Acquisition and Requisition of Immovable Property
Acquisition and Requisition of Immovable Property Ordinance [II of 1982]
It is by now finally settled that respondent No.5 cannot claim any valid right and claim. over the land of disputed plot of the case in hand while the respondent No.1 became the owner of the land of disputed plot by way of acquisition. Although in the present case the respondent No.5 claims to be in possession of the disputed plot in view of the settled legal proposition the status of the respondent No.5 in the disputed plot is no better than a mere trespasser....(Para 16)
It is the case of the appellant that she took the allotment of the disputed plot from the respondent No.1, RAJUK vide memo dated 16.11.1995. Now the pertinent question is that whether the appellant has acquired a valid right and title of the disputed plot. Since it has already been settled by this Division that the land of disputed plot was acquired by RAJUK in accordance with law and the said land was not delisted from the acquisition, it is our considered view that the appellant having taken allotment of the same from RAJUK has acquired a legitimate right and title over it....(Para 17)
It is our considered view that the High Court Division committed illegality in passing the impugned judgment without taking into consideration that earlier in Writ Petitions No.11099 of 2006 and 3030 of 2005 the High Court Division found that the respondent No.5 has no right and title over the disputed plot. But in the case in hand, the High Court Division while dealing with the Writ Petition filed by the appellant held relying on the claim of the respondent No.5 to the effect that since the case involves the disputed question of facts as to the title over the disputed plot the same should be settled in Title Suit No.373 of 2005 filed by the respondent No.5 and as such the Writ Petition is not maintainable. The above findings of the High Court Division is absolutely unwarranted inasmuch as the fresh consideration of title of the respondent No.5 in disputed plot which has already been decided earlier by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 is barred by the principle of res judicata....(Para 18)
Any previous decision on a matter in controversy in a legal proceeding including writ petition decided after full contest by the parties or after affording fair opportunity to the parties to prove their case will operate as res judicata in a subsequent regular suit. Therefore, in view of the above decision of the Indian Supreme Court we hold that since the right and title of the respondent No.5 in the disputed land has not been found by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No.5, subsequent suit being No.373 of 2005 instituted by the respondent No.5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No.7817 of 2009 is barred by the principle of res judicata. 19 SCOB [2024] AD 1
Section 2(f), 13/8 (l)(b)/ 8(1) (f), 3,44,28
The writ-petitioner is entitled to get compensation for the manchinery and industries and shifting costs. Additional Director (Admin) vs. Md. Soke I Hossain Ibne Batuta (Mohammad Fazlul Karim J) (Civil) 5 ADC 920
Section 2(b)- "Deputy Commissioner" includes an Additional Deputy Commissioner and any other officer authorised by him.
Under section 3 of the Ordinance it is the Deputy Commissioner who has to cause a notice to be published under the said Ordinance. Under section 2(b) "Deputy Commissioner" includes an Additional Deputy Commissioner and any other officer authorised by the Deputy Commissioner to exercise any power conferred, or to perfo perform any duty imposed, on the Deputy Commissioner by or under this Ordinance. Sankar Gopal Chatterjee vs Addl Commissioner, Dhaka Division 41 DLR 326
Section 3-The law of acquisition gives the Deputy Commissioner power to acquire property in two likely situations; if the property is needed or if the property is likely to be needed.
The use of two alternative expressions in the notice under section 3 is indicative of a lack of application of mind and the notice under section 3 is liable to be struck down on this ground.
The law of acquisition gives the Deputy Commissioner the power to acquire property in the likelihood of two situations. First, if the property is needed. Or, if the property is likely to be needed. A property is either needed or it is likely to be needed but while acquiring a property the Deputy Commissioner cannot keep both the alternatives in his pocket. He has to choose between the two. If he keeps both the options open, then he does not know whether the property is needed for immediate use or it is likely to be needed for some future use. The use of both these alternative expressions in the notice under section 3 is indicative of a lack of application of mind and the notice under section 3 is liable to be struck down on that ground as well. Sankar Gopal Chatterjee vs Addl Commissioner Dhaka Division
41 DLR 326
Section 3-Acquisition for a co-operative society per se is not a public purpose. The need to state the precise public purpose in the body of the notice under section 3 is imperative. Besides, under section 17 no acquired property under the Ordinance shall be used for any purpose other than the purpose for which it is acquired.
Acquisition for a co-operative society per se is not a public purpose. The purpose for which the Co-operative Society proposes to use the acquired land is the ultimate test for a decision as to whether the acquisition is for a public purpose or not. There is a total lack of disclosure in the notice under section 3 as to for what purpose the Co-operative Society needs the acquired land. The need to state the precise public purpose in the body of the notice under section 3 is imperative, because under section 4 of the Ordinance any person interested in the disputed property has the right to object to the acquisition of the property challenging the public purpose stated therein, but if no specific public purpose is stated in the notice, then the right given to the objector under section 4 is rendered nugatory and illusory. Besides, under section 17 no property acquired under the Ordinance shall be used for any purpose other than the purpose for which it is acquired without the prior approval of the Government.
Hence on the ground of lack of public purpose the acquisition proceedings fail. Sankar Gopal Chatterjee vs Additional Commissioner, Dhaka Division 41 DLR 326.
Sections 3 and 4-The objection raised in the facts of the case is merely technical and does not touch upon the genuineness of the requirement which is obviously of an immediate nature. It is on record that the petitioner filed successive objections for consideration. There being a consideration by the acquiring authority the impugned judgment need not be interfered. Zahed Hossain Mia vs Deputy Commissioner 50 DLR (AD) 15.
Sections 3 and 4(3)(b) The notice under section 3 suffers from a total lack of jurisdiction.
When the Additional Commissioner directed the Deputy Commissioner, Kishoregonj to proceed from the stage of section 4(3)(b) of the Ordinance, there is a presumption that he rejected the petitioner's contentions upheld by the Additional Deputy Commissioner. In all fairness the Additional Commissioner should have given a finding on those issues. Without disposing of those issues the Additional Commissioner could not have directed the Deputy Commissioner, Kishoregonj to proceed under section 4(3)(b) of the Ordinance. As we have independently found that the notice under section 3 suffers from a total lack of jurisdiction, no need to dwell at length on this point. Sankar Gopal Chatterjee vs Additional Commissioner, Dhaka Division 41 DLR 326
Sections 3 and 6-The description of the land sought to be acquired are vague, indefinite, unspecified and uncertain and did not enable the owners to make an effective objection in writing against the order of acquisition and the same has rendered the acquisition proceeding illegal. Haji Abdur Rahim vs Secretary, Ministry of Land Administration and Land Reforms 46 DLR 378.
Sections 3 and 15-The provision of section 15 is mandatory-An agreement with the non- Government requiring body is a sine qua non for the exercise of power, before the Deputy Commissioner acquires the jurisdiction to publish a notice under section 3 of the Ordinance.
The provision of section 15 is not directory but mandatory. Before the Deputy Commissioner acquires the jurisdiction to publish a notice under section 3 an agreement with the non-Government requiring body is a sine qua non for the exercise of such power. It is a condition precedent. It cannot be whittled down by any device. It cannot be even accepted that an acquisition proceeding may be started without any agreement, but if a subsequent agreement is reached then it amounts to validation. The principle of subsequent validation cannot be entertained in a matter where the property rights of the citizen are involved. Sankar Gopal Chatterjee vs Additional Commissioner Dhaka Division 41 DLR 326.
Sections 3 and 15-The acquisition proceedings are a colourable exercise of power as they were started without any agreement with the requiring body under section 15 of the Ordinance and for circumventing a valid decree of the Civil Court. Sankar Gopal Chatterjee vs Addi Commissioner Dhoka 41 DLR 326
Section 3 and 6
When a proceeding is initiated for acquisition of some lands acquired for public purpose and in public interest and when notices under sections 3 and 6 were served and no objection as to specification or indefiniteness of the property was raised before the acquisition authority after the notices under the aforesaid provisions of law were served, such objection cannot be raised before any authority, subsequently, including the High Court Division' as has been decided in the case of Mizanur Rahman Vs. DC Mymensingh (7 BLC (AD) 17). The impugned judgment of the High Court Division it appears that a sketch map prepared by the authority as mentioned earlier, was filed and the High Court Division took notice of it but did not rely upon it because of its illegibility. That means the High Court Division took notice of this specification made in the sketch map but made the Rule absolute without taking the same into consideration in its true perspective which appears to be palpably erroneous. This civil appeal is allowed and the impugned judgment and order passed by the High Court Division is set aside. …Power Grid Company of Bangladesh Ltd. =VS= Rowshan Ara Begum, (Civil), 2019 (2) [7 LM (AD) 69]
Section 3
We issue a writ and direct that the decision of the respondent Nos.1-3 in revoking the order of acquisition of land located at East Pahartali appertaining to B.S. Plot Nos.152 and 153 under police station Khulshi, Chittagong by memo dated 31st May, 2006 and the memos dated 22nd December, 2005 and 18th May, 2006 are declared to have been issued without lawful authority and of no legal effect. The respondent Nos.1-3 are hereby directed to proceed with the acquisition proceedings in accordance with law. However, we would like to observe that the acquisition notice should be issued upon the USTC which has already purchased the disputed land in question and is entitled to the compensation. .....Mohammad Zafar Iqbal =VS= Ministry of Liberation War Affairs, (Civil), 2017 (2)– [3 LM (AD) 402]
Section 3-The acquisition proceeding had already been completed and the land in question vested in the requiring body and that the petitioners neither had any right, title or interest over the land nor it could demand re-grant of the land as a matter of right.
The purpose of acquisition of the land in question was for public purpose and as such, no interference was called for.
In order to get compensation, the petitioners are required to prove their title.
The Appellate Division opined that the High Court Division noted that the present acquisition of land was to build a graveyard as evidenced by the notice issued under section 3 of the Ordinance. The High Court Division came to a finding that the notices under sections 3 and 6 had already been served. The High Court Division further found that the records revealed that after initiation of the proceeding, possession of the land in question had already been handed over to Dhaka North City Corporation (DNCC) by the Deputy Commissioner, Dhaka and after getting possession, the DNCC had been preparing to develop the land for the graveyard. The High Court Division observed that the acquisition proceeding had already been completed and the land in question vested in the requiring body and that the petitioners neither had any right, title or interest over the land nor it could demand regrant of the land as a matter of right. The High Court Division noted that the power conferred by the Ordinance for acquisition of private property could only be exercised for acquisition of land for public purpose or in public interest and such land should be taken in general interest of the community as opposed to particular interest of some individuals. The High Court Division came to a finding that the purpose of acquisition of the land in question was for public purpose and as such, no interference was called for. Having gone through the record, the Appellate Division finds that the acquisition of the land in question was done in accordance with law and that there was no loophole in the acquisition proceeding. Mr. Rokanuddin Mahmud submits that the respondents should be directed to pay compensation to the petitioners in respect of the land acquired from them within a specified time. In order to get compensation, the petitioners are required to prove their title. If the petitioners can prove their title the respondents shall pay compensation to the petitioners within a period of 3 (three) months from the date. In the light of the findings made before, this civil petition for leave to appeal is disposed of. Sentry Security Services Ltd. and another -Vs.- Deputy Commissioner, Dhaka and others (Civil) 23 ALR (AD) 22
Sections 3 and 6-When the notice is published on or near the property proposed to be acquired for public purpose and in public interests the requirement of law is served.
The Appellate Division observed that it is not the requirement of law that notices under sections 3 and 6 of the Ordinance No. II of 1982 have to be served upon a person having interest in the land or on the owner of the land when the property is acquired for public purpose and in public interest as apparent from the language employed in sections 3 and 6 of the Ordinance 1982. The above two provisions clearly stipulate that when the notice is published on or near the property, proposed to be acquired for public purpose and in public interests the requirement of law is served. Power Grid Company of Bangladesh Ltd. -Vs.- Rowshan Ara Begum and others (Civil) 15 ALR (AD) 43-48
Section 3 & 4
Public interest–
The public purpose and public interest have not been defined in the Ordinance. The ratio is that the public purpose includes a purpose in which the general interest of the community as opposed to the interest of an individual is directly or indirectly involved. The public purpose is not static concept, but is flexible and is capable of expansion to meet conditions of the complex society. A public purpose has for its objective the promotion of the public health, safety, morals, security, prosperity, contentment and the general welfare of the residents. It includes any purpose wherein even a fraction of the community may be interested or by which it may be benefited. Since it has been decided to acquire the property, in question, not for the purpose of any interest of the individual rather for the interest of the community at large, we are of the view that the decision of acquisition of the property in question was taken for public purpose. In view of the aforesaid facts and circumstances, we do not find any wrong in the judgment and order of the High Court Division which calls for any interference by this Division. .....Mrinalendu Paul =VS= Divisional Commissioner, Chittagong Division, (Civil), 2018 (1) [4 LM (AD) 277]
Sections 3, 6
Private property could only be exercised for acquisition of land for public purpose or in public interest–– Notices under sections 3 and 6 had already been served–– The High Court Division observed that the acquisition proceeding had already been completed and the land in question vested in the requiring body and that the petitioners neither had any right, title or interest over the land nor it could demand re-grant of the land as a matter of right. The High Court Division noted that the power conferred by the Ordinance for acquisition of private property could only be exercised for acquisition of land for public purpose or in public interest and such land should be taken in general interest of the community as opposed to particular interest of some individuals. The High Court Division came to a finding that the purpose of acquisition of the land in question was for public purpose and as such, no interference was called for. .....Sentry Security Services Ltd. =VS= Deputy Commissioner, Dhaka, (Civil), 2023(1) [14 LM (AD) 181]
Sections 3, 15
lands had earlier been acquired by the Government for the purpose of construction of Dhaka-Chittagong Highway and thereafter only the case plots are left to them and they rent to develop the same for the purpose of setting up industry on these lands. M/S. Mollah Industrial Estate vs. Khawja Mohammad Arifullah (M.M. RUHUL AM IN C.J ) (Civil) 6 ADC 493
Sections 3 and 8(Ka)
The Arbitrator has fixed compensation at the rate of Tk. 15 lakh per acre taking the average of the sale price of the land in the vicinity and determined the compensation at a reasonable amount which is at least about 3 times less than the sale figure of 5 sale deeds in the vicinity of the acquired land by the petitioner together with compensation at the rate of 20% upon the value of the sale deeds and with additional compensation at the rate of 10% till the amount is paid or offered for payment. Bangladesh Small & Cottage Industries Corporation vs Kazi Nazimuddin 15 BLC (AD) 210.
Sections 3 and 4
The objection raised in the facts of the case is merely technical and does not touch upon the genuineness of the requirement which is obviously of an immediate nature. It is on record that the petitioner filed successive objections for consideration. There being a consideration by the acquiring authority the impugned judgment need not be interfered. Zahed Hossain Mia vs Deputy Commissioner 50 DLR (AD) 15.
Sections 3, 6, 7 and 11
Acquisition process when reaches its finality— Government can exclude any land from acquisition— Court has no such power—
Court has no power to exclude any land from acquisition. Only the government can exclude any land from acquisition. Ameena Ahmed Vs. Government of Bangladesh represented by the Secretary, Ministry of Land and others 13 MLR (2008) (AD) 176.
Section 3 and 4
Acquisition for public purpose— Scope of interference—
Where the land is urgently required for Government purpose and is acquired by duly serving notice under section 3 and hearing objection under section 4 of the Ordinance there is no ground to interfere with the acquisition proceedings. Zahed Hossain Mia Vs. The Deputy Commissioner, Chittagong and others. 3, MLR(1998) (AD) 135.
Section 3
Acquisition of immovable property for public purpose— Service of notice- Constitutionality of—
In a proceeding for acquisition of immovable property for public purpose notice under section 3 of the Ordinance of 1982 need not be served personally upon individual owner or occupier. Section 3 pre-supposes service of notice in the locality or near the property. Moreover it is held that section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 does not offend article 31 and 42 and as such is not ultra vires the Constitution. Abdus Salam Vs. Government of Bangladesh represented by the Secretary, Ministry of Land Administration and Land Reforms & others. 5 MLR (2000) (AD) 184.
Section 3, 7,11
Late A.R.M. Inamul Haq father of the petitioners was a philanthropist and did many things during his lie time for the advancement of education. Before his death he expressed his desire to donate his eyes after his death for the purpose of placing cornea to blind persons and as per this desire after his death his eyes were collected by the doctors and those were placed in the eye of two blind per- sons and he was the first man of this country who donated his eyes....(3) Ameena Ahmed vs. Government of the peoples' Republic of Bangladesh (Md. Addul Matin J) (Civil) 5 ADC 397
Acquisition and Requisition of Immovable Property Ordinance, 1982
Section 3- We issue a writ and direct that the decision of the respondent Nos. 1-3 in revoking the order of acquisition of land located at East Pahartali appertaining to B.S. Plot Nos.152 and 153 under police station Khulshi, Chittagong by memo dated 31st May, 2006 and the memos dated 22nd December, 2005 and 18th May, 2006 are declared to have been issued without lawful authority and of no legal effect. The respondent Nos.1-3 are hereby directed to proceed with the acquisition proceedings in accordance with law. However, we would like to observe that the acquisition notice should be issued upon the USTC which has already purchased the disputed land in question and is entitled to the compensation. Mohammad Zafar Iqbal =VS= Ministry of Liberation War Affairs, [3 LM (AD) 402]
Section 3 & 4- Public interest- The public purpose and public interest have not been defined in the Ordinance. The ratio is that the public purpose includes a purpose in which the general interest of the community as opposed to the interest of an individual is directly or indirectly involved. The public purpose is not static concept, but is flexible and is capable of expansion to meet conditions of the complex society. A public purpose has for its objective the promotion of the public health, safety, morals, security, prosperity, contentment and the general welfare of the residents. It includes any purpose wherein even a fraction of the community may be interested or by which it may be benefited. Since it has been decided to acquire the property, in question, not for the purpose of any interest of the individual rather for the interest of the community at large, we are of the view that the decision of acquisition of the property in question was taken for public purpose. In view of the aforesaid facts and circumstances, we do not find any wrong in the judgment and order of the High Court Division which calls for any interference by this Division. Mrinalendu Paul =VS= Divisional Commissioner, Chittagong Division, [4 LM (AD) 277]
Section 3 and 6- When a proceeding is initiated for acquisition of some lands acquired for public purpose and in public interest and when notices under sections 3 and 6 were served and no objection as to specification or indefiniteness of the property was raised before the acquisition authority after the notices under the aforesaid provisions of law were served, such objection cannot be raised before any authority, subsequently, including the High Court Division' as has been decided in the case of Mizanur Rahman Vs. DC Mymensingh (7 BLC (AD) 17). The impugned judgment of the High Court Division it appears that a sketch map prepared by the authority as mentioned earlier, was filed and the High Court Division took notice of it but did not rely upon it because of its illegibility. That means the High Court Division took notice of this specification made in the sketch map but made the Rule absolute without taking the same into consideration in its true perspective which appears to be palpably erroneous. This civil appeal is allowed and the impugned judgment and order passed by the High Court Division is set aside. Power Grid Company of Bangladesh Ltd. VS Rowshan Ara Begum, [7 LM (AD) 69]
Section 3
Acquisition and Requisition of Immovable Property Ordinance, 1982
Section 3:
The law gives the Deputy Commissioner to acquire any property if he is satisfied that the property is needed for public purpose. In the notice the Deputy Commissioner specifically mentioned the purpose for which the notice was served that it was for the public purpose of Baddyabhumi. This order clearly spelt out the actual existence of requirement for a public purpose within the meaning of section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982. If the reason for the issuance of the notice of acquisition was not one contemplated by law, the initiation of the proceedings would be void. It is the Deputy Commissioner who is primarily the judge of the facts which would attract section 3 of the ordinance. This opinion cannot be replaced by any other authority. …Mohammad Zafar Iqbal & ors Vs. Bangladesh & ors, (Civil), 9 SCOB [2017] AD 25
The order of revocation does not reveal the purpose for such revocation. This shows that the decision communicated by the respondent No.1 was a colourable exercise of power. Before proceeding with the acquisition process the acquiring authority obtained Ministry of Planning Commission’s approval. The High Court Division also observed that a portion of the mass graveyard is located on the extended under construction academic building of the USTC. Therefore, the conclusion arrived at by the High Court Division that the location of East Pahartali mass graveyard is a disputed question of fact is a self contradictory finding. To say otherwise, the High Court Division made this observation without application of its judicial mind. …Mohammad Zafar Iqbal & ors Vs. Bangladesh & ors, (Civil), 9 SCOB [2017] AD 25
The preservation of the memory of the martyrs and the national heros is necessary:
A mausoleum for the memory of martyrs of the war of liberation is normally constructed on the site where the martyrs were killed and buried. This site cannot be shifted to another site. It is because a monument is built on the killing spot with a view to remember the memories of martyrs who sacrificed their lives for the independence of the country. The preservation of the memory of the martyrs and the national heros is necessary because this would remind our next generation the cruel assassination and mass killing by the Pakistani occupation army with their accomplices and also to show the outsiders that this is the evidence of our history of liberation war. If this memory is erased from the memory of our next generation, the very cause for which martyrs had sacrificed their lives would be fruitless.…Mohammad Zafar Iqbal & ors Vs. Bangladesh & ors, (Civil), 9 SCOB [2017] AD 25
We are satisfied that the impugned order revoking the acquisition proceedings is nothing but sheer arbitrary abuse of the power and this cannot be legally sustainable in law. The High Court Division has totally ignored that aspect of the matter. The High Court Division in the premises, fell in an error in not interfering with the impugned order of the revocation of the acquisition proceedings initiated for the constitution of the monument at the site of the mass graveyard. The High Court Division also made conflicting findings and this has caused due to non application of judicial mind. The action of the respondents cannot be sustainable in law and the same is liable to be interfered with. …Mohammad Zafar Iqbal & ors Vs. Bangladesh & ors, (Civil), 9 SCOB [2017] AD 25
Section 3, 15
lands had earlier been acquired by the Government for the purpose of construction of Dhaka-Chittagong High- way and thereafter only the case plots are left to them and they rent to develop the same for the purpose of setting up industry on these lands. M/S. Mollah In dustrial Estate vs. Khawja Mohammad Arifullah (M.M. RUHUL AMIN C (Civil) 6 ADC 6 ADC 493
The writ petitions as mentioned in the second bunch were filed impugning the notice issued by the Magistrate of the RAJUK, Dhaka, asking the persons to vacate the land in unauthorized occupa- tion and to remove the structures thereon by the 24th August, 1996. Ra- jdhani Unnayan Kartipakkya vs. Jahan Ara Begum (Mohammad Fazlul Karim J) (Civil) 6 ADC 649
Section 3,6,15
Acquisition has been vitiated for not specifying the lands sought to be ac- quired, these lands have not been ac- quired in public interest or for any public purpose and that no agreement deed was executed between the requir- ing body and the Government as per Section 15 of the Acquisition and Req- uisition of the Immovable Property Or- dinance, 1982 before acquiring these lands. Power Grid Company vs. Row- shon Ara Begum (Nazmun Ara Sultana J) (Civil) 8 ADC 558
Section 3, 15
lands had earlier been acquired by the Government for the purpose of con- struction of Dhaka-Chittagong High- way and thereafter only the case plots are left to them and they rent to develop the same for the purpose of setting up industry on these lands. M/S. Mollah In- dustrial Estate vs. Khawja Mohammad Arifullah (M.M. RUHUL AMIN C.J )(Civil) 6 ADC 6 ADC 493
Section 3,5,6,7(1),28
The arbitration case was undoubtedly
barred by limitation and the period of limitation prescribed being not extend-
able in any situation, the appellants upon mutating their names in the rev-
enue record in 1997 were not competent to file the arbitration case or in other
words the Arbitration case so filed was incompetent being barred by limitation.
Ismail Hussain Posshari vs District Land Acquisition Officer, (Md. Ruhul Amin
J) (Civil) 2 ADC 891
Section 3
Merely entries of the predecessors of the plaintiffs in the S.A and R.S. Khatians without any documents of title or ownership did not create of the respondents-plaintiffs title over the suit land– Said S.A. and R.S. records of right were published in the name of the previous owners from whom through L.A. Case No.48 of 1966-67, the land in question was acquired. Appellate Division is, therefore, of the considered view that such record of rights neither established the right title of the previous owners or their heirs upon the suit properties, because of acquisition of the said property. This Division finds that the impugned judgment and order of the High Court Division do call for interference. .....Deputy Commissioner, Natore =VS= Most. Majeda Beowa, (Civil), 2022(1) [12 LM (AD) 129]
Sections 3, 7(3), 10
Payment of compensation of acquired land is not maintainable through with petition– Appellate Division is of the view that the writ-petition in respect of payment of compensation of acquired land is not maintainable and thus the judgment passed by the High Court Division in Writ Petition No.3891 of 2015 is hereby set aside. The respondent-writ petitioners are not precluded from taking steps to get their compensation in accordance with law. The Civil Petition for Leave to Appeal is disposed of. ...Government of Bangladesh =VS= Md. Hadisur Rahman, (Civil), 2021(2) [11 LM (AD) 83]
Section 4(b) and 5
Whether the requiring body had paid the amount within one year of the said date is a matter between the Government and the requiring body. It is not the case of the petitioner that he was not paid compensation or that his compensation money was not deposited within one year from the date of decision to acquire under section 5 or the proviso to section 4(3)(b) of the Ordinance. As such he has no business to enquire when the requiring body paid the amount of compensation to the Government.
Md. Alauddin Khandker Vs Government of Bangladesh, 20 BLD (AD) 147.
Ref: Bangladesh vs. Subash Chandra Das, 46 DLR (AD) 63; Subash Chandra Das vs. Bangladesh, 5ODLR (AD) 106—Cited.
Sections 5,12,15
So, the decision of the High Court Division is based on the fact that the award for compensation was made on 8th April, 1991 and as the compensation money having been deposited by Rabi-tat on 12th December, 1991 within one year from the date of award for compensation, the deposit was made in time, the proceedings not abated. This finding is based on misconception of law, inasmuch as, the High Court Division made the above observation on the basis of the substituted section 12 of the Ordinance, which provision would not be applicable in the said writ petitions. The Deputy Commissioner after hearing objection approved the proposal of the Land Acquisition Officer under section 5 of the Ordinance by order dated 17th July, 1990. The earlier writ petitions were filed in 1992. In the premises, it is the unamended provisions of Section 12 would hold the field but the High Court Division wrongly considered the amended provision . Dr. Malik Mehdi Kabir vs. Rabitat-Al-Alam-Al-Islami (S.K. Sinha J) (Civil) 8 ADC 652
Section: 5,12,15
So, the decision of the High Court Divi- sion is based on the fact that the award for compensation was made on 8th April, 1991 and as the compensation money having been deposited by Rabi- tat on 12th December, 1991 within one year from the date of award for compen- sation, the deposit was made in time, the proceedings not abated. This finding is based on misconception of law, inas- much as, the High Court Division made the above observation on the basis of the substituted section 12 of the Ordi- nance, which provision would not be applicable in the said writ petitions. The Deputy Commissioner after hearing ob- jection approved the proposal of the Land Acquisition Officer under section 5 of the Ordinance by order dated 17th July, 1990. The earlier writ petitions were filed in 1992. In the premises, it is the unamended provisions of Section 12 would hold the field but the High Court Division wrongly considered the amended provision. Dr. Malik Mehdi Kabir vs. Rabitat-Al-Alam-Al-Islami (S.K. Sinha J) (Civil) 8 ADC 652
Section 6 and 11
Acquisition of land for public purpose becomes final and the land so acquired vests in the Government after notification published in the official Gazette under section 11 of the Ordinance—Writ petition filed long after the acquisition is not maintainable—
By majority decision the apex court held that writ petition filed long after the acquisition is not maintainable and disputed fact can not be decided in the writ jurisdiction. The acquisition of land for public purpose becomes final and vests in the Government after the publication of notice under section 11 in the official Gazette. However the apex court further held that if the requiring body fails to utilise the land for the purpose it is acquired and the land remains unutilised for long time, the original owners may, approach the Government for the return of the same. M/S Mallah Industrial Estate and Government of Bangladesh and others Vs. Khaivja Mohammad Arifullah and others 14 MLR (2009) (AD) 265.
Sections 7(4) and 12(l)
Acquisition and Requisition of Immovable Property Ordinance, 1982 (Amended by Act XX of 1994)
Sections 7(4) and 12(l) and
The Ordinance No. II of 1982
Section 5(1)
The requiring body made payment of the compensation amount within one year of the final decision to acquire the land– From the record that the requiring body made payment of the compensation amount on 08.06.1995 which was, therefore, within one year of the final decision to acquire the land. In the above facts and circumstances we find that the High Court Division was not correct in holding that the payment of compensation by the requiring body was not made within one year as required under the relevant law. ...Ministry of Land, Bangladesh =VS= Khorshed Alam Khan, (Civil), 2021(1) [10 LM (AD) 15]
Sections 7 and 8 (d) and (f)
Constitution of Bangladesh
Article 102 read with
Acquisition and Requisition of Immovable Property Ordinance [II of 1982]
Sections 7 and 8 (d) and (f)
When an amount claimed is not admitted amount or not a statutory amount, the writ under Article 102 of the Constitution is not maintainable.
The writ petition at instance of a ‘tenant’ who is not an owner of the land acquired in L.A. case itself is not maintainable.
The High Court Division observed that the petitioner claimed compensation on different heads is a repetition which gives the High Court Division a clear picture that there is no admitted amount as it has been claimed by the petitioner by that petition. In the decision of Water Development Board vs. Shamsul Haq reported in 51 DLR (AD) 169 Mr. Justice Mostofa Kamal (as his Lordship then was) in clear terms observed that when an amount claimed is not admitted amount or not a statutory amount, the writ under Article 102 of the Constitution is not maintainable. Further it would lead to a deplorable consequence if a tenant under the owner of a land which has been acquired by the government be allowed to put forward any claim under Article 102 of the Constitution. In the decision of Ismail Hossain Poshari and another vs. District Land Acquisition Officer and others 57 DLR (AD) 173 reference of arbitration in terms of section 28 of the Ordinance, 1982 has been spelt out. One can place his grievance, if so advised, under the said section of the Ordinance. On the High Court Division’s own discussions and findings as above the High Court Division is of the view that this writ petition at instance of a ‘tenant’ who is not an owner of the land acquired in L.A. case itself is not maintainable. This writ petition should be discharged only on that score. In the result, the Rule is discharged. Md. Abdul Mannan Miah. -Vs.- Bangladesh, represented by its Secretary, Ministry of Land and others (Spl. Original) 2019 ALR (HCD) Online 151
Section 7(3)
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. Chittagong Dock Sramik Parichalana Board vs. Shamsul Haque (Md. Tafazzul Islam) Civil 5 ADC 143
Section 7(3)
Writ respondent/appellant No.l, 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.l, 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.l 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. Chittagong Dock Sramik Parichalana Board vs. Shamsul Haque (Md. Tafazzul Islam) Civil 5 ADC 143
Sections 7(4) and 12(1)- The requiring body made payment of the compensation amount within one year of the final decision to acquire the land- From the record that the requiring body made payment of the compensation amount on 08.06.1995 which was, therefore, within one year of the final decision to acquire the land. In the above facts and circumstances we find that the High Court Division was not correct in holding that the payment of compensation by the requiring body was not made within one year as required under the relevant law. Ministry of Land, Bangladesh VS Khorshed Alam Khan, [10 LM (AD) 15]
Additional compensation in respect of the Government khas land- High Court Division stayed operation of the impugned Memo dated 28.04.1999 so far as it relates to additional compensation of 50% of the market value in respect of the Government khas land of 1749.6810 acres out of total land of 2492.3573 acres on condition that the petitioner would furnish a Bank guarantee for the said total amount of additional compensation in respect of the government khas land. Writ petition (appellants herein) has therefore been fully satisfied and the Board of Governors of Bangladesh Export Processing Zone has decided in its 16th meeting to publish necessary gazette notification. Hence, the appeal has become infructuous and is liable to be dismissed. We are of the view that the appeal has become infructuous and accordingly, the appeal is dismissed. Government of Bangladesh =VS= Korean EPZ Corporation (BD) Ltd, [4 LM (AD) 194]
Sections 7 and 8-Assessment of award- Under section 7 the Deputy Commissioner is to make the award and while making it he must determine the compensation on matters as mentioned in section 8. The question of agreement between the Awardee and the Requiring Body is not very relevant within the scheme of the Ordinance in this regard. This is unlike the provision in the Emergency Requisition of Property Act, 1948. Khaled Akbar vs Govt of Bangladesh 42 DLR 66.
Sections 8, 12(1) and 28-Petitioner's case is that the Award passed by the Deputy Commissioner is inadequate and not based on matters to be considered in determining the assessment of the award under section 8 of the Ordinance, by reducing the amount as awarded by Arbitrator in respect of each of the items, viz market value of the property, the question of damage by severance of the property from the other properties of the petitioner and on other necessary considerations, as contemplated under section 8 of the Ordinance has rightly been done. Khaled Akbar vs Govt of Bangladesh 42 DLR 66.
Section 8B
Release of Property on de-requisition—
Immovable property under acquisition can only be released before payment of compensation. Appropriate authority may withdraw any such property before payment of compensation upon de-requisition by notification published in the official Gazette. Impugned order is declared illegal and passed without any lawful authority. Khalilur Rahman being dead his heirs Abdur Rahman and others Vs. Executive Engineer, Roads and Higliwai/s and others 14 MLR (2009) (AD) 27.
Section 10-The government cannot give compensation for the land acquired, beyond the rate fixed for the same, which was notified earlier by publication of Gazette.
The writ-petition in respect of payment of compensation of acquired land is not maintainable.
The Appellate Division observed that the High Court Division ought to have considered this aspect of the case and ought to have discharged the Rule. The High Court Division also failed to appreciate that the writ petition was not maintainable, because the dispute herein is regarding the payment of compensation of the acquired land. The procedure of payment of compensation of acquired land has been described in Section 10 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance 1982). For our benefit let us go through the relevant portion of Section 10, which runs as follows: 10. Payment of compensation: (1) On making an award under section, the Deputy Commissioner shall, before taking possession of the property, tender payment of the compensation awarded by him to the persons entitled thereto according to the award, and [shall, unless prevented by some-one or more of the contingencies mentioned in sub-section (2), pay it to them within sixty days from the date of deposit by the requiring person of the estimated amount of compensation under section 7(3). (2) If the persons entitled to compensation do not consent to receive it, or if there be no person competent to receive the compensation, or if there be any dispute as to title to receive the compensation or as to the apportionment of it, the Deputy Commissioner shall keep the amount of the compensation in a deposit account in the Public account of the Repub- lic which shall be deemed payment for the purpose of taking over possession of the property without any prejudice to the claim of the parties to be determined by the Arbitrator (emphasis added). From the above, it is clear that if any dispute arises regarding payment of compensation, it shall be dealt with in accordance with law, more particularly as per Section 10 of the Ordinance, 1982. In view of the above, the Appellate Division of the view that the writ-petition in respect of payment of compensation of acquired land is not maintainable and thus the judgment passed by the High Court Division in Writ Petition No. 3891 of 2015 is hereby set aside. Government of Bangladesh and others - Vs. Md. Hadisur Rahman and others (Civil) 21 ALR (AD) 78-80
Sections 10 and 12-The provision of section 12 will come into play only when the compensation is not paid or not kept in deposit account under section 10(1). Under section 12 no obligation as such is placed on the requiring body to deposit compensation within six months from the date of decision for acquisition. Bangladesh vs Subash Chandra Das 46 DLR (AD) 63.
Sections 10(2) and 30-The Arbitrator does not exercise a judicial function in course of inquiry or investigation into the amount of compensation although he is expected to act within judicial norms Begum Lutfunnessa vs N Ahmed 40 DLR 232
Sections 10 and 12
The provision of section 12 will come into play only when the compensation is not paid or not kept in deposit account under section 10(1). Under section 12 no obligation as such is placed on the requiring body to deposit compensation within six months from the date of decision for acquisition.
Bangladesh vs Subash Chandra Das 46 DLR (AD) 63.
Sections 10 and 12
Payment of compensation and abatement or revocation of the acquisition proceeding for non-payment or non-deposit of compensation.
Section 10 of the Ordinance provides for payment of compensation after an award is made under section 7 and it stipulates that the Deputy Commissioner shall, before taking possession of the property, tender payment of compensation awarded by him to the persons entitled thereto according to the award and shall pay to them unless prevented by one or more of the contingencies mentioned in subsection (2) of section 10 of the Ordinance.
The provision of section 12 will come into play when the compensation is not paid to the persons interested or not kept in a deposit account in the Public Account of the Republic under sub-section (1) of section 10. Under this section no obligation has been placed on the requiring body to deposit compensation within six months from the date of decision for acquisition.
The expression “compensation has not been paid or deposited within 6 (six) months from the date of decision” for acquisition in sub-section (1) of section 12 is to be understood with reference to section 10 of the Ordinance.
In the absence of any material or averment to show that no compensation was paid under sub- section (1) of section 10 and there being no occasion for deposit of compensation in the Public Account under sub-section (2) of Section 10, the question of abatement does not arise. It is only in case of noncompliance of the provisions of Section 10 the question of abatement or revocation of the acquisition proceeding arises.
Reading Sections 8,9,10,12 and 15 of the Ordinance together, it is clear that abatement will take place if the acquiring authority fails to “pay” or “deposit” compensation in terms of section 10 within one year from the date of decision of the Government made under section 5 of the Ordinance. The requiring body is, therefore, required to deposit the compensation money before the expiry of one year from the date of decision of the Government.
Bangladesh, represented by the Secretary, Ministry of Land Administration Vs. Subash Chandra Das and others, 15 BLD (AD) 17
Section 12-The question of abatement under section 12 of the Ordinance is not relevant in as much as there was no averment in the Writ Petition that no compensation was paid under sub-section (1) of section 10 or deposit made in the Public Account of the Republic as per provision of sub- section (2) of section 10. Subash Chandra Das & ors. vs Bangladesh, represented by the Secretary, Ministry of Land Administration and Land Reforms, Government of the People's Republic of Bangladesh and others 50 DLR (AD) 106.
Section 12-Non-payment of compensation within one year from the date of decision of the Government for acquisition of land as contemplated under section 12 of 1982 Ordinance does not render such land liable to be released in that section 12 is not applicable to the facts of the instant cases which were started long before the Ordinance came into force in view of the provision of amended section 79 of the 1953 Act as no retrospectivity can be read into section 12 of the 1982 Ordinance. Jamir Ali (Md) and others vs Secretary, Ministry of Land & others 52 DLR (AD) 176.
Article 12-In spite of repeal of sections 93A and 93B of the Act the pending acquisition of the disputed land shall be continued under the aforesaid provisions as if those have not been repealed and the provision of section 12 or other provisions of Acquisition and Requisition of Immoveable Property Ordinance shall not apply to the acquisition proceedings started under section 93A of the Act. Jamir Ali (Md) and others vs Secretary, Ministry of Land and others (Spl. Orginal) 52 DLR 125.
Section 12
As soon as one year period expired from the date of final decision regarding acquisition if the requiring body fails to deposit compensation money the acquisition proceedings will automatically terminate. There is natural death of the acquisition proceedings and after its natural death, there is no scope to revive this proceedings.
Dr. Malik Mehdi Kabir: Md. Shahidullah Bhuiyan and others: -Vs.- Rabitat-Al-Alam-Al-Islami and others: (Civil) 11 ALR (AD) 68-78
Section 12
When the requiring body can be asked to deposit the compensation money and when abatement or revocation of Acquisition Proceedings takes place.
The requiring body may be asked to deposit the compensation money only after the decision to acquire Is finally made by the Government under section 12 no obligation is placed on the requiring body to deposit compensation within six months from the date of decision for acquisition. [Paras 8& 11] Bangladesh Vs. Subash Chandra Das & Ors 2 BLT (AD)-30
Section 12
(a) Requisite fund not being placed by the requiring body within time, the acquisition proceeding abated under section 12 (1) of the Ordinance with effect from 18-12-84 by a Gazette notification dated 13.1.55 and a fresh L.A. proceeding bearing the same number was started once again in respect of the case land. The appellant claimed Tk. 1,50,00,000 as compensation under section 12 (3) of the Ordinance as damages suffered by the owner consequent upon the abatement of the L.A. proceeding. Although the Arbitrator awarded a sum of Tk. 6,50,000/- in partial acceptance of the claim, the Arbitration Appellate Tribunal (District-Judge) disallowed this claim rightly on the ground that the provisions of section 12 (3) of the Ordinance are applicable only in a case of simple abatement of acquisition and not in a case when abatement is followed by a further proceeding for acquisition of the same land. [Para-4] Khaled Akter Vs. Bangladesh 2BLT (AD)-59
(b) Matters to be considered are : first, the damage must be suffered in consequence of the abated notice or any proceeding thereunder; secondly, the damage suffered has to be specifically pleaded and proved and there cannot be any objective standard of the damage. It will vary from case to case; thirdly, the owner can also recover costs incurred by him in the prosecution of the abated proceeding. [Para-71]
Khaled Akter Vs. Bangladesh 2BLT (AD)-59
(c) Case land being in the effective control of respondent No. 2, handing over of possession to the appellant’s father was only a paper transaction. As the appellant never enjoyed physical possession of the case land, the award of interest from the date of taking possession does not arise. [Paras-15 & 16]
Khaled Akter Vs. Bangladesh 2BLT (AD)-59
Section 12
The question of abatement under section 12 of the Ordinance is not relevant in as much as there was no averment in the Writ Petition that no compensation was paid under sub-section (I) of section IO or deposit made in the Public Account of the Republic as per provision of subsection (2) of section 10. Subash Chandra Das & ors. vs Bangladesh, represented by the Secretary, Ministry of Land Administration and Land Reforms, Government of the People's Republic of Bangladesh and others 50 DLR (AD) 106.
Section 12
Non-payment of compensation within one year from the date of decision of the Government for acquisition ofland as contemplated under section 12 of 1982 Ordinance does not render such land liable to be released in that section 12 is riot applicable to the facts of the instant cases which were started long before the Ordinance came into force in view of the provision of amended section 79 of the 1953 Act as no retrospectivity can be read into section 12 of the 1982 Ordinance. Jamir Ali (Md) and others vs Secretary, Ministry of Land & others 52 DLR (AD) 176.
Section 12
Abatement of an acquisition proceeding
Under section 12 of the Ordinance an acquisition proceeding shall stand abated if compensation has not been paid or deposited within 6 months (now one year) from the date of the decision of the authority concerned for acquisition of the property notwithstanding anything contained in the Ordinance. But in the instant case the question of abatement under section 12 of the Ordinance is not relevant in as much as there was no averment in the Writ Petition that no compensation was paid under subsection (1) of section 10 or deposit made in the Public Account of the Republic as per provision of sub-section (2) of section 10. Subash Chandra Das and others Vs Bangladesh, represented by the Secretary, Ministry of Land Administration and Land Reforms, Government of the People s Republic of Bangladesh and others, 16 BLD (AD) 119.
Section 12
Abatement of acquisition proceedings—
As provided under section 12 of the Acquisition and Requisition of Immovable Property Ordinance 1982, acquisition proceeding abates in the event of nonpayment of compensation money to the owner or non-depositing to the Government the money by the requiring body under section 10 within one year from the date of decision of the Government under section 5 of the Ordinance. Such proceeding does not abate if the petitioner cannot establish the non-payment of compensation money to him within the statutory period. Alauddin Khandoker (Md) Vs. Government of Bangladesh represented by the Secretary, Ministry of Land and others. 4, MLR (1999) (AD) 387.
Section 17 Sub-Section I
Sub-Section I of Section 17 of the Ordinance provides that no property acquired by the Government shall, without prior approval of the Government, be used for any purpose other than the purpose for which it was acquired. The Ordinance coming into force on 13.4.82 and having not being given retrospective operation, cannot hit the contract earlier concluded with the Plaintiff. Pronab Kumar Chakraborty and Others Vs. The Govt. of the Peoples Republic of Bangladesh and others, 14 BLD (HCD) 2
Section 27,31
When a person whose land was acquired and the Deputy Commissioner awards compensation for said acquired land files a revision award case that itself can sufficiently be considered that the affected person did not accept the award made by the Deputy Commissioner as correct and thereupon having been aggrieved filed the revision award case, in that state of the matter it cannot be said that money awarded by the Deputy Commissioner for the acquired land was received by the affected persons without protest. Deputy Commissioner vs Abdur Rahman (Md. Ruhul Amin J)(Civil) 3 ADC 232
Sections 27 & 28-The Arbitrator appointed under section 27 of the Ordinance is a persona designata, ie. a person designated not by name but by as one of a class. Such Arbitrator appointed under section 28 is not a civil Court at all within the meaning of the Code and, as such, he is not a court subordinate to this court. So, the instant revision application under section 115 of the Code is also not maintainable. Thomarshu
alias Majhi vs Bangladesh 52 DLR 516.
Sections 27 and 34(2)-Member, Arbitration
Appellate Tribunal to hear the Arbitrator's decision. There is no conflict between the two expressions "Persona designata" and "Court"-if the function of the designated person is judicial in character then it is a Court.
District Judge of a District is a Member, Appellate Tribunal. Tribunal for hearing of the appeal from the decision passed by the Arbitrator appointed under section 27 of the Ordinance. If the function is a judicial one then it is amenable to the jurisdiction of this court under section 115 of the Code of Civil Procedure, otherwise not. Khaled Akbar vs Govertment of Bangladesh 42 DLR 66.
Section 28-The petitioner failed to show that he received the money of the award 'under protest as found by the Arbitrator and therefore he is not a person entitled to make the application for revision of the award and for this reason alone his application under section 28 is simply not maintainable. Thomarshu alias Majhi vs Bangladesh 52 DLR 516.
Section 28
Arbitration in matters of preliminary assessment of compensation—
When the dispute as to preliminary assessment has been resolved by the Arbitrator and affirmed by the Appellate Tribunal well within their jurisdiction such decision cannot be interfered with merely on the ground that the assessment was made on the basis of photocopy of the kabala deeds in the absence of anything showing contrary thereto.
Dhaka City Corporation represented by its Mayor Vs. Abdus Salam, District Judge & Arbitration Appellate Tribunal, Dhaka. 4, MLR (1999) (AD) 399.
Section 28
Compensation reassessment at the prevailing market rate—
There is nothing wrong in reassessment of compensation at the prevailing market rate by the Arbitration Court. Bangladesh represented by the Deputy Commissioner, Khulna Vs. Mrs. Sayera Khatun and others - 4 MLR (1999) (AD) 180.
Section 31
Arbitration revision case is maintainable not-withstanding the awardee having received , the compensation money—
When arbitration revision case is filed by the awardee after he had received the compensation money, this fact shows that he received the compensation money under protest and did not agree to the correctness of the award. The mere receipt of the compensation money by the awardee does not by itself render the arbitration revision case not maintainable. The apex court held the arbitration revision case so filed quite maintainable. Government of Bangladesh represented by the Deputy Commissioner Dhaka and another Vs. Abdur Rahman and others. 11 MLR (2006) (AD) 233.
Section 31-It is an universal law that a restrospective operation is not to be given to a statute so as to impair an existing right. Former Modern Shishu Hospital, presently Institute of Child Mother Health vs Abdus Salam, son of Late Yusub Molla and another & 5 others 49 DLR 160.
Sections 31 and 32(3)-In view of the deeming provision in section 32(3) of the Ordinance the award of the Arbitrator is appealable as a decree and also executable as a decree. But the status of the Arbitrator has not undergone any change thereby. He is not elevated to the status of a Civil Court by virtue of deeming clause (3) of section 33. Begum Lutfunnessa veN Ahmed 40 DLR 232
Sections 31 and 34-Since Legislature is competent to legislate fixing amount of compensation as well as manner of assessment of compensation, the amendment made in sections 31 and 34 of the Ordinance cannot be said to have violated the right of the petitioners to have adequate compensation in respect of the land acquired under the Ordinance. Shahjahan Ali Khan (Md) and others vs Government of Bangladesh and others 52 DLR 99.
Sections 32(3) and 36-Award given by an Arbitrator shall be deemed to be a decree and the statement of the ground of such award to be a judgment within the meaning of section 2(2) and section 2(9) of the Code of Civil Procedure respectively. The Arbitrator shall have all the powers of a Civil Court under section 36 of the Ordinance No. 2 of 1982. Begum Lutfunnessa vs N Ahmed 40 DLR 232
Sections 32(3), 34 and 36
It is clear that the Arbitrator is a Civil Court for a limited purpose as enumerated in section 36 of the Ordinance and by no stretch of imagination it can be said that the Arbitrator is a Civil Court for all purposes, although in section 32(3) it has been provided that every award passed by the Arbitrator shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2(2) and section 2(9) respectively of the Code of Civil Procedure. Section 114 of the Code of Civil Procedure provides for substantive right of review by the aggrieved party and Order XLVII, CPC provides for the procedure. The mere fact that in section 32(3) of the Ordinance it has been said that the award shall be deemed to be a decree and the statement of the grounds of such award a judgment within meaning of section 2(2) and section 2(9) respectively of the Code of Civil Procedure it will not confer any substantive right of review on the petitioner in the absence of any specific provisions for review in the Ordinance. Atiq Ullah vs Bangladesh 13 BLC (AD) 31.
Section 34(1)-As appeal from the order making award by the Arbitrator lies to the Arbitration Appellate Tribunal, the present appeal before the High Court Division is incompetent. Bangladesh vs Md Mazibur Rahman 47 DLR 559.
Section 34(3) Whether a revision under section 115 of the Code of Civil Procedure is maintainable in respect of the judgment passed by the Arbitration Appellate Tribunal. In view of the decision reported in 38 DLR (AD) 172 Member Appellate Tribunal in deciding the appeal over the decision of the Arbitrator exercised a judicial function and as such he is a Court and for that matter his decision is amenable to the revisional jurisdiction. Khaled Akbar vs Government of Bangladesh 42 DLR 66.
Section 34(3)
Whether a revision under section 115 of the Code of Civil Procedure is maintainable in respect of the judgment passed by the Arbitration Appellate Tribunal. In view of the decision reported in 38 DLR (AD) 172 Member Appellate Tribunal in deciding the appeal over the decision of the Arbitrator exercised a judicial function and as such he is a Court and for that matter his decision is amenable to the revisional jurisdiction. Khaled Akbar vs Government of Bangladesh 42 DLR 66.
Section 36
An arbitrator is deemed to be a civil court for limited purpose. As such arbitrator can not review its award in exercise of power under Order 47 rule 1 of the Code of Civil Procedure 1908—
Section 34 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 provides for appeal against an award passed by Arbitrator. An arbitrator is deemed to be a civil court for limited purpose as contemplated under section 36 of the Ordinance and as such arbitrator has no power to review the award passed by him under Order 47 Rule 1 of the Code of Civil Procedure, 1908. The review petition is held by the apex court not maintainable. Atiqullah (Md.) Vs. Government of the People's Republic of Bangladesh represented by Land Acquisition Collector and others 12 MLR (2007) (AD) 41.
This Court while dismissing the
appeals held that the Arbitrator is a creature of the statute (Ordinance II of
1982) and under section 36 of the Ordinance he has been vested with some
limited powers of Civil Court. Therefore, the Arbitrator has no power of
review. It was further held that in view of provision for appeal under section
34 of the Ordinance and the appellants having preferred review application
without filing appeal before the Arbitrator, the same was not maintainable Atik
Ullah vs. Government of the People's Republic of Bangladesh (M.M. Ruhul Amin J)
(Civil) 5 ADC 138
Sections 43 and 44
Exclusion of jurisdiction of a civil Court should not be readily inferred. If the order passed or action taken by any authority is malafide, such court shall have jurisdiction to entertain a suit to see whether the action is in conformity with the law in question. Soleman Bibi and ors. vs ·Administrator, Farajikandi Complex and ors 45 DLR 727.
Sections 43 and 44-Exclusion of jurisdiction of a civil Court should not be readily inferred. If the order passed or action taken by any authority is malafide, such court shall have jurisdiction to entertain a suit to see whether the action is in conformity with the law in question. Soleman Bibi and ors. vs Administrator, Farajikandi Complex and ors. 45 DLR 727.
Section 44-It cannot be the intention of the legislature that when an award was made in the name of wrong person, through collusion or otherwise, the rightful owner of such property will have no remedy under the general law to establish his title to the compensation as awarded. Animal Protection Society, Chittagong vs Laxman Chadra Das and ors 56 DLR 522.
Section 44
The Code of Civil Procedure, 1908
Order XLIII Rule 1 sub-Rule (r)
Acquisition and Requisition of Immovable Property Ordinance, 1982
Section 44
Temporary injunction–– Without hearing the other side the High Court Division should not pass any final order which may affect the other side adversely–– The order of the trial Court rejecting the prayer for temporary injunction was an appealable order as per provision of Order XLIII Rule 1 sub-Rule (r) of the Code of Civil Procedure. Since there is specific provision of law for preferring appeal and that revisional application before the District Judge was misconceived one, the learned District Judge rightly rejected the application for ad-interim injunction. The High Court Division most illegally, without consideration as to whether civil revisional application was at all maintainable in the Court of District Judge or not and that the suit itself was barred under section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, or not erroneously directed the parties to maintain status-quo in respect of the suit land. Repeatedly this Division has observed that without hearing the other side the High Court Division should not pass any final order which may affect the other side adversely. The impugned order is an example of gross illegality committed by the High Court Division. Be it noted that Court itself is not authorised to make such exparte order without giving the other side an opportunity of being heard. ––Considering the aforesaid facts and circumstances, the order of the High Court Division is liable to be set aside. The trial Court is directed to dispose of the suit as expeditious as possible preferrably within 6 months from the date of communication of this order. .....ADC (L.A.), Khulna =VS= Md. Kayem Ali, (Civil), 2023(2) [15 LM (AD) 493]
Suit challenging the acquisition of lands barred by law
Section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982: As per Section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, any suit challenging the acquisition of lands barred by law and since the suit land was acquired on 16.06.1988 the suit stood barred by law at seriously occasioned a failure of justice and the same is liable to be set aside. (Para- 9, Mr. Justice Syed Mahmud Hossain). 6 XP(AD)118: Rajdhani Unnayan Kartipakha (RAJUK) Vs. Jonab Ali being dead his heirs Eunus All
Section 44
Acquisition and Requisition of the Immovable of the Property Ordinance, 1982
Section 44 r/w
Transfer of Property Act, 1882
Section 107
Registration Act, 1908
Sections 17, 49
The plaintiffs could not succeed on the weakness of the defendants’ case–– The plaintiffs would not be entitled to any claim on the land solely based on an entry in the revenue record since the revenue record does not confer title to the property nor do they have any presumptive value on the title. ––Since the plaintiffs have failed to prove their settlement, they are not entitled to get any decree. The trial Court has committed a serious error of law in decreeing the suit and directing the Government to pay compensation to the plaintiffs. The High Court Division in First Appeal, without ascertaining whether the plaintiffs were entitled to get a decree or not, erroneously noted the order of abetment of appeal which has caused a total failure of justice. Both the Courts have misappreciated the evidence and ignored the weight of evidence on record. ––Appellate Division finds merit in the appeal. The appeal is allowed. The judgment and decree passed by the trial Court is hereby set aside. The judgment and decree dated 15.06.2016 passed by the High Court Division is also set aside. .....Bhawal Raj Court of Wards Estate =VS= Nahar Haider Nannu, (Civil), 2022(2) [13 LM (AD) 506] ....View Full Judgment
Section 44
Ousts the jurisdiction of court in matters of acquisition of immovable property—
On the completion of acquisition the property so acquired absolutely vests in the government. Non-utilisation of such property does not create any vested right in favour of the original owner to get back the property in qustion. Section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 expressly ousts the jurisdiction of the court in matters of acquisition of immovable property and as such the suit instituted by the plaintiff respondent is not maintainable. Rajdhani Unnayan Kartipakha Vs. Abdul Jakir and others 11 MLR (2006) (AD) 332.
Section 44
Embargo against all legal proceedings.
As soon as an L. A. Case is initiated for acquiring a property all legal proceedings in respect of the said property stand stopped by operation of law in view of the clear embargo envisaged in section 44 of the Ordinance.
Rajdhani Unnayan Kartipakha (RAJUK) -Vs.- Jonab Ali being dead his heirs 2 ALR (2013)(AD) 57
Section 46
Provides for framing Rules for carrying out the purpose of the law—
Acquisition of Immovable Property Rules, 1983—
Rule 8(3)— Provides for assessment of compensation of land and buildings acquired under Ordinance No. II of 1982 in consultation with the Public Works Department—
In the instant arbitration case the Arbitrator allowed the prayer for appointment of a Private Engineering firm for assessment of the compensation of the land and building acquired under the Acquisition and Requisition of Immovable Property Ordinance, 1982 instead of directing the Public Works Department to assess the compensation as required under rule 8(3) of the Acquisition of Immovable Property Rules, 1983. The apex court held the assessment should have been made by the Public Works Department and the Arbitrator was required strictly to act in accordance with law and such an action of the Arbitrator being opposed to law was not to be taken into consideration and upheld the judgment and order of the appellate court and setaside the decision of the High Court Division being erroneous. The apex court further held the principle of waiver with regard to performance of state functionaries will be disastrous to discipline and create anarchy and as such disapproved the proposition. Land Acquisition officer, Pubna and others Vs. Alhaj Md. Abdul Latif Biswas and another 15 MLR (2010) (AD) 81.
Section 47
Mutation, Water Development Board, the (Emergency) Requisition of Property Act, 1948, Deputy Commissioner, cancellation of mutation, repealed, স্হাবর সম্পত্তি অধিগ্রহণ ও হুকুম দখল আইন, ২০১৭ (The Act, 2017), valid acquisition, acquisition of the property:
That there being no decision of the Government for acquisition of the property in question, there is no valid acquisition of the property and in the meantime the said proceeding having become non-est due to repeal of the said section 47 of the said Ordinance, 1982, there is no further scope to take decision for acquisition of the property. ...East West Property Development (Pvt.) Ltd. & anr. Vs. D.C Manikgonj, (Civil), 13 SCOB [2020] HCD 40
Acquisition and Requisition
Ordinance 1982,
Section 47, 48.
There should be some proximity between the requisition notice of acqui sition 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 marker value. Rajshahi Development Authority vs Sultan Ahmed (Mohammad Fazlul Karim J)(Civil) 2 ADC 738
Section 47
The provision give life to all proceedings and matters including all notices, notifications and orders relating to requisition and acquisition of any property under the (Emergency) Requisition of Property Act, 1948 "as if that Act had not ceased." Abdul Bashar (Alhaj), being dead his legal heirs (a) Hosne Ara Begum & others vs Bangladesh and others 48 DLR 553.
Section 47-The provision gives life to all proceedings and matters including all notices, notifications and orders relating to requisition and acquisition of any property under the (Emergency) Requisition of Property Act, 1948 "as if that Act had not ceased." Abdul Bashar (Alhaj), being dead his legal heirs 1(a) Hosne Ara Begum & others vs Bangladesh and others 48 DLR 553.