that every such application shall be made within 6 weeks of the service of notice by the District Magistrate under clause (b) or within 3 months from the date of the order of assessment, which ever period shall later expire".
6. The reading of the above provisions indicates that for the assessment of compensation of land acquired under section 93A a complete Code has been provided which is quite distinct from the acquisition made under section 79. On the failure of agreement, the Deputy Commissioner shall assess the compensation. If a person is not interested in accepting the compensation assessed by the Deputy Commissioner, he can under sub-clause (b)(ii) move the Tribunal means one constituted under section 80 read with section 82 of the Act. But when no Tribunal is constituted under the said section the contingency has been met by the provisions of section 91A, which says that when no Tribunal has been set up, any reference to the Tribunal under section 93A shall be construed as referring to Court under the Land Acquisition Act, 1894.
7. The question is how far by reference to the Court under the Land Acquisition Act, the Tribunal referred to under sub-section (ii) of clause (b) of sub-section (5) of section 93 A, acquires power to grant interest requires to be examined. It is to be observed that Mr. T. H. Khan concedes that the Tribunal under the Act in assessing compensation does not possess the power to grant interest though the power is available when the acquisition is under the provisions of Land Acquisition Act. The question is could this power be exercised by the Court while acting as such under the provision 91A of The Town Improvement Act, 1953? Mr. T.H. Khan refers to some observations made in Bangladesh Vs. Abdul Mannan 29 DLR (SC) 17, to say that the Court will be entitled to take recourse to section 28 of the Land Acquisition Act. How far Mr. T.H. Khan's contention on the authority of Abdul Mannan's case be accepted? In the cited decision the question was, when the land was acquired under section 93A of the Town Improvement Act and no Tribunal was set up, whether the award of the Court under the Land Acquisition Act, by reference to section 91A of the Act was appealable. It has been held that the Land Acquisition Act, 1894 and the Town Improvement Act are to be read together with the first supplementing the latter, in other words the general provision of the Land Acquisition Act will apply where there is no specific provision in the Town Improvement Act. It was held that as there was nothing specifically said about the trial procedure or the character of the award made by the Court under the Land Acquisition Act read with section 91A of the Town Improvement Act, the provision of power, procedure, jurisdiction and appeal of the Land Acquisition Act, 1894 shall apply in such case. Mr. T.H. Khan argues from this observation that the power shall include the power to grant interest. The power of the Court under Land Acquisition Act to grant interest is enacted in section 28 of the Land Acquisition Act, 1894, and Mr. Khan says that this section is available. We think, it is not permissible to extend the meaning of an expression which has no logical bearing with the question, nor any legal rule to support. It is to be noted that since there was a lack of provision as to trial procedure or the character of the award or the mode of execution in the Town Improvement Act, 1953 regarding an award made under this special provision, the observation set out was made. Nothing has said on the power to grant interest nor could such power be conferred by reference. A glance at sub-section (5) clause (b) will reveal that the power as well as mode of assessment of compensation under the special law has been provided for an application of provisions of Land Acquisition Act is not called for. The provision of special law fits in with the fact of the case and so the general provision of Land Acquisition Act is not called into play. There is no scope for invoking the general provision of the Land Acquisition Act, 1894 to invest the said Court with a power to grant interest.
8. Looking from another stand point, the soundness of Mr. T.H. Khan's contention of invoking sec. 28 of the Land Acquisition Act could be tested. Mr. Khan has conceded that the Tribunal set up under the Town Improvement Act, could not grant interest under section 93A (5) (b) (ii) of the Act. How could then the Court deemed to be set up under the same provision by reference to section 91A of the Act, acquire a higher power than the former? It is neither possible nor desirable to bring about a conflict of power under the same provision of law, only because two sets of forums may be called into existence. We therefore, find it difficult to uphold the decision of the learned Judges of the High Court on the question.
In the result appeal is allowed without any order as costs. The orders of the High Court and the Additional District Judge, 3rd Court Dacca, as awarding interest are set aside.