P L D 1959 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑-This order will determine certifi cated Civil Appeals Nos. 34‑D and 35‑D of 1958 which have been brought against the judgment of a Division Bench of the High Court of East Pakistan at Dacca directing the Province of East Pakistan, the Secretary, Revenue Department, Government of East Pakistan and the District Magistrate, Dacca, to cancel 'and with draw an order made by the District Magistrate requisitioning certain properties under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948. The appellants are the three aforesaid public authorities and the principal respondents are Abdul Karim and Abdul Ghani in Appeal No. 34 and Muhammad Rajab Ali in Appeal No. 35 who own some portions of the requisitioned land. By orders dated the 17th and 21st August 1957, the District Magistrate, Dacca, requisitioned C. S. Plots Nos. 22, 25, 26 and 27 of mouza Kawran which is situate within the limits of police station Tejgaon in the district of Dacca. The orders which purported to be under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, (re‑enacted by Ordinance XIII of 1957), in substance recited that the land was being acquired in the public interests for the Mehar Industries, for the purposes of development of the Province and Industry. The Mehar Industries is a private limited liability company, about to undertake on a large scale the manufacture of electric goods by setting up a factory on the requisitioned land, Against these requisitions two, petitions were moved before the High Court of East Pakistan, (1) No. 125 of 1957 by Muhammad Rajab Ali and (2) No. 126 of 1957 by Abdul Karim and Abdul Ghani, praying that the requisition orders be declared invalid and a direction issued to the appellants to cancel and withdraw them. The orders were attacked on the following three grounds (1) "the impugned notices purported to requisition C. S. Plots Nos .‑‑‑‑‑for the respondent No. 4 and as such the pur ported requisition is not for any public purpose and is therefore violative of Article 15 of the Constitution of the Islamic Republic of Pakistan and as such ultra vires, illegal, void and inopera tive"; (2) "the impugned notices purported to requisition the resi dential houses built on C. S. Plots Nos.‑‑-‑‑after January 1950 and exempted therefore from requisition under section 3, subsection (3) of the Act and the purported requisition is there fore ultra vires, illegal, void and inoperative"; (3) "the impugned notices are also violative of section 3 of the Act inasmuch as it does not authorize the respondent No. 1 to requisition for private purposes and therefore the purported requisition is ultra vires, illegal, void and inoperative". The High Court issued rules nisi in both the petitions and subsequently made them absolute. By its judgment dated the 14th February 1958, it found that the property had not been requisitioned for a public purpose and that therefore the requisition order was in contravention of Article 15 of the Constitution. In view of the course that we have decided to adopt in the disposal of these appeals we do not consider it desirable to express any opinion on the merits of that judgment, but to avoid future misunderstanding we take this opportunity to enunciate more clearly the law on the subject that was in force while the late Constitution was in opera tion. Clause (2) of Article 15 of that Constitution was as follows: "No property shall be compulsorily acquired or taken posses sion of save for a public purpose, and sage by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given." This clause was applicable to all acquisitions after the Constitution came into force and it prohibited the compulsory acquisition of property unless (1) it was for a public purpose, and, (2) it was by the authority of law which provided for compensation. Therefore in a case like the present where the acquisition was subsequent to the coming into force of the Constitution, the expropriated owner could challenge the acquisition on the grounds (1) that the acquisition was neither for a public purpose nor by the authority of law; (2) that though it was for a public purpose, it was not under the authority of law ; and (3) that though it was by the authority of law, it was not for a public purpose. Thus if an acquisition purported to be under the authority of law and the object of the acquisition, as stated in the law, fell within the definition of public purpose, there could be no valid constitutional objection to the acquisition. Applying this principle to the present cases the respondents could attack the acquisition on the ground that the Act permitted acquisition for a purpose which was not a public purpose, or on the ground that though the Act permitted acquisition only for a public purpose, the Act was not applied to its real object but was used as a cloak to hide an illegal piratic act. Where a law permitted acquisition for a purpose which was not a public purpose, the law itself was bad because of Article 4 of the Constitution which had commanded that the State shall not make any law which takes away or abridges a funda mental right, and that any law which affects any such right shall be void. It is clear from a perusal of the two petitions that the respon dents never took up the position that section 3 of the Act was invalid under Article 4 because it permitted acquisition for a purpose which was not a public purpose. The attack on the requisition was confined to the three grounds mentioned above, namely, that the requisitioning was not for a public purpose and was therefore violative of Article 15 of the Constitution, that the requisitioned land was exempt from requisition, and that the orders were violative of section 3 of the Act because that section did not authorise the government to requisition property for a private purpose. The High Court held that the requisitions in question were in contravention of Article 15 of the Constitution and therefore invalid and further that the requisition in Petition No. 125 was bad because it applied to a certain property which was exempt from acquisition under the Act. In so far as the judgment of the High Court gives effect to the Constitutional objection, it has ceased to be enforceable by reason of paragraph (2), clause (7) of the Laws (Continuance in Force) Order, 1958, which as explained in the judg ment of this Court in The State v. Dosso (P L D 1958 S C (Pak.) 533) brings about the‑abate ment of all pending petitions for writs which had been moved on the allegation that the orders questioned therein contravened any fundamental right guaranteed by the Constitution. If, therefore, the only ground of these petitions had been the one, on which they have been decided we would have held them to have abated. But, as already pointed out, 'there were two more grounds taken in the petitions of which one succeeded in Petition No.

125. The third ground that section 3 of the Act itself had been violated, though raised in the petitions has not at all been touched by the High Court. It, therefore, becomes necessary to remit these petitions to the High Court for the decision of the question whether the acqui sition was in contravention of section 3 of the East Bengal (Emer gency) Requisition of Property Act, 1948. We have pointed out above that the contesting respondents are not entitled to raise the question that section 3 of the Act was itself ultra vires and Mr. Hamid ul Haq Chaudhry who has appeared for them admits that he cannot maintain that the purposes for which a requisition may be made under section 3 are not public purposes. The short issue, therefore, to be decided by the High Court will be whether the requisition in dispute was in fact within any of the objects mentioned in section 3 or whether that section was applied not for a bona fide requisition with any of the objects mentioned in the section, but with the improper motive to benefit a private party regardless of any considerations of developing an industry of public utility for the benefit of the Province. This question was raised when it was contended by the learned Advocate‑General but denied by the respondents before the High Court that the requi sitioning was in the public interest and bona fide. The High Court did not consider it necessary to go into this question because as the learned Judges state they were concerned "with the legal aspect of the order" and "it is always difficult to probe into the inten tions of anybody". We are afraid, however hesitant or unwilling the High Court may have been to enter into this question this in fact is the question on the decision of which the fate of these petitions will depend. The question is one of fact and it will be for the High Court, if it so likes, to give a definite finding on the basis of the material on record or to dismiss the petitions on the ground that they involve disputed question of fact for the determination of which proceedings by way of an application for a writ are not appropriate. We ourselves express no opinion on this part of the case and do not in this respect wish to fetter the discretion of the High Court. As we are remitting the case for a fresh decision we may as well remark that it was strongly contended by the appellants before us that the petitioner in Petition No. 125 has not constructed any house or buildings on the land after January 1950. The position as regards this allegation is that though the High Court has given a finding that the construction in Petition No. 125 was after Janu ary 1950 and therefore exempt under the proviso to section 3, the finding has been recorded regardless of the other finding that a petitioner cannot file a writ petition in a representative capacity acting for himself and others. Though there was an allegation in the petition that the petitioner had constructed a residential house on a plot of land in C. S. Plot No. 23, it was not expressly stated that he had constructed the house after January 1950, and the allegation in para. 24 of the petition may well relate to the resi dential houses built by certain other persons mentioned in para. 2 of the petition. So far as the petitioner is concerned, it was denied by the appellant that he had constructed any houses after January 1950 and in reply to this the petitioner in a counter‑affidavit had contended himself by saying "I deny that I have not constructed any pucca structure within the area sought to be requisitioned." The High Court will therefore record a specific finding, if it is inclined to determine the question of fact involved, whether the petitioner has constructed a house and whether it comes within any exemption. For these reasons, we hold that both of these petitions in so far as the High Court's finding that the requisitions questioned therein were in violation of Article 15 of the Constitution is concerned abate. The petitions are remitted to the High Court for rehearing on the other points and a fresh decision. A copy of this order will be sent to the Registrar of the High Court immediately with the direction that he should obtain from the Chief Justice orders for the constitution of a Bench to hear and dispose of these petitions by a written judgment before we conclude our Dacca session at the end of the current month. The Mehar Industries, which was a respondent to both the petitions and has been impleaded in the appeals before us, will have the right to be heard in opposition to the petitions The cost of these appeals will be costs in the petitions. A. H. Cases remitted.