P L D 1963 Dacca 741 (PLP)

"The Governor of East Pakistan is pleased to order that the officers in East Pakistan hitherto designated as District Magistrates and Collectors, Additional District Magistrates, and Assistant Magistrates and Collectors shall be re‑designated as Deputy Commissioners, Additional Deputy Commissioners and Assistant Commissioners respectively. This Order shall come in to force at once."

4. By the notification quoted above, the Government of East Pakistan has made it perfectly clear that an officer, who used to be hitherto described as Additional District Magistrate, would be described, after the said notification as Additional Deputy Commissioner. What has, therefore, happened is that a particular officer, who was known as an Additional District Magistrate subsequently came to be designated by Govern ment as Additional Deputy Commissioner. The office as well as the duties, powers and responsibilities of the Additional District Magistrate remained intact. There was only a change in the name. Mr. Pal, on the other hand, has contended that the office of the Additional District Magistrate has been refer red to in the Criminal Procedure Code and, therefore, the name of the said officer cannot be changed. We do not think that this contention is tenable. The officer, who was described as Additional District Magistrate hitherto, has only been re designated as Additional Deputy Commissioner. There can, there fore, be no manner of doubt that the Additional Deputy Com missioner is in reality, the Additional District Magistrate who has been empowered to make the impugned order. We, there fore, hold that there is no substance in the contention of the learned Advocate for the petitioner, which is the only point mooted before us.

5. The learned Advocate‑General has further contended that the petitioner is not entitled to obtain a writ of mandamus from this Court inasmuch as the petitioner does not dis close a demand for justice and its refusal. He is right in con tending that the demand for justice must be made to the officer who has passed the impugned order and it is conceded that no such demand was made. Mr. Pal has tried to explain this by saying that an appeal was preferred to the Commissioner, Dacca Division, against the impugned order and thereafter a prayer for revision was made to the Government of East Pakistan. We do not think that, by saying this, Mr. Pal has resolved the difficulty posed by the learned Advocate‑General. It is now well‑settled that before issuing a discretionary writ of mandamus, Court insist that the petitioner should make a demand for justice and that the same should be refused. This is,4 the general and normal practice of the Court and, it is only in exceptional cases, that a departure from this practice is allowed. An exception is made only when the Court is of opinion that such a demand for justice and its refusal would be futile. In support of the contention the learned Advocate General has cited the case of Commissioner or Local Government Lands and Settlements v. Abdul Hussein Kaderbhai (A I R 1931 P C 132). In the aforesaid case Lord Atkin, who delivered the opinion of the Board, has observed as follows at page 136 of the Report:

"It is not proper to part from the case without calling atten tion to the procedure in this case which it is not desirable should form a precedent . . . . .The necessary evidence of a demand and refusal was extraordinarily weak. The Court appears to have postponed the sale by an order made ex parte, a proceeding which nothing but extreme urgency would justify. The writ of mandamus which is a high pre rogative writ, is of the greatest value in maintaining the law, but it is discretionary, and the granting of a rule in the cir cumstances seems to have conceded the applicant more than he was entitled to." It is clear that in the passage quoted above, Lord Atkin has called attention to the fact that Courts usually and normally require demand of justice and its refusal before issuing a writ of mandamus. If there had been special circums tances in this case which might have led us to hold that it would have been futile to make a demand of the aforesaid des cription, we might not have insisted on the fulfillment of this obligation on the part of the petitioner. We do not think that there are any special circumstances in this case which would justify a departure from a well‑established practice.

6. Lastly, it was contended on behalf of the respondents that the petitioner is not entitled to press the aforesaid contention inasmuch as it has not specifically taken in the petition which has been filed, on its behalf, in this Court. It was contended by the learned Advocate‑General, that in issuing) a writ of mandamus the petitioner is not allowed to take a e new point, i.e. a point which he had not taken in his petition. Two decisions of the Supreme Court of India were cited before us in this behalf. The first is the case of Bhikaji Narain Dhakras and others v. State of Madhya Pradesh and another (A I R 1955 S C 781). Our attention was drawn to the following observations made by S. R. Das, Acting, C. J. in the aforesaid case, at page 786 of the Report :‑ "It is, therefore, not clear at all that the impugned Act was in conflict with section 299 of the Government of India Act, 1935. Besides this objection was not taken or even hinted at in the petitions and cannot be permitted to be raised at this stage." The next case, is, that of the Tropical Insurance Co., Ltd. and others v. Union of India and another (A I R 1955 S C 789). The learned Advocate General has relied on the following observations in the judgment which was pronounced by the Supreme Court and which occur at page 790 of the Report :‑ "As to the first two contentions, they were urged in Petitions Nos. 94 of 1954 and 183 of 1954, but were not allowed to be put forward by this Court as these questions had not been specifically raised in the petitions under Article 32 of the Constitution and they were accordingly dismissed. The position is similar in this respect so far as the present applica tions are concerned and consequently it must be held that the petitioners cannot be allowed now to urge grounds which they had not taken in their petitions." The aforesaid proposition of law is also well‑settled, but Mr. Pal has tried to meet the same by saying that Ground No. 1 in the petitioner's application to this Court covers the argument which he has now addressed before us. The said Ground No. 1 runs thus: --‑ "That the requisitioning authority did not apply its mind to the facts and circumstances of the case and as such the order of requisition is not valid under section 3 of the East Bengal (Emergency) Requisition of Property Act." We do not think that the ground, as stated above, even hints at the point which has now been taken before us by the learned Advocate for the petitioners. The aforesaid Ground No. 1 simply means that the requisitioning authority (whoever he maybe) did not apply his mind to the facts and circums tances of this case. This ground is obviously intended to support an argument to the effect that a requisitioning authority, even if empowered by law to pass an order of requisition, is required to apply his mind to the necessity and expediency of passing such an order. Without an application of his mind in this direction his order will not be a valid order in the eye of law. The point, which has now been argued before us is a totally different point, namely, that the authority which purported to pass the impugned order was not empowered by law to do so. In these circumstances, this contention of the learned Advocate‑General must also be upheld.

7. Mr. Pal has argued that the last two contentions of the learned Advocate‑General are technical objections and they should not be very strictly enforced having regard to the pleadings in this country. It is true that even the Judicial Committee of the Privy Council has observed that the Courts in this country should not be very strict in the matter of pleadings and this Court also allows as, in proper cases, a certain amount of latitude to petitioners having regard to the general laxity of pleadings in this country, but the point taken before us by the petitioner is a technical point and the learned Advocate‑General has rightly urged that the respondents are also entitled to meet a technical point by technical objections. We may furthermore observe that, even apart from the difficulties in the way of the petitioners as set out above, we feel that there is no merit in this case. The case of the peti tioners rests on a mere technicality which has no relation to equity and justice. In these circumstances, we are not C prepared to use our discretion in favour of the petitioner even if the technical objection taken on behalf of the petitioner had succeeded before us. On this point we are fortified by a decision of a Division Bench of this Court in the case of Nawab Sir K. G. M. Farooqui Kt. v. The Province of East Bengal and another ((1957) 9 D L R 174). At page 180 of Report Akbar, J., who deli vered the judgment of the Division Bench, has observed as follows:

‑ "Further, this discretionary relief can and ought to be refused if the defect is technical, and has not resulted in any injustice. Here the defect, if any, is merely technical, and has no relation to equity and justice, and so, on this ground also, we overrule this contention." With regard to the necessity of pleading demand of justice and its refusal, at page 403 of the said Report, it has been observed :‑ "In this connection, reference may be made to the follow ing passage of Halsbury's Laws of England, Second Edition, Volume 9, page 771 "As a general rule, the writ will not be granted unless the party complained of has known what it was he was required to do so that he bad the means of considering whether or not he should comply, and it must shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that such demand was met by a refusal . . . . ." As it is, even the technical point urged on behalf of the petitioner is devoid of any substance. Thus, for reasons which we have sufficiently set out above, we discharge the Rule without any order as to costs. SIDDIKY, J.‑

I agree. K. B. A. Rule discharged.