P L D 1971 Supreme Court 476 (PLP)

M. R. KHAN, J.-These five appeals, by special leave, involve common questions of law, and this judgment will dispose of all of them. The appeals have arisen under the following circumstances: The holding No. 9, Anderkilla, J. C. Road, Chittagong, popularly known as "Musafirkhana Building", among other lands and buildings, had been owned by the Chittagong Muslim Institute. All the properties of the Chittagong Muslim Institute (including the Musafirkhana Building were acquired by the Pro vincial Government on the 24th September 1959, by the Chittagong Muslim Institute Ordinance, 1959 (East Pakistan Ordinance (LXV of 1959). By virtue of that Ordinance, all the properties of the Chittagong Muslim Institute vested in the Provincial Government free from all encumbrances. For the purpose of management, control and preservation of those pro perties, a Managing Committee was constituted by Rules made under the said Ordinance. At the material time, the Sub-Divisional Officer, Sadar (North), Chittagong, was the ex officio Secretary of the Management Committee. Each respondent of each of the Civil Appeals Nos. 29-D to 31-D of 1970 was in occupation of a specified portion of the Musafirkhana Building as a monthly tenant under the Chittagong Muslim Institute: After the acquisi tion of the properties by the East Pakistan Ordinance No. LXV of .1959, the respondents of these three appeals became monthly tenants under the Provincial Government in respect of their respective premises. After the promulgation of the said Ordinance, the Provincial Government itself inducted the respon dents of Civil Appeals Nos. 32-D and 33-D of 1970 into some On other portions of the Musafirkhana Building as monthly tenants. the respondent's refusal to pay enhanced rent claimed by the Provincial Government, their tenancies, were said to have been determined by notices, dated the 9th August 1969, issued under section 106 of the Transfer of Property Act. The tenancies, according to these notices, were to come to an end with the expiry of the 31st of August 1969. As the respondents did not vacate their premises after the alleged determination, of their tenancies, the Sub-Divisional Officer, Sadar (North), Chittagong, issued notices, dated the 24th September 1969, under section 5(1) of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 (E. B. Act X of 1953), calling upon the respondents to vacate the respective premises with the threat that in the event of their failure to do so, they would be evicted therefrom with the help of the police. The respondents did not vacate their premises in spite of these notices. There upon, on the 15th January 1970, a police party led by Mr. M. I. Chowdhury, a Magistrate of the 1st Class came to the premises and locked up all of them except the premises involved in Civil Appeal No. 29-D of 1970 against Messrs Allawala & Co. The respondent in each case then filed a writ petition in the High Court of East Pakistan calling in question the notice of evict;on issued under section 5(1) of the E. B. Act X of 1953. These were Writ Petitions Nos. 5, 28, 29, 30 and 31 of 1970. In all these writ petitions, except in Writ Petition No. 5 of 1970 of Messrs Allawala & Co., a further prayer was made for a direction to remove the locks from the premises. The learned Judges of the High Court took the view that although the tenancies of the respondents had been determined by notices under section 106 of the Transfer of Property Act, they were not "unauthorised occupants" within the meaning of section 2(c) of the E. B. Act X of 1953 and did not come within the mischief of that Act. They were further of the view that the locking up of the premises was unauthorised. Accord ingly, they accepted the writ petitions and declared that the notices of eviction under section 5(1) of the E. B. Act X of 1953 were without lawful authority and of no legal effect. They also declared that the locking up of the premises was illegal. The Province of East Pakistan has preferred these five appeals against the consolidated judgment and order by which the High Court accepted the five writ petitions of the respondents. It is an admitted fact that the Musafirkhana Building, among other properties, belonged to the Chittagong Muslim Institute. It is also admitted that the respondents of these five appeals were monthly tenants in respect of different portions of the Musafirkhana Building. It is further admitted that by the Chittagong Muslim Institute Ordinance, 1959 (East Pakistan Ordinance No. LXV of 1959), the Provincial Government acquired all those properties Pry and accordingly those properties vested in the Provincial Government on and from the 24th September 1959. The respondents were thus monthly tenants under the Provincial Government, co and their tenancies were liable to be determined by 15 days notice 'under section 106 of the Transfer of Property Act. There M. is no dispute about this legal position. It appears that, on the 9th August 1969, the Sub-Divisionad Officer, Sadar (North), Chittagong, as Secretary, of the Managing Committee of the Chittagong Muslim Institute issued notices to the respondents under section 106 of the Transfer of Property Act stating that their respective tenancies would be determined with the expiry of the 31st day of August 1969. As the respondents did not vacate their premises, the Sub-Divisional Officer, Sadar (North), Chittagong again issued notices to the respondents on the 24th September 1969, under section 5(1) of the E. B. Act X of 1953 requiring them to vacate their premises within 7 days with the threat that in the event of their failure to do so, they would be evicted with the help of police. The. question of the respondents' becoming "unauthorised occupants" in respect of the premises in their occupation would arise only if their tenancies had been determined in accordance with law. It is true that more than 15 days' notices to quit were served on the respondents under section 106 of the Transfer of Property Act, but these notices appear to suffer from illegality in that the author of the notices, namely, the Sub-Divisional Officer, Sadar (North), Chittagong and ex officio Secretary of the Managing Committee of the Chittagong Muslim Institute, was not empowered to issue notices of termination of tenancies for and on behalf of the Provincial Government. Article 80 of the 1962-Constitution provides that the executive authority of the Province vesting in the Governor shall be exercised by him, either directly or through officers subordinate to him, in accord ance with the Constitution., the law and the directions of the President. Aritcle 81 of the said Constitution empowers the Governor to specify the manner in which orders and other instruments made and executed in pursuance of any authority or power vested in him shall be expressed and authenticated. The said Article further empowers the Governor to make pro visions regulating the allocation and transaction of the business of the Province. Rules .of business were either made or continued in force in accordance with the said provisions of the 1962 Constitution. Under the Rules of Business, the Sub-Divisional Officer, Sadar (North), Chittagong is not one of the officers authorised to act for and on behalf of the Governor or the Government of the Province or to authenticate orders or legal instruments issued in the name of the Governor or the Government of the Province. When asked to produce the authority of the Sub-Divisional Officer, Sadar (North), Chittagong to issue notices under section 106 of the Transfer of Property Act on behalf of the Provincial Government, the learned Advocate-General failed to produce any such authority. He, however, produced Notification No. SA-166 /63/182, dated the 4th April 1964, issued under section 9 of the E. B. Act X of 1953. This Notification delegated to all sub-Divisional Officers only the power sand duties of the Provincial Government under sections 3, 5, 6 and 7 (2) of the E. B. Act X of 1953 and nothing else. Thus.! the notices under section 106 of the Transfer of Property Act, in the instant cases, were issued by an unauthorised person and, therefore, these did not have the effect of terminating the tenancies of the respondents. That being so, the respondents ere still tenants under' the Provincial Government and are entitled to continue to occupy the premises until their tenancies have been determined according to law. The appeals of the Government are liable to be dismissed on this ground alone. Even otherwise, the respondents do not come within the mischief of the E. B. Act X of 1953 whereunder notices threatening their forcible eviction were issued. Sec tions 3, 4 and 5 of the E. B. Act X of 1953 provide for eviction of persons from the Government lands and buildings. Of these, section 3 relates to land alone and does not apply to. building. This is conceded by the learned Advocate-General appearing on behalf of the Provincial Government. Section 4 relates to. building in occupation of the servants of the Government and is, therefore, inapplicable here. Section 5 provides for eviction of "unauthorised occupants". Section 2(c) defines, "unauthorised occupant" as follows= "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 occu pation of such building or part after the determination of the lease in respect of the same." Even if it is accepted for the sake of argument that the tenancies of the respondents had been determined by notices under section 106 of the Transfer of Property Act, the respon dents, according to the above-quoted definition in section 2(c), cannot be held to be "unauthorised occupants" 9n respect of their premises for the reason that they had been inducted into their premises by the owner thereof for the time being and, as such, the question of their being in occupation from the inception without having obtained the permission of the Provincial Government, did not arise. It is true that under the general law a tenant whose tenancy has been determined becomes a trespasser after the determination of the tenancy and is liable to be ejected by a suit, but such a tenant is not an "unauthorised occupant" within the meaning of the said section 2(c) and isl not liable to be summarily ejected. by force inasmuch as his initial entry into the premises was with the permission of them owner thereof. The same is the case here with regard to their respondents. They entered into the premises with the consent' of the owner, whether the Chittagong Muslim Institute or the Provincial Government, and have been in possession thereof, throughout in spite of the services of notices under section 106 of the Transfer of Property Act. It appears that the law-maker realised that the tenants like the respondents are not "unauthorized occupants" within the meaning of section 2(c) of the E. B.I Alt, Act X of 1953. This is evident from the modified definition of Co, "unauthorised occupant" given in the East Pakistan Government and local authority Lands and Buildings (Recovery of Possession) Ordinance, 1970 (East Pakistan Ordinance No. XXIV of 1970), whereby the E. B. Act X of 1953 was repealed and re-enacted. In the East Pakistan Ordinance No. XXIV of 1970, "unauthorised occupant" has been defined to include "a lessee who continues in possession of the land or building or part thereof after expiry of term or determination of lease". This clearly shows that the law-maker was aware that the "unauthorised occupant", as defined in section 2(c) of E. B. Act X of 1953, was not wide enough to include a lessee whose lease was determined. Accordingly in the subsequent East Pakistan Ordinance No. XXIV of 1970, a lessee, whose lease has been determined, has been expressly included in the definition of "unauthorised occupant." It has been already found that the notices under section 106 of the Transfer of Property Act purporting to determine the tenancies of the respondents were not valid notices, the same having been issued by the Sub-Divisional Officer, Sadar (North), Chittagong who was not authorised to issue such notices for and on behalf of the Provincial Government. Accordingly, the res pondents still continue to be tenants under the Government and, as such, the notices of eviction issued to them under section 5(1) of the E. B. Act X of 1953 were rightly declared by the High Court to be without lawful authority and of no legal effect. Consequently, the action of the Government in locking up the premises involved in Civil Appeals Nos. 30-D to 33-D of 1970 was also rightly held by the High Court to be illegal. Thus there is no merit in these appeals. I would, therefore, dismiss all the appeals with costs. HAMOODUR RAHMAN, C. J.-I agree. WAHEEDUDDIN AHMAD, J.-I agree. Appeals dismissed.