P L D 1963 Dacca 136 (PLP)

I requisition the said property and hereby make the following orders: ‑ Name, Kumudini Welfare Trust, Bengal, Trustee Mr. R. P. Shaha of (Address) Chandpur. The owner/occupier of the said property, (a) shall place the said property at my disposal and under my direct control with immediate effect and deliver possession thereof on the said date to L.A.O. (C) who has been authorised to 'receive it on my behalf ; (b) shall furnish to the said District Magistrate, Comilla such information in his/her/their possession relating to the said pro perty as said District Magistrate Comilla may by an order in writing specify ; (c) shall on or before 1952 remove from the said property the movable properties as specified in the Schedule B below/ Anaexed to this order or any other movable properties which may be specified in an order in writing by the said District Magistrate, Comilla. (d) shall not dispose of the said property in any way which may disturb or interfere with the use or the dealing of the said property in the manner desired by me so long this order remains in force. Schedule A. Monza Chandpur Municipality JL No. 91 P. S. Chandpur Entire C. S. Plots Nos. 904, 908, 907, 902, 2899, 893, 883, 897, 899, 900, 906, 901, 896, 889, 909, 910, 882, 2914, 880, 881, 892, 884, 887, 890, 2915, 2916, 891, 888, 885, 886, and part of Plot No. 905 with Katcha and pucca structures and trees etc. Schedule B. (Sd.) (Illegible), Date 9‑11‑1960. for District Magistrate, Comilla, (Seal). 10‑11‑60." It appears that the said order was made by some person (whose signature is illegible) "for District Magistrate, Comilla". Since the amendment of the Act on 31‑1‑60 by Ordinance No. III of 1960 the power to requisition any property for a public purpose or in public interest vests in the District Magistrate therefore Mr. Suhrawardy contends that the said requisition order having been made by some unidentified person for and on behalf of the District Magistrate is wholly un-authorised and is, therefore, void ab initio. This inherent defect in the requisition order was point ed out to us on the date of commencement of hearing of this writ petition on 24‑3‑61 and it was several days thereafter that an affidavit was sworn and filed by the District Magistrate of Comilla (this affidavit was sworn on 27‑3‑61 and filed on the day follow ing) with the intent to establish the validity of the order of requi sition, paragraphs 2 and 3 of this affidavit which are material for the purpose are reproduced below: --‑ "(2) That ever since the amendment of the East Bengal (Emergency) Requisition of Property Act, 1948 by East Bengal (Emergency) Requisition of Property (Amendment) Ordinance 1960 (Ordinance No. III of 1960), the power of requisition has been vested in the District Magistrate (now Deputy Com missioner) and since then I as the District Magistrate have been exercising the power of requisition. (3) That in the instant case the P. I. D. C. sponsored the establishment of a Jute Mill at Chandpur and submitted their proposal with a plan of acquisition of lands for the purpose and that thereupon, I applied my mind to the case and made the requisition order in question. That on my authority and as Deputy Magistrate and Land Acquisition Officer, Comilla, Mr. S. Islam signed the notice form under section 3 of the Act and did other acts in connection therewith. To him has been delegated the powers by me as required by law." Relying on this affidavit Mr. Khondkar, learned Advocate for the respondents 1‑3 argues that the requisition order was made on the relevant file by the District Magistrate himself, but the notice of such requisition was signed by Mr. S. Islam, a Deputy Magistrate on the strength of the power delegated to him by the District Magistrate. In other words, Annex. `A' reproduced hereinbefore, according to the learned Advocate, is not the requisition order but is merely a notice of the requisition already made by an order on the file. According to section 3 of the Act as substituted by Ordinance No. III of 1960, read with section 18(2)(c) and rule 3, of the Rules made there under, an order of requisition shall be in writing and shall be made in the prescribed form A. Next, section 4 (1) of the Act provides that when an order of requisition has been made under section 3, the order itself shall be served on the owner of the property. In the instant case, Annex. `A' to the writ petition was drawn up in the prescribed Form A and this very thing was served out he petitioner. Moreover, Annex. `A' itself recites what it is an order of requisition. The Act does not provide for the service of a separate notice of the order of requisition that it provides is that the very requisition order made in the prescribed Form A shall be served on the owner. This is what was exactly done in this case. Thus, it is clear that Annex. `A' which was served on the petitioner is itself an order of requisition and not a notice of requisition as contended by Mr. Khondkar. Consequently, the averment of the District Magistrate in his affidavit that he himself made the order of requi sition and Mr. S. Islam, a Deputy Magistrate merely issued the notice of requisition appears untenable. It is true, in pursuance of section 2(i) of the Act as inserted by Ordinance No. III of 1960, the District Magistrate can delegate to a Deputy Magistrate his powers under the Act, including the power of requisition. But there is no provision in the Act where under the District Magis trate can authorise another even to sign a requisition order for and on his behalf. Except the District Magistrate's affidavit, there is nothing else on record to show if any power was at all delegated to Mr. S. Islam. Even the statement of the District Magistrate in this regard, namely, "To him has been delegated the power by me as required by law" is vague and indefinite; the affidavit does not state what specific powers, if any, have been delegated to Mr. S. Islam. The alleged delegation, even if true, does not show if the District Magistrate authorised Mr. S. Islam also to sign requisition orders for and on his behalf. Even if it does, such delegation was wholly un-authorised, the same not being permitted by any provision of the Act. Again, if the alleg ed delegation included also the power of requisition Mr. S. Islam himself would have then made the requisition order in the exercise of his delegated power instead of signing it for and on behalf of the District Magistrate. However, it is nobody's contention that Mr. S. Islam himself made the requisition order on his own authority under any delegation. Thus, it appears that it was Mr. S. Islam who made the requisition order (Annex. `A') for and on behalf of the District Magistrate without any authority. That being so, the said requisition order is unauthorised and is. therefore, illegal and void. For the same reason, the second requisition order (Annex. A‑1) which too was made for and on behalf of the District Magistrate without any authority, is equally F illegal and void.

8. When a statute invades a private right, the relevant pro vision thereof should be construed rigidly. It has been observed by their Lordships of the Supreme Court in another case of Kumudini Welfare Trust (P L D 1960 S C 121) that "since sequestration of property is involved it is essential that the proceedings under the law authorizing such sequestration should be held in strict conformity with the law". The principle underlying this observation of their Lordships equally applies to this case, because the Act provides for compulsory requisition and acquisition of private property. Therefore, when the Act expressly requires that the requisition order shall be made in the prescribed Form A and that that order itself shall be served on the owner, the requirement of the Act will not be satisfied if the requisitioning authority merely records an order of requisition on the file. Even if the order of requi sition be not made strictly in accordance with the prescribed form, the making of the order by a person duly empowered to F do so, and the service of that order on the owner is indispensable for its validity and effectiveness. If the person aggrieved by an order of requisition intends to challenge it as illegal, void and without jurisdiction or on any other ground, he can do so only on the basis of the order served on him, if the requisition of a property, as contended by Mr. Khondkar, becomes complete and effective as soon as an order in that regard is recorded on the file by the requisitioning authority, then, the service of a notice of such requisition on the owner shall not be necessary so as to render the owner legally binding and effective. In order to main tain his point of view Mr. Khondkar has gone so far as to say that the service of a notice of requisition, though desirable, is not obligatory. It is difficult to accept these contentions as correct in face of the mandatory provision of the Act with regard to the making of an order of requisition and its service on the owner. If requisition becomes complete and effective with the making. of an order in that regard on the file the requisitioning authority may not serve a notice thereof on the owner and, by claiming privilege against the production of the relevant file in Court, o as has been done in this case, by objecting to the file being seen by the owner, keep the owner completely ignorant of the parti culars and purpose of the requisition and thereby may make it difficult for him to formulate his grounds of objection against the requisition. This must not have been intended by the Legislature.

9. In order to show that the District Magistrate recorded an order of requisition on the file, the file of the relevant requisition case was placed before us immediately after the conclusion of arguments. On behalf of the respondents 1 to 3, Mr. Khondkar, however, objected to this file being seen by the petitioner's lawyers. For the ends of justice we have looked into the file, but we do not find anything therein which can strengthen the con tention of Mr. Khondkar that requisition becomes complete and effective with the recording of an order on the file to that effect; rather the file reveals something not favorable to that conten tion. It appears from the file that the District Magistrate, by his order, dated 20‑10‑1960, asked the Land Acquisition Officer to make a preliminary inquiry and to put up requisition notices as early as possible and adjourned the case to 20‑11‑

60. Obviously, the District Magistrate, by that order, directed the Land Acquit ion Officer to put up before him, at the appropriate time, the requisition notices (i.e., the prescribed forms for requisition) for being signed by himself. After holding a preliminary enquiry, the Land Acquisition Officer recorded a note on 7‑11‑60 support ing the proposed requisition and endorsed it to the District Magistrate for orders whereupon the District Magistrate gave his approval to it on 9‑11‑60 in writing on the same date the Land Acquisition Officer asked the senior Kanoongo to prepare requi sition notices at once. Accordingly the prescribed forms for requisition were placed before the Land Acquisition Officer on 9‑11‑60 and these were eventually issued the next day by the Land Acquisition Officer for and on behalf of the District Magistrate, completely ignoring the District Magistrate's previous order dated 20‑10‑60 whereby he asked the prescribed forms to be placed before him for the purpose of the proposed requi sition. Thus, it is pretty clear that while the District Magistrate had intended to sign the requisition orders himself, these were, in fact, signed on his behalf by the Land Acquisition Officer. These facts speak for themselves and are clearly against the point of view now taken that requisition becomes complete and effective with the making of an order in that regard on the file. The file reveals yet another interesting thing. After the proposal for requisition had been approved in writing by the District Magis trate on 9‑11‑60 and after the prescribed forms had been placed before the Land Acquisition Officer on the said date for issue, the District Magistrate appeared to have signed a subsequent typed order, purporting to be a formal order of requisition. The date of this typed order is in ink and that too has been clearly over written to look like 10‑11‑

60. Again, the note in ink in the handwriting of the Land Acquisition Officer at its bottom with regard to a telegraphic request for delivery of possession is clearly a misfit in this formal order. 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 including certain properties Which were already subject to previous requisition. This discloses 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 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 838, 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. AI) 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 essen tial and that a requisition order in the prescribed form was considered sufficient. Thus, the aforesaid omnibus order on which Mr. Khondkar counts so much in support of his contentions was not only not essential but also goes against his contention; what was really necessary was the issue of requisition orders in the prescribed form by the District Magistrate over his own signature. This not having been done in the present case, the two impugned requisition orders, as already held by us, are illegal and void. At any rate, there is even no scope for argument as respects the validity of the requisition order as per Annex. 'AI', for the District Magistrate, did not even make any order on the file with regard the lands covered by it.

10. Mr. Khondkar cited the case of Ajit Kumar Das v. Province of East Pakistan and another (P L D 1958 Dacca 28), to show that an order of requisition recorded by the requisitioning authority on the file itself is sufficient and that is not essential that all requisition orders in the prescribed form must be signed by that authority itself. The facts of the present case are quite different from those of the cited one. Here, the requisition orders were signed by an un-authorised person for and on behalf of the District Magistrate, but in the cited case the Additional District Magis trate who made the requisition had the delegated power to requisition property and he used his "rubber stamp" (facsimile) on the requisition order instead of writing his name thereon. Although facsimile was used on the requisition order, the fact remained that the order was issued in that case by none else than the Additional District‑ Magistrate who was duly empowered to requisition property. Besides, the question of use "rubber stamp" on the requisition order was considered in that case only in the context of the argument that there was lack of applica tion of mind by the Additional District Magistrate but not in relation to his authority to requisition property. Moreover, in the said case, the statutory provisions requiring the making of a requisition order in the prescribed form and the service of that very order on the owner was not at all raised and considered. Therefore, the case relied on by Mr. Khondkar is of no assistance of his contention.

11. Mr. Khondkar lastly contends that when it has not been specifically alleged in the writ petition that the requisition orders were not signed by the District Magistrate himself, the petitioner cannot be allowed to raise this objection, for this will require an investigation into facts: In its notice of demand for justice, the petitioner alleged the requisition orders to be illegal. Besides, in the writ petition itself the requisition orders have been challenged as void, illegal and without jurisdiction. Thus, the respondents are quite conscious of that challenge, although it has not been expressly stated in the writ petition that the invali dity of the requisition orders is due to the fact that they were not made by any persons authorised to sign them. The impugned order as per Annexs. 'A' and 'A1' are the documents of the respon dents themselves, and it is admitted in the District Magistrate's affidavit that he himself did not sign them. Thus, further investi gation into facts is not called for. Hence, the above contention of Mr. Khondkar is also of no substance.

12. Apart from their invalidity on the ground stated above, both the impugned requisition orders suffer from other defects implying laches on the part of the maker thereof. None of them mentions the name of the person, firm or company for whom the properties have been requisitioned. When the Government itself is not going to establish a Jute Mill at Chandpur, the name of the requiring body should have been mentioned in the orders. However, it has since transpired from the District Magistrate's letter, dated 13th December 1960, to the petitioner (Annex. 'D') that the requiring body is W. Rahman Jute Mill (respondent No. 4) for whom the properties in question have been requisi tioned. Now, W. Rahman Jute Mill, as we shall discuss herein after in detail, is not an incorporated Company, it is only a name in which a Company is proposed to be incorporated in pursuance of an agreement between one Mr. Syedur Rahman and P.I.D.C. When W. Rahman Jute Mill is not yet a legal entity and has not yet formed in fact the requisition of properties for it even before its incorporation speaks of lack of application of mind by the requisitioning authority.

13. Prior to the coming into force, of Ordinance No. III of 1960 on.31st January 1960, the power to requisition properties vested in the Provincial Government, and the Provincial. Govern ment in its turn, delegated such power to the District Magistrate under section 15 of the Act. It was Ordinance No. III of 1960 that for the first time, conferred on the District Magistrate himself the power to requisition properties. Thus, at the time of making the two impugned requisition orders the District Magistrate's delegated power was no more there, and he had then his inherent power only under Ordinance No. III of 1960. Even, then, the said two orders were made not in the exercise of the District Magistrate's inherent power but in the purported exercise of the power formerly delegated to the District Magistrate. Lastly, item (c) of the requisition order (Annex. 'A') and Schedule B to the order which relates to movables have neither been filled, nor penned through.

14. All these facts and circumstances indicate that the maker of the two impugned orders of requisition did not properly apply his mind before making those orders. Also there exist other facts and circumstances indicating that the requisitioning authority displayed lack of application of mind even after the making of the requisition orders.

15. Section 5 of the Act as amended by Ordinance No. III of 1960 provides that a property which has already been requi sitioned can be subsequently acquired by the Government in accordance with the provision of that section. Under that section, the District Magistrate can only initiate acquisition proceeding. In other words, he can only enquire into the claims and objections of persons interested in the property and t submit a report to the Commissioner for his decision, and the Commissioner, in his turn, submits his recommendations to the Provincial Government who, after considering those recommenda tions, decide whether or not to acquire the property. Even where the Provincial Government acquires a property, the same vests in that Government and not in the requiring body for whom it was previously requisitioned unless it is transferred to that body by the Government. Under section 7(aa) of the Act, compensa tion for immovable property is assessable by the Provincial Government. Thus it is clear that requisition and acquisition. under the Act are two distinct matters ; that the power of acquisition like the power of requisition does not vest in the District Magistrate that there cannot be simultaneous requisition and acquisition of the same property' by the same authority and that compensation for immovable property is assessable by the Provincial Government. In the~ instant case, however, the requisitioning authority proceeded as if the properties in question were also acquired simultaneously by the impugned orders. On 13th December 1960, the Deputy Commissioner, Comilla, (this is the present designation of a District Magistrate in this Province) addressed a letter (Annex. `D') to the petitioner asking it to send its representative to the site at the time of taking delivery of possession of the proper ties and to receive advance compensation of Rs. 3,53,360 for the land and structures etc. Obviously, such compensation was offered on account of acquisition of the properties although the properties were only under requisition at that time. It seems, the requisitioning authority did not then take care to see if it had power under the Act to acquire the properties in question or to assess compensation therefore.

16. Under subsection (3) of section 70 of the Act as inserted by Ordinance No. III of 1960, the District Magistrate is responsible for the proper maintenance of a requisitioned property. The said subsection (3) which is pertinent here may be quoted below with advantage: "During the period of requisition, the District Magistrate shall be responsible for the proper maintenance of a requisitioned property and it shall be lawful and shall always be deemed to have been lawful for the District Magistrate to recover a sum equivalent to the amount spent on repairs, out of compensation payable under this Act to the owner for such a period Provided that if at the time of release of a requisitioned property from requisition under section 8, any sum spent on repairs remains outstanding, it shall be recoverable from the owner of the property as public demand." Thus, the District Magistrate has a statutory obligation to preserve a requisitioned property even at the cost of its owner. In the present case, however, some of the structures were un‑1 deniably dismantled by the respondent No. 4 in spite of the petitioner's repeated protests in writing to various authorities including the District Magistrate. Even before the making of the requisition order itself, the respondent No. 4 sent a letter (Annex. `C') to the petitioner's tenant on 2nd November 1960, stating that it would start dismantling structures from' 15th November 1960. The respondents 1‑3 who include the District Magistrate, far from respecting the statutory obligation to preserve the properties in good order during the period of requisition, asserted in a ,paragraph 20 of their affidavit‑in -opposition that they are not in duty bound to maintain the status quo of those properties and that dismantling of structures is not violative of the provisions of the Act. The same attitude has been taken also by the respondent No. 4 in paragraphs 19 and 21 of its affidavit‑in‑opposition.

17. On these facts and circumstances, Mr. Suhrawardy alleges that the requisition orders are mala fide. In support of this allegation he further points out that movables, such, as jute baling press, steam engine, boilers and other accessories necessary for running the jute baling press which were lying within the requisitioned premises have neither been included in the requisi tioned orders, nor shown in any duly prepared inventory. This, according to the learned counsel, goes to show that the requisition orders are mala fide. That some properties in the nature of jute baling press, machineries and other accessories were within the requisitioned premises appears clear from paragraphs 6, 9 and 12 of the affidavit‑in‑opposition of the respondent No. 4, read with paragraphs 3, 5 and 8 of the writ petition. But it is stated in paragraph 5 of the affidavit‑in‑opposition of the respondents No. 1‑3 that at the time of the requisition they had no ‑knowledge of any movables which were not open. As a matter of fact, no movable has been mentioned in Schedule B to the requisition order meant for that purpose. Thus, it seems that movables, whatever they were, were not intended to be covered by the requisition order. It is alleged that no inventory was prepared in presence of the petitioner's representative and that a list of some properties was made by the men of the ,respondents and the same was got signed by the petitioner's officer, Mr. S. Ahmed. Except fourteen tralleys, no other movable property has been included in the said list. Non‑inclusion of the jute baling press and machineries etc., in that list might be due to the fact that they were either retained in the possession of the petitioner's tenant as before or treated as immovable properties presumably on the ground of their being attached to the earth.

18. Another fact pointed to us in support of the same allegation is that as the price of land at Chandpur is gradually rising with the declaration of Chandpur as an inland port, lands far in excess of the requirement have been requisitioned. Accord ing to the petitioner, the contemplated jute mill does no require more than 20/25 acres of land, but lands measuring an area of about 80 acres have been requisitioned. This is, however, contro verted by the further affidavit on behalf of the respondent No. 4 wherein it is stated that lands having a total area of 48"12 acres only have been requisitioned for it and that 49 acres of lands have been acquired for a similar jute mill, namely, Karim Jute Mills Ltd., Dacca. Moreover, order‑sheet of the relevant file which we have looked into also shows that the area of the requisitioned land is about 48"12 acres. But the fact remains that the District Magistrate himself did not consider and determine the quantity of land required for the proposed jute mill, he requisitioned whatever quantity of land asked for.

19. The requisition of the petitioner's developed and built up area without first ascertaining if any suitable vacant lands are available for the establishment of the proposed jute mill is alleged by Mr. Suhrawardy to be yet another instance of the lapses on the part of the requisitioning authority. Some vacant lands are already covered by the requisition orders and it has not been established in this case if more suitable vacant lands in sufficient quantity are available to satisfy the requirement. However as regards the suitability of a site for a particular purpose and the necessity and expediency of requisitioning it for that purpose, it is for the requisitioning authority to determine it having regard to‑ (i) the facts and circumstances of the case, (ii) the general interest of the community likely to be served by the proposed requisition as opposed to the particular interest ,of individuals, and (iii) the comparative utility of the existing uses of the pro perty proposed to be requisitioned and that of the uses to be made of the property after its requisition. It appears from the order‑sheet of the relevant file that the Land Acquisition Officer verified the plan for requisition at the site and found it to be defective. He also found that ‑there were vacant lands to the south of the lands proposed to be requisi tioned. It further appears from the order-sheet that the P.

1. D. C. Engineer declined to take the land to the west of the petitioner's premises and promised to submit a revised plan soon. Without Waiting for the promised revised plan and with out considering the suitability or otherwise of the land to the west of the petitioner's premises and that of the said vacant lands to the south, the Land Acquisition Officer recommended for the requisition of the land on the basis of the defective plan and this recommendation was eventually accepted by the District Magistrate. These facts amply demonstrate that the requisition ing authority did not give serious consideration to the question of requisition and proceeded to requisition the properties mecha nically. As, however, the petitioner possessed the properties in question through Bharatias (tenants) and were in the receipt of only rent from them instead of producing any goods by its own labour and capital and as the purpose for which the tenants were using the properties appears to be less productive than that of the proposed jute mill, it cannot be said that requisition was not bona fide. Although certain acts and omissions of the) requisitioning authority as discussed herein before are not enjoined by the Act or are against its provisions they do not by themselves establish beyond doubt any bad faith on the part of the respondents.

20. From the foregoing discussions, we are, however, satisfied that the requisitioning authority did not properly apply its mind to the matter either before or after making of the requisition order.

21. The last point pressed on behalf of the petitioner is that the requisition in question is not for a public purpose or in public interest within the meaning of section 3 of the Act as it stands after its amendment by Ordinance No. III of 1960. As already said, the properties in question have been requisitioned for the establishment of a jute mill. In this comparatively less developed Province, the establishment of a jute mill, is no doubt in the larger interest of the public. But the contention of Mr. Suhrawardy is that the establishment of a jute mill by an individual being directly and primarily for the benefit of that individual, the requisition of property for such a mill, as in this case, is not for a public purpose or in public interest, although the mill may ultimately benefit the public. He reinforces this argument by contending that W. Rahman Jute Mill is purely a private concern,‑concern of Mr. Syedur Rahman and his brothers. This question cannot, however, detain us long, for their Lordships of the Supreme Court have, in their recent reported decision in Haji Khadem Ali's case, confirmed the decision of a Division Bench of this Court (10 D L R 501) to the L effect that the establishment of textile mill through the Chandpur Textile Mills, a private agency, is for a public purpose. The same view has been taken by another Division Bench of this Court Razab Ali's case reported in 12 D L R

524. But the question raised by Mr. Suhrawardy cannot be dismissed on the authority of those decisions inasmuch as there is yet another aspect of that question. W. Rahman Jute Mill for whom the properties in question have been requisitioned in this case, as already said, has no legal existence, the same not having been incorporated as yet in accordance with the provisions of the Companies Act, 1913, as required by section 14 of the P. I. D. C. Act, 1950. Nor is that mill a proprietary or a partnership firm. It transpires from the agreement appended to the respondent No. 4's further affidavit in reply that on 1st October 1960, that is, only a short time before the first requisition order one Mr. Syedur Rahman and the P. I. D. C. entered into an agreement with the object of sponsoring a public limited Company under Companies Act, 1913, to be called, "W. Rahman Jute Mills Limited" or by some other agreed name having one of its main objects to set a jute mill at Chandpur. Mr. Syedur Rahman and his associates are to subscribe 51% of the issued share capital of the proposed Company and the shares in respect of the balance 49% shall be offered to the public for subscription. The agreement so made was subject to the approval of the Central Government. This agreement does not appear to be in strict compliance with the provision of section 14 of the P. I. D. C. Act according to which all the issued shares of a proposed public company are to be offered to the public in the first instance. Also there does not appear any material to show if the agreement has been approved by the Central Government. Be that as it my, the fact remains that W. Rahman Jute Mill has not been incorporated as yet as required by section 14 of P. I. D. C. Act and the said agreement. Thus, the properties in question have been requisitioned for W. Rahman Jute Mill which is yet to become a legal entity. Requisition of property for the establishment of an industry by an individual or an incorporated company or other legal person may be treated to be one for public purpose, but requisition of a property for setting up of an industry by a concern having no legal existence does not stand on the same footing. In the latter case, as in the present case, the order of requisition is premature and bad in law. Placed in such a situation, Mr. Khondkar contends that with the abrogation of the 1956 Constitution the question as to public purpose ceased to be justifiable. It was, however, held by this Court in the case of Jogesh Lodh v. Province of East Pakistan ((1958) 10 D L R 69) and Sarat Kumar Kanungo v. Province of East Pakistan (P L D 1958 Dacca 574) that such question is justifiable. Mr. Khondkar submits that all those decisions being prior to the abrogation of the Constitution are inapplicable to this case. We are, however, unable to accept it. According to Article 15 of the 1956 Constitution, properties could not be taken possession of or acquired except for a public purpose. Although the said Article stood abrogated, a similar provision has been made in section 3 of the Act as substituted by Ordinance No. III of 1960, which runs thus "When any property is required for a public purpose or in public interest, the District Magistrate may requisition it by an order in writing . . . . . " Thus "public purpose or public interest" is still a sine qua non for the requisition of a property as it was during the lifetime of Article 15 of the 1956 Constitution. Hence, the decision of this Court cited above apply to this case with equal force. We are, therefore, of the view that the Court is entitled to examine if the requisition in a given case is for public purpose or in public interest.

22. A preliminary objection has been taken by Mr. Hamidul Huq Chowdhury, the learned Advocate for the respon dent No. 4, that the writ petition is not entertain-able, the same not having been verified by the proper person in terms of rule 4 in part I of the High Court Rules. The said rule 4 provides that every writ petition "shall be verified by an affidavit of the, petitioner himself and/or the person injured . . . ". The petitioner being a public trust, the writ petition was verified by the Estate Officer of that trust who is not only conversant with the facts of the case but also appears to be interested in the trust as a member of the public. Thus, the verification of the petition by the Estate Officer instead of by the Trustee is a substantial compliance with the directory provision of the said rule 4.

23. Another preliminary objection raised by Mr. Khondkar on behalf of the respondents Nos. 1‑3 is that the petitioner being a trust and the writ petition not having been made through its trustee, the petition is not duly constituted and cannot, therefore, be entertained. In paragraph 26 of the affidavit sworn on behalf of the petitioner in reply to the affidavit in opposition filed by respondents Nos. 1‑3, Kumudini Welfare Trust is alleged to be an incorporated Company although it is a public trust at the same time. It appears from the certificates of the Joint‑stock Registrars of Bengal and East Pakistan submitted together with one of the petitioners' affidavits that Kumudini Welfare Trust was registered on 26th March 1947 as a limited Company under the Companies Act, 1913, and that it has since been admitted to be a foreign company in East Pakistan under section 277 of the said Act. That the petitioner is also a limited company will further appear from the case first reported in 11 DLR 57 and then the 12 DLR (SC) 17, to which Kumudini Welfare Trust was a party. Thus, the petitioner being a limited company under the Companies Act can sue in its own name. It is then pointed out that the word "Limited" has not been used after the petitioner's name in the writ petition and that its registered office has been stated to be at Narayanganj while its correct registered office is in Calcutta. This, at the most, constitutes a mis-description, but is not a fatal defect.

23. Mr. Khondkar next contends that even if Kumudini Welfare Trust is taken to be a corporation, the writ petition not having been verified by any person competent to do so under Order XXIX, rule 1 of the Code of Civil Procedure is not entertain-able. The writ petition, as already said, was verified by the Estate Officer of Kumudini Welfare Trust who, as solemnly affirmed by him, is well acquainted with the facts of the case. It is this. Estate Officer who represented the petitioner at the time of delivery of possession of the requisitioned properties and signed the alleged inventory as such representative. The verification of the petition by a competent officer of the trust satisfies the requirement of the provision of Order XXIX, rule 1 of the Code of Civil Procedure. However, the said provision does not, in terms, apply here because a writ petition is to be p verified in accordance with rule 4 in part of the High Court Rules. Hence, Mr. Khondkar's preliminary objection also falls through.

24. It is next contended both by Mr. Hamidul Huq Chowdhury and Mr. Khondkar on behalf of the respondents that the writ petition is incompetent inasmuch as the petition was made without first availing of the remedies available under the Act by way of appeal and revision against the disputed orders of requisition. It is true section 4‑A of the Act as inserted by Ordinance No. III of 1960, provides for an appeal to the Commissioner against an order of requisition within 30 days from the date of service of the order and empowers the Provincial Government to revise, either on its own motion or on application by the aggrieved party, the requisition order made by the District Magistrate or the order passed on appeal by the Commissioner. It is also true that the petitioner did not avail of those remedies provided by the statute. But the said contention, though sound in principle, does not hold good having regard to the facts and circumstances of this case. One of the grounds taken in the writ petition is that the requisition is void, illegal and without jurisdiction. On an examination of the requisition orders, we have already held that they are un-authorised, illegal and void. It has been recently held by their Lordships of the Supreme Court in Muhammad Amir Khan v. Controller of Estate Duty (P L D 1961 S C 119), that if an order affecting one's legal right is challenged as wholly without authority, an alternative remedy provided by the statute will not stand in the way of the exercise of writ jurisdiction, rather a petition for a writ, in the opinion of their Lordships, is a more appropriate remedy in such a case. There fore, the writ petition is maintainable on the authority of the decision in the case cited above, although the remedies, by way of appeal and revision provided in section 4‑A of the Act were not availed of. Even otherwise, the failure to seek those remedies cannot stand in the way of the writ petition. The petitioner, as already said, submitted successive petitions and representations to various authorities including the Provincial Government protesting against the dismantling of the structures. But these were of no avail. While the petitioner was moving from post to pillar in a desperate attempt to stop dismantling of the structures, these were being dismantled to the knowledge of all concerned and in utter disregard to the statutory obligation for the preservation of the property during the period of requisition. The Provincial Government though moved in the matter did not stop the destruc tion which it could have stopped even on its own motion pursuant to its revisional power under subsection (2) of section 4‑A of the Act. In such state of things, it was not perhaps unusual on the part of the petitioner to be apprehensive of the outcome of an appeal to the Commissioner under subsection (1) of that section. Like the power of a Court, the Commissioner has no power to issue an ad interim injunction stopping dismantling of the struc tures on pain of penalty in the event of disobedience of the injunction. Therefore, on the facts of this case, the alternative remedies by way of appeal and revision were not likely to be equally convenient, beneficial and effective. It has been observed by their Lordships of the Supreme Court in the case cited above that "the rule that the Court will not entertain a writ petition when the appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion". As the alternative remedies as already said, were not likely to be equally efficacious and effective in this case and as this Court's writ jurisdiction is not barred because of the availability of the said remedies, the writ petition is maintainable in the facts and circum stances of this case, although those remedies were not availed of in the first instance.

25. The second contention of the respondents on merit is that the writ petition should be turned down, the same not having been made without delay :_ The two requisition orders were made during the months of November and December, 1960 and possession of the properties was taken over on 17th December 1960. During the period from 24‑11‑60 to 7‑1‑61, the petitioner submitted successive petitions and representations to various authorities, the last of them being a notice of demand for justice. Failing to get any response to any of them, the writ petition ‑was presented on the 13th February 1961. Thus, the delay involved is insignificant. Moreover, there was good reason even for significant delay.

25. The third point urged in defence is that the writ petition is not maintainable on the ground of suppression of and misstate ment of certain facts by the petitioner. In support of this point, reliance has been placed on the case of the King v. The General Commissioner for the purpose of Income‑tax (I K B (1959) 486). It is alleged that the petitioner did not state in the writ petition the fact of receipt of compensation by it. But this allegation is not true, for it appears that in Annex. `F' which forms part of the writ petition, there is a clear admission as to the receipt of interim compensation by the petitioner. It is next alleged that the petitioner suppressed the fact of making an inventory in this case. This is not quite correct. 1n paragraph 16 of the writ petition, the petitioner admitted the signing of some "handing over docu ments" by representative, but made a grievance that it was not an inventory according to law. The last allegation is that the area of the lands requisitioned was wrongly quoted by the peti tioner to be about 80 acres. The area was stated by estimation, and, as such, it cannot be an intentional mis‑statement. At any rate, none of those allegations is so substantial as to influence our opinion either way in this case.

27. The fourth point urged is that the writ petition is bad for defect of party for not imp leading the P.

1. D. C. who it is alleged, took the initiative in the matter of requisition of the properties in question. Even if the P.

1. D. C. took the initiative as alleged, it clearly appears from the District Magistrate's letter (Annex. `D') that the properties were requisitioned for W. Rahman Jute Mill and not for the P.

1. D. C. Although the certificate of possession was purported to have been signed by one Mr. Ahmadur Rahman as the representative of the P. I. D. C. it was he who had earlier written the letter (Annex. `C') on behalf of W. Rahman Jute Mill informing the petitioner's tenant that dismantling of constructions would start by the 15th November, 1960. Thus possession of the properties was, in fact, taken on behalf of W. Rahman Jute Mill, although Mr. Ahmadur Rahman signed the certificate of possession. It further appears from paragraphs No. 9, 17 and 19 of the affidavit‑in‑opposition of the respondent No. 4 that W. Rahman Jute Mill is the requiring body and that possession of the requisitioned. property was delivered to it. The several affidavits sworn in this case on behalf of W. Rahman Jute Mill were sworn by Mr. Syedur Rahman who is at its back. Moreover, it was Mr. Syedur Rahman who signed the vakalatnama on its behalf. Thus, W. Rahman Jute Mill is involved in this case as the requiring body and not the P.

1. D. C. At any rate, the petitioner does not appear to have any grievance against the P. L_ D. C. Hence, non‑inclusion of the P.

1. D. C. in the writ petition as a respondent cannot be fatal to that petition.

28. The last point pressed on behalf of the respondents is that the petitioner acquiesced in the requisition and acquisition of its properties and accepted interim compensation of Rs. 3,53,360 and odd, and, as such, it is stopped from challeng ing the requisition orders. In order to substantiate this, reliance has been placed on the petitions and representations, of the petitioner to various authorities (Annexs. B, E, F, G, H, 1, J and K, to the writ petition) and also to the District Magistrate's letter to the petitioner (Annex. `D'). It is true, some of those petitions and representations are capable of being construed as containing the , petitioner's admission as to the public utility of the proposed jute mill and its desire to get the properties and duly valued for assessment of fair compensation. It is also true that the petitioner received the interim compensation aforesaid. But those petitions and representations disclose at the same time, that the petitioner persistently objected to the dismantling of the structures, pleaded for proper valuation thereof by a competent value while they were still standing and, failing that, sought for permission to remove them for other use. Thus the acceptance of the compensation was not unconditional. When the threat to dismantle the structures had been given as per Annex: `C' even before the making of the requisition orders and dismantling was started in spite of the petitioner's repeated objections against it and when, contrary to law, the District Magistrate and the requiring body proceeded on the basis that there had been "simul taneous requisition and acquisition of the properties, it was not unnatural on the part of the petitioner to accept whatever com pensation was readily available and to appease the authorities by using some palliative language in its representations in order to evoke their sympathy for preventing further demolition of the structures. When even the conciliatory representations failed to evoke any sympathy, the petitioner took legal objection to the requisition of the trust properties and stated that its prayer for assessment of, fair compensation was without prejudice to any other legal remedy available to the petitioner" and also threaten ed to report to legal proceedings, vide Annexs. `1' and `J'. Regard being had to these facts and circumstances, it cannot be said that the petitioner acquiesced in the requisition and acquisition of its properties and is estopped from calling in question the orders of requisition.

29. We have already found that the impugned orders of requisition are illegal and void for the reason stated here-in-before. Those orders should, therefore, be revoked and the respondents forbidden to give effect to, or act upon, those orders. As regards the petitioner's prayer for compensation for causing damage to its properties, writ petition is not an appropriate remedy, and the 5 Civil Court is the proper forum where such relief should be sought for (Refer P L D 1961 S C 1).

30. As regards the prayer for restoration of properties to the petitioner, the properties are no more in their original state because of dismantling of some of the structures. Therefore, the Civil Court is the appropriate forum also in respect of this prayer. However, the petitioner, .as submitted by Mr. Suhrawardy, does no more press the said two reliefs in this Court exercising writ jurisdiction.

31. In the result, we make the Rule absolute and direct the respondents Nos. 1 to 3 to revoke the two orders of requisition complained of and to forbear from acting upon, and giving effect to, those orders and further direct them to recall the order giving delivery of possession of the properties concerned. The petitioner shall be entitled to the costs of the petition. Hearing fee is assessed at twenty‑five gold mohurs. CHOWDHURY, C. J.‑

I had the advantage of going through‑the judgment before it was delivered. I agree. K. B. A. Petition accepted.