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Writ Petition No. 7 of 1961, decided on 24th February 1961.
East Pakistan Government Land Un-authorised Occupation Ordinance (XIX of 1960), Ss. 2, 3 & 5‑Bona fide dispute regarding title of land pending in Civil Court‑Jurisdiction to pass order under S. 3 compensation ousted‑Such order being mala fide, constitutes colourable exercise of powers conferred by Ordinance Provisions of appeal under S. 5 not applicable‑Mandamus issued Bona fides of dispute‑Question of fact in each case‑Constitution of Pakistan (1956), Art. 170.
Tariq Transport Company v. Sargodha‑Bhera Bus Service P L D 1958 S C (Pak.) 437 fol.
Motilal v. Government of State of Uttar Pardesh A I R 1951 All. 257 and D. R. Madhavakkrishniah v. Income‑tax Officer, Bangalore 1954 S C A 962 rel.
Badrul Haider Chowdhury for Petitioner.
Maksumul Hakim, Advocate‑General with K. M. Subhan for Respondents.
This application is directed against an order dated 3rd January 1961, passed by respondent No. 4 assessing a sum of Rs. 49,000 as compensation for alleged illegal possession by the petitioner of Government land. The petitioner has asked for quashing the aforesaid order or for an appropriate relief and obtained a Rule nisi from this Court calling upon the respondents to show cause why a writ of mandamus or an appropriate writ of like nature should not issue directing them to withdraw, cancel and rescind the notice served upon the petitioner under Ordinance No. XIX of 1960 issued as per Memo. No. 22 S. A. dated 3‑1‑61. The petitioner has stated in his petition that he is a tenant in respect of certain lands appertaining to Patni Taluk Saber Khan No. 2828 under Touzi No. 5 of the Noakhali Collectorate. His case is that the said plot No. 2828 of patni Taluk Saber Khan comprises of two villages, namely, Sholla Kismat No. 74 and Dharmapur No. 162 under Noakhali police station. The lands appertaining to Patni Taluk 2828 was let out to tenants on rents and the lands under the said taluk went under the river Meghna. Subsequently, the said lands reformed in situ. The petitioner claims that the land in respect of which he is tenant, was taken settlement of from the Wakf Estate. This eventually led to certain disputes between the Zamindars and the owners of the taluk which was a Wakf Estate. In civil suit it was decided that the Zamindar had not acquired the Wakf Estate to which the taluk appertained. The petitioner claims to be an old tenant under the said Patni Taluk No. 2828 and the Mutwalli of the Wakf Estate of late Saber Khan gave re‑settlement of the land, being Plots Nos. 296, 298, 300, 301 and 448. They obtained this resettlement in the year 1951 and to possess dakhilas in respect of the same. To resolve certain dispute with regard to the boundaries of the lands which were reformed in situ there was a demarcation by a Government Amin who prepared a map which has been annexed to the plaint. According to the petitioner the map would clearly prove the case of the petitioner. However, inasmuch as number of persons claimed tenancy right in respect of the petitioner's land, a suit was filed by him in the year 1959 in the Court of the Munsif at Noakhali. The suit was marked as O. C. Suit No. 22) of 1959. This was a suit for declaration of petitioner's title in the land mentioned in the Schedule to the plaint. On 7‑11‑59, the petitioner along with others obtained an interim injunction against the defendants. Subsequently, notice under section 80 of the Code of Civil Procedure was served on the Province of East Pakistan who entered appearance upon being added as a party to the suit on 25‑5‑60.
2. On 5‑12‑60, petitioner obtained an ad interim injunction against defendant No. 1 in the suit, namely, the Province of East Pakistan by which the said defendant was restrained from inter fering with the possession of the petitioner in respect of the lands in the suit. On 6‑12‑60, respondent No. 4, namely, Joint Collec tor, Noakhali served a notice upon the petitioner to show cause why compensation should not be assessed against the petitioner under Ordinance No. XIX of 1960. On receipt of the said notice which did not specify by any mark of identification the lands alleged to be illegal possession of the petitioner, the peti tioner made a representation to the said respondent No. 4 to the A effect that a suit was pending in Court in respect of the said land which is also the subject‑matter of the notice. The petitioner, therefore, prayed that the said respondent should stay his hands with regard to the land covered by the said notice. Responder No. 4, however, on 3‑1‑61, assessed the aforesaid compensation of Rs. 49,000 against the petitioner purporting to act under section 3 of the Ordinance XIX of 1960. This is the impugned order.
3. At the hearing of this Rule Mr. Badrul Haider Chowdhury, appeared for the petitioner and has taken us through the various affidavits as well as various documents that have been filed in respect of this petition. He has, in the first place, argued that the impugned order was mala fide and was passed by respon dent No. 4 in order to stifle the civil suit which was already pending in a Civil Court with regard to the lands which form the subject‑matter of this writ petition. Secondly, the learned counsel for the petitioner has argued that the said impugned order is illegal and without jurisdiction and therefore, liable to be rescinded or set aside.
4. On behalf of the respondents an affidavit‑in‑opposition has been filed which practically traverses the averments in the petition. At the very outset we would like to point out that the said affidavit‑in‑opposition does not inspire any confidence inasmuch as it does not make a full disclosure of the relevant facts with regard to the dispute before us and also because, as we shall see hereafter, it is not borne out material particulars by the records of this case. Contrary to this the petitioner's averments are mostly corroborated by relevant documents and we have no hesitation in accepting the statements made by him in this application as well as his affidavit‑in‑reply.
5. Learned Advocate‑General, who appeared on behalf of the respondents, frankly conceded that if the lands in respect of which the impugned order has been made are identical with the subject‑matter of the aforesaid suit, he cannot support the said order passed by respondent No. 4, Joint Collector, Noakhali. But his contention before us has been, as set out in the affidavit‑in‑opposition which has been filed before us, that the impugned order in respect of the lands is not covered by the aforesaid suit.
6. We have advisedly refrained from commenting upon the merits of the respective cases of the parties in the suit itself. For instance, the petitioner has substantially based his case upon the boundary map which was prepared by a Government Amin. The respondents have challenged the correctness of the said map. This is an issue which will be decided in the said suit and at the present moment we are not called upon to examine the correctness or otherwise of the petitioner's case on the basis of the said
7. The most pertinent question that arises in this application is whether the lands in respect of the impugned order and those covered by the suit are identical. The petitioner has stated in his petition that the lands are identical and they constitute the subject‑matter of the impugned order and that of the suit as well. We have no hesitation in accepting the petitioner's statement in this respect as it is corroborated by the identical evidence con tained in a number of relevant documents which have been filed before us.
8. The notice which was served upon the petitioner in respect of the impugned order has been annexed to the petition and is marked as Annexure G' in this notice the petitioner has been described as Kala Miah (Saheb) son of late Jolis Bepari, at present of Char Darvesh, within Police Station Sudharam, Noakhali and it reads as follows: ---‑
"Whereas it appears that you Kala Mia have illegally and without any title whatsoever, trespassed on Government khas lands to the tune of 50.00 acres and you have been enjoying the paddy produced from the land for the last 7 (seven) years without paying anything to Government. I personally visited your house and the char in question and estimated the paddy in 50.00 acres of land so trespassed by you at 1,500 maunds. The approximate value of these paddy is Rs. 15,000 for this year and @ this year the amount comes to Rs. 20,000. Taking 50% of the produce as compensation comes to Rs. 60,000. So you have made yourself liable to compensate under the provisions of Ordinance XIX of 190."
9. It is patent that the above notice does not give any particulars of the land upon which the petitioner is alleged to have trespassed except a bare claim that such land was khas lands of the Government. We are not at the present moment concerned with the vagueness and insufficiency of the particulars in the notice; but the important thing to observe is that in the aforesaid notice Government khas lands, upon which the petitioner is alleged to have trespassed are stated to be 50.00 acres of land and the estimated amount of paddy grown on the said land said to be 1,500 maunds or paddy, the value of which is calculated to be about Rs. 15,000 to Rs. 20,000.
10. Upon the receipt of the aforesaid notice; the petitioner submitted a representation to the Deputy Commissioner in which inter alia he stated as follows:
"At present I am served with a notice vide memo. No. 4475 S. A. dated 6‑12‑60, claiming Rs. 60,000 for the lands and as such I am quite helpless and also cannot understand as to how I being a legal settlement holder and taking possession of land from the Wakf Estate, Noakhali as above‑mentioned, should be liable for giving compensation and it is enough to place that I am a very poor man and there is no such property or even Rs. 1,000 with me: However, I am quite helpless and there is a civil suit pending in the 1st Munsif Court Sudharam for the said purpose and there is an injunction order from the aforesaid Court on 5‑12‑60, for not touching the paddy of the said lands and as such I am quite unable to submit as to how I am very guilty and trespasser in the Government lands."
It is equally evident from the aforesaid representation that the petitioner upon receipt of the said notice clearly represented that the lands in respect of which notice has been served up on him are identical with the lands which are the subject‑matter of the suit. Respondent No. 4, however, proceeded to pass the impugned order in the following terms:
"Kala Mia Saheb son of late Jalish Bepari at present Char Darvesh, P. S. Sudharam, District Noakhali.
"You are hereby directed that your petition submitted before the Deputy Commissioner on 17‑12‑60, has been considered fully and I am satisfied that you are in illegal possession of 50 acres of land in Char Darvesh Mauza and enjoying the same for the last 6/7 years which is the Government land as such I have assessed a compensation of Rs. 49,000 under section 3 of the Ordinance XIX of 1960.
You are hereby directed that you will deposit the same amount of compensation by 14‑1‑61, in the Noakhali Treasury on account of Government of Pakistan and appear before this Court with the Challan failing which all legal action will be taken against you.
Joint Collector, 3‑1‑61."
With regard to the aforesaid order, the fact which stares us in the face is that, in spite of representation made by the petitioner to the Deputy Commissioner in which it was clearly stated that the lands with regard to which the petitioner was served with the aforesaid notice were identical to the subject‑matter of the suit, respondent No. 4, Joint Collector, Noakhali, proceeded to make the aforesaid order. If it had been a fact that the notice as well as the impugned order were in respect of the lands other than those which are the subject‑matter of the suit, one would have expected that the Joint Collector would have said so in the order that he passed and which is impeached before us. Furthermore, the Joint Collector has made an assessment of the total lands in respect of which the petitioner is alleged to be a trespasser to be 50.00 acres of lands. In the affidavit‑in‑opposition filed on behalf of the respondents it has been stated in paragraph 19 as follows: ---
" . the petitioner Kala Miah and 8 others instituted O. C. Suit No. 229 of 1951, in the 1st Court of Munsif Sadar, Noakhali. The subject‑matter of the said suit was 2 drones 1 kani and 8 gandas approximately 50.00 acres of land of village Salla Kismat."
Thus the Government land upon which the petitioner is alleged to have trespassed is 50.00 acres as mentioned in the impugned order. This is the quantum of land covered by the said suit. According to the respondents the area of the suit lands would be approximately 50 acres.
11. Another interesting feature in this case is that on 17‑11‑60, respondent No. 4, Joint Collector, Noakhali, arrested the petitioner and forwarded him to the Officer‑in‑Charge of Sudharam Police Station with a first information report. From the certified copy of the information which was lodged by respondent No. 4 we quote as follows:
"To
The O. C. Sudharam P. S.
Kala Mia son of L. Jolish Bepari of Char Jabbar atyy present Char Shalla Darmapur is trespassing on 50.00 acres of Government khas lands and is reaping away paddy to the tune of 500 maunds of paddy. I have seen the paddy myself standing in heaps in compound and his son‑in‑law admitted that it was Kala Mia's paddy. These lands have already been settled with the following persons including others (names of the persons omitted)
Government have already realised Salami and rent etc., from the above persons and they have executed kabufyats. This will cause (loss) to the Government to the tune of Rs. 15,000 this year on approximate calculation, He has been enjoying these lands by trespassing the same land for the past 10 years or thereabout which means that he has stolen Government property to the tune of Rs. 1,50,000 in approximate calculation The man is present here and I am sending him to you to start F. I. R. under section 379/447, P. P. C. and take him to custody as the remaining paddy will be taken away by him if he is released. The persons named above will be witnesses."
This has been set out in sub‑paragraph (iii) of the paragraph 23 of the petition. The above statement of respondent No. 4 also makes it clear that the extent to which the petitioner, according to him is alleged to have trespassed upon is 50.00 acres of Government khas lands and his estimation of the produce is 1,500 maunds of paddy. The figure 50.00 acres and the produce thereof being 1,500 maunds run like a refrain in the notice served upon the petitioner and also in the impugned order as well as in the information lodged by respondent No. 4 which has been quoted above. This is also repeated in the affidavit‑in‑opposition filed on behalf of the respon dents. It will be noticed that in the said information lodged with the officer‑in‑charge, Sudharam Police Station, respondent No. 4 has described the petitioner as belonging to Char Jabbar at present Char Shalla Darmapur. Upon this information which was lodged by Joint Collector, Noakhali, the police submitted a report which is as follows :‑
"On 17‑11‑60, at 15‑00 hours complainant submitted a written ezhar at the Police Station after producing accused under arrest. The fact of the ejhar is that the accused Kala Mia trespassing on Government khas land and reaping away paddy to the value of Rs. 1,50,000 in approximate and he has been enjoying these lands for the passed 10 years. The same lands have been settled up as bandobosta to the other persons by the Government by taking salami and rent etc., from them. A. S. I., S. C. Roy took the accused in custody after recording the case. Sd. N. Islam endorsed the same on my name for investigation. I locally investigated the case. During investigation it revealed that the accused Kala Mia is possessing 9 kanis of land in salla, Dharmapur Monza as for Sabur Khan Wakf Estate map dag Nos. 296, 298, 300, 301 and 448 and Government Char Darvesh Map Dag Nos. 491, 492, 496 wholly and partly, 497, 498, 499 and 500 since about 10 years by erecting houses on that land and this year he also grew the paddy as usual. The lands were inherited property of the accused Kala Mia whose father was also in peaceful possession of the same. The lands were eroded away by the River Meghna previously but in course of time it formed again and accused Kala Mia cultivating the said land paying rent to Sabur Khan wakf estate as it falls under 2828 Taluk of tote said estate and he is paying chowkidari taxes @ Rs. 2‑8‑0 and he has got Ration Card No. 2111 of Salla Dharmapur Mouza Government claims the land falls under Char Darvesh Mouza whereas accused Kala Mia and others cultivators of the land to be of Salla Dharmapur Mouza for which a boundary dispute case No. 229/59 is pending in the Court of 1st Munsif Noakhali and temporary injunction order has been issued from the said Court on 7‑11‑59, against Serajul Huq and others who took bandabosta taken from the Govern ment in the last year. I consulted the facts and circumstances with C. I. A. and took instruction from him. It appears from the circumstances and ejhar that the case is of civil nature. At this stage the question of theft of paddy from P. O. lands by accused Kala Mia does not arise. So, I return the case in F. 1. R. as civil nature. Action under section 173 (3) Criminal Procedure Code is being taken.
Submitted Kazi Wahidul Islam, S. I. of Police Sudharam P. S. 19‑11‑60."
12. In the affidavit‑in‑opposition filed on behalf of the respondents, there is no straight‑forward case except that towards the latter portion thereof, it has been claimed that the lands covered by the impugned order are not the same as the subject matter of the suit. For this proposition they have substantially relied on the alleged admission made by the petitioner in a petition filed by him in course of the miscellaneous proceedings before Joint Collector. A reference to that petition in the affidavit in‑opposition was rather vague and we called upon learned Advocate‑General to produce the same. It has now been filed in this Court. This representation was made to the Deputy Com missioner, Noakhali, by the petitioner upon receipt of the aforesaid notice which led to the passing of the impugned order. The representation, in our opinion, is rather illuminating. Far from establishing the contention of the respondents that the said petition contain an admission that petitioner is in possession of some of the lands in Char Darvesh with regard to which he cannot claim any title, it seems to us that the petitioner's definite case is that the boundary pillars fixed by Government Acquired Estate Noakhali, showing limits of Char Darvesh and Char Solla Kismat show that his homestead as well as some nal lands had fallen within the jurisdiction of Char Darbesh. The petitioner has specifically questioned the accuracy of such boundary lines. We may quote the following paragraphs from the petition; marked as Annexure A' to supplementary affidavit‑in‑opposition: --‑
"That to the most unfortunate to me that the house again also began to fall in the victim of river and rendering me quite helpless everything in the bed of river and as much having no other alternative than to save my family took 9 kanies of land from the "Sabur Khan Wakf Estate" Noakhali and the land allotted to me from Sholla Kismat at new reformed Char which was also belonging to my forefather as tenants under the Wakf Estate (sic).
"That having settlement and shifting my poor and river diluviated family here at Sholla Kismat I have been living after making improvement of the land as the Savar Khan Wakf Estate gave bujh (possession) of the said land and as such I had and have been living at the aforesaid place since taking from the Wakf Estate (sic).
"That in the meantime the Government Acquired Estate, Noakhali has fixed a pillar between the boundary line of Char Darvesh and Dhar Sholla Kismat and the major portion of my homestead has fallen, as well as nal lands, in the jurisdiction of Char Darvesh and practically there is no final declaration of the pillar whether the same is actually fixed and exact point to the boundary or border line of two moujas of the Chars and .as such the lands fallen into the part of the Char Darvesh which is belonging to the Government Acquired Estate and those where given settlement to the otter persons, raised their claims and on their petition the Id. Joint Collector asked me to vacate the place and also ordered for seizure of the paddy and at about 9 or 10 p.m. at night, he was kind enough to go at my homestead and told me that "your 1,500 maunds of paddy is seized" and without any written order verbally made the same. Owing to cyclone almost all paddy was scattered from the plant to only 40 maunds was found after thrashing the paddy assessed by him. (sic).
"That the Id. Joint Collector also told me that I should be appeared before his honour's office on 17‑11‑60, and accordingly I came there and asked me to show how I am belonging to the said property and also asked me to produce papers if there be any. In reply, I most humbly told that all such papers and documents are submitted to the local Civil Court in connection with O. C. Suit No. 229/59 (in the Court of 1st Munsif Sudharam, Noakhali) and on hearing this the Id. Joint Collector asked me and also gave me many threatening after threatening in very hot and also told that many unspeakable things which is practically impossible to my humble expre. (sic).
"That after that I asked to give bond for shifting house at any moment and giving me on the R. C. O.'s custody and thereafter sent me to the local P. S. for custody. After that I came on bail from the Sudharam P. S. (sic).
On the 6‑12‑60, I was called again by the Id. Joint Collector and asked me to remove my house, if so, I will be given 500 acres of land also asked me to give bond (sic).
At present I am served with a notice vide memo. No. 4475 S. A. dated 6‑12‑60, claiming Rs. 60,000 for the lands and as such I am quite helpless and also cannot under possession of land from the Wakf Estate, Noakhali, as above‑mentioned, should be liable for giving compensation and it is enough to place that I am a very poor man and there is no such property or even Rs: 1,000 with me. However, I am quite helpless and there is a civil suit pending in the 1st Munsif Court, Sudharam, for the said purpose and also there is an injunction order from the aforesaid Court on 5‑12‑60, for not touching the paddy of the said lands and as such I am quite unable to submit as to how I am a very guilty and trespasser into the Government land." (sic).
13. It is, therefore, perfectly evident that from the very beginning the petitioner has been claiming that the lands in respect of which the notice was served upon him are identical with the subject‑matter of the suit and there can be no manner of doubt that before passing the impugned order, the Joint Collector respondent No. 4 had understood what the case of the petitioner was. We accept the petitioner's case in this behalf. We have no manner of doubt whatsoever that the lands covered by the notice and the subject‑matter of the aforesaid suit are identical.
14. Learned Advocate‑General appearing on behalf of the respondents contended before us that the learned Munsif at Noakhali had no jurisdiction to try the suit filed before that Court by the petitioner, inasmuch as, the valuation of the suit was beyond the pecuniary jurisdiction of the Court. The plaint in the suit was, however, returned by the learned Munsif and it was filed the very same day in a Court of competent jurisdiction, namely, the Subordinate Judge of Noakhali. The fact that the suit was filed in a Court which on subsequent enquiry, turned out to be incompetent to try it is not very material to the issue before us. There can be no doubt whatsoever that the filing of the suit and the course of events that followed thereafter clearly establish the existence of a bona fide dispute between the claims of the petitioner and those of the respondents with regard to the lands covered by the impugned notice.
15. On the complaint made by the Joint Collector on 17‑11‑60, a report was submitted by the Officer‑in‑Charge, Sudharam Police Station on 19‑11‑60; and the trying Magistrate passed an order discharging the petitioner on 16‑12‑60. In the meantime defendant No. 1, the Province of East Pakistan, had received a notice to show cause before the Subordinate Judge of Noakhali as to why the said defendant No. I, should not be restrained from interfering with the possession of the petitioner in respect of the suit lands. On the next day, namely, on 6‑12‑60, respondent No. 4, Joint Collector, Noakhali, issued upon the petitioner the aforesaid notice. On 17‑12‑60, petitioner made the above‑mentioned representation to the Deputy Commissioner, Noakhali, stating that a Civil Suit was pending in respect of the subject‑matter of the aforesaid notice. On 3‑1‑61; the impugned order was made. The sequence of events as set out above leaves B no room for doubt that the order passed by respondent No. 4 was mala fide and that it constituted a mere colourable exercise of the powers conferred upon him by Ordinance XIX of 1960, in order to stifle the suit which was instituted by the petitioner along with others.
16. Furthermore, on examination of the Ordinance it appears to us that respondent No. 4 had no jurisdiction to pass the impugned order when there was bona fide dispute with regard to the title of the lands for which the assessment was made. Section 2 (b) of the Ordinance defines land as follows:
"2(b). "Land" means land which vests, in or is in the possession or under the Management and control of, the Provincial Government and includes any building or any water, flowing or still;"
Section 3 runs as follows:
"In the case, where any person has occupied, or continues in the occupation of, any land without having obtained the express permission or authority of the Provincial Government it shall be competent to the Collector to assess a fair rent and/ or premium or compensation or fee for such occupation or compensation for such damages and the same person shall be liable to pay to the Provincial Government the sum or sums so assessed according to the terms of such assessment."
17. It is, therefore, clear that the Collector's power to assess rent or compensation is exercisable only when the lands in question clearly belong to Government. It, therefore, follows that whenever there is a bona fide dispute as to the title of the land in question section 3 has no manner of application. We do not intend to say that any dispute, however, frivolous it may be, will be sufficient to bar the power of the Collector to act under that section. We have, therefore, qualified the same by saying that it must be a bona fide dispute, which, of necessary, must be a question of fact in each case. In the case before us there can be hardly any room for doubt that the petitioner had a long standing and bona fide dispute in a Civil Court with regard to the lands covered by impugned order. We cannot now anticipate what the result of the suit filed by the petitioner would be. But at the same time we have no doubt about the bona fide nature of the suit itself. We accept the averments in the petition in prefer ence to those made in the affidavit‑in‑opposition filed on behalf of the respondents.
18. In the view that we have taken with regard to the power of the Collector under section 3 of the Ordinance we are strength ened by a decision of a Division Bench of this Court in the case of Syed Hatem Ali and others v. Province of East Pakistan and others ((1960) 12 D L R 801). Although the aforesaid case dealt with the pro visions of East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, but the principles are equally applicable to the facts of this case. In the aforesaid case a river having gradually changed its course threw up lands, some of which were claimed to have taken settlement of the petitioners in that case from the Zamindars. The Province of East Pakistan, however, claimed such lands to be their khas lands and a notice under section 5 of East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, were served on the tenants with a view to evict the said tenants from what was claimed to be the Government lands. It was held that the Act was inappli cable where was a bona fide dispute with regard to the title of the land or building in question. In dealing with the aforesaid point the Division Bench observed as follows :‑
"If there is a bona fide dispute regarding title of the lands then, in our opinion, the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953, is not at all applicable. Under that Act the ownership of the land or building must be in Government, and the Act can only be applicable where there is no dispute regarding the ownership of the lands and buildings.
The Act can never apply to a case where the question of title in dispute, and where, as in this case, the petitioners claim to be in possession by virtue of the lease in their favour. The act provides for speedy possession of lands and buildings owned by the Government and it does not contemplate a case whether there is a bona fide dispute regarding title of any land or an building. After a careful consideration of all the materials in this case and the case of each party, we are satisfied that the Government cannot take action under the said Act."
Against the aforesaid decision of this Court, respondent Province of East Pakistan as well as other respondents preferred an appeal to the Supreme Court of Pakistan being the Civil Appeal No. 82‑D of 1960, disposed of on 28‑4‑61. In dismissing the appeal from the aforesaid decision the Supreme Court of Pakistan made the following observations :‑
"It will be convenient at this stage to refer to the relevant provisions of the Act. The preamble to the Act states:
It is expedient to provide for speedy recovery of possession of Government Lands and Buildings by evicting outgoing lessees and unauthorised occupants."
Various sub‑clauses of section 2 define buildings, land and u authorised occupant. Section 3 empowers the Government evict outgoing lessees from the land. Section 4 enables the Government to determine a lease and to recover possession of building in certain cases. Section 5 under which the impugn notices were issued is as follows:
"(1) If the Provincial Government is satisfied, after making such enquiry as it thinks fit that a person is an unauthorized occupant, it may, by order in writing, direct such a person to vacate the land, building or part of a building in his occupation within the period specified in the order.
(2) If the person against whom an order under subsection has been made, refuses or fails to vacate the land, building part of building in his occupation within the time fixed, the, notwithstanding anything contained in any other law for the time being in force, it shall be lawful for the Provincial Govern ment 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."
"Mr. Mustafa, the learned counsel thinks that by this section 5 the determination of the question of title has been left entirely to the objective satisfaction of the Provincial Government.
If the preamble and the provisions of the Act are examined it appears to be perfectly clear that the Act is designed to give power to the Government to take speedy steps for recovery of possession of Government land. In order to attain that purpose section 5 empowers of the Government to make inquiry if a person is an un-authorised occupant. It, however, does not say that the decision of the Government as to the title of the property in question shall be final. If Mr. Mustafa's argument is accepted it would lead to absurd results. The Government's decision regarding title as to any building or land in the Province will be final. This was not and could not be the intention of the Legislature as is clear from section 5. It merely says "the Provincial Government if satisfied after making such enquiry as it thinks fit that a person is an un-authorised occupant it may direct such person to vacate the lands."
In other words the Government has been empowered to decide if a person is an un-authorised occupant. Under section 2 (c), "Un-authorised occupant" means a person who is in occupation of any land or building or part of building without having obtained the express permission of authority of the Provincial Government, and includes‑
(i) a person inducted into any building or part of a building by the lessee thereof ; and
(ii) every member of the lessee's family who remains in occupation of such building or part after the determination of the lease in respect of the same."
That is to say that only when a person is in occupation of any Government land or building without their permission be may be said to be un-authorised occupant. It is, therefore, clear that where the title of the Government to any land or building is disputed on bona fide grounds it will not be open to the Government to take action under this Act."
18. (sic) The case has not been reported and we have quoted the aforesaid observations from the copy of the judgment that has been circulated to us. Section 3 of the Ordinance under our consideration is materially similar to section 5 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act 193. We hold that the impugned order is illegal and ultra vires the power of respondent No. 4.
19. We would like to point out that learned Advocate‑, General bas argued before us that this Court will not interfere with the impugned order inasmuch as the petitioner has not o availed himself of the remedy of an appeal furnished by section 5 of the said Ordinance. Section 5 of the said Ordinance is couched in the following term:
"(1) in any case, where the amount assessed under section 3 on account of rent or fee exceeds rupees one hundred per annum or the amount assessed under that section on account of premium or compensation of any kind exceeds rupees one thousand an appeal, if preferred within thirty days of the date of service of the notice of such assessment under subsection (1) of section 4, shall lie against such assessment to the Commis sioner of Division.
(2) In any case, where the assessment made under section 3, as upheld or modified on appeal under subsection (1) exceeds rupees one thousand per annum on account of rent or fee or rupees ten thousand on account of premium or compensation of any kind a further appeal, if preferred within thirty days of the date of the order of the Commissioner under sub section (I), shall lie against such order to the Board of Revenue.
(3) An order gassed under subsection (2), and subject only to such order, an order passed under subsection (1) and subject only to an order passed under subsection (1) or subsection (2), the assessment made by the Collector under section 3, shall be final.
(4) Before passing any order, or appeal for staying the recovery of any amount assessed under section 3, the appellate authority may require the appellant to furnish such security for the amount as the former may think fit."
20. The short answer to this point is that having held, in, the first place, that the order impeached before us was a mala fide and colourable exercise of the powers conferred under this Act and also having regard to the fact that we have held the impugned P order to be illegal and ultra vires the power of the Joint Collector, the provision of section 5 will not be applicable to this petition. This disposes of the second contention that has been advanced before us by learned Advocate‑General. Hardly any authority is needed for the proposition we have stated above. The point is well‑settled by long series of decisions, but we may mention a Full Bench decision of the Allahabad High Court in the case of Motilal and others v. The Government of State Uttar Pradesh and others (A I R 1951 All. 257).
21. Malik, C. J., in delivering the judgment in the said Full Bench Case has observed as follows :‑
"The learned Advocate‑General has raised another objection that as there was a right of appeal under section 64 of the Motor Vehicles Act the applicants are not entitled to come to this Court under Art. 226 of the Constitution. I do not consider that there is much force in this argument. Section 64 (a) provides for appeals by any person aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, and subsection (e) provides for an appeal by any person aggrieved by the refusal of renewal of a permit.
Reference was also, made to section 64‑A of the Motor Vehicles (United Provinces Amendment) Act, 1948 (U. P. Act XI (ii) of 1948), which provides for some sort of an appeal to the Provincial Government which may, on its own motion, or on the application of a person aggrieved by an order passed under section 64, call for relevant papers and make such order as it thinks fit. For an appeal under section 64 there must be an order or a Provincial or Regional Transport Authority passed under the Act. As I have already said, the Regional Transport Authority, or its Secretary, or the Regional Transport Officer, who seems to have been acting for the authority, do not appear to have passed any order under the Motor Vehicles Act and, therefore, no question of an appeal under section 64 seems to arise."
22. This is further supported by a decision of the Supreme Court of India in the case of D. R. Madhavakkishnaiah v. The Income‑tax Officer Bangalore ((1954) S C A 962).
23. Learned Advocate‑General has in support of his argu ment before us relied on a passage from the judgment delivered by Munir, C. J., in the case of the Tariq Transport Comyany, Lahore v. Sargodha Bhera Bus Service, Sargodha and others (P L D 1958 S C (Pak.) 437), The passage which is a quotation from Halsbury, 3rd Edition, Vol. II, p. 107, runs as follows :‑
"In the case of mandamus, it has been uniformly held in England that the Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, where there is an alternative specific remedy at law which is not less convenient, beneficial and effective and such remedy includes an appeal to an appellate Tribunal."
It is interesting to note that in the said judgment and in the same paragraph the learned Chief Justice goes on to observe as follows :‑
"Cases of absence or excess of jurisdiction, however, stand on a different footing and are an exception to the general rule just stated. An appeal, while adequate to correct mere errors in the exercise of jurisdiction is often inadequate to redress or prevent a wrong done in the absence or excess of jurisdiction. If a Tribunal has no jurisdiction either in respect of the subject matter of limitation or the parties before it or the territory to which the dispute relates or because of its own defective con stitution or the illegality of the order, the proceedings are void ab initio, and an appeal in such a case is an unnecessary step and a mere prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction."
24. The result, therefore, is, that for the reasons stated above we make the Rule absolute and set aside the order passed by respondent No. 4 Joint Collector, Noakhali, dated 3‑1‑61, assessing a sum of Rs. 49,000 as compensation to be paid by the petitioner in respect of lands alleged to be in un-authorised posses sion of the petitioner. The petitioner is allowed costs of this application which we assess at 10 gold mohors.
S. B.
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