P L D 1957 Dacca 404 (PLP)

KHAN, J.‑

This is an application under Article 170 of the Constitution of the Islamic Republic of Pakistan for a writ of certiorari or a writ in the nature of certiorari or an appropriate writ of like nature or for a writ in the nature of mandamus for quashing the proceedings in Requisition Case No. 45 of 54‑55, 639 (5), dated the 18th February 1955, and for canceling the requisition order made in the said proceedings, dated the 18th February 1955, and for direction upon respondents Nos. 2, 3, 4 to forbear from giving effect to the said order of requisition and acquisition. The dispute in this case relates to holding No. 118, Bhagabanganj, within Narayanganj Municipality, covered by Khatian No. 73 and C. S. Plots Nos. 24‑P and 25 of Mauza Bhagabanganj, bearing total area of '088 acre as stated in the requisition order. The facts stated in the petition, briefly stated, are as follows: Petitioner No.1 who is now a citizen of Bharat and posted at Alipore as Special Judge and Additional District and Sessions Judge, 24‑Parganas, West Bengal, and the other petitioners are the owners of the holding comprising pacca structures for dwelling purposes, 2 tin godowns and one tin gadi ghar with pacca floor, etc., in Mourashi Kai rights by inheritance from late Ram Sundar Lodh. The Pakistan Jute Board requisitioned the aforesaid premises of the petitioners on the 2nd February 1951, by order No. A‑4 (121) 51‑JB and allotted the said premises to respondent No. 5, Molla Baling Agency, in 1952 at an annual rental of Rs. 1,80C per year payable to the petitioners. Since then respondent No. 5, Molla Baling Agency, has been in occupation of the said premises on payment of rent upto the 27th February 1955. The petitioners submitted an application to the Chairman, Jute Board, for revising the said rate of rent but it was disallowed. On 23rd December 1952, petitioner No.1 received a letter from Kala Mia, an officer of Molla Baling Agency, offering on behalf of the said Firm to purchase the premises in question at an abnormally low price but the petitioner did not accept the said offer. Being influenced by Mr. Moslem Ali Molla, the proprietor of the Molla Baling Agency, who is a member of the Consti tuent Assembly of Pakistan and an influential man of re sources, the Additional District Magistrate, Dacca, vacated the requisition order No. A‑4 (121) 51‑JB dated the 3rd February 1951, on 18th February 1955, and on the same date passed an order of requisition of the said premises under sec tion 3 read with section 9 of the East Bengal (Emergency) Re quisition of Property Act, 1948, in Requisition and Acquisition Case No. 45 of 54‑55, 639(5) and this was done for the Molla Baling Agency which was a private concern in jute brokerage. No notice of this requisition proceedings or order was served upon the petitioners. This requisition order contained a direc tion for delivery of possession on or before the 28th February 1955. Petitioner No. 1 came to know of the above order of requisition from a letter addressed to him by the Jute Board being No. R/4 (121) 55, dated the 22nd February 1955, which reached him on the 3rd March 1955. Petitioner No.1 there after filed representation on the 11th March 1955, for the revision of the assessment of the rent or, in the alternative, for derequisitioning the premises in question. Without get ting any reply till 13th August 1955, he submitted an application to the Hon'ble Minister, Revenue, for derequisitioning the said premises and for delivering possession of the same to the petitioners. On 30th August 1955, the Government passed an order to keep the requisition and acquisition proceedings in question in abeyance and directed the petitioners to make an amicable settlement with Molla Baling Agency. On 28th December 1955, petitioner No. 1 came to Dacca when the allottee ap proached him to buy the premises. On the 9th June 1956, petitioner No. 1 received a memo. being memo. No. 13491 (2), dated the 6th June 1956, by post at his Calcutta address from Mr. M. A. Hye, the Land Acquisition Collector intimating that the local inquiry relating to the requisition of the pre mises in question will be held at 3 p.m. on the 12th June 1956. As petitioner No. 1 was unable to attend the said local inquiry within such a short time left between the date of the receipt of the letter and the date of the local inquiry, he submitted a written objection, dated the 18th June 1956, to the local enquiry and acquisition proceedings in the said requisition case, on the 25th June 1956, but the Land Acquisition Col lector, without giving the petitioners an opportunity to attend the local inquiry held the local inquiry ex parte and assessed the valuation of the premises at an unreasonable and Unfair amount which prejudiced the petitioners. The petitioners allege that no notice of the requisition and acquisition proceedings was served on the petitioners. It is further alleged by the petitioners that the order of requisition and acquisition of the petitioners' premises in question was not made in the public interest or for a public purpose but it was made for a private purpose, that is, to help an individual and as such the officers making such order, of requisition and acquisition have clearly overstepped the lists of power con ferred by the Act, namely, Act XIII of 1948, and hence the said order is illegal, null and void and is inoperative. The benefit of the respondents in requisitioning the premises in question is also questioned. The allegations of the petitioners, in short, therefore, are that the order of requisition, dated 18th February 1955, is beyond the scope of section 3 read with section 9 of Act XIII of 1948, that the order of requisition is ultra vires of Article 5 Article 15 and Article 11 (b) of the Constitution of Islamic Republic of Pakistan and that this order is also violative of the fundamental rights of the peti tioners guaranteed by the Constitution by Article

12. In other words, it was a mala fide exercise of the jurisdiction vested in respondents Nos. 1 to 4 and, as such, the impugned order must be cancelled and the respondents must be directed to forbear from giving effect to it. Respondent No. 4, namely, the Additional Land Acquisition Collector, Dacca, has put in a counter‑affidavit. He has con tended inter alia, that the application is not maintainable inasmuch as the petitioners are not entitled to challenge the pre‑Constitution executive orders under Article 170 of the Constitution of the Islamic Republic of Pakistan; that the application is not also maintainable on account of inordinate delay and suppression of material facts and non‑production of documents etc.,; that the application is a mala fide one in asmuch as the object of the petitioners is to put pressure upon the respondents to enhance the valuation of the premises in question which they offered to sell; that the notices of the requisition and acquisition proceedings in question were served and, even if no notice was served upon any of the petitioners, they were all along aware of the proceedings and the order in question inasmuch as petitioner No.1, on behalf of all the petitioners, filed representation personally as well as through their authorised agent, namely, pleader Babu Basuda Kanta Das of Narayanganj; that the order of requisition in question was passed with the object of acquisitioning the premises in question for the Molla Bal ing Agency for the development of the Province as a matter of public policy and there was public interest involved in the matter of requisition and acquisition in question; that the respondents acted within the scope of Act XIII of 1948 and there was no mala fides on the part of the respondents in the matter of requisition and acquisition in question. It is therefore contended on behalf of the respondents that the requisition in question was in the public interest and every thing in connection with the requisition and acquisition in question was done legally and in a bona fide manner. The correctness of the legal contentions raised in the petition and the allegation about mala fides of the respondents acting under the Act have been questioned arid denied. At the very outset, we may state here that Mr. Choudhury, counsel for the petitioners, has frankly conceded before us that the requisition of property under section 3 read with section 9 of the East Bengal (Emergency Requisition of Property Act, 1948) East Bengal Act (XIII of 1948) is an exe cutive or an administrative Act and that the impugned order d of requisition and acquisition is purely ministerial act and, as such, the process of certiorari does not apply to such ministerial acts. The scope of a writ of certiorari has been described in Halsbury's Laws of England as follows:‑ "The writ of certiorari issues out of a superior Court and is directed to the Judge or other officer of inferior Court of record. It requires that the record of the proceedings in some cause or matter pending before such inferior Court shall be transmitted to the superior Court to be there dealt within order to ensure that the applicant for the writ may have the more sure and speedy justice. It may also be issued against a person or bodies of persons exercising judicial function or quasi‑judicial function who are required to make a decision of facts to be placed before him and to act judicially." Mr. Choudhury has also frankly conceded that the above‑mentioned Requisition of Property Act (Act XIII of 1948) is intra vires the powers of the Provincial Legislature. His contention, however, is that the petitioners are entitled to the issue of a writ of mandamus or an appropriate writ of like nature under Art. 170 of the Constitution of Islamic Republic of Pakistan for the enforcement of fundamental rights conferred on them by Articles 5, 15 (1) (2), 11 (b) and 12 of the said Constitution. Mr. Choudhury has contended that the requisition order made in this case on 18th February 1955, for acquisition of the premises in question is clearly beyond the scope of the East Bengal (Emergency) Requisition of Property Act (Act XIII of 1948), because the requisition has not been made for 'a public purpose' or 'in the public interest. Mr. Khandakar, advocate for the respondents, has con tended that under section 3 of the Act the factual exis tence or otherwise of a `public purpose' depends entirely on the subjective satisfaction of the Provincial Government, that is, the executive authority, and is not justiciable in a Court of law. In other words, according to him, the executive authority is to decide the question whether it is necessary or expedient to acquire a land and their decision on the question whether a particular requisition is for 'a public purpose' or 'in public interest' is final and is not justiciable in a Court of Law. In support of his contention, Mr. Khandakar has relied upon the cases of Sudhindra Nath Datta v. Sailendra Nath Mitra (87 C L J 140) and Mahmudan Nabi Chaudhury and others v. The District Magistrate and Collector of Chittagong (8 D L R 210). The case of Sudhindra Nath Datta v. Sailendra Nath Mitra was decided by a special Bench of the Calcutta High Court. That was a case in which an application for mandamus directing the respondent to show cause why a mandatory order should not be issued for cancellation of a certain order of requisition made by the respondent as an officer of Govern ment. There was an alternative prayer for a writ of prohibi tion, prohibiting the respondent from giving effect to a pre tended order of requisitioning. In that case, the petitioner Sudhindra Nath Datta was served with an order purported to have been made by Government under section 3 (1) of the West Bengal Premises Requisition and Control (Tem porary Provisions) Act, 1947 (Act V of 1947), in respect of his premises as it was required for housing a Minister. Their Lordships following the case of Wijeyesekara v. Festing (1949 A C 646) held: "that the opinion of the Provincial Government that housing a Minister is a public purpose would be final and could not be questioned in any Court." It was further held that the requisition under section 3 (1) of the West Bengal Premises Requisition and Control (Tem porary Provisions) Act, 1947, is clearly an executive or an administrative Act. In the case of Wijeyeskara v. Festing, referred to above, the Governor's decision under the Ceylon Ordinance to acquire land for a public purpose was questioned. The Ceylon Ordinance empowered the Governor to decide whether land in any locality was needed for a public purpose. The person whose land had been acquired contended that the land was not required for public purposes. Their Lordships of the Privy Council held that the Governor's decision on the question whether the land is needed or not for a public purpose is final and the district Court had no power to entertain objections against the Governer's decision. In other words, their Lordships were of opinion that the decision of the Governor that the purpose was a public purpose for which the premises was requisitioned is final and cannot be questioned in any Court. In the case of Mahamudadan Nabi Chaudhur y and others, referred to above, Division Bench of this Court comprising of his Lordship the Acting Chief Justice Amiruddin Ahmed and His Lordship Justice Rahman held that requisitioning of property under section 3 read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948, (Act XIII of 1948) is an executive or an administrative Act, and a decision by the authority concerned that the property was required for public purposes cannot be questioned in a Court of law, the Government being the sole judge as to the purposes. Their Lordships, it appears, followed the decision of the Calcutta High Court in the case of Sudhindra Nath Datta v. Sailendra Nath Mitra and the decision of the Supreme Court of India in the case of Province of Bombay v. Khushaldas Advani and others (A I R 1950 S C 222). The case of Mahamudan Nabi Chaudhury, referred to above, was decided by this Court in 1955. So, the view of this Court till 1955, that is, before the Constitution of the Islamic Republic of Pakistan came into force, was that the existence of a public purpose was not justiciable in a Court of law. Now the question to be seen is whether after the Consti tution of the Islamic Republic of Pakistan came into force, the existence of `a public purpose' in requisitioning the pro perty of a private person is justiciable in a Court of law. Article 15 (2) of the Constitution of the Islamic Republic of Pakistan runs as follows: "No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given." Article 31 (2) of the Constitution of India also contains a similar provision in almost similar terms regarding acquisition of property. It runs thus: "No property, movable or immovable including any interest in, or in any Company owning any commercial or industrial undertaking shall be taken possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given." Mr. Chaudhury has contended that since the passing of the Indian Constitution, the Courts in India have held that the situation, has changed. He has referred to us the case of West Bengal Settlement Kanungoe Co‑operative Credit Soefety, Ltd. v. Mrs. Bella Benerjee (55 C W N 778: AIR 1951 Cal. 111). His Lordship Harries, the Chief Justice, who, before the passing of the Indian Constitution, held in the case of Sudhindra Nath Datta v. Sailendra Nath Mitra that the Government was the sole arbiter about the existence of the public purpose, explained the change in the situation after the Constitution in the case of Bella Banerjee referred to above. At Page 799, he has observed as follows: "The Advocate‑General contended that the purposes for which compulsory acquisition of property was allowed by statute were not justiciable. But it seems to me clear from clause (2) of Article 31 and the three items in the three Lists of the Seventh Schedule to which I have referred that it is open to the Courts to scrutinize Acts empowering Government to acquire property compulsorily and to consider whether or not such Acts go beyond the power given to the various legislatures by the Constitution. No Act can be passed which permits compulsory acquisition of a citizen's property for purposes other than public and it appears to me that the Courts must see that no Act allows acquisition beyond that permitted by the Constitution". It was held by His Lordship that section 8 of the West Bengal Land Development and Planning Act, 1948, in so far as it made the declaration of the Government regarding public purpose as conclusive, was ultra vires because it purported to oust the jurisdiction of the Court. In the appeal against this decision to the Supreme Court of India State of West Bengal v. Mrs. Bela Banerjee (AIR 1954 S C 170) His Lord ship Sastri, the Chief Justice, observed as follows: "The Attorney‑General, appearing for the appellant, rightly conceded that inasmuch as Article 31 (2) made the existence of a public purpose a necessary condition of acquisition, the existence of such a purpose as a fact must be established objectively . . . . . . . . . " The decision of His Lordship Harries, the Chief Justice, has been followed by the Calcutta High Court in the cases of Abdul Hamid v. The State of West Bengal and others (89 C L J 268) and Radha Ram Das and another v. The State of West Bengal and others (91 C L J 347). In this connection the observations of His Lordship Chagla, the Chief Justice, in the case of State of Bombay v. Mohan Lal Kapur (A I R 1951 Bom. 404 at page 405) may be quoted here: "It is clear, and Mr. Seervai does not dispute it, that the very foundation of the power of the State to requisition premises is the existence of a purpose of the State or any other public purpose. It is also beyond dispute that the purpose of the State or any, other public purpose is not a purpose which in the opinion of the State satisfies the qualifications laid down in the statute. Whether a particu lar purpose is a purpose of the State or any other public purpose is a justiciable issue and the Court may investigate into the purpose for which the State has requisitioned a particular property. If the Court is satisfied that the purpose for which the requisition was made was not a purpose of the State or any other public purpose, then it would be open to the Court to say that the order was made without the condition precedent being satisfied." In the case of the State of Bihar v. Sir Kameswar Singh (A I R 1952 S C 252) the following propositions were laid down by the Court: (a) The existence of a public purpose is an essential condition for the acquisition of property under Article 31 (2). and the question is justiciable. When it is found that there was no public purpose to support a law of compulsory acquisition, the Court is bound to declare the law unconsti tutional. (b) Of course, when the legislature declares that there is a public purpose, the Courts should respect its words, and, in examining whether there is a public purpose behind a scheme for acquisition, the scheme should be examined as a whole instead of picking out particular items to say that they are not supported by any public purpose. (c) It is unnecessary to state in express terms in the statute itself the precise purpose for which property is being taken, provided from the whole tenor and intendment of the Act it could be gathered that the property was being acquired either for purposes of the State or for the purposes of the public and that the intention was to benefit the community at large. In the case of State of Bombay v. Nanji (1956 S. C. A. 308, 314), the following observation of Imam, J. of the Supreme Court of India may be quoted here as follows: "Prima facie the Government is the best judge as to whether public purpose is served by issuing a requisition order, but it is not the sole judge. The Courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether requisition order is or is not for a `public purpose," From the authorities cited above, we find that, since the passing of the Indian Constitution, the Indian Courts have held that the question whether a particular requisition is for a public purpose or in public interest is justice-able in a Court of law. A Division Bench of this Court comprising of Akbar and Asir, JJ., has very recently held in the case of Ajit Kumar Das v. The Province of East Pakistan (Not yet reported) that the question whether a particular requisition is for a public purpose is now justiciable in a Court of law. Their Lordships, reviewing the authorities referred to above and some other authorities, came to the conclusion that Article 15 (2) of the Constitution of Pakistan empowers the Court to scrutinize and to decide upon the facts whether the powers of Government have been exercised in good faith in the interest of public and whether the land was acquired for a public purpose. They have further held that, since the passing of our Constitution, the situations have changed and the decision in Mahammudan Nabi Chaudhury's case that the Government is the sole judge as to whether the purpose is or is not a public purpose is no longer applicable to the case of requisition under the East Bengal (Emergency) Requisition of Property Act, 1948. We respectfully agree with the decision of their Lordships in the case of Ajit Kumar Das v. The Province of East Pakistan. The facts of the case are almost similar to the facts of the case under our review. It has been urged by Mr. Khondkar that exception to clause 2 of Article 15 of the Constitution contained in clause 3 (a) of the same Article debars the Courts from going into the question whether the purpose of the acquisition was public or not. Clause 3 (a) of Article 15 says: "Nothing in this Article shall affect the validity of any existing law." We are unable to accept the contention of Mr. Khondkar because the question here is not regarding the validity of the Act (Act XIII of 1948) but the question is one of the validity of the order passed under the Act. As has been held by their Lordships Akbar and Asir, JJ., in the case of Ajit Kumar Das v. The Government of East Pakistan that Article 15 (2) of the Constitution of Pakistan empowers the Court to scrutinize and decide upon the facts whether the powers of Government have been exercised in, good faith in the interest of the public and whether the land was acquired for a public purpose, we hold that the question whether a particular requisition is for a public purpose is novel justiciable in a Court of law. Mr. Khondkar has raised another contention that, as the impugned order of requisition was passed on 18th February 1955, that is, before the Constitution of the Islamic Republic of Pakistan came into force, that order, being a pre‑Constitu tion executive order, cannot be challenged under Article 170 of the Constitution. It is true that the impugned order of requisition is dated 18th February 1955, that is long before the Constitution came into operation but then that order or, for the matter of that the proceedings in respect of the impugned requisition and acquisition order have not yet been finalized or have not yet terminated. It has been clearly affirmed by the petitioners that the order of requisition and acquisition has not been fully implemented as yet, as the Provincial Government has not yet published in the official Gazette, a notice to the effect that the Provincial Government has decided to acquire the requisitioned property and that, from the beginning of the date on which the notice is so published, the requisitioned property shall vest absolutely in the Government free from all encumbrances and the period of such requisition of such property shall end, as required by subsection 7 of section 5 of the East Bengal (Emergency) Requisition of Property Act amended upto May 1955. Respondent No. 4 or the Province of East Pakistan or any of the respondents has not challenged this assertion of the petitioners. Mr. Khondkar on behalf of the respondents could not say before us that the Provincial Government have published any notice in the official Gazette that the Provincial Government has decided to acquire the requisitioned property. We have the records of the requisition and acquisition pro ceedings before us and we also do not find that any such D publication has been made. So, the requisition and acquisition proceedings must be deemed to be still pending. Further the requisition and acquisition proceedings were kept in abeyance when petitioner No. 1 submitted an applica tion to the Hon'ble Minister, Revenue, for de‑requisitioning the premises in question and delivering the possession of the same to the petitioners. This order of abeyance was passed on 30th August 1955. As no amicable settlement was arrived at between the petitioners and the allottee, namely, Molla Baling Agency, regarding the valuation of the requisitioned premises sought to be acquired, the proceedings were revived on 6th June 1956. A notice was addressed to petitioner No. 1 at his Calcutta address to attend a local enquiry for ascertaining the valuation of the premises in question on 12th June 1956, and on 12th June 1955, the Land Acquisition Collector made the local inquiry ex parte and assessed the valuation of the premises in question to which again petitioner No. I filed objection. So the proceedings of the requisition and acquisi tion in question have been pending and the order of requisition was not given effect to or was not being implemented till after the passing of the Constitution of Islamic Republic of Pakistan and that it is not fully imple mented by complying with the provisions of subsection 7 of section 5 of the Act. In these circumstances, we are unable to accept the contention of Mr. Khondkar that the petitioners are not entitled to challenge the impugned order of requisition under Article 170 of the Constitution. As the proceedings in question have not been closed, the petitioners, in our opinion, are entitled to invoke the aid of Article 170 oil the Constitution if the impugned order of requisition for acquisition of their premises in question is violative of theirs fundamental rights conferred on them by Articles, 5, 15, 11 (b) and 12 of the Constitution. Mr. Choudhury has contended that the requisition of the premises in question for the purpose of acquisition was not made for any public purpose or in public interest but was solely for the benefit of a private person, namely, Moslem Ali Molla, who is the proprietor of a private firm known as Molla Baling Agency. So, the question to be seen is whether the requisition for acquisition of the premises in question was made for `a public purpose or `in public interest' or was made for a private individual. A copy of the order of requisition dated 18th February 1955 is annexure A to the petition of the petitioners. The order is to the following effect: "No. Requistion Case No. 45/54‑55 639 (5) dated 18th February 1955. Whereas in my opinion it is expedient and necessary in public interest, to requisition the properties described in the Schedule below for the administration and development of the Province of East Bengal and to make the following orders in connection therewith. Now, therefore, in exercise of the powers conferred by section 3 read with section 9 of the East Bengal (Emer gency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948) which powers have been delegated to me by the Provincial Government, I requisition the said property and do hereby make the following orders: (5) Subodhchandra Lodh, 66/C, Jatin Das Poad, Calcutta. (a) shall place the said property at the disposal and under the control of the Collector on and from 28th February 1955; (b) shall furnish to the said . . . . . such information in his/her/their possession relating to the said property as the said . . . . . . may by any order in writing specify. (c) shall not without my permission in any way dispose of the said property or any part thereof as long as this order remains in force. Req. Regn. and Acqn. of godown at holding No. 118, Bhagabanganj on behalf of Molla Baling Agency, C. S. Plots Nos 24‑P and 26 of Mouza Bhagabanganj.

2. No. 187 (Municipality), P.

8. Narayanganj. Total area=088 acre. (Sd.) (Illegible) (Sd.) (Illegible) (Sd.) (Iliegible) 16‑2‑1955 16‑2 Addl. District Addl, L. A. C. L. A. C. Magistrate, Dacca. Dacca. Dacca. It would appear from the order that the premises in ques tion was requisitioned, as in the opinion of the requisitioning authority it was expedient and necessary in public interest to requisition the properties in question for the administration and development of the Province of East Pakistan. From the schedule appended to the order, it appears that the requisition for acquisition of the premises in question was made on behalf of Molla Baling Agency. Mr. Choudhury has, therefore, contended that from the order itself it would appear that the impugned requisition of the premises in question was solely made for a private firm, namely, Molla Baling Agency, for the benefit of an individual, namely, its proprietor Moslem Ali Molla. Mr. Khondkar on the other hand has urged before us that the requisition in question was made for a public purpose, that is, for the administration and development of the Province of East Bengal and, for the matter of that, for the development of jute industry through the private firm known as Molla Baling Agency. Respondent No. 4, who is the Additional Land Acquisition Collector, Dacca, has stated in paragraph 19 of the affidavit in opposition as follows: "That in reply to the statements made in paragraphs 26 and 27, I say that the assertions made therein are not correct. That the development of the country by encourag ing and aiding the individual and for collective efforts of the citizens of Pakistan is a public policy the Government are pressing ever since and, as such, it cannot be said that in the requisition and acquisition proceedings in question there is no public interest involved and the same is beyond the scope and limits of the Act (Act XIII of 1948)." In paragraph 20, it has been stated as follows:‑ "That the private enterprise such as is being done by the Molla Baling Agency is necessary for the development of the Province and such enterprises are being encouraged by Government as a public policy. The petitioners objec tion as made in paragraph 31 of the petition is to set up a new case and is opposed to the grounds of objection as set‑forth in paragraph 22 of the petition." It will be well to set out here in short the allegations of the petitioners in paragraph 22 of the petition as contained in their petition of objection dated 18th June 1956, said to have been filed on the 25th June 1956. In that objection the petitioners challenged the ex parte report of the Additional Land Acquisition Collector regarding the assessment of the valuation of the property in question, regarding non‑inclusion of a plot in the requisition order in question and regarding their own estimate of the valuation of the premises in question which was not less than Rs. 30,

000. In paragraph 26, the petitioners asserted that the requisition proceedings have been started by the respondents in the interest of a private business firm engaged in jute brokerage of which Mr. Moslem Ali Molla, a prominent member of the Provincial Legislative Assembly of East Pakistan and of the Constituent Assembly of Pakistan is the proprietor and that the said Molla Baling Agency is a private firm which is stated to be dealing in jute. In paragraph 27, the petitioners have asserted that there is absolutely no public interest in the acquisitioning of the property by the Government for the benefit of a private person and that the said requisition and intended acquisition, there fore, are absolutely beyond the scope and the limits laid down by the East Pakistan (Emergency) Requisition of Property Act, 1948 (Act XIII of 1948). In paragraph 31, the petitioners asserted that the Molla Baling Agency is engaged in no commercial or industrial enterprise and it functions in the premises only as a broker in jute business, and, as such, the business is for the sole and exclusive gain of the Firm itself and the public is in no way interested in the said business nor the business is of a kind which may be of any utility to the public and, as such, the requisitioning of the premises concerned for the said Firm engaged in the brokerage of jute business is illegal and wholly unauthorised and not in accordance with law. As we have stated above, these assertions of the peti tioners have been denied by respondent No.

4. He has, however, clearly affirmed that the private enterprise, such as being done by the Molla Baling Agency, is necessary for the development of the Province and such enterprises are being encouraged by the Government as a public policy. Let us, therefore, examine whether this affirmation of respondent No.4. can be construed to mean that the re quisition was made for a public purpose or in public interest. Mr. Khondkar has built up his argument on the expression "Development of Commerce and Industries" occurring in section 3 of the Act. He has contended that the requisition was made for the private firm, namely, Molla Baling Agency, for development of jute industry which enures to the benefit of the public in general of East Pakistan and, as such, the requisition was made for a public purpose or in public interest. Section 3 of the Act reads as follows: "If in the opinion of the Provincial Government, it is expedient or necessary so to do for the administration and development of the new Province of East Bengal or fo r any other public interest connected therewith such as improvement of towns or ports, construction or betterment of roads, waterways or other communications, development of commerce or industries, maintenance of supplies and services essential to the life of the community and other similar purpose, the Provincial Government may by order in writing requisition any property and may make such further orders as appear to that Government to be necessary or expedient in connection with such requisition." As has been held by their Lordships Akbar and Asir, JJ., in the case of Ajitkumar Das v. Province of East Pakistan "there in not much distinction between the expression `public purpose' and `public interest'. In any event, the word `public' denotes that the requisition must be for the benefit of the people in general as distinguished from a particular individual. No doubt, this section empowers the Government to requisition land for developing commerce and industries which may be in the public interest: The Government must first decide which particular industry should be developed in this country and then they should acquire land for developing that particular industry. Furthermore, for carrying out that purpose, they can also employ a private agency. But, by no stretch of imagination, it can be said that this section empowers the Government to requisition the property of a subject for the benefit of a particular individual." In the case of Hamabal Framjee v. Secretary of State for India (A I R 1914 P C 21) `Public purpose' has been interpreted to mean a pur pose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of indivi duals, is directly and vitally concerned. Professor Willis in his Constitutional Law, 1st Edition, page 818, puts it thus ; "According to the newer viewpoint, there is a `public use' if the thing taken is useful to the public. This makes public use for eminent domain practically synonymous with public purpose or taxation and somewhat like social interest of police power. Under this rule it is not necessary for the benefit to be for the whole community, but it must be for a considerable number." We may also quote here a passage from Willoughby's Constitutional Law, Volume 2, page 795. "As between individuals, no necessity however great, no exigency however imminent, no improvement however valuable, no refusal however un-neighbourly, no obstinacy however unreasonable, no offer of compensation however extravagant, can compel or require any man to part with an inch of his estate." Reference may also be made in this connection to Volume 2 of Cooley's Constitutional Limitation at page 744, wherein it is said as follows:‑ "The purpose must be public and must have reference to the needs or convenience of the public and no reason of general public policy will be sufficient to validate other transfers when they concern existing vested rights." What is a `public use' has also been stated in Corpus Juris, Volume 20, Article 39 at page 552. "The meaning of the term is flexible and is not confined to what may constitute a public use at any given time, but in general it may be said to cover a use affecting the public generally, or any number thereof, as distinguished from particular individuals." From what has been stated above, it follows that what) furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose a public purpose. Now there is nothing in the affidavit in opposition filed by respondent No. 4 that the requisition was made for a public purpose, namely, for the development of the jute industry of East Pakistan for the benefit of the public in general or for the benefit of a considerable number of the public through the private enterprise of Molla Baling Agency. As has been pointed out above, no reason of general public policy will be sufficient to validate such an order of requisition unless such order is made for public purpose or in public interest, that is, for the benefit of the public. What is stated in paragraph 20 of the affidavit in opposition is that the Government encouraged such private enterprise of Molla Baling Agency as a matter of public policy as the enterprise, as is being done by the Molla Baling Agency is, necessary for the development of the Province. Now what the functions of the Molla Baling Agency are have not been stated by the respondent. The Government of East Pakistan who is respondent No.1 or the Molla Baling Agency who is respondent No. 5 has not appeared in this matter and stated that Molla Baling Agency is concerned with the development of jute Industry of East Pakistan and that it is for the benefit of the public. The mere verbal assertion by the learned advocate for respondent No. 4 to the effect that the impugned requisition was made for the development of jute industry through the private agency of Molla Baling Agency for the benefit of the public is not in our opinion sufficient to hold that the requisition was made for a public purpose or in public interest. The impugned order in question clearly shows that the requisition was made on behalf of Molla Baling Agency. No. purpose has been stated therein. Respondent No. 4 also has not stated any where in his affidavit in opposition that the impugned requisition order was made for a public purpose or in public interest, that is, for the development of the Jute Industry for the benefit of the public. We, therefore, hold that the existence of public purpose is the foundation of the power of the Provincial Government to requisition the premises under section 3 of Act XIII of 1948 and it is a condition precedent for the exercise of that power. The East Bengal (Emergency) Requisition Act (Act XII1 of 1948) empowers the Government to requisition property f for the purposes set out in section 3 of the Act. In other words, the Government is given the right to take the land of an individual in the interest of the community as a whole or for the benefit of a considerable number. The Act, in our opinion, does not empower the Government to give the property of one private individual to another private individual. From the authorities discussed above, one thing is clear. however, that where no benefit to the public is involved, the State cannot acquire private property (even on payment of compensation) for the private interests of some individual or individuals. There is no power given to any Sovereign to acquire property in order to give it to private persons. The impugned order of requisition made by respondents Nos. 1 to 4 for the acquisition of the premises in question of the petitioners for the Molla Baling Agency which is a private concern run by a private individual, namely, Moslem Ali Molla, and which has not been shown to be run for the benefit of the public is, therefore, beyond the scope of section 3 of I Act, XIII of 1948) (The East Bengal Requisition of Property Act, 1948). That being so, the act of respondents Nos. 1 to 4 in making the order of requisition is a clear violation of the provisions of Article 15 (2) of the Constitution of the Islamic Republic of Pakistan. In view of this finding, it is not necessary for us to refer to Articles 5, 11 (b) and 12 of the Constitution. Mr. Choudhury has contended that the notice of the requisition proceeding was not served on the petitioners and, as such, it shows that the conduct of the respondents was mala‑fide from the very beginning for requisitioning and ac quisitioning the premises of the petitioners It is urged that notice to commence requisition or acquisition proceedings ought to have, been served upon the petitioners. This contention of Mr. Choudhury cannot be acceded to. There is no provision in the Act itself that a prior notice is to be served upon the owners of the premises before the requisition order is made but there is clear provision embodied in section 4, subsection 1 of the Act that the order of requisition must be served upon the petitioners. Subsec tion 1 of section 4 lays down as follows: "When an order of requisition has been made under section 3, it shall be served on the owner of the property personally by delivering or tendering it to him or, where the owner cannot be found, it shall be served by leaving an authentic copy of the order with some adult male member of the family of such owner, or and, if no such adult male member can be found, the notice may be served by axing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on busi ness or personally worked for gain and also by affixing another such copy to some conspicuous part of the requisi tioned property. Now in this case petitioner No. 1 has admitted that he was informed of the order of requisition by the Jute Board's letter No. R/4 (21) 55, dated the 22nd February 1955, which reached him on 3rd March 1955, whereas we find that the order of requisition contained a direction for delivering possession on 28th February 1955. In paragraph 24 of the petition, it has been admitted that the order was served on petitioner No. 5 Subodhchandra Lodh only. There is nothing on record to show that the order of requisition was served on petitioner No. 1 before the given date of delivery of possession in the order or it was served on petitioners Nos. 2, 3, 4 and 6 as required by subsection 1 of section 4 of the Act. But it would appear from the petitions that petitioner No. 1 was apprised of the requisition order by the Jute Board. He moved the authorities for de‑requisitioning the premises in question or for revision of the assessment of rent thereby. Be that as it may, whether a notice was served or not, the impugned order of requisition must be recalled as it was made beyond the scope of section 3 of the East Bengal (Emer gency) Requisition of Property Act (Act XIII of 1948), and as it was in violation of the provisions of Article 15 (2) of the Constitution. It has been contended by Mr. Khondkar that the peti tioners' application is a mala fide one as their object is to put pressure on the respondents to acquire at an enhanced price. On the other hand, Mr. Choudhury has submitted before us that this requisition proceeding was initiated at the instance of Mr. Moslem Ali Molla who is an influential member of the Provincial Assembly and Constituent Assembly of Pakistan in order to put pressure upon the petitioners to acquire the property at a low price. We have carefully considered the facts stated in the petition and affidavit in opposition. We have gone through the applications submitted by the petitioners from time to time to the authorities concerned in respect of this requisition and acquisition matter in question, and we are inclined to take the view that the requisition proceeding was perhaps initiated at the instance of Moslem Ali Molla for his own benefit. It will be evident from the letter, annexure C, written by an officers of this Firm to purchase the property so far back as in 1952, when they were in possession of the premises in question on requisition by the Jute Bard on payment of an annual rental of Rs. 1,

800. The remarks of Mr. M. R. Malik, Additional District Magistrate, dated 2nd August 1956, while assessing the valuation of the premises in question will support our view that the Molla Baling Agency was intent on having the premises acquired at an unreasonable price without taking recourse to amicable negotiation to purchase the same as directed by the Land Acquisition Collector. The remarks of the Additional District Magistrate may be quoted as follows: "As desired by this office, the party quoted some sale figure at flag 'A' in justification of favour-able assessment. These figures were verified first by the Additional Land Acquisition Collector who himself went to the Sub- Registrar's office for verification by himself. His report at flag 'B' reveals wrong representation by the party. Such conduct on the part of a party like Molla Baling Agency is really unfortunate. Quotation of figures of such re presentation in order to get benefit in the matter of assessment definitely goes against any further consideration. The previous valuation rate as Rs. 1,50,000 per acre should therefore stand. In order that such misrepresentation is discouraged, party submitting quotation of figures in order to get relief in assessment should first be asked to execute affidavit. This will save energy of the office staff thus wasted for nothing and serve as a warning against such misrepresen tation." Thus it is clear that the Firm Molla Baling Agency in order to reduce the value of the requisitioned premises made false representation to the Land Acquisition Collector. This fact shows that from the inception of the proceeding there was mala fide on the part of the respondents and that is why we do not find compliance of the provisions of section 4(1) of the Act. The conduct of the petitioners cannot be said to be mala fide inasmuch as it appears that peti tioner No. 1 moved the authorities , concerned to hear what he had got to say regarding the requisition proceed ings and he even prayed for assessment of fair and reasonable price of the premises in question if the Government was at all in need of acquiring the premises in question for any public purpose. From the representations submitted to the authorities appended to the petition, it appears quite clear that petitioner No.1 on behalf of all the petitioners has been questioning the legality of the order requisition and acquisition and he demanded justice from them. That being so, we are not prepared to hold that the present application is a mala fide one. Lastly it has been contended on behalf of the respondents that a writ of mandamus should not issue in this case as there has been inordinate delay in filing this application. We are unable to accept this contention; It would appear from the facts stated in the petition that petitioner No. 1 on behalf of the petitioners filed an objection against the local enquiry in respect of the question of assessment of valuation of the property. The ex parte assessment was made on 2nd August 1956 and the petitioners addressed a letter to respondents Nos. 1 to 4 in August 1956. requesting for cancelling the impugned order by them on or before 21st August 1956. Respondents Nos. 1 to 4 did not reply to this letter and, as such, the respondents have denied justice to them. This application was filed on 30th August 1956. We, therefore, do not think that there has been any delay in invoking the extraordinary jurisdiction of this Court to issue a writ of mandamus. The existence of the legal rights of the petitioners in the premises in question has not been challenged by the respon dents. So, the State is under a legal obligation to requisition the premises only for the purposes laid down in section 3 of K the Act. As they have failed to carry out their obligation and duty enjoined by the Act, we are of opinion that the Court can issue a mandate recalling the impugned order. For the reasons stated above, we hold that there was no valid order of requisition of the property in question. We, accordingly, direct that the said requisition order dated 18th February 1955 be cancelled and we further direct respondents Nos. 1 to 4 to forbear from giving effect to the order of requisition dated 18th February 1955. The Rule is accordingly made absolute. The petitioners will be entitled to their costs which are assessed at 15 Gold Mohars. Mr. Khondkar asks leave to appeal to the Supreme Court under Article 157 (l) of the Constitution. Leave prayed for is granted as the case involves substantial questions of law as to the interpretation of the Constitution. ISPAHANI, J.‑

I agree. A. H. Rule made absolute.