P L D 1970 Dacca 583 (PLP)

Muhammad Habib Ahmed for Respondent No.

2. Date of hearing: 21st March 1968. ABDUL HAKIM, J.‑This Rule nisi was issued calling upon the respondents to show cause why the impugned notice marked as Annexure `B' to the petition and the proceeding under Act X of 1953 should not be declared to be illegal and of no legal effect. The facts relevant for disposal of the rule are that the respon dent No. 2 Abdul Hannan Choudhry was granted settlement of Government khan land in Plot No. 7186 of Mahal Kalighat, Town Sylhet; but before finalisation of the settlement proceeding and making over possession of the land, the respondent No. 2 entered into an agreement on 16‑6‑1965 with the petitioner and three other persons, namely, (1) Md. Siddique, (2) Abdul Bashar and (3) Abdul Hamid to transfer his interest in the said land after the lease deed is finally executed by the Government. The consideration money for the transfer was fixed at Rs. 11,000 out of which Rs. 9,000 was paid in advance. It was also stipulated in the agreement that the petitioner and 3 others would be allowed to take possession of the said land soon after the execution of the lease document. The lease deed was finally executed and registered on 4‑9‑1967. The petitioner and his co -sharers thereafter entered into the land on 7‑10‑1967 more than a month after execution of the lease deed and constructed a semi permanent structure thereon and had been carrying on business there since then. In the meantime, the respondent No. 2 behind the back of the petitioner, lodged a complaint to the Additional Deputy Commissioner (Revenue, Sylhet on the same date, i.e., on 7‑10‑1967 falsely alleging that some unauthorised persons have got into possession of the said land which had been settled in his favour. The respondent No. 1 thereafter issued the impugned notice on 14‑10‑1967 and a copy thereof was served on the petitioner and his 3 other partners under section 5(1) of Act X of 1953 (hereinafter referred to as the Act) asking them to vacate the said land within 24 hours, failing which the structures would be removed. The petitioner challenged the propriety of the said notice in this petition and the main grievance of the petitioner is that he got into possession of the land lawfully on the basis of the agreement dated 16‑6‑1965 and that he is not a trespasser and as such, the provisions of section 5 (1) of the Act have no application to the facts of the case. The impugned notice has been marked as Annexure `B' to the petition. The respondents Nos. 1 and 2 each has filed an affidavit in opposition controverting the allegations made in the petition. The respondent No. 1 in his affidavit‑in‑opposition has specifically stated that the Government decided to settle the disputed land with the respondent No. 2 at a Selami of Rs. 2,000 but the settlement proceeding was not finalised nor the possession of the land was given to the said respondent till then. It was also stated in the said affidavit‑in‑opposition that the respondent No. 1 was not aware of the fact was to whether the respondent No. 2 had entered into any agreement with the petitioner and 3 others and that the respondent No. 2 could not enter into such agreement without taking prior permission from the Government. Since the settlement proceeding was not finalised and possession was not formally delivered to the respondent. No. 2, the land still remained in possession of the Government and as such the Government was competent to take action under section 5 (1) of the Act against the unauthorised occupants who entered into the land without the permission or knowledge of the Government. The respondent No. 2 in his affidavit‑in‑opposition has categorically stated that he did never enter into any agreement with the petitioner and others, as alleged, to transfer the interest of the deponent in the land mentioned above and he never received the sum of Rs. 9,000 as alleged from the petitioner. He also challenged the agreement as a false and fabricated document. The settlement proceeding not being finalised the petitioner and his partners have illegally entered into the land which is still in possession of the Government. The main point for consideration in the case is whether the impugned notice Annexure `B' is illegal and of no legal effect and whether section 5 (1) of the Act has any applications to the facts of the case inasmuch as the land is not a Government land, as claimed by the petitioner. It appears from the pleadings of the parties that the disputed land was originally the Government has land. The affidavit‑in‑opposition shows that although the Government settled the land with the respondent No. 2 but the settlement proceeding was not finalised and possession of the same was not formally delivered to the latter. Without formal) delivery of possession of the land to the lessee by the lessor the title does not pass and the land remains the Government land as before. The land being still in possession of the Government the entry of tile petitioner and others into the said land amounts to criminal trespass and the construction, if any, made thereon is A undoubtedly an unauthorised construction. The provision of section 5 (1) of the Act is very clear and the respondent No. 1 in the circumstances is fully, justified in issuing the notice under section 5 (1) of the said Act asking the trespassers to vacate the, said land within 24 hours of the service of the notice. The notice in question having been issued in accordance with law and the Sub‑Divisional Officer (respondent No. 1) having acted in strict compliance with the provision of section 5 (1) of the Act, it cannot be said that the impugned notice is illegal or without any lawful authority. Thus the main contention of the learned Advocate, as raised above, has no substance. The grievances of the petitioner that he has entered into the disputed land lawfully on the basis of the agreement Annexure `A' or that he can enforce the part‑performance of the agreement or that the agreement is genuine are all matters of facts and those complicated questions of facts cannot be decided by the High Court in its Writ jurisdiction. The proper forum for deciding those disputed facts is the civil Court and not the High Court. Considering all aspects of the case, we find no merits in the petition. The rule is accordingly discharged without any order as to costs. SIDDIQI, C. J.--‑I agree. A. E. Rule discharged.