ABDUL AZAHAR CHOWDHURY Vs. COLLECTOR OF BACKERGUNJ

JUDGEMENT

(1.) This Rule is directed against an order of the District Judge of Backergunj refusing to restore the management of a certain estate named Mehal Khontakhali to the co-owners under the provisions of Section 99 of the Bengal Tenancy Act. There was an application made by one or some of the co-owners with regard to this estate in the year 1903 under the provisions of Section 93 of the Bengal Tenancy Act in consequence of which the learned District Judge appointed a common manager in respect thereof, and afterwards it was placed under the management of the Court of Wards. The present application was made on behalf of the co- owners and the two material facts upon which this application was based were, firstly, that the co-owners had settled amongst them-selves the dispute that had been in existence from before; and, secondly, that the costs of the management of the estate had become very heavy and that the co-owners were, as a matter of fact, satisfactorily managing another estate, a much bigger estate, in respect of which a similar order had been previously passed. The learned District Judge, after taking into consideration the letter of the Collector and the report of the manager of the Court of Wards in respect of this matter, and after hearing the pleader for the petitioners and the Local Government pleader, refused to restore the management of the estate to the co-owners. The grounds upon which the learned District Judge has made the order are mainly that from the report of the manager, it would appear that the tenants were afraid that they would be oppressed if the estate was released to the proprietors and that at least the release would probably lead to endless friction and to the danger of a breach of the peace. The report of the manager or the letter of the Collector does not challenge the truth of the statement that the dispute has been settled, but opposes the restoration of the estate mainly on the ground that the tenants would be oppressed and harassed by enhancement of rent and eviction, and that the interests of the tenants would suffer and also that in consequence thereof there would be apprehension of a breach of the peace. Now the condition requisite for making an order under Section 93 of the Bengal Tenancy Act is that there should be a dispute existing between the co-owners of an estate or a tenure as to the management thereof, and that in consequence of such dispute there ensues, or is likely to ensue, either inconvenience to the public or injury to private rights. When the estate is to be released under the provisions of Section 99 the Judge is to satisfy himself that the management will be conducted by the co-owners without inconvenience to the public or injury to private rights. It is clear upon consideration of the terms of Section 98 that the most essential condition requisite to justify a Judge in placing an estate under a common manager or the Court of Wards is the existence of a dispute between co-owners. Assuming for a moment that injury to private rights includes invasion of the rights of the tenants and not merely injury to the private rights of the co-owners, and assuming also that the injury apprehended by the tenants in the present case comes within that category, and granting further that the apprehension of a breach of the peace is well founded, they would not be sufficient for the purposes of Section 93, if there is no dispute between co-owners to which such injury or apprehension is attributable. Its follows, therefore, that when the question arises for restoration of the estate under Section 99 of the Act, and it is alleged that the dispute is no longer existing, what the Judge has to consider is whether it has been really or effectively settled in such a way that the management will be conducted by the co-owners without inconvenience to the public or injury to private rights. In the present case there has been no consideration of this matter, and the order passed by the learned Judge is based upon matters wholly extraneous and irrelevant.

(2.) On a consideration of the whole of the circumstances, I am of opinion that there is no justification for an opposition to restore the management of the estate to the co-owners.

(3.) For the above reasons, I think that the order passed by the learned District Judge is without jurisdiction and that it should be set aside. The Rule is, accordingly, made absolute and the order of the District Judge is set aside, and it is ordered that the estate be restored to the management of the co-owners under the provisions of Section 99 of the Bengal Tenancy Act.