P L D 1960 Dacca 691 (PLP)

6. Mr. A. S. Chowdhury, the learned counsel for the petitioners, has contended that petitioner No. 2, Rabea Moosa Subasha, is the owner of the premises, and, as the requisition order was not served on her, it was bad. No doubt, there is a duty upon the Government to give notice to the owner or occupier of the premises sought to be requisitioned. The question, there fore, arises whether omission to give such notice vitiates the subsequent proceeding or makes the possession illegal. There is nothing to show that the Government's failure to give notice to petitioner No. 2 was wilful or perverse. What really happened was that the requisition order was served on her husband who was occupying the requisitioned premises. Section 4 (1) of the Emergency Act provides that the order for requisition should be served on the owner of the property personally by delivering or tendering it to him, or, where the owner could not be found, it should be served by leaving an authentic copy of the order with some adult member of the family. Subsection (1) of section 2 says that "owner" includes "the occupier." In this case, the notice has been served on petitioner No. 1 who is the husband of petitioner No. 2, and who was occupying the requisitioned premises. Therefore, there is no substance in this contention.

7. In this connection, we may mention that it is quite clear from the petition and the affidavits that petitioner No. 2 resides with her husband at Chittagong, and hence she must have been aware of the order, and of the fact of taking possession either at the time the possession was taken or soon thereafter. We are, therefore, of opinion that this objection, on the score of want of notice, must fail.

8. The learned counsel has next contended that the District Magistrate, in issuing the order of requisition without giving an opportunity of hearing to the petitioners, violated the principle of natural justice. In support of this contention, he has relied on the following decisions: Hussain Haji Ahmad v. S. Ashhad Ali and another (P L D 1957 Kar. 874) and M. Abdul Majid v. The West Pakistan Province and 2 others (P L D 1956 Lah. 615).

9. Mr. S. Akhand, Assistant Secretary, Revenue Department, in his affidavit‑in‑ opposition has stated that before issue of the requisition order a local enquiry was made by the respondents on 20th November 1957, with due notice to the owner and the occupier of the requisitioned premises, vide Memo. No. 4032 (2) E., dated 16th November 1957. He has further said that at that time a schedule of the properties was prepared in the presence of the petitioners' agent, and thereafter, on 30th December 1957, notice of requisition was served on the occupier, and the Govern ment took possession of the said premises on the 2nd January 1958. Petitioner No. 1, in his reply, has stated that no local enquiry was held, but, before the issue of the requisition order, the Kanungo went to the premises to complete the preliminary work. His grievance is that no notice to show cause was served on him.

10. Now can it be said that the notification contemplated by the Emergency Act is opposed to natural justice ? The whole object of the emergency legislation is to requisition property for a public purpose speedily in certain contingencies. Such a purpose will be frustrated if hearing is to be given to the owners or to the occupiers of the premises who may be various persons, and whose whereabouts may be unknown at the time of issue of the notification under section 3 of the Act. Further, there is nothing in the Act which enjoins that before requisition the parties interested must be heard. In our opinion, no question of applying principles of natural justice arises in this case.

11. The cases, on which the learned counsel has relied, are distinguishable from the facts of this case. In Hussain Haji Ahmed's case, a flat in Halima Court at 7, Clifton Road, Karachi was requisitioned by the Government. An appeal was filed against that order to the Chief Commissioner, Karachi, and he dismissed the appeal without hearing the appellant. Hence the Court observed:‑

"There is also much force in the arguments of the learned counsel for the petitioner that the learned Chief Commissioner, in dismissing the appeal without giving an opportunity of hearing to the petitioner, violated the principles of natural justice." The learned Judge has held that an appeal against the order of requisition should not have been disposed of before hearing the appellant. He does not say that a requisition order should not be issued before hearing the persons whose property was requisitioned.

12. Similarly, Abdul Majid's case also does not help the petitioners. In that case, the facts were as follows : Abdul Majid was elected a member of the Municipal Committee, Karor Pakka, District Multan. Subsequently, he was elected to the office of the President, and a notification approving his election was duly published in the Punjab Gazette. Some residents of Karor Pakka filed an application before the Minister, Local Self -Government, making various allegations against Abdul Majid. The Minister sent the application to Inspector, Local Bodies, for enquiry and report. The Minister, on the report of the said Inspector, declared the seat held by Abdul Majid in the Municipal Committee to be vacant. Abdul Majid then moved the Court, and obtained a Rule for a writ of mandamus. The Court held that the Minister should have given a hearing to Abdul Majid before removing him from the Municipal Committee. The facts of this case are, however, quite different, and hence this decision has, in our opinion, no application here.

13. The learned counsel for the petitioners has next contended that the requisition was really for the purpose of acquisition, and hence the Government should have acquired the land under the Land Acquisition Act. In other words, his con tention is that, if there are two modes of acquisition of property, the Court should lean in favour of the one which is more beneficial to the citizen. He has, therefore, argued that the Government, really, committed fraud on the statute.

14. When the Legislature confers upon the Government two modes of acquisition, one under the ordinary Act and the other under the Emergency Act, and the authority chooses the one which makes it possible to acquire the property immediately, it cannot be said that this mode of acquisition is unlawful, because the other one is more beneficial to the citizen. To uphold the contention of the learned counsel would mean defeating the very object of the Emergency Act. The Government, needed the premises in question for storing food-grains. They may or may not ultimately acquire the property. Hence, by no stretch of imagination, it can be said that the Government was trying to evade the provisions of the Land Acquisition Act with some ulterior motive. The Emergency Act was passed to enable the Government to take immediate possession of such property which they required for public purpose. Here the Government's decision as to public purpose has not been questioned before us nor there is anything to show that the Government's requirement was not urgent. Here we may observe that the opinion of the Government as to urgency cannot bee questioned. The Government is the sole judge about the existence of such urgency‑See Bhagat Singh v. Emperor (58 I A 169). If the question of urgency can be agitated, or, in other words, made justiciable in a Court of law, the very object of this Act will be frustrated. For the reasons stated above, we are unable to accept the contention of the learned counsel that the act of the Government was a fraud on the statute.

15. The learned counsel for the petitioners has next con tended that his client was using the premises in question for his jute business, and hence the Government should have selected some other site for storing foodgrains.

16. In the petition it is stated that the requisitioned premises were used by petitioner No.1 for his jute and other business. Mr. Akhand, Assistant Secretary, Revenue Department, in his affidavit‑in‑opposition, has said that the premises were lying vacant since the date of purchase by petitioner No. 2, and, in support of his statement, he has relied on the following letter, dated 23rd April 1957, addressed by the said petitioner No. 2 to the Administrative Officer of the Chandpur Municipality. "I beg to state that after purchasing the premises all rights of the Landale and Clark, Ward No. V of the Chandpur Municipality, I have duly informed on 19th July 1955, that the premises are lying vacant since my purchase on 15th June 1955. The premises are lying vacant and have depreciated in value; so it is reasonable to revise the existing high rate of tax assessed in consideration of a reputed European jute firm having huge jute business. But, as there is no business whatsoever, I am entitled to reduction of tax and vacancy remission from the date of my purchase. Moreover, I am suffering pecuniary loss owing to the premises remaining vacant. May, therefore, pray for your genuine consideration and sympathy for revising the rate of tax for the premises lying vacant since my purchase on . . . . and be kind to grant vacancy remission for the period and for such future period as they remain vacant, and save me from severe pecuniary losses and oblige." In affidavit‑in‑reply, petitioner No. 1 has changed the original story by saying that the hydraulic jute presses were used for pressing plywood; and the premises were also used for manufacturing candles, and that recently the Dal 'and Flour Mills had been shifted from the said premises. From the above, it appears that the premises, which were practically lying vacant, were used by petitioner No. I for some sundry business, such as candle manufacturing and pressing plywood. We may further observe that there is no statutory requirement directing the Government to observe any particular rule in holding an enquiry as to the suitability of a site for a particular requirement. We do not think that, in such cases, the Court is competent to investigate the reasonableness of such decisions of the Government in the absence of allegation of bad faith. The petitioners have not stated that the Government requisitioning the premises in question out of spite or for making personal gain. We may also observe that, if the Court starts investigating the reasonableness of the decision of the Government as to the site to be selected by them, it would mean that the Court would be made responsible for carrying out the work of the Government in important matters. This should not be done ; See Carlton, Ltd. v. Commissioner of Work ((1943) 2 All. E R 560). All that we can say is that on the facts of this case we are satisfied that the Government has not made the order in bad faith. No other point was urged in this application.

17. In our opinion, no ground has been made out for interference by this Court under Article 170 of the Constitution, arid this application therefore, must fail.

18. The Rule is accordingly discharged, and the stay order is vacated, but without any order as to the costs.

19. As no question of interpretation of the Constitution arises in this case, the leave prayed for, for appeal to the Supreme Court, is refused. BAQUER, J.‑I agree. R. B. A. Petition dismissed.