P L D 1964 Dacca 467 (PLP)

A. S. CHOWDHURY, J.‑The petitioner, Safar Ali Hazra, claims to be the owner of a small plot of land No. being C. S. Plot 2063 J. L. No. 3 of the Collectorate of Khulna which has been requisitioned by the respondent No. 1, Deputy Com missioner of Khulna, by an order made on 15‑11‑

61. The order of requisition is purported to have been made under section 3 read with section 9 of the East Bengal (Emergency) Requisi tion of Property Act, 1948 (hereinafter called the Act). The reason for requisition as mentioned in the notice is for establish ing `an Engineering Workshop of Messrs Abdullah Brothers'. It is further stated in the petition that the said parcel of land has been requisitioned for a petty shop of repair works of motor cars and buses, although it has been mentioned as an Engineering shop. It is also stated that the same plot of land was requisitioned on 9‑9‑61, the L. A. Case No. 55 of 1961‑63 (4) of the district of Khulna for the use and occupation of the respondent No.

3. An appeal having been preferred by the petitioner, the Additional Commissioner of Khulna cancelled the same by an order made on 16‑10‑61, on what he considered to be technical grounds. Although the petitioner challenged the validity of the requisition itself, the Additional Commissioner did not enter into the merits of the case at that stage. As already noticed the self same plot of land has been requisitioned on 15‑11‑61, for the same purpose and the petitioner's appeal to Divisional Commissioner having been rejected, he obtained rule from this Court calling upon the respondents to show cause why the impugned order should not be cancelled. The petitioner claims to be a businessman and a Government Contractor of repute and that he has been an army contractor for supplying provisions to defence forces at Jessore. He has his own trucks and public carriers which are used for carrying essential mate rials for the construction of Government buildings, mills and factories and other establishments at Khulna. The petitioner has also set out a list of as many as 11 shops engaged in the repair of the motor buses and trucks and lie firmly asserts that there is absolutely no public interests in providing respon dent No. 3 Messrs Abdullah Brothers with special facilities for carrying on their own private business as there is no dearth of such workshop in the locality. It is also stated that the respondent No. 3 was a tenant of the petitioner and was occu pying plot No. 2063 a part of which was acquired for widening Upper Jessore Road popularly known as Jessore‑Khulna Road. The respondent No. 3 then shifted from the said plot and a plot of land on Sheikhpara bye‑lane being C. S. Plot No. 2053, belonging to a minor, had been acquired and allotted to the respondent No. 3 and now in order to provide the said respon dent No. 3, with a short‑cut passage to the said Jessore‑Khulna Road from said plot No. 2053, the petitioner is being again deprived of a part of the remaining portion of the plot No. 2063 belonging to him. This is, it is alleged, obviously for the perso nal benefit of the said Abdullah Brothers, who, it is further alleged have influence with the requisitioning authorities. It is firmly asserted that respondent No. 3, can carry on with his business satisfactorily from the new plot allotted to him. The said plot is connected with Jessore‑Road both ways by two bye- lanes from Sheikhpara lane and the distance sought to be shortened by acquisition of petitioner's land will be very negli gible.

2. An Affidavit‑in‑opposition has been filed on behalf of the respondents Nos. 1 and 2, the Deputy Commissioner, Khulna, and the Province of East Pakistan, respectively. The affidavit has been affirmed by a Section Officer of the Revenue Department of the Government of East Pakistan. Although in affirming the said affidavit, the deponent has stated that the statements made in affidavit‑in‑opposition are derived from the office records but we pointed out to Mr. F. Karim who appeared for the respondents that there are certain statements in the said affidavit‑in‑opposition which are not borne out by the records produced before us by Mr. Karim in support of the Government case. It is indeed an objectionable method of getting an affidavit, affirmed by an officer who has no personal knowledge and if in future, any statement made by such a deponent is not sup ported by record, we shall take a very serious view of the matter. Moreover, an affidavit affirmed by such a deponent is useless. It has been stated in the said affidavit‑in‑opposition that the respondent No. 3, is engaged in the maintenance and development of communication supplies and services by which the public at large are benefited. The file on which the learned Advocate for the respondents 1 and 2 relies, has been made available to us but it does not justify such a statement in the affidavit‑in opposition, and nothing has been pointed out to us in support of the said statement. It has also been mentioned in paragraph 9 of the said affidavit in opposition that the workshops mentioned in the petition as engaged in the repair of the buses and the trucks are petty workshops. It is beyond our comprehension how a Section Officer sitting at Dacca can make such a statement in affidavit‑in‑opposition, inasmuch as nothing could be shown in support of this statement from the files produced on behalf of the respondents. We, therefore, accept the statements of the petitioner that there are as many as 11 big Motor Engineering Workshops in Khulna town in preference to the statement made on behalf of the respondents 1 and

2. The affidavit‑in‑opposi tion, affirmed on behalf of the respondent No. 3 Messrs Abdullah Brothers for whom this land has been requisitioned, is reveal ing. In paragraph 9 of that affidavit‑in‑opposition it has been stated that respondent No. 3 wanted to purchase a part of plot No. 2063 for a path way to Upper Jessore Road but the petitioner did not come to an amicable settlement and, therefore, the land had to be requisitioned.

3. Mr. Mirza Golam Hafez, learned Advocate appearing for the petitioner submits that there is absolutely no public purpose in requisitioning the property of his client. In order to find out the reasons for requisitioning this property we would like to refer to the notice once again. The reasons for requi sitioning the property is given as establishment of an Engineer ing Workshop by Messrs Abdullah Brothers. The purpose given here is `establishment' of the said workshop The petitioner's case however, is that after the requisition of the land adjacent to the Jessore Road, the respondent No. 3 has been given another plot where the workshop has already been established and it has been categorically asserted in paragraph 12 of the petition that the purpose of the present requisition of a part of plot No. 2063 is only to give a short‑cut passage to the Jessore Road from the workshop of respondent No. 3.

4. Mr. Karim, appearing on behalf of the respon dents Nos. 1 and 2, placed his reliance on the affidavit‑in- opposition and the file produced for by him to contend that the requisition was a public purpose.

5. In the affidavit‑in‑opposition, unsatisfactory nature of which we have already discussed above, it is stated that a short‑cut passage is necessary inasmuch, the Upper Jessore Road is far away from the plot allotted to Abdullah Brothers on Sheikh Para bye‑lane which is a narrow and Kutcha pathway. It is significant to notice that the affidavit‑in‑opposition does not mention the width of the said Sheikh Para bye‑lane nor does it mention the distance between plot No. 2053 and the Upper Jessore Road through the Sheikh Para bye‑lane. It is expected from those who are entrusted with the requisitioning of the pro perty of persons for public purpose to be precise in their assertions and to give definite information to the Court as to the width of the bye‑lane and the distance of the main road from plot No. 2053. The statement made by the petitioner bears an imprint of truth and in view of the unsatisfactory nature of the affidavit‑in‑opposition, we have no hesitation in accepting the statement of the petitioner in this respect as well. It is, there fore, clear that although the notice speaks of establishment of the workshop, the reason for the requisition is to give a short cut passage to the main road to facilitate the business of respon dent No. 3, and thus, to help him in earning more profits in his own private business. In view of the firm assertion that there are as many as 11 such workshops in the town of Khulna and there being no affidavit‑in‑opposition, by any of the local officers having personal knowledge, we accept the statement of the petitioner that so far as public is concerned they are getting same services from other workshops and public in general are not at all interested in the establishment of the workshop of respon dent No.

3. It is not necessary to enter into an elaborate discussion as to what is or is not a `public purpose'. We would, however, refer to the oft quoted passage of Bachelor, J., which has been approvingly noticed by their Lordships of the Privy Council in Hamabai Framji Petit v. Secretary of State for India (1). "General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase `public purposes' in the lease; is enough to say that, in my opinion, the phrase, what ever else it may mean must include a purpose, that is, an object or aim, in which general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned."

6. In the present case, it is not only that public is neither directly nor vitally concerned in the acquisition of the land in question, but on an appraisal of facts noticed above, it is clear to us that the sole purpose of the requisition is to confer a benefit on respondent No.

3. To constitute a `public purpose' community in general as opposed to an individual, must be `directly and vitally' concerned. In this connection we would also refer to the well known passage from Willoughby's Constitu tional Law, Vol. 2, page 795. "As between individuals, no necessity however, great, no exigency, however, imminent, no improvement valuable, no refusal, however, unneighbourly, no obstinacy however, unrea sonable, no offer of compensation, however, extravagant, can compel or require any man to part with an inch of his estate."

7. Confronted with the facts of the case and well recognised judicial principles relating to `public purpose' Mr. Badrul Haidar Chowdhury learned counsel who appeared for respondent No. 3, Abdullah Brothers, frankly conceded that there was no public purpose in the requisition although it was reasonable.

8. We are satisfied, on the facts and circumstances of this case, that the purpose for which the land has been requisitioned is not a `purpose in which public is directly or vitally concerned'.

9. The next point urged by the learned Advocate for the petitioner is that the notice served on his client is vague and indefinite. On a reference to the notice, it is found that only the area of plot No. 2063 has been given in the notice. But no definite indication has been given as to from which part of that plot, area of land as requisitioned will be taken. Nor any mention of the pathway has been made in the notice. It is also not clear whether the area proposed to be taken will be of a square or rectangular shape arid for what purpose the area requisitioned will be utilised. Therefore, the contention of the learned Advocate that it is not possible for his client to know from the notice as to which part of the plot has been requisitioned, is of substance and, we hold that the notice suffers from indefiniteness anal vagueness. When somebody's property is sought to be taken, he should be given a precise notice of what is being actually taken from him. On this ground also the impugned order is liable to be set aside.

10. Mr. Mirza Golam Hafez has also contended that there has been absolutely no application of mind by the requisition ing authorities in taking the properties of his client and he claims that before his client could be asked to part with his property, the requisitioning authority should have considered his sufferings as well. On a reference to the file which has been produced before us, it is noticed that on 9‑9‑61, it is noted in the order‑sheet that the land Acquisition Officer discussed the matter with the Deputy Commissioner who ordered him to requisition the proposed land. There is no indication whatso ever in the file to show that the Deputy Commissioner considered the desirability of requisitioning the property for any of the purpose enumerated in section 3 of the Act. He has not applied his mind at all to show how this acquisition is directly benefi cial to the public, nor has he given any indication whatsoever that he applied his mind and considered the sufferings of the petitioner. If he had done so, he would have realised that already a part of his plot No. 2063 had been acquired for widen ing the Upper Jessore Road and further acquisition of this small plot of land would render the remaining part of plot absolutely useless to the petitioner and he would have certainly refrained from acquiring this property in a manner so as to render F it useless to the owner. In the absence of any consideration of these aspects of the question anywhere in the file, we must hold that there has not been any application of mind in requi sitioning the property and the power entrusted with respon dents Nos. 1 and 2, has been exercised in a most arbitrary manner and, in that sense, in a mala fide way. It was a duty incumbent on the requisitioning authorities to consider that the petitioner is also a businessman and that there could not be any public purpose in depriving the petitioner of his property in order to confer benefit on respondent No. 3 who is another businessman, and the learned Advocate for the petitioner, has described this as an act of `robbing Petter to pay Paul.' Failure to consider then. aspects of the question is a clear indication that the requisitioning authority did not apply his mind to the relevant questions.

11. The learned Advocate for the petitioner has submitted that purpose of requisition in the very initial stage being a permanent one and there being no immediate need for taking possession of tire property the requisitioning authorities should have pronounced under the Land Acquisition Act and not under the East Bengal (Emergency) Requisition of Property Act. According to him section 3 of the Requisition Act empowers the authorities to requisition the property and section 5 autho rises them to acquire the requisitioned property. We must say that the respondents in this case have totally failed to establish that they were in immediate need of taking possession of the land in order to avoid some imminent loss or suffering. Having regard to the scheme of the Requisition Act, the respondents are to establish that need for immediate possession was such as to justify taking action under this Act. The purpose in this case was to provide a short‑cut passage to respondent No. 3. through the land of the petitioner although there was an alter native pathway. We must hold that on the facts of this there was absolutely no jurisdiction for proceeding under the Requisition Act and this contention of Mr. Hafez has also substance. For the reasons stated above, we make the rule absolute and respondent No. 1 is directed to cancel the impugned order made on 15‑11‑61, in Land Acquisition Case No. 55 of 1961‑62(4), of district Khulna, in respect of C. S. plot No. 2063, J. L. No. 3 of Mouza Baniakhamar of the Khulna Collectorate and forbear from giving effect to the same. The petitioner is entitled to his costs which we assess at ten Gold Mohors. MURSHED, J.‑I agree. s, d./K. H. A. Rule made absolute.