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Petitioner: MESSRS RAJANI KANTA TARAK NATH DAS VS Respondent: MST. MOAZZAMA BEGUM
P L D 1960
P L D 1960.Dacca 379
Before Chowdhury, J
MESSRS RAJANI KANTA TARAK NATH DAS--‑Petitioner
versus
Mst. MOAZZAMA BEGUM‑Opposite‑Party
Civil Rule No. 443 of 1959, decided on 25th May 1959.
East Bengal Premises Rent Control Act (XVI of 1953), S. 17 (1) (e)‑Words "own occupation"‑Embrace occupation of such members of landlord's family as are dependent on him -Dependence may be for accommodation only.
The words "own occupation" in clause (e) of subsection (1) of section 17 of the East Bengal Premises Rent Control Act (XVI of 1953) do not mean only occupation by the landlord himself but embrace the occupation also of such members of his family as are dependent on him. Further, the expression "own occupation" does not mean occupation of the landlord himself along with such other members of the family as are dependent on him in all respects. If any member of such family, though not dependent for his or her maintenance on the landlord himself is, at the same time dependent on him for accommodation it will come within the meaning of "dependent" on the landlord.
Mulla Mahbubali and others v. Jonabali and another P L D 1957 Dacca 544 rel.
U. K. Roy for Petitioner. M. A. Rab for Opposite‑Party.
JUDGMENT
This Rule by the tenant is directed against the order of District Judge, Dacca, in appeal on an application by the landlord for permission to sue the tenant‑defendant for ejectment from the disputed premises.
2. The facts of the case, shortly stated, are that the landlord opposite party started a case, being House Rent Control ease No. 253 of 1957, before the House Rent Controller of Dacca for permission to sue the petitioner‑tenant in ejectment on the allegation that she required the house for her own occupation. The nature of occupation stated was to accommodate a chamber to her son, a Barrister‑at‑Law, practising in the Dacca High Court, as; in her residential house where she resides along with her son and other family members, she cannot accommodate a chamber for her son.
3. The House Rent Controller found on evidence that the requirement alleged was bona fide and granted permission to sue the petitioner‑tenant in ejectment.
4. On appeal by the tenant, the learned District Judge affirmed the decision of the House Rent Controller. Hence this Rule.
5. Two points were raised by Mr. Roy, the learned Advocate for the petitioner, in support of the Rule. His first point is that the evidence on record are not sufficient to establish necessary elements which constitute a bona fide requirement under the law. His second contention is that occupation contemplated in section 17 of the East Bengal Premises House Rent Control Act means the occupation of the landlord herself and not the occupation of her son and, as such, the case does not come within the provisions of section 17 of the said Act.
6. As to the first point, both the Courts below found that there is no sufficient accommodation in the house where the landlord resides with her practising son and other members of the family to provide her son with a chamber and there was dearth of accommodation for which the clients of her practising son are to stay outside and that there was no accommodation for his typist arid clerk and as such, the disputed premises, which is situated by the side of the main road or near about it, is required for a chamber and accommodation of the typist and clerk of the Barrister. These certainly constituted bona fide requirement. Though the tenant‑petitioner asserted that the disputed house consists of only 3 small rooms which the petitioner uses not only for his residential purpose but also for business purpose and is not fit for a chamber for a Barrister and though he asserted that there is accommodation in the residential house of the landlord to provide a chamber to the practising son of the landlord, he could not establish the same by satisfactory evidence, as found by both the Courts below. Therefore, it is not correct for Mr. Roy, the learned Advocate for the petitioner, to contend that there is no sufficient evidence to establish the elements which constitute bona fide requirement in the case.
7. As to the second point, his contention is that as section 17 (1) (e) of the East Bengal Premises House Rent Control Act provides for accommodation of the landlord himself, as it appears from the words "for his own occupation," it would not include occupation for the purpose of accommodation of the landlord's son and, therefore, the case, according to him, does not come within the meaning of section 17 (1) (e) of the East Bengal Premises House Rent Control Act (Act XVI of 1953). What is the meaning of the words, "own occupation" ? If it means only occupation by the landlord himself and not by him along with his other family members, such as sons, daughters, husband and wife, as the case may be, then the provision in (e) of subsection (1) of section 17 would be meaningless. It could not have been the intention of the Legislature and the main purpose of the section would be frustrated and the section would become meaningless. Occupation means not only the occupation of the landlord himself but also of his family members, that is dependent on the landlord for accommodation. Mr. Roy contends that in the present case accommodation sought for is for the landlord's son, who is a Barrister‑at‑Law, and he cannot be said to be dependent on his mother. There is absolutely no evidence that the son is not dependent in any way on the mother. It may be true so far as the maintenance is concerned. But it has not been established that he is not dependent on his mother for accommodation also nor has it been established that he has got a separate house of his own. His mother still provides him with accommodation which is apparent from the fact that he lives with his mother in her residential building wherefrom he has been carrying on his practice. In the case of Mulla Mahbubali and others v. Jonabali and another ((1956) 8 D L R 448=P L D 1957 Dacca 544) Rahman, J., held.
"It would be putting too narrow a construction on the words own occupation' to say that the words were limited to the personal occupation of the landlord himself and of none others. The words `own occupation' must embrace the occupation of the landlord himself personally as also such members of his family as are dependent on him".
8. In that case it has not been stated what is the extent of dependence for the purpose. If any member of such a family, though not dependent for his or her maintenance on the landlord himself, but, at the same time, is dependent for accommodation, I think it will come within the meaning of "dependent" on the landlord I have already stated that if the narrow meaning, as contended by Mr. Roy, is put on the words "own occupation", then the whole aim and purpose of section 17 (1) (e) would be frustrated. In the circumstances, I cannot accept the contention of Mr. Roy for the petitioner, that "own occupation" means occupation of the landlord himself along with such other members of the family as are dependent on him in all respects, as sound.
9. Mr. Roy then contends that it has not been established whether the practising son of the landlord was dependent on her mother, the landlord, for accommodation. Prima facie, from the circumstances and the evidence, it appears that he is dependent on his mother for accommodation of his chamber. No evidence was led to show that even for accommodation or otherwise the landlord's son was not dependent on her.
10. The result, therefore, 'is that this Rule has got no substance and must be discharged with costs.
K. B. A. Rule discharged.
P L D 1960 Dacca 382
Before Akbar and Asir, JJ
MRS. M. ALI KHAN‑Petitioner
versus
THE PROVINCE OF EAST PAKISTAN and others‑Respondents
Writ Petition No. 91 of 1959, decided on 4th January 1960.
Writ‑Mandamus‑Extraordinary remedy‑Issued in case of violation of, or threat to, legal right when other remedy is not prompt adequate and efficacious or resort to it would lead to "incalculable loss or harassment"‑Equitable considerations irrelevant‑Constitution of Pakistan (1956), Art. 170.
Although the powers of the Court to issue writs are very wide, the remedy provided must remain an extraordinary remedy to be used where ordinary legal process cannot give adequate relief. The essential requirements in all such cases are :‑
(1) that the petitioner has some legal right,
(2) that the said right has been actually violated or there is an, imminent threat to that right, and
(3) that the petitioner has either no other remedy available to him, or if there is such a remedy that remedy would not be equally prompt, adequate and efficacious, and in case he is left to that remedy he is likely to suffer incalculable loss and harassment.
The remedy to which a citizen is entitled depends upon the facts of each case, and the legal status of the parties, their respective legal right and the nature of invasion of that right.
Equity has nothing to do in a writ of mandamus and in considering that writ no equitable right or principle arises.
A writ of mandamus is reserved for extraordinary emergencies being in the nature of supplementary means of obtaining substantial justice where there is clear legal right and no other adequate legal remedies.
Mandamus will not be granted when the right is doubtful.
Where the petitioner's plea was that she was the owner, by exchange of the house in dispute, and that the order of the Additional District Magistrate declaring the house to be still under requisition after the same had been de‑requisitioned by the District Magistrate, was ultra vires, but where the exchange was not evidenced by any registered document Held, that it was not a case to be satisfactorily agitated upon summary proceedings by way of a writ.
T. Talukdar and M. A. Rab for Petitioner. B. A. Siddiky, Advocate‑General and K. M. Subhan for Respondents 2‑3.
Dates of hearing : 14th and 15th December 1959.
JUDGMENT
AKBAR, J.‑In this case the petitioner, Mrs. .M. Ali Khan, has obtained a Rule calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued directing them to cancel or withdraw certain orders and to forbear from giving effect to the said orders.
The facts briefly are as follows: In 1947 the District Magistrate, Chittagong, after service of notice of requisition on Prof. M. R. Barua in L. A. Case No. 45 of 1947‑48, requisitioned Municipal holding No. 106 old Joynagar Chittagong known as Devpahar Bungalow and allotted it for the residence of the officers of the Customs Department. Soon thereafter, Prof. Barua, who was in occupation of the house, left for England and settled there. In 1950 Mrs. M. Ali Khan, a refugee from India, occupied a portion of the said premises as a guest of the Customs Officer residing there. On 20‑9‑50 the northern half of the said house was allotted to Mrs. Khan. On 24‑10‑50 the Customs Authority challenged this allotment to Mrs. Khan on the ground that they required it for their officers. They also pointed out that it will not be desirable to allow a senior Customs Officer to share the house with a private individual. Subsequently there was a quarrel between the Customs Officer and Mrs. Khan over the possession of a middle room and on 3‑5‑1953 the Customs Officer left the house. On 4‑5‑53 Mr. A. Aziz, District Magistrate, Chittagong, passed the following order:
"It is now absolutely clear that the southern portion of the house holding No. 106 (old) Joynagar Devpahar will not be occupied by any officer of Government.
De‑requisition the house with‑ tenant (Mr. & Mrs. Ali Khan) in possession and inform Revenue Department".
Mr. A. R. Barua, brother of Prof. M. R. Barua, then filed a petition before the District Magistrate claiming possession of the de‑requisitioned house. His case was that the said house belonged to the brothers and that notice of requisition was also served on him. Prof. Barua also preferred his claim through the National Bank of India. One Phani Bhusan Barua also claimed the house as a co‑sharer. Mrs. Khan opposed the said petitions. Her contention was that Prof. Barua as the head of a Hindu Joint family had. exchanged this house with her properties in India. In support of this story of exchange, she relied on the following letter of Prof. M. R. Barua:
"Dear Mr. Khan, March 24, 1950
I received your letter of the 16th March, this morning. I thank you for your prompt and frank reply to my suggestions conveyed to you in my last letter.
I note that you cannot agree to my brother's proposal which I quoted from his letter. I hope you could very well under stand my position. I cannot do anything from here except relinquish in your wife's favour my right over my Devpahar property. This I am willing to do if your wife in a letter would relinquish her right to me. As I am here I cannot take possession ‑of your wife's property, I have to depend upon my people in India. I have got to do everything in consultation with my brother.
I can now write to him that you are not agreeable to his proposal. I shall also write to him that I am willing to take over your wife's property without any reservations on my part depending absolutely on the Almighty Allah. I give you my reasons for this:
(1) A cousin of mine Mr. Jamini Ranjan Barua who retired as an Auditor of the Co‑operative Societies, without a pension has been living in Calcutta in a hopeless condition. He could have the option of living in the Devapahar Bungalow if it was available. Since he cannot live there I consider it my duty to offer him a house if one could be obtained in exchange of or by the proceeds of my Devapahar property.
(2) As nothing has so far been done by any of my brothers or cousins to give Jamini any relief, I think I am justified to take over your wife's property on terms to which you have agreed.
I do hope that my brother will agree since he has not so far objected to any of my final decisions taken after due consideration. In any case I think you can take over possession of her property to my cousin Jamini.
I am writing to my brother Mr. A. R. Barua, and to my cousin Mr. J. R. Barua accordingly. If you can give immediately possession will you please send me a wire ? It would be very much appreciated by my family if those of your furnitures which you would not be able to take to the Devapahar Bungalow can be left in the house. I do not make this a condition of exchange, but leave entirely to your discretion and goodness.
With kind regards, Your sincerely, (Sd.) M. R. BARUA.
She also contended that on receipt of the above letter she had executed a Power‑of‑Attorney in favour of J. R. Barua giving him authority to take possession of her properties in Bihar from the Custodian of Evacuee Properties of Dhalbhum.
During hearing of the petition it was found that part of the original record was missing and hence it could not be verified if any notice of requisition had been served on A. R. Barua brother of Prof. Barua.
In 1954 Mr. Rifat Pasha Shaikh, the then District‑ Magistrate, who heard the petition, rejected the application of A. R. Barua on the following grounds:‑--
(1) that the Requisition register showed that notice of requisition had been issued only to Prof. M. R. Barua ;
(2) that the property was also recorded in the name of the said Professor ;
and (3) that the rent of, the premises was credited to the account of the Professor.
The said Magistrate, while rejecting Phani Bhusan Barua's claim, observed:
"The claim now of being a co‑sharer which has no basis except on alleged entry in the R. S. Khatian cannot be given credence to. If he was a co‑sharer in the house, his name should have been recorded in the Municipal Register and he would have put forth his claim very much earlier in order to obtain the benefit of a share of rents received."
He, therefore, came to the conclusion that Prof. Barua alone was entitled to get back possession of the house. He however did not issue any order in his favour for the following reasons:
(1) that the National Bank of India who represented him had withdrawn from the case ;
(2) that Prof. Barua had agreed by a letter addressed to Mrs. Khan to relinquish his right to the property on condition that Mrs. Khan by a letter would relinquish her' right to her properties in India and that Mrs. Khan had taken necessary action for handing over possession of her properties to Babu J. R. Barua, a nominee of the Professor.
Hence he ordered that formal possession of the house be handed over to Mrs. Khan in accordance with the provisions of the last clause of section 8 (I) of the East Bengal (Emergency) Requisition of Property Act.
On 2‑8‑54 the Kanungo, in pursuance of the above order of the District Magistrate, made over possession of the de‑requisition ed house to Mrs. Khan.
On an application filed by Mrs. Maitryee Barua daughter of Prof. Barua, the case was re‑opened and after notice to the parties Mr. H. Rahman, Additional District Magistrate, Chittagong passed the following order on 22‑8‑59
"Seen G. O. No. 13455‑Reqn. dated 22‑8‑59.
District Magistrate's order dated 4‑5‑53 and 28‑7‑54 de requisitioning the house at Holding No. 106 (old) Joynagar covered by L. A. Case No. 45 of 47‑48 in favour of Mrs. Ali Khan under section 8 (i) of the East Bengal (Emergency) Requisition of Property Act, 1948 on misrepresentation of facts by the occupant of the house‑Mrs. Ali Khan, is hereby vacated and the house be treated as a requisitioned one since 4‑5‑53 under allotment to Mrs. Ali Khan from the date of her occupation for the purpose of residential accommodation. L.A.D.C, will please refix the rent, ask, the allottees concerned, if necessary, to pay rent both arrear and current.
(Sd.) H. RAHMAN, C.S.P. Addl. District Magistrate, Chittagong."
On 14‑9‑59 Mrs. Ali Khan made a representation against the above order to the Government without any success. On 22‑9‑59 the District Magistrate wrote to her as follows
"Government of East Pakistan Office of the District Magistrate, Chittagong Land Acquisition Department. Memo. No. 4056/Reqn. dated 22‑9‑59.
To
Mrs. Ali Khan, Editor, Eastern Examiner, Devpahar, Chittagong.
Sub :‑Payment of arrear house rent of requisitioned holding No. 106‑Joynagar covered by L. A. Case No. 45 of 47‑48.
Ref:‑Her petition dated 14‑9‑59.
A reference is invited to this office memo. No. 3834(7)‑Reqn. dated 1‑9‑59. Derequisition order was vacated and she was asked to pay rent etc. as per Government instructions contained in their memo. No. 13455‑Reqn. dated 22‑8‑59. She is, there fore, requested to pay the arrear rent by 30‑9‑59 positively, otherwise actions will be taken under process of law and she will be evicted by force as per Government instructions contained in G. O. No. 17372 (16)‑Reqn. dated 21‑10‑57. (Sd.) ......... 22‑9‑59 For District Magistrate Chittagong."
On 23‑9‑59 she sent another representation to the Government but the same was rejected. On 10‑10‑59 the Additional District Magistrate wrote to her as follows:
"Memo. No. 4348/Reqn. Office of the District Magistrate, Chittagong. October 10, 1959. To Mrs. M. Ali Khan, 106, Joynagar (Devpahar Bungalow), Chittagong.
Sub :‑Payment of rent of requisitioned holding No. 106‑Joynagar (Dev Pahar bungalow) covered by L.A. Case No. 45/47‑48.
Ref :‑Her letters dated 23‑9‑59 and Government order No. 15683 Reqn. dated 5‑10‑59 addressed to her direct.
In enclosing herewith a copy of Government order No. 13455 Reqn. dated 22‑8‑59 she is again requested to clear up the arrears of rent of the above premises amounting to Rs. 7,189‑1‑0 (Rupees seven thousand, one hundred eighty one (sic) and anna one) only within 15 (fifteen) days from the issue of this letter failing which steps will be taken to recover the same according to law. The amount will have to be deposited in the State Bank of Pakistan under head "P L.A," of District Magis trate, Chittagong" through Treasury Challan under intimation to this office.
It has already been decided by the Government that the above premises belong to Professor Barua and the same should be de‑requisitioned and made over to the rightful owner. She has no right or even a colour of right to the premises in question and she has no business to question the legality of Govern ment order. The Government decision in this respect has been taken after careful consideration and already communicated to her direct (vide Government Memo No. 15683‑Reqn. dated 5‑10‑59). So all controversy on this point has been set at rest and she is directed to refrain from writing impertinent letters to the District Magistrate, Chittagong. ,
Addl. District Magistrate, Chittagong."
Hence she moved this, Court and obtained this Rule. In the petition she has prayed for cancellation of the orders dated 22‑8‑59, 22‑9‑59 and 10‑10‑59.
Mr. Talukdar, the learned counsel for the petitioner, has contended that Mr. H. Rahman, the Additional District Magis trate, had no jurisdiction to pass the order dated 22‑8‑59 vacating the previous order of de‑requisition made by Mr. Rifat Pasha Shaikh on 28‑7‑54. The learned Advocate‑General appearing on behalf of the Government has raised a preliminary objection as to the entertainment of this application. He has contended that the remedy of the petitioner was to file a suit for declaration of her title. We agree with the learned Advocate‑General that this is not a proper case in which the Court should issue a writ. It has been repeatedly pointed out by this Court that although the powers of the Court to issue writ are very wide, the remedy provided therein must remain an extraordinary remedy to be used where ordinary legal process cannot give adequate relief. The essential requirements in all such cases are:
(1) that the petitioner has some legal right,
(2) that the said right has been actually violated or there is an imminent threat to that right,
and (3) that the petitioner has either no other remedy available to him or even if there is such a remedy available that remedy would not be equally prompt, adequate and efficacious and in case he is left to that remedy he is likely to suffer incalculable loss and harassment.
It is thus clear that the remedy to which a citizen is entitled depends upon the facts of each case, and the legal status of the parties, their respective legal right and the nature of invasion of that right. Mr. Talukdar has not been able to satisfy us that the petitioner has clear title or legal right to this house. He, realising his difficulty, has asked us to interfere in this case on equitable grounds. Equity, however, has nothing to do in a writ' of mandamus and in consideration thereof no equitable right or; principle arises. As already pointed out, such a writ of mandamus is reserved for extraordinary emergencies being in the nature of supplementary means of obtaining substantial justice where there is clear legal right and no other adequate legal remedies.
Ferris in his book says:
"The relator to be entitled to the writ, must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced ; that is there must be a clear legal right in relator and a corresponding duty on the part of the person to whom the writ is directed. No intend ments are to be indulged ; the relator must by averment and proof show an unqualified right to the writ."
It follows, therefore, that mandamus will not be granted when then right is doubtful.
The petitioner's case is that he has got the requisitioned house in exchange of her properties in India. This is however not evidenced by any registered document. The learned Advocate‑General has, therefore, contended that she has acquired no right to the house and her sole object in filing this petition is to evade payment of rent for the requisitioned house. There may be some force in the argument of the learned Advocate-General. We have however no desire to prejudice the case of the petitioner in any subsequent litigation that may arise between the parties, but it is abundantly clear to us for the present that the petitioner's title or right, if any, cannot be satisfactorily agitated upon in these summary proceedings. In our opinion, the claim of the petitioner, if any, should be decided by a Court of Law in a regular suit and a writ of mandamus is not the proper remedy. In the view which we have taken, it is perhaps needless to examine the question whether the Additional District Magistrate had jurisdiction to vacate the order of his predecessor de‑requisitioning the house and making over possession of the house to the petitioner.
For these reasons this application fails and must be dismissed. The Rule is discharged and the interim stay order is vacated. There will be no order as to costs.
This is however without prejudice to any other legal pro ceeding that the petitioner may be entitled…
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