1968 SCMR 237 (PLP)

HAMOODUR RAHMAN, J.-This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of East Pakistan dismissing an application under Article 98 of the Constitution, which was filed to have orders passed by the Joint Deputy Commissioner and Additional Deputy Commissioner (Revenue), Dacca, on the 20th October 1951, and the 25th of July, 1962, respectively, asking the appellant to vacate the khas lands comprised in Plot No. 19 of Mauza Shahr Dacca, known as Segunbaghicha, P. S. Ramna, Dacca, under section 5 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, declared null and void and having been passed without lawful authority. The appellant claims that between the years 1952 and 1953 he and his wife purchased the raiyati interests of Khaleque Nawaz and others in C. S. Plots Nos. 16 and 17 which were under the Bhawal Raj Court of Wards Estate and obtained possession of the lands according to, the boundaries set out in the deeds of conveyance. There was one pucca structure there which had been constructed by the vendors but the appellant and his wife constructed further structures thereon for the purposes of their own residence as also for the purpose of establishing a chemical factory and an office of textile concern, In 1954, however, the then Additional District Magistrate, Dacca, called upon them under section 5 of the above-mentioned Act to vacate C. S. Plot No. 19 alleging that their structures had encroached thereupon. The appellant and his wife maintained that they had not encroached on C. S. Plot No. 19, but in order to show their bona fides offered to have the boundaries of the plots purchased by them and of C. S. Plot No. 19 properly surveyed and demarcated, as also undertook to remove their structures, if any was found after such demarcation to fall outside their purchased lands. His application was, however, summarily rejected. He thereupon on the 29th November 1954, submitted a further petition to the Board of Revenue, Government of East Pakistan, making the same offer, but again no order was passed thereon, although the Additional District Magistrate had recommended his case for sympathetic consideration. Nevertheless, no further action was taken by the Addittional District Magistrate to enforce the order of eviction until the year 1960 when at the instance of the manager of the Bhawal Raj Court of Wards Estate a fresh enquiry was started. The Revenue Deputy Collector, who was deputed to make this enquiry sub mitted a report on the 8th of August 1960 (Annexure A, page 1, Part_II) to thefollowing effect :- "8.8.60, The plot in question is not a khas land of the Government. It is khas land of the Kumar of Bhawal Estate. Moreover, by virtue of his continued possession for more than 12 years, he has acquired the right of settled raiyat. There is no scope to proceed against him under Act X. The Kumar may take resort to the Civil Court." On this report the Collector on the 2nd of March 1961, made the following order:- "2-3-61. Seen the records and the application. It would appear from the papers, that the applicants might have acquired tenancy rights by virtue of continuance possession. So Act X may not apply in this case and the appropriate Court seems to be the Civil Court. This may now be submitted to the Divisional Commissioner, Dacca." Notwithstanding these reports the appellant was again asked on 17-6.61, by an order issued under the signature of the Joint Deputy Commissioner, Dacca, to vacate Plots Nos. 19 and 20 by 30-6.61. Subsequently, however, on 20-10-61 another order was served upon him to vacate Plot No. 19 only within 7 days. He preferred an appeal against this to the Divisional Commissioner but failed to acheive any favourable result. The last order was then served upon him on 25-7-62 asking him to vacate the land by 30-7-62. Having failed to get justice from the authorities the appellant finally invoked the jurisdiction of the High Court under Article 98 of the Constitution. _This was opposed by the Deputy Commissioner, Dacca, but he himself did not file any affidavit-in opposition. The affidavit was filed by Muhammad Lutful Kader, Manager, Bhawal Raj Court of Wards Estate. He denied that the appellant was a tenant under the Estate in respect of either or any of the Plots Nos. 16 or 17 or 18 or

19. According to him, Plot No. 19 was separated from Plots Nos. 16 and 17 by a tank which was Plot No. 18 and, as such, even assuming that the appellant had purchased Plots Nos. 16 and 17 there could be no possibility of his being also put in possession, by any kind of a mistake, of Plots Nos. 18 and

19. He further asserted that ever since he came to know of the encroachments he had been making efforts to evict the appellant who had surreptitiously and illegally encroached upon it without any semblance of right or title. The appellant, according to him, was well aware of his true legal position and had indeed, ever since it was found out after the survey made at his request that his structures fell on Plot No. 19, been endeavouring to obtain settlement of the same from the Estate. Indeed, these requests for fresh settlements were, it is said, made upon clear admissions of the illegality of his possession over the plots in dispute, It was also denied by the Manager of the Court of Wards Estate that the appellant had acquired any pres criptive title in these Plots, as 12 years had not elapsed since the last order of eviction in 1962. In any event, it was contended that the petition was liable to be dismissed, on the ground of laches, as it had been filed only on 8-4-63 to challenge the final order passed on 25-7-62. Plot No. 19, it may be mentioned, was claimed by the Estate to be a portion of its khas lands which lad not been settled upon any tenant and had not been acquired by Government under the East Bengal State Acquisition and Tenancy Act. It is unnecessary in this case to go into the question of the validity of the appellant's title in Plots Nos. 16 and 17, but so far as Plot No. 19 is concerned, it appears that the appellant claimed that there was no demarcation line or boundary pillar to indicate the exact limits of Plot No. 19 and that the same had all along been in the possession of his vendors Khaleque Nawaz and others as raiyats under the Bhawal Raj Estate. When they made over possession of the plots purchased by the appellant they also made over possession of Plot No. 19 to him. Thus, according to the appellant, C. S. Plot No. 19 was not a khas land of the Estate. According to him even if his vendors had not good title to Plot No. 19 he himself, in any event, had acquired such title by adverse possession of this plot for the last 16 years. The appellant further denied that he had ever admitted the position taken up by the Court of Wards in any proceeding before any official or the Board of Revenue. In fact, whatever he had done was for the sake of peace as he did not wish to enter into unnecessary litigation. He finally contended that action under section 5 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, was wholly improper in the facts of the present case, for, it would appear from the reports submitted by the Revenue Deputy Collector and the Deputy Commis sioner, Dacca, that there was, in any event, a bona fide dispute as to the right, title and interest of the appellant in this plot. Before the High Court of East Pakistan it was also argued that the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, could not be invoked for getting possession of land under the Court of Wards, for, lands in possession of the Board of Revenue under the Court of Wards Act were not lands in possession of Government. The High Court, however, repelled this contention, as, in its view, lands under the management and control of the Provincial Government were lands to which the provisions of the said Act were applicable, and possession of the Board of the Revenue was by reason of the provi sion of section 69 of the Court of Wards Act possession of Government, as the Court of Wards was itself thereunder to be guided by the orders and instructions of the Provincial Government. The High Court was also of the opinion that every claim of right could not necessarily be considered to be a bona fide claim of right, for, a mere assertion of a right, "which on the face of it appears to have no bona fide basis, cannot avoid the provisions of Act X of 1953." In this view of the matter since the settlement records filed showed that C. S. Plot No. 19 was in khas possessions of the Bhawal Court of Wards Estate and the appellant himself had at some stage prayed for survey and demarcation of its boundary and undertaken to remove the unauthorised constructions from the said plot as also asked for a settlement of the part of Plot No. 19, whereupon his structures may be found to have encroached, he must be deemed to have admitted the Government title to Plot No.

19. His claim to it could not, therefore, in any event, be considered to be bona fide or to raise any bona fide dispute as to title. No finding, however, was given on the question as to whether the appellant had acquired any prescriptive right to this C. S. Plot No.

19. The writ petition was, however, dismissed with costs. Leave was granted in this case to consider whether the provisions of the Government Lands and Buildings (Recovery of Possession) Act, 1953, could be invoked in the facts and circum- A stances of this case, particularly, with respect to a land which was admittedly in the possession of the Court of Wards under the Court of Wards Act. Learned counsel appearing in support of this appeal has drawn our attention to the definition of "land" given in section 2(b) of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, which is in these terms:- "Land means land which vests in, or is in the possession or under the management and control of, the Provincial Government." Now under the Court of Wards Act, 1879, it is provided by section 5 that "the Board of Revenue shall be the Court of Wards for the territories to which this Act extends". But under the scheme of this Act power is given to the Court of Wards "to take charge of all the property of every such proprietor or joint-proprietor within its jurisdic tion" who is under section 6 of the Act "disqualified to manage" his own property. Section 14 sets out the powers of the Court which include the power to "do all such things requisite for the proper care and management of property of which it may take or reta in charge under this Act, or which may be placed under its charge by order of a competent Civil Court, as the proprietor of any such property." The power of management, according to Section 18, extends to the giving of leases or farms'of the whole or part of any property, making of mortgages, sales op transfers by away of gift and "the doing of all such other acts as it may judge to be most for the benefit of the property and the advantage of the ward". Section 69 provides that "in the exercise of the powers and in the discharge of the duties conferred and imposed respectively on the Court by this Act the Court shall be guided by such orders and instructions as it may from time to time receive from the Provincial Government." The question now is whether under these provisions the land taken charge of by the Court of Wards and placed under its care and management becomes land in the management and control of the Provincial Government? The High Court has taken the view that because under the provisions of section 69 of the Court of Wards Act the Court of Wards itself is to be guided by orders and instructions from time to time issued by the Provincial Government this, in effect, vests control and management in the Government itself. It is difficult, however, to accept this reasoning, for it seems that the scheme of the Court of Wards Act is'to place the Board of Revenue in the same posittion as a receiver or a guardian appointed by a Court. 1 he Board of Revenue has the same powers as the proprietor. It cannot, therefore, in these circum-B stances, be regarded as functioning as a department of the Provincial Government but rather as a statutory authority discharging the functions imposed upon it by the Court of Wards Act subject to the limitations therein contained. he mere fact that it may be bound to be guided by general instructions from time to time issued by the Provincial Government would not, in OW view, transform the Court into a department of Government and make the possesssion or charge taken by it of a property of a disqualified proprietor the possession of the Government or place such land in the control and management of the Government within the meaning of the definition given in section 2(b) of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953. 1 he charge taken by the Court of Wards is no better than a form of custodia legis which does not divest the disqualified proprietor of his right, title and interest in the, land nor gives to the Court of Wards any higher right than what the Proprietor himself would have. Thus if the proprietor himself could not have invoked the provisions of the Government Lands and Buildings (Recovery of Possession) Act, 1953, the Court of Wards Cannot, in our opinion, do so. Apart from this, we are not satisfied that in the facts of the present case it can be said that there was no bana fide dispute as to title. The High Court, it appears, has overlooked that the alleged admissions said to have been made by the lawyers of the appellant before the Deputy Commissioner, the Divisional Commissoner and the Board of Revenue were actually contro verted by the appellant in his affidavit in reply. The High Court has also not taken into consideration the fact that the appellant claimed to have acquired title by prescription over this Plot No. 19 by reason of his own possession and the possession of his predecessor-in-interest, namely, Khaleque Newaz. The appellant's case throughout was that the lands of which. he had obtained possession were actually in the possession of his vendor Khaleque Newaz and the latter made over possession of the same to him. No notice was also taken by the High Court of the reports of the Revenue Deputy Commissioner and the Deputy Commissioner, Dacca, which were made on the 8th of August 1960, and the 2nd of March 1961, respectively; in which these officials had also expressed the view that the question as to whether the appellant had acquired any tenancy right by virtue of his continued possession on this plot was not free from doubt.. The High Court was also wrong in taking the view that there was any categorical assertion on behalf of the Deputy Commis sioner that the appellant had admitted the title of the Bhawal Court of Wards Estate. The Deputy Commissioner himself had, of course, filed no affidavit but the affidavit filed by Lutful Kader, the Manager of the Wards Estate, had merely given the latter's opinion regarding the action of the appellant's lawyers. It cannot, therefore, be said that the averments made in this affidavit were also the averments of the Deputy Commissioner, or that they were, in any way, categorical. There was also a dispute as to the boundaries of the plots. The appellant himself had asked for a survey and such a servey was, in fact, it now appears, made but no report of the surveyor has been filed to show as to what exactly was found by him. We have nothing on the record, apart from the bald statement of Lutful Kader that the survey showed that the structures put up by the appellant had encroached on Plot No.

19. These are however, in our view, questions which need more detailed eximination by the ordinary processess of the law and cannot be disposed of by the short-handed method of recovery of possession proviaed for in the Government Lands and Buildings (Recovery of Possession) Act, 1953. In his state of the facts it cannot, in our opinion, be said that it is clear that Plot No. 19 has in fact, been encroached upon or that the appellant has acquired no prescriptive right in the plot in dispute. It has now been laid down in more than one case by this Court that the summary procedure of ejectment available under section '5 of the above-mentioned Act cannot be resorted to in any case where there is a bona fide dispute regarding the title to the land. This view was first propounded in the case of Province of East Pakistan v. Syed Hatem Ali and others (Civil Appeal No. 32-D of 1960) decided on the 28th of April 1960, where the view of the High Court in the case Of Syed Hatem and others v. The Province of East Pakistan (12 D L R 805) was affirmed. Again more recently in the case of Safia Khatun v. The Secretary, Revenue Department, Government of East Pakistan and others, decided on the 1st of November 1957, the same view was reiterated. Learned counsel for the resdondents has not been able to place before us any decision to the contrary or to advance, any cogent reason as to why we should depart from this view, nor are we in a position to accept that the reasons given by the High Court for holding that there is no bona fide dispute as to title in the present case are convincing. In our view, the material on the record clearly raises a bona fide dispute as to title and in the face of such a dispute the summary method of eviction provided for by the East Bengal Government Lands and Buildings (Recovery of Possession) Act 1953, should not have been resorted to. This appeal is, accordingly, allowed, the judgment and order of the High Court, are set aside and the orders of the Joint Deputy Commissioner. and the Additional Deputy Commissioner, Dacca, issued on the 20th of October 1961, and the 25th of July 1967, respectively, are hereby declared to have been made without lawful authority and are set aside. The Government may, if it still wishes to pursue the matter, proceed in accordance with law to take appropriate action for the ejectment of the appellant from the land in dispute. The appellant will also be entitled to his costs in this appeal. Appeal accepted.