P L D 1960 Dacca 776 (PLP)

RAHMAN, J.‑This Rule for a writ of mandamus or a writ in the nature of mandamus for the cancellation and/or recall of an order of requisition made on the 24th of November, 1959, was issued at the instance of the petitioner herein on the 7th of December, 1959, calling upon the Province of East Pakistan and the District Magistrate, Dacca, to show cause. The petitioner, who was originally an inhabitant of Azamgarh in the Province of U P. in India, claims that he is a displaced person, who came to Pakistan in 1947 leaving his ancestral properties, including residential houses, for good in India. The said properties have since been taken over as Evacuee Property. He claims that with great difficulty and hard labour after stinting himself and his family, consisting of some ten members, of most of the necessities of life, he had saved a little amount of money and with this money purchased a piece of land, being part of C. S. plots Nos. 161, 201, 203 and 204 of Mouza Kakrail, J. L. No. 282 (Dakhin Sarai) P. S. Lalbagh, measuring '74 decimals. The petitioner further claims that before the purchase of the said land he had made enquiries of the Communications, Building and Irrigation Department of the Government to find out as to whether there was any scheme in respect of the said land but he was informed by the Government by its letter, Memo. No. 763 T. P. dated the 16th of March, 1954, that the land was not covered by any scheme. It was only thereafter that he acquired the said land for the purposes of construction of a residence for himself and the members of his household, particularly as the landlord of the rented premises, in which he is now residing, was threatening to evict him therefrom and, in fact, had instituted a suit for the said purpose. Whilst he was making arrangements for commencing the construction on the said land, it is stated, that he came to know that the lands were required or the purposes of building the Offices of the Geological Survey of Pakistan. On getting the information, he made representations to the Martial Law Administrator, `C' Zone, East Pakistan and other authorities but a notice dated 8th June, 1959, requisitioning the land for the above‑mentioned purposes, was issued and the petitioner was thereby directed to deliver possession of the land by the 15th June, 1959. He again made representations against the said order of requisition. The authorities concerned caused enquiries to be made through the Assistant Land Acquisition Officer and as a result of the said enquiries, the Government were pleased to pass an order for the cancellation of the aforesaid requisition order on the 2nd of September, 1959 with effect from the 51h September 1959. This order was issued by the Additional District Magistrate of Dacca in exercise of the powers conferred upon him by sub section (1) of section 8 of the East Bengal (Emergency) Requisi tion of Property Act, 1948 (East Bengal Act XIII of 1948). Unfortunately, another notice dated the 24th of November, 1959, has again been issued requisitioning portions of C. S. plots Nos. 161 and 203 to the extent of ‑24 and '25 acres of land respectively. This is the order that the petitioner now challenges and contends that it has been issued without due application of the mind of the requisitioning authority and is an illegal and invalid order. He also suspects that either the landlord of the rented premises in which he is now staying or the owners of certain other plots which were suggested as alternative plots for the purposes of the said Geological Survey of Pakistan, are behind this fresh order of requisition. The petitioner further contends that had the requisitioning authority duly applied its mind to the said requisi tion, it could have found out that only '63 acres were, according to the report of the Assistant Land Acquisition Officer, buildable out of these plots. The petitioner also challenges this order on the ground that the first order of requisition having been cancelled and/or with drawn, there was no jurisdiction left in the requisitioning authority to issue a second order of requisition in, respect of the same lard, particularly, as the first order of derequisition was issued by the Government whose delegate the Additional District Magistrate was for the purposes of requisitioning under the said Act. There is also a suggestion that the Requisition Act having expired on the 30th of November, 1951, and not re‑enacted until the 3rd of December, 1951, there was an interregnum for a few days and hence the delegation of the authority to the District Magistrate also lapsed and a fresh delegation had to be issued lawfully vesting the District Magistrate with the powers of requisition‑after the re‑enactment of the Act. This application is opposed by the Government. They deny that there was any case of mala fides in requisitioning the above premises or that the requisitioning was not done after due con sideration of the relevant facts and circumstances of the case and bona fide application of the mind of the requisitioning authorities. It is not disputed that the requisitioning is, in every sense of the term, for a public purpose. It appears that when this matter came up for hearing before our learned brothers Akbar and Asir, JJ., the learned counsel appearing for the State informed the Bench that the peti tioner's prayer for an allotment of an alternative plot of land in the Dhanmandai area was likely to receive favourable consideration, hence, the matter was adjourned for sometime. We are now informed that the Government have, infact, allotted a plot of land in the Dhanmandai area to the petitioner ; but the petitioner is not willing to accept the same as the land, according to him, is a low land and not immediately buildable. The learned counsel appearing for the State has to‑day also informed us that his instructions are that the Government will fill up the land as is done in the case of other low lands allotted in that area but this will be done after the rains in due course and no definite date can be given for this purpose. The learned counsel appearing for the petitioner is not, however, prepared to accept such an indefinite assurance and has submitted before us that unless a definite date can be given by the Government, he 'is not prepared to accept the offer. In the circumstances, it is unnecessary for us to delay the matter any further for arriving at a settlement as the petitioner is not prepared to accept the alternative plot of land offered. The requisitioning on the face of it is for the purposes of construction of office accommodation for the Geological Survey of Pakistan and this, according to the Government, is a public purpose, for the Geological Survey of Pakistan works for the development of the country. Hence the requisition has been made in the public interest and it is said, after a very careful and detailed examination of all the relevant facts and circumstances as also the feasibility of acquiring alternative sites for the said office premises. There can be no dispute that the object for which the requisition is sought to be made, is a public purpose nor does the learned counsel appearing for the petitioner dispute this fact but be seems to be of the view that since the first order of derequisition was made, on the Government's own Affidavit, in pursuance of an order of the Government, being Government Order No. 13207‑Requn. dated the 22nd of August, 1959, there was no authority left in the delegate of the Government to issue a fresh order of requisition in respect of the same premises. On a reference, however, to the order, which is annexed to the petition and marked as Annexure A, it will appear that although the Government might have instructed the requisitioning authority to issue such an order of derequisition the actual formal order of derequisition, in the present case, was issued by and under the signature of the Additional District Magistrate of Dacca. Since we are not concerned here as to whether the derequisi tion was, in the circumstances, valid or not valid, for the petitioner accepts the derequisition order as a valid order, it cannot but be held that the order or derequisition was also by the delegate of the Government, namely, the learned Additional District Magistrate, and therefore, the contention does not appear to be based upon any valid ground. The record does not show that the delegator itself bad passed the order of derequisition. Even if that had been so, we are not aware of any principle of law which would prevent the delegatee from continuing to exercise the power of delegation until the delegated power was withdrawn from the delegatee. The ad hoc exercise of the power by the delegator himself for a particular case does not necessarily terminate the authority of the delegatee from exercising the power. There cannot, in our mind, be any doubt that the powers can be exercised even in a case where a delegator himself has cancelled a previous order passed by the delegatee unless the latter is, by any order of the delegator, specifically prevented from subsequently exercising that power in respect of that subject matter. Indeed, upon the authorities which cannot now be doubted, the position is that so far as the power of requisitioning under this Act is concerned, it is the delegatee who must make up his mind before issuing an order of requisition or derequisition. Action taken merely at the bidding of the Government or at the behest of some superior authority would not and does not consti tute a valid exercise of the delegated power itself. It has now been so held in several cases by our own Supreme Court. Thus in the case of the Province of East Pakistan and others v. Jogesh Chandra Lodh and others (11DLRSC(Pak.)411) it was held that when powers of the Provincial Government have been delegated to an officer, that officer is substituted for the Provincial Government for the purpose of section 3, with the result that it is he who has to form an opinion that it is expedient or necessary to requisition any property for the administration and development of the Province or for any other public interest connected therewith. The forming of the opinion is a sine qua non to the making of an order under section

3. Where the authority does not apply its mind to the question whether it is necessary or expedient to requisition the property for a public purpose he merely acts as a tool of the Land Acquisition Department of the Government and the order is not a valid or proper order. In these circumstances, there is no substance in the contention that in the present case the subsequent order of requisition could not have been made. The first order of derequisition, as we have already stated, was of the Additionally District Magistrate himself and not of the Provincial Government and it is he who issued the second order as well. The next contention as to the failure on the part of the authority concerned to apply its mind to the facts and circums tances of the case and the necessity for the requisition is concerned, we need only point out that upon the materials disclosed in the petition itself as to the various enquiries that have been held, we have no hesitation to hold that this is not a case of a hasty on hurried issuance of an order of requisition. The authorities had duly considered all the relevant facts and circumstances and applied their minds to the case before issuing the order of requisition. The authorities do not also appear to have been unmindful of the fact that the petitioner was a refugee and had purchased the land for his own settlement. The further contention of the learned counsel is that in the present case by reason of the interregnum during the period of expiration of the original Act of 1948 and its re‑enactment in December, 1951, there should have been a fresh order delegating the powers to the District Magistrate we need only point out that a similar point was urged in this Court in the case Md. Nur Hussain v. Province of East Pakistan, (11 D L R 367) and a Division Bench of this Court held that no fresh delegation of powers under section 15 of the said Act was necessary even though there was a gap between the expiration of the original Act and its re‑enactment This case went up to the Supreme Court and the Supreme Court upheld the decision of the High Court and held that in any event under section 25 of the Bengal General Clauses Act the original delegation still continued in force and there was nothing in the Act that followed the interregnum indicating that the original delegation should not continue. The decision of the Supreme Court is reported in 11 D L R (S C) at page

423. This question was also considered in the case of Sarat Kumar Kanongoe v. The Province of East Pakistan and 2 others, (P L D 1958 Dacca 574) by this Court and a similar view was taken with regard to the necessity of issuing a fresh delegation after the re‑enactment. In this view of the matter there is no substance in this contention either. Lastly it is urged that since the petitioner is a refugee, his lands cannot be requisitioned and in support of this contention, although this point has not been taken in any of the Affidavits filed herein, a copy of a Departmental directive under the signature of the Secretary, Revenue Department, Land Revenue, Government of East Pakistan, has been produced before us. It seems to indicate that in the case of a land belonging to a refugee, if the land is his only property for building a residential house then this land, if required for any public purpose, may only be acquired after providing him with an alternative site sufficient to build his dwelling house, for which purpose the land was originally acquired by the refugee owner. There is thus no bar even under this Departmental directive to the requisitioning of the property of a refugee. All that this directive requires the requisitioning authority to do is to give the refugee an alternative plot. In the present case, as already indicated earlier, an alternative plot has been offered to the petitioner in Dhanmandai area but he is not prepared to accept the same. The Departmental directive has, therefore, been fully complied with. So, there is no question of any great hardship or serious prejudice being caused to the petitioner. Apart from this, we find, on a careful examination of the petition of petitioner and the requisitioning orders, that even at this particular place in Mouza Kakrail all the properties of the petitioner have not been requisitioned. The petitioner in paragraph 2 of his petition states that he owns "part of C. S. plot No 201, plots Nos. 161, 203 and 204 of Mouza Kakrail, J. L No. 282 (Dakhin Sarai) P. S. Lalbagh." The first order of requisition has not been filed but the order in Annexure `A' shows that the plots which were being derequisitioned were only plots Nos. 161, 203 and 204 measuring 25'26 and '01 acres. This order, therefore, indicates that C. S. plot No. 201 was never requisitioned. Again in the second order of the 24th of November 1959 the schedule to the order annexed shows that only part of C. S. plots Nos. 161 and 203 measuring '24, and '25 acres respec tively have been requisitioned. This, therefore, leaves out plot No.

204. Thus, if the statement in paragraph 2 of the petition is correct then C. S. plots Nos. 201 and 204 are excluded from requisition. Even there the petitioner has some amount of land measuring '25 acres left for his own purposes. These are all the points that have been urged in support of this Rule and since we do not see any substance in any of them, this Rule is discharged. In discharging this Rule, however, we would like to record here that we hope that this order will not be interpreted as having absolved the Government from allotting any alternative plot to the petitioner concerned and we hope that the original offer of the allotment of the land at Dhanmandai area after filling it up, notwithstanding the discharge‑of the Rule, will not be withdrawn. Having regard to the fact that the petitioner admittedly is a refugee, we make no order as to costs in this Rule. HASAN, J.‑I agree. A. H. Rule discharged.