P L D 1962 Dacca 516 (PLP)

MURSHED, J.‑The petitioner, Mrs. Momtaz Begum alias Momtaz Malik, is the owner and possessor of C. S. Plot No. 644 of mouza Dhanmandi, J. L. No. 251, appertaining to Khatian No. 6/5, P. S. Lalbagh, in the district of Dacca, measur ing, 58 acres. The aforesaid C. S. plot stands on the north of Elephant Road, on the west of Gulbagh Road, on the east of the land of one Mrs. Zainabunnessa and on the south of the petitioner's other lands. On the 12th of April 1961, a notice of requisition was purported to be served upon the petitioner, which was, in fact, received by the petitioner's husband and by which an undefined, unspecified and undemarcated part of the petitioner's aforesaid plot of land was requisitioned by the Additional Deputy Commissioner of Dacca. The said order of requisition thus served on the petitioner and marked Annexure A, consists of a printed paper bearing a rubber stamp facsimile of what is supposed to be the signature of the said Additional Deputy Commissioner, specifying that a part of the said plot is requisitioned. Since the aforesaid piece of paper, which is claimed by the respondents to be an order of requisition, did not give any notice or information to the petitioner as to what portion of the land and the area thereof was requisitioned, petitioner's husband, on her behalf, made desperate attempts to receive particulars and to be definite about the extent and area of the land thus requisitioned. Towards the last week of April 1961, petitioner's husband met the Deputy Commissioner of Dacca and complained to him about the vagueness of the requisition order and also informed him about various other illegalities in respect of the purported order. He wanted to know the exact amount of land, which was sought to be taken away from the petitioner. The Deputy Commissioner could not throw any light on the subject and referred the petitioner's husband to the Land Acquisition Collector, who, in his turn, referred the said gentleman to the Kanungo. The petitioner's husband was told by the Kanungo that the requisition was made in accordance with an approved road alignment of 1954 which would necessitate the acquisition of only about 5 ft. of petitioner's land and furthermore that such land would be taken away from the southern part of the petitioner's land. He was also told that pegs would be put on the land in accor dance with the alignment of 1954. Sometime in the middle of September 1961, respondent No 3, the Chief Engineer of the C. and B. Department of the Government of East Pakistan (Mr. S. Rahman), came to the petitioner's land with one Mr. Sakhawat Hussain, who, on his application, has been added as respondent No. 4 in this case. The said Mr. Sakhawat Hussain is the husband of Mrs. Zohora Hossain who owns land on the opposite side of the petitioner's land and has constructed a house thereon. The construction on Mrs. Zohora Hussain's land was at that time incomplete. It is alleged that the said Mrs. Zohora Hossain, in the course of the construction of her building, encroached upon a part of the 1954 road alignment in violation of her own building plan as approved by the authorised officer under the Building Construction Act, 1954. The pur pose of this averment in this petition is to show the connection between respondent No. 3 (The Chief Engineer) and the added respondent, Mr. Sakhawat Hossain. It is further alleged that in the first week of October 1961, the said respondent No 3, along with the said Mr. Sakhawat Hossain, again came to the petitioner's land as well as on the land of Mrs. Zohora Hossain, wife of added respondent No.

4. Thereafter the petitioner heard a rumour current in the locality that a change in the 1954 road alignment was being contemplated in order to save the unauthorised construction of Mrs. Zohora Hussain against whom a file had been started by the Town Planning Branch of the C and B Department for taking steps against such unauthorised construction. As no pegs were put on the petitioner's land demarcating the boundary and area of the petitioner's land sought to be requisitioned petitioner's husband again, towards the latter part of October 1961, saw the Land Acquisition Collector and asked to be informed about the exact area which was proposed to be taken away from the petitioner's land. On a reference to the Kanungo again, petitioner's husband was told that 10 ft. of petitioner's land from the south would be requisitioned in accordance with the 1954 road alignment. This would show that even several months after the pretended order of requisition was passed the authorities did not know what amount of the petitioner's land they purported to requisition. In the third week of November 1961, the petitioner found that two wooden pegs had been fixed on her land during her absence. On physical verification, it transpired that, if the pegs were taken to indicate the boundary upto, which the land of the petitioner was sought to be requisitioned the invasion on her land would be to the extent of 14 ft. deep. This glaring change and deviation from what the petitioner was told to be the plan of the acquisition was brought to the notice of the Land Acquisition Collector, who directed the Kanungo to fix pillars in accordance with the 1954 road alignment. Having come to learn that the road alignment of 1954 was changed in respect of portions of lands which concerned the petitioner on the one hand and the said Mrs. Zohora Hussain on the other, in order to save the unauthorised construction of the latter, representations were addressed by the petitioner to various authorities. In the first week of January 1962, the officials of the C and B Department of the Government of East Pakistan removed the pegs from the petitioner's laud. On enquiry the petitioner came to learn that the pillars would be fixed on a later occasion after finally deciding the quantum of land to be taken with a proposed change in the plan of acquisition. Thereafter the petitioner's husband met the Deputy Secretary, Revenue Department (Requisition Branch), Government of East Pakistan and explained to him about the illegality of the order, which is impeached before us and also acquired4him about its mala fide nature. The petitioner's husband told the said Deputy Secretary that the C and B Department was trying to take possession of the petitioner's land in excess of what was required under the 1954 road alignment and, for therefore, that the plan was being changed in order to save the land and unauthorised construction of the said Mrs. Zohora Hussain from being requisitioned. The petitioner's husband further informed the said Deputy Secretary that the impugned order did not specify the exact area, which was sought to be requisitioned. The Deputy Secretary referred the petitioner's husband to the Additional Deputy Commissioner of Dacca who, however, was not available in his office. On the 4th of February 1962, again the officials of the Land Acquisition Department and those of the C and B Depart ment visited the petitioner's land with a plan of the proposed road alignment as amended by the respondent No. 3 (the Chief Engineer) by his order dated the 9th of October 1961. From the road alignment map, which the Kanungo had with him, the petitioner came to learn that a substantial and extensive encroachment would be made upon the petitioner's land. But no such map was made available to the petitioner. On further enquiry the petitioner's husband came to learn that the said respondent No. 3 had himself made a change in the 1954 road alignment. The respondents thereafter threatened to take possession of the petitioner's land to the extent of more than 25 ft. in breadth towards the south. The petitioner's husband approached the Chairman of the Dhanmandi Union Council and wanted to know if he had any approved road alignment plan of the Ele phant Road. The Chairman obtained a copy of the same from the Additional Chief Engineer (Roads), C and B Depart ment and the petitioner then obtained a copy of the same from the said Council. The plan would show the 1954 road alignment as well as the new alignment amended by the Chief Engineer (respondent No. 3). A copy of the said plan has been annexed to the petition as Annexure B. The petitioner has made a definite statement to the effect that the said plan, namely, Annexure B, would show a wall of Mrs. Zohora Hussain's building on the crest of the Elephant Road. The petitioner has further categorically stated that the alignment of 1954 will show how much of the land of the petitioner as well as that belonging b) the said Mrs. Zohora Hossain fell within the alignment and, in fact, the said alignment did show that a part upon which a construction was proposed to be made by the said Mrs. Zohora Hossain, encroached upon the said alignment. Paragraph 21 of the petitioner's application runs thus: "That the impugned requisition order is illegal, inoperative, void ab initio and mala fide and the same has been kept purposely vague by the Requisitioning Authorities with the ulterior motive of saving the land and unauthorised con struction of Mrs. Zohora Hussain. The Chief Engineer C and B Department took the trouble of coming over to your peti tioner's land with Mr. Sakhawat Hussain in order to save the land and unauthorised building of the said Mrs. Zohora Hussain (wife of Mr. Sakhawat Hussain) from being requisi tioned inasmuch as the Chief Engineer illegally and with mala fide intention amended the road alignment map of the Elephant Road of 1954 on the 9th October 1961. It is stated that the Requisitioning Authorities including the Land Acquisition Collector and Kanungo‑in‑charge are very friendly with other officers and engineers of the C and B Depart ment in charge of the Elephant Road. It is further submitted that there is about sixty feet vacant space in front of the building of Mrs. Zohora Hossain. In spite of that the road has intentionally been curved in your petitioner's land by illegally showing that twenty‑five (25) feet of your petitioner's land would be requisitioned for saving the land and building of Mrs. Zohora Hossain. That your petitioner states that the road alignment as amended by the Chief Engineer, C and B Department, on the 9th October 1961, is mala fide and an illegal and fraudulent exercise of a power granted under the statute." Respondents Nos. 1, 2 and 3 (Province of East Pakistan), Additional Deputy Commissioner, Dacca and the Chief Engineer, C and B Department, respectively) have not denied the allega tions made in the said paragraph

21. We shall see hereafter that various other allegations have not been similarly denied. After an infructuous attempt by the petitioner to obtain a redress of her grievances she obtained the present Rule nisi from this Court calling upon the respondents to show cause why a writ of mandamus should not issue directing respondents Nos. 1 and 2 to cancel and/or withdraw the said order of requisition, dated the 12th of April 1961, in L. A. Case No. 108 of 1960‑

61. On behalf of respondent Nos. 1 to 3 an affidavit‑in‑opposi tion has been filed and sworn by a Land Acquisition Collector of Dacca, wherein most of the petitioner's averments in her application to this Court have been admitted, in the sense that they have not been denied. It appears that the respondents in the said affidavit‑in‑opposition have asserted that the impugned order is legal and was made in accordance with the law and also in accordance with the plan. It has further been denied that there was no application of the mind of the Additional Deputy Commissioner to the requirement of the impugned order. Quite a number of paragraphs in the petitioner's application have not been denied at all and with respect Jo various other paragraphs there is only a partial denial of facts to which we shall refer hereafter. Inasmuch as some very serious allegations were made in the petition against the husband of Mrs. Zohora Hussain, owner of the plot of land opposite to the petitioner's C. S. plot, an application was made by him for being added as a party respondent. The application was allowed by this Court and the husband of the said Mrs. Zohora Hussain, namely, Mr. Sakhawat Hossain, was added as a party respondent and as appeared as respondent No.

4. The said Mr. Sakhawat Hossain has also filed an affidavit‑in‑opposition in which he has denied the allegations that have been made against him. Learned Advocate‑General has also, at the hearing of the present Rule, produced the relevant file with regard to the impugned order of requisition and has also produced the specific files connected with this case from the C and B Department of the Government of East Pakistan, in order to show how the impugned order came to be passed, and has relied on the same. We have carefully gone through the statements of the petitioner in her application to this Court and her affidavit‑in -reply as well as the various affidavits which have been filed on behalf of respondents Nos. 1 to 3 as also by the added respondent, Mr. Sakhawat Hussain. We accept the statements of fact as given by the petitioner in preference to other statements to the contrary because, in the first place, they ring true; secondly, because her statements receive material corroboration from the records produced by the Advocate‑General; and thirdly, because they are, in our opinion, in consonance with the probabilities of this case. Whenever we have used the records of this case for our decision we have drawn the attention of the Advocate- General as well as that of the learned Counsel for the added respondent and have heard them in reply. Mr. Hafez who has appeared before us on behalf of the petitioner, has, in the first instance, urged that the impugned order is void, illegal and inoperative inasmuch as it cannot be treated as an "order" under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (Act XIII of 1948). He has argued that the power conferred to requisition a property necessarily postulates a definite, specified and identifiable property. He has pointed out that the order of requisition merely purported to requisition a vague, indefinite and unidentifiable part of the petitioner's land. No notice was given to her as to what portion and area of her land she was required to make over under the said order. It transpires that the petitioner was driven from pillar to post in her desperate attempts to be informed about the extent of her land and the portion thereof, which had been requisitioned by the impugned order and she failed to receive any light on the subject. It further transpires from the facts and circumstances of this case that, whereas the requisition order was passed on the 12th of April 1961, it was not even known to the requisitioning authorities at that time what was the extent of the land required by the requiring body. At a later date attempt was made to take such portion of the petitioner's land as fell within an alignment which was subsequently changed by respondent No. 3, the Chief Engineer, in October 1961. In these circumstances, Mr. Hafez is right in contending that the impugned order being vague and indefinite with regard to the property sought to be acquired, is one which cannot be made under section 3 of the said Act. We uphold this con tention of the learned Advocate for the petitioner. In our opinion, the power to requisition a property postulates that such requisitioned property must be specific and capable of being identified at the time w hen the order is made. The said section 3 does not authorise the relevant authority to requisi tion a land the specification of which would be determined at some future date after a good deal of fluctuations in the mind of the authorities as to the location and the amount of land that would be required for a public purpose. The petitioner is, therefore, entitled to succeed on this point. Mr. Hafez has contended further that the order as served on the petitioner is also no order in the eye of law inasmuch as it con sists of a mere printed paper to be an order made under section 3 of the East Bengal (Emergency) Requisition of Property Act with a rubber‑stamp facsimile of the signature of an official who has been designated as the Additional Deputy Commissioner of Dacca. The learned Advocate‑General has, however, contended that in the file, which has been produced by him there is an order passed by the Additional Deputy Commissioner, Dacca purporting to requisition a part of the petitioner's land, It is true that in the relevant file as shown to us there is such an order; but that order has no legal effect and cannot come into operation unless it has been served on the petitioner as required by section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948. This point is covered by a decision of this Court in the case of Dr. Azizul Islam v. Province of East Pakistan (P L D 1962 Dacca 368). We would like to add that the legal foundation of such an order is dependent upon a compliance with the provisions of the said section

4. If sections 3 and 4 are read together, the following conclusions would inevitably emerge: (a) Section 3 empowers certain authorities to pass an‑order of requisition in respect of certain properties and is, therefore, a section, which is described in legal parlance as an enabling clause. (b) The positive requirement of section 4 is that the order as made by the relevant authority under section 3 must itself be served personally on the person affected by the order. What has to be served is the very order itself, and not a copy there of. That it has been so understood by the relevant authorities is borne out by the facts that printed form (form/A) expressly purports to be an order pas rd under the said section 3 itself. (c) Section 4 further provides that if the person affected is not available and it is not possible to effect a personal service upon him, an authentic, i.e., a true copy of the order can be served by leaving the same with some adult male member of the family of the said person. (d) If no such adult male member can be found, the notice may be served by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain and also by affixing another such copy to some conspicuous part of the requisitioned property. Subsection (2) of section 4 provides that, it is upon the service of the order effected in the manner indicated above, that the re levant authority may take possession of the property. Thus the original order itself must be served personally upon the person affected by the order so made and, before an alternative mode of service can be taken recourse to, it must be proved that it was not possible to effect a personal service of the order upon the said person. Section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948, is comparable to section 3 of the East Bengal State Acquisition and Tenancy Act, 1950, (Act XXVIII of 1951), subsection (4) (a) whereof provides that from the date specified in a gazette notification the property acquired by such notifica tion shall vest absolutely in the Provincial Government. The legal consequence of the provision is, that it is upon the gazette notification in accordance with the provisions of the said section that there will be vesting of the property in the Provincial Government. Mutatis mutandis, section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948, provides that there will be a vesting of the title to obtain possession of the requisitioned property only upon the service of the order made under section 3 in the manner specified in section

4. It cannot be argued that, without service of any notice under section 4 and by a mere order recorded in the official file of the relevant authority under section 3, the said order can have any legal effect or will be attended with legal consequences, namely, the vesting of the title to obtain posses sion of the requisitioned property. An order purported to be made under section 3, if it is merely recorded in an official file, is in a "State of suspended animation" and is not clothed with any legal force, which is capable of being executed. It is upon the service of the order that it comes to life and is clothed with the attendant legal consequences, namely, that it vests in the relevant authority the title to obtain possession of the requisi tioned property and to enforce the same with the sanction of law. The raison d'etre of the elaborate provision of section 4 is easily understandable. The East Bengal (Emergency) Requisi tion of Property Act, 1948, is a drastic piece of legislation, which encroaches upon a basic right, namely, the right to possess property. It provides for compulsory acquisition of possessory interest in property and, therefore, some amount of formality has been enjoined in respect of a power of such drastic nature in order to give it the necessary sanction of law. The protection of formalities given to the person affected by such an order is designed to give him a specific notice of the fact that his property has been requisitioned by an authority authorised by law to do so in the larger interest of the public. 1t provides him with an opportunity to know who the person is who has made the order by requiring that the order as made must be served personally upon him. It further provides him with an opportunity to know the extent of a defined property which has been taken away from him. These formal provisions of law spell a certain amount of protection to him (however illusory they may be the benefit of which is fully entitled to receive. We do not think that the requirement of section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948, is a mere technicality which can be waived in a particular case. Learned Advocate‑General has advanced the same argument which he had pressed before this Court in the case of Dr. Azizul Islam v. Province of East Pakistan, namely, that if the petitioner has otherwise become aware of the order recorded in an official file, or if a copy thereof has been served without showing why a personal service of the order itself could not be effected, the requirement of section 4 is fulfilled. But is this so ? The positive mandate of the section is that the order as made must be personally served. Is it open for a Court of law to waive the positive requirement of the section by saying that the sum and substance of the provision as to service of the order is to give some sort of notice of an order to the person affected by the order ? In the present case the petitioner has merely received a printed piece of paper with the purported rubber‑stamp facsimile of the signature of person who has been designated as Additional Deputy Commissioner. Does it ensure the petitioner that, in fact, such an order was passed ? Can this be at all described as an order ? This Court has observed in the aforesaid (14 D. L. R., 441), that a printed order with a rubber‑stamp facsimile of a pretended signature on a printed form cannot be described as the conscious passing of an order by an individual. If the law requires that an order has to be made and that upon the passing of the said order it shall be served personally upon the person affected by it, the law must have its course. To hold otherwise would be to entrench upon the province of legislation and would tentamounts to amending or repealing a mandatory provision of a statute by rendering it nugatory. It was further contended. by the learned Advocate‑General that even if the order as served upon the petitioner has no legal effect, this Court would not direct the respondents to cancel the order because the relevant file shows that an order signed by the Additional Deputy Commissioner exists there. It is true that the order, as it appears in the file, is harmless ; but if in breach of the subsequent requirement of law the petitioner is threatened with dispossession in respect of her property, she would have the right to ask this Court for the cancellation of the pretended order as served upon her. In these circumstances, we hold that the impugned order as served upon the petitioner is void and of no legal effect. Learned Advocate for the petitioner has further argued strenuously that the impugned order is mala fide on various counts which are enumerated thus (1) He has urged that the order served on the petitioner was left deliberately vague, indefinite and uncertain with regard to the extent and area of the land of the petitioner that was sought to be taken in order to enable respondent No. 3 (the Chief Engineer) to change his mind and to devise ways and means by which he could save the property of the said Mrs. Zohora Hussain lying on the opposite side of the petitioner's land. She has categorically and definitely made this statement in her application to this Court and there has been no specific denial of such averment. It also transpires that subsequent to the making of the order on the 12th of April 1961, respondent No. 3 (the Chief Engineer), of his own responsibility, changed the previous alignment of the road as it stood in 1954 and tried to force the Land Acquisition Authorities to obtain possession of the land in accordance with the subsequent change in the plan as made. The road alignment of 1954, which he admittedly changed unilaterally had received the approval of a high‑powered land acquisition committee con sisting of senior executives and an expert engineer. This fact finds fullest corroboration from the records of this case as produced before us by the learned Advocate‑General. In the affidavit‑in‑opposition filed on behalf of respondents Nos. 1 to 3, respondent No. 3 (the Chief Engineer) has not thought fit to controvert the specific allegation made by the petitioner that in changing the alignment the said respondent No. 3 was motivated by the only purpose of showing favour .to the said Mrs. Zohora Hussain in respect of her land. On behalf of the respondents only statement that has been made and repeated several times is that the change of alignment was done because the previous alignment would have affected 38 huts and 3 structures, whereas the alignment as changed would only affect 33 houses and one structure. By simple process of mathematics it was sought to be proved that the interests of owners of 5 huts and the two structures would be saved. We do not thing that this proposition is capable of a simple arithmetical answer like this. The crux of the matter is not whether the present change in the align ment will affect a lesser number of persons. The real test is, what is the extent of damages done to persons affected by the order. Mr. Hafez has vigorously contended that by changing the plan respondent No. 3 has practically wiped out a large number of residents of the locality from their lands where the altered alignment falls. It is the case of the respondents that there has been change in the plan by the Chief Engineer only at certain places and points. But, the place with which we are concerned in this case has undergone an altera tion made by the Chief Engineer (respondent No. 3) and the beneficiary of such alteration happens to be the wife of the added respondent, Mr. Sakhawat Hussain. The patent fact, however, stares us in the face that it is the primary business of the Chief Engineer to prepare the plan from the technical point of road‑making and it is the main province of the requisi tioning authority to assess the incidents of the said plan upon persons affected by the same and to suggest alterations from this point of view for consideration of technical, personnel, and, thereafter to make a final decision thereon. In this particular case the averments made by the petitioner are, as we have stated, substantially corroborated by the records of this case. It transpires that two high‑ranking Engineers of the C and B Department have strongly expressed themselves against the change of alignment, which was done on the individual responsibility of respondent No. 3 (the Chief Engineer), whereas the alignment of 1954 was made upon the recommendation of a high‑level committee. The plan appended to the petition as Annexure B has been admitted on behalf of respondents Nos. 1 to 3 to be correct. It would appear that the alignment of 1954 was made in accordance with the decision of a Land Acquisition Committee to which specific reference is made in the plan itself. It appears form the records, upon which reliance has been placed by the learned Advocate‑General that on the 8th of February 1962, the Superintending Engineer, C and B Road Project Circle, Dacca, addressed the following letter to the Additional Chief Engineer, C and B East Pakistan, Dacca: "Sub : Representation of Mr. Sakhawat Hussain .in con nection with improvement and widening of Elephant Road." "The improvement and widening of this road is very very im portant acid the people living in the locality are very much anxious to have the work done as quickly as possible. There had been objection from only two persons and one of them is Mr. Sakhawat Hussain. The road was surveyed and alignment fixed up without consideration of interest of particular person. The interest of the road was thoroughly looked into and the alignment fixed up accordingly. On the representation of Mr. S. Hussain the alignment has been deviated by the Chief Engineer making a curve near his house to save his house. Mr. Sakhawat Hussain now wants the road to be shifted by another 6, ft. The original alignment near the house of Mr. Sakhawat Hussain is shown in black and that fixed up by Chief Engineer is shown in yellow. The alignment has already been deviated and one unnecessary curve has been made m the alignment. If the alignment near his house is further deviated by 6, ft. the curve will be more acute and it will give a very bad shape. Technically the deviation already made is not desirable but in consideration of saving the house this was done. Further deviation is not possible. His house is not the only case where road will be passing near the house. There are so many houses on this road where the road boundary, touches the wall of the houses, or is very near the house.' The matter may kindly be decided at an early date so that the work may be completed as early as possible. "The letter in original addressed to the Secretary is enclosed herewith for disposal." There is another letter dated the 14th of June 1961, addressed to the Chief Engineer, Works, Housing and Settlement (Com munications and Buildings) Department, Government of East Pakistan, by the then Superintending Engineer, Dacca Circle I, Dacca Mr. Md. Salehuddin) (now Additional Chief Engineer, Roads), and the said letter runs thus; "Ref. Improvement of Elephant Road. "As instructed by your goodself on Thursday last after a prolonged discussion, about the alignment, I had a thorough inspection of the road along with the Executive Engineer, City Division. A plan showing the different alignments and the one proposed by me is submitted herewith. In the said proposed alignment no building is affected except a room of a single storied building. This cannot be avoided in anyway. It is learnt that the plan was not approved by the Authorised. Officer, and A. P. O. may state the position correctly. Details of the same will however come when paying the compensa tion but it is indispensably necessary to acquire the part of the building for improvement of the road. " Chief Engineer may kindly give a decision on the alignment to be followed. There is a serious pressure from the public for starting the work and Deputy Commissioner, Dacca is also pressing for handing over possession of land. As this has got some connection with drainage of the adjoining areas, which get innundated after heavy showers, the work has assumed high priority. "On receipt of your instructions Executive Engineer, City will submit the L. A. plan finally in modification of the previous one." We had read out the aforesaid letter to the learned Advocate who appeared for the added respondent No. 4 and also to the learned Advocate‑General who had relied upon the contents of the file produced before us in support of the arguments advanced on behalf of the rest of the respondents. The aforesaid letters speak for themselves and, as we have stated, fully corroborate the averments made by the petitioner in her application that the alteration in the original alignment of 1954 was made with a view to accommodate the wife of the added respondent No. 4, Mr. Sakhawat Hussain. They show that from a technical point of view the Superintending Engineer was of opinion that the change of the alignment as contemplated by the Chief Engineer was not a proper one. They further corroborate the petitioner's statements in respect of the plan, which has been appended to the petition as Annexure B. They also show that the original align ment fell partially across proposed plan of the house of the wife of Mr. Sakhawat Hussain and that it was subsequently changed. In the opinion of the Superintending Engineer an unnecessary curve, which is unwarranted from a technical point of view, had been made in the alignment. There are various other communications, which will also substantiate the petitioner's case on this point and it is not necessary for us to set out the same here. The file also contains some correspondence addressed to respondent No. 3 (the Chief Engineer) by the added respon dent No. 4 (Sakhawat Hussain). One of the letters is dated the 20th of June 1961. These letters are all addressed personally to the Chief Engineer by name. In one of such letters, which we read out to the learned Advocate for the added respondent, namely, Mr. Sakhawat Hussain, it further appears that there were some prior oral communications between the added res pondent No.4, (Mr. Sakhawat Hussain) and the said Chief Engineer (respondent No. 3) and that the former wanted the latter to commit himself in writing in regard to the concessions which were already made to Mr, Sakhawat Hussain. The fact that the Chief Engineer went to the land of the petitioner or several occasions accompanied by added respondent No. 4 has not been denied by the said Chief Engineer (respondent No. 3). Respondent No. 4 has denied that lie did so accompany the Chief Engineer. But inasmuch as there is no denial of this statement on the side of respondent No. 3, we accept the statements made in this behalf by the petitioner in preference to the respondent No. 4 s bare denial of the assertions made in the petition. It will further appear from Annexure B, namely, the plan of the alignment as it stood in 1954 and as altered by the Chief Engineer in October 1959, that in accordance with the alignment of 1954, the proposed building plan of the wife of added respondent No. 4 encroached upon the alignment of 1954. We drew the attention of the learned Advocate‑General and that of the learned Advocate for the added respondent to this fact in order to elicit an explanation, which they may be able to give on this point. They frankly conceded that in accordance with the rules regarding the sanctioning of building plans, no sanction to raise a structure could be given if the proposed plant makes an encroachment upon a road alignment. In these circumstances, the learned Advocate‑General frankly admitted that either res pondent No. 4's wife had made an unauthorised encroachment and deviation from the plan as sanctioned by the Authorised Officer, who in this case happens to be the Chief Engineer himself' (respondent No. 3) or that the said respondent No. 3 had given an illegal sanction, to the building plan of the wife of the added respondent No.

4. But on the basis of the fact that the res pondents Nos. 1 to 3 did not controvert the petitioner's allegations that the wife of added respondent No. 4 had, in fact, made some unauthorised construction, the learned Advocate‑General argued that it could be taken that the wife of the said respondent No. 4 had made such unauthorised encroachment which was sought to be saved from requisition by the altered road‑alignment prepared by the Chief Engineer Respondent No. 4 in the affidavit‑in‑opposition filed before us has denied that his wife has made any unauthorised construction as alleged by the petitioner, but, Mr. Hafez has vigorously con tended that on the affidavits and materials placed before this Court we can come to a definite finding to the effect that the wife of respondent No. 4 has been guilty of making an unauthorised construction. The simple answer to this contention is that the wife of respondent No. 4 is not a party before us and in her absence we would not be justified in giving a derision, which will adversely affect her. It has, however, been rightly con tended by the learned Advocate for the petitioner that the aforesaid circumstances fully corroborate the assertions made by the petitioner that the change in the plan of 1954 was made with a view to save the property of the wife of respondent No. 4 from the alignment of 1954. As we have already noticed above, the only answer to the various allegations made by the petitioner for the purpose of establishing that the impugned order was mala fide, is a repetition of the statement in the affidavit‑in‑opposition that the order as made was a legal one. We have already stated above that in the light of the facts and circumstances of these case, we nave no hesitation to accepting the statement made by the petitioner in preference to the state ment made either on behalf of respondents Nos. 1 to 3 or by added respondent No.

4. We, therefore, hold that the impugned order was mala fide as admittedly respondent No. 2, the Additional Deputy Commissioner, Dacca, made the impugned order merely C on the recommendation of the respondent No. 3, the Chief Engineer. Respondent No. 2 was only a mere name‑lender in order to give a legal colour to the proposal made by the C and B Department at the instance of the Chief Engineer. Learned Advocate for the petitioner has argued next that the impugned order is also void and of no legal effect inasmuch as the Additional Deputy Commissioner of Dacca, who purported to pass the impugned order, did not apply his mind as to the need for the order of requisition and also as to the public interest behind it. It was urged that, even if there be a public interest behind the order, it is patent that the said Additional Deputy Commissioner (respondent No. 2) did not apply his mind to the extent and quantum of land required for the said purpose. In the face of the definite allegations made in the application of the petitioner, the only answer given by the respondents is that the order was passed in accordance with law. It is patent that in more sense than one respondent No. 2, the requisitioning authority merely gave his rubber‑stamp to the proposal made by the Chief Engineer as reflected in the altered road‑alignment. The file, which was produced by the learned Advocate‑General, is a revealing document. It starts with reference to the requirement by the Communications and Buildings Department, and the Additional Deputy Commissioner, at once, proceeds to make the impugned order. There has been no enquiry or investigation by him as to the necessity and need for all the lands required by the Communications and Buildings Department. The requirement of lands from a technical point of view is embodied in the plan submitted by the Communications and Buildings Department. It then becomes the duty of the Additional Deputy Commissioner to see whether a lesser quantity of land would serve the purpose of road‑building having regard to the fact that encroachments have to be made on the proprietory rights of citizens. The Additional Deputy Commissioner's decision would strike the balance between the technical demand of the Engineers and the basic rights of the citizens to hold their properties. Where as it is in public interest that roads should be widened, it is equally in public interest to make the barest minimum of invasion upon individual proprietory rights. Be that as it may, as we read section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (as now amended) we do not think that the functions of the Additional Deputy Commissioner is merely to append his signature or a rubber‑stamp to a demand made by the Communications and Buildings Department. He has to apply his independent mind as to the need for the land in accordance with the demand in the context of the hardship which of necessity, would be inflicted upon people affected by the alignment. The learned Advocate‑General had to concede that he could not argue that the function of the Additional Deputy Commissioner was merely to lend his name, signature and or rubber‑stamp to any requirement made by the Communications and Buildings Department without the independent application of his own mind to the exigencies of such requirement. In this case the relevant file produced before us corroborates the state ment made by the petitioner that there was no application of the mind of the Additional Deputy Commissioner to the need for the order that was passed. The fact that the land acquisition office did not know what would be the quantum of land required until several months after the order was passed, fully supports p the contention of Mr. Hafez that there was no application of the mind of the Additional Deputy Commissioner to the impugned order apart from the mere appending of his signature on the file and a rubber‑stamp (one does not know who has put that) to the order as served on the petitioner. We, therefore, also uphold this contention of the learned Advocate for the petitioner. It was next contended by the learned Advocate for the peti tioner that the impugned order was illegal and void inasmuch as it was a mere contrivance to evade the more liberal provisions of the Land Acquisition Act. The learned Advocate for the petitioner drew our attention. to ground No. XII as stated in the petition filed in this Court, which reads thus: "For that the order of the Requisitioning Authority is a colourable exercise of power and is a fraud on the statute." He has argued that the decision taken by the respondent No. 2 (Additional Deputy Commissioner) was ab initio an order of acquisition simplicitor and that the provisions of sections 3 and 4 of the East Bengal (Emergency) Requisition of Property Act, 1948, were used as a mere cloak to enable the said respondent to proceed to acquire the property in question under the East Bengal (Emergency) Requisition of Property Act. This conten tion of the learned Advocate for the petitioner is supported by the very first order that appears in the order‑sheet in respect of this acquisition, which reads thus: "3‑4‑

61. Seen Memo. No. 381/I‑C d/11‑3‑61 from Asstt. Chief Eng. C. & B. with a plan for Reqn. & Acqn. of land at Mauza Dhan Mandi in connection with improvement of Elephant Road and seen also D. O. No. 4344 C. D. D/29‑3‑61 from the Exe. Engr. C. & B. City. Div. to expedite the matter. "Send it to Mr. M. S. Ahmed for immediate disposal. Possession of land may be delivered forthwith." Sd. Illegible. L. A. C." It is, therefore, clear that at the very outset the authorities had made up their mind that the land had to be acquired and nothing a has been shown to us as to why the land should also be requisi tioned. We have asked the learned Advocate‑General to show us why the land was requisitioned if the purpose was acquisition of the land simpliciter. Learned Advocate‑General could not enlighten us about this and merely referred us to the files produced by him. The files indicate that there was a peremptory direction to requisition the land for the purpose of acquisition, although at the time when the order was passed the authorities did not even make up their mind as to what quantity of land should be acquired. The order was passed in April 1961, and it was not until as late as October 1961, that any decision with regard to the extent of the land required was taken. This itself shows that the authorities were not in a hurry to take a final decision in the matter of acquisition of land for the said scheme. The purpose of the requisition is said to be improve ment of the Elephant Road. Therefore it is clear that such improvement could not be effected without an acquisition of the land. The learned Advocate‑General has advanced the same argument which he had canvassed before this Court in the case of Abdus Sobhan Sowdagar v. Province of East Pakistan (14 D L R 486) namely, that when alternative modes of acquisition are available to the authorities, they will be within their rights to proceed along one way or the other. He has contended that it was open to the authorities to acquire the land either under the Land Acquisition Act or under the East Bengal (Emergency) Requisi tion of Property Act, 1948, and that, just because they have chosen to take recourse to the provisions of the latter Act, the impugned order cannot be described as illegal on this count. This point is covered by the aforesaid decision in Abdus Sobhan Sowdagar's case with which we are in agreement. This Court has already held that it would be inaccurate to say that the aforesaid two Acts provide two alternative modes of acquisition of land in public interest. We would like to add that in accordance with a well‑settled principle of interpretation o statutes, the two enactments must be read as a whole, and is would thereupon be clear that the purpose of the former Act is acquisition simpliciter, whereas the purpose of the latter Act is simply requisition. Therefore, the two enactments have com pletely different objectives and purposes. Because it was felt that a property, which has been requisitioned for example, to provide office or residential accommodation in an essential service, might have to be subsequently acquired, section 5 of the East Bengal (Emergency) Requisition of Property Act, 1948 has laid down the manner by which a requisitioned property can be acquired. Thus in respect of a property which has already been validly requisitioned it would be correct to say that there are two alternative modes of acquisition. But, until it has been so requisitioned, it cannot be said that ab initio two alternative modes of acquisition have been provided by the two Acts. The condition precedent to acquisition under, the East Bengal (Emergency) Requisition of Property Act is a valid order of requisition, and it would be incorrect to say that when initially it is realised that a land has to be acquired, all that the authorities need do is to pass an order of requisition merely for the purpose of acquisition. It has been rightly pointed out that, whereas acquisition of requisitioned property is authorised by the East Bengal (Emergency) Requisition of Property Act, 1948; the con verse proposition, namely, requisition merely for the purpose of acquisition under the said Act is not authorised by it. In these circumstances, there can be no manner of doubt that the impugned order of requisition was passed as a shift and contrivance for the sole purpose of praying‑in‑aid the provisions of section 5 of the East Bengal (Emergency) Requisition of Property Act, 1948, in order to by‑pass the provisions of the Land Acquisition Act. By placing the two enactments side by side, it is clear that when it is decided that a land has to be acquired the Land Acquisition Act is the only mode of acquisition unless there are some special reasons, which necessitate the passing of an order of requisition. That is to say, unless there is a special need which can be satisfied by the mere taking of an immediate possessory interest in the land to be acquired subsequently an order of requisition not warranted by law. Where such a necessity is established, an order of requisition would not necessarily be bad merely because, at the time when the order of requisition was passed, it was anticipated that it would be subsequently acquired. In this case it appears from the files that were placed before us that there was no other purpose for passing the order of requisition except that of enabling the authorities to take recourse to the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948, in order to evade the provisions of the Land Acquisition Act. The petitioner is, therefore, entitled to succeed on all the points pressed, on her behalf, in this case. We, therefore, hold that the impugned order is liable to be set aside, (a) because the requisitioning authority, namely, respondent No. 2, did not apply his mind to the necessity and need for the order of requisition passed by him ; (b) because the order is bad as it is vague and indefinite as to the portion, the extent and area of land which the peti tioner was required to make over, in fact, when the order was passed respondent No. 2 himself had no idea of the extent and area of land required ; (c) because it has been proved that the order was passed in mala fide; and (d) because the order was a mere colourable contrivance to evade the Land Acquisition Act. We further hold that the pretended order as served on the petitioner is liable to be set aside as it has violated the mandatory provisions of section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948. For reasons stated above, we make the Rule absolute and direct the respondents Nos. 1 and 2 to cancel the impugned order as served on the petitioner namely, the requisition order dated 12th of April 1961, in L. A. Case No. 108 of 1960‑

61. The petitioner is entitled to costs of this application, which we assess at fifteen Gold Mohurs. A. S. CHOWDHURY, J.‑I agree. K. B. A. Rule made absolute.