Abdul Khalek Khan Vs. Government of Bangladesh, 40 DLR (1988) 21

Case No: Second Appeal No. 855 of 1966

Judge: AM Mahmudur Rahman ,

Court: High Court Division,,

Advocate: Mr. Fakhrul Islam,,

Citation: 40 DLR (1988) 21

Case Year: 1988

Appellant: Abdul Khalek Khan

Respondent: Government of Bangladesh

Subject: Land Law,

Delivery Date: 1986-4-10

 
Supreme Court of Bangladesh
High Court Division
Barishal Bench
(Civil)
 
Present:
AM Mahmudur Rahman J
 
Abdul Khalek Khan
......................Appellant
Vs.
Government of Bangladesh
......................Respondent
 
Judgment
April 10, 1986
 
State Acquisition and Tenancy Act (XXVIII of 1951)
Section 82
Estates Manual Rules
Rules 54 & 63
As the appellant was a government servant and not a bonafide cultivator, he was not entitled to get Khas mahal land.
 
Lawyers Involved:
Abdus Sattar Howlader - For the appellant.
Fakhrul Islam, Assistant Attorney General - For the Respondent.
 
Second Appeal No. 855 of 1966
Appeal preferred against the Judgment and decree dated 18.2.1965 and 27.2.65 passed by Additional District Judge 3rd Court Barisal in Title Appeal No.89 of 1964 reversing the judgment and decree dated 21.1.1964, passed by Subordinate Judge, 1st Court, Barisal, in Title Suit No.7 of 1963.
 
JUDGMENT
 
AM Muhmudur Rahman J.
 
This Second appeal is directed against the judgement and decree dated 18.2.65 passed by the learned Additional District Judge, 3rd Court, Barisal in title Appeal No. 89 of 1964 reversing those of dated 21.1.64 passed by the learned subordinate judge, 1st Court, Barisal in Title Suit No.7 of 1963.
 
2. The plaintiff appellant instituted the aforesaid suit for declaration of title in 5 acres of land described in schedule "A" to the plaint and also for a declaration that the order dated 3.10.1961 of the Board of Revenue cancelling the settlement of the said land was null and void on the allegations, inter alia, that the appellant came from a middle class family of cultivators and after reading up to I.Sc. class he joined as a clerk in the Bakerganj Collectorarte on 1.8.35; that subsequently he was promoted to the post of Treasurer; that as his salary was inadequate for maintenance of his large family he applied for settlement of Government khas land to khas Mohal Department on 13.4.55 that he was found eligible for getting settlement of Government khas land and was allotted the disputed 5 acres of land on usual conditions for payment of premium and rents; that as the premium was fixed at Rs.1125/- he was unable to pay the same and prayed for instalments which was allowed and he paid Rs.400/- and got a receipt thereof and he executed a kabuliyat in favour of the defendant on 4.7.55 which was duly accepted and possession of the land was delivered to him and rent-roll was prepared in his name; that as the prior permission for settlement was not obtained from the Divisional Commissioner, Dhaka the Additional Collector (Rev.), Bakerganj refused sanction of the allotment and he filed an appeal against the said order of the Additional Collector (Rev.) to the Commissioner, Dhaka Division, who by his order dated 10.9.57 approved the settlement; that he spent about Rs.3,000/- for the development of the land; that as subsequently the premium of the Government settlement land was reduced an order for refund of a part of the premium money deposited by him was made and the said amount by way of an adjustment was paid against future rents, cesses etc.; that he paid rents etc. upto 1961-62; that a relationship of landlord and tenant was established between him and the defendant; that subsequently a copy of the Government (Board of Revenue) Letter No. 319/AE dated 3.10.61 was sent to him on 9.1.1962 stating that the settlement with him was cancelled by the Additional Deputy Commissioner (Rev) Bakerganj; that his appeal to the defendant against the said order of cancellation was dismissed and he was directed to give up the possession and thus he was threatened with dispossession; that he was a rightful tenant under the defendant and the Collector of the district was the competent authority to grant settlement of the Government khas land and he did not violate any terms of the kabuliyat.
 
3. The suit was contested by the defendant by filing written statement denying all material allegations made in the plaint. The case of the defendant was that the settlement of the disputed land was not final and concluded one and the kabuliyat executed was not accepted or approved by the appropriate authority. It was also contended that the suit was not maintainable, bad for want of valid notice under Section 80 of the Code of Civil Procedure and the suit was barred under Section 42 of the Specific Relief Act as the appellant had neither title nor possession in the suit land; that the suit was not also properly valued and the plaint was not sufficiently stamped; that appellant who was a Govt. servant was not also a person legally entitled to get settlement of the Government khas land; that the appellant also failed to perform his duties as per terms and conditions of the kabuliyat and as such he had forfeited the alleged fight, title and interest in the demised land and the suit is also barred under Section 76(2) of the Stale Acquisition and Tenancy Act and that the procedure laid down for settlement of a Government khas land was not followed in the case as the same was initiated without any authority by the local office of the defendant; that the appeal of the appellant before the Commissioner, Dhaka Division was not also incompetent and void, that the allegation of Rs.3000/- for improving of the disputed land was false and fabricated; that no legal right, title and interest in the disputed land ever accrued to the plaintiff simply because he had paid a portion of the salami or for this name was entered into the Rent-Roil; that the Board of Revenue acted within its jurisdiction in not accepting the proposal for the settlement of the disputed land with the appellant who was an employee of the defendant and was not eligible to have settlement of Government khas land depriving the legitimate and just claims of other deserving bona fide landless, cultivators; that respondent had already taken possession of the disputed land and the appellant was not a bona fide cultivator and was not entitled to get settlement of Government khas land as he had more than 3 acres khas land in his possession prior to the proposal for settlement of the disputed land which he fraudulently suppressed.
 
4. The learned Subordinate Judge framed the following issues:-
 
1. Is the suit maintainable in the present form?
2. Is the suit barred u/s 42 of the Specific Relief Act?
3. Is the plaintiff entitled to a declaration of his title to the suit land.
4. Is the order of the Board of Revenue under Memo No.3191/A.E. dated 3.10.61 liable to be declared full and void?
5. What relief, if any, is the plaintiff entitled to?
 
5. The learned Subordinate Judge on consideration of the evidence on record decreed the suit holding that the plaintiff had title in the land in dispute and the order dated 3.10.1961 cancelling his settlement by the Board of Revenue was null and void. The appeal of the defendant Province of East Pakistan (now Bangladesh) was allowed by the learned Additional District Judge setting aside the judgment and decree of the learned Subordinate Judge dismissing the suit. Being aggrieved by the aforesaid judgement and decree of the Lower Appellate Court this Second Appeal was filed by the plaintiff Appellant.
 
6. The learned Advocate for appellant submitted that the settlement of the disputed land with the plaintiff by the Govt. was final as the appellant paid portion of premium amounting to Rs.400/- and was granted receipt thereof and executed kabuliyat and his name was entered into Jamabandi Register No.2. He submitted, but subsequently as it was detected by the khas Mohal officer that the khas mohal land could not be settled with any Government officials without previous permission of the Divisional Commissioner, the Additional Collector (Revenue) refused sanction to the appellant which was dismissed resulting in an appeal before the Divisional Commissioner, Dhaka, who by his order dated 10-9-1957 sanctioned and approved the settlement holding that the settlement was concluded before imposition of the ban by the Board of Revenue on the cattlemen of Government khas land with the appellant. He submitted that the trial court considering these aspects of the case rightly decreed the suit holding that he order of the Divisional Commissioner conclusively proved that the appellant acquired valid title in the disputed land on the basis of settlement and the Lower Appellate court was wrong in reversing this finding of the trial court and dismissing the suit.
 
7. The learned Assistant Attorney General, on the other hand, submitted that the settlement was not a concluded one and it was merely a proposal of settlement which was yet to be finalised after approval by the Board and even there was settlement under Ext. 6th same was not valid. He also submitted that the appellant was not entitled to get settlement of Government khas Mahal land as because he was not a bona fide cultivator and the lower appellate Court rightly dismissed the suit.
 
8. It appears from the judgment of the lower appellate court that while holding that there was no legal settlement in favour of the appellant with respect to the disputed land it considered Ext. 3 dated 22.5.56, Ext. 4 (a)-4(d) rent receipts, Ext.5 (a) dated 25.6.55 letter addressed by the khas Mahal officer to the khas Mahal Circle Officer, Ext.9 an office note dated 11.7.57 of khas Mahal Officer pointed to the Additional Collector (Rev), the instruction containing in the circular dated 11.2.47, Ext. B to the effect that no khas Mahal Land of the Government could be settled with any Govt. employees without any previous approval of the Divisional Commissioner and the order of the Additional Collector (Rev.) dated 12-7-57 cancelling previous order dated 22.6.55 and directing the plaintiff to apply afresh to the Divisional Commissioner and Ext. 8 dated 9.1.62 informing cancellation of the settlement proceeding by the Board under Board's Memo No. 2191-A/E dated 2.10.61. He has also considered Exit. A(1) dated 4.2.58, a petition of the plaintiff which runs to the following effect:-
 
"That the Revenue Deputy Collector has demanded Salami at the rate prevailing in 1955 when part of. Salami was paid though the settlement was given with effect from 1958-59. This is extraordinary and is opposed to justice and equity. If settlement of the land in question is given with effect from 1958-59 salami is demanded prevailing in 1955, settlement should have been given from 1955-56 and all the usufructs taken thereof for three years by the Government should be refunded to the humble petitioner."
 
9. The learned Additional District Judge also took into consideration the Board Memo No. 7641 (16) G.E. dated 15.10.55 Ext. B(1) and by which settlement of all Government khas land was prohibited and original kabuliyat, Ext. 6 under which the appellant claimed settlement of the disputed land. Thus having considered all the material documents of record he came to the finding that "The original is with the record along with the certified copy and they show that the date of settlement therein ultimately is 1-4-1958 and not 2-7-1955 or 4-7-1955 as alleged in the plaint and by the plaintiff as a witness". He also held that settlement of the disputed land without- previous approval was not concluded and approval given by the Divisional commissioner by Ext. 5 dated 10.9.57 was in conflict with Ext. B and B(1) dated 11.2.47 by which prohibition on settlement of Government khas land imposed. The learned Lower Appellate Court further held that as there was no valid and legal settlement in favour of the appellant question of giving notice before cancellation of such settlement did not arise. He also held that the plaintiff failed to prove that the land was physically delivered to him after carefully considering the submission made by the learned Advocate of the appellant to the effect that the appellant was given possession of the disputed land on the date of execution of the kabuliyat i.e. on 2.7.55 in view of the petition filed by the appellant on 4.2.58, Ext. A(1) wherein the appellant himself stated that the Government enjoyed the usufructs of the property for the 23 years namely, from 1955-56 to 1957-58. So considering all these materials on record the lower Appellate Court found that, “the possession of the land was also not given or delivered to the plaintiff."
 
10. The learned Advocate for the appellant next submitted that the appellant was not given a show cause notice and as such order of cancellation was violative of the principle of natural justice and placed reliance upon the decision reported in 19 DLR 719. That case is distinguishable from the present case. In that case, the petitioner was registered for import of drugs and medicine under the Registration (Importers & Exporters) Order, 1952 and was granted a licence. The said order provides procedure for registration of the importer and also for suspension and cancellation of such registration. The said licence without show cause notice which certainly affected the right of the licence-holder adversely and he was deprived of the opportunity to show cause against the action. In that case the point for consideration before their Lordships was whether order cancelling without show cause notice was valid or not. By such registration rights and obligation were created and nothing left to be completed for granting the registration licence. But in the instant case Before me the settlement did not reach finality and was not a concluded one creating a right in the plaintiff but it was merely in a stage of proposal. Moreover, several steps taken by the appellant before the higher authority for sanctioning the alleged lease and filing of the petition on 4.2.58, Ext. A(1) speaks volume against the finality of the settlement. More so in view of his own petition asking for a fresh lease and his subsequent endorsement in the kabuliyat Ext. 6 on 1.4.58 by changing the schedule of the land as given in schedule of the said Ext.6, dated 2.7.55 and I do not find any reason to hold that the settlement under Ext. 6 was a completed and final one and on the basis of the same any title accrued to the appellant in the disputed land. In "view of these facts and circumstances of the present case the decision relied upon by the learned Advocate has got no application in the instant case.
 
11. The learned Advocate for the appellant also relied on a decision in the case of Abdur Rashid Khan Vs. Province of East Pakistan (now Bangladesh) decided by a Division Bench of Bangladesh High Court on 11.3.76 in Second Appeal No. 498 of 1966. From the certified copy of the said judgment of the said appeal it appears that the facts of that case are distinguishable from the facts of the present case. In that case there was no subsequent proposal and amendment of kabuliyat. There was only one kabuliyat in that case which although remained in force and was a complete and final one. But in the case before me, the kabuliyat executed on 2.7.55 was not in existence as another transaction was effected by the appellant by changing the schedule of the land although on the same form and by putting his signature on it on 1.4.58 and giving rise to a new document much later in point of time after settlement was prohibited by the Ext. B(1).
 
12. Thus it appears that by subsequent execution of the kabuliyat on 1.4.58 the appellant himself admitted that settlement made on 2.7.55 on the basis of kabuliyat as alleged by him was not acted upon and also in that view of the matter I hold that the cancellation of the settlement by the Board of Revenue by its aforesaid Memo was lawful and the approval of settlement of disputed land made by the Divisional Commissioner on 10.9.57 subsequent to Board’s Memo No. 7641(16) G.E. dated 15.10.55 was without any sanction of law.
 
13. So far as the question of bona fide cultivation is concerned the learned Additional District Judge held that possession of the brother of the appellant in the disputed land could not be treated as his possession. P.W.1, the appellant stated that they got their land ploughed through their servants. The learned Assistant Attorney-General in this respect submitted that although the appellant stated that they got their lands cultivated by their servants the said statement does not prove that the appellant got the disputed land cultivated by the servant. Section 82 of the State Acquisition and Tenancy Act and Rules 54 and 63 of Estate Manual provide that a bona fide cultivator must cultivate the land himself but he can get the land cultivated by the hired labourers or servants. But in this case there was no evidence to show that the appellant got the disputed land cultivated by the servant. The learned Assistant Attorney-General, therefore, submitted that as such the appellant was not a bonafide cultivator and as he was a Government servant, he was not entitled to get settlement of khas Mahal land. I find force in the contention of the learned Assistant Attorney-General.
 
14. In view of the above discussion, I do not find any substance in this appeal. This appeal is accordingly dismissed and the judgment and decree of the learned Additional District Judge dismissing the suit is maintained.
 
In the facts and circumstances of the case there will be no order as to costs.
 
Ed.