P L D 1964 Supreme Court 475 (PLP)

B. Z. KAIKAUS, J.

‑This certificated appeal arises out of a petition for a writ of mandamus filed by Md. Ismail appellant challenging an order of requisition passed by the Additional Deputy Commissioner, Dacca, on the 12th November 1960, in respect of an area of 1.80 acres belonging to the appellant. The appellant challenged the order of requisition before the High Court on the following grounds (i) That the order had not been served on him in accordance with section 4 (1) of the East Bengal (Emergency) Requisition of Property Act, 1948. (ii) That the intention of requisitioning authority at the time when the order was passed was to acquire the land and proceedings under the East Bengal (Emergency) Requisition of Property Act are not intended to cover a case when the intention from the very beginning is to acquire the land. The High Court rejected both the contentions. Before us the second contention has not been urged, probably in view of a recent judgment of this Court where the point has been decided against the appellant. The facts relating to the first contention may be briefly stated. A notice was issued against the appellant and it was served on one Saidul Haq who accepted service on behalf of the appellant. The appellant stated in the affidavit attached to the writ petition that Saidul Haq was not known to him and this was not controverted in the affidavit filed on behalf of the Province of East Pakistan. Under section 4 of the East Bengal (Emergency) Requisition of Property Act notice of the order of requisition is to be served personally on the owner of the land; if this be not possible then on an adult male member of the family of the owner and if no such member can be found by affixation on the requisitioned property and the last known residence or place of business of the owner. There being no proof that Saidul Haq is, in any way connected with the appellant it has to be held that there was no service of the order on the appellant in accordance with the provisions of the East Bengal (Emergency) Requisition of Property Act. However, the appellant had come to know of the order and on behalf of the respondent it is urged that any defect in service was cured by such knowledge. The case of the appellant is that on the 25th March 1 961, some officers belonging to the Land Acquisition Department of the Government of East Pakistan came to the land in dispute and wanted to measure it. On inquiry from the officers the son of the appellant came to know that the land in question had been requisitioned. The appellant then applied for a certified copy of the order of requisition and having obtained the copy on the 30th March 1961, filed an appeal before the Commissioner against the order of the requisition under section 4‑A of the East Bengal (Emergency) Requisition of Property Act. This appeal was dismissed on the 6th April 1961. Relying upon the case of Noor Hussain v. Province of East Pakistan (P L D 1959 S C (Pak.) 470), it has been urged on behalf of the respondents that knowledge of an order is sufficient even if there be no service of the order. On the other hand the appellant has relied upon an observation in a recent judgment of this Court reported as The Province of East Pakistan v. Dr. Azizul Islam (P L D 1963 S C 290), that the order of requisition acquires validity only if it is served on the person concerned in accordance with law. The first point to be taken note of is that an order of requisition is passed by virtue of section 3 of the East Bengal (Emergency) Requisition of Property Act and the service oft notice is not a condition precedent to the making of the order. It will be proper to reproduce here the relevant portion of section 3 and the whole of section 4 of the Act "

3. If in the opinion of the Provincial Government it is expedient or necessary so to do for the administration and development of the New Province of East Bengal or for any other public interest connected therewith such as improvement of towns or ports, construction or betterment of roads, water ways or other communications, development of commerce or industries, maintenance of supplies and services essential to the life of the community and other similar purpose, the Provincial Government may by order in writing requisition any property and may make such further orders as appear to that Govern ment to be necessary or expedient m connection with such requisition. 4. (1) When an order of the requisition has been made under section 3, it shall be served on the owner of the property personally by delivering or tendering it to him or where the owner cannot be found it shall be served by leaving an authentic copy of the order with some adult male member of the family of such owner, or and, 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. (2) Where the order of the requisition has been served under subsection (1) in respect of a property, the Provincial Government may take possession of the property forthwith and may use or deal with the property in such manner as may appear to it to be expedient Provided that notwithstanding anything contained in section 15 the Provincial Government shall not delegate its powers of taking possession to an officer other than one having a gazetted rank." Section 4 requires that the order when made should be served on the party concerned, but the order has already been validly made before it is served and, therefore, an objection on the ground that it was not served is really not an objection to the validity of the order passed, but an objection as to the date from which the order should take effect. Under section 4 (2) the Government can take possession after an order has been served and for some other purposes too the date on which the order takes effect and becomes enforceable may be material. We are of the opinion that if the person concerned has full knowledge of the contents of an order service of the notice on him is not necessary. Of course, a simple information that some order has been passed would not be sufficient. The particulars of the order should also be known to the person concerned, but if as in the present case a party has obtained a certified copy of the order or being literate reads the order, it cannot be urged that a notice of the order through a process serving agency is still essential before he can be bound by the order. The object of section 4 is to give information to him of the passing of the order. To say that further notice should be necessary even in a case where he has full knowledge of the order would be tantamount to holding that section 4 embodies a highly technical provision of law. No ground exists for assuming that it is such a provision. Learned counsel for the appellant relied on the use of the word "shall" in section 4 (1). The mere use of the word "shall" in an enactment does not lead to a conclusion that a technical compliance with it is essential. A substantial compliance may still be quite sufficient. The question as to the force of this word will have to be decided in each case with reference to the intention of the Legislature. At the same time the provision with which we are dealing is one intended for the benefit of a party and provisions which are for the benefit of a particular party can be waived. In the present case the appellant filed an appeal against the requisition order after obtaining a certified copy. In the appeal there was no objection as to want of proper service and the appellant waived his right to object to the want of service of the order. Even if the provision was regarded as mandatory it could be waived for, as the Privy Council held in Vellayan Chettiar and others v. The Government of the Province of Madras and another (P L D 1947 P C 160), there is no inconsistency between a provision being mandatory and also being liable to be waived. In Noor Hussain v. The Province of East Pakistan the requisition order had been served on the brother of the owner, who it was contended, was not living with the owner. On behalf of the Province of East Pakistan it was urged that the owner had knowledge of the order. The question as to the effect of knowledge of an order where service had not been effected in accordance with law was not fully discussed, but there is an observation that the owner was "aware of the order of requisition" and that the objection as to mode of service, "if at all it has any force is only technical". In The Province of East Pakistan v. Dr. Azizul Islam no question arose as to the effect of failure to serve the order in a case where the owner became aware of the order. In fact there is an express statement in the judgment which says that the question as to effect of want of service of notice is not being decided. There is an observation however as to mere knowledge not being sufficient for taking possession on which reliance is placed by the appellant. Follow ing is the relevant passage : "We do not consider it necessary to go into the question as to whether, after such an order had been made, it was necessary to serve the same upon the persons affected in the manner prescribed in the Act itself, for, in the present case there is no dispute that the order was in fact served on the respondent personally and he acknowledged such service by signing on a duplicate copy of the order. We do not also consider it necessary to go into the question as to whether the order itself is to be served or only a notice of the requisition is to be served, for section 4 of the statute itself only requires "an authentic copy of the order" to be served and subsequently the same section describes this authentic copy as a "notice". We may, however, state that service of the authentic copy or notice is necessary and it will not be sufficient if the person affected has aliunde derived knowledge of the order of requisition, for, under subsection (2) of section 4 the service has to precede the taking over of possession." The word "sufficient" in this passage does not refer to the validity of the order, but only to the competence of the proceedings for taking over possession. "Knowledge" does not mean full knowledge of the order, but only knowledge that an order had been made. Once there is full knowledge of the order as there is in the present case by getting a certified copy of it there is no reason for holding that a service of notice would still be needed. The conclusions reached then are that the order itself was valid without reference to the question of notice, that full' knowledge of the order was a sufficient substitute for service and that the requirement as to service was waived. It was also urged that the land in dispute had not been properly specified. This point though mentioned in the writ petition had been abandoned at the time of arguments before the High Court. A reference to the record discloses no force in it. It is true that parts of two plots, that is, plots 697 and 698 were requisitioned and their description in the order of requisition was simply 697‑P and 698‑P (`P' referring to part) so that there was no specification of the particular portion out of the whole plot which had been requisitioned, but in the petition as well as in the concise statement the appellant has admitted that the total area which he owned out of these two plots was 1.88 acres and in the order of requisition it had been stated that 1.88 acres had been requisitioned. It is thus clear that the whole of what the appellant owned out of these two plots had been requisitioned. This appeal is dismissed without any order as to costs. HAMOODUR RAHMAN, J.

‑I have read the judgment proposed to be delivered by my learned brother Kaikaus, J. in this appeal and I am in full agreement with him that the service of a copy of the order of requisition made under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, is not essential to the validity of the order itself but I regret my inability to agree that even "full knowledge" of the order derived otherwise than by service would be a valid substitute for the service of the order even for the taking over of possession and for other purposes under the said Act. In my humble opinion, although non‑service of the order will not render the order itself ineffective but its service would still be necessary not only for taking over of possession but also for fixing the date of commencement of the period of limitation prescribed under subsection (1) of section 4‑A of the said Act for an appeal and under section 7 (e) (i) for determining the) compensation payable. It appears that the average value of property similar to the property sought to be requisitioned during five years immediately preceding the date of the service of the notice will determine the market value of the property requisitioned. In my view, therefore, the service of the order would still be necessary before taking over of possession of the requisitioned property, for, upon it will depend the calculation of the period of limitation for appeal as also the more important question of the fixation of compensation. In this view of the matter I would agree that since the validity of the order of requisition cannot be challenged in the present case due to want of notice, this appeal must be dismissed but without any order as to costs. In my view, however, it would still be necessary for the requisitioning authority to serve the notice of requisition upon the appellant before taking over of possession and the compensation payable to appellant for the requisition will have to be determined under section 7 with reference to the date on which the notice of the requisition is served. A. H. Appeal dismissed.