(Special Original Jurisdiction)
Naima Haider J
Zafar Ahmed J
Kazi Abdul Aziz
Petitioner
Vs
Rajdhani Unnayan Kartripakkha (RAJUK) and another……..Respondents
Judgment
January 23rd, 2018
Constitution of Bangladesh, 1972
Article 102(2)
A statutory functionary cannot assume a jurisdiction which is not vested in it by the statute. When any provision of the Ordinance does not vest the Deputy Commissioner with the power to reassess, recalculate or reopen the award already made by the Deputy Commissioner, the Deputy Commissioner, does not have any authority to deduct 10% from the awarded amount of the petitioner on any excuse whatsoever at the dictate of requiring body. . ….. (19)
RAJUK
No provision of law empowers RAJUK to thrust such obligation of deducting 10% from the awarded compensation upon the Deputy Commissioner. Action of RAJUK dictating the Deputy Commissioner, Dhaka to deduct 10% from the awarded amount is also without any sanction of law. .. …. (19)
Ms Ok-Kyung Oh, Dhaka vs Tea Hung Packaging (BD) Ltd., 32 BLD (AD) 16 = 17 BLC (AD) 1 ref.
Ahsanul Karim with Khairul Alam Choudhury with Aminul Hoque with Tanveer Hossain Khan, and Farzana Khan, Advocates-For the Petitioner.
Md Imam Hasan, Advocate-For Respondent No. 1
None appears-For the Respondent No.2
Judgment
Naima Haider J : This is an application under Article 102 read with Article 44(1) of the Constitution of the People’s Republic of Bangladesh, wherein at the instance of the petitioner this Division Vide order dated 20-2-2017 issued Rule in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Memo No. ivRDK/G‡óU-I f~t kvt/wewea-18/2015/337 ¯’vt dated 17-1-2017 issued by the respondent No. 1 so far relates to discretion upon respondent No.2 to deduct 10% of the compensation on account of acquisition of land in L/ A Case No. 20/2015-16 and to pay the same to the account of respondent No.2 (Annexure-A) shall not be declared to have been issued by the respondent No. 1 without lawful authority and the same is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”
2. This Division vide the said order dated 20-2-2017 passed an interim order staying operation of the said impugned Memo dated 17-1-2017.
3. Mr Ahsanul Karim and Mr Khairul Alam Choudhury, Advocates appeared for the petitioner. Mr Md Imam Hasan appeared for the respondent No. 1, i.e., Rajdhani Umlayan Kartripakkha (RAJUK). Respondent No.2 is the Deputy Commissioner, Dhaka. None appears for the respondent No.2.
4. The respondent No. 1 submitted affidavit-in-opposition dated 29-11-2017 against the writ petition.
5. The case of the writ petition is that the land of the writ petitioner has been acquired in L/A Case No. 20/2015-16 pursuant to the land acquisition proceeding initiated under the Acquisition and Requisition of Immovable Property Ordinance, 1982 (the Ordinance, 1982). A compensation was flwarded by the respondent No.2, i.e., the Deputy Commissioner, Dhaka under Section 7 of the said Ordinance, 1982 on account of the acquisition of the said property. Thereafter, the respondent No.1 vide impugned Memo dated 17-1-2017 directed the respondent No. 2 to deduct 10% from the awarded amount and to pay the said amount so deducted to the respondent No. 1.
6. Mr Ahsanul Karim and Mr Khairul Alam Chowdhury, Advocates appearing for the petitioner submitted that such direction upon the Deputy Commissioner, Dhaka to deduct 10% from the compensation awarded in favour of the petitioner and to pay the said amount so deducted to RAJUK is without jurisdiction, because none of the provision of the said Ordinance, 1982 empowers RAJUK to give such direction, nor any provision of the said Ordinance, 1982 allows Deputy Commissioner, Dhaka, i.e., respondent No.2 to make any such deduction after passing the award and, as such, prayed for making the Rule absolute declaring the said impugned Memo to have been issued without lawful authority.
7. The respondent No. 1 submitted affidavit-in-opposition dated 29-11-2017. The respondent No. 1 in paragraph No. 7 of affidavit-in-opposition stated that “after assessing and determining the compensation and before taking possession of the acquired land some affected person removed their structure and took away crops and trees, in such case, RAJUK by Annexure-A requested the Deputy Commissioner, Dhaka to pay compensation to the person interested deducting 10% upon structure, standing crops and trees values”. The respondent No.1 in its affidavit-in-opposition also stated that the person interested whose structure, standing crops and trees remain on the acquired land he will get 100% compensation from the Deputy Commissioner, Dhaka as per award. The respondent No.1 in its affidavit-in-opposition also stated that the impugned Memo is not a decision/instruction for deducting 10% compensation upon entire land, structure and other property, it is only an instruction from RAJUK to Deputy Commissioner, Dhaka to make payment of compensation to the awardee after deducting 10% on account of structure, crops and trees values to the persons who are interested to take away their structure, standing crops and trees, but the persons whose structure, crops, trees remain on the acquired land will get/receive 100% compensation as per award given by the Deputy Commissioner, Dhaka.
8. We enquired with Mr Md Imam Hasan, Advocate for the respondent No. 1 whether there is any law empowering RAJUK to direct the Deputy Commissioner, Dhaka any amount whatsoever from the award of compensation awarded on account of acquisition of land. The learned counsel for the respondent No.1 failed to refer to any such law.
9. Perused the affidavits along with the documents submitted by the parties. Heard the learned Counsels appearing for the petitioner as well as the respondent No. 1.
10. We find that the respondent No.2, i.e., Deputy Commissioner, Dhaka issued notices dated 23-1-2017 (Annexure-B) under Section 7 of the said Ordinance, 1982 informing the petitioner that an amount of compensation referred to in the said notices shall be paid to the petitioner on account of acquisition of his property in L/ A Case No. 20/2015-2016. In all the notices issued in favour of the petitioner it was stated as follows:
“???????? ¯’??? ???????? ???????? ? ???????? ???????? ???? (???? ???? ? ?? ????????) ??????? ???? ???? ?? ?? ???) ?? ? ????? (?) ??-???? ??????? ????? ?????? ??? ??”?? ??, ????? ???????? ???? ????? ??? ???????? (????? ??? ???? ??? ???????) ??? ??? ??????? ??? ? ?????? ?????? ????????? ????/?????? ??????? ???????? ???????? ???? ?????????? ???????/????????? ??? ???? ?????? ??? ???? ????????? ??????/????????? ??????????? ???? ????????? ?????? ??? ????”
11. These notices were issued under Section 7(3) of the said Ordinance, 1982. Section 7(3) of the said Ordinance, 1982 obliges the respondent No.2 to issue a notice of the award to the person interested after making the award of compensation. Hence, the respondent No.2 issued the said notices dated 23-1-2017 on making the award of compensation finalized. Section 7(2) of the said Ordinance, 1982 confers finality to the award made by the Deputy Commissioner, Dhaka. Section 7(2) of the said Ordinance, 1982 provides as follows:
“7(2) The award made by the Deputy Commissioner shall, except as hereinafter provided, be final.”
12. So the award passed by the Deputy Commissioner, Dhaka has the finality. The award so passed by the Deputy Commissioner under Section 7 of the said Ordinance, 1982 being final cannot be varied, reduced or changed unless any other provision of the law so empowers the Deputy Commissioner. We have perused the whole Ordinance, 1982. We have not found any provision, which empowers Deputy Commissioner to re-open or re-calculate or re-assess the award passed by the Deputy Commissioner.
13. If any party is aggrieved by the amount of the award, then such disgruntled party can make an application to the Arbitrator for revision of the said award under relevant provision of the said Ordinance,1982.
14. However, the Deputy Commissioner cannot deduct any amount on any excuse whatsoever from the award made by him since statutory provision under Section 7(2) of the Ordinance, 1982 gives finality to such award. The words “except as hereinafter provided” as appears in Section 7(2) of the said Ordinance, 1982 refers to the provision for challenging the award before Arbitrator appointed by the Government. Moreover, Section 16 of the said Ordinance, 1982 provides that if excess amount is paid to the awardee or amount is paid to .a wrong person, then such ‘amount can be recovered as public demand. Section 16 of the said Ordinance, 1982 is quoted below:
16. Recovery of compensation in certain cases-When any compensation paid is in excess of the amount payable or when any compensation is paid to a person other than the rightful owner, the amount of such excess or wrong payment shall be recoverable as a public demand.”
15. Section 16 of the said Ordinance, 1982 contemplates two situations. Firstly, if a person is awarded with a particular amount, but at the time of payment an excess amount of money was paid above the amount so awarded, then the said excess amount shall be recovered as public demand. Secondly, if the award has been made in favour of a person, but the awarded amount was paid in favour of a person, who was not named in the award itself, in that situation the said amount can be recovered as public demand. “Recoverable as public demand” means initiating a proceeding under the Public Demand Recovery Act, 1913. But in any event, this Section 16 does not allow the Deputy Commissioner to re-assess or re-calculate the award made by the Deputy Commissioner on the strength of Section 7 and Section 8 of the said Ordinance, 1982, neither this section 16 allows the Deputy Commissioner to re-open the process of calculation of the compensation award once made under Section 7 of the said Ordinance, 1982. Hence, the Deputy Commissioner, Dhaka does not have any jurisdiction whatsoever to deduct any amount from the award made by him at the dictate of requiring body, particularly when Deputy Commissioner himself does not have authority to interfere with the amount of compensation stated in the award.
16. The respondent No.1, i.e., RAJUK vide the impugned Memo dared 17-1-2017 directed the respondent No.2, i.e. Deputy Commissioner, Dhaka in the following terms:
“????? ??????? ???????? ????????? ????? ????????? ??????????? ???????? ? ???????? ???????? ????? ??? ???? ????? ????? ???? ??% (????? ?? ????) ???? ????? ??? ???? ??????? ???? ?????????????? ????? ??? ???????? ???? ?????????? ????? ?????? ???????? ???? ?????? ??? ???? ????????? ????????? ????????????? ??? ??? ???????? ??? ??????? ????? ????? ?????? ????????? ??? ?????? ?? ?????? ???? ??????? ??? ????? ???? ????? ?? ? ????? ???? ?????? ??? ????”
“????? ??????? ???????? ????????? ????? ????????? ??????????? ???????? ? ???????? ???????? ????? ??? ???? ????? ????? ???? ??% (????? ?? ????) ???? ????? ??? ???? ??????? ???? ?????????????? ????? ??? ???????? ???? ?????????? ????? ?????? ???????? ???? ?????? ??? ???? ????????? ????????? ????????????? ??? ??? ???????? ??? ??????? ????? ????? ?????? ????????? ??? ?????? ?? ?????? ???? ??????? ??? ????? ???? ????? ?? ? ????? ???? ?????? ??? ????”
17. From this Memo of RAJUK it appears that RAJUK directed Deputy Commissioner to deduct 10% from the compensation award and imposes a compulsory condition upon the awardees to remove the structure and trees. The compensation award was made by the Deputy Commissioner, Dhaka under sections 7 and 8 of the Ordinance, 1982 which is final. RAJUK cannot dictate the Deputy Commissioner to deduct any amount from the award. Neither RAJUK can compel the awardee to remove any structure or trees which has been acquired along with the land.
18. Pending hearing of the above writ petition, the said Ordinance, 1982 was repealed and re-enacted by Acquisition & Requisition of Immovable Property Act, 2017 (the Act, 2017), and the said Act, 2017 came into force of law with effect from 21-7-2017. Section 8(2) of the said Act, 2017 provides that the award passed by the Deputy Commissioner, Dhaka is final. Again Section 18 of the said Act, 2017 also provides that excess amount, if paid to the awardee, can be recovered as public demand. The provisions of the said Act, 2017 as well do not empower the Deputy Commissioner to reassess, re-calculate or re-open the award already made by the Deputy Commissioner.
19. The Deputy Commissioner, while acting under the provisions of the said Ordinance, 1982 (now repealed) or the provisions of the said Act, 2017 in any land acquisition proceeding, is a statutory authority independent of Government and any other authority. The Deputy Commissioner has to act with strict compliance of the said Ordinance, 1982 (now repealed) or the provisions of the said Act, 2017. There is no provision in the said statutes obliging the Deputy Commissioner to act at the dictate of requiring body. The Hon’ble Appellate Division in the case of Ms. Ok-Kyung Oh, Dhaka vs Tea Hung Packaging (BD) Ltd. reported in 32 BLD (AD) 16 = 17 BLC (AD) 1 held that a statutory functionary cannot assume a jurisdiction which is not vested in it by the statute. Therefore, when any provision of the said Ordinance, 1982 (now repealed) or the provisions of the said Act, 2017 does not vest the Deputy Commissioner with the power to re-assess, re-calculate or re-open the award already made by the Deputy Commissioner, the Deputy Commissioner, Dhaka does not have any authority to deduct 10% from the awarded amount of the petitioner on any excuse whatsoever at the dictate of requiring body, i.e., RAJUK. On the other hand, RAJUK is also statutory body. No provision of law as well empowers RAJUK to thrust such obligation of deducting 10% from the awarded compensation upon the Deputy Commissioner, Dhaka. Action of RAJUK dictating the Deputy Commissioner, Dhaka to deduct 10% from the awarded amount is also without any sanction of law.
20. In view of the above, we find merit in the Rule. Hence, the Rule is made absolute. The Memo No. ivRDK/G‡óU-I f~t kvt/wewea-18-2015/337 ¯’v t dated 17-1-2017 issued by the respondent No. 1 so far as it relates to discretion upon respondent No.2 to deduct 10% of the compensation on account of acquisition of land in L/ A Case No. 20/2015-16 and to pay the same to the account of respondent No. 2 is set aside. Respondent No.2 shall make the payment of compensation award as made under Section 7 of the said Ordinance, 1982 without any deduction of any amount from the compensation award.
