P L D 1963 Dacca 636 (PLP)

On the 6‑12‑60, I was called again by the Id. Joint Collector and asked me to remove my house, if so, I will be given 500 acres of land also asked me to give bond (sic). At present I am served with a notice vide memo. No. 4475 S. A. dated 6‑12‑60, claiming Rs. 60,000 for the lands and as such I am quite helpless and also cannot under possession of land from the Wakf Estate, Noakhali, as above‑mentioned, should be liable for giving compensation and it is enough to place that I am a very poor man and there is no such property or even Rs: 1,000 with me. However, I am quite helpless and there is a civil suit pending in the 1st Munsif Court, Sudharam, for the said purpose and also there is an injunction order from the aforesaid Court on 5‑12‑60, for not touching the paddy of the said lands and as such I am quite unable to submit as to how I am a very guilty and trespasser into the Government land." (sic).

13. It is, therefore, perfectly evident that from the very beginning the petitioner has been claiming that the lands in respect of which the notice was served upon him are identical with the subject‑matter of the suit and there can be no manner of doubt that before passing the impugned order, the Joint Collector respondent No. 4 had understood what the case of the petitioner was. We accept the petitioner's case in this behalf. We have no manner of doubt whatsoever that the lands covered by the notice and the subject‑matter of the aforesaid suit are identical.

14. Learned Advocate‑General appearing on behalf of the respondents contended before us that the learned Munsif at Noakhali had no jurisdiction to try the suit filed before that Court by the petitioner, inasmuch as, the valuation of the suit was beyond the pecuniary jurisdiction of the Court. The plaint in the suit was, however, returned by the learned Munsif and it was filed the very same day in a Court of competent jurisdiction, namely, the Subordinate Judge of Noakhali. The fact that the suit was filed in a Court which on subsequent enquiry, turned out to be incompetent to try it is not very material to the issue before us. There can be no doubt whatsoever that the filing of the suit and the course of events that followed thereafter clearly establish the existence of a bona fide dispute between the claims of the petitioner and those of the respondents with regard to the lands covered by the impugned notice.

15. On the complaint made by the Joint Collector on 17‑11‑60, a report was submitted by the Officer‑in‑Charge, Sudharam Police Station on 19‑11‑60; and the trying Magistrate passed an order discharging the petitioner on 16‑12‑

60. In the meantime defendant No. 1, the Province of East Pakistan, had received a notice to show cause before the Subordinate Judge of Noakhali as to why the said defendant No. I, should not be restrained from interfering with the possession of the petitioner in respect of the suit lands. On the next day, namely, on 6‑12‑60, respondent No. 4, Joint Collector, Noakhali, issued upon the petitioner the aforesaid notice. On 17‑12‑60, petitioner made the above‑mentioned representation to the Deputy Commissioner, Noakhali, stating that a Civil Suit was pending in respect of the subject‑matter of the aforesaid notice. On 3‑1‑61; the impugned order was made. The sequence of events as set out above leaves B no room for doubt that the order passed by respondent No. 4 was mala fide and that it constituted a mere colourable exercise of the powers conferred upon him by Ordinance XIX of 1960, in order to stifle the suit which was instituted by the petitioner along with others.

16. Furthermore, on examination of the Ordinance it appears to us that respondent No. 4 had no jurisdiction to pass the impugned order when there was bona fide dispute with regard to the title of the lands for which the assessment was made. Section 2 (b) of the Ordinance defines land as follows: "2(b). "Land" means land which vests, in or is in the possession or under the Management and control of, the Provincial Government and includes any building or any water, flowing or still;" Section 3 runs as follows: "In the case, where any person has occupied, or continues in the occupation of, any land without having obtained the express permission or authority of the Provincial Government it shall be competent to the Collector to assess a fair rent and/ or premium or compensation or fee for such occupation or compensation for such damages and the same person shall be liable to pay to the Provincial Government the sum or sums so assessed according to the terms of such assessment."

17. It is, therefore, clear that the Collector's power to assess rent or compensation is exercisable only when the lands in question clearly belong to Government. It, therefore, follows that whenever there is a bona fide dispute as to the title of the land in question section 3 has no manner of application. We do not intend to say that any dispute, however, frivolous it may be, will be sufficient to bar the power of the Collector to act under that section. We have, therefore, qualified the same by saying that it must be a bona fide dispute, which, of necessary, must be a question of fact in each case. In the case before us there can be hardly any room for doubt that the petitioner had a long standing and bona fide dispute in a Civil Court with regard to the lands covered by impugned order. We cannot now anticipate what the result of the suit filed by the petitioner would be. But at the same time we have no doubt about the bona fide nature of the suit itself. We accept the averments in the petition in prefer ence to those made in the affidavit‑in‑opposition filed on behalf of the respondents.

18. In the view that we have taken with regard to the power of the Collector under section 3 of the Ordinance we are strength ened by a decision of a Division Bench of this Court in the case of Syed Hatem Ali and others v. Province of East Pakistan and others ((1960) 12 D L R 801). Although the aforesaid case dealt with the pro visions of East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, but the principles are equally applicable to the facts of this case. In the aforesaid case a river having gradually changed its course threw up lands, some of which were claimed to have taken settlement of the petitioners in that case from the Zamindars. The Province of East Pakistan, however, claimed such lands to be their khas lands and a notice under section 5 of East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, were served on the tenants with a view to evict the said tenants from what was claimed to be the Government lands. It was held that the Act was inappli cable where was a bona fide dispute with regard to the title of the land or building in question. In dealing with the aforesaid point the Division Bench observed as follows :‑ "If there is a bona fide dispute regarding title of the lands then, in our opinion, the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, is not at all applicable. Under that Act the ownership of the land or building must be in Government, and the Act can only be applicable where there is no dispute regarding the ownership of the lands and buildings. The Act can never apply to a case where the question of title in dispute, and where, as in this case, the petitioners claim to be in possession by virtue of the lease in their favour. The act provides for speedy possession of lands and buildings owned by the Government and it does not contemplate a case whether there is a bona fide dispute regarding title of any land or an building. After a careful consideration of all the materials in this case and the case of each party, we are satisfied that the Government cannot take action under the said Act." Against the aforesaid decision of this Court, respondent Province of East Pakistan as well as other respondents preferred an appeal to the Supreme Court of Pakistan being the Civil Appeal No. 82‑D of 1960, disposed of on 28‑4‑

61. In dismissing the appeal from the aforesaid decision the Supreme Court of Pakistan made the following observations :‑ "It will be convenient at this stage to refer to the relevant provisions of the Act. The preamble to the Act states: It is expedient to provide for speedy recovery of possession of Government Lands and Buildings by evicting outgoing lessees and unauthorised occupants." Various sub‑clauses of section 2 define buildings, land and u authorised occupant. Section 3 empowers the Government evict outgoing lessees from the land. Section 4 enables the Government to determine a lease and to recover possession of building in certain cases. Section 5 under which the impugn notices were issued is as follows: "(1) If the Provincial Government is satisfied, after making such enquiry as it thinks fit that a person is an unauthorized occupant, it may, by order in writing, direct such a person to vacate the land, building or part of a building in his occupation within the period specified in the order. (2) If the person against whom an order under subsection has been made, refuses or fails to vacate the land, building part of building in his occupation within the time fixed, the, notwithstanding anything contained in any other law for the time being in force, it shall be lawful for the Provincial Govern ment to enter upon such land, building or part of a building and recover khas possession of the same by evicting such person and by demolishing and removing structures, if any, erected or built by that person." "Mr. Mustafa, the learned counsel thinks that by this section 5 the determination of the question of title has been left entirely to the objective satisfaction of the Provincial Government. If the preamble and the provisions of the Act are examined it appears to be perfectly clear that the Act is designed to give power to the Government to take speedy steps for recovery of possession of Government land. In order to attain that purpose section 5 empowers of the Government to make inquiry if a person is an un-authorised occupant. It, however, does not say that the decision of the Government as to the title of the property in question shall be final. If Mr. Mustafa's argument is accepted it would lead to absurd results. The Government's decision regarding title as to any building or land in the Province will be final. This was not and could not be the intention of the Legislature as is clear from section

5. It merely says "the Provincial Government if satisfied after making such enquiry as it thinks fit that a person is an un-authorised occupant it may direct such person to vacate the lands." In other words the Government has been empowered to decide if a person is an un-authorised occupant. Under section 2 (c), "Un-authorised occupant" means a person who is in occupation of any land or building or part of building without having obtained the express permission of authority of the Provincial Government, and includes‑ (i) a person inducted into any building or part of a 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." That is to say that only when a person is in occupation of any Government land or building without their permission be may be said to be un-authorised occupant. It is, therefore, clear that where the title of the Government to any land or building is disputed on bona fide grounds it will not be open to the Government to take action under this Act." 18. (sic) The case has not been reported and we have quoted the aforesaid observations from the copy of the judgment that has been circulated to us. Section 3 of the Ordinance under our consideration is materially similar to section 5 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act

193. We hold that the impugned order is illegal and ultra vires the power of respondent No. 4.

19. We would like to point out that learned Advocate‑, General bas argued before us that this Court will not interfere with the impugned order inasmuch as the petitioner has not o availed himself of the remedy of an appeal furnished by section 5 of the said Ordinance. Section 5 of the said Ordinance is couched in the following term: "(1) in any case, where the amount assessed under section 3 on account of rent or fee exceeds rupees one hundred per annum or the amount assessed under that section on account of premium or compensation of any kind exceeds rupees one thousand an appeal, if preferred within thirty days of the date of service of the notice of such assessment under subsection (1) of section 4, shall lie against such assessment to the Commis sioner of Division. (2) In any case, where the assessment made under section 3, as upheld or modified on appeal under subsection (1) exceeds rupees one thousand per annum on account of rent or fee or rupees ten thousand on account of premium or compensation of any kind a further appeal, if preferred within thirty days of the date of the order of the Commissioner under sub section (I), shall lie against such order to the Board of Revenue. (3) An order gassed under subsection (2), and subject only to such order, an order passed under subsection (1) and subject only to an order passed under subsection (1) or subsection (2), the assessment made by the Collector under section 3, shall be final. (4) Before passing any order, or appeal for staying the recovery of any amount assessed under section 3, the appellate authority may require the appellant to furnish such security for the amount as the former may think fit."

20. The short answer to this point is that having held, in, the first place, that the order impeached before us was a mala fide and colourable exercise of the powers conferred under this Act and also having regard to the fact that we have held the impugned P order to be illegal and ultra vires the power of the Joint Collector, the provision of section 5 will not be applicable to this petition. This disposes of the second contention that has been advanced before us by learned Advocate‑General. Hardly any authority is needed for the proposition we have stated above. The point is well‑settled by long series of decisions, but we may mention a Full Bench decision of the Allahabad High Court in the case of Motilal and others v. The Government of State Uttar Pradesh and others (A I R 1951 All. 257).

21. Malik, C. J., in delivering the judgment in the said Full Bench Case has observed as follows :‑ "The learned Advocate‑General has raised another objection that as there was a right of appeal under section 64 of the Motor Vehicles Act the applicants are not entitled to come to this Court under Art. 226 of the Constitution. I do not consider that there is much force in this argument. Section 64 (a) provides for appeals by any person aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, and subsection (e) provides for an appeal by any person aggrieved by the refusal of renewal of a permit. Reference was also, made to section 64‑A of the Motor Vehicles (United Provinces Amendment) Act, 1948 (U. P. Act XI (ii) of 1948), which provides for some sort of an appeal to the Provincial Government which may, on its own motion, or on the application of a person aggrieved by an order passed under section 64, call for relevant papers and make such order as it thinks fit. For an appeal under section 64 there must be an order or a Provincial or Regional Transport Authority passed under the Act. As I have already said, the Regional Transport Authority, or its Secretary, or the Regional Transport Officer, who seems to have been acting for the authority, do not appear to have passed any order under the Motor Vehicles Act and, therefore, no question of an appeal under section 64 seems to arise."

22. This is further supported by a decision of the Supreme Court of India in the case of D. R. Madhavakkishnaiah v. The Income‑tax Officer Bangalore ((1954) S C A 962).

23. Learned Advocate‑General has in support of his argu ment before us relied on a passage from the judgment delivered by Munir, C. J., in the case of the Tariq Transport Comyany, Lahore v. Sargodha Bhera Bus Service, Sargodha and others (P L D 1958 S C (Pak.) 437), The passage which is a quotation from Halsbury, 3rd Edition, Vol. II, p. 107, runs as follows :‑ "In the case of mandamus, it has been uniformly held in England that the Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, where there is an alternative specific remedy at law which is not less convenient, beneficial and effective and such remedy includes an appeal to an appellate Tribunal." It is interesting to note that in the said judgment and in the same paragraph the learned Chief Justice goes on to observe as follows :‑ "Cases of absence or excess of jurisdiction, however, stand on a different footing and are an exception to the general rule just stated. An appeal, while adequate to correct mere errors in the exercise of jurisdiction is often inadequate to redress or prevent a wrong done in the absence or excess of jurisdiction. If a Tribunal has no jurisdiction either in respect of the subject matter of limitation or the parties before it or the territory to which the dispute relates or because of its own defective con stitution or the illegality of the order, the proceedings are void ab initio, and an appeal in such a case is an unnecessary step and a mere prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction."

24. The result, therefore, is, that for the reasons stated above we make the Rule absolute and set aside the order passed by respondent No. 4 Joint Collector, Noakhali, dated 3‑1‑61, assessing a sum of Rs. 49,000 as compensation to be paid by the petitioner in respect of lands alleged to be in un-authorised posses sion of the petitioner. The petitioner is allowed costs of this application which we assess at 10 gold mohors. A. S. CHOWDHURY, J.‑I agree. S. B. Appeal allowed.