High Court Division’ :
(Special Original Jurisdiction)
Naima Haider J
Zafar Ahmed J
Judgment February 2nd, 2014.
Shafi-ul-Azam (Md)
……..Petitioner
vs
The Deputy Commissioner, Dhaka and others … Respondents
State Acquisition & Tenancy Act (28 of 1951)
Section 144(7)
Constitution of Bangladesh, 1972
Article 102
Acquisition & Requisition of Immovable
Property Ordinance (II of 1982)
Section 7
Circle Officer being a governmental authority passed the order mutating the land in favour of the predecessors of petitioner divesting any right, title or interest of Government in the land, against which the Government never preferred any appeal and/or took any step before any forum for setting aside the order and, as such, the decision of Circle Officer is binding upon all other ‘Governmental Authorities and the Government itself. ..(12)
Chairman, Board of Investment vs Bay Trawling Limited, 3 MLR (AD) 54=51 DLR (AD) 79 ref.
Ahsanul Karim, with Aminul Hoque, Advocates-For the Petitioner.
Md Moklesur Rahman, DAG-For the Respondents
Judgment
Naima Haider J: In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh a Rule was issued calling upon the respondents to show cause as to why the respondents shall not be directed to release the awarded compensation in favour of the petitioner on account of acquisition of the scheduled land and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts necessary for disposal of the Rule, in brief are: One Syed Hasan Ali was the absolute owner of the said land which devolved on his only son, Syed Mohammad Ali after his demise. Thereafter, the said Syed Mohammad Ali died leaving his only son, Syed Ahsan Ali and his wife Syeda Hosne Ara Begum as his heirs who sold the said land to Md Akkas Ali (father of the petitioner) and Md Abdus Sobhan vide registered Sale Deed No. 2926 dated 7-2-1973. Some clerical mistake having been crept up in the sale deed and Syed Ahsan Ali and Syeda Hosne Ara Begum executed an amended deed vide Registered Amended Deed No. 30146 dated 10-12-1976 before the office of Sadar Sub-Register Dhaka. Md Akkas Ali and Md Abdus Sobhan after having become the absolute owner of the said land applied to mutate their names in the record of rights maintained by the Government. At that stage the said Md Akkas Ali and Md. Abdus Sobhan came to know that in SA Record the scheduled land was recorded in Khas Khatian No.1 as a road whereas the scheduled land was pond and not a road. In such situation they filed Mutation Case No. 1428 (shoi) of 1977-78 before the Circle Officer, Dhaka who vide Order dated 1-9-1977 directed Tahshildar to give detail report to that effect. The Tahshildar in his report stated that the title of the land vested in Md Akkas Ali and Md Abdus Sobhan and the said land was never a Khas land of the Government. The Tahshildar clearly stated that the land was wrongly recorded in the Akkas Ali and Md Abdus Sobhan in connection with the said land.
3. The Circle Officer also sought opinion from Government pleader who also opined that the said land could be mutated in the names of Md Akkas Ali and Md Abdus Sobhan. Thereafter the Circle Officer, Dhaka vide Order dated 19-10-1977 allowed of the Mutation Case No. 1428 (Shoi) of 1977-78 in favour of the said Md Akkas Ali and Md Abdus Sobhan and mutated the names of Md Akkas Ali and Md Abdus Sobhan in respect of the said land and directed Tahshildar to make necessary correction in the record of right and realise the fees for mutation of their names as per law. The said Md Akkas Ali and Md Abdus Sobhan paid the fees for mutation and up-to-date rents on 25-10-1977. The Government never preferred any appeal against the said order dated 19-10-1977 passing the said Mutation Case. Thereafter, their names were also recorded in the R.S. Khatian. In the year 1999 and 2011 their names were recorded in the field survey record and Dhaka City Survey record respectively. Md Akkas Ali died on 26-3-2004 leaving behind his son the petitioner, his wife and his five daughters as his heirs. While the petitioner was in peaceful possession of the said land the Government initiated LA Proceeding No. 13/2010-2011 for acquisition of the said land. The petitioner and other -heirs of Md Akkas Ali filed application for getting compensation in respect of the said land. Upon receipt of the said application, the Assistant Land Officer, Gulshan Land Office, Dhaka vide Memo dated 11-4-2012 informed the Assistant Commissioner (Land), Gulshan Circle, Dhaka that the Government does not have any interest in the land. The said Memo dated 11-4-2012 was also endorsed by Assistant Officer (Land), Gulshan land Office, Dhaka. However, as per the direction of the Assistant Commissioner (Land), Gulshan Circle, Dhaka, the Kanungo and Surveyor submitted a report on the same day i.e. on 12-4-2012 on the said land stating that 1.23 acres of land in SA Dag No.2465 involved in Mutation Case No. 4363/ 11 has earlier been recorded in No. 1 Khas Khatian and therefore, Government has interest in this land. After receiving the report of the Kanungo and Surveyor, the Assistant Commissioner (Land), Gulshan Circle, in total disregard of the Memo dated 11-4-2012 of the Assistant Land Officer, Gulshan Land Office, vide Memo No. mtKtfzt(¸j)-15 dated 15-4-2012 forwarded the report of the Kanungo and Surveyor.
4. Thereafter, the Land Acquisition Officer, Dhaka vide Memo No. 05.41.2600.033.14.001.11-452 dated 24-5-2012 requested the Government Pleader (GP), Dhaka to give his opinion as to whether compensation can be given to those persons whose names were mutated in respect of the land in RS Dag Nos. 6132, 6133 and 6134 (subsequently City Survey Dag Nos. 9662, 9663, 9665 and 17355) which was earlier recorded in the No.1 Khas Khatian as SA Dag No. 3465. The Government Pleader (GP), Dhaka after considering all the documents and record gave detailed opinion on the scheduled land on 5-6-2012. The Government Pleader (GP) in his report dated 5-6-2012 in clear terms stated that SA Record was duly amended and the names of the predecessor of the petitioner was duly mutated in relation to the scheduled land. In the said opinion, it is also stated that the names of the petitioner and other heirs of the said Md Akkas Ali having been published in the official gazette after the last City Survey, they are entitled to get the compensation in relation, to the said land.
5. In the aforesaid circumstances, having no other way, the petitioner sent a Notice Demanding Justice on 22-7-2012 requesting the respondent Nos. 1, 2 and 3 to release the awarded compensation in respect of the scheduled land in favour of the heirs of the said Md Akkas Ali. But the respondent Nos. 1, 2 and 3 did not take any action in this regard.
6. Being aggrieved by and dissatisfied with the inaction of respondent Nos.1, 2 and 3 the petitioner has moved this Court and obtained the instant Rule Nisi.
7. The respondents did not enter appearance by filing affidavit-in-opposition controverting the statements made in the writ petition.
8. Mr Md Mokleshur Rahman, learned Deputy Attorney-General, however, made oral submissions in this Rule.
9. Mr Ahsanul Karim, Advocate appeared with Mr Khairul Alam Choudhury and Ms Farzana Khan on behalf of the petitioner submitted that the Circle Officer vide Order dated 19-10-1997 ordered that the said land can be mutated in the name of Md Akkas Ali and Md Abdus Sobhan. Mr Ahsanul Karim then took us to Dhaka City Survey Record (Annexure Dl) published in the names of Md Akkas Ali and another in connection with the said land under Section 144(7) of the State Acquisition Tenancy Act, 1950 (the said Act). He submitted that under Section 144(7) of the said Act the Revenue Officer finally framed the record and caused the record finally published in the prescribed manner and the publication of such record has the conclusive evidence that the record has been duly prepared. Therefore, the record having been published in the names of Md Akkas Ali and another, such record provides us with the conclusive evidence of the aforementioned.
He further submitted that under Section 144A of the said Act, The Dhaka City Survey Record (Annexure Dl) has the presumption of its correctness. The said land was also mutated in the name of the petitioner and other heirs of Md Akkas Ali and Md Abdus Sobhan (Annexure E) wherein the Assistant Commissioner (Land) gave a declaration that the land in question is not a khas land. Mr Karim then submitted that the Deputy Commissioner Dhaka served a notice upon the petitioner and others under Section 7 of the Acquisition and Requisition of the Immovable Property Ordinance, 1882 (the said Ordinance) for compensation. Mr Ahsanul Karim referred to the report of Land Office (Annexure H) dated 12-4-2012 which evidenced that the land was never a khas land. Mr Ahsanul Karim lastly submitted that the Gazzette Notification published by the Government dated 12-4-2009 which also evidenced that the land in question;not a khas land and the respondents were under obligation to pay the compensation as notified by them in their notice under section 7 of the said Ordinance.
10. Mr Md Mokleshur Rahman, learned Deputy Attorney-General appearing for the respondents contested the Rule without, however, filing any affidavit-in-opposition. He submitted that the petitioner is not entitled to get any compensation out of the LA Proceeding but found it difficult to oppose the Rule.
11. We have considered the writ petition and Annexures contained therein, the supplementary affidavit filed by the petitioner and the submissions made by the advocates of both the parties. We considered the Annexure “B” of the writ petition, from which it appears vide order dated 19-10-1977 allowed the Mutation Case No. 1428 (Shoi) of 1977-78 in favour of the predecessors of the petitioner and that the Circle Office approved the land was mutated in the names of Md Akkas Ali and another after correction of the record. From Annexure ‘C’ it appears that the land was mutated in the name of the said persons. From Annexure ‘C1’ it appears that the Government received rent from the said Md. Akkas Ali and another. From Annexure ‘D’ it appears that the said land was mutated in the names of Md Akkas Ali and another. From Annexure ‘Dr’ it appears that Dhaka City Survey Report was published in the names of Md Akkas Ali and another in connection with the said land in question under Section 144(7) of the said Act. The Land Assistant Officer, Gulshan land office by Memo dated 12-4-2012 (Annexure H) sent report to the office of Assistant Commissioner (Land) Culshan Circle, Dhaka stating that Government has no interest in the said land. The Office of Assistant Commissioner (Annexure I to the writ petition) vide report dated 12-4-2012 stated that from the report of Land Officer it appears that 1.23 acres of land in Dag No. 2465, Mouza-Vatara is khas land. It is a settled principle of law as ennunciated by the Hon’ble Appellate Division in the case of The Chairman, Board of Investment vs Bay Trawling Limited, 3 MIR (AD) 54 = 51 DLR (AD) 79 that any decision of one lawful Governmental authority is binding upon all other Governmental authorities.
12. Hence, we are of the view that Circle Officer being a Governmental Authority passed the order dated 19-10-1977 mutating the said land in favour of the predecessors of petitioner divesting any right, title or interest of Government in the said land, against which the Government never preferred any appeal and/ or took any step before any forum for setting aside the said order and, as such, the said decision dated 19-10-1977 of Circle Officer is binding upon all other Governmental Authorities and the Government itself. So the said report is absolutely malafide and colourable exercise of power because the Land Officer (Annexure H) stated that the said land is not a khas land.
The Land Acquisition Officer to resolve the issue vide Memo dated 24-5-2012 sought opinion from the Government pleader (Annexure J to the writ petition) and the Government pleader by his opinion dated 5-6-2012 clearly opined that the Government has no interest in the land in question. Hence, we are of the view that the respondents without due process of law has not paid the awarded compensation to the petitioner in connection with the said land.
13. Considering all the facts and circumstances made hereinbefore, we find merit in the Rule. Accordingly, the Rule is made absolute. The respondents are directed to pay the awarded compensation to the petitioner in connection with the said land (46.94 decimals of land in Mouza-Vatara, SA Plot No. 2465, Mutation Khatian No. 11077, RS Khatian No. 17, Corresponding to Plot Nos. 6132, 6133 and 6134) within 1wo months from the date of receipt of a copy of this judgment and order.
There is no order as to costs.
(Special Original Jurisdiction)
Naima Haider J
Zafar Ahmed J
Judgment February 2nd, 2014.
Shafi-ul-Azam (Md)
……..Petitioner
vs
The Deputy Commissioner, Dhaka and others … Respondents
State Acquisition & Tenancy Act (28 of 1951)
Section 144(7)
Constitution of Bangladesh, 1972
Article 102
Acquisition & Requisition of Immovable
Property Ordinance (II of 1982)
Section 7
Circle Officer being a governmental authority passed the order mutating the land in favour of the predecessors of petitioner divesting any right, title or interest of Government in the land, against which the Government never preferred any appeal and/or took any step before any forum for setting aside the order and, as such, the decision of Circle Officer is binding upon all other ‘Governmental Authorities and the Government itself. ..(12)
Chairman, Board of Investment vs Bay Trawling Limited, 3 MLR (AD) 54=51 DLR (AD) 79 ref.
Ahsanul Karim, with Aminul Hoque, Advocates-For the Petitioner.
Md Moklesur Rahman, DAG-For the Respondents
Judgment
Naima Haider J: In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh a Rule was issued calling upon the respondents to show cause as to why the respondents shall not be directed to release the awarded compensation in favour of the petitioner on account of acquisition of the scheduled land and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts necessary for disposal of the Rule, in brief are: One Syed Hasan Ali was the absolute owner of the said land which devolved on his only son, Syed Mohammad Ali after his demise. Thereafter, the said Syed Mohammad Ali died leaving his only son, Syed Ahsan Ali and his wife Syeda Hosne Ara Begum as his heirs who sold the said land to Md Akkas Ali (father of the petitioner) and Md Abdus Sobhan vide registered Sale Deed No. 2926 dated 7-2-1973. Some clerical mistake having been crept up in the sale deed and Syed Ahsan Ali and Syeda Hosne Ara Begum executed an amended deed vide Registered Amended Deed No. 30146 dated 10-12-1976 before the office of Sadar Sub-Register Dhaka. Md Akkas Ali and Md Abdus Sobhan after having become the absolute owner of the said land applied to mutate their names in the record of rights maintained by the Government. At that stage the said Md Akkas Ali and Md. Abdus Sobhan came to know that in SA Record the scheduled land was recorded in Khas Khatian No.1 as a road whereas the scheduled land was pond and not a road. In such situation they filed Mutation Case No. 1428 (shoi) of 1977-78 before the Circle Officer, Dhaka who vide Order dated 1-9-1977 directed Tahshildar to give detail report to that effect. The Tahshildar in his report stated that the title of the land vested in Md Akkas Ali and Md Abdus Sobhan and the said land was never a Khas land of the Government. The Tahshildar clearly stated that the land was wrongly recorded in the Akkas Ali and Md Abdus Sobhan in connection with the said land.
3. The Circle Officer also sought opinion from Government pleader who also opined that the said land could be mutated in the names of Md Akkas Ali and Md Abdus Sobhan. Thereafter the Circle Officer, Dhaka vide Order dated 19-10-1977 allowed of the Mutation Case No. 1428 (Shoi) of 1977-78 in favour of the said Md Akkas Ali and Md Abdus Sobhan and mutated the names of Md Akkas Ali and Md Abdus Sobhan in respect of the said land and directed Tahshildar to make necessary correction in the record of right and realise the fees for mutation of their names as per law. The said Md Akkas Ali and Md Abdus Sobhan paid the fees for mutation and up-to-date rents on 25-10-1977. The Government never preferred any appeal against the said order dated 19-10-1977 passing the said Mutation Case. Thereafter, their names were also recorded in the R.S. Khatian. In the year 1999 and 2011 their names were recorded in the field survey record and Dhaka City Survey record respectively. Md Akkas Ali died on 26-3-2004 leaving behind his son the petitioner, his wife and his five daughters as his heirs. While the petitioner was in peaceful possession of the said land the Government initiated LA Proceeding No. 13/2010-2011 for acquisition of the said land. The petitioner and other -heirs of Md Akkas Ali filed application for getting compensation in respect of the said land. Upon receipt of the said application, the Assistant Land Officer, Gulshan Land Office, Dhaka vide Memo dated 11-4-2012 informed the Assistant Commissioner (Land), Gulshan Circle, Dhaka that the Government does not have any interest in the land. The said Memo dated 11-4-2012 was also endorsed by Assistant Officer (Land), Gulshan land Office, Dhaka. However, as per the direction of the Assistant Commissioner (Land), Gulshan Circle, Dhaka, the Kanungo and Surveyor submitted a report on the same day i.e. on 12-4-2012 on the said land stating that 1.23 acres of land in SA Dag No.2465 involved in Mutation Case No. 4363/ 11 has earlier been recorded in No. 1 Khas Khatian and therefore, Government has interest in this land. After receiving the report of the Kanungo and Surveyor, the Assistant Commissioner (Land), Gulshan Circle, in total disregard of the Memo dated 11-4-2012 of the Assistant Land Officer, Gulshan Land Office, vide Memo No. mtKtfzt(¸j)-15 dated 15-4-2012 forwarded the report of the Kanungo and Surveyor.
4. Thereafter, the Land Acquisition Officer, Dhaka vide Memo No. 05.41.2600.033.14.001.11-452 dated 24-5-2012 requested the Government Pleader (GP), Dhaka to give his opinion as to whether compensation can be given to those persons whose names were mutated in respect of the land in RS Dag Nos. 6132, 6133 and 6134 (subsequently City Survey Dag Nos. 9662, 9663, 9665 and 17355) which was earlier recorded in the No.1 Khas Khatian as SA Dag No. 3465. The Government Pleader (GP), Dhaka after considering all the documents and record gave detailed opinion on the scheduled land on 5-6-2012. The Government Pleader (GP) in his report dated 5-6-2012 in clear terms stated that SA Record was duly amended and the names of the predecessor of the petitioner was duly mutated in relation to the scheduled land. In the said opinion, it is also stated that the names of the petitioner and other heirs of the said Md Akkas Ali having been published in the official gazette after the last City Survey, they are entitled to get the compensation in relation, to the said land.
5. In the aforesaid circumstances, having no other way, the petitioner sent a Notice Demanding Justice on 22-7-2012 requesting the respondent Nos. 1, 2 and 3 to release the awarded compensation in respect of the scheduled land in favour of the heirs of the said Md Akkas Ali. But the respondent Nos. 1, 2 and 3 did not take any action in this regard.
6. Being aggrieved by and dissatisfied with the inaction of respondent Nos.1, 2 and 3 the petitioner has moved this Court and obtained the instant Rule Nisi.
7. The respondents did not enter appearance by filing affidavit-in-opposition controverting the statements made in the writ petition.
8. Mr Md Mokleshur Rahman, learned Deputy Attorney-General, however, made oral submissions in this Rule.
9. Mr Ahsanul Karim, Advocate appeared with Mr Khairul Alam Choudhury and Ms Farzana Khan on behalf of the petitioner submitted that the Circle Officer vide Order dated 19-10-1997 ordered that the said land can be mutated in the name of Md Akkas Ali and Md Abdus Sobhan. Mr Ahsanul Karim then took us to Dhaka City Survey Record (Annexure Dl) published in the names of Md Akkas Ali and another in connection with the said land under Section 144(7) of the State Acquisition Tenancy Act, 1950 (the said Act). He submitted that under Section 144(7) of the said Act the Revenue Officer finally framed the record and caused the record finally published in the prescribed manner and the publication of such record has the conclusive evidence that the record has been duly prepared. Therefore, the record having been published in the names of Md Akkas Ali and another, such record provides us with the conclusive evidence of the aforementioned.
He further submitted that under Section 144A of the said Act, The Dhaka City Survey Record (Annexure Dl) has the presumption of its correctness. The said land was also mutated in the name of the petitioner and other heirs of Md Akkas Ali and Md Abdus Sobhan (Annexure E) wherein the Assistant Commissioner (Land) gave a declaration that the land in question is not a khas land. Mr Karim then submitted that the Deputy Commissioner Dhaka served a notice upon the petitioner and others under Section 7 of the Acquisition and Requisition of the Immovable Property Ordinance, 1882 (the said Ordinance) for compensation. Mr Ahsanul Karim referred to the report of Land Office (Annexure H) dated 12-4-2012 which evidenced that the land was never a khas land. Mr Ahsanul Karim lastly submitted that the Gazzette Notification published by the Government dated 12-4-2009 which also evidenced that the land in question;not a khas land and the respondents were under obligation to pay the compensation as notified by them in their notice under section 7 of the said Ordinance.
10. Mr Md Mokleshur Rahman, learned Deputy Attorney-General appearing for the respondents contested the Rule without, however, filing any affidavit-in-opposition. He submitted that the petitioner is not entitled to get any compensation out of the LA Proceeding but found it difficult to oppose the Rule.
11. We have considered the writ petition and Annexures contained therein, the supplementary affidavit filed by the petitioner and the submissions made by the advocates of both the parties. We considered the Annexure “B” of the writ petition, from which it appears vide order dated 19-10-1977 allowed the Mutation Case No. 1428 (Shoi) of 1977-78 in favour of the predecessors of the petitioner and that the Circle Office approved the land was mutated in the names of Md Akkas Ali and another after correction of the record. From Annexure ‘C’ it appears that the land was mutated in the name of the said persons. From Annexure ‘C1’ it appears that the Government received rent from the said Md. Akkas Ali and another. From Annexure ‘D’ it appears that the said land was mutated in the names of Md Akkas Ali and another. From Annexure ‘Dr’ it appears that Dhaka City Survey Report was published in the names of Md Akkas Ali and another in connection with the said land in question under Section 144(7) of the said Act. The Land Assistant Officer, Gulshan land office by Memo dated 12-4-2012 (Annexure H) sent report to the office of Assistant Commissioner (Land) Culshan Circle, Dhaka stating that Government has no interest in the said land. The Office of Assistant Commissioner (Annexure I to the writ petition) vide report dated 12-4-2012 stated that from the report of Land Officer it appears that 1.23 acres of land in Dag No. 2465, Mouza-Vatara is khas land. It is a settled principle of law as ennunciated by the Hon’ble Appellate Division in the case of The Chairman, Board of Investment vs Bay Trawling Limited, 3 MIR (AD) 54 = 51 DLR (AD) 79 that any decision of one lawful Governmental authority is binding upon all other Governmental authorities.
12. Hence, we are of the view that Circle Officer being a Governmental Authority passed the order dated 19-10-1977 mutating the said land in favour of the predecessors of petitioner divesting any right, title or interest of Government in the said land, against which the Government never preferred any appeal and/ or took any step before any forum for setting aside the said order and, as such, the said decision dated 19-10-1977 of Circle Officer is binding upon all other Governmental Authorities and the Government itself. So the said report is absolutely malafide and colourable exercise of power because the Land Officer (Annexure H) stated that the said land is not a khas land.
The Land Acquisition Officer to resolve the issue vide Memo dated 24-5-2012 sought opinion from the Government pleader (Annexure J to the writ petition) and the Government pleader by his opinion dated 5-6-2012 clearly opined that the Government has no interest in the land in question. Hence, we are of the view that the respondents without due process of law has not paid the awarded compensation to the petitioner in connection with the said land.
13. Considering all the facts and circumstances made hereinbefore, we find merit in the Rule. Accordingly, the Rule is made absolute. The respondents are directed to pay the awarded compensation to the petitioner in connection with the said land (46.94 decimals of land in Mouza-Vatara, SA Plot No. 2465, Mutation Khatian No. 11077, RS Khatian No. 17, Corresponding to Plot Nos. 6132, 6133 and 6134) within 1wo months from the date of receipt of a copy of this judgment and order.
There is no order as to costs.
