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Petitioner: BEGUM LUTFONNESSA IBRAHIM VS Respondent: THE PROVINCE OF EAST PAKISTAN
P L D 1969 Dacca 779
P L D 1969 Dacca 779
Before B. A. Siddiky and Mahmud Hussain, JJ
Begum LUTFONNESSA IBRAHIM AND 3 OTHERS‑Petitioners
Versus
THE PROVINCE OF EAST PAKISTAN AND OTHERS‑ Respondents
Petition No. 58 of 1967, decided on 15th June 1967.
(a) Town Improvement Act (East Bengal Act XIII of 1953), S. 79 read with Land Acquisition Act (I of‑ 1894), S. 9‑Proceed ings for acquisition of land taken under Town Improvement Act, and action to resume same land initiated under terms of lease granted by Government to occupants‑Area to be acquired or resumed different as stated in two notices‑Discrepancy affecting rights of citizens‑Necessity stressed of avoiding such discrepancy.
(b) Constitution of Pakistan (1962), Art. 98 ‑ Writ jurisdic tion‑High Court would not take upon itself the duties of a civil Court within its ordinary original civil jurisdiction.
(c) Town Improvement Act (East Bengal Act XIII of 1953), S. 79‑Proceedings for acquisition of land taken under Act‑Action by Additional Deputy Commissioner to resume same land under terms of lease granted by Government to occupant‑Whether Town Improvement authorities and Additional Deputy Commissioner agents of same principal i.e. Provincial Government and whether the cannot act differently‑[Robertson v. Minister of Pensions (1948) 2 A E R 767 distinguished].
(d) Constitution of Pakistan (1962), Art. 98 ‑ Controversial questions of fact involving interpretation of terms of lease agreement entered into between Government and petitioners' predecessor‑in -interest‑High Court decided to go into such questions under writ jurisdiction.
(e) Constitution of Pakistan (1962), Art. 98 ‑ High Court would not assess quantum of compensation (land acquisition case) or issue mandate to fix amount at a particular figure.
(f) Constitution of Pakistan (1962), Art. 98‑Not meant for enforcing contractual rights dependent upon interpretation of terms of an agreement.
(g) Town Improvement Act (East Bengal Act XIV of 1953), Ss. 26 & 27‑Chairman cannot bind Trustees by privately entering into commitments (agreement as to compensation etc.) with person whose land is being acquired
(h) Constitution of Pakistan (1962), Art. 98‑Remedy avail able under Town Improvement Act (East Bengal Act XIII of 1953)‑Case not suitable for being dealt with under Art. 98‑Pro ceedings for resumption of land under terms of lease granted by Government to occupant ‑‑ Resumption not result of executive order‑Case not fit to be considered under Art. 98‑[Anjuman‑e- Ahmadiaya v. D. C., Sargodha P L D 1966 S C 639 not applic able].
(i) Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 14 & Art. 98‑Fundamental Right No. 14 suspended since 6‑9‑1965‑Right has no application to a case of resumption of land in accordance with terms of lease granted by Government to occupant‑Writ petition based on such Right not entertainable.
Badrul Haider Chowdhury, Syed Ishtiaq Ahmad, T. A. Bhuiyan, K. E. Alam and Samad Mia for Petitioners.
Abdur Rahman Chowdhury for Respondent No. 2.
T. H. Khan with Md. Nurul Huque Bhuiyan for Respondent No. 3.
Dates of hearing : 25th, 26th, 27th, 28th April, 1st and 2nd May 1967.
JUDGMENT
B. A. SIDDIKY, J.‑The petitioners obtained this rule under Article 98 of the Constitution for a writ of manadamus on the respondents who are 4 (four) in number, to pay and assess the compensation under the provisions of Town Improvement Act of 1953, for the lands and structures of the petitioners requisition ed and acquired under the Town Improvement Act of 1953 and for declaration that the order of resumption dated 22nd November 1965, passed in Resumption Case No. 4 of 1966 is without any lawful authority and therefore null and void and is of no legal effect and for other incidental reliefs.
Petitioner No. 1 is the widow of late Mr. Muhammad Ibrahim and the petitioners Nos. 2, 3 and 4 are his sons and daughter respectfully. The 4 respondents are :‑(1) The Province of East Pakistan, (2) Dacca Improvement Trust, (3) The Addi tional .Deputy Commissioner, Dacca and (4) Mr. G. A. Madani, the then Chairman, D. I. T. (now Chairman, East Pakistan Water and Power Development Authority).
It is the case of the petitioners that late Mr. Muhammad Ibrahim, the predecessor‑in‑interest of the petitioners purchased Khas Mahal Plot No. 11, Purana Palatan of Touzi No. 15779 in Sheet No. 22, Ward No. 3 of Mouja Sahar Dacca measuring more or less .28926 acre (I7 kathas 8 chataks) of land with a two storied building thereon for his residential purpose from the heirs of one Paramesh Prasanna Roy on 13th of March 1953, by registered deed of sale for which he paid the full consideration . That the land in question was the khas mahal land of the Government of East Pakistan and the same was leased out to the said Paramesh Prasanna Roy by the Government on 22nd April 1924, for a term of 30 years to expire on 31st March 1954, with the right of successive renewal. Paramesh Prasanna Roy owned and possessed the said land and constructed a two storied building thereon for residential purpose. A kabuliyat by which the lease was granted has been annexed to the petition and marked Annexure `A'. That the said late Mr. Mohammad Ibrahim since his purchase had been in peaceful possession of the land and the building and since his death sometime in October 1966, the present petitioners are in possession. That on 13th of February 1954, late Mr. Mohammad Ibrahim applied to the Government of East Pakistan for renewal of the aforesaid lease and the same was ultimately granted in August 1960, and the deed of lease was registered on 25th of August 1960. A copy of the said lease has been annexed and marked Annexure `B'. That sometime in 1963, respondent No. 3 Additional Deputy Commissioner, Dacca started L. A. Case No. 131/62/63 by his order dated 20th March 1963, purporting to be an order under section 93‑A of the Town Improvement Act, 1953, requisitioning a part of the said leasehold land with structures thereon measuring .1275 for the Dacca. Improvement Trust Scheme "Requisition and Acquisition of land for Arterial North South Road phase No. II". The order of requisition has been annexed to the petition and marked Annexure `C'. Subsequently, the Additional Special Land Acquisition officer and Authorised officer, Dacca by his order dated 19th March 1964, derequisitioned the said land and building. During the period this order of requisition was in force i e., 20‑3‑1963 to 19‑3‑1964 the petitioners' predecessors- in‑interest was not disturbed in his occupation and enjoyment of the property. I he order of derequisition has been annexed to the petition and marked Annexure `D'.
On 25th of May 1965, the respondent No. 3 again requisi tioned an area of .1232 acre of the said lease hold land with the parts of structures thereon in the said L. A. Case No. 131/62‑63 for the Scheme "Requisition and Acquisition of land for Arterial North South Road as per Master Plan Phase II and development of neighbouring land for residential and commercial purpose". This order too is purported to have been made under section 93‑A of the Town Improvement Act of 1953. That in pursuance of the said order of requisition respondents took possession of the requisitioned land on 1st of June 1965, and after demolishing the pucca servants' quarter, garage and pucca boundary wall amalgamated and merged the land with the North South Road which was then under construction. That a part of the main two storied building from its Western side was affected by the said order of requisition and required to be demolished; that on 31st August 1965, Mr. Madani, respondent No. 4, the then Chairman of Dacca Improvement Trust visited the site and met late Mr. Mohammad Ibrahim and offered him definite terms with regard to payment of compensation for the land under requisition and also offered terms of an agreement for compensat ing the predecessor of the petitioners for demolition of part of the main two storied building from the western side and after considering the offers and proposals of respondent No. 4 the late Mr. Mohammad Ibrahim wrote a letter dated 1st September 1965, to respondent No. 4 in confirmation and acceptance of the aforesaid offer and proposal and enumerating the terms offered by the said respondent No. 4 and accepted by him. The letter has been quoted in its entirety in the petition in para. 12 of the petition which reads as follows: ‑
"G. A. Madani, Esqr., S. Q. A., C. S. P., Chairman, Dacca Improvement Trust, Dacca.
Dear Mr. Madani.
As per our talk on the 31st August 1965, I write to say that I agree to your proposal that for the damage to be caused to my house at 11, Purana Paltan by the present alignment and construction of the North‑South Road, the D. I. T. by way of compensation: ‑
(1) will pay me Rs. 1,00,000.00 (rupees one lakh) only in cash. The amount shall be paid forthwith ; and
(2) will remodel the house at 11, Purana Paltan at their cost so as to enable me to reside there. It is understood that in remodelling the house D. I. T. will also provide for such extra architectural balance and unity of the house ; and
(3) pending remodelling of the house D. I. T. will provide me with a comparable and suitable residence in a decent locality of which the rent will be borne by D. I. T. and
(4) the cost of shifting to the residence to be provided to me and back should be borne by D. I. T. I would request
(i) That the remodelling should be done according to design made or agreed to, on my behalf, by my Architext Mr. Mozaharul Islam.
(ii) That before breaking any portion of the building covered by the Road alignment care and necessary action should be taken so that the electric, sewarage and water connection so far as the unaffected portion of the house is concerned, are not disturbed.
Yours Sincerely,
(Sd.) M. IBRAHIM." A true copy of this letter has also been annexed to the petition and marked Annexure `F'.
Thereafter, it is the case of the petitioners, that, by his order dated 14th of October 1965, being Memo. No. 6766(9)‑Rev. IX/65‑66, the Additional Deputy Commissioner (Revenue) Dacca started a case for resumption of part of Khas Mahal Plot No. 11, Purana Paltan (which is the lease‑hold property of late Mr. Mohd. Ibrahim), purporting to resume '1200 acres of land without giving any other specification and description sufficient to identify ‑the land which was to be affected by the purported resumption. The said order did not also mention or specify the structures to be affected thereby. Late Mr. Md. Ibrahim filed written objection to the said resumption proceeding on the ground that the said order of resumption is void, illegal and without jurisdiction. True copies of the said notice of resumption and the written objection of late Mr. Mohammad Ibrahim have been annexed to the petition and marked Annexure G. & H. respectively. That late Mr. Mohammad Ibrahim was in the meantime pressing Dacca Improvement Trust for finalisation of payment of compensation before they started demolishing the western portion of the two storied building according to already settled and accepted terms, which can be found in the letter of late Mr. Mohammad Ibrahim dated 1st September 1965. That on the categorical and definite assurance and promise given to late Mr. Mohammad Ibrahim as regards payment of compensation of the land and structures affected by the said order of requisition and acquisition by Mr. Madani the late Mr. Mohammad Ibrahim ultimately agreed to vacate the house. Thereafter he removed himself with his belongings and family to a house rented in Dhanmondai Residential Area with effect from 1st November 1965.
Respondent No. 2 then sent a cheque to late Mr. Mohammad Ibrahim for Rs. 2,100.00 being made out in the name of the owner of the premises which was rented for his residence in terms of the agreement After the house was vacated by late Mr. Mohammad Ibrahim and his family, respondent No. 2 took possession of the portion of the requisitoned portion of the building. Thereafter late Mr. Mohammad Ibrahim continued pressing for payment of compensation and respondent No. 4 told him on the 4th of November 1965, that he had ordered his office to pay the compensation money to him with respect to the land and structures affected by the said order of requisition and acquisition. Being so assured late Mr. Mohammad Ibrahim did not object to the demolition of the western portion of his two storied building. Finding that the compensation money was not being paid late Mr. Mohammad Ibrahim talked to respondent No. 4 who asked him to collect the compensation money on 13th November 1965. On the 13th November 1965, the petitioner No. 2 was sent by his father late Mr. Mohammad Ibrahim to respondent No. 4 to receive the payment of compensation money. When the respondent No. 4 in presence of the petitioner No. 2 took his officers to task for not paying the compensation to late Mr. Mohammad Ibrahim, the officer it is stated handed over two papers to respondent No. 4. One of these papers is a copy of clause 10 of the standard form of long term lease and the second is the Board of Revenue's letter dated 16th December 1963, being Memo. No. 1757‑V‑246/63. When the petitioner No. 2 returned with these two papers to late Mr. Mohammad Ibrahim, he wrote a letter on 20th November 1965, to respondent No. 4. This letter has been quoted in its entirety in the petition at page "14‑18" and a copy thereof has been annexed to the petition and marked Annexure `J'. The Board's letter dated 16th December 1963 which was the second document that the petitioner No. 2 brought back from the office of the respondent No. 4 has been annexed to the petition and marked Annexure `I'. That on 22nd November 1965, the Additional Deputy Commissioner, Dacca, passed his order in Resumption Case No. 4. of 1966 in respect of that portion of the leasehold land of the petitioners which was covered by the Resumption order. The Additional Deputy Commissioner, Dacca is purported to have resumed the said quantum of land namely, .1200 acres out of the leasehold: land of the petitioner at 11, Purana Paltan, which is the land in question. Thereafter on the 15th of December 1965, respondent No. 2 paid to said late Mr. Mohammad Ibrahim, predecessor- in‑interest of the petitioners a sum of Rs. 40,000 by a crossed cheque towards the compensation for western portion of the main two storied building which was affected by the said order of requistion and acquisition. On the 18th April 1966, later Mr. Mohammad Ibrahim addressed the letter to the Chairman. Dacca Improvement Trust wherein he referred to the terms contained in his letter dated 1st September 1965, asking for payment of compensation as agreed between him and respondent, No. 4. A true copy of this letter has been annexed to the petition and marked 4nnexure L'. Then it is stated, that late Mr. Mohammad Ibrahim, thereafter sometime in July 1966, had a heart attack. Although he survived this attack he did not fully recover and ultimately breathed his last on 13th September 1966. In that state of his health, it is stated, late Mr. Mohammad Ibrahim could not any more pursue the matter for realization of the compensation. Thereafter the present petitioners on the 6th of January 1967, sent a notice to respondents 1, 2 and. 3, demanding justice and requesting them to assess and pay compensation for the land and the other structures requisitioned and acquired under the provisions of the Town Improvement Act by the said order of requisition and acquisition dated 5th May 1965. A true copy of the notice of demand has been annexed to the petition and marked Annexure `M'. It is then stated by the petitioners that their predecessor‑in‑interest late Mr. Mohammad Ibrahim never agreed to the purported resumption and as such asserted, that had not possession of the land been taken under compulsory and coercive procedure of the Town Improvement Act, the said predecessor‑in -interest of the petitioners would not have delivered up possessions 'of the land under the resumption proceeding, until the Govern ment had established its right to resume the land' and legality, and validity of such action in a proper Court of law: It is.. further stated by the petitioners that an unidentified indefinite and unascertained .1200 acre of land of Khas Mahal Plot No. 11 to, be resumed has been admitted to be equated. with the land which was acquired under the Town Improvement Act and taken possession of under the said requisition and acquisition proceeding. The petitioners have also alleged mala fide on the part of the respondents. They have challenged the resumption proceedings under which the land was sought to be taken over by the respondents and stated that having taken recourse to the Town Improvement Act for taking possession of a part of the lease‑hold land, the respondents have now fallen back on the deed of lease for resuming the selfsame land to avoid the payment of compen sation, which they are bound to give under the Town Improve ment Act and as such the entire action of the respondents is mala fide, motivated and without jurisdiction, void and illegal.
Upon these facts and the reasons stated above as well as on the ground of resumption proceedings being violative of Right No. 14 of the Fundamental Rights as embodied in the constitu tion, the petitioners have filed the present petition praying for a writ of mandamus on the respondents.
Respondent No. 4 Mr. G. A. Madani although served with the rule has not appeared. He is no more the Chairman, Dacca Improvement Trust.
Respondent No. 2 Dacca Improvement Trust and respondent No. 3, Additional Deputy Commissioner, Dacca have appeared and filed separate affidavits‑in‑opposition.
In the affidavit‑in‑opposition filed by respondent No. 2 which he has sworn by one Nawab Ali Assistant Valuation Officer, Dacca Improvement Trust, most of the allegations made by the petitioners except those which are matters of record have been denied. He has categorically denied the fact of any agreement or contract between late Mr. Muhammad Ibrahim, predecessor- in‑interest of the petitioners and the Dacca Improvement Trust with regard to payment of compensation for the land and the building as claimed by late Mr. Muhammad Ibrahim in his letter dated 1st September 1965. He has in para. 6 of the affidavit‑in‑opposition stated that it is not known to the respon dent No. 2 as to what actually transpired between late Mr. Muhammad Ibrahim and Mr. Madani, the then Chairman, Dacca Improvement Trust, but there is no official record with respondent No. 2 showing any such agreement as claimed by the petitioners in terms of letter dated 1st of September 1965, alleged to have been written by late Mr. Muhammad Ibrahim. Respondent No.. 2 has admitted to this extent that late Mr. Muhammad Ibrahim might have given certain proposals to Mr. G. A. Madani and Mr. Madani might have accepted some of these proposals, but no official record of that has been kept nor any proper agreement has been entered into by the respondent No. 2 with late Mr. Muhammad Ibrahim. It is further stated in this affidavit‑in‑opposition that Dacca Improvement Trust went out of its way to accommodate the petitioner's predecessor‑in‑interest late Mr. Muhammad Ibrahim in a self‑contained bunglow for five months at a rental of Rs. 700 per month pending remodelling of his Purana Paltan residence and reconstruction of the boundary wall which cost the Dacca Improvement Trust Rs. 7,136 in all. In addition to that the Dacca Improvement Trust paid Rs. 40,000 to late Mr. Muhammad Ibrahim as compensation for the structures affected by the requisition. He has categorically denied that the Dacca Improvement Trust offered any terms to late Mr. Muhammad Ibrahim and as such there is no question of such terms having been accepted by late Mr. Muhammad Ibrahim. Further he has denied that any terms were given to late Mr. Muhammad Ibrahim as regards the payment of compensation for the land and structures as alleged in the petition.
With regard to the allegations of mala fide arbitrariness, illegality or discrimination, respondent No. 2 has given a categorical denial. It is asserted by respondent No. 2 that late Mr. Muhammad Ibrahim was paid fair and adequate compensation for the structures affected by the order of requisition and acquisi tion and he accepted the same and if at all any discriminations was done in the present case, it was certainly done in favour of late Mr. Muhammad Ibrahim. This extra favour done according to respondent No. 2 was in the shape of payment for house rent for 5 months, reconstruction of the boundary wall, and remodell ing of the house at the cost of the Dacca Improvement Trust over and above the compensation of Rs. 40,000 paid for the structures involved.
The affidavit‑in‑opposition filed on behalf of the respondent No. 3 has been sworn by one Nazrul Islam, Revenue Deputy Collector, Dacca. In this affidavit‑in‑opposition, respondent No. 3 has controverted only those facts which concerned respon dents 1 and 3. It is stated that there was no difficulty for the predecessor‑in‑interests of the petitioners to understand from the requisition order the quantum of land that was sought to be acquired from his lease‑hold premises No. 11, Purana Paltan. It is asserted in para. 12 of the affidavit‑in‑opposition of respondent No. 3 that the land in question is khas mahal land of the Govern ment and the Government has a right to resume the land if and when required by the Government for public purpose as per terms and conditions of the lease deed and the lessee has no right to claim any compensation for the land and as such he cannot claim any compensation for the land. It is further stated in the said paragraph that the requisition and acquisition proceeding started on 25th May 1965, was cancelled as the same was started inadvertantly by the Additional Deputy Commissioner (Revenue), Dacca and no sooner the mistake was detected resumption proceedings were initiated as per terms and conditions of the lease deed. It was further stated that the petitioners have got adequate alternative and effective remedy under the Town Improvement Act for the reliefs claimed in this petition and as such the present petition under Article 98 of the Constitution is not maintainable. It is further submitted by the respondent No. 3 that the right of the petitioners is based on the contract i.e. the lease deed and it must be governed and controlled by the terms of the said docu ment, one of which is the right of the lessor to resume the land when needed for public purpose. Last of all respondent No. 3 in para. 24 of the affidavit‑in‑opposition submitted that the petitioner having relied on documents in the nature of lease‑deeds and contract, various correspondence which require to be proved for ascertaining the respective rights and obligations of the parties, the petitioners are not entitled to any relief under Article 98 of the Constitution.
Before we proceed further we would like to quote here clauses 9 and 13 of Annexure `B', the lease deed dated 25th of August 1960, under which the petitioners hold the land, and the Board of Revenue's Memo. No. 1757‑V‑246/63, dated 16th Decem ber 1963, which we feel relevant for the decision of this appli cation.
"Clause No. 9 of the deed of lease.‑If the said land or any part thereof be required for Government for a public purpose, the lessee shall give up the same on demand without any claim to compensation in respect of the said demised land. If the land is required permanently the lease cases shall forthwith be determined and the lessee shall be entitled to such fair and reasonable compensation for buildings and improvements effected by him as shall be decided by the Collector. If a part of the land is required, whether permanent ly or temporarily or if the whole land is required, temporarily the lease shall not determine, but in the former case the lessee shall be entitled to proportionate reduction of rent, and in the latter to total remission of rent, and to such compensation in either case as shall be decided by the Collector.
Clause 13 of the deed of lease.‑On breach or non observance of any of the foregoing covenants, terms of conditions this lease and the tenancy hereby created may, at the option of the lessor to be signified in writing, at any time be determined, but without prejudice to any other right or remedy of the lessor that may have accrued hereunder provided that on any such determination under the provisions of this clause the lessee shall be entitled to compensation for houses erected, trees planted or other improvements made by him with the written consent of the Collector and the amount of such compensation shall be fixed by the Collector whose decision shall be final, conclusive and binding on the parties hereto".
"Board of Revenue's Memo.‑Government of East…
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