P L D 1967 Dacca 521 (PLP)

A. S. CHOWDHURY, J.‑This revisional application is directed against an order made by Mr. S. J. H. Sekandar, District Judge of Dacca, in Miscellaneous Appeal No. 99 of 1965, setting aside an order of Mr. A. Rehman, Magistrate, 2nd Class, Dacca made on 1‑3‑1965 under section 2 of the East Pakistan Ordinance No. 1 of 1964. The petitioners' case, briefly stated, is that they left the premises in question owing to the civil disturbance of January 1964, and that the opposite‑party Mustaque Ahmed occupied the premises and forcibly took the left thumb‑impression on blank papers from the petitioner No. 2 Sarat Kamini Dasi and petitioner No. 3 Sand Dasi and that the same might have been converted into documents of title. The opposite‑party, however, asserts that the petitioners 2 and 3 have divested themselves of their proprietary right in the premises by a duly executed documents which has been validly registered and as such the petitioners have no subsisting interest in the land to claim restoration of possession. We have perused the record of the case. It appears that petitioner No. 1 Anil Das submitted an application on the 7th December 1964, to the Sub‑Divisional Officer (South), Dacca praying for restoration of possession in the holding Nos. 277 and 278 of Lalbagh Road. This petition was presented by Anil Das alleging that "the petitioner, his mother and aunt Sarat Kamini with other members of the family had to leave their houses due to threats and intimidation of one Mostaq Mia. "Another petition appears to have been filed by Anil Das, Sarat Kamini and Santi Dasi on the 11th February 1965 on the same allegations. Opposite‑party Mustaque Ahmed also filed a petition before the Magistrate claiming to be the lawful owner of the premises in question. On receipt of the application dated 7‑12‑64 the Sub‑Divisional Officer (South) sent the Officer‑in‑charge, Lalbagh Police Station for enquiry and report. After a local enquiry the Officer‑in‑charge submitted a report on 30‑12‑64 stating that "the petitioner and his family members had to vacate their houses for their safety". He also reported that "the second party man Mustaque Ahmed managed to take some L. T. I. and signatures from the petitioner, his mother and his aunt on the plea of preparing authorised letter on behalf of Mustaque Ahmed to look after the houses in question in absence of petitioner and others". He has further stated that the petitioner and his family members went to India and on their return they tried in vain to get back their houses. He has also mentioned that "the petitioner due to financial crisis could not file any case in the Court earlier". On receipt of this report the Sub‑Divisional Officer referred the matter to Mr. A. Rehman, Magistrate, Dacca who held the local enquiry and directed the opposite‑party to ‑vacate the premises. The Officer‑in‑charge, Lalbagh Police Station was asked to execute the order. After having failed to obtain possession on one or two occasions in compliance with the said order the Officer‑in‑charge wrote to the Sub‑Divisional Officer on the 5th March 1965, asking for a contingent of Armed Police under the command of a Magistrate on the ground that the "unauthorised persons have got relations all over the area who are reported to be dangerous and desperate in nature." The eviction eventually took place in pursuance of the said order. An appeal was preferred against the order made by Mr. A. Rahman by the opposite‑party Mustaque Ahmed who now prayed for restoration of possession The learned District Judge of Dacca allowed the appeal, set aside the order of the Magistrate and directed possession to be restored to the opposite‑party. The revisional application has been presented to this Court challenging the validity of this order of the District Judge. Mr. Bose appearing for the petitioner submits that the Magistrate made the order under East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964 (hereinafter called the "Ordinance") after a local enquiry and the learned Judge set aside the order without considering the report at all. Mr. Siddique Ahmed Chowdhury, learned Advocate for the opposite‑party submits that the petition is not maintainable inasmuch as only Anil Das was petitioner before the Magistrate but two others have joined in the petition before this Court. This contention of Mr. Chowdhury is devoid of any substance. On perusal of the record it is found as already mentioned that the first petition was presented by Anil Das alleging that his mother, aunt, other members of the family and himself had to leave the house as a result of riots. Moreover, it is not necessary that all the persons affected should make a joint petition. Anil Das could legally bring this matter to the notice of the Magistrate on his behalf and on behalf of others. Moreover, before the Magistrate made the order, a second petition was also presented on behalf of all the petitioners. Next point raised by Mr. Chowdhury is that Anil Das petitioner No. 1 not having asserted any interest in the property and other petitioners also having divested themselves of their right, title and interest in the same by virtue of the sale effected by them to the opposite‑party they have no subsisting interest to maintain this petition. This contention of Mr. Chowdhury is also without any substance whatsoever. The Ordinance does not contemplate that only owners can make an application for protection. This law aims at giving relief to the persons affected by the civil disturbance of January 1964. The preamble of the Act is as follows: "Whereas it is expedient to provide for the speedy rehabili tation of persons affected by the civil disturbance in East Pakistan in January 1964, and for the protection of the immovable properties of the minority communities in the manner hereinafter appearing." Moreover, to say that the petitioners 2 and 3 have sold their properties in question is begging the question. The document in question has been challenged by the petitioners. It should be remembered that in these proceedings title to the land cannot be decided. The petitioners were found to be in possession of the c properties during riots and that they had to leave the premises as a result of the disturbances. They were therefore entitled to make the application before this Court. Mr. Chowdhury has next argued that the District Judge mentioned in the statute has acted as persona designata and not as a Court subordinate to this Court and as such this Court cannot interfere with this order and the revisional application under section 115 of the Code of Civil Procedure is not maintainable. This question came up before this Court in several reported decisions and we propose to make reference to two in which other decisions have been considered. In the case of Afsaruddin Bhuiya v. Wazed Ali Khan and another (P L D 1953 Dacca 209) it was held by Ibrahim, J. that "In legal phraseology the expression "persona designata" means a person described in the statute or legal instrument by his official designation, and the function may be judicial or otherwise. If the function is a judicial function, then he is a Court, though he is described not as a Court but by official designation". The learned Judge reached this conclusion on a reference to a Full Bench decision of the Patna High Court reported in Dirji v. Goalin (A I R 1941 Pat. 65) in which Fazl Ali, J. expressed himself in the following terms: ". . There is no real antithesis between the expressions "persona designata" and "Court"; in other words, even a persona designata may be a Court. Whether he is a Court or not depends upon his powers and the functions which he has to discharge." It was, therefore, held by Ibrahim, J. that although the statute mentions him as a District Judge, he is amenable to the jurisdiction of this Court as he performed judicial functions. Next case on the point is that of Azizul Huq v. Messrs Hanif Ltd., Dacca and others (7 D L R 287). In that case a Division Bench consisting of Amin Ahmed, A. C. J. and Rahman, J. held "the words "District Judge" in section 29 of the East Bengal Premises Rent Control Act mean the Court of the District Judge". It is true the learned Judges in reaching that conclusion also considered that the District Judge was given the power of transferring the cases but that was not only consideration. A very relevant consideration for determination of this question is, how ever, the nature of the function the District Judge is called upon to discharge in the matter. If it is administrative in nature he is not acting as a Court. In the case of Azizul Huq the conclusion reached by the learned Judge was that the District Judge while performing such duty was acting as a Court and not as a persona designata. As against these clear decisions of this Court, Mr. Chowdhury has drawn out attention to Division Bench decision of this Court reported in 17 D L R 246, but he concedes that there is no decision on this point in this case beyond an expression of doubt as to whether a District Judge acts under this Ordinance as a persona designata or as a Court. On a reference to the statute we find that a Magistrate has been given the power to order restoration of possession under section 2 of the Ordinance if he is satisfied after a local enquiry that an order of restoration of possession was desirable. Section 3 of the Ordinance provides for an appeal against the said order. On the principles indicated in the decisions referred to above, it is necessary to find as to whether or not the District judge exercises judicial function in this case. Subsection (1) of section 2 is as follows: "2. (1) Any Magistrate or other officer specifically empowered in this behalf by the Provincial Government by general or special order may, after such local enquiry and. with such Police or other help as he may consider necessary, evict summarily any person who may have occupied or taken posses sion in any manner whatsoever of any house, hut, structure or land which any other person has had to leave or has left on account of in apprehension of, the civil disturbance in January, 1964." Section 3 (1) which authorises the District Judge to hear the appeal is in the following terms: "Any person aggrieved by summary eviction of himself from or by restoration of possession to any other persons of, any house, hut, structure or land, may appeal to the District Judge having jurisdiction, within thirty days of such eviction or restoration and the District Judge may, if he allows the appeal, cause such person to be put back in possession with such police or other help as he may considered necessary." Aggrieved by an order of a Magistrate a person may prefer an appeal to the District Judge. The District Judge will then have to decide the dispute between the parties and the proceedings will be held in the presence of the parties. Moreover, he has to decide not arbitrarily but in accordance with law. He will have ‑to hear the parties consider the materials on record, conclusions reached by the Magistrate and scrutinise judicially materials on which these conclusions are based. These are indeed the some of the well known characteristics of a Court. It can never be said that while deciding an appeal under section 3 of the Ordinance, the District Judge was holding a departmental enquiry. In the case of Afsaruddin Bhuiya referred to above the elements to constitute a Court have been elaborately discussed and we are in respectful agreement with the same. On a reading of the provisions of the Ordinance and on the principles indicated above we are satisfied that the District Judge while hearing the appeal under section 3 of the Ordinance will be discharging judicial function F and as such acting as a Court. We are, therefore, of opinion that this contention of Mr. Chowdhury is also of no substance and the District Judge is amenable to the jurisdiction of this Court under section 115 of the Code of Civil Procedure. Mr. Chowdhury has next drawn our attention to sub section (2) of section 3 of the Ordinance which is as follows: "(2). The decision of the District Judge referred to in sub section (1) shall be final." This point was also raised in the said case of Afsaruddin Bhuiya as there was a similar provision in that Act as well. We are also in complete agreement with the following observation occurring in that case in dealing with this question "Revision to the High Court under section 115 of the Code of Civil Procedure would lie only in those cases where no appeal lies, which, in other words, means where the decision of the Lower Court is final. The mere fact that the statute has expressly stated that the decision of the District of the) Subordinate Judge shall be final does not oust the jurisdic tion of the High Court to interfere under section 115 of the Code." It will further be noticed that there is no express provisions in this statute ousting the jurisdiction of this Court. This contention is also of no substance. Having disposed of the preliminary objection we propose to consider the merits of the case. On a reference to the record of the case we find that the Magistrate observed as follows in his order dated 27‑1‑1965: "I examined some local witnesses of contiguous houses and all of them told me on oath that these petitioners were living in the house before and during the riot and the opposite‑party had occupied the house sometime after the civil disturbances in January 1964. Therefore I am fully satisfied that the petitioners were in possession of the house before and during the civil disturbances in January 1964." The learned District Judge has neither considered nor set aside the above finding of the Magistrate in disposing of the appeal. The learned Judge has observed as follows: "A preliminary enquiry was held by the O. C. Lalbagh P. S. in which it was found against the present appellant, and the learned Magistrate accepted the report and ordered eviction of the present appellant . . . ." The learned Magistrate has stated that he held an enquiry himself and examined the witnesses on oath and thereafter he recorded his own finding. The learned District Judge, on the other hand, thinks that a preliminary enquiry was held by the Officer‑in‑charge of Lalbagh Police Station and the Magistrate merely accepted the report. It is a matter of some r egret that the learned District Judge merely considered the report of the Officer in‑charge submitted on 30‑12‑64 as mentioned by us at the outset but the learned Judge omitted to notice the satisfaction recorded by the Magistrate as a result of his own enquiry. Moreover, only reason for disregarding the said report of the Officer‑in‑charge as given by the learned Judge is as follows: "I hold that the delay in filing the petition not having been explained, the story that the petitioner Anil Das or his mother and aunt left the case premises on account of or in apprehen sion of civil disturbances of January 1964, is not worthy of reliance." The Officer‑in‑charge himself in that very report of 30‑12‑64 has stated as follows: "The petitioner and his family when returned to Pakistan from India tried their level best to get back the houses. But all his attempts resulted in failure." The only ground assigned by the learned Judge for disbelieving the allegations of the petitioners is delay in coming to the Court but he overlooked that in the report of the Officer‑in‑charge an explanation for the delay was recorded. The learned Judge never considered the explanation. In the view of the matter his finding in this behalf cannot be sustained. If the learned District Judge would have appreciated that there is a finding by a Magistrate who held the enquiry as required under the statute which gives him power to hold summary enquiry, he would have found it difficult in the absence of contrary evidence to set aside the finding. We are, therefore, of opinion that the conclusions reached by the learned District Judge is based on no evidence. That being so, he clearly acted illegally in setting aside a finding of fact in the total absence of evidence to the contrary. For the reasons stated above, we make the Rule in the petition under section 115 of the Code of Civil Procedure absolute with costs, set aside the order of the learned District Judge and affirm that of the learned Magistrate. As we have found that petition under section 115 is maintain able, it is not necessary to consider the application presented under Article 98 of the Constitution which has become infructuous and is accordingly disposed of without any cost in respect of this petition. K. M. HASAN, J. ‑I agree. K. B. A. Rule made absolute.