P L D 1969 Dacca 417 (PLP)

A. S. CHOWDHURY, J.‑This revisional application is directed against the judgment and order passed by Mr. Amanullah Khan, Additional District Judge, 2nd Court Sylhet, in Miscellaneous Appeal No. 349 of 1967, dated 31‑1‑68 affirming those of Mr. M. A. Hossain, Subordinate Judge, 2nd Court, Sylhet, passed on 7‑12‑67, refusing to grant temporary injunction during the pendency of title Suit No. 12 of 1967. The petitioner Makramulla obtained a lease of the fishery in question for the years 1368 to 1373 B. S. The fishery being what is called in the district of Sylhet a 'pile' fishery and could be worked every 3rd year only Makramulla could not catch fish during the year 1368 B. S. as one Haji Wadullah obtained a temporary injunction restraining the petitioner from working on this fishery. Haji Wadullah after having prevented the petitioner from catching fish in the year 1368 B. S. ultimately withdrew the suit and ad interim injunction was accordingly vacated. The petitioner, therefore, prayed for exemption from payment of rent for the year 1368 B. S. and prayed that the lease may be granted for the years 1369 to 1374 B. S. in order to compensate him for the first year. The petitioner was asked to pay rent for 1370 B. S. on the assurance that his prayer for extension for a year would be considered. The petitioner filed two applications for extension of the lease for one more year, one on 22‑4‑63 and the other on 16‑5‑66, but the Deputy Commissioner (Revenue) did not pass any order on any of these applications. He how ever put the fishery again on auction when the petitioner was compelled to institute the present suit, being title suit No. 12 of 1967 and prayed for an injunction. The trial Court as well as the Court of appeal below saw no reason to grant the prayer. The petitioner, thereafter, moved this Court, obtained a rule on the opposite‑party to show cause as to why the order refusing to grant injunction should not be set aside. While issuing rule on 16‑2‑67, this Court granted an ad interim injunction and by virtue of that order the petitioner is in possession of the fishery. He has been in possession since 1369 B. S. and also paid rent up to 1375 B. S. Mr. A. W. Chowdhury appears for the petitioner and claims that the impugned order should be set aside and injunction should be granted for the period for which the petitioner wanted extension of the period of lease. Mr. S. A. Chowdhury, learned Assistant Government Pleader, submits that this is a discretionary matter and the Court should not interfere with the same. Mr. Mudabbir Hossain appears for one Arshad Ali and files a petition to be added as a party in this revisional application. It seems to us that the petitioner is a miscon ceived one. It is stated in the petition that Arshad Ali was granted lease of the fishery in question but the said lease was cancelled as far back as on 30‑3‑67, and the petitioner filed an application praying to be added as a party in Title Suit No. 12 of 1967. That prayer was rejected by the learned Subordinate Judge. Petitioner Arshad Ali without preferring an appeal against the said order of rejection, filed an application to be added as a party when petitioner Makramulla preferred an appeal against the order of refusing to grant him injunction in this matter. The learned Additional District Judge also held that the petitioner Arshad Ali was not a necessary party and as such, be refused to grant this prayer to be added as a party. This order has not been challenged before this Court. But the petitioner has filed a fresh appli cation in this Court to be added as a party in this revisional application. The petitioner's alleged lease has been cancelled on 30‑3‑67 and in consideration of the facts stated above, we are clearly of opinion that application for permission to be added as a party in this revisional application should be rejected and we order accordingly. Reverting to the merits of the present revisional applica tion, it appears that learned Additional District Judge in upholding the order of the learned Subordinate Judge observed as follows :‑ "In such circumstances the claim of the plaintiff of T. S. 12/47 for extension of the year 1374 B. S. seems to be quite reasonable and justified but the question of granting of extension as provided in rule 205 of Government Estate Manual is discretionary of the authority concerned. The defendant, it appears, has not yet said the final word on the plaintiff's application for extension for the year 1374 B. S. In such circumstances, I am inclined to hold that the plaintiff's lease having already expired after the expiry of 1374 B. S. is not entitled to get temporary injunction." It is difficult for us to appreciate the reasons assigned by the learned Additional District Judge. It appears that he did not appreciate the point involved in the matter correctly. The learned Judge seems to think that when the discretion is vested in an executive functionary, the Court cannot interfere with the same in any case. He has moreover, observed, that the said authority has not yet passed an order. He has lastly stated that 1374 B. S. has already expired. When an application is presented before an executive or judicial officer it is plainly his duty to dispose of the said application within a reasonable time. In this case the application was first presented on 22‑4‑63 but even to this date he has not passed any order on the same. This is indeed a serious omission to discharge a duty cast upon an officer. I would, with respect, in this connection recall the words of Earl Cairns, L. C. in the case of Julies v. Bishop of oxford ((1879) 5 A C 214), referring to a discretionary power the learned Lord Chancellor observed :‑ "They confer a faculty or powers, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person to whom the power is reposed, to exercise that power when called upon to do so." In this case omission to exercise it, to say the least smocks of negligence. He has instead impliedly rejected the application by putting the fishery to auction. The question now is if it is a real exercise of discretion. It should be remembered that there is no scope for anyone to be arbitrary in exercising a dis cretion. He must act fairly and consider the case in all its aspects. He has to apply his mind. It is wrong to think that in exercising a discretion one can act in any manner he likes. Learned Judge himself has found that the prayer for extension of time as made by petitioner Makramulla is quite reasonable and justified. If he thinks that the prayer for extension is reasonable then it was clearly his duty to interfere for, an executive authority which exercised his dis cretion in a matter subjects itself to judicial scrutiny regarding 1 inter alia reasonableness and the Court is empowered to set aside any exercise of a discretion which is unreasonable. The view expressed above finds clear support in a decision of the House of Lords in the case of Roberts v. Hopwood and others (1925 A C 578). In that case power was conferred on a borough council to pay "its servants such wages as the council may think fit." Even in the presence of the expression " the council may think fit," their Lordships held that it was the duty of that council to fix reasonable wages. Dealing with the question of exercising discretion in this behalf Lord Wrenbury observed: " A person in whom is vested a discre tion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so; he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably." We are, therefore, clearly of opinin that the Court of appeal below took an erroneous view of the exercise of discretionary power of an executive authority. The learned Judge omitted to notice that the Additional Deputy Com missioner set over the two successive applications for a long time and did not pass any order whatsoever and, on the other hand, he held auction to the prejudice of the petitioner. This withholding of making an order when it was clearly his duty to dispose of these two applications, is indeed a failure to discharge a duty cast upon him. If he would have rejected the applications he would be required to assign reason for such rejection but by adopting the method of implied rejection, he has avoided the requirement of indication reasons is indicative of its being arbitrary. The learned Judge's failure to notice these salient features resulted in the dismissal of the appeal. He fell into another error when he said that the lease for the year 1374 had expired. He passed the order about two and half months before the expiry of the year 1374 B. S. For the reasons stated above we are of opinion that there is a prima facie case and the Courts below ought to have granted injunction in the matter pending the disposal of the suit. The balance of convenience is also obviously in favour of the petitioner who, having been in possession it is urged, reared fishes to catch the same in the third year. In the result the rule is made absolute with costs and the impugned orders are set aside and the petitioner is granted ad interim injunction which will remain in force till 31st Chaitra 1374 B. S. the date up to which he prayed for extension of the lease. Before we part with this matter we must record under taking given by Mr. A. W. Chowdhury, learned Advocate for the petitioner, that his client Makaramulla is ready and willing to pay rent for the year 1374 B. S. and that he has been in fact, pressing the Additional Deputy Commissioner (Revenue) for receiving the rent for the year 1374 B. S. A. H. KHAN, J.‑I agree. Rule made absolute.