Rabiullah and others Vs. Bangladesh and others [4 LNJ (2015) 390]

Case No: Writ Petition No. 5770 of 2010

Judge: Quazi Reza-Ul Hoque,

Court: High Court Division,,

Advocate: Mr. Abdul Wadud Bhuyian,Mr. Niazuddin,,

Citation: 4 LNJ (2015) 390

Case Year: 2015

Appellant: Rabiullah and others

Respondent: Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2014-10-23


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

 
Quazi Reza-Ul Hoque, J,
And
Abu Taher Md. Saifur Rahman J.

Judgment on
23.10.2014
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Rabiullah and others
. . . Petitioners
-Versus-
Bangladesh and others
. . .Respondents
 
Constitution of Bangladesh, 1972
Article 102
Immovable Property Acquisition Manual, 1997
Paragraphs 77 and 78
In the instant case, a few acres of land were acquired in two L.A. Case in favour of National Housing Authority but the case lands were neither utilized for the purpose for which the same were acquired nor utilized for any other purpose. The petitioners have been living since the time of their predecessors in the case lands peacefully for generations for about 100 years. The Government did not disturb the possession of the petitioners for the last 40 years. According to the direction of the Ministry of land the said lands were resumed in khas according to the provisions of paragraph 77 and 78 of the Immovable Property Acquisition Manual, 1977.
It is well settled that once a property is resumed that cannot be taken back by the requiring body, which the requiring body failed to utilize for more than 30(thirty) years for the purpose for which it was acquired, however, after resumption it is a discretion of the Government whether it would use it for any other public purpose or derequisition the property in favour of the original owners and/or the occupiers, which solely depends upon the magnanimity of the Government. The respondents are directed to dispose of the petitioner’s application dated 31.05.2009 within 03(three) months from the date of receipt of this judgment and order in accordance with law. . . .  (4, 8, and 21)

Mr. Abdul Wadud Bhuyian, Advocate
. . . For the petitioners

Mr. Niazuddin, Advocate
.... For the respondent No.3

Writ Petition No. 5770 of 2010

JUDGMENT
Quazi Reza-Ul Hoque, J:
 
The instant Rule was issued on 25.07.2010 calling upon the respondents to show cause as to why they should not be directed to consider and dispose of the application dated 31.05.2009 made by the attorney of the constituted petitioners to respondent No. 1 for permanent settlement of the case lands in their favour expeditiously (annexure- C) and not to disturb the possession of the petitioners in the possession of the petitioners in the case lands till disposal of their application and/or pass such other or further order of orders passed as to this Court may seem fit and proper and supplementary obtain following terms Rule was issued on 22.03.2011 calling upon the respondents to show cause as to why the decision taken in the meeting dated 24.08.2010 of the respondent No. 1 not to resume the case lands (annexure- I) should not be declared to have been taken without lawful authority and is of no legal effect and as to why the respondents should not be directed to publishe Gazette Notification notifying the decision of the resumption of case land in khas of the Government and/or pass such other or further order or orders as to this Court may seem fit and proper.

The facts necessary for disposal of the Rule, as has been stated by the petitioner, in short, is that, the petitioners through their constituted attorney petitioner No. 21 submitted an application to respondent No. 1 on 20.5.2008 stating, inter alia, that 2(two) acres of C.S. Plot No. 3101 and 3102, 6.33 acres of land of 3103 and 3104 appertaining to C.S. Khatian No. 222, 1.54 acres of land of C.S. Plot No. 3123 and 3121 appertaining to C.S. Khatian No. 224 total land measuring 9.187 acres of Mouza Bawnia, thana Pallabi, District Dhaka along with other lands were acquired by the Government in L.A. Case No. 5 of 1972- 73. It was also stated that 0.76 acre of land of C.S. Plot No. 3103, 5.57 acres of C.S. Plot No. 3104 appertaining to C.S. Khatian No. 222 of Mouza Bawnia, 0.44 acres of land of C.S. Plot No. 3101 and 3105 appertaining to C.S. Khaitan No. 224 of the same Mouza, 1.92 acres of land of C.S. Plot No. 3106, 20 acre of C.S. Plot No. 3107, 0.22 acre of C.S. Plot 3223, 1.32 acre of C.S. Plot No. 3121 appertaining to C.S. Khatian No. 279 in total 11.33 acres all within Mouza Bawnia, Thana Keraniganj (Now Pallabi) District- Dhaka were owned by Kushai Matbar in whose name the said land was correctly recorded in C.S. record. Kushai Matbar died leaving only son Mohan Matbar who transferred the said land to Basanta Kumar Mallik and Tribhanga Mallik by registered deed. Basana Kumar died leaving only son Balai Chandra Mallik and Tribanga Mallik died leaving 3(three) sons namely Bramananda Mallik, Baliram, Mallik, Nipendra Mallik and wife Shayma Mallik, Balai Chandra Mallik and Bramananda Mallik transferred 0.76 acre of C.S. Plot No. 3103 and 5.57 acres of plot No. 3104 i.e. in total 6.33 acres to one Salim Miah by a registered sale deed dated 12.2.1947. Thereafter Salim Mia sold the total land of 8 (eight) Pakhi to Mohammad Ali by a registered deed dated 19.9.1958 and delivered possession to him. Mohan Matbar son of Kushai Matbar transferred 2.11 acres of land of C. S. Plot No. 3121 and 3123 to Ashraf Ali who transferred 1.27 acre of land form C.S. Plot Nos. 3121 and 3123 to Hariballav Biswas. Out of 1.27 acres of land purchased by him, Hariballav Biswas transferred 6156 decimals to Mohammad Ali, father of the some of the petitioners by two registered deeds dated 2.4.1960 and 2.4.2006 and handed over possession to him. Mohammad Ali died leaving some of the petitioners as his heirs who inherited the said lands and in the last city survey the case lands were recorded in the name of sons and daughters of Mohammad Ali.

It was also stated in the application that the Government acquired 11.33 acres of land of C.S. Plot Nos. 3103, 3104, 3105, 3106, 3107, 3121, in L.A. Case No. 5 of 1972-73. The petitioners filed application to Additional Deputy Commissioner (L.A.) to release the said land from acquisition but no action was taken. Then the petitioners were constrained to institute Title Suit No. 451 of 1978 in the Court of Senior Assistant Judge, Dhaka and the same was decreed on 22.5.1980, against which neither the concerned department, nor any other authority filed any appeal and further an order of temporary injunction was passed in their favour in respect of the said lands (annexures- A and B).

The petitioner Nos. 1 to 20 are the owners of 11.33 acres of lands of C.S. Plot No. 3101, 3102, 3103, 3104, 3105, 3106, 3107, 3121 and 3123 and the case lands along with other lands were acquired in L.A. Case No. 5 of 1972-73 in favour of National Housing Authority but the case lands were neither utilised for the purpose for which the same were acquired, nor utilized for any other purpose. The petitioners have been living since the time of their predecessors in the case lands peacefully for generations for about 100 years. Although the case lands were acquired by the Government but possession of the case lands were not taken from the petitioners or their predecessors and the original owners did not receive compensation for the case lands. The Government did not disturb the possession of the petitioners for the last 40 years even after acquisition and hence there are homestead, Madrasha, Mondir, family graveyard in the case lands.

The petitioners have full ownership and possession in the said lands and the lands having been recorded in their names. They have mutated their names in respect of case lands and they have been paying rents, taxes and bills in respect thereof. Since the case lands were not utilized by the Government after acquisition the petitioners are entitled to have same released from acquisition in their favour. But in spite of repeated requests and applications the case lands were not released from acquisition. The petitioners have no lands in their names other than the lands acquired by the Government and so the case lands may be released from acquisition in their favour.

The constituted attorney of the petitioner Nos. 1 to 20 filed an application dated 31.05.2009 addressed to the Secretary, Ministry of Land informing that since the paternal property of the petitioners were not utilized for the purpose for which those were acquired and were resumed in khas he prayed for permanent settlement of the case lands in favour of the petitioners according to Government Rules and principles (annexure- C).

The Ministry of land by a Memo being No. i§x jx/n¡-10/A¢d/Y¡L¡-15/2008 dated 6.7.2009 informed the Deputy Commissioner, Dhaka that some lands of C.S. Plot Nos. 3101, 3102, 3103, 3104, 3105, 3106, 3107, 3112 and 3123 were acquired in L.A. Case no. 5 of 1972-73 and some lands of C.S. Plot No. 3107 were acquired in L.A. Case No. 13 of 1959-60 which have not been utilized by the requiring body and are lying unutilized. In the said lands there is a mosque and a Madrasha in 0.33 acre of land in C.S. Plot No. 306, so the Deputy Commissioner will resume the land in khas in the light of paragraphs 77 and 78 of land Acquisition Manual 1997 and correct the records. So the Deputy Commissioner, Dhaka was requested to take necessary steps to resume the lands (annexure- C-1).

The Deputy Commissioner, Dhaka by Memo No. ­Sx fÐx Y¡x/Hm. H n¡/2010 dated 01.03.2010 informed the Secretary, Ministry of Land that the concerned Land Acquisition Officer, Kanungo and surveyor enquired into the lands and it was found on enquiry that 10.18 acres of land of C.S. Plot Nos. 3101, 3102,3103, 3104, 3105, 3121 and acquired in L.A. Case No. 05 of 1972-73 and of C.S. Plot Nos. 3106 and 3107 acquired in L.A. Case No. 13 of 1959-66 have remained unutilized and according to the direction of the Ministry of land by its Memo dated 27.4.2004 the said lands were resumed in khas according the provision of paragraph 77 and 78 of the immovable property acquisition Manual 1997 (annexure- D).

The case lands along with other lands were requisitioned under (Emergency) Acquisition of Property Act, 1948 and were acquired in aforesaid in exercise of the powers conferred by section 5(7) of the (Emergency) Requisition of Property Act by the Ministry of land Administration and land reforms by a Gazette Notification dated 15.10.1974 (annexure- E).

The petitioner Nos. 1 to 20 have appointed M.A. Awal, son of late Alhaj Abdur Rashid of 911/1 East Sheorapara Mirpur, Police Station Kafrul, District Dhaka, the petitioner No. 21, as their constituted Attorney by registered Irrevocable General Power  of Attornies dated 18.5.2008, 2.12.2005, 6.8.2008, 10.4.2008, 17.2.2007 17.4.2007 to look after manage, develop, sell, to obtain release from acquisition, to enter in to agreement with the Housing Authority, to obtain plan from RAJUK to make construction, to file all kinds of cases, to sign Vakalatnama, to sign plaint on behalf of the petitioners, to sell, mortgage of the case lands in favour of any one on any condition, to obtain Income Tax clearance and to obtain clearance from other offices, to execute and register sale deeds on behalf of the petitioners, as if done by the petitioners themselves (annexures- F, F-1, F-2, F-3 and F-4).

The S.A. and R.S. recorded owners applied to the relevant department of the Government from time to time for release of the case land from acquisition in their favour. In view of such applications the Ministry of land asked the Deputy Commissioner, Dhaka to resume the acquired lands into khas of the Government and accordingly the Deputy Commissioner resumed the acquired land in khas and informed the Government about the action taken by the Deputy Commissioner, Dhaka.

Mr. Abdul Wadud Bhuiyan, the learned Advocate appearing for the petitioners submits that the petitioners, being the owners and in possession of the case lands since the time of their predecessors for about 100 (one hundred) years and the case lands not having been utilized for the purpose for which the acquisition was made or for any other purpose and the case lands having been resumed in khas the respondents ought to be directed to consider the application of the petitioners for permanent settlement in their favour and take decision thereon according to Government rules and principles.

He further submitted that the case lands along with other lands having been acquired in favour of National Housing Authority by Gazette Notification dated 15.10.1974 and the case lands having remained unutilised for more than 40(forty) years and since acquisition the petitioners having their residential houses, mosque and Mandir in the case lands and living there for generations and the case lands having been resumed in khas by the Government and the application of the petitioners represented by their attorney for permanent settlement of the case lands in their favour being pending with the Government, the Government ought to be directed to consider their application and dispose of the same expeditiously accordingly to Government rules and principles.

He again submitted that the application of the attorney of the petitioners for permanent settlement according to the Government rules and principles being pending with the Government and the Ministry of land having asked the Deputy Commissioner, Dhaka to make inquiry and report, the petitioners have legitimate expectation that their application will be considered expeditiously and therefore, the respondents ought to be directed to consider their application for permanent settlement expeditiously for the ends of justice.

Mr. Bhuyian, further submitted that the petitioners from the time of their predecessors having been in possession of the case lands for about 100 (one hundred) years and the Government not having taken possession from them till now and their application through their constituted attorney for permanent settlement of the case land being pending for disposal the respondents ought to be directed not to disturb the possession of the petitioners till disposal of their application for settlement.

None appeared for the respondents to oppose the Rule.

On perusal of the submission of the learned Advocate for the petitioner and the annexed documents that the property was acquired vide L.A. Case No. 5 of 1972-73 and since the requiring body did not using for the purpose that has been acquired for as such, the property was resume by the Government which is evident from letter address to the Secretary Ministry of Land by the Deputy Commissioner, Dhaka by letter dated 01.03.2010 (annexure- D);

উপর্যুও্র বিষয় ও সূএসÛ স্মার­কর ­প্রক্ষি­ত ম­হাদ­য়র সদয় অবগতির জন্য জানা­না যা­চ্ছ যে, অত্র কার্যাল­য়র সংশ্লিষ্ট অতিরিও্র ভূমি অধিগ্রহণ কর্মকর্তা, কানুন­গা ও সা­র্ভয়ার সমন্ব­য় সরজমি­ন বর্ণিত জমি তদ¿¹ ক­র­ছনz তদ¿¹ রি­পা­র্টর প্রেক্ষি­ত দেখা যায় ০৫/৭২-৭৩ নং এল| এ| কেসভূও্র বাউনিয়া মৌজার সি|এস ৩১০১, ৩১০২, ৩১০৩, ৩১০৪, ৩১০৫, ৩১২১ ও ৩১২৩ নং দাগ এবং ১৩/৫৯-৬০ নং এল|এ| কে­স বর্ণিত মো~জার সি|এস ৩১০৬ ও ৩১০৭ নং দা­গ মোট ১০.১৮ একর জমি অব্যবহ্রত অবসÛায় আ­ছz ভূমি ম¿»ণাল­য়র স্মারক নং-ভূঃম/শা-১০/অধি/ঢাকা-১৫/২০০৮-১০৮ তারিখ ২৭.০৪.২০০৯ খ্রিঃ এর নি­র্দশনাম­ত সÛাবর সম্পত্তি অধিগ্রহণ ম্যানু­য়ল-১৯৯৭ ৭৭ ও ৭৮ নং অনু­চ্ছ­দর বিধিম­ত উহা রিজিউম করা হয়

And the Ministry of Land in a meeting dated 07.11.2010 after issuance of the instant Rule (annexure- I) decided not to resume the land. And letter dated 18.06.2009 address to the Chairman National Housing Authority Dhaka written by the Deputy Commissioner, Dhaka (annexure- K) which also clearly reflects that since the property has been not utilised that the requiring body for more than 30(thirty) years so the National Housing Authority was directed to handover possession of the property to the Deputy Commissioner, Dhaka.

As it appears from the petition, unopposed by any of the respondents that the property although had been acquired vide L.A. Case No. 5 of 1972-73 but the possession has never been taken there are Mosque, Mondhir, High School, Primary School.

It is well settled that once a property is resume that cannot be taken back by the requiring body, which the requiring body failed to utilize for more than 30(thirty) years for the purpose for which it was acquired, however, after resumption it is a discretion of the Government whether it would use it for any other public purpose or derequisition the property in favour of the original owners and/or the occupiers, which solely depends upon the magnanimity of the Government. The respondents are directed to dispose of the petitioner’s application dated 31.05.2009 within 03(three) months from the date of receipt of this judgment and order in accordance with law.

With the above observations the Rule is disposed of.

Ed.