P L D 1965 Dacca 1 (PLP)

SATTAR, J.‑In each of these cases the petitioner has obtained a rule upon (1) The Province of East Pakistan represented by the Secretary, Revenue Department, (2) The Land Acquisition Officer, Chittagong, and (3) The Chairman, Chittagong Develop ment Authority to show cause as to why the order of requisition passed requisitioning the properties of these petitioners should not be declared to have been made without lawful authority and as such of no legal effect. All these cases arise out of an order purported to have been passed by the Land Acquisition Officer, Chittagong under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter called the Act). The points raised in these cases are identical. In this view they have been heard together and are disposed of by one judgment. The petitioners have alleged that they are the owners of some lands and buildings on the northern side of the street known as Station Road in the town of Chittagong. At the instance of the Chittagong Development Authority (hereinafter called the C. D. A.) a Body constituted under the Chittagong Development Authority Ordinance, 1959 (hereinafter called the Ordinance), an order was passed by the Land Acquisition Collector, Chittagong in Pre. Case No. 118 of 1961‑62 under section 3 of the Act requisitioning the properties of the petitioners and others. The purpose stated in the notice issued is "the widening and improve ment of Station Road Chittagong". The petitioners have asserted 4hat whatever lands were required for widening Station Road have already been taken possession of and to that the petitioners never objected; but the C. D. A. is not entitled to acquire any land beyond what was required for widening the Station Road as the order in question was passed for the purpose of taking such lands which were required for the road. It has further been asserted that the petitioners have all along been willing to effect such improvements of their properties as required in accordance with the plan and scheme of the C. D. A. The petitioners have further alleged that the impugned order has been issued simply on a demand made by the C. D. A. and respondent No. 2 did not apply his mind to ascertain the reasonableness of the demand of the Requiring Body as to the existence of a bona fide public purpose or the suitability of the land in question for the purpose. It has then been said that the purpose of requisition being widening and improvement of Station Road which has already been served, there is no necessity for any further land for the said purpose. The petitioners have then asserted that the Land Acquisition Officer has no authority to pass the impugned order. In the affidavit armed on behalf of the first two respondents, it has been asserted that the Land Acquisition Officer passed the requisition order after looking into all relevant papers and considering all aspects of the scheme. There was a proper application of mind with regard to the suitability of the lands before the order was passed. Further, the demand for requisitioning the lands in question was actually made by the Government of East Pakistan by their Memo. No. 17/1(5)‑Dev. 15‑17/61 dated the 5th January 1962 at the Works Department. In the affidavit filed on behalf of the Chairman, C. D. A., it has been stated that the scheme for widening and improvement of the Station Road, Chittagong includes the development of a befitting Commercial Area along the road and this had the approval of the Provincial Government. It has then been said that the lands in question were required not only for widening the road but also for development of the Commercial Area in a planned manner. Some buildings have no doubt been left out as alleged by the petitioners but that was because they were found to fit in with the scheme in question and their acquisition would have rendered the whole scheme uneconomic. Mr. Mozammel Huq has appeared in all these cases; Mr. Ahmed Sobhan has appeared in one of these cases with Mr. Mozammel Huq. Before we proceed to deal with the points raised in support of the rules, we may mention that the petitioners preferred appeals against the order of requisition to the Divisional Commissioner, Chittagong. He, on the 7th August 1962, passed the following order: "Heard lawyers for the appellants and seen the report of the Chairman of the C. D. A. forwarded with his Memo. No. 111/LAQ/STN/OBJ/1934 d/25‑7‑62. (2) The C.D.A.'s project in question relate to the expansion and improvement of the Station Road, Chittagong and Develop ment for commercial purposes of a particular area adjoining the Station Road. (3) The objection in all the 46 appeals heard by me today related to the requisition for the C. D. A. of the area proposed to be developed for suitable commercial purposes: alongside the Station Road and not to the requisition of land by the side of the road for actual widening of the road including con struction of footpaths and road side drains. Appellants stated that there was no objection whatsoever to taking for the C.D.A. of such land as was required for the widening of the Station Road and for making footpaths and road side drains, even though this would mean demolition of stair cases or verandahs or other small parts of some existing structures there. (4) In view of this unanimous consent, I vacate my stay order in so far as it relates to the strip of land required by the C. D. A. for widening the Station Road and for construction of footpaths and drains by its side. (5) As for the rest of the lands under requisition, required by the C. D. A. for development as a suitable commercial area, the C. D. A. have now made certain specific proposals:‑ (i) No shopkeeper would be required to quit until alternative accommodation for his shop has been offered to him in any of the markets under construction by the C. D. A. (ii) A plan marking the plots to be made in the proposed commercial area would soon be published by the C. D. A. (iii) Existing suitable buildings in the area would not be interfered with. (iv) The new plots would be offered at the first instance to the present owners. (6) The C. D. A. should report by 1‑10‑62 the progress they make in respect of the above. I should also like to see their scheme for development of the proposed commercial area and to know whether Government have approved of the scheme and also whether funds have been provided for the purpose. To 1‑10‑62." Then, on the 25th September 1963, the appeals were dismissed on the following findings: "The parties had already agreed to vacate that much of land as was immediately necessary for widening the Station Road including the construction of footpaths and road side drains Disagreement between the C. D. A. and the parties is now confined to the acquisition by the C. D. A. of some land on the adjacent north of the Station Road. The parties demand that so far as the side land is concerned, their possession should be left undisturbed. The C. D. A.'s view is that suitable com mercial buildings should be put up on the side of the road. They have however agreed not to disturb the existing substantial buildings on the land in question. (2) There is no point in spending an enormous amount of money on the improvement of a road if small shops and filthy hutments are allowed to continue by the side of that road. Moreover, the area is very important and suitable in all respects for development as a commercial zone. (3) Nonetheless, according to my suggestions, the C. D. A. have published a plan dividing the road side land into suitable plots for construction of commercial buildings. The offer would go at the first instance to the owner or owners. As a matter of fact, the C. D. A. have promised not to offer a plot to an outsider if any one having even the smallest share an it expresses his willingness to take the plot. This should be regarded as very fair. (4) The C. D. A. are also committed to offering for resi dential or business purposes suitable land elsewhere to every person who may be displaced as a result of acquisition of the road side land. Compensation should also be assessed liberally. (5) The appeal is rejected." Mr. Mozammal Huq has argued that the requisition order has not been passed by a competent authority as the Land Acquisition Collector, Chittagong was not empowered to pass an order of requisition under section 3 of the Act read with section 74 of the Ordinance. In support of this contention, learned Advocate has relied upon the case of Md. Amir Hossain v. Province of East Pakistan and others (P L D 1964 Dacca 24). In this case, a Division Bench of this Court has found: "(i) Whenever a compulsory, acquisition of land is made for the C. D. A:, it must be done under the Land Acquisition Act, 1894 (see section 74 (2) of the C. D. A. Ordinance). There fore, such acquisition cannot be made under the East Bengal (Emergency) Requisition of Property Act, section 5 of which will not be applicable to the C. D. A. (ii) An order for requisition of property for the C. D. A. can be passed only by the Provincial Government, by an order in writing, by following the procedure laid down in the East Bengal (Emergency) Requisition of Property Act, (see section 74 (3) of the C. D. A. Ordinance). It follows that the Deputy Commissioner cannot pass such an order in respect of the C. D. A. under the Requisition of Property Act. (Expressiounius est exclusio alterius). (iii) The proposal for starting proceedings with a view to requisition property for any project or scheme of the C. D. A. must receive the approval of the Provincial Government before such proceedings can be started under the East Bengal (Emergency) Requisition of Property Act, 1948. (See 2 proviso to the newly substituted section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948)." This decision was given on the 23rd November 1962. Section 3 of the Act and section 74 of the Ordinance with which the above Division Bench was concerned were worded thus: "

3. When any property is required for a public purpose or in public interest, the Deputy Commissioner may requisition it by an order in writing: Provided that the projects covering more than one district or the projects of which the requiring body is either the Dacca Improvement Trust or the Chittagong Development Authority, the proposal shall require the approval of the Provincial Government before the proceedings under the Act are started: "74. (1) The Authority, may, for carrying out the purposes of this Ordinance acquire, by purchase, lease, exchange or otherwise, any land or interest in land and disposed of by sale lease, exchange or otherwise, such land or any interest on such land. (2) The acquisition of any land or interest in land for the Authority under this section, or for any scheme under this Ordinance, shall be deemed to be an acquisition for a public purpose within the meaning of the Land Acquisition Act of 1894 and the provisions of the Act shall apply to all such proceedings. (3) The Provincial Government, if it considers expedient or necessary so to do, may by order in writing, requisition any property for the Authority under the provisions of the East Bengal (Emergency) Requisition of Property Act 1948, so long as the said Act remains in force." On the 13th of August 1963, the Governor of East Pakistan promulgated two Ordinances, namely, Ordinance VIII and Ordinance IX of 1963. By the latter Ordinance, subsection (3) of section 74 was amended and it was provided that the Provincial .Government "may direct the Deputy Commissioner to requisition and acquire" any property for the C. D. A. under the Act. We are not concerned in these cases with the above amendment. By Ordinance VIII which has been called the Chittagong Develop ment Authority (Land Acquisition Validation) Ordinance, 1963 some actions done for acquisition of lands for the C. D. A. have been validated. In order to consider the arguments of Mr. Mozammal Huq, it is necessary to quote sections 2, 3 and 4 of Ordinance VIII of 1963: "

2. Notwithstanding anything contained in the Chittagong Development Authority Ordinance, 1959 or in the East Bengal (Emergency) Requisition of Property Act, 1948, or in any judgment, decree or order of any Court, every acquisition of immovable property made or purported to have been made by the Provincial Government or Deputy Commissioner, as the case may be, for the Chittagong Development Authority for any public purpose under the said Ordinance or Act, as the case may be, and which, immediately before such commencement, was used or occupied by the Provincial Government or the said Authority or by any Officer, shall, notwithstanding any defect in, or invalidity of, the enactment or order under which acquisition was made, be deemed for all purposes to have been validly made in accordance with law. (3) Notwithstanding anything contained in the Chittagong Development Authority Ordinance, 1959 or in the East Bengal (Emergency) Requisition of Property Act, 1948, or in any judgment, decree or order, all orders made or purported to have been made under toe said Ordinance or Act before the commencement of this Ordinance in respect of lands acquired for the Chittagong Development Authority by the Deputy High Commissioner or any officer shall be deemed to have been lawfully and validly made by him as if under proper authority and no such order shall be called in question in any Court. (4) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any Court, anything done or action taken or purported to have been done or taken (including any declaration made, any notice or orders issued, assessments or payment of compensations made under the Chittagong Development Authority Ordinance, 1959, or the East Bengal (Emergency) Requisition of Property Act, 1948) shall be deemed to have been validly done, taken or made by or under the said Ordinance." On behalf of the respondents, both Mr. Hamidul Huq Choudhury and learned Advocate‑General have relied upon these provisions in resisting the contention of Mr. Mozammal Huq that, in view of the decision of this Court in Md. Amir Hossain's case, the order of requisition must be declared to have been passed without any lawful authority. Mr. Mozammal Huq, however, has argued that the order in question is not covered by the above provisions. His argument is that section 2 of Ordinance Vill provides for lands acquired of which possession had already been taken. Section 3 deals with acquisition of lands in which possession has not yet been taken. Lastly, he has submitted that whereas sections 2 and 3 deal with cases of acquisition by persons by authorised under the Act section 4 deals with cases of acquisition by persons who are not at all authority under the Act to acquire. On a consideration of the above provisions, we are unable to accept these arguments. In our view, the present cases relate to an order of requisition are clearly covered not only by section 4 but also sections 3 of Ordinance VIII of 1963. Section 4 validates anything done or action taken or purported to have been done or taken (including any declaration made, any notice or orders issued, assessments or payment of compensation made under the Chittagong Development Authority Ordinance, 1959, or the East Bengal (Emergency) Requisition of Property Act, 1948). I is true that in section 3 the words "land acquired" have been used but in our view is no ground to think that a case in which only an A order of requisition has been passed and possession of the land has not been taken does not come within its ambit. In the case of Mohammad Nur Hussain v. The Province of East Pakistan and others (P L D 1960 Dacca 31), in considering whether the term "acquisition" includes "requisition", it was observed as follows: "Acquisition" is not a term of art and has, therefore, to be construed in its ordinary meaning, which covers in the context in which it is used, the acquiring of all kinds of rights or interests in land. It does not necessary imply the acquiring of proprietary rights though, when contrasting such acquisition with that of a lesser kind of rights such as requisition, "acquisition" is generally used to convey the obtaining of proprietary rights while requisition is confined to the mere taking of possession for a limited or unlimited period. But from this distinction it does not follow that they are entirely different concepts and cannot, therefore, be reasonably covered by the same expression. In decisions as well as statutes, the term acquisition has been used to include tem porary occupation." The present cases, therefore, in our view, are covered by section 3 as well as section

4. It is not necessary in this con nection for us to go into the accuracy of the language used in these sections. We, however, feel that the legislative intent appears clear, as found by us. Some argument has been advanced that the purpose dis closed in the notices issued is not a public purpose. This argument, in our view, is not available to the petitioners in view of the clear provisions of section 74(2) of the Ordinance. In this connection, it has also been argued that, as the C. D. A. proposes to divide the total surplus land, i.e., land which will be left out after construction of the road, into 17 plots and to allot the same to as many persons, there is no public interest involved in executing such a scheme. This argument, in our view, is wholly based on a misunderstanding of the concept of public purpose. The scheme has not been drawn up to benefit the future 17 allottees of the surplus land, but to bring about improvement in the locality concerned in a planned manner. This has always been recognised to be in public interest. Mr. Mozammal Huq has then argued that the purpose set out in the order of requisition has already been satisfied and the new purpose for which the lands besides those required for the road are sought to be taken cannot be invoked after the order has been passed. If the provisions of Chapter 4 of the Ordinance are carefully examined, it will be seen that improvement schemes can be prepared not only for the construction of roads, fields parks, pleasure grounds and other open spaces but also to allocate areas of land for use for agricultural, residential, industrial or other purposes. We find that the Chairman, C. D. A. by a notification published in the Dacca Gazette on the 6th July 1961 notified that the Chittagong Development Authority had prepared a Scheme named "Widening and improvement of Station Road Chittagong" and further called for objections to the scheme. The area covered by the scheme contains the plots of the present petitioners. Thereafter, the Provincial Government by Notifi cation No. 17 Dv. dated the 5th January. 1962, issued under section 36‑B(1) of the Ordinance and published in the Dacca. Gazette on the 18th January 1962, sanctioned scheme prepared by the Chittagong Development Authority which had been. published on the 6th July 1961. This notification also clearly shows that the lands of the present petitioners would be required for execution of the said scheme. We have been furnished with a copy of a document which is called the proforma for submission of development of schemes to the Planning Commission and we find that in that document in describing the scheme it was stated as follows: "The road leads from the junction of Jubilee Road and M. A. Jinnah Road up to the Engineering Workshop of E. B. R. on the western end. This road can be said to be the most important commercial street in the whole of Chittagong and on this road are situated. (1) The Railway Station. (2) The only respectable Hotel and Restaurant in Chittagong. (3) The Government Rest House. (4) The most important Market‑Reazuddin Bazar. (5) The only established fish and vegetables market. (6) And very substantial shops and business premises of multifarious nature and a Cinema Hall. The road is now narrow and cannot meet the need of the padestrians and other traffic as well as parking need. Another scheme has been framed for establishment of a modern market at the eastern end of the road, and without the Station Road being widended and improved the improvement at the eastern end will not have any logical termination or boundary. There are certain advantages in taking up this Scheme, as there is plenty of Rly. land now under encroaches and there are large number of bamboo huts, housing shops, which can be acquired at very cheap prices. The road is proposed to be widended to 80' ft. including footpaths parking places and there will still be left 7438 acres of land for sale. Moreover betterment fee will be leviable on fairly large areas as marked on the plan which will bring back the entire outlay. All substantial buildings, mosques and Burial Ground etc., have been excluded from acquisition." In view of what we have found above, it cannot be argued on behalf of the petitioners that the scheme in question did not necessitate requisition of the lands of the petitioners other than those portions which were required for the widening of the road. It is true that the name given to the scheme was "Widening and improvement of Station Road Chittagong" but the scheme includes the development of a commercial area by the side of the road. In this view of the matter, we feel that it cannot be urged that the requisition was not for a public purpose or that the purpose for which the order was passed had been served by acquiring such lands which were necessary for widening Station Road. Mr. Sobhan has argued that in these cases before the order was passed there was no application of mind. Learned Advocate's contention is that as it appears from the affidavits in opposition filed on behalf of the respondents that the order of requisition was passed by the Land Acquisition Collector on receipt of a memo from the Provincial Government and the officer concerned did not make any further enquiry before passing the order, it is bad in view of the decision of the Supreme Court in the case of Province of East Pakistan and others v. Jogesh Chandra Lodh and others (11 D L R 411). The facts of that case have no resemblance with the facts of the present cases. Mr. Ahmed Sobhan has very seriously argued that it was necessary for the Land Acquisition Collector to examine the case afresh and consider whether the scheme was necessary and if so what were its requirements. In support of this contention, he has referred to the case of Md. Abdul Qadir Chowdhury v. Province of East Pakistan and others (14 D L R 452). The facts of that case also are clearly distinguishable. It is no doubt true that the authority passing the order of requisition must apply its mind as to the existence of a public purpose and the suitability of the requisition properly for that purpose before the order is passed. It. does not however follow from this that when an important, scheme is prepared by a body like the C. D. A. and it receives the approval of the Provincial Government, the Deputy Commissioner or the Land Acquisition Collector before passing an order under section 3 of the Act must re‑examine the scheme and would be entitled to veto it. These schemes are prepared by experts who take into account several factors involving specialized knowledge. They are approved at B the Governmental level on the advice of equally competent persons. After this the Deputy Commissioner, in our view, is neither expected nor has he been authorised under the law to go into the merits of the scheme. In the case of Province of East Pakistan v. Dr. Azizul Islam (P L D 1963 S C 296), the Supreme. Court in repelling a similar argument as that of Mr. Sobhan has observed that if any scheme is approved by the Government their considered opinion furnishes an adequate basis for the subjective satisfaction of the Deputy Commissioner, a Delegate Officer. Regard being had to these facts, we are of the view that there is nothing to show that the Land Acquisition Collector did not apply his mind as to the necessity for requisition of the lands in question. Another argument advanced by Mr. Mozammal Huq is that if the requisition order is void ab initio the same could not be validated by a Validating Ordinance. This, according to the learned Advocate, will be hit by the Fundamental Rights guaranteed by the Constitution. We do not see any bar for the competent law making authority to validate an invalid order and we have found nothing in the Fundamental Rights which has taken away this right. These are all the points argued in this case, and as we have found no substance in any of them, the rules are discharged; but we direct the parties to bear their own costs. Mr. Mozammal Huq prays for a certificate under Article 58(2) of the Constitution that it is a fit case for appeal to the Supreme Court. We do not think that any substantial constitutional question arises in these cases and therefore the prayer for a certificate is refused. A. M. SAYEM, J.‑I agree. K. B. A. Rules discharged.