P L D 1963 Dacca 1053 (PLP)

3. In the affidavit‑in‑opposition, which has been filed on behalf of the respondents, it is admitted that the said order of requisition was served on one A. Rahim, who is alleged to be a co‑sharer of the petitioner in the sense that the petitioner having purchased a part of the lands originally owned by the said A. Rahim, became, upon such purchase, his co‑sharer.

4. The point that has been made before us with regard to this question is that the requirement of the law is to serve the order personally on the petitioner, and, failing to do that to serve it on an adult male member of the family of the petitioner. It is patent that the said A. Rahim does not belong to the family of tire petitioner. On the contrary, he is a person with whom the petitioner has had a long‑standing dispute, which was fought out in a Court of law. It has, therefore, been proved that the said order of requisition was never served upon the petitioner.

5. In this case various affidavits have been filed before us by both the parties and the Government file, in respect of this case, has also been produced before us by the learned Advocate General as reliance has been placed on the said files on behalf of the respondents. From the affidavits as well as the file produced before us, it appears that the respondents were never clear as to he extent of land which they required for the purpose of the diversion scheme. It seems that what was done was that a decision was taken to effect a diversion of railway lines and a scheme was prepared. A rough and ready railway‑road alignment was shown on a blue print, without deciding as to what was the fact amount of land required for the said alignment, in respect of which an order of requisition affecting the lands of a large number of persons was peremptorily passed. It was left to be decided on a future occasion, what quantity of land would be ultimately, really and truly required. It appears from the file hat the scheme was to eventually release the surplus lands which were ultimately found to be in excess of the need for such railway diversion plan. This is patently a wrong way to proceed under B either the Requisition or the Land Acquisition Act. The authorities should first decide and be clear in their minds as to the extent of the lands which they require and thereafter pass an order of requisition, having regard to what they find to be the minimum amount of land which would be necessary for the purpose of their scheme.

6. In one of the affidavits filed on behalf of the petitioner it is stated that the lands which were required for the said railway version scheme was demarcated by boundary pillars and that all land beyond the said boundary pillars was not required for the said purpose. The petitioner has stated that his land is outside the said boundary pillar and we have no reason not‑ to accept this statement made by the petitioner. This position is accepted by he respondent. Nonetheless, in another affidavit, it has been said on behalf of the respondents that the land of the petitioner was required with reference to some other Land Acquisition Case, namely, No. 15 of 1959‑

60. It is evident that the respondents have never been clear in their minds with regard to petitioner's lot of land. It is also evident that the petitioner's plot is not required for the said railway diversion scheme under which it was pretended to have been requisitioned. There is no manner of doubt that there is no "public purpose" which might justify the impugned order of requisition. This contention of the petitioner must be upheld and, we, therefore, hold that the impugned order of requisition In respect of the properties of the petitioner as set out in the petition was illegal and void.

7. It was next contended that inasmuch as no order of requisition was served on the petitioner, the respondents cannot claim to make possession of the petitioner's land. In view of our finding set out above we uphold this contention.

8. It was also contended on behalf of the petitioner that the order of requisition was nothing but an order of acquisition simpliciter masquerading as an order of requisition. It was contended by the learned Advocate for the petitioner that this order of requisition was merely a shift and contrivance to enable the respondents to evade the provision of the Land Acquisition Act and the order was passed merely for the purpose of passing a subsequent order of acquisition under section 5(3) of the East Bengal (Emergency) Requisition of Property Act, 1948. It is evident that in spite of the fact that the petitioner, under a genuine mis‑apprehension, did not take any step against the impugned order for a long time, the petitioner's land was not utilized by the respondents. This is inconclusive proof of the fact that there was no urgent necessity C for requisitioning the land of the petitioner. This point is covered by a decision of a Division Bench of this Court in the case of Azizul Islam v. The Province of East Pakistan andl others (P L D 1962 Dacca 368). The petitioner will, therefore, also succeed in this) contention.

9. It was argued, in the first place, on behalf of respondents, that the petitioner having accepted a sum of money, as part payment of compensation, with respect to the land covered by the petition, is estopped from challenging the legality of the impugned order of acquisition. The petitioner has averred that he never treated payment of the said sum of money as a compensation for the land so requisitioned. Such sums of money were also paid to many other persons as compensation for ousting them from their homesteads. It was also pointed out by the learned Advocate for the petitioner that the petitioner was always ready and willing to make over his land for the purpose of railway diversion scheme if it was, in fact, required for that purpose. He has argued that he has proved to the satisfaction of the Court that his land as covered in this petition has never been and is not required for the said purpose. It was, therefore, explained on behalf of the petitioner that it was only when there was a further threat to evict the petitioner from his land after the railway lines had been built that he has challenged the order itself. We have already noticed above that the petitioner has categorically stated in his petition that on 17‑2‑62, some men from the office of the Executive Engineer, Railway Diversion Division, C and B, Dacca, required the petitioner to vacate the premises. It is true that the Executive Engineer himself has denied that any such demand was made of the petitioner. We accept the affidavit filed on behalf of the respondents to the extent that the Executive Engineer himself did not ask the petitioner to vacate the land. We do not think that the said Executive Engineer is competent to speak, on behalf of the other officials in the said department that they did not require the petitioner to vacate the said premises. We have no reason to disbelieve the petitioner that some official did require the petitioner to vacate the said premises. Thus in the face of afresh threat of eviction the petitioner immediately proceeded to challenge the impugned order as it was patent to him that his land was never required for the purpose as stated above. In these circumstances the petitioner has given a satis factory explanation for approaching the Court in the manner as he has done in this case. The petitioner has also given a satisfactory explanation as to why he did not so long challenge the impugned order.

10. The question is the petitioner estopped from challeng ing the impugned order of requisition, inasmuch as, he accepted a certain amount of money as part compensation for the land covered by this petition? The petitioner has stated, as set out above, that such money was received by him not as compensation for the said land but an amount which was given to him as well as quite a large number of persons similarly placed to rehabilitate them. According to the petitioner's own showing, he was ready and willing to make over his land to the respondents if it was really required for the purpose for which it was sought to be requisitioned. Having succeeded in establishing that his land was never required for the said railway diversion scheme, we do not think that he is estopped from challenging the order which has no legal basis whatsoever. The land never having been utilized for the purpose for which it was sought to be requisitioned, the petitioner can challenge the validity of the order of requisition, even if it is held that the petitioner accepted the amount of money as part compensation, as he did so under the mistaken impression that his land was genuinely required for the aforesaid purpose. It is, therefore, clear that, in any event, he took the money under a real misapprehension on a misrepresentation on the part of the respondents. As he has succeeded in proving before us that his land was never required for the said scheme, he was not bound to accept the position which never existed, in fact, namely, that the said land was required for railway diversion scheme. He is, therefore, entitled to challenge that the impugned order of requisition was not a valid requisition upon establishing that he was misled by the respondents. The petitioner has, however, given an undertaking to refund the amount of compensation which he has already received.

11. In these circumstances, we make the Rule absolute and the respondents are directed to cancel the impugned order of requisition in so far as it affects the land of the petitioner as set out in this application. The petitioner is entitled to costs of this application, which we assess at five Gold Mohurs. A. S. CHOWDHURY, J.‑

I agree. S. B./K. B. A. Rule made absolute.