P L D 1964 Supreme Court 438 (PLP)

HAMOODUR RAHMAN, J.‑--This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of East Pakistan ordering by a mandamus the cancellation of an order of requisition passed under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948. The impugned order was served on the respondents herein on the 6th of July 1960, for the requisition of R. S. Plot No. 1462 of Mauza Joynagar in Ward No. 'A' of Chittagong Municipality together with the structures thereon. This plot of land, which fell in an area demarcated as a resi dential area by the local 'town Planning Committee set up by the Government, was purchased by the respondents for construction of a residential house. Before starting construction the respon dents, it is said, first ascertained from the Secretary of the above mentioned Committee that the land in question did not fall either within any development scheme or under any scheme of requisi tion or acquisition and only thereafter submitted a plan to the Commissioner of the Chittagong Division, as required under the East Bengal Building Construction Act, 1952, on the 19th of December 1951, for construction of their residential house on the said plot. This sanction was obtained on the 22nd of Decem ber 1951, but the formal permission of the Municipality for the erection of the proposed building was received only on the 29th of February 1952. In the meantime, the Government of East Bengal had also issued a press note exempting houses and buildings constructed after January 1950, from requisition by Government. This decision was also communicated to all the District Magistrates of East Pakistan by a Memorandum of the 19th of December 1949. This Memorandum was to the following effect :‑ "To The D. Ms. No. 7124 (17) Reqn. dated 19‑12‑

49. Sub.‑Exemption from Requisition of Buildings constructed after January. The undersigned is directed to say that in order to encourage construction of new buildings by private persons or organiza tions it has been decided by Government that no houses or buildings of which the construction is undertaken from January 1950, will be requisitioned by Government. Wide publicity of this decision may be given in your district. A copy of the press communique issued by Government fn this connection is enclosed. (Sd.) M. R. ALI, Dy. Secretary, 19‑12‑49." After complying with all the requisite formalities the respon dents, it is said, completed the construction of the building and put up a boundary wall of considerable height around the entire plot, On the 8th of January 1953, they‑ were, however, served with an order of requisition as also a notice of a land acquisition case, being Land Acquisition Case No. 96 of 1952‑53, for the requisition and acquisition of the entire plot. They made a repre sentation against the same on, inter alga, the ground that the building was exempt from requisition and the District Magistrate on coming to know that the building in question was constructed after January 1950, after obtaining the necessary permission of all the prescribed authorities, released a major portion of the plot including the building and requisitioned only a narrow strip of land along the road‑side for the development of the road. To this the respondents raised no objection. But notwithstanding this they were again served with the impugned order of requisition on the 6th of July 1960. They again made representations against the latter order to the District Magistrate on the 8th of July 1960, but without any success. An appeal to the Commissioner of the Chittagong Division filed on the 9th of July 1960, was also sum marily rejected. Failing to obtain any redress from the above mentioned authorities the respondents ultimately caused a notice demanding justice to be served on the Secretary, Revenue Depart ment, Government of East Pakistan, on the 12th of July 1960, and then moved the High Court under Article 2 (4) of the Laws (Continuance in Force) Order, 1958, for a writ of mandamus, mainly on the ground that the above property was exempt from requisition by virtue of the Government's decision contained in the circular, to the District Magistrate of the 19th of December 1949, and the press communique issued by Government in that connection. The order was also challenged on the ground that it bad not been made in good faith. It was said that the requisition, which had been made allegedly for the purposes of development of the Chittagong Medical College, was wholly unnecessary, as lands requisitioned for the said Medical College in 1951‑52, 54‑55 and 58‑59 were still lying vacant, unused and unutilised. It was further suggested that there was no specific purpose or scheme for which the property in question could be said to be required, for, neither under the original plan prepared for the Chittagong Medical College by foreign experts nor under any subsequent plan was the said property involved. This petition was contested by the Government and it was asserted that the requisition was made in the public interest for the implementation of one of the major schemes, namely, the establishment of the Chittagong Medical College. The land in dispute, it was maintained, did fall within the alignment of the Medical College according to the approved plan and was indispens able for the execution of the scheme. The land proposed to be acquired, it was said, fell within an enclave surrounded by the Medical College establishment on three sides. The allegations of mala fides were refuted and it was denied that the land was wholly surplus to requirement. It was further contended that neither the press note nor the sanctions relied upon by the respondents did or could, in any way, amount to a guarantee that the premises in question would never be liable to requisition for the implementa tion of a development scheme which, in the present case, was manifestly for the public benefit, namely, the establishment of a Medical College where not only would higher medical education be imparted but medical treatment would also be provided to the members of the public in general. It was further maintained by Government that, in any event, on the date of the impugned order, namely, the 6th July 1960, the relevant law had been materially altered and there was no longer any power in any one to grant any exemption from requisition. The press note relied upon, it appears, was issued under the second proviso to section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, which then stood 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 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 further that the Provincial Government may exempt any particular property or class of properties or exclude any particular area from the operation of this Act." This was, however, totally substituted by section 4 of the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance, 1960 (No. III of 1960), which is in these terms :‑ "When any property is required for a public purpose or in public interest, the Deputy Commissioner may requisition 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 started Provided further that no property used by the public for the purpose of religious worship shall be requisitioned." This alteration came into force on the 31st of January 1960. 1 he impugned order, which was made on the 6th July 1960, was, therefore, made after the law had been amended. Notwith standing this, the High Court took the view that the press communique referred to earlier was an exemption granted under the powers given by the second proviso to the original section 3 of the Act and, as such, the rights which the respondents acquired under the said proviso could not be defeated by its subsequent repeal, since the repeal of a statute could not, by virtue of section 8 of the Bengal General Clauses Act, 1899, affect any right, privilege, obligation or liability already acquired, accrued or incurred under any enactment so repealed. Having found that the property in question had acquired such an indefeasible immunity the High Court did not consider it necessary to go into the question as to whether there was at all any public purpose behind the order of requisition. So far, however, as the allegations of mala fides were concerned, the High Court was clearly of the view that they were not at all well founded, for, apart from insubstantial and vague assertions they found no support at all from anything else on the record. It was attempted to be argued before the High Court that the property was being requisitioned merely to beautify the approach road to the house of the principal which was on top of a hill approachable by the road passing along side the property in dispute. There was no averment to this effect, however, either in the petition or in the affidavit in reply. Hence this argument was not entertained by the High Court. The res pondents also failed to show that the requisitioned property did not fall within any plan alignment of the Medical College and its connected buildings or that the Medical College had not yet utilised the areas already acquired for it. Leave was granted in this matter mainly to consider whether the exemption claimed could be availed of even after the amendment of the law. The learned Advocate‑General of East Pakistan appearing in support of the appeal has contended firstly that no such principle of estoppel can be set up against a Government parti cularly with regard to the discharge of its statutory functions. It is urged that the Government cannot for ever bind either itself or its successor Government to exercise its governmental powers in any particular way. In any event, this principle cannot be invoked in a case where the act relied upon as constituting such estoppel is itself an act done by virtue of a power given under a temporary statute. When that power no longer subsists, it cannot be said that anything previously done still controls the per formance of functions even after the enabling provision in the relevant statute has been taken away. The principle that transactions past and closed are not affected by a repeal, has not been properly invoked in aid in the present case. In effect, the result of the reasoning adopted by the High Court has been that the press‑note issued under the old section 3 of the Act of 1948 has become of greater efficacy than the statutory provision itself which authorised the granting of such an exemption. This could not possibly have been the intention of the Legislature. In our view, there is a great deal of force in the arguments advanced on behalf of the appellant. The approach, we are constrained to observe, of the High Court to the determination of the questions raised before it has not been in accordance with the settled principles of law. The respondents came before the High Court by way of a writ of mandamus to challenge the autho rity of the Department concerned in making the order of requisi tion. The writ jurisdiction which was invoked was a limited jurisdiction. In the exercise of this jurisdiction the High Court was primarily concerned in finding out whether the impugned order was made in good faith in the exercise of powers lawfully vested in the authority concerned. At the time that the impugned order was made there was no provision in the relevant statute for exempting any property at all from requisition. The order made was manifestly for a public purpose, namely, the development of an institution where not only would medical education be imparted but also relief would be provided for the sufferings of the citizens. There could be no dispute, therefore, that the purpose for which the requisition was being made was a public purpose. The allega tion that the requisition was not necessary for the said purpose has been found to be wholly baseless and without any justification whatsoever. A medical and educational institution of this nature requires space not only for the construction of buildings but also for providing various other necessary facilities for persons receiv ing education or medical treatment there. It can also not be seriously disputed that the property requisitioned fell within an enclave which was bounded on three sides by the precincts of the Medical College and the High Court has itself found that its acquisition was not merely for the purpose of beautifying the approach road to the Principal's quarters. The requisition cannot, therefore, be challenged as having not been made in good faith and for a valid public purpose. The only question now is as to whether the requisitioning authority had, under the relevant law, the power to requisition the property. At the time that the order of requisition was made, as already pointed out, there was no power to exempt any build ing from requisition but the High Court has held that the previous exemption granted under the then existing law, enures for all time to come, in spite of the change in the law, as the exemption was a transaction past and closed. The circumstances in which the exemption came to be granted in respect of premises constructed on or after January 1950, may well have changed 10 years latter in 1960, but even so the property must continue to be exempt from requisition, no matter what the state necessity. There is nothing before us to show if in 1950 there was any proposal to establish a Medical College at Chittagong but even if the project for the development of the College, in the light of the changed circums tances prevailing in 1960, came into being subsequently, the exemption once granted, it is said, cannot be taken away. The contention that the exemption granted by the press communique in respect of buildings constructed after January 1950, prevails even after the power of granting such exemption has been taken away is sought also to be supported by certain observations in a decision of this Court in the case of Province of East Pakistan and others v. Abdul Karim and others (P L D 1959 S C (Pak.) 246). No such question appears, however, to have been decided in that case, nor was it necessary to be decided there. That was a case where an order of requisition made before the law was changed by the Ordinance of 1960 was impugned on the ground that the premises sought to be requisitioned were then exempted by the aforementioned press communique and circular issued to the District Magistrate. It was, therefore, decided on the state of the law then prevailing. The point there agitated was whether the power of exemption could at all be exercised in the absence of any rule framed under the Act laying down the procedure to be followed in granting such exemptions. This contention advanced on behalf of the Government was repelled and it was held that the notification made in the valid exercise of powers was still then in force and until that notification is cancelled or, if we might add, ceases to be operative or in force by reason of the change in the law, the exemption could not have been taken away. The observations in the said judgment relied upon were made in that connection and it was not thereby intended to lay down any general rule that the exemption would be subsisting even after the provisions enabling the authorities concerned to grant the exemption had themselves been deleted. Learned counsel appearing on behalf of the respondent No. L also found it difficult to support the view of the High Court that the exemption would still be available, in spite of the change in the law by the deletion of the power to grant exemption but contended that there was one other aspect of the case which had not been considered by the High Court at all. He urged that even if it is held by this Court that the reason given by the High Court for the issuance of the order of mandamus is not a valid reason, then the case should be remanded back to the High Court to consider as to whether in view of the change in the law it was necessary also to examine the requirement of the requisitioning authority. It will be noticed that section 3, as it now reads, says that when any property is "required" for a public purpose or a public interest, it may be requisitioned. It is contended that by the use of the word "required" the require ment has become a justiciable matter. It was incumbent upon the High Court, therefore, to consider whether the entire premises were in fact required for the Medical College Hospital. This question was, of course, neither raised in the writ petition nor in the affidavit in reply filed in the High Court nor was it urged even in the course of arguments. The High Court, there fore, rightly did not deal with the matter. It has also not been raised in the concise statement filed in this Court. The learned counsel is, therefore, not entitled to raise this point at this late stage for the first time, but from what we have stated earlier it appears to us that the requirement was also patent upon the facts and circumstances of this case. With regard to the contention that the exemption once granted becomes irrevocable as a past and closed transaction we must observe that it is, in our view, untenable. The power to make an order of exemption, both upon general principles and the provisions of section 22 of the General Clauses Act, necessarily includes within it the power to withdraw, alter or amend the order, direction or notification granting the exemption. The press communique could therefore undoubtedly have been cancelled at any time after its issue and the exemption withdrawn. In such event could it be said that the house built after 1950 continued to be immune from requisition ? It is difficult to appreciate as to how the principle of a repeal not affecting a closed or past transaction was at all made applicable in such a case of granting an exemption in exercise of a statutory power. The granting of the exemption under the enabling provisions of the statute was in the nature of a subordinate legislative act and the rule with regard to such legislative acts is that unless saved by the repealing enactment itself they lapse on the repeal of the provisions under which they were made vide Watson v. Winch ((1916) 1 K B 688). There was no analogy, therefore, between such an exercise of power and a closed or past transaction or the acquisition of a vested right. Such an analogy may lead to most curious results, for, under this principle a benefit granted in exercise of a power under a statute may become permanent, although it would not be so if that benefit was granted by the statute itself and the latter was afterwards repealed. Thus if the proviso in question had itself provided that houses built after January 1950, would be exempt from acquisition, then would the repeal of the proviso not have had the result of taking away that exemption? Could it then be maintained that it was a closed transaction and the repeal was of no effect? If not, then how can the same exemption become more efficacious by being granted in exercise of a power granted by the statute. The view of the High Court cannot, in the circumstances, be upheld. The doctrine of closed and past transaction has no manner of application in such cases. Having come to this conclusion it is not necessary for us in this case to investigate into the wider question as to whether it is at all competent for a Government to fetter its future executive action. This question does not strictly speaking arise in this case, for, the action with which we are concerned in this case was action taken under the statute and was, therefore, governed by the terms of the statute. This appeal must be and is, accordingly, allowed and the writ issued by the High Court will be recalled. But having regard to the special circumstances of this case there will be no order as to costs. K. B. A. Appeal accepted.