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Civil Rule No. 1277 of 1965, decided on 13th April 1966.

‑Land or building in hat or bazar‑Cannot be retained by rent receiver‑Lands or buildings whether constitute part or parts of bazar‑Depends on whether lands and buildings standing thereon constitute and appertain to a certain bazar.

S. C. Bose for Petitioner.

Md. Jani Alam, Senior Government Pleader for the Opposite- Party.

.‑There is no dispute that, Hat and Bazar vested in the Government of East Pakistan in accordance with the provision of East Bengal State Acquisition and Tenancy Act (hereinafter called "the Act"). The dispute is how much land and how many buildings standing thereon form part of the well‑known Shambazar market.

Certain revisional survey plots of the Mouza Saber Dacca, sheet No. 4, were recorded in the name of the Collector on behalf of the Province of East Pakistan in the attested Khatian No. 5599. The petitioner Brojo Gopal Das filed an objection under section 19(1) of the Act that he was in possession of those plots by erecting houses and letting out to tenants. Initially the objection of the petitioner was allowed in respect of those plots including those plots, which had been in possession of the Government but the said order was vacated by the Settlement Officer under rules made under the Act on the ground of gross irregularity. The Settlement Officer thereafter directed Mr. M. Sarkar, S. D. A. S. O. to hear the objection case. He heard both the parties and by his order dated 12th December 1961, allowed the objection of the appellant in respect of the certain plots but neither was satisfied by the order and filed separate review petition. In the review petition, the Government, namely, the opposite‑party was successful to the detriment of the claim of the petitioner

Against that order, the petitioner filed an appeal under section 19 (21 of the Act before the Settlement Officer, Dacca. The same was tried and heard by S. D. A. S. O., Sadar, south, Dacca and he allowed the appeal in respect of the plots Nos. 7259, 7260 and 7331 and confirmed the order of Mr. Sarkar in respect of other plots. Thereafter the petitioner filed an appeal under section 53 of the Act.

The learned Subordinate Judge and Special Judge, Additional Court, Dacca, granted substantial relief in the appeal to the petitioner. Not being satisfied, the petitioner moved this Court against the said order and obtained the instant Rule.

Mr. Bose, the learned Advocate for the petitioner, has challenged this decision contending, inter alia, first that what forms part of the Bazar is not dependent on the existence of the Bazar but on the principle, what constitutes the temple property and the residence of the petitioner, and secondly that the fact that the buildings were constructed by the petitioner and let out to the tenants who converted the rented portion of the buildings into shops cannot be the determining factor in deciding what forms part of the . Bazar but the purpose for renting will determine. We do not find any substance in this contention. The determination of the constituent part or parts of the Bazar wilt be dependent on the question whether the Lands and buildings standing thereon constitute and appertain to a certain Bazar.

By clauses (a) and (b) to subsection (2) of the section 20 of the Act, the rent receiver, cultivating raiyats, non‑raiyats and non agricultural tenants have been authorised to retain lands covered by the homestead or any other buildings to them with necessary adjuncts thereto but not any building outside their homestead which was used primarily as office or kutchery for the collection of rents of any estate, taluk or tenures acquired by the Provincial Government and lands in their khas possession of the following classes;

(i) Lands used for agriculture or horticultural purposes including tanks;

(ii) Lands which are cultivable or which, are capable of cultivation on reclamation, and

(iii) vacant non‑agricultural lands.

The maximum of 100 standard bighas has been raised to 375 standard bighas.

Subsection (2A) of section 20 provides that notwithstanding anything contained in any other law for the time being in force or in any instrument or in any judgment or decree or order of any Court lands of the classes referred to in the clauses (a) and (b) of subsection (2) do not include and shall be deemed never to have included;

(i) any land or building in a Hat or Bazar, or

(ii) any fishery other than a tank constructed solely by process of excavation, or

(iii) any land consisting or forest, or

(iv) any land actually in use for a ferry.

From the above it appears that the rent‑receivers and others will not be entitled to retain any land or building in a Hat or Bazar and that necessarily has vested in the Government. There is no dispute that the petitioner is a rent‑receiver.

Having in view the above provision of law, we are to determine whether the order passed by the learned Subordinate Judge and special Judge, Additional Court, Dacca, is in viola tion of any provision of the Act, Mr. Bose in his affidavit‑in -reply has attached a map and referring to this it has been argued that he cannot claim the open land where the Bazar admittedly was started but his client is entitled to get the buildings standing to the north and south of the admitted open Bazar. His contention is that his client after constructing those buildings let out to the tenants who converted them into shops and for which he cannot be found guilty: It is very difficult to accept this contention. It is apparent from the affidavits and the statements made by the petitioner that after opening the market in the open land he constructed some buildings almost on its all sides keeping some open space in the middle and let out to the tenants. These tenants to the knowledge of the peti tioner converted them into shops and started business. Hence, necessarily, the buildings were constructed for the extension of the original market or in the original market. Further we find that there is a wall standing to the north of the buildings situated on the north of the open Bazar demarcating and separating the temple and the homestead of the petitioner from the market. Mr. Bose has contended that though there is a wall, still there is a communicating door and the said wall was raised to this height in order to maintain the secrecy of the homestead and the temple. We are unable to accept this contention. From the maps and the statements made by the parties, we find that the petitioner himself made the buildings in dispute part and parcel of the Shambazar market and accordingly are of the view that the buildings, the subject‑matter of this petition, do constitute part and parcel of the Bazar. The shop‑keepers bring goods and sell them to the persons who go to the Bazar. Furthermore, we do not find any opening from these buildings through the temple and the 'homestead to the Farashganj road which is situated on north and, attached to the temple and the residential house of the petitioner. These buildings face the open market and have their openings to the road to the south running by the side of Buriganga river. Furthermore, the learned Subordinate Judge and the Special Judge, Additional Court, Dacca, after taking all the relevant facts has come to a finding of fact to interfere with, we find no sufficient materials and we do not find that the learned Judge has acted illegally and with material irregularity in the exercise of the jurisdiction.

As on the merits, we do not find in favour of Mr. Bose, we need not refer to the preliminary point raised in the affidavit filed by the Government that the High Court has got no jurisdic tion under section 115 of the Code of Civil Procedure.

We accordingly discharge the Rule without any order as to costs.

K, B. A

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