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Petition No. 58 of 1967, decided on 15th June 1967.
read with Land Acquisition Act (I of‑ 1894), S. 9‑Proceed ings for acquisition of land taken under Town Improvement Act, and action to resume same land initiated under terms of lease granted by Government to occupants‑Area to be acquired or resumed different as stated in two notices‑Discrepancy affecting rights of citizens‑Necessity stressed of avoiding such discrepancy.
‑ Writ jurisdic tion‑High Court would not take upon itself the duties of a civil Court within its ordinary original civil jurisdiction.
‑Proceedings for acquisition of land taken under Act‑Action by Additional Deputy Commissioner to resume same land under terms of lease granted by Government to occupant‑Whether Town Improvement authorities and Additional Deputy Commissioner agents of same principal i.e. Provincial Government and whether the cannot act differently‑[Robertson v. Minister of Pensions (1948) 2 A E R 767 distinguished].
‑ Controversial questions of fact involving interpretation of terms of lease agreement entered into between Government and petitioners' predecessor‑in -interest‑High Court decided to go into such questions under writ jurisdiction.
‑ High Court would not assess quantum of compensation (land acquisition case) or issue mandate to fix amount at a particular figure.
‑Not meant for enforcing contractual rights dependent upon interpretation of terms of an agreement.
‑Chairman cannot bind Trustees by privately entering into commitments (agreement as to compensation etc.) with person whose land is being acquired
‑Remedy avail able under Town Improvement Act (East Bengal Act XIII of 1953)‑Case not suitable for being dealt with under Art. 98‑Pro ceedings for resumption of land under terms of lease granted by Government to occupant ‑‑ Resumption not result of executive order‑Case not fit to be considered under Art. 98‑[Anjuman‑e- Ahmadiaya v. D. C., Sargodha P L D 1966 S C 639 not applic able].
Fundamental Right No. 14 & Art. 98‑Fundamental Right No. 14 suspended since 6‑9‑1965‑Right has no application to a case of resumption of land in accordance with terms of lease granted by Government to occupant‑Writ petition based on such Right not entertainable.
Badrul Haider Chowdhury, Syed Ishtiaq Ahmad, T. A. Bhuiyan, K. E. Alam and Samad Mia for Petitioners.
Abdur Rahman Chowdhury for Respondent No. 2.
T. H. Khan with Md. Nurul Huque Bhuiyan for Respondent No. 3.
Dates of hearing : 25th, 26th, 27th, 28th April, 1st and 2nd May 1967.
.‑The petitioners obtained this rule under Article 98 of the Constitution for a writ of manadamus on the respondents who are 4 (four) in number, to pay and assess the compensation under the provisions of Town Improvement Act of 1953, for the lands and structures of the petitioners requisition ed and acquired under the Town Improvement Act of 1953 and for declaration that the order of resumption dated 22nd November 1965, passed in Resumption Case No. 4 of 1966 is without any lawful authority and therefore null and void and is of no legal effect and for other incidental reliefs.
Petitioner No. 1 is the widow of late Mr. Muhammad Ibrahim and the petitioners Nos. 2, 3 and 4 are his sons and daughter respectfully. The 4 respondents are :‑(1) The Province of East Pakistan, (2) Dacca Improvement Trust, (3) The Addi tional .Deputy Commissioner, Dacca and (4) Mr. G. A. Madani, the then Chairman, D. I. T. (now Chairman, East Pakistan Water and Power Development Authority).
It is the case of the petitioners that late Mr. Muhammad Ibrahim, the predecessor‑in‑interest of the petitioners purchased Khas Mahal Plot No. 11, Purana Palatan of Touzi No. 15779 in Sheet No. 22, Ward No. 3 of Mouja Sahar Dacca measuring more or less .28926 acre (I7 kathas 8 chataks) of land with a two storied building thereon for his residential purpose from the heirs of one Paramesh Prasanna Roy on 13th of March 1953, by registered deed of sale for which he paid the full consideration . That the land in question was the khas mahal land of the Government of East Pakistan and the same was leased out to the said Paramesh Prasanna Roy by the Government on 22nd April 1924, for a term of 30 years to expire on 31st March 1954, with the right of successive renewal. Paramesh Prasanna Roy owned and possessed the said land and constructed a two storied building thereon for residential purpose. A kabuliyat by which the lease was granted has been annexed to the petition and marked Annexure A'. That the said late Mr. Mohammad Ibrahim since his purchase had been in peaceful possession of the land and the building and since his death sometime in October 1966, the present petitioners are in possession. That on 13th of February 1954, late Mr. Mohammad Ibrahim applied to the Government of East Pakistan for renewal of the aforesaid lease and the same was ultimately granted in August 1960, and the deed of lease was registered on 25th of August 1960. A copy of the said lease has been annexed and marked Annexure B'. That sometime in 1963, respondent No. 3 Additional Deputy Commissioner, Dacca started L. A. Case No. 131/62/63 by his order dated 20th March 1963, purporting to be an order under section 93‑A of the Town Improvement Act, 1953, requisitioning a part of the said leasehold land with structures thereon measuring .1275 for the Dacca. Improvement Trust Scheme "Requisition and Acquisition of land for Arterial North South Road phase No. II". The order of requisition has been annexed to the petition and marked Annexure C'. Subsequently, the Additional Special Land Acquisition officer and Authorised officer, Dacca by his order dated 19th March 1964, derequisitioned the said land and building. During the period this order of requisition was in force i e., 20‑3‑1963 to 19‑3‑1964 the petitioners' predecessors- in‑interest was not disturbed in his occupation and enjoyment of the property. I he order of derequisition has been annexed to the petition and marked Annexure D'.
On 25th of May 1965, the respondent No. 3 again requisi tioned an area of .1232 acre of the said lease hold land with the parts of structures thereon in the said L. A. Case No. 131/62‑63 for the Scheme "Requisition and Acquisition of land for Arterial North South Road as per Master Plan Phase II and development of neighbouring land for residential and commercial purpose". This order too is purported to have been made under section 93‑A of the Town Improvement Act of 1953. That in pursuance of the said order of requisition respondents took possession of the requisitioned land on 1st of June 1965, and after demolishing the pucca servants' quarter, garage and pucca boundary wall amalgamated and merged the land with the North South Road which was then under construction. That a part of the main two storied building from its Western side was affected by the said order of requisition and required to be demolished; that on 31st August 1965, Mr. Madani, respondent No. 4, the then Chairman of Dacca Improvement Trust visited the site and met late Mr. Mohammad Ibrahim and offered him definite terms with regard to payment of compensation for the land under requisition and also offered terms of an agreement for compensat ing the predecessor of the petitioners for demolition of part of the main two storied building from the western side and after considering the offers and proposals of respondent No. 4 the late Mr. Mohammad Ibrahim wrote a letter dated 1st September 1965, to respondent No. 4 in confirmation and acceptance of the aforesaid offer and proposal and enumerating the terms offered by the said respondent No. 4 and accepted by him. The letter has been quoted in its entirety in the petition in para. 12 of the petition which reads as follows: ‑
"G. A. Madani, Esqr., S. Q. A., C. S. P., Chairman, Dacca Improvement Trust, Dacca.
Dear Mr. Madani.
As per our talk on the 31st August 1965, I write to say that I agree to your proposal that for the damage to be caused to my house at 11, Purana Paltan by the present alignment and construction of the North‑South Road, the D. I. T. by way of compensation: ‑
(1) will pay me Rs. 1,00,000.00 (rupees one lakh) only in cash. The amount shall be paid forthwith ; and
(2) will remodel the house at 11, Purana Paltan at their cost so as to enable me to reside there. It is understood that in remodelling the house D. I. T. will also provide for such extra architectural balance and unity of the house ; and
(3) pending remodelling of the house D. I. T. will provide me with a comparable and suitable residence in a decent locality of which the rent will be borne by D. I. T. and
(4) the cost of shifting to the residence to be provided to me and back should be borne by D. I. T. I would request
(i) That the remodelling should be done according to design made or agreed to, on my behalf, by my Architext Mr. Mozaharul Islam.
(ii) That before breaking any portion of the building covered by the Road alignment care and necessary action should be taken so that the electric, sewarage and water connection so far as the unaffected portion of the house is concerned, are not disturbed.
Yours Sincerely,
(Sd.) M. IBRAHIM."
A true copy of this letter has also been annexed to the petition and marked Annexure F'.
Thereafter, it is the case of the petitioners, that, by his order dated 14th of October 1965, being Memo. No. 6766(9)‑Rev. IX/65‑66, the Additional Deputy Commissioner (Revenue) Dacca started a case for resumption of part of Khas Mahal Plot No. 11, Purana Paltan (which is the lease‑hold property of late Mr. Mohd. Ibrahim), purporting to resume '1200 acres of land without giving any other specification and description sufficient to identify ‑the land which was to be affected by the purported resumption. The said order did not also mention or specify the structures to be affected thereby. Late Mr. Md. Ibrahim filed written objection to the said resumption proceeding on the ground that the said order of resumption is void, illegal and without jurisdiction. True copies of the said notice of resumption and the written objection of late Mr. Mohammad Ibrahim have been annexed to the petition and marked Annexure G. & H. respectively. That late Mr. Mohammad Ibrahim was in the meantime pressing Dacca Improvement Trust for finalisation of payment of compensation before they started demolishing the western portion of the two storied building according to already settled and accepted terms, which can be found in the letter of late Mr. Mohammad Ibrahim dated 1st September 1965. That on the categorical and definite assurance and promise given to late Mr. Mohammad Ibrahim as regards payment of compensation of the land and structures affected by the said order of requisition and acquisition by Mr. Madani the late Mr. Mohammad Ibrahim ultimately agreed to vacate the house. Thereafter he removed himself with his belongings and family to a house rented in Dhanmondai Residential Area with effect from 1st November 1965.
Respondent No. 2 then sent a cheque to late Mr. Mohammad Ibrahim for Rs. 2,100.00 being made out in the name of the owner of the premises which was rented for his residence in terms of the agreement After the house was vacated by late Mr. Mohammad Ibrahim and his family, respondent No. 2 took possession of the portion of the requisitoned portion of the building. Thereafter late Mr. Mohammad Ibrahim continued pressing for payment of compensation and respondent No. 4 told him on the 4th of November 1965, that he had ordered his office to pay the compensation money to him with respect to the land and structures affected by the said order of requisition and acquisition. Being so assured late Mr. Mohammad Ibrahim did not object to the demolition of the western portion of his two storied building. Finding that the compensation money was not being paid late Mr. Mohammad Ibrahim talked to respondent No. 4 who asked him to collect the compensation money on 13th November 1965. On the 13th November 1965, the petitioner No. 2 was sent by his father late Mr. Mohammad Ibrahim to respondent No. 4 to receive the payment of compensation money. When the respondent No. 4 in presence of the petitioner No. 2 took his officers to task for not paying the compensation to late Mr. Mohammad Ibrahim, the officer it is stated handed over two papers to respondent No. 4. One of these papers is a copy of clause 10 of the standard form of long term lease and the second is the Board of Revenue's letter dated 16th December 1963, being Memo. No. 1757‑V‑246/63. When the petitioner No. 2 returned with these two papers to late Mr. Mohammad Ibrahim, he wrote a letter on 20th November 1965, to respondent No. 4. This letter has been quoted in its entirety in the petition at page "14‑18" and a copy thereof has been annexed to the petition and marked Annexure J'. The Board's letter dated 16th December 1963 which was the second document that the petitioner No. 2 brought back from the office of the respondent No. 4 has been annexed to the petition and marked Annexure I'. That on 22nd November 1965, the Additional Deputy Commissioner, Dacca, passed his order in Resumption Case No. 4. of 1966 in respect of that portion of the leasehold land of the petitioners which was covered by the Resumption order. The Additional Deputy Commissioner, Dacca is purported to have resumed the said quantum of land namely, .1200 acres out of the leasehold: land of the petitioner at 11, Purana Paltan, which is the land in question. Thereafter on the 15th of December 1965, respondent No. 2 paid to said late Mr. Mohammad Ibrahim, predecessor- in‑interest of the petitioners a sum of Rs. 40,000 by a crossed cheque towards the compensation for western portion of the main two storied building which was affected by the said order of requistion and acquisition. On the 18th April 1966, later Mr. Mohammad Ibrahim addressed the letter to the Chairman. Dacca Improvement Trust wherein he referred to the terms contained in his letter dated 1st September 1965, asking for payment of compensation as agreed between him and respondent, No. 4. A true copy of this letter has been annexed to the petition and marked 4nnexure L'. Then it is stated, that late Mr. Mohammad Ibrahim, thereafter sometime in July 1966, had a heart attack. Although he survived this attack he did not fully recover and ultimately breathed his last on 13th September 1966. In that state of his health, it is stated, late Mr. Mohammad Ibrahim could not any more pursue the matter for realization of the compensation. Thereafter the present petitioners on the 6th of January 1967, sent a notice to respondents 1, 2 and. 3, demanding justice and requesting them to assess and pay compensation for the land and the other structures requisitioned and acquired under the provisions of the Town Improvement Act by the said order of requisition and acquisition dated 5th May 1965. A true copy of the notice of demand has been annexed to the petition and marked Annexure M'. It is then stated by the petitioners that their predecessor‑in‑interest late Mr. Mohammad Ibrahim never agreed to the purported resumption and as such asserted, that had not possession of the land been taken under compulsory and coercive procedure of the Town Improvement Act, the said predecessor‑in -interest of the petitioners would not have delivered up possessions 'of the land under the resumption proceeding, until the Govern ment had established its right to resume the land' and legality, and validity of such action in a proper Court of law: It is.. further stated by the petitioners that an unidentified indefinite and unascertained .1200 acre of land of Khas Mahal Plot No. 11 to, be resumed has been admitted to be equated. with the land which was acquired under the Town Improvement Act and taken possession of under the said requisition and acquisition proceeding. The petitioners have also alleged mala fide on the part of the respondents. They have challenged the resumption proceedings under which the land was sought to be taken over by the respondents and stated that having taken recourse to the Town Improvement Act for taking possession of a part of the lease‑hold land, the respondents have now fallen back on the deed of lease for resuming the selfsame land to avoid the payment of compen sation, which they are bound to give under the Town Improve ment Act and as such the entire action of the respondents is mala fide, motivated and without jurisdiction, void and illegal.
Upon these facts and the reasons stated above as well as on the ground of resumption proceedings being violative of Right No. 14 of the Fundamental Rights as embodied in the constitu tion, the petitioners have filed the present petition praying for a writ of mandamus on the respondents.
Respondent No. 4 Mr. G. A. Madani although served with the rule has not appeared. He is no more the Chairman, Dacca Improvement Trust.
Respondent No. 2 Dacca Improvement Trust and respondent No. 3, Additional Deputy Commissioner, Dacca have appeared and filed separate affidavits‑in‑opposition.
In the affidavit‑in‑opposition filed by respondent No. 2 which he has sworn by one Nawab Ali Assistant Valuation Officer, Dacca Improvement Trust, most of the allegations made by the petitioners except those which are matters of record have been denied. He has categorically denied the fact of any agreement or contract between late Mr. Muhammad Ibrahim, predecessor- in‑interest of the petitioners and the Dacca Improvement Trust with regard to payment of compensation for the land and the building as claimed by late Mr. Muhammad Ibrahim in his letter dated 1st September 1965. He has in para. 6 of the affidavit‑in‑opposition stated that it is not known to the respon dent No. 2 as to what actually transpired between late Mr. Muhammad Ibrahim and Mr. Madani, the then Chairman, Dacca Improvement Trust, but there is no official record with respondent No. 2 showing any such agreement as claimed by the petitioners in terms of letter dated 1st of September 1965, alleged to have been written by late Mr. Muhammad Ibrahim. Respondent No.. 2 has admitted to this extent that late Mr. Muhammad Ibrahim might have given certain proposals to Mr. G. A. Madani and Mr. Madani might have accepted some of these proposals, but no official record of that has been kept nor any proper agreement has been entered into by the respondent No. 2 with late Mr. Muhammad Ibrahim. It is further stated in this affidavit‑in‑opposition that Dacca Improvement Trust went out of its way to accommodate the petitioner's predecessor‑in‑interest late Mr. Muhammad Ibrahim in a self‑contained bunglow for five months at a rental of Rs. 700 per month pending remodelling of his Purana Paltan residence and reconstruction of the boundary wall which cost the Dacca Improvement Trust Rs. 7,136 in all. In addition to that the Dacca Improvement Trust paid Rs. 40,000 to late Mr. Muhammad Ibrahim as compensation for the structures affected by the requisition. He has categorically denied that the Dacca Improvement Trust offered any terms to late Mr. Muhammad Ibrahim and as such there is no question of such terms having been accepted by late Mr. Muhammad Ibrahim. Further he has denied that any terms were given to late Mr. Muhammad Ibrahim as regards the payment of compensation for the land and structures as alleged in the petition.
With regard to the allegations of mala fide arbitrariness, illegality or discrimination, respondent No. 2 has given a categorical denial. It is asserted by respondent No. 2 that late Mr. Muhammad Ibrahim was paid fair and adequate compensation for the structures affected by the order of requisition and acquisi tion and he accepted the same and if at all any discriminations was done in the present case, it was certainly done in favour of late Mr. Muhammad Ibrahim. This extra favour done according to respondent No. 2 was in the shape of payment for house rent for 5 months, reconstruction of the boundary wall, and remodell ing of the house at the cost of the Dacca Improvement Trust over and above the compensation of Rs. 40,000 paid for the structures involved.
The affidavit‑in‑opposition filed on behalf of the respondent No. 3 has been sworn by one Nazrul Islam, Revenue Deputy Collector, Dacca. In this affidavit‑in‑opposition, respondent No. 3 has controverted only those facts which concerned respon dents 1 and 3. It is stated that there was no difficulty for the predecessor‑in‑interests of the petitioners to understand from the requisition order the quantum of land that was sought to be acquired from his lease‑hold premises No. 11, Purana Paltan. It is asserted in para. 12 of the affidavit‑in‑opposition of respondent No. 3 that the land in question is khas mahal land of the Govern ment and the Government has a right to resume the land if and when required by the Government for public purpose as per terms and conditions of the lease deed and the lessee has no right to claim any compensation for the land and as such he cannot claim any compensation for the land. It is further stated in the said paragraph that the requisition and acquisition proceeding started on 25th May 1965, was cancelled as the same was started inadvertantly by the Additional Deputy Commissioner (Revenue), Dacca and no sooner the mistake was detected resumption proceedings were initiated as per terms and conditions of the lease deed. It was further stated that the petitioners have got adequate alternative and effective remedy under the Town Improvement Act for the reliefs claimed in this petition and as such the present petition under Article 98 of the Constitution is not maintainable. It is further submitted by the respondent No. 3 that the right of the petitioners is based on the contract i.e. the lease deed and it must be governed and controlled by the terms of the said docu ment, one of which is the right of the lessor to resume the land when needed for public purpose. Last of all respondent No. 3 in para. 24 of the affidavit‑in‑opposition submitted that the petitioner having relied on documents in the nature of lease‑deeds and contract, various correspondence which require to be proved for ascertaining the respective rights and obligations of the parties, the petitioners are not entitled to any relief under Article 98 of the Constitution.
Before we proceed further we would like to quote here clauses 9 and 13 of Annexure B', the lease deed dated 25th of August 1960, under which the petitioners hold the land, and the Board of Revenue's Memo. No. 1757‑V‑246/63, dated 16th Decem ber 1963, which we feel relevant for the decision of this appli cation.
"Clause No. 9 of the deed of lease.‑If the said land or any part thereof be required for Government for a public purpose, the lessee shall give up the same on demand without any claim to compensation in respect of the said demised land. If the land is required permanently the lease cases shall forthwith be determined and the lessee shall be entitled to such fair and reasonable compensation for buildings and improvements effected by him as shall be decided by the Collector. If a part of the land is required, whether permanent ly or temporarily or if the whole land is required, temporarily the lease shall not determine, but in the former case the lessee shall be entitled to proportionate reduction of rent, and in the latter to total remission of rent, and to such compensation in either case as shall be decided by the Collector.
Clause 13 of the deed of lease.‑On breach or non observance of any of the foregoing covenants, terms of conditions this lease and the tenancy hereby created may, at the option of the lessor to be signified in writing, at any time be determined, but without prejudice to any other right or remedy of the lessor that may have accrued hereunder provided that on any such determination under the provisions of this clause the lessee shall be entitled to compensation for houses erected, trees planted or other improvements made by him with the written consent of the Collector and the amount of such compensation shall be fixed by the Collector whose decision shall be final, conclusive and binding on the parties hereto".
"Board of Revenue's Memo.‑Government of East Pakistan, Office of the Board of Revenue, East Pakistan.
Memo No. 1757‑V‑246/63 Dated 16th December 1963.
From :‑S. Akhand, Esqr., E. P. C. S.,
Additional Secretary.
Board of Revenue, East Pakistan.
To : The Deputy Commissioner, Dacca.
.‑Resumption of land for the purpose of Dacca Improvement Trust.
.‑Your D. O. No. 38‑Spl. L. A. dated 23‑7‑63 to Member, Board of Revenue.
The undersigned is directed to say that the Government have been pleased to take the following decisions in the matter.
(1) The purpose of the D. I. T. should be treated to be a public purpose within the meaning of clause 10 of the Standard Form of Long terms lease of khas land for non‑agricultural purpose.
(2) Where any land can be resumed under the terms of the lease for a public purpose, the land should be resumed under the terms of the lease if required for such purpose and no proceedings for the acquisition should be taken under the Land Acquisition Act.
(3) Where any land held by a lessee under Government is required for a public purpose, but the land cannot be resumed by Government under the terms of the lease, proceedings for the acquisition of the land under Requisition or Land Acquisi tion Act will have to be started and the compensation payable in respect of the property should be apportioned between Govern ment and the lessee on the basis of the terms of the lease‑deed.
(4) Resumption under the terms of the lease should be limited to the area actually required for a particular public purpose and should not cause unnecessary hardship to the lessee and that if any such lessee propose to transfer the leasehold land, with the permission of the Deputy Commissioner accord ing to the terms of the lease, to the D. I. T. or any other like body to whom Government land can be transferred only on payment of the full market value, the Deputy Commissioner should not object to such transfer.
Entries in the latest record‑of‑rights have no presumption of accuracy and the ownership of land is determined and governed by terms of lease deed and not by entries in record‑of‑rights."
Mr. Badrul Haider Chowdhury, the learned Advocate for the petitioners in support of his case raised the following points for our consideration.
(1) That the resumption was illegal and mala fide.
(2) That assuming that the resumption was valid the peti tioners were entitled to compensation even in terms of the lease.
(3). That having taken recourse to one of the two laws avail able to respondents 1 and 3 they cannot be allowed now to fall back on the other which is less beneficial to the petitioners. Further it must be held that the respondents had given up their rights under the other‑in this case the condition of resumption embodied in the lease deed.
(4). That clause 9 of Annexure B' gives a right to compensation.
In support of his contention that the resumption proceeding was illegal and mala fide Mr. Chowdhury laid stress on the following facts, namely, that in the notice of requisition and acquisition under the Town Improvement Act of 1953, land sought to be acquired is shown to be .1283 acre which in fact was requisitioned and acquired on 1st of June 1965, when respondent No. 3 took possession of the land, but when the resumption proceeding was started the area mentioned therein is shown to be 1200 acre. Next it is stated that the purpose for which the land is required has not been mentioned in the resumption notice. Further the description of the land sought to be resumed is indefinite and the area unidentified and lastly that these resump tion proceedings could not have been resorted to after possession was taken under the Town Improvement Act and construction and re‑construction had already started. From all these Mr. Chowdhury argued that had not the respondents a mala fide intention of depriving the petitioners from their legitimate dues namely compensation as provided for under the Town Improve ment Act, under which the respondents had first sought to acquire the land they would not have resorted to resumption proceedings within six months of the order of requisition and acquisition and after taking possession of the land. What Mr. Chowdhury wanted to say is that the respondents having felt that it would not be easy for them to take possession of the land by a resumption order under the terms of lease without being challenged in a Court of law by late Mr. Muhammad Ibrahim, resorted to the Town Improvement Act for taking immediate possession of the property and thereafter to avoid payment of compensation which they were bound to pay under the Town Improvement Act, took over under the resumption proceedings.
As against this the learned Government Pleader Mr. T. H. Khan has contended that these arguments of the learned Advocate for the petitioner are wholly untenable because it has been stated in the affidavit‑in‑opposition of respondent No. 3 that there was no such mala fide intention of the respondents 1 and 3 or of the two other respondents, because under the lease deed itself, the lessor‑respondent No. 1 had the right to resume‑such quantum 'of land which was required for a public purpose and in that case there was no question of payment of compensation for the land so resumed. According to the learned Asstt. Government Pleader 'the requisition and acquisition proceedings under the Town Improvement Act were started due to a bona fide mistake on the part of the officers of respondent No. 1 in the department of land acquisition. The mistake according to the learned Government Pleader was that the officers concerned were not careful enough to find out whether the land of 11, Purana Paltan was khan mahal land and was held by late Mr. Muhammad Ibrahim under lease from Government and also if there was provision for resumption in the lease deed. They were further negligent in not following the instructions contained in the Board of Revenue's letter dated 16th December 1963, wherein clear directions were given to respondent No. 3 with regard to rights and obligations of the lessor and lessee in respect of the khas mahal lands. The order of Additional Deputy Commissioner (Revenue) in the resumption proceeding has been annexed to the petition and marked Annexure K'. From that the learned Asstt. Government Pleader showed that there was bona fide mistake on the part of the respondent No. 3 and the officers of his department in initiating the proceed ings under the Town Improvement Act.
Mr. Badrul Haider Chowdhury has not for a moment con tended that the land in question was not acquired for a public purpose. It is rather his case that because it was required for a public purpose, late Mr. Muhammad Ibrahim did not as a responsible citizen of the State object to part with that portion of the lease hold land which was actually needed for the widening of the north south Arterial Road. Upon a reading of the affidavits of the parties and after considering the arguments of the learned Advocates., we are inclined to take the view that the petitioners have not been able to establish a case of mala fide against the respondents. But we must observe that the officers of the Government who are responsible for this type of work must be sufficiently educated, alert and mindful in the performance of their duties, because their actions in such matters affect the rights of the citizens. The discrepency in the two notices with regard to quantum of land might l.‑ad to very serious consequences. It might be that one quantity might have affected the whole building and other might not have touched the main building at all. Fortunately in the present case, from the very beginning, it was clear to both the Requiring Body and late Mr. Muhammad Ibrahim as to what quantity of land was required to be taken and which portion of the main building and which other structure will be affected. We do not know what actions have been taken by the authorities concerned against the officers who committed such mistakes or what actions they propose to take against the defaulting officers, but we cannot help observe that the Administration should be more careful in dealing with the rights of the citizens in matters like this.
Next point urged by the learned Advocate for the petitioners takes us to lease document dated 25th August 1960. We have already quoted relevant two paragraphs of Annexure B', but in the view we propose to take in this case we do not like to go into detailed discussion of Annexure B' which might ultimately prejudice the petitioners' case in future action. Whether on resumption, the petitioners are entitled to compensation in terms of lease or not depends on the interpretation of Annexure B'. We do not think that we should do so to prejudice the parties' respective cases. Sitting in writ jurisdiction we cannot also take upon ourselves the duties of a civil Court within its ordinary original civil jurisdiction.
In this connection we may note that Mr. Badrul Haider Chowdhury has conceded that whether the power of resumption is available to the respondent No. 1 under terms of the lease is certainly dependent upon the interpretation of the document.
Mr. Chowdhury contended that the Additional Deputy Commissioner (Revenue) by exercising the powers under the Town Improvement Act of 1953 for requisition and acquisition was undoubtedly acting as agent of respon dent No. 1. His actions must certainly bind the principal, i.e., respondent No. 1 and if that be so, then the Additional Deputy Commissioner, Dacca who started the resumption proceeding also as an agent of respondent No. 1 could not start the resumption proceeding, because as an agent of the same principal he could not have taken different action in the same mat ter. His action in acquiring the land under the Town Improve ment Act had already committed his principal respondent No. 1 and he could not again act differently in violation of that commit ment and that too to the detriment of the interest of the affected party. In support of his contention Mr. Chowdhury relied on a decision of King's Bench Division in the case of Robertson v. Minister of Pensions ((1948) 2 A E R 767). We have considered the decision in the light of the submissions of Mr. Chowdhury. There is no doubt that it has been held in that case that action taken by one Department of the Crown binds the Crown and through the Crown binds other departments of the Government because all the departments are but the agents of the Crown. But in the facts of this case we do not think that this case is helpful to Mr. Chowdhury. In the cited case the facts were that the War office had given a decision that Robertson's disability was due to war. This decision of War office was based on certain medical reports. On the basis of this decision of the war office, Robertson prayed for pension from the Minister of Pensions. The Minister of Pensions took the view that Robertson had to establish the fact with him as to whether his disability was attributable to war which would entitle Robertson to pension claimed by him and ultimately rejected the prayer of Robertson which forced him to go to the Court of law. Denning, J. sitting singly decided, that the war Office which was the proper department for giving opinion in the matter, having given it in favour of Robertson, it amounted to a becision by the Crown and the same was binding on the Ministry of Pensions which was but another agent of the Crown. The question of time lag between the giving of opinion by the War office and the demand by the Minister of Pensions upon Robertson to prove by medical evidence the causes of his disability, as well as the loss of the X‑ray plates which were examined by the War Office which formed the basis of its opinion in favour of Robertson weighed heavily with the learned Judge in that case. In the present case such are not the facts. There is no question of time lag here. There is no controversy with regard to the land being required for a public purpose. It is further found from the evidence that the resumption proceeding was started within 41 months of the acquisition proceedings initiated under the Town Improvement Act and we have already found that there is no mala fide on the part of the respondents to have started the resumption proceeding in preference to the Acquisition D proceeding. Even if it is conceded that the decision in Robertsons case supports the contention of Mr. Chowdhury, yet, we cannot give him any relief, as the question of apportionment of compensa tion between the lessor and the lessee is a point vital and essential to be decided upon a proper construction and interpretation of the lease deed. As such we cannot straightway sitting in the writ Jurisdiction say that the petitioners are entitled to the compensation for the land.
The 4th point of Mr. Chowdhury that even if a part of the land is acquired, his clients are entitled to compensation under clause 9 of Annexure B' is a question again of interpreta tion of the document and raises controversial questions of fact. In view of what we have already observed in dealing with the point No. 2 of Mr. Chowdhury, we refrain from saying anything on the merits of his arguments on this point also. In this connection Mr. Chowdhury also relied on two other cases reported in 7 A C 745 and A E R 1943 Bom. 36.
Mr. Abdur Rahman Chowdhury, the learned Advocate for the respondent No. 2 contended that it is not a case of no assessment. It is a case whose quantum of assessment is to be decided. The Dacca Improvement Trust has already paid Rs. 40,000 as compensation for the structures and has also spent more than 7,000 for reconstruction and remodelling of the boundary wall and the main building. Over and above this, they have paid for accommodation of the petitioners and their predecessor‑in‑interest for 5 months in a house rented for the purpose. There is no complaint from the petitioner's side with regard to nature of accommodation provided by the Dacca Improvement Trust. Therefore Mr. Abdur Rahman Chowdhury submitted that the petitioners do not in the facts of the present case have any further claim for compensation for" the structures. If they have any grievance their remedy does not lie under Article 98 of the Constitution but is available under the Town Improvement Act. He therefore, submitted that there being an alternative and adequate and efficacious remedy available to the petitioners, under an Act meant for the purpose they were not entitled to a writ from this Court. He has pointed out the prayer No. 1 in the petition which is in the following terms:
"A Rule nisi be issued on the respondents to show cause why they should not be directed to assess and pay compensation under the provisions of the Town Improvement Act, 1953, for the land and structures of the petitioners requisitioned and acquired in L. A. Case No. 131/1962‑63 by order dated 25‑5‑65 under the said Act."
Had no compensation been paid to the petitioners or for that matter to their predecessor‑in‑interest by the respondent No. 2 for the structures affected by acquisition of the land for the road, then possibly the petitioners could have asked for mandate from this Court upon respondent No. 2 or respondents 1, 2 and 3 to assess the compensation for the same. According to the respondents, adequate compensation has been paid to the petitioners' predecessor‑in‑interest for the structures.
This Court sitting in writ Jurisdiction cannot assess the quantum of compensation and cannot also issue a mandate to fix the same at a particular figure.
Secondly Mr. Abdur Rahman Chowdhury contended that by this process the petitioners are trying to enforce their contractual right under Annexure B' which needs interpretation, construction, and taking of evidence and a thorough enquiry into the matter. Next Mr. Abdur Rahman Chowdhury submitted that the peti tioners have not cited in the petition any illegality committed by any of the first three respondents in resorting to the resumption proceeding.
Lastly he submitted that this application cannot succeed on the ground of delay. The resumption proceeding was started on 14th October 1965, and the present application has been filed in February 1967. This long delay of nearly 16 months disentitles them of any relief in this Rule.
There is no doubt that the evidence is needed to decide the question of agreement between late Mr. Mohammad Ibrahim and Mr. G. A. Madani, the then Chairman of the Dacca Improvement Trust (respondent No. 4). Mr. Madani, as observed, has not appeared in the case. Respondent No. 2 has denied any agreement between it and late Mr. Mohammad Ibrahim and the petitioners have not been able to produce a single piece of paper to show that either respondent No. 2 or respondent No. 4 had agreed to the terms contained in the letter of late Mr. Mohammad Ibrahim dated let September 1965. If it is assumed that the terms contained in the letter of late Mr. Mohammad Ibrahim dated 1st September 1965, were agreed to by Mr. Madani, than also that will not be of any help to the petitioners as the Chairman cannot bind the respondent No. 2 by his commitments. Respondent No. 2 is a Statutory Body and it is evident from the provisions of sections 26 and 27 of the Town Improvement Act of 1953, that any agreement or contract between respondent No. 2 and another must be entered into by the Board of Trustees of respondent No. 2 and certain of the contracts cannot be effective and cannot even be entered into by respondent No. 2 unless previous sanction for that has been obtained from the Provincial Government. In the present case nothing not an iota of evidence has been produced before us to show that the Board of Trustees of respondent No. 2 has agreed to any terms or entered into any contract with late Mr. Mohammad Ibrahim far less, the terms embodied in his letter dated 1st September 1965. In these circums tances it will be necessary to go into the question how far the Chairman, Dacca Improvement Trust could bind the respondent No. 2 by his promise if at all he had made any.
There is substance in the contention of Mr. Abdur Rahman Chowdhury that this case involves complicated questions of fact and Mr. Badrul Haider Chowdhury as already stated, has conceded that the documents need interpretation.
There has been no agreement between predecessor‑in‑interest of the petitioners and the Additional Deputy Commissioner, Dacca who had passed the order of requisition with regard to any specific terms for compensation to be paid to the lessee and as such he cannot be saddled with the terms embodied in the letter of late Mr. Muhammad Ibrahim‑dated 1st September 1965.
There is also substance in the contention of Mr. Abdur Rahman Chowdhury that it is not a case of no assessment, but is a case where the quantum of compensation has to be decided upon, evidence,
Thus it will be found that various complicated and contro versial questions of facts relating to title, agreement and quantum of compensation are involved in the present case which need taking of oral evidence and consideration of large number of documentary evidence which cannot, in our opinion, be resolved only on affidavits. On the point as to whether alternative, adequate, effective and speedy remedy is available to the petitioner we can only say that there is alternative adequate, and effective remedy available to them under the Town Improvement Act of 1953. The decision of our Supreme Court in the case of Anjuman‑e -Ahmadiaya v. D.C., Sargodha (P L D 1966 S C 639) does not apply to the facts of this case. In that case the facts were completely different from those in the present one. In that case no adequate expeditious alternative remedy was available; whereas in the present case such alternative remedy is available under the Town Improvement Act of 195.3. It has been rightly observed by His Lordship Hamoodur Rahman, J., in the above mentioned case that even under the lease deed there was provision for alternative remedy which the authorities should have resorted to prior to issuing the cancellation order, which was issued without any lawful authority because after the lease was completed it could not be cancelled by an executive order without the intervention of a proper Tribunal to establish that there was a breach of terms of the contract which would enable the lessor to cancel the lease. In the present case the resumption proceeding was formally drawn up, notices were issued, objections were invited and the parties were heard and the order was passed by the Additional Deputy Commissioner (Reve nue, Dacca, resuming the land for a purpose which is undoubtedly a public purpose and resumption for that purpose is permissible even under the terms of the lease. Therefore it cannot be said that the resumption has been done by executive order which would entitle the petitioners to invoke the aid of the above mentioned decision.
The petitioners in ground No. 7 of the petition have raised the point of impugned order of resumption being hit by Right No. 14 of the Fundamental Rights embodied in the Constitution Right No. 14 of the Fundamental Rights is one of those rights which has been suspended since 6th of September 1965, as such the petitioners are not entitled to any relief on that count. Apart from that we do not see as to how the provisions of Right No. 14 of the Fundamental Rights can be applied to the facts of the present case. If it could be held that the land in question was M acquired under the Town Improvement Act of 1953, possibly the petitioners could have invoked the provisions of Right No. 14 of the Fundamental Rights, if further they could show that the land has been taken away without payment of any compensation. The land in the present case has been resumed in terms of the Deed of lease, and as such we do not think that the petitioners could successfully invoke the provisions of Right No. 14 of the Fundamental Rights, if, even the same were not suspended.
For the reasons stated we are of the view that the petitioners are not entitled to a writ of mandamus from this Court.
In the result this application fails and the rule is discharged, but in the special facts of this case we do not award any costs to the respondents.
Mr. Badrul Haider Chowdhury prayed for a certificate under Article 58 of the Constitution. But since we are of the view that no substantial question as to the interpretation of the constitution is involved, the certificate prayed for, is refused.
.‑I agree.
A. H.
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