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Petitions Nos. 676 and' 677 of 1966, decided on 30th July 1968.

‑Arbitration, reference to‑Petitioners raising objection to assessment, but receiving 50% of compensa tion money on protest Kith a prayer for referring matter to arbitration‑Objection petitions, held, filed in time in accordance with law.

read with Evidence Act (I of 1872), S. 115‑Arbitratioia‑Estoppel‑Contention that petitioner having once accepted compensation money on putting signatures in agreement Form "A" cannot subsequently ask for referring matter to arbitration, held, not correct‑Agreement in cl. 6 itself providing for reference to arbitration in case of dispute‑Held, further cl. 6 of agreement speaks for requisition of property only and not for acquisition of land under S. S.

Petitions Nos. 288, 337, 338, 339 and 351 of 1966 rel.

Petition No. 676 of 1966

Abu Taher Choudhury for Petitioner.

Asrarul Hossain Advocate‑General with Abdur Rasheed for Md. Fazlul Karim for Respondents.

Petition No. 677 of 1966

Abu Taher Choudhury for Petitioner.

Sultan Hossain Khan for Respondents Nos. 1 and 2.

Date of hearing : 29th July 1968.

.‑These two Rule, having involved some common questions of facts and law are heard together and disposed of under this judgment.

In both the Rules the petitioners have challenged the orders dated 29‑8‑66 of the Government of East Pakistan rejecting the petitioners' applications for appointment of arbitrators under section 7 (aaa) of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter referred to as the Act).

The short facts are that the petitioners were owners of certain landed properties at Telebergag within Police Station Tejgaon, District Dacca (now known as Dhanmandi Residential Area). The District Magistrate (now Deputy Commissioner), Dacca, requisitioned the said lands under section 3 of the said Act in 1948 and took possession of the same immediately after service of requisition notices. The Government, thereafter, decided to acquire the said properties and the notices under section 5 of the said Act were duly served. The acquisition of the said lands was thereafter published in the Dacca Gazette in usual course. The Additional Land Acquisition Collector, Dacca who acted for the District Magistrate, Dacca, in these matters, made a pro visional award in respect of the properties. After formal approval by the Provincial Government, the District Magistrate, Dacca passed the final award under section 7 of the said Act. The petitioners raised objection to the said assessments but received 50 Y, of the compensation money on protest with a prayer for referring the matter to the arbitration.

The specific case of the petitioner in Petition No. 676 of 1966 is that he submitted a petition of objection and protest against he assessment of the Respondent No. 3 on 15‑4‑55 with a request to send it to arbitration and the Land Acquisition Collector of Dacca referred the matter to the Provincial Government for consideration but the Provincial Government rejected the prayer by its Memo. No. Arb.‑70/63/1436 Reqn. dated the 29th August 1966, marked as Annexure 'C' to the petition. The petitioner in support of his contention has annexed a true copy of the objec tion petition filed under section 7 (aaa) of the said Act and it is marked as Annexure B' to the petition.

The petitioner in Petition No. 677 of 1966 alleged that he filed a similar petition to the Land Acquisition Officer, Dacca on 25‑5‑56 challenging the assessment of Respondent No. 3 with a prayer to refer the matter to the arbitration but the same was rejected by the Government by its Memo. No. Arb. 65/63‑1435 Reqn., dated the 29th of August 1966, marked as Annexure LC' to the petition. In this case also the petitioner in support of his grievance has filed a copy of his objection petition made under section 7 (aaa) of the Act and it has been marked as Annexure 'B' to the petition.

The respondents have filed affidavits‑in‑opposition denying the allegations made therein and asserted that no such applica tions under section 7 (aaa) of the Act were filed in time. The respondents in their affidavits‑in‑opposition have also contended that the petitioners having already received the compensation money on putting their signatures in the agreements "Form A" are now estopped to re‑open the matters and to pray for referring the cases to the arbitration and as such the orders of rejection are quite lawful and valid.

The respondents in their affidavits‑in‑opposition, although denied the existence of the objection petitions filed by the petitioners but after scrutiny of the records, the learned Advocates appearing on behalf of them frankly admitted that the objection petitions, as a matter of fact, were filed by the petitioners in due time for referring the question of assessments to the arbitration. The learned Advocates in this connection have drawn our attention to the para‑wise statements prepared by the Land Acquisition Officer and it appears from those statements that the petitioners accepted 50 % of the compensation money on protest f with prayer to refer the matter to arbitration. This being the position, we hold that the objection petitions were filed in time in accordance with law.

The second contention raised on behalf of the respondents that the petitioners having once accepted the compensation money on putting their signatures in the agreements "Form A" cannot subsequently ask for referring the matters to the arbitration, in our opinion, has no substance. Firstly, the agreement in "Form A" only refers to compensation payable for requisition of the property but does not clearly speak of compensation payable for acquisition of land under section 5 of the Act. Further in the agreement itself there is a provision for arbitration in clause 6 and in view of that clause in the agreement in "Form A", the petitioners cannot be debarred from asking for any reference to the arbitration. Clause 6 of "Form A" provides as follows: ‑

"6. Should any dispute or difference arise out of or con cerning the subject‑matter of these presents or any covenant clause or thing herein contained or otherwise arising out of the requisition aforesaid the same shall be referred to an Arbitrator to be appointed by the Government and the decision of such Arbitrator shall be conclusive and binding on the parties hereto. The provision of the Arbitration Act, 1940, shall apply to such arbitration."

The provision of clause 6 in the agreement quoted above seems to be of great significance. Reading all the clauses of the agreement together, it appears that the petitioners have the right to pray for reference to the arbitration even with regard to the compensation fixed by this agreement. In view of the specific provision in clause 6 of the agreement, in our opinion, the petitioner's prayer for reference to the arbitration cannot be easily rejected by the respondents. A Division Bench of this Court by interpreting clause 6 of the agreement in "Form A" in Petitions Nos. 288, 337, 338, 339 and 351 of 1966 has already held that in view of the provision in clause 6 of the agreement the petitioners' application for referring the matter to the arbitration is not barred. We respectfully agree with the view expressed therein. In the light of principle already pronounced in the above cases, we hold that the rejection of the petitioners' application for arbitration is illegal and without any lawful authority.

For the reasons stated above, we think that the petitioners have made out a good case for our interference.

We, therefore, make the Rules absolute and declare the impugned orders as in Annexure C' to be without any lawful authority and of no legal effect.

It is directed that the applications of the petitioners be for warded to the arbitrator for assessing compensation in accordance with law. We, however, make no order as to costs in these two Rules.

‑‑I agree.

I.K.H./S.A.H.

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