P L D 1964 Dacca 24 (PLP)

15. It is interesting to note that, while sanctioning the aforesaid scheme a copy of the scheme, so sanctioned was forwarded to the C. D. A. and also to the Deputy Commissioner, Chittagong, in the following terms: "Copy of land acquisition plan forwarded to the Deputy Commissioner, Chittagong, for information. He is requested to acquire the land and deliver possession of the same to the Chairman, Chittagong Development Authority." This is the genesis of the impugned orders. It would be seen that, upon receipt of the aforesaid sanction, a request was made by the C. D. A. for acquiring the land with a rider added to the effect that it should be done so upon requisition, presumably, on an assumption that such course, namely, such requisition, can be followed by an acquisition of the lands under the Requisition of Property Act. The scheme, as stated in the affidavit‑in‑opposition, was within the Five‑Year‑Plan. It was an urgent one and it had to be worked out in course of the financial year in question. But what baffles one is, that if it had been felt that there was any urgency in the matter, why recourse was taken to the Requisition of Property Act, instead of the Land Acquisition Act, which in this particular case would have provided a speedier method for not merely the acquisition of the lands but also for obtaining possession thereof. As would be seen hereafter, lands cannot be acquired for the C. D. A. under the Requisition of Property Act. Besides it would be noticed at a glance that an order of requisition is subject to an appeal to the Divisional Commissioner and also to revision by the Provincial Govern ment. Under the Land Acquisition Act no such provision for an appeal or revision has been made. That entire Master Plan was made public and was approved by the Provincial Government after considering the objections of the public. The scheme under the Plan had also received the sanction of the Provincial Government. In these circumstances, all that was required to be done was to publish a declaration to the effect that a particular area would be required for a public purpose. Thereafter, upon giving a notice, in due course, under section 9 of the Land Acquisition Act, 1894, possession of the lands could have been taken peremptorily without waiting for an award being made by the Collector. Section 17, of the said Act authorises such a course. Section 17, sub section (1) of the Land Acquisition Act reads as follows "In cases of urgency, whenever the Provincial Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, subsection (1), take possession of any waste or arable land needed for public purpose or for a Company. Such land shall thereupon vest absolutely in the Provincial Government, free from all encumbrances." It is the case of the respondents that the lands requisitioned substantially constitute vacant lands belonging to persons who lead a pastoral life. Except for a few structures thereon, the entire area could have been taken possession of under the aforesaid provisions. Instead of doing that the Office of the Land Acquisition Collector took several months for taking preliminary steps with a view to pass an order of requisition. From the state of the records in the file produced by the learned Advocate‑General, it is obvious that the purpose of passing the impugned order of requisition was only to enable the authorities to acquire the land on the supposition that it could be so done under the Requisition of Property Act. Nothing has been shown as to why possession of the lands should be taken under the Requisition of Property Act. Learned Advocate‑General contended that immediate possession was necessary to make preliminary survey of the scheme upon the land. This contention is not tenable because, in the first place, nowhere the respondents have made out a case that it was necessary to do so and, secondly, because the Land Acquisition Act expressly authorises entry into such land for the aforesaid purposes. We are referring to section 4(2) of the Land Acquisition Act. On the contrary, so far as the records of this case are concerned, nothing, whatsoever, has been said as to the necessity of passing an order of requisition, as distinguished from proceedings for acquisition of the lands under the appropriate law. In these circumstances, we think‑ that the petitioner's contention that the impugned orders have not been made in good faith, has substance, but it is pot necessary for us to decide this point.

16. The most serious objection the impugned orders is, that neither acquisition of the lands for the C. D. A. under the Requisition of Property Act is authorised by law nor has the Deputy Commissioner any lawful authority to requisition the lands in question under the said Requisition of Property Act. It will be seen from what follows hereafter that compulsory acquisition of lands for the C. D. A. must be made under the Land Acquisition Act, 1894. In this connection, we may now set out the provisions of section 74 of the Ordinance, which reads thus: "74. (1) The Authority, may, for carrying out the purposes of this Ordinance acquire, by purchase, lease, exchange or otherwise, any land or interest in land and disposed of by sale, lease, exchange, or otherwise, such land or any interest on such land. (2) The acquisition of any land or interest in land for the Authority under this section, or for any scheme under this Ordinance, shall be deemed to be an acquisition for a public purpose within the meaning of the Land Acquisition Act of 1894 and the provisions of the Act shall apply to all such proceedings. (3) The Provincial Government, if it considers expedient or necessary so to do, may by order in writing, requisition any property for the Authority under the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948, so long as the said Act remains in force."

17. Subsection (3) of the aforesaid section 74 was introduced later by another Ordinance called the Chittagong Development Authority (Amendment) Ordinance, 1960 (hereinafter called the Amending Ordinance). By section 5 of the Amending Ordinance the aforesaid subsection (3) was added to section 74.

18. We may mention that the Amending Ordinance provides that it shall be deemed to have come into force on the 27th of July 1959 (See section 1 (2) of the Amending Ordinance, 1960). Thus, after the introduction of subsection (3) into section 74 of the parent Ordinance, the legal position seems to resolve itself thus:

19. Power has been given under the aforesaid section to the C. D. A. to acquire land by purchase, lease, exchange or otherwise. Subsection (2) provides that the provisions of the Land Acquisition Act shall apply to all proceedings under this section in respect of the acquisition of land or any interest in land for the C. D. A. Thus, by operation of law, whenever land is compulsorily acquired for C. D. A., it must be so acquired under the Land Acquisition Act, as required by subsection (2). The newly added subsection (3) authorises only the Provincial Government to requisition any property under the Requisition of Property Act for the said authority by an order in writing if it considers it expedient or necessary to do so. It should be borne in mind that requisition is no the same thing as acquisition and that what has been authorised is merely an order of requisition of the lands and not that of acquisition under the Requisition of Property Act. Sub- section (3), therefore, confines itself to requisition, as opposed to acquisition, of any property. It is further clear that the said subsection (3) excludes, by necessary implication, any other authority or persons from passing an order of requisition with regard to any property for and on behalf of the C. D. A. In this case it is the Deputy Commissioner of Chittagong, and not the Provincial Government, who passed the impugned orders. The orders, therefore, must be held to be illegal and beyond the powers of the Deputy Commissioner of Chittagong.

20. We are strengthened in the view we have taken above by the fact that the power to acquire any property over and above the power to requisition such property, has been expressly given, in a similar Ordinance, in respect of the development of Khulna, which has become another important port of East Pakistan. In this connection, our attention was drawn by the learned Advocate‑General to the provisions of sub section (3) of section 76 of the Khulna Development Authority Ordinance, 1961. The relevant portion of this Ordinance runs thus "The Provincial Government, if it considers expedient or necessary so to do, may, by order in writing, requisition and acquire any property for the Authority under the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948, so long as the said Act remains in force." It will be thus apparent that when the Legislature wanted, in similar situation to invest the Provincial Government with power to requisition as well as to acquire property under the Requisition of Property Act, it expressly did so. Except for the express conferment of power to the Provincial Government to acquire land under the Requisition of Property Act, subsection (3) of section 76 of the Khulna Development Authority Ordinance is couched in a language identical to that of section 74 of the Chittagong Development Authority Ordinance.

21. From what has been stated above, there can be no manner of doubt that subsection (3) of section 74 of the Chittagong Development Authority Ordinance does not authorise acquisition of lands for the said authority under the Requisition of Property Act (that is under section 5 of the Act). It merely authorises the Provincial Government (and not the Deputy Commissioner) to requisition lands for the C. D. A. under the Requisition of Property Act.

22. The Ordinance has conferred the said power upon a persona designata, namely, a juristic body, that is the Provincial Government. The Deputy Commissioner is incompetent to pass an order of requisition in this behalf. It is not for us to amend the Ordinance so as to enable the Deputy Commissioner to pass an order of requisition in the face of the express provisions of the statute itself.

23. It has been argued that under the Requisition of Property Act the Provincial Government can no longer pass an order of requisition. Our attention was drawn to the fact that the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance, 1960, has replaced and substituted a completely new section 3 into the parent Act. The substituted section 3 of the Requisition of Property Act reads thus : "

3. 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 the proceedings under the Act are started

24. It is patent from the above, that, under the Requisition of Property Act itself, the Provincial Government has no power to requisition any property. But, for the C. D. A., the Provincial Government has been empowered to do so, not under the Requisition of Property Act itself, but under the express provisions of the Chittagong Development Authority Ordinance, 1959. The phrase in subsection (3) of section 74 of the said Ordinance to the effect : "under the provisions of the East Bengal (Emergency) Re quisition of Property Act, 1948" means, "following the procedural machinery provided by the Requisition of Property Act." Even if the provisions of the said subsection (3) have become infructuous now, in respect of the power of the Provincial Government, the Deputy Commissioner has no power to requisition property for the C. D. A.

25. Mr. S. R. Pal and Mr. S. Tshtiaq Ahmed who appeared before us as amicus curiae, further pointed out that the impugned order must be held to be illegal because, even if it is held that an order of requisition in this case could have been passed by the Deputy Commissioner of Chittagong, he could not have made the order, without the approval of the Provincial Government, of the proposal to start proceedings under the Requisition of Property Act. To appreciate this point, one must turn again to the proviso to section 3 of the Requisition of Property Act which has been quoted above. It is obvious that the phraseology of the proviso is rather unhappy. Our attention was drawn to the words "the proposal" which prefix the word shall require the approval of the Provincial Government before proceedings under the Act are started. "The learned Advocate‑General contended initially that the words" "the proposal" refer to the projects mentioned in the first part of the proviso, but, he eventually disowned this line of argument and expressed his agreement with the contention of Mr. Pal. It was contended by Mr. Pal that the words cannot mean anything but a proposal for starting "proceedings under the Act" (which in its context means the East Bengal Requisition of Property Act), in respect of the properties required by the C. D. A. It is significant to note that the word "proposal" has been used in singular number. If the requirement of approval had reference to the projects as mentioned in the initial portion of the proviso, the words should have been "the project" or the scheme" and not "the proposal". If the proviso is read with the substantive part of the section, which authorises the passing of an order of requisition, it would be clear that the assumption is that there must be a proposal requiring lands or properties to be requisitioned under the Act and, as we read the proviso, we have no manner of doubt that the word "proposal" refers to a proposal for starting requisition proceedings in respect of the properties required by the requiring body. An order of requisi tion in respect of a project of the C. D. A. or some such authority must emanate from a proposal or request from the said authority who will have to pay compensation. The Deputy Commissioner even if he can pass an order of requisition for the C. D. A., cannot act on his sole initiative without a proposal or request from the relevant authority to start proceedings under the Requisition of Property Act. It will be remembered that; at least, so far as the C. D. A. is concerned, under the said Ordinance itself every pro ject by the said authority requires the sanction of the Provincial Government and without such sanction no project or scheme can be taken up for execution by the C. D. A. In these circumstances, the C. D. A. cannot propose requisitioning of any property for it with out a sanction of its scheme by the Provincial Government. Having regard to the scheme of the Ordinance and also having regard to the language of the proviso to the newly substituted section 3 of the Requisition of Property Act, there is no escape from the conclusion that the word "proposal" refers to a "proposal" for requisitioning the property under the Requisition of Property Act. It may be asked that, since the Provincial Government is, under the Ordinance, required to sanction the scheme and since it must also pass an order of requisition itself, why should it also be required to approve a proposal for requisition of property? The answer is simple, and it may be stated thus : The sanctioning of a scheme or project does not necessarily involve the approval of a proposal to requisition property for the said project or scheme. The approval of a proposal for requisitioning property does not necessarily mean that the Provincial Government itself must pass the order of requisition. Hence the proviso. It would be seen how meticulously the law has provided that the seal of the Provincial Government must be given to every important step for the execution of the work of the C. D. A. The idea behind all these provisions, that vital decisions with regard to develop ment projects must be taken at the highest governmental level and that they should not be left to a comparatively junior official, namely, the Deputy Commissioner.

26. The learned Advocate‑General has also conceded that the proper construction of the rather clumsily drafted proviso to the newly substituted section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, would be that the proposal to start proceedings with a view to requisition property, in respect of the projects mentioned therein, requires the approval of the Provincial Government before proceedings for such requisition can be started. He has, however, claimed that the Provincial Government has, in fact, given such approval in forwarding its sanction given to the scheme itself. This is not correct. He drew our attention to the forwarding note by the Provincial Government in sending a copy of its sanction granted to the aforesaid scheme. We have quoted the note which makes a request that the land in connection with the scheme may be "acquired". There was no approval of any proposal for requisitioning the land on behalf of the C. D. A. Thus, the impugned orders would also be illegal because of the fact that the Provincial. Government did not give any approval to the proposal for requisitioning of the property on behalf of the C. D. A.

27. As a result of the analysis of section 74 of the Ordinance and of the proviso to section 3 of the Requisition of Property Act, as made above, the cumulative effect thereof may be re stated and summed up thus (i) Whenever a compulsory acquisition of land is made for the C. D. A., it must be done under the Land Acquisition Act, 1894. (See section 74(2) of the C. D. A. Ordinance). Therefore, such acquisition cannot be made under the East Bengal (Emergency) Requisition of Property Act, section 5 of which will not be applicable to the C. D. A. (ii) An order for requisition of property for the C. D. A. can be passed only by the Provincial Government, by an order in writing, by following the procedure laid down in the East Bengal (Emergency) Requisition of Property Act. (See section 74 (3) of the C. D. A. Ordinance). It follows that the Deputy Commissioner cannot pass such an order in respect of the C. D. A. under the Requisition of Property Act, (Expressio unius personae vel rei, est exculslo alterius). (iii) The proposal for starting proceedings with a view to requi sition property for any project or scheme of the C. D. A. must receive the approval of the Provincial Government before such proceedings can be started under the East Bengal (Emergency) Requisition of Property Act, 1948. (See 2 proviso to the newly substituted section 3 of the East Bengal (Emergency) Requisi tion of Property Act, 1948.)

28. In the case before us the Provincial Government has neither approved any proposal for the requisitioning of any property for the C. D. A., nor has it passed any order (in writing or otherwise) for such requisition. The impugned orders have been passed by the Deputy Commissioner of Chittagong, who is in competent to pass them.

29. The petitioner has averred that the respondents have not taken possession of the disputed lands and we accept this contention of the petitioner as his claim in this behalf is highly probable in the light of the facts and circumstances of this case. The respondents may have taken a mere symbolic posses sion.

30. This disposes of all the points that were mooted and canvassed before us on behalf of the parties in this case.

31. The result, therefore, is, that we make the Rule absolute and direct the respondents to cancel the impugned orders of requisition in respect of the petitioner's properties mentioned in the petition relating Pre. L. A. Case No. 73 of 1961‑

62. The petitioner is entitled to the costs of this application which we assess at seven Gold Mohurs. SALAHUDDIN AHMED, J.‑I agree. S. B./K. B. A. Rule made absolute.