1. B. A. SIDDIKY, C. J.-The case of the petitioners, who have challenged certain Notifications and Orders of the Government of East Pakistan as well as of respondent No. 2, the East Pakistan Inland Water Transport Authority, is that they are the owners of R. S. Plots Nos. 9226-B, 9226-D and 9226-F of Sheet No. 16Ka of Mouza Dacca Shahar which lie to the south of the godowns of the petitioners standing on the bank of the river Buriganga and extend into the bed of the river Burigana beyond the highest water level and that they are in possession of the said plots by loading and unloading boats that they own and hire for carrying merchandise in which they deal in and also by stocking these merchandises temporarily on the bank of the river. These lands, it is asserted by the petitioners, have been recorded in the name of the predecessor---in-interest late Haji Osmanuddin Bhuiyan who filed this petition under Khatian No. 24 of the aforesaid Monza. During the Petty Settlement Records the lands of the plots mentioned above were renumbered as plots 3, 5 and 6 of Sheet No. 16Ka. The petitioners' claim to have a jetty in the above Ghat (known as the Chota Katara ghat) extending up to the bed of the river. The business of the petitioners as claimed, is extending for over 30 years and during this period it is asserted that the petitioners had not to pay any terminal taxes to any one for their boats or for the boats hired by them, rather if any tax was payable for using the Ghat by anybody, it was payable to the petitioners as they are the owners of the foreshore lands. This ownership of the petitioners is claimed on the basis of a lease obtained from the private owners of the lands and thereafter purchasing the rent receiving interest from the said landlords.
2. Suddenly the petitioners found that from the 10th of March 1966 respondents Nos. 3 and 4 started infringing the petitioners' right of loading and unloading the boats and their hired boats touching the Ghat by demanding taxes from the boatmen. For these collection, it is further said, no receipts were given by respondents Nos. 3 and 4 and that there was no fixed rate for realising these taxes.
3. On enquiry the petitioners came to know that the respondents Nos. 3 and 4 had obtained lease from the Dacca Port Authority for collection of Port dues from the boats which were loaded and unloaded in the aforesaid Ghat, beginning from 4-9-1966 but on demand by the petitioner, they refused to produce any authority for collection of taxes. On further enquiry the petitioners came to know that the Governor of East Pakistan by Home (Transport) Department, Notification No. 462 H. T.
4. D. Dated 9th September 1960, was pleased to extend the provision of the Ports Act (Act XV of 1908)
5. (hereinafter referred to as the Act) to the Port of Dacca in exercise of the powers conferred by clause (a) of subsection (1) of section 4, read with clause (9) of section 3 of the said Act. It was further learnt by the petitioners that by another Notification No. 463 H. T. D. Dated 9th September 1960, the Governor was pleased to appoint East Pakistan Inland Water Transport Authority to be the Conservator of the Dacca Port and the river and the channels leading to the same with effect from 1st September 1960 by virtue of the authority conferred upon him under section 7(1) read with clause (9) of section 3 of the Act. The further information that the petitioners gathered at this time was that the Governor by yet another Notification being Home (Transport) Department Notification No. 464 H. T. D. Dated 9th September 1960 in exercise of the powers conferred by subsection (2) of section 4 of the Act, was pleased to declare the north and south limits of the Dacca Port by reference to latitude and longitude. The further case of the petitioners is that by notice No. DP- 10/6/180/2436 dated 5-6-1966 the respondent No. 2, the Inland Water Transport Authority, directed the petitioners to remove their two godowns constructed un-authorisedly on the foreshore lands.
6. The following three notifications being Nos. 462-H. T. D. 463-H.T.D. ; 464-H. T. D. Dated 9th of September 1960 and the order of respondent No. 2 being Nos. DP-10/6/180/2436 dated 5-4-66 and also the lease granted by respondent No. 2 to respondents 3 and 4, for 1966 are under challenge in this petition :- (Three Notifications-Annexures `A' to `A-2')
7. "Registered No. DA-1.
8. The Dacca Gazette Extraordinary Published by Authority Monday September 12, 1960.
9. Part I.-Orders and Notification by the Governor of East Pakistan, the Administrator, Martial Law in East Pakistan, the High Court, Government Treasury etc. Government of East Pakistan Home (Transport) Department Notifications No. 462-H. T. D. 9th September 1960.-In exercise of the powers conferred by clause (a) of subsection (1) of section 4, read with clause (9) of section 3 of the Ports Act, 1908 (XV of 1908), the Governor is pleased to extend the provisions of the said Act to the ports of Narayanganj, Dacca, Tongi, Chandpur, Barisal and Khulna-Daulatpur.
10. No. 463-HTD-9th September 1960.-In exercise of the powers conferred by subsection (1) of section 7, read with clause (9) of section 3 of the Ports Act, 1908 (XV of 1908), the Governor is pleased to appoint the East Pakistan Inland Water Transport Authority established under section 3 of the East Pakistan Inland Water Transport Authority Ordinance, 1958 (East Pakistan Ordinance No. LXXV of 1958), to be Conservator of the following ports and the navigable rivers and channels leading to them with effect from the 1st September 1960, namely :- Names of Ports Narayanganj, Dacca, Tongi, Chandpur, Barisal and Khulna-Daulatpur.
11. No. 464-HTD-9th September 1960.-In exercise of the: power conferred by subsection (2) of section 4 of the Ports Act, 1908 (XV of 1908), the Governor is pleased to declare that the limits of the ports mentioned in the First Schedule and the navigable rivers and channels leading thereto shall be as defined in column 2 of the Second Schedule.
12. The First Schedule Names of Ports Narayanganj, Dacca, Tongi, Chandpur, Barisal and Khulna --Daulatpur.
13. The Second Schedule (Limits of Ports, navigable rivers and channels)
(1) Narayanganj
(i) To the North.-A line drawn east and west across the River Lakhya at latitude 23-43-50 N.
(ii) To the South.-Up to 50 yards beyond the high water--mark at ordinary spring tides from the south bank of the Dhaleswa ri River.
(iii) To the East.-Up to 50 yards beyond the high water--mark at ordinary spring tides from the east bank of the Lakhya River as it runs between the above prescribed North and South limits and similarly that part of the Dhaleswa d River on both its bank Eastward to longitude 90'-31'-15' E.
(iv) To the West.-Up to 50 yards beyond the high water mark of the ordinary spring tides from the West Bank of the Lakhya River as it runs between the above described north, and south limits including the Dhaleswa ri River up to 50 yards beyond the high water mark at ordinary spring tides on both its banks between longitude 90'-30-00" and longitude 90'-31'-15' E.
(2) Dacca
(i) To the North.-A line drawn to East and West across the Buriganga River at latitude 23'-48'-10' N.
(ii) To the South.-A Line drawn north and south across the River Buriganga at Fatula at longitude 90'-28"-25' E.
(iii) To the East.-Up to 50 yards beyond the high water mark at ordinary spring tides from the East Bank of the Buriganga River as it runs between the above described North and South limits.
(iv) To the West.-Up to 50 yards beyond the high water mark at ordinary spring tides from the West Bank of the River Buriganga as it runs between the above described North and South limits.
(3) Chandpur
(i) To the East.-A line drawn North and South across the Dakatia River at Longitude 90'-40'-20" E.
(ii) To the West. That portion of the Meghna river to the westward of the outfall of the Dakatiya River which lies East of longitude 90'-38'-10" E and bounded on the North by latitude 23'-14'-00" N up to 50 yards beyond the high water mark at ordinary spring tides from the East Bank of the Meghna River within these described limits.
(iii) To the North.-Up to 50 yards beyond the high water mark at ordinary spring tide from the north bank of the Dakatiya River as it runs between the above described East and West limits.
(iv) To the South.-Up to 50 yards beyond the high water mark at ordinary spring tides from the South Bank of the Dakatiya River as it runs between the above described East and West limits.
(4) Khulna-Daulatpur
(i) To the North.-A line drawn East and West across the Bhairab and Mujud Khali Nulla at latitude 22'-25'-45' N.
(ii) To the South.-A line drawn East and West across the Rupsa River at latitude 22'-46'-40'.
(iii) To the East.-Up to 50 yards of the high water mark at ordinary spring tides from the East Bank of the Bhairab and Rupsa River as they run between the above described North and South limits including both banks of the Mujud Khali Nulla, South of Latitude 22'-55'-245" N.
(iv) To the West.-Up to 50 yards beyond high water mark at ordinary spring tides from the West Bank of the River Bhairab and Rupsa Rivers as they run between the above described North and South limits.
(5) Barisal
(i) To the North.-A line drawn East and West across the Barisal or Arial Khan River at latitude 20'-43'-00" N.
(ii) To the West.-A line drawn East and West across the Barisal or Arial Khan River at latitude 21'-41'-00' N.
(iii) To the West.-Up to 50 yards of the high water mark a ordinary spring tides from the East Bank of Barisal or Arial Khan Rivers as it runs between the above described Nort1 and South limits.
(iv) To the East.-Up to 50 yards beyond the high water marl at ordinary spring tides from the East Bank of the Barisal or Arial Khan River including the Bukhainagar Nulla eastward to. Longitude 90'-23'-30N E.
(6) Tongi
(i) To the East.-A line drawn North and South across the Tongi Nala at a point measured along its South Bank 2 miles. East from the Eastern side of the Eastern parapet wall of the Mymensingh Road bridge at the village of Tongi.
(ii) To the West.-A line drawn North and South across the Tongi Nala at a point measured along its South Bank 2 miles. West from the Western side of the Western parapet wall of the Mymensingh Road bridge at the village of Tongi.
(iii) To the North.-Up to 50 yards beyond high water marked. At ordinary spring tides from the North Bank of the Tongi. Nala as it runs between the above described East and West limits.
(iv) To the South.-Up to 50 yards beyond high water mark at ordinary spring tides from the South Bank of the Tpngi Nala as it runs between the above described East and West limits.
14. By order of the Governor.
15. K. W. Jacob, Jt. Secry, to the Govt. Of East Pakistan."
16. (Order of respondent No. 2-Annexure `E')
17. "East Pakistan Inland Water Transport Authority Office of the Conservator of Ports Dacca DP-10/6/180/2436.Dated 5-4-66.
18. To Mr. Osman Uddin Bhuya Chota Katra Ghat, Imamganj, Dacca.
19. Whereas East Pakistan Inland Water Transport Authority has been appointed Conservator of Ports at Dacca by Notification No. 465-HTD, dated 9-9-60 whereas the Ports. Act of 1908 has been made applicable to this Port Notification No. 462-HTD dated 9-9-60 ; whereas I am satisfied that you have made unauthorised encroachment on the port land by constructing 2 (two) godowns which in my opinion obstructs the free navigation thereof or the lawful use of the jetty, landing place, Dock, or other works on the foreshore or bank which has been declared within the limits of the port, I in exercise of the power conferred on me by the subsection (3) of the section 10 of the Ports Act hereby direct you to remove the obstruction within 7 days from the date of this notice otherwise I shall get it removed and the cost of such removal should be realised from you according to law.
20. Sd. M. K. Nabi, For Conservator of Ports E. P. I. W. T. A.
21. Dacca."
22. The objection to the authority of respondent No. 2 to collect or to cause to be collected Port dues through respondents Nos. 3 and 4 is that the Government have not published in the official Gazette the order imposing port dues as required under subsection (5) of section 33 of the Act and also because the Government have not made any declaration under subsection (3) of section 33 of the Act.
23. The petitioner not being able to resist the respondents Nos. 3 and 4 from interfering with his rights, issued a demand notice on 16-3-1966 to the respondents demanding the respondent No. 2 to cancel the lease granted in favour of respondents Nos. 3 and 4 for the year 1966 and demanding the respondents Nos. 3 and 4 to refrain from either demanding or collecting any fee or tax from the petitioners' boats arriving at the Chota Katra Ghat. To this demand notice, it is alleged, a reply was given by respondent No. 2 an extract of which has been quoted in paragraph 13 of the petition from which the petitioners contend that the respondent No. 2 has admitted the non---publication of the Notification required under section 33(5) of the Act. As such, there was no authority vesting in the respondent No. 2 to collect through respondents Nos. 3 and 4 any port-dues from the petitioner.
24. With regard to the notice dated 5-4-1966 issued by the respondent No. 2 to the petitioners to remove their unauthorised godowns constructed on the foreshore lands, which are claimed to be in the khas possession of the Government, the petitioners submit that as many as 10 godowns of the petitioners are standing on the lands in question which do not in any way obstruct free navigation in the river and the godowns being situate on the lands belonging to the petitioners, the respondent No. 2 has no authority to ask them to remove the said godowns and/or to have the said godowns removed at the costs of the petitioners within 7 days from the receipt of the notice and the same is mala fide, ultra vires, illegal and motivated.
25. Upon these facts the petitioners prayed for a writ from this Court for a declaration as to why the impugned lease granted by the respondent No. 2 in favour of respondents. Nos. 3 and 4 for the year 1966 should not be declared to have been made without any lawful authority and to be of no legal effect and/or as to why the respondent No. 2 should not be directed to cancel the same and also for restraining the respon--dents from collecting port-dues from the petitioners' boats or boats hired by them arriving at the said Chota Katra Ghat. The third prayer of the petitioners was for a declaration that the notice dated 5-4-1966 issued by respondent No. 2 directing the petitioners under section 10(3) of the Act to remove the unauthorised construction to have been made without any authority and to be of no legal effect.
26. The Court on 11-4-66 issued the present Rule nisi in the following terms :- "Let a Rule nisi issue calling upon the respondents to show cause why the impugned lease granted by respondent No. 2 in favour of respondents Nos. 3 and 4 should not be declared as having been made without lawful authority and of no legal effect and why respondent No. 2 should not be directed to cancel the same, or such other or further order or orders made as to this Court may seem fit and proper.
27. The respondents are restrained from realising any taxes, tolls or port-dues whatsoever and respondent No. 2 from taking any action under the notice dated 5-4-1966, for a period of one month from today.
28. The rule is made returnable within two Weeks from date."
29. All the respondents appeared and filed affidavits-in-opposi--petition, In the affidavit-in- opposition filed on behalf of respondent No. 1 the claim of the petitioners that they are the owners of the foreshore lands and that they are having their godowns and business there for the last several years has been denied. The possession of the petitioners in regard to the lands in question has been categorically denied by respondent No. 1. In addition to the denials given to the claims of the petitioners the respondent No. 1 has asserted that the lands in question .Are foreshore lands which, under the law, belong to the Government and other lands which comprise the foreshore lands within the limits of Inland Port of Dacca vested in respondent No. 2 by Memo. No. 535 S. M.
30. Dated 2-5-61 issued by the Board of Revenue, East Pakistan and the possession of the said foreshore lands was delivered to respondent No. 2 by the District Authority on, behalf of respondent No. 1 on 20-7-61 and a certificate of possession to that effect has been annexed and marked as Annexure `B' to the affidavit-in-opposition filed on behalf of respondent No. 1. The existence of the alleged Jetty too has been denied by the respondent No. 1. It is said in paragraph 4 of the affidavit- in-opposition that the contiguous and parallel to and to the north of the said foreshore land there is a strip of land which vests in the respondent No. 1 as their khas land. The right of the petitioners to collect tolls and taxes, as claimed, has also been denied. It is further said that the Notifications issued are valid and also that the respondent No. 1 has by Notification No. 244 K. R. D. Dated 13-4- 1961 authorised respondent No. 2 to realise dues in inland ports. A copy of the said Notification has been annexed and marked as Annexure "C" to the said affidavit-in-opposition. With regard to the limits of the port of Dacca as notified on 9-9-1960 it is asserted that there is no vagueness in it and it is clearly ascertainable in reference to the latitude and longitude mentioned therein.
31. Respondent No. 2 has also categorically denied the right of the petitioners either to own or possess the foreshore lands claimed by them. It is also asserted that the entire foreshore lands within the limits of the inland port of Dacca has vested in respondent No. 2 by the Memo. No. 535 S. M. Dated 2-5-61 issued by respondent No. 1 and the formal possession of the -said foreshore land was delivered to respondent No. 2 by District Authority on behalf of respondent No. 1 on 20-7-61. The certificate of pos3ession also has been annexed to this affidavit-in-opposition. It is further stated by respondent No. 2 that plot No. 3/1 which lies parallel and contiguous to the north of khas land of respondent No. 1 which lies contiguous to the north of the foreshore lands has been settled by the Additional Deputy Commissioner, Revenue, Dacca with respondents Nos. 3 and 4 in Settlement Case No. 102 of 1963-64. It is said that if at all the petitioners own any land it must be far to the north of plot No. 3/1 which lies to the north of the khas land of respondent No. 1 which in its turn lies to the north of the foreshore land to which no private person can claim any right, title and interest. The godowns of the petitioners are alleged to have been constructed on the foreshore lands belonging to the Government and, as such, are unauthorised constructions made by the petitioners who are bound under the law to remove the same and on their failure, the respondent No. 2 has authority under section 10(3) of the Act to cause the same to be removed at the cost of the petitioner. As such the notice issued by respondent No. 2 on 5-4-66 under section 10(3) of the Act cannot be said in any way to be either motivated, mala fide or illegal. It is stated that the respondents 3 and 4 have been authorised by respondent No. 2 to realise charges for the use of the Jetty and the portion of the foreshore whose maintenance, including repairs to jetty, upkeep of approach road, provision of lightning, general cleanliness and dressing, is done by respondent No. 2 and its licensees the respondents Nos. 3 and 4. It is further stated by respondent No. 2 that there is no question of illegality in the demand of respondents Nos. 3 and 4 for tolls and charges from the boats that touch the foreshore lands for which the authority has been vested in respondents Nos. 3 and 4 by respondent No. 2 and these charges and tolls are not port-dues and as such it cannot be said that the port-dues are realised without the provisions of law in that behalf having been complied with. It is the further case of the respondent No. 2 that it has been authorised by respondent No. 1 by Notification No. 244 H. T. D. Dated 13-4-61 to realise dues in inland ports. The last but not the least it is contended by respondent No. 2 that the petition raises complicated and highly controversial questions of fact with regard to the location of the lands claimed by the petitioners and the lands belonging to the Government in khas and the foreshore lands and the lands leased out to respondents Nos. 3 and 4 and the possession of the petitioners with regard to any portion of any of these lands. The controversy, according to respondent No. 2, cannot be resolved by way of affidavits in a proceeding under Article 98 of the Constitution and needs settlement by relying on maps, measurements of lands and evidence taken in a properly framed suit. The petitioners have alleged that the area of the Port of Dacca as defined by the notification with reference to latitude and longitude does not cover the Chota Katra Gbat. The respondents have controverted this allegation. Resolution of this point too requires relaying of map and physical verification.
32. Respondent No. 4 in his affidavit-in-opposition denied the claim of the petitioners in all respects and asserted that Chota Katra is the name of a big road running parallel to the river Buriganga and one of the holdings standing on the said Chota Katra Road was acquired by respondent No. 3 by purchase from some of the co-sharers of the original owners and from other co-sharers other lands contiguous to the said holding were obtained on lease by them. The petitioners according to this respondent, have no right or title to any land or part of 16/B of Chota Katra. Very recently the petitioners illegally and forcibly erected some godowns of 16/B Chota Kotra which lie far to the north of the river Buriganga intervened by the foreshore land and the khas land of the Government and the lease-hold and purchased lands of respondents Nos. 3 and 4. Plots Nos. 9226B, 9226D and 9226E are denied to be in possession of the petitioners and it is said that these plots though lie to the south of 16/B, Chota Katra but do not extend up to the river Buriganga. He has also challenged the number of Khatian given by the petitioners to be correct. It is said that the Petty Settlement Khatian number of these plots is not 24 but 1266. Khatian No. 24 is of the last settlement. In the petty Settlement Record the names of the petitioners or their predecessor-in-interest late Haji Osmanuddin Bhuiya do not find any place but in the last settlement the name of the petitioner's predecessor-in-interest Haji Osmanuddin Bhuiya was recorded in Khatian No. 24. Respondents Nos. 3 and 4 filed a petition against the wrong recording of the name of Haji Osmanuddin Bhuiya in Khatian No. 24 and in the Misc. Case No. 43 of 1964-65 under section 50 of the State Acquisition Act it was found that although Haji Osmanuddin Bhuiya has no claim to the said lands, yet the wrong recording could not be corrected under section 50 of the said Act as it was not a case of bona fide mistake committed by the Settlement Offcer. Respondent No. 4 has also denied the existence of any Ghat in Chota Katra belonging to the petitioners or anywhere nearabout as alleged, far less within the Khatian extending to the bed of the river Buriganga as claimed by the petitioners His case is the same as stated by respondents 1 and 2 with regard to the existence of a plot of land being No. 3/1 lying to the north of the foreshore and the khas land of the Government and to the south of plot No. 3-A which belongs to respondent No. 4 by accretion to plots Nos. 9226-B, 9226-D and 9226-F.
33. With regard to the Notifications Nos. 462, 463 and 464 dated 9th September 1960 issued by respondent No. 1 under the Act, we find no reason to hold that these Notifications are in anyway violative of the provisions of the Act. From the certificate of possession annexed to the affidavits- in-opposition of respondents I and 2 (which are not challenged) it is clear that after being appointed Conservator of the port of Dacca, respon--dent No. 2 had taken possession of the port lands from agents of respondent No. 1.
34. At the time the rule came up for hearing, prayers (i) and (ff) of the petition had become infructuous in terms of the rule issued. No rule, was issued on prayer No. (iii) of the petition with regard to the validity of the notice dated 4-5-66 issued under section 10(3) of the Ports Act by respondent No. 2.
35. Mr. Khondkar Mahbubuddin Ahmed, learned Advocate for the petitioner having found himself in this predicament filed a supplementary-affidavit stating that the learned filing Advocate Mr. Arshaduzzaman Khan, moved the petition at the time of obtaining the rule. Mr. Khan was under the impression that the rule was issued in terms of prayers (i), (ff) and (iii) and had made an entry on the back sheet of his brief to that effect. When the learned Advocate for the respondent No. 1 at the time of hearing of the rule pointed out that no rule was issued in terms of prayer (iii) it was rather a surprise for the petitioner's learned Advocate. But the petitioner did not in the supplementary- affidavit pray for a fresh rule to be issued on prayer (iii). The supplementary affidavit mentions three facts one about the rule to which we have already referred and the other with regard to the unintelligible, vague and unascertainable limits of the port of Dacca defined by the Notification of respondent No. 1 in reference to the latitude and longitude and the existence of the godowns of the petitioner lying 50 yards beyond the place specified in the Schedule to the Notification No. 464 dated 9-9-60 and, as such, not standing on the foreshore lands, as claimed by the respondents.
36. The facts stated in the affidavits and the counter-affidavits which we have summarised about, are undoubtedly of very complicated nature. Without ascertaining the actual locations of the godowns and situation of the lands claimed by the contending parties and the limits of the foreshore lands and khas lands of the Government by relaying maps in the locality and taking evidence with regard to possession of respective parties it is impossible to give any relief to the petitioner in this application under Article 98(2) of the Constitution. It is settled law now that complicated questions of fact raising controversies which need to be resolved by taking evidence, cannot be decided only on affidavits under the extraordinary Writ Jurisdiction of this Court. The latest case of our Supreme Court on this point is an unreported decision given in Civil Appeal No. 4-D of 1962 by a Full Bench of the said Court. That decision, in our opinion, in all fours, applies to the facts of the present case as the same was given on claim of a company with regard to foreshore land at Narayanganj.
37. ABDUL HAKIM, J.-I agree.