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Petitioner: MD. HOSSAIN AND OTHERS VS Respondent: GENERAL MANAGER, E. B. RAILWAY, CHITTAGONG
P L D 1961 Dacca 730
P L D 1961 Dacca 730
Before Murshed and Siddiky, JJ
MD. HOSSAIN AND OTHERS‑-Petitioners
versus
GENERAL MANAGER, E. B. RAILWAY, CHITTAGONG AND OTHERS‑Respondents
Writ Petitions Nos. 64 to 69, 72 and 73 of 1960, decided on 16th December 1960.
(a) Writ‑Petition-------
------- verified by only one of thirteen persons Petition dismissed in limine in respect of twelve persons who had omitted to verify‑Constitution of Pakistan (1956), Art. 170.
(b) Writ------
-----‑Invasion of proprietary' rights‑By private individual or by public official or body‑Without legal justification‑Existence of lis‑Invasion open to scrutiny under writ jurisdiction‑Constitu tion of Pakistan (1956), Art. 170.
Any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by a public official or body; must be justified with reference to some law of the country ; otherwise, such invasion would be illegal and Courts would not only subject the same to their scrutiny but would also enforce the rights of the citizens whenever there is an encroachment upon such rights without legal jurisdiction.
Where the impugned order was passed by the Sub‑Divisional Magistrate under sections 5 and 6, East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952, for eviction of petitioners from land claimed by the East Bengal Railway
Held, that there was a lis between the rival parties and the order was open to scrutiny by the High Court under their writ jurisdiction.
(c) East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 (X of 1953)---------
--------- Ss. 5 and 6‑Relate only to land belonging to Provincial Government and have no application to land belonging to E. B. Railway.
(d) Railways Act (IX of 1890)----
------ S. 122 ‑Entry must be unlaw ful before action under S. 122 can be taken.
Person against whom an action is proposed to be taken must have initially unlawfully entered upon the premises belonging to the railway ; otherwise, the section has no manner of application.
Where the entry was relateable to a lease or permits from the Municipality to occupy land from which the Railway sought to evict the occupiers by action under section 122 in the guise of an order from the Sub‑Divisional Magistrate :
Held, that the order was illegal and void.
(e) Writ----
-----‑Laches‑Time taken in pursuing other remedies -Whether would constitute laches.
(f) Writ----
----‑Disputed question of fact‑High Court will not go into, unless such questions, can be decided by summary procedure in writ petitions‑Constitution of Pakistan (1956), Art. 170.
When the title of petitioners or the relief asked for by them is dependent upon the adjudication of disputed facts which cannot be decided in a summary procedure which is followed in writ applications, the High Court will refrain from giving any relief on such applications.
Where possession of the lands from which the petitioners were sought to be evicted by the East Bengal Railway was undisputed, the petitioners could not be legally disturbed from such possession except in manner authorised by law. The petitioners being in possession, of the lands had a legal title to continue in such posses sion unless evicted by a lawful process of law. The main question in the petitions before the High Court was; can the petitioners, who were in possession of their lands, be evicted by an order passed by the Sub‑Divisional Officer. (North), Chittagong who happened to be incompetent to adjudicate upon the rights of the parties with regard to the possession of the lands. Though the right to the possession of the disputed lands claimed by the rival parties could be decided after an investigation of the title of each party, the High Court was not concerned with such a question in the petitions before them.
Hamidul Huq Choudhury with Md. Shamsul Huq Choudhri for Petitioners in Writ Petitions 67 and 68 of 1960.
Hamidul Huq Choudhury with Daliluddin Ahmed for Petitioners in Writ Petitions 72 and 73 of 1960.'
Md. Shamsul Huq Choudhury for Petitioners in Writ Petitions 64 and 69 of 1960.
Daliluddin Ahmed for Petitioners in Writ Petitions 65 and 66 of 1960.
Syed A. B. Mahmud Hussain, G. P., with Md. Jane Alam, A. G. P. and Md. Mozammel Huq for Respondents 1 and 2 in all.
Ruhul Islam for Respondents 3 to 5 in Writ Petitions 64, 69 and 72 of 1960.
T. H. Khan for Respondents 3 to 5 in Writ Petitions 65, 66 and 73 of 1960.
K. M. Subhan for Respondents 3 to 5 in Writ Petition 66 of 190.
Akbar Hayat Mirza for Respondents 3 to 5 in Writ Petition 67 of 1960.
Dates of haring : 14th and 15th December 1960.
JUDGMENT
MURSHED, J.‑These eight Writ Petitions were, at the instance of the respective parties, heard together by us inasmuch as they relate to one order passed by the Sub‑Divisional Officer (North), Chittagong, and involve similar and identical points of law. This judgment will dispose of all the said applications We shall, however, set out the particular facts of each of the aforesaid petitions in so far as they are material far the disposal of the same.
The aforesaid applications. are all directed against an order passed by Mr. A. Rahman, Sub‑Divisional Officer (North), Chitta gong, on the 5th of January 1960, the legality of which has been challenged by the petitioners.
All the petitioner hold and possess lands which are claimed by the Eastern Bengal Railway, Chittagong, as its property. For the sake of convenience, the petitioners can be divided into two groups first, those who allege that they or their predecessors‑in -interest have obtained leases of their respective lands from the Chittagong Municipality which, according to them, is the owner of the lands occupied by them, and, secondly, those who claims that they or their predecessors‑in‑interest have obtained valid leases from the said Eastern Bengal Railway. All the aforesaid petitioners are in possession of the respective lands which they hold and rare still in such possession. As we have indicated above, some of them challenge the title of the Eastern Bengal Railway in respect of particular lands or holdings in question, whereas others claim that although they are lessees of the Eastern Bengal Railway their leases have not been legally or validly terminated.
In Writ Petition No. 64 of 1960 the petitioner. Md. Hossain has averred that he is 'a lessee in respect of the, land occupied by him by virtue of a lease granted to him by the Chittagong Munici pality and that in pursuance of an agreement between him and the said Municipality he erected a house on the said land as early as 1934. He made regular payments of rent to the Municipality in respect of the said holding and his name has also been duly recorded in the municipal register ac a person in occupation of the said premises since 1934. He has stated that the said land on the roadside was subsequently taken over by the Government of East Pakistan, Department of Communication and Buildings. He has further averred that his holding is outside the fencing and boundary of the Chittagong Railway Station and has further con tended that there is a stall on a vacant land in between his shop and the said boundary of the railway station. He does not admit the title of the said railway to the land.
On‑behalf of the Eastern Bengal Railway an affidavit‑in -opposition has been sworn by a Sub‑Divisional Officer, Engineering Department, under the said railway. In the said affidavit‑in- opposition it has been challenged that the land occupied by the petitioner ever belonged to the Municipality. It is claimed that the said land has always belonged to the Eastern Bengal Railway, and reliance has been placed on the record of rights in Revisional Survey Khatian of 1928. Furthermore, reliance has been placed on a letter addressed to the Superintendent of Police, Chittagong, by the Administrator of the Chittagong Munici pality. The Eastern Bengal Railway served a peremptory notice upon the petitioner giving him seven days' final notice to vacate and quit the land and to remove all structures and materials therefrom. The notice is dated the 2nd of May 1959.
Similar notices have been served on all the petitioners before us.
Inasmuch as none of the petitioners, including Md. Hossain, complied with the aforesaid notice, it appears that the Sub -Divisional Officer, Engineering Department, under the Eastern Bengal Railway, addressed a petition to the District Magistrate, Chittagong, purporting to have been made under sections 5 and 6 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 (Act X of 1953), as well as under sec tion 447 of the Pakistan Penal Code. It appears that fresh applications were also to the Sub‑Divisional Officer (North), Chittagong. The District Magistrate referred the application to the Sub‑Divisional Officer (North), Chittagong, who after hearing the parties, passed the following order which are quoted below in extenso :
"Order‑sheet for Magistrate's Records.
(C. O. No. 1 of 11th July 1888, reproduced by C. No. 6 of 18th November 1901).
District Chittagong.
In the Court of S. D. O. (N) Chittagong,
P. Case No. 235 of 1959.
State Executive Engineer E. B. Railway Pahartali v. Abdus Sukur & 33 others.
5‑1‑60. Heard parties. Ask O. P. to vacate by 2 p.m. of Saturday, Ask S. P. for adequate force. Inform O. C. G. R. P. to 9‑1‑60.
(Sd.) Illegible:"
We have set out the above order in the form and manner in which it was passed by the Sub‑Divisional Officer (North), Chittagong, inasmuch as this is the order the legality of which is challenged in all the applications before us.
Before proceeding to discuss all the points raised on behalf of the petitioners, we would like to set out some relevant facts in respect of some other applications.
In Writ Petition No. 66 of 1960, the petitioner Nasiruddin has averred as follows :‑
"(2) That the petitioner has been carrying on business as shop‑keeper on the roadside of the Chittagong Municipality at Abdur Rab Nishtar Road (Station Road), Chittagong, since many years in his shop‑house under valid permit of the authority of the Chittagong Municipality.
(3) That the petitioner constructed his shop‑house, at his own cost under valid permit of the authority of the Chittagong Municipality and as such he is in bona fide occupation of his shop site.
(4) That subsequently the roadsides were taken over by the C & B Department from the Municipality and the Railway, and that the shop site of your petitioner is outside the Railway fencing and boundary and that the Railways have got no title in the disputed land.
(6) That at the instance of the Executive Engineer, E.B. Rail way, Chittagong, who alleged the petitioner and others as trespassers and encroachers upon the Railway land, the learned Sub‑Divisional Officer (North), Chittagong issued notice dated 22‑7‑59 to the petitioner to remove the structure and that the notice was, however, received by him on 1‑10‑59. The copy of the said notice is annexed herewith and marked as Annexure "A".
(7) That, thereafter, the Executive Engineer, E. B. Railway filed a fresh petition under sections 5 and 6 of the East Bengal Government Land and Buildings (Recovery of Possession) Act (E. B. Act X of 1953) before the learned Sub‑Divisional Officer for taking necessary action under the law.
(9) That the said learned Sub‑Divisional Officer 'without considering the facts and circumstances of the case passed an order on 5‑1‑60 in the petition case No. 235 of 1955 asking the petitioner and others to vacate their respective premises by 2 p.m. on Saturday, 9‑1‑60. A copy of the said order dated 5‑1‑60 is annexed herewith and marked as Annexure "B".
The statements made in affidavit in opposition to this petition are similar to those which have been made in connection with the first petition. "
In writ petition No. 69 of 1960 the petitioner Mr. Md. Siddique has stated inter alia, as follows:‑
"(2) That your petitioner has been carrying on trade in Pan, Bidi and stationery goods in a shop house known as Municipal Stall No. 72/75 at Abdur Rab Nishtar Road alias Station Road, Chittagong on the roadside land of Chittagong Municipality as tenant and as successor in occupation of the site of Md. Ishaque the original lessee under the said Municipality.
(3) That your petitioner's landlord and predecessor in occupa tion of the said Md. Ishaque erected at his own costs the said shop house on roadside vacant land belonging to the Chitta gong Municipality under valid permit of the authority of the said Municipality in1940 and also according to the agreement entered into between him and the authority of the said Municipality and that the said Md. Ishaque had paid rent to the Munici pality.
(4) That the said Md: Ishaque had let out the afore said shop house to your petitioner and your petitioner is in occupation of the same on payment of rent and has been carrying on the said trade therein since 8 years.
(5) That accordingly your petitioner is a bona fide occupant of the land under valid lease.
(6) That the said roadside land of the said road where the shop house of your petitioner was erected were subsequently taken over by the C & B. Department from the Municipality and the F. B. Railway now disclosed that the said roadside lands had been taken over by the Railways and that they belonged to the Railways.
(7) That your petitioner's shop site is outside the fencing and boundary of Chittagong Railway Station and that there is vacant land in between his shop house and the fencing and boundary of Railway Station, and that your petitioner does not admit that the Railways have got any title in the disputed land."
We may state that the affidavit in opposition' in this case is also on similar lines.
Writ petition No. 73 of 1960 has been made by thirteen persons, only one of whom has verified the petition to this Court. We shall consider the petition only as far as Abdus Shakoor, who has verified the same, is concerned, and we reject the application in limine in respect of the other twelve petitioners.
Petitioner Abdus Shakoor in the petition has stated, inter alia, as follows:‑
"(2) That the petitioner No. 1 has been carrying on business in Pan, Bidi and Cigarettes in Stall No. 53 since 8 years at Abdur Rab Nishtar Road (Station Road), Chittagong, on the roadside land of the Chittagong Municip4lity as a tenant under the original lessee under the Chittagong Municipality ; and that his predecessor Akbar Ali, the Original Lessee constructed the said Stall No. 53 under valid permit of the authority of Chittagong Municipality at his own costs and got lease of the Stall from the Municipality on payment of rent 16 yeas ago and let out the same to the petitioner No. 1.
(14) That, subsequently, the roadside lands were taken over by the C and B Department, from the Municipality and that the shop sites of the petitioner are outside the Railway fencing and boundary and that the Railways have got no title in the dis puted land.
(15) That now the Railway Company discloses that the disputed lands have been taken over by the Railway from C and B Department.
(16) That at the instance of the Executive Engineer, E. B. Railway, Chittagong, who alleged the petitioners and others as trespassers and encroachers upon the Railway lands the learned Sub‑Divisional Officer (North), Chittagong, issued notice dated 22‑7‑59 to the petitioners to remove their structures.
(A copy of the said, notice is annexed herewith and marked as annexure "A".)
(17) That, thereafter, the Executive Engineer, E. B. Railway filed a fresh petition under sections 5 and 6 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act (E. B. Act X of 1953) before the learned Sub‑Divisional Officer for taking necessary action under the law.
(18) That the petitioners appeared before the said Sub -Divisional Officer and filed objections stating inter alia that as the dispute lands do not belong to the Railway Company, they are not liable to be ejected at the instance of the Executive Engineer, E. B. Railway.
(19) That the said learned Sub‑Divisional Officer without considering the facts and circumstances of the case passed an order on 5‑1‑60 in the petition case No. 235 of 1959 asking the petitioners and other to vacate their respective premises by 2 P. M. on Saturday, 9-1‑1960 : A copy of the said order dated 5‑1‑1960 is annexed herewith and marked as Annexure "B"."
The affidavit‑in‑opposition in this case again follows the same pattern.
We would now dispose the aforesaid four petitions which raise identical questions before as.
It will be seen that in all the aforesaid petitions the petitioners claim that they are in possession of the lands by virtue of leases taken from the Chittagong Municipality to whom the lands belong. The Eastern Bengal Railway, on the other hand, claim the lands in dispute for themselves. As we have seen, they rely on an entry in a revisional survey khatian and on a letter addressed by the Administrator of the Chittagong Munici pality to the Superintendent of Police, Chittagong. So far as the revisional survey khatian is concerned, it is difficult for any tribunal to hold that the lands belonged to the, railway except upon x relaying of the map in respect of the khatian. Furthermore. It will be seen that the letter addressed by the Administrator of the Chittagong Municipality to the Superintendent of Police, Chittagong, is to the following effect :‑
"Office of the Administrator. Chittagong Municipality.
Memo No. 4235‑S.
From.‑S. Ahmad, Esqr. Ep. Cs. Administrator, Chittagong Municipality.
To. The Supdt. of Police, Chittagong. Dated, Chittagong the 3rd October, 1950.
Sub:‑Removal of temporary structures from the side of the Station Road opposite to Fresco's.
Ref : His Memo No. 1105/F dated 23‑9‑59.
The temporary stalls erected by the side of Station Road, specially in front of Fresco's are mostly on Railway land and not on Municipal land. So Railway Authority may kindly by directed to get the stalls removed as early as possible.
Sd.. . ........... Administrator.
Forwarded to the General Manager, E.B. Railway, Chittagong for information.
Sd..................... Supdt. of Police, Chittagong."
It will be seen from the letter quoted above that the Administrator does not say that all the lands by the side of the Station Road belong to the railway ; all that has been stated in the letter is that temporary stalls erected by the side of the Station Road, specially in front of the Fresco's, are mostly on railway land and not on municipal land. It is apparent that in that letter it has been clearly indicated negatively that there are possibly some lands by the side of the Station Road which may not belong to the rail way. Besides, the description of temporary stalls in front of the Fresco's is another limitation stated in the letter itself. It is, therefore, impossible to conclude from the aforesaid letter that the Chittagong Municipality has admitted that all the lands claimed by the petitioners belong to the Eastern Bengal Railway. There is no such admission in the aforesaid letter.
The position therefore, resolves itself thus : The petitioners before us have come with a clear case that they are in possession of the lands occupied by them and the structures and materials thereon. The factum of such possession cannot‑and has not been denied by the Eastern Bengal Railway. Therefore, at least, in respect of the immediate possession of the lands the petitioners have come to this Court with a clear and unambiguous title in the sense that their possession is admitted. The Eastern Bengal Railway claims title to the disputed lands and it is patent that its title to the same can only be, decided upon an investigation of the respective claims of the parties.
Be that as it may, the questions before us, as mooted by the respective parties, is, whether the aforesaid order passed by the Sub‑Divisional Officer (North) Chittagong, is a valid and a legal order, which can be supported on the basis of some law.
Even if the Eastern Bengal Railway can establish its title to the lands (which, as we have said, has to be investigated), the Sub -Divisional Officer (North), Chittagong, has no jurisdiction to pass the order sought to be impeached.
It is patent that the Sub‑Divisional Officer (North), Chittagong, purported to act as a Court, and this is apparent not merely from the manner and form in which the order has been couched but also from the order itself. On a proper analysis the order, in fact, amounts to a decree passed in a suit for ejectment. The Sub‑Divisional Officer has only appended to his order the following rider :
"Ask S.P. for adequate force. Inform O.C.G.R.P."
It was contended on behalf of the respondents that the aforesaid order was a mere executive order and that the same was not justiciable.
The short answer to this argument is that in the first place the order as passed by the Sub‑Divisional Officer cannot be described as a mere executive action, and then again, even if it is an executive action, it must be supported by some law of the country which vests in Sub‑Divisional Officer jurisdiction to pass the order made' by him. The said order is definitely an invasion upon the proprietary the rights of the petitioners, namely, a threa tened disturbance of the possession of the lands by the petitioners. The argument advanced on behalf of the respondents pre‑supposes that a vague, indefinite and wide power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country ; otherwise, such invasion would be illegal and our Court would not only subject the same to their scrutiny but would also enforce the rights of citizens whenever there is an encroachment upon such rights without legal jurisdiction. The order is essen tially an order of eviction backed by police force.
However, it is significant to note that the said order was passed in respect of a case which has received a number mark as such, in the order itself. In the order sheet, the order purports to have been made in the Court of the S.D.O. (North) Chittagong. There is also a description of the parties before such a Court which shows the existence of a lis between two rival parties. The said Court heard the respective parties and finally adjudicated upon their rights. As already stated above, the order passed is similar to a decree which a Civil Court would have passed in a suit for ejectment at the instance of a party. Thus it will be clear that the order was not only made with all the trappings of a Court, but the order passed was precisely in the nature of a judicial order upon adjudication of a dispute between the parties before the Sub‑Divisional Officer (North), Chittagong. It will be noticed that the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 provides, inter alia, as follows :
""Section 2 (a) : "building" means a building owned by the Provincial Government, and includes the land appurtenant thereto."
Sections 5 and 6 ibid read as follows :‑
Section S.‑(1) If the Provincial Government is satisfied, after making such enquiry as it thinks fit that a person is an unautho rised occupant, it may, by order in writing, direct such person to vacate the land, building or part of a building in his occupa tion within the period specified in the order.
(2) If the person against whom an order under subsection (i) has been made, refuses or fails to vacate the land, building or part of a building in his occupation within the time fixed then, notwithstanding anything contained in any other law for the time being in force, .it shall be lawful for the Provincial Government 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.
Section 6.‑For the purpose of recovering khas possession of any land, building or part of a building under the provisions of section 3 or section 4 or section 5, the Provincial Government may use or cause to be used such force as may be neces sary."
From the affidavits filed on behalf of respondents Nos. 3 and 4 it appears that the Sub‑Divisional Officer purported to act under the aforesaid sections 5 and 6, and section 122 of the Railways Act. It is quite clear that the Sub‑Divisional Magistrate has been misled by the provisions of section 6 as quoted above.
The said Act of 1952 however, relates only to land belonging to the Provincial…
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