P L D 1968 Supreme Court 78 (PLP)

FAZLE‑AKBAR, J.‑This appeal has been preferred on the basis of a certificate granted by the High Court of East Pakistan. The order appealed from is one by a Division Bench of the High Court making absolute a rule nisi requiring the Government of East Pakistan to show cause why writ of mandamus should not issue directing them to cancel, withdraw and rescind certain notices issued under section 5 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953. The petitioners‑respondents' case was that the Baishrashi and Chouddarashi Zamindars of Bawful Estate owned the lands of Touzis Nos. 1721‑22 of the Bakarganj Collectorate in Mouza Amanatganj bearing J. L. No. 2027 and recorded in Khewat Nos. 65 and

66. After the District Settlement Operation a small portion of the above land which had been diluviated reformed in situ in the year 1940. In July 1940 the petitioner No. 1 and the predecessors of petitioners Nos. 2 to 4 took settlement of 8.86 acres of land from the Zamindars. They first used the land for agricultural purposes and later constructed tin sheds on the said land for carrying on business in various commodities. After acquisition of rent receiving interests of the Zamindars under the East Bengal State Acquisition and Tenancy Act, 1950, the Revenue Officer, Barisal issued notices to the petitioners for settlement of rent and ultimately their names were recorded in the rent roll in spite of the opposition of the Collector. On 17th April 1957 they received a notice dated 12th April 1957 from the Revenue Deputy Collector, Bakerganj asking them to show cause why the structures on the Government foreshore land of Barisal river should not be removed under the provisions of East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953. On their showing cause the Collector did not take any further action. On 9th May 1957 the Additional Collector of Revenue, Bakarganj, issued notices under the above Act asking them to remove their tin sheds therefrom by 15th May 1957. They then moved the Collector and the Commissioner for vacating the said order without any success. On 16th July 1957, the Sub‑Divisional Officer took possession of the said land by demolishing their tin sheds with the help of the armed police force. They then moved the High Court for a writ directing the, Government to cancel the said notices. The Government case may be conveniently stated in the words of the Sub‑Divisional Manager, Sadar (South) Barisal who filed an affidavit in opposition on behalf of the Collector, Bakerganj "That the land in question is the foreshore land of the River Barisal within the high water and low water marks of the said River. This foreshore land has not fixed place inasmuch as the C. S. Survey map of 1902 shows this River flowing about 100 yds. west of its present site and since then it has receded towards the east ; this recession has thrown up quite a big tract of land which is now used as non‑agricultural land for hats and bazars and other non‑agricultural uses : the entire area that has been thrown up belong to the Zamindary of Chauda Rasi Estate and the said landlords settled those lands to various tenants from time to time and their names have been duly included in R. S. Khatian which was finally published in 1952. The petitioners were never tenants of the said land lords and their names do not find in any place in said Khatians of those lands. After the acquisition of the said estate by the Government the name of the petitioners were not found in the Talab Baki papers of Mouza Amanatganj of the ex‑landlords. The petitioners in order to create a false title and possession have manufactured various fraudulent and collusive amaldari papers, Kobalas and rent receipts. During the Revisional Survey when the respective owners and tenants were recording their names in the Khatians under the proceedings under Chapter IV of the E. B. State Acquisition Act, none of the petitioners ever came forward to put in their claim for recording their names and as such in 1954 when the records were finally published the name of the petitioners were not there. Thereafter for over 2 years the petitioners did not do anything. In the meantime in 1956 some other persons tried to encroach upon their land but their claims were rejected and their unauthorised constructions were demolished ; sometime in January 1957, the petitioners surreptitiously managed to create a new draft rent roll in their favour although the Khatians were finally published in 1954 under Chapter IV of the said Act. An objection was put in on behalf of the Collector against the said creation of the rent roll which was finally allowed by the Settlement Officer and the proceeding of the said rent roll was quashed on 20‑6‑

57. In the meantime by virtue of that wrong rent roll the petitioners entered into that foreshore land and erected certain unauthorised structures and the Additional Collector issued notices to the petitioners under Act X of 1953 for removal of the unauthorised constructions raised by them, the case being Case No. 67 of 1957." The learned Judges of the High Court held that the provisions of the East Bengal Government Lands and Buildings (Recovery of Possession) Act of 1953 (hereinafter referred to as the Act) were not attracted to this case because there was a bona fide dispute as to the title of the disputed land. They, therefore, ordered for cancellation of the notice issued under the Act. Mr. Mustafa, the learned counsel for the appellants, has contended that as there was a dispute on questions of fact between the parties and as also the petitioners' right to the property was disputed, proceedings by way of writ were not appropriate in a case like this. We are unable to accept this contention of the learned counsel. The proceedings in the High Court commenced by the respondents for a writ in relation to certain notices issued by the Government under the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953. They challenged the validity of the notices on the ground that it was not within the powers of the Government to issue such notices. It is well settled that if any person aggrieved by an order made under the Act desires to question the validity thereof on the ground that it is not within the powers of the Act or that any requirement o the Act has not been complied with, he may if satisfied that the A order is not within the powers of the Act or that that the interests of the applicant have been substantially prejudiced by any requirement of the Act not having been complied with quash the order. (See Halsbury's Laws of England, Third Edition, Para graph 108, Volume II). It will be convenient at that stage to refer to the relevant provisions of the Act. The preamble to the Act states‑ "It is expedient to provide for speedy recovery of possession of Government lands and buildings by evicting outgoing lessees and unauthorised occupants." Various sub‑clauses of section 2 define, building, land and un authorised occupant. Section 3 empowers the Government to evict outgoing lessees from the land. Section 4 enables the Government to determine a lease and to recover possession of a building in certain cases. Section 5 under which the impugned notices were issued is as follows:‑ "(1) If the Provincial Government is satisfied, after making such enquiry as it thinks fit that a person is an unauthorised occupant, it may, by order in writing, direct such person to vacate the land, building or part of a building in his occupation within the period specified in the order. (2) If the person against whom an order under subsection (1) has been made, refuses or fails to vacate the land, building or part of a building in his occupation within the time fixed, then, notwithstanding anything contained in any other law for the time being in force, it shall be lawful for the Provincial Government to enter upon such land, building or part of a building and recover khas possession of the same by evicting such person and by demolishing and removing structures, if any, erected or built by that person." Mr. Mustafa, the learned counsel thinks that by this section 5 the determination of the question of title has been left entirely to the subjective satisfaction of the Provincial Government. If the preamble and the provisions of the Act are examined it appears to be perfectly clear that the Act is designed to give power to the Government to take speedy steps for recovery of possession of Government land. In order to attain that purpose section 5 empowers the Government to make inquiry if a person is an unauthorised occupant. It, however, does not say that the decision of the Government as to the title of the property in question shall be final. If Mr. Mustafa's argument is accepted it would lead to absurd results. The Government's decision regarding title as to any building or land in the Province will be. final. This was not and could not be the intention of the Legislature as is clear from section

5. It merely says that "the Provincial Government if satisfied after making such enquiry as it thinks fit that a person is an unauthorised occupant it may direct such person to vacate the land". In other words the Government has been empowered to decide if a person is an unauthorised occupant. Under section 2(c) "unauthorised occupant" means a person who is in occupation of any land or building or part of a building without having obtained the express permission or authority of the Provincial Government, and, includes‑ "(i) a person inducted into any building' or part of a building by the lessee thereof; and (ii) every member of the lessee's family who remains in occupation of such building of part after the determination of the lease in respect of the same". That is to say that only when a person is in occupation of any Government land or building without their permission he may be said to be an unauthorised occupant. It is therefore, clear that where the title of the Government to any land or building is disputed on bona fide grounds it will not be open to the Government to take action under this Act. The respondents' case is that the disputed land which had diluviated reformed in situ in 1940 and thereafter the said land was settled with the Zamindars. They also rely on various docu ments in support of their tenancy. On the other hand, the Government challenges their tenancy. They further contend that there was never diluvion of Touzis Nos. 1721‑22 to which the disputed land appertains. According to them, this land was thrown out due to recession of the river and as the river belonged to a different Touzi the respondents were not entitled to claim this land as part of Touzis Nos. 1721‑

22. Thus there is a bona fide dispute with regard to the right of eviction claimed by the Government. In these circumstances, the High Court has rightly held that the provisions of the East Bengal Government Lands and Buildings (Recovery of possession) Act of 1953 are not attracted to this case. We accordingly dismiss this appeal with costs. S. Q. Appeal dismissed.