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Writ Petition No. 180 of 1960, decided on 30th July 1962.

Question of fact requiring protracted investigation on further evidence‑Matter not to be decided in writ petition-- Suit, held, more appropriate and adequate remedy‑Constitution of Pakistan (1956), Art. 170.

Question of fact capable of decision on admitted facts before Court‑Can be gone into in writ petition-- Constitution of Pakistan (1956), Art. 170.

Mandamus Pendency or filing of suit for adjudi cation of same issues not established‑Petition for mandamus, held, competent ‑ Constitution of Pakistan (1956), Art. 170.

"Katchery" retainable khas land‑Neither decision by Provincial Government to acquire 'katchery' nor notification under S. 3 (2) to that effect proved Impugned order of acquisition directed to be cancelled.

Gokul Chandra Roy v. Sub‑Divisional Officer, Narayanganj Writ Petition No. 209 of 1961 (unreported) ref.

M. H. Khondkar and Akram Hossain for Petitioners.

Maksumul Hakim and S. M. Abbas A.‑G. for Respondents.

Petitioners, Ibrahim Mondal and Md. Anwar Hossain, claim interest in the lands which have been described in their application filed in this Court. They .have claimed that the said lands constitute their khas lands. On a previous occasion in 1957 the local authorities in the District of Rajshahi served a notice upon them by which they claimed that the said lands, being a "katchery," stood acquired by the Provincial Government and the petitioners were, therefore, asked to deliver possession within a specified time. On representations made by the petitioners, the matter was dropped. But again in August 1961, the Sub -Divisional Officer of Natore communicated to the petitioners a memorandum, being Memo. No. 4846 (2) G. A., dated the 7th of August 1961, asking the petitioners to deliver possession of the property on the ground that the property covered by said memorandum constituted a "katchery" and the same stood acquired by the Provincial Government by virtue of the previous notification which we shall mention hereafter. In the application the petitioners have set out various facts and particulars on the basis of which they contend that the said property does not constitute a "katchery" and as such it could not be acquired by the Provincial Government.

2. Upon the aforesaid allegations the petitioners obtained a Rule nisi from this Court calling upon the respondents to show cause as to why they should not be directed to withdraw, cancel and/or rescind the said order.

3. On behalf of the respondents an affidavit‑in‑opposition has been filed by a Section Officer of the Government of East Pakistan in the Revenue Department, stating that the property in question constitutes a "katchery" and as such it stood acquired by a previous Government notification. In support of their contention the respondents have also submitted some facts for consideration of this Court.

4. This application appeared for hearing in the peremptory list on the 19th of April 1962, before a Division Bench of this Court. The said Bench adjourned this case for three months as it felt that the issue as to whether the property in question constituted a "katchery" or not, was a disputed issue of fact which could not be properly decided in a summary proceeding like this. In view of the fact that the respondents took a rather unreasonable attitude in not staying their hands till the above mentioned disputed issue could be decided in a properly constituted suit, this Court adjourned the case as stated above. The Rule again came up for hearing before this Court in the peremptory list on the 27th of July 1962. Learned Advocate for the petitioners prayed for a short adjournment to enable him to apprise this Court as to whether a suit has been filed in respect of this property. On his prayer we again adjourned this case till today. When the application was called on for hearing today, neither the learned Advocate‑General who has appeared for the respondents, nor the learned Advocate for the petitioner could inform this Court as to whether any suit has been filed in connection with matter covered by this application. We, therefore, proceeded to hear this application on a different contention which also arises out of this application and the affidavits filed before us.

5: Learned Advocate for the petitioners has submitted that, even if the .property in question constitutes, a "katchery" (without conceding that it is "katchery'), property covered by the impugned memorandum has not been acquired by the Provincial Government in the manner as alleged by the respondents. In this application we do not propose to decide the question as to whether the said property is a "katchery" or not. This is a matter which will be necessarily dependent upon protracted investigation on further evidence for which a suit would be a more appropriate and adequate remedy.

6. It was contended on behalf of the petitioners that the claim of the Government that the property in question stood acquired by the Provincial Government by virtue of a previous notification, is wholly untenable. We think that this is a question which can be decided on the admitted facts before us, and we propose to do so.

7. Learned Advocate‑General, however, has argued that, since a suit is pending with regard to the matter covered by this application, no writ of mandamus will lie to this Court. It is true that, in accordance with a consistent and well established principle, this Court refrains from exercising its discretion in issuing writs of mandamus when a suit is already pending for adjudication of issue which are raised by applications for the issue of writs. But, it has not been established before us that a suit in this behalf has been filed by the petitioner, furthermore, we do not think that we will be justified in giving further adjournments in this case in order to obtain light on this question. Therefore, we cannot hold that a suit is pending about the matter which we propose to consider.

8. With regard to the question which has now been agitated before us, we would like to set out the provisions of section 3 (2) of the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951). The said section 3 (2) reads thus .

"Subject to the provisions of subsections (2), (3), (4), (5) and (6) of section 20, the Provincial Government may also, simultaneously with or at any time after the publication of a notification under subsection (1) in respect of the interest of any rent‑receiver in any estate, taluk, tenure, holdings or tenancies acquire, by notification in the official Gazette, with effect from such date as may be specified In the notification (hereinafter referred to as the notified date) all or any of the lands in his khas possession of which he shall not be entitled to retain possession under the said section and so much of the lands in his khas possession as has been acquired under this sub section and has not vested in the Provincial Government under clause (a) of subsection (4) shall vest absolutely in the Provincial Government free from all incumbrances."

Section 20 (2) (a) of the said Act reads as follows :‑

(2) A rent‑receiver, a cultivating raiyat, a cultivating under raiyat or a non‑agricultural tenat shall be entitled to retain, as a tenant under the Provincial Government, possession of‑

(a) Land covered by his homestead or any other building belonging to him with necessary adjuncts thereto, other than such building or part of a building outside his homestead as is used primarily as office or katchery for the collection of rents of any estate, taluk or tenure and may be acquired by the Provincial Government."

It has been frankly conceded by the learned Advocate‑General that there is no other notification or order passed by the Government by which a specific decision has been taken to acquire the katchery in question. But he has referred us to two notifications under which, he has contended, the said property stood acquired by the Provincial Government. The first noti fication is Notification No. 5714 LR 7th May 1953 by which rent‑receiving interests of the petitioners are purported to have been acquired under subsection (1) of section 3 of the said Act by the Provincial Government. We may dismiss this point by saying that this notification has no references to khas lands of rent‑receivers or other classes of persons.

9. From a comparison of the provisions of subsections (1), (2) and (4) of section 3 with those of section 20(1) and (2) (a), (b) it will be clear that on a notification published under section 3 (1) the interests of the rent‑receivers in the estates, taluks and tenures specified in the notification including their interests in all the lands in the khas possession and also including their interests in any building etc. Specified in subsection (4) shall vest in the Provincial Government.

10. Upon the publication of a notification under sub section (2) all the lands in the khas possession of the rent -receiver, excluding retainable lands under section 20 (2) (a) and (b) shall vest in the said Government. Under subsection (2) there is vesting of the land itself and under subsections (1) and (4) there is vesting of interests in land and building. Section 20 (1) and (2) (a), (b) specify the retainable lands. However, on the 2nd April 1956, a series of notifications were published under subsection (2) of section 3 of the Act in the Dacca Gazette by the Provincial Government, and in respect of khas lands in the District of Rajshahi the following notification was issued, namely, Notification No. 4844 LR., dated the 2nd of April 1956. The said notification runs thus

"In exercise of the power conferred by subsection (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. (XXVIII of 1951) as amended by the East Bengal State Acquisition and Tenancy (Amend ment) Ordinance, 1956 (East Bengal Ordinance No. III of 1956), it is hereby notified for the information of all con cerned, that the Governor is pleased to acquire, with effect from the 14th April 1956, all lands in the khas possession of all rent‑receivers situated in the District of Rajshahi, other than the classes of lands coming under clauses (2‑a) and (b) of subsection (2) of section 20 and other than, such lands as have already been acquired by, and have already vested in, the Provincial Government under the provisions of the said Act."

11. It would thus be clear that the aforesaid notification expressly excludes from acquisition such khas lands within the meaning of section 20(2)(a) and (b) of the said Act, therefore, such khas lands, which come within the meaning of section 20 (2) (a) and (6), have not been acquired by the Provincial Government. Referring again to the provisions of section 20 (2) (a), as quoted above, it would be clear that any building belonging to a rent -receiver or to other classes of persons specified therein, would constitute a retainable khas land except "such building or part of a building outside his homestead as used primarily as office or katchery for the collection of rent of any estate, taluk or tenure and may be decided to be acquired by the Provincial Government." It, therefore, follows that a katchery would come within the category of retainable khas land, unless the Provincial Government has decided to acquire it. Upon such decision the katchery in question would lose its character as a retainable khas land.

12. Admittedly, in this case no such specific decision, was taken by the Provincial Government with regard to the acquisition of the alleged katchery in question. Learned Advocate‑General has contended that it stood acquired by the aforesaid Gazette notification of the 2nd of April 1956. We fail to see how it was acquired in the face of express exclusion of such land under section 20 (2) (a) and (b). If a specific decision is taken by the Provincial Government to so acquire the property in question it will become an acquirable khas land, if it is a katchery. The decision however, must be that of the Provincial Government and not of the Deputy Commissioner or officers subordinate to him.

13. The impugned memorandum addressed to the petitioner does not by itself constitute a decision by the Provincial Government, although it may reflect the mind of the Additional Deputy Commissioner, Rajshahi or the Sub‑Divisional Officer, Natore.

14. Then again, after such a decision by the Provincial Government, the property in question, if it is a katchery, would not be acquired automatically upon such decision ; it would become acquirable khas land inasmuch as it would b.‑ outside the category of khas lands as defined in section 20 (2) (a) ; but the Provincial Government will have to acquire the same under a notification under seption 3 (2) of the Act, which is the only manner prior to a final publication of the assessment rolls by which such property can be acquired. In this case, admittedly, there has been neither any decision by the Provincial Government to acquire the said katchery, nor has there been any notification under section 3 (2) of the Act to acquire the same. This point r, is also covered by our decision in Writ Petition No. 209 of 1961', Gokul Chandra Roy v. Sub‑Divisional Ofcer, Narayanganj dated the 23rd of July 1962. We, therefore, hold that the respondent) have not yet acquired the alleged katchery in question.

15. In these circumstances, we make the Rule absolute and direct the respondents to cancel the impugned Memorandum No. 4846 (2) G. A. dated the 7th of August 1961. The petitioners are entitled to their costs of this application, which we assess at five Gold Mohurs.

‑I agree.

Q. s.

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