P L D 1967 Dacca 410 (PLP)

SIDDIKY, J.‑These five petitions under Article 98 of the Constitution of the Islamic Republic of Pakistan were all heard together by us and inasmuch as the facts in respect of these are substantially the same and the points involved are identical, this judgment will dispose of all the said applications. In all these five petitions notices under section 5 (1) of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 (East Bengal Act X of 1953) served on the petitioners have been challenged by them. In Petition No. 242/64 petitioner Syed Abdul Kuddus has claimed to be the owner in possession of parts of C. S. Plots Nos. 144, 149, 150 and 151 at Mouza Dhanmandi, J. L. No. 251, measuring about 17 decimals of lands. In Petition No. 243/64 petitioner Jobeda Khatun claims to be the owner in possession of parts of C. S. Plot No. 151 at Mouza Dhanmandi, J. L. No. 251, measuring about 8 decimals of land. In Petition No. 244/64 petitioner Abul Bashar claims to be the owner in possession of parts of C. S. Plots Nos. 144, 149, 150 and 151 at Mouza Dhanmandi, J. L. No. 251, measuring about 17 decimals of land. In Petition No. 245/64 petitioner Abdul Razzaque alias Abdul Razzaque Matbar has claimed to be the owner in possession of part of C. S. Plots No. 151 at Mouza Dhanmandi, J. L. No 251, measuring about 3 bighas of land. In Petition No. 246/64 peti tioner Abdul Latif claims to be the owner in possession of part of C. S. Plot No. 151 at Mauza Dhanmandi, J. L. No. 251, measuring about 4 decimals of lands. It is the case of the petitioners that in their own right as owners they have been in possession of the respective lands mentioned above and have been residing thereon by constructing huts for a long time openly and adversely against all others without any obstruction from any quarters whatsoever on pay ment of rents to the Government and also by paying Municipal taxes and Union taxes regularly; and that during the last settle ment survey operations the lands claimed by the petitioners were recorded in their names in the settlement records. The petitioners' further case is that these plots of lands as claimed by them were requisitioned by the Government in 1948‑49 for constructions of Staff quarters for its 3rd and 4th class employees and thereafter the Government acquired the said lands on 9‑12‑52 by notification in the Dacca Gazette dated 8‑1‑53, but no compensation has yet been paid for the same nor has possession been taken of the said lands by the Government; that the petitioners, who have been owning and possessing these lands and living thereon by construct ing huts, have not been disturbed in their peaceful possession uptil now; and that of the acquired lands, only the vacant portions were taken possession of by the Government but the lands of the petitioners and 28 others were left untouched. It is, therefore, contended by the petitioners that the aforesaid orders of requisition and notifications for requisition and/or acquisition were never perfected or given effect to by taking possession of the lands in question or by making any payment as compensation to the occupiers thereof. It is stated in the petitions that after this acquisition of the lands, the petitioners along with other affected persons moved the Government and Mr. G. A. Madani, the then Commissioner, Housing and Settlement, and Chairman of Dacca Improvement Trust for preparation of a list of owners in possession having structures on their lands ; that a list of 29 persons were prepared after local inquiry and they were assured that they would not be disturbed in their peaceful possession of the lands in question until alternative accommodations had been given to them in order to rehabilitate them; and that Mr. Madani on 29‑10‑59 passed an order on the said list to the effect that these 29 persons were to be accommodated in Mirpur but no action has been taken uptil now by the Government to give effect to the said order of Mr. G. A. Madani. It is further stated in the petitions that the Communications and Buildings department of the Government of East Pakistan also asked the petitioners to apply for lands whereupon the petitioners applied for the same and their case was forwarded to respondent No. 2 (Executive Engineer, Development (Building) Division II) with recommendations after due inquiry by the Kanungo, Land Acquisition Collector, and Sub‑Divisional Officer, Development Division II, Dacca, but no action has been taken uptil now on those recommendations; that whenever the petitioners approached the department concerned, they were told that they would be given alternative accommodation before they were asked to vacate; and that on 10‑2‑64 the petitioners were also informed that they were to apply in the prescribed pro forma and their cases were to be considered by the Allotment Committee. It is the further case of the petitioners that on 10‑12‑58, 11‑6‑62 and 10‑4‑63 notices under section 5 (1) of East Bengal Act X of 1953 were served on them and others but, on the claim of alternative accommodations by them, the authorities assured the petitioners verbally that nothing would be done before providing them with alternative accommodations and, therefore, the respondents did not take over possession of the lands in question. It is further stated in the petitions that after the construction of the Staff Quarters which was completed without affecting the lands and houses of the petitioners, the Government have been trying to oust them from their hearth and homes without provid ing for alternative accommodations to them and ultimately on 9‑5‑64 notices under sections 5 and 6 of the East Bengal Act X of 1953 were served upon them to vacate the lands in question by removing the unauthorised structures standing thereon by 14‑5‑

64. On receipt of these notices the petitioners on 10‑5‑64 served notices for demand of justice on the Government but, having received no satisfactory reply, moved this Court and obtained the present Rules. In these Rules the petitioners challenge the notices under sections 5 and 6 of the East Bengal Act X of 1953 on the grounds that the provisions of the said Act have no application to the cases before us and, therefore, according to them, they cannot be asked to vacate the lands in question. They have further contended that the purpose of requisition of these lands was for construction of Staff quarters for 3rd and 4th class Government employees but these quarters having been completed, there is no further requirement of the said lands and that the Government is trying to allot these surplus lands to private individuals which offends against the principles of acquisition for public purposes. The allegations made in these petitions, which are identical, have been denied by the respondents on whose behalf one Mirza Md. Musa Kamal Beg, Executive Engineer, Buildings Develop ment Division 11, Dacca, has filed sworn affidavits. It is asserted in these affidavits‑in‑opposition that the land in question were requisitioned some time in December 1948‑49 and possession thereof was handed over to respondent No. 2 and 2‑3‑49 and thereafter the Government by publishing a notification in the official Gazette, in terms of the East Bengal (Emergency) Requisi tion of Property Act, 1948 (East Bengal Act XIII of 1948), acquire these lands finally on January 8, 1953. It is further stated in the said affidavits‑in‑opposition that after the requisition and acquisi tion of these lands, and possession thereof was taken, by the Government, the petitioners and some other persons illegally came up the said lands and occupied portions of the same which they now claim to be their own and construction structures there on and, therefore, they are "unauthorised occupants" within the meaning of East Bengal Act X of 1953 and, as such, liable to be evicted therefrom. It has also been stated in the affidavits‑in- opposition filed on behalf of the respondents that although the petitioners are claiming to be the owners in possession of the lands in question, yet they have not uptil now been able to produce any scrap of paper in support of their title to these lands. It is further asserted in the affidavits‑in‑opposition that Staff quarters have been built on some parts of the lands are parts and parcels of those Staff quarters; and that, on inquiry from the office of the Land Acquisition Deputy Commissioner, Dacca, it is found that compensations were assessed in favour of the true owners of the lands (not the petitioners) but those compensations have not yet been taken by the said owners. It is stoutly denied by the respondents that any award has been made for compensation in the name of any of the petitioners before us in respect of the lands they claim. It is further asserted on behalf of the respondents that the unauthorised structures that have been constructed by the petitioners are within the compound of the Staff quarters. With regard to the assurance said to have been given by Mr. G. A. Madani, the then Commissioner, Housing and Settle ment, and Chairman of Dacca Improvement Trust, it is stated by the respondents in paragraph 5 of the affidavits‑in‑opposition that the Assistant Commissioner, Works (Housing and Planning), informed respondent 2 by his letter, dated 6‑6‑64, that the order dated 29‑10‑59 alleged to have been made by Mr. Madani was not received in his office. It is also asserted on behalf of the respondents that no assurance was given at any time to the petitioners or others by the Government that alternative accommodations would be provided to them. The respon dents have emphatically denied the allegation that the lands in the compound of the Staff quarters, portions of which the petitioners claim to be the owners in possession, have been or are being allotted to private individuals and have put the petitioner to strict proof of the said allegation. In reply to the affidavits‑in‑opposition, affidavits were filed by the petitioners. Although in these affidavits‑in‑reply peti tioners have re‑asserted their claim of possessing the lands in question as owners thereof for a long time, yet they have neither disclosed the exact date of their coming into possession of the same nor have they filed any papers in support of their ownership of these lands. The petitioners have reiterated their assertions that the requisition and acquisition proceedings taken up in 1948‑49 and 1948‑53 respectively have not been perfected on the grounds already stated in their petitions. Except denying the statements of the respondents and reiterating their own assertions made in their petitions, the petitioners have not been able to incorporate any material thing in the affidavits‑in‑reply of which serious notice can be taken. Upon these facts Mr. Mirza Gholam Hafez, the learned Advocate for the petitioners, has raised the following points, namely, that on the basis of the settlement records there being a bona fide claim of right put forward by the petitioners, the provisions of East Bengal Act X of 1953 are not applicable to these cases; that the lands in question having not been taken possession of by the Government on proper acquisition and the petitioners having been in occupation of the same for a long time, they cannot be termed as "unauthorised occupants" within the meaning of section 2 (c) of East Bengal Act X of 1953; that the impugned order made under the aforesaid Act is hit by right No. 14 of the fundamental rights guaranteed by the Constitution of the Islamic Republic of Pakistan to the citizens of the State; that respondent No. 2 had no power to issue the impugned order under section 9 of the said Act; and that the building for Staff quarters having been completed, there is no need of the Government to have these excess lands for the said purpose. As regards the first point raised by the learned Advocate, we find nothing on record to show that the petitioners are rightful owners of the lands in question. Apart from this, the petitioners themselves have admitted that the said lands were requisitioned in 1948‑49 and acquired by the Provincial Government in 1952

53. All that they want to say now is that the acquisition was not perfected for compensation having not been paid to the owners of the lands. The perfection of requisition and acquisi tion of properties by the Government is not dependent upon, payment of compensation as far as possession thereof is concerned With the publication of the requisition and acquisition notices in the Gazette and taking possession of the properties under East Bengal Act X of 1953 by the requisitioning authority, the lands or properties so requisitioned or acquired become vested in the Provincial Government. Compensation is paid in terms of the law either at or during the requisition and acquisition of pro perties or thereafter but the vesting of the properties in the Government is not contingent on payment or non‑payment of the compensation. In the present case the lands in question along with other lands were requisitioned in 1948‑49 and acquired in 1952‑53 by the Government by publishing notices to that effect in the official Gazette and, as such, the lands vested in the Provincial Government with the publication of those notices and completion of the legal formalities at that time. The petitioners cannot now be allowed to question the validity or otherwise of the requisition and acquisition proceed ings initiated by the Government in respect of these lands. Mr. Golam Hafez, the learned Advocate for the petitioners, too, has frankly submitted that he is not in a position to contend that the lands in question have not been legally requisitioned or acquired by the Government. All that he has attempted to argue is that the petitioners, who claim to be on the lands for a long time have not been disturbed in their possession, it may be said that although the Government requisitioned and acquired these lands, possession of the lands of these petitioners was not taken of by the Government at that time and, as such, they cannot now be ousted under East Bengal Act X of 1953. The learned Advocate, however, has not been able to place before us anything to show the time from which the petitioners are owing or possessing these lands; on the contrary, the positive assertions of the respondents are that the petitioners came upon the lands after those vested in the Government on requisition and acquisition of the same and possession thereof was taken by the Government. We find no reasons to disbelieve the respondents' assertion that the petitioners came upon these requisitioned lands after the Government had come into possession thereof. The learned Advocate in this connection has referred us to two decisions of this Court reported in 12 D L R 804 and P L D 1964 Dacca

142. In the case reported in Syed Hatem All and others v. Province of East Pakistan and others (12 D L R 804) the facts were that the petitioners in that case claimed to be the tenants by virtue of their settle ment from the Zamindars whereas the Government claimed the lands to be in its khas. In those circumstances a Division Bench of this Court held that here there was a bona fide claim of right by the petitioners, in the facts of that case the application of East Bengal Act X of 1953 for ousting the petitioners from the lands so claimed by them under settlement from a third party was not proper. We find that, in the facts of the present cases, the decision in the aforesaid case is not at all applicable because here in these petitioners it is not the question of the petitioners making a bona fide claim of right on the basis of their settlement from a third party as tenants. Above all, the present petitioner do not deny the requisition and acquisition of the lands in question by the Government as far back as in 1948‑49 and 1952‑531 respectively. In the case reported in Jhari Sohani and another v. The Province of East Pakistan and another (P L D 1964 Dacca 142) the question for determination was whether some accreted lands in a river bank belonged to a certain Zamindar from whom the petitioners had taken settlement of the same or those were khas lands of the Government. The petitioners were in possession of those accreted lands; whereas the Government attempted to utilise the provisions of East Bengal Act X of 1953 against the petitioners for ousting them from the said lands. In that case it was held by a Division Bench of this Court that where a person's claim of title to the land cannot, on the face of it, be called colourable but it is based bona fide grounds, the provisions of the East Bengal Government Lands and Buildings (Recovery of Possession) Act cannot be applied as against such a person. Again we may say here that the decision in the aforesaid case P L D 1964 Dacca 142 has no manner of application to the facts of the cases before us. In support of his contention Mr. Gholam Hafez has also relied on the case of Md. Hossain and others v. General Manager, E. B. Railway, Chittagong and others (P L D 1961 Dacca 730). But the facts of that case and those before us are again completely different and, as such, we do not think that the decision in the said case has any application to the facts of the cases before us. In that view of the matter, we find no substance in the firstly point raised by the learned Advocate for the petitioners. The next contention urged on behalf of the petitioners that they are not "unauthorised occupants" in terms of section 2(c) of the East Bengal Act X of 1953, also does not seem to us to have any force in it. "Unauthorised occupants" has been defined in section 2(c) of East Bengal Act X of 1953 in 'the following terms:‑ "unauthorised occupant" means a person who is in occupa tion of any land or building or part of a building without having obtained the express permission or authority of the Provincial Government, and, includes‑ (i) a person inducted into any building or part of building by the lessee thereof; and (ii) every member of the lessee's family who remains in occupation of such building or part after the determination of the lease in respect of the same." Once it is established that the land on which a person is sitting belongs to the Government and that he has no express permission or authority from the Provincial Government to be in occupation of that land, he certainly comes within the mischief of the defini tion of "unauthorised occupant" under section 2 (c) of East Bengal Act X of 1953. In the present cases none of the petitioners have been able to lay before us any scrap of paper to show that he was given the permission or authority by the Provincial Government to be on the lands in question even as a licensee; on the contrary, the respondents have emphatically asserted that these petitioners came upon the lands in question after the same vested in the Government on requisition and acquisition and that they have no authority from the Government to be in possession thereof. In that view of the matter, we have no hesitation in holding that the petitioners before us are "unauthorised occupants" of Government lands within the meaning of section 2 (c) of East Bengal Act X of 1953 and are, therefore, liable to be evicted therefrom under the provisions of the said Act. The next point urged by the learned Advocate for the petitioners relates to Right No. 14 of the Fundamental Rights guaranteed by our Constitution. He has argued that since no compensation has yet been paid to the petitioners for the lands (in question) requisitioned and acquired by the Government, the notices issued under East Bengal Act X of 1953 are hit by the provisions of Right No. 14 of the Fundamental Rights guaranteed by the Constitution of Pakistan. Right No. 14 is in the following terms:‑ "14.‑Protection of property rights. (1) No person shall be deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation and specifies the principles on which and the manner in which compensation is to be determined and given. (3) Nothing in this paragraph shall effect the validity of‑‑ (a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life property or public health; or (b) any law relating to the acquisition administration, or disposal of any property which is or is deemed to be evacuee property under any law; or (c) any law providing for the taking over by the state for a limited period of the management of any property for the benefit of its owner; or (d) any law in force immediately before the coming into force of the Constitution (First Amendment) Act, 1963." This Right No. 14 refers to the requisition and acquisition of properties and not to the eviction of unauthorised occupant from Government properties. Even in respect of requisition and acquisition of properties this Right No. 14 does not prohibit the taking possession of any property by the due process of requisi tion and acquisition law,‑only on the ground of compensation having not been paid for such acquisition. What this Right t guarantees is that no person shall be deprived of his property save in accordance with the law and no property shall be com pulsorily acquired or taken possession of except by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles and the manner in which the compensation is to be determined and given. We, therefore, find no substance in the contention of the learned Advocate for the petitioners that Right No. 14 of the Fundamental Rights guaranteed by the Constitution of Pakistan can be invoked in aid of the petitioners who are being asked to vacate the Government lands under East Bengal Act X of 1953. The next point contended by the learned Advocate for the petitioners is that respondent No. 2 (Executive Engineer, Development (Building) Division 11) has no authority under section 9 of East Bengal Act X of 1953 to issue the impugned notices. This contention of the learned Advocate is on the ground that powers to issue notices under the aforesaid Act are vested in the Provincial Government and the Provincial Government may, by order published in the official Gazette, direct that any power or duty which is conferred or imposed by this Act upon the Provincial Government shall be exercised or discharged also by any officer or authority subordinate to it. In the present cases, according to the learned Advocate, no authority has been so delegated under section 9 of East Bengal Act X of 1953 to the Executive Engineer, Development (Building) Division 11, Dacca. Mr. Gholam Hafez has referred us to a Gazette notification of May 14, 1953, which is in the following terms: "Communication, Buildings, and Irrigation (Communication and Building) Department. Buildings Branch. Notification. No. 1920 B‑2nd May 1953.‑In exercise of the power confer red by section 9 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 (East Bengal Act No. X of 1953), the Government is pleased to direct that the powers or duties, which are conferred or imposed by sections 4, 5 and 6 and subsection (2) of section 7 of the said Act upon the Provincial Government with regard to a building or part of a building, shall be exercised or discharged also by the Estate Officer, Dacca or the Executive Engineer (Buildings) concerned in whose jurisdiction the building in question is for the time being. By order of the Governor, S. M. Hasan, Secy." From this notification Mr. Gholam Hafez wanted to argue that this delegation of authority to the Executive Engineer (Buildings) is only with regard to a building and/or part of a building but certainly not with regard to lands, and that in the present case the notices issued being for the purpose of recovery of the lands in question, the said delegation as notified in the Gazette does not empower respondent No. 2 to issue the impugned notices. The learned Advocate appearing for the respondents has not produced before us any other Gazette notification and has also submitted that the notification quoted above is the only notifica tion empowering the Executive Engineer (Buildings) to exercise all powers under East Bengal Act X of 1953. He has further submitted that the wordings of the aforesaid notification do not, in the facts of the present cases, preclude respondent No, 2 from issuing the impugned notices because the said notices refer to lands which are within the compound of the Staff quarters. The impugned notice issued by respondent No. 2 is in the following terms:‑ "Government of East Pakistan Office of the Executive Engineer, C & B., Bov. (Bldg.) Divn. No. 11, Dacca. Memo. No. 1498 (8). Dated 7‑5‑

64. Whereas it is observed that you have without any permission occupied the Government land within the premises of staff qrt. at Cooly Road, Dhanmandi, near about to Road No. 8, D. R. A., Dacca and have constructed unauthorised structures thereon, under section 5 (1) of East Bengal Government Land and Buildings (Recovery of Possession) Act, 1952 (East Bengal Act X of 1953). You are hereby ordered to vacate the land and remove the unauthorised structures by 14th May '64 positively. In case the said land is not vacated within the time fixed for, khas possession of it will be recovered by apply ing sections 5 (2) and 6 of the said Act on the date mentioned above or any subsequent date. Sd./ Illegible. Executive Engineer, Dev. (Bldg.) Divn. No. II, Dacca‑

2. All the notices issued to the different petitioners are in the same terms and, as much, we are not reproducing all of them. The learned Advocate for the State has contended that "building" as defined in clause (a) of section 2 of East Bengal Act X of 1953 includes the land appurtenant thereto. Section 2 (a) of the aforesaid Act runs thus:‑ "In this Act, unless there is anything repugnant in the subject or context, `building' means a building owned by the Provincial Government, and includes the land appurtenant thereto." The impugned notices issued by respondent No. 2 are in respect of the lands which are within the compound of the Staff of the Government and we think, therefore, that the contention of the learned Advocate for the State in this behalf is correct. In that view of the matter, we find no difficulty in holding that respon dent No. 2 is authorised, in terms of the notification published in the Dacca Gazette, dated 14‑5‑53, to issue the impugned notices to the petitioners in respect of the lands in question which have been described in the notices as within the premises of the Staff quarters of the Government at Cooly Road, Dacca, and, as such, appurtenant to the buildings belonging to the Government. The petitioners have not been able to show anything to us by which it could be said that these lands are not within the premise of the Staff quarters and/or are not appurtenant thereto. This contention of the learned Advocate for the petitioners, therefore, fails. The last point argued by the learned Advocate is that the buildings for the Staff quarters having been completed, there is no need for the Government to take these excess lands and, as such, the petitioners should be allowed to continue to possess the said lands. We think that there is no substance in this conten tion of the learned Advocate either. The Government acquired the lands in question for public purpose and have constructed a few Staff quarters thereon leaving some open spaces appurtenant thereto; and it is for the Government alone to decide whether these lands are in excess or not. Once it is held that these lands are appurtenant to the Staff quarters, it cannot be said that these are excess lands. The question as to whether the lands acquired by the Government in 1952‑53 were in excess of the requirements for public purpose is one which cannot be allowed to be agitated in these application by the petitioners. In this connection we may say a few words with regard to certain submissions made by the learned Advocate for the petitioners Mr. Mirza Gholam Hafez has submitted, on the basis of some statement made in the petitions, that the lands in question are not required any further for construction of Staff quarters and that attempt are being made by the Government to allot these lands to private individuals some of them are connected with persons holding high position in State today; and he requested us to call for the Government files and look into the same which, according to the learned Advocate, would substantiate his contention. We, therefore, called upon the State Lawyer to produce before us the Government files relating to these lands and he did produce the files before us. We have gone through the files and we find nothing therein to hold that any attempt was made or is being made by the Government to allot these lands to any private individuals. These lands having once been acquired by the Provincial Government, without any let or hindrance from any quarters, in 1952‑53, it is for the Govern ment to decide as to what they will do with the said lands: Whether they will keep these as open spaces for the benefit of the occupants of the Staff quarters thereon or utilise the same for any other purpose, it is not for this Court to enquire into. We, therefore, find no substance in the contention of the learned Advocate on this point. For the reasons stated above, we find that there is no substance in these applications which, in our opinion, must fail. The Rules are, accordingly, discharged. Since the Government was not vigilant about their own properties and did not take prompt steps to oust these unauthoris ed occupiers from public lands, we do not award any costs against the petitioners. The orders granting ad interim injunction and stay of further proceedings are vacated. A. M. SAYEM, J.‑I agree. K. B. A. Rule discharged.