Chittagong Dock Sramik Parichalana Board and others vs. Shamsul Haque and others, 60 DLR (AD) (2008) 68

Case No: Civil Appeal No. 215 of 2000

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: AKM Nazrul Islam ,Mr. Rokanuddin Mahmud,,

Citation: 60 DLR (AD) (2008) 68

Case Year: 2008

Appellant: Chittagong Dock Sramik Parichalana Board

Respondent: Shamsul Haque

Delivery Date: 2007-5-23

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin, CJ.
MM Ruhul Amin, J.
Md. Tafazzul Islam, J.
Md. Hassan Ameen, J.
 
Chittagong Dock Sramik Parichalana Board and others
.....................Appellants
Vs.
Shamsul Haque and others
.....................Respondents
 
Judgment
May 23, 2007
 
The Acquisition and Requisition of Immovable Property Ordinance, 1980
Section 7(3)
Since the requiring body paid the full amount of compensation and the concerned authority repeatedly rejected the prayer of respondent No. 1 to release .28 acres of land from acquisition, the High Court Division was not justified in directing the acquiring body to release the land in question…………….(6)
 
Lawyers Involved:
Rokonuddin Mahmud, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record—For the Appel­lants.
ABM Nurul Islam. Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respon­dents.
 
Civil Appeal No. 215 of 2000.
(From the judgment and order dated 29-10-1998 passed by the High Court Division in Writ Petition No. 2490 of 1990).
 
JUDGMENT
 
Md. Tafazzul Islam J.
 
This appeal, by leave, has arisen out of the judgment and order dated 29-10-98 of the High Court Division passed in Writ Petition No. 2490 of 1990 making absolute the Rule obtained challenging the order dated 20-10-1990, Annexure-F to the writ petition, by which the Land Acquisition Officer, Chittagong, in terms of the Memo of the Ministry of Land dated 12-5-90, requested the writ petitioner/ respondent No.1 to deliver to him 0.09 acres of land of RS Plot No. 6161 and 0.019 acres of land of RS Plot No. 6161 and 0.019 acres of land of RS Plot No. 6156, both of Mouja Halishahar, Police Station Bandar, Chittagong within 7 days and also challenging acquisition of the above total 2.85 acres of land in LA Case No. 1 of 84-85.
 
2. The respondent No.1 filed the above writ petition stating that he, also with another person, pur­chased the above 0.19 acres of land of RS Plot No. 6156 by kabalas dated 10-1-1978, 4-12-1977 and 19-5-1977 and then constructed a shop house and godown therein at a cost of Taka 2 lac and he also purchased the above 0.09 acres of land of RS of Plot No. 6161 by kabala dated 10-1-1982 and cons­tructed a building therein at a cost of Taka 15 lac; no notice of acquisition and requisition of the above plots was served upon him except notice dated 16-4-1985 under section 7(3) of the Acquisition and Requisition of Immovable Property Ordinance, 1982 by which he, being treated as a person interested, was informed that compensation for structure amounting to Taka 5,95,221 had been awarded in his favour and he was asked to receive the same; thereafter he preferred an appeal to the Land Acquisition Officer on 2-10-1985 but by notice dated 19-2-1986 the Additional Deputy Commis­sioner (LA) informing him that his prayer has been rejected, directed him to vacate the premises; thereafter he sent an application to the Ministry of Land Administration for review of the said order but with no effect and thereafter the impugned order dated 20-9-1990 was issued. None opposed the Rule. This High Court Division, after hearing, made the Rule absolute holding that the writ petitioner/ respondent No. 1 is still in possession of the above 2.85 acres of land as is apparent from the contents of the above order dated 20-9-90 and that no notice under section 3 of the Ordinance 1982 was issued upon the respondent No.1; the Land Acquisition Officer had no authority to issue notice dated 20-9-90; Annexure-B shows that no compensation for land as well as compensation for change of resi­dence have been awarded; the order dated 20-9-90 is hit by provisions of section 11 of Ordinance 1982; 20 acres, out of 24.73 acres of land acquired, being still remaining unutilised by the requiring body, the appellant No.1, they do no longer require the above 2.85 acres of land for implementation of their project, otherwise they would have appeared and contested the Rule and that the order of acquisition of the above 0.09 acres of RS Plot No. 6161 and 0.19 acres of land appertaining to RS Plot No. 6156 acquired in LA Case No.1 of 1984-85 as well as also the issuance of the above order dated 20-9-90 are illegal.
 
3. Leave was granted on the submissions that the writ respondent/appellant No. 1, the requiring body in possession of the land in question having not been made a party in the present writ petition, the judgment and order passed therein suffers from error of law and further the High Court Division was also not justified in directing the writ respon­dent/appellant Nos.2-4 to release the land in question as the appellant No.1, the requiring body, after getting possession of the acquired land made construction therein spending substantial amount thereby leaving no scope for them to return of the land in question to the respondent No.1 and further notice under section 3 of the Ordinance No.11 of 1982 is not required to be served personally on the owners of the acquired land.
 
4. We have heard the learned Counsels and perused the records.
 
5. As it appears from the record, the appellant No.1, the requiring body in possession of the land, was not impleaded in the writ petition and, as such, they got no scope to oppose the Rule but they, after coming to know about the impugned judgment and order of the High Court Division, as a directly affected person prayed for allowing them to file the leave petition which was allowed by this Division and, after hearing, leave was granted. It also appears that the appellant No.1 was established under Dock Sramik (Niyog-Niantran) Ain, 1980 for the welfare of the dock sramiks and as back as 1968, 10 acres of land, situated on the back side of New Mooring Jetty, was acquired for that purpose and the appel­lant No. 1, besides arranging housing of 8000 dock sramiks, also had the plan for providing other facilities to the dock sramiks such as school, play grounds, park, community centre, hospitals, etc to the dock sramiks and accordingly, the above 10 acres of land already acquired having not been found sufficient for the above purposes the autho­rity, for the welfare of dock sramiks, acquired further 24.73 acres of land and against full compen­sation of the land so acquired; the appellant No.1 credited Taka 1,62,54,828.90 in the A/C of the Deputy Commissioner, Chittagong vide Cheque No. 467769 dated 9-4-1985; however after acquisition, out of above 24.73 acres, possession of only 24.45 acres of land was delivered to the appellant No. 1 on 16-9-85 as pucca structure was situated on the above 0.09 acres of land in Plot No. 6161 and construction of structure on the above 0.19 acres land in Plot No. 6156 was hurriedly completed by the respondent No. 1 during the pendency of the acquisition proceedings; the respondent No. 1, hav­ing not delivered possession of the balance portion of 0.28 acres acquired land, the appellant No.1 who paid the full amount of compensation, requested the concerned authority for handing over to them the above 0.28 acres of land whereupon the Deputy Commissioner, Chittagong directed the Land Acqui­sition Officer to hand over the same to the appellant No. 1 at an early date and then, after transferring only 0.095 acres of land in Plot No. 6156 on 16-9-85 to the appellant No. 1, the respondent No.1, on 2-10-85, filed an application to the Land Acqui­sition Officer, Chittagong for releasing the remaining land from acquisition but the said prayer being rejected; the respondent No.1 then unsuccessfully moved the Deputy Commissioner, Chittagong, Divisional Commissioner, Chittagong as well as the Ministry of Land and then the Deputy Commis­sioner, Chittagong being directed by the Ministry of Land to hand over the said land to the appellant No. 1, evicted the respondent No. 1 from the above 9.19 acres of land of Plot No. 6156 on 22-11-1990 and handed over possession of the same to the appellant No. 1 but however, the respondent No.1, after waiting for few days, with the help of miscreants, forcibly took over possession of the said 0.19 acres of land and started living therein with the mis­creants; for the above incident, on 28-11-1990, Complain Case No. 1361 of 1990 was filed against the respondent No.1 and others before the Court of Chief Metropolitan Magistrate, Chittagong and the respondent No.1, having started construction of a multi-storied building on the said land forcibly occupied, the appellant No.1 also filed civil cases which are pending; then the respondent No.1 filed the present Writ Petition No.2410 of 1990 seeking release of the above lands from acquisition and the appellant No.1 , the requiring body, not being made a party in the above writ petition, could not appear and contest the Rule and as a result by judgment and order dated 29-10-1998 the High Court Division ex parte made the Rule absolute and then the respon­dent No. 1, utilizing the above judgment and order dated 29-10-1998 filed Complaint Case No. 168 of 1999 in the Court of Chief Metropolitan Magistrate, Chittagong on 18-3-99 under section 145 of the Code of Criminal Procedure and after receiving the summons the appellant No.1, for the first time, came to know about the filing of above wit petition; the acquired land has been shown in the Master Plan and residential quarters with the other facilities for the dock sramiks are being constructed in the acquired land as per Mater Plan till to-day one 6 storied, two 5 storied, three 4 storied and two 2 storied buildings have been constructed besides one 5 storied building containing 20 quarters and three 3 storied building each containing 9 quarters have also been constructed for the accommodation of the dock sramiks and further a 50-bed hospital and a two storied mosque one ebadatkhana, one play ground, a big dighi and one graveyard have also been constructed for them and steps have been taken for constructing two residential buildings and one community centre and after completion of the project, 10 thousand dock sramiks and their children will get not only shelter but also other facilities; on obtaining orders of slay/status quo passed by different Courts for last 17 years, the respondent No.1 managed to occupy about 0.28 acres of acquired land which is situated just at the entrance of the aforesaid project and, as such, the main road leading to the main entrance of the project could not be constructed creating a lot of obstacles in completing the further construction of the project as there is no other way to enter the project area except that entrance, there is a resent­ment among the dock sramiks for not constructing; this road and for not completing the project.
 
6. At it appears, the High Court Division, without considering the above facts at all, made the Rule absolute. The appellant No.1 having paid the full amount of compensation and the concerned authority having rejected one after another attempt made by the respondent No.1 for release of the above 0.28 acres of land from acquisition the judg­ment and order of the High Court Division, is not sustainable and accordingly, the same is liable to be set aside.
 
The appeal is allowed without any order as to costs.
 
Ed.