High Court Division
(Civil Appellate Jurisdiction)
Farid Ahmed J
Mozlema Khatun and others-Appellants
(In First Miscellaneous Appeal
No. 262 of 2001)
Government of Bangladesh and another ............... Respondents
April 20th, 2015
Emergency Requisition of Property Act (13 of 1948)
Sections 3 and 5(1)
Ownership of the requisitioned property does not vested on the Government or requiring body with the requisition under Section 3 of the Act. But it remains with the original owner till gazette notification under Dection 5 (1) of the Act. The assessment of compensation of the property by the Deputy Commissioner will have to be made with reference to the market value of the acquired land on the date of acquisition and not the date of requisition. . ..... (26)
Abdus Sobhan vs Province of East Pakistan, 14 DLR 486; Province of East Pakistan vs Kalu Mis, 13 DLR 528 and Province of East Pakistan vs Sharaftullah, 19 DLR 237; East Pakistan vs Fazlur Rahman, 29 DLR (SC) 110; Mr Hossain Khan vs Government of Bangladesh, 55 DLR 264 and Bangladesh vs Abdul Khaleque case is Chittagong Development Authority vs Sultan Ahmed, 29 DLR (SC) (1977) Page-110 ref.
MA Samad with MGM Ruhullah, Advocate-For the Appellants (In First Miscellaneous Appeal No. 262 of 2001).
Mahbubey Alam with MA Sobhan, Advocate-For the appellant (In First Miscellaneous Appeal No. 232 of 2012).
Md Jahangir Alam, DAG with Shahida Khatun, AAG-For the Respondent No.1.
Md Jahangir Hossain J: This Miscellaneous Appeal has been preferred by late Mozlema Khatun against the judgment and decree dated 24-7-2001 passed by the learned Additional District Judge, 3rd Court, Rajshahi in Arbitration Miscellaneous Case No. 23 of 1984. On the death of Mozlema Khatun the present appellants have been substituted in her place. The learned Additional District Judge passed partial decree of Taka 2,40,546.30 in the aforesaid Arbitration Miscellaneous Case. Being aggrieved by and dissatisfied with the said judgment and decree the present appeal has been preferred.
2. It transpires from the record that the land owner Mozlema Khatun refused to receive the regaining amount of compensation of Taka 326/74 in the final award and brought the Arbitration Miscellaneous Case No. 23 of 1984 and the Additional District Judge, Rajshahi assessed the valuation of the acquired land at Taka 2,43,486 by the judgment and order dated 24-7-2001.
3. That being aggrieved by the said judgment and order the aforesaid 2 appeals were preferred and the High Court Division by the judgment and order dated 17-1-2003 allowed the FMA No. 262 of 2001 and directed that the appellant Mozlema Khatun to get Taka. 31,86,720.30 with interest 13.5% from the date of judgment till payment thereof and FMAT No.388 of 2002 preferred by the Rajshahi University were dismissed exparte and the connected Rules were also discharged.
4. That Rajshahi University as petitioner preferred CP No 841 of 2005 against the judgment and order in dismissing the FMA No. 388 of 2002 and CP No. 842 of 2005 against the judgment and order allowing the Appeal in FMA No. 262 of 2001 before the appellate Division and the Government did not prefer any CP.
5. Leave was granted being CA Nos.159-160 of 2007 which were heard by the Appellate Division and by the judgment and order dated 15-2-2011 set aside the judgment and order of the High Court Division in FMAT No. 388 of 2002 and directed the High Court Division to hear the mater afresh.
6. These two appeals are heard together as common custom of fact and law involved.
7. Facts necessary to dispose of these appeals, in brief, are that the case land measuring 3.37 acres of CS Plot Nos. 7 and 18 of Mouza Motihar in Paba PS of Rajshahi District was requisitioned under Section 3 of the (Emergency) Requisition of Property Act, 1948 in LA Case No. 16 of 1957-58 of the establishment of Rajshahi University, Government took possession of the case land on 25-1-1961 and paid advance compensation of Taka 2,940.70 and the Government still is in possession. The case land subsequently has been acquired on 6-1-1983 by Gazette Notification. On 3-1-1984 notice was issued upon the petitioner under Section 7(aa) of the Act. Petitioner came to know of the final award on receiving the notice on 6-1-1984 when she was asked to receive the rest amount of Taka 326.74. Petitioner did not receive the same as it was too low and within 6 weeks of the notice she filed the Arbitration Miscellaneous Case. Petitioner stated in the petition that the Deputy Commissioner did not make any agreement with her as envisaged in Section 7(a) of the Act and without intimating her arbitrarily assessed the valuation at a very low rate and did not consider that the case land is within the periphery of Rajshahi Pourashava and at present Rajshahi City Corporation. That the case land is Bhitti land and Mango garden having big fruit bearing mango trees. It is beside the Greater Road having all facilities of urban area. Petitioner has claimed the valuation of the case property at the rate of Taka 9,00,000 (nine lacs) per acre together with the value of 13 big Mango trees each at the rate of Taka 500 29 Khair trees each at the rare of Taka 50; 9 Babla trees each at the rate of Taka 100; two Date trees each at the rate of Taka 50; two Plum trees each at that rate of Taka 50 and the annual income of the fruit bearing trees at the rate of Taka 1,000 per year together with 15% additional of 1957-58 and subsequently it was acquired by Gazette Notification published on 6-1-1983 and a period of 32 years have passed between the date of taking over possession and the date of Gazette Notification and further a period of 18 years also passed since the date of gazette notification till the date of impugned judgment and decree and within this period of 40 years value of the case land has increased at least 100 times. That the learned Additional District Judge ignored this position and passed the impugned judgment and decree. That the acquiring authority assessed the valuation at a very low rate and did not consider the prevailing market rate. They did not consider that the case land had beed acquired by the Gazette notification dated 6-1-1983. Thai the value of the case land at that time was Taka 15,000 per katha and the value of the Mango trees were Taka 500 each. The learned Additional District Judge failed to consider Exhibits 1 to 1 (Gha) which show the market value of some similar land with similar advantage in the vicinity of the case land twenty four months preceding the date of gazette notification as well as the dale of service of notice. That the learned Additional District Judge failed to consider that almost the entire land of mouza Motihar was requisitioned in the LA Case No. 16 of 1957-58 and later acquired under Section 5(7) of the Act by Gazette notification dated 6-1-1983 for Rajshahi University and there was hardly any private transaction or transfer of the land of this Mouza during the gazette notification dated 6-1-1983 or twenty four months preceding the date of gazette notification or service of notice. So the appellants, could not produce any sale deed of Motihar Mouza. That the learned Court ought to have considered the sale deeds filed by the appellants of Kazla mouza which is adjacent to Motihar mouza and possesses similar facilities with similar advantages of Rajshahi Town.
8. Rajshahi University also filed this appeal almost of the same ground. But thy aggrieved to allowing the compensation in part in Arbitration Miscellaneous Case No. 20 of 1984.
9. In these appeals points for determination is whether the learned Additional District Judge erred in law as well as fact to pass partial decree in the aforesaid arbitration Miscellaneous Case.
10. On behalf of the petitioner the learned Advocated Mr MA Samad submitted that admittedly the case property was requisitioned by the Government in LA Case No. 16 of 1957-58 for Rajshahi University and the Government took over possession on 25-1-1961 by ejecting the petitioner there from, he has submitted that the case property is within the Rajshahi Pourashava now City Corporation and it is beside the main road. That the case property is Bhitti with Mango garden. He submitted that the property was most valuable and the petitioner had run been awarded compensation at the rate of market value prevalent at that time. He claimed that the valuation of the case property at that time of acquisition was Taka 9,00,000 per acre, referring to Deed No. 3763 dated 1-2-1982. Deed No. 21229 dated 23-8-1982 and Deed No. 19838 dated 17-8-1981, which have been market as Ext. 1, 1 (Ka); and 1 (Kha), he submitted that though these deeds are of Kazla Mouza yet the lands transmitted under these deeds are adjacent to the case land of Motihar Mouza. He further submitted that for the establishment of the Rajshahi University almost major portion of the land of Motihar Mouza were acquired and the rest which were private lands were not transmitted to anybody during the twenty four months could not produce any deed of Motihar Mouza which was not fault of the petitioner. He submitted that Kazla Mouza and Motihar Mouza are contiguous and the lands of both the Mouzas bear similar advantages and similar facilities. Mentioning the personal letter issued by the Registrar of the Rajshahi University in Memo No. 195/89/97 dated 18-8-1997 to PW 5, Md Maherul Hoque he submitted that the Rajshahi University gave proposal to PW 5 the owner of the contiguous land of the case land to purchase the same at the rate of Taka 50,000 per katha. PW 5 Md Maherul Huq admitted it in his deposition and student that the present case and which is situated within Motihar Mouza is of superior quality to that of the proposed land situated within Kazla Mouza. The learned Advocate argued that if the price of the inferior quality of land be Taka 50,000 per katha in 1977 the value of the case land at the time of acquisition was more than what the petitioner had claimed in the Arbitration Miscellaneous Case.
11. Mr Samad submitted that thp petitioner's property was requisitioned under Section 3 of the (Emergency) requisition of Property Act, 1948 in LA Case No. 16 of 1957-58 and the Government took over possession on 25-1-1961 on payment of sum of Taka 2940.70 as advance compensation and notice under Section 7 (aa) of the Act was sent on 3-1-1984 offering Taka 324/74 as balance amount of compensation. He submitted that the ownership of the requisitioned property does not vest on the Government with the requisition under Section 3 of the Act, but a remains with original owner till gazette notification under section 5(1) of the Act. The assessment of compensation of the property by the Deputy Commissioner will have to be made with reference to the market
value of the acquired land on the date of acquisition and not the date of requisition. In the instant case it appears the assessment of compensation has been done illegally and on the date of requisition (25-1-1961) and not on the basis of market value of the property on the date of acquisition (2-1-1984). He placed reliance to the settled principle of law as decided in the Case of Abdus Sobhan vs Province of East Pakistan, reported in 14 DLR 486, Province of East Pakistan vs Kalu Mis, reported in 13 DLR 528 and Province of East Pakistan vs Sharaftullah, reported in 19 DLR 237.
12. Mr Samad has further submitted that the compensation of the property is to be assessed and paid to the owner as per market value of the land which was prevailing on the date of acquisition of the property. Here in the instant case the property of the petitioner was requisitioned and possession was taken on 25-1-1961 on payment of part compensation whereas the property was acquired by the Gazette Notification and notice of acquisition under Section 7(aa) of the Act was served on the petitioner on 6-1-1984 offering Taka 324/74 as balance amount of compensation. The payment of compensation of the acquired Property to the petitioner in terms of market value of the year 1961 does not arise at all and the compensation of the property is to be paid as per market value of the property prevailing on the date of acquisition of the property in the year 1984. In support of his proportion he has relied on the case of province of East Pakistan vs Fazlur Rahman reported in 29 DLR (SC) 110 and the case of Mr Hossain Khan vs Government of Bangladesh, reported in 55 DLR (2003) 264.
13. Mr Samad his also submitted that the petitioner is entitled to gel monthly rent of the requisitioned property from the date of talking over possession after requisition till the date of acquisition. Petitioners property was requisitioned in LA Case No.16 of 1957-58 by issuing notice under Section 3 of the Act and taking over possession on 25-1-1961. The notice of acquisition under Section 7 (aa) of the Act was served on 6-1-1984 and for this long period of 22 years either the Government or the requiring body Le. Rajshahi University was required to pay monthly rent of the requisitioned property to the petitioner. The petitioner has claimed Taka 22,000 as loss of annual income from the land and the fruit bearing trees at the rate of Taka 1,000 per year from the period from 25-11-961 to 6-1-1984 which the petitioner is entitled under the law. In this connection the learned Advocate Preferred to the decision reported in 55 DLR 264 (Md Hossain Khan vs Government of Bangladesh) .
(To be continued)