P L D 1969 Supreme Court 545 (PLP)

M. R. KHAN, J.

This appeal, by special leave is from the judgment and order of a Division Bench of the High Court of East Pakistan, dismissing the appellant's Writ Petition under Article 98 of the 1962-Constitution for quashing the orders of requisition and acquisition of his properties. The facts set out in the writ petition are as follows:- The petitioner is a citizen of Pakistan and permanently resides in the town of Rangpur. His homestead is on the southern part of C. S. Plot No. 4220 of Mouza Radhaballay and bears municipal holding No.

18. The municipal road known as Devanbari road runs from east to west by the northern side of C. S. Plot No. 4220. He had a shop on the northern part of that homestead plot for running the business of sale of paints, distilled water, spirit, motor parts and electric bulbs etc. About 30 years ago, he started a business of supply of petroleum and other allied products as the agent of Caltex (India) Limited on a portion of C. S. Plot No. 4219 (municipal holding No. 19) lying to the contiguous west of his homestead plot and installed a petrol pump there. The petitioner claims to be a monthly tenant in respect of the said portion of C. S. Plot No. 4219 under its owner Radba Raman Banik. After the Independence, Caltex (India) Limited was converted into Caltex Oil (Pak.) Limited, and the petitioner continued to function as the agent of the said company. On the issue of a proclamation of Emergency on the 6th September 1965, the Deputy Commissioner of Rangpur seized the petitioners entire stock of petrol and directed him not to supply petrol to any one except on special permits issued by him. On the 8th September 1965, the petitioner was taken into custody under the Defence of Pakistan Rules and was kept in detention till the 10th July 1966. Two days after his arrest, that is, on 10-9-1965, the Deputy Commissioner issued notice under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter called the Requisition Act), requisitioning the petitioner's entire stock of petrol, kerosine, diesel, mobile, lubricants, weighing machines and other accessories, along with the petrol pump, structures, godowns and other sheds used for his business on the ground of national emergency. Being directed by the Deputy Commissioner, the Land Acquisition Officer took formal possession of the requisitioned properties the next day and made over actual possession thereof to Mr. A. Islam the District Marketing Representative of Burmah Shell. Subsequently, one Mr. A. Relok was appointed care-taker of these properties. Taking advantage of the petitioner's detention, one Mr. Saraj-ul-Islam, a lawyer of Rangpur and an Ex-M. N.A., with a view to grabbing his business, secured a new distributorship (agency) under the name and style of `M/s. Ashish Corporation's of which he is the proprietor. On the 30th September 1965, the Deputy Commissioner again requisitioned the self-same properties plus 0.11 acre of land out C. S. Plots Nos. 4219 and 4220 under the Defence of Pakistan Rules and placed M/s. Ashish Corporation in possession of those properties on 18-11-65. Although the second requisition was under the Defence of Pakistan Rules, the Deputy Commissioner started proceeding to acquire the said properties under the Requisition Act, and, to that end, issued notices under subsections (1) and (3), of section 5 of that Act on 29-1-66. Thereafter a deed of agreement bearing the date of 5th April 1966, was executed by the Deputy Commissioner and Mr. Serajul Islam representing Messrs Ashish Corporation with regard to the alleged requisition and the proposed acquisition. Then on 25-4-66, the Deputy Commissioner sent to the Government a draft notice of acquisition under section 5 (7) of the said Act for publication in the official Gazette. For one reason or the other, this acquisition notice was not published in the Gazette. In the meantime, the Deputy Commissioner, by his order, dated 30-5-66, vacated the order of requisition earlier made by him under the Defence of Pakistan Rules. After vacating that order, the Deputy Commissioner made a further order of requisition the same day under section 3 of the Requisition Act, requisitioning the petitioner's 0.11 acre of land out of C. S. Plots Nos. 4219 and 4220 for Messrs Ashish Corporation with a view to acquiring this land for the said Corporation, the notices under subsections (1) and (3) of section 5 of the said Act were issued the next day. As the earlier deed of agreement did not cover the entire area under requisition, Messrs Ashish Corporation was asked on 17-6-66 to execute another deed of agreement which was executed on 23-6-66 both by the Deputy Commissioner and Mr. Serajul Islam for and on behalf of Messrs Ashish Corporation. Thereafter a notice of acquisition, dated the 9th July 1966, under section 5 (7) of Requisition Act was published in the official Gazette, and the petitioner was released from detention the next day, that is, the 10th July 1966. The petitioner then made an application to the Provincial Government for withdrawing the order of acquisition and releasing his properties. He also made a revisional application for setting aside the orders of requisition and acquisition. The Government having rejected both these applications, the appellant made the writ petition in the High Court challenging the validity of the order of requisition, dated the 30th May 1966 and the order of acquisition, dated the 9th July 1966. In his writ petition, the appellant attacked the impugned orders mainly on the grounds that he was in detention and no notice of requisition or acquisition was served on him; that the requisition and the acquisition were not for a public purpose or in the public interest and were mala fide in that the same were intended to deprive him of his business undertaking and to benefit an individual, that the business undertaking was not liable to be requisitioned or acquired and that the requisitioning authority did not properly apply its mind in making the orders of requisi tion and acquisition. The material facts alleged in the writ petition are borne out by the order‑sheet of the relevant Requisition case (Annexure E). In their affidavit‑in‑opposition, the respondents did not deny these material facts, but controverted the grounds of attack against the orders of requisition and acquisition. According to them, the requisition of the appellant's running business of supply of petrol and petroleum products after the proclamation of emergency was absolutely necessary inasmuch as the appellant was a citizen of doubtful loyalty. Their further contention was that the requisitioning authority, after proper application of mind, made the orders of requisition and acquisition to the knowledge of the appellant's accredited re presentative Chinta Haran Das; that the purpose of the requisi tion and acquisition was a public purpose, namely to carry on the business of supply of petrol and petroleum products by Messrs Ashish Corporation, the appointed agent of Caltex (Pak.) Limited and that the requisition and acquisition were not mala fide and were not intended to benefit any individual. The learned Judges of the High Court found no substance in any of the contentions raised against the orders of requisition and acquisition and dismissed the writ petition holding that the requisitioning authority properly applied its mind and made the impugned orders for a public purpose and not for the benefit of any individual. The main contention raised in this appeal on behalf of the appellant was that the requisition and acquisition in question are bad in law as the subject‑matters thereof were not really required for a public purpose or in the public interest, but to benefit a private party, namely Messrs Ashish Corporation. By the first requisition order, dated the 10th September 1965, under section 3 of the Requisition Act, the Deputy Commissioner requisitioned the properties of the appellant on the ground of `national emergency' and for the `maintenance' of supply and services essential to the life of the community in the Province of East Pakistan'. The properties actually requisitioned by that order were described as follows:‑ "Entire stock of petroleum, Kerosine, diesel, mobile and lubricants etc., along with the petrol pump, tanks, drums, tins and the structures, godowns and other sheds used for selling and stocking the properties and the weighing machines and other accessories connected with the business." It will be noticed that the land on which the petrol pump, structures, godowns and sheds etc., stood was not requisitioned by the said order of the 10th September 1965. Pursuant to the direction given in that order, Land Acquisition Officer took formal possession of the requisitioned properties on behalf of the Deputy Commissioner and placed Mr. A. Islam of Burmah Shell in actual possession thereof. Subsequently one Mr. A. Salek was appointed care‑taker of those properties. These facts are evident from the order sheet (Annexure B). When the appellant was not in a position to run his petrol pump on account of his detention and when the supply of petrol and petroleum products was essential during the national emer gency, the taking over of the appellant's said properties on behalf of the Government at that crucial time by having recourse to requisition was understandable. It appears from the said order -sheet that within a few days after the requisition, it was realised by the requisitioning authority that the land on which the petrol pump stood installed had not been requisitioned. Having been moved in this regard by the Manager of Caltex Oil (Pak.) Limited, the Deputy Commissioner thought it necessary to requisition the petrol pump along with the land concerned for the purpose of the defence of Pakistan. Accord ingly, the Deputy Commissioner, by his order, dated 30‑9‑65 requisitioned the self‑same properties and also 0.11 acre of land out of the appellant's C. S. plots Nos. 4219 and 4220 under the Defence of Pakistan Rules and delivered possession thereof to the representative of Caltex Oil (Pak.) Limited vide order, dated 3‑10‑

65. By this requisition under the Defence of Pakistan Rules, the earlier requisition dated 10‑9‑65 under section 3 of the Requisition Act was impliedly given up. However, this fresh requisition also, in view of the then prevailing emergency, was understandable. But it appears that the matter took a turn with the appearance of Messrs Ashish Corporation on the scheme. The order‑sheet shows that this Corporation having been appointed as agent of Caltex Oil (Pak.) Limited, wanted to have the requisitioned properties acquired for it permanently. The properties requisitioned under the Defence of Pakistan Rules except two items were already allotted to this Corporation on 17‑11‑

65. Thereafter, with a view to acquiring the properties for the said Corporation notices under sections 5 (1) and 5 (3) .of the Requisition Act were issued on 29‑1‑65, forgetting that the first requisition, dated 10‑9‑65 under the said Act was impliedly given up by the second requisition under the Defence of Pakistan Rules and further forgetting that no land was the subject‑matter of the first requisition. However, the Deputy Commissioner proceeded with the acquisition proceeding, obtained a deed of agreement on 5‑4‑66 from the requiring body, namely, Messrs Ashish Corporation and sent an acquisition notice under section 5 (7) of the Requisition Act to the Govern ment on 25‑4‑66 for publication in the official Gazette. The Government, however, did not publish this notice and, in its Memorandum No. 654, dated 12‑5‑66, pointed out the defects involved. Accordingly, the Deputy Commissioner, by his order, dated 30‑5‑66, vacated the order of requisition made under the Defence of Pakistan Rules and on the same date made a fresh requisition order requisitioning only 0.11 acre of land out of the appellant's C. S. Plots Nos. 4219 and 4220 for Messrs Ashish Corporation. This requisition is under challenge here. It was stated in both the requisition notices, dated 3‑5‑66 and para graph 11, of the affidavit‑in‑opposition that the requisition in question was made for Messrs Ashish Corporation. The purpose of this requisition, as expressly stated in the order, dated 30‑5‑66 was for `the development of commerce of the Province of East Pakistan by Messrs Ashish Corporation, Rangpur. To the same effect was the purpose of the requisition as mentioned in the requisition notice itself. The real purpose of the requisi tion was more elaborately stated in the deed of agreement (Annexure D) executed by both the Deputy Commissioner on behalf of the Government and Mr. Sirajul Islam, repre senting Messrs Ashish Corporation. The said deed contains the following recitals:‑ "(i) Whereas for the purpose of trade and commerce of the aforesaid `Corporation' at Rangpur town, Mouza Radha ballev . . . . the said `Corporation' has applied to the Provin cial Government for the requisition and acquisition . . . . of parcels of land containing 0.82 acre or thereabout with structures and furniture situated in Mouza Radha ballav . . . . (ii) Whereas the Provincial Government being satisfied that the land, structure and furniture in question are needed for_ running of the business of the commercial firm of the 'Corpora tion' which is likely to prove useful for the development of' commerce of the province . . . . (iii) The Provincial Government has allotted and delivered. possession of the aforesaid properties to the `Corporation' for the purpose of commerce . . . . (iv) The Provincial Government will examine the ques tion of the acquisition of the land for the aforesaid purpose . . . . (v) After the said land with structures and furniture is acquired by the Government the same shall be held by the 'Corporation' for the purpose for which it has been acquired and for no other purpose . . . . These recitals were repeated in the second deed of agreement (Annexure D‑1), dated 23‑6‑66 between the same parties which, was necessitated to rectify a mistake in the earlier deed as regards area of the land. The purpose mentioned in the order of requisition and the requisition notice read with these recitals in the two deeds of agreement clearly go to show that the impugned requisition was made for the business purpose of Messrs Ashish- Corporation, namely, the business of running a petrol pump as, an agent of Caltex Oil (Pak.) Limited which petrol pump was hitherto run by the appellant as an agent of that company. It was stated in the writ petition that Mr. Serajul Islam is the proprietor of Messrs Ashish Corporation. This was not specifi cally denied in the affidavit‑in‑opposition. Mr. Sirajul Islam, however, signed both the deeds of agreement as Managing Pertner of Ashish Corporation. For our present purpose, it is immaterial, if Messrs Ashish Corporation is a proprietary firm or a partner ship firm. The fact remains that the impugned requisition and acquisition were made for the business purpose of a private party. By the impugned orders, the appellant's business of running a petrol pump was requisitioned and thereafter acquired for Messrs Ashish Corporation. As an agent of Caltex Oil (Pak.) Limited, Messrs Ashish Corporation will sell petrol and petroleum products from the requisitioned and acquired petrol pump and earn commission on such sales. Whoever may be the agent in respect of this petrol pump, the consumers will get supply of petrol and petroleum products as usual, and the person holding the petrol pump as an agent will earn commission on the sales thereof. Thus the impugned requisition and acquisition will directly benefit Messrs Ashish Corporation but the facility for supply to the consumers will continues to remain the same. In this view of the matter, it is plainly clear that the impugned requisition and acquisition for the business purpose of a private party like Messrs Ashish Corpora tion were not for a public purpose, nor were these made in the public interest. In similar case, namely, Jagesh Chandra Ledh v. Province of East Pakistan (9 D L R 272), a Division of the High Court of that Province held that the requisition of certain premises for Molla Baling Agency of which one Moslem Ali Molls was the proprietor, was bad in law as the requisition was not for a public purpose or in the public interest, but for the benefit of a private individual. On appeal from the said decision, the view taken by the High Court was upheld by this Court See 11 D L R 411 (S C). This Court's decision in the cases of Ekramul Haq v. Province al East Pakistan (P L D 1964 Dacca 48) and Additional Deputy Commissioner, Dacca v. Chowdhwy Esraruddin (19 DLR 525 (SC)), to which our attention was drawn do not appear to have any application here, because the purpose of the requisition in these cases was held to be one for the development of industry in the Province and not for the benefit of the business of a private party, as in this, case. When the impugned requisition and acquisition are liable to be declared invalid on the ground of their not having been made for a public purpose or in the public interest, it is not necessary to examine the other points raised in support of the appeal. In the result, we allow the appeal with costs, set aside the judgment and order of the High Court and declare that the impugned orders of requisition and acquisition were made without lawful authority and are of no legal effect. K. B. A. Appeal accepted.