P L D 1969 Dacca 779 (PLP)

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 Pakistan, Office of the Board of Revenue, East Pakistan. Memo No. 1757‑V‑246/63 Dated 16th December 1963. From :‑S. Akhand, Esqr., E. P. C. S., Additional Secretary. Board of Revenue, East Pakistan. To : The Deputy Commissioner, Dacca. Sub.‑Resumption of land for the purpose of Dacca Improvement Trust. Ref.‑Your D. O. No. `38‑Spl. L. A. dated 23‑7‑63 to Member, Board of Revenue. The undersigned is directed to say that the Government have been pleased to take the following decisions in the matter. (1) The purpose of the D. I. T. should be treated to be a public purpose within the meaning of clause 10 of the Standard Form of Long terms lease of khas land for non‑agricultural purpose. (2) Where any land can be resumed under the terms of the lease for a public purpose, the land should be resumed under the terms of the lease if required for such purpose and no proceedings for the acquisition should be taken under the Land Acquisition Act. (3) Where any land held by a lessee under Government is required for a public purpose, but the land cannot be resumed by Government under the terms of the lease, proceedings for the acquisition of the land under Requisition or Land Acquisi tion Act will have to be started and the compensation payable in respect of the property should be apportioned between Govern ment and the lessee on the basis of the terms of the lease‑deed. (4) Resumption under the terms of the lease should be limited to the area actually required for a particular public purpose and should not cause unnecessary hardship to the lessee and that if any such lessee propose to transfer the leasehold land, with the permission of the Deputy Commissioner accord ing to the terms of the lease, to the D. I. T. or any other like body to whom Government land can be transferred only on payment of the full market value, the Deputy Commissioner should not object to such transfer. Entries in the latest record‑of‑rights have no presumption of accuracy and the ownership of land is determined and governed by terms of lease deed and not by entries in record‑of‑rights." Mr. Badrul Haider Chowdhury, the learned Advocate for the petitioners in support of his case raised the following points for our consideration. (1) That the resumption was illegal and mala fide. (2) That assuming that the resumption was valid the peti tioners were entitled to compensation even in terms of the lease. (3). That having taken recourse to one of the two laws avail able to respondents 1 and 3 they cannot be allowed now to fall back on the other which is less beneficial to the petitioners. Further it must be held that the respondents had given up their rights under the other‑in this case the condition of resumption embodied in the lease deed. (4). That clause 9 of Annexure B' gives a right to compensation. In support of his contention that the resumption proceeding was illegal and mala fide Mr. Chowdhury laid stress on the following facts, namely, that in the notice of requisition and acquisition under the Town Improvement Act of 1953, land sought to be acquired is shown to be .1283 acre which in fact was requisitioned and acquired on 1st of June 1965, when respondent No. 3 took possession of the land, but when the resumption proceeding was started the area mentioned therein is shown to be 1200 acre. Next it is stated that the purpose for which the land is required has not been mentioned in the resumption notice. Further the description of the land sought to be resumed is indefinite and the area unidentified and lastly that these resump tion proceedings could not have been resorted to after possession was taken under the Town Improvement Act and construction and re‑construction had already started. From all these Mr. Chowdhury argued that had not the respondents a mala fide intention of depriving the petitioners from their legitimate dues namely compensation as provided for under the Town Improve ment Act, under which the respondents had first sought to acquire the land they would not have resorted to resumption proceedings within six months of the order of requisition and acquisition and after taking possession of the land. What Mr. Chowdhury wanted to say is that the respondents having felt that it would not be easy for them to take possession of the land by a resumption order under the terms of lease without being challenged in a Court of law by late Mr. Muhammad Ibrahim, resorted to the Town Improvement Act for taking immediate possession of the property and thereafter to avoid payment of compensation which they were bound to pay under the Town Improvement Act, took over under the resumption proceedings. As against this the learned Government Pleader Mr. T. H. Khan has contended that these arguments of the learned Advocate for the petitioner are wholly untenable because it has been stated in the affidavit‑in‑opposition of respondent No. 3 that there was no such mala fide intention of the respondents 1 and 3 or of the two other respondents, because under the lease deed itself, the lessor‑respondent No. 1 had the right to resume‑such quantum 'of land which was required for a public purpose and in that case there was no question of payment of compensation for the land so resumed. According to the learned Asstt. Government Pleader 'the requisition and acquisition proceedings under the Town Improvement Act were started due to a bona fide mistake on the part of the officers of respondent No. 1 in the department of land acquisition. The mistake according to the learned Government Pleader was that the officers concerned were not careful enough to find out whether the land of 11, Purana Paltan was khan mahal land and was held by late Mr. Muhammad Ibrahim under lease from Government and also if there was provision for resumption in the lease deed. They were further negligent in not following the instructions contained in the Board of Revenue's letter dated 16th December 1963, wherein clear directions were given to respondent No. 3 with regard to rights and obligations of the lessor and lessee in respect of the khas mahal lands. The order of Additional Deputy Commissioner (Revenue) in the resumption proceeding has been annexed to the petition and marked Annexure `K'. From that the learned Asstt. Government Pleader showed that there was bona fide mistake on the part of the respondent No. 3 and the officers of his department in initiating the proceed ings under the Town Improvement Act. Mr. Badrul Haider Chowdhury has not for a moment con tended that the land in question was not acquired for a public purpose. It is rather his case that because it was required for a public purpose, late Mr. Muhammad Ibrahim did not as a responsible citizen of the State object to part with that portion of the lease hold land which was actually needed for the widening of the north south Arterial Road. Upon a reading of the affidavits of the parties and after considering the arguments of the learned Advocates., we are inclined to take the view that the petitioners have not been able to establish a case of mala fide against the respondents. But we must observe that the officers of the Government who are responsible for this type of work must be sufficiently educated, alert and mindful in the performance of their duties, because their actions in such matters affect the rights of the citizens. The discrepency in the two notices with regard to quantum of land might l.‑ad to very serious consequences. It might be that one quantity might have affected the whole building and other might not have touched the main building at all. Fortunately in the present case, from the very beginning, it was clear to both the Requiring Body and late Mr. Muhammad Ibrahim as to what quantity of land was required to be taken and which portion of the main building and which other structure will be affected. We do not know what actions have been taken by the authorities concerned against the officers who committed such mistakes or what actions they propose to take against the defaulting officers, but we cannot help observe that the Administration should be more careful in dealing with the rights of the citizens in matters like this. Next point urged by the learned Advocate for the petitioners takes us to lease document dated 25th August 1960. We have already quoted relevant two paragraphs of Annexure B', but in the view we propose to take in this case we do not like to go into detailed discussion of Annexure `B' which might ultimately prejudice the petitioners' case in future action. Whether on resumption, the petitioners are entitled to compensation in terms of lease or not depends on the interpretation of Annexure B'. We do not think that we should do so to prejudice the parties' respective cases. Sitting in writ jurisdiction we cannot also take upon ourselves the duties of a civil Court within its ordinary original civil jurisdiction. In this connection we may note that Mr. Badrul Haider Chowdhury has conceded that whether the power of resumption is available to the respondent No. 1 under terms of the lease is certainly dependent upon the interpretation of the document. Mr. Chowdhury contended that the Additional Deputy Commissioner (Revenue) by exercising the powers under the Town Improvement Act of 1953 for requisition and acquisition was undoubtedly acting as agent of respon dent No.

1. His actions must certainly bind the principal, i.e., respondent No. 1 and if that be so, then the Additional Deputy Commissioner, Dacca who started the resumption proceeding also as an agent of respondent No. 1 could not start the resumption proceeding, because as an agent of the same principal he could not have taken different action in the same mat ter. His action in acquiring the land under the Town Improve ment Act had already committed his principal respondent No. 1 and he could not again act differently in violation of that commit ment and that too to the detriment of the interest of the affected party. In support of his contention Mr. Chowdhury relied on a decision of King's Bench Division in the case of Robertson v. Minister of Pensions ((1948) 2 A E R 767). We have considered the decision in the light of the submissions of Mr. Chowdhury. There is no doubt that it has been held in that case that action taken by one Department of the Crown binds the Crown and through the Crown binds other departments of the Government because all the departments are but the agents of the Crown. But in the facts of this case we do not think that this case is helpful to Mr. Chowdhury. In the cited case the facts were that the War office had given a decision that Robertson's disability was due to war. This decision of War office was based on certain medical reports. On the basis of this decision of the war office, Robertson prayed for pension from the Minister of Pensions. The Minister of Pensions took the view that Robertson had to establish the fact with him as to whether his disability was attributable to war which would entitle Robertson to pension claimed by him and ultimately rejected the prayer of Robertson which forced him to go to the Court of law. Denning, J. sitting singly decided, that the war Office which was the proper department for giving opinion in the matter, having given it in favour of Robertson, it amounted to a becision by the Crown and the same was binding on the Ministry of Pensions which was but another agent of the Crown. The question of time lag between the giving of opinion by the War office and the demand by the Minister of Pensions upon Robertson to prove by medical evidence the causes of his disability, as well as the loss of the X‑ray plates which were examined by the War Office which formed the basis of its opinion in favour of Robertson weighed heavily with the learned Judge in that case. In the present case such are not the facts. There is no question of time lag here. There is no controversy with regard to the land being required for a public purpose. It is further found from the evidence that the resumption proceeding was started within 41 months of the acquisition proceedings initiated under the Town Improvement Act and we have already found that there is no mala fide on the part of the respondents to have started the resumption proceeding in preference to the Acquisition D proceeding. Even if it is conceded that the decision in Robertsons case supports the contention of Mr. Chowdhury, yet, we cannot give him any relief, as the question of apportionment of compensa tion between the lessor and the lessee is a point vital and essential to be decided upon a proper construction and interpretation of the lease deed. As such we cannot straightway sitting in the writ Jurisdiction say that the petitioners are entitled to the compensation for the land. The 4th point of Mr. Chowdhury that even if a part of the land is acquired, his clients are entitled to compensation under clause 9 of Annexure `B' is a question again of interpreta tion of the document and raises controversial questions of fact. In view of what we have already observed in dealing with the point No. 2 of Mr. Chowdhury, we refrain from saying anything on the merits of his arguments on this point also. In this connection Mr. Chowdhury also relied on two other cases reported in 7 A C 745 and A E R 1943 Bom.

36. Mr. Abdur Rahman Chowdhury, the learned Advocate for the respondent No. 2 contended that it is not a case of no assessment. It is a case whose quantum of assessment is to be decided. The Dacca Improvement Trust has already paid Rs. 40,000 as compensation for the structures and has also spent more than 7,000 for reconstruction and remodelling of the boundary wall and the main building. Over and above this, they have paid for accommodation of the petitioners and their predecessor‑in‑interest for 5 months in a house rented for the purpose. There is no complaint from the petitioner's side with regard to nature of accommodation provided by the Dacca Improvement Trust. Therefore Mr. Abdur Rahman Chowdhury submitted that the petitioners do not in the facts of the present case have any further claim for compensation for" the structures. If they have any grievance their remedy does not lie under Article 98 of the Constitution but is available under the Town Improvement Act. He therefore, submitted that there being an alternative and adequate and efficacious remedy available to the petitioners, under an Act meant for the purpose they were not entitled to a writ from this Court. He has pointed out the prayer No. 1 in the petition which is in the following terms: "A Rule nisi be issued on the respondents to show cause why they should not be directed to assess and pay compensation under the provisions of the Town Improvement Act, 1953, for the land and structures of the petitioners requisitioned and acquired in L. A. Case No. 131/1962‑63 by order dated 25‑5‑65 under the said Act." Had no compensation been paid to the petitioners or for that matter to their predecessor‑in‑interest by the respondent No. 2 for the structures affected by acquisition of the land for the road, then possibly the petitioners could have asked for mandate from this Court upon respondent No. 2 or respondents 1, 2 and 3 to assess the compensation for the same. According to the respondents, adequate compensation has been paid to the petitioners' predecessor‑in‑interest for the structures. This Court sitting in writ Jurisdiction cannot assess the quantum of compensation and cannot also issue a mandate to fix the same at a particular figure. Secondly Mr. Abdur Rahman Chowdhury contended that by this process the petitioners are trying to enforce their contractual right under Annexure `B' which needs interpretation, construction, and taking of evidence and a thorough enquiry into the matter. Next Mr. Abdur Rahman Chowdhury submitted that the peti tioners have not cited in the petition any illegality committed by any of the first three respondents in resorting to the resumption proceeding. Lastly he submitted that this application cannot succeed on the ground of delay. The resumption proceeding was started on 14th October 1965, and the present application has been filed in February 1967. This long delay of nearly 16 months disentitles them of any relief in this Rule. There is no doubt that the evidence is needed to decide the question of agreement between late Mr. Mohammad Ibrahim and Mr. G. A. Madani, the then Chairman of the Dacca Improvement Trust (respondent No. 4). Mr. Madani, as observed, has not appeared in the case. Respondent No. 2 has denied any agreement between it and late Mr. Mohammad Ibrahim and the petitioners have not been able to produce a single piece of paper to show that either respondent No. 2 or respondent No. 4 had agreed to the terms contained in the letter of late Mr. Mohammad Ibrahim dated let September 1965. If it is assumed that the terms contained in the letter of late Mr. Mohammad Ibrahim dated 1st September 1965, were agreed to by Mr. Madani, than also that will not be of any help to the petitioners as the Chairman cannot bind the respondent No. 2 by his commitments. Respondent No. 2 is a Statutory Body and it is evident from the provisions of sections 26 and 27 of the Town Improvement Act of 1953, that any agreement or contract between respondent No. 2 and another must be entered into by the Board of Trustees of respondent No. 2 and certain of the contracts cannot be effective and cannot even be entered into by respondent No. 2 unless previous sanction for that has been obtained from the Provincial Government. In the present case nothing not an iota of evidence has been produced before us to show that the Board of Trustees of respondent No. 2 has agreed to any terms or entered into any contract with late Mr. Mohammad Ibrahim far less, the terms embodied in his letter dated 1st September 1965. In these circums tances it will be necessary to go into the question how far the Chairman, Dacca Improvement Trust could bind the respondent No. 2 by his promise if at all he had made any. There is substance in the contention of Mr. Abdur Rahman Chowdhury that this case involves complicated questions of fact and Mr. Badrul Haider Chowdhury as already stated, has conceded that the documents need interpretation. There has been no agreement between predecessor‑in‑interest of the petitioners and the Additional Deputy Commissioner, Dacca who had passed the order of requisition with regard to any specific terms for compensation to be paid to the lessee and as such he cannot be saddled with the terms embodied in the letter of late Mr. Muhammad Ibrahim‑dated 1st September 1965. There is also substance in the contention of Mr. Abdur Rahman Chowdhury that it is not a case of no assessment, but is a case where the quantum of compensation has to be decided upon, evidence, Thus it will be found that various complicated and contro versial questions of facts relating to title, agreement and quantum of compensation are involved in the present case which need taking of oral evidence and consideration of large number of documentary evidence which cannot, in our opinion, be resolved only on affidavits. On the point as to whether alternative, adequate, effective and speedy remedy is available to the petitioner we can only say that there is alternative adequate, and effective remedy available to them under the Town Improvement Act of 1953. The decision of our Supreme Court in the case of Anjuman‑e -Ahmadiaya v. D.C., Sargodha (P L D 1966 S C 639) does not apply to the facts of this case. In that case the facts were completely different from those in the present one. In that case no adequate expeditious alternative remedy was available; whereas in the present case such alternative remedy is available under the Town Improvement Act of 195.3. It has been rightly observed by His Lordship Hamoodur Rahman, J., in the above mentioned case that even under the lease deed there was provision for alternative remedy which the authorities should have resorted to prior to issuing the cancellation order, which was issued without any lawful authority because after the lease was completed it could not be cancelled by an executive order without the intervention of a proper Tribunal to establish that there was a breach of terms of the contract which would enable the lessor to cancel the lease. In the present case the resumption proceeding was formally drawn up, notices were issued, objections were invited and the parties were heard and the order was passed by the Additional Deputy Commissioner (Reve nue, Dacca, resuming the land for a purpose which is undoubtedly a public purpose and resumption for that purpose is permissible even under the terms of the lease. Therefore it cannot be said that the resumption has been done by executive order which would entitle the petitioners to invoke the aid of the above mentioned decision. The petitioners in ground No. 7 of the petition have raised the point of impugned order of resumption being hit by Right No. 14 of the Fundamental Rights embodied in the Constitution Right No. 14 of the Fundamental Rights is one of those rights which has been suspended since 6th of September 1965, as such the petitioners are not entitled to any relief on that count. Apart from that we do not see as to how the provisions of Right No. 14 of the Fundamental Rights can be applied to the facts of the present case. If it could be held that the land in question was M acquired under the Town Improvement Act of 1953, possibly the petitioners could have invoked the provisions of Right No. 14 of the Fundamental Rights, if further they could show that the land has been taken away without payment of any compensation. The land in the present case has been resumed in terms of the Deed of lease, and as such we do not think that the petitioners could successfully invoke the provisions of Right No. 14 of the Fundamental Rights, if, even the same were not suspended. For the reasons stated we are of the view that the petitioners are not entitled to a writ of mandamus from this Court. In the result this application fails and the rule is discharged, but in the special facts of this case we do not award any costs to the respondents. Mr. Badrul Haider Chowdhury prayed for a certificate under Article 58 of the Constitution. But since we are of the view that no substantial question as to the interpretation of the constitution is involved, the certificate prayed for, is refused. MAHMUD HASAIN, J.‑I agree. A. H. Rule discharged.