P L D 1961 Dacca 404 (PLP)

MURSHED, J.‑This is an application for the issue of a writ of mandamus or an appropriate writ of the like nature, directing the respondents to cancel and rescind an order, dated the 21st April 1960, requisitioning certain properties belonging to the petitioner and for various other orders. The petitioner has described himself as a receiver in respect of the properties in question as well as a substantial co‑sharer in them. The plots specified in the order of requisition constitute a market which is known as the Rai Shaheber Bazar in the Town of Dacca. The plots in question were requisitioned by an order passed by the respondent No. 4, Azizul Huq Esqr., Additional District Magistrate, Dacca, by an order, dated the 21st of April 1960, which was sent by way of notice to the petitioner, and the plots specified in the order are set out in Schedule A to that order and are reproduced below "Comprising C. S. plots Nos. 70, 71, 72, 81, 84, 85, 86, 87, 88, and part of C. S. plots Nos. 67, 69, 73, 75, 78, 79, 83 and 89 of Sheet No. 51 Ward No. 2 of Shahar Dacca," The petitioner's case is, that the requisition purports to be made on behalf of the Dacca Improvement Trust in pursuance of one of its development schemes. It has been stated by the respondents that there is an improvement scheme which would replace the unhygienic and out‑of‑date Bazar and would be replaced by a multi‑storied building. The petitioner's case is that he himself, with the consent of the rest of the Co‑sharers, is ready and willing to build the same multi‑storied building. He was stopped by the Dacca Improvement Trust from proceeding with the construction of the said building. He has challenged the legality of the said order of the respondent No. 4 on the following grounds which were pressed before us, on his behalf, by Mr. Syed Amjad Hossain: (1) That the said plots, which have been requisitioned, do not come within the purview of section 93‑A (1) of the Town Improvement Act, 1953 (East Bengal Act XIII. of 1953) (hereinafter referred to as the Act), as inserted by section 15 of the Town Improvement (Amendment) Ordinance, 1958 (here inafter referred to as the Ordinance) (East Pakistan Ordinance No. LXIX of 1958), under which the order has been made. (2) That the notice that has been served on the petitioner is in executable as it is vague and indefinite. (3) That the order is a mala fide one and, therefore, in the eye of law it would not be deemed to be an order made under the aforesaid section of the Act. No other point was pressed before us on behalf of the petitioner. Section 93‑A (1) of the Act, as inserted by section 15 of the Ordinance, reads as follows: "If in the opinion of the Provincial Government it is expedient or necessary so to do, for the construction or better ment of roads, waterways or any other communications, and the developments of areas for residential, commercial, industrial purpose or for establishment of Parks, playing fields and open space for the relief of congestion in any area to which this Act extends the Provincial Government may, by order in writing, requisition any property for the Board and may make such further order as may appear to the Government 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 by the Provincial Government." Mr. Amjad Hossain has directed a two‑fold attack against the legality of the impugned order. His first contention is that the said plots requisitioned by the respondent No. 4 do not come within the meaning of "commercial purpose" as required by the aforesaid section of the Act. In this connection, be has drawn our attention to the following paragraph in the affidavit‑in-o pposition filed by the respondents and sworn by respondent No. 4, Azizul Huq Esqr., Additional District Magistrate, Dacca, i.e., paragraph 15 (b) which runs as follows: "That the allegations made in ground No. (II) of paragraph are not admitted and it is stated that impugned requisition will not interfere with worship of any deity and it is asserted that no deity is worshipped on the requisitioned land. It is denied that the requisition cannot be made and the statements made in the said paragraph 15 do not give a correct picture. The real facts of the case are that the said market is situated in the most important area of old Dacca and is adjacent to the Collectorate. The said market is in a very unhygienic and insanitary condition and is surrounded by dirty slums. The Dacca Improvement Trust, hereinafter referred to as D.I. T. has effected considerable improvement of Johnson Road, to which the said market abuts, by widening it. The unhygienic and insanitary condition of the said market as well as the unsafe ramshackle shops in this part of the said road create perpetual danger to public health and safety. It is absolutely necessary, in the interest of public health and safety and for the improvement and development of the city, that the said market should be remodelled and rebuilt in a fitting manner and to this end the D. I. T. has taken a scheme to rebuild the said market by constructing a multi‑storied building for the improvement of the said market as a whole and this scheme will also help the rehabilitation of those who were affected by the widening of Johnson Road and execution of the scheme of the D. I. T. for the improvement of the said market. Lands in the said area which will be affected by the scheme do not belong to the petitioner alone and as such petitioner's willingness to improve and develop does not arise. It is submitted that the proposed development amounts to commercial purpose within the purview of the Act. The said requisition will not in any manner dislodge the worshippers of the said deity and it is asserted that vast majority of the vendors are not worshippers of the said deity." Mr. Amjad Hossain has argued that the erection of a multi storied building by the Dacca Improvement Trust does not come within the purview of a commercial purpose as required under the aforesaid section 93‑A (1) of the Act. He has further elucidated the point by saying that the setting up of small shops would come under the category of "trade" and not "commerce." It i s conceded that, if the purpose is to develop an area for commercial purpose, it will come within the purview of section 93‑A (1) of the Act. What does the word "commerce" connote? The plain meaning of the word "commerce," as given in the Oxford English Dictionary is as follows : "Exchange between men of the products of nature or art; buying and selling together; trading; exchange of merchandise, esp. as conducted on a large scale between different countries or districts; including the whole of the transactions, arrange ments, etc., therein involved." It is thus clear that the word "commerce" includes "trade" also, although, generally speaking, it is used to describe trade inter‑ B state or international on a large scale. In Corpus Juris Secumdum. Volume 15, page 250, the word "commerce" has been defined to mean, "Business inter‑course, especially the exchange or buying and selling of commodities, and particularly the exchange of merchandise on a large scale between different places or communities; extended trade or traffic; every species of commercial intercourse .. . . . ." At pages 256‑257 of the same volume it has been noted as follows: ""Commerce" is a word of such extensive import that it is difficult to impose thereon the limitations of a defini tion . .... ""Commerce" is a generic word of extensive .import; and no all embracing definition thereof has ever been formulated ..While commerce includes trade, traffic, the purchase, sale, or exchange of commodities, . . . . . according to various definitions of the term . . . . ." It is thus clear that the word "commerce" clearly includes "trade". In this sense, there can be no doubt that the proposed multi‑storied building to replace that old market would certainly come within the purview of development of an area for "commercial purpose." The second part of the argument of Mr. Amjad Hossain on this point is that a scheme to enrich the Dacca Improvement Trust would certainly not be development of an area for a commercial purpose. The short answer to this argument is that the scheme is primarily a scheme for the development of a particular area for commercial purpose. If incidentally it may bring some income to the Dacca Improvement Trust, it will not lose its primary character of a development scheme for a commercial purpose. We do not think that, because the scheme may bring some gain to the Dacca Improvement Trust, it would cease to be a develop ment scheme with a view to promote commerce. Furthermore there is nothing to show that such is the purpose of the impugned requisition, namely, that it is a scheme to argument the finance of the Dacca Improvement Trust. Learned Advocate for the petitioner has next argued that the rehabilitation of displaced persons does not come within the purview of the section 93‑A of the Act. This is so; but the definite purpose of the present scheme is to replace a decrepit and dilapidated market by a better one. The scheme may also incidentally help in the rehabilitation of shopkeeper displaced in a the course of executing the scheme of widening Johnson Road. On account of this the scheme will not lose its essential character) of a project for development of commerce. Mr. Amjad Hossain has further contended that under section 93‑A of the Act the Province of East Pakistan (in this case the Additional District Magistrate by delegated authority) cannot requisition the aforesaid plots of land in order to promote a development scheme of the Dacca Improvement Trust. He has contended that the provisions of Chapter III of the Act would have to be followed in order to execute such a scheme by the Dacca Improvement Trust, and to this end the lands should be acquired under the provisions of section 79 of the Act. He has conceded that, if there is a requisition or acquisition under section 93‑A of the Act, the formalities as provided in Chapter III of the Act need not be observed. We do not think that this contention of the learned Advocate for the petitioner can be upheld, if we look at the plain pro visions of section 93‑A of the Act. Subsection (1) of that section in express terms specifies that the Provincial Government may, by an order in writing, requisition any property for the Board. Therefore, it is clear that the Provincial Government is expressly authorised to requisition any property for the Board of Trustees, namely, the Dacca Improvement Trust. All that the section requires is that the requisition must be for one of the purposes specified in that section. It is obvious that the Act provides alternative modes for requisition and acquisition of land for the purpose of the Board, i.e., the Dacca Improvement Trust. In any event, it does not appear that the formalities laid down in Chapter III of the Act have not been observed ; on the contrary, it has been stated before us by the learned Advocate‑General, who has appeared on behalf of the respondents, that such formalities have been strictly observed. We have no reason not to accept that statement which was not challenged by Mr. Amjad Hossain. We cannot, therefore, uphold this contention of the learned Advocate for the petitioner. The next point canvassed before us on behalf of the petitioner is that the notice setting out the order of respondent, namely, the Additional District Magistrate, Dacca, which was served on the petitioner, is bad being vague and inexecutable. Mr. Amjad Hossain has argued that the notice does not convey to the petitioner any idea as to what is the area of the land which has been requisitioned. The petitioner is unable to identify the land which has been requisitioned and, therefore, there is no valid requisition by respondent No.

4. On this point he has relied on a decision of a Division Bench of the Calcutta High Court in the case of Maharaja Sir Rameswar Singh v. the Secretary of State for India in Council (11 C W N 356). In that case Mookerjee, J., delivering, the judgment, has observed, as follows at page 362 of the report :- "In support of first branch of the contention, namely, that the notices ought to be precise and ought to give informa tion sufficient for the identification of the land intended to be acquired, reliance was placed upon the cases of Stone v. Commercial Railway Co. (4 Myl. and Cr. 122 (1839), Wrigley v. Lancashire and Yorkshire Ry. Co. (4 Giff 352 (1863), and Protheroe v: Tottenham Ry. & F. G. Ry. Co. [(1891) 3 Ch. 278]* * . * * * *. * * * * "(i) In the first place, it is quite clear, that notice is essential to the exercise of the jurisdiction. The statute does not prescribe any form for the notice but it is clear that it must contain the material facts which would enable the landowner to identify the land intended to be taken away. The very object of the notice would be defeated if it did not contain a sufficiently accurate description of the property, which could inform the parties interested what land it is proposed to appropriate ; the identification of the thing desired is of the utmost importance, and‑ if the notice does not describe the property against which it is directed, it must be taken to be defective. It may be conceded that the requirement of accuracy should not be pushed to extremes, because a description, though not drawn with the precision usually founded in conveyances, may yet sufficiently apprise the owner as to the property wanted." As noticed above, the aforesaid observations of Mookerjee, J., also find support in a decision of the Court of appeal in the case of Protheroe v. Tottenham and Forest Gate Railway Company ((1891) 3 Ch. D. 278,) In the aforesaid case there was an application for the issue of an injunction on a railway company which proposed to acquire certain lands belonging to the plaintiff. The injunction was refused in the original Court and the Court of Appeal allowed the same. Lindley, L. J. and Fry, L: J., on a consideration of the notice which had a plan appended to it, came to the conclusion that the said notice did not convey ‑any idea to the plaintiff as to what was sought to be acquired from the plaintiff. It will be, noticed that the aforesaid cases relate to an order of acquisition of land not to an order by which any land has been requisitioned. On this point the learned Advocate‑General has contended that in accordance with the scheme of the said Ordinance there is a distinction between requisition of property and acquisition of requisitioned property. He has argued that subsection (2) of section 93‑A of the Act requires that the order of requisition should be served on the person from whom the property is sought to be requisitioned and further provides the mode of service of such order. The section does not. specifically provide that particulars of the requisitioned property have to beset out in the order of requisition. He has further drawn our attention to the provisions of subsection (4)(b) of the said section 93‑A, which specifically provides that the notice served shall state such particulars of the property to be acquired, whereas subsection (2) of the said section is silent on this point. He has, therefore, contended that the order served on the petitioner, being merely an order of requisition, need not contain particulars of the property sought to be requisitioned. We do not think that this proposition can be stated as broadly and widely as has been done by the learned Advocate -General. Even in respect of an order requisitioning certain property, the said section requires that the order has to be served, upon, the person from whom the property is sought to be requisitioned. It is only on such service of the order upon the person affected by it that the Provincial Government can act under subsection (3) of the said section in order to obtain possession of the requisitioned property. Thus the service of the order of requisition upon the person affected by it is a prerequisite condition which must be satisfied for the purpose of obtaining possession of the requisitioned property. Such service of the order postulates that the order must convey to the affected person an idea as to what property is sought to be acquired from him and to what extent. It need not set out in any detail the particulars which may perhaps be required under subsection (4) (b) of section 93‑A of the Act ; but sufficient particulars must be set out which will enable the person, from whom the property is requisitioned, to indentify the property and to ascertain the extent of such requisition. It is difficult to lay down the exact limits as to what those particulars should be ; but the order must give sufficient notice to the person affected by it, setting out such 'particulars which would enable the person concerned to understand what has been acquired from him. Learned Advocate‑General has pointed out that the order has specified the cadastral survey plot numbers of the lands. which have been requisitioned and has contended that the same would sufficiently indicate to the petitioner what has been requisitioned. The requisitioned lands can be identified with reference to the C. S. plots as set out in the order. This argument is partially correct but not wholly so. . We have already quoted the plot numbers as specified in the order. Some part of the land which has been requisitioned has been described as "part of C. S. plots Nos. 67, 69, 73, 75, 78, 79, 83, and 89." This is undoubtedly, vague and does not convey to the petitioner any idea of what part of the said plots and the amount of lands which have been requisitioned in the aforesaid plots. Learned Advocate‑General has further contended that, in so far as the rest of the plots are concerned, the entire plots have been requisitioned and there .will be no difficulty in identifying the same, although, without relaying the C. S. maps, it would be difficult to put one's finger tin them. We think that to this extent the argument of the learned Advocate‑General must be accepted. But so far as the other plots, in which parts have been requisitioned, the order served on the petitioner is as vague as it can be. Mr. Amjad Hossain has contended that the order must be read as a whole and it is not partly good and partly bad. He has invited us to hold that the aforesaid notice is wholly bad. In order to determine whether the order is partly good or totally bad, the test is, whether the identifiable land can be separated from that which is unidentifiable? If the identifiable portion can be so separated, the notice is good in so far as it relates to such portion which is identifiable. We have to see whether the plots, which have been fully described, can be separated from the plots in which only an unspecified part has been requisitioned. We think that one can easily distinguish one set of plots from the other. We, therefore, hold that the order is vague and indefinite only in respect of plots Nos. 67, 69, 73, 75, 78, 79, 83 and 89 of Sheet No. 51 of Ward 2 of Shahar Dacca in respect of which only an unspecified portion has been requisitioned. The petitioner is entitled to succeed to this extent only. We will now dispose of the last point which was somewhat faintly argued before us, namely, that the order of requisition is mala fide. No definite case of mala fide has been made out in the petition that was filed before us on behalf of the petitioner. From the affidavits that have been filed subsequently, Mr. Amjad Hossain has tried to argue that the order of requisition made by respondent No. 4, the Additional District Magistrate of Dacca, is not bona fide. He has argued that, whereas the petitioner himself was ready and willing to execute the scheme for the erection of a multi‑storied building, he was stopped by the Dacca Improvement Trust from doing so. He his, therefore, contended that this shows that the order passed by the Additional District Magistrate is not a bona fide one, but a colourable exercise of powers under section 93‑A of the Act. On this point it has been submitted on behalf of the respondents that the Dacca Improvement Trust could not allow the petitioner to undertake the said building project for two reasons, first, because there is no guarantee that the petitioner would construct the building in an appropriate manner and, secondly, because it would be imprudent to leave such an important scheme in the hands of a private individual who has also to depend upon the combined continuous support of a number of co‑sharers. We hold that, as a matter of prudence, the Dacca Improve ment Trust was perfectly justified in not allowing the petitioner himself to undertake the execution of the scheme as set out above. We cannot, therefore, hold 'that the order is mala fide on this ground. This disposes of the last point which was argued before us on behalf of the petitioner. For the reasons stated above, we dispose of the Rule by directing the respondents not to take possession of plots Nos. 67 69, 73, 75,78, 79, 83 and 89 of Sheet No. 51 Ward No. 2, of Shahar Dacca, in pursuance of the order which has been served on the petitioner. The respondents, if they are so advised, are quite at liberty to requisition or acquire the said plots after serving an appropriate order on the petitioner. In the circumstances of the case, we do not make any order as to costs. SIDDIKY, J.‑I agree. A. H. Order accordingly.