P L D 1964 Dacca 79 (PLP)

(c) We were next asked to infer mala fides on the part of the respondents from the fact that a few months after the cancella tion of a previous order of requisition the present order, which has been challenged before us, was passed in respect of some of the properties of the petitioner involved in this case. 1 t would appear that although some of the properties, which are the subject‑matter of the present order of requisition, arc the same as those involved in the previous order, the properties are, however, not entirely identical. Secondly, the requiring bodies in the two cases are different, with regard to the previous order, which has been cancelled, the requiring body was one W. Rahman Jute Mill Limited, in the present case the requiring body is the P.

1. D. C. It was again pointed out by the learned Advocate‑General that the officers concerned representing the requisitioning authority as well as those representing the Province of East Pakistan are totally different from those who passed the previous order. This is, therefore, no evidence of mala fides on the part of respondents. (d) It was also urged, on the basis of the fact that a fraction of the properties which was requisitioned, under the impugned order was subsequently released, that the impugned order was malafide. The argument in this behalf appears to be as follows: Since on subsequent investigation it was found necessary to release some properties from requisitioning, it would necessarily follow that the petitioner's properties might have also been released, and this circumstance will show that the impugned order is mala fide. We fail to see the logic of this argument which appears to us to be wholly untenable.

10. Mr. Abdullah has also tried to establish that the impugned order is mala fide by saying that although vast tracts of land were available in Chandpur, the respondents individually chose the properties which have now been requisitioned. It was furthermore argued that the impugned order was male fide because the requisitioning authorities did not consider the minimum requirement of land for the purpose of setting up two jute mills and had, in fact requisitioned properties far in excess of the requirement of the said scheme. This argument was sought to be supported by showing that some of the lands in the present case were subsequently released. On the point that there were other lands available in Chandpur, the answer given on behalf of the respondents is that on receipt of the aforesaid letter from the P. I: D. C., a Site Selection Committee was constituted, consisting of the Deputy Commissioner of Comilla, the Sub‑divisional Medical Officer, Chandpur and the Executive Engineer, C and B, Comilla, and that the said Selection Committee went into the question as to what land would be most suitable for the requirement of the P. I. D. C. They had further investigated the case as to what would be the case as to what would be the minimum requirement of the land necessary for the purpose of setting up two jute mills as mentioned above. Having gone into those questions, the Selection Committee gave a report‑ As a result of the proper and on further enquiries which form part of the records of the case, the Additional Deputy Commissioner was fully satisfied that the properties requisitioned constituted the most suitable site for the setting up of the said jute mills and furthermore, that no other suitable land was available for the said purpose. The Additional Deputy Commissioner was further satisfied as to the minimum requirement of land by the requiring body and, on the report made by the Selection Committee, the area of the land was modified in the sense that the requiring body wanted 100 acres of land whereas 95.70 acres were eventually allowed by the Additional Deputy Commissioner.

11. While on this point we may dispose of the only other contention advanced on behalf of the petitioner, namely, that the impugned order is male fide because the requisitioning authority, namely, the Additional Deputy Commissioner, Comilla, did not apply his independent mind to questions which he should have considered before passing the . impugned order. The learned Advocate‑General has drawn our attention to the file of the requisitioning authority in this behalf. The letter on behalf of the P. I. D. C. as set out above, was received at the office of the Addi tional Deputy Commissioner and on the 9th of September 1961, the following order was passed by an Additional Land Acquisition Officer, Comilla : "Seen Memo. No. P.J.24/2‑P. II, dated 8‑9‑61 from the Deputy Secretary, P. I. D. C., Dacca forwarding a plan in triplicate with a request to requisition and acquisition expeditiously approximately 100 acres of land in Mouza Chandpur Munici pality J. L. No. 91 P. S. Chandpur Dist. Comilla for establish ment of 2 Jute Mills of 250 looms each by the P. I. D. C. under the scheme approved by the Central Government for purposes of promoting Jute Industry in the Province of East Pakistan. Discussed with D. C. (C). The site will be selected on 12‑9‑61 by the Site Selection Committee. Put up with the proceedings of the Site Selection Committee when received. (Sd.) Illegible. Addl. Land Acquisition Officer, Comilla." On the 13th of September 1961, a further order was recorded by the said officer thus "Seen the proceedings of the Site Selection Committee. The site has been selected by the Site Selection Committee as shown in the land plan, with some modifications as contained in the resolution. The office copy of the site plan has accordingly been corrected and signed by the representative of the P. I. D. C. Put up the record before D. C., Comilla for favour of his perusal and order." On the 15th of September 1961, the Additional Deputy Commis sioner, Comilla, recorded the following order "Seen the record and examined all the connected papers and I am satisfied that the lands are required for a public purpose viz., for establishment of two Jute Mills and thus promote Jute Industry in this part of the Province and I am also satisfied that the quantity of lands comprising an area of 95.70 acres, more or less, selected by the Site Selection Committee, is the barest necessity for the establishment of two Jute Mills of 250 looms each for the present. Kgo., Mr. S. Rahman to make preliminary enquiry, collect particulars of the lands and put up with a report." Furthermore, on the 20th of September 1961, the Additional Deputy Commissioner passed the following order "Seen the Bujarat papers prepared by the Kgo. and also his report. It appears from his report that there is no objection against requisitioning the lands (95.70 acres, more or less), from religious point of view and as there is no other suitable vacant lands, put up requisition order at once in the prescribed Form A

12. Eventually on the 2nd of October 1961, the impugned order was passed. Along with these order‑sheets there is a voluminous file in which all sorts of queries appear to have been made by the requisitioning authorities and wherein there are complete materials on which the Additional Deputy Commissioner could be satisfied, both with regard to the purpose of the impugned order as well as the necessity for making the same. When he started in the order recorded by him on the 15th of September 1961, that on an examination of all the connected papers, he was satisfied that the lands were required for a public purpose, namely, for establishment of two jute mills, and that he was also satisfied that the quantity of land comprising an area of 95'70 acres as selected by the Selection Committee was the barest necessity for the establishment of two jute mills, there is no reason for us to hold that he did not satisfy himself on the aforesaid points.

13. With regard to the other points indicated above, we would like to add that the affidavits‑in‑opposition filed on behalf of the respondents are materially corroborated by the records that have been produced before us and, in these circumstances, we have no hesitation to accept the statements made on behalf of the respondents in their affidavits‑in‑opposition in preference to those made by the petitioner in the petition as well as in the other affidavits submitted by it. We, therefore, hold that the petitioner had not succeeded in establishing before us that the impugned order is mala fide.

14. We may, in passing, state that, with regard to the fact that no compensation has been paid to the petitioner in respect of the requisition of land by the previous requisition order which has been set aside by this Court, it is sufficient to state, as argued by the learned Advocate‑General, that the quantum of compensa tion has not yet been determined.

15. We will now turn to a number of technical objections, described as such by Mr. Abdullah, which have also been vigorously mooted before us. It was contended that the impugned order was void and illegal because it was not made in the prescribed Form A in accordance with rules framed under section 18 of the East Bengal (Emergency) Requisition of Property Act, 1948. Rule 3 of the said Rules, i.e., the East Bengal (Emer gency) Requisition of Property Rules, 1948 reads as follows "An order of requisition referred to in subsection (1) of section 4 shall be in Form `A'."

16. Form A has been set out in a schedule and printed in very large number, and it has been hitherto the practice to serve an order of requisition in Form A as required by the said rule. In 1960, several rather far reaching amendments were made in respect of the provisions of the aforesaid Act. Section 3 was completely replaced by another section, namely, section 4 of the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance, 1960, with the result that, whereas section 3, as it originally stood, empowered the Provincial Government to pass an order of requisition if satisfied that it was essential to do so for certain purposes, the amended section 3 has taken away such power from the Provincial Government and has exclusively conferred the same upon the District Magistrate and/or Deputy Commissioner, Additional Deputy Commissioner and certain others. Some portion of Form A, as it originally stood, reads as follows :‑ "Whereas in my opinion it is expedient and necessary in the public interest to requisition the movable/immovable property described in Schedule A below/annexed to this order Now, therefore, in exercise of the powers conferred by section 3, read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948, (East Bengal Act XIII of 1948), which powers have been delegated to me by the Provincial Government, I requisition the said property and hereby make the following orders : . . . "

17. It is evident that the powers exercised by a Deputy Commissioner or an Additional Deputy Commissioner are no longer delegated powers given by the Provincial Government. The amended section 3 specifically empowers such officer to pass such order of requisition. In the light of the aforesaid amendment, the said Form A is no longer applicable in its entirety. What the Additional Deputy Commissioner has done is that he has faithfully followed Form A striking out portions which are no longer valued and substituting words which will import some senses into the form. But for such slight alterations and varia tions, the order served on the petition is substantially the same as in Form A. It is true that the original Form A can no longer govern the provisions of the amended section 3 of the Act ; if so, the result would be that at the present moment there is no suitable form which is applicable to the making of the order under section 3 and which will be applicable to an order of requisition to be served under subsection (1) of section 4 of the said Act. The Additional Deputy Commissioner was, therefore, free to adopt a form which would be suitable for the purpose of carrying out the scheme of the Act. It was pointed out by the learned Advocate‑General that the aforesaid section 18 of the East Bengal (Emergency) Requisition of Property Act, 1948, itself empowers the Provincial Government to frame rules, for carrying out the purposes of the Act. He, therefore, rightly contends that the Form A in its entirety cannot be taken as a part of a rule framed under section 18 which is still good. The slight alteration made by the Additional Deputy Commissioner was really done with a view to carry out the purposes of the Act and not in breach thereof. In any event, those insignificant alterations have no in any manner misled the petitioner. Even if it is considered, without our deciding so, that the Form in which the order was served on the petitioner was irregular, such irregularity being insignificant and not having caused the slightest prejudice to the petitioner, it cannot be said to have vitiated the order itself.

18. The next "technical" point that was argued before us is, that the impugned order is illegal inasmuch as in respect of one of the plots specified in the said order the boundaries were not stated. On an examination of the records it appears that this point is as frivolous as the point which we have just disposed of. It was pointed out on behalf of the respondents that the properties of the petitioner, which were requisitioned, were fully described by their plot numbers except with regard to one where the entire plot number did not cover a particular portion of the property of the petitioner. In any event, on a reading of the notice served on the petitioner as a whole, it cannot be said that the petitioner was misled in any manner whatsoever. In so far as it sought to convey to the petitioner what were the properties which were requisitioned the impugned order was a perfectly intelligible document. The petitioner fully understood what properties were requisitioned and, on that footing availed itself of the remedy by way of an appeal to the Commissioner of Chittagong. Similarly, the various other steps which the petitioner had taken to obtain an interim order staying the operation of the impugned order, show that the petitioner was never in doubt as to what were the properties which were requisitioned by the impugned order. There is, therefore, no substance in this point as well.

19. Mr. Abdullah has argued that the impugned order is also bad for yet another technical reason, namely, that the file shows that there is one single order covering all the properties which are the subject‑matter of the impugned order. He has drawn our attention to the aforesaid East Bengal (Emergency) Requisition of Property Rules, 1948, rule 2 of which reads as follows "2. (1) A separate proceeding shall be started with each proposal for the requisition of any property under the Act. (2) " In this case it will appear that there was a single proposal which was made in the letter addressed on behalf of the P.

1. D. C. to the Deputy Commissioner of Comilla. Under that proposal the Deputy Commissioner was requested to requisition land comprising an area of 100 acres for the said Corporation in order to enable the requiring body to establish two jute mills. The proposal was one and the property was one. In the process of requisition it transpired that the property required by the said Corporation belonged to a number of persons. On a proper consideration of the requirement of the said Corporation, the Additional Deputy Commissioner passed an order with respect to land measuring 95.70 acres. As the said land belonged to a large number of owners and/or occupiers, separate notices under section 4(1) of the East Bengal (Emergency) Requisition of Property Act, 1948, were served on the respective owners and/or occupiers of the land. Mr. Abdullah has argued that in this case since there were about 290 owners and/or occupiers, there should have been 290 separate proceedings with regard to this order of requisition and similarly 290 separate orders should have been recorded. Reductio ad absurdam the fallacy of this argument is apparent.

20. Mr. Abdullah has tried to borrow light for this rather ingenuous argument from certain observations made by this Court in the Kumudmi Welfare Trust of Bengal's case and relies on a passage at page

700. We do not think that the aforesaid case supports the argument which was made by Mr. Abdullah on this point. What happened in the aforesaid case was that one single order, which included such properties as were not the subject -matter of the requisition order in question was passed. Moreover, some of the properties which were covered by the impugned notices were not covered by the order as passed. On the aforesaid grounds it was contended that there was no application of the mind of the District Magistrate in passing the impugned order. The defect in the order as passed was noticed by the Court which incidentally made the following observations "However, this typed order read with the copy of the filled up prescribed form for requisition and a report of the Land Acquisition Officer, dated 9‑2‑61 kept in the file reveals that it is an omnibus order requisitioning not only the properties of the petitioner but also the properties belonging to many others, including some properties belonging to the Government itself and the Chandpur Municipality and also certain properties which were already subject to previous requisition. This disclosed not only lack of proper application of mind by the requisitioning authority but also non‑compliance with the provisions of the Act which envisages the making of a separate order of the requisition in respect of the property of each owner and the service of that order on him. The said omnibus order does not include the petitioner's C. S Plots 873, 850, 923 and 938, nor does any other order appear on the file to show the requisition of the said four plots by the District Magistrate. Yet the Land Acquisition Officer issued the order (Annex. A‑I) on 8‑12‑60 on behalf of the District Magistrate, requisitioning those four plots. This indicates that a formal order of requisition by the District Magistrate on the file itself was not considered essential and that requisition order in the prescribed form was considered sufficient." The aforesaid observations do not lend support to the contention of Mr. Abdullah which is against the express provisions of rule 2 which we have quoted above. It is absurd to think that, with regard to a single proposal for a requisition a plot of land measuring 20 bighas if there happens to be 100 proprietors each owing 4 kathas, 100 requisition proceedings have to be started and 100 separate orders have to be made.

21. We will next refer to the last and the only other point which was mooted before us. It has been contended, relying on a decision of this Court in the case of Abdus Sobhan Sowdagar v. Province of East Pakistan (1962 D L R 486), that the present requisition is bad inasmuch as it was passed merely for the purpose of enabling the requisitioning authority to acquire the land in question under the East Bengal (Emergency) Requisition of Property Act 1948. In the aforesaid case this Court has held that although under the East Bengal (Emergency) Requisition of Property Act, 1948, acquisition of requisitioned property was authorised, the converse proposition, namely, requisition merely to enable an acquisition was not sanctioned. In the present case before us on behalf of respondent No. 4 a further affidavit‑in‑opposition has been filed, paragraph 2 of which reads as follows "

2. That the specific immediate necessities of the proforma respondents for which the properties of the petitioners were requisitioned under the impugned order of requisition are as follows : "(1) The storing of a huge stock of cement, lime, bricks, sand and Khowa" (brick chips) required for the purpose of constructing buildings for the Mills and other structures annurtaining to the Mills. For storing machineries worth about a crore of rupees purchased for the purpose of setting up these Jute Mills. Orders were placed for these machineries is October 1960 and at the time the premises were requisitioned the machineries were about to arrive. The delivery of these machineries started in December 1961, and about 80 % of the machineries have already arrived. A huge bulk of these machineries are at present lying in open places or under flimsy and nominal shelter on the river side. That the premises requisitioned under the impugned order of requisition contains godowns for stocking these materials and machineries and also contains structures which car? accomodate the staff to guard these materials and machineries." The other respondents have stated, in their further affidavit‑in opposition, thus :‑ " . that the correct facts are that there was urgent and immediate necessity for requisitioning the land: that ‑ the P.

1. D. C. by their Memo. No. Pj‑24/2 P. II requested the Deputy Commissioner, Comilla, for expeditious action inasmuch as plants and machinery worth one ‑gore of rupees for which orders had been placed by the P. I. D. C. and payment for which had partially been made out of funds allocated by the Central Government were on their ways : that a true copy of the said letter is filed herewith and marked as Annexure "A."." In paragraph 4 of the aforesaid affidavit it has further been stated as follows "That the materials were to reach by the month of November, and provision for their housing had to be made before‑hand that delivery of these plants and machineries had in fact started in December 1961, and about 80% of the machineries had already arrived and a huge bulk of these machineries are at present lying in open places on the river side : that storing these costly machineries worth about a crore of rupees purchased for the purpose of setting up the two jute mills was undoubtedly an immediate and urgent one which necessitated the taking away of the possessory right of the petitioner immediately in his lands in question so that huge and costly machineries could be housed in the vacant and unused godowns standing on the petitioner's land; these costly machineries were already on the high seas and provision for storing these materials soon after their arrival was an impelling necessity and had to be made before they actually arrived . . . . ."

22. The aforesaid averments are borne out by the records o this case and we have no hesitation in accepting the same. From the above it would be clear that, although the respondents were fully conscious of the fact that the properties in question had to be subsequently acquired, they were faced with a compelling necessity for immediate possession of the lands for purposes set out above. In these circumstances, it is clear that the purpose of the order of requisition was to meet an emergent and imperative necessity which arose out of the exigencies of the situation. We cannot, therefore, hold that the impugned order of requisition is bad on this count. This disposes of all the points that were canvassed before us. No other point was pressed or mooted in this Court. The result, therefore, is, that for reasons stated above, the Rule is discharged without any order as to costs. SALAHUDDIN AHMED, J.‑I agree. s. B./K. s. A. Rule discharged.