1. A. S. CHOWDHURY, J.-The petitioner Mizanur Rahman calls in question an order made by the Additional Deputy Commis--sioner, Dacca on the 17th August 1968 directing him to vacate C. S. Plot No. 67-Part, Mouza Dhanmandi, P. S. Lalbagh within 15 days from the date of the service of that order.
2. Petitioner's case is that he along with Moazzal Islam and A.I Azam purchased li bighas of land out of C. S. Plot No. 67 appertaining to C. S. Khatian No. 174 of Monza Dhanmandi, J. L. No. 251 P. S. Lalbagh, District Dacca by a registered sale deed dated 18-8-1952 from one Raham A.I. Thereafter the petitioner and his co-sharers effected an amicable partition and. It is further claimed, that the petitioner by virtue of the said partition owned and possessed 7 katas of the land It is further claimed that he has been paying rent to the Provincial Govern--ment and that the plot has been recorded as R. S. Plot No. 232/1149 and there has been a separate Municipal holding as well as a separate khatian under the State Acquisition Act. It is further claimed that he has constructed a building with the permission of Communication and Building Department of the Government of East Pakistan. It is asserted and not denied that the Government derequisitioned some lands of the said C. S. Plot No. 67. It is further claimed that the C. & B. Depart--ment of the Government has been giving permission for construc--tions in the said C. S. Plot and in support of this contention the name of one Yakub A.I is mentioned. It is also alleged that- "the Government had most illegally and capriciously and with an ulterior motive allotted some portions of the said Plot No. 67 to some high Government Officials and their relations for their private constructions totally ignoring the pitiable plight of the persons affected."
3. It is finally asserted that the impugned order is therefore illegal and of no effect whatsoever.
4. An affidavit-in-opposition has been affirmed by one Mr. Bazlur Rahim who describes himself as Additional Land Acquisi--petition Officer, Dacca. It is stated by him that the petitioner purchased the land after it was requisitioned and his constructions were unauthorised and his possession was no better than that of a trespasser in the Government land. It is further stated that the land was requisitioned by an order dated 25-2-49 issued on one Hashemuddin and others and the requisition and acquisition orders were made in accordance with law and that the required portion of the C. S. Plot No. 67 had been clearly delineated in the requisition and acquisition plan and map.
5. Although it is admitted that there were some constructions on the land, it is asserted that they were unauthorised. With regard to the permission alleged to have been granted by the Communication and Building Department, the deponent says that he has no knowledge whatsoever in this behalf. It is further stated that originally an area of 26.19 acres was requisitioned out of total area of 38.48 acres from the C. S. Plot No. 67 and out of the acquired area of 26.19 acres, area of 9.32 acres have been derequisitioned and it is claimed that the land of the petitioner is within the lands still under acquisition.
6. Mr. Ruhul Islam, learned Advocate for the petitioner, submits that the impugned order is illegal inasmuch as the title to the land is in dispute and that being so, a notice under subsection (1) of section 5 of the East Bengal Government Land A and Buildings Recovery of Possession Act, 1952 (hereinafter called "the Act") cannot be issued in law. He urges that the respon--dents have failed to give adequate description of the plot which is ordered to be vacated and as such the impugned order is illegal. Mr. Ruhul Islam invites our attention to a decision of our Supreme Court in the case of Sufia Khatun v. The Secretary, Revenue Department and others (PLD 1968 SC 72) and it is claimed by him that the instant case is fully covered by the decision of the Supreme Court, and as such the impugned order must be held to be an illegal one.
7. The learned Advocate-General who appears in opposition of the rule submits that in Sufia Khatun's case their Lordships of the Supreme Court said no more than this that the summary ejectment was not permissible when there is bona fide dispute as to title. His contention is that even in that case it was not held that Sufia Khalun could not at ail be evicted. It was merely held that summary method available under that Act was not permissible on the facts of that particular case. The learned Advocate-General distinguishes the present case from that of Sufia Khatun on the ground that in that case no requisition order was available and that the plan of 1959 as well as that of 1952 were also not produced before the Court. He lastly claims that although there is a derequisition order in this case also, the petitioner's property has been fully and adequately described. He finally asserts that summary method of eviction is permissible in the facts and circumstances of this case.
8. We are, therefore, to examine if Sufra Khatun's case is applicable to the facts of the instant case. In that case also Sufia Khatun challenged the validity of an order made under subsection (1) of section 5 of the Act. The Supreme Court found that the land of Sufia Khatun was described as "a part of C. S. Plot No. 67." Their Lordships of the Supreme Court then reiterated the principle laid down in the case of Ralli Brothers Ltd. v. Province of East Pakistan and others (PLD 1966 SC 409) and observed that the authority requisitioning or acquiring property .Under the compulsive power of the Act was required to indicate definitely what part of the land was acquired by them. If any specific portion out of a bigger plot was acquired, it would be necessary to give description of the portion sought to be acquired.
9. I pause here to say that the Supreme Court held that in order to invoke the summary powers envisaged under section 5 of the Act, it was necessary to make it clear what part of the plot was acquired and if the petitioner's land fell withinthat part. It was, however, held that "there must be a bona fide dispute concerning title to the land in question" in order to resist summary procedure of eviction as provided in the Act. In the case before us also petitioner Mizanur Rahman claims that he pur--chased the land, paid rent to the Government and has been in peaceful possession of the suit land where he has put up several structures. The learned Advocate-General says that peaceful possession will not do as he is a trespasser. But he forgets that the petitioner relies on rent receipts issued to him by a Govern--ment Department after effecting mutation on the basis of certain registered deeds of title as already stated above. It is, therefore, clear that there is a bona fide dispute as to title which is to be resolved in a properly constituted suit. A person does not become a trespasser merely because a Government Department chooses to call him as such specially when another Government Department receives rent from him for several years. It is to be determined in a Court of law as to whether he is a trespasser or not.
10. It was further observed by their Lordships of the Supreme Court in Sufia Khatun's case that "some confusion is .Further noticed by the admitted facts that some portion of C. S. Plot No. 67 was admittedly derequisitioned by Government in 1950." This confusion is present in the case before us as well for, the very plot involved in this case was also the subject-matter in Sufia Khatun's case.
11. Moreover, it is stated in the affidavit-in--opposition affirmed on behalf of the Government that some portion of this very plot has been derequisitioned although it is claimed therein that the petitioner's land has not been derequisi--tioned. This is again a matter of dispute to be determined in a suit. The summary procedure provided under the Act is there. Fore not available in the instant case as well.
12. Their Lordships of the Supreme Court finally observed "In view of the authoritative pronouncement on the subject by this Court, Mr. Asrarul Hossain the learned Advocate. General, found it difficult to urge that the summary ejectment process of the East Bengal Government Land and Buildings (Recovery of Possession) Act, 1952 was attracted to this case. The summary procedure provided by that Act could only be pressed into service where the title of Government is clear. This seems to be a fit case in which the question of title should be decided by a regular suit, failing agreement inter parties."
13. This observation, we have sufficiently indicated is fully applicable to the facts of the present case.
14. We really do not know how the present case is sought to be distinguished from that case. The Supreme Court observed that the said Act can be applied "where the title of the Government is clear". In the facts and circumstances of the instant case, as discussed above, it cannot be said that "the title of the Government is clear".
15. The principle has also been elaborately discussed by their Lordships of the Supreme Court in the Civil Appeal No. 32-D of 1962 referred to in the case of Sufia Khatun. The relevant passage occurring in the said Civil Appeal No. 32-D of 1962- has also been quoted and respectfully followed by Division Bench of this Court in the case of Kala Mia alias Kala Mia Saheb v. Pro--vince of East Pakistan and others (PLD 1963 Dacca 636). In that case also an argument similar to that of the learned Advocate-General was advanced on behalf of the Government. In repelling the said contention the learned Chief Justice of the Supreme Court observed "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 the Government to make inquiry if a person is an unauthorised occupant. It, however, does not say that the decision of the Government as to the title of the property in question shall be final."
16. His Lordship further observed: "This was not and could not be the intention of the Legisla--ture as is clear from section 5."
17. The learned Advocate-General's contention that the present case is distinguishable simply because in the case of Sufia Khatun, the impugned requisition order was not available is within substance. In that case also the Supreme Court proceeded on the assumption that there was an order requisitioning the property. It would make little or no difference as to whether or not the requisition order was placed before the Court. In the present case, an order alleged to be the relevant requisition order has been made Annexure '1'. But that does not improve the case of the Government, for,-there also the property is described as: "Mouza Dhanmandi, J. L. 251, C. S. Plot No. 67-P". Letter `P' indicates part of the plot. Moreover, Mr. Ruhul Islam ,submits that the said requisition order does .Not give the requisition case number and as such is not referrable to the land in question. Be that as it may, we have already found, for the reasons stated above, that the production of a requisition order in this case makes no difference.
18. Next point urged by the learned Advocate-General is that fn the case of Sufia Khatun, no plan could be produced before the Supreme Court. This contention of the learned Advocate-- General is also not borne out by the facts of the case as noticed by the Supreme Court. In that case their Lordships observed :- "In support of the position adopted by them a blue print of plan apparently prepared in 1959 was produced in Court. It was objected on behalf of the appellant that this was a subsequent plan which could not affect the land in dispute. It was then represented on behalf of the respondent that this was merely a certified copy prepared under the orders of the Land Acquisition Officer by a Kanungo in 1952 and an old blue print of that plan vas placed before the learned Judges of the High Court and they were invited to hold in consequence of that no legal exception could be taken to the requisition or 'acquisition of the disputed property."
19. It is, therefore, clear that the Supreme Court was aware that there was a blue print of the plan prepared in 1952 which was copied in 1959. Therefore, there is no difference between the two cases.
20. The learned Advocate-General then says that he has now got a plan, which was prepared in 1951. If the blue print of 1952 was not considered sufficient by the Supreme Court, we do not think that a blue print of 1951 would make all the difference to justify the summary procedure of eviction as contem--plated in subsection (1) of section 5 of the Act. Mr. Ruhul, Islam submits that it should be noticed that before the Supreme Court it was not even asserted that there was a blue print pre-- pared in 1951. He further objects to any reference to the same as it has not been filed in the present case as well. We have, however, found that in the case of Sufia Khatun also a blue print was relied upon but that was not considered sufficient. We are, therefore, clearly of opinion that the decision in the case of Sufia Khatun is fully applicable to the facts of the instant case and the impugned order must be held to be illegal.
21. Even after the law was clearly laid down by the Supreme Court on the 1st November 1967, the impugned notice was issued on 15/17-8-68. We are, therefore, of opinion that although in Sufia Khatun's case the Supreme Court did not award costs, in the present case costs should be assessed at 5 gold mohors and awarded in favour of the petitioner; and we order accordingly.
22. NURUL ISLAM, J.-I agree.