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Writ Petition No. 77 of 1957, decided on 28th August 1957.

‑Government not entitled to take possession of land owned and, possessed by persons who are tenants and not rent‑receivers=‑Notification No. 4845‑L. R., dated 2nd April 1956.

Under the provisions of section 3 (2) of the East Bengal State Acquisitions and Tenancy Act and by virtue of Notifi cation'.‑No. 4845‑L. R., dated 2nd April 1956, the Provincial Government has no light' to acquire the lands owned and possessed by persons who are slot rent‑receivers.

A. S: Chowdhury with M. Huq for Petitioners.

B. A. Siddiki, Advocate‑General with K. M. Sobhan for Respondent's.

This Rule was issued calling upon the res pondents to show cause why a .writ in the nature of mandamus should not issue directing them not to interfere with the petitioner's possession and management of Chinakandi Bazar in pursuance of Notification No. 4845‑L R., dated 2nd of April 1956, and to cancel the settlement of the‑said bazar made by the Sub‑Divisional Officer of Sunamganj on the 24th of April 1957.

The following Notification No. 4845‑L. R‑., dated 2nd of April 1956, was published in the Dacca Gazette (Extra ordinary) on 2nd April 1956

"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 XXVIII of 1951). as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance III of 1956); it is hereby notified, for the information of all concerned, 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 Sylhet other than the classes of lands coming under clauses (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".

The Chinakandi Bazar which is held in Dag No. 2538 of Khatian No. 1272 of mouja Neruakhala, P. S. Sunamganj, in the district of Sylhet, has been acquired by the Government in pursuance of the above notification.

The petitioners' case is that they and the heirs of their brother Fazar Ali own and possess the above Dag No. 2538 and that they having no rent‑receiving interests anywhere in the Province of East Pakistan, the Government was not entitled to take possession of the said plot No. 2538 and to settle it with one Momin Ali. As the petitioners did not get any relief from the Government, they moved this Court and obtained this Rule. The Government, challenged the assertion of the petitioners that they were not rent‑receivers.

In paragraph 5 of .the affidavit‑in‑opposition filed by the Assistant Secretary, Revenue Department, it is stated

"That with reference to paragraph No. 2, the deponent asserts that the allegations made therein are not true, inas much as there is a sub‑Khatian under the original Khatian No. 1272 and their right in the said hat being rent‑receiving, hand also because hats and bazara do not come within the retainable clause of Khas land mentioned in section 20 (2)(b) the petitioners are not entitled under law to retain it".

The learned counsel for the petitioners has contended that the petitioners are tenants and not rent‑receivers and hence the Government is not entitled to take possession of their land before taking steps in accordance with the pro visions of Chapter V of the East Bengal State Acquisition and Tenancy Act, 1950. In support of his contention, he has relied on the Khatians.

When this case was heard on 16th August 1957, the Government took time to produce sub‑Khatians referred to in paragraph 5 of the affidavit‑in‑opposition. The Govern ment has, however, been unable to trace any such Khatian. The learned Advocate General has been kind enough to say that by this notification No. 4845, the Government purported to acquire the rent‑receivers' interest and as the petitioners are not rent‑receivers, the aforesaid plot No. 2538 did not vest in the Government on the publication of the said notification, Therefore, he was unable to oppose this Rule.

We would, therefore, allow this application and make the Rule absolute. We direct that the respondents will not interfere with the petitioners' possession of plot No. 2538 in pursuance of notification No. 4845‑L. R., dated 2nd April 1956. We also direct them to cancel the settlement of the said plot made by the Sub‑Divisional Officer, Sunamganj, on 24th April 1957. We also direct them to cancel the settlement of the Chinakandi Bazar made by the Sub‑Divisional Officer, Sunamganj.

The petitioners will be entitled to the costs of this appli cation which we assess at 3 gold mohurs.

.‑I agree.

M. S.

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