1. ABDULLAH JABIR, J.----This rule was issued upon an apple--cation filed under Article 98 of the Constitution by one Sona Mia challenging the legality of an order dated 18-3-67 passed by Mr. K. M.
2. Rahman for Sub-Divisional Officer of Narayan--ganj directing O/C., Narshingdi P. S. To evict him by police force from the premises mentioned in the schedules of the petition.
3. The facts as stated in the present petition are that the land and structures mentioned in schedules 1 and 2 of the petition and which are situated within P. S. Narshingdi were owned and possessed by one Chittaranjan Sen who used to live with his family at Narayanganj where he used to work, that on 2-12-63 the said Chittaranjan Sen executed a deed of sale in favour of the petitioner and his wife Khodeja Bibi transferring his interest therein on receipt of a sum of rupees five thousand and delivered possession of the property and since then the petitioner has been living there by erecting huts, that the document could not be registered for want of Income-tax Clearance Certificate and in the meantime the East Pakistan Disturbed Persons (Rehabilita--petition) Ordinance, 1964 (hereinafter referred to as "the Ordinance") came into being imposing restriction on registration of documents in respect of property belonging to members of the minority community, to which Chittaranjan Sen belonged. The aforesaid Chittaranjan Sen alias Chittaranjan Sen Gupta thereafter died on 23-12-66. It is further stated that the respondent No. 2 Mrs. Bakul Sen Gupta the widow of Chittaranjan Sen for self and on behalf of her son respondent No. 3 Biswajit Sen Gupta filed an application under section 2 (1) of the Ordinance on 3-2-67 before the respondent No. 1 Sub- Divisional Officer of Narayanganj praying for eviction of the petitioner and 4 others from a part of the afiresaid properties on the allegation that the petitioner and others had illegally trespassed into the property taking advantage of the absence of the legal owners in consequence of the disturbance of 1964. The petitioner was served with a notice to show cause and he appeared and obtained an adjournment till 18-3-67 on which date he file] a petition for further adjournment on account of illness but instead of granting his prayer the impugned order, a copy of which has been filed as-Annexure "C", was passed.
4. Respondents 2 and 3 filed an affidavit-in-opposition in which they denied the execution of a deed of sale by their predecessor in-interest late Chittaranjan Sen Gupta on 2-12-63 in favour of the petitioner and his wife Khodeja 13ibi on receipt of a sum of rupees five thousand and also the story of delivery of possession of the property to them.
5. Mr. Md. Abdul Jalil, learned Advocate appearing on behalf of the petitioner contended that the order passed on 18-3-67 is bad in law inasmuch as no enquiry as contemplated by sub--section
(1) of section 2 of the Ordinance was held before the order was passed and that there is no mention in the order that the alleged trespass by the petitioner and others was made on account of disturbance of January 1964. The impugned order dated 18-3-67 is as follows:- "18-3-67. 1st party is represented by her lawyer and filed a petition. 2nd party also filed petition praying for time. Heard lawyers of both parties. The accused are trespassers. Ask O/C., Narshingdi P. S. To evict them by police force and restore possession to the petitioner by 7-4-67.
6. (Sd.) K. M. Rahman, for S. D. O., Narayanganj."
7. The validity of this order is to be tested in the light of the provisions of subsections (1) and (2) of section 2 of the Ordinance, which are as follows :- "(1) Any Magistrate or other officer specially empowered in this behalf by the Provincial Government by general or special order may, after such local enquiry and with such police or other help as he may consider necessary, evict summarily any person who may have occupied or taken possession in any manner whatsoever of any house, hut, structure or land which any other person has had to leave or has left on account of or in apprehension of, the civil disturbance in January 1964.
(2) The Magistrate or other officer referred to in sub--section (1) shall, as early as possible, restore possession of such house, hut, structure or land to the person who is proved to his satisfaction to have been in possession thereof and has left it in the circumstances referred to in subsection (1)."
8. Subsection (1) of section 2 of the Ordinance empowers a Magistrate to evict with police help, if after such local enquiry as may be considered necessary, any person is found to have taken possession of the land, structures etc. Which were vacated by some other person on account of or in apprehension of the civil disturbance in January 1964 and subsection (2) of section 2 authorises the Magistrate to restore possession of such land, structures etc. To the person, who is proved to his satisfaction to have been in possession thereof and has left it on account of or in apprehension of the civil disturbance in January 1964. In para. 10 of the petition, the petitioner stated that no enquiry of any sort was made before the impugned order was passed and in para. 13 of the petition, it was further stated that the petitioner had been occupying the premises in question with his family from long before the disturbance of January 1964. In the affidavit-in-opposition the respondents 2 and 3 did not deny that no local enquiry was held but it was stated that the learned Sub-Divisional Officer after carefully going through the petition filed by them and also the petition filed by the petitioner and others and after hearing the lawyers of both sides and on being satisfied passed the impugned order. The respon--dents 2 and 3, of course, denied the statement of the petitioner that he had been occupying the premises from long before the disturbance of January 1964, and asserted that taking advantage of the civil -disturbance, the petitioner dispossessed them from the premises in question. It is, therefore, evident that the Magistrate who passed the impugned order did not hold any local enquiry, such as the circumstances in this case called for, and at any rate the impugned order itself does not show that he held any enquiry at all. He ordered the eviction of the petitioner and others mentioning them and trespassers but there is no mention in the order that the alleged trespass took place in consequence of some other person having left the premise on account of the civil disturbance in January 1964. A Magistrate is not empowered under subsection (1) of section 2 of the Ordinance to evict summarily any and every kind of trespasser.
9. The jurisdiction to evict under that subsection can only be exercised against a person who had trespassed into the land of another who had to leave the same on account of or in apprehension of the civil disturbance in January 1964. In the circumstances, the order purported to have been passed under subsection (I) of section 2 of the Ordinance was passed with--out lawful authority and is of no legal effect. By the same order the Magistrate also directed restoration of possession to respondents 2 and 3. This order seems to have been passed under subsection (2) of section 2 of the Ordinance. It does not appear from the order itself that it was proved to the satisfac--petition of the Magistrate that the respondents 2 and 3 had been in possession of the premises and had left the same on account B of or in apprehension of the civil disturbance in January 1964. Hence the order of restoration of possession to the respondents 2 and 3 was also passed without lawful authority and it is of no legal effect.
10. The learned Advocate appearing on behalf of the respondents 2 and 3 stated that the alleged sale deed executed by late Chittaranjan Sen which was produced by the petitioner, is a fraudulent document and that the petitioner did not mention about his alleged purchase in the proceedings started under section 2 of the Ordinance by his client. We do not think that it would be proper at this stage to make any observation on the character of this sale deed. What we are concerned with in this petition is the legality of the order passed on 18-3-67. The said order having not been passed in accordance with the pro--visions of subsections (1) and (2) of section 2 of the Ordinance, cannot be sustained in law and it is set aside. This will not, however, prevent the Magistrate concerned from proceeding in accordance with the law and from passing such; order or orders as may be deemed fit and proper.
11. The rule, is, accordingly, made absolute without any order as to costs.
12. SIDDIKY, C. J.----I agree.