P L D 1960 Supreme Court (Pak (PLP)

Ahmadur Rahman Khan, Advocate Supreme Court, instructed by A. W. Mia, Attorney for Respondent, Date of hearing: 1st June 1960. S. A. RAYMAN, J.-This appeal by special leave is directed against the judgment of a learned single Judge of the High Court of Dacca. The relevant facts giving rise to the litigation may be briefly summarised. A building, belonging- to the respondents, was requisitioned by the Province of East Pakistan, the appellant, under the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948, as subsequently amended (referred to in the sequel as the Act). Possession was taken over by the Deputy Rahman, J Commissioner, Sylhet, after the requisition. The respondents and members of their families had in consequence to move to another building. The first occupants of the building under the Govern ment were a body of Ansars who were alleged to have caused damage to the property during their two months' stay in it. The respondents therefore, brought a suit, claiming compensation for the expenses, incurred by them in respect of transport and removal of their effects from the building in question to another premises, and for the damage, alleged to have been caused by the Ansars to the building. It is conceded that the building is now occupied as a Court House and has not yet been derequisitioned. The trial Court took the view that no suit lay in a Civil Court, in respect of the compensation claimed on account of the transport charges and money spent for moving the personal effects of the plaintiffs to another premises. A decree for Rs. 512 with costs was, however, awarded to the plaintiffs-respondents in respect of the damage said to have been caused by the Ansars to the building. The decision of the trial Judge was upheld in first appeal by the learned District Judge, with the modification that the order, awarding costs to the plaintiffs, was set aside. The Province of East Pakistan then took an appeal to the High Court. The learned Judge expressed regret that no cross-objections had been filed against the refusal of the Courts below to award compen sation in respect of the expenditure incurred by the plaintiffs in moving to another house, so that he could not interfere with the order of dismissal of that part of the claim. He further held that the damage to the building, complained of by the respondents, could not be described as an act done in pursuance of the Act, and, therefore, the suit could not be held barred under section 14 of the Act. The appeal was, therefore, dismissed with costs and leave to appeal to a Letters Patent Bench was also refused. Leave to appeal was granted by this Court in this case in the following terms :- "The question raised in this petition for special leave to appeal is whether a suit for damages by an owner whose premises have been requisitioned under the East Bengali (Emergency) Requisition of Property Act, 1948, lies, before the premises are derequisitioned, and while the Government is in possession. The question is one of substantial importance and leave to appeal is granted." The attention of the learned single Judge in the High Court was drawn to subsection (2) of section 4 of the Act, which provides that where the order of the requisition has been served on the person concerned under subsection (1) of that section, in respect of a property, the Provincial Government may take possession of the property forthwith and may use or deal with the property in such manner as may appear to it to be expedient, the learned Judge thought that tins aici not authorise the ciovern went to cause damage to the property requisitioned. However, If the object for which the Government requisitioned the property could be better served by making alterations in the building, it would be within the competence of the Government to effect those alterations after taking possession of the property. This position admits of no doubt in view of the provisions of subsection (2) of section 14 of the Act. The only obligation resting on the Government in such a case would be that on the property being released from requisition, it would be "restored" to the persons from whom the property was requisitioned or to their successors in-interest, or other persons entitled thereto. The word "restore", occurring in section 8 of the Act, is significant and the clear implication is that the property would be given back in the same condition as it was in, at the time of the requistioning order being passed, subject, of course, to the effect of normal wear and tear by use. If any damage had been caused to the building, presumably the Government would set it right before handing back the property to the owner, and, on its failure to do so, a cause of action may then arise in favour of the owner for claiming compensation for the damage. Any claim, on this account, in respect of some visible damage to the building while the rroperty was still under requisition, would be entirely premature. It would still lie in the hands of the Government to repair the damage before the property is released from requisition. Any other view, would subject Government to undue harassment at the hands of some litigious owners. It is inconceivable that, at any time during the period of requisition, even if a slight damage is caused to the building, the owner could sue Government for that damage, thus leading to a multiplicity of proceedings against the Govern ment during the currency of the requisition. We are told that an inventory of the property was prepared when it was first taken over, and it was signed by or on behalf of the plaintiffs. This should be a sufficient safeguard to them against the property being delivered back in a damaged condition. It is pertinent to note that even the compensation, claimable in respect of the requisition, is to be determined according to the procedure laid down in section 7 of the Act. This section makes provision for a private agreement on the subject of compensation and, failing that, a decision of an arbitrator would be decisive of the matter, subject to a further remedy in a Civil Court if the owner feels dissatisfied with the compensation awarded. That stage, however, could only arise after the arbitration proceedings had duly ended. If anything could, therefore, be justifiably claimed for expenses incurred by the plaintiffs in shifting from the premises in question to another house, it could conceivably be the subject of proceedings under section 7 and could not be taken to a Civil Court direct. The learned single Judge was, therefore,, not right in expressing his opinion that such a claim could be entertained by the Civil Court. This scheme of compensation would also seem to militate against a supposed right of the owner to sue Government in the Civil Court for compensa. C tion for alleged damage while the building remains under requisi- Subsection (2) of section 14 of the Act bars all suits or other, legal proceedings against the Government for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of the Act or any order or rule made thereunder. This provision would furnish a legal foundation for any alterations that the Government might think fit to, make in a building to adapt it to the purpose for which it was requisitioned. However, it could not obviously cover a case of wanton or wilful damage. But the fact whether damage has been caused entailing liability to pay compensation could only be determined at the end of the requisition period and not during its currency. Before that point of time, a locus poenitentiae is open to the requisitioning authority who might redress their fault by proper repairs. This aspect of the matter appears to have received no consideration by the learned single Judge in the High Court. Incidentally, we note that the evidence, led by the plaintiffs in this case, was of the most meagre kind. Although a schedule was attached with the plaint, setting out the details of the alleged damage, yet no evidence was adduced at the trial to establish those details by any credible evidence. The allegation of damage had been denied in the written statement. The first plaintiff, Abdul Aziz Chowdhury, as his own witness, merely deposed that damage to the extent of Rs. 512 had been caused to the building, without any specification of the damage. Even on the merits, therefore, the claim had not much to commend itself. As has been observed, however, the action itself was misconceived, as it was clearly premature. We, therefore, allow the appeal, set aside the orders of the Courts below and dismiss the plaintiffs-respondents' suit with costs throughout. Appeal allowed.