P L D 1966 Supreme Court 409 (PLP)

FAZLE‑AKBAR, J.‑This appeal by special leave is directed against the judgment and order of the High Court of East Pakistan refusing to interfere in its writ jurisdiction with an order of requisition passed by the Additional Deputy Commissioner, [4 Chittagong on the 27th of March 1961, under the East Bengali (Emergency) Requisition of Property Act as amended by the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance III of 1960 (hereinafter referred to as "the Act"). The facts briefly were as follows There was a private railway siding known as J. N. Roy siding on Plot No. 1265/1281 in R. S. Khatian No. 249 within Mouza Madarbari under P. S. Double Moorings, Chittagong belonging to one J. N. Roy Choudhury. The said siding was dismantled and removed in June/July 1960. In September 1960 the land on which the aforesaid Railway siding once existed was requisitioned and was allotted to Haji T. Ali & Company, Limited, on 14th October 1960. As the premises of Ralli Brothers Limited were adjacent to the requisitioned land they started raising a boundary wall in December 1960 in order to demarcate their lands. On a petition by Haji T. Ali & Company Limited that the Company was encroaching on the requisitioned land, the Deputy Commissioner, Chittagong stopped the construction of the boundary wall. Subsequently, however, the said injunction order was vacated. Haji T. Ali & Company then on 9th February 1961 filed a suit in the Court of Munsif Chittagong, against the Company, for a permanent injunction restraining them from raising any boundary wall or construction whatsoever on the land in question, and also prayed for a temporary injunction which was, however, refused. The suit was ultimately dismissed for non‑prosecution in June 1961. During pendency of the suit, i.e. on the 29th March 1961 a notice of requisition was served upon the Company by which the Additional Deputy Commissioner purported to requisition Plot No. 1265‑P of Khatian No. 248. of Mouza Madarbari, P. S. Double Moorings and the Company was ordered to deliver possession of the said property by 30th March 1961. On 30th March 1961 the Company filed a petition pointing out that the order for requisition was bad in law inasmuch as it did not state which part of Plot No. 1265 had been requisitioned. They also wanted time to file objection against that order. The said petition was, however, rejected by the Additional Deputy Commissioner. The Company then filed an appeal against the order of the Additional Deputy Commissioner which was heard on the 15th of June but the judgment was reserved. As three months from the date of service of the notice was to elapse on 29th June 1961, the Solicitor of the Company sent a notice demanding cancellation of the impugned order of requisition and failing to get any relief, moved a writ petition in the High Court on 28th June 1961. The learned Judges of the High Court were unable to accept the contention of the petitioner that the said requisition was not for public purpose and/or that the requisitioning authority passed the order without applying his mind. As regards the objection that the order of requisition was vague inasmuch as it did not specify what portion of Plot No. 1265 had been requisitioned, the High Court observed as follows "The next objection raised against the order of requisition is that there is nothing to indicate as to what portion of Plot No. 1265 belonging to the petitioner‑Company was requisitioned. The order of requisition shows that a part of Plot No. 1265 was requisitioned and from the petition filed and the counter- affidavit there is no dispute between the parties as to the land that‑ was actually requisitioned. Moreover, this point was not taken in the notice demanding justice which was served on the Government of East Pakistan. In that view of the matter we do not think that the petitioner is entitled to raise this question. Moreover, the objection is of too technical a nature which can not be given effect to in connection with the issue of a writ of mandamus." In this view of the matter they dismissed the petition. The only question argued in this appeal was Whether the property sought to be requisitioned must be distinctly pointed out and if the description was insufficient, would it make the order of requisition bad? At the very out‑set we must say that we are unable to agree with the learned Judges that it is a question of merely technicality or form. In considering cases which arise under this act the first question to be asked is whether what is intended to be done is in strict conformity with that which the Act requires. From the Act it is clear that the Authority being) minded to take a particular property for the purpose o the Act e is required to give notice to the party whose property it is so that he may know to what extent his property has been taken away from him. Further under the Act the Authority authorised to take such lands as are necessary for public purpose and therefore in such a case the Court is also entitled to enquire whether the land the Authority is proposing to take is really required for the said purpose. In other words the Authority whiles taking land under the compulsive power must indicate definitely what part of the land is required by them. It therefore seem:, clear to us from the scheme of the Act and particularly when one has regard to the considerations mentioned above that the duly sought to be enforced must be as a matter of substance definitely) ascertained and its performance definitely demanded. It has been conceded before us that the Authority did not require the entire Plot No. 1265 which was mentioned in the schedule of the notice. From the judgment of the High Court it is also clear that the Authority required only a strip of land from that plot. The peculiarity of this case, however, is that the notice does not give any indication of the portion required by the Authority. It is really surprising that the Authorities have not delineated in one shape or other the portion that they want. The learned counsel who argued the case for the Government also found it difficult to say exactly what portion of the plot the Authority purported to requisition in this case. A feeble attempt was made to suggest that the Company knew what part of the plot the Authority intended to take. As soon as the notice was served on the Company, they challenged the validity of the order of requisition on the ground that adequate description of the property intended to be taken was not given. In their rejoinder to the affidavit‑in‑opposition filed in the High Court they clearly denied the allegation that "they were aware of what portion of Plot No. 1265 was being requisitioned". We really fail to see how it was possible for the Company to know what exact area was actually required by the Requisitioning Authority. We, therefore, see no reason to doubt the statement of the Company in their rejoinder. Furthermore it seems to us erroneous to think that in a case of this type the question of knowledge of the owner would be very material. What the Court has to see is whether the Authority has complied with the duties imposed on them by the Act. The Act gives them power to requisition such lands as are necessary for public purposes. Before issuing requisition order they, therefore, must make up their mind as to the specific property which they require and if they want any specific portion out of a plot, then require description of the said portion should be given. In this case it is not even pretended that any such description of the requisitioned property had been given. It is thus clear that the Authority concerned did not handle the case with due regard to their statutory duties and to the rights of the Company. In these circumstances the impugned order, not being enforceable for want of definite and adequate description of the property intended to be taken, must be quashed. We, therefore, allow this appeal and direct that writ of mandamus will issue to the Additional Deputy Commissioner Land Acquisition Department) Chittagong not to give effect to order dated 27th March 1961, for requisition of Plot No. 1265‑P of Khatian No. 248 of Mouza Madarbari, P. S. Double Moorings, Chittagong. The appellant‑Company will have their costs throughout. K. B. A. Appeal accepted.