1970 PLP 5 (SCMR)

Asrarul Hossain, Senior Advocate Supreme Court (K. M. subhan, Advocate with him) instructed by Md. Nurul Huq, Senior Attorney for Respondents. Date of hearing : 1st July 1969. ABDUS SATTAR, J.‑In this appeal by special leave the only question raised is whether an order passed by a District Judge, on appeal under section 3 of the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964 (hereinafter called the Ordinance), is open to revision by the High Court under section 115 of the Code of Civil Procedure. The respondents filed applications under section 2 of the Ordinance against the present appellant alleging that the premises comprising holding Nos. 277 and 278 Lalbag Road (Rishipara), P. S. Lalbag, were in their possession but they had to leave the same owing to the civil disturbances of January 1964. The appellant Moshtaque Ahmed occupied the premises and forcibly took on blank papers thumb‑impressions of respondents Sarat Kamini Dasi and Santi Dasi and might have converted the papers into documents of title. The appellant appeared in the proceed ings and asserted that he had purchased the property from respondents Nos. 2 and

3. A learned Magistrate, on being directed by the Sub‑Divisional Officer (South), Dacca, held local enquiry and ordered the appellant to vacate the premises. On appeal, under section 3 of the Ordinance, however, the District Judge, Dacca, set aside the order of the Magistrate and directed restoration of possession. The respondents then moved the High Court under section 115 of the Code of Civil Procedure. The learned Judges of the High Court overruled the contention on behalf of the appellant that the District Judge acted as persona designata and not as a Court subordinate to the High Court and therefore the petition under section 115, C. P. C. was not maintainable. Section 3 of the Ordinance provides that any person aggriev ed 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. ' Section 7‑A lays down that every officer acting under this Ordinance shall be deemed to be acting judicially within the meaning of the Judicial Officer's Protection Act, 1850. Section 7‑B provides that every officer acting under this Ordinance shall have the powers of a civil Court for the purpose of receiving evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents. Lastly section 7‑C says that subject to the provisions of subsection (8) of section 4, every officer acting under the Ordinance shall be deemed to be a Court and any proceeding before him shall be deemed to be a civil proceeding within the meaning of section 14 of the Limitation Act. It may be mentioned at this stage that the Ordinance which was temporary in nature lapsed by efflux of time. The provisions referred to above clearly indicate that the jurisdiction to hear an appeal under section 3 of the Ordinance was conferred upon the Court of District Judge, an existing Court subordinate to the High Court and not on the District Judge as persona designata. The argument that since no procedure was laid down as to how the inquiry was to be held under section 2 nor regarding the disposal of the appeal under section 3 the proceeding under the Ordinance is not judicial proceeding is answered by section 7‑B and 7‑C. This section clearly points to the conclusion that a proceeding started under section 2 of the Ordinance from its inception is a judicial proceeding. The real test is whether the function of the District Judge under section 3 is a judicial function : We are satisfied that the powers and functions of the District Judge under section 3 are judicial functions which have been conferred upon an existing Court which is subordinate to the High Court. For the reasons stated above the High Court, in our view, rightly found that the petition under section 115, C. P. C. was maintainable. The appeal is dismissed but the parties are left to bear their own costs. Appeal dismissed.