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Petitioner: JHARI SOHANI AND ANOTHER VS Respondent: PROVINCE OF EAST PAKISTAN AND ANOTHER
P L D 1964 Dacca 142
P L D 1964 Dacca 142
Before Sattar and Sikandar Ali, JJ
JHARI SOHANI AND ANOTHER‑Petitioners
versus
PROVINCE OF EAST PAKISTAN AND ANOTHER -Respondents
Writ Petition No. 222 of 1961, decided on 4th April 1962.
(a) East Bengal Government Lands and Buildings (Recovery of Possession) Act (X of 1953)‑Bona fide dispute regarding title of lands in question‑‑‑Provisions of Act not applicable for ousting person claiming title to such lands.
(b) Writ‑Mandamus‑Condition that it must be preceded by demand of justice and refusal thereof‑Not inflexible.
District Magistrate Lahore and Commissioner, Lahore Division v. Syed Raza Kazim P L D 1961 S C 178 distinguished.
U. K. Roy and K. Hossain for Petitioner.
Maksum‑ul‑Hakim Advocate‑General and T. H. Khan for Respondents 1 and 2.
A. F. M. Mesbahuddin, Maizuddin Ahmed and A. W. Mian for the added Respondent.
JUDGMENT
SATTAR, J.‑A Rule nisi was issued upon the Province of East Pakistan and the Deputy Commissioner, Dacca, to show cause why a writ of mandamus should not issue directing them to rescind, withdraw and cancel the notice No. 9284 (3) S. A. IX/61, dated the 24th of October 1961, under Act X of 1953 asking petitioner No. 1 and two others to vacate .1002 and .0400 acres of land in front of plots Nos. 320 and .325 of Imamganj, Sheet No. 16 of Sahar Dacca.
2. The petitioners claim that the above plots of land were accretions to plots Nos. 320 and 325 which belonged to the Nag Babus. Petitioner No. 2 took settlement of the plot which accreted to plot No. 320 in 1945 and has been in possession of the same on payment of rent to the said Nag Babus and then to Government after acquisition of rent‑receiving interest. Similarly, the other plot, which accreted to plot No. 325, was taken settlement of by petitioner No. 1 and his son in 1952, and they first paid rent to the Nags, and have been paying rent to Government after acquisition of rent‑receiving interest.
3. Mahboob Hasan, the added respondent and his wife, by virtue of a transfer in their favour of plots Nos, 320 and 325, claim the disputed plots, and failing to get possession instituted two title suits, one against petitioner No. 1 and others and the other against the brother of petitioner No. 2 and some others for declaration of title and khas possession after removing them from the suit land. The suits were dismissed and the appeals preferred by the plaintiffs were also dismissed.
4. In the current settlement operation, the name of petitioner No. 2 and his son have been recorded in respect of one of the plots at a jama of Rs. 42 and the name of petitioner No. 2 has been recorded in respect of the other plot at a jama of Rs. 10. On the 24th of October 1961, the impugned notice was served on petitioner No. 1 and other stating therein that, as the disputed plots had been settled with the owner of plots Nos. 320 and 325, petitioner No. 1 and others were asked to vacate the land by removing the structures within three days from the date of service of the notice failing which they would be evicted by Police force. Petitioner No. 1 filed an objection on 28th of October 1961, which was rejected on the 15th of November 1961, and the Joint Deputy Commissioner fixed the 20th of November as the date when they would be removed by Police force. The petitioners came to learn about this order of rejection only on the 13th of October 1961. The petitioner thereafter moved the Joint Deputy Commissioner on the same date for some time so that a writ petition could be filed but no time was granted and thereafter the petitioner moved this Court on the 20th of November 1961, and obtained the present rule.
5. In affidavit in‑opposition on behalf of respondents 1 and 2 has been filed by Mr. Kazi Azizul Islam, Extra‑Assistant Commissioner, Dacca, Paragraphs 2, 4 and 5 which are relevant for the purpose of disposal of the points raised in this case run as follows
"2. That the statements made in paragraphs 1 and 1 (A) are not at all correct and are denied by this deponent ; that the lands in dispute are neither the portion of plot No. 320 nor of plot No. 325 as alleged ; that the correct facts are that the lands in question are the foreshore lands of the River Buriganga accreted in front of plot Nos. 320 and 325 of sheet No. 16 of Mouza Sahar Dacca, P. S. Lalbagh, District Dacca : that the Province of East Pakistan is the absolute owner of the said accreted land and the Government has absolute right to settle the same on receipt of power and adequate consideration ; that it is firmly asserted that Krishna Kanta Nag and others, ex‑proprietors and owners of plot Nos. 320 and 325 did never take settlement of the accreted land in question from the Government by enhancement of Government revenue ; that section 87 of the East Bengal State Acquisition and Tenancy Act has conceded right of accreted land to riparian owners subject to payment of additional revenue to the Government ; that the petitioners did not take nor were they willing to take settlement .of the land in question on payment of revenue to the Government ; that the original owners of `asli' land never took any settlement of the accreted land in question from the Government and consequently they had no right to settle the same with anybody ; that Krishna Kanta Nag and others did never take any settlement of the land in question and consequently they had no right, title and interest m the same with the petitioners ; that the petitioners story of taking settlement from the Nag Babus is wholly false, and is denied by this deponent ; that the so‑called amaInamas alleged to have been obtained by them are unregistered and are of very doubtful nature ; that without a registered deed no tenancy with respect to non‑agricultural land can be created.
4. That with regard to the statements made in paragraph 3 of the petition this deponent states that on local enquiry it had been ascertained that petitioner No. 1, Jhari Sohani was in occupation of '0400 acres of accreted land in front of plot No. 325 and that petitioner No. 2, Somar Sohani has been possessing .0204 acres in front of plot No. 320 ; that it is wholly false to say that .1002 acres and .0400 acres of lands are in respective possession of Jhari Sohani and Somar Sohani ; that it is wholly false to say that the petitioners were in possession of the lands in question taking bona fide settlements from the Nag Babus ; that it is firmly asserted that the Nag Babus did not take any settlement of the accreted lands to plots Nos. 320 and 325 by enhancing the Government revenue and consequently they had no right, title or interest in the said accreted lands and they had no right, title or interest in the said accreted lands and they had no right to settle the same with any body ; moreover, the, petitioner's alleged story of taking settlement is false and baseless ; that the petitioners are called upon to produce documentary proof before the Hon'ble Court in support of their title on the basis of settle ment from the Nag Babus and also the title of Nag Babus in respect of the accreted lands. That it is respectfully stated that the complicated question of title evolving disputed questions of fact cannot be effectively and finally decided in a summary proceedings ; that the petitioner's remedy, if any lies in properly framed title suit in Civil Court. That it is further stated that petitioner No. 1 Jhari Sohani has since been evicted from the land in his unauthorised occupations on 20‑11‑1961, under the provisions of Act X of 1953 by way of removing his unauthorised constructions therefrom ;that the writ petition in so far as petitioner No. 1 is concerned has become unfructu ous and/or not maintainable.
5. That the statements made in paragraph 4 of, the petition to the effect that the petitioners have been paying rent to the landlords Nag Babus for their Jama of Rs. 42 are not all correct and are denied by this deponent ; that the petitioner's right, title and interest in the land in question on the basis of settlement from the former landlords, the Nag Babus, and also the very right, title and interest of the said Nag Babus in respect of the accreted lands to question have already been denied in the preceding paragraphs of this affidavit‑in‑oppo sition ; that the settlement of the land in question by the ex‑rent receivers, if any, having been wholly illegal and void, the payment of rent by petitioners to them and possession of rent receipts, if any, has not at all conferred any right, title or interest on the petitioners in respect of the land in question. That with regard to the remaining statements of the said paragraph this deponent states that acceptance of any rent from the petitioners by the Tahsildars if at all, after acquisition of the rent receiving interests, on the basis of preliminary rent‑roll (which have not yet been finally published) and by provisional rent‑receipts, has not conferred any right, title or interest on the petitioners in respect of the land in question."
6. An affidavit‑in‑opposition has also been filed by Mr. Mahboob Hasan. His claim with regard to the disputed plot may be gathered from paragraph 8 of the affidavit filed by him which runs as follows :‑
"8. That the statements made in paragraph No. 3 of the petition are not correct and are absolutely confusing and misleading. It is not a fact that ' 1002 acres and '0400 acres of the accreted lands are in respective possession of petitioner No. 1 Jhari Sohani and his son and petitioner No. 2 Somar Sohani respectively. The alleged settlement taken by the petitioner No. 1 and his son not being legal and bona fide, petitioner No. 11 was in unauthorised possession of a ' small portion of disputed lands. None of the sons of petitioner No. 1 has any interests or any possession of any portion of the accreted lands contiguous to C. S. plot No. 325 as stated in the writ petition. He further asserts that petitioner No. 1 was never in possession nor he had any interest in the accreted lands contiguous to south of plot No. 320. He further asserts that when Government decided to settle the accreted lands with the deserving candidates these accreted lands were measured and resurveyed and a comparative map was prepared showing different blocks. Out of these blocks, block "C" consists of land measuring, 1002 acres which is to the contiguous south of plot No. 325 and eastern part of plot No. 320 and block "F" consisting of land measuring .0400 acres is to the south east corner of block "C" and neither petitioner No. 1 nor his son is in possession of the said block "C" which has been in fact in possession of this deponent who has constructed Pucca godowns with C. I. sheet roofing and wall and one Kacha shed thereon for his own use as his godowns and office. He also pays usual Municipal rates for the same. Subsequently, the right, title and interest of this deponent with respect to the said block "C" (measuring * 1002 acres) was regularised by the Government on the basis of the settlement and thus this deponent was accepted as a tenant by the Government on receipt of a premium of Rs. 12,745.45 paisa on 28‑10‑61 with respect of block "C" consisting of (.1002 acres) and also a block "F" consisting of (.0400 acres).
Copy of the premium receipt of Rs. 12,745.45 paisa together with the notice issued by the Joint Deputy Commissioner, Dacca, are annexed herewith and marked as Annexures D and DI respectively.
He further asserts that block No. "F" (measuring '0400 acres) is not in front of plot No. 320 but on the south eastern corner of block "C". So it Is clear that block "F" being not in front of plot No. 320 petitioner No. 2 was never in posses sion of this block "F", but the petitioner No. I was in unauthorised occupation of the said block "F" (measuring *400 acres) from which he has been evicted by the Collector under the provisions of Act X of 1955 on 20‑11‑61. The deponent further asserts that one Arjumia of Imamganj who was also in unauthorised possession of block "F" gave up possession in favour of this deponent after receiving the notice to vacate under Act X of 1953. Therefore, this deponent submits that the writ petition, so far as petitioner No. I is concerned, has become infructuous and petitioner No. 2 Somar Sohani having no possession in any part of the lands mentioned in the writ petition, the writ petition is not maintainable for misjoinder of parties and for want of cause of action, so far as petitioner No. 2 is concerned."
7. In support, of the rule, Mr. Roy contends that, in the facts and circumstances of this case, Act X of 1953 does not apply and cannot be taken resort to by the Provincial Govern ment for ejecting the petitioners. According to the learned Advocate, the petitioner's claim, title to the disputed lands which cannot be determined except by the Civil Court and the Executive Authorities cannot be said to have been vested with rights under Act X of 1953 to determine such questions. It cannot now be questioned that if there is a bona fide dispute regarding title of the lands in question, then the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953 cannot be applied by Government for ousting from such lands the person or persons who claim such title to the said lands. In the case of Syed Hatem Ali and others v. Province of East Pakistan and others (1) a Division ‑ Bench of this Court, to which one of us is a party, took this view and this has been armed by the Supreme Court. The learned Advocate‑General contends that the claim of title by the petitioners is not bona fide and they have not been able to establish a prima facie title and so the facts of this case are distinguishable from the facts of the above case. It is pointed out that the petitioners have not filed any papers to prove that they had taken settlement of the disputed lands from the ex‑rent‑receivers or that the said rent‑receivers took settlement from Government of the accreted lands after they had appeared by the recession of the river, and lastly that, as these lands are within the municipal limits of Dacca, no prima facie right can be claimed without a registered document.
8. It is true that the petitioners have not filed any papers to prove the settlement taken from the Nag Babus. But the judgments in the Civil Suits which the added respondent and his wife filed against petitioner No. 1, the brother of petitioner No. 2, and some others have been filed. They indicate that the defendants in those suits claimed title on the basis of settlements from the ex‑rent‑receivers and filed papers in support of that. The Courts, however, did not go into the question of title to bold that the defendants were in possession of the lands.
9. As regards the condition that since the owners of the "asli" lands did not take settlement of the accreted lands from Government the accreted lands did not vest in the said owners, we may observe that this question depends upon an interpretation of the provisions of Regulation XI of 1825 and Act XXXI of 1858. The question is not so simple to answer as contended by the learned Advocates for the respondents. We, however, are not called upon to determine the title of the petitioners or its nature in this case. All that we are concerned with is whether on the allegations of act it can be said that the petitioners have a bona fide claim of title to the disputed lands which cannot be decided without a detailed investigation of facts and the law. We have no manner of doubt that in the present case the petitioner's claim cannot, on the face of it, be called colourable or without any basis. In that view of the matter, the action proposed to be taken by Government under Act X of 1953 is beyond the scope of the Act. The Act applies only when the title of Government to any lands or building is not in dispute ; but, when such title is disputed on bona fide grounds by a person, the provisions of the Act cannot be applied as against such a person.
10. It appears that no notice on petitioner No. 2 was issued. Nevertheless, as the land claimed by him is included in the notice he has the right to come to Court.
11. The learned Advocate‑General then contends that, as the petitioner did not serve any notice on Government demanding justice, their petition should be rejected in limine. The petitioner's explanation in this connection is that on receipt of the impugned notice an objection against it was filed on the 28th of October 1961 but it was rejected on the 15th November 1961, fixing the 20th of November 1961, as the date on which the petitioners would be removed by police force. The petitioners came to learn about the order on the 18th of November 1961. Petitioner No. I on that date moved the Joint Deputy Commis sioner for time to enable him to file a writ petition before the High Court and to stay the operation of that order but his petition was rejected on that very date. The petitioners moved this Court on the 20th November 1961, and could not serve a formal notice demanding justice as only one day intervened in between which was a Sunday. The Advocate‑General's contention is that the service of such a notice is a condition precedent and no writ of mandamus can be issued unless such a notice has been served. The salutary principle underlying this insistence cannot be questioned. It enables Government to make amends and avoid unnecessary expenditure for the Public Exchequer when the claim is considered to be just and proper. Reliance has been placed in this connection on the case of The Queen v. Mayor and Justices of Bodmin (P L D 1961 S C 178). In this case, the only point that fell for consideration was whether a second application for a writ of mandamus could be entertained after another application for the same purpose had been dismissed on the ground that there was no demand and refusal of justice.
12. The learned Advocate‑General then relies on the case of District Magistrate, Lahore and Commissioner Lahore Division v. Syed Raza Kazim ((1892) 2 Q B 21). In this case the Supreme Court allowed the appeal preferred by the District Magistrate, Lahore and the Commissioner, Lahore Division against the judgment and order of a Division Bench of West Pakistan High Court com manding by a mandamus the District Magistrate of Lahore to issue an arms licence as prayed for by the respondent, Syed Raza Kazim. On merit, it was held that the respondent could not claim any right to possess or carry any kind of arm or ammunition except when permitted to do so by the appropriate authority and, therefore, the prayer for a writ of mandamus by issuing a permit to possess a revolver could not be entertained. Hamoodur Rahman, J., after having held that the application for a writ of mandamus was not maintainable on the above grounds on merit, observed as follows :‑
"There are other good reasons, too, upon which this appli cation for a writ of mandamus must fail. The accepted conditions for the grant of this nature are that it must be preceded by a demand of justice and the refusal thereof and that there should be no other equally expenditious, inex pensive and efcatious remedy available to the person seeking this extraordinary remedy. In the present case it appears that the respondent had upon the refusal by the District Magistrate to issue the licence actually preferred an appeal, in accordance with the provisions of rule 43 of the Arms Rules, to the Commissioner and that the said appeal is still pending. In reply filed by the Government it is stated that appeals are taken up in due course in the order of property in which they have been filed. Having availed of this alternative remedy he cannot now be allowed to again ask for nuindamus against the authority from whose order he has preferred the appeal. Having elected to adopt the special procedure of redress provided under the Arms Act he must first exhaust his remedies there under. There is again nothing on the record to show that the respondent ever called upon the Commissioner to dispose of the said appeal or that the Commissioner ever refused to do so. Hence the delay of six and a half months complained of by the respondent cannot by itself amount to be a denial of justice."
13. It is on these observations that the learned Advocate -General has relied in support of this contention that the petitioners' application should fail as there was no demand of justice and refusal thereof in the present case. On a careful consideration of these cases, we find that in the case of Queen v. Mayor and Justices of Bodmin the point that falls for determi nation before us did not arise in the case of the District Magis trate, Lahore and Commissioner, Lahore Division v. . Syed Raza Kazim the observations already quoted do not indicate that this demand and refusal are inflexible condition precedent to the issue of writ of mandamus. While it is true that the Court will insist on the proof of such a demand and refusal before issuing a writ of mandamus, for the reasons already stated, it will not, however, correct to say that this cannot be deviated from, when, from established facts and circumstances, it can be shown that the demand would have been meaningless and resulted in frustrating the petitioner's whole purpose. We have already set out the circumstances under which the petitioners had to come and move this Court on the 20th of October 1961. The prayer to stay his hands for some time made on Saturday that 18th of October 1961, so that the High Court could be moved against his order to evict the petitioners by Police force was also refused by the Joint Deputy Commissioner. In such circum stances, the demand of justice would have been "but an idle ceremony", with the petitioners having been thrown on the street. The facts disclosed in the affidavit filed by the petitioners clearly indicate that the officers concerned were bent on carrying on through their intention to eject the petitioners and the information given even on the 20th of November 1961, that the High Court had already granted a stay order also proved unavailing and the structures of the petitioners were demolished. They have however asserted that they are still in possession. "The requirement that there must be a demand to perform the act sought to be enforced and a refusal to perform it a very useful one but it cannot be applicable in all possible cases". The King v. The Revising Barrister for the Brough of Hanley and The King v. The Town Clerk of Stoke On‑Trent ((1912) 3 KB 518). In the United States of America it has been said "Demand is not of course necessary where it is manifest it would be but an idle ceremony". See Ferry's Extraordinary Legal Remedies, page 281. The Decision of the Judicial Committee in the case of The Commissioner for Local Government Lands and Settlement v. Abdul Husen Kader Bhai (AIR 1931 PC 132) does not go counter to the above observations. In the facts of the instant case, we are not prepared to hold that the failure to make a formal demand for justice disentitles the petitioners from asking for a writ of mandamus.
14. The learned Advocate‑General has somewhat feebly argued that, as the Joint Deputy Commissioner who issued the impugned notice is not a party in the case, the writ prayed for cannot be issued. We find no substance in this contention as the Joint Deputy Commissioner acted on behalf of the Province of East Pakistan and a writ against it will be effective and binding on all the officers of the Provincial Government.
15. Mr. Mesbahuddin has supplemented the arguments of the learned Advocate‑General by saying that a joint petition by the two petitioners who have distinct interest in the disputed lands is not maintainable. We do not find any force in this argument as only one notice was issued which affected the lands of both the petitioners.
16. In the result, the rule is made absolute with cost which we assess at three Gold Mohurs against each set of contesting respondents. We order that a writ of mandamus do issue directing respondents 1 and 2 to rescind, withdraw and cancel the Notice No. 9284 (3) SA‑1X/61, dated the 24th of October 1961.
SIKANDAR ALI J.‑I agree. S. B./K. B. A.
Rule made absolute.