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Constitutional obligation to rehabilitate the evicted person

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13th-Apr-2019       
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High Court Division :
Special Original Jurisdiction)

Quazi Reza-ul Hoque J
Mohammad Ullah J

Rabiul Husain and 2 (two) others........Petitioners
vs
Government of the People's Republic of Bangladesh represented by the Secretary, Ministry of Works and Housing (Housing Department), Bangladesh and 3 others ....... Respondents
        
Judgment
March 23rd, 2017

Constitution or Bangladesh, 1972
Article 102(2)
The prime duty of the Government to rehabilitate the displaced/evicted persons first and then to allot plots to new incumbents to the residential area that bas been acquired by evicting them..... (8)
Rajdhani Unnayan Kartipakkya (RAJUK)     vs
Jahanara Begum 25 BLD (AD) 149 = 57 DLR (AD) 80  ref.
M Shamsul Haque, Advocate-For Petitioners
Md  Ekramul Hoque, Advocate-For the Respondent No.2
Judgment
Mohammad Ullah J : On an application under Article 102 of the Constitution, this Court issued the Rule in the following terms:
"Let a Rule Nisi be issued calling upon the respondent No.4 to show cause as to why direction shall not be given to allot residential plots to each of the petitioners from the rehabilitation project of Johar Shahara under RAJUK or any Housing Project within Dhaka City under respondent Nos. 1 and 2 and to 'pay due compensation and value of the land  and structures thereon, of the petitioners, acquired by respondent Nos. 3 and 4 in land Acquisition Case No. 138 of 1961-62 at the present market rate as the petitioners are awardees and/or pass such other or further order or orders as to this court may seem fit and proper."
2. The short facts, for disposal of the Rule as stated in the writ petition, are that the land measuring 0.49-1/2 acres of 6.36 acres appertaining to CS Khatian No. 209, SA Khatian No. 229, RS Khatian Nos. 743 and 744, Plot Nos. 378 and 379 of Mouza Vatara under Police Station-Keraniganj, the then Tejgaon at present Gulshan, District-Dhaka originally belonged to one Niamat Mallik. Subsequently by way of inheritance and chronological transfer of the said land Shahabuddin Ahmed, Raihanuddin, Ramijuddin and Md Easin became the owner of the same who by different kabalas dated 2-6-1978, 3-6-1978, 10-6-1978 and 12-6-1978 transferred the said 0.49-1/2 acres of land to petitioner No. 1. Pursuant to those registered deeds the said land was mutated in the name of the petitioner No.1 in Mutation Case No. 7559 of 1977-78 under Khatian No. 1321. The petitioner having been in possession of the said land, transferred 0.412 acres to his mother Begum Lutfunnessa, 0.412 acres to his brother Taimur Hossain and 0.412 acres to his sister Dr Beauty Hossain by 3 (three) registered deeds dated 12-4-1986 and they were inducted into possession and got their names mutated in their respective portion of land. The petitioner Lutfunnessa died and her share were devolved upon the petitioners according to sharia law of inheritance. In the Dhaka city survey, the property was correctly recorded in the names of the petitioners under OP Khatian Nos. 6707, 6733 and 7128. Subsequently the petitioners came to know that the said land including other lands were acquired by the Government under LA Case No. 138 of 1961-62 for the purpose of establishing a Residential Model Town (Housing Project). The compensation assessment rolls were prepared in the names of the petitioners since they were lawful owners of the property but no compensation as yet has been given to them. The requiring body, RAJUK demolished all the structures including the boundary wall of Plot Nos. 378, 379, 762 and 1862 and the petitioners were dispossessed by the respondents forcefully. It has been stated in the petition that though the land in question was acquired for making a housing project but till 2002 neither plan was taken to that effect, nor any plot was allotted to anybody else and, as such, the petitioner filed an application on 31-7-2002 to the respondent No. 1 praying for derequisition of their land. The respondent No. 1 issued a letter under memo No. cÖkv-6/ivR-30/2002 dated 19-8-2002 to the respondent No.2 asking it to reply what steps were taken on the basis of the decision of derequisition of the property in question dated 21-1-2001 taken by the respondent No.1. But the respondents did not take any steps to return the property to the petitioners. Thereafter the respondent No.2, published an advertisement disclosing the fact that those who have lost their property under LA Case No. 138 of 1961-62, they would get a compensatory plot measuring 5 (five) kathas of land and accordingly the petitioner No. 1 filed an application to the respondent No.2 for allocation of a plot with requisite fees of Taka 15,000 (fifteen thousand) through pay orders Nos. 1260, 1261 and 1626 dated 29.4.1986. When the respondent No.2 did not take any step to allot a plot in favour of the petitioners they wrote several letters to the respondents seeking a compensatory plot but in vain (annexure-G series). The petitioners also sent a notice demanding justice upon the respondents requesting them to allot a compensatory plot but the respondents were kept silent inexplicably. Finding no other alternative, the petitioners approached this Court and obtained the instant Rule, as stated above.
3. The Rule is contested by the respondent No. 2-RAJUK through Mr Md Ekramul Hoque, learned Advocate who filed an affidavit-in- opposition controverting the statements of the writ petition.
4. Mr M Shamsul Haque, learned Advocate appearing for the petitioners submits that admittedly the petitioners property were acquired by the Government for making a Residential Model Town and there is a provision for allotting compensatory plot for those persons who had lost their property through acquisition process; in spite of that provision the petitioners were not given any compensatory plot and, as such, a direction should be given from this Court to the respondents to allot a plot to the petitioners as it is the legitimate expectation of the petitioners  that they would be treated equally and, in accordance with the policy of the RAJUK in the matter of allotting plot.
5. Mr M Shamsul Haque submits further that the Government is to rehabilitated displaced persons in the acquiring land by allotting a plot which is a matter of right for the affected persons and this fundamental right of the affected persons cannot be disturbed in any manner by the requiring body. Mr Haque learned Advocate next submits that the petitioners' are entitled to have allotment of at least a plot as affected persons, in the Rehabilitation Zone since the persons from whom they, have acquired the land was the affected person because of acquisition made by RAJUK. Mr Haque, also submits that the Government acquired the land, which the petitioners purchased in the year 1978, for the establishment of Residential Model Town and for making the acquisition, final award was prepared in the name of the petitioners ; that the Government made policy decision-for rehabilitation of the affected persons by allotting residential plots; that RAJUK in the light of the policy decision of the Government took decision to allot them in the Rehabilitation Zone and therefore it is the right of the petitioners to have allot a plot for their living in the Dhaka City.  
6. Mr Md Ekramul Hoque, learned Advocate appearing for the respondent No. 2- RAJUK submits that the land in question was acquired under LA Case No. 138 of 1961-62 for the purpose of Housing Project by the Ministry of Public Works and Housing Department and the then DIT now RAJUK was the requiring body. The learned Advocate submits further that since the land was acquired in the year 1961-62 subsequent transfer in the year 1978 does not create any right or benefit as an affected person and, as such, the Rule is liable to be discharged. He next submits that some affected persons of LA Case No. 138 of 1961-62 moved this Court under writ jurisdiction impugning the notice of RAJUK published on 7-9-1994 inviting applications for persons who were affected; though initially the High Court Division made the Rule absolute but the Appellate Division on an appeal turned down the decision of the High Court Division and since the matte bas been decided in Civil Appeals No. 107-121 of 2004, the writ petitioners are not entitled to get any relief as prayed for and consequently, the Rule should be discharged.
7- We have heard the submissions of the learned Advocates for both the parties and perused the materials on record wherefrom it transpires that admittedly 0.49 acres of land in LA Case No. 138 of 1961-62 was acquired for the purpose of making a Housing Project and RAJUK published an advertisement to allot the plots to the affected persons whose lands were acquired by the said LA Case and the petitioners applied for getting a compensatory plot as displaced persons but RAJUK kept silent inexplicably. The learned Advocate for the respondent-RAJUK referred to the two decisions of the Appellate Division; we have perused those decisions wherefrom it appears that the first one has arisen from a writ petition filed by one Abdul Haque and others impugning a tender notice published by RAJUK and seeking a direction upon the respondents to release 11 acres and 14 decimals of land acquired under the LA Case No. 138 of 1961-62 in Plot Nos. 929, 930, 974, 957, 968, 972, 973, 912 and 913 under Mouza Vatara Police Station Gulshan, Dhaka. The second one namely the judgment passed by the Appellate Division in Civil Appeal Nos. 107- 121 of 2004 preferred by the writ petitioner impugning the notice of the RAJUK published in .the Daily Ittefaq on September 7, 1.994 inviting applications from the persons those who-were affected because of the acquisition of their land by LA Case No. 138 of 1961-62, 91 of 1987-58 and 26 of 1959-60. The aforesaiq. Civil Appeal has arisen from two bunches of writ petitions. The second bunche was filed impugning the notice issued by the Magistrate of the RAJUK, Dhaka asking the writ petitioners to vacate the land occupied un-authorizedly and to remove the structures there from by 24th August, 1996. The decisions of which have been referred to by the learned Advocate for the respondent-RAJUK passed in Writ Petition No. 9488 of 2005 was preferred by one Hazi Afsar Ahmed and others seeking a direction upon the respondents including RAJUK to withdraw from acquisition of 89 kathas of land out of Plot No. 1015/ 1016/1019 of CS Khatian No. 284, SA Khatian
No. 273(248)/ in Mouza Badda under LA Case No. 138 of 1961-62. All the decisions referred to by the learned Advocate for the respondent No.2 appears to have altogether a different subject matter. On the contrary, we may refer to a decision passed by the Appellate Division in the case of Rajdhani Unnayan Kartipakkya (RAJUK) represented by its Chairman, having its office at RAJUK Avenue, Dhaka vs Mrs Jahanara Begum . reported in 25 BLD (AD) 149 = 57 DLR (AD) 80 wherefrom it appears that RAJUK moved the Appellate Division challenging a decision of the High Court. Division passed in a writ petition whereby the High Court Division on the prayer of the writ petitioner had directed the RAJUK to allot a plot to the writ petitioner as compensatory one. The said writ petitioner Jahanara Begum and others purchased certain land in the year 1994 from Mouza Badda that is long after the property was acquisitioned under LA Case No. 138 of 1961-62. Although the High Court Division made the Rule absolute directing the respondents to allot a compensatory plot to the petitioners; in the appeal the Appeliate Division modifying the order of the High Court Division observing that-
"we are of the view that the cause of the writ petitioner would be served best if instead of granting leave to appeal, the petition for leave to appeal is disposed of on modification of the direction of the High Division, ,since same would not prejudice the writ petitioner in any respect, to the extent that RAJUK would scrutinize the petition filed by the writ petitioner seeking allotment of land in the Rehabilitation Zone as affected person and that if the writ petitioner satisfies the conditions and criteria set down by the RAJUK entitling a person to have the allotment of land as affected person then the RAJUK would make allotment to the writ  petitioner, otherwise not."
Since in the similar circumstances, the Appellate Division had given a direction to RAJUK to scrutinize the petition for getting a residential plot as affected person we consider it prudent to dispose of the Rule in similar directions passed by the Appellate Division.
8. May it be noted very carefully that the object of acquiring the lands in question was to establish residential accommodation, so that a large section of citizens can be accommodated with house in and around Dhaka City. In implementing the same, hundreds of citizens were evicted from their heretical households, which  is absolutely contrary to the object of acquisition. The Government cannot blow hot and cold together at the same time. It should be the prime duty of the Government, to rehabilitate the displaced/ evicted persons first and then to allot plots to new incumbents to the residential area that has been acquired by evicting them.
9. Accordingly, the respondent-RAJUK is directed to scrutinize the petition filed by the Writ petitioners seeking allotment of 5 (five) kathas plot; if it is found that the petitioner's application is in order with the other terms and conditions of RAJUK, then the respondent-RAJUK would allot a 5 (five) khatas plot in favour of the petitioners within 90 (ninety) days from the date of receipt of a copy of this judgment. With regard to the other terms of the Rule we are of the view that the petitioners can seek their compensation to the  appropriate authority in accordance with law.
10. In view of what have been stated above, we find' merit in the Rule. The Rule, therefore, succeeds.
11. In the result, the Rule is made absolute with the aforesaid observations.
Communicate a copy of this judgment to the respondents at once.

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