ADC (Rev.), Moulavi Bazar & ors Vs. Pirpur Fishermen’s Co-operative Society Ltd., 2008

 

 

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Md. Abdul Matin J

 

Additional Deputy Commissioner (Revenue) Moulavi Bazar and others …………Appellants

Vs.

Pirpur Fishermen’s Co-operative Society Limited……..Respondent

 

Judgment

August18, 2008.

Lawyers Involved:

Nahida Yeasmin, Deputy Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Appellants.

Mahmudul Islam, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respondent.

Civil Appeal No. 272 of 2001.

(From the judgment and order dated the 25th day of November, 1996 passed by the High  Court Division in Writ  Petition No.789 of 1994).

Judgment

                  Mohammad Fazlul Karim J.- This appeal, by leave, is directed against the judgment and order dated 25.11.1996 of the High Court Division in Writ Petition No.789 of 1994 making the Rule absolute declaring the impugned Memo No.CEN. CERT/94/153 dated 28.03.1994 issued by the Certificate Officer to have been issued without lawful authority.

2. The facts of the case, in short, are that respondent, a Fishermen’s Co-operative Society, upon extension of previous lease was allowed the lease of fishery from 1392 B.S. to 1394 B.S. on payment of 50% enhance renting on satisfactory per­formance of developments of work but could not be delivered with possession pursuant to a decree dated 31.01.1979 in Title Suit No.566 of 1976 at the instance of two other fishermen co-operative soci­ety. The respondent though paid rent for the year 1392 B.S. but could not go into possession and was given lease of the dis­puted fishery for 3 years from 1393 to 1395 B.S. on 15% enhanced rent over the rent of TK. 3,04,000.00. The respondent requested the appellant to adjust the amount already paid for 1392 B.S. against the rent due for the year 1393 to 1395 B.S. but refusal of the appellant compelled the respondent to file writ petitioner No. 1625 of 1989 wherein order was passed on 03. 12.1989 directing the appellant to accept the rent of 1395 B.S. after adjusting the amount paid and execute the deed in favour of the respondent for 1396 to1398 B.S. Inspite of the same the appellant No.1 initiated a certificate case being No.FCC No.84 of 1989-90 on 03.01.1990 for real­ization of TK. 3,78,783.33 against the respondent claiming the same to be dues of Government. The Rule in the said writ petition was made absolute holding the impugned order issued by the appellant dated 26.07.1989 was illegal and further holding that the delivery of possession in favour of the respondent obviously took place in 1393 B.S. and not in the year 1392 B.S. The appellant, however, executed a lease deed on 04.04.1990 with the Secretary of respondent for the period of 1396 to 1398 B.S. and the respondent as well as paid deposit of TK.4,37,000.00 towards rent for 1397 B.S. in respect of the disputed fishery along with balance of TK.45,600.00. In spite of the said execution of lease deed and payment, no delivery of possession of the fishery was made over to the respondent society but his utter surprise find initiation F.C.C. No.49 of 1992 started on 17. 10.1989 by the Certificate Officer claiming TK.15,60,045.00 for the period between 1397 B.S. to 1399 B.S. in respect of the disputed fishery with direction to pay the amount by 13th of April, 1994. The same has been impugned in the Writ Petition No.789 of 1994.

3. The respondent No.1 contested the case 2 filing the writ petition alleging, inter alia that on 05.08.1981 respondent No.1 was granted lease of Gutaura Haor Group Fishery for 1389 to 1392 B.S. with eligi­bility for extension of the lease for further three years subject to satisfactory per­formance and on payment of enhanced rent. Respondent No.1 paid the rent of 1389 B.S. But the possession of the dis­puted fishery could not be delivered to respondent No.1 because of some litiga­tion and the Government subsequently revised the settlement order stating that the previous lessees would hold the dis­puted fishery up to 1392 B.S. and respon­dent No.1 would hold the disputed fishery for three years from 1393 to 1395 B.S. and the previous lessees would pay the rent of the fishery up to 1392 B.S. In the mean­while, respondent No.1 paid the rent for 1392 B.S. Respondent No.1 failing to pos­sess the disputed fishery requested appel­lant No.1 to adjust the rent of 1395 B.S. against the rent paid for 1392 B.S. but appellant No.1 refused to accede to the request and refused to enter into agreement for 1396 to 1398 B.S. In this situation respondent No.1 filed Writ Petition  No.1629 of 1989 and prayed for an order directing appellant No.1 to accept rent from rent after adjusting the amount paid as rent for the year 1392 B.S. and to execute the lease deed and the High Court Division passed the order giving direction to appellant No.1 to accept the rent of 1395 B.S. after adjusting the amount paid for 1392 B.S. and execute the deed in favour of respondent No.1 for 1396  to 1398 B.S. and also directing respondent  No.1 to deposit an amount of TK. 3,04,000.00 with the Registrar of the Supreme Court to cover the eventuality of respondent No.1 becoming unsuccessful in the writ petition.  Respondent No.1 complied with the direction by making the deposit. Appellant No.1 who is also the General Certificate Officer initiated Certificate Case No. FCC No. 84 of 1989 90 for realization of TK. 3,78,783.33 against respondent No.1 claiming it to be the dues of the Government. The Rule issued in Writ Petition No. 1629 of 1989 was made absolute and the High Court Division declared the memo dated 26.07.1989 illegal and held further that respondent No.1 got possession of the disputed fishery in 1393 B.S. and not in 1392 B.S. Appellant No.1 executed lease deed with respondent No.1 for the period of 1396 to 1398 B.S. and respondent No.1 paid the rent of TK.4, 37,000.00 towards rent of 1396 B.S. In spite of execution of the lease deed and payment of rent, no delivery of possession of the disputed fishery was made to respondent No.1 but to its utter surprise, respondent No.1 received a Memo dated 28.03.1994 issued by appellant No.1 in his capacity as General Certificate Officer claiming a sum of TK.15, 60,045.00 towards rent of the disputed fishery for 1395-1397 and 1398 B.S. and demanding payment within 13.04.1994. Respondent No.1 filed the present writ petition challenging the validity of this Memo dated 28.03.1994.

4. Leave was granted to consider the submissions of the learned Additional Attorney General for the appellant that “the writ petition having filed Writ Petition No.1620 of 1989 in respect of the selfsame fishery and the High Court Division in its judgment in the said Writ  Petition having found that the writ petitioner look delivery of possession of the case fishery in the year 1393 B.S. in deciding the instant writ petition erred in relying upon an information slip (Annexure-E to the writ petition) in holding that possession of the fishery was not given to the writ petitioner for the lease period 1396-98 B.S. and the writ petitioner is not liable to pay any premium for the said period and accordingly the demand in  impugned memo was without any lawful authority and that the writ petitioner having not exhausted the entire process before the General Certificate Officer regarding the Claim of the Government in respect of the case fishery, the High Court Division erred in not dismissing the same holding the same as not maintainable.

5. Mrs. Nahida Yeasmin, learned Deputy Attorney General, appearing for the appellant submitted that the writ-petitioner took delivery of possession of the case fishery in the year 1393 B.S. in deciding the instant writ petition erred in relying upon an information slip (Annexure-E to the writ petition) in holding that possession of the fishery was not given to the writ peti­tioner for the lease period of 1396-1398 B.S. and the writ petitioner is not liable to pay any premium for the said period and accordingly the demand in impugned memo was without any lawful authority and that the writ petitioner having not exhausted the entire process before the General Certificate Officer regarding the claim of the Government in respect of the case fishery, the High Court Division erred in not dismissing the same holding the same as not maintainable.

6. Mr. Mahmudul Islam, learned Counsel, appearing for the respondent submitted that the appellants having not filed any affidavit-in-opposition controverting the assertions made in the writ petition, can­not be heard to say that respondent No.1 possessed the disputed fishery during the relevant years; that respondent No.1 can­not be said to have possessed the disputed fishery for a later period simply because it was in possession of the fishery in the for­mer period; that a memo of delivery of possession plays a vital role in the posses­sion of a fishery and in the absence of which the appellants cannot claim that respondent No.1 possessed the fishery and should pay for it; that the impugned memo is malafide in the facts and circumstances of the case besides being illegal and with­out jurisdiction and as such, respondent No.1 was not required to pursue the reme­dy provided the PDR Act; that no notice under section 7 of the PDR Act having been issued and served on respondent No. 1, the question of pursuing the remedy under the PDR Act does not arise. The learned Counsel finally submitted that in the peculiar facts and circumstances of the case, the Additional Deputy Commissioner (Revenue) being the General Certificate Officer, the remedy under PDR Act cannot be considered to be an efficacious remedy.

7. It appears that the impugned Memo Annexure-F the General Certificate Officer, Moulavibazar has demanded pay­ment of TK.15, 60,045.00 for the fishery being rent for the year 1395-1397 and 1398 B.S. It appears from the information slip Annexure-B that the possession of the fishery was not given for the lease period 1396-1398 B.S. This Court in Writ Petition No.1638 of 1989 in clear terms having found that the appellant did not get possession for the entire years 1392. It directed that the amount of TK.3, 04,000.00 paid by the appellant for the year 1392 B.S. be adjusted within their rent for the year 1395 B.S. Further the appellant has paid TK.4, 37,000.00 as rent for 1396 B.S. The direction of the High Court Division and the enshowing pay­ment of rent for 1396 B.S. submitted to the Additional Deputy Commissioner (Revenue) Moulvibazar. There has full knowledge of the direction against the rent deposited for the year 1392 B.S. with the rent for the year 1395 B.S. and the pay­ment made for the year 1396 B.S.  In that view of the impugned Annexure-F con­senting payment of TK.15, 60,945. 00 which included the rent for the years 1395-1996 B.S. is without any basis and illegal. The learned Assistant Attorney General appearing for the writ-respondent No. 3 has not made any comment on the facts stated in the petition. Therefore, the contention of the respondent in respect of payment of rent for the years 1395-96 B.S. is to be accepted. The learned Assistant Attorney General has submitted that the amount claimed by the Government is a big amount and the Government should not be deprived of the rent and the respon­dent ought to have offered explanation as stated in the petition before the Certificate Officer. It appears that the impugned notice was not served on the prescribed form under Section 7 of the Public Demand Recovery Act which provides that when a certificate has been filed in the office of a Certificate Officer under Section 6, no show cause is to be served upon the Certificate Debtor, in the pre­scribed manner. The impugned order itself shows that the notice was not served in the prescribed form.

8. The writ-petitioner has asserted in its petition that no possession of the disputed fishery during relevant year under claim was delivered and nothing could be shown that the respondent was ever in possession of the fishery in question for the relevant period. The appellants though asserted that they were in possession of the fishery and accordingly claimed the amount for the lease period from 1396 to 1398 B.S. and for which no premium was paid but the same is contradicted in Annexure-E to the writ petition and accordingly, the appellants could not claim the said amount for the period in which they were not in possession of fishery in question. The appellant as well could not prove that the respondent No.1 was in possession of the disputed fishery for later period beyond the lease period and in the absence of material on record could be drawn for the alleged possession simply because it was in possession of the fishery in question in the former period. Moreover, the appellant could not show any memo, of delivery of possession showing that the possession of the fishery in question for the relevant period was handed over or they were ever in possession for which they are liable to pay the salami for the period. The appel­lant as well did not issue any notice under the PDR Act for releasing the said amount under claim under the provision of PDR Act. It is very pertinent to observe here that the appellant even did not file any affidavit in opposition controverting the assertion of the writ petitioner and accordingly, could not be hard to say that the respondent No.1 ever possesses the dis­puted fishery for the relevant years.

In view of the above, we find no sub­stance in the appeal.

Accordingly, the appeal is dismissed.

Ed.

Source : VI ADC (2009) 451

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