P L D 1969 Dacca 459 (PLP)

ABDUL HAKIM, J.‑This Contempt of Court proceeding arises out of writ Petition No. 25 of 1958. The Rule was issued at the instance of the petitioner, calling upon the opposite‑parties to show cause why proceedings should not be drawn up against them for contempt of Court or why they should not be suitably dealt with in accordance with law for violating and disobeying the order of injunction dated the 29th of January 1968, granted by this Court in the above writ petition. The O. P. No. 1 is the Officer‑in‑Charge, Serajdikhan P. S., the O. P. No. 2 is the respondent No. 3 in the said writ petition and the O. P. No. 3 is a constable attached to Serajdikhan. The case of the petitioner is that he moved an application under Article 98 of the Constitution (being Petition No. 25 of 1968) before this Court challenging an order dated 16‑1-68, passed by the Sub‑Divisional Officer, Munshiganj, authorising the Officer‑in‑Charge, Serajdikhan P. S. to evict the petitioner and to demolish his structures from C. S. Plot No. 121 of Mouza Sontoshpara. This Court, after hearing the learned Advocate for the petitioner, issued a Rule in the above writ petition and also passed an order of injunction restraining the respondents in the writ petition from evicting the petitioner from the said plot and from demolishing his huts standing thereon and from interfering with his possession in any way. The petitioner took a certified copy of the above order of the High Court dated 29‑1‑68 and his son Abdul Hossain reached home with the said certified copy in the evening of the 30th of January 1968. On 31‑1‑68, at about 8 a. m. in the morning, a con stable came to the petitioner's house and took the petitioner's son Abul Hossain to the Thana and beat him in presence of two witnesses, namely, Mobarak Ali and Shamsher Ali, and then kept him in detention in the Thana custody. In the meantime, another constable went to the house of the petitioner, brought his three other sons and similarly assaulted and locked them up in the Thana Hajat. Abul Hossain, son of the petitioner, showed the certified copy of the Courts' order to the Officer‑in‑Charge but in spite of that, the opposite‑parties along with others went to the said Plot No. 121 and demolished all the huts of the petitioner in the said plot and in the process of the said demolition, forcibly dragged away the wife of the petitioner by holding her sari and arms. The petitioner has, therefore, filed the present petition alleging that the opposite- parties have, thus, deliberately and intentionally disobeyed and violated the order of the High Court dated 29‑1‑68 passed in Petition No. 25 of 1958, by demolishing the huts of the petitioner and evicting the family members from the said plot and forcibly taking possession of the same. The opposite‑parties‑contemners before us, have filed three separate affidavits‑in‑opposition denying the allegations made in the Contempt Petition. They have asserted that the allegations of assaulting the sons of the petitioner, dragging away the wife of the petitioner and demolishing the huts and there by evicting the peti tioner's family from the disputed land on 31‑1‑68, are all false. The definite case of the opposite‑parties‑contemners is that the Sub‑Divisional Magistrate, Munshiganj, by his Memo. No. 6/1(3) V‑7/68 dated 16‑1‑68, after giving proper hearing to the petitioner, ordered for eviction of the petitioner who was held to be a trespasser, from the Government Khas land by demolishing his huts thereon by Police Force. A copy of the order was sent to the Officer‑in‑Charge, Serajdikhan P. S. for action and the Officer‑in‑Charge, in compliance thereof, asked one Mr. M. H. Khan, a Sub‑Inspector of Police of the said Thana, to execute the order of eviction and accordingly the said Officer, in presence of eight witnesses, including two sons of the petitioner, executed the said order of the Sub- Divisional Magistrate on 21‑1‑68 and in course of eviction two huts were demolished in presence of the above witnesses and absolute vacant possession of the evicted land was there after handed over on the same date, i. e. 21‑1‑68 to the Circle Officer (Rev.) who is the opposite‑party No. 2 in this case and then a compliance report was submitted to the Sub‑Divisional Officer, Munshiganj on 26‑1‑

68. The petitioner suppressing this fact of eviction and demolition on 21‑1‑68, without the knowledge of the opposite‑parties, moved the Writ Petition No. 25 of 1968 on 29‑1‑68 before the High Court and obtained the above order long after the actual eviction and demolition of the huts. After taking the stay order by fraudulent sup pression of facts the petitioner's sons armed with lathi, dao and deadly weapons attempted on 31‑1‑68 in the morning to forcibly enter into the Government Khas land wherefrom they were evicted on 21‑1‑

68. The opposite‑party No. 2, who was residing nearby, getting scent of forcible re‑entry by the petitioner's people, raised objection to it with the help of his men but when the petitioner's sons threatened him with dire consequence, the opposite‑party No. 2 had no other alternative but to report the matter to the local Police. As soon as the matter came to the notice of the Police, the opposite‑party No. 2 (the officer‑in‑Charge) along with some constables includ ing the opposite‑party No. 3 went to the spot and found the petitioner's sons along others actually trying to erect huts in the disputed plot by force. While the Police resisted them the sons of the petitioner and others, who were armed with lathis, daos and other weapons, showed a riotous attitude towards the Police and in the circumstances, the opposite‑party No. 1 had to arrest the sons of the petitioner to maintain law and order situation in the area and thereafter locked them up at the Thana Hajat. In the meantime, one of the sons of the petitioner informed the Officer‑in‑Charge that the petitioner Rahimuddin had obtained a stay‑order from the High Court and as soon as a copy of the said stay‑order was shown to the Officer‑in‑Charge, all the sons of the petitioner were released at once. The contemners in the circumstances have submitted that they have the highest respect for the order of the Court and that they have not violated the order in any manner. But even then they have tendered unqualified apology to this Court for the mistake, if any, and surrendered to the mercy of the Court. From the pleadings of the parties the main question that arises for determination here is whether the eviction and demolition took place on the 31st January 1968, as alleged by the petitioner or on the 21st January 1968, as contended by the contemners. If the alleged eviction and demolition are found to have taken place on the 2lst January 1968, about eight days before the issue of the Court's order, the question of violating or disobeying the said order does not at all arise. To resolve the controversy as to when the alleged eviction and demolition took place, we felt the necessity of examining witnesses and several witnesses were examined in the case. The petitioner in support of his claim has examined himself and also seven other witnesses. The opposite‑parties‑contemners have also examined as many as thirteen witnesses to show that the eviction of the petitioner and demolition of his huts actually took place on 21‑1‑

68. P. W. 1 is the petitioner himself, P. Ws. 2, 3 and 5 are his sons and P. W. 4 is his wife. All these five witnesses (P. Ws. 1‑5) are vitally interested in the case. P. Ws. 6 and 7 who support the case of the petitioner, have made discrepant and exaggerated statements here and there. Some of their statements are unnatural and highly improbable. P. W. 8 does not support the case of the petitioner and has given altogether a new story which is not even the case of the petitioner. He has made deliberate false statements at different places. The evidence of these witnesses suffers from inaccuracy, inconsistency and improbability. It is very difficult to rely on their evidence. D. W. 1 M. H. Khan, a Sub‑Inspector of Police, has stated in his deposition that the order of the Sub‑Divisional Officer, dated 16‑1‑68 having been endorsed to him by the Officer‑in- Charge for necessary action, he went to the spot on 21‑1‑68 along with two constables and with the help of the opposite- party No. 2 and some coolies, demolished the unauthorised huts made thereon and evicted the petitioner and his family members in presence of the witnesses on 21‑1‑

68. Similarly D.Ws. 2, 3, 6, 8, 11 and 12 have uniformly stated that they were present during the demolition of the huts and eviction of the petitioner from the disputed land on 21‑1‑68 and that the alleged eviction and demolition took place on the 21st January 1968. These witnesses are quite independent and there is no reason to disbelieve them. D. W. 12, a clerk of the office of the Revenue Circle Officer, has further proved the receipt Exh. J. to show payment of money to the coolies who demolished the huts on 21‑1‑

68. The other D. Ws. Nos. 4, 5, 7, 9, 10 and 13 have also corroborated the D. Ws. referred to above. Amongst the last group of D. Ws., D. Ws. 9, 10 and 13 are very respectable witnesses. The petitioner after eviction and demolition of his huts on 21‑1‑68 approached these witnesses for advice and made complaints to them for redress. D. W. 9 who is the Chairman of the local Union Council, enquired about the incident and issued a certificate in his favour. D. W. 10 who is the President of the Sub‑Divisional National Awami Party and a Journalist, was present in the locality both on the 20th and the 21st of January 1968 in connection with some public meetings. One person alleging to be a peon of some office approached the witness for help against the Police action on 21‑1‑68 and for publishing the news in the newspapers. He told the man that he could do nothing without enquiry and so the man left. His evidence clearly shows that the occurrence took place on 21‑1‑

68. There is no reason to disbelieve this D. W. 10 who seems to be a quite disinterested man. Similarly D. W. 13 Md. Badiul Alam Khan, who is an Advocate of this Court and also a Chairman of the adjacent Isapura Union Council, has deposed to the effect that on the 22nd of January 1968, while he was going to Serajdikhan Bazar he was told by somebody that the petitioner's huts at Sontoshpara Kutchery Bari had been demolished by Serajdikhan Police on 21‑1‑

68. The witness, as a Chairman, enquired into the matter from the local authorities and when he met the local Revenue Circle Officer and the Officer‑in‑Charge, Serajdikhan P. S., he charged' them as to why they demolished the huts of the petitioner and evicted him from the disputed lands on 21‑t‑68 and was informed that the eviction and demolition took place under order of the Sub -Divisional Magistrate, Munshiganj in accordance with law. He also went to the spot and found no huts there on 22‑1‑

68. There is no reason to disbelieve such a respectable witness. The case records of the Court of the Sub‑Divisional Officer, Munshi ganj and the other papers produced before us also support the defence version of the case. From the evidence, both oral and documentary, and the affidavits and counter‑affidavits filed in the case, we are satisfied that the alleged eviction and demolition of the huts .of the petitioner from C. S. Plot No. 121 of Mouza Sontoshpara actually took place on 21‑1‑

68. Thus it is apparent that the defence version as put forward by the contemners is true. The alleged eviction and demolition having taken place on 21‑1‑68 under order of the Sub‑Divisional Magistrate the question of violating and disobeying the order of the Court dated 29‑1‑68 does not arise in the case. The land in dispute is a Government Khas land and the petitioner is a peon of the said Government Acquired Estate. Taking advantage of his position and with the connivance of some people, he entered into the said Khas land sometime in July 1967, and erected two huts thereon without any permission. Under the order of the Sub‑Divisional Officer, Munshiganj, the opposite‑parties just evicted him and demolished the unauthorised constructions on 21‑1‑

68. They arrested the petitioner's sons on 31‑1‑68 to maintain peace and order without the slightest knowledge of the stay‑order issued by the High Court. They did so in good faith in due discharge of their official duties. The contemners complied with the order of the Sub‑Divisional Magistrate in good faith in due discharge of their official functions and all what they did was done in course of discharging public duties and not in violation of this Court's order. The petitioner has failed to make out a case of contempt .of Court against the opposite‑parties. In the facts and cir cumstances of the case, we do not think that the opposite‑parties can in any way be held responsible for committing any contempt .of this Court. No case under Act XII of 1926 having been made .out against the opposite‑parties, the Rule is liable to be discharged. In view of the fact that the petitioner has obtained this Rule of Contempt of Court on false statement and by suppressing facts with motive, we think, he should pay for such fraudulent suppression of facts and swearing of false affidavit. We, there fore, discharge this Rule with costs against the petitioner, which we assess at 15 (fifteen) gold Mohurs to be paid to the State. SIDDIKY, C. J.‑I agree. K. B. A. Rule discharged.