Sunday, December 16, 2018 | ePaper

Public purpose stands for common interests

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Appellate Division :
(Civil)
Md Abdul Wahhab Miah J
Syed Mahmud Hossain J
Md Imman Ali J
Hasan Foez Siddique J
Mirza Hussain Haider J
Mrinalendu Paul and others.......Appellant
(In CA No. 154/2001)
vs
Divisional Commissioner Chitagong Division and others .....Respondents (In both the appeals)
Judgment
October 25th, 2017
Acquisition & Requisition of Immovable Property Ordinance (II of 1982)
Section 3
Proviso-public interest-The public purpose is not static concept, but is flexible and is capable of expansion to meet conditions of the complex society. A public purpose has for its objective the promotion of the public health, safety, morals, security, prosperity, contentment and the general welfare of the residents. It includes any purpose wherein even a fraction of the community may be interested or by which it may be benefited. . ..... (8)
Public Purpose
The public purpose and public interest have not been defined in the Ordinance. The ratio is that the public purpose includes a purpose in which the general interest of the community as opposed to the interest of an individual is directly or indirectly involved.  ...... (R)
Acquisition & Requisition of Immovable Property Ordinance (11 of 1982)
Section 3
Proviso-The proviso of Section 3 provides that if the worship is being used by the public at large in that case the decision of acquisition would operate as a bar on the way of acquiring the land. . ..... (9)
Public Purpose
Since it has been decided to acquire the property, in question, not for the purpose of any interest of the individual rather for the interest of the community at large, the decision of acquisition of the property in question was taken for public purpose,     (8)
Md Toufique Hossain, Advocte-on-Record-For the Appellants (In both the appeals).
Murad Reza, Additional Attorney-General (with Sheikh Saifuzzaman, AAG and Ashique Rubaiat, AAG), instructed by Md Wahidullah, Advocate-on-Record-For the Respondent Nos. 1-3 (In both the appeals).
Abdl Matin Khasru, Senior Advocate, instructed by Md Wahidullah, Advocate-on-Record-For the Respondent No.4 (In both the appeals).

Judgment
Hasan Foez Siddique J : These two appeals being Civil Appeal Nos. 254 and 255 of 2001 are directed against the judgment and order dated
25-5-1997 passed by the High Coprt Division in Writ Petition Nos. 177 of 1991 (Dhaka) and Writ Petition No. 3424 of 1991 (Dhaka), Writ Petition No. 30 of 1988 (Chittagong), Writ Petition No. 57 of 1988 (Chittagong) discharging both the Rules.
2. The relevant facts, for the disposal of these two appeals, are that the writ petitioner Mrinalendu Pal filed Writ Petition No. 177 of 1991 and Sreemati Bhagabati Paul filed Writ Petition No. 3424 of 1991 stating, inter alia, that the predecessor-in-interest of the writ petitioners NN Pal, a leading Contractor of British India, was the owner of the land appertaining to PS Plot Nos. 226, 217, 210 and 223 under PS Khatian Nos.190, 191 and 193 under Andarkilla Mouza, Police Station-Kotwali, District Chittagong. Said NN Pal constructed two-storied building therein and installed family deity of Radha Madhab in a room. The petitioners have been residing; in the first floor of the building and the ground floor was leased out to Hill side Kindergarten School, now, Paharika Girls' High School. The respondent No.4, for affording opportunity for educting the children of the locality let out some portion of the property to the monthly tenants for defraying their cost of living. In LA Case No. 22 of 1995, notices under section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, (hereinafter referred to the Ordinance) was issued stating that the property described in the schedule was needed for Paharika Girls' High School and proposal was given for the acquisition of the said property. The schedule property of the said notice is appertaining to PS Plot Nos. 226 (full), 217 (part), 220 (part) and 223 (part) of PS Khatian Nos. 190, 191 and 193 Mouza Ander-killa. The writ petitioners filed objection contending that in the first floor of the building there is a family deity and daily seba puja are offered there and there is no scope to shift the deity to any other place. The building is their last shelter. The property of the acquisition proceeding is not at all required for Paharika Girls' High School and the Managing Committee of the said school with a malafide motive persuaded the writ respondent Nos. 1-3 to initiate the acquisition proceeding. Several representations had been made to the writ respondents praying for dropping the acquisition proceeding but they did not get any result. Thereafter, the impugned notice dated 17-8-1988 under Section 6 of the Ordinance had been issued upon the writ petitioners. Hence, was the writ petitions.
3. The writ petitioner Mrinalendu Pal in Writ Petition No. 177 of 1991 by way of a supplementary affidavit stated that earlier he instituted Partition Suit No. 35 of 1954 in the First Court of Subordinate Judge, Chittagong for his share against other co-sharers. The suit was decreed in preliminary form on 27-3-1957. During the pendency of the suit, the Government treated the undivided share of the property in joint possession of the plaintiff and other co sharers as vested and non-resident property and threatened to lease out the same. He prayed for temporary injunction against the Government and vested property authority which was rejected by the learned Subordinate Judge. He preferred FMA No.6 of 1986 in the High Court Division and in the Civil Rule No. 117(FM) of 1986 he obtained ad-interim injunction restraining the Government from leasing out the part of the disputed land to any body till the disposal of appeal. It is further stated that the Head Mistress of the school has been adopting all measures instigating the Government to treat and take over the property as vested and non-resident property and, on the other hand, persuaded the government officials to acquire the same.
4. The writ respondent  Nos. 1-3 are the acquiring body and writ respondent No.4 is the Requiring body who in their affidavit-in-opposition contended that the writ petitions maintainable in view of the facts that the properties claimed by the writ petitioners have been declared as vested and non-resident property and that the final decision to acquire the same was taken after due compliance of the requirements of law provided in the Ordinance and the validity of the actions taken under the said law had not been challenged in any Court of Jaw. The writ petitioner of writ petition No. 177 of 1991 is not a citizen of Bangladesh rather he is an Indian citizen and, thus, he has no locus-standi to file and maintain the writ petition. There is no deity in the building and there is no shebait for deity and daily sheba puja are not offered. The Paharika Girls' High School has been running since Pakistan period and in view of the increasing number of students more accommodation for school was needed and, accordingly, proposal for the acquisition of the land, in question, had been made to the writ respondent Nos. 1-3. The instant proposal for acquisition has been given for public purpose and public interest. The acquisition proceeding is neither malafide nor colourable one. The Rules should be discharged.
5. The High Court Division by the impugned judgment and order discharged both the Rules. Thus, the writ petitioner Mrinalendu Pal and others preferred Civil Appeal No. 254 of 2001 and Sreemati Bhagabati Paul and another preferred Civil Appeal No. 255 of 2001 after gelling leave.
6. Mr Toufique Hossain, learned Advocate-on-Record appearing for the appellants in both the appeals, submits that the property, in question, had not been acquired for public interest and public purpose so the initiation of instant proceeding is bad in Jaw. He further submits that there is a deity in the premises situated in the case land as such the initiation of the instant proceeding for acquisition is barred under the proviso of Section 3 of the Ordinance, the High Court Division erred in law in discharging the Rules.
7. Mr Murad Reza, learned Additional Attorney-General appearing for the respondent Nos.1-3, submits that the decision of acquiring the disputed land was taken for the development of Paharika Girls' High School not for the interest of private individual so it is not correct that the decision of acquisition has been taken not for public purpose or public interest.  
He submits that there is no worship which is used by the public, at large, rather there was a family deity in the premises situated in the case land and the owners, transferring of the case land during the pendency of the litigation, left the place taking the said deity with them.
8. It appears from the materials on record that the Government took decision to acquire the property, in question, for the purpose of using the same for Paharika Girls' High School. The first submission of Mr Toufique Hossain is that the proposal for acquisition was given not for public purpose and public interest. The public purpose and public interest have not been defined in the Ordinance. The ratio is that the public purpose includes purpose in which the general interest of the community as opposed to the interest of an individual is directly or indirectly involved. The public purpose is not static concept, but is flexible and is capable of expansion to meet conditions of the complex society. A public purpose has for its objective the promotion of the public health, safety, morals, security, prosperity, contentment and the general welfare of the residents. It includes any purpose wherein even a fraction of the community may be interested or by which it may be benefited. Since it has been decided to acquire the property, in question, not for the purpose of any interest of the individual rather for any interest of the community at large, we are of the view that the decision of acquisition of the property in question was taken for public purpose.
9. Next submission of Mr Toufique Hossain, learned Advocate-on-Record, was that there was a deity in the premises situated in the case land. It appears that the writ petitioner earlier filed objection before the Deputy Commissioner as per provision of Section 4 of the Ordinance. Holding inquiry, it was found that there was a family deity in the premises. The proviso of Section 3 provides that if the worship is being used by the public at large in that case the decision of acquisition would operate as a bar on the way of acquiring the land. It is not the case of the writ petitioners that the worship installed in the premises is being used by the public at large. In such circumstances, it is difficult to accept the submission of Mr Towfic that proviso of Section 3 of the Ordinance is a bar on way to acquire the disputed property.
10. In view of the aforesaid facts and circumstances, we do not find any wrong in the judgment and order of the High Court Division which calls for any interference by this Division.
11. However, the writ respondents must pay adequate compensation to the real owners of the property, in question, following the laws.
Thus both the appeals are dismissed

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