P L D 1964 Dacca 132 (PLP)

MURSHED, J.‑The petitioner claims to be owner of the eastern portion of plot No. 117 measuring about 5 decimals as also the western portion of plot No. 162 measuring about two decimals under Mouza Testari Bazar, P. S. Tejgaon, District Dacca.

2. She was served with an order of requisition passed by an Additional Land Acquisition Officer of Dacca (namely, respon dent No. 2) on or about the 30th day of May 1962. The order of requisition as stated in the notice so served was made for the purpose of the Improvement of Airport Road". The property of the petitioner which was so sought to be requisitioned is mentioned in the Schedule as "parts of C. S. plot Nos. 117 and 162 of Mouza Testari Bazar, J. L. No. 264, P. S. Keraniganj, at present Tejgaon, Dacca". It is alleged by the petitioner that the impugned order was passed at the instance of the Executive Engineer, Development Division I, who, according to the petitioner, became inimical to the petitioner for her refusal to favour him in a request to sell some land to the said Executive Engineer. We would like to dispose of this point by saying that the said Executive Engineer, Development Division 1, has not been made a party to this petition and we are not ready to give any decision adverse to him in his absence.

3. The main grievance of the petitioner appears to be that the impugned order was not passed by a competent authority, i.e., the said Additional Land Acquisition Officer (respondent No. 2) who passed the impugned order, was not authorised to pass the said order under the amended section 2 (1) of the East Bengal (Emergency) Requisition of Property Act, 1948.

4. Her further grievance is that the order of requisition is not a bona fide one in the sense that it has not been passed in good faith inasmuch as, although the said Executive Engineer claimed that a project in respect of which the said order was passed, related to the construction of a "Traffic Circle", which work was required to be urgently taken up, it transpires that the said respondent No. 2 had not even applied to the Chairman of the Dacca Improvement Trust for permission to construct the said Traffic Circle, the disputed land having fallen within the scheme of the Master Plan drawn under the Town Improvement Act, 1953. Her case, further, is, that the notice served on her, which is the foundation of the respondent's right to take possession of the property, is a vague and indefinite one.

5. On behalf of the respondents an affidavit‑in‑opposition has been sworn by the said respondent No. 2, the Additional Land Acquisition Officer, in which the allegation of ill feeling, which, it is alleged, the said Executive Engineer allegedly bore against the petitioner, has been denied. For the first time in this Court, the real purpose of passing the impugned order has been stated to be the urgent necessity of constructing the aforesaid "Traffic Circle" in the Airport Road. It is claimed that he has been fully authorised by the Deputy Commissioner of Dacca to pass the impugned order. It is further claimed that the impugned order was passed in respect of a public purpose, which was of urgent and immediate necessity.

6. At the hearing of the Rule, the first point, which was pressed before us is, that the impugned order is incapable of execution inasmuch as the notice served upon the petitioner was vague and indefinite. This contention of the petitioner must be upheld and we may refer to a decision of this Bench in the case of Aminuddin Ahmed Chowdhury v. N. Hossain and others (P L D 1964 Dacca 125) the judgment of which was pronounced on 29‑11‑62.

7. The question now is, whether the law requires the Executive Engineer to obtain the prior permission of the Chairman of the Dacca Improvement Trust before he can proceed with the execution of the aforesaid subject. In this connection we had to ascertain whether the disputed land owned by the petitioner was within the Master Plan drawn under the Town Improvement Act, 1953. We, therefore, on the application of the petitioner, permitted her to file a supplementary affidavit producing the Master Plan and other papers in order to show that the disputed land was covered by the Master Plan. From the petition as well as the supplementary affidavit sworn by the petitioner, there can be no manner of doubt that it fell within the Master Plan. In fact, Mr. Ishtiaq Ahmed, who appeared for the respondents, admitted that it was so. However, in the said supplementary affidavit filed by the petitioner the circumstances under which the impugned order was passed, were stated in greater details. Section 74 of the Town Improvement Act, 1953 places an embargo upon any user of the land for any purpose other than laid down in the Zone Plan within the said Master Plan. Sections 74 and 75 of the Town Improvement Act, 1953, read thus "

74. Whenever the Provincial Government sanctions a zone plan submitted under section 73, it shall announce the fact by notification, and the publication of such notification shall be conclusive evidence that the plan has been duly made and sanctioned, and thereafter it shall be unlawful for any person to use any land for any purpose other than that laid down in the zone plan, unless he has been permitted to do so under section 75. "75. (1) If any person desires to use any land for any pur pose other than that laid down in the zone plan approved under section 74, he may apply in writing to the Chairman for per mission so to do. (2) If the Chairman refuses permission to any person, such person may, within sixty days of the Chairman's refusal, appeal to the Board against such refusal. (3) The decision of the Board on any appeal under sub section (2) shall be final."

8. It is, therefore, clear that it was necessary for the Executive Engineer to obtain such permission before he could proceed to execute the scheme with regard to the construction of the said "Traffic Circle" as the land in dispute falls within an area marked for development of residential area.

9. Mr. Ishtiaq Ahmed has argued that the aforesaid section 75 merely requires the obtaining of such permission, but it does not make it encumbent upon the Executive Engineer to obtain such permission before setting in motion the machinery of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter called the Requisition of Property Act). That is so. The mere ipse dixit of the Executive Engineer that the scheme was required as a matter of urgent necessity, is not corroborated by the circumstances of the case. If there was an immediate necessity for putting the scheme into execution, one would have thought that prior permission of the Chairman, Dacca Improvement Trust, in this behalf, would be already in the pocket of the Executive Engineer. From the records which were produced before us by Mr. Ishtiaq Ahmed in respect of this case, there is nothing to show that the Executive Engineer had even applied for such permission and, as a matter of fact, Mr. Ishtiaq Ahmed candidly conceded that no such application was made. In these circumstances, we feel that it was the bounden duty of respondent No. 2 to satisfy himself whether such permission has been obtained with a view to come to the conclusion that the project was of such an urgent necessity that it was required to be immediately put into execution. If the Executive Engineer had even made out a case that he had already applied for such permission it could be said that the case of urgency was made out. The machinery of the Requisition of Property Act should be used only after the requisition in authority is fully satisfied about the urgency of the matter in order to take recourse to the extraordinary provisions of this Act. It is clear that the purpose of the project required that the land should be acquired and, in fact, the application to which reference has been made in the files produced before us, makes the same request for the acquisition of the land. We are told that inasmuch as the said Executive Engineer came to be aware that the petitioner had proposed to raise a shed in the disputed property, he had to ask for immediate possession of the ,q land. The purpose of such requisition as stated by him was merely to prevent the petitioner from raising a shed, which, of necessity, is but a temporary structure. In the aforesaid official files produced before us, there is absolutely no indication to show that there was, in fact, any immediate necessity for taking possession of the land. In these circumstances, the impugned order is tainted with illegality inasmuch as it was not passed in good faith and on consideration of matters which should have been enquired into by the respondent No. 2 before he passed the impugned order.

10. We would have made the Rule absolute but, for a serious difficulty, which the petitioner faces before us. Section 4‑A of the recently amended Requisition of Property Act specifically provides a remedy against the impugned order. The said section 4‑A runs thus "4‑A. (l) An appeal against an order made under section 3 shall, if presented within 30 days from the date of service of the order, lie to the Commissioner. (2) The Provincial Government may, at any time, either on its own motion or on application by an aggrieved party, revise any order passed by the Deputy Commissioner under section 3, where no appeal has been filed under subsection (1), and, also any order passed by the Commissioner on appeal under subsection (1) . . . . . ."

11. The impugned order was passed on or about the 30th of May 1962. The petitioner was required to deliver possession of the disputed property to respondent No. 2 by the 4th June 1962, and, we are informed, the said respondent No. 2 stayed the operation of the impugned order for about a month. The petitioner moved this Court on the 26th of June 1962 and obtained the present Rule. No satisfactory explanation has been given as to why she did not take recourse to the remedy which the statute provides under the provision of the aforesaid section 4‑A of the Requisition of Property Act. The remedy was an equally adequate, convenient and effective one. Any relief which the petitioner could obtain from this Court under Article 98 of the Constitution is dependent on the question as to whether she has any other adequate relief. The Commissioner of Dacca Division resides in Dacca and it was quite easy for the petitioner to approach him for a redress of her grievances. We feel that the said Commissioner in hearing the appeal is armed with an elaborate machinery to do proper justice to the petitioner and to give her an effective remedy.

12. Mr. Shahabuddin has argued that, inasmuch as the order was wholly without jurisdiction, this Court would not refuse to give the petitioner the remedy she has sought to obtain. He has relied upon a decision of the Supreme Court of Pakistan in the case of Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others (P L D 1961 S C 119). He has quoted the following observations pronounced by Kaikaus, J. " . . . . that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion. As stated in Halsbury at page 107, 3rd Ed. Vol. II "The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective. One of the well‑recognized exceptions to this general rule is a case where an order is attacked on the ground that it was wholly without authority." This decision of the Supreme Court of Pakistan was quoted and followed in the case of Mritunjoy Paul v. Province of East Pakistan (P L D 1963 Dacca 754).

13. We would like to observe at the very outset that in this case the petitioner cannot contend that the impugned order was wholly without jurisdiction. The respondent No. 2 was properly authorised under the Requisition of Property Act to pass the impugned order. He could do so for a public purpose. On an examination arid appraisal of the facts of this case, it transpires that the order was not a legal one. It cannot, therefore, be said that it was wholly illegal in the sense that the respondent No. 2 had no jurisdiction to pass the order, although on an investigation of facts it has transpired that it was not a legal one. As an illustration of this point we may suppose a case where it is found that an order under the Requisition of Property Act was passed by the Superintendent of Police of a District and if, on a threat by the said Superintendent of Police to take possession of the Property by force, a petitioner straight way came to this Court asking for a direction for cancellation of the order of requisition passed by the said Superintendent of Police, such order being wholly without jurisdiction, inasmuch as the Requisition of Property Act does not give him any jurisdiction to pass an order of requisition, this Court may give the said petitioner the relief asked for without his having availed himself of the remedy provided by the Requisition of Property Act. In the aforesaid case, which we have taken into con sideration, it can also be argued that inasmuch as the order could not be treated as an order under the Requisition of Property Act, the remedy provided by the said Act would also be inapplicable. The order, having no reference to the Requisi tion of Property Act, the relief provided by section 4‑A of the said Act will not come into operation at all in the hypothetical case mentioned by us. However, we do not propose to give a precise definition of the expression of the term "wholly without jurisdiction". It would depend upon the facts and circumstances of each case. In this case we have found that the said order was not wholly without jurisdiction. If it had been wholly without jurisdiction, we might have held that the remedy provided by the said Act was not an adequate remedy within the meaning of the Article 98 of the Constitution. The aforesaid Article 98, sub‑article (2), has begun in the following manner "(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law‑ (a) . . . . . . (i) . . . . . . (ii) . . . . . ." Thus by the express provision of the Constitution the juris diction to give an aggrieved party the relief which has been provided by the said Article depends upon the question as to whether the petitioner has any other adequate remedy. If he has any, then he is not entitled to ask for any relief under the aforesaid Article.

14. It will also be observed that the provisions of Article 98 (2) (a), in essence and substance, re‑enact the law with regard to the issue of a writ of mandamus which this Court had been issuing prior to the promulgation of the present Constitution. The matter has been considered and fully discussed by the Supreme Court of Pakistan in the case of Tariq Transport Company v. The Sargodha‑Bhera Bus Service, Sargodha and others (P L D 1958 S C (Pak.) 437). After fully and exhaustively discussing the law on the subject, Munir, C. J., proceeded to observe as follows :‑ "In the case of mandamus, it has been uniformly held in England that the Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, where there is an alternative specific remedy at law which is not less convenient, beneficial and effective, and such remedy includes an appeal to an Appellate Tribunal (Halsbury, 3rd Edition, Volume II, p. 107, Paragraph 200, and Note (b) at p. 108). A similar position obtains in the U. S. A. where a statutory remedy by way of appeal or writ of error ordinarily bars the right to mandamus on the principle that the writ may not be substituted as a means of review to take the place of express remedial process as created by statute for such purposes, whatever may be the Court's conviction as to the clear error of the lower Court." Munir, C. J., thereafter proceeds to observe "If a tribunal has no jurisdiction either in respect of the subject‑matter of litigation on the parties before it or the territory to which the dispute relates or because of Its own defective constitution or the illegality of the order, the proceedings are void ab initio, and an appeal in such a case is an unnecessary step and mere prolongation of the pro ceedings which eventually the Court must hold to be void for lack of jurisdiction. In such cases certiorari acts as would a Court of Equity."

15. It will be evident from the above that the petitioner is not entitled to ask for any relief from us as she has failed to avail herself of the remedy which has been provided by the aforesaid statute.

16. Although we do not propose to. give any relief to the petitioner, Mr. Ishtiaq Ahmed has undertaken to communicate to the respondents this Court's views on the subject and to ask them to act according to law. For the reasons stated above, we discharge the Rule without any order as to costs. SALAHUDDIN AHMED, J.‑I agree. s. B./R. B. A. Rule discharged.