P L D 1965 Dacca 115 (PLP)

M. R. KHAN, J.‑These nine petitions under Article 98 of the Constitution involving common questions of law and facts have been heard together, and this judgment will dispose of all these petitions. In these petitions, the validity of the order of requisition made by the Additional Deputy Commissioner, Dacca, under section 93‑A of the East Bengal Town Improvement Act, 1953 (hereinafter called the Act), in respect of the lands mentioned therein, has been challenged by the petitioners. The order of requisition in each case has been attached on a number of grounds. On each petition, a separate rule was issued on the respondents. The rules have been opposed by the respondents 1‑3 by filing a joint affidavit‑in‑opposition and by the respondent No. 4 by a separate affidavit‑in‑opposition, in each case. The contentions and allegations made in the petitions have been denied in the affidavits‑in‑opposition, and the respondents have averred that the lands of these petitioners were validly requisitioned for a valid purpose by the officer duly authorised under the law in that behalf. A large number of grounds were taken in each petition, but only some of them have been pressed before us by Mr. Siddique Ahmed Chowdhury, learned Advocate for the petitioners of all these petitions. We shall deal with them one by one. The first point urged by Mr. Siddique Ahmed Chowdhury is that the order of requisition made by the Additional Deputy Commissioner, Dacca, is not a valid order inasmuch as he is not empowered under the law to make an order of requisition under section 93‑A of the Act. Mr. Chowdhury admits that under the provision of subsection (7) of section 93‑A, the power of making requisition under the said section has been delegated to the District Magistrate and Additional District Magistrate, Dacca. His contention, however, is that the power, in the instant cases, has been exercised not by the District Magistrate or the Additional District Magistrate, Dacca, but the Additional Deputy Commis sioner, Dacca. This contention does not appear to be of any substance. It appears from the Notification No. G. A. 1‑339/60 1887, dated the 24th November 1960, published in the Dacca Gazette, Extraordinary, of the said date that the Provincial Government re‑designated the District Magistrates and the Additional District Magistrates as Deputy Commissioners and Additional Deputy Commissioners, respectively. It further appears that by two other notifications namely, Notifications Nos. GAI‑339/60‑1888 and 1889, dated the 24th November 1960, the Governor, in exercise of the powers conferred on him by subsection (2) of section 10 of the Code of Criminal Procedure, appointed the Deputy Commissioners in the Districts of East Pakistan to be the Magistrates of the First Class and District Magistrates in their respective districts and further appointed the Additional Deputy Commissioners in the districts of the Province to be the Magistrates of the First Class arid Additional District Magistrates in their respective districts. These notifications clearly show that the District Magistrates and the Additional District Magistrates who were empowered under subsection (7) of section 93‑A to requisition property were re‑designated as Deputy Commissioners and Additional Deputy Commissioners, respec‑ A tively. Therefore, the validity of the order of requisition made by the Additional Deputy Commissioner, Dacca, in the instant cases, unless it is otherwise invalid, cannot be questioned only on the ground that the original delegation was in favour of the District Magistrates and the Additional District Magistrates, Dacca. The next point raised by Mr. Chowdhury is that even if the Additional Deputy Commissioner, Dacca, is empowered under subsection (7) of section 93‑A to requisition the properties, the requisition order made by him is not valid inasmuch as the opinion as to the necessity for, or expediency of, requisition was formed by him and not by the Government as required under subsection (1) of section 93‑A. In other words, according to the learned Advocate, the opinion as to the necessity for requisition must be formed by the Government itself and the duty of forming such opinion cannot be delegated. We are unable to accept the soundness of the argument advanced by the learned Advocate. The delegation under subsection (7) of section 93‑A was made by Notification No. 13236 Reqn., dated the 17th August 1959, published in the Dacca Gazette, Extraordinary, of the said date. The said Notification runs thus: "In exercise of the power conferred by subsection (7) of section 93‑A of the Town Improvement Act, 1953 (East Bengal Act XIII of 1953), the Governor is pleased to direct that the powers conferred and the duties imposed on the Provincial Government by subsections (1) and (3) of section 93‑A of the said Act shall be exercised and discharged also by the District Magistrate and the Additional District Magistrate, Dacca." It appears that all powers conferred and duties imposed on the Provincial Government by subsections (1) and (3) of section 93 were delegated by the said notification. To form an opinion as to the necessity for, or expediency of, requisition for any of the purposes mentioned in section 93‑A(1) is a duty imposed on the Provincial Government. Therefore, the delegation made by the said notification includes the duty of forming such an opinion by the delegate as and when he proceeds to make an order of requisition under section 93‑A. Hence, it is not acceptable to us that it is for the Government alone to form an opinion as to the necessit for requisition and the delegate can only make the order o requisition on the basis of the opinion formed by the Government. The third point urged is that the notices of requisition issued in the present cases contained not only the order of requisition but also a direction to deliver possession of the properties requisitioned. This, according to the learned Advocate, is contrary to law. It is submitted by him that the service of the order of requisition and the direction under subsection (3) of section 93‑A to give delivery of possession cannot be simultaneous. According to him, the direction to give delivery of possession under the said subsection (3) can be made only after the order of requisition has been served. No doubt, subsection (3) provides that when the order of requisition has been served under sub section (2), a direction to give delivery of possession may be issued. But, the giving of such a direction in the requisition notice itself, in our opinion, does not go to the root of the matter, C for, this being a matter of procedure cannot affect the validity of the requisition if it is otherwise valid. This point was not, however, specifically taken in any of the petitions under consideration. The fourth point urged by the learned Advocate is that in order to be valid the requisition order and the notices of requisition must be signed by the requisitioning officer himself. The learned Advocate does not dispute that the requisition order in these cases was made by the Additional Deputy Commissioner, Dacca. His contention is that while the District and Additional District Magistrates of Dacca are empowered to make requisition, the Additional Deputy Commissioner is not. But this point has been already dealt with and found to be without any substance. It appears that the Additional Deputy. Commissioner of Dacca, who made the order of requisition himself signed also the requisition notices served on the petitioners. Thus, there is no substance in this contention as well. Incidentally, this point also was not specifically taken in any of the petitions. The learned Advocate next submits that when the intention of the requisitioning authority from the inception was to acquire the properties permanently, resort to requisition under section 93‑A was unwarranted and the properties should have been straightway acquired under the Land Acquisition Act, as required by the provision of' section 79 of the Act. As section 93‑A provides for payment of comparatively less compensation, it is further submitted by the learned Advocate that the requisition is mala fide as it will deprive the petitioners of adequate compensation payable under the Land Acquisition Act. It, no doubt, appears from the requisition notices that the ultimate object of the requisition is to acquire the properties permanent for residential purposes of the D. I. T. But there is no prohibition in the Act that if a land is ultimately required permanently, the same cannot be first requisitioned with the object of its future acquisition. On the contrary, section 93‑A itself provides that a land requisitioned under the said section can be acquired subsequently. In a similar case under the East Bengal (Emergency) Requisition of Property Act, their Lordships of the Supreme Court have held that requisition of a property with the ultimate object of its permanent acquisition is valid. That is the case of Province of East Pakistan v. Abdus Sobhan Sowdagar (P L D 1964 S C 1). We do not see any reason why the same view should not equally hold good in this case. It is true that requisition of the properties under the Land Acquisition Act in accordance with the provision of section 79 of the Act might have given the petitioners an opportunity of getting compensation higher than what is payable under section 93‑A. But, that does not necessarily mean that the requisition under section 93‑A, instead of having recourse to the provision of section 79 of the Act, is mala fide. Section 93‑A appeared to have been subsequently incorporated in the Act with a view to enabling the Government to requisition and acquire properties expeditiously for the specific purposes mentioned in the subsection (1) of that section. The Government or its delegate is, therefore, entitled to have recourse to the provision of section 93‑A instead of invoking the powers available E under other provisions of the Act. We do not, therefore, find any substance in the contention that the requisition is unwarranted by law or that it is a mala fide one. Mr. Chowdhury then submits that the purpose for which the requisition has been made is not a public purpose. In connection with this point, paragraph 13 of Petition No. 211 which is common to other petitions, is relevant, and it runs as follows: "That hundreds of people are being deprived of their residential houses like your petitioners by the above requisition order in question and the said lands will be allotted in favour of the well to do people and the rich people will be made richer at the cost of the poor people like the petitioners and the poor people will be made poorer for the purpose of carrying coal to New Castle. As such the requisition in question is mala fide, illegal and contrary to the principles of natural justice and the requisition in question cannot be treated as "for public purpose." Thus, the petitioners have, in substance, stated that while the purpose is apparently a public purpose, it cannot, in view of the apprehension expressed in the said paragraph 13, be treated as a public purpose. In the said paragraph, it has been assumed what may happen in future. But the point raised cannot be decided having regard to future contingencies. Even otherwise, the question of public purpose does not arise in this case in view of the provision of subsection (1) of section 93‑A reads as follows: "If in the opinion of the Provincial Government it is expedient or necessary so to do, for the construction or betterment of roads, waterways or any other communications, and the developments of areas for residential, commercial, industrial purpose or for establishment of Parks, playing fields and open space for the relief of congestion in any area to which this Act extends the Provincial Government may, by order in writing, requisition any property for the Board and make such further order as may appear to the Government necessary or expedient in connection with such requisition." It is clear that the power to make requisition under subsection (1) of section 93‑A is limited, for, the requisition may be made only for any of the purposes specified therein and for no other purpose even if that be a public purpose. In these cases, the requisition was made for residential purpose which is one of the purposes specified in section 93‑A(1). Mr. Chowdhury frankly concedes F that as the expression "public purpose" does not occur in sub section (1) of section 93‑Aand as the purposes for which requisition may be made are specified therein, it is a bit difficult for him to substantiate his contention that the purpose for which the requisition has been made in this case is not a public purpose. However, the purpose for which the requisition has been made being one of the purposes specified in section 93‑A(1), we think that the requisition has been made for a valid purpose. The next submission of Mr. Siddique Ahmed Chowdhury is that the requisition is bad in law inasmuch as the provision of section 42 of the D. I. T. Act regarding re‑housing of affected persons has not been complied with. We think that the provision of section 42 is not attracted in these cases. Section 42 and for that matter, the other provisions of Chapter III of the Act, are applicable when an improvement scheme has been framed and the same is approved by the Government, but those provisions including the provision of section 42 do not call for implementation in a case where the requisition is made by the Government itself or its delegate under subsection (1) of section 93‑A for any of the purposes specified in that subsection. Section 93‑A is self contained in all respects and was subsequently incorporated in the Act apparently with the object of speedy requisition and acquisition of property for the limited purposes mentioned therein, without having any reference to any improvement scheme framed and approved under Chapter III of the Act. Thus, the exercise of the powers conferred by the self‑contained section 93‑A is not subject to the other provisions of the Act. Hence, compliance with the provision of section 42 is not a condition precedent to the exercise of the power of requisition available under subsection (1) of section 93‑A. The last ground taken by Mr. Chowdhury is that there exist a mosque and an Idgah on C. S. Plot No. 2111 which is the subject matter of Petitions Nos. 240, 248 and

249. This is not denied in any of the affidavits‑in‑opposition. The Act forbids requisition of any place of worship. Therefore, the requisition of the said C. S. Plot must be held to be illegal. Thus, all the points urged on behalf of the petitioners in the instance cases, except the contention with regard to requisition of C. S. Plot No. 2111, are found to be untenable. Mr. Siddique Ahmed Chowdhury has drawn our attention to paragraphs 9 and 10 of the affidavit‑in‑opposition of the D. I. T. (respondent No. 4) wherein an assurance has been given to the effect that in the matter of allotment of lands preference will be given to the affected persons. It appears from the said two paragraphs that the assurance that has been given therein is clear and unambiguous, and it is expected that the D. I. T., having regard to the responsible position it occupies, will honour its assurance as far as practicable. In the result, we discharge all the rules except that the rules issued in Petitions Nos. 240, 248 and 249 are made absolute in part and it is declared that the requisition of C. S. Plot No. 2111 belonging to the petitioners of the said petitions is illegal and of no legal effect. We make no order as to costs. K. M. HASAN, J.‑I agree. K. B. A, Rules discharged.