Rajshahi Develop­ment Authority Vs. Sultan Ahmed, Advocate and others, 57 DLR (AD) (2005) 158

Case No: Civil Appeal No. 292 of 2003

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Ozair Farooq,,

Citation: 57 DLR (AD) (2005) 158

Case Year: 2005

Appellant: Rajshahi Develop­ment Authority

Respondent: Sultan Ahmed, Advocate

Subject: Land Law,

Delivery Date: 2004-6-29

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Syed JR Mudassir Husain CJ
Md Fazlul Karim J
MA Aziz J
Amirul Kabir Chowdhury J
 
Rajshahi Develop­ment Authority……...........Appellant
Vs.
Sultan Ahmed, Advocate and others..............     Respondents 
 
Judgment
June 29, 2004.
 
Acquisition and Requisition of Immovable Property Ordinance, 1982
 Section 47  
Application of the provision of the Ordinance when the property was acquired under the Act- Section 47 of Ordinance No. II of 1982 provides that all pending matters under the Act No. 13 of 1948 i.e. the Emergency Requisition of Property Act, are to be continued and disposed, of thereunder, as if it has not been repealed but the High Court Division illegally applied the provisions of the said Ordinance in the instant proceeding drawn under the said Act for payment of full compensation money at the present market rate and as such application of the said provision is not sustainable in law….… (8)
 
Cases Referred to:
Bangladesh vs. Basaratullah 42 DLR (AD) 91; Abdul Gafur Khan and another vs. Government of Bangladesh and others 42 DLR (AD) 99. 
 
Lawyers Involved:
Md. Ozair Farooq, Senior Advocate, instructed by Md. Nawab Ali, Advocate‑on‑Record‑For the Appellant. 
Sultan Ahmed, Advocate, (appearing in person), instructed by Md. Aftab Hossain, Advocate‑on‑Record-­For Respondent No. 1. 
Not represented‑Respondent Nos. 2‑6. 
 
Civil Appeal No. 292 of 2003
(From the judgment and order dated 29th April 2002 passed by the High Court Division in Writ Petition No. 1931 of 2001). 
 
JUDGMENT
 
Md. Fazlul Karim J:
 
1. This appeal by leave is to consider the points raised in the leave petition as under: 
 
"Mr Mohammad Ozair Farooq, the learned Counsel for the petitioner, has submitted with reference to section 48 of the Acquisition and Requisition Ordinance, 1982 that the proceeding in the instant case having been taken pursuant to the Emergency Requisition of Property Act of 1948, the impugned order directing payment of full compensation money at the present market rate in the provision of Order 11 of done without lawful authority."
 
Mr. Sultan Ahmed, the learned Advocate appearing in person has, however, submitted that in view of proximity of period of requisition and acquisition the writ‑petitioner is entitled to adequate compensation over the statutory rate for acquisition provided under the Emergency Requisition of Property Act, 1948 and has referred to a decision in the case of Bangladesh vs. Basaratullah reported in 42 DLR (AD) 91 the relevant passage is quoted as under: 
 
"It was said in the case that though notice for acquisition under section 5(a) was served in 1962 the land was six years when the value of the land increased to a great extent. Government did not explain why notice was served in 1962 but acquisition was made in 1968. Although there is no particular period within which a requisitioned land is to be acquired after notice for acquisition has been served, yet when the value of the land was increasing but that of money was decreasing the compensation to be paid now on the valuation of the year 1962 would cause substantial injury to the land owner. There should be some proximity between the date of notice for acquisition and that of actual acquisition." 
 
2. Mr. Ozair Farooq, the learned Counsel appearing for the appellant, submits that the proceeding having been taken to requisition the land with a view to acquisition in LA Case No. 161 of 1978‑79 under the provision of Emergency Requisition of Property Act for the development of commercial area, Zone‑13 under Rajshahi Town Development Authority and the compensation money thereto having been determined complying with the provision of section 5 and accordingly, assessed the compensation, the appellant is not liable to pay the present compensation money at the market rate to the writ‑petitioner inasmuch as the provision of Requisition and Acquisition of Property Act, 1982 has no manner of application in respect of the pending acquisition proceeding under the Act of 1948. 
 
3. Mr. Sultan Ahmed, the respondent No.1 appearing in person has, however, submitted that though notice for acquisition was served soon after the proceeding has been started in 1978‑1979 but no notice under section 5(1) (a) and 5(3) of the Act were served inasmuch as to gazette notification as required under section 5(7) of the Act was ever published. Moreover, the requiring body did not utilise the entire 12 decimals of land for which the writ‑petitioner‑respondent prayed for the requisition of the property or failed to publish the notification of acquisition under section 5(7) of the Act on payment of compensation at the present market rate. Mr. Ahmed has referred to a decision in the case of Bangladesh vs. Basharatullah reported in 42 DLR (AD) 91 in support of his contention and submitted that since the date of requisition the value of the land having been increased substantially, the writ­-petitioner is entitled to compensation at the present market rate for acquisition of his property on the principle that there should be proximity between the notice of acquisition and that of actual acquisition.
 
4. The land was alleged to have been requisitioned for the purpose of acquisition under the Emergency Requisition of Property Act as back in 1978 under section 3 thereof but the process of acquisition of the land in question was not completed and, as such, the land was not acquired. Though the local Deputy Commissioner requisitioned the land for the purpose of acquisition but did not submit the case with his report for the decision of the Government and the latter also did not make any decision as to the acquisition required under sub‑sections (5) and (6) of section 5 of the Emergency Requisition of Property Act, 1948. Moreover, nothing has been produced to show that gazette notification as required under sub‑section (7) of section 5 of the said Act giving notice of the acquisition of the land was ever made. The acquiring authority as also required under sections 5(3) and 5(7) of the Act failed to take action in accordance with law by publishing gazette notification thereby depriving the respondent of adequate compensation. The respondent is, entitled to compensate at the present market rate for the acquisition thereof at this belated stage. The respondent has accordingly, submitted that there should be some proximity between the date of requisition, the notice for acquisition and that of the actual acquisition and referred to a decision in the case of Government of Bangladesh vs. Basharatullah & ors reported in 42 DLR (AD) 91. 
 
5. Mr. Md. Ozair Farooq has, however, submitted that the land having been acquired properly under the Emergency Requisition of Property Act, 1948, there is no scope whatsoever to apply of the provision of Acquisition and Requisition of Immovable Ordinance, 1982 as has been illegally applied by the High Court Division inasmuch as in spite of the repeal of the Act all proceeding and matters relating to notice, notification, order, etc. relating to requisition and acquisition of any property, compensation or award in respect of the said property shall be continued and disposed of, as if the said Act has not been repealed. The learned‑ Counsel has further submitted that the land of the writ‑petitioner is entitled to be assessed with compensation at the market value to be determined with reference to the date of requisition under section 3 of the Act inasmuch as there was no such provision under the Act to make the payment of compensation at the present market value as has been illegally ordered by the High Court Division. The learned Counsel has further submitted that the decision referred to by the respondent reported in 42 DLR (AD) 91 is not applicable in the facts and circumstances of the present case in view of the due service of notice of such requisition and acquisition under the Emergency Requisition of Property Act inasmuch as the amendment as to the operative part of the order making the Rule absolute by adding the words present market rate for payment of full compensation money at the present market rate in accordance with the provision of Order II of 1982 was not in accordance with law. 
 
6. The High Court Division has found on scrutiny of the record of LA Case No. 161 of 1978­79 that the process of acquisition of the land in question was not completed and the Deputy Commissioner though requisitioned the land for the purpose of acquisition as well did not submit the case with his report for the decision of the Government and accordingly, Government has not made any decision as to the acquisition required under sub‑section (5) of section 5 of the Emergency Requisition of Property Act and no gazette notification as required sub‑section (7) of section 5 of the Requisition of Property Act was ever published The High Court Division accordingly held that the land in question has not been acquired till date as per provision of the Emergency Requisition of Property Act, 1948. 
 
7. In the aforesaid premises of the case, though notice under section 5 of the Act was issued and served as back in 1978‑79 but the formalities as required for decision of the Government was not properly complied with within, time and no notification under section 5(7) of the Act having been published so far within reasonable proximity between the date of acquisition, notice of acquisition and the actual acquisition and the gap in the matter of assessment of compensation resulting in escalation of the price of the land meanwhile due to acute inflation since the date of requisition and the land still remaining under possession of the respondent but the price at present has increased to a great extent inasmuch as the Government could not also explain the period in between, has caused substantial injury to the owner of the land under acquisition. In the case of Abdul Gafur Khan and another vs. Government of Bangladesh and others reported in 42 DLR (AD) 99 which arose out of dispute regarding assessment of compensation in which the learned Judge of the High Court Division fixed the compensation taking the average of the value of the acquisition between the period of 1961 in which the land was requisitioned and the year 1968 in which the land was finally acquired and on that basis fixed valuation instead of assessment of compensation on the average of the value of land during the period of 24 months prior to the date of service of notice for acquisition under section 5(l) of the Emergency Requisition of Property Act. Leave was granted in the said case to examine whether the assessment as finally made by the learned Single Judge was in accordance with law governing the subject. 
This Division accordingly held that:            
 
“..........though notice for acquisition under section 5(a) was served in 1962 the land was actually acquire in 1968, that is, after the expiry of 6 years when the value of the land increased to a great extent. Government did not explain why notice was served in 1962 but acquisition was made in 1968. Although there is no particular period within which a requisitioned land is to be acquired after notice for acquisition has been served, yet when the value of the land was increasing but that of money was decreasing the compensation to be paid now on the valuation of the year 1962 would cause substantial injury to the land owner. There should be some proximity between the date of notice for acquisition and that of actual acquisition. But that as it may, the point of law now, taken during the hearing of the appeal before us was not raised before any of the Courts below. The learned Single Judge missed to appreciate law for laches of the parties, particularly, the Government; but the valuation at Taka 30,000 per acre is found to have met the ends of justice, fairness and equity in this case in the circumstances as shown above. We, therefore, do not think that any  interference is called for. Substantial justice is found to have been done to both the parties."                    
 
8. Section 47 of the Acquisition and Requisition of Property Ordinance No. 2 of 1982 provides that all pending matters under the Act No 13 of 1948 i.e. the Emergency Requisition of Property Act, is to be continued and disposed of thereunder, as if it has not been repealed but the High Court Division illegally applied the provision of Ordinance II of 1982 i.e. the Acquisition and Requisition of Immovable Property Ordinance, 1982, in the instant proceeding drawn under Act No.13 of 1948 for payment of full compensation money at the present market rate and, as such, the application of the said provision is not sustainable. However, although the land in question was requisitioned in 1978‑79 but the same was not acquired publishing any notification as required under section 5(7) of the Emergency Requisition of Property Act, 1948 to get the land acquired permanently on payment of compensation for which the respondent (writ‑petitioner) on 31‑10‑1999 and 25‑3‑2001 sent applications to the appellant praying for de‑requisition of the land in LA Case No. 161 of 1978‑79 and/or either to get it permanently acquired by publishing the notification under section 5(7) of the Act on payment of compensation at present day market value or release the same from requisition and again on 10‑5‑2001 sent legal notice.  
 
9. While applying the proposition of law enunciated in 42 DLR (AD) 99 in the matter of assessment of compensation that there should be some proximity between the requisition, notice of acquisition and of actual acquisition, in the facts and circumstances of the instant case that no step has yet been taken for acquisition of the land on publication of the notification under section 5(7) of the Act, we direct the authority to take immediate steps to that effect and assess the compensation at present market value. Our aforesaid order for assessment of compensation at present market value is passed to secure substantial justice in the case in order to avoid any alleged substantial injury, that has been suffered by the writ‑petitioner and is confined to thefacts and circumstances of this case only.
 
The appeal is dismissed without any order as to costs.
 
Ed.