P L D 1962 Dacca 494 (PLP)

MURSHED, J.‑The petitioner, Gokul Chandra Roy, is an Ex‑Zemindar and Rent‑Receiver in the Province of East Pakistan. He has stated that by a Notification published in April 1956, all the rent‑receiving interests of the petitioner in. his Zemindari, except the retainable khas lands, including a homestead, to the extent of 100 bighas allowable under the relevant law, stood acquired . by the Provincial Government. The petitioner further alleges that he has a Khamarbari and a garden situated at Gola kandail within Mouza No. 148 under P. S. Rupganj in the district of Dacca. The said Khamarbari was used as quarters for the petitioner's officers and labourers and also as a garden house in which the petitioner had all along kept his furniture and various other materials. In September 1961, it was proposed that the said Khamarbari would be requisitioned by the respondents for the purpose of setting up a Government Seed Store. Thereupon the petitioner submitted a representation to the authorities against such requisition or acquisition and the representation has been marked as Annexure A to the further affidavit filed on behalf of the petitioner. In answer to the same the petitioner received a reply from the Additional Deputy Commissioner, Dacca, to the effect that the site selected for construction of a Seed Store in the aforesaid plot had been abandoned. Sometime about the 2nd of October 1961, the respondents took forcible possession of the said property and illegally made over the same to Golakandail Union, namely, respondent No.

3. A copy of the order by which such possession was made over to respondent No. 3 has also been appended to the petition and marked as Annexure B, which is a letter addressed by the Sub‑Divisional Officer, Narayanganj, to respondent No. 3, in which the said respondent was allowed to take over possession of the building and land of the petitioner, describing the same as Katchery. The respondent, however, allowed the petitioner to be in possession of one room in the aforesaid premises. Thereupon the petitioner made a representa tion to respondent No. 1, the Sub‑Divisional Officer, Narayanganj, against the high‑handed action mentioned above. A copy of the said representation has also been filed along with the peti tioner's application and marked as Annexure C. But the peti tioner did not get any relief thereunder. Thereupon the present Rule was issued by this Court on his application calling upon the respondents to show cause as to why they should not be directed to recall or rescind the impugned order passed by Memo. No. 5587/BD‑28/61 dated the 2nd of October 1961. On behalf of the respondents an affidavit‑in‑opposition has been sworn by one Mr. M. Ahmad Extra Assistant Commissioner, Narayanganj, in which the averments of the petitioner have been generally traversed. The respondents have not been able to con trovert some material allegations and it appears that the case of the respondents is, that, what has been described as a Khamarbari and a garden house by the petitioner is, in fact, a Katchery and as such it stood acquired by the said Notification passed in April 1956. The respondents have not denied the averments of the petitioner to the effect that the Provincial Government has, at no point of time, notified that the alleged Katchery was acquired by it. They have merely reiterated their stand on the said Notification. At the hearing of the Rule Mr. Asrarul Hussain learned counsel for the petitioner, urged that the premises and land cover ed by the impugned memorandum constitute a Khamarbari and a garden and not a Katchery. The respondents, however, claim that the same is a Katchery. Upon this the learned Advocate for the respondents has argued that inasmuch as a disputed ques tion of fact has arisen in this petition, the petitioner is not entitled to the relief prayed for by him. The so‑called disputed question of fact raised on behalf of the respondents does not appear to us to have been done in good faith. In the affidavit‑in‑opposition filed by the respondents in this Court they have stated various undisputed facts, which will lend corroboration to the petitioner's case that the premises in question is not a Katchery. Further more, there are circumstances, which will show that the respondents have not, until the impugned memorandum was issued by the respondent No. 1 been ever in possession of the land and the premises in question. If the said premises had been a Katchery, which the Provincial Government had acquired by the Notification of April 1956, and if the Provincial Government had been in possession of the premises in question, it would be curious that the petitioner should have continued to pay union rates in respect of the same. . Furthermore, if the petitioner had not been in possession of the same one would expect that no union rates would have been levied upon him. We have no reason to reject the petitioner's statement that he has been all along paying union rates as alleged by him. It will be next seen that sometime prior to the date of the impugned memorandum there has been a representation made by the petitioner against the acquisition of the said premises for the purpose of erecting a Seed Store. The said representation which, as we have seen above, has been marked Annexure B to the peti tion, categorically states that the property should not be acquired by the respondents for the said purpose. The petitioner pointed out that it was not a suitable place to set up a Seed Store. In the reply, which the petitioner had obtained from the relevant authority, it was not stated that the land did not belong to the petitioner and that it was a Government‑acquired land. The reply that the petitioner had received to such representation was that the scheme had been abandoned. Furthermore, it will appear that, shortly before taking posses sion 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 a Khamarbari and a garden. The circumstances mentioned above tend to corroborate the statements 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 respon dents themselves, come in the absence of any decision by Govern ment to acquire the same, within the definition of `retainable khas lands' under section 20 (2) (a) of the East Bengal State Acquisi tion 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 Kutchery for the collection of rents of any estate, Taluk or tenure and may be decided to be acquired by the Provincial Government; " It will be seen that unless the Provincial Government expressly decides to acquire a Katchery and publishes such a decision, a Katchery will also come within the category of `retainable khas lands'. We fail to see how‑ the respondents can claim to have automatically acquired the property in question under a general notification of April 1956. 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 land; 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 provisions 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 subsection (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 Govern ment in 1956, when, it is claimed that it has been so acquired, nor did the Provincial Government pretended to acquire it under the aforesaid ‑notification of April 1956. 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 belong ing 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. K. B. A. Rule made absolute.