P L D 1963 Dacca 760 (PLP)

MURSHED, J.‑The petitioners, Hazrat Ali, Abbas Dhali, Syed Emamul Hossain and Umar Ali along with some others claim to be the owners in possession of a cattle market at Jhikargacha, popularly known as the Jhikargacha Gohata. The said Hat which is held once a week is situated in plots Nos. 330, 321 and 321 appertaining to khatians Nos. 842, 144 and 938, respectively, of mouza Purandarpur within Police‑Station Jhikargacha in the District of Jessore. The petitioners have stated that they are not rent‑receivers within the meaning of the East Bengal State Acquisition and Tenancy Act, 1950, (hereinafter called the Act). In the course of revisional settlement in pur suance of the Act the said plots upon which the above‑mentioned Hat is situated were recorded in the names of respondents Nos. 1 and

2. Thereupon the petitioner filed an objection petition which was allowed by the relevant authority and their names were substituted in the settlement record in place of the names of respondents Nos. 1 and

2. As against the order which allowed the petitioners objection, respondents Nos. 1 and 2 preferred an appeal which was heard and disposed by respondent No. 3, Mr. S. M. Rehman, Assistant Settlement Officer and Survey Sub- Divisional Officer, Sadar, Jessore. In the said appeal the petitioners as well as a number of other persons were made respondents. At present we are only concerned with the petitioner. The said respondent No. 3, the Appellate Authority under the Act, dis posed of the appeal and in the course of the order he has observed as follows: --‑ "Regarding the issue as to whether the respondents are rent -receivers or not the matter has already been adjudicated in the aforesaid title suit. In view of the decision of the Civil Court I have nothing to say in this. The appellant also does not prove this point never produced any paper to show that the respondents are rent receivers. The next point is whether the disputed hat is liable to be acquired under E. B. S. A. & T. Act or not. On this point the appellant refer to Ordi nance XII of 1960, and points out that the provisions of subsection 2 (a) of section 20 of E. B. S. A. & T. Act as added by the above Ordinance, which read as: "Notwithstanding anything contained in any other law for the time being in force or any instrument or in any judgment or decree or order of any Court lands of the classes referred to in the clauses (a) and (b) of subsection (2) do not include and shall be deemed never to have included (i) any land or building in a hat or bazar (ii) any fishery etc." have superseded the judgment of the above‑mentioned title suit about the non‑acquirability of the disputed hat which was passed before the promulgation of Ordinance XII of 1960. The law on this point is very clear. The respondents also concede. I, therefore, agree with the appellant on this point and find that the disputed hat land is not retainable by the respondents and is liable to be acquired under section 20(2a) of the E. B. S. A. & T. Act. I, therefore, allow the appeal on this point and order that the disputed land be recorded in the name of the appellant."

2. We need not set out the various other averments in the petition as well as the statements in the affidavit‑in‑opposition which was filed on behalf of the respondents.

3. At the hearing of the rule nisi obtained by petitioners against the respondents calling upon them to show cause why the impugned order, namely, the order passed by the respondent No. 31 on the 17th of September 1961, in Appeal Case No. 27 of 1961, should not be quashed, the simple point raised before us on behalf of the petitioner is that, on a perusal of the order mentioned above, it would be apparent that there is an error patent on the face: of the record and that such error is against judicial form and procedure and has resulted in a miscarriage of justice. While we are con scious of the fact that this Court, in exercising jurisdiction to issue writs of certiorari, does not sit either as a Court of appeal or as a Court of revision, we think the impugned order is liable to be quashed by way of such writ on the ground pressed before us on behalf of the petitioners. It will be seen that respondent No. 3 has recorded a finding in favour of the petitioners and others to the effect that they are not rent‑receivers. Upon such a finding the only course left to the Appellate Authority was to dismiss the appeal. But, it appears, that respondent No. 3 imported a com pletely irrelevant law and applied the same to the finding arrived at by him, namely, Ordinance XII of 1960, which has no manner of application in respect of properties of persons who are not rent‑receivers. It is not disputed before us that the Act as well as the aforesaid Ordinance only apply in respect of acquisition of lands of persons who are rent‑receivers. These enactments do not apply to interest in land of persons who are not rent‑receivers. There is, therefore, no escape from the conclusion that, upon a mere perusal of the order passed by the respondent No. 3, the grave error committed by the said respon dent No. 3 becomes apparent. Admittedly respondent No. 3 was exercising a judicial or quasi judicial function and it is against the forms of judicial processes and principles of natural justice that such an issue as raised before respondent No. 3 should be decided with reference to a law which has no manner of applica tion to the case.

4. It has, however, been argued on behalf of the respondents on a reference to a number of khatians, which have been set out in the affidavit‑in‑opposition, that the petitioners are, in fact rent‑receivers and, we were, therefore, asked not to issue any writ of certiorari in favour of the petitioners when, upon a considera tion of all material facts placed on behalf of the respondents, the petitioners will, have to be held as rent‑receivers. The short answer to this point is that the petitioners have completely traversed the case made out by the respondents in this behalf. They have explained away the khatians upon which the respond ents rely. We cannot, on these affidavits, hold affirmatively that the petitioners are, in fact rent‑receivers. It also appears that before the respondent No. 3 nothing was produced or shown on behalf of the respondent. Province of East Pakistan which could establish that the petitioners were rent‑receivers:

5. In these circumstances, for reasons which we have already stated above, the petitioners are entitled to the relief sought for.

6. We, therefore, make the rule absolute and the impugned order of the respondent No. 3 passed on the 17th of September 1961, in Appeal Case No. 27 of 1961, is hereby quashed, so far as the said order affects the petitioners before us. The petitioners are entitled to their costs of this petition, which we assess at seven gold mohurs. SALAHUDDIN AHMED, J.‑

I agree. S. B./A. H. Rule made absolute.