Dhaka Water Supply Authority Vs. Dr. S. M. Hossain and others, 1 LNJ (2012) 596

Case No: Civil Revision No. 4268 of 2006

Judge: Mohammad Anwarul Haque,

Court: High Court Division,,

Advocate: Mr. Md. Shahidul Islam,Mr. Md. Ibrahim Mollah,,

Citation: 1 LNJ (2012) 596

Case Year: 2012

Appellant: Dhaka Water Supply Authority

Respondent: Dr. S. M. Hossain and others

Delivery Date: 2012-07-16

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)

 
Mohammad Anwarul
Haque, J. 
And
Kazi Md. Ejarul Haque
Akondo, J.

Judgment
16.07.2012
 
Dhaka Water Supply and Sewerage Authority (DWASA) Dhaka.
...Petitioner.
Vs.
Dr. S.M. Hossain and another
...Respondents-opposite party.
And
Government of Bangladesh, represented by the Deputy Commissioner, Dhaka
---Appellant-Opposite-party
 
Code of Civil Procedure (V of 1908)
Section 115(4)
Acquisition and Requisition of Immovable Property Ordinance (II of 1982)
Sections 10 (2), 28 and 31
In the instant case it is found that the L.A. Case was started in the year 1990-1991 and awardee received the part amount on 6.9.92 and the proviso to section 31 has been incorporated by Act XX of 1994 with effect from 1.12.1994; as such this provision of limitation of awarding amount not beyond 10% has no manner of application in the instant case because the awardee, the present Opposite-party No.1 has already acquired his right which cannot be taken away by subsequent legislation.
 
The provision of law referred to above and the provision of section 28 read with sections 10(2) and 31 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 we are inclined to hold that no violation of law is found to have been made by the court below which can be interfered under section 115(4) of the Code of Civil Procedure.
 
Child Mother Health -Vs- Abdus Salam, 49 DLR 160 ref.
 
Mr. Md. Ibrahim Mollah with
Mr. Md. Alamgir Hossain, advocate
--- For the Opposite-party No.1
Mr. Md. Shahidul Islam, D.A.G with
Mr.Gopal Chandra Saha, A.A.G.
---For the Opposite party No.3

Civil Revision No. 4268 of 2006
 

JUDGMENT
Mohammad Anwarul Haque, J:
 
          Respondent of the Arbitration Appeal No. 22 of 1995 and opposite party No. 2 of Arbitration Case No. No. 289 of 1992 has preferred this revisional application under section 115(1) of the Code of Civil Procedure challenging the award granted to the applicant of the of the Arbitration case by the Arbitration Court to the tune of Tk. 4,10,156.21 and subsequently affirmed by the appellate authority, the learned District Judge, Dhaka on 01.03.2006 alleging that both the court below have ignored the provision of section 28(2) and section 31 of Acquisition and Requisition of Immovable Property  Ordinance, 1982 and in violation of those two mandatory provisions of law have granted award illegally which is liable to be setaside.
 
2.     Mr. A.M. Aminuddin the learned advocate appearing on behalf of the opposite party No. 2 submits that section 22 of the Acquisition and Requisition of Immovable Property  Ordinance, 1982 does not allow the Arbitrator to entertain any application unless interested person has refused to accept the award made by the opposite party under this Act within 45 days from the date of service of notice of award and made an application to the Arbitrator for revision against such award or to receive the award on objection in writing. Moreover where the original award amounting to Tk. 95,767.92 in L.A. Case No.19 of 1990-91 is found to have been received by the awardee, the present Opposite-party, without any objection; no application can be allowed to file before the Arbitrator under section 28(1) and (2) of the Acquisition and Requisition of Immovable Property Ordinance, 1982. Even violating the provision laid down in section 31 of the Ordinance the Arbitrator as well as the Judge of the Appellate Tribunal has granted award to the extent of  Tk. 5,05,924.13 which is more than 10% of the award given by the Deputy Commissioner; in violation of the proviso of section 31 of the said Ordinance 1982; so the impugned judgment passed in Arbitration Appeal is liable to be set aside.
 
3.     On the other hand, Mr. Md. Ibrahim Molla the learned advocate appearing on behalf of the awardee, the present-opposite-party No.1 has unconditionally accepted the provision as urged by the learned advocate for the Petitioner -Respondent WASA, Dhaka but at the same time he has asserted that the awardee, the Opposite-party, has partly withdrawn the award amounting to Tk.63,0845.28 on protest which is also admitted in the written statement filed by the Deputy Commissioner, Dhaka the appellant-opposite-party No.1 stating that the awardee himself received part award money on protest; as such this question of fact cannot be allowed to be raised at this stage of hearing of revisional application filed under section 115(1) of the Code of Civil Procedure. The learned advocate further submits that the proviso of section 31 of the Ordinance 1982 has been incorporated by Act XX of 1994 with effect from 1st December,1994; as such there can be no manner of application of this provision in the L.A. case which was started  in the year 1990-91 and the awardee received the part  award on 6.9.1992. In support of his contention the learned advocate appearing on behalf of the Opposite-party No.2 has referred the decision of a case Former Mordern Shishu Hospitas, presently Institute of Child Mother Health Vs. Abdus Salam reported in 49 DLR page 160 where their lordships have positively opined that the proviso was not applicable; as provision was incorporated by Act XX of 1994 with effect from 01.12.1994 where the land in question was acquired in L.A. Case No.19 of 1990-91.
 
4.     On such submission we have gone through the written statement filed by Opposite-party No.3 Deputy Commissioner  before the Arbitrator where he has categorically admitted the fact of objection as alleged by the opposite party-awadee. However, we are just quoting the relevant portion of the written statement filed by the Opposite-party No.3 who also filed the Appeal No. 22 of 1995.
 
“তাছাড়া ১০ ধারা ২ উপ-ধারা ৩ অনুচ্ছেদ মোতাবেক দরখাস্তকারী আপত্তি সহকারে ক্ষতিপূরনের অর্থ গ্রহন করিয়াছেন বলে তিনি ২৮ ধারায় ------ পাইতে পারে।”
 
5.     On the face of this submission, let us quote the proviso of section 10(2) of the Acquisition and Requisition of Immovable Property  Ordinance, 1982 which is as follows:
“Provided further that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 28.”
 
6.     The above proviso available in section 10(2) is to be read with section 28 of the Ordinance 1982 and on the admission of the defendant-appellant this application is found to have been filed under section 28 as all the requirements of law are found to have been complied with in terms of section 28 and section 10(2) of the Acquisition and Requisition of Immovable Property  Ordinance, 1982.
 
7.     Now, let us decide whether violating the proviso of section 31 the impugned award beyond 10% can be lawfully granted by the arbitrator which has been affirmed by the learned Judge of the Tribunal or not?
 
8.     In the instant case it is found that the L.A. Case was started in the year 1990-1991 and awardee received the part amount on 6.9.92 and the proviso of section 31 has been incorporated by Act XX of 1994 with effect from 1.12.1994; as such this provision of limitation of awarding amount not beyond 10% has no manner the application in the instant case because the awardee the present Opposite-party No.1 has already  acquired his right which cannot be taken away by subsequent legislation. In support of it we are to rely upon the decision of a case Child Mother Health Vs. Abdus Salam reported in 49 DLR page 160.
 
9.     Having due regard to the above decision and the provision of law referred to above and the provision of section 28 read with section 10(2) and 31 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 we are inclined to hold that no violation of law is found to have been made by the court below which can be interfered under section 115(4) of the Code of Civil Procedure; as such we do not find any merit in the Rule and accordingly the Rule is discharged.
 
        Let a copy of the order along with L.C.R. be sent to the court below at once for information and necessary action.
 
        Ed.