IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 8131 of 2020

In the matter of:

An  application  under  article 102(1),(2)(a)(i)(ii) read with article 44 of the Constitution  of  the  People’s  Republic  of Bangladesh.

      AND

In the matter of:

Shahnaj Parvin and others

                  ………… Petitioners. -Versus-

The  Government  of  Bangladesh, represented by its Secretary, Ministry of Local  Government,  Rural  Development and  Cooperatives,  Secretariat,  Ramna, Dhaka and others,

        ... Respondents. Mr. Mohammad Rafiul Islam, Advocate,

           …For the Petitioners. Mr. Bepul Bagmar, D.A.G,

...For the Respondent No.1. Mr. Mintu Kumar Mondal, Advocate

…..For the respondent No.2.

Judgment on: 12.05.2024

Present:

Mr. Justice Md. Khasruzzaman

and

Mr. Justice K M Zahid Sarwar

MD. KHASRUZZAMAN, J.:

In the application under article 102(1)(2)(a)(i)(ii) read with article 44  of  the  Constitution,  on  07.12.2020  the  Rule  Nisi  under adjudication was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause  as  to  why  without  acquiring  the  petitioners’  land  as

described in the schedule of the writ petition the construction of bridge by the respondents should not be declared to have been made without lawful authority and is of no legal effect and/or such other or further order or orders as to this Court may seem fit and proper.”

At the time of issuance of the Rule Nisi, the respondents were restrained by an order of injunction from constructing any work on the petitioners’ land described in the schedule of the writ petition. However,  the  respondents  were  allowed  to  proceed  with  the development works if the land is acquired or khas or government land.

Challenging  the  said  interim  order  of  injunction  dated 07.12.2020,  the  respondent  No.5  Executive  Engineer,  LGED, Manikganj filed Civil Petition for Leave to Appeal No. 2424 of 2020 before the Appellate Division. The Appellate Division vide its order dated  11.01.2021  disposed  of  the  civil  petition  and  stayed  the interim order of injunction till disposal of the writ petition by the High Court Division.

Thereafter,  the  writ  petitioners  filed  an  application  for issuance  of  a  supplementary  Rule  Nisi  stating  that  since  the respondents have already constructed bridge and its approach road upon the lands of the petitioners without paying any compensation, they have filed this application for direction upon the respondents for  realization  of  compensation  money.  Having  considered  the submissions and perused the application,this Court by order dated 16.05.2023  issued  a  supplementary  Rule  Nisi  in  the  following terms:

“Let  a  supplementary  Rule  Nisi  be  issued  calling  upon  the respondents  to  show  cause  as  to  why  they  shall  not  be directed  to  pay  compensation  money  for  the  lands  of  the petitioners as described in the schedule of the writ petition as per the provision of the ¯’vei m¤úwË AwaMÖnb I ûKzg `Lj AvBb, 2017 and/or pass such other or further order or orders as to this Court may seem fit and proper.”

Facts necessary for disposal of the Rule Nisi, in short, are that petitioner No.1 got 30.00 decimals of land under R.S. Khatian Nos. 198,179, 151 and 163 corresponding to R.S. Plot Nos. 355, 353, 357, 308 and 346 by Deed of Gift No. 6289 dated 13.08.2018. Thereafter, she got 5.50 decimals of land under R.S. Khatian No. 26 corresponding to R.S. Plot No.359 by Deed of Gift No.6458 dated 16.08.2018 and lastly, she got 1.50 decimals of land under R.S. Khatian No. 26 corresponding to R.S. Plot No.359 by Deed of Gift No. 6736 dated 04.09.2018. Accordingly, the petitioner No.1 has become an owner of 37.00 decimals of land on the basis of the above three deeds of gift. Petitioner Nos. 2 to 5 are the owners of 19.71 decimals of land under R.S. Khatian No. 222 corresponding to R.S. Plot No.351 by Deed of Gift No.3223 dated 11.04.2018. Petitioner No.6 and others are the owners of 21.50 decimals of land under R.S. Khatian No.6 corresponding to R.S. Plot No.358  by purchase vide deed dated 12.05.1997. Petitioner Nos. 7 and 8 are the owners of 63.75 decimals of land under R.S. Khatian No. 26 corresponding to R.S. Plot Nos.359 and 360 by purchase vide sale deed No. 91 dated 06.01.2008. Petitioner Nos. 9 to 11 are the owners of 4.20 decimals of land under R.S. Plot Nos. 424 and 425 by purchase. One Mohabbat Ali was the recorded owner of the land under R.S. Khatian Nos. 360, 163, 179 and 208 corresponding to R.S. Plot Nos. 344, 345, 346, 354 and 357. Said Mohabbat Ali died leaving behind Alauddin, Khokon Miah, Rabeya, Rahela and Ambia including petitioner No.12. Petitioner No.12 is the owner of more or less  17.00  decimals  of  land  in  the  above  khatian  and  plots. Petitioner No. 13 is the owner of 15.00 decimals of land under R.S. Plot No.222 corresponding to R.S. Plot No.351 by deed of Heba Bil Awaz  No.4582  dated  03.06.2018.  Petitioner  No.14  got  2.00 decimals of land under R.S. Khatian No.178 corresponding to R.S. Plot No.424 by deed of sale dated 16.08.2018.Thereafter, she got 2.00 decimals of land under R.S. Khatian No. 127 corresponding to R.S. Plot No. 340 vide deed of purchase No.6735 dated 04.09.2018. Lastly, she got 1.50 decimals of land under R.S. Khatian No.178 corresponding  to  R.S.  Plot  No.424  by  purchase  deed  No.  7715 dated  02.10.2018.  So,  the  petitioner  No.14  is  the  owner  by purchase of total 5.50 decimals of land on the basis of the above three deeds of purchase. Petitioner No.15 got 2.75 decimals of land under R.S. Khatian No. 178 corresponding to R.S. Plot No. 424 by deed of sale No.6123 dated 07.08.2018. She thereafter got 17.39 decimals of land under R.S. Khatian No.26 corresponding to R.S.

It  is  stated  that  on  23.04.2018  respondent  No.2,  Chief Engineer, Local Government Department (LGED), LGED Bhaban, Sher-E-Bangla  Nagar,  Agargaon,  Dhaka  issued  a  letter  to  the respondent No.1 (Senior Secretary, Ministry of Local Government, Rural Development and Co-operatives, Local Government Division) seeking approval to acquire 2.2779 acres of land for construction of the approach road for 360 meter in length PC Guarder Bridge over the  Kaligonga  river  in  Nawabgonj-Paragram  UZR  Sholla  UP Maniknagar JC Road under the project of ‘Construction of Large

Bridges on Upazila and Union’ (Annexure-A). Out of the proposed 2.2779 acres of land, 2.0319 acres is for the approach road within Sholla mouza, Singair of Manikganj District and 0.246 acre is for Nawabganj-khatia of Dhaka District. After taking approval from the Ministry, the requiring body i.e. respondent No.5, Executive Engineer, LGED, Manikganj vide his Memo No. Gj wR B wW / wbt cÖt / gvwbKMÄ / 2018 / 2157 dated 03.09.2018 requested the acquiring body

i.e. respondent No.6, Deputy Commissioner, Manikganj to acquire 2.0319  acres  of  land  situated  in  the  part  of  Manikganj  for construction of 360 meter in length PC Girder RCC Bridge over the river Kaligonga (Annexure-B). Thereafter, Land Acquisition Officer, Manikganj  vide  his  Memo  No.05.30.5600.303.02.014.18-177(4) dated 08.11.2018 requested the Additional Deputy Commissioner (Revenue),  Upazila  Nirbahi  Officer,  Singair  and  Assistant Commissioner  (Land),  Singair  to  give  opinion  with  a  report regarding feasibility of the acquisition of the land for construction

of approach road and bridge (Annexure-C). After completion of the

said feasibility study, respondent No.6 being the acquiring body initiated  L.A.  Case  No.03/2018-2019  and  issued  notices  under section  4(1)  of  the  Acquisition  and  Requisition  of  Immovable Property  Act,  2017  upon  the  petitioners  to  acquire  their  lands (Annexure-D). After taking final decision of the acquisition under section  6  of  the  Act,  on  31.03.2019  the  respondent  No.6,  the Deputy Commissioner, Manikganj issued notices under section 7(1)

of  the  said  Act  to  appear  before  him  along  with  all  necessary

documents on the date and at the time as fixed therein to explain their  title  and  interest  in  the  lands  proposed  to  be  acquired (Annexure-E). But without completing the process of acquisition and without paying any compensation, the requiring body i.e. the respondent No.5 started constructing the bridge and the approach road on the lands of the petitioners (Annexure-F) (Photographs of the constructed bridge). In such circumstances, on 03.06.2019 the petitioners  made  representation  to  the  requiring  body  i.e. respondent No.6 asking their compensation (Annexure-G).

It is stated that on 25.07.2019 the acquiring body i.e. the respondent  No.6  vide  letter  dated  25.07.2019  requested  the requiring  body  i.e.  respondent  No.5  to  deposit  TK.13,99,54,460 (Thirteen Crore Ninety Nine Lac Fifty Four Thousand Four Hundred and Sixty) within 120 days as compensation money against the aforesaid acquisition of the lands (Annexure-H). The requiring body i.e.  the  respondent  No.5,  without  depositing  the  compensation money in favour of the respondent No.6 and without paying any heed to the representation of the petitioners dated 03.06.2019, issued  letter  to  respondent  No.9  (DIRD  Engineering  Limited) granting work order of construction of Reinforced Earth (EC) Wall of 360 meter in length PC Girder RCC Bridge (Annexure-I). Under such circumstances, the petitioners filed Writ Petition No.10691 of 2019 and obtained Rule Nisi and a direction to dispose of their representation  dated  03.06.2019  vide  order  dated  03.11.2019 (Annexure-J). After the Rule Nisi was issued in that writ petition, respondent No.4, Executive Engineer, Agargaon, Dhaka Zone by his letter dated 13.11.2019 informed the respondent No.3, the Project Director,  stating  that  since  the  fund  is  insufficient,  the construction  work  of  approach  road  will  be  completed  on  the existing  road  and  no  land  is  required  for  acquisition.  The respondent No.5 also by his letter dated 19.11.2019 requested the respondent  No.6,  the  Deputy  Commissioner,  to  cancel  the acquisition process (Annexure-K). After the acquisition process was cancelled,  the  cause  of  action  for  filing  above  Writ  Petition No.10691 of 2019 has lost it force and as such, the petitioners got the  Rule  Nisi  discharged  for  non  prosecution  on  15.10.2020 (Annexure-L).

Thereafter, on 27.02.2020 one Md. Sakhawat Hossain and the writ petitioners jointly made representation to the acquiring body i.e. the respondent No.6 seeking remedy in accordance with law.  On  the  basis  of  the  representation,  an  enquiry  committee consisting of (1) Executive Engineer, Manikganj LGED, (2) Upazila Nirbahi  Officer,  Singair,  Manikganj,  and  (3)  Assistant Commissioner (Land), Singair was constituted to enquire into the matter.  After  holding  physical  enquiry  the  enquiry  committee submitted report dated 20.06.2020 stating that though the process of  acquisition  was  cancelled  by  LGED,  they  have  already constructed the bridge and approach road over the land of the private parties not the existing road (Annexures- M and M-1).

Under such circumstances, the petitioners filed the instant writ petition and obtained the Rule Nisi and an order of injunction in the manner as stated hereinabove on 07.12.2020.

Respondent  No.2,  Chief  Engineer,  Local  Government Engineering  Department  (LGED)  filed  an  affidavit-in-opposition denying  the  material  allegations  made  in  the  writ  petition  and contending inter-alia that due to shortage of fund, the design of the approach road was changed proposing to construct the approach road on the existing road by making Reinforced Earth Wall (EC) and there was no necessity of acquiring any land. This proposal was sent to the Project Director on 18.02.2019 and 13.11.2019. Thereafter, on 02.01.2020 the administrative approval for acquiring the  land  was  cancelled.  The  claim  of  the  petitioners  is  totally unspecific, vague and upon such claim the writ petition cannot be maintained since the claim is not admitted by the respondents. As such, it is stated that the Rule Nisi is liable to discharged.

Mr. Mohammad Rafiul Islam, the learned Advocate appearing for the petitioners submits that the respondent No.6 being the acquiring  body  initiated  L.A.  Case  No.  03/2018-2019  for acquisition of the lands of the petitioners and issued notices under section  4(1)  of  the  Acquisition  and  Requisition  of  Immovable Property Act, 2017 and thereafter, upon taking final decision in favour of such acquisition, the respondent No.6 with a view to take possession issued notices under section 7(1) of the said Act, 2017 requesting the petitioners to appear and explain about their title over the lands. Thereafter, the requiring body i.e. the respondent No.5  has  been  asked  by  the  acquiring  body  to  deposit  the compensation money within 120 days, the requiring body all of a sudden  issued  letter  to  the  acquiring  body  i.e.  the  Deputy Commissioner, Manikganj requesting him to cancel the process of acquisition. He further submits that there is no bar in law to cancel the process of acquisition. But in one hand they cancelled the process of acquisition and in other hand, they have completed the development work of constructing approach road and the bridge over the Kaligonga river on the petitioners’ lands. Without paying any compensation the respondents under no circumstances can construct the approach road and the bridge in question. Right to get compensation in  lieu of their lands  is a fundamental right under  article  42  of  the  Constitution  and  this  right  of  getting compensation is protected under article 31 of the Constitution and as such, the petitioners are entitled to get compensation for their lands. Accordingly, he prays that the Rule Nisi is liable to be made absolute.

Mr.  Bepul  Bagmar,  the  learned  Deputy  Attorney  General appearing for the respondent No. 1 submits that since the process of acquisition has been cancelled by the respondents, and after revising the design of the approach road, the construction of such approach road on the existing road has already been completed as per order dated 11.01.2021 passed by the Appellate Division in Civil Petition No. 2424 of 2020. Thus the question of payment of compensation does not arise at all. In such circumstances, the claim of the writ petitioners becomes a disputed question of fact which is not amenable under the writ jurisdiction. As such, the Rule Nisi is liable to be discharged.

Mr. Mintu Kumar Mondal, the learned Advocate appearing for the respondent No.2 has adopted the submissions so made by the learned  Deputy  Attorney  General  for  the  respondent  No.1  and prayed for discharging the Rule Nisi. The petitioners if so advised may seek remedy before the competent civil Court not before this writ jurisdiction since the claim of the petitioners is required to be substantiated by taking evidence which cannot be done in the writ petition.

In  reply  to  the  submissions  of  the  learned  Advocates  for  the respondents, Mr. Mohammad Rafiul Islam, the learned Advocate for the petitioners submits that right to property is a fundamental right and for the enforcement of such right the affected person can come directly before the High Court Division under the writ jurisdiction. Referring to the case of Government of Bangladesh, represented by the Ministry of Works and another Vs. Syed Chand Sultana and others, 18 BLD (AD) 274, he submits that the writ petitioners need not have invoked the jurisdiction  of  the  civil  Court  because  the  very  non  payment  of  the compensation money of the land used for construction of the approach road is violative of article 42 of the Constitution and as such, they have come  directly  to  the  High  Court  Division  for  protection  of  their fundamental  right.  Accordingly,  he  submits  that  the  writ  petition  is maintainable under article 102 of the Constitution for protection of their fundamental  right  and  hence  the  main  Rule  Nisi  as  well  as  the supplementary Rule Nisi is liable to be made absolute. 

We have considered the submissions of the learned Advocates of both the parties and perused the writ petition along with all papers annexed thereto as well as the relevant law and decisions as referred to above.

On  perusal  of  the  materials  on  record,  it  appears  that  after obtaining  administrative  approval  from  the  Ministry,  the  Executive Engineer,  LGED,  Manikganj  being  the  requiring  body  requested  the acquiring body i.e. Deputy Commissioner, Manikganj for acquisition of 2.0319 acres of land for construction of the approach road vide Memo dated 03.09.2018 (Annexure-B). The Office of the Deputy Commissioner in compliance of such request vide letter dated 08.11.2018 under the signature of Land Acquisition Officer, requested the Additional Deputy Commissioner  (Revenue),  Upazila  Nirbahi  Officer  and  Assistant Commissioner (Land), Singair, Manikganj to make feasibility study of the acquisition of the land for construction of the approach road. Thereafter, the Deputy Commissioner, Manikganj issued notices under section 4(1) of the Acquisition and Requisition of Immovable Property Act, 2017. Afterwards, notices under section 7(1) of the said Act were issued upon the petitioners. On perusal of the notices under section 7(1) of the Act, it appears that the government has taken final decision to acquire the lands of the petitioners as required under section  6 of the Act. On 25.07.2019 the acquiring body i.e. the Deputy Commissioner, Manikganj (respondent No.6) sent the award of compensation to the requiring body (respondent No.5) requesting them to deposit the said amount in favour of the respondent No.6 for payment of the same to the petitioners being the  affected  persons  as  required  under  section  8  of  the  said  Act (Annexure-H).

It  appears  that  without  depositing  the  award  of  compensation money, the requiring body i.e. the Executive Engineer, LGED, Manikganj vide his letter dated 19.11.2019 informed the Deputy Commissioner, Manikganj stating that there is no necessity of acquisition of the land and  steps  were  taken  to  inform  the  Ministry  for  cancellation  of  the administrative approval for acquisition of the land.

Of  course,  the  acquiring  body  has  ample  power  to  cancel  or withdraw the process of acquisition. In sub-section (1) of section 14 of the Acquisition and Requisition of Immovable Property Act, 2017, it has been provided that if the requiring body does not deposit the estimated amount of compensation money within 120 days as per sub section (4) of section  8,  the  process  of  acquisition  shall  be  cancelled  and  in  that respect  a  declaration  shall  be  published  in  the  government  gazette notification by the Deputy Commissioner. In sub-section (2) of section 14,  it  has  also  been  provided  that  before  making  payment  of  the compensation,  the  Deputy  Commissioner  with  prior  approval  of  the government  can  cancel  entire  process  of  acquisition  through  gazette notification. In sub-section (3) of section 14, it has further been provided that if the process of acquisition is cancelled or withdrawn, the Deputy Commissioner will take necessary steps to give payable compensation money arising out from such process of the acquisition to the affected owners of the land. In the present case, we do not find any such gazette notification has been published by the Deputy Commissioner, Manikganj with regard to the cancellation of the process of acquisition.

However, from the statements made in the writ petition and the affidavit-in-opposition filed by the respondent No.2, it appears that the requiring body has already completed the construction of the approach road  and  the  bridge  over  the  river  Kaligonga.  It  appears  that  the petitioners  jointly  made  application  to  the  Deputy  Commissioner  for getting compensation money on 03.06.2019. But the said application has not been responded to by the respondents. It further appears that on 27.02.2020 one Md. Sakhawat Hossain and the writ petitioners jointly made an application seeking remedy to the respondent No.6 i.e. the Deputy  Commissioner,  Manikganj  alleging  that  the  respondents  are taking away their lands to construct the aforesaid bridge and approach road without completing the acquisition process and without paying any compensation  money.  In  view  of  the  said  application,  the  Deputy Commissioner,  Manikganj  being  the  acquiring  body  constituted  an enquiry committee consisting of (1) Upazila Engineer, LGED,  Singiar Manikganj,  (2)  Upazila  Nirbahi  Officer,  Singair  and  (3)  Assistant Commissioner (Land), Singair asking them to enquire into the matter physically  and  give  report  to  resolve  the  allegations  made  in  the application dated 27.02.2020. After physical inspection in presence of the applicants and the people of the construction firm, a joint enquiry report was submitted on 20.06.2020 (Annexures-M and M-1). In the report it has been mentioned that the approach road is being constructed over the land of R.S. Plot Nos. 351, 353, 354, 355, 357, 358 and 359 of Sholla  Mouza  under  Singair  Upazila, Manikganj.  During  enquiry  the enquiry committee also found that as per previous alignment the lands which are being used are private lands meaning that the construction of approach road was not made on the existing road.

By filing an affidavit-in-opposition, the respondent No.2 i.e. the

Chief Engineer, LGED has stated in paragraph No.11 that no private

land has been used for construction of the bridge. Mere making of any

such statement is not sustainable when the Upazila Engineer, LGED,

Singair by a physical inspection along with the acquiring body found that

the lands which are being used for construction of the approach road are

private lands. It is very important to note that the enquiry committee in

their joint report stated that they found that cy‡e©i GjvBb‡g›U Abyhvqx G‡cÖvP †iv‡Wi Rwg e¨eüZ n‡”Q hv e¨w³ gvwjKvbvaxb fzwg| As such, it can very well be presumed that

the approach road has been constructed on the basis of the earlier

design not changed design using the lands of the petitioners which were

proposed to be acquired under cancelled L.A. case. This joint report was

made by the acquiring and requiring body. It also appears that the said

joint report was sent to the respondent No.5 i.e. the Executive Engineer,

LGED,  Manikganj  (requiring  body)  for  taking  necessary  actions  vide

Memo dated 06.07.2020 (Annexure-M). Against that joint enquiry report,

the requiring body did not raise any kind of objection to the acquiring

body. So, there is a clear case that the lands which were used for

construction of the approach road of the bridge are the lands of the

petitioners. 

Under such circumstances, the point for determination is that whether the petitioners are entitled to get compensation money for the lands already used for construction of the approach road of the bridge over  Kaligonga  river.  Article  42(1)  of  the  Constitution  provides  that subject to any restriction imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property. It further provides that no property shall be compulsorily acquired, nationalized or requisitioned  save  by  the  authority  of  law.  (emphasis  is  given).  The second part of the article 42(1) provides for extinction of the right to property only by way of compulsory acquisition or nationalization under the authority of law. On the other hand, this right to property and get compensation  money  being  fundamental  right,  the  petitioners  are entitled to get compensation in accordance with law. This right to having compensation is protected under article 31 of the Constitution. As such, article 42(1) of the Constitution cannot be interpreted in a way which will render the protection of article 31 nugatory.           

So, it is clear that the right to property and compensation money for the land acquired/used for construction of the approach road is a fundamental right of every citizen including the petitioners. Enforcement of fundamental right upon invoking article 102(1) of the Constitution before  this  Division  is  also  guaranteed  under  article  44  of  the Constitution.

In the case of Syeda Chand Guttara and others Vs. Bangladesh, 48 DLR 547, it has been held that:

“The very fact that the inclusion of the disputed property in the ‘kha list’ have been found by us to be ex-facie void for want of jurisdiction and in violation of article 42 of the Constitution, it is our view that the petitioners can come directly to this Court for protection of their fundamental  rights  even  through  an  alternative  remedy  is available.”

Again in the case of Government of Bangladesh represented by Ministry of Works and another Vs. Syed Chand Sultana and others, 18 BLD (AD) 274, held that:

“The writ petitioners need not have invoked the jurisdiction of the Court of Settlement because the very inclusion of the property in question in the ‘Kha’ list is ex facie void for want of jurisdiction and is violative of article 42 of the Constitution. The writ petitioners can come  directly  to  the  High  Court  Division  for  protection  of  their fundamental right even though an alternative remedy is available.”

For the reasons and discussions made hereinabove, we find that the Rule Nisi as well as the supplementary Rule Nisi has merit and the same is therefore liable to be made absolute.

Accordingly, both the Rules Nisi are made absolute.

Hence, it is declared that without acquiring the petitioners’ lands  as  described  in  the  schedule  of  the  writ  petition,  the construction  of  the  bridge  and  its  approach  road  by  the respondents is without lawful authority and is of no legal effect.

The respondents are directed to pay compensation money for

the lands of the petitioners as described in the schedule of the writ

petition as per the provision of the ¯’vei m¤úwË AwaMÖnb I ûKzg `Lj AvBb, 2017 in accordance with law.

There will be no order as to costs. Communicate the order.

K M Zahid Sarwer, J.

I agree.