P L D 1964 Supreme Court 1 (PLP)

B. Z. KAIKAUS, J.‑This is an appeal by special leave against the judgment of the High Court of East Pakistan setting aside in the exercise of writ jurisdiction an order of requisition of property made by the Additional District Magistrate, Chittagong, under section 3 of the East Bengal (Emergency) Requisition of Property Act. On the 14th March 1960, the Additional District Magistrate of Chittagong received a letter from the Registrar, Co‑operative Societies, East Pakistan, stating that the Government as a measure for increase of food in the country was attaching very great importance to the improvement of fishing industry ; that the fishermen were to be organised by the Government on co‑operative basis and a Provincial Co‑operative Society under the name of East Pakistan Provincial Fishermen Co‑operative Production and Sale Society Ltd., had been registered, the intention being that this will be the central organisation through which all supplies of fishermen were to be channelled ; that the Government had agreed to give an import licence for 28 lacs of rupees to this Organisation ; that this Organisation was in need of a godown and an office ; and that there were two plots of land, one adjacent to the office of the Monoharkhah Fishermen Co‑operative Society and the other on the bank of Karnafully which were very suitable for the construction of office and godown of the Provincial Society and which may be requisitioned. It was further stated that the Society had to function immediately and, therefore, early action in the matter would be appreciated. A schedule of the property to be requisitioned was attached to the letter. On receipt of this letter the Additional District Magistrate held some discussions with the Land Acquisition Deputy Collector and on the next day i.e. the 15th March, 1960, the Land Acquisition Deputy Collector wrote to the Zonal Land Accommodation Committee for its approval to the requisition of the land mentioned in the letter of the Registrar. In the noting on the file the Land Acquisition Deputy Collector said : " It appears that the land is urgently required for a project under the public sector." On the 17th March, 1960, a representative of the Provincial Society saw the Additional District Magistrate who as a result directed that preliminary action be taken immediately for obtaining approval of Chittagong Development Authority. On receipt of the requisite approval the Additional District Magistrate who is empowered to pass orders under section 3 of the East Bengal (Emergency) Requisition of Property Act ‑passed an order for requisition of the property on the 19th March, 1960, and notices of requisition were in consequence served upon all the persons who were shown as owners of the property in the schedule attached to the letter of the Registrar. On the 24th May, 1960, Abdus Sobban Sowdagar and Sheikh Musharraf Hossain respondents in this appeal who are owners of Plots Nos. 1387 and 1394 submitted an application to the District Magistrate, Chittagong, objecting to the order of re quisition. In this application it was stated that since the earlier part of the year 1959 the respondents had set up a factory on apart of the plot in dispute under the name and style of United Metal Industries and that on the other portion they had started a saw mill under the name of Sufi Timber Depot & Saw Mill. The respondents, it was stated, had incurred huge expense and now when they had just been able to run the industries they had received a notice of requisition. It was pointed out that there were other suitable vacant lands lying in the vicinity which could be utilized for fishermen's co‑operative production and it we s prayed that the plots in dispute may be released. On receipt of this application the Additional District Magistrate passed an order to the effect that he would visit the spot on the 1st of June, 1960. Notice was served of this intended inspection on the Assistant Registrar, Co‑operative Societies as well as on Abdus Sobhan Sowdagar respondent. There was some delay as notice did not reach the Registrar in time and the spot was actually inspected on the 29th July, 1960. The Additional District Magistrate was at the time of inspection accompanied inter alia by Mr. Ralph. L. Jonson, Fish Advisor to the United States Operations Mission to Pakistan. In a report which will presently be reproduced, the Fish Advisor expressed the opinion that the plot in question was the only place suitable for the fish industry and that the wood market and the mesh factory for which the plot was being used were economically feasible elsewhere. The Additional District Magistrate refused to withdraw the order of requisition. The respondents approached also the Investment Promotion Bureau and the Government of East Pakistan in the Commerce, Labour & Industries Department and further action in the matter was stayed for some time, but ultimately the orders of requisition were allowed to stand at which the respondents filed the writ petition out of which this appeal arises. In the writ petition it was stated that the Additional District Magistrate had passed the impugned order without applying his mind to the question whether the plot in dispute was required for a public purpose. It was alleged that in the plot in dispute there existed a factory for the manufacture of buckets, wire netting etc. called the United Metal Industries and there was at the same time a saw mill; that huge expense had been incurred for setting up these industries; and that there were other plots near the plot in dispute which were suitable for the office and godown of the Provincial Co‑operative Society for whose benefit the plots had been requisitioned. The order was attacked also on the ground that it was a colourable exercise of the power under section 3 of the East Bengal (Emergency) Requisition of Property Act, because the true intention from the very beginning was to acquire this plot and the proper course was to proceed under the Land Acquisition Act. The respondents to the petition i.e. the Government of East Pakistan and the District Magistrate, Chittagong, denied generally the allegations made in the petition and asserted that the property had been properly requisitioned because it was required for a public purpose. The main ground on which the High Court set aside the order was that there had been no application of the mind by the Additional District Magistrate to the question whether in fact the property was required for a public purpose. The learned Judges were also doubtful whether the purpose for which property was acquired was " public purpose " at all and whether the property could under the circumstances be said to be " required " for a public purpose. They were of the opinion at the same time that the sole object of the requisition was to acquire the property and this was a fraud on the statute for the proper course in such a case was to take proceedings under the Land Acquisition Act. Before proceeding further it would be proper to state what the record discloses with respect to the alleged expense incurred by the respondents in setting up the United Metal Industries and the Saw Mill and with respect to the use to which the land was being put at the time it was requisitioned. With respect to the alleged construction on the land the position taken up by the Registrar as appears from the departmental file, which was being freely used by the High Court, was that there was no more than a thatched but on the spot which had been put up only as a show to oppose the proposal for requisition. This has been stated in a letter of the Deputy Registrar dated the 12th January, 1961. On 21st February, 1961, another letter was sent by the Deputy Registrar, Co‑operative Societies, Chittagong, to the Deputy Commissioner after the spot had been inspected by Mr. Hadi Hassan, Member, Board of Revenue. This letter is in the following words:‑ "In continuation of this office memo No. 91, dated 12‑1‑1961 on the above subject I may state that Mr. Hadi Hassan, Member, Board of Revenue, was kind enough to pay a visit to the proposed site. There is a small thatched where an ordinary tea stall is being run. There is no other shed standing on the site. We saw another bamboo enclosure which is probably the remnants of the but that was put to oppose the proposal for requisition. It was destroyed by the cyclone. The objection that an existing industry will be dislocated with the requisition of the land is not correct. There are heaps of wooden logs on the site. They are meant for fuel. The boatmen carry these logs from Cox's Bazar and Hill Tracts. They stock them on the proposed site for sale on payment of rent to the owner of the land. The only use the owner is making of the land, is that he allows boatmen to stock fuel for selling them to consumers on payment of rent. He earns lot of money in that way. The Member, Board of Revenue, saw it himself and he will I hope confirm it, if a reference is made to him. It is, therefore, requested to take up the matter with the appropriate Department for expeditious disposal of the case." (The word " but " after " thatched " though appearing in type has been struck off in ink without any initials). At the same time the Registrar, Co‑operative Societies, had placed on the file of the Additional District Magistrate photographs of the land in dispute to support his version as to the use to which the land was to be put. According to the Registrar the only use to which the land was being put was that boatmen were allowed to stack fuel on the land on payment of rent. This statement of the Deputy Registrar receives support from what the respondent themselves have stated in their letter of 29th July, 1960, addressed to the Additional Secretary, Department of Trade, Commerce Labour and Industries, East Pakistan, which letter is a part of the printed paper book. Three paragraphs of this letter can usefully be reproduced. They run :‑ "(1) That your petitioners have been running the United Metal Industries from several years, and Government have since granted periodical raw materials import licence, and allotment of more materials from the Small Scale and Cottage Industries Corporation. That the said industry was visited and inspected by Government Departments; and last year our the then Governor Mr. Zakir Hussain was pleased to visit the factory. (2) That besides this industry, we have been running the age old business of storage of building materials such as bamboo, straws, timber, and in the year 1959, we have arranged to establish a modern saw mill at the site, for which necessary plants were purchased and stored in the site. That after spending huge sum of money a Khal was excavated to bring into site timber logs to our mill site (sic). That after spending huge sum of money a small Khal was excavated to bring into site timber logs to our mill from the river Karna phuli. That in order to effect elevation of the low level plots, we had to spend further huge sums of money to fill the ditches with earth, and make other materials improvement of the plots in question. (3) That when all our preparation was afoot, all of a sudden due to ill design of our enemies, our plots were shown to Fishermen Co‑operative Society which organisation having been ruled by Hindu elements, and having borne old grudge by some fisherman members whose Louse‑hold premises were purchased by us, the Land Acquisition Case No. 81 of 1959‑60 was prompted against our established industry and the attached premises reserved for further industrial use, leaving out the large area of vacant plots of land around the Fishermen Co operative Society." In para 2 it is admitted that the land was being used for storage of different kinds of material. At the same time this letter shows that up to the date on which it was written no saw mill had been set up. In para 2 it is stated that arrangements had been made for establishing a saw mill and the necessary plants were purchased and stored at the site. In the 3rd paragraph the respondents state that when all this preparation was afoot the land acquisition case was started against them. We have referred to these documents to show that there was before the High Court material counteracting the allegations of the respondents as to the huge expense incurred and the use to which the land was being put, which allegations had been supported only by the affidavit which has to be attached to a writ petition. We proceed now with a discussion of grounds on which the order under appeal is based. As a preliminary to the findings on the basis of which the High Court set aside the order of requisition it held relying on the amendment of section 3 of the East Bengal (Emergency) Requisition of Property Act that the question whether the property was required for a public purpose was justiciable. Section 3 as it originally stood ran:‑ (3) 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 for 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: Provided that no property used by the public for the purpose of religious worship shall be requisitioned: Provided farther that the Provincial Government may exempt any particular property or class of properties or exclude any particular area from the operation of this Act." By the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance, 1960, the following section was sub stituted for it. " (3) When any property is required for a public purpose or in a public interest, the (Deputy Commissioner) may re quisition it by an order in writing Provided that the projects covering more than one district or the projects of which the requiring body is either the Dacca Improvement Trust or the Chittagong Development Authority, the proposal shall require the approval of the Provincial Government before proceedings under the Act are stated: Provided further that no property used by the public for the purpose of religious worship shall be requisitioned. The learned Judges were of the opinion that the section as it originally stood debarred the Courts from going into the question whether property was required for a public purpose, but that by the amendment the section had been transformed and now the jurisdiction of the authority requisitioning the property depended upon its being in fact required for a public purpose. The amendment of the section has not made such a great change in the law as the learned Judges appear to have assumed. Even under the section as it originally stood the interpretation of " public interest ", " other similar purpose ", etc., was a matter for the determination of the Courts. The authority passing an order of requisition could not by a misinterpretation of the section extend its jurisdiction. If the reason for the passing of an order of requisition was not one contemplated by the section in accordance with the interpretation which may be put upon this section by the Courts, the order of requisition would be void in spite of the use of the word " opinion ". On the other band even now it is the District Magistrate who is primarily the judge of the facts which would attract the operation of section 3 in spite of the fact that the words in the opinion " have been deleted. The High Court when exercis ing writ jurisdiction does not act as an ordinary appellate Court with respect to the conclusions of fact of the District Magistrate and does not interfere with those conclusions unless acting reasonably a person could not have reached those conclusion at all or where some relevant circumstance has not been taken into consideration or a circumstance in fact irrelevant has affected the decision. The reasons which influenced the learned Judges in coming to the conclusion that the Additional District Magistrate had not applied his mind will be found at the following passage: "It is evident from the file and also from the admission made in the affidavit‑in‑opposition submitted on behalf of the respondents that the Additional District Magistrate had no other material before him except the letter which was addressed by the Registrar of Co‑operative Society of East Pakistan to the Collector (District Magistrate) of Chittagong as set out above. This letter conveys an information to the effect that as a measure for increasing food production in this Province, the Government of East Pakistan, in the Co‑operative Depart ment, has sponsored a scheme for increasing production of fish and that as a result of such a scheme, the said Provincial Fishermen Co‑operative Production and Sales Society Ltd., had been registered with its Head Office at Iqbal Road, Chittagong. It will be noticed that it does not say why it is necessary that it should have another office. Secondly, it does not convey any information as to whether suitable land for the construction of the said office cannot be obtained by private negotiation. It says that the land which is the subject matter of requisition is very suitable for the construction of the office and godown for the said Society. It does not state that whether any other suitable land is not available. Furthermore, it appears that the Commerce, Labour and Industries Department of the Government of East Pakistan addressed the following letter to the Revenue Department of the said Government in respect of this order of requisition: " The undersigned is directed to forward herewith copy of petition dated 29‑7‑60 from M/s United Metal Industries, Chittagong with the request that Deptt. may kindly have further proceedings in the case stayed until issue of further instructions by them on the basis of the following observations of this Deptt. There are suitable plots in the neighbourhood on the river bank which are lying vacant and could be used for the proposed fish market. There seems, no particular reason why an existing industrial unit should be disturbed. The Registrar, Co‑operative Societies, East Pakistan, is being requested to select some other suitable site for the purpose. This Department have already issued a stay order on the District Magistrate (copy enclosed). (Sd.) A. W. Choudhury, Section Officer, II/Ind. Nowhere in the entire body of the file in respect of this order of requisition there appears to be any answer to the query that was posed by the Commerce, Labour and Industries Depart ment to the effect that there was no particular reason why an existing industrial unit should be disturbed. Furthermore, the said letter states that the Registrar, Co‑operative Societies, East Pakistan, is being requested to select some other suitable place for the purpose. Nothing appears to have been done in that respect. The aforesaid letter addressed by the Commerce, Labour and Industries Department has been written long after the order of requisition. It is, therefore, perfectly clear that the Additional District Magistrate did not have before him materials upon which he could come to a decision as to whether there was any public purpose which would be served by passing the impugned order of requisition and furthermore as to whether there was any " need " for the land for such a public purpose. In paragraph II of the affidavit‑in‑opposition filed by the respon dents, the respondents have stated as follows: " The Registrar, Co‑operative Societies, East Pakistan, Dacca, sent a proposal to the Collector, Chittagong intimating that the Government, as a measure for increasing food in the country, was attaching great importance to the improvement of fishing industry in the country and for that purpose to organise fishermen on co‑operative basis for supply of credit and all fishing materials to them. Accordingly a Provincial Co‑operative Fishermen Society under the name of the East Pakistan Provincial Fishermen Co‑operative, Production and Sale Society Ltd., was registered with its Head Office at Iqbal Road, Chittagong and it was necessary for the said Society to have its office and godown at Chittagong for carrying out its work, That on the basis of the said proposal, the Additional District Magistrate, Chittagong, (the requisitioning Authority) after being satisfied that the land in question was necessary in public interest, passed the said order of requisition, for a public purpose''. Although it is stated in the aforesaid paragraph that the order of requisition was passed after the Additional District Magistrate, Chittagong was satisfied that the land in question was necessary in public interest, it is admitted that it was purely on the basis of the aforesaid proposal of the Registrar, Co‑operative Societies, East Pakistan, that the said order was made. The learned Judges, as appears from this extract, were of the opinion that the Additional District Magistrate erred in passing the order merely on the basis of the letter which was received from the Registrar and without making any inquiry into the following matters :‑ (i) whether the Society could not acquire the land by private negotiation ; (ii) whether there did not exist other land which was suitable for the office and godown of the Society ; and (iii) whether a second office was necessary when the Society had already a head office at Iqbal Road. In one sense it is not quite correct that the Additional District Magistrate acted only on the basis of the letter of the Registrar, for, as is admitted in the judgment he had discussions with the Land Acquisition Deputy Collector, the purport of which we do not know, In another sense the observation would, however, be correct, for, with respect to the land in dispute, the letter of the Registrar appears to have been the only source of infor mation of the Additional District Magistrate before he passed the order. Here it will be proper to reproduce the letter of the Registrar. It runs :‑ " It has been sufficiently known by this time that the Government, as a measure for increasing food in the country, is attaching very great importance to improvement of fishing industry and for that purpose to organise fishermen on co operative basis for supply of credit and all fishing materials to them. A Provincial Co‑operative Fishermen Society under the name of the East Pakistan Provincial Fishermen Co‑operative Production and Sale Society Ltd. has been registered with its Head Office at Iqbal Road, Chittagong. This will be the organisation of all Fishermen Co‑operative of the Province and all supplies to the fishermen will be channelled through it. Government has agreed to give it import licence this year for importing fishing materials worth about Rs. 28 lacs. It is very necessary that the Society should have its office and godown at Chittagong and start functioning. We have already a fishermen Co‑operative Society at Monoharkhali with its office at Iqbal Road. You are perhaps aware that this society undertook deep sea fishing this season and succeeded to catch sea fish worth about Rs. 1 lakhs. There is a vacant plot of land just adjacent to the office of the Monoharkhali Fishermen Co‑operative Society and another plot on the bank of Karnafully. They will be very suitable for construction of office and godown for our Provincial Society. It is, therefore, requested that the plot of land may kindly be requisitioned for the Society and possession made over to it so that it may construct an office and godown. The Society will have to start functioning immediately. An early action in the matter will be, therefore, very much appreciated. The schedule of the plots of land together with the name of the parties are furnished in a separate sheet of paper enclosed." In the first place it is not quite easy to say that the Additional District Magistrate erred in acting on the basis of this letter because the letter was from a responsible Government servant and if the purpose to which it referred was in fact a public purpose it made out a prima facie case for requisition. However, it is not necessary to decide whether in this case the inquiry that preceded the passing of the order was legally sufficient for after an objection was taken by the respondents there was a full inquiry which showed that the order was justified. It will be proper to observe that the attitude of the Additional District Magistrate was quite reasonable. He accepted the facts stated in the letter of the Registrar and passed the order, but when objection was taken that there were buildings on the spot and that the land which was requisitioned was already being put to another valuable use, he at once stopped further proceedings and fixed a date for the inspection of the spot. He then inspected the spot in the company of the Director of Central Fishery, the Deputy Registrar, Co‑operative Societies and Mr. Ralph L. Johnson, Fish Advisor, to the Central Fishery Directorate as well as to the United States Operations Mission in Pakistan. Mr. Ralph L. Johnson made a report which on account of its bearing on the case may be reproduced verbatim. It runs :‑‑ * * * * * * (1) The entire area now consists of a Government Fish Market building, a Government Fish Co‑operative Centre, a private fish processing plant building, a private fish boat building yard and future fish canning plant and a portion is being used for a firewood market and a small wire mesh factory. The area is bordered by a fishing village. (2) The portion being used by the wood market and mesh factory is a strategic portion bordering the river front and a navigable khal. (3) Fishing interest has nowhere else to go, today, except at mentioned strategic portion to be economically feasible and in necessary proximity to the Government Fish Market and Fish Industry Centre. (4) A wood market and mesh factory is economically feasible elsewhere. (5) Wood market and mesh factory owners and operators demonstrated indiscreet planning by locating within a fishing development area. (6) It is obvious to the writer that community interest would require this area to be confined to fishing and fish component industry. It is recommended and advised that legal action be taken, if necessary, to secure this area solely for fishing interest and development." The report shows that the land in dispute was the only plot which was suitable for the godown and the office of the Society. It also shows that the mesh industry and the wood market which were existing on the spot were feasible elsewhere. So far as the alleged structure at the spot was concerned we have already stated that the respondents have not established the existence of any substantial structure. So it would be clear that the Additional District Magistrate practically enquired into all that the learned Judges thought it was necessary to inquire into. He had found that this land was a very suitable plot for the office and godown of the Society and that there was no other plot which was suitable. Great stress has been laid by the learned Judges on the fact that the Society already had a head office at Iqbal Road, and the need for a second office was nowhere disclosed. We would point out that a godown into which material is to be received and from which material is to be issued would in the ordinary course stand in need of an office attached to it. All that is received in the godown is to be entered and so has all that is issued from it and receipts too have to be given or taken. It could not possibly be urged that making of entries as to material received and issued and the granting or taking of receipts should have taken place at the head office. That had to be done at the godown and an attached office was therefore needed. It is unnecessary before land is requisitioned or acquired to find out whether a bargain for a suitable plot cannot be struck by private negotiation. If this were not so the Government would in all cases of acquisition of land have to make an effort before it starts proceeding for acquisition to strike a bargain for a suitable plot, for the provision in the Land Acquisition Act as well as in the Act with which we are dealing is the same, that is, property should be " required for a public purpose ". There is no such condition precedent in the relevant provisions nor can such a condition be read into the word "required' A plot of land does not become " required " only after efforts' for negotiation fail. On the other hand negotiation would imply that the land is already " required ". Similarly it is no necessary before an order of requisition of a particular plot o land is made to enquire whether other suitable plots do no exist. There may be a hundred plots in existence each of which can serve a particular public purpose, but the Government may need only one and none of the owners can object that there were other ninety‑nine plots which could as well serve the public purpose. We find that even if we assume the insufficiency of the inquiry before the impugned order was made there was full inquiry when the respondents took objection to the requisition and the law was sufficiently complied with the learned Judges said that if there was not a proper inquiry before the order, the order would remain invalid inspite of any subsequent inquiry. But if the District Magistrate after making inquiries refused to withdraw his order he will be deemed by his sticking to the impugned order to have made an order after the inquiry. It would not be necessary in such circumstances to pass a fresh order. Of course, it may be open to the party against whom an order of requisition is directed to obtain any advantage to which he may be entitled on account of the order having legally been passed on a later date, but it cannot be said that there was no valid order in existence. The learned Judges were not at the same time inclined to accept the results of the inquiry as correct on the ground that the inquiry was made after objection had been taken and, therefore, did not inspire confidence. We are not inclined to agree that there was any ground for suspicion. At the same time we will point out that in a writ petition it would not be proper to act on the basis of facts which are not accepted by one party unless the matter be quite clear. The learned Judges could not have acted on the assumption that even subsequently there was no proper and bona fide inquiry. One way of looking at the matter is this. Section 3 of the East Bengal (Emergency) Requisition of Property Act as amended is attracted if property is required for a public purpose. This would mean that the property should in fact be required for a public purpose. The learned Judges have found that by the amendment the section has been transformed. Previously it was opinion of the authority passing an order of requisition that was the basis of the order whereas now it is the objective existence of requirement for public purpose. The result is that the order of requisition would be valid even though there was insufficient inquiry if in fact property was required for a public purpose. The want of inquiry in such a case could tot be a ground for objection for the inquiry if made would have revealed only the true state of affairs. The order would be valid because the actual existence of requirement for a public purpose would by itself attract the application of section 3 of the East Bengal (Emergency) Requisition of Property Act. We turn now to the question whether the purpose for which the land was requisitioned was a public purpose. The reasoning of the learned Judges on this point is contained in the following passage :‑ " In the first place, the expression " public purpose " must include a purpose, that is, an object or aim, in which the general interest of the community as opposed to the particular interest of an individual is concerned. Secondly, such interest must be directly connected with the order that is being made and must be vitally concerned with the said order. There will be no public purpose in any undertaking or venture in which the public interest is served indirectly and in a circuitous way. Every grocery which exists in any country serves a public interest, but such grocery is not primarily and directly concern ed with such public purpose. The direct purpose for setting up such a grocery shop is a gain which ensures to the benefit of an individual who has established such a shop. This proposition can be best illustrated with reference to houses which are requisitioned for a public officer, who is engaged in a work in which the people in general are vitally concerned. Although an officer undoubtedly serves a public purpose but in requisitioning a house for his accommodation, at least two considerations must arise, namely, whether the efficiency of the public officer concerned will be affected if he is not provided with an accommodation and secondly, whether such accommodation can be given to him without taking recourse to a compulsory requisition. There wilt be no purpose for the requisition of a house for a public officer unless it is established that the efficiency of the said officer would be affected without such an order of requisition and that no accommodation would be available otherwise than by way of requisition. Thus, in the present ease the minimum considera tion must be as to whether the efficient working of a public utility concern would be affected without its having another office accommodation and without its having a godown at a particular place and secondly, it must also be considered whether such an accommodation cannot be available otherwise than by a compulsory order of requisition. In the opening part of this passage there is a categorical statement that the public purpose must be served directly. As an example of an indirect purpose is mentioned the case of a house being requisitioned for the residence of a public officer. But the learned Judges then accept that requisition for residence would also be requisitioning for a public purpose if it was shown :‑ (i) that the efficiency of the public officer would be affected if the house was not requisitioned for him; and (ii) that he could not get a house for his residence otherwise than by a compulsory order. Ultimately the learned Judges accept that even in the present case the order of requisition would be justified if two similar grounds existed that is, if the Society could not properly function without this land being requisitioned for it, and if it could not acquire land for its godown and office without an order of requisition. The learned Judges add that before the order was passed in this case there was no material before the Additional District Magistrate for coming to the conclusion that without this land the Society could not function. What effect the distinction between direct and indirect service of a public purpose may have in determining the validity of an order in a particular case it is not necessary to decide, but this much is clear and in fact is impliedly conceded by the High Court that even an indirect service of a public purpose is not excluded by the provisions relating to requisition or acquisition. Even according to the learned Judges the order would be valid in the present case if the two conditions which they mentioned were satisfied. But they have found that as to those two con ditions there was no inquiry before the order was made. We have found that a subsequent inquiry was under the circumstances sufficient compliance with the law and that inquiry showed that the two conditions mentioned by the learned Judges were satisfied, but we would point out that at least one of those two conditions was satisfied even by the letter of the Registrar, that is, the Society could not properly have functioned without a godown and an office. With respect to the second condition we have already made some observations and we are not prepared to accept it. If public purpose does exist it is not necessary to show that it cannot be served by private negotiations before the provisions relating to requisition or acquisition are attrac ted. The last point to be considered is whether the order was void because from the very beginning the Additional District Magistrate contemplated acquisition of this land. The learned Judges while dealing with this matter reproduced in the first place para 12 of the affidavit‑in‑opposition filed on behalf of the Government which said : " With regard to the statements contained in para 11 of the petition it is stated that the land had been requisitioned with a view to acquire it permanently . . " On this sentence alone the learned Judges based a conclusion that the " sole object " of the impugned order was to acquire the property and the result in the opinion of the learned Judges was that the property was being acquired for a collateral purpose. The order was mala fide and a fraud on the statute. It was argued before the learned Judges that when the Legislature conferred on the Government two powers of acquisition, it was open to the Government to acquire the land under either of the two powers and the following passage in the judgment of a Division Bench of the East Pakistan High Court in case of Moosa Hajf Abdus Shakoor Subasha and another v. Province of East Pakistan and others (P L D 1960 Dacca 691) was cited :‑ " When the Legislature confers upon the Government two modes of acquisition, one under the Land Acquisition Act and the other under the Emergency Act, and the authority chooses the one which makes it possible to acquire the property immediately, it cannot be said that this mode of requisition is unlawful, because the other one is more beneficial to the citizen ". The learned Judges said with respect to this case :‑ " It is clear that the aforesaid case is no authority for the proposition as contended by the learned Advocate General. The facts of the said case are that the property, which was requisitioned, was required as godown for storing food which was procured by the respondent‑Government to meet an imperative public necessity. The purpose of the order was requisition simpliciter. The property was required in order to provide for the godowns for the aforesaid purpose. It did not at all appear that the intention of the requisitioning authority was that the property should be ultimately acquired." It would be observed that the learned Judges were not prepared to agree that even if there was imperative necessity for requisition the order would be valid if the property was ultimately to be acquired because the learned Judges while admitting the impera tive necessity of the requisition still say : " It does not at all appear that the intention of the requisitioning authority was that the property should be ultimately acquired ", and it is on this ground that they justify the order. Unless the learned Judges only meant to say that there was no urgent necessity for the requisition, it is not quite easy to follow how having regard to all the circumstances the learned Judges could have come to the conclusion, on the basis of an isolated sentence in the written statement, that the " sole object " of the impugned order was to acquire the property. The clear case of the Government and the Additional District Magistrate was that the land had been requisitioned for the office and godown of the East Pakistan Fishermen Co‑operative Society which was a public purpose. This had been stated repeatedly in the affidavit‑in‑opposition paragraph 12 of which the learned Judges have reproduced. In para 10 it was stated " that the land in question has been requisitioned for use by the East Pakistan Provincial Co‑operative Production & Sale Society Limited which is a public purpose ". In para 11 it was stated: " It was necessary for the said Society to have its office and godown at Chittagong for carrying out its work ". In para 13 it was said: " it is further stated that the land in question was requisitioned after due consideration of the suitability or otherwise of the other plots near about it and the same was duly allocated by the Chittagong Development Authority. It is further stated that no other plot is suitable in the neighbour hood for the said purpose." In the order of requisition which was passed by the Additional District Magistrate it had been stated that the order had been made " for Fishermen Co‑operative Production & Sale Society, development of industries of the Province of East Pakistan and maintenance of supplies and services essential to the life of the community in the Province of East Pakistan ". In fact it was essential for the Government to allege that the land had been requisitioned for a public purpose. Unless it said so it could not defend the order. It had to say that the order was intended to help the Provincial Fishermen's Co‑operative Society which was producing food for the province. Just because of the words in the affidavit‑in -opposition that the property had been requisitioned " with a view to acquire permanently " the learned Judges have reached a conclusion that the "sole object" of the order was to acquire it. There is a good deal of difference between " sole object " and, " with a view to ". The land in dispute was requisitioned for, the office and godown of the Society but the intention at the same time was that it will subsequently be acquired. That is, what was meant by " with a view to ". If what the learned Judges mean by " sole object " is that the property was not immediately required at all by the Society and it was requisitioned only in order that it may be subsequently acquired not under the Land Acquisition Act, but under the East Bengal (Emergency) Requisition of Property Act, the conclusion is not justified by the record and in fact there is ample material on the record against it. It is nobody's case that the Society did not want to function at once. On the other band in the letter of the Registrar to the Additional District Magistrate it had been expressly stated that the Society wanted " to start functioning immediately " and that early action would be appreciated. The note on the file by the Land Acquisition Deputy Collector also states that the land was " urgently required for a project under the public sector ". The same words appear in the letter written by the Additional District Magistrate to the Secretary of the Zonal Land Allocation Committee on 15th March 1960. In some subsequent letters of the Registrar too it had been stated that the matter was urgent and required expeditious disposal. As a matter of law it cannot be contended that if property is ultimately to be acquired it cannot be requisitioned. The only condition for the application of section 3 of the East Bengal (Emergency) Requisition of Property Act is that the property should be required for a public purpose. If the property is not, at the time when it is requisitioned, required for a public purpose the order would be bad on the ground that it is not within section

3. If on the other hand property is at that time required for a public purpose, the fact that it is to be subsequently acquired will not stand in the way of the applicability of section

3. There is a provision in the East Bengal (Emergency) Requisition of Property Act itself which provides for acquisition of land which has been requisitioned. In accordance with this section the Deputy Commissioner, if he considers that acquisition of any requisitioned property is necessary can take proceedings fort acquisition which are subject to confirmation by the Provincial Government. According to learned Judges of the High Court it is essential that at the time the land is requisitioned there should be no intention to acquire it. If we were to accept the proposition that land of which acquisition is contemplated cannot be acquired, the result would be that section 5 would be applicable only to a case where at the time the order of re quisition was made, the Additional District Magistrate was under a misconception as to the need for its acquisition or to a ease where need of acquisition arose later. If the Additional District Magistrate was originally under a misconception and believed that the land which was being requisitioned was not to be acquired then his order would, according to the learned Judges, be valid and if he knew the facts and intended to acquire it later the order of requisition would be invalid. There are no such limits in section

5. It does not say that it would apply only to a case where the Additional District Magistrate was not conscious of the need for acquisition in the beginning or where the reed for acquisition arose after the order of requisition. In fact the learned Judges in the later part of the judgment have accepted to a great extent that even the existence of need of acquisition in the beginning would not invalidate the order of requisition, The learned Judges say : " we may add that when an order of requisition has been validly made upon compliance of the conditions which would authorise such re quisition, the said order of requisition would not be vitiated merely because ultimately the property in question may have to be acquired even though such a contingency was anticipated at the time when the property was so requisitioned ". The learned Judges seem to be making a fine distinction between a case where the contingency of an acquisition is simply " anticip ated " and a case wherefrom the beginning it is contemplated that the property would be acquired. There does not appear to be any sound reason for such a distinction. Whenever there is an existing need of property which is ultimately to be acquired the only proper course for the authorities in East Pakistan would be to proceed under the East Bengal (Emergency) Requisition of Property Act. The Land Acquisition Act in the first place does not permit a very speedy method of taking possession of the property and in the second place the powers under the Land Acquisition Act are to be exercised by the Government, whereas under the East Bengal (Emergency) Requisition of Property Act, the powers are to be exercised by the " Deputy Commissioner " and this expression includes even an Extra Assistant Commissioner authorised by the Deputy Commissioner. We hold that the order was in accordance with law and was not a fraud on the statute. As a result of what has been said above this appeal succeeds. The order of the High Court cancelling the order of requisition is set aside. The parties will, however, bear their own costs in both Courts. K. B. A. Appeal accepted.