P L D 1970 Dacca 203 (PLP)

ABDUL HAKIM, J.

‑These two Petitions having involved common question of law and facts were heard together and are disposed of by this judgment. Rule in both the Petitions was issued calling upon the res pondents to show cause why the impugned orders dated 25‑2‑66 and 4‑5‑66 passed by respondents Nos. 1 and 2 in Ordinance Cases Nos. 22 and 24 of 1964, as in Annexures `E' and `E(1)' should not be declared to have been passed without lawful authority and of no legal effect. The facts relevant for disposal of the rules may briefly be stated as follows:‑ The respondent No. 4 Brindhaban Malo of Writ Petition No. 95 of 1966 along with 4 others took a loan of Rs. 5,600 on 10‑2‑63 and 9‑4~‑63 from the petitioner and the respondent No. 4 Kamakhya Charan Malo of Writ Petition No. 196 of 1966 along with 3 others took a loan of Rs. 9,000 on 15‑6‑63 and 16‑7‑63 from the same petitioner by executing several promissory notes for running their fishery business on condition of repaying the same on demands by making themselves jointly and separately liable for re‑payment of the said loan. The said Brindhaban Maio, Kamakhya Charan Maio and others did not pay the amount on repeated demands and hence the petitioner as plaintiff instituted the Money Suits Nos. 12 and 13 of 1964 on 28‑4‑64 in the Court of Subordinate Judge, Second Court, Dacca for realisation of the said amount. The defendants in the Money Suits including the above Brindhaban and Kamakhya appeared before the Court by filing powers through a lawyer. The dispute between the parties was, however, compromised out of Court and a solenama signed by the parties was filed on 25‑5‑54 in both the suits. The suits were accordingly decreed in terms of the said solenama with costs on 25‑5‑

64. The judgment‑debtors failed to pay the first instalment of the decretal amount in terms of the compromise decree in due time and hence the Money Execution Cases Nos. 5 and 6 of 1964 were started on the prayer of the decree‑holder. The above Brindhaban Maio and Kamakhya Charan Maio along with others appeared in the execution proceedings and raised obj4ctions through their lawyer. Thereafter the properties of the judgment‑debtors measuring '23 decimals in Writ Petition No. 195 and '33 decimals in Writ Petition No. 196 which were under attachment were put to public auction on 5‑10‑64 in execution thereof. The petitioner being the highest bidder among the intending bidders purchased the suit properties for Rs. 5,734'50 paisa and Rs. 9,995'81 paisa respectively on the same date and the sale certificates were thereafter granted to the petitioner. The executing Court was pleased to issue a Writ of possession on 5‑1‑65 and the petitioner was put into possession of the disputed lands on 7‑1‑

65. In the meantime on 4.11‑64 the said Brindhaban Malo and Kamakhya Charan Maio along with others filed 2 separate petitions before the Sub‑Divisional Magistrate, Dacca Sadar (South) under section 2 of the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964 (Ordinance No. I of 1964) asking for eviction of the petitioner from the aforesaid properties on some false allegations that the petitioner entered into the disputed lands by exercising coercion, intimidation, fraud, threat, undue influence and taking their signatures on some blank papers by misrepresentations during the time of disturbance of January 1964. The Sub‑Divisional Magistrate on receipt of the applications started Ordinance Cases Nos. 22 and 24 of 1964 and referred the matter to respondent No. 1 Mr. Afsaruddin Ahmed, Magistrate, 1st Class, Dacca for action under the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964. The learned Magistrate on the basis of a report of local enquiry by police passed an order on 25‑2‑65 directing the petitioner to restore possession of the disputed lands and return the same to the 1st party, i.e., the above Brindhaban Maio, Kamakhya Charan Maio and others. The proceedings in the above Cases Nos. 22 and 24 of 1964 having, in the mean time, been transferred to respondent No. 2 Mr. A. Rahman, Magis trate, 1st Class, Dacca, the learned Magistrate recorded on 4‑5‑66 an order fixing the case to 21‑5‑66 for eviction. The petitioner has challenged in these Writ Petitions before us the legality of the above orders dated 25‑2‑66 and 4‑5‑

66. The respondents Nos. 1 to 3 have not filed any affidavit‑in -opposition in the case but respondent No. 4 Brindhaban Maio of Writ Petition No. 195 and Kamakha Charan Maio of Writ Petition No. 196 have each filed a counter‑affidavit controverting the allegations made in the petitions. It has been asserted in the affidavit‑in‑opposition that the said respondents never took any loan from the petitioner nor executed any promissory notes. They were not aware of any money suits filed in the Court of the Subordinate Judge, Dacca and no summons of those suits were ever served on them. They never entered appearance in those cases nor filed any solenama. The decrees, if any, passed in those suits were passed beyond their knowledge. They were never parties in the execution proceedings and their properties were never sold in pursuance of the execution proceedings. The petitioner has manipulated the whole thing in collusion with others just to prap the lands of the contesting respondents. The petitioner has fraudulently, illegally and through sheer force has taken possession of the suit lands taking advantage of the civil disturbance of January 1964. The learned Magistrate, has, therefore, rightly ordered for restoration of the suit lands under section 2 of the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964. The impugned orders dated 25‑2‑66 and 4‑5‑66 as in Annexures `E' and `E(1)' run as follows:‑ "25‑2‑

66. This is a petition filed by one Brindaban Maio son of Kulok Chandra Maio for return of his landed properties as mentioned in the petition. The petitioner went to India after the communal disturbance of 1964 leaving his properties in possession of the 2nd party who is reported to have taken some signatures and L. T. Is of the 1st party in plain paper and subsequently the 2nd party is alleged to have made some docu ments through the civil Court. The 1st party has returned to Pakistan claiming the return of his properties. Perused the records and heard the learned lawyers of both sides. This case comes under the purview of section 2 of East Pakistan Disturbed Persons Ordinance 1964. So the petitioner is entitled to be rehabilitated in the land mentioned in the petition. The O. C. Keraniganj P. S. may be directed to give possession of the case land to the petitioner under section 2 of E. P. D. P. Ordinance, 1964. To S. D. O(s) (Sd.) A. Ahmed, Magte." "4‑5‑

66. I am busy with cases. To 21‑5‑66 for eviction. (Sd.) A. Rehman, Magte." Mr. T. Ali, learned Advocate, appearing on behalf of the petitioner has contended before us that section 2(1) of the Ordinance is not applicable to the facts of the present case and as such the impugned orders passed by the learned Magistrates are illegal. Section 2 of the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964 (hereinafter called the said Ordinance) reads as under: "2(l) Any Magistrate or other officer specially 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 possession 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 or in apprehension of, the civil disturbance in January 1964." It is apparent from the above provisions of law that section 2 of the said Ordinance is applicable only against a person A ho may have occupied or taken possession 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 or in apprehension of, the civil disturbance in January 1964. Section 2(1) has, therefore, reference to a case in which a person has had to leave or has left directly on account of the civil disturbance in January 1964 or in apprehension of the said disturbance. The language used in the section clearly shows that the section will come to play where a person has had to leave his house, hut, structure, land due to intimidation, force, or by way of compulsion on account of the said disturbance or where he has left his place directly due to the apprehension of the said disturbance. Thus, in our opinion, the dispossession referred to in the said section 2(1) means and includes only the dispossession taking place as a direct result of civil disturbance which occurred in January 1964, or round about the days the civil disturbance existed. The civil disturbance of 1964 took place in the early part of January of the said year and it continued only for a few days, say for 5/6 days. The possession of the land in the present case was taken by the petitioner through the process of Court on 7‑1‑1965 at the earliest. The contesting respondents did not prefer any appeal against the said money decrees nor took any steps against the auction sale held in the execution proceedings. They are, therefore, bound by the result of the Money Suits and also of the execution proceedings. So long the decrees and the orders of the Civil Court are in force, we think, the parties are stopped to reopen the long concluded chapter in these Writ Petitions. The only question for consideration here is, therefore, the propriety of the orders complained against. The petitioner entered into the land for the first time on 7‑1‑1965 through process of Court long after the discontinuance of the civil disturbance of January 1964. He cannot, therefore, be said to have occupied the disputed lands during the civil disturbance of 1964 and round about the days the civil disturbance continued nor can it be argued that he has taken any advantage of the said disturbance. Having regard to the interpretation we have put on section 2(1) of the said Ordinance, we do not think that in the instant case the above respondents were dispossessed from their lands or had to leave the disputed properties directly as a result of the civil disturbance in January 1964, or in appre hension of the said disturbance. On the contrary they had to leave the disputed lands due to the result of the Money Suits and the Execution Proceedings long after the civil disturbance on 7‑1‑65 through process of Court. It is, therefore, evident that section 2(1) of the Ordinance has no application in the present case and the orders passed by the learned Magistrate are of no legal effect. The learned Advocate has next submitted that the impugned order dated 25‑2‑66 is vague, inaccurate and improper and as such not maintainable in law. Section 2(1) of the said Ordinance provides that any Magistrate or any officer specially empowered in this behalf may order for 'eviction after such local enquiry as he may consider necessary. The Ordinance no where provides how the local enquiry will be held or what will be the extent of local enquiry. The order of eviction passed under this section is an appealable one. Section 3 of the, Ordinance provides that an person aggrieved by the order of eviction may appeal to the District Judge having jurisdiction. The appellate authority cannot dispose of the appeal properly without legal materials and he must have some materials before him to consider the reasonableness of the order. It is, therefore, in consonance that the enquiry be full‑dressed and the order of the Magistrate must be based on sufficient materials and the materials collected during the enquiry, the report of the enquiry as well as the order of Magistrate's satisfaction must form part of the records of the case. This provision of appeal lays down a duty upon the Magistrate to proceed with the matter carefully, scrupulously, thoroughly and preferably judicially, It is true that the Magistrates have been given wide power under this section but their summary power seems to have been restricted to a great extent by introduction of sections 7‑A to 7‑D of the Ordinance. These latter sections provide that the officer acting under this Ordinance shall be deemed to be a Court, shall have power to receive evidence, C administer oaths, enforce attendance of witnesses, compel the production of documents, shall act judicially and the proceedings before him shall be judicial proceedings. In this view of the matter, it seems, the Magistrate cannot act indiscriminately or arbitrarily without conforming to the fundamental principles applicable to a judicial proceeding. He is thus to act judicially as l a Court of law and not as an executive officer and the proceeding before him is a judicial one. He is, therefore, required to pass orders or make findings on the basis of legal materials brought on record. In the instant case it appears that the order of the learned Magistrate is not based on any materials. The records show that on 1‑4‑65 the petitioner produced before the Magistrate all his papers including the judgments and decrees of the Money. Suits and the orders of the execution proceedings. This being the position, it is not understood on what basis the learned Magistrate passed the order for restoration of the disputed property. The order does not disclose the materials on which he was satisfied. The order does not also show the description of the lands, locality or identity of the property which were directed to be restored. We cannot, therefore, approve of the order passed by the Magistrate on 25‑2m66 in this behalf. Mr. B. C. Panday, learned Advocate, appearing for the respondents his raised an objection that the present petitions cannot be entertained since the petitioner has not exhausted his remedy under section 3 of the said Ordinance. Section 3 of the Ordinance, in our opinion, comes to play when the restoration of possession has already taken place and the eviction has been made complete. In the instant case a date has been fixed for eviction but the eviction has not been final and the property has not actually been restored to the respondents. The petitioner entered into possession of the lands through process of Court and he is althrough in possession. This being the position the right of preferring appeal has not accrued to him. In the circumstances we hold that there has not been any violation o section 3 in the instant case and for that reason we cannot hold that the present petitions are not maintainable. Another grievance of the learned Advocate for the respon dents is that the sale or transfer of the disputed lands is hit by the provision of section 6(3) of the said Ordinance. The East Pakistan Ordinance No. 1 of 1964 was promulgated on 12‑2‑

64. The original section 6 of the said Ordinance No. I of 1964 is very clear and does not contain any provision like the present section 6(3) referred to above. The Ordinance No. I of 1964 was amended by Ordinance No. VI of 1964 which came into existence on 2‑4‑

64. The amendment introduced a new sub section to section

6. This amended subsection 6(2) prohibits the Civil Courts to entertain any suit for the specific performance o any contract relating to the transfer of immovable property E belonging to a member of minority community or for declaration of title or enforcement of mortgage‑security in relation to such property, except with the prior permission of the Board of Revenue. This subsection 6(2) does not, therefore, put any bar against the filing of money suits or sale of properties in execution of the money decrees. The original Ordinance was again amended by the Ordinance No. X of 1964 on 10‑10‑1964. In this new amendment, section 6(3) was first inserted laying down a condition that no immovable property belonging to a member o minority community shall be sold in execution of any decree of a Civil Court. The subsection (3) to section 6 for the first time came into operation on 10‑10‑

64. In the present case the money suits were started long ago on 28‑4‑64 and the F property was sold in execution of money decrees on 5‑10‑64 before this new amendment came into force. Hence this sec tion 6(3) of the Ordinance, in our opinion, cannot stand on the way of the petitioner. In the circumstances we find no substance in this contention too raised by the learned Advocate for the respondents. For all these reasons we make the two rules absolute and set aside the impugned orders but without any order as to costs. SIDDIKY,. C. J.

‑I agree. A. E./S. A. II. Rule made absolute.