(Special Original Jurisdiction)
Md Ashfaqul Islam J
Mohammad Ali J
Abdul Mannan Mian
(Md)…………Petitioner
vs
Bangladesh, represented by its Secretary, Ministry of Land and others … Respondents
Judgment
August 2nd, 2018.
Constitution of Bangladesh, 1972
Article 102(2)
Writ petition at instance of a ‘tenant’ who is not an owner of the land acquired in LA case itself is not maintainable. This writ petition should be discharged only on that score. . ….. (18)
Constitution of Bangladesh, 1972
Article 102(2)
When an amount claimed is not admitted or not a statutory amount, the writ under Article 102 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. . ….. (16)
Constitution of Bangladesh, 1972
Article 102(2)
In common parlance it is known that the terms and conditions of lease agreement executed between the parties that is to say the Owner and the tenant always get paramount consideration. In another words it is the tenancy agreement executed between the land owner and the tenant is the document which binds the parties only in terms specified in the lease agreement. When pursuant to a LA case, the government, for extending the Kuril Purbachal Link Road had already paid compensation money to the owner of the land the writ petition at the instance of “the tenant as person interested” is maintainable. . …. (14)
Water Development Board vs Shamsul Haq , 51 DLR (AD) 169 and Smail Hossain Poshari vs District Land Acquisition Officer, 57 DLR (AD) 173 ref.
AJ Mohammad Ali, Senior Advocate with Md Khalilur Rahman, Advocate-For the Petitioner.
Md Al Amin Sarker, DAG and KM Masud Rumy, Md Nasim Islam and Abul Kalam Azad Khan, AAGs For Respondent No.3.
Mohammad Shazzad Ali Chowdhury, AdvocateFor Respondent No.11.
Judgment
Md Ashfaqul Islam J: This Rule under adjudication issued on 24-8-2017 was in the following terms:
“Let a Rule Nisi be issued calling upon the respondent Nos.1 to 10 to show cause as to why the Notice dated 8-2-2017 issued under the signatures of the respondent Nos. 2 to 7 giving reference of LA Case No.20 of 2015-2016 under Section 7 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, assessing lumpsum compensation as of Taka 40,000 against petitioner’s leasehold showroom as described in the schedule of the writ petition (Annexure-C), shall not be declared to have been made without lawful authority and is of no legal effect.”
2, At the time of issuance of the Rule a direction was given upon the respondents to dispose of the application dated 16-2-2017 (Annexure-E-l) and also directed the parties to maintain status quo in respect of possession and position of the property in question till disposal of the application.
3. The background leading to the Rule, in short, is that one Mr Abdul Mannan Miah the proprietor of RSS Home Depot of Dhaka City Corporation has challenged the Notice dated 82-2017 issued under the signature of respondent Nos. 2-7 (Annexure-C) with reference to LA Case No.20/2015-16 under Section 7 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, assessing a compensation of Taka 40,000 against the petitioner’s lease hold showroom as described in the schedule Annexure-‘C’. Further the petitioner addressed the respondents by a petition dated 16-2-2017 praying for assessment of item wise compensation expended by him against his leasehold showroom (Annexure- E1) before demolishing the same.
4. It has been stated in the petition that the petitioner took lease of two-storied building comprising of 7000 square feet in holding No. Ka-32/10 Kuratoli, Dhaka bearing Mahanagar plot No.24901 of Mouza Joarshahara under Police Station Khilkhet, Dhaka from its owner Mr. Alhaj Kamal Uddin Majumder who featured as added respondent No.1 1, by executing a deed of agreement of lease with him on 1-9-2015 upon the terms and conditions stated therein (Annexure-A).
5. In due course the petitioner decorated the leasehold property expending a huge amount of money for building a business concern under name and style ‘RSS Home Depot’ after obtaining trade license and other necessary permission. During the said business the petitioner received the impugned notice dated 8-2-2017 as it has been already mentioned as aforesaid. Admittedly, the property was acquired by the government in pursuant to LA Case No. 20/2015-2016 from its owner Alhaj Kamal Uddin Majumder, added respondent No. 11 for extension of 100 feet wide Canal from Kuril to Balu River. The petitioner after receiving the said notice contacted with the lessor Alhaj Kamal Uddin Majumder (the owner of the property in question) and asked about the said LA Case and informed him that the petitioner has already informed the Deputy Commissioner, Dhaka about an approximate loss of Taka 3,46,00,000 by letter dated 30-52016 (Annexure-D).
6. That being the situation the petitioner being aggrieved by and dissatisfied with the impugned notice issued under the signature of respondent Nos.2 to 7 in respect of LA Case No. 20/2015-16 moved this writ petition under Article 102 of the Constitution and obtained the present Rule and the ad-interim order of status quo.
7. This writ petition was earlier moved by Mr. Md. Khalilur Rahman the learned counsel who argued the case at length and after hearing, the case was kept for delivery of judgment when the learned Senior Advocate Mr AJ Mohammad Ali was engaged, who has also made his submissions accordingly. The sum and substance of their submissions mainly relates to proper assessment and item wise compensation which the petitioner is entitled to and the respondents are bound under Section 8 (d) and (f) of the Ordinance, 1982 ( the Acquisition and Requisition of Immovable Property Ordinance 2/1982) to allow him the same. The learned counsel for the petitioner have assailed the impugned notice and the assessment and also the awarding of lump sum compensation of Taka 40,000 paid to him to be arbitrary and not binding upon him as opposed to Article 42 of the Constitution.
8. On the other hand, Mr Md Nasim Islam, the learned Assistant Attorney-General by filing affidavit in opposition on behalf of the respondent No.3 Additional Deputy Commissioner (LA), Dhaka opposes the Rule contending mainly that this writ petition has been filed in total misconception of law and also on the basis of partial wrong information. In fact, on receiving the acquisition proposal from RAJUK to implement 100 feet wide canal on both side of Kuril Purbachal road, and after approval from Central Land Allocation committee, Land Acquisition Case No.20/2015-16 had been initiated under Acquisition and Requisition of Immovable Property Ordinance, 1982. Notice under Section 3 was issued on 16-5-2016 and thereafter Joint field survey was duly completed according to the related provisions.
9. Name of Alhaj Kamal Uddin Majumder son of late Haji Abdul Wadud was included as the owner of the related city plot No. 24901 of Mouza Joarshahara with a two-stoned building having modern tiles and glass fitting aircondition as included in the said structure of the owner. Alhaj Kamal Uddin Majumder, as he was the owner of that plot of land by purchase the name of the petitioner Abdul Mannan Mia son of late Soleman Mia proprietor of RSS Home Depot was duly and properly included as tenant in the field book.
10. Since Mr Alhaj Kamal Uddin Majumder was the owner of the land as well as the building attached thereto, there was no legal scope of inclusion of the structure in the field book in favour of the petitioner. Following the information collected in joint survey (field book), the report of PWD and the approved rate of compensation, Taka 5,24,44,111.50 and Taka 2,53,22,104.50 was awarded respectively for land and the said structure in name of Alhaj Kamal Uddin Majumder and Taka 40,000 was awarded in the name of RSS HOME DEPOT as business compensation for transfer of movable goods. As per the Acquisition and Requisition of Immovable Property Ordinance, 1982 there is no scope for compensation ofo movable property. Any affected person may take or shift his movable property / goods if he desires so. In such case the office shall consider only the compensation of business/transfer of goods. The claim of construction, furnishing or decoration of the petitioner may be an issue between the tenant petitioner and the Land Lord, but not with the Government. Because the Government had duly valued the impugned structure as already mentioned.
11. On the other hand, the added respondent No.11 filed an application for discharging the Rule as being not maintainable. His core submission is that the added respondent No.11 Mr Alhaj Kamal Uddin Majumder is the owner of two storied building in question which has been acquired by the government in the said LA Case and the petitioner is the tenant of respondent No.n under lease deed executed between the petitioner and the added respondent No.11 dated 1-9-2015 (Annexure-A) and for that reason the instant writ petition itself is not maintainable by the tenant who was admittedly not a not a pa!ty in the said LA case. Therefore, he has no locus standi whatsoever, to bring the instant writ petition. On the contrary regarding the point of locus standi the learned Senior Advocate for the petitioner Mr AJ Mohammad Ali has drawn our notice to Section 2 of the Ordinance, 1982. Section 2 (d) of the Ordinance defines the “person interested”. It explains a person to be interested in relation to any property or a person entitled to an interest payable on acquisition and requisition under this Ordinance. The learned counsel therefore, submits that a tenant of added respondent No.11, is a person interested within the meaning of Section 2 (d) and entitled tocompensation in the manner as it has been received by the owner of the land acquired i.e. by the added respondent No.11.
12. Be that as it may, we have heard the learned counsel of both sides and considered their submissions carefully. We have also heard the learned Assistant Attorney-General on the issue and perused the affidavit in opposition filed by him on behalf of the respondent No.3 Additional Deputy Commissioner (LA), Dhaka. in our anxiety we have meticulously assessed and reviewed the instant writ petition.
13. The moot question that falls for consideration by this Division in this petition is whether under the facts and circumstances of the present case writ petition is maintainable at the instance of the tenant under the owner pursuant to a lease agreement executed between them admittedly when the property had been already acquired.
14. In common parlance it is known that the terms and conditions of lease agreement executed between the parties that is to say the owner and the tenant always get paramount consideration. In another words it is the tenancy agreement executed between the land owner and the tenant is the document which binds the parties only in terms specified in the said lease agreement. Now comes the question when pursuant to a LA case, the government, for extending the Kuril Purbachal Link Road had already paid compensation money to the owner of the land (respondent No.11), the writ petition at the instance of “the tenant as person interested” is maintainable.
15. It is evident from Annexure-‘E-1’ dated 16-2-2017 that the petitioner made a representation before the Deputy Commissioner, Dhaka claiming compensation categorized under different headings. At the time of hearing we directed One of the respondents to appear before us to clarify whether there is any kind of provisions of awarding any compensation to a tenant of the property which is acquired in LA Case. The Officer who had appeared before us simply failed to give any plausible answer clarifying the same. As for saying sake only he said that the amount of Taka 40,000 has been given to the tenant as a dislodgement cost. But we have found no such provision under which this can be given.
16. Annexure “E-1” dated 16-2-2017 by which the petitioner claimed compensation on different heads is a repetition which gives us 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 Mustafa 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.
17. In the decision of Ismail Hossain Poshari vs District Land Acquisition Officer, 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.
18. On our own discussions and findings as above we are of the view that this writ petition at instance of a ‘tenant’ who is not an owner of the land acquired in LA case itself is not maintainable. This writ petition should be discharged only on that score.
19. In the result, the Rule is discharged with cost. The order of status quo granted earlier by this court is hereby recalled and vacated.
