P L D 1964 Dacca 138 (PLP)

5. Furthermore, it will appear that, shortly before taking possession of the said premises with the assistance of the police, an inventory of the various articles belonging to the petitioner was made, which included certain house‑hold materials. It is curious that the petitioner should have been allowed to keep his articles on the premises for about six years, if the property had been acquired by the Provincial Government and taken possession of. In our opinion, the petitioner has been able to prove various circumstances which will conclusively prove that the property in question was never possessed by the Provincial Government as claimed by the respondents. In these circumstances, we accept the petitioner's statement that the premises in question consist of Khamarbari and a garden. The circumstances men tioned above tend to corroborate the statement made by the petitioner and we accept them in preference to averments in the affidavit‑in‑opposition. It was further argued on behalf of the petitioner that, even if the property in question could be described as a Katchery, it would, none‑the‑less, on the showing of the respondents themselves, come, in the absence of any decision by Government to acquire the same, within the definition of `retainable khas lands' under section 20 (2) (a) of the East Bengal State Acquisition and Tenancy Act, 1950, which runs as follows "(2) A rent receiver, a cultivating raiyat, a cultivating under‑raiyat or a non‑agricultural tenant shall be entitled to retain, as a tenant under the Provincial Government, possession of‑ "(a) lands covered by his homestead or any other building belonging to him with necessary adjuncts thereto, other than such building or part of a building outside his homestead as is used primarily as office or katchery for the collection of rents of any estate, taluk or tenure and may be decided to be acquired by the Provincial Government."

6. It will be seen that unless the Provincial Government, expressly decides to acquire a Katchery and publishes such al decision, a Katchery will also come within the category of `retainable khas lands'. We fail to see how the respondents cans claim to have automatically acquired the property in question under a general notification of April 1956.

7. Learned counsel for the respondents had admitted that the notification in question is couched in the following terms "No. 4849 L R‑2nd April 1956.‑In exercise of the power conferred by subsection (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. XXVIII of 1951), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance No. III of 1956), it is hereby notified, for the information of all concerned, that the Governor is pleased to acquire, with effect from the 14th April 1956, all lands in the khas possession of all rent‑receivers situated in the District of Dacca, other than the classes of lands coming under clauses (a) and (b) of subsection (2) of section 20 and other than such lands as have already been acquired by, and have already vested in the Provincial Government under the pro visions of the said Act." It will be seen that the aforesaid notification, upon which the respondents claim their title to the land, specifically excludes the classes of land coming under clauses (a) and (b) of sub section (2) of section

20. Therefore, there can be no manner of doubt that the Provincial Government never purported to acquire the alleged Katchery. Furthermore, it will appear that the Provincial Government, cannot except upon the happening of certain contingencies, acquire the retainable khas lands of rent‑receiver as defined in section 20 (2) (a) and (b). Since we have accepted the petitioner's claim that the property in question is his Khamarbari and garden, it is retainable khas land" within the meaning of section 20 (2) (a) and (b). The position, therefore, resolves itself into this that neither the property in question stood automatically acquired by the Provincial Government in 1956, when, it is claimed that it has been so acquired, nor did the Provincial Government pretend to acquire it under the aforesaid notification of April 1956.

8. In these circumstances, the act of respondent No. 1 in taking forcible possession, with the assistance of police, of the building and land in question without any legal title whatsoever and in delivering the same to respondent No. 3, namely Golakandail Union Council, is illegal. We direct respondent No. 1 to recall the order by which possession of the said building and land belonging to the petitioner has been made over to respondent No. 3, namely, Golakandail, Union Council, namely, to recall the order made by Memo. No. 5587/ BD‑28/61, dated 2‑10‑

61. The petitioner is entitled to the costs of this application, which we assess at ten Gold Mohurs. The Rule is, therefore, disposed of in accordance with the orders made above. A. S. CHOWDHURY, J.‑I agree. s. B./K. B. A. Rule discharged.