IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 50 of 1997

In the matter of:

Sree Prashanta Kumar Bhattacharya and others

Plaintiff-appellant-petitioners

-Versus-

Sree Sree Radha Muhan Jew Deity and others

Defendant-respondent-opposite parties

None

...For the petitioners

Mr. Tabarak Hossain, Senior Advocate with Ms. Urmee Rahman, Advocate

... For the opposite party No. 1

Heard on: 29.10.2024 and 12.11.2024 Judgment on: 21.11.2024

The present petitioners as plaintiff filed Title Suit No. 30 of 1992  in  the  Court  of  Senior  Assistant  Judge,  Golapganj,  Sylhet impleading (a) Additional Deputy Commissioner (Revenue), Sylhet, (b)  the  then  Thana  Nirbahi  Officer,  Golapganj,  Sylhet,  and  (c) Assistant  Commissioner  (Land),  Golapganj,  Sylhet  as  principal defendants.  Sree  Madhusudhan  Kabyatirta,  Principal,  Sreehatta Sangskrit  College,  Sylhet  was  the  pro-forma  defendant.  Present

opposite party No. 1 Sree Sree Radha Muhan Jew Deity was added as defendant No. 5, who filed an application before the Court below under Order VII rule 11 of the Code of Civil Procedure (CPC) for rejection of the plaint on the grounds stated therein. The application was opposed by the plaintiffs by filing written objection. The learned Assistant Judge, vide judgment and order dated 09.02.1993 allowed the application and rejected the plaint. The plaintiffs preferred Title Appeal  No.  70  of  1993.  The  learned  District  Judge,  Sylhet,  vide judgment  and  order  dated  30.04.1995  dismissed  the  appeal. Thereafter,  the  plaintiffs  preferred  the  instant  civil  revision  and obtained Rule.

None appeared for the plaintiff-petitioners when the Rule was taken up for hearing. The added defendant No. 5 (opposite party No. 1 herein) has entered appearance in the Rule.

The plaintiffs filed the title suit praying for a declaration that they are entitled to perform sheba puja to the deity established at Sree Sree  Radha  Muhan  Jew  Akhra  situated  in  the  scheduled  land measuring 2.28 acres. The plaintiffs further prayed for a declaration that the notice issued under memo No. SA/3316(6) dated 03.10.1992 by the defendant No. 1 Additional Deputy Commissioner (Revenue), Sylhet is illegal, void, inoperative and not binding upon the plaintiffs. The  plaintiffs  also  prayed  for  a  permanent  injunction  to  restrain defendants from evicting them from the suit land and to prevent them from interfering with the performance of the puja.

It  is stated in the plaint  that the plaintiffs’  predecessor late pujari Profulla Kumar Bhattacharya was appointed as shebait of the Akhra on 30.08.1957 and since then he had performed the puja in the Akhra till his death in 1990. After his death, the plaintiffs being the legal heirs of late shebait have been performing the puja. It is further stated that the land in which the Akhra situates is also used as place of residence of the plaintiffs. The pro-forma defendant No. 4 Principal, Sreehatta Sangskrit College, Sylhet granted written permission to the plaintiff No. 1 to perform the puja in the said Akhra on 25.10.1990. It is further stated that the defendant Nos. 1-3 appointed a managing committee to run the Akhra and on 03.10.1992 the defendant No. 1 issued the eviction notice directing the plaintiffs to vacate the land, failing which they would be evicted.

The  trial  Court  rejected  the  plaint  on  the  ground  that  the eviction notice dated 03.10.1992 was issued under Seciton 5(1) of the Government and Local Authority Lands and Buildings (Recovery of Possession),  Ordinance,  1970  and  no  illegality  was  committed  in issuance of the said notice. The appellate Court below affirmed the judgment and order of the learned Assistant Judge holding that the plaintiffs have no legal character to file the suit in that they claimed to perform  the  puja  as  legal  heirs  of  the  late  shebait,  but  right  of shebaitship relating to any deity cannot be acquired by inheritance and mere living in the lands belonging to deity does give rise to any legal character.

I have gone through the materials on record and considered the submissions of the learned  Senior Advocate Mr.  Tabarak  Hossain appearing for the opposite party No. 1.

It appears from the eviction notice dated 03.10.1992, which is submitted by the plaintiffs by way of firisty in the Court below and lying  with the records, that by the said  notice the plaintiffs were directed to vacate the property within 07 days, failing which they would be evicted in accordance with law on the ground that they are unauthorised occupants of the land in which the Akhra situates. It is further stated in the notice that the T.N.O., Golapganj (defendant No. 2) had conducted an enquiry and submitted a report dated 08.09.1992 in Eviction Case No. 2/92 stating that the plaintiffs are unauthorised occupants of the property. The T.N.O. made recommendation to evict the plaintiffs.

The eviction notice does not refer to Section 5 of the Ordinance, 1970. However, the language used in the notice clearly denotes that the same was issued under Section 5. The learned Assistant Judge rightly held that the notice was issued in exercise of power vested upon the Deputy Commissioner by Section 5 of the Ordinance, 1970. Section 5 is quoted below:

“5. (1) If the Deputy Commissioner, on his own motion or on the complaint of or upon information received from anybody or a Local Authority, is satisfied after making such inquiry as he thinks fit, that a person is an unauthorised occupant, he may issue, in the prescribed manner, a notice directing such person to vacate the land, building or part thereof in his occupation within a period of thirty days from the date of service of the notice.

Provided that the Deputy Commissioner may, where he is satisfied that thirty days' notice will not be in public interest, reduce the period of such notice to not less than seven days.

(2) If the person, against whom an order under sub-section

(1) has been made, refuses or fails to vacate the land, building or part thereof in his occupation within the time fixed, then, notwithstanding anything contained in any other law for the time  being  in  force,  it  shall  be  lawful  for  the  Deputy Commissioner to enter upon such land, building or part thereof and  recover  khas  possession  of  the  same  by  evicting  such person  and  by  demolishing  and  removing  structures,  if any, erected or built by that person.”

Mr.  Tabarak  Hossain  refers  to  Sections  10  and  11  of  the Ordinance,  1970  and  submits  that  the  notice  dated  03.10.1992  is appealable to the Divisional Commissioner under Section 10 and that under  Section  11  there  is  a  clear  bar  on  civil  Court  to  grant  a temporary or ad-interim injunction. Sections 10 and 11 are quoted below:

“10. Any person aggrieved by an order made under section 3 or section 4 or section 5 or section 9 may prefer an appeal to the Commissioner of the Division within thirty days of the service of notice and the decision of the Commissioner on such an appeal shall be final.

11.  No  civil  Court  shall  pass  an  order  in  any  suit  or proceeding  granting  a  temporary  or  ad  interim  injunction restraining the Deputy Commissioner from taking possession of any land, building or part thereof under this Ordinance nor shall call in question any assessment of compensation made under this Ordinance.”

In view of the provisions contained in Section 10 that the order made under  Section  5  to vacate the property is  appealable to the Divisional  Commissioner,  the  instant  suit  is  barred  by  law.  It  is categorically stated in the plaint that a new managing committee has been appointed for the Akhra but no relief has been sought against the said newly appointed managing committee. Therefore, the suit is not maintainable in its present form and manner. Therefore, the Rule fails.

In the result, the Rule is discharged. Send down the L.C.R.

Arif, ABO