Group Name: Voice of Lawyers1. Rizvi Ahmad, Roll-69

Topics: a) Introduction b) Meaning of Requisition of Immovable Property in Bangladesh c) Constitutionality of Requisition of Immovable Property d) Conclusion

2. Sayma Afrin Hima, Roll-58

Topics: a) History

b) Difference between Acquisition and Requisition

3. Akramul Islam, Roll-79

Topics: a) Purposes of Requisitioning Immovable Property

4. Mahmudul Islam, Roll-131

Topics: a) What Property can be requisitioned?

b) What Property cannot be requisitioned?

5. Md. Muradul Islam, Roll-214

Topics: a) Notice

6. Mahmud Alam, Roll-97

Topics: a) Authority for requisitioning property

7. Shafia Sharmin, Roll- 28

Topic: a) Arbitration

8. Rifat Ara Sultana, Roll- 107

Topics: a) Court’s function

9. Shahrina Zaman, Roll- 119

Topics: a) Compensation

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Content Page number

1. Introduction 1

2. Meaning of Requisition of Immovable Property in Bangladesh 3

3. Difference between Acquisition and Requisition 5

4. Historical Background 8

5. Purposes of Requisitioning Immovable Property 11

6. Property to be requisitioned 19

7. Property not to be Requisitioned 22

8. Notice 23

9. Authority for requisitioning property 28

10.Arbitration 33

11.Constitutionality of Requisition of Immovable Property 38

12.Court’s function 44

13.Compensation 48

14.Conclusion 51

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Introduction

All the developmental works in a country directly or indirectly depend upon the use of Land. The Govt., semi-Govt., non-Govt. and private agencies carry all the development works, and for these development works lands and buildings are acquired and requisitioned by the State.

Every country has provisions for acquiring land or any other private property in the public interest. In most ancient scriptures mention has been made of edicts regarding compensation for acquired property. The extent of acquisition of land depends on the role a state plays. Where the state’s role in general economy and socio-cultural is pervasive, the extent of acquisition must also be great. In state where there is no private ownership or the amount of property under private ownership is small, the need for acquisition is also limited.

Where no benefit to these is involved, the State cannot acquire private interest of some individual or individuals1.On the ground of lack of public purpose the acquisition proceedings fail2 . Requisition and Acquisition of property for private purpose is illegal3.

The Acquisition and Requisition of Immovable Property Ordinance, 19824, now constitutes the sole instruments land acquisition in Bangladesh (except in the 3 hill districts).This law provides for acquisition and requisition of immovable properties for a public purpose or in the public interest. Places of worship, graveyard or cremation ground, however, were exempted. Detail procedures have been prescribed to ensure that a deputy commissioner proceeds systematically and on sound principles in such cases, leaving room for owner to raise objections which must be disposed of after due hearing.

Back to over 100 years ago, the Land Acquisition Act5 was enacted. This law came into force on first day of Match, 18946 and remained so until the Acquisition

1.Joges Chandra Lodh Vs Province of East Pakistan: 9DLR 2722 Sanker Gopal Chattergee and other Vs The Additional Commissioner, Dhaka Division and others;41DLR 326.3 Radha Kanta Banik Vs Province of East Pakistan:22DLR(SC)4 Ordinance no II of 18825 Act no. I of 18946 Section 1(3) of Land Acquisition, 1894

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ordinance repealed the Act of 1894and Requisition of Immovable Property Otdinance,19827 came into force8.The said ordinance repealed the Act of 18949

Apart from the Acquisition and of Immovable Property Ordinance, 1892 we have other laws under which acquisition or requisition may take place which are generally as follows:

Acquisition of Immovable Property Rules,1982 Requisition of Immovable Property Rules,1982 Acquisition of Movable Property Ordinance,198710

The acquisition and requisition of immovable property [amendment] ordinance, 1983

the acquisition and requisition of immovable property [2nd amendment] ordinance, 1983

The acquisition and requisition of immovable property [amendment] ordinance, 1984

The acquisition and requisition of immovable property [amendment] Act, 1987

The (Emergency) Requisition of Property Act, 194811

The (Emergency) Requisition of Property Rules 1948 The Cantonments (Requisitioning of Immovable Property) Ordinance,

194812. The Acquisition of Waste Land Act, 195013. The Civil Defense Act, 195214. The Town Improvement Act, 195315. The Rehabilitation Act, 195616. The Chittagong Hill-tracts (Land Acquisition) Regulation, 195817. The Hats & Bazaars (Establishment & Acquisition) Ordinance, 195918.

7 Ordinance no. II of 19828 From 13th April,19829 Section 48(1); of Ordinance no II of 1982.10 Ordinance no.XVIII of 198711 Act no.XIII of 194812 Ordinance no. IV of 194813 East Bengal Act no.XIX of 195014 Act no.XXXI of 195215 EB Act no. XIII of 195316 Act no. XLII of 195617 East Pakistan Regulation no. I of 195818E.P. Ordinance no.XIX of 1959

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The Chittagong Development Authority Ordinance, 195919 . The Union Council (Property) Rules, 1960. The Municipal Committees (Property),1960 The Khulna Development Authority Ordinance, 196120. Bangladesh Agricultural Development Corporation Ordinance, 196121. Defence of Bangladesh Ordinance, 196522. XXIII. Defence of Bangladesh Rules, 1965. The Antiquities Act, 196823.

Meaning of Requisition of property in Bangladesh

For carrying on the development works, the Govt. has to take private property with due compliance of certain process or procedure, this process is called Acquisition. The term “Acquisition” means actual transference of property24. Acquisition in every case means the transfer of ownership25. In other words, it means the act by which a person acquires property in a thing26. In another case it has been defined as coming into possession of obtaining, gaining or getting as one’s own27.

On the other hand, Requisition is taking over the lands or buildings by Govt. for time being. The concept of requisition merely involves taking of domain or control over property without acquiring right of ownership. From the very nature of thing, it is only of a temporary duration.28 Requisition can also be defined as a mere acquisition of possessory right.29

The concept of requisition merely involves taking of domain or control over property without acquiring rights of ownership from the very nature of things it is only of a temporary duration. Requsition can also be defined as a mere acquisition of possessory right.33

19 Ordinance no. LI of 195920 Ordinance no.II of196121 E.P. Ordinance no.XXXIII of 196122 Ordinance no. XXIIIof 196523 Act no. XIV of 196824 Lal Sing Vs C.P.and Berar AIR,1944 FC 6125 Dwarkadas Vs Shlapur S & W Co, AIR 1951 Bom 8526 Devi Dass Gopal Krishan Vs State of Panjab; AIR 1967, SC 189527 State of West Bengal Vs Subodh Gopal Boss,1954 SC 9228 Brij Narian Vs Union of India, AIR 1988 Delhi 116

29 Province of East Pakistan Vs Sharafutullah,(1967) 19 DLR 237

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According to the acquisition & requisition of immovable property ordinance, 1982

 

PART IIIREQUISITION

Section Index   

 Requisition of property

 18. (1) When any property is required temporarily for a public purpose or in the public interest, the Deputy Commissioner may, with the prior approval of the Government, by order in writing, requisition it:

Provided that no such approval shall be necessary in the case of emergency requirement of any property.

Provided further that, save in the case of emergency requirement for the purpose of maintenance of transport or communication system, no property which is bona fide used by the owner thereof as the residence of himself or his family or which is used either for religious worship by the public or as an educational institution or orphanage or as a hospital, public library, graveyard or cremation ground shall be requisitioned.

(2) Where an order made under sub-section (1) has been served, the Deputy Commissioner may take possession of the requisitioned property-

(a) in the case of emergency requirement for the purpose of maintenance of transport or communication system, at any time after the date of service of the order;

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(b) in any other case, after the expiry of thirty days from the date of service of the order, and may use the property for the purpose for which it has been requisitioned.

(3) Except with the prior approval of the Government, no property shall be kept under requisition for a period exceeding two years from the date of taking over possession of such property.

 

 

What are needed to the requisition of property---------------

Approval of the Government Public purpose and insufficient inquiry by the requiring authority Public purpose Selection of the property Mode & manner of service of notice Signature on the notice

Difference between acquisition and requisition of property Acquisition means the transfer of ownership in the other words acquisition means that the entire bundle of rights which is vested in the original owner of a property should pass on from him to the acquirer & nothing should be left in the owner or holder. Charanjit Lal chowdhury vs. Union of India;

On the other hand ,the concept of requisition merely involves taking of control over property without acquiring rights of ownership 7 it is only of a temporary duration. Brij Narin vs Union of India AIR 1988 Delhi

According to the section 3 of the acquisition and requisition of immovable property ordinance 1982 any property in any locality is needed or is likely to be needed for any public purpose or in the public interest can be acquired by the Deputy Commissioner again section 18 of this ordinance provides when any

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property is required temporarily for any public purpose or in the public interest the Deputy Commissioner may with the prior approval of the Government by order in writing , requisite it. So requisition of property is done for a temporary duration.

Acquisition of property

Section 5(1a) and 5(3) of the act must be prior to the initiation of the acquisition has been rendered invalid for the want of statutory notice, the service of notice which is posterior to the acquisition , cannot legally have any retrospective effect and as subsequent fresh service of old notice cannot have any legal effect legalizing the illegal acquisition Appellate Court concurred with the finding that the service of the old notice under section 5(1a) along with that under sub-section 3 of the act on 23-4-1973 upon the plaintiffs giving only 7 days time to file objection was not valid and legal Revisional Court did not interfere with the findings by holding that the absence of notice under section 5 (1a) and 5(3) was already decided in TS no . 36/68. Bangladesh vs. Bashratullah 42DLR (AD)91.

Requisition of property

No citizen can be asked to part with his property unless that property is necessary for public purposes. Retention of requisitioned property when purpose of requisition no longer exists-illegal.

It must be remembered that no citizen can be asked to part with his property even temporarily unless it is necessary for public purpose. Retention of property under requisition when there is no subsisting is illegal and the government should act with promptitude in de-requisitioning such property as soon as it is found that it is no longer necessary to retain its possession. Abdur Rauf vs. Government of East Pakistan 22 DLR 193.

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Requisition & acquisition of property

If the property is at the time required for a public purpose, the fact that it is to be subsequently acquired will not stand in the way of applicability of section (3). Province of East Pakistan vs. Abdus Sobhan Sowdagor 16 DLR (SC).

Simultaneous order of requisition and acquisition without prior order of is valid. Government can both requisition and acquire a property – requisition cannot be construed as acquisition.(Murshed. CJ & Ali, J ). Madbar khan vs. province of east Pakistan 17 DLR 263.

When property is requisitioned for the purpose of constructing a road it is not deemed to be an acquisition. Province of East Pakistan vs. Kalu Mia 13 DLR 52

Acquisition and Requisition both permissible

The authority may acquire the property because they consider it necessary for development of state . even where they want to acquire the property immediately they have first to requisition the property and they have to take steps under section 5 of the act for the requiring it.( Akbar & Murshed,jj) Surat Kumar Kanangoe vs Province of East Pakistan 10DLR 393.

When the legislature confers upon the government two modes of acquisition, one under the land acquisition act and the other under the emergency act , and the authority chooses the one which makes it possible to acquire the property immediately , it cannot be said that this mode of acquisition is unlawful, because the other one is more beneficial to the citizen. ( Akbar & Baquer ,jj) Musa Haji Abdus Sukur vs. Province of East Pakistan. 12DLR 236.

Valid requisition must precede acquisition

Acquisition is only to meet special circumstances. the Requisition of Property Act is not intended to be a mere alternative to or substitute for the Land Acquisition Act. Section 5 of the Requisition of Property Act has been designed to meet a contingency when it becomes necessary to acquire a property which has already been requisitioned.

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Requisition merely for the purpose of acquisition under the Act is not authorised

Unless there is a special need which can be satisfied by the mere taking of immediate possessory interest in the land to be acquired subsequently, an order of requisition is not warranted by law. Where such a necessity is established an order of requisition would not necessarily be bad merely because at the time when the order of requisition is passed, it was anticipated that it would be subsequently acquired. Mamtaz vs. Province of East Pakistan 14 DLR 608.

When nothing is shown as to why a property should be requisitioned apart from the fact that it is required to be acquired, the Land Acquisition Act provides the only machinery for its acquisition. Abdus sobhan sowdagor vs.province of east Pakistan 14 DLR468

Where the purpose of requisition is acquisition

The Land Acquisition Act will apply – Where the object behind requisition is nothing more than to acquire land , the Act had no manner of application . the Land Acquisition Act is the normal machinery for such acquisition. Md. Abdul Qader Chowdhury vs. Province of East Pakistan 14 DLR 452.

Historical Background

Back to over 100 years ago, the land Acquisition Act was enacted. this law came into force on the first day on march, 1894( section 1(3) of the Land Acquisition Act, 1894. ) and remained so until the Acquisition and Requisition of Immovable Property Ordinance, 1982came into force the said ordinance repeals the act of 1894.

After the emergence of Pakistan , emergency arose which rendered it necessary to provide for special measures for the requisition of property in connection with the administration and development of then the east Pakistan. Consequently the (Emergency) Requisition of the Property Act, 1948 was enacted. It was

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provided that the act would come into force on such date as the government might direct by notification in the official gazette however the government , by gazette notification , made this act operative from the 16 august 1948.(Dhaka Gazette Extra. Of the 16 august 1948).

Originally it was provided that the ( Emergency) Requisition of Property Act 1948 shall remain in force for a period of 3 years. Then by successive amendment its life was extended to 34 years. Finally it was repealed by the Acquisition and Requisition of Immovable Property Ordinance 1982.

Thus we see from 1894 to 1982 the land acquisition Act remained into force and the (Emergency) Requisition of the Property Act 1948 remained so from 1948 to 1982. During the period from 1948 to 1982 both the Act was in force. The latter Act provided for comparatively speedy method for taking possession of any property. Moreover , it was to be taken into notice that under the ( Emergency) Requisition of Property Act 1948 the Government was also empowered to acquire any property requisitioned under the said Act. However, in case of such an acquisition, a valid requisition was a condition precedent. Therefore during this period the government had the option to choose any of the modes of acquisition, one under the land acquisition act another under the (Emergency) Requisition of Property Act 1948 at the same time during this period there were other laws for acquisition and requisition, mainly for emergency situation or for requirement of different authorities.

The Acquisition and Requisition of Immovable Property Ordinance came into force on the 13th April 1982, repealing the Land Acquisition Act 1894 and the (Emergency) Requisition of Property Act 1948.

After coming into force it has been amended several times by different Acts and Ordinances. These are as follows:

a) The Acquisition and Requisition of Immovable Property (Amendment) Ordinance, 1983

b) The Acquisition and Requisition of Immovable Property (Second Amendment) Ordinance 1983.

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c) The Acquisition and Requisition of Immovable Property (Amendment) Ordinance, 1984.

d) The Acquisition and Requisition of Immovable Property (Amendment) Act, 1987.

e) The Acquisition and Requisition of Immovable Property (Amendment) Act, 1993.

f) The Acquisition and Requisition of Immovable Property (Amendment) Act, 1994.

Under the acquisition and requisition of immovable property amendment ordinance 1983 the government is empowered to make rules for carrying out the purposes of this ordinance. Exercising this power and the government has made the following rules: a) The Acquisition of Immovable Property Rules, 1982. b)the Requisition of Immovable Property Rules,1982. Acquisition and requisition under different laws remaining at present in forceApart from the acquisition and requisition of immovable property ordinance we have other laws under which acquisition and requisition takes place. They are generally as follows: a) সম্পত্তি� জরুত্তি� অত্তিগ্রহনআইন, ১৯৮৯

b) অস্থাব� সম্পত্তি� হুকুমদখলআইন, ১৯৮৮।

c) Acquisition of Movable Property Ordinance, 1987

d) The Acquisition of Waste Land Act, 195

e) The Cantonments (Requisitioning of Immovable Property) Ordinance 1948.

f) The Chittagong Hill-tracts Land Acquisition Regulation, 1958.

g) The Hats and Bazaars (Establishment & Acquisition) Ordinance, 1959

h) Section 93 A-93C Town Improvement Act, 1953.

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i) Rules of 13-16 of the Municipals Committees (property) Rules, 1960

j) Rules 6-9 of the Union Council (Property) Rules, 1960.

k) Section 8 of the Rehabilitation Act, 1956.

l) Section 31 and 38-43 of the Bangladesh Agricultural Development Corporation Ordinance, 1961.

m) Section 7 and 16 of the Antiquities Act, 1968.

n) Section 18-20 of the Defence of Bangladesh Ordinance, 1956.

Purpose of requisition of immovable property

The property must be required for public purpose or public interest. This is provided in the section 18 of the Acquisition and Requisition of Immovable Property Act-1982. Existence of a public purpose is the foundation of the power the government to requisition the premises and it is a condition precedent for the exercise of that power. The act does not empower the government to give the property of one private individual to another private individual. Where no benefit to the public is involved, the state cannot acquire private property for the private interest of some individual or individuals30.

Requisition of property for private purpose is illegal31. As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighbourly, no obstinacy, however extravagant, can compel or require any man to part an inch of his estate32

No citizen can be asked to part with his property even temporarily unless it is necessary for public purpose. Every citizen has a fundamental right to enjoy his property subject to the exercise of state power of eminent domain over it only when it is necessary for a public purpose33.

30 Jogesh Chandra Lodh vs. Province of East Pakistan; 9 DLR 27231 Radha kanta Banik vs. Province of East Pakistan; 22 DLR (SC) 16632 Razab Ali vs. Province of East Pakistan; 10 DLR 489 =PLD 1959 Dacca 11533 Abdur Rauf vs. Government of East Pakistan; 22 DLR 193

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Even if a “public Purpose” is not expressly demanded in law as a precondition of requisition or acquisition, it can be impliedly taken as a condition precedent.34 An order of requisition, if vague and indefinite with regard to the property sought to be required, is not one which can be made under this Act.35

Anything that furthers the general interest of the community as opposed to the particular interest of the individual must be regarded as a public purpose. No reason of general public policy will be sufficient to validate an order of requisition unless order is made for public purpose or in public interest that is for the benefit of the public .Verbal assertion that the requisition was made for the development of Jute Industry through a certain private agency for the benefit of public is not sufficient.36

However, when the government decides to require a land for a public purpose, the fact that the owner of the land intended to use the land for another public purpose is immaterial.37

Public purpose & public interest meaning

Generally, public purpose is one in which general interest of the community, as opposed to the particular interest of the individuals, is directly or vitally concerned.38

There can be no exhaustive definition of a public purpose and the answer to the question whether a purpose is public or not, will depend upon the object to be achieved by the requisition.39

Meaning of the term “public purpose” or “public use” is flexible and must be interpreted with references to the circumstance prevailing at a particular time. It is also true that such use or purpose must be for the general good of the public as opposed to the good of a particular individual or group of individuals.40

34 Bishan Das vs. State of Punjab ; AIR 1961 SC 157035 Mumtaz Begum vs. Province of East Pakistan;14 DLR 60836 Jogesh Chandra Lodh vs. Province of East Pakistan; 9 DLR 27237 R.L. Arora vs. State of Uttar Pradesh; AIR 1964 SC 123038 Sk Aminuddin & another vs. Deputy Commissioner, 15 DLR 44239 Justice Muhammad Munir; Constitution of the Islamic Republic of Pakistan; ed. 1996 P. 39240 Razab Ali vs. Province of East Pakistan; 10 DLR 489 =PLD 1959 Dacca 115

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In another cases “public purpose or private interest” was interpreted to mean the benefit of the whole community who are directly and primarily concerned. The same principle was pronounced in the case of Arnold Roderick vs. state of Maharashtra.41 Mere state policy or policy of the party in power is not the same thing as public purpose.42

Again in the case of Abdus Sobhan Sowdagor and another vs. province of East Pakistan43 it was observed that ; “in the , first place , the expression ‘public purpose’ must include a purpose , that is , an object or aim , in which the general interest of the community as opposed to the particular interest of an individual is concerned. Secondly, such interest must be directly connected with the order that is being made and must be vitally concerned with the said order.”

There will be no public purpose in any undertaking or venture in which the public interest is served indirectly and in a circuitous way. For example, it can be said that; “every grocery which exists in any country serves a public interest, but such grocery is not primarily and directly concerned with such public purpose.”44 Thus there will be no public purpose for the requisition of a house for a public officer unless it is established that the efficiency of the officer would be affected without such an order of requisition and that no accommodation would be available otherwise than by way of requisition.45

The nature of the purpose, namely, whether it is public or private will depend upon the fact whether it will serve the general interest of individuals. It is not necessary that the entire community must be benefited. In circumstance, even benefit to class, such as coolies, can be said to serve public purpose.46 If the purpose is to benefit an individual or group of individuals directly and the benefit to the public or to a section of it is only perspective or remote or incidental, the purpose is private and therefore, it is not of public purpose.47

41 AIR 1966 SC 178842 Sir Kameshwar Singh vs. Province of Bihar; AIR 1950- pat 392.43 14 DLR 48644 Abdus Sobhan Sowdagor and others vs. Province of East Pakistan and others; 14 DLR 48645 ibid46 Sk Aminuddin & another vs. Deputy Commissioner, 15 DLR 44247 ibid

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In the case of Md. Masudul Islam & another vs. The Deputy Commissioner, Dhaka and others48, it was observed that , “ action taken for serving a public purpose must be shown to be not merely that this specific result will be reached as a final end, but that the public has itself a direct interest in it.” In a case the Indian Supreme court laid down the principle that for a decision as to whether the compensation money paid for acquisition comes from the private individual or public exchequer.49

In fact, the law does not authorize requisition or acquisition of property for the benefit of an individual as opposed to the general interest of the community.50 This is because benefit of private person is not a public purpose.51 However, the fact that some individuals will be benefited by a requisition made for a public purpose is immaterial.52 Therefore, a public road will not cease to be such road merely because it is particularly beneficial to somebody.53 Similarly if a private company is benefited by a requisition made for a purpose, the requisition is valid in law. The same principle was pronounced in the case of the R.K. Agarwalla vs. State of West Bengal54.

However, a purpose may be a public purpose if it I s for corporation or individuals engaged in work of public utility.55 In the case of Thambiran Padayachi vs. State of Madras56 it was held that acquisition or requisition might be in favor of individuals provided they are benefited not as individuals but in furtherance of a scheme of public utility. Where direct advantage goes to an individual corporation it can be a public purpose if the public is served by the corporation 57

In another case58 where the question arose whether the establishment of a three star hotel at the initiative of a private individual as a private enterprise is a purpose or not the Court observed: “the establishment of as three star hotel at the initiative of

48 15 BLD (1995) 49349 Girdharilal Amratlal Shodhan vs. State of Guzrat; AIR 1966 SC 140850 Ajit kumar Das vs. Province of East Pakistan; 10 DLR 6951 Bhanji vs. State of Bombay; AIR 1952 Bom 47652 M/S Haji Khadem Ali vs. District Magistrate, Dacca; 10 DLR 50153 M/S Bunmans Builders vs Land Acquisition Deputy Collector, Chittagong;14 DLR 617 54 AIR 1965 SC 99555 Khadimali vs. District Magistrate, Dacca;PLD 1959 Dacca 15456 Air 1952 Mad 75657 Additional Deputy Commissioner of Dacca & others vs. Chowdhury Esarul Ahmed Siddique &others; 15 BLD(1995) 49358 Md. Masudul Hussain &another vs. The Deputy Commissioner of Dacca & others; 15 BLD (1995) 493

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a private individual as a private enterprise is not a public purpose since neither the Government has any direct financial involvement in it nor do the public have any direct interest in it. It is purely a commercial concern in which some people might have some interest but such a purpose cannot be termed as a public interest by any stretch of imagination.” However a requisition is not outside of public purpose simply because it takes place at the instance of a private party.59

In a case under The (Emergency) Requisition of Property Act, 194860 it was held that to provide office accommodation for a village development officer might become a public purpose if such accommodation was not otherwise available by private negotiation.61 However this principle laid doe by the High Court Division was overruled by the Supreme Court in another case where it was held that if the public purpose does exists, it is not necessary to show that it could not be served by private negotiation before the provision of requisition or acquisition are attracted.62

In another case63 it was decided that construction of dwelling house cannot be considered necessarily or per se to be a public purpose. However, in certain circumstances housing scheme for a number of persons can be a public purpose.64 Providing accommodation to the government servants is a public purpose.65 In another cases it was held enabling the teaching staff to live in close proximity to the university campus and afford to them the necessary convenience us a public purpose.66 Use of a property as a residential house for the Chief Minister is a public purpose.67 Taking of premises for allotment to person who are homeless is a public purpose.68

Taking of a property for a foreign consulate is a public purpose.69 In a country like ours, establishing new industries is to be considered for public purpose.70 The same principle was pronounced in the case of Parshottam Jadavji jeni vs. State of Gujrat

59 Ekramul Haq vs. Province of East Pakistan; 15 DLR 56860 Now repealed61 Mritunjoy paul vs. Province of East Pakistan;14 DLR 56862 Abdus Sobhan Sowdagor and others vs. Province of East Pakistan; 16 DLR (SC)63 Md. Ismail & others vs. Govt. of Bangladesh 7 others; 34 DLR (1982)64 State of Guzrat vs. Musamigan Imam Haider Bux Rizvi And others;(1976) 3 SCC 53665 State of Bombay vs. R.S. Nanji; AIR 1956 SC 29466 Al. C.T. Alagappa chettiar vs. Revenue Divisional officer;AIR 1969 Mad 18367 Fransisco Feweira Martins vs. Union of India; AIR 1985 Bom 312 68 Mongibai hariram vs. State of Maharashtra; AIR 1966 SC 69 State of Bombay vs. Ali Gulshan; AIR 1955 SC 81070 Ekramul Haq vs. Province of East Pakistan; 15 DLR 568

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and others71. However, in a case the Orissa High Court held that there is no public purpose where property is taken is for an Industrial concern working purely for its own gain even though the goods produced by the concern may be of use to the general public.72

Planned development of a city by the government is a public purpose.73Taking of land for a military purpose is a public purpose.74 Construction of a cinema hall where films are exhibited by an individual benefits him primarily. Mere use of the hall by the public on payment does not make the purpose of its making public.75

Therefore, it is obvious that any purpose which benefits the public or section of the public is public purpose76. Last of all we should keep in our mind that the concept of public purpose and public interest is not constant. It must alter as socio and economic condition alter77. This is why with the onward march of civilization the concept has been broadening. Therefore, in determining whether a public purpose exists or not all the facts and circumstance are to be closely examined.78

Public purpose or public interest must be stated in an order of requisition

A citizen has a fundamental right to hold his property and such property can only be requisitioned for public purpose as the government determined what the public purpose is. So a citizen before being called upon to part with his property must be apprised of the purpose for which it is requisitioned.79

A citizen whose property is requisitioned under the Act ought to know the particular purpose for which his property is being requisitioned. If the particular purpose is not stated in the order of requisition, it may be later changed or altered to suit the order of requisition.80 The authority requisitioning or acquiring property

71 (1971) 1 SCC 84372 Satrugna Sahu vs. State of Orissa; AIR(187) 1958 73 Lila Ram vs. Union of India and others; 1975 UJ (SC) 69774 Dimboswa Dattu vs. Deputy commissioner; AIR 195475 Abdus Satta vs. Province of East Pakistan;17 DLR 4076 Brahmanbari Pourashava vs. Secretary, Ministry of Land Reforms, Government of Bangladesh and Others; 51 DLR (AD) 199977 Motibhai Vithalbhai Patel vs. State of Guzrat;AIR 1061 GUJ 9378 State of Bombay vs. R.S. Nanji; AIR 1956 SC 29479 Kazi Sayedul Hoque vs. Province of East Pakistan; 8 PLR (Dac) 44880 ibid

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must indicate definitely what part of the land is required by them. If they want any specific portion out of a bigger plot it is necessary that an adequate description of the portion sought to be acquired be given so as to notify the owner of the exact extent of property sought to be taken away.81

There should be a broad and understandable statement of public purpose. However, in the case of Md. Nur Hussain vs Province of East Pakistan82 it was held that, though the government is required to specify the public purpose, omission to do so doesn’t a requisition bad in law if such purpose is proved by facts to the satisfaction of the courts

Public purpose and private negotiation:

Private negotiation preceding requisition not necessary83. If the public purpose does exists it is not necessary to show that it could be served by private negotiation before the provision relating to requisition or acquisition are attracted84. In a case under The (Emergency) Requisition of Property Act, 194885 it was held that to provide office accommodation for a village development officer might become a public purpose if such accommodation was not otherwise available by private negotiation.86 However this principle laid down by the High Court Division was overruled by the Supreme Court in another case where it was held that if the public purpose does exists, it is not necessary to show that it could not be served by private negotiation before the provision of requisition or acquisition are attracted.87

Public purpose and insufficient inquiry by the requisitioning authority:

If there exists public purpose, it is enough for requisition. Insufficient inquiry by the requisitioning authority into the existence of public purpose doesn’t vitiate an

81 Sufia Khatun vs. Secretary , Revenue Department 20 DLR(SC) 1882 11 DLR (1959)36783 Abdus Sobhan Sowdagor and others vs. Province of East Pakistan;16 DLR 56884 ibid85 Now repealed86 Mritunjoy Paul vs. Province of East Pakistan;14 DLR 56887 Abdus Sobhan Sowdagor and others vs. Province of East Pakistan; 16 DLR (SC)

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order of requisition.88 In the case of Ekramul Huq vs. Province of East Pakistan89 it was held that insufficiency of inquiry, even if it is defect, can be cured by sufficient inquiry after the objection is made.

The power to select as to which land is to be taken for public purpose is left to the responsible discretion of the government90

Application of mind by the requisition authority

Application of the mind of the authority regarding requisition must appear. Quantum of land necessary to be requisitioned and hardships to the individual concerned must also be considered.91 The authority in order to requisition any property must apply its mind as to the necessity and expediency of the requisition. But where the government itself has applied its mind to the same requisition the requisitioning authority need not apply its mind over again92

Authority requisitioning the property when did not independently apply its mind, requisition held to be invalid.93 The requisitioning authority must strike a balance between the demand made by the requiring body and the suffering of expropriated land owner and to come a conclusion of its own after independent application of mind as to the area necessary for the purpose for which the requisition is sought to be made.

In a case under The (Emergency) Requisition of Property Act, 194894 where the additional District Magistrate who made the order under section 3 did not at all apply his mind to the question whether it was necessary or expedient to requisition the property for a public purpose, the order of requisition made by him must be held invalid.95

88 ibid89 16 DLR (1964)SC 12190State of Punjab and another vs. Gurdial Singh and others; AIR 1980 SC 31991 Hermba Chandra Bhattcharjee vs. Secretary of the Development Department;15 DLR 45292 Ajit Kumar Das vs. Province of East Pakistan;11 DLR 24393 Md. Abdul Qadir Chowdhury vs. Province of East Pakistan;14 DLR 45294 Now repealed95 Jogesh Chandra Lodh vs. Province of East Pakistan;11 DLR(SC) 411

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This is because non application of mind by the requisitioning authority makes a requisition invalid in law. However, where the government itself has applied its mind, the deputy commissioner is not required to apply its mind again over the same requisition.

Property to be requisitioned

According to section 18(1) of Acquisition and requisition Ordinance 1982: When any property is required temporary for a public purpose or in the public interest , the Deputy Commissioner may , with the prior approval of the Government , by order in writing requisition it:

Provided that no such approval shall be necessary in the case of emergency requirement of any property:

Under section 18 of the Ordinance, a property can be requisitioned when it is temporarily for a public purpose or in the public interest. in this regard , the word ‘require’ involves something more than a mere wish and involves an element of need to some extant at least.( Abdus Sobhan Sowdagor and others vs. Province of East Pakistan and others 14 DLR 486)

Requisition of property for private purpose is illegal. As between, no necessity, however great, no exigency, however imminent no improvement, however valuable, no refusal, however unneighbourly, so obstinacy, however extravagant, can compel or require any man to part with an inch of his state. (Razab Ali vs. Province of East Pakistan; 10 DLR 489=PLD 1959 Dhaka 115).

No citizen can be asked to part with his property even temporarily unless it is necessary for public purpose. Every citizen has a fundamental right to enjoy his property subject to the exercise of state power of eminent domain over it only when it is necessary for a public purpose. (Abdur Rauf vs. Government of East Pakistan; 22 DLR 193)

Even if ‘public purpose’ is not expressly demanded in law as a precondition of acquisition or requisition, it can be impliedly taken as a condition precedent. (Bishan Das vs. State of Panjab; AIR 1961 SC 1570.)

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However when the government decides to require a land for a public purpose, the fact that the owner of the land intended to use the land for another public purpose is quite immaterial. (R.L.Arora vs. State of Uttar Pradesh;AIR 1964 SC 1230.

There can be no exhaustive definition of public purpose , and the answer to the question whether a purpose is public or not, will depend on the object to be achieved by the requisition.(Justice Mahmud Munir ; Constitution of Islamic Republic of Pakistan ; ed. 1996;P.392)

Meaning of the term ‘public use’ is flexible and must be interpreted with reference to the circumstances prevailing at a particular time .(Razab Ali vs. Province of East Pakistan;10 DLR 489=PLD 1959 Dacca 115). In others words , the question whether a particular scheme is for a public purpose or not will depend upon the facts of the particular case.(M/S Bunmas Builders Vs. Land Acquisition Deputy Collector, Chittagong; 14DLR 671)

‘Public purpose’ as defined on Willoughy’s constitution of the united states as quoted in the case of Sk. Aminuddin and others vs. Deputy Commissioners and others 15 DLR 442.is as such ; ‘ A public purpose is one in which the interest if the public is directly and primarily concerned’.

In another case (Ajti Kumar Das vs. Province of East Pakistan 10 DLR 69 = PLD 1958 Dacca 280) ‘ public purpose or public interest’ was interpreted to “ mean the benefit of the whole community who are directly and vitally concerned”. The same principle was pronounced in the case of Arnold Rodricks vs. state of Maharastra AIR 1966 SC 1788.

Mere state policy or policy of the party in power is not the same thing as public purpose (.Sir Kameshwar Singh vs. Province of Bihar; AIR 1950.Pat 392).

Therefore , the classical definition of the expression ‘public purpose’ is an object or aim , in which the general interest of the community is opposed to particular interest of the individual is directly and vitally concerned.( Muhhamad Akbar etc. vs. Commissioner Rawalpindi division Rawalpindi PLD 1976 Lah 747).

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When any property is required for a public purpose or in public interest , the (deputy commissioner ) may requisition it by an order in writing;

Provided the projects covering more than one district or the project of which the requiring body is the (Dhaka improvement Trust, the Chittagong development Authority or the Khulna development Authority).the proposal shall require the approval of the government before proceedings under the Act are started.

Provided further that no property used by the public for the purpose of religious worship (graveyard and cremation ground) shall be requisitioned.

Provided further that when a property is required permanently for a public purpose or in public interest, the Deputy Commissioner may also requisition it with a view to its permanent acquisition for such public purpose or in such public interest.

Under the section as it originally stood the interpretation of “public interest”, “others similar purposes”, etc, was a matter for the determination of the courts. The authority passing an order of requisition could not by a interpretation of the section extend its jurisdiction. if the reason for the passing an order of requisition was not one contemplated by the section in accordance with the interpretation which may be put upon this section by the courts, the order of requisition would be void in spite of the use of the words “opinion”.

Even after the introduction of the amendment of 1960, it is the district Magistrate who is primarily the judge of the facts which would attract the operation of section 3 in spite of the fact that the words “of the opinion” have been deleted.

In a case under the (Emergency) Requisition of Property Act 1948 (now repealed) it was held that to provide office accommodation for a village development might become a public purpose if such accommodation was not otherwise available by private negotiation . However this principle lay down by the High Court Division was overruled by the Supreme Court in another case where it was held that if the public purpose does exist, it was not necessary to show that it could not be served by private negotiation before the provisions of requisition or acquisition are attracted. (Province of East Pakistan vs. Abdus Sobhan Sowdagor 16 DLR DC 38).

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A citizen has a fundamental right to hold his property and such property can only requisitioned under Art.25 (2) of the constitution. If it is for a public purpose. So, a citizen before being called upon to part with his property must be apprised of the purpose for which it is requisitioned. Kaji Syedul Hoque vs Province of East Pakistan 8 PLR (Dac) 448 .

In case of requisition, the authority must disclose in the order of requisition the specific public purpose or public interest for which the property is requisitioned.

Mentioning the public purpose has to be very particular. In other words there should be a broad and understandable statement of public purpose.

However, in the case of Nur Hussain vs. Province of East Pakistan (1959). It was held that , though the government is required to specify the public purpose, omission to do so doesn’t a requisition bad in law if such purpose is proved by facts to the satisfaction of the court.

If there exist public purpose, it is enough for requisition, insufficient inquiry by the requisitioning authority into the existence of public purpose doesn’t vitiate an order of requisition. In the case of Ekramul Huq vs. Province of East Pakistan (1964)16 DLR SC 121. it was held that insufficiency of inquiry, even if it is a defect, can be cured by sufficient inquiry after the object is made.

Provided further that , save in the case of emergency requirement for the purpose of maintenance of transport or communication system, no property which is bona fide used by the owner thereof as the residence of himself or his family or which is used either for religious worship by the public or as an educational institution or orphanage or as a hospital , public library, graveyard or cremation ground shall be requisitioned.

Property not to be requisitioned

Second proviso to section 18(1) says: ‘save in the case of emergency requirement for the purposes of maintenance of transport or communication system, no property which is bona fide used by the owner thereof as the residence of himself or his family or which is used either for religious worship by the public or as an educational institution or orphanage or a hospital , public

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library , graveyard or cremation ground shall be requisitioned. ‘ if however any property is requisitioned or proposed to be requisitioned in contravention of this provision , it is a nullity. Against such an order, a suit would lie to the civil court. Sree Sree Radharaman vs. Government of Bangladesh 17 DLR (1975)40.

In this regard, it is also to be kept in mind that the government itself can order certain properties exempted from acquisition. In such a case that properties cannot be acquired unless the order of the government is revoked. (Razab Ali vs. Province of East Pakistan (1958)10DLR 489=PLD 1959 Dacca 115).

Notice

When a notice is to be given

Under sec. 18(2) of Acquisition & Requisition of Immovable Property Ordinance 1982 before taking possession of the requisition property the order of requisition has to be served.

Again, under sec. 20(2) of Acquisition & Requisition of Immovable Property Ordinance 1982 a notice has to be served. So that, the interested persons on their respective properties get an opportunity of being heard. In respect of their respective interest in the property and of asserting amount and particulars of their claims. To compensation for such interests.

Again, under sec. 20(4) of Acquisition & Requisition of Immovable Property Ordinance 1982 the deputy commissioner shall give immediate notice of his award to the persons interested.

Again, under sec. 24 of Acquisition & Requisition of Immovable Property Ordinance 1982, in case of release of requisition property where the persons to whom possession of any requisition property is to be delivered cannot be found has no agent or other person empowered to accept delivery on his behalf. The Deputy Commissioner shall cause a notice declaring that the property is released from requisition to be affixed on some conspicuous part of the property and shall also publish the notice in the official gazette.

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Again under sec. 28 of Acquisition & Requisition of Immovable Property Ordinance 1982 when an application is made against the award made by the Deputy Commissioner, to the Arbitrator, then the arbitrator shall cause a notice under sec 29 specifying the date on which he will proceed to hear the application and directing their appearance before him on that day.

Under Sec. 34A of Acquisition & Requisition of Immovable Property Ordinance 1982 the deputy commissioner shall send to despite the amount of additional compensation within one month from the date of the award of the arbitrator or as the case may be decision of the Arbitration Appellate Tribunal.

Under Sec 37(1) of Acquisition & Requisition of Immovable Property Ordinance 1982 no person shall enter upon any property without the concept of the occupier their of unless at least twenty four hours previous notice in writing of his intention to do so has been given.

Under Sec. 3(2) of Requisition of Movable Property 1988 a notice of order has to be given for requisitioning that property.

When an order of requisition has been made under sec. 3 of (Emergency) requisition of Property Act 1948 a notice of that order has to be served.

However there is no provision in the act itself that a prior notice is to be served upon the owners of praises before the requisition order. Jogesh Chandra Lodh vs. Province of East Pakistan

Under Sec. 5(1A) of (Emergency) Requisition of Property Act 1948 the Deputy Commissioner shall if he considers that the acquisition of any requisitioned property is expedient for a public purpose or in public interest, cause a public notice to be given at convenient places on or hear the requisitioned property stating that the property is proposed to be acquire.

In Bangladesh, represented by the Secretary Ministry of Land vs. Abul Hossain and Others it was held that service of notice in respect of requisition of land for public purposes is mandatory requirement of law. When such notice is served upon the owner of the land there is no need to serve the same afresh on the subsequent transferee of the land.

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In Government of Bangladesh vs. Basharatullah it was held that a notice under sec. 5(1a) and 5(3) is mandatory before the government can at all decide to acquire requisitioned property. If notice was not valid under law, then subsequent acquisition under sec. 5(7) is also illegal.

Under sec 7(aa) of Emergency Requisition of Property Act 1948 the Deputy Commissioner shall give immediate notice in case of disagreement of compensation to the persons interested in the property.

Again under sec 7(cc) of Emergency Requisition of Property Act 1948 the arbitrator on receipt of application under clause (aaa) shall give immediate notice of such application.

Under sec. 7A(1) of Emergency Requisition of Property Act 1948 in case of dispute of apportionment of compensation or any part thereof the deputy commissioner under after hearing the claimants make an award and shall give immediate notice of the award to the interested persons.

To whom a notice is to be given

Under sec. 39(1) Acquisition & Requisition of Immovable Property Ordinance 1982 every notice or order issued or made under this ordinance shall be served by delivering or tendering it to the person named therein or the person on whom it required to be served under this ordinance.

Under sec. 39(2) Acquisition & Requisition of Immovable Property Ordinance 1982 where such person cannot be found or the notice or order cannot be so delivered or tendered, the service of the notice or order may be made by delivering it or ordering it to any officer of such person or to any adult male member of the family of such person residing with him or, if no such officer or member can be found, by affixing a copy thereof on the outer door or on some conspicuous part of the premises in which that person ordinarily resides or carries on business or personally works for gain , and also by affixing a copy thereof in some conspicuous place in the office of the authority or officer issuing or marking it and where possible, in some conspicuous part of the to which it relates.

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Under sec. 20(4) Acquisition & Requisition of Immovable Property Ordinance 1982 the Deputy Commissioner shall give notice of his award to the persons interested in the property.

Under sec. 24(3) Acquisition & Requisition of Immovable Property Ordinance 1982 where the person to whom the possession of any requisitioned property is to be delivered cannot be found and has no agent or other person empowered to accept delivery on his behalf, the deputy commissioner shall cause a notice declaring that the property is released from requisition to be affixed some conspicuous part of the property and shall also publish the notice in the official gazette.

Under sec.29 Acquisition & Requisition of Immovable Property Ordinance 1982 the Arbitrator shall, on receipt of an application under sec 28, cause a notice to be served to:

a) The applicantb) All persons interested in the objection c) The Deputy Commissioner; and d) The requiring person

Under sec.34A Acquisition & Requisition of Immovable Property Ordinance 1982 the Deputy Commissioner shall send the notice to deposit the amount of additional compensation within one month from the date of the award of the arbitrator or, as the case may be, decision of the Arbitration Appellate Tribunal.

Under sec. 3(2) of the Requisition of Movable Property Act 1988 when a Deputy Commissioner requisitions any movable property he has to give a notice to the owner of that property.

Under sec. 4(1) of the Emergency Requisition of Property Act 1948 when an order of requisition has been made under sec. 3 of that act it shall be served on the owner of the property by delivering it or tendering it to him or where the owner cannot be found it shall be served by leaving an authentic copy thereof with some adult member of the family of such owner or if no such adult member of the family can be found it may be served by affixing an authentic copy thereof to some

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conspicuous part of the premises in which he is known to have last resorted or carried on business or personally worked for gain and also by affixing another such copy to some conspicuous part of the requisitioned property.

How a notice is to be given

According to sec. 39(1) & (2) of Acquisition & Requisition of Immovable Property Ordinance 1982 a notice can be given by

a) By personallyb) By giving notice to the adult member of the family in case of absence of the

person to whom the notice has to be given.c) By delivering it to any officer of such persons.d) By affixing a copy on the outer door or on some conspicuous part of the

premises in which that person ordinarily resides or carries on business as well as by affixing a copy on some conspicuous part of the office of the authority issuing it.

The notice or order may be sent by registered post in a letter if such authority directs.

According to rule 7 of Requisition of Immovable Property Rules 1982 the notice of release of requisition as required under sub-sec. 3 of sec. 24 of Acquisition & Requisition of Immovable Property Ordinance shall be in form B appended in later of Requisition of Immovable Property Rules 1982.

Note:According to sec. 1(4) of (Emergency) Requisition of Property Act 1948 this law shall remain in force for a period of thirty four years. So notice under this law shall remain in force for that period.

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Requisitioning Authority

At first seeing the term Requisitioning Authority may seem to be values as the Ordinance has not so clarified the formation of the Authority. Ordinance has not informed elaborately. In way of disposing its duty government plays an important role. This ordinance termed the deputy commissioner as the requisitioning authority. Deputy Commissioner has been defined in this ordinance. It says Deputy Commissioner includes an Additional Deputy Commissioner and any other officer authorized by Deputy Commissioner to exercise any power conferred or perform any duty on the Deputy Commissioner by or under this Ordinance96.

Functions of Requisitioning Authority

The ultimate function of Requisitioning Authority is to requisition property for the public necessity and public interest97. To implement this vital Function it has to perform the following function-.

To provide notice

This is the gateway and first step to perform its duty to the person concerned with the property from whom such property is to be requisitioned. In such case the Deputy Commissioner may by order requisition any property. This power is subject to prior approval of the government. When the Deputy Commissioner orders requisition of any property without such approval the order is not valid in the eye of law98.

However in case of emergency requirement of any property no such approval is necessary.

But in the notice the signature of the authority is must. In a case of Mumtaj BEGUM vs. Province of East Pakistan Marched and A S Chowdury, JJ elder that in a case that rubber stamp of facsimile signature on printed forms cannot be described as the conscious passing of an order. 14 DLR 608

96 Section 2(b) of the Acquisition and Requisition of Immovable Property Ordinance, 1982.

97 Ist para to section 18. of The Acquisition and Requisition of Immovable Property Ordinance 1982.98 Rule 4.

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The Deputy Commissioner may by order requisition any property. But this power as subject to the prior approval of the government. When the deputy commissioner orders requisition of any property without any such approval is required.

Murshed and AS Chowdhury, JJ held in a case that rubber stamp facsimile signature on printed forms cannot be described as the conscious passing of an order in the case a Azizul Islam us province of east Pakistan In the High court division held that a rubber stamp is no substitute for the conscious signature of the person who is required to make the order in the printed paper with a rubber-stamp appended to it there is absolutely nothing to indicate that it is in fact an order passed by the authorized to make such an order.

To revise the objection

Provisional application against an order of requisition passed by the deputy commissioner lies only with the government. The government’s decision on revision overrides the decision of any other subordinate authority and in such a case a third party has nothing to say99

To Award compensation

Where any property is requisitioned under this part, there shall be paid compensation the amount of which shall be determined in the manner an in accordance with the principles set out in this section.

To recover money from allottees

Where any requisitioned property is allotted to and placed in possession of any person the deputy commissioner may recover from such person such amount of money and in such manner as may be prescribed.

99 College of Music Vs. Secretary, Revenue (1975) 27 DLR 487.

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To repair of requisitioned property

During the period of requisition the Deputy Commissioner shall be responsible for the proper maintenance of the requisitioned property.

To release form requisition

Where any requisitioned property is to be released from the requisition the Deputy Commissioner may restore it to the person from whom the property was requisitioned or to his successor in interest or to such other person as my appear to the deputy Commissioner to be entitled to such restoration. The delivery of possession of the requisitioned property to the person referred to in sub-section 1 shall be a full discharge of the deputy commissioner from all liability in respect of such delivery.

Release from requisition, that is to say, de-requisition is an administrative function100 to which the interference of the court of law is not warranted101.

Power of the Requisitioning Authority

Power to enter and inspect:

The Requisitioning authority, while holding any enquiry or proceedings under this act , shall have the same power as are vested in a Civil Court under the Code of Civil Procedure,1908 (V of 1908), for the purpose of

a. summoning or enforcing the attendance of any person, and examining him on oath.

b. compelling the production of any documents or record.

c. reception of evidence on affidavits ,

d. Issuing commission for examination of witnesses,

e. Requisitioning any public record from any court or officer.

100 Sudhindra Nath Datta Vs. Sailendra Nath Mitra; (1924) 1 KBD 171.101 Badal Rani Misra Vs. Bangladesh; 27 DLR (AD) 65.

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In the case of BEGUM LATIFUNNESSA vs N AHMED, It was held that an award given by Arbitrator shall be deemed to be decree. The Arbitrator shall have all the powers of a Civil Court under section 36 of the Ordinance no 2 of 1982.

Power to enter and inspect:

With a view to requisition or determining compensation, the authority i.e. the Deputy Commissioner or any officer, generally or specially authorized by the Deputy Commissioner in this behalf, and any of the assistant and the workman may-

a. Enter upon and survey and take levels of any property

b. Inspect any property and anything therein,

c. Measure and set out the boundaries and line by placing marks and cutting trenches and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, cut down and clear away any part of any standing crop, tree, or jungle.

But without the consent of the occupier of the concerned land no person shall enter upon any property unless at least twenty four hours previous notice in writing of his attention to do so has been given.

Power to obtain information

With view to requisitioning any property or determining the compensation payable in respect thereof, the Deputy Commissioner may, by order in writing, require any person to furnish to such officer or authority, as may be specified in the order, such information in his possessions as may be specified relating to any property concerning the property which are derequisitioned or intended to be requisitioned under this ordinance

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Penalty

A person shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand taka, or with both if he-

contravenes or attempts to contravene or abets or attempts to abet a Contravene nation of any order or any rule

made under this Ordinance

Enforcement of surrender

The authority i.e. The Deputy Commissioner if opposed or impeded in taking possession of any property under this Ordinance he shall enforce the surrender of the property to himself and he may use or cause to be used force for the purpose as may be necessary.

Indemnity

Indemnity is one of the super powers conferred upon the requisitioning authority. No suit or proceeding shall lie against any person for anything which is done in good faith, or intended to be done in pursuance of this Ordinance or any order or any rule made under this Ordinance.

· In Soleman Bibi and others vs. Administrator, Farajikandi complex and others: It was held by the court that, "Exclusion of jurisdiction of civil court should not be readily inferred. If the passed or action taken by any authority is maladies, such court should have jurisdiction to entertain a suit to see whether the action is in conformity with the law in question102."

· In Madbar khan and others vs. Province of East Pakistan and others: It was held the, the validity of an act bonafidely done under the (Emergency) Requisition of Property Act, 1948 cannot be challenged in a Civil Court but

102 45 DLR 727

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in case of an order or an act which is wholly outside the purview of the said Act there is no bar to file suit103.

Arbitration

Under section 27

Who is an Arbitrator

The arbitrator is a persona designate i.e., a functionary designated not by name but as one of class.104This principle was followed in the case of Thomarshau alias Majhi vs. Bangladesh.105

Appointment of Arbitrator

An arbitrator appointed under section 27 is not a civil court at all within the meaning of the Code of Civil Procedure and as such, he is not a court subordinate to the High Court Division.106

According to section 28

Application to Arbitrator- When can be made

Only for revision of the award made by Deputy Commissioner, an application can be made to the arbitrator.107

Maintainability of an application to Arbitrator

Application under section 28 is non-maintainable when the applicant fails to show that he received the money of award ‘under protest’.108This is because a person, who has taken payment without protest, must be deemed to have waived his

103 17 DLR 263

104 Begum Lutfunnessa vs. Nizamuddin Ahmed and others . 40 D.L.R. 232.105 52 DLR (2000) 516.106 Thomarshau alias Majhi vs. Bangladesh; 52 DLR (2000) 516.107 Province of East Pakistan(now Bangladesh) vs. Fazlur Rahman; 26 DLR 255.108 Thomarshau alias Majhi vs. Bangladesh; 52 DLR (2000) 516

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objection to the award, if any.109In such an application, requiring body is not necessarily required to be either a necessary party or a proper party.110

Under section 29

Notice served to hear the application

The arbitrator shall, to hear the application and directing their appearance before him on specified date to be served on the following persons, namely:

1. The applicant;

2. All persons interested in the objection;

3. The Deputy Commissioner; and

4. The requiring person.

Under section 30

Scope of proceedings

The arbitrator does exercise arbitration function in course of inquiry or investigation into the amount of compensation. Although he is expected to act within judicial norms111

Under the provision of the Acquisition and Requisition of Immovable Property Act-1982, the arbitrator is vested with the jurisdiction to decide the dispute of title to receive compensation.112

An arbitrator is not empowered to question the notice of acquisition or requisition.113

109 Ghulam Mohammad vs. Governor of West Pakistan; 19 DLR(1967) SC 117110 Bangladesh Water Development Board vs. Al-Haj Abdul Latif Biswas and others; 1 BLC AD 42.111 Begum Lutfunnessa vs. Nizamuddin Ahmed & others;40 DLR 232112 ibid113 Peara Akhter Banu vs. Additional Deputy Commissioner;(1964) 16 DLR 673

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Under section 31

Criterion for determining the amount of compensation by the arbitrator

While determining the amount of compensation this is to be guided by sections 8, 9 and 20. In this regard he cannot be guided by any criterion fixed by him arbitrarily without any basis whatsoever.114

If from time to time, the procedure of assessing compensation is changed, the arbitrator is to be guided current mandates of law.115

Constitutionality of the proviso to section 31

In a case under this Ordinance this amendment made to section 31 was challenged alleging that by this amendment the power of the Arbitrator to act independently and to the exercise his discretion in a free manner has been curtailed and in this way the petitioner’s right to have protection of law as to compensation in case of acquisition of his land under the Ordinance has been seriously violated. But, the HCD held that since legislature is competent to legislate fixing amount of compensation, the amendment made in sections 31 of the Ordinance cannot be said to have violated the petitioner’s right of protection of law.116

According to Section 32

Appeal against the award of an Arbitrator

According section 43 (1) of the Ordinance, an appeal lies to the Arbitration Appellate Tribunal against the award of an Arbitrator. An appeal to the High Court Division against the award of an Arbitrator is not maintainable.117

Revision against the award of an Arbitrator114Bangladesh Represented by The Deputy Commissioner, Khulna vs. Mrs. Sayera Khatun and others; 4 MLR (1999) AD 180115 Province of East Pakkistan vs. Malu Bepary & others; 25 DLR (1973) 440116 Shahjan Ali Khan (md) and others vs. Government of Bangladesh and others;52DLR (2000) 99.117 Bangladesh Vs. Md. Mazibur Rahman; 14 DLR (1994)

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An Arbitrator appointed under section 27 is not a civil court at all within the meaning of the Code of Civil Procedure and as such, he is not a court subordinate to the High Court Division. So, an application u/s 115 CPC for revision against an award of Arbitration is not maintainable.118

Legal Status of the Award of the Arbitrator

According to sections 34 (3) of the Ordinance, every award made by the Arbitrator is deemed to be a decree within the meaning of section 2 (2), CPC and the statement of the grounds of every such award is a judgment within the meaning of section – 2 (9), CPC. This provision is significantly different from the provision of the (Emergency) Requisition of Property Act, 1948. An award made by an Arbitrator appointed under the 1948 Act was not a decree within the meaning of CPC.119

In the view of the deeming provision in section 32 (3) of the Ordinance the award of the Arbitrator is appealable as a decree and also executable as a decree. But the status of the Arbitrator has not undergone any change thereby. He is not elevated to the status of a civil court by virtue of the deeming clause (3) of section 32.120

Stamp duty on the award

Generally an award is an instrument chargeable with stamp duty. But ans award by arbitrator u/s 32 of the Acquisition and Requisition of Immovable Property Ordinance. 1982 is exempted from such stamp duty.121

Section 33 deals with the amount of costs incurred in the proceeding and by what persons and in what proportions there to be paid.

According to Section 34

Appeal against the award of an Arbitrator118 Thomarshau alias Majhi Vs. Bangladesh; 52 DLR (2000) 516

119 Mrs. Momtaz Mallic vs. the taxing Officer, HCD. 20 DLR120 Begum Lufunnessa Vs. Nizamuddin Ahmed & Other; 40 DLR 232121 Section 42

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Against the award of an Arbitrator an appeal may lie to the Arbitrator Appellate Tribunal. In such a case an appeal to the High Court Division is not maintainable.122

Period of Limitation for preferring an appeal to the Arbitration Appellate Tribunal

Section 34 prescribes no special period of limitation for preferring an appeal before the Arbitration Appellate Tribunal. In the absence of any special period of limitation prescribed in the Ordinance for preferring an appeal before the Arbitration Appellate Tribunal, the general law of limitation comes into play and as such section 5 of the Limitation may be restored to in such cases.123

Finality of the decision of Arbitration Appellate Tribunal

A decision of the Arbitration Appellate Tribunal although made final by fiction of law, is amenable to the revisional jurisdiction of the High Court Division under section 115 CPC. The same was held in the case of Khaleda Akbor vs. Bangladesh.124

In the case of Dhaka City Corporation, represented by its Mayor Vs. Abdus Salam, District Judge & Arbitration Appellate Tribunal, Dhaka,125 It was held that when the dispute as to preliminary assessment has been resolved by the Arbitration jurisdiction, such decision cannot be interfered with merely on the ground that assessment was made on the basis of photocopy of the kabala deeds in the absence of anything showing contrary thereto.

Constitutionality of the proviso to Section 34

In a case under this Ordinance this amendment made to section 34 was challenged alleging that by this amendment the power of the Tribunal to act independently and

122 Bangladesh Vs. Md. Mazibur Rahman: 14 BLD (1994) 362123 Govt. of BD Vs. District Judge, Dhaka and Arbitration Appellate Tribunal, Dhaka and others; 17 DLR (1997)

124 4 MLR (1999) (AD) 399125 4MLR (1999) (AD) 399

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to exercise his discretion in a free manner has been curtailed and in this way the petitioner’s right to have protection of law as to compensation in case of acquisition of his land under the Ordinance has been seriously violated. But, the HCD held that since legislature is competent to legislate fixing amount of compensation, the amendment made in section 34 of the Ordinance cannot be said to have violated the petitioner’s right of protection of law.

Section 34A deals with the payment of additional compensation

According to section 35 nothing in the Arbitration Act, 1940, shall apply to arbitrations under this part.

Constitutionality of Acquisition and Requisition

Article 42 of the constitution of Bangladesh guarantees citizen right to acquire, hold, transfer or otherwise dispose of Property, Subject to restriction imposed by law. It is also said that no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law. On the other hand, under the provisions of The Acquisition and Requisition of Immovable property Ordinance, 198234 the state is empowered to acquire any private property for public purpose with compensation. Now the question may arise whether such compulsory acquisition or requisition is constitutional or not. If we dissect The Article 42 of the constitution, we see that. It give the citizen the right to property subject to restriction imposed by law. It means the citizen right to property can be infringed by authority of law. Again It prohibits compulsory acquisition and requisition without authority of law. It means if there is authority law the state can compulsorily acquire or requisition the private property. So it can be inferred that the Acquisition and Requisition under The Provision of The Acquisition and Requisition of Immovable property Ordinance, 1982 is not violative of constitutional Provision of right to property.

On the other hand, it may, however, seem apparent that the first part of Clause (1) of Article 42 contemplates the existence of a property which can be enjoyed and over which rights can be exercised. How could the question of putting restrictions on the exercise of the right to acquire hold, transfer or otherwise dispose of

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property arise if one is totally deprived of it. If under the grab of imposing restrictions the property is acquired “there is no property in respect of which the petitioner can claim the fundamental right to acquire, hold or otherwise dispose of it nor can there be any occasion for placing any restriction on such a right.

The first part of Clause (1) of Article 42 deals with the right to freedom guaranteed to all citizens. This right to freedom is a personal right and does not appear to include the power to acquire the property of a citizen. While, on the other, under the second part of Clause (1) of Article 42 the state may compulsorily acquire, nationalize or requisition a person’s property. The property is thus transferred to the State.

It will be clearer by the following discussion and some relevant case laws given bellow under following headings:

State’s power to acquire property under constitution

Encroachment by the state upon private property is a consequence of the normal functioning of the various public services it has so far created. For the good of the public at large, every state practices expropriation in one form or another.

Article 42 of the constitution of Bangladesh delimits the States Power to deprive any person, whether a citizen or non-citizen of his property. The second paragraph of the Article formulates the fundamental right in a negative form imposing the restriction upon compulsory acquisition nationalization or requisition of property save by authority of law. Speaking affirmatively, it implies that property can be so acquired, or requisition if there is any law authorizing such action.

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Clause (2) of the Article impose two limitation on the state’s power to expropriate. Firstly, the law under which any property is acquisition and requisition should provide for payment of compensation to the expropriated owner. It is worthy to mention here that is original constitution permitted acquisition and requisition even without compensation. under the provisions of the original constitution many properties were acquired without compensation, but by subsequent amendment the provision for acquisition and requisition without compensation was been taken away. And, secondly, the law when it provides for payment of compensation, must specify the principle upon which the compensation is to be given. Since the clause has expressly excluded the principle of judicial review, the adequacy of compensation can not be determined by a court of law.126

So from the above discussion it is appeared that, subject to certain limitations the state is authorized under constitution to acquire or requisition the private property for public purpose.

Doctrine of ‘Eminent Domain’

The expression ‘eminens dominium’ seems first to have been used by Grotius, in 1625. As understood by him, the power of eminent domain was limited morally, if not legally, to acquisition for purposes of public utility and was subject to the liability to compensate the dispossessed owner.

The concept of eminent domain involves recognition of the principle of the justice necessity of compensation to the person whose property in acquired for public purposes; this was recognized earlier in Roman Law and Code of Nepoleon.127

The Fifth Amendment to the United States Constitution is based on the assumption that the power of the eminent domain was inherent pr implied, so no necessity was felt for granting express power to the legislature to make laws for acquiring land compulsorily. The power of eminent domain is inseparable from the sovereignty of the State and related to the ‘power of the Sovereign to take property for public use without the owner’s consent’. The State cannot contract away this right. For reasons of safety of the citizens, as, when a building is in a dilapidated condition,

126 Munim, F.K.M., Right of the citizen under the constitution and law, Dhaka, BILIA, 1975.127 Munim, F.K.M., Right of the citizen under the constitution and law, Dhaka, BILIA, 1975

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or when fire is spreading, or for the preservation of health, the authorities may have to destroy property.

If Article 42 will at all be considered as having conferred police power on the legislature in relation to rights of property and also as having made an express grant of the power of eminent domain, it should appear obvious that the first part of Clause (1) of the Article contains the police power of the State while the second part of Clause (1) makes an express grant of the power of eminent domain, Clause (2)of the Article being only an elaboration of the second part of Clause (1).

Case laws

It was observed in an Australian case of Ministry of State for the Army Vs Dalziel128 that, “One of the characteristic features of a fully sovereign power is its legal right to deal as it thinks fit with anything and everything within its territory,”

In the decision of the case of State of West Bengal Vs Subodh129 is “In relation to deal with property this right, includes the powers of ‘eminent domain’ i. e., the power of a sovereign state compulsorily to acquire, in accordance with law, on payment of compensation, the property of the citizens and non-citizen residing in the state, the ‘police power’ and the power of taxation.”

Our Supreme Court has also authorized the Sate in a negative manner to acquire private property by the decision of the case of Chairman Bangladesh Steel Mills Corporation Vs Masood Reza130 it was held that, “Property of a citizen can neither be acquired nor be retained by the Government unless it is done under proper legislative authorization. A citizen’s property cannot be seized also under colorable exercise of power conferred by the legislature.” This decision indicates that, property can be acquired under proper legislative authorization.

128 68 C.L.R. 261 at p. 284 (1944) 129 AIR 1954 SC 92 at 110130 30 DLR (AD) 169

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The State, when acquire any property, must do so with compensation, as it was said in the case of Grace Brother Ptv. Ltd. Vs The Commonwealth131 that, “An expropriated owner must, if he is treated justly, be entitled to obtain the value of his property as at the date of acquisition.” It was held in another case namely Nageswara Vs Andhra Pradesh S.R.T. Corporation132 that, “No question of payment of compensation would, therefore, arise unless any property has been taken by way of acquisition or requisition.”

Article 42 of the Constitution of Bangladesh provides not ‘just compensation’ to be paid to the expropriated owner but ‘compensation’ whose amount may be fixed by the law acquiring property compulsorily or the law may specify the principles on which and the manner in which it is to be determined and given. Though under clause (2) of Article 42 of the constitution no question can be raised as to the adequacy of compensation. But it was held in the case of Vajravelue Vs Special Deputy Collector133 that, “Though clause (2) of this Article has excluded judicial review in respect of adequacy of compensation, the question may still arise whether Parliament, providing the principles for determining compensation, should lay down such standard as may be considered relevant to the property acquired or to the value of the property at or about the time it is acquired.”

In another case namely Zahed Hossain Mia Vs Deputy Commissioner, Chittagong and others134 it was held that, “When the land is urgently required for Government purpose and duly serving notice under section 3 and hearing objection under section 4 of the Ordinance there is no ground to interfere with the acquisition proceedings.”

Even where the implementation of plan for which the land was acquired is delayed, it is said in the unreported case of M/S. Nasirabad Properties Vs. The Chittagong Development Authority and other, Civil appeal No.48 of 1965, dismissed on 7.8.1974, the question of deprivation of right to property was argued as there was no time limit for execution of the work and that by itself cannot tantamount to deprivation of property of the owner whose land has been validly acquired by the Chittagong Development Authority.

131 72 C.L.R. 269 (1946)132 AIR 1959 SC 304 at p. 318133 AIR 1965 SC 1017134 50 DLR (AD) 15

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Govt. is not bound to back the property but in case of requisition the Govt. is bound to back that”

So, from the decisions of the above mentioned cases it is clear to us that, the State is constitutionally empowered to acquire and requisition the private property for public purpose.

Where the property is acquired and subsequently is released, the Govt. is nor bound to give back the property to the owner. The relevant case in this regard is Abul Basar Vs Bangladesh and others 135 it was held that, “in case of acquisition

Concluding Remarks

The provisions of Article 42(1) deals with the different subject matters: in the first part, the fundamental right of every citizen to acquire, gold and dispose of his property is declared but it is also provided that restriction may be imposed upon the exercise of such a right by law. The second part deals with the complete deprivation of the right to property as has been declared in the first part, as a result of the compulsory acquisition, nationalization or requisition. The ‘restriction’ contemplated in the first part must be different from the consequential legal incidence of complete extinction or near extinction which occurs because of the acquisition, nationalization or requisition, as contemplated in the second part.136

Finally, in justification of constitutionality of the Acquisition and Requisition of Immovable Property Ordinance, 1982 we can say that, it does not infringe the provisions of Article 42 of the constitution, because the word ‘restriction’ used in the Article 42 in “wide enough to include within it complete deprivation of one’s right to property and also total prohibition of the exercise of such right.”137

Court’s Function In Requisition Cases

When dealing with the requisition cases the High Court is merely concerned with seeing as to whether the officer empowered to requisition has acted bonafide in the 135 50 DLR (AD) 11136 Ali Ekabbar Farazi Vs Bangladesh, (1974) 26 DLR 394137 ibid

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discharge of his duties and as to whether there was any material upon which the subjective satisfaction of the officer with regard to the necessity and the expediency of the requisition could have been founded. It is not concerned with the adequacy or the sufficiency of those reasons, nor had it any power to sit in an appeal over his action.

There are some cases the principles of which allocate the role of courts in the requisition cases. Some of them are following-

· In the cases of –The College of Music vs. Secretary, Revenue Department, Govt. of Bangladesh and others 138

It was decided that- If the government finally decides not requisition any property this court is not required to examine to whether the public purpose actually existed or not or whether in saying that there was no public purpose in requisitioning the property the government was unjustified or not.

But court can now examine and determine the question of public purpose in order to test the legality of the order passed under the amended section 3 of the ( Emergency ) Requisition of Property Act, 1948.

· The court can go into the validity of requisition under section 3 of the (Emergency) Requisition of Property Act,1948.A case in this principle is – Kumudini Welfare Trust vs. Province of East Pakistan139

· The principle of- Sarat Kumar Kanungoe vs. Province of East Pakistan140

When the government or its officers apply their mind to the necessity of the requisition, the court will be very reluctant to interfere with such decision.

· In the case- Soleman Bibi and others vs. Administrator, Farajikandi Complex 141

138 27 DLR 487139 13 DLR 693140 10 DLR 393141 45 DLR 727

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It was held that if the order passed or action taken by any authority is malafide, civil courts shall have jurisdiction to entertain a suit to see whether the action is in conformity with the law in question.

Bar To The Jurisdiction Of Court

Though according to the (Emergency) Requisition of Property Act, 1948 in case of an order or an act which is wholly outside the purview of the said Act, there is no bar to file a suit, under section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 the civil court has no jurisdiction in case of Requisition of property. This is the principle of-

Ali Jan Khan vs. Bangladesh142

Section 44 0f the Acquisition and Requisition of Immovable Property Ordinance, 1982 says-

“Save as otherwise expressly provided in this Ordinance, no court shall entertain any suit or application against any order passed or any action taken under this Ordinance, and no jurisdiction shall be granted by any court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Ordinance.”

Besides that, it is not for the court to decide what accommodation is necessary, nor how it is to be provided for the necessities of the administration. Revision of such necessities by the court is entirely beyond the scope of court’s power. The re vision against the order of requisition lay with the appropriate authority as provided by statue.

Jurisdiction of Court and Public Interest:

In the case of-

142 37 DLR (AD) 161

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Md. Masudul Hussain and another vs. The Deputy Commissioner Dhaka and others143

On behalf of the respondent it was contented that when a final decision of acquisition is made under section 5(1) after consideration of the reports submitted under section 4(3), such decision becomes final and conclusive evidence that the property is needed for a public purpose or in public interest. In this regard the case of-

Province of East Pakistan vs. Dr. Azizul Islam

was cited by the respondent wherein it was held-

“Presumption that official act of requisition had been regularly and property performed. – Onus would be upon the person seeking to challenge the correctness of the recital to show the contrary.”

However after observation the court took the decision that-

“With the passage of time and change in the law relating to the requisition and acquisition of the property, the superior courts have consistently laid down the principle that if the order of the requisition and acquisition is made without following the prescribed procedures it is not outside the scope of the superior court to see whether it is for public purpose or for collateral purpose or for the benefit of an individual or a group of individuals.”

In the case of-

Radha kanta Banik vs. province of East Pakistan.144

It was held-

Executive authority to finally say how much property for public purpose is to be requisitioned; the court cannot interfere with that.

In another case it was held that if from the pleading it can be seen that the purpose doesn’t appear to be in public interest, the civil court’s jurisdiction is not ousted.145

143 15 BLD (1995)144 20 DLR 818145 7 DLR (AD) 161

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Condition for Prosecuting a Suit

In the case of –

Madbar Khan and others vs. Province of East Pakistan and others

It was held that in order to prosecute a suit, it must be shown that the impugned order cannot be passed or that the order doesn’t amount to a order under the (Emergency) Requisition of Property Act, 1948, that is to say , the order itself is incompetent.

Maintainability of a Suit on the Plea of malafide

Sometimes, the question arises as to the operation of ouster clause in case of an action which is alleged to be malafide. In the case of –

Abdul Rauf and others vs. Abdul Hamid

The then Supreme Court was considering a similar provision providing for ouster of jurisdiction of civil courts.

But in the case of-

Nur Mohammad & others vs. Moulvi Mainuddin Ahmed & others

The question arose as to the maintainability a suit instituted on the plea of malafide on the part of the authority making the order of requisition. In this case it was held that “No legislature grants power for malafide exercise of it and when such malafide is alleged in fact, the civil courts have the power to investigate and give decision thereon.

Suit for Compensation in case of Damage to the Requisitioned Property:

If any damage had been caused to the building, presumably the government would set it right before handing back the property to the owner, and on its failure to do so a cause of action may then arise in favour of the owner for claiming compensation for the damages. However any such claim during the continuance of requisition is premature.

Compensation

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Compensation claimable in respect of a requisition is to be determined according to the procedure laid down in sec 7 of Emergency requisition of Property Act, 1948146. This section makes provisions for a private agreement on the subject of compensation and, failing that a decision of an arbitrator would be decisive of the matter, subject to a further remedy to a Civil Court if the owner feels dissatisfied with the compensation awarded. That stage, however, could only arise after the arbitration proceedings had duly ended.

If anything could be justifiably claimed for expenses incurred by the plaintiffs in shifting from premises in question to another house, it could conceivably be the subject of proceeding under sec 7 and could not be taken to a Civil Court direct.

The scheme of compensation would seem to militate against a supposed right of the owner to sue the govt. in the Civil Court for compensation for alleged damage while the building remains under requisition.147

In respect of immovable property under sec 7 an agreement regarding compensation to be valid must be between the claimant and the Provincial Government.

The function of agreeing as regards the amount of compensation in respect of immovable property is not one which the District Magistrate is competent to exercise. It could only be performed by the Provincial Government itself.

An agreement to be a valid agreement within sec 7 should be between the claimant on the one side and the Provincial Government on the other148.

Ownership of the property acquired determines the right to compensation---

Payment of compensation will be determined on the day the property stands acquired. Bangladesh vs. A Khaleque149

In respect of tenanted land

146 Now repealed147Province of East Pakistan vs. Abdul Aziz Chowdhury 12 DLR (SC) 161. 148 The Chandpur Mills Ltd vs. Province of East Pakistan 11 DLR (SC) 53.14929 DLR (SC) 110.

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Tenant entitled to compensation if the Requisitioning Authority requisitions the land tenanted to him and even if such tenanted land is a khas land of the Government.

In the present case Government was the owner of certain land of which the petitioner was the tenant under the government. Government requisitioned land but refused to pay compensation on the ground that it was a khas land.

Held: A tenant under the government is also entitled to compensation when such property is requisitioned.150

Section 7

The plaintiff being entitled to a decree that the suit property is not an abandoned property and the Government having disclaimed the same as requisitioned property, the latter is liable to restore its possession to the plaintiff and also to pay rent/compensation under the Requisition of Property Act for its use and occupation from 14.2.72 till the possession of the property is restored to the plaintiff.151

Appeal against arbitrator’s award of compensation: Question of limitation for the appeal and nullity of the award: When the arbitrator had jurisdiction to determine compensation under sec 7 of the act but did not determine it in accordance with the provision thereunder that would then be an error In exercise of his jurisdiction and in such a position the award cannot be regarded to be one without jurisdiction and a nullity. The Court cannot probe into the question of nullity of the award sitting in appellate jurisdiction when the appeal had not been filed within the period of limitation.152

Proviso clause (e) of sec 7 in case of acquisition of immovable property for the establishment of an industry by a private party the rate of additional amount over the compensation awarder shall be a sum of rupees 25% on the market value of the property instead of 15% as provided in sub-sec (2) of sec 23 of the Land Acquisition Act. It, therefore, follows that where the property is acquired for the Government the additional amount shall be 15% and not more.

150 AKM Lutful Rahman vs. Province of East Pakistan 22 DLR 363.151 Md Zaher vs. Bangladesh 42 DLR 430.152Bangladesh vs. Md Ishaque 45DLR 223.

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Acquisition and Requisition of Immovable Property Ordinance, 1982 says about the compensation for requisition of immovable property on sec 21 of Part III(requisition).

Payment of Compensation---

(1) On making an award under sec 20, the Deputy Commissioner shall tender payment of the shall pay it to them unless prevented by some one or more of the contingencies mentioned in sub-sec (2).

(2) If the persons entitled to compensation do not consent to receive it, or if there be no person competent to receive the compensation, or if there be any dispute as to the title to receive compensation, or as to the apportionment of it, the Deputy Commissioner shall keep the amount of the compensation in a deposit account in the Public Account of the Republic which shall be deemed payment of the compensation for the requisitioned property without any prejudice to the claim of the parties to be determined by the Arbitrator.

Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:

Provided further that no person who has received the amount otherwise than under protest shall be entitled to make any application under sec 28;

Provided further that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this part, to pay the same to the person lawfully entitled thereto.

According to section 5 of The Requisition of Immovable Property Rules, 1882

Assessment of Compensation of Requisition

(1) In making the award of compensation the Deputy Commissioner shall, taking into consideration, the principles laid down under sec 20, see that—

(a) the owner receives such compensation in case of which he is temporarily deprived; and

(b) In case the property is a cultivable land the owner receives the compensation for loss of crops.

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(2) In determining compensation for standing crops average yield per acre in the locality of the kind of produce multiplied by price of the products per unit shall be calculated.

Conclusion

An immovable property required by the govt. for the purpose of public welfare or interest is called requisition of immovable property. To make property requisitioned or nationalized, govt. should follow the rules of requisitioning property for certain time by giving compensation under the existing law to protect that aggrieved person’s legal right. In Bangladesh, there are some special laws and local laws also to requisitioning property. As a developing country, requisition and acquisition is very common in Bangladesh and laws prevailing in our country are sufficient to solve the problem arising when property is requisitioned. Development of a country depends upon the proper use of land for the purpose of both private and public interest.

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