P L D 1969 Dacca 40 (PLP)

A. H. KHAN, J.‑This Rule nisi was issued on a petition under Article 98 of the Constitution calling upon the respondents to show cause why the judgment and order dated 11-8-65 passed in the Case No. 662 of 1965 by respondent No.1 Mr. Q. M. Rahman, Member, Board of Revenue, Dacca, should not be declared to have been passed without lawful authority and of no legal effect. The relevant facts briefly are as follows: Certain lands under Mauza Ramnakathi within P. S. Nalchity, District Bakerganj, were washed away by the river `Khairabad' flowing by the north of these lands, before the Revi sional Settlement operation (1940‑42, 1945‑51) and they par tially reappeared on the original site sometime ago. It appears from the record of the case produced before us, that on the basis of a report of a Surveyor, Miscellaneous Case No. 77 (s) of 1962‑62, Ramnakathi, was started for settlement of the lands with the owners of the adjoining lands as accretion under section 87 of the East Pakistan State Acquisition and Tenancy Act, 1951. In pursuance of an order dated 1‑12‑61 a report was submitted by Surveyor S. Huq on 14‑12‑

61. In this report it was stated that an area of 15.32 acres (the land in dispute) had reappeared from the bed of the river which was fit for cultivation and tenants of adjoining lands were possessing the lands without permission of the authority. On the basis of this report an order dated 1‑3‑62 was passed by the Sub‑divi sional Manager State Acquisition Department, Sadar Barisal, recommending settlement of the lands with the owners of adjoining lands. Added respondents Nos. 3 to 5 and others numbering in all 28 claimed to be owners. The matter was submitted to the Additional Deputy Commissioner for orders. It appears that it was dealt with by the Extra Assistant Com missioner (Revenue) and he called for the records‑of‑rights of the disputed lands and thereafter on comparison with the relevant maps he found that the lands in question had re‑formed on the original site of certain diluviated plots and the Revenue Circle Officer was asked to report as to whom those plots had belonged. The report of the Circle Officer (Annexure A' to the petition) dated 15‑1‑63 was to the effect that the lands in question shown as accretion to Plot Nos. 167‑189 of the added respondents partly belonged to Ismail Howlader and others, the petitioner's party who were the Second Party in the petition before the Board of Revenue. This report Annexure `A' to the petition was to the effect that the lands were re‑formed lands of plots 111 to 156 of the Revisional Settlement Khatian and .as such the tenants who had become landless were entitled to get settlement of the same under section 86 of the East Bengal State Acquisition and Tenancy Act. Thereafter on 10‑12‑63 both the parties filed petitions before the Extra Assistant Commissioner, the petitioner party claiming settlement of the lands on the footing that they were their re‑formed lands, and Added Respondents party claiming them as accretion to their adjoining lands. The District Kanungo was thereupon asked to examine and submit a report regarding the case and he submitted a report, Annexure `B' dated 10‑12‑63 to the petition. The Kanungo also submitted that the claim of the Added Respondent party as accretion and prayer for settlement under section 87 of the State Acquisition Act was absolutely baseless, and that out of 15.55 acres of lands an area of 12.44 were reformation in situ and the ex‑tenants should get these lands and the remaining area of 3.11 acre might be given to the owners of the adjoining lands. There were several hearings of the case and on 13‑4‑64 the Extra Assistant Commissioner passed an order saying that it was difficult to ascertain the exact date of diluvion and re‑appearance as "alluvion and diluvion are the outcome through gradual process" and that the ex‑tenants were entitled to get those lands on payment of "salami of 50 per cent." According to the petitioner, the Ad ditional Deputy Commissioner, Bakerganj, gave his approval to the above order on 2‑5‑64 but thereafter Added Respondents and others (the riparian owners) approached the Deputy Com missioner, Revenue, for review of the order and his successor revised the order on 9‑10‑64 in their favour. Petitioner's party then moved the Additional Commissioner and he directed by an order dated 19‑10‑64, Annexure D to the petition, that the lands be settled with petitioner and others under section 86 of the Act. Then the riparian owners, the Added Respondents party moved the Board of Revenue against the order of the Additional, Commissioner and the learned Member, Board of Revenue, Mr. Q. Rahman on hearing both the parties passed the impugned order on 12‑8‑

65. It appears from the impugned order of the learned Member of Board of Revenue that it was conceded by both that lands had re mained sub‑merged for more than 20 years and so the ownership of the lands, was with the Government, and both parties were suitors, for settlement of the lands as Khas lands of the Government. It has been strenuously contended by Mr. Akhtaruddin Ahmed, the learned Advocate appearing for the petitioner, that there was no such admission before the learned Member of Board of' Revenue. It will be convenient to discuss here the law regarding the right in respect of lands acquired by accretion and lands re‑formed on the original site. Clause (4) of section 4 of the Regulation XI of 1825 lays down the rule regarding accretion as follows: ‑ "When land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed, whether such land or estate be held. immediately by the Government or by a Zamindar or other' superior land holder, or as a subordinate tenure of any description of under tenant whatsoever" This Rule is, however, subject to the doctrine of reformation in situ laid down by the Courts of Justice under the "general principles of equity and justice" laid down in clause (5) of section 4 of the aforesaid Regulation, this doctrine may be briefly stated as follows "Where the land is formed on a deluviated but ascertainable site or where an ascertainable site is discovered by the recession or subsidence of waters such land or discovered site belongs to; him who has a subsisting title thereto." The leading case on the subject of accretion and reformation in situ is that of Felix Lopez v. Muddan Mohan (13 M I A 457). The principle enunciated therein is that the accession of land from the river or sea under section 4(4) of the Regulation XI of 1825 must be made from that which is part of "public territory" on "public domain" "or public refuge" as it is sometime called. But if the lands washed away are re‑formed on an old site which is clearly ascertainable as land of a private owner, such land remain the property of such owner if he has subsisting title thereto. Reference in this connection may be made also to the Privy Council decision in Arun Chandra Singh v. Kamini Kumar (19 C L J 272). The above principles are firmly established by decisions of Court for more than a century and th6ir Lordships of our Supreme Court have re‑affirmed them in the case of Surrandra Lal Depali v. Satia Tamaj Ghosel (P L D 1960 S C 179). By introduction of section 86‑A in the Bengal Tenancy Act by the amendment of 1928 the right of a tenant to his diluviated on reformation on the old site was, however, curtailed by the provisions therein to the effect that if the tenant obtained an exemption from payment of rent or an abatement of rent on account of the diluvion of the lands of the tenure or holding as a whole, or in part, as the case might be, then in the absence of a contract to the contrary, the tenants would be deemed to have surrendered his tenure or holding or the deluviated potion thereof. The lot of the tenants in respect of deluviated land was thereafter improved by a further amendment of the Bengal Tenancy Act in the year 1938 under which the old section 86‑A was repealed and anew section 86‑A was substituted providing inter alia that the tenant shall be given abatement of rent as a matter of right and the right of the tenant to such land shall subsist as laid down therein. Section 86‑A of the East Pakistan State Acquisition and Tenancy Act which has replaced section 86‑A of the Bengal Tenancy Acton the repeal of the latter Act, substantially con tains the same provision as section 86‑A of the Bengal Tenancy Act. Subsection (2), clause (a) of section 86‑A of the Bengal Tenancy Act provides as follows: "2(a) Notwithstanding anything contained in this Act or any other law or any contract to the contrary, the right title and in terest of the tenant or his successor‑in‑interest shall subsist in such lands or portion thereof during the period of loss by dilu vion not exceeding twenty years and the tenant or his successor -in‑interest shall have right to immediate possession on the re appearance of such lands or portion thereof within 20 years of the loss by the diluvion, and the landlord shall have right to the arrears of rent without interest or damage in respect of the land which has re‑appeared for the period during which it was lost or for four years whichever is less. Subsection (2) of section 86 of East Bengal State Acquisition and Tenancy Act also contains the same provisions with certain necessary changes which are not material for the present discussion. It is clear from the above provision that a right title and interest of a tenant in his diluviated land subsists during the period of diluvion not exceeding 20 years and he is entitled to immediate possession of the same on re‑appearance of such land within 20 years of diluvion of the lands irrespective of the question whether any abatement of rent has been taken for the lands or not; under the provisions of the East Bengal State Acquisition Act, the tenant will be entitled to possession of the land, subject to the limitation regarding total area that can be possessed under section 20 or 90 of the State Acquisition Act. But if the land re‑appears beyond 20 years after diluvion then he cannot claim right to the land as a matter of course. It is, however, conceivable that a tenant may contrive to have subsisting interest in such land irrespective of the extent of the period of submergence of the land if he has continued to pay the entire rents and the same has been accepted or realised. But that question does not arise in the present case so far as the petitioner is concerned. It, however, appears that this is what happened in the case of the holding in S. A. Khatian No. 53 recorded in the name of one Jamaluddin and three others. We propose to revert to this Khatian hereafter. In the instant case, the petitioner's contention as already stated, is that the lands in questions were under water for only 10 to 12 years. This assertion was made also in his petition before the Extra Assistant Commissioner (Revenue) filed on 10‑4‑63 but he did not state therein the year or years in which the diluvion took place, nor the year of re‑appearance. In his petition before this Court he has asserted in paragraph 4 that the land went under water in 1340 B. S. or thereabout, and reappeared in its original site in 1352 B. S. But it appears from the record that the contention that the land remained under water for 10 to 12 years only is not correct. Admittedly, the lands were under water at the time of Revisional Settlement operations which continued from 1940‑42 and after an interruption of three years the operations were resumed and continued from 1945‑

51. The record‑of‑rights of the Revisional Settlement was finally published in

151. After this there was preparation of record‑of‑rights under Chapter IV of the East Bengal State Acquisition and Tenancy Act which, as submitted by Mr. K. M. Sobhan, the learned Advocate who appeared on behalf of the Revenue Department, was finally published in 1955. The lands of the petitioner and others are said to be included in State Acquisition (S. A.) Khatian Nos. 8, 11, 24, 35, 41, 42, 46, 39, 53, 55 and

56. But in all these Khatians the diluviated plots are shown as still under water and part of the navigable river `Khariabad'. But evidently the area of 15 32 acres in question had already re‑formed by December 1961 when the Miscellaneous Case No. 775 of 1961‑62 was first started. In para. 2 of the petition it has been stated that the lands in question are recorded in Revisional Settlement Kh4tian Nos. 80 and 52 but these Khatians are not found in the records and it also appears that these Khatians Nos. 80 and 52 were not among the Khatians filed by the petitioner and others before the Extra Assistant Commissioner on 15‑12‑

62. In the report of the Revenue Circle Officer, dated 15‑1‑63, Annexure `A' to the petition, it is stated that the lands in question reformed by 1360 B. S. and portions of the lands re‑formed within 20 years and that as such the original tenants are entitled to get settlement of these plots. In the District Kanungo's report dated 10‑12‑63, Annexure `B' it is stated that the cultivation of the reformed lands bad begun 5 or 6 years before that date. Thus according to him also the lands appeared about the year 1360 B. S. as cultivation cannot be started as soon as the lands appear. Now, even assuming that the lands re‑appeared in 1360 B. S. corresponding to 1953‑54, is the claim that the lands remained under water for not more than 20 years supported by the remarks in the R. S. and S. A. Khatians in the record and how far are these remarks acceptable as correct? The holdings of the petitioner, as already stated, are said to be recorded in R. S. Khatians Nos. 80 and 52, but these Khatians were never filed in this case at any stage though the petitioner‑party filed a number of other R. S. Khatians before the Extra Assistant Commissioner and which are in the record. The corresponding S. A. Khatians are said to be Khatians Nos. 8, 11, 24, 35, 41, 42, 46, 39, 53, 55 and 56 vide para. 2 of the petition. On a scrutiny of the R. S. and S. A. Khatians it is found from the remarks column that of the 23 plots mentioned in para. 2 of the petition, eleven plots Nos. 110, 112, 114, 118, 119, 121, 130, 131, 133, 136 and 140 are shown as having been diluviated in 1330 B. S. Plots Nos. 93, 108, 124, 132, 135, 137, 138 and 139 are shown as having been washed away, in 1340 B. S., Plot No. 120 is shown in one Khatian (S. A. Khatian No. 8) as having been diluviated in 1330 B. S. and another (S. A. Khatian No. 11) as having been diluviated in 1340 B. S. both Khatians standing in the same names; one Plot No. 122 is shown as having diluviated in 1340 B. S. in one Khatian; and in 1345 B. S. in another, and two Plots Nos. 111 and 123 are shown as having been washed away in 1348 B. S. Now, on scrutiny of the relative situation of the various plots in question it would appear that many of the plots which are on the outer edge, or nearer the river (vide trace maps of Revenue Circle Officer, and of Surveyor S. Huq, dated 14‑12‑61, pages 13 and 14 of record) according to the notes in the remarks columns of the Khatians were diluviated later than many of the plots lying on the inner side. Thus Plots Nos. 114, 112, 123, 124, 130, 136 and 140 which are in the inner side have been shown as diluviated in 1330 B. S. while plots such as 108, 93, 120, 122, 132, 139, 138, which lie on the outer edge have been shown as having been diluviated later in the year 1340 B. S. It is further to be noted that Plot No. 123 is shown as diluviated in 1948 though the plots surrounding the same are shown as diluviated much earlier, Plot No. 112 on the west, in 1330 B. S. Plot No. 121 on the north, in 1330 B. S. Plot No. 124 on the east, in 1340 B. S. The same kind of remarks apply to Plots Nos. 111, 122 and

135. Plots Nos. 137 and 135 are shown as washed away in 1340 B. S. while No. 136 lying between them is shown as having been diluviated in 1330 B. S. From the above it is clear that the years of diluvion were noted in the remarks column of different Khatians without actually ascertaining the year of diluvion, which would also be very difficult in view of the lapse of time and the gradual process of diluvion. It may be mentioned here incidentally, that in the records there is a petition by one Akhteruddin Ahmed praying for settlement of the disputed lands saying that he had pur chased the touzi of the lands in question from the previous proprietor and that these lands had diluviated about 50 years ago and the tenants of these lands did not pay any rent for fifty years. In view of the state of affairs discussed above, it is clear that if the learned Member, Board of Revenue, was not prepared to accept that the lands had remained under water for not more than 20 years and if the lawyers also conceded this position, it cannot he held that they did so without any justification. In view of the affidavits of the respondents and the facts and circums tances of the case, we have no reason to hold that the representatives of both parties did not actually make the admissions as recorded in the order of the learned Member, Board of Revenue. As regards the assertion of the petitioner in para. 20 of the petition that the petitioner paid rents for the diluviated lands, there is absolutely nothing to show that the petitioner paid any rent for the lands of his Khatians Nos. 80 and 52 at any time after the diluvion. The only documents which were produced before the Extra Assistant Commissioner (Revenue) and which form part of the records, are two chalans dated 15‑12‑62 showing deposit into Bakarganj Treasury of rent of 4 years from 1363‑E 6 B. S. and Development Tax in respect of S. A. Khatian No. 53 belonging to one Jamaluddin and three others of whom petitioner Is not one. In the remarks column of this S. A. Khatian No. 53, four of the plots are shown as diluviated in 1340 B. S., two in 1348 B. S. and one in 1349 B. S. In this S. A. Khatian five of the existing plots are shown as homestead, bhita, garden and culturable lands. The rental is shown as a Rs. 6.4‑0 for the existing lands on deduction of Rs. 16‑12‑0 as rent of the diluviated lands out of the total rent of Rs. 22‑6‑

0. But one of the above‑mentioned challan shows that rent of the entire lands at the rate of Rs. 22‑6‑0 annas with interest and cess was realised from the tenants of the holding in Certificate Case No. 4868‑N of 1960‑

61. But this state of things in respect of S. A. Khatian No. 53 cannot be of any assistance to the petitioner In the present case. Jamaluddin and others are not petitioners before this Court. If these tenants are so advised, it will be open to them to move the Board of Revenue for review of their case in respect of this Khatian or to seek other legal remedies as may be available to them. It is unfortunate that the attention of the learned Member, Board of Revenue, was not specifically drawn to the challans in respect of S.A Khatian No. 53 and the legal implication of the position revealed therefrom. Having regard to the entire facts and circumstances discussed above, it is clear that it was generally accepted by the lawyers of both the parties that the lands were under water for more than 20 years and the impugned order was passed on that footing. We, therefore, find no reason for interference with the impugned order. The Rule is accordingly discharged without costs. SALAHUDDIN AHMED, J.‑I agree. A. H. Rule discharged.