P L D 1966 Supreme Court 650 (PLP)

HAMOODUR RAHMAN, J.-This certificated appeal is directed against the judgment and order of a Division Bench of the High Court of East Pakistan in a writ petition filed on the 18th of July 1960, for the cancellation, withdrawal or recission of a Memorandum issued by the District Magistrate of Tippera on the 6th of April 1960, whereby he purported to re-open a proposal for the requisition and acquisition of certain lands belonging to the appellant in pursuance of an order of requisition passed on the 22nd of December 1959, in Land Acquisition Case No. 15 of 1959-60 for the extension of the Power Station of Chandpur Electric Supply, Tippera. The appellant was originally incorporated as a private limited company in the year 1910 with its registered office at Narayanganj, Dacca, for the purpose of trading in jute but after Independence all the original directors of the said company, who were Europeans, left Pakistan and the business of the Company, as stated to the Company's own petition, "almost came to an end. It was at this stage that Messrs Adamji, it is said, took over the said company and converted it into a public limited company in the year 1949, but the name was not changed. This Company had several branches in East Pakistan including one at Chandpur. The Chandpur branch was situated on some 30 bighas of land on the banks of the river Padma and contained several bungalows, out-houses, godowns, etc. The entire premises of the company were requisitioned by the District Magistrate, Tippera, on the 9th of December 1958, but on the representation of the company this requisition was withdrawn on the 21st o:' May 1959, by a written order communicated by Memorandum No. 1492-EB. Subsequently the Government of East Pakistan again served a notice upon the said company under section I read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948, requisitioning only 0.957 acre of land, including the structures thereon, for the purpose of extension of the Power Station of the Chandpur Electric Supply. The company filed an objection against this requisition on the 4th of January 1960 and the District Magistrate of Tippera after hearing the objection petition referred the matter to the Land Acquisition Officer for further enquiry. On the report of the Land Acquisition Officer the District Magistrate of Tippera on the 20th of January 1960, passed the following order on the said objection:- "Sub: Requisition and acquisition of land for extension of Power Station of Chandpur Electric Supply, Tippera. Ref: Their objection petition dated 4-1-60. The idea of taking over the possession of the part of your premises has since been abandoned. (Sd.) (Illegible). For District Magistrate, Tippera," Subsequently on the 6th of April 1960, the District Magistrate of Tippera again issued the impugned Memorandum which is set out below:- "Memo. No. 881-E, dated 6-4-60. To The Manager, M/S. R. Sim & Co. Ltd. Narayanganj, Dacca. Sub: Requisition and acquisition of land for extension of Power Station of Chandpur Electric Supply. Ref: This office No. 121-E, dated 20-1-60. The above proceeding has been reopened at the instance of the Superintending Engineer Rural; Khulna Circle, and your representation dated 4-1-60 has again been enquired into by S. D. O., Chandpur. On consideration of the dire necessity of land for the extension of the Chandpur Electric Power House the original area of land proposed for requisition and acquisition has been reduced from .957 to .6125 of an acre i.e., in the interest of your business an area more or less -34 of an acre has been excluded from the west. Accordingly the possession of the above land will be taken over and made over to the R. B. on 12-4-60 by the L. A. C., Tippera. You are, therefore, requested to send one of your representatives to the site to remain present at the time of taking over possession on the date fixed. In this connection it may be mentioned here that a sum of Rs. 12,265-14-0 being the advance of compensation will be paid to you and you may receive the above amount through your authorised agent from this office on any working day. (Sd.) B. RAHIM 5/4 for District Magistrate, Tippera." Against this order of the District Magistrate the company moved the Commissioner in appeal and the Government of East Pakistan in revision without any success. Failing in these efforts the company ultimately invoked the writ jurisdiction of the High Court contending that the order of the 20th of January 1960, (quoted above) amounted to an abandonment of the requisition and after such abandonment the District Magistrate had no authority or power to re-open the matter, for the order passed on the objection on the 20th of January 1960, acquired finality under the provisions of the Act of 1948. This petition was contested by the Government of East Pakistan which maintained that by the above-mentioned order the District Magistrate had not abandoned or rescinded the order of requisition issued on the 22nd of December 1959, but merely stayed his hands ad interim in so far as the taking over of possession was concerned. The contention of the appellant found favour with the High Court which held that the order of the 20th of January 1960, "did amount, in the circumstances of this case, to an order of rescission", as it disclosed that the proposal had been abandoned indefinitely. But notwithstanding this finding the writ was refused, as the appellant had failed to obtain an ad interim order of stay when moving the writ petition and the Government had since taken over possession of the land. In such circumstances, it was considered that it would "be futile to direct the respondents to cancel the order passed on the appellant by Memorandum No. 881-E, dated the 6th April 1960." Another Division Bench of the same High Court, however, felt that it did "not necessarily follow that the possession in pursuance of the present requisition, which has been rescinded, should not be declared illegal and there should not be any direction to restore the property to the possession of the real owner", and accordingly granted leave to the appellant to appeal to this Court. Before us also the learned counsel appearing in support of this appeal has contended that since the only right that accrued to the requisitioning authority in pursuance of an order of requisition under the Act of 1948 was to take possession of the property requisitioned, the abandonment of the idea of taking over of possession was tantamount to an abandonment of the requisition itself and, therefore, the High Court was right in holding that the requisition order of the 22nd of December 1959, had, in fact, been rescinded. But he seeks to challenge the validity of the latter portion of the High Court's order refusing the writ. It is urged that once the requisition is found to have been rescinded the Government has no longer any right or authority to remain in possession of the property and the property must, in such event, be restored to the owner from whom it was illegally taken. The retention of possession, in such circumstances, was clearly without lawful authority and should not have been allowed to be maintained. Whether the authorities could subsequently re-take possession after issuing another valid order of requisition was not a relevant consideration for refusing the writ after coming to the clear finding that the requisition order had itself been rescinded. The writ, it is argued, could not have been refused on a purely speculative consideration, namely, that the possession could be validated ex post facto by the issuance of another valid order of requisition, for the Government may or may not have issued such an order or pursued the matter of requisitioning the area concerned. In any event, the issuance of a direction for restoration would not have been futile, for even if a subsequent valid order of requisition was issued it would have given the appellant a very valuable right of receiving compensation at a considerably enhanced rate calculated on the basis of the rents prevailing on the date of the subsequent order. Looking at the provisions of the Act of 1948, however, we are unable to agree with the High Court that the abandonment of the taking over of possession could, under the provisions A thereof, amount also to a rescission or cancellation or withdrawal of the order of requisition itself. Under the scheme of the Act the order of requisition has to be made under section 3 thereof by an order in writing. This order has then to be served on the owner in the manner provided by subsection (1) of section 4, and when the order of requisition has been so served subsection (2) of this section provides that the officer empowered to make the order of requisition "may take possession of the property forthwith and may use or deal with the property in such manner as may appear to him to be expedient." Section 5 provides that thereafter the Provincial Government may, if it thinks fit, also acquire any property so requisitioned. This indicates that the Government is not bound to acquire a requisitioned property but if the intention is to acquire it then the property must first be requisitioned. It is only a requisitioned property that can be acquired under this Act. The Act also provides by section 7 for the payment of compensation, both for the requisition and the acquisition of the property. The proviso (iii) appended to this section fixes a different criterion for the assessment of compensation for requisition alone. In a case where the property is only requisitioned and not acquired and it is immovable property then the compensation awarded is not "to exceed the amount of rent allowable in respect of such property". Finally section 8 provides that where a requisitioned property is not acquired and the purpose for which the requisition was made no longer exists, then it may be released from requisition and then the officer empowered should restore it to the person from whom the property was requisitioned or to his successor-in-interest or to such other person as may appear to the officer concerned to be entitled to such restoration. Furthermore, if the requisitioned property is released from requisition and the person to whom it is to be restored wilfully neglects or refuses to take delivery of such requisitioned property, then the officer concerned is to direct such person in writing to take over possession of such property. Again, where the person to whom possession is to be restored cannot be found or has no agent empowered to accept delivery on his behalf the officer concerned is to cause a notice to be published in the official Gazette declaring that the property is released from requisition and have such notice affixed on some conspicuous part of the property. Under section 8-A if the property requisitioned is situated in an area to which the East Pakistan Premises Rent Control Ordinance or any other similar law for the time being in force applies then the authority releasing such property from requisition has to "inform, in the manner prescribed by rules, the fact of release thereof, to the person or persons" who would have been entitled to the restoration of possession of the property if the property had not been in the occupation of another person under an allotment order from Government. An examination of the above provisions indicates that possession can only be taken after an order of requisition ha been made and served upon the owner of the property in the manner provided by section

4. The requisitioning and the taking over of possession are, therefore, not synonymous acts. An order of requisition, which is not intended to be given effect to will, therefore, have to be cancelled if possession of the requisitioned property has not yet been taken and until it is cancelled it will continue to remain in force. The mere fact that possession is not taken of the requisitioned property for a period of time will not render the order inoperative or amount to its cancellation. The cancellation of an order can only be made by following the same procedure as is prescribed for the making of the order itself (vide section 22 of East Pakistan General Clauses Act, 1899). Subsection (2) of section 4 of the Act merely provides for the consequence of the requisition as an independent act to be performed on the basis of the order of requisition itself. It is not without significance that the order impugned in the present case was made within 2 1/2 months of the earlier order intimating the abandonment of the idea of taking possession. This cannot be regarded as such a long period as to lead to the inference that not only the idea of taking possession but also the idea of requisitioning the land had been abandoned. Even otherwise we are of the view that section 8 of the Act contemplates the making of a formal order releasing the property from requisition. This section reads:- "8. (1) Where any requisitioned property is to be released from requisition, the Deputy Commissioner may restore it to the person from whom the property was requisitioned or to his successor-in-interest or to such other persons as may appear to the Deputy Commissioner to be entitled to such restoration. (2) The delivery of possession of the requisitioned property to the person referred to in subsection (1) shall be a full discharge of the Deputy Commissioner from all liability in respect of such delivery, but shall not prejudice any rights in respect of the property which any other person may be entitled by due process of law to enforce against the person to whom possession of the property is so delivered: Provided that when the person, to whom the requisitioned property is to be restored on release from requisition, wilfully neglects or refuses to take delivery of the requisitioned property on being directed in writing to take possession of such requisitioned property by the Deputy Commissioner such requisitioned property shall be deemed and shall always be deemed to have been restored to such person within the meaning of this subsection with effect from the date and time specified in the aforesaid direction. (3) Where the person to whom possession of any requisitioned property is to be given cannot be found and has no agent or other person empowered to accept delivery on his behalf the Deputy Commissioner shall cause a notice declaring that the property is released from requisition to be affixed on some conspicuous part of the property and published in the official Gazette. (4) When a notice referred to in subsection (3) is published in the official Gazette, the property specified in such notice shall cease to the subject to requisition on and from the date of such publication and be deemed to have been delivered to the person entitled to possession thereof; and the Deputy Commissioner shall not be liable for any compensation or other claim in respect of the property for any period after the said date." It will be observed that it has been provided by this section that where the person entitled to restoration of possession neglects or refuses to take delivery of possession or cannot be found or has no agent empowered to accept delivery of possession on his behalf a notice to the effect that the property is released from requisition has to be published in the official Gazette and affixed on some conspicuous part of the requisitioned premises. Even the restoration of possession required to be made under sub section (1) of this section has to be made when the requisitioned property "is to be released" from requisition, i.e., with a view to its release. Thus this also contemplates the issuance of an order of release after the competent authority has determined the person who is entitled to the restoration. We are unable, therefore, to agree that the order of the 20th of January 1960, can be construed as an order rescinding the requisition itself. In our opinion, it did no more than postpone the taking over of possession for an unspecified period. If the intention was to abandon the idea of requisitioning the property there was nothing to prevent the District Magistrate concerned from so informing the appellant-company. The fact that he did not do so and merely stated that "the idea of taking over possession had been abandoned" shows that he was deliberately refraining from saying that the proposal for the requisition and acquisition of the land concerned had also been abandoned, particularly, since it is evident from the Memorandum itself that the subject of the communication was the "requisition and acquisition of land for extension of Power Station of Chandpur Electric Supply Tippera." In this view of the matter, it is clear that the writ petition before the High Court was bound to fail. The order of the High Court refusing to issue the writ was, therefore, a proper order in the circumstances of the case, although it was based on grounds which cannot be considered to be justified in law. If the impugned order of requisition of the 6th of April 1960, was, as held by the High Court, illegal and had been made without any lawful authority then we find it difficult to appreciate why the High Court should have refrained from ordering the restoration of possession which should have followed as a legal consequence of the declaration of rescission granted by the High Court in respect of the order of requisition itself which formed the basis of the right to possession. The mere fact that the requisitioning authority had taken unlawful possession of the property in the meantime and managed to retain such possession for over a year could not, in our opinion, be a valid ground for refusing the writ. This amounted to perpetuating an illegality. It is true that a writ will not issue when it is manifest that it would be futile in its result or when the party complained against has powers which would enable it to make the writ inoperative, But the present can, by no means, be considered to be a case of that kind, for, as we have earlier indicated even the' issuance of a fresh order of requisition would have resulted in the4 accrual of valuable rights to the appellant. This question need not, however, be pursued any further for, in the view we have taken, this writ was, in any event, bound to fail on merits. This appeal is, accordingly, dismissed but having regard to the special features of this case we make no order as to costs. A. H. Appeal dismissed.