P L D 1961 Dacca 730 (PLP)

MURSHED, J.‑These eight Writ Petitions were, at the instance of the respective parties, heard together by us inasmuch as they relate to one order passed by the Sub‑Divisional Officer (North), Chittagong, and involve similar and identical points of law. This judgment will dispose of all the said applications We shall, however, set out the particular facts of each of the aforesaid petitions in so far as they are material far the disposal of the same. The aforesaid applications. are all directed against an order passed by Mr. A. Rahman, Sub‑Divisional Officer (North), Chitta gong, on the 5th of January 1960, the legality of which has been challenged by the petitioners. All the petitioner hold and possess lands which are claimed by the Eastern Bengal Railway, Chittagong, as its property. For the sake of convenience, the petitioners can be divided into two groups first, those who allege that they or their predecessors‑in -interest have obtained leases of their respective lands from the Chittagong Municipality which, according to them, is the owner of the lands occupied by them, and, secondly, those who claims that they or their predecessors‑in‑interest have obtained valid leases from the said Eastern Bengal Railway. All the aforesaid petitioners are in possession of the respective lands which they hold and rare still in such possession. As we have indicated above, some of them challenge the title of the Eastern Bengal Railway in respect of particular lands or holdings in question, whereas others claim that although they are lessees of the Eastern Bengal Railway their leases have not been legally or validly terminated. In Writ Petition No. 64 of 1960 the petitioner. Md. Hossain has averred that he is 'a lessee in respect of the, land occupied by him by virtue of a lease granted to him by the Chittagong Munici pality and that in pursuance of an agreement between him and the said Municipality he erected a house on the said land as early as 1934. He made regular payments of rent to the Municipality in respect of the said holding and his name has also been duly recorded in the municipal register ac a person in occupation of the said premises since 1934. He has stated that the said land on the roadside was subsequently taken over by the Government of East Pakistan, Department of Communication and Buildings. He has further averred that his holding is outside the fencing and boundary of the Chittagong Railway Station and has further con tended that there is a stall on a vacant land in between his shop and the said boundary of the railway station. He does not admit the title of the said railway to the land. On‑behalf of the Eastern Bengal Railway an affidavit‑in -opposition has been sworn by a Sub‑Divisional Officer, Engineering Department, under the said railway. In the said affidavit‑in- opposition it has been challenged that the land occupied by the petitioner ever belonged to the Municipality. It is claimed that the said land has always belonged to the Eastern Bengal Railway, and reliance has been placed on the record of rights in Revisional Survey Khatian of 1928. Furthermore, reliance has been placed on a letter addressed to the Superintendent of Police, Chittagong, by the Administrator of the Chittagong Munici pality. The Eastern Bengal Railway served a peremptory notice upon the petitioner giving him seven days' final notice to vacate and quit the land and to remove all structures and materials therefrom. The notice is dated the 2nd of May 1959. Similar notices have been served on all the petitioners before us. Inasmuch as none of the petitioners, including Md. Hossain, complied with the aforesaid notice, it appears that the Sub -Divisional Officer, Engineering Department, under the Eastern Bengal Railway, addressed a petition to the District Magistrate, Chittagong, purporting to have been made under sections 5 and 6 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 (Act X of 1953), as well as under sec tion 447 of the Pakistan Penal Code. It appears that fresh applications were also to the Sub‑Divisional Officer (North), Chittagong. The District Magistrate referred the application to the Sub‑Divisional Officer (North), Chittagong, who after hearing the parties, passed the following order which are quoted below in extenso : "Order‑sheet for Magistrate's Records. (C. O. No. 1 of 11th July 1888, reproduced by C. No. 6 of 18th November 1901). District Chittagong. In the Court of S. D. O. (N) Chittagong, P. Case No. 235 of 1959. State Executive Engineer E. B. Railway Pahartali v. Abdus Sukur & 33 others. 5‑1‑

60. Heard parties. Ask O. P. to vacate by 2 p.m. of Saturday, Ask S. P. for adequate force. Inform O. C. G. R. P. to 9‑1‑60. (Sd.) Illegible:" We have set out the above order in the form and manner in which it was passed by the Sub‑Divisional Officer (North), Chittagong, inasmuch as this is the order the legality of which is challenged in all the applications before us. Before proceeding to discuss all the points raised on behalf of the petitioners, we would like to set out some relevant facts in respect of some other applications. In Writ Petition No. 66 of 1960, the petitioner Nasiruddin has averred as follows :‑ "(2) That the petitioner has been carrying on business as shop‑keeper on the roadside of the Chittagong Municipality at Abdur Rab Nishtar Road (Station Road), Chittagong, since many years in his shop‑house under valid permit of the authority of the Chittagong Municipality. (3) That the petitioner constructed his shop‑house, at his own cost under valid permit of the authority of the Chittagong Municipality and as such he is in bona fide occupation of his shop site. (4) That subsequently the roadsides were taken over by the C & B Department from the Municipality and the Railway, and that the shop site of your petitioner is outside the Railway fencing and boundary and that the Railways have got no title in the disputed land. (6) That at the instance of the Executive Engineer, E.B. Rail way, Chittagong, who alleged the petitioner and others as trespassers and encroachers upon the Railway land, the learned Sub‑Divisional Officer (North), Chittagong issued notice dated 22‑7‑59 to the petitioner to remove the structure and that the notice was, however, received by him on 1‑10‑

59. The copy of the said notice is annexed herewith and marked as Annexure "A". (7) That, thereafter, the Executive Engineer, E. B. Railway filed a fresh petition under sections 5 and 6 of the East Bengal Government Land and Buildings (Recovery of Possession) Act (E. B. Act X of 1953) before the learned Sub‑Divisional Officer for taking necessary action under the law. (9) That the said learned Sub‑Divisional Officer 'without considering the facts and circumstances of the case passed an order on 5‑1‑60 in the petition case No. 235 of 1955 asking the petitioner and others to vacate their respective premises by 2 p.m. on Saturday, 9‑1‑

60. A copy of the said order dated 5‑1‑60 is annexed herewith and marked as Annexure "B". The statements made in affidavit in opposition to this petition are similar to those which have been made in connection with the first petition. " In writ petition No. 69 of 1960 the petitioner Mr. Md. Siddique has stated inter alia, as follows:‑ "(2) That your petitioner has been carrying on trade in Pan, Bidi and stationery goods in a shop house known as Municipal Stall No. 72/75 at Abdur Rab Nishtar Road alias Station Road, Chittagong on the roadside land of Chittagong Municipality as tenant and as successor in occupation of the site of Md. Ishaque the original lessee under the said Municipality. (3) That your petitioner's landlord and predecessor in occupa tion of the said Md. Ishaque erected at his own costs the said shop house on roadside vacant land belonging to the Chitta gong Municipality under valid permit of the authority of the said Municipality in1940 and also according to the agreement entered into between him and the authority of the said Municipality and that the said Md. Ishaque had paid rent to the Munici pality. (4) That the said Md: Ishaque had let out the afore said shop house to your petitioner and your petitioner is in occupation of the same on payment of rent and has been carrying on the said trade therein since 8 years. (5) That accordingly your petitioner is a bona fide occupant of the land under valid lease. (6) That the said roadside land of the said road where the shop house of your petitioner was erected were subsequently taken over by the C & B. Department from the Municipality and the F. B. Railway now disclosed that the said roadside lands had been taken over by the Railways and that they belonged to the Railways. (7) That your petitioner's shop site is outside the fencing and boundary of Chittagong Railway Station and that there is vacant land in between his shop house and the fencing and boundary of Railway Station, and that your petitioner does not admit that the Railways have got any title in the disputed land." We may state that the affidavit in opposition' in this case is also on similar lines. Writ petition No. 73 of 1960 has been made by thirteen persons, only one of whom has verified the petition to this Court. We shall consider the petition only as far as Abdus Shakoor, who has verified the same, is concerned, and we reject the application in limine in respect of the other twelve petitioners. Petitioner Abdus Shakoor in the petition has stated, inter alia, as follows:‑ "(2) That the petitioner No. 1 has been carrying on business in Pan, Bidi and Cigarettes in Stall No. 53 since 8 years at Abdur Rab Nishtar Road (Station Road), Chittagong, on the roadside land of the Chittagong Municip4lity as a tenant under the original lessee under the Chittagong Municipality ; and that his predecessor Akbar Ali, the Original Lessee constructed the said Stall No. 53 under valid permit of the authority of Chittagong Municipality at his own costs and got lease of the Stall from the Municipality on payment of rent 16 yeas ago and let out the same to the petitioner No. 1. (14) That, subsequently, the roadside lands were taken over by the C and B Department, from the Municipality and that the shop sites of the petitioner are outside the Railway fencing and boundary and that the Railways have got no title in the dis puted land. (15) That now the Railway Company discloses that the disputed lands have been taken over by the Railway from C and B Department. (16) That at the instance of the Executive Engineer, E. B. Railway, Chittagong, who alleged the petitioners and others as trespassers and encroachers upon the Railway lands the learned Sub‑Divisional Officer (North), Chittagong, issued notice dated 22‑7‑59 to the petitioners to remove their structures. (A copy of the said, notice is annexed herewith and marked as annexure "A".) (17) That, thereafter, the Executive Engineer, E. B. Railway filed a fresh petition under sections 5 and 6 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act (E. B. Act X of 1953) before the learned Sub‑Divisional Officer for taking necessary action under the law. (18) That the petitioners appeared before the said Sub -Divisional Officer and filed objections stating inter alia that as the dispute lands do not belong to the Railway Company, they are not liable to be ejected at the instance of the Executive Engineer, E. B. Railway. (19) That the said learned Sub‑Divisional Officer without considering the facts and circumstances of the case passed an order on 5‑1‑60 in the petition case No. 235 of 1959 asking the petitioners and other to vacate their respective premises by 2 P. M. on Saturday, 9-1‑1960 : A copy of the said order dated 5‑1‑1960 is annexed herewith and marked as Annexure "B"." The affidavit‑in‑opposition in this case again follows the same pattern. We would now dispose the aforesaid four petitions which raise identical questions before as. It will be seen that in all the aforesaid petitions the petitioners claim that they are in possession of the lands by virtue of leases taken from the Chittagong Municipality to whom the lands belong. The Eastern Bengal Railway, on the other hand, claim the lands in dispute for themselves. As we have seen, they rely on an entry in a revisional survey khatian and on a letter addressed by the Administrator of the Chittagong Munici pality to the Superintendent of Police, Chittagong. So far as the revisional survey khatian is concerned, it is difficult for any tribunal to hold that the lands belonged to the, railway except upon x relaying of the map in respect of the khatian. Furthermore. It will be seen that the letter addressed by the Administrator of the Chittagong Municipality to the Superintendent of Police, Chittagong, is to the following effect :‑ "Office of the Administrator. Chittagong Municipality. Memo No. 4235‑S. From.‑S. Ahmad, Esqr. Ep. Cs. Administrator, Chittagong Municipality. To. The Supdt. of Police, Chittagong. Dated, Chittagong the 3rd October, 1950. Sub:‑Removal of temporary structures from the side of the Station Road opposite to Fresco's. Ref : His Memo No. 1105/F dated 23‑9‑

59. The temporary stalls erected by the side of Station Road, specially in front of Fresco's are mostly on Railway land and not on Municipal land. So Railway Authority may kindly by directed to get the stalls removed as early as possible. Sd.. . ........... Administrator. Forwarded to the General Manager, E.B. Railway, Chittagong for information. Sd..................... Supdt. of Police, Chittagong." It will be seen from the letter quoted above that the Administrator does not say that all the lands by the side of the Station Road belong to the railway ; all that has been stated in the letter is that temporary stalls erected by the side of the Station Road, specially in front of the Fresco's, are mostly on railway land and not on municipal land. It is apparent that in that letter it has been clearly indicated negatively that there are possibly some lands by the side of the Station Road which may not belong to the rail way. Besides, the description of temporary stalls in front of the Fresco's is another limitation stated in the letter itself. It is, therefore, impossible to conclude from the aforesaid letter that the Chittagong Municipality has admitted that all the lands claimed by the petitioners belong to the Eastern Bengal Railway. There is no such admission in the aforesaid letter. The position therefore, resolves itself thus : The petitioners before us have come with a clear case that they are in possession of the lands occupied by them and the structures and materials thereon. The factum of such possession cannot‑and has not been denied by the Eastern Bengal Railway. Therefore, at least, in respect of the immediate possession of the lands the petitioners have come to this Court with a clear and unambiguous title in the sense that their possession is admitted. The Eastern Bengal Railway claims title to the disputed lands and it is patent that its title to the same can only be, decided upon an investigation of the respective claims of the parties. Be that as it may, the questions before us, as mooted by the respective parties, is, whether the aforesaid order passed by the Sub‑Divisional Officer (North) Chittagong, is a valid and a legal order, which can be supported on the basis of some law. Even if the Eastern Bengal Railway can establish its title to the lands (which, as we have said, has to be investigated), the Sub -Divisional Officer (North), Chittagong, has no jurisdiction to pass the order sought to be impeached. It is patent that the Sub‑Divisional Officer (North), Chittagong, purported to act as a Court, and this is apparent not merely from the manner and form in which the order has been couched but also from the order itself. On a proper analysis the order, in fact, amounts to a decree passed in a suit for ejectment. The Sub‑Divisional Officer has only appended to his order the following rider : "Ask S.P. for adequate force. Inform O.C.G.R.P." It was contended on behalf of the respondents that the aforesaid order was a mere executive order and that the same was not justiciable. The short answer to this argument is that in the first place the order as passed by the Sub‑Divisional Officer cannot be described as a mere executive action, and then again, even if it is an executive action, it must be supported by some law of the country which vests in Sub‑Divisional Officer jurisdiction to pass the order made' by him. The said order is definitely an invasion upon the proprietary the rights of the petitioners, namely, a threa tened disturbance of the possession of the lands by the petitioners. The argument advanced on behalf of the respondents pre‑supposes that a vague, indefinite and wide power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country ; otherwise, such invasion would be illegal and our Court would not only subject the same to their scrutiny but would also enforce the rights of citizens whenever there is an encroachment upon such rights without legal jurisdiction. The order is essen tially an order of eviction backed by police force. However, it is significant to note that the said order was passed in respect of a case which has received a number mark as such, in the order itself. In the order sheet, the order purports to have been made in the Court of the S.D.O. (North) Chittagong. There is also a description of the parties before such a Court which shows the existence of a lis between two rival parties. The said Court heard the respective parties and finally adjudicated upon their rights. As already stated above, the order passed is similar to a decree which a Civil Court would have passed in a suit for ejectment at the instance of a party. Thus it will be clear that the order was not only made with all the trappings of a Court, but the order passed was precisely in the nature of a judicial order upon adjudication of a dispute between the parties before the Sub‑Divisional Officer (North), Chittagong. It will be noticed that the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 provides, inter alia, as follows : ""Section 2 (a) : "building" means a building owned by the Provincial Government, and includes the land appurtenant thereto." Sections 5 and 6 ibid read as follows :‑ Section S.‑(1) If the Provincial Government is satisfied, after making such enquiry as it thinks fit that a person is an unautho rised occupant, it may, by order in writing, direct such person to vacate the land, building or part of a building in his occupa tion within the period specified in the order. (2) If the person against whom an order under subsection (i) has been made, refuses or fails to vacate the land, building or part of a building in his occupation within the time fixed then, notwithstanding anything contained in any other law for the time being in force, .it shall be lawful for the Provincial Government to enter upon such land, building or part of a building and recover khas possession of the same by evicting such person and by demolishing and removing structures, if any, erected or built by that person. Section 6.‑For the purpose of recovering khas possession of any land, building or part of a building under the provisions of section 3 or section 4 or section 5, the Provincial Government may use or cause to be used such force as may be neces sary." From the affidavits filed on behalf of respondents Nos. 3 and 4 it appears that the Sub‑Divisional Officer purported to act under the aforesaid sections 5 and 6, and section 122 of the Railways Act. It is quite clear that the Sub‑Divisional Magistrate has been misled by the provisions of section 6 as quoted above. The said Act of 1952 however, relates only to land belonging to the Provincial Government and it has no manner of application to land belonging to the E.B. Railways. It was candidly admitted by the lawyers for the respondents that the Sub‑Divisional Magistrate could not act under the aforesaid section with regard to land under the, occupation of the petitioners. We would discuss hereafter that the Sub‑Divisional Officer could not also support his action under section 122 of the Railways Act. It was also argued before us that the Eastern Bengal Railway would be perfectly justified in removing the petitioners from the land belonging to the railway. Section 122 of the Railways Act (Act IX of 1890), reads as follows : "(1) If a person unlawfully enters upon a railway, he shall be punished with fine which may extend to twenty rupees. (2) If a person so entering refuses to leave the railway on being requested to do so by any railway servant, or by any other person on behalf of the railway administration, he shall be punished with fine which may extend to fifty rupees, and may be removed from the railway by such servant or other person." It will be seen from the section as quoted above that the condi tion precedent for the application of the said section is that person against whom an action is proposed to be taken must have initially unlawfully entered upon the premises belonging to the railway ; otherwise, the section has no manner of application. With regard to the aforesaid petitioners, it is doubtful whether the entry upon the premises now claimed as railway property can be described as unlawful, inasmuch as the title of the railway to the lands in question does not appear to be clearly established. In any event, whether the railway can establish such a title or not, the Sub‑Divisional Officer (North), Chittagong, cannot pass the order which he has, in fact, made directing the petitioners to vacate the premises occupied by them and also making various other order. It was frankly conceded before us that this order passed by the Sub‑Divisional Officer (North), Chittagong, cannot be supported with reference to any law of the country. On behalf of the respondents it was contended that the aforesaid order is nothing more than a direction to the police to assist the railway in evicting the petitioners who are mere tres passers on their premises. We cannot accept this contention. The order is unmistakably and unequivocally an order for the ejectment of the petitioners who have been peremptorily asked to vacate the premises by the said Sub‑Divisional Officer, and we hold that such an order could not have been passed by the Sub‑Divisional Officer and is illegal and void. The, only rider which was added to the order was that the police was to assist in the execution of the order. It cannot be said that the Sub‑Divisional Officer (North), Chit tagong, was exercising powers under the Criminal Procedure Code or under the Penal Code or under any other law in force in our country. It is not claimed that the order was passed as a precau tion against an apprehended breach of peace. There is no such pretence behind the order. With regard to an apprehension of breach of peace the Sub‑Divisional Officer has sufficient‑powers under sections 144 and 145 of the Code of Criminal Procedure. But those sections have no application in the context of the facts of the present case. The illegality of the order, therefore, stares us in the face. It was argued that this Court should not give any relief to the petitioners inasmuch as they have been guilty of laches and delay. We do not think that we can uphold this contention because it appears from the affidavits before us that the petitioners challenged the order passed by the Sub‑Divisional Officer before the Sessions Judge, Chittagong, as expeditiously as possible. The learned Session Judge made a reference to this Court, on the appli cations submitted by the petitioners, under the provisions of section 438 of the Code of Criminal Procedure. Obviously, he made the reference under the impression that the said order was a wrong order passed under the Criminal Procedure Code. This Court rejected the reference inasmuch as it held that a reference under section 438 of the Code could only be made in respect of some order passed under the Code. As the order passed by the Sub‑Divisional Officer could not be described as an order under the Code, the reference was rejected. Thereafter the petitioners approached this Court for the issue of a Writ of mandamus or an appropriate Writ as prayed for by them. In these circumstances, we do not think that the petitioners have been guilty of any undue laches or delay in making their applications to this Court. Another argument that was advanced before us is that the petitioners are not entitled to any relief inasmuch as their applica tions involve disputed questions of fact with regard to title of the petitioners in respect of their respective disputed lands: It seems that this argument is based on a misconception of the point involved in it. When the title of the petitioners of the relief asked for by them is dependent upon the adjudication of such disputed facts which cannot be decided in a summary proce dure which is followed in writ applications, this Court will refrain from giving any relief on such applications. In this case there is hardly any dispute as to the rights of the petitioners to make the applications before us. As stated above, their possession of the lands in question is undisputed, and a person, who can show that he is in possession of a land, cannot be legally disturbed from such possession except in a manner authorised by law. As the petitioners are in possession of the lands, they have a legal title to continue in such possession unless evicted by a lawful process of law. In those applications the main question before us is, can the petitioners, who are in possession of their lands, be evicted by an order passed by the. Sub‑Divisional Office (North), Chittagong ? The said Sub‑Divisional Officer was no competent to adjudicate upon the rights of the parties with regard to the possession of the lands in question. It can by no means be said that the Sub‑Divisional Officer (North), Chittagong was acting as a mere agent of the Eastern Bengal Railway. It is true that the right to the possession of the disputed lands claimed by the rival parties can be decided after an investigation of the respective title of each party ; but we are not concerned with such a question. Lastly, it was contended that this Court will not exercise its discretionary powers in favour of obvious trespassers and wrong doers, namely, the petitioners before us. From what we have already stated, it is clear that we cannot hold that the petitioners are mere trespassers upon the lands in question. Before us it has not been established that they are mere trespassers in forcible possession of the lands in question and we cannot treat them as such. The grievance made before us is that the Sub‑Divisional Officer (North), Chittagong ; has invaded upon the possession of the disputed lands when he made the impugned order. The legality of the order passed by the Sub‑Divisional Officer does not seem to be dependent upon the question whether the Eastern Bengal Railway has a right to the possession of the said lands. If the Eastern Bengal Railway can establish its title to the said lands and also its right to the immediate possession thereof, it can do so by taking appropriate steps in that direction. But the way in f which the petitioners have been sought to be thrown out of the lands possessed by them seems to be a naked encroachment upon the rights of persons who are undoubtedly and admittedly in possession of the lands from which they are sought to be evicted. The Eastern Bengal Railway, whatever their rights, have not chosen the proper form to give them the relief they may be entitled to. In these circumstances, we would direct that the impugned order passed by Mr. A. Rahman, Sub‑Divisional Officer (North), Chittagong, in P. Case No. 235 of 1959, dated the 5th of January, 1960, be cancelled. We shall now pass on to a consideration of the remaining petitions‑before us. In Writ Petition No. 65 of 1960 the, petitioner Abdul Huq has stated that he has been in lawful possession of the disputed land and has constructed a house upon the same on the basis of a plan which was duly approved by the Engineer, E. B. Railway, Pahartali, on the 27th of April, 1956. He has further stated that he has been paying rent to the respondent Eastern Bengal Railway at the rate of Rs. 200 per annum and that such rent was paid till April, 1959. Thereafter the Eastern Bengal Railway refused to accept the rent tendered by the petitioner. The position taken by the Eastern Bengal Railway is that the petitioner being a licensee, his licence automatically passed after April, 1959; and inasmuch as the Western Bengal Railway did not grant any further licence by receiving rent, the petitioner has no right to stay on the land. We may add also in this case that, whether the petitioner could be evicted by the Eastern Bengal Railway or not, the Sub‑Divisional Officer (North), Chittagong, had no jurisdiction to pass an order of ejectment, and the impugned order is nothing but an order to quit and vacate the premises. Writ Petition No. 67 of 1960 is on behalf of twelve persons. It transpires that only petitioner No. 1 Abdus Sabur has verified this petition. We shall, therefore, reject the petition in respect of the other petitioner, namely, petitioners Abdul Jabbar, Abdul Ghani, Shamsul Alain, Muhammad Serajul Huq, Badruzzaman, Ali Ahmed alias Kabir Ahmad, Badrul Alam alias Badrul Ameen, Faroque Ahmed, N. Islam, Sree Dasarat Chandra Seal, and Abdul Latif, as they have not personally verified the petition submitted on their behalf. Petitioner Abdus Sabur has made inter alia the following averments ; "(2) That your petitioners have been carrying on trades as shop keepers in different rooms of the house on holding No. 358 (New) of Mohalla Alkaran in Chittagong Municipality at Abdur Rab Nishtar Road alias Station Road, Chittagong for 12 years is tenants under the heirs of Parshi Meah, the original lessee of the said holding under the E. B. Railways. (3) That the said Parshi Meah was in occupation of the holding since early 1948 and, thereafter he was granted valid lease No. 27 dated 13‑4‑48 by the authority of the E. B. Railway in respect of the holding No. 358 (New) which was previously No. 348 (old.) (4) That the said lessee Parshi Meah submitted site plan to the authority of the Railways for erecting the holding house and got the same duly approved by the Respondent No. 2, Executive Engineer, E. B. Railway, Pahartali, Chittagong and then erected the holding house at his own cost under valid permit. (5) That the said lessee Parshi Meah let out the holding house to your petitioners who are bona fade occupants of the holding house under valid lease on payment of rents with proper right and title. (6) That the names of your petitioners have been recorded in the Register of the said Municipality as persons in occupation of the holding and that they have been paying Municipal taxes amounting to Rs. 92 per quarter. (7) That the said holding house is not within the fencing and boundary of Chittagong Railway Station and that it is situated just near the said road and that there are vacant land in between the holding house and the fencing and boundary of the Railways. (8) That the learned Sub‑Divisional Officer, North, Chittagong, issued notice dated 22‑7‑59 to your petitioners and 22 others to remove the structures and the structures in the separate occupa tion of the others at the instance of the Executive Engineer, E. B. Railways who alleged that your petitioners and 22 others were trespassers and encroachers upon the Railway land ire Petition Case No. 235 of 1959 and the said notice, however, was received by your petitioners on 1‑10‑

59. The copy of the said notice of the learned Sub‑Divisional Officer is annexed herewith and is marked as Annexure `A'." In this case also on behalf of the respondent the averments of the petitioner in paragraphs 2, 3, 4, 5 and 6 were not admitted. The position taken on behalf of the Eastern Bengal Railway is that the petitioner was a rank outsider and that Parshi Meah, under whom he claims title, could not legally induct him into the land under the said arrangement. It will be seen that the petitioner claims that he has been on the premises in question for twelve year. This averment has not been specifically denied on behalf of the Eastern Bengal Railway which has merely taken the position that this petitioner cannot, as of right, claim any legal title to the possession of the premises occupied by him. If the petitioner had been on the premises for a long time, the Eastern Bengal Railway would know about the same since the premises in question is in close proximity to the railway station and the servants of the Eastern Bengal Railway must be deemed to have known that the petitioner was on such premises. In these circumstances, the continuance of the petitioner on the premises must be with the implied sufference and/or licence of the Eastern Bengal Railway. The E. B. Railway, under such circumstances, cannot but be deemed to have constructive notice of the occupation of its land by the petitioner who was in such occupation under the very nose of the E. B. Railway. In any event, we are not directly concerned with the consideration of such matters. This petitioner has established that he is, in fact, in possession of the said premises and we think that he cannot be ousted from such possession by a mere order passed by the Sub‑Divisional Officer, as stated above. Whether the E. B. Railway could evict the petitioner or not, the Sub‑Divisional Officer has no authority to direct him to quit the premises under such circumstances. With regard to Writ Petition No. 68 of 1960 by Mr. Khalilur Rahman, it has been stated in the petition, inter alia, as follows: "(2) That the petitioner, under valid agreement entered into between him and the District Traffic Superintendent, Pahartali under L. R. No. 27 erected pacca structures on a piece of vacant land belonging to the Railways measuring 107' x 49' at Station Road, Chittagong as early as September, 1944. (3) That the petitioner since then paid regular fees by way of rent to the Railway authority and the same right was renewed from time to time by the proper Railway authority. (4) That the petitioner had started trade in Motor spare parts under the name and style "M. K. Rahman" in the said premises since before the Written Agreement though with the authority and consent of the Railway authority. (5) That the petitioner's name was accordingly recorded in the Municipal Register as the person in occupation of this Municipal holding and paying Municipal rates and taxes in his name all along with for the holding as also for the trade. (6) That on 22‑7‑59, the learned Sub‑Divisional Officer (North), Chittagong, at the instance of the Executive Engineer, E. B. Railway, issued notice to your petitioner and 33 others to remove the said structure and the structures in the separate occupation of the others and dubbed them as encroachers which was, however, received by your petitioner on 1‑10‑

59. The copy of the said notice of the learned Sub‑Divisional Officer is annexed herewith and is marked as Annexure `A'. (7) That thereafter, the Executive Engineer, E. B. Railway filed afresh petition under sections 5 and 6 of East Bengal Government Lands and Buildings (Recovery of Possession) Act (E. B. Act X of 1953) and section 447 of the Pakistan Penal Code and Martial Law Regulation 15 were also mentioned in the said petition. (8) That your humble petitioner appeared before the said learned Sub‑Divisional Officer and filed objections stating that they were not trespassers and their constructions were not unauthorised and that they were bona fide occupants under legal right and title under the E. B. Railway, Chittagong. (9) That the said learned Sub‑Divisional Officer without considering the facts and circumstances of the case passed an order on 5‑1‑60 in Petition Case No. 235/59 asking the petitioner and others to vacate their respective premises by 2 p. m. on Saturday 9‑1‑

60. A copy of the said order dated 5‑1‑60 is annexed herewith and is marked as Annexure `B'." In the affidavit‑in‑opposition filed on behalf of the respondents the aforesaid averments in paragraph 2, 3, 4 and 5 have been substantially denied. But at the hearing of the petition it was frankly admitted on behalf of the respondents that in this case the order passed by the Sub‑Divisional Officer (North), Chittagong, could not be supported. 1t transpires that the petitioner was holding the said land under a valid lease or licence from the Eastern Bengal Railway and that the same lease or licence was not legally terminated in consonance with the agreement entered into between the parties, namely, the petitioner and the Eastern Bengal Railway. We, therefore, hold, without any further discussion, that this petitioner is entitled to have the aforesaid order passed by the Sub‑Divisional Officer (North), Chittagong, cancelled. Lastly, we take up Writ Petition No. 72 of 1960. In this case the petitioner Abrar Hussain has made, inter alia, the following averments "(2) That the petitioner's brother Muzaffar Hussain was the original licencee, of the disputed land and possessed the same by constructing structures. After his brother's death, the petitioner began to own and possess the same. (3) That the petitioner has been paying rent to the Railway Company at the rate of Rs. 546, per annum since , 1947. (4) That the petitioner has been carrying on business in Motor Spare Parts and hardwares under the name and style of "Abrar Hussain & Co." at Station Road, under a valid lease from the Railway authority and that he has been possessing the disputed land for more than 12 years. (5) That the petitioner's name has been accordingly recorded in the Municipality Register as the person in occupation of the Municipality holding No. 356 and that he had been paying rates and taxes in his name all along both for the holding and for the trade. (6) That on 22‑7‑59, the learned Sub‑Divisional Officer (North), Chittagong, at the instance of the Executive Engineer, E. B. Railway, issued a notice to the petitioner and 34 others to remove the said structures and the structures in the separate occupation of the others and branded them as encroachers which was, however, received by the petitioner on 10‑10‑

59. The copy of the said notice is annexed herewith and marked as Annexure `A' (7) That thereafter, the Executive Engineer, E. B. Railway filed a fresh petition under sections 5 and 6 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act (E. B. Act X of 1953) before the learned Sub‑Divisional Officer for taking necessary action under the law. (8) That the petitioner appeared before the said Sub -Divisional Officer and filed an objection stating that he was not a trespasser and his construction cannot be treated as un authorised and that he was bona fide occupant under legal right and title under the E. B. Railway Company. (9) That the said learned Sub‑Divisional Officer without considering the facts and circumstances of the case passed an order on 5‑1‑60 in the Petition Case No. 235 of 1959 asking the petitioner and others to vacate their respective premises by 2. p.m. on Saturday 9‑1‑

60. A copy of the said order dated 5‑1‑60 is annexed herewith and marked as Annexure `B'." The aforesaid averments in paragraphs 2, 3, 4 and 5 have not been admitted by the respondents. Again, the position taken by the Eastern Bengal Railway is that the petitioner was not a person who was either a licencee or a tenant under the Eastern Bengal Railway and that, under such circumstance, the Eastern Bengal Railway would treat him as a trespasser. One fact, however, stares us in the face ; in the notice which was served on this petitioner by the Executive Engineer Eastern Bengal Railway, on the 22nd of May; 1959, it has been specifically stated that the petitioner bad been in unauthorised occupation of the land belonging to the railway since 1956. It may be noted that all the premises, in question are in close proximity to the Chitta gong Railway station and the officials of the said railway must, of necessity, have known that the petitioner was the occupant of the said premises for a long time. The Eastern Bengal Railway took no steps to remove the petitioner from the premises but suffered him to remain there for a considerable period. The doctrine of constructive notice or knowledge would also arise in such a case. We do not decide the question whether the Eastern Bengal Railway is competent to terminate the licence, implied or otherwise, which is claimed to have been granted to the petitioner ; the fact, however, remains that the petitioner could not be removed by an order of ejectment passed by the Sub -Divisional Officer (North), Chittagong. We have discussed all the petitions before us. We should not be understood to have recorded any finding as to the title of the Eastern Bengal Railway to recover possession of the lands in dispute, either by itself or by due process of law. We have proceeded on the footing that, even if the Eastern Bengal Railway is entitled to evict the petitioners from the said premises, the Sub‑Divisional Officer (North), Chittagong, has no authority to pass the impugned order. Lastly, we may mention another point which was rather faintly argued before us. It was contended that the Eastern Bengal Railway is a public utility concern and it might be in urgent need of the hands in dispute. The implication of the argument was that this Court should not use its discretion in a manner which might hamper a project beneficial to the public. The short answer to this is that we are concerned only with the legality of impugned order. The Eastern Bengal Railway can take immediate possession of the said lands, if so advised, in a lawful manner by taking appropriate action in this behalf. On the other hand, it is also a matter of vital concern to the public that its rights should not be violated without legal justification and that there should not be any encroachment upon such rights except in accordance with and in due process of law. The result, therefore, is, that in respect of all the petitions, except with regard to such petitioners whose petitions we have rejected in limine in Writ Petitions Nos. 67 and 73 of 1960, we direct that the order passed on the 5th of January,' 1960, by Mr. A. Rahman, Sub‑Divisional Officer (North), Chittagong, in Petition Case No. 235 of 1959, be cancelled. All the aforesaid eight Writ Petitions and the Rules are thus disposed of in accordance with order passed above without any order as to costs. SIDDIKY, J.‑I agree. Orders accordingly.