P L D 1959 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑I have read the judgment of my brother Shahabuddin, J. and I agree with him. SHAHABUDDIN, J. ‑This is a certificated appeal from the judgment of the High Court of Dacca dismissing a petition filed by the present appellant for a writ of mandamus or any other appropriate writ in respect of the order of requisition of a part of plot No. 692 of mauza Dhanmandi, belonging to him, passed under the East Bengal (Emergency) Requisition of Property Act, 1948. The appellant owns plots Nos. 694, 696 and northern portion of plot No. 692 of Dhanmandi, Dacca. In January 1957, orders under the East Bengal (Emergency) Requisition of Property Act, 1948, were issued requisitioning parts of the said plots Nos. 692 and 694 and some other plots ; and possession of the requisitioned plots was taken on 5th February 1957. His case was that in 1957 after obtaining the necessary approval of the Chief Engineer he had started construction of a building on the aforesaid plot, that a‑ memorandum dated 7th September 1957 was received by him from the Executive Engineer to the effect that his building had encroached upon the portion of plot No. 692 already requisitioned, but the order of requisition relating to that plot was not served on him, and that in spite of his representations to the Chief Engineer and to the Minister, the Executive Engineer with the help of the police demolished the construction which he had put up. Although C. S. No. 694, which adjoins plot No. 692 had also been similarly requisitioned the appellant did not challenge the requisitioning of that plot. In addition to the alleged non‑service of the order in respect of plot No. 692, it was contended on his behalf before the High Court that the order of requisition was bad because it did not specify the purpose for which the property was required, that the Act under which the order of requisition was passed was itself ultra vires of the Provincial Legislature which passed it and that in any case the said Act was not validly in force on the date of the said order. The grounds on which the validity of the Act was questioned were (1) that under the Government of India Act which was in force at the time the Act in question was originally passed the Provincial Legislature had no power to legislate regarding the requisitioning of land as item 9 of List II of the said Act dealt with compulsory acquisition of land and not requisitioning thereof , and (2) that the Act when passed in 1948 was specifically stated to be in force only for three years ; and though its life was extended by Ordinance XI of 1951 and the Legislature within six weeks of its meeting passed the East Bengal Expiring Laws Act under which the provisions of the said Ordinance were to be deemed to have beets enacted by the said Act and to operate us such until 31st day of October 1952 from the date when the said Ordi nance would have ceased to operate had the said Act not been passed, yet the Ordinance could not be said to have been revived as the said Act received the assent of the Governor- General after the expiration of six weeks following the said meeting of the Legislature. The learned Judges of the Dacca High Court overruled these contentions. They found that the appellant had failed to establish that the service of the order of requisition was not proper. As regards the omission to set out the purpose in the order it was held that the omission was not fatal as the facts established to the satisfaction of the Court showed that it was required for a public purpose. The Act itself was found to be intra vires of the Provincial Legislature on the ground that expression "acquisition of land" in item 9 of the second legislative List includes "requisition of land". Regarding the legislation that kept the Act of 1948 alive the learned Judges quoted section 3 of the East Bengal Expiring Laws Act referred to above and observed as follows: ‑ "Ordinance XI of 1951 was mentioned in Schedule II of the said Act. On 10‑10‑52 the Legislative Assembly passed the East Bengal (Emergency) Requisition of Property (Amend ment) Act of 1952 and the life of the Act was extended from 3 to 6 years i.e., till 16‑8‑1954. In July 1954 the life of the Act was further extended for another three years by the East Bengal (Emergency) Requisition of Property (Amendment) Act of 1954 (East Bengal Act III of 1954). Hence it is evident that the present requisition order was passed in accordance with the provisions of the Act of 1948 as amended by the Act of 1954. The learned counsel has not been able to assert that the last Amendment Act of 19 54 was not properly passed. We may further observe that we are also unable to accept the contention of the learned counsel that the Expiring Laws Act of 1951 did not properly keep alive the Act of 1948. All that could be said is that as the Ordinance was passed into an Act after six weeks, there was an interregnum during which the Act was not in force: but it cannot be said that the Act was bad. In any event, the vacuum was filled by the provisions of section 3 of the Act itself which we have quoted above. Hence we are unable to accept the contention of the learned counsel that the order was passed under an invalid Act." They, therefore, dismissed the appellant's petition. Leave to appeal to this Court was granted in view of the value of the property and also on the ground that important questions of law ` were involved in this case. In appeal Mr. Asrarul Hussain pressed before us all the above mentioned contentions except the one relating to the non‑mention of the purpose in the order of requisition; and with regard to the last‑mentioned point viz. that the Act was not in force on the date of the order of requisition he put forward a fresh ground. The conclusion of the High Court in respect of the Ordinance validated by the East Bengal Expiring Laws Act, 1951 was not questioned before us, but it was contended that Act III of 1954 which extended the life of the original enactment till August 1957 and which had been passed by the Governor in the exercise of the powers conferred under section 92‑A of the Government of India Act which is hereinafter referred to as the Constitution Act, was not valid in view of the decision of this Court in Usif Patel's case (P L D 1955 F C 387). In addition to these con tentions it was also argued that as the order of requisition was passed by the Additional District Magistrate and there was an interregnum during which the Act was not in force (referred to by the High Court), there should have been a fresh delegation to the Additional District Magistrate of the powers of the Government to requisition the property under the Act in question. The question of service of the order of requisition and the contention that a fresh delegation of powers to the Additional District Magistrate was necessary may conveniently be dealt with at first. The order of requisition issued in respect of plot No. 692 mentioned not only the appellant, but also his brothers Muhammad Ismail and Muhammad Yusuf as well as two other persons as occupiers of the land in question, and it has been found by the High Court that the endorsement of the peon who served the order showed that it was accepted by a brother of the petitioner. It was contended on behalf of the appellant before the High Court that that brother had separated from him long ago and in support of this position a deed was filed indicating that the brothers had partitioned their property, but the learned Judges of the High Court found that it was not shown that the appellant was not aware of the order of requisition. It was pointed out in this connection that it was significant that in respect of the order with regard to plot No. 694 which adjoins 692 and which was issued to the appellant on the same date as the order in question, it was not even alleged that the appellant did not receive that order. There, only the appellant was mentioned as the occupier and that order was served on him and as observed by the learned Judges the fact that no application in respect of plot No. 694 was filed was significant indeed. In the circumstances stated above it is clear that the appellant was as much aware of the order of requisition in question when it was served on his brother as 1 of the other order relating to plot No. 694 and the objection to the mode of service, if at all it has any force, is only technical. The High Court was, therefore, right in not taking it as a sufficient ground for the issue of a writ. The next point was raised on the strength of the observation of the learned Judges of the High Court that there was an interregnum during which Act of 1948 was not in force. The argument was that owing to that interregnum there should have been a fresh delegation to the District or Additional District Magistrate. But in the order of requisition dated 19th January 1957 it is stated that the powers of the Government had been delegated to the Additional District Magistrate who issued that order. It is not clear whether this refers to the delegation made in 1948 or to a fresh delegation after the interregnum referred to above. If this point had been raised before the High Court the matter would have been clarified. However, as the learned Advocate‑General has pointed out, under section 25 of the Bengal General Clauses Act the original delegation was still in force as there is nothing in the Act that followed the interregnum indicating that the original delegation should not continue. There is, therefore, no force in either of these contentions. The contention that the impugned Act was ultra vires of the Provincial Legislature was repelled by the learned Judges of the Dacca High Court by merely referring to the decision of their Court in Ajit Kumar Das v. Province of East Pakistan (10 D L R 1958 p. 69=P L D 1958 Dacca 280), where the same question had arisen for decision, and without giving reasons. 1n the said case, after stating the contentions and cases cited on both sides, the learned Judges quoted the final conclusion from Mira Khan and others v. Meharban Hussain and others (P L D 1956 Kar. 338) and agreed with it. Reasons for preferring the last mentioned decision was not given. This has provided the occasion for the citation before us of all the cases relied on by both sides in the Ajit Kumar's case. I have considered these decisions fully, and I am satisfied of the correctness of the decision in the present case, which is in accord with two earlier decisions of High Courts in Pakistan viz. Usman Bhai v. The Federation of Pakistan and another (6 D L R 1954 p. 540=P L D 1956 Kar. 25) and the Mira Khan's case cited above. It is desirable that I should give reasons for my conclusions as contrary decisions have been pressed before us. The answer to the question of ultra vires turns on the construction of the meaning and scope of Item 9 in the Provincial Legislative List of the Constitution Act viz., "compulsory acquisi tion of land". It is well recognised that in interpreting a provision of a Constitution the widest construction possible in E its context should be given according to the ordinary meaning of the words used, and that each general word should be held to extend to all anciliary and subsidiary matters. "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 necessarily 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 be covered by the same expression. In decisions as well as statutes the term acquisition has been used to include temporary occupation. For instance in Attorney‑General and De Kayser's Royal Hotel Ltd. (1920 A C 508 at p. 528), Lord Dunedin refers to temporary taking of possession as temporary acquisition. Section 35 of the Land Acquisition Act, 1894 deals with temporary occupation of land. Similarly Part I of the Military Land Act, 1892 (55 and 56 Act. Ch. 43) which is entitled "acquisition of land for Military purposes" contains section 10 which provides for the land belonging to certain persons specified therein being leased for military purposes to a Secretary of State or a volunteers corps for a term not exceeding 21 years subject to the condition that the lease shall cease to have effect if the land ceases to be used for military purposes. In both these instances temporary occupation is not referred to as acquisition, but the fact that it is included under the heading of acquisition clearly shows that that word has been used to cover temporary occupation also. Item 9 of the Provincial Legislative List of the Constitution Act itself is an instance of a statute using the term acquisition to refer also to rights in land lesser than proprietary rights. This becomes clear when the definition of "land" given in section 299 (5) of the said Act and in Item 21 of the said List are considered. In section 299 "land" is defined as including immovable property of every kind and any "rights in or over such property" while item 21 of the List begins with words "land that is to say rights in or over land" and thereafter follow other categories which are not relevant as far as this case is concerned. As to what "rights in or over land" are, has been explained b; their Lordships of the Privy Council in Meghraj and another v. Allah Rakhia and others (A I R 1947 P C 72= PLD 1947 P C 25) where the question for decision was whether the Punjab Restitution of Mortgaged Lands Act, 1938 was ultra vires of the Provincial Legislature. In dealing with this matter their Lordships observed as follows: ‑ "Item 21 is part of a Constitution and would on ordinary principles receive the widest construction, unless for some reason it is cut down either by the terms of item 21 itself or by other parts of the Constitution which has to be read as a whole. As to Item 21, `land', the governing word is followed by the rest of the item, which goes on to say, `that is to say'. These words introduce the most general concept rights in or over land'. `Rights in land' must include general rights like full ownership or leasehold or all such rights. `Rights over land' would include easements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or illustra tion, giving instances which may furnish a clue for particular matters: thus there are the words `relation of landlord and tenant and collection of rents'." The expression "rights in or over land" thus includes rights of exclusive user, which are secured by action under the impugned Act. There can therefore be no doubt that by virtue of Item 9 of the Second Legislative List the Province was invested with legislative competence to pass the Act under consideration. In Usman Bhai's case the decision proceeded on the basis that if a Province could legislate as to acquisition it could also legislate for requisitioning of land on the strength of the maxim that greater includes the lesser. In Mirza Khan's case relied on by the learned Judges of the Dacca High Court, while referring to the said maxim reliance was placed on the unquali fied nature of power conferred by the words of Item 9 of the Second Provincial Legislative List as well as on the definition of land in the Constitution Act. As, for the reasons given above, I am completely satisfied of the correctness of the views expressed in these cases I need deal only with the contrary view pressed before us by Mr. Asrarul Hussain who relied in this connection on three cases, but only one of them *viz. Ton Bug Taim v. The Collector of Bombay (A I R 1946 Bom. 216), a decision of a Single Judge effectively supports him. The observations in Assam Company Ltd. v. The State of Assam and others (A I R 1953 Assam 117) concurring with the view taken in the Bombay decision are obiter as, for the purposes of that case it was not considered necessary to decide the present question; and those observations do not materially add to the point discussed in the Bombay decision. The third decision Rajahmundry Electric Supply Corporation Ltd. v. The State of Andhra (A I R 1954 S C 251) does not apply to the present case. In the Bombay case a restaurant had been requisitioned under the Defence of India Act, 1939 and objection was taken to the order of requisition on several grounds, one of which was that the enactment of the provisions of the Defence of India Act under which it was issued was ultra vires of the Central Legislature. In holding that the requisition of property was a subject not included in any of the Legislative Lists and that therefore without being empowered by a notifica tion under section 104 of the Constitution Act no Legislature could legislate on that subject, the learned Judge observed that requisition was separate and distinct from acquisition. In respect of the definition of `land' under section 299 and in Item 21 of the Provincial Legislative List, he took the view that the rights referred to therein were proprietary rights and not rights of temporary use of occupation, relying on the minority view of Latham, C. J., in the Minister of State for the Army v. Dalziel (68 Com. Law Reports 261) according to which rights acquired by requisitioning land were no higher than those of a licencee. Neither of these observations can be accepted as correct. As pointed out already, the distinction between acquisition and requisition or in other words a permanent and temporary acqui sition, which appears to have weighed with the learned Judge of the Bombay High Court to a great extent, does not exclude requisition from Item

9. As that word has been used therein without any limitation it is but reasonable to infer that the intention was to confer on the Provincial Legislature powers to legislate in respect of acquisition of all kinds of rights and not necessarily proprietary rights. In the nature of things, such a power is necessary for the proper governance of a province, and it is unreasonable to suppose that Parliament while giving power to take away permanently from a subject his entire rights in a property withheld the power to take away only a portion of his rights and that too temporarily. As for the other view the observations of their Lordships of the Privy Council in Meghrajs case quoted above run contrary to it. Even in the Australian case relied on by him, the views expressed by the other Judges who constituted the Bench, clearly showed that the rights acquired under requisitioning were substantial rights and not those of a licensee. In that case a vacant land which the respondent Dalziel had taken on a weekly tenancy from a Bank was requisi tioned under a regulation, and one of the points for considera tion was whether the taking possession of that land amounted to acquisition in respect of which the Australian Constitution required just terms being fixed. The learned Chief Justice of the Australian High Court held that the Commonwealth could not be said to have acquired the land unless it became its owner or of some interest in it and that as a result of the requisitioning of the land the Commonwealth vas in the position of a licensee with rights as stated in the Regulations. In dissenting from this view Rich; J., with whom three other Judges constituting the Bench agreed, pointed out that "acqui sition" in the relevant article of the Australian Constitution was not restricted to acquisition by particular methods or of particular types of interests or to particular types of property; and after referring to the rights to possession he went on to observe as: "It would, in my opinion, be wholly inconsistent with the language of the placttum to hold that whilst preventing the legislature from authorising the acquisition of the citizen's full title except upon just terms, it leaves it open to the legisla ture to seize possession and enjoy full fruits of possession, indefinitely, on any terms it chooses, or open no terms at all. In the case now before us the Minister has seized and taken away from Dalziel everything that made his weekly tenancy worth having, and has left him with the empty husk of tenancy. In such circumstances he may well say `You take my house, when you do take the prop. That doth sustain my house; you take my life. When you do take the means whereby I live". William, J., one of the other Judges observed that by entering into possession under the relevant regulation, the Commonwealth divested the lessee of his exclusive possession and acquired it for itself, and that this placed the lessee in the same position in which he would have been placed had he assigned the lease or sublet the land, the only distinction being that in the case of assignment or sublease the possession is given voluntarily. He then went on to point out that in Attorney‑General and De Kayser's Royal‑ Hotel Ltd. cited above, Lord Atkinson speaks of the Crown going into possession of the land by virtue of a legislative title or by force of a paramount power. The view that a statutory authority holding private property under an order of requisition is in the position of a licensee overlooks the‑ fact that in the case of a requisition, land is not held by leave or licence of any superior proprietor with powers to dispossess the occupant, but that on the other hand the requisitioning authority can continue to be in possession as long as it likes. The learned Judges who decided Mira Khan's case were therefore right in disagreeing with the view expressed in the Bombay decision, which was dissented from after Independence by a Division Bench of the High Court of Punjab (India) in Shyam Kishan v. The State of Punjab and others (A I R 1952 Pb. 70). Even before Independence, within a year of the pronouncement of the Bombay decision a Division Bench of the Calcutta High Court held in Province of Bengal v. Board of Trustees for the Improvement of Calcutta (A I R 1946 Cal. 416) that "requisition in relation to land without more is thus the "acquisition" of an interest in land for a time or for an uncertain period as the case may be". I, therefore, consider that the view taken in Tan Bug Taim's case which is the mainstay of Mr. Asrarul Hussain's argument is not consistent with the true meaning of the relevant expression of legislative power contained in the Constitution Act, but that the view which has found favour with Courts in Pakistan is the correct view, and that therefore the impugned Act was intra vires of the East Bengal Legislature. The contention that the said Act was ultra vires therefore fails. It now remains to consider whether Act 3 of 1954, which extended the life of the Requisition Act till 1957 was ultra vires of the Governor in view of the decision of this Court in Usif Patel's case. Act 3 of 1954 was enacted by the Governor of East Pakistan under the powers conferred by section 92‑A of the Constitution Act which was inserted in the said Act by the Governor‑General's order issued in 1948 after the 31st March, the date up to which under the Independence .Act the Governor -General could issue orders amending the Constitution Act. But the provision of the Indian Independence Act fixing that date was amended by the Constituent Assembly by extending the time for such orders till 31st March 1949. To this amending Act as in the case of other Acts of the Constituent Assembly assent of the Governor‑General was not obtained. In Usif Patel's case it was held by this Court following its decision in the Federation of Pakistan v. Maulvi Tamizuddin Khan (P L D 1955 F C 240) that the insertion of section 92‑A in the Constitution Act was ultra vires as amendment of subsection (5) of section 9 of the Indian Independence Act empowering the Governor‑General to make orders after 31st March 1948 had not received the assent of the Governor‑General and was therefore in itself of no force. The argument of the learned Advocate for the appellant was that in view of this decision Act 3 of 1954 was ultra vires of the Governor and consequently the extension of life given to the original Act till August 1957 was not valid, with the result that on the date of the order of requisition in question the impugned Act was not validly in force. But the decision in Usif Patel's case was to the effect that the giving of assent to an Act passed by the Legislature brought it into operation only from the date on which it was assented to and not from before that date, and all proceedings taken under that Act before assent were void unless there were subsequently validated; and subsequent to this decision the Constituent Assembly passed the Validation of Laws Act 1955 which provided the required validation. Section 2 of this Act is to the effect that the laws specified in its schedule shall be deemed to have received the assent of the Governor‑General on the dates specified against them and that they shall also be deemed to have had the force and effect of law as from those dates and that anything done thereunder in accordance with the provisions thereof shall be deemed to have been validly done. The first item in the schedule to‑ this Act is the Indian Independence Amendment Act, 1948, which con ferred on the Governor‑General powers to pass orders amending the Government of India Act till 31st March. 1949. The result of this Validation‑ Act therefore is that all that has been done under the powers conferr6d under section‑92‑A have to be deemed to have been validly done. There is thus no force in this con tention also. I would therefore dismiss the appeal but pass no order as to costs as there was a divergence of judicial opinion on the principal question in the case. CORNELIUS, J.‑I agree. AMIRUDDIN AHMAD, J.‑I agree. A. H. Appeal dismissed.