MD. ISMAIL TALUKDAR (REPRESENTED BY HEIRS) AND ANOTHER Versus GOVERNMENT OF EAST PAKISTAN AND 2 OTHERS
1. SIDDIKY, C. J.‑--- This is an application under Article 98 of the Constitution by the two petitioners‑first of whom is Md. Ismail. Talukdar and the second is one Nagar Bashy Das challenging the validity of an order passed by the Deputy Commissioner, Barisal on 10‑9‑1966 in Requisition Case No. 41 of 1965.
2. Briefly the facts necessary for our purpose are that Municipal holding No. 122/123 situated in C. S. Plot No. 2738 in the town of Barisal was requisitioned for housing the Social Welfare Organisation on 11‑12‑1965. The notice of requisition was served on four persons, namely, the petitioner No. 1 Md. Ismail Talkudar, petitioner No. 2 Nagar Bashy, one Sukumar Poddar, one Atul Chandra Sarker and Tafazzal Ali Talukdar who is respondent No. 3 herein. Notice to the petitioner No. 1 Ismail Talukdar was given on the basis that he was the owner of the premises and the rest of the four persons to whom notices were issued, were occupiers of the premises. The petitioner's case is that he after auction‑purchase of the property in question had been possessing the same by letting ft out to four tenants who were Sukumar, Atul Chandra Sarker, Nagar Bashy and Atal Chandra Sarker. Later on respondent No.3 Tafazzal Ali forcibly dispossessed Atul Chandra Sarker and occupied the western room of the ground floor. Thereafter on a challenge of the requisition order by respondent No. 3 Tofazzal the Commissioner upheld the order of requisition but the Government in its revisional jurisdiction set aside the order of requisition of the entire premises. Thereafter the Deputy Commissioner, Barisal who was the requisitioning authority Issued notice of derequisition under section 8 of the Act read with rule 10(2) of the Rules framed under the East Bengal (Emergency) Requisition of Property Act only to respondent No. 3 Tofazzal. The petitioner objected to this issuance of notice of derequisition only in favour of respondent No. 3 and claimed that he being the owner of the house he should have been given the notice of derequisition for at least 3 of the 4 rooms of the house. The Deputy Commissioner in spite of the objections of the petitioners before us held that respondent No. 3 as an owner of the house was entitled to the possession of it on derequisition. This is the order in challenge before us. The petitioner No. 1 Ismail Talukdar's further case is that there was no reason for the Deputy Commis sioner to have given notice of either requisition or derequisition to respondent No. 3 as according to the Deputy Commissioner himself as will be evident from Anneaure G to the petition which is the reply given by the Deputy Commissioner in the Appeal Case No. 1 of 1966 arising out of the Requisition Case No. 41 of 1965 before the Commissioner, Khulna Division, that the petitioner No. 1 9s not only the owner of the premises in question but was admitted to be so by the Deputy Commissioner and further that the latter In the said appeal took the position that the respondent No. 3 Is not the owner of the property and he could not be treated to be so. According to the petitioners the notice for requisition given to the respondent No. 3 and the subsequent notice of derequisition issued in his favour are all doings of one Abdus Sattar who is a close relation of respondent No. 3 and was the confidential clerk of the Deputy Commissioner of Barisal. It is this Abdus Sattar who has manipulated these notices in favour of his relation‑respondent No. 3 and has influenced the authorities to issue notice in favour of respondent No. 3 only to create an advantageous position for him with regard to the ownership of the house in question.
3. The respondent No. 3 Tofazzal has filed an affidavit‑in- opposition and in that he has claimed the ownership of the house on the basis of a subsequent auction‑purchase of the property and has further stated that a title suit is pending in the Civil Court at Barisal filed by the petitioner No. 1 before us and until that suit is decided, the ownership of the property cannot be said to be belonging to petitioner No. 1. He has in his affidavit‑in- opposition also raised the question of validity of the auction purchase of the petitioner No. 1, but unfortunately the auction purchase was finalised up to the Board of Revenue and we are not concerned with regard to the validity of that auction‑purchase in these proceedings.
4. Respondent No. 3 has claimed the ownership of the property himself but surprisingly enough in his lengthy affidavit‑in- opposition he has not controverted the allegations made by the petitioner about Abdus Sattar, the confidential clerk of the Deputy Commissioner of Barisal to have influenced the orders in favour of the respondent No. 3.
5. Sitting in writ jurisdiction we are certainly not going into the question of title of either the petitioner No. 1 or that of respondent No. 3. What we shall have to see here is as to who is entitled to the possession of the property after it being derequi sitioned.
6. Section 8(1) of the East Bengal (Emergency) Requisition of Property Act, 1948 provides as follows:‑
7. "Where any requisitioned property is to be released from requisition, the Deputy Commissioner may restore it to the persons from whom the property was requisitioned or to his successor‑in‑interest or to such other persons as may appear to the Deputy Commissioner to be entitled to such restora tion."
8. In terms of this provision of law, the Deputy Commissioner is to restore possession of the requisitioned property to the owner or to person or persons from whom the property was requisitioned and/or to his or their successors‑in‑interest or to such other person or persons as may appear to the Deputy Commissioner to be entitled to such restoration. If the third clause of this provision is to be resorted to, then rules 10(1) and 10(2) framed under this Act are to be followed, that is, of giving hearing to persons interested and then deciding the matter.
9. In the present case the property was requisitioned from the hands of petitioners Nos. 1 and 2 Nagar Bashy Das, Sukumar Poddar and respondent No. 3 Tofazzal. Of the three Hindu tenants who were in possession on the date of requisition are said to be not available in the town of Barisal according to the affidavit‑in‑opposition of respondent No. 3 as they were transferred to the Sub‑Divisional Headquarters within the same district but petitioner No. 1 Ismail is certainly available on the spot and he was admitted by the Deputy Commissioner to be the owner of the premises in the appeal proceedings before the Commissioner of the Division which was initiated by respondent No. 3. It is found from the petition further, that the learned District Judge, Barisal was also moved by the petitioner for an order on the district authorities for banding over the possession of the property to him and the learned District Judge has ordered so. But in spite of all these the Deputy Commissioner has found it suitable to order restoration of possession of the property to respondent No. 3 by invoking the aid of rule 10 of the rules. In the face of the fact teat the property was requisitioned from petitioner No. 1 the owner and from the hands of his tenants as far as three rooms of it are concerned as well as from the fact that the Deputy Commissioner has admitted at an earlier stage that the petitioner No. 1 was the owner of the property, for the purposes of this Act, respondent No. 3 was not the proper person to whom the possession of the property should have been handed back at least to the extent of three rooms. Respondent No. 3 was also one of the persons from whom one of the rooms was requisitioned and we could understand if the derequisitioned order with regard to one room was made in favour of respondent No. 3. There was no question of putting him back into possession of the entire premises.
10. But the impugned order made by tile Deputy in spite of all these facts leaves no doubt in our mind an unseen hand working behind the orders mace respondent No. 3 Tofazzal Ali. The allegations made by the petitioner that Abdus Sattar the confidential clerk to the Deputy Commissioner and a close relation of respondent No. 3 has manipulated these orders in favour of Tofazzal Ali, have not been refuted by the latter in his lengthy affidavit‑in‑opposition. Therefore, we cannot but accept the position as taken by the petitioner that it is at the instance of Abdus Sattar that the impugned order has been made in favour of respondent No. 3. In that view of the matter the impugned order is not only illegal but also mala fide.
11. For the reasons stated above, this Rule is made in favour of respondent No. 3 Tofazzal for the entire premises is set aside and we direct that the Deputy Commissioner, Barisal do restore to the petitioner No. 1 Md. Ismail Talukdar possession of the three C rooms of the property, that is, the entire property minus one room in the ground floor which was in possession of respondent No. 3 from before requisition within seven days of receipt of this order. We further direct that intimation of compliance of this order be given to the Registrar of this Court. The petitioner, however, is given the liberty of mentioning this matter before us in the event of the order not being complied with as directed above.
12. ABDULLAH JABIR, J .‑---I agree.