DEPUTY COMMISSIONER, SIRAJGONJ Vs. SULTANA ISLAM

JUDGEMENT

(1.) This appeal, by leave, by the appellant, is directed against the judgment and order dated 26.08.2008 passed by a Division Bench of the High Court Division in Writ Petition No.4684 of 2002 making the Rule absolute.

(2.) The facts leading to the filing of this appeal, in a nutshell, are:

(3.) The writ-petitioners case, in a nutshell, is that Md. Golam Azam Talukder, father of the writ-petitioner, was the owner of 10 annas share in the tank in question covering an area of .7925 acres of land appertaining to D.S. Khatian No.2, Dag No.3164 corresponding to S.A. Khatian No.15, Dag No.1111 covering an area of .47 acre of land. The said tank was originally recorded in the names of Zaminder Hemchandra Chowdhury and others along with other lands in C.S. Khatian No.2, who made pattan of 10(ten) annas shares in favour of the father of the writ-petitioner admitting him as their tenant and granted 16 (sixteen) dakhilas in his favour on receipt of rents from him. Pursuant to pattan, the S.A. Khatian was prepared in the name of said Md. Golam Azam Talukder. Subsequently, it was transferred to the writ-petitioner, vide registered deed of heba-bil-ewaz dated 16.10.1961. While the father of the writ-petitioner was in peaceful possession of the same, the Government vide gazette notification dated 30.03.1961 assumed the right of possession, management and control of the un-acquired shares of the said tank under section 2(1) of the Sairat Mahals (Management) Ordinance,1959 (in short, the Ordinance) to the extent of 14 annas, 1 ganda, 3 kora, 1 karat and 11 till out of .7975 acre of land. Since the father of the writ-petitioner did not receive any compensation from the government under sub-section (3) of section 2 of the said Ordinance he made several representations to the authority concerned to that effect, but to no avail. On 08.12.1986, he made another representation stating that the said tank had been filled up with earth and consequent thereto the Government was not rearing any fish for the last 14/15 years. Earth of the said tank was being sold in the month of Chaitra and that unlawful occupants had created shops on the bank of the said tank and hence, prayed to the Deputy Commissioner, Sirajgonj to relinquish its rights of possession, management and control of the said tank in his favour under section 4 of the Ordinance. The Deputy Commissioner, Sirajgonj, accordingly, sent the matter on 09.12.1986 to the Additional Deputy Commissioner (Revenue) for disposal. Pursuant thereto Miscellaneous Case No.148 of 1986 was registered. The father of the writ-petitioner was heard on 23.12.1986 and was directed to give written reply on 24.12.1986. The Government pleader was asked to give opinion in the matter. Later upon giving written opinion on 29.12.1986, the Government pleader opined to return the 10 annas share of the said tank to the father of the writ-petitioner and to pay him compensation as per law. The Revenue Deputy Collector, Sirajgonj, considering the said opinion took up Miscellaneous Case No. 148 of 1986 on 20.12.1986 and upon hearing the father of the writ-petitioner disposed of the application observing that the disputed tank might be returned to him on ascertaining the area by surveyor under section 4 of the Ordinance or compensation might be assessed for his share and be paid to him, but no steps were taken by the Government to the effect. Subsequently, the father of the writ-petitioner by filing an application on 22.06.1987 brought it to the notice of the Minister, vide memo dated 30.10.1990 who referred the said Miscellaneous Case to the Secretary, Ministry of Land for approval of the judgment and order dated 30.12.1986 and for publication in gazette notification under section 4 of the Ordinance but to no avail. At this stage, the father of the writ-petitioner died on 15.10.1991 and after his death, the writ-petitioner being the owner of the said tank by virtue of the said Hiba-bil-ewaz requested the authority and the Deputy Commissioner (Revenue), Sirajgonj, vide memo dated 27.02.1997 gave reminder to the Secretary, Ministry of Land to take steps to the effect, but the authority kept silent. The cause of action arose when writ-respondent No.1 through the Senior Assistant Secretary, Ministry of Land informed the writ-petitioner on 15.03.1998 that the said tank of S.A. Dag No.1111 had been recorded in khas khatian No.1 in Dag No.1516 and as such, the same could not be relinquished in favour of the writ-petitioner. The writ-petitioner made further request to the authority concerned to consider the matter, but in vain.