P L D 1962 Dacca 152 (PLP)

MURSHED, J.‑This is an application for the issue of a writ of mandamus directing the respondents to recall a notice dated the 17th of June 1960, given to the petitioner by the Land Acqui sition Collector, Dacca, and served on the petitioner requiring him to give his assent to an offer of a sum of Rs. 12,366 as advance and part payment of compensation in respect of petitioner's plot of land which was requisitioned and also purported to have been acquired. The petitioner has further asked for a direction upon the respondents that the assessment of compensation in respect of the petitioner's land so requisitioned should be on the basis of Act XXXII of 1957. The petitioner claims to be one of the owners, in occupancy right of a plot of land situated in a village which is popularly known as Kamalapur, within Tejgaon Police Station in the District of Dacca. The plot of land was requisitioned in 1951 by the Govern ment of East Pakistan under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 for the purpose of providing a diversion of railway lines of the East Bengal Railways from their existing position in the town of Dacca. After Govern ment took possession of the said plot of land along with a number of plots belonging to others, nothing was done in the matter. In January 1958 petitioner's plot of land was de‑requisitioned. He asserts that he could not develop his land and utilise the same to his best advantage because the said plot was under requisition for such a long time. The land adjacent to the petitioner's plot appreciated in its value considerably during these years. It is said that the petitioner developed the plot of land after it was de‑requisitioned, at a considerable expenditure. Thereafter on the 6th of May 1940, the same plot was again requisitioned with the object, as stated by the Requisitioning Authority, of constructing a station‑yard of the said East Bengal Railways. The District Magistrate, Dacca, in pursuance of the notice so served upon the petitioner, took possession of the said plot of land. The petitioner states that he did not object to such requisition in the hope that he would be given a reasonable compensation for the land so requisitioned on the basis of its market value at the date of requisition as provided by Act XXXII of 1957. He also expected that in consideration of the fact that he has suffered quite a substantial loss for the use and occupation of the said plot for a number of years, the compensation paid to him would be at a fair rate. On or about the 19th of June 1960, the petitioner received the impugned notice dated the 17th June 1960, for accepting an amount of Rs. 12,366 as advance and part payment of compensa tion for the requisition and acquisition of his plot of land. The said notice reads as follows: ‑ "Notice is hereby given that in the above case you have been treated as a person interested and sum of Rs. 12,366 will be paid to you as advance and part payment of compensation for the requisition and acquisition of the above property. If you are willing to accept payment, you should appear before me personally or by a duly authorised agent on 21‑6‑60 at 9 a.m. at Baganbari of Afiruddin Sardar. Interest will not be payable in the case of failure to appear. Sd. Illegible 17/6 Dated 17‑6‑

60. Land Acquisition Collector, Dacca." The petitioner asserts that the said notice of the 17th June 1960, took him by surprise. He could not understand how his plot of land was acquired inasmuch as he did not even receive a preliminary notice of acquisition as provided for by the East Bengal (Emergency) Requisition of Property Act, 1948. On enquiry he came to learn that the amount so specified in the said notice was for payment to the petitioner as 50yo of the amount of compensation assessed to be payable to him on the basis of Rs. 12,500 per acre. He further came to learn that the said rate was assessed on the basis of an estimated market rate of the value of the requisitioned property prevalent in the year 1953. According to the petitioner, the value of his land requisitioned by the respondent would be approximately Rs. 90,000 per acre, which was the market rate, at which the adjacent lands were being sold at the date when the property was requisitioned. His case, in substance, is, that he should be paid compensation at the prevalent market rate on the date when his property was requisitioned, but the respondents seem to have assessed compensation at the market rate prevalent in 1953 in accordance with the provisions of Ordinance XXV of 1959 which came into force on the 30th of March 1959. He has, therefore, challenged the validity of the said Ordinance on various grounds, which we shall set out hereafter. He has also elaborately stated in his petition how the market rate of 1953 as compensation for his land was unreasonable and unjust. His main contention, however, is that the impugned notice dated the 17th of June 1960, served upon him, which purports to assess compensation for his plot of land, which was requisitioned on the footing that it was also acquired, is bad in law. He has submitted that no question of acquisition of his plot of land arises at the present moment because, in fact, it has not been so acquired. In these circumstances, he contends that the notice is illegal and not binding upon him. On behalf of the respondents an affidavit‑in‑opposition has been filed in which the respondents have not admitted the claim of the petitioner that he had considerably improved his land when it was de‑requisitioned in 1958 or that the petitioner was prevented from doing so during 1951 and 1958 when the said land was under requisition. In the affidavit‑in‑opposition, however, the respon dents' case is that Act XXXII of 1957, which provided for compensation at the market value of the land on the date on which it was so requisitioned, has been repealed by Ordinance XXV of 1959, which provided that the compensation would be assessed at the market value of the land in the year, 1953. That being the current law the respondents claim that it was perfectly legal to assess compensation on the basis of the provisions of the said Ordin ance XXV of 19_

59. The respondents have also traversed the various grounds upon which the petitioner claims that Ordinance XXV of 1959 is ultra vires of the powers of the Governor of East Pakistan. They further joined issue with the petitioner on the question that the requisition of the said property and the purported rate of compensation were mala fide. In the said affidavit‑in‑opposition the respondents have not claimed that the petitioner's plot of land has, in fact, been acquired. They have merely indicated an intention to do so at some future date. To this extent the petitioners' claim has not been challenged by the respondents, At the hearing of this Rule Mr. H. S. Suhrawardy appeared for the petitioner and pressed the following points before us: ‑ (i) There being no direction of the President in respect of the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance, 1959 (Ordinance XXV of 1959), the said Ordinance is void and of no effect. (ii) That the Ordinance is ultra vires of the powers of the Governor and is, therefore, void and of no effect. (iii) That inasmuch as the provisions as to payment of compensation under the said Ordinance is discriminatory in character, the said provisions are void, particularly because, the provision with regard to assessment of compensation at the market value of the land in question as it stood in 1953, is arbitrary and unreasonable. (iv) That inasmuch as the real purpose of the respondents was to acquire the property and to pay lesser compensation for lands so acquired than that which would have been payable under the Land Acquisition Act, 1894 or under East Pakistan Act, XXXII of 1957, the said order of requisition is mala fide and liable to be set aside. (v) That the basis of compensation provided by the said Ordinance XXV of 1959 being grossly inadequate and unjust is void. (vi) Finally it was argued that, in any event, the impugned notice dated the 17th June 1960, served upon the petitioner is bad and illegal inasmuch as it purported to offer for the accept ance of the petitioner a sum of money as part payment for requisition as well as acquisition of the said property, although it has not been so acquired. The petitioner did not press this application in so far as he had obtained the Rule for a direction from this Court that the assessment of compensation in respect of the petitioner's land should be on the basis of its market value at the date when it was requisitioned and not at the market value of the land in year 1953. With regard to the first point as stated above, Mr. Suhrawardy drew our attention to the Laws (Continuance in Force) Order 1958 that Is (President's Order (Post‑Proclamation) No. 1 of 1958). Article 5 (2) of the said Laws (Continuance in Force) Order 1958 reads as follows :‑ "In the exercise of the powers conferred by the previous clause the Governor shall act subject to any directions given to him by the President or by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator." It was argued on behalf of the petitioner that Article 5 (1) empowers the Governor to make Ordinance, but such power was subject to directions given by the President or by the Chief Administrator of Martial Law. We do not think that it can be seriously contended that all the powers exercisable by the Governor are made subject to a previous direction obtained from the President. All that clause (2) of Article 5 provides is that the powers exercisable by the Governor shall be subject to directions given by the President. In this case, it has not been shown that any direction has been given by the President restricting the powers of the Governor to promulgate Ordinances under clause (2) of Article

5. There is, therefore, no substance in this point. Mr. Suhrawardy has argued that an important piece of legislation like Ordinance, XXV of 1959 should not have been hastily introduced and that the Governor should have obtained a direction from the President in order to introduce uniformity throughout Pakistan with regard to such legislation that is almost confiscatory in its nature. We may only add that this point has nothing to do with the vires of the impugned Ordinances. This is a matter for the Governor to consider, but, we do feel that the impugned legislation has for reaching consequences and that it entrenches upon the rights of citizens without adequate and just compensation. Mr. Suhrawardy has next contended that the impugned Ordinance is ultra vires of the powers of the Governor on two grounds. In the first place, he has contended that the East Bengal (Emergency) Requisition of Property Act, 1948 has assumed the character of a Central legislation on the promulgation of the President's Order (Post‑Proclamation) No. I of 8958. He has contended that with the revolution, which abrogated the Constitu tion, all laws of Pakistan ceased to exist, and that they were reintroduced with the promulgation of the President's Order (Post‑Proclamation) No. I of 1958. This argument would receive support from a decision of the Supreme Court of Pakistan that the laws of this country ceased to have their legal effect consequent upon the revolution, which abrogated the Constitution which was legal basis of all such laws and that upon the promulgation of the said order they were re‑born the source of their validity being the said Post‑Proclamation Order. [See The State v. Dosso (P L D 1958 S C (Pak.) 533)]. But the question is, whether even if the East Bengal (Emergency) Requisition of Property Act, 1948 was re‑born with the promul gation of the aforesaid Order, did it upon its re‑birth shed its character as a Provincial legislation and re‑emerge as a Central legislation ? We do not think that the East Bengal (Emergency) Requisition of Property Act, 1948 transformed itself as a Central legislation when it was re‑validated by the Post‑Proclamation Order. On the basis of Mr. Suhrawardy's contention as stated above, that the Governor had no power to amend or repeal a Central legislation, the short answer to this is that the East Bengal (Emergency) Requisition of Property Act, 1948 is not a Central Legislation and even if it be deemed to be so, the Governor is empowered to amend it by the impugned Ordinance because acquisition and requisition of land is a Provincial subject. Within the exclusive legislative field of the Provincial legislature, the Governor's legislative capacity is unfettered. If he chooses, so far as this province is concerned, he can amend any Central legislation with regard to any matter, which is exclusively in the Provincial List. The next point contended by Mr. Suhrawardy is, that the provisions of Ordinance XXV of 1959 are void inasmuch as they are discriminatory in character and have been arbitrarily fixed without any reasonable or just basis. Learned counsel has argued that the provisions of Ordinance XXV of 1959 as to the rate of compensation are most unfair and unjust as compared to similar provisions in the Land Acquisition Act, 1894. He has contended that the effect of the impugned Ordinance would be that a person, whose land is acquired, may be paid a fair compensation or a grossly inadequate one as the Requisitioning or Acquiring Authority chooses to proceed either under the impugned Ordinance or under the more liberal provisions of the Land Acquisition Act of 1894. It was argued that this would show that the aforesaid provisions are glaringly dis criminatory in character. Learned counsel has vigorously contended that the rate of compensation at the market value of the land in 1953 is patently arbitrary. There is a good deal of force in this argument and it could have been advanced on the basis of the late Constitution, but we do not think, we can go into this ques tion now. The provisions of the late Constitution with regard to "equality before law" enumerated in the category of fundamental rights has been abrogated. The Supreme Court has held that with the abrogation of the late Constitution the categories of fundamental rights have been wiped out [See P L D 1958 S C (Pak). 533]. It is no longer open to the petitioner to canvass this contention before us. 1n the absence of a constitutional provision as to equality before law an anactment or an Ordinance cannot be challenged before us on the ground that it is discriminatory in character. We have, therefore, refrained from investigating this point any further. Learned counsel has next contended that the order of requisition in respect of the petitioner's property is, mala fide as his property was obviously requisitioned under the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948, with a view to pay him lesser compensation than what he would have been entitled to if the same had been acquired under the Land Acquisition Act, 1894. It was pointed out that the real purpose of the respondents was to acquire the land because the same would be required for a railway diversion plan, which could not be effected without acquisition of land. It was, therefore, submitted that the object of proceeding under the East Bengal (Emergency) Requisition of Property Act, 1948, was merely to give lesser rate of compensation. Whatever, may have been the motive of the Requisitioning Authority with regard to the payment of com pensation, we cannot hold that the order of requisition was mala fide merely because such authority had acted under the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948 and not under the Land Acquisition Act of 1894. The question is whether the law authorises the Requisitioning Authority, who is a public servant, to requisition or acquire the property for a public purpose under any of two different pieces of legislation or enact ment. We cannot hold that the requisition of property under an act, which provides for lesser compensation, must be mala fide merely on that score, in the absence of further materials on which we may be asked to come to that conclusion. In support of the contention of learned counsel as stated above, we were taken through the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948, East Pakistan Act XXXII of 1957 and the East Pakistan Ordinance XXV of 1959 for a comparison of the basis upon which these Ordinances and enact ments have sought to assess compensation for the lands requisi tioned or acquired. The first enactment is a land mark in this branch of legislation' with regard to compulsory land acquisition, namely the Land Acquisition Act, 1894. Section 23 of the Land Acquisition Act, 1894 provided that the following matters were required to be considered In determining compensation. The said section reads as follows: ‑ "(1) In determining the amount of compensation to be award ed for land acquired under this Act, the Court shail take into consideration First: the market value of the land at the date of the publi cation of the notification under section 4 sub section (1) ; Secondly: the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof ; Thirdly: the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of severing such land from his other land ; Fourthly: the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land by reason of the acquisition injuriously affecting his other property movable or immovable, in any other manner, or his earnings ; Fifthly: if in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change ; and Sixthly: the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. (2) In addition to the market value of the land as above pro vided, the Court shall in every case award a sum of fifteen per centum on such market‑value, in consideration of the compul sory nature of the acquisition." This enactment provided for a fair and adequate compensation with regard to the compulsory acquisition of land. It was introduced by the British, during their occupation of this country, in keeping with the liberal tradition of their own country. Even today it is thought in England and various other countries in the Common wealth that nobody's property should be compulsorily taken away without payment of a just, fair and adequate compensation. This principle was also the basis of the provision of section 299 of the Government of India Act, 1935, which was a legislation of the British Parliament. Then came the independence of this country which brought along various pressing and urgent problems which were very difficult to solve. It was imperative that the country should be improved in various directions and the town of Dacca, which was hitherto a district headquarter, had to be converted into a Provincial capital. Lands and properties had to be requisitioned to meet the exigencies of the situation and also with a view to promote the development of a country, which had just emerged as an independent State. In this background, the East Bengal (Emergency) Requisition of Property Act, 1948 was passed and it provided for compensation of land which was assessed at its market‑value in June, 1947. Mr. Suhrawardy has submitted that the said rate of compensation was not unreasonable or unjust at the moment when the Act was passed. There was also a pressing emergency in this country to rehabilitate its displaced inhabitants. Subsequently there were various amendments to the East Bengal (Emergency) Requisition of Property Act, 1948, but the East Pakistan Act XXXII of 1957 amended the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948 with regard to the payment of compensation in respect of compulsory requisition or acquisition of property and provided that compensation would be paid on the basis of the market value of the land at the date of requisition. This was in consonance with the provisions of the late Constitution to the effect that no land could be acquired with out payment of compensation (which meant adequate compensa tion and without the same being required for a public purpose. We were referred to Article 15 of the late Constitution. Mr. Suhra wardy has contended that with the abrogation of the Constitution there was a promulgation of an order by the President to the effect that the country shall be governed as close to the provisions of the late Constitution as possible. He has, therefore, argued that the East Pakistan Ordinance XXV of 1959 could not have modified the provisions of the East Pakistan Act XXXII of 1957 with regard to the rate of compensation to be paid in respect of the land compul sorily acquired. We have already stated that inasmuch as the Supreme Court of Pakistan has held that inspite of the aforesaid Presidential Order the provisions as to fundamental rights, such as, Article 15 of the late Constitution are no longer available to an aggrieved citizen, we will not consider this question any further. Our attention was drawn to the Capital Development Authority Ordinance, 1960, which was promulgated by the President in June, 1960, with a view to carry out the plan for building a Capital of Pakistan at Islamabad near Rawalpindi. Incidentally we may state that it was gratifying to read the pro visions of this Ordinance, which we shall describe as the Rawalpindi Ordinance. It provides for a very comprehensive scheme and brings into existence a body corporate known as Capital Develop ment Authority. It particularly defines the powers of those who are called upon to implement the purpose of the Ordinance with regard to the lands acquired under the said Ordinance. It has laid down a number of matters to be considered in determining compensation, which is in keeping with the Land Acquisition Act, 1894 and also with the late Constitution of Pakistan. Section 30 of the said Ordinance reads as follows: ‑ "(1) In determining the amount of compensation to be award ed for land acquired under this Ordinance the Deputy Commis sioner shall take into consideration,‑ first: the market value of the land ; secondly: the damage sustained by the person interested, by reason of dispossession of any standing crops or trees which may be on the land ; thirdly : the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of severing such land from his other land ; fourthly : the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of the acquisition injuriously affecting his other property, movable or immovable in any other manner of his earnings ; and fifthly : if, in consequence of the acquisition of the land the person interested is compelled to chance his residence or place of business, the reasonable expenses, if any, incidental to such change. (2) In addition to the value of the land determined as aforesaid, the Deputy Commissioner shall in every case award a sum of fifteen per centum on such value in consideration of the com pulsory nature of the acquisition" Learned counsel has asked us, why an Ordinance similar to that of the Rawalpindi Ordinance could not be promulgated in East Pakistan? Our answer is, this is a question, which he is not entitled to ask us. He should pose this interrogation to those, who are responsible for bring into existence such a legislation like the present one, which is impugned before us. The answer that we may give to this question would not affect the validity of the impugned Ordinance. We have repeatedly said that the Courts are concerned only with the legality of an Act or Ordinance but not with its ethics or moral justification. The property of a piece of legislation is not a matter, which is justifiable in a Court of law. However unjust or ethical it may be, a Court of law cannot refuse to give effect to the same merely on the ground that it is unjust and unfair. We now turn to the last point, which, according to us, is the only effective argument that has been advanced before us on behalf of the petitioner, namely, that the impugned notice dated the .17th June 1960 served upon the petitioner, is illegal and bad. We think that the petitioner must succeed on this point. It is patent from the notice, which has been set out above, that it was served upon the petitioner with a view to receive his assent to an advance or part payment of compensation with regard to the petitioners land on the footing that it was requisitioned any acquired. We have already seen that the respondents have frankly conceded that the petitioner's land has not been acquired. It was said that they intended to acquire the same; without having acquired the land they cannot serve upon tire petitioner she notice dated the 17th of June 1960, requiring to give his assent to an offer of compensation for acquisition of the land. The matter is premature and the question of acquisition does not arise at the present moment. It cannot be ascertained from the impugned notice what figure relates to compensation for requisition of the land and what sum is offered for its acquisition. The notice is, therefore, wholly bad. With regard to the rate at which compensation is to be assessed, namely, whether it would be on the basis of market rate at the date of acquisition according to Act XXXII of 1957 or according to the market rate of the land in 1953 as provided by the impugned Ordinance, the point has not been pressed before us as the petitioner feels that this point may and can be agitated at the appropriate moment. In these circumstances, we make the Rule absolute in part and direct the respondents to recall the impugned notice dated the 17th June 1960 served upon the petitioner. In so far as the petitioner obtained this Rule from this Court for directing the respondents to assess compensation on the basis of the East Pakistan Act XXXII of 1957, the rule is discharged as the point has not been pressed before us. The petitioner will be entitled to realise costs of this petition, which we assess at five gold muhars. SALAHUDDIN AHMED, J.‑I agree. K. B. A. Order accordingly.