P L D 1968 Supreme Court 72 (PLP)

S. A. RAHMAN, J.‑This is an appeal by special leave on behalf of Sufia Khatun, from an order passed by the High Court at Dacca, on a petition presented by her, under Article 98 of the Constitution. The facts necessary for understanding the points raised on this appeal are as follows The appellant purchased about '41 acres of land out of C.S. Plot No. 67, appertaining to C.S. Khatian and No. 174 in Mouza Dhanmondi, District Dacca, by a registered sale‑deed, dated the 27th of February 1953, from one, Ali Azam. The latter in turn had acquired the property by a registered‑deed dated the 12th January 1953 from two ladies, named Zobeda Bibi and Aimon Bibi. The title of the two ladies rested on another registered sale‑deed dated the 12th July 1944, executed in their favour by one, Parshuram Panday. According to the allegations made in the petition to the High Court, the appellant had put up, at first tin sheds on the plot in question, and later had erected a pucca building for her residence thereon. She remained in undisputed possession of this land till she received on the 1st of May 1965, a notice purporting to have been issued under section 5(1) of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952, by the Executive Engineer, C & B Development (Building) Division‑II, Dacca. On making enquiry through her husband, Ahmadul Haque, the appellant learnt that some undefined and unspecified portion of C.S. Plot No. 67, was said to have been requisitioned by the Government of East Pakistan, under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, for public residential area, on the 25th February 1949. It was the appellant's case that no notice of this requisition had been served either on her or any of her predecessors‑in‑interest, and that in point of fact, no such notice had ever been issued. It was further stated that subsequently, the Government purported to acquire the requisitioned property in question, but again no notice had been issued or served upon the owner or occupier of this plot. The purported acquisition was challenged as invalid and consequently the notice calling upon her to surrender possession of the plot, issued under section 5(l) of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952, as unlawful and of no legal effect. The allegations made by the appellant were traversed on behalf of the East Pakistan Government by means of three affidavits, two sworn by the Executive Engineer, C & B Develop ment (Building) Division‑II, and one by the Additional Land Acquisition Officer, Dacca. They claimed that the land in question had been duly requisitioned and acquired under the East Bengal (Emergency) Requisition of Property Act, 1948, and that the portion of the said C.S. Plot No. 67, which had thus vested in the Government, was delineated in an acquisition plan, by the Land Acquisition Department of then District Magistrate's Office, in L. A. Case No. 6 of 1948‑49. It was suggested that the appellant had purchased the property after it had been acquired by the Government, and had at first put up tin sheds, and later a pucca structure, in spite of notices having been sent to her to desist from her activity. In support of the position adopted by them, a blue print of ‑a plan, apparently prepared in 1959, was produced in Court. It was objected on behalf of the appellant that this was a subsequent plan which could not affect the land in dispute. It was then represented on behalf of the respondents that this was merely a certified copy prepared in 1959 of an original plan which had been prepared under the orders of the Land Acquisition Officer, by a Kanungo, in 1952. An older blueprint of that plan was placed before the learned Judges in the High Court and they were invited to hold in consequence, that no legal exception could be taken to the requisition or acquisition of the disputed property. It was also maintained on behalf of the respondents that Ali Azam, the alleged predecessor in‑interest of the appellant, had been called upon, by a notice, to establish his title to the disputed land, but he bad been unable to do so. The appellant, by a further affidavit, declared that it was wrong that Ali Azam had ever been required to prove his title to the disputed land. The notice mentioned as having been sent to him pertained to another part of C.S. Plot No. 67, which had nothing to do with the portion sold to the appellant. This position was apparently not controverted on behalf of the respondents. It was further denied that any notices to stop construction had been sent to her. The learned Judges of the High Court found that the blueprint submitted to them, bearing a date in November 1959, was in fact prepared from the blueprint of 1952, which was also presented for inspection to the High Court. On the basis of this finding, it was held that the requisition and acquisition were not open to 1c gal challenge, as the acquisition had, at any rate, been made of the land in dispute on the basis of an acquisition plan, which clearly defined the portion of C. S. Plot No. 67, sought to be acquired. The acquisition had been notified in the Dacca Gazette, on the 8th January 1953, prior to the date when the appellant, or leer vendor, had acquired any interest in the land. It was, therefore, found that the appellant was an unauthorised occupant of the disputed land, and had no right to call in question the impugned notice dated the 1st of May 1965, requiring her to surrender possession. The petition was in consequence dismissed. Special leave to appeal was granted in this case, as it was felt that it required farther examination whether at the time of the requisition in 199, the part of the C.S. Plot No. 67, which the Provincial Government purported to acquire in 1953, was demarcated in any way. It was observed that the acquisition, by unilateral act of the Government, would be valid only in respect of areas which were in fact requisitioned earlier. As the portion in the appellant's possession was only 41/100th of an acre, out of a plot having an area of over 38 acres, some degree of exactness was called for, in drawing the line of demarcation between the area requisitioned and that not requisitioned. Mr. A. K. Brohi, on behalf of the appellant, has put forward two contentions before us. In the first place the learned counsel contended that there was in fact no demarcation of the relevant part of C.S. Plot No. 67, either at the time of requisi tion or acquisition. Secondly he claimed that no notice had at a)t been served on the appellant, or her predecessor‑in‑interest, concerning the alleged requisition or acquisition, and that the appellant had continued to be in undisturbed possession till suddenly she was required to vacate the land in 1965. No copy of the original requisition order has been placed on the file. Mr. Asrarul Hossain, the learned Advocate‑General for the Province of East Pakistan who appeared on behalf of the respondents, was also unable to place before us a copy of that order. The acquisition notification appears at page 18 of the record, and was apparently published in the Dacca Gazette dated the 8th January 1953. The opening part of the notification reads as follows :‑ "FINANCE AND REVENUE DEPARTMENT Requisition Branch Notices Dacca No. 11413 Reqn.‑9th December 1952‑Whereas by order dated the 25th February 1949/16th September 1950, the properties described in the Schedule below were requisitioned under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (E. B. Act XIII of 1948) ; And whereas the said properties continue to be subject to requisition ; And whereas after considering the report made under subsection (5) of section 5 of the said Act, Government have decided to acquire the said properties ; Now, therefore, in exercise of the power conferred by subsection (7) of section 5 of the said Act, it is hereby notified that the said requisitioned properties, as described in the Schedule thereunder, are acquired by Government." Then follows the Schedule mentioning several numbers of Mouza Dhanmandi. Included under that heading is "a part of C.S. Plot No. 67", but there is no specification by boundaries or otherwise, of this part. The question, therefore, at once arises whether the boundaries of the plot sought to be acquired had already been fixed at the time of the requisition which apparently took place between the 25th of February 1949 and the 16th of September 1950. It was held by this Court in Rail! Brothers v. Province of East Pakistan and others (P L D 1966 S C 409) that the authority requisitioning or acquiring property, under the compulsive power of the Act, must indicate definitely what part of the land is required by them. If they want any specific portion out of a bigger plot, it is necessary that an adequate description of the portion sought to be acquired be given, so as to notify the owner, of the exact extent of the property sought to be taken away. Now it transpires that, on behalf of the respondents, reliance was placed on a plan said to have been prepared for the first time in 1952, which was long after the date of the requisition in the present case. The learned Advocate‑General was not in a position to submit whether or not there existed an earlier plan, delineating the portion of C.S. Plot No. 67, which had been requisitioned between the 25th February 1949 and the 16th September 1950. As has been observed above, the acquisition notice contains no indication as to the exact area sought to be acquired out of C.S. Plot No. 67. Only an undefined portion is mentioned therein. On the basis of the material placed on record therefore, it is not at all clear whether the land in dispute formed the subject of a proper requisition order, and was therefore, validly acquired. There seems to be a bona fide dispute concerning title to the land in question, in the circumstances of C the present case, between the parties. Some confusion is further introduced by the admitted fact that some portion of C. S. Plot No. 67 was admittedly de‑requisitioned by Government, in 1950. On these facts it is strenuously contended by Mr. Brohi that the summary procedure of ejectment was not available to the respondents, under section 5 of the East Bengal Government Lands and Buildings Recovery of Possession) Act, 1952. In this connection learned (counsel draw our attention to a judgment of the High Court at Dacca reported as S. Hatem Ali and others v. Province of East Pakistan and others. In that case it was ruled by a Division Bench of the High Court that if there is a bona fide dispute regarding title to the land, then the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 is not at all applicable, as that Act can only be invoked where there is no bona fide dispute regarding the ownership of land or building in question. This view was affirmed by this Court on appeal in that case and the judgment of this Court was delivered on the 28th April 1960, in Civil Appeal No. 32‑D of 1960. In view of the authoritative pronouncement on the subject by this Court, Mr. Asrarul Hossain, the learned Advocate General, found it difficult to urge that the summary ejectment process of the East Bengal Government Land and Buildings (Recovery of Possession) Act, 1952 was attracted to this case. 1 The summary procedure provided by that Act could only be pressed into service where the title of Government is clear. This] seems to be a fit case in which the question of title should be decided by a regular suit, failing agreement inter parties. We, therefore, allow the appeal, set aside the order passed by the High Court and declare that the impugned notice issued by the respondents under section 5 of the East Bengal Government l Lands and Buildings (Recovery of Possession) Act, 1952 was J invalid, and of no legal effect. There will be no order as to, costs, in view of the circumstances of the case. A. H Appeal allowed.