P L D 1964 Dacca 782 (PLP)

SATTAR, J.‑In each of these three applications under Article 98(2) of the Constitution, the petitioner, Mrs. Cazi Peara Akhtar Banu Begum, has obtained a Rule upon (1) Additional Deputy Commissioner, Dacca, (2) Land Acquisition Collector, Dacca and (3) Province of East Pakistan represented by the Secretary, Revenue (Reqn.) Department, Dacca to show cause why they should not be directed to regularise the illegalities by sending a fresh requisition notice under the Act which they are required by law to do or, in the alternative, restore possession of the properties taken by the order of requisition in Requisition Case No. 88/56‑57 on the 16th of March 1957. The petitioner's case in each of these applications is that she is the owner of certain plots in Mauza Barabo, P. S. Tejgaon in the district of Dacca. The said properties were requisitioned in Requisition Case No. 88 of 1956‑57 for the purpose of establish ment of a special residential Model School at Dhanmandi but neither any requisition order was made in the name of the petitioner nor any notice of requisition was served on her. She was however served with a notice on the 28th of March 1959, to produce documents when she came to know that the properties had been wrongly requisitioned on the 16th March 1957. The petitioner then prayed that the question of compensation be referred to arbitration. The Additional Subordinate Judge, Dacca was appointed Arbitrator and arbitration cases were started. The Arbitrator, however, by his orders dated the 5th July 1963 and 6th July 1963 held that he had no jurisdiction to make Award in these cases inasmuch as no order of requisition under section 3 of the East Bengal (Emergency) Requisition of Property Act (hereinafter referred to as the Act) was passed in the name of the petitioner in the file concerned. The petitioner thereafter on the 29th July 1963, after obtaining certified copies of the orders of the Arbitrator duly represented to the respondents and required them to regularise by making fresh order of requisi tion and acquisition but nothing was done in that direction and hence these applications for directions either to regularise the matter by a fresh order or to restore possession of the properties to the petitioner. An affidavit‑in‑opposition on behalf of the respondents has been affirmed in each of these cases by Mr. Mahboob Ali Khan, Extra Assistant Commissioner and Land Acquisition Officer, Dacca. It has been stated in this Affidavit that the respective requisition notice under section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948 was served either on the petitioner's husband or on some persons who were reported to be owners in respect of the plots in question. Subsequently, however, notices of acquisition under sections 5(1) and 5(3) were served on the 22nd May 1960 in the name of the petitioner. It has then been said that the plots in question were acquired under section 5(7) of the Requisition Act and final Award of compensation was prepared in favour of the petitioner sometime in 1959 and the petitioner received payments in respect of some of these plots. The deponent has then said that with regard to the plots in question the requisi tion proceedings under sections 3, 4(1) and 4(2) and acquisition proceedings under sections 5(1), 5(3), 5(7), 7 and 7(aa) had all been completed quite sometime ago and at no stage of the proceedings did the petitioner ever raised ,any objection as to the legality or otherwise of the requisition order. It has then been said that the petitioner at least came to know of the requisition of the plots in question immediately they were taken possession of and delivered to the Requiring Body; but, instead of filing any objection against acquisition or taking any legal steps to have the requisition proceedings set aside in a competent Court, she acquiesced to the requisition and acquisition and applied for arbitration. It has finally been said that the plots in question have been built upon by the Requiring Body and the petitioner all throughout allowed the Requiring Body to do so. An affidavit‑in‑reply has been filed by the petitioner. In this affidavit the petitioner has asserted that as she was not aware how the requisition was made, she was misled by the presumption that Government work must have been validly done and therefore she could not challenge the requisition and acquisition proceedings before she applied for Arbitration. Mr. Asrarul Hossain appearing on behalf of the petitioner has, firstly, contended that as in the requisition order the petitioner has not been named as the owner of the lands in question, the order is bad. In support of this petition, learned counsel has relied upon three unreported decisions of this Court to two of which one of us is a party. In these cases, it has been held that in a case where the notice of requisition has not at all been issued in the name of the owner, his or her interest in the requisition land is not affected by the requisition order passed under section 3 of the Act. In the case of Muhammad Ismail v. The Province of East Pakistan (PLD1964SC475) the Supreme Court has considered !he effect of non‑service of notice under section 4 of the Act. It has firstly, been held that non‑service of notice does not affect the validity of an order passed under section 3, and, secondly, that the right to object to the want of service of the notice may be waived. Section 3 of the East Bengal Requisition of Property Act at the relevant time was worded in the following language :‑

"If in the opinion of the Provincial Government it is expedient or necessary so to do for the administration and development of the New Province of East Bengal or .for any other public interest connected therewith such as improvement of towns or ports, construction or betterment of roads, water‑ways or other communications, development of commerce or industries, maintenance of supplies and services essential to the life of the community and other similar purpose, the Provincial Govern ment may by order in writing requisition any property and may make such further orders as appear to that Government to be necessary or expedient in connection with such requisition: Provided that no property used by the public for the purpose of religious worship shall be requisitioned: Provided further that the Provincial Government may exempt any particular property or class of properties or exclude any particular area from the operation of this Act." It will be seen that there was no provision in this section for mentioning the name of the owner in the order of requisition. Section 18 of the Act provides for making rules for carrying out the purposes of the Act. Under this section, the Provincial Government may inter alia provide by rule the form of the order of requisition referred to in subsection (1) of section

4. It is in exercise of this power that rule 3 has been made but for the purpose of understanding the provisions of rule 3 we feel that both rules 2 and 3 should be quoted. They run as follows :‑

"2. (1) A 'separate proceeding shall be started with each proposal ‑for the requisition of any property under the Act. (2) Before making an order for the requisition of a property under section 3, the officer competent to make such order shall satisfy himself that the proposed requisition falls within the scope of the provisions of section 3.

3. An order of requisition referred to in subsection (1) of section 4 shall be in Form A." Form A is in the following terms:‑

"FORM A" ORDER OF REQUISITION OF MOVABLE/IMMOVABLE PROPERTY. (SECTION 3 OF THE ACT). Whereas in my opinion it is expedient and necessary in the public interest to requisition the movable/immovable property described in Schedule A below/annexed to this order, for the *administration/development of the Province of East Bengal. *Improvements of communications/water‑ways/drainage/the town/port of . . . . . . . . in the Province of East Bengal. *development of commerce/industries of the Province of East Bengal. *maintenance of supplies and services essential to the life of the community in the Province of East Bengal. Now, therefore, in exercise of the powers conferred by section 3, read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948), which powers have been delegated to me by the Provincial Government, I requisition the said property and hereby make the following orders:‑ . . . . . . . . . . . . . (name) . . of (address) . . . . . . . . . . . . the *owner/occupier of the said property. "(a) shall place the said property at my disposal and under my control with effect from the . . . . . . . . . . 194 . . . . and deliver possession thereof on the said date to . . . . . . . . who has been authorised to receive it on my behalf; (b) shall furnish to the said . . . . . . . . . such information in his/her/their possession relating to the said property as the said . . . . . . . . . may by an order in writing specify; (c) shall on or before . . . . . . . 194 . . . . . . remove from the said property the movable properties as specified in the Schedule "B" *below/annexed to this order or any other movable properties which may be specified in an order in writing by the said . . . . . . . . (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 as this order remains in force; and SCHEDULE `A' AND `B'. Additional District Magistrate of . . . . . . . . . . . . . . Dated . . . . . . . . . . . the . . . . . . . . 194 . N. B.‑(1) Claims for compensation should be submitted to the District Magistrate of . . . . . . . . (2) Occupants are advised to report their new addresses (village, thana, union, post office, district) immediately to the District Magistrate of . . . . . . (3) Strike out what is not applicable." It will thus be seen that the form in which the name of the owner is to be given is the form for the order mentioned in section 4(1) of the Act which is nothing but the form of the notice to be served on the owner or occupier. The question that arises is; whether a mistake in relating to the naive of the owner or even an omission in this regard in this form vitiates the order passed under section 3 of the Act? Neither under the Act nor under the rules framed the order passed under section 3 which is the requisi tion order need contain the name of the owner. In this view of the matter, the omission to mention the name of the real owner in the form prescribed for service of the order under section 4 does not affect the order passed under section

3. Subsection (2.) of section 4 provides that where the order of requisition has been served under subsection (1) in respect of a property the District Magistrate 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. As we have already seen, the Supreme Court in the case of Muhammad Ismail has held that the right to object to the want of service can be waived. The petitioner in this case on her own showing came to know of the requisition long before she made an application for reference to arbitration. The argument of Mr. Asrarul Hussain that the petitioner did not know about the omission to mention her name in the order before the matter came up before the Arbitrator is not acceptable in view of what we have seen in the file. The petitioner, as early as on the 30th of November 1958, complained to the Additional Land Acquisition Collector that payment for some of these plots should not be made to one Faloo when she had already established her right, title and interest in respect of these plots. The application of the petitioner is on the file. She long after this and after having received part payment of compensation applied for reference of the question compensation to arbitration. Regard being had to these facts, we are of the view that the petitioner had no right to challenge the validity of the order of requisition before the Arbitrator nor can she do so before us. It is unfortunate that in spite of having herself had the question of compensation referred to arbitration, the petitioner took before the Arbitrator the stand that the order requisition was bad. We do not exactly understand how the Arbitrator could go into this question. Section 7 of the Act provides for payment of compensation for requisition or acquisition under the Act. Section 7(a) lays down that where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement. Then section 7(aa) lays down that where no such agreement can be reached, the Deputy Commissioner shall, having regard to the provisions of clause (e), assess compensation for the immovable property, and shall, after obtaining the approval of the Provincial Government thereto, give immediate notice of the assessment to the person or persons interested. Section 7(aaa) (i) then says that any person interested who has not accepted the assessment may by written application to the Provincial Government require that the matter may be referred to an arbitrator, section 7(b) provides that on receipt of such application, the Provincial Government shall appoint as arbitrator a person who holds a judicial office not inferior to that of a Subordinate Judge. Section 7(a) then says that at the commencement of the proceed ings before the Arbitrator, the District Magistrate and the person to be compensated shall state what in their respective opinions is a fair amount of compensation. Section 7(e) lays down how the Arbitrator is to make the award. These are the relevant provision regarding Arbitration and it is difficult to see how the Arbitrator, while acting under these provisions, could go into the question of the validity of the order of requisition. In our view, there is no provision which empowers the Arbitrator to decide the question of the validity of a requisition order. Mr. Asrarul Hossain has not been able to show us any authority in support of his contention that the Arbitrator could decide this question. He has, however, argued that, as the Provincial Government did not challenge the order of the Arbitrator, the order is binding on the parties. We do not think that stand in any way helps him in this case. We have already found that the relevant provisions in the Act do not point to any power on the part of the Arbitrator to question the validity of an order of requisition. It is true that, in view of the orders of the Arbitrator, an anomalous position has come about, but for this nobody is responsible than the petitioner herself. In our view, the order of the Arbitrator is wholly without jurisdiction. Learned Advocate‑General appearing for the respondents has assured us that if the petitioner makes any attempt to revive the arbitration proceedings before the Arbitrator, the respondents Will not stand in her way. The applications must fail. The Rules, therefore, are discharged with costs which assess in all at ten Gold Mohurs for all the three cases. A. M. SAYEM, J.‑I agree. K. B. A. Rule discharged.