Deputy Commissioner, Sirajgonj Vs. Sultana Islam and another [4 LNJ AD (2015) 202]

Case No: Civil Appeal No. 165 of 2010

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Ekramul Haque,Mr. Abdul quiyam,,

Citation: 4 LNJ AD (2015) 202

Case Year: 2015

Appellant: Deputy Commissioner, Sirajgonj

Respondent: Sultana Islam and another

Delivery Date: 2015-01-20


APPELLATE DIVISION
(CIVIL)
 
Surendra Kumar Sinha, CJ
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J
Hasan Foez Siddique, J

Judgment on
20.01.2015
  Deputy Commissioner, Sirajgonj
... Appellant
Versus
Sultana Islam and another
. . . Respondent
 

State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)
Section- 2(3)
When the share of any hat, bazar, fishery or ferry has vested in the Government as a result of acquisition under the State Acquisition and Tenancy Act or otherwise, the Government is authorized to assume the right of possession, management and control of the remaining share of such fishery. …(13)
 
For the appellant. : Mr. Ekramul Haque, Deputy Attorney General, instructed by Mr. Haridas Paul, Advocate-On-Record.
For the Respondents. : Mr. Abdul quiyam, Senior Advocate, instructed by Mr. Bivash Chandra Biswas, Advocate-on-Record.

Civil Appeal No. 165 of 2010
 
JUDGMENT
SYED MAHMUD HOSSAIN, J:

This appeal, by leave, by the appellant, is directed against the judgment and order dated 26.08.2008 passed by a Division Bench of the High Court Division in Writ Petition No.4684 of 2002 making the Rule absolute.

The facts leading to the filing of this appeal, in a nutshell, are:

Writ-petitioner, Sultana Islam, filed the writ-petition before the High Court Division challenging the gazettee notification dated 30.03.1961 issued by the writ-respondents so far as it relates to the writ-petitioner’s property (Annexure-B) and for direction upon the writ-respondents to relinquish right of possession, management and control to her.

The writ-petitioner’s case, in a nutshell, is that Md. Golam Azam Talukder, father of the writ-petitioner, was the owner of 10 annas share in the tank in question covering an area of .7925 acres of land appertaining to D.S. Khatian No.2, Dag No.3164 corresponding to S.A. Khatian No.15, Dag No.1111 covering an area of .47 acre of land. The said tank was originally recorded in the names of Zaminder Hemchandra Chowdhury and others along with other lands in C.S. Khatian No.2, who made pattan of 10(ten) annas shares in favour of the father of the writ-petitioner admitting him as their tenant and granted 16 (sixteen) dakhilas in his favour on receipt of rents from him. Pursuant to pattan, the S.A. Khatian was prepared in the name of said Md. Golam Azam Talukder. Subsequently, it was transferred to the writ-petitioner, vide registered deed of heba-bil-ewaz dated 16.10.1961. While the father of the writ-petitioner was in peaceful possession of the same, the Government vide gazette notification dated 30.03.1961 assumed the right of possession, management and control of the ‘un-acquired’ shares of the said tank under section 2(1) of the Sairat Mahals (Management) Ordinance,1959 (in short, the Ordinance) to the extent of 14 annas, 1 ganda, 3 kora, 1 karat and 11 till out of .7975 acre of land. Since the father of the writ-petitioner did not receive any compensation from the government under sub-section (3) of section 2 of the said Ordinance he made several representations to the authority concerned to that effect, but to no avail. On 08.12.1986, he made another representation stating that the said tank had been filled up with earth and consequent thereto the Government was not rearing any fish for the last 14/15 years. Earth of the said tank was being sold in the month of Chaitra and that unlawful occupants had created shops on the bank of the said tank and hence, prayed to the Deputy Commissioner, Sirajgonj to relinquish its rights of possession, management and control of the said tank in his favour under section 4 of the Ordinance. The Deputy Commissioner, Sirajgonj, accordingly, sent the matter on 09.12.1986 to the Additional Deputy Commissioner (Revenue) for disposal. Pursuant thereto Miscellaneous Case No.148 of 1986 was registered. The father of the writ-petitioner was heard on 23.12.1986 and was directed to give written reply on 24.12.1986. The Government pleader was asked to give opinion in the matter. Later upon giving written opinion on 29.12.1986, the Government pleader opined to return the 10 annas share of the said tank to the father of the writ-petitioner and to pay him compensation as per law. The Revenue Deputy Collector, Sirajgonj, considering the said opinion took up Miscellaneous Case No. 148 of 1986 on 20.12.1986 and upon hearing the father of the writ-petitioner disposed of the application observing that the disputed tank might be returned to him on ascertaining the area by surveyor under section 4 of the Ordinance or compensation might be assessed for his share and be paid to him, but no steps were taken by the Government to the effect. Subsequently, the father of the writ-petitioner by filing an application on 22.06.1987 brought it to the notice of the Minister, vide memo dated 30.10.1990 who referred the said Miscellaneous Case to the Secretary, Ministry of Land for approval of the judgment and order dated 30.12.1986 and for publication in gazette notification under section 4 of the Ordinance but to no avail. At this stage, the father of the writ-petitioner died on 15.10.1991 and after his death, the writ-petitioner being the owner of the said tank by virtue of the said Hiba-bil-ewaz requested the authority and the Deputy Commissioner (Revenue), Sirajgonj, vide memo dated 27.02.1997 gave reminder to the Secretary, Ministry of Land to take steps to the effect, but the authority kept silent. The cause of action arose when writ-respondent No.1 through the Senior Assistant Secretary, Ministry of Land informed the writ-petitioner on 15.03.1998 that the said tank of S.A. Dag No.1111 had been recorded in khas khatian No.1 in Dag No.1516 and as such, the same could not be relinquished in favour of the writ-petitioner. The writ-petitioner made further request to the authority concerned to consider the matter, but in vain.

Being aggrieved by and dissatisfied with the gazette notification dated 30.03.1961 so far as it relates to the writ-petitioner’s property (Annexure-B) and for direction upon the writ-respondents to relinquish right of possession, management and control to him, writ-petitioner Sultana Islam filed writ-petition before the High Court Division and obtained Rule Nisi in Writ Petition No.4686 of 2002.

Writ-respondent No.2 contested the Rule by filing affidavit-in-opposition controverting the material statements made in the writ-petition. His case, in short, is that the tank in question was recorded in the name of Zaminder in C.S. Khatian No.2 in Plot No.3164 with an area of .7925 acre of land with the remark that it was being used by the public. After the abolition of Zamindery system, the said C.S. plot along with other khas lands vested in the Government free from all encumbrances. During S.A. operation, C.S. Plot No.3164 was changed into S.A. Plot No.1111 and was recorded in ‘Chhut khatian’ in the name of the Government. The father of the writ-petitioner allegedly in collusion with others managed to have it recorded in S.A. Khatian Nos.13 and 15. When it came to the notice of the government, it assumed the right of possession, management and control of the tank, vide gazette notification dated 30.06.1961. Later the Additional Deputy Commissioner (Revenue), Pabna recorded the disputed S.A. Plot No.1111 having an area of .7527 acre, vide memo dated 05.04.1980 as ‘sairat mahal’ and transferred to Sairat Mahals Register (Reg. Novi) and hence it was recorded in khas khatian No.1. During R.S. operation, the said S.A. Plot No.1111 was changed to R.S. Plot No.1516 and was recorded in the name of writ-respondent No.2 and as such, the Rule Nisi issued in the above writ-petition is liable to be discharged.

The learned Judges of the High Court Division upon hearing the parties by the judgment and order dated 26.08.2008 made absolute with direction.

Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the writ-respondent as the leave-petitioner moved this Division by filing Civil Petition for Leave to Appeal No.989 of 2009, in which, leave was granted on 15.12.2009, resulting in Civil Appeal No.165 of 2010.
Mr. Ekramul Haque, the learned Deputy Attorney  General, appearing on behalf of the appellant, submits that by the gazette notification dated 30.03.1961 (Annexure-B to the writ-petition) the Government assumed the right, of possession, management and control of the un-acquired shares of the said tank and as such, there cannot be any ground for challenging the said gazette notification by way of filing a writ-petition and that the High Court Division erroneously found that the gazette notification so far as it relates to share of the Late Golam Azam Talukder was not valid and as such, the impugned judgment should be set aside. He further submits that the tank in question was recorded in the name of the Zaminder Hemchandra Chowdhury in C. S. Khatian No.2 in Plot NO.3164 with an area of .7925 acre of land with the remark column that it was being used by the public and that after abolition of Zamindery system, the said C.S. plot along with other khash land vested in the Government and that the High Court Division without considering this aspect of the case made the Rule absolute and as such, the impugned judgment should be set aside.

Mr. Abdul Quiyum, learned Senior Advocate, appearing on behalf of the respondents, on the other hand, supports the impugned judgment delivered by the High Court Division.

We have considered the submissions of the learned Deputy Attorney General and the learned Senior Advocate,   perused the impugned judgment and the materials on record.

Before entering into the merit of the appeal, it is necessary to go through the grounds, on which, leave was granted. The grounds are quoted below:

“The order passed by the Revenue Deputy Collector, Sirajgonj in Miscellaneous Case No.148 of 1996 was a mere recommendation to the Deputy Commissioner, Sirajgonj for his consideration but the Deputy Commissioner, Sirajgonj was the proper authority to pass such kind of order in Miscellaneous Case and that the tank in question was recorded in the name of Zaminder in C. S. Khatian No.2, being Plot No.3164 with an area of .7925 acre of land with the remark that it was being used by the public and after the abolition of Zamindery system, said C. S. plot along with other khas land vested in the Government free from all encumbrances and during the S.A. operation, C. S. Plot No.3164 was changed into S.A. Plot No.1111 and was recorded in the ‘Chhut khatian’ in the name of the Government.
 

The High Court Division has failed to appreciate that in this case, the complicated question of title is involved and the disputes can only be determined and decided by a regular suit in a competent civil Court on taking evidence both oral and documentary and as such, the writ jurisdiction is not the proper forum for the relief sought by the writ-petitioner-respondent and in that view of the matter, the impugned judgment and order is liable to be set aside.”

Admittedly, an area of .7924 acre of land of C.S. Khatian No.2, C.S. Plot No.3164 corresponding to S. A. Khatian No.15, Plot No.1111 covering an area of .47 acre of Mouza-Bhuterdiar, Police Station-Sirajgonj, District-Serajgonj originally belonged to Zaminder Hemchandra Chowdhury and others. Respondent No.1 claimed that the Zaminder settled 10 annas share of the tank in favour of his late father, Golam Azam Talukder. Pursuant thereto during S.A. operation, the name of the father of respondent No.1 was recorded in S. A. Khatian No.1315 (Annexures-Q and R respectively to the writ-petition).Subsequently, the Government admitting the father of respondent as its owner and possessor vide gazette notification dated 30.03.1961 assumed the right of possession, management and control of the un-acquired share of the tank. The relevant portion of the gazette notification reveals that the Government has assumed the right of possession, management and control of the un-acquired share of the said tank under section 2(1) of the Ordinance runs as under:

“2(1). Where any share of any hat, bazar, fishery or ferry has vested in the Government as a result of acquisition under the State Acquisition and Tenancy Act,1950, or otherwise, the Government may, by notification in the official gazette, assume the right of possession, management and control of the remaining share or shares of such hat, bazar, fishery or ferry.”

Having gone through the above sub-section, we find that when the share of any hat, bazar, fishery or ferry has vested in the Government as a result of acquisition under the State Acquisition and Tenancy Act or otherwise, the Government is authorized to assume the right of possession, management and control of the remaining share of such fishery.

It is pertinent to quote sub-section (3) of section 2 of the Ordinance, which runs as under:

“2(3). Where the right of possession, management and control of any share in any hat, bazar, fishery or ferry has passed on to the Government under sub-section(2), the owner of such share shall, from the date of such passing on till the date of vesting of such share in the Government as a result of acquisition under the provisions of the State Acquisition and Tenancy Act,1950, or otherwise, receive from the Government in respect of such share as compensation for use and occupation for each year or part of a year an amount which will bear such proportion to the net income realised by the Government for the entire property for that year or part of a year as such share bears to the whole property.”

According to the above provision of law, the owner of such share is entitled to receive compensation from the date of passing on till the date of vesting such share in the Government for use and occupation by the Government for each year or part of the year.

In the case in hand, the Government assumed the right of possession, management and control of the unacquired share of the tank in question under section 2 (1) of the Ordinance from the father of respondent No.1 and one M.A. Ishaque MukteÊar, Sirajgonj to the extent of 14 annas, 1 gonda, 3 karas, 1 kranti and 11 tils shares.

The gazette notification dated 11.03.1961 vesting the right of possession, management and control of the tank from the father of respondent No.1 has not been challenged before any Court till filing of this writ-petition before the High Court Division. The High Court Division came to a finding that the disputed tank could not be regarded as fishery and as such, assumption of the right of possession, management and control of the disputed tank by the Government was not permissible. The Government has taken over the right of possession, management and control of the disputed tank in 1961 and after lapse of many decades, it cannot be said that the disputed tank could be designated as a fishery.

The learned Senior Advocate for respondent No.1 submits that respondent No.1 is legally entitled to compensation from the Government. If respondent No.1 makes any prayer for compensation on account of the disputed tank, the Government will consider such prayer in accordance with law because the admitted owner is entitled to compensation.

In the light of the findings, we find substance in this appeal. Accordingly, this appeal is allowed and the impugned judgment is set aside with the observation made in the body of the judgment as to compensation. There is no order as to costs.

Ed.