High Court Division · Special Original Jurisdiction
Dr. Nozmus Sakib v Bangladesh and others
Writ Petition 8141/2014 · Decided 30 April 2026
In 1977 the Deputy Commissioner, Sylhet started a land acquisition case for 3.71 acres in Sunamganj for a wireless station. The land was owned equally by three groups of recorded co-sharers, but notices were served on, and compensation paid to, only two of them. The petitioner, an heir of the third group, claimed 1.2366 acres still in his family's possession; his 2012 application for release was refused in 2014 with an offer of compensation. The respondents relied on completed acquisition and a final gazette published in 2017. The High Court Division first treated the Rule as relating to L.A. Case 48/1976-77, the number having been mistyped as 46. It then found that the petitioner's predecessors were not served notice, were omitted from the award book and had not been paid, and that the gazette came about 40 years late without exclusive possession. These breaches deprived them of the chance to object and seek arbitration. The inclusion of the petitioner's share was declared unlawful, with liberty to acquire afresh.
- Q1
Whether the acquisition of the petitioner's share of land was lawful where his predecessor, a recorded co-owner, was never served notice, was omitted from the award book and was not paid compensation.
- Q2
Whether the Court could treat a Rule issued with a wrong land acquisition case number as relating to the correct case.
- A Rule issued with a clerically wrong land acquisition case number may, on the Court's own motion, be treated as issued in respect of the correct case where the petition, annexures and the respondents' concessions show the error.
- Acquisition of a recorded co-owner's share is unlawful where no statutory notice was served on him, his name was omitted from the award book and his compensation was not deposited.
- Omitting a recorded owner from the acquisition process deprives him of the statutory opportunity to object, have his claim adjudicated and seek arbitration on compensation, causing serious prejudice.
- Decisions in which acquisition was upheld despite procedural irregularity were distinguishable where, as here, the recorded owners were wholly excluded and the gazette followed some 40 years later without exclusive possession.
- The inclusion of 1.2366 acres of the petitioner's share in the acquisition was declared without lawful authority, leaving the respondents free to acquire the land afresh in strict compliance with law.
the petitioner and his predecessors were unlawfully deprived of the opportunity to submit objections, participate in the acquisition proceeding, seek proper adjudication of their claims, and avail the statutory remedy of arbitration in relation to compensation.
In the court’s own words.
Writ Petition 8141/2014, as published by the Supreme Court of Bangladesh. 36 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION)
3WRIT PETITION NO. 8141 of 2014
Present
4Mr. Justice Bhishmadev Chakrabortty
-And-
5Mr. Justice Abdur Rahman
6IN THE MATTER OF:
7An application under Article 102 of the
8Constitution of the People’s Republic of
9Bangladesh
-And-
10IN THE MATTER OF:
11Dr. Nozmus Sakib
…. Petitioner
-versus-
12Bangladesh and others
…. Respondents
13Mr. Sk. Mohammad Morshed, along with Md.
14Anisul Hasan, Advocates
…for the petitioner
15Mr. Mohammad Imam Hossain, Deputy Attorney
16General with Ms. Mahbubua Tasnim Akhi,
17Assistant Attorney General
….for the Respondent 3
18Mr. Pratikar Chakma, Advocate
…..for the respondent 6
19Date of Hearing: 19.04.2026, and 20.04.2026 A.D.
20Date of Judgment: 30.4.2026 A.D. Thursday,
17 Boishakh 1433 B.S.
21Abdur Rahman, J:
22This Rule Nisi, at the instance of the petitioner, was issued on an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, upon the respondents to show cause as to why the inclusion of 1.2366 acres out of 5.71 acres of land of the petitioner situated under Mouza Dakkhin Kamrup Dolong. J.L. No. 208, Police Station and District-Sunamgonj in L.A. Case 46/76-77 situated under Mouza-Dokhin Kamrup Dolong, J.L. No. 208, Police Station- Sunamgonj, bearing Dag No. 1241 to the area of 3.71 acres, so far as it relates to the share of the petitioner in respect of 1.2366 acre of land still under the possession of the petitioner shall not be declared to have been done without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
23Eodem tempore, this Division passed an order directing the parties to maintain the status quo as to possession and position of the property in dispute for 6 (six) months, which
was thereafter extended from time to time, the last extension being for 1 (one) year on 27.02.2020.
24The gravamen of facts leading to issuance of this Rule Nisi in brief are that the Deputy Commissioner and Land Acquisition Officer, Sylhet vide his order dated 07.02.1977 initiated the L.A. Case 48/1976-77 for acquisition of the land under Mouza Dokhin Kamrup Dolong, J. L. No. 208, Police Station-Sunamgonj, bearing Dag No. 1241 to the area of 3.71 acres, so far it relates to the share of the petitioner in respect of 1.2366 acre of land still under the possession of the petitioner. The land in question, along with other land, recorded in S.A. Khatian No. 154, belonged to 3(three) groups of owners, namely- (i) Abul Hasan Chowdhury, (ii) Azmon Ali, and (iii) Emran Ali, and all of them had an equal share in plot No. 1241. The acquisition proceeding was, in fact, conducted against two groups of owners, namely Azman Ali and Emran Ali, as the notices were served upon them, and they made their representations in the acquisition proceeding and received compensation. No notice of acquisition or delivery of possession was ever served upon the petitioner’s predecessor, who, along with the petitioner and co-sharers, remained in
continuous possession of the land and paid taxes thereon. Out of the total land, the requiring body (Respondent No.1) constructed office and residential buildings over 2.50 acres on the western side, while the remaining 1.21 acres of land on the eastern side has been possessed by the petitioner as a paddy field.
25Thereafter, on 09.07.2012, the petitioner and his other cosharers filed an application to the respondent 3 for releasing their land from the acquisition proceeding. Pursuant to an order dated 05.08.2012, a local inspection confirmed the said possession. However, by order dated 11.03.2014, Respondent 5 refused release of the land and directed acceptance of compensation. The order sheet further records that the petitioner’s predecessors were neither included in the compensation roll nor paid any compensation thereto, and no notice of acquisition was served upon them. Then the petitioner, finding no other equally efficacious remedy but to file this application, invokes writ jurisdiction.
26Conversely, the respondent 3 entered appearance and filed an Affidavit-in-Opposition, contending, inter alia, that the initiation of L.A. Case 48/1976–77 for the acquisition of land
appertaining to Mouza Dakhin Kamrup Dolong, J.L. No. 208, P.S. Sunamganj, comprising Plot 1241 under Khatian 154, measuring 3.71 acres, was duly and lawfully undertaken. However, it is emphatically denied that the petitioner has any right, title, or possession over the said land. It is further stated that the land in question has long been in the actual possession of the Executive Engineer, Bangladesh Telephone and Telegraph, Sylhet, and was subsequently handed over for the construction of the Pagla Wireless Office. At present, the said Wireless Office is fully operational in the building constructed thereon. As such, the claim of the petitioner regarding possession was wholly misconceived, baseless, and devoid of any legal foundation, inasmuch as the petitioner does not hold any ownership interest in the said land.
27Moreover, the inquiry report submitted by the concerned officer unequivocally confirms that possession of the acquired land measuring 3.71 acres was duly delivered to the Telephone and Telegraph Authority. The petitioner was duly requested to receive the compensation amount vide Office Memo No. 52, dated 11.03.2014. Subsequently, C.C. Case 01 of 2014 was initiated for the recovery of Tk. 4,020/- from the successor of
late Mr. Azmal Ali, and the said amount was refunded through Treasury Challan No. 11 dated 12.03.2015. It is also worth mentioning that the surveyors’ inquiry report did not support the petitioner’s claim of possession; rather, it merely records the respective claims of both parties, namely the petitioner and the representatives of the Pagla Wireless Office, without affirming possession in favor of the petitioner. Additionally, all statutory provisions and due procedures were meticulously followed in the acquisition process. The Government lawfully took possession of the land upon payment of compensation to the rightful owners and thereafter transferred the same to the Telephone and Telegraph Authority, under whose supervision the Wireless Office is presently functioning. Consequently, the Rule is devoid of merit and thus liable to be discharged with costs.
28Correspondingly, respondent 6 (added respondent), upon entering appearance, filed an Affidavit-in-Opposition, averring, inter alia, that the land in question, measuring 3.71 acres under Dag No. 1241 of Mouza Dokhin Kamrup Dolong, Sunamganj, was lawfully acquired on 20.01.1977 in L.A. Case 48/1976–77
for the establishment of a Wireless Station under the then Bangladesh Telegraph and Telephone Board (T&T), Sylhet (subsequently merged into Bangladesh Telecommunication Company Ltd.—BTCL). Pursuant thereto, compensation was duly paid by the requiring body through the Deputy Commissioner, Sylhet, and possession of the acquired land was formally handed over to T&T/BTCL, whereafter respondent 6 came into lawful ownership and possession, erected structures, and demarcated the boundaries, while regularly paying government rent/taxes.
29It is further contended that the recorded owners received due compensation. A Title Suit, being No. 38 of 1977, instituted by one Kutub Uddin and others seeking a declaration of title, was subsequently dismissed for default due to nonprosecution by the learned Subordinate Judge, 1st Court, Sylhet, who, by order dated 15.05.1979, further directed disbursement of the remaining compensation to the recorded owners (Annexure-F). In compliance therewith, the Land Acquisition Officer, Sunamganj, by communication dated 11.03.2014, decided to pay outstanding compensation for
1.2367 acres to the recorded owners (Annexure-G). However, the petitioner, after an inordinate delay, filed an application on 09.07.2012 before the Deputy Commissioner, Sunamganj, seeking release of the land, which, upon inquiry, was found untenable, the Surveyor’s report dated 01.10.2012 confirming prior payment of compensation to the lawful owners. Subsequently, respondent 6 repeatedly requested gazette publication of the acquired land, which culminated in Gazette Notification dated 17.01.2017 under section 5(7) of the (Emergency) Requisition of Property Act, 1948. In the aforesaid premises, the petitioner has no subsisting right or entitlement to any relief in writ jurisdiction, the claim being hopelessly barred by limitation and devoid of merit; accordingly, the writ petition is not maintainable in law, and the Rule is liable to be discharged.
30This is how the matter has been placed before us for the disposal of the instant Rule in its quintessence.
31Mr. Sk. Mohammad Morshed, the learned Sr. Counsel, appearing for the petitioner submitted that from the record of the acquisition proceeding and subsequent report of the local
inspection it appears that no notice was issued upon the predecessor of the petitioner who was the recorded owner of the land, no compensation roll was prepared nor any compensation was given to him, and it further appears that the petitioner owned the land, thereby meaning that the land in question was not handed over to the requiring body, and therefore the entire acquisition proceeding, so far it relates to the land-in-question, is being held without complying the law and has never been acted upon, and therefore the acquisition proceeding relating to the land in question is liable to be declared to have been done without lawful authority and is of no legal effect.
32Learned Counsel has further submitted that the acquisition proceeding was deemed to be initiated under the Land Acquisition Act, 1894 and section 4 of the Act says about publication of preliminary notification and as well as marking of the land which is going to be acquired and in the instant case no such publication as well as marking was done in respect of the land in question and as such the acquisition of land in question is being done in violation of the statutory provision
of law and liable to be declared to have been without lawful authority and is of no legal effect.
33Learned Counsel has further submitted that in the Land Acquisition Act, 1894; it provides that after issuing preliminary notice and hearing objection a final notice is to be served and after awarding compensation the collector shall take over the possession of the land under the provision of Section 16 of the said Act and only after taking over possession under section 16 of the Act, the land shall be vested absolutely in the Government free from all encumbrances and in the instant case, possession of the land in question was never taken over at any point of time during the proceeding and as the petitioner and his other co-sharers have been possessing the same till now and as such the acquisition proceeding in respect of the land in question is liable to be declared to have been done without lawful authority and is of no legal effect.
34Learned Counsel for the petitioner has further submitted that the entire acquisition proceeding so far it relates to the land in question is being held illegally and on flagrant violation of law and the possession of the land was never taken over at any
point of time and over and above the authority had received the rent from the petitioner, and as such the acquisition proceeding so far it relates to the land in question is liable to be declared to have been done without lawful authority and is of no legal effect.
35Contrarywise, learned Deputy Attorney General for Bangladesh, Mr. Md. Imam Hossain (Tareq), submitted stating that the L.A. Case 48/1976–77 for acquisition of land under Mouza Dakhin Kamrup Dolong, J.L. No. 208, P.S. Sunamganj, comprising Plot No. 1241, Khatian No. 154, measuring 3.71 acres, was lawfully initiated and completed. The petitioner’s claim of right, title, or possession is emphatically denied. The land has long been in the possession of the Executive Engineer, Bangladesh Telephone and Telegraph, Sylhet, and was utilized for the construction of the Pagla Wireless Office, which is presently operational thereon. The inquiry reports confirm that possession of the acquired land was duly handed over to the Telephone and Telegraph Authority. The petitioner was asked to receive compensation by a memo dated 11.03.2014; thereafter, C.C. Case 01 of 2014 resulted in the
recovery of Tk. 4,020/-, refunded via Treasury Challan dated 12.03.2015. The survey report does not support the petitioner’s possession, but merely records rival claims.
36He further submitted that all statutory procedures were duly complied with; that compensation was paid to the rightful owners; and that possession was lawfully vested in the Government and transferred to the said Authority. He finally referred to the decision as contained in 3 BLC (1998) 330, where a Division Bench of the High Court Division, in dealing with Section 6(3) of the Acquisition and Requisition of Immovable Property Ordinance, 1982, discharged the Rule concerned. Accordingly, the instant Rule is devoid of merit and liable to be discharged with costs.
37However, Mr. Pratikar Chakma, learned Counsel for respondent 6, by an affidavit-in-opposition, submitted inter alia that 3.71 acres of land under Dag No. 1241, Mouza Dokhin Kamrup Dolong, Sunamganj, was duly acquired on 20.01.1977 in L.A. Case 48/1976–77 for the establishment of a Wireless Station of Bangladesh Telegraph and Telephone Board (T&T), Sylhet at Pagla. Compensation was paid by T&T/BTCL
through the Deputy Commissioner, Sylhet, who thereafter delivered possession to T&T/BTCL. Since then, respondent 6 has been in lawful ownership and possession, having constructed structures, demarcated boundaries, and regularly paid rent/taxes to the Government, while the original owners received due compensation.
38Learned Counsel further submitted that, after a long lapse of time, the petitioner applied on 09.07.2012 before the Deputy Commissioner, Sunamganj, for the release of the land. Upon inquiry, a report dated 01.10.2012 confirmed that compensation had already been paid by the requiring body (T&T Board) and received by the recorded owners. It was also found that Title Suit No. 38 of 1977, filed by Kutub Uddin and others, was dismissed for non-prosecution, and by order dated 15.05.1979, the learned Subordinate Judge directed payment of the remaining compensation to the recorded owners (Annexure-F). Pursuant thereto, the Land Acquisition Officer, by letter dated 11.03.2014, decided to pay compensation for 1.2367 acres to the recorded owners (Annexure-G).
39In view of the above, the petitioner is not entitled to any relief in writ jurisdiction, as the competent authority has already decided to compensate the recorded owners. The claim, having been made after an inordinate delay, is also barred by limitation; hence, the writ petition is not maintainable, and the Rule is liable to be discharged.
40He also submitted that respondent 6, after taking possession, constructed structures on the land and resisted unlawful attempts of encroachment with the assistance of the authorities, including by lodging GD and criminal proceedings. Subsequently, the land was recorded in the name of the Government (Ministry of Telegraph and Telecommunication) and finally gazetted on 17.01.2017 under section 5(7) of the Emergency Requisition of Property Act, 1948. Accordingly, the petitioner has no subsisting interests over the acquired land, and respondent 6 has been regularly paying government rent/taxes. He conclude argument by referring to decisions as contained in 61 DLR (AD) 121, regarding non-service of statutory notices upon the affected party, and another case of Indian Supreme Court, as contained in 13 SCC (2010) 98],
where Court dealt with non service of notice as contemplated under S. 9(3) of the Land Acquisition Act, 1894, and discharged the Rule concerned. Similarly, the learned Counsel prayed for discharging the instant Rule.
41Upon hearing the learned Counsels appearing for the petitioner and the respondents, and upon perusal of the writ petition, affidavits-in-oppositions, and the documents annexed thereto, it transpires that the Rule was issued concerning the inclusion of the petitioner’s 1.2366 acres of land out of the total land measuring 5.71 acres, in L.A. Case No. 46/1976–77 of Mouza Dakkhin Kamrup Dolong, J.L. No. 208, Plot No. 1241, within the acquired land measuring 3.71 acres under Police Station and District Sunamgonj.
42However, a scrutiny of Annexure-A to the writ petition and Annexure-10 to the affidavit-in-opposition unmistakably reveals that the relevant acquisition proceeding was, in fact, L.A. Case No. 48/1976–77. The question, therefore, arises as to whether the Rule Nisi requires rectification in this regard.
43In this perplex, we observed that at the time of hearing of the Rule, it was detected that the Rule had inadvertently been issued mentioning “46” instead of “48”, which appears to be nothing but a clerical inadvertence occurring in the cause title and prayer portion of the writ petition on the part of the learned Advocate for the petitioner. On careful examination of the writ petition, it is further found that the petitioner correctly mentioned L.A. Case 48/1976–77 in paragraph 4 of the writ petition (page 5), which is also fully consistent with the contents of Annexures A, E, F, G, and H annexed thereto.
44Moreover, the learned Counsels for the contesting respondents fairly conceded during the hearing that the correct acquisition proceeding is L.A. Case 48/1976–77, and the affidavits-in-opposition, together with the annexed documents, unequivocally support the said position in place of L.A. Case No. 46/1976–77. Furthermore, Section 21 of the General Clauses Act, 1897, recognizes and preserves the power of the competent authority to amend or correct clerical, accidental, or inadvertent errors. It is well recognized in law that the power to issue notifications, orders, rules, or bye-laws carries with it the
concomitant authority to supplement, alter, modify, amend, or rescind the same. Nevertheless, the exercise of such authority must remain prospective in operation, and cannot be invoked retrospectively to defeat vested rights, unsettle completed proceedings, or render ineffective lawful acts already concluded and finalized.
45In view of the foregoing facts and circumstances, as well as legal schemes, we are constrained to hold that the instant Rule, by way of amending in its own motion of this Division Bench, shall be deemed to have been issued in respect of L.A. Case 48/1976–77 instead of L.A. Case No. 46/1976–77.
46Admittedly, the then Deputy Commissioner and Land Acquisition Officer, Sylhet, vide his order dated 07.02.1977, initiated the L.A. Case 48/1976-77 for acquisition of the land under Mouza Dokhin Kamrup Dolong, J. L. No. 208, Police Station-Sunamgonj, bearing Dag No. 1241 to the area of 3.71 acres, including the land of the predecessors of the petitioner. The pivotal issue for determination, at this stage, is whether the land in question belonged to the petitioner, was lawfully acquired, or not. At this juncture, it becomes imperative to
consider the legal regime and governing doctrines pertaining to the acquisition of private property by the Government in furtherance of public interest. The relevant provisions of Section 4 of the Land Acquisition Act, 1894, are reproduced hereunder:
474. Preliminary Investigation, Publication of preliminary notification and powers of officers thereupon–
48(1) Whenever it appears to the Collector of the District
49that land in any locality is needed or is likely to be needed
50for any public purpose or for a Company, a notification
51to that effect shall be published in the official Gazette,
52and the Collector shall cause public notice of the
53substance of such notification to be given at convenient
54places in the said locality.
55From a plain reading of the aforesaid provisions, it is found that the Government must publish a notification for the acquisition of land in the official Gazette, and the Collector shall also provide public notice at convenient places in the said locality.
56On perusal of Annexures A and 9 to the writ petition and affidavit-in-opposition, respectively, it is perceived that the alleged L.A. case was started under the provisions of “The (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948)”, while the Land Acquisition Act, 1894, was prevalent for the acquisition of the immovable properties for public purposes. However, both the said Acts were subsequently repealed by the Acquisition and Requisition of Immovable Property Ordinance, 1982, which incorporated saving provisions under Sections 47 and 48 thereof.
57However, the fundamental propositions of both Acts are alike: public notice, notice to the persons interested, objections, making an award, and finally gazette notification. Thus, we are required to examine the legal propositions connecting the factum matrix of the instant case, as the provisions of section 5 of the Land Acquisition Act, 1894 denoted that where land is to be acquired for a public purpose, the Commissioner, is satisfied, at any time, that any particular land included in a locality notified under sub-section (1) of section 4 is needed for a public purpose or a Company, as the case may be, a
notification to that effect shall be published in the official Gazette, the purpose for which it is needed, its approximate area and situation, and the Collector shall cause public notice to be given of the substance of the notification at convenient places on or near the land to be acquired. Thereafter, provisions of Section 5-A relate to the hearing of objections, where any person interested in any land which has been notified under Section 5 as being needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. Then, the provisions of Section 6 provided declaration that the particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of the Commissioner or of some officer duly authorized to certify such order. Thereafter, a very important matter to notice for the persons interested is provided in section 9 as under: –
589. Notice to persons interested –
59(1) The Collector shall then cause public notice to be
60given at convenient places on or near the land to be
taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. (2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned, and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests and their objections (if any) to the measurements made under section 8. The Collector may, in any case, require such statement to be made in writing and signed by the party or his agent. (3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate.
61(4) In case any person so interested resides elsewhere and
62has no such agent, the notice shall be sent to him by post
63in a letter addressed to him at his last known residence,
64address, or place of business and registered under Part III
65of the Indian Post Office Act, 1866. The Collector shall
66also serve notice of the enquiry to be held under section
6711 (such notice not being less than fifteen days prior to
68the date fixed under sub-section (2) for determination of
69claims and objections) on the Department of
70Government, local authority or Company, as the case may
71be, for which land is being acquired, and require it to
72depute a duly authorized representative to attend the
73enquiry on its behalf for the purpose of making
74objections (if any) to the measurement of the land,
75claims to any interest in the land or the amount of any
76compensation. Such authorized representative shall be a
77party to the proceedings.
78In this context, the petitioner is concerned that no notice was served upon them, as the acquisition body did not serve any notice under Section 9 of the Land Acquisition Act, 1894, or
notice under Section 4 of the (Emergency) Requisition of Property Act, 1948. On a careful examination of the contents of Annexure-B, it is noticeable that the alleged acquired land belongs to S.A. Khatian No. 154, plot No. 1241, measuring 3.71 acres of land possessed by 3 groups of co-sharers, headed by Hachhan, Erman, and Azmol on equal shares. Thus, annexures 5 and 6 to the affidavit-in-opposition disclosed that notices were only served upon 2 groups of co-sharers of the said S.A. Khatian, excluding Abul Hachhan Chowdhury, i.e., predecessor of the petitioner.
79On examining the Annexure-G to the writ petition it is noticeable that on 09.07.2012, the petitioner filed an application for releasing the acquired land, so far it relates to 1.2367 acres, and then the Land Acquisition Officer, Sunamganj, replied in the following way- “ ারক নং: ০৫.৩৫২,০০০,০০৯,০০,০০০,২০১৪.৫২, তািরখ: ১১ মাচ ২০১৪ িবষয়ঃ এলএ কইস নং-৪৮/১৯৭৬-৭৭ বািতল করার আেবদন %সংেগ। সূ)ঃ ডাঃ নজমুস সািকব চৗধুরী গং, িপতা-মৃত শােয়কুল ইসলাম চৗধুরী, সাং-বীরগাঁও, থানা-দঃসুনামগ6 এর ০৯/০৭/২০১২ তািরেখর আেবদন মাতােবক।
উপযু9 িবষয় ও সূে)র %ি:েত জানােনা যাে; য, আপনার দািখলকৃত আেবদনেনর িবষেয় ইিতপূেব
80other persons by which best reasons known to the pertinent authority.
81On a careful read-through of the Annexure-H to the writ petition, it appears that the Additional Deputy Commissioner (Revenue) Sunamganj passed an order on 3.3.2014, and mentioned that:
82“cÖZ¨vkx ms¯’v AwaMÖnYK…Z f~wgi cwðg cv‡k© GKwU AvevwmK feb I
83`yBwU Awdm feb wbg©vYc~e©K cÖZ¨vkx ms¯’v †fvM`Lj K‡i Av‡Qb|
84AwaMÖnYK…Z f~wgi cwðg I DËi cv‡k© wKQz As‡k KvUv Zv‡ii †eov
85_vK‡jI `wÿY I c~e© w`‡K †Kvb KvUvZv‡ii †eov ev wmgvbv cÖvPxi
86†bB|
87He further mentioned that: GgZve¯’vq, (K) †h‡nZz 15-05-
881979 Zvwi‡L wm‡jU mve RR 1g Av`vj‡Z 38/1977 bs ¯^Z¡
89†gvKÏgvi Av‡`‡k cÖK„Z †iKW©xq gvwjK eive‡i ÿwZc~iY cÖ`v‡bi
90Av‡`k cÖ`vb K‡ib, †h‡nZz 1 bs µwg‡K ewY©Z †iKW©xq gvwjK Aveyj
91nvmvb †PŠayix Ms, wcZv- Avãyj Iqvwik †PŠayix 1241 bs `v‡M †gvU
923.71 GKi f~wgi g‡a¨ 1.2367 GKi f~wgi †iKW©fz³ cÖKZ
„ gvwjK|
93†m‡nZz 1 bs µwg‡K ewY©Z †iKW©xq gvwjK Aveyj nvmvb †PŠayix Ms
941.2367 GKi f~wgi ÿwZc~iY eve` 7,679/91 (mvZ nvRvi QqkZ
EbAvwk UvKv GKvbeŸB cqmv gvÎ) UvKv cÖvc¨ n‡eb| cÖvc¨ 7,679/91
95UvKvi g‡a¨ bw_Lv‡Z 3,662/79 UvKv Rgv Av‡Q| Aewkó 4,017/12
96UvKv wcwWAvi AvB‡b 2 I 3 bs µwg‡K ewY©Z AvRgj Avjx Ms, wcZv-
97BqvwQb Avjx Ges Gigvb Avjx Ms, wcZv- BDmyd Avjx Gi wbKU †_‡K
98Av`vq K‡i 1 bs µwg‡K ewY©Z †iKW©xq gvwjK Aveyj nvmvb †PŠayix Ms
99eive‡i 7,679/91 (mvZ nvRvi QqkZ EbAvwk UvKv GKvbeŸB cqmv
100gvÎ) UvKv cÖ`vb Kiv †h‡Z cv‡i| GLv‡b D‡jøL¨ †h, cÖZ¨vkx ms¯’v
101KZ©„K ûKzg `LjK…Z f~wgi m¤ú~Y© UvKv cwi‡kva Kivi ci ÿwZMÖ¯’
102gvwjKM‡Yi bv‡g †iv‡q`v` ewn cÖ¯Z
‘ I 7 avivi †bvwU‡k Rvixi ci
103†M‡RU cÖKvkbvi Rb¨ cieZ©x c`‡ÿc MÖnY Kiv nq| †m †gvZv‡eK
104†iv‡q`v` ewn‡Z I 7 avivi †bvwU‡g Av‡e`bKvixM‡Yi bvg AšÍfy©³ K‡i
105†M‡RU cÖKvkbvi Rb¨ cieZ©x c`‡ÿc MÖnY Kiv †h‡Z cv‡i|“
[Emphasi addita]
106The aforementioned context indicates that the names of the predecessors of the petitioner were not included in the Award Book, as well as in the Notice under Section 7 of the said Act. The full quantum of the petitioner's compensation money was not deposited in the Government Treasury until 03.03.2014. The Requiring Body did not possess the claimed land of the petitioner by demarcating its boundary or by
accruing title through the final Gazette publication of the acquisition. In this regard, we may refer to a Circular of the Ministry of Land, which is as follows:
গণ%জাতTী বাংলােদশ সরকার
ভূ িম মTণালয়
শাখা-১১
107নং-ভূ ঃমাঃ/শা-১১/Uঃ দঃ/শাখা-১৪/৯৭/৪৩৫ (৬৪) তাং- ১১-০৮-১৪০৪ বাং
২৫-১১-১৯৯৭ ইং
108%াপক: জলা %শাসক (সকল) িবষয় : ১৯৪৮ সেনর সBিM (জWির) Uকুমদখল আইেন বা তৎপূেবকার আইেন এল এ
109কসসমূেহর িনYিM %সংেগ।
110১৯৪৮ সেনর সBিM (জWির) Uকুমদখল বা তৎপূবকার আইেন রজুকৃত বU এল.এ. কস এখনও অিনYZ অবRায় রিহয়ােছ মেম দৃSOেগাচর হইয়ােছ। জলা %শাসক কতৃক চূ ড়াJকৃত %া\লন %]ত না করা, %তAাশী সংRা কতৃক %া\িলত অথ %দােন বAথতা, কাগজপে)র অভাব, দওয়ািন মামলার সBৃ9তা ইতAািদ কারেণ উ9 কসসমূহ বৎসেরর পর বৎসর অিনYZ থাকায় নানািবধ আইনগত জSটলতার সৃSO হইেতেছ। গেজট িব^ি_র মাধAেম কস`িলর অিধ=হণ কাযaম চূ ড়াJ না হওয়ায় %তAাশী সংRার বরাবের সংিbO জিমর জমাখািরজ করাও সcব হইেতেছ না। ফেল সরকার %িত বৎসর িবপুল পিরমাণ ভূ িম উZয়ন কর হইেত বdeত হইেতেছ।
111২। এই অবRা িনরসেনর লে:A মTণালেয়র ২২-৯৯-৯৩ ইং তািরেখর ভূ ঃমঃ/শা- ১১Uঃদঃ/সাধারণ-৪/৯৩/৪৭৭/১(৬৪)-একুইন নং ারক মারফত ১৯৪৮ সেনর সBিM (জWির) Uকুমদখল আইন বা তৎপূেবকার আইেন চালু অিনYZ এল.এ. কসসমূহ ৩১-৩- ৯৪ িfঃ তািরেখর মেধA িনYZ করার জনA অনুেরাধ করা হইয়ািছল। িকg অদAাবিধ সকল অিনYZ কস িনYZ করা হইয়ােছ বিলয়া %তীয়মান হয় না।
৩। উপেরা9 অবRায় ১৯৪৮ সেনর সBিM (জWির) আইন অনুযায়ী চালুকৃত এল.এ. কসসমূহ আগামী ৩০-৬-৯৮ িfঃ তািরেখর মেধA গেজট িব^ি_ %কােশর জনA মTণালেয় %রণ কিরেত অনুেরাধ করা হইল। য সকল কস িবিভZ কারেণ িনYZ করা সcব নয় তাহারও একSট তািলকা, কারণ/কারণসমূহ উে@খপূবক িনিদO তািরেখর মেধA %রেণর জনA অনুেরাধ করা হইল।
Dা/-( মাঃ আবুল হাই)
উপ-সিচব (উঃ)
তাং t ২৫-১১-১৯৯৭ইং। ১১-৮-১৪০৪ বাং
112From the aforesaid circular, it becomes evident that the respondents were very reluctant to take steps as per the said circular, and the acquisition proceeding was not completed as per law. We also observed that the Rule to this writ petition was issued on 16.09.2014, and the Annexure-10 to the Affidavit-inopposition revealed that the Acquiring Body published its Gazette Notification on 20.04.2017, without arranging and providing the compensation money against 1.2367 acres of land in favor of the petitioner.
113Considering the above scenario of the instant Rule, we observe that the substratum of facts culminating to meet up the mandatory legal perspectives are- (i) the names of the predecessors of the petitioner were not included in the Award
Book, (ii) Notice under Section 7 of The (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948) was not served upon the predecessors of the petitioner, (iii) the full quantum of the petitioner's compensation money was not deposited in the Government Treasury until today, and (iv) the Requiring Body did not accrue the title through the final Gazette publication of the acquisition till to filing this writ petition. These intertwined legal cohorts are required to be examined in their entirety for the purpose of rendering a complete, effective, and exhaustive adjudication of the Rule Nisi.
114At this juncture, it is incumbent upon this Court to examine whether the decisions referred to and relied upon by the learned Counsels for the respondents are capable of overriding, displacing, or otherwise adequately addressing the aforesaid factual backdrop and legal matrix involved in the instant Rule Nisi. Learned Counsel appearing on behalf of respondent 6 has placed reliance upon the decision reported in 61 DLR (AD) 121, wherein the factual background reveals that the writ-petitioner-respondent was the undisputed owner of a
residential house popularly known as “Hriday Nibash,” which had initially been requisitioned by the Collector of Mymensingh and, thereafter, formally acquired through publication of the requisite Gazette Notification in accordance with law. In the said case, there existed no controversy whatsoever regarding non-service of statutory notices upon the affected party, nor was there any dispute concerning the lawful making of the award by the competent authority. As such, the issues involved therein were materially and substantially different from those arising in the present case. Consequently, the ratio and principles enunciated in the aforesaid decision are clearly distinguishable on facts and circumstances and, therefore, have no direct application to the case at hand.
115Learned Counsel for respondent 6 further referred to another decision of the Indian Supreme Court [in MAY George Vs. Special Tahshilder and others, 13 SCC (2010) 98], where it is found that acquisition of large tract of land belonging to different persons – Challenge to acquisition after possession taken by State, by one person owning negligible area vis-à-vis the total acquired land- Appellant challenging
acquisition proceedings on ground that she had no knowledge thereof, and that she was not served with notice as contemplated under S. 9(3) of the Land Acquisition Act, 1894- Court Held, once award was made and possession taken, land stood vested in State free from all encumbrances and it cannot be divested even if some irregularity is found in award – Further held, appellant's land was of negligible area in comparison to total land acquired and therefore, at behest of only one person, acquisition proceedings cannot be disturbed. In this regard, we hold that the said facts and legal propositions do not aid our case in hand.
116Learned Deputy Attorney General for Bangladesh referred to a decision contained in 3 BLC (1998) 330, Abdur Rouf Choudhury (Md) and 4 others Vs. ADC (Land Acquisition) & others, where a Division Bench of the High Court Division, in dealing with Section 6(3) of the Acquisition and Requisition of Immovable Property Ordinance, 1982, was pleased to hold that although the petitioners were interested in the property under acquisition but no notice was served under section 6(3) of the Act which is an irregularity in the procedure
will not ipso facto render the acquisition illegal provided the acquisition was for a public purpose and the compensation amount was adequate and fixed in accordance with law. In this regard, our considered view is that the case in our hand dealt with the provisions of the earlier Act, and the referred decision does not cure the patent violation detected earlier in the instant case.
117Learned Deputy Attorney General for Bangladesh, strenuously opposed the Rule and contended that once a property is lawfully acquired and the final Gazette Notification is published under section 5(7) of the Emergency Requisition of Property Act, all right, title, and interest, if any, of the original owners or claimants stand absolutely extinguished and vested in the Government free from all encumbrances. At this point, quite apart from the admitted facts of the present case, the argument made by the learned DAG is of considerable legal importance.
118However, upon a cautious scrutiny of the materials on record, we are constrained to observe that the predecessors-ininterests of the petitioner were admittedly recorded tenants in
respect of the land in question, yet no notice whatsoever was served upon them at any stage of the acquisition proceeding. Furthermore, their names were conspicuously omitted from the Compensation Assessment Roll/Award Book, thereby effectively depriving them of the opportunity to participate in the statutory process, including the filing of objections and seeking arbitration in accordance with law. It also transpires from the records that the final Gazette Notification was published after an inordinate delay of nearly 40 years from the initiation of the acquisition proceeding, while the Requiring Body itself failed to establish exclusive and uninterrupted possession over the acquired land.
119In such circumstances, it can reasonably and safely be inferred that the petitioner and his predecessors were unlawfully deprived of the opportunity to submit objections, participate in the acquisition proceeding, seek proper adjudication of their claims, and avail the statutory remedy of arbitration in relation to compensation. The deprivation of such procedural safeguards has undeniably caused serious prejudice to the petitioner.
120Moreover, had the petitioner or his predecessors been afforded the opportunity to receive compensation contemporaneously with the acquisition proceeding, they could have meaningfully utilized the said compensation at the relevant point in time. By reason of the prolonged delay and procedural omission on the part of the authorities, the compensation amount, even if offered now, would be grossly disproportionate and insignificant in comparison to the present market value of the property, thereby causing immense economic detriment, financial hardship, and prolonged mental agony to the petitioner.
121Considering the above facts and legal propositions as well as submissions of the learned Counsels for both sides, we are of the view that the law of acquisition gives the Deputy Commissioner the power to acquire property for a public purpose within the mandatory legal purview, and of Constitutional guarantees, thus inherent violation of mandatory provisions of law caused a paucity to stand the acquisition against the petitioner in the instant case, and thereby the Rule got essence to sustain; consequently, the inclusion of 1.2366
acres out of 5.71 acres of land of the petitioner through L.A. Case No. 48/76-77 situated under Mouza-Dokhin Kamrup Dolong, J.L. No. 208, Police Station+ District: Sunamgonj, bearing Dag No. 1241 to the area of 3.71 acres, so far as it relates to the share of the petitioner in respect of 1.2366 acre of land still under the possession of the petitioner is hereby declared to have been done without lawful authority and is of no legal effect.
122Accordingly, the Rule is made absolute without any order as to costs.
123Be that as it may, the respondents shall remain at liberty to proceed afresh with the acquisition of the land in question, so far as the petitioner’s alleged right and interest are concerned, provided that the entire process is carried out anew in strict adherence to the governing laws of the land, maintaining scrupulous compliance with all statutory mandates, procedural requirements, and safeguards recognized under the laws of Bangladesh.
124The order directing maintenance of the status quo, granted earlier, is hereby recalled and vacated.
125The Office is directed to communicate this judgment and order to the respondent No. 3 immediately.
126The Court places on record its appreciation for the able assistance rendered by the learned Counsels for both parties, which has greatly aided in the expeditious disposal of the Rule.
( Abdur Rahman, J )
127Bhishmadev Chakrabortty, J:
I agree
(Bhishmadev Chakrabortty, J)
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