P L D 1960 Dacca 768 (PLP)

RAHMAN, J.‑This Rule is directed against the East Bengal Evacuee Property Management Committee, Dacca and its President. The petitioner claims that she is an Indian citizen and has been residing in India for the last 25 years and complains that her properties situated in the town of Dacca, being vacant lands, appertaining to Khatian No. 11234 under Touzi No. 3277‑B (1) of the Dacca Collectorate and C. S. plot No. 300 of sheet No. 5 of Ward No. 7 of Monza Sahar Dacca, have been wrongly and illegally treated as evacuee properties and mala fide taken possession of by the respondent No. 1 in collusion and conspiracy with certain persons who had trespassed upon the land comprised in C. S. plot No. 300 some time in March 1953. The petitioner states that for the eviction of these trespassers, some of whom were joined as respondents in this application but no rule was issued against them; she instituted a suit, being Title Suit No. 40 of 1954 in the Court of the 3rd Subor?dinate Judge, Dacca, and obtained a decree therefrom after contest on the 8th of December 1955. The decree declared her title to these lands and awarded her khas possession by evicting the said trespassers and removing the structures that they had erected thereon. This decree was confirmed even in Second Appeal by this High Court on the 25th of February 1959: After the disposal of the Second Appeal she started an execution case on the 22nd of May 1959, the same was registered as Title Execution Case No. 13 of 1959 in the Court of the said 3rd Subordinate Judge at Dacca and in this execution case she was ultimately directed to be put in possession with the help of the police force. She deposited under Court's order Rs. 30 on the 3rd of August 1959, with the Superintendent of Police, Dacca, and on the 5th of December 1959, she was informed that police force would be available for the said purpose on the 13th of December 1959. Two days thereafter, namely, on the 7th of December 1959, one of the judgment‑debtors in the said case filed an objection to the execution contending that the execution could not issue as the respondent No. 1 had, under the provisions of the East Bengal Evacuees (Administration of Immovable Property) Act, 1951, settled the entire suit lands by registered leases executed between the 21st of July 1959 and the 5th of August 1959, with the said judgment‑debtors who were since then paying rents to the respondent No.

1. Hence, the suit properties having become vested in the said respondent No. 1, the petitioner could not proceed with the execution case. This objection to the execution was opposed by the petitioner and was fixed for hearing on the 10th of December 1959. But on the latter date the respondent No. 1 itself, which was no party to the petitioner's suit at all, filed an objection under section 47 of the Code of Civil Procedure claiming that the said C. S. plot No. 300 had, on the 1st of June 1959, vested in it and that it had leased out the same in five parts to five persons by five registered leases for two years on the 21st of July 1959 and the 5th of October 1959. The respondent No. 1 further claimed that since it had come to know only the day before, i.e., 9th of December 1959, of the said execution case, by which khas possession was sought to be taken of the holding in question by the petitioner, it had to make the said application. The petitioner claims that she had no notice of any pro?ceedings at all under the said East Bengal Evacuees (Adminis?tration of Immovable Property) Act, 1951 purported to have been taken by the respondent No. 1 but has since come to know upon enquiries that in the Dacca Gazette of the 23rd of April 1959, a public Notification, being Notification No. 194 E. P. M. C. of the 17th of April 1959, was published under the authority of the respondent No. 2 purporting to say that the properties mentioned in the schedule were evacuee properties and calling upon persons interested therein to file their objections, if they had any valid objections thereto within 30 days of the publication of the said Notification. Again, on the 11th of June 1959, another Notification was published in the Dacca Gazette pur?porting to make a final order taking over charge and management of the said properties with effect from the 1st of June 1959. In the first Notification of the 17th of April 1959, the petitioner's name and address were given as follows :‑-- "Shrimati Giribala Basu wife of Jatindra Kumar Basu, of vill. Tegharia, District Dacca at present address 57/1, Ballyganj, Circular Road, Calcutta." The petitioner states that this was the address for service given by her in the suit and the execution proceedings which she had instituted against the trespassers on the said land and she had reason to believe that the said trespassers supplied the said address of the petitioner to the respondent No. 1, although since then the petitioner had changed her address and was residing at Plot No. 483 C. I. T. scheme XVII in Cal,‑29 and at this latter address no notice was ever served on her. From this the petitioner seeks also to urge that the statement of the respondent No. 1 in its objection petition under section 47 of the Code of Civil Procedure that it only came to know of this execution proceeding on the 9th of December 1959, was false because it could not have known the address of 57/1, Ballyganj Circular Road, Calcutta from any other source but the records of the suit. In these circumstances, the petitioner challenges the validity and propriety of the order of the respondent No. 1 taking over in its possession and management of the aforesaid properties, firstly, on the ground that as she was never an evacuee within the meaning of the East Bengal Evacuees (Administration of Immov?able Property) Act, 1951, the Evacuee Management Committee never acquired any jurisdiction to make any order with regard to any of her said properties. Secondly, she maintains that the said order was made mala fide without any manner of enquiry at all by the said respondent No. 1, for had the said respondent No. 1 made any enquiry, it would inevitably have come to know that the persons on whom it purported to settle the lands, were even then in actual physical possession of the lands and against them a decree had been passed by a competent Court in Pakistan, declaring them to be trespassers and that this decree had been confirmed even up to Second Appeal by this High Court. Thirdly, the petitioner contends that the whole thing has been hatched up in conspiracy with the said trespassers and is a mala fide and colourable exercise of power, for, had the Committee acted bona fide, it could not possibly have settled these lands with such trespassers, for under the Act itself it was bound to take over possession of the land and to remove the trespassers therefrom. The petitioner, therefore, prays that the said respondents Nos. 1 and 2 should be directed by a writ of mandamus to forthwith cancel the aforesaid illegal orders. This application is opposed by the said respondent No. 1 and it has filed an affidavit‑in‑opposition verified by its Adminis?trative Officer who claims to be acquainted with the facts and circumstances of this case and according to this affidavit, it is said, that the Committee after being satisfied on proper enquiries that the petitioner was an evacuee, within the meaning of the said Act, published the Notification and made the order com?plained of. Therefore, its action was in every way proper and valid and could not be questioned in any Court and, furthermore, that the persons to whom the lands had been leased out, could not be disturbed in any way. The said affidavit, however, claimed that the respondent No. 1 was not under any obligation to disclose as to how or upon what enquiries the said information was obtained and indeed, claimed "That the disclosure of the name of the person from whom enquiry has been made is neither necessary nor the same is required." The said affidavit further asserted that the petitioner and her husband, after the latter had retired from service, resided at their house at village Tagoria police station Keranuganj District Dacca till the 15th of August 1947, when they left for India for fear of communal disturbances and they were since then residing in Calcutta. In this affidavit the allegations of conspiracy were denied and it was also denied that the Calcutta address of the petitioner was obtained from anyone of the other respondents, namely, the trespassers on the land, but the source from which the address was obtained was curiously enough not disclosed in this affidavit. In the verification it was stated that the fact of the petitioner having left Pakistan for fear of communal disturbances, was based upon information derived from the President, Tagoria Union Board, which was believed to be true. Here again, the source from which the Calcutta address was obtained, was not disclosed. In the affidavit‑in‑reply filed by the petitioner, the petitioner reiterated the statements in the petition that she was never ordinarily resident in any part of the territories of East Pakistan ever since her husband retired from police service in Assam. Since 1930 she had been residing with her husband at various places at Calcutta. A list of such addresses was also given in Calcutta as detailed in paragraph 9, sub‑paragraph (iii) of the affidavit‑in‑reply. The assertion in the affidavit‑in‑opposition that the Committee had acted bona fide and after proper enquiries in the matter, is denied and it is specifically denied that ally President of the Tagoria Union Board had given the infor?mation claimed to be acquired from him by the Administrative Officer in his aforesaid affidavit. The respondent No. 1 through one of its Assistants working in the office filed an additional affidavit on the 6th of July 1960, ?disclosing that the name of the President of the Union Board from whom the information was said to have been obtained, was Moulavi Nadu Molla and that the Calcutta address of the petitioner was obtained from one Babu Ajit Chan dra Hazra of Armanitola in the city of Dacca. The petitioner has, however, since, with the permission of this Court, filed an affidavit verified by Moulvi Nadirali Molla himself, the Ex‑President of the said Teghoria Union Board. He claims that he was the President of the said Board from 1955‑59 when the Board was dissolved and that during this period neither the Administrative Officer, Jagadish Chandra Banerjee, nor anybody on his behalf went to him to seek information as to whether the petitioner or her husband resided in village Teghoria and, if so, up to what period they resided there. He further states that neither the husband of the said petitioner nor the petitioner nor any of the brothers of the petitioner's husband came and resided in their village house at Teghoria during the last 25 or 30 years. Upon these facts, the petitioner now claims that she is entitled to the Writ, for the statements contained in the affidavit‑in?-opposition with regard to the enquiries alleged to have been made by the respondent No. 1 or its Administrative Officer have completely fallen to the ground and exposed his deliberate falsehood. The position, according to the learned Advocate appearing in support of the application thus is that the petitioner does not come within the definition of an "Evacuee" as given in clause (c) of section 2 of the said Act. It is in these terms :‑ ` Evacuee ' means a person ordinarily resident in East Bengal, who, owing to communal disturbances or fear thereof, leaves or has, after the 15th day of August 1947, left East Bengal for any part of India, includes the legal heirs of such person." The Scheme of the said Act which purported to be for making provisions regarding administration, preservation and protection of immovable properties of evacuee in East Bengal and other matters relating to such properties, seems to be that evacuee property or properties belonging to persons who had left East Pakistan due to fear of communal disturbances since the 15th of August 1947, without making any adequate arrange?ment for the management and protection of their properties, may, in the interests of the said persons, be taken possession of by the Committee set up under the Act for the management and protection of such properties and if any trespasser has taken possession of the said properties, to evict the said trespasser and, if .necessary, lease out the properties to other bona fide persons for a short period without prejudice to the right, title and interest of the true owner. Thus, it is provided in the Act that if the sole owners or the co‑sharer owners of the property object to the taking over of possession of the property by the Committee on the ground that the sole owners or co‑sharer owners have made other arrangement for the management and utilisation of the property and if the said arrangements are adequate, the committee shall not take charge of the evacuee property. There are provisions furthermore in the Act for the restoration of these evacuee properties to the true owners in the event of their returning to Pakistan. Furthermore, under section 17 of the said Act it is provided that if any such evacuee property is in the unlawful possession of any person, the Committee may move the appropriate authorities to enforce the surrender of such property by such person to the Committee and to realise compensation from such unlawful occupants. In these circumstances apart from the question as to whether the petitioner was an evacuee or not, it appears to us rather surprising that the Committee should, in the present case, have re‑settled these properties with persons who had been declared even by this Court to be trespassers in the properties and directed to be evicted therefrom. It seems to us that had the Committee made any kind of enquiry at all, it could not have avoided receiving the information that considerable litigation had been going on with regard to the said properties from 1954 onwards and. that the matter had come up even to this Court. Furthermore, the date of the action purported to have been taken by the Committee is also not without significance. It by a remarkable coincidence happens to be immediately after the confirmation of the decree in the Second Appeal by this Court and just after the petitioner had applied for execution on the 22nd of May 1959. The fact that the address given in the Notification happens to coincide again with the address given by the petitioner herself in the pending litigation, seems to us to support in no small measure the contention of the petitioner that the trespassers whom she was seeking to evict from the lands, were at the root of the matter. Again, it is difficult to appreciate what impelled the Committee, although it was not a party to the suit itself, to file the petition of objection under section 47 of the Code of Civil Procedure objecting to the execution of the decree. No explanation has been offered in any of the affidavits filed on behalf of the Committee for this action. I(seems to us that it was sheer over‑zealousness on the part of, the Committee to prevent the execution of the decree and it confirms our belief that the Committee itself was anxious that the decree should not be executed is accordance with law. In these circumstances, we are of the opinion that the Committee acquired no jurisdiction under the East Bengal Evacuees (Administration of Immovable Property) Act, 1951 to make any order with regard to the properties in question, upon the facts stated in her petition, which must be accepted as correct after the affidavit filed by the President of the Union Board himself, which has not been controverted. Apart from this, we are satisfied in the present case that the Committee acted in the colourable exercise of its powers in order to, assist the trespassers on the lands whom the petitioner was seeking to evict in accordance with law and had for the purpose obtained a decree from a competent Court in Pakistan. A large number of technical objections have been raised on behalf of the respondents in this matter but we do not consider it necessary to enter into the same except to say that in the facts which we have now accepted, it is clear that the Committee never acquired any jurisdiction in this matter and, therefore, its order Cannot be justified on any ground. Whatsoever. The scheme of the Act appears' to be that the existence of an evacuee property and an evacuee is a condition precedent to the vesting of the jurisdiction in the Committee. The Committee has not been given any power to decide as to who is or who is not an evacuee. Hence, no finality can be claimed with regard to the decision of the Committee tin this question. In our view, even if such a power had been given to the Committee, this Court would have been competent to investigate into the matter, for as this Court has held in the case of the Province of East Bengal v. Dewan Abdul Alim Mutwalli (9DLR26) where an inferior body or tribunal has to exercise the powers of deciding facts and if a certain state of facts must exist and be shown to that tribunal or body to exist before it can proceed to do anything then it can acquire jurisdiction to do the thing it has been empowered to do by legislation only if those facts exist and not otherwise. It is not for the tribunal or body to conclusively decide whether that state of facts exists and if the exercise of jurisdiction is without the existence of such state of facts, then a superior Court has the power to go behind its decision. If further authority is needed for this proposition, we may refer to the opinion of the Judicial Committee itself in the case of The Colonial Bank of Australasia and John Turner v. Robert Willan, (1874LR5(PC)AC417) a shareholder in the said Mining Company. Sir James W. Colvile delivering the opinion of the Board in the said case observed at page 442 as follows :‑-- "It is, however, scarcely necessary to observe that the effect of this is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the ; proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the private clause in a statute, the Court of Queen's Bench will grant a certiorari ; but some of those authorities establish, and none are inconsistent with the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it." We may observe that in the present case both the above conditions are satisfied. The limits of the jurisdiction of such a tribunal were discussed more elaborately in the case of The Queen v. The Commissioners for Special Purposes of the Income‑tax (1888LR21QB313) by Lord Esher, Master of the Rolls. We do not propose to repeat here the relevant observations of the learned Master of the Rolls which have already been quoted in the case of the Province of East Bengal v. Dewan Abdul Alim. The contention of the learned Advocate is that as the Committee was vested by the Act to come to a particular decision, namely, whether to take over the management of the evacuee property or no, it was a quasi‑judicial duty that the Committee was performing and, therefore, the appropriate writ was not by way of mandamus but by certiorari. A certiorari lies wherever a body entrusted with the duty to decide judicially acts without jurisdiction or acts contrary to the principles of natural justice, as pointed out in the case of Rex v. Electricity Commissioners (L R (1924) 1 K B 171). It is commonly held that for a matter to acquire a, judicial character there must at least be a lis, namely, a proposal and an opposition but in the present case there was no proposal or opposition, nor does the procedure laid down under the Act, pertake of the characteristic of a judicial enquiry. The Committee which does not consist of judicial officers, has been empowered to decide summarily a question as to whether a particular property should be taken over under its control or management of not. This is an administrative decision or an executive decision and such executive decisions are now being made in almost every department of Government by executive officers. In the circumstances, we are of the view that a writ of mandamus has been rightly applied for in the present case. The last contention of the learned Advocate appearing on behalf of the respondents is that section 18 of the Act expressly bars the jurisdiction of the Civil Court or High Court to call in question any order passed or any action taken under the Act, this application is not maintainable. It is now well settled that provisions of such a nature give protection to only bona fide actions and not actions which are merely colourable exercises of power under the Act or mala fide actions. In the facts and circumstances of this case, this protection is not available to the respondents, for as we have held, this action was a colourable exercise of power designed to assist persons who would not normally have been entitled to assistance under section 17 of the Act and .whom the Committee would have been compelled under the law to evict from the premises. In the result, therefore, we make this rule absolute and direct that the petitioner shall be entitled to his costs in this matter from the respondents Nos. 1 and

2. IDRIS, J.‑I agree. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Rule made absolute.