P L D 1970 Dacca 567 (PLP)

In this regard we may also refer to the document Exh. G, the statement showing the assessment of compensation for the requisition of the premises dated 19th December 1950. This document shows that the defendant No. 2 awarded compensation at the rate of Rs. 75 per month in respect of the disputed premises in favour of the plaintiffs' predecessor‑in‑interest and it is admitted by the appellant that in pursuance of the said award they paid Rs. 2,662 as compensation to the original owners. It is clear that although the appellant made an award in favour of the owners of the property in dispute eventually they refused to pay the same to the plaintiffs who acquired the property from the original owners by virtue of registered documents and they insisted on `No‑Demand Certificate from them on the 27th November 1966. Thus the plaintiffs being refused payment of the compensation claimed by them were constrained to file the suit for realisation of the compensation for use and occupation and also damages caused to the property in question. More?over, with reference to the provision under Order VII, rule 11, C. P. C. it is submitted by the learned Advocate for the respondents that such objection should have been taken at the earliest possible opportunity by the appellant. In this respect Mr. Moinul Haq has also referred to a decision in the case of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (P L D 1967 Dacca 190) in which the learned Chief Justice Murshed while delivering the judgment held: "The first question that strikes one is that although under Order VII, rule 11 of the Code of Civil Procedure, it is the duty of the Court to reject the plaintiff, on a perusal thereof, it appears that the suit is incompetent the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can and, in most cases, does hear lawyers on the points involved in the application. In fact, this is what has happened in the present case. The principles involved are two‑fold; In the first place, it contemplates that a still born suit should‑be properly buried, at its inception so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment so that if permissible under law, he may found a properly constituted case." With reference to the said decision Mr. Moinul Haq rightly contends that if any objection as to cause of action is to be taken by the appellant in the suit they should be advised to do la so at the earliest moment. Se we do not find substance in the contention of the learned Government Pleader as to maintain?ability of the suit in law. He has further argued that the suit is also hit by the provision of section 14 of the Requisition Act and he contends that if any suit is at all to be filed that cannot be filed only under section 7‑A of the said Act. Subsection (1) of section 14 reads as follows:

"No suit prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any order or rule made thereunder." Subsection (2) reads as follows:

"No suit or other legal proceeding shall lie against the Government for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any Order or rule made thereunder." Section 7‑A of the Act reads as follows:--"(1) Where there is any dispute as to the apportionment of the compensation or any part thereof or as to the person to whom the same or any part thereof is payable, the Deputy Commis?sioner after hearing the claimants or giving them an opportunity to be heard shall decide the dispute and make an award and shall give immediate notice of the award to the person or persons interested. (2) Any person interested who has not accepted the award made under subsection (1) may bring a suit in a civil Court of competent jurisdiction for the determination of the dispute: Provided that no such suit shall be entertained unless it is instituted‑ (a) if the person instituting it was present or represented before the Deputy Commissioner at the time when he made his award within six weeks from the date of award. (b) in other cases, within six weeks of the service of notice by the Deputy Commissioner under subsection (1) or within three .months from the Deputy Commissioner's award, which?ever period shall later expire." From mere reading of the two sections quoted above it is clear that the instant suit is not at all hit by the provision of section 14 of the Act nor it is a suit contemplated under the provision of section 7‑A of the Act. Section 7‑A contemplates of a suit if the parties to whom the award has been made are not satisfied by the same. But in the present suit the plaintiffs B have accepted the award with regard to the compensation which was made by the Deputy Commissioner at a rate of Rs. 75 per month. So by no stretch of imagination the provisions of the aforesaid two sections have any application in the present case. So the aforesaid contention of the learned Government Pleader for the appellants also has no substance. With regard to the second point the learned Advocate for the appellant argues before us that the property in question was not requisitioned for the State Bank, rather it was for the Province of East Pakistan for the establishment of the Provincial Government as it would appear from the requisition order itself and that from the very beginning the building was allotted to the bona fide refugees coming from India at that time. In this regard the learned Advocate submits with reference to Exh. E, order of requisition dated 10‑12‑47 the relevant portion of which reads as follows: "Whereas in my opinion it is necessary and expedient for the establishment of the East Bengal Government at Dacca to requisition the properties described in the Schedule thereto annexed and to make the following orders in connection therewith." He further refers to Exh. B, letter dated 25‑2‑48 from the Deputy Secretary and Special Officer. Accommodation to the District Magistrate, Dacca saying that the requisitioned house at 41 Nilambar Saha Road, Dacca was allotted to him for twenty refugees and the allotment took effect from 15th January 1948, on which date they occupied the said building. The learned Advocate has also referred to Exh. D dated 5‑9‑53, Exh. C, dated 31st August 1954,. Exh. 6 dated 8th February 1955 and Exh. B. (1) dated 4th November 1963 to show that the said requisition property was utilised for the accommodation of the refugees only. Mr. Moinul Haq, the learned Advocate for the respondents on the other hand submits that P. W. 2 in her evidence stated that the house was requisitioned for the State Bank and she had not been challenged as to the said fact in her cross‑examination. The learned Government Pleader ultimately found it difficult to substantiate the said point in view of the said evidence of P. W.

2. He, however, contends that even if the requisitioned property has been used for different purposes, the requisition is not illegal and in this regard he has referred to the Division Bench decision of this Court in the case of S. A. Qureshi v. The Province of East Pakistan and others (21 D L R 142) to which my learned brother is a party. Mr. Justice Sattar, as his Lordship then was, while delivering the judgment held "Moreover subsection (2) of section 4 of the Act provides that when a requisitioned property is taken possession of, the property may be dealt with in any manner as it is found expedient to do. In view of this provision it is very difficult to say that if the property was originally requisitioned for a valid purpose, the subsequent allotment of it in favour of another person for somewhat different public purpose will be illegal. In our view if the purpose of allotment be a public purpose within the meaning of the East Bengal Requisition of Property Act, the mere fact that it was originally acquired for a different public purpose will not make the order of requisition or the order of allotment illegal. We are in respectful agreement with the principles of law as enunciated in the said case. But in the instant case Mr. Moinul Haq's contention is that although the impugned requisition was for the purpose of accommodating the State Bank, the same was utilised by the refugees at different times without any valid allotment of the same in their favour and the appellants themselves found them as unauthorised occupants in the said building. He further argues that if the said fact be found to be correct certainly the action of the appellants is mala fide in the sense that although the building was not required any longer, they kept the same under requisition and allowed the same to be occupied by unauthorised persons. In support of his contention Mr. Moinul Haq referred to Exh. A, order‑sheet of the Land Acquisition Office wherein the order dated 19th May 1965 is very significant and the relevant portion of the said order runs as follows:‑ "I went to evict the unauthorised occupants of the house with the help of notice yesterday. It was found that all the occupants are bona fide refugees. They prayed for time for one month to vacate the house of their own accord, on the ground that the are not finding accommodation on private negotiation elsewhere because of recent cyclone. In con?sideration of their difficulties they may be allowed time to vacate the premises by 15‑6‑66, failing which they may be evicted by force on 16‑6‑65," In this respect the relevant portion of the order dated 4‑6‑65 passed by the Land Acquisition Collector which is important reads as follows:‑ "Seen. It is strange that the officer came back without executing the eviction order. At that stage he had no business to recommend extension of time and for allowing the occupants to stay. He should have examined the status of the occupants earlier". The relevant portion of the order dated 5‑6‑65 is also quoted below: "Seen the orders of the A. D. C. In pursuance of the suggestions of the L. A. C. Dated 18‑5‑65 which were approved by the A. D. C. I was to evict the occupants of the house with the help of police provided they were not genuine refugees". It is clear from the said orders that really at a certain point of time refugees entered into the premises in question without any valid allotment in their favour. This fact if further supported by Exh. 6 which is a letter from the Additional District Magistrate, Dacca written on the 8th February 1955, to the Assistant Secretary, Finance and Revenue Department (Requisition) Government of East Pakistan to the effect that the occupants of the said requisition building con?sisting of as many as 16 families were frequently changing possession since the date of requisition without any intimation to them. So it is quite correct to say that although the impugned requisition was a valid one but at point of time the requisition property was not utilised for bona fide refugees and on the other hand the said requisition building was occupied by unauthorised person, and the appellant kept the property under requisition although they have not utilised the same for any valid purpose. Thus we do not find any substance in the contention of the learned Advocate for the appellant that the finding of the learned Subordinate Judge in this regard was not correct. The next point with regard to payment of compensation urged by the learned Advocate for the appellant is to the effect that the plaintiffs are not entitled to any compensation in the present suit as framed and even if they are entitled to the same they cannot get compensation for the period more than 3 years. The learned Advocate also submits that the plaintiffs can get compensation only under provision of the said Requisition Act and not by any suit. But we have already held above that the suit for realisation of compensation which has been assessed by the appellant and accepted by the plaintiffs is maintainable in accordance with law. So we do not find any substance in the said contention. As to the next point regarding payment of compensation only for three years and not for any other period which, according to the learned Advocate for the appellant, is barred by limitation reference has been made to the provision of Article 115 of the Limitation Act. According to him this is the only Article which may apply to the facts and circumstances of the present case. In that case he submits that the suit is barred by limitation. Article 115 of the Limitation Act provides that a suit for compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for shall be filed when the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or where the breach is continuing, when it ceases. How far the provision of the said Article would govern the present suit? Admittedly the present suit is not based on any contract rather it is in pursuance of the provision of Statute under which an award has been passed assessing compensation which again has been accepted by the plaintiffs. So we hold that Article 115 the Limitation Act is not applicable in the present suit. Mr. Moinul Haq has already contended in this regard that the suit is governed by the provision of Article 120 of the Limitation Act which provides for six years limitation from the date of the cause of action which according to the plaintiffs is 27th November 1956 when the appellant refused to pay com?pensation and insisted on the plaintiffs to grant No‑Demand Certificate in favour of the Government of East Pakistan dis?claiming all the compensation due on the impugned requisition as found from Exh. 6(d) dated 27th November 1956. Thus we find no substance in this contention of the learned Advocate for the appellant and we hold that the suit is not barred by limitation. The last point which has been urged by the learned Advocate for the appellant is in respect of the relief claimed by the plaintiffs for the alleged damages done to the requisition building. The said point practically relates to cross‑objection filed by the plaintiffs in this Court. Being aggrieved by the decision of the learned Subordinate Judge who did not grant any relief by way of compensation for damages. It is submitted by the learned Advocate for the appellant that the requisitioned property was found badly damaged at the time of taking possession of the same and as such the plaintiffs are not entitled to any compensation. But we find that there is evidence to the effect that after the requisition of the property damage was done to the property in question. In this respect P. W. 1 has said in his Examination‑in‑Chief with reference to an estimate filed by him which is Exh. 1 in this case that the written opinion on the estimate which was filed by him and another Engineer jointly would show that the cost of repairing would be Rs. 15,

000. He further says that the estimate dated 25th June 1965 proved by him, namely, Exh. 2 also supports his statement. He says in his Examination‑in‑Chief, "The present condition of the house is due to want of repair and certain pilferages. The costs would have been much less‑may 1/8th of the present costs if repairs were made in time about 12 years back. It did not appear to me that the house was damaged during riot. If timely repairs are not made in a house then the house gets all the more damaged in due course". In cross‑examination he has said, "I have no personal knowledge as to how and when the damage was caused. No portion of the main building has broken down. There are some cracks somewhere, I cannot tell the exact age of the building. I did not also examine the nature and materials used in the construction of the building including the class of bricks. Some doors and windows are not found but the existing doors and windows were made of Burma Teak". From his evidence it appears that really there was damage done to the building. P. W. 2, the plaintiff No. 1 has also said that the present cost of repair of the house would be at least Rs. 15,000 D. W. 1 has said in his Examination‑in‑Chief: "The plaintiffs' claim on account of repairs at Rs. 10,000 or Rs. 15,000 is apparently without basis. In my estimation a sum of Rs. 2,000 to Rs. 4,000 may serve the purpose of repairs. Then says complete overhaul repairs might require a sum of Rs. 15,

000. I do not know of any admission of Government liability. The plaintiffs are not legally entitled to claim compensation on account of damages." The said witness in cross‑examination has said, "There was no repairs of the house after requisition. I did not notice if any doors and windows of the house were broken. In my estimation a sum of Rs. 4,000 or Rs. 5,000 would be sufficient for carrying out the repairs works". The materials on record clearly show that there was damage done to the requisition property after the same was requisitioned by the appellant and on the other hand there is absolutely no evidence on behalf of the defendant to show that really there was damage and the house was repaired and also the Municipal taxes were paid by the appellant. So we find that the learned Subordinate Judge was not right in disallowing the relief prayed for damages done to the requisitioned property. Thus we do no find any substance in the said point as urged by the learned Advocate for the appellant. So far the quantum of compensation decreed by the learned Subordinate Judge is concerned it may be mentioned here that the requisition was made on the 10th November 1947, and the possession of the requisitioned property was taken on that very day and the learned Subordinate Judge' decreed the compensation for use and occupation up to the 30th June 1965. On calculation it appears that the plaintiffs are entitled to compensation for use and occupation as assessed by the appellant at the rate of Rs. 75 per month for the period of 17 years, 7 months and 20 days and the amount of compensation due would be Rs. 13,219.25 paisa after deducting the sum of Rs. 2,662.00 already paid to the predecessor of the plaintiffs for the total sum of compensation amounting to Rs. 15,881.25. But the decree has been passed for Rs. 13,088 only. So we find that the decree in this regard should be maintained with the modification that the plaintiff's will now get a decree in their favour for Rs. 13,219.25 for use and occupation of the premises according to the award made by the appellant themselves. In the result the appeal is dismissed with costs and the decree is maintained with the modification that the plaintiff' will now get Rs. 13,219.25 as compensation for use and occupation of the requisitioned house. We also allow the cross‑objection filed by the plaintiffs and in this respect we send the case can remand to the trial Court for reconsidering the question as to payment of compensation for damages done to the requisitioned premises, on the material evidences already on record and also on any other evidence which the parties may be advised to adduce only in the matter of damages done to the requisitioned property. The costs of cross‑objection will abide the result. On the 20th June last we ordered the appellant to deposit the costs during the pendency of the appeal. Now that we have maintained the decree after hearing the appeal no such order is necessary. The execution of the decree passed by this Court on modification may be proceeded with and that without waiting for adjudication of the other matter regarding damages as per the order of remand passed by this Court. Let a copy of the decree of this Court be forwarded to the Collector for taking necessary action in the matter of recovering court‑fees from the party concerned which will certainly be on the decretal amount. ??????????? A. S. CHOWDHURY, J.‑

I agree. A. E. ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.