P L D 1963 Dacca 525 (PLP)

Act, XXXII of 1957, the said order of requisition is mala fide and liable to be set aside. (v) That the basis of compensation provided by the said Ordinance XXV of 1959 being grossly inadequate and unjust is void. (vi) Finally it was argued that, in any event, the impugned notice dated the 17th June 1960, served upon the petitioner is bad and illegal inasmuch as it purported to offer for the accept ance of the petitioner a sum of money as part payment for requisition as well as acquisition of the said property, although it has not been' so acquired.

8. The petitioner did not press this application in so far as he had obtained the Rule for a direction from this Court that the assessment of the compensation in respect of the petitioner's land should be on the basis of its market value at the date when it was requisitioned and rot at the market value of the land in year 1953.

9. With regard to the first point as stated above, Mr. Suhrawardy drew our attention to the Laws (Continuance in Force) Order, 1958, that is (President's Order) (Post‑Proclamation No. I of 1958). Article 5 (2) of the said Laws (Continuance in Force) Order, 1958 reads as follows:

‑ "In the exercise of the powers conferred by the previous clause the Governor shall act subject to and‑ directions given to him by the President or by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator."

10. It was argued on behalf of the petitioner that Article 5 (1) empowers the Governor to make Ordinances, but such power was subject to directions given by the President or by the Chief Administrator of Martial Law. We do not think that it can be seriously contended that all the powers exercisable by the Governor are made subject to a previous direction obtained from the President. All that clause (2) of Article 5 provides is that the rowers exercisable by the Governor shall be subject to directions" given by the President. In this case, it has not been showy that any direction has been given by the President restricting the powers of the Governor to promulgate Ordinances under clause (2) of Article

5. There is, therefore, no substance in this point.

11. Mr. Suhrawardy has argued that an important piece of legislation like Ordinance, XXV of 1959 should not have been hastily introduced and that the Governor should have obtained a direction from the President in order to introduce uniformity throughout Pakistan with regard to such legislation that is almost confiscatory in its nature. We may only add that this point has nothing to do with the vires of the impugned Ordinance. This is a matter for the Governor to consider but we do feel that the impugned legislation has far‑reaching consequences and that it entrenches upon the rights of citizens without adequate and just compensation.

12. Mr. Suhrawardy has next contended that the impugned Ordinance is ultra vires of the powers of the Governor on two grounds. In the first place, he has contended that the East Bengal (Emergency) Requisition of Property Act, 1948 has assumed the character of a Central legislation on the promulgation of the President's Order (Post‑Proclamation) No. I of 1958. He has contended that with the revolution, which abrogated the Constitu tion, all laws of Pakistan ceased to exist, and that they were reintroduced with the promulgation of the President's Order (Post‑Proclamation) No. I of 1958. This argument would receive support from a decision of the Supreme Court of Pakistan that the laws of this country ceased to have their legal effect conse quent upon the resolution which abrogated the Constitution which was legal basis of all such laws and that upon the promulgation of the said order they were re‑born, the source of their validity being the said Post‑Proclamation Order. [See The State v. Dosso). But the question is, whether even if the East Bengal (Emergency) Requisition of Property Act, 1948 was re‑born with the promulgation of the aforesaid Order, did it upon its re-birth shed its character as a Provincial legislation and re‑emerge as a Central legislation? We do not think that the East Bengal (Emergency) Requisition of Property Act, 1948, transformed itself as a Central legislation when it was re‑validated by the Post‑Proclamation Order. On the basis of Mr. Suhrawardy's contention as stated above, that the Governor had no power to amend or repeal a Central legislation, the short answer to this is that the East Bengal (Emergency) Requisition of Property Act, 1948 is not a Central legislation and even if it be deemed to be so, the Governor is empowered to amend it by the impugned Ordinance because acquisition and c requisition of land is a Provincial subject. Within the exclusive legislative field of the Provincial Legislature, the Governor's legislative capacity is unfettered. If he chooses, so far as this province is concerned, he can amend any Central legislation with regard to any matter, which is exclusively in the Provincial List.

13. The next point contended by Mr. Suhrawardy is, that the provisions of Ordinance XXV of 1959 are void inasmuch as they are discriminatory in character and have been arbitrarily fixed without any reasonable or just basis. Learned counsel has argued that the provisions of Ordinance XXV of 1959 as to the rate of compensation are most unfair and unjust as compare to similar provisions in the Land Acquisition Act, 1894. He has contended that the effect of the impugned Ordinance would be that a person, whose land is acquired, may be paid a fair compensation or a grossly inadequate one as the Requisitioning or Acquiring Authority chooses to proceed either under the impugned Ordinance or under the more liberal provisions of the Land Acquisition Act of 1894. It was argued that this would show that the aforesaid provisions are glaringly discriminatory in character. Learned counsel has vigorouly contended that the rate of compensation at the market value of the land in 1953 is patently arbitrary. There is a good deal of force in this argument and it could have been advanced on the basis of the late Constitution, but we do not think, we can go into this question now. The provisions of the late Constitution with regard to "equality before law" enumerated in the category of fundamental rights has beer, abrogated. The Supreme Court has held that with the abrogation of the late Constitution the categories of fundamental rights have been wiped out. It is no C longer open to the petitioner to canvass this contention before us. In the absence of a constitutional provision as to equality before' law an enactment or an Ordinance cannot be challenged before us on the ground that it is discriminatory in character. We have, therefore, refrained from investigating this point any further.

14. Learned counsel has next contended that the order of requisition in respect of the petitioner's property is mala fide as his property was obviously requisitioned under the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948, with a view to pay him lesser compensation than what he would have been entitled to if the same had been acquired under the Land Acquisition Act, 1894. It was pointed out that the real purpose of the respondents was to acquire the land because the same would be required for a Railway diversion plan, which could not be effected without acquisition of land. It was, there fore, submitted that the object of proceeding under the East Bengal (Emergency) Requisition of Property Act, 1948, was merely to give lesser rate of compensation. Whatever may have been the motive of the Requisitioning Authority with regard to the payment of compensation, we cannot hold that the order of requisition was mala fide merely because such authority had acted under the provisions of the East Bengal (Emergency) requisition of Property Act, 1948 and not under the Land Acquisition Act of 1894. The question is whether the law authorizes the Requisitioning Authority, who is a public servant, ~o requisition or acquire the property for a public purpose under any of two different pieces of legislation or enactment. We cannot hold that the requisition of property under an Act, which provides for lesser compensation, must be mala fide merely on that score, in the absence of further materials on which we may be asked to come to that conclusion.

15. In support of the contention of learned counsel as stated above, we were taken through the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948, East Pakistan Act XXXII of 1957 and the East Pakistan Ordin ance XXV of 1959 for a comparison of the basis upon which these ordinances and enactments have sought to assess compensation for the lands requisitioned or acquired.

16. The first enactment is a landmark in this branch of legislation with regard to compulsory land acquisition, namely, the Land Acquisition Act, 1894. Section 23 of the Land Acquisition Act, 1894 provided that the following matters were required to be considered in determining compensation. The said, section reads as follows: "(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration‑ First : the market value of the land at the date of the publication of the notification under section 4 subsection(1) ; Secondly : the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking posses sion thereof ; Thirdly : the damage (if any) sustained by the person; interested at the ticne of the Collector's taking possession of the land, by reason of severing such land from his other land ; Fourthly ‑ the damage (if any) sustained by the person interested, it the title of the Collector's taking possession of the land by reason of the acquisition injuriously affecting his oilier property movable or, immovable, in any other manner, or his earnings Fifthly : if, in consequence of the acquisition of the land by Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change ; and Sixthly : the damage (if any) bona fide resulting from diminution of the profits, of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen percentum on such market‑value, in consideration of the com pulsory nature of the acquisition".

17. This enactment provided for a fair and adequate com pensation with regard to the compulsory acquisition of land. It was introduced by the British, during their occupation of this country, in keeping with the liberal tradition of their own country. Ever, today it is thought in England and various other countries in the Commonwealth that nobody's property should be compulsorily taken away without payment of a just, fair and adequate compensation. This principle was also the basis of the provision of section 299 of the Government of India Act, 1935, which was a ‑legislation of the British Parliament.

18. Then came the independence of this country which brought along various pressing and urgent problems which were very difficult to solve. It was imperative that the country should be improved in various directions and the town of' Dacca, which was hitherto a district headquarter, had to be converted into a Provincial capital. Lands and properties had to be requisitioned to meet the exigencies of the situation and also with a view to promote the development of a country, which had just emerged as an independent State. In this background, the East Bengal (Emergency) Requisition of Property Act, 1948 was passed arid it provided for compensation of land which was assessed at its market‑value in June, 1947. Mr. Suhrawardy has submitted that the said rate of compensation was not unreasonable or unjust at the moment when the Act was passed. There was also a pressing emergency in this country to rehabilitate its displaced inhabitants. Subsequently there were various amendments to the East Bengal (Emergency) Requisition of Property Act, 1948, but the East Pakistan Act XXXII of 1957 amended the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948 with regard to the payment of compensation in respect of compulsory requisi tion. or acquisition of property and provided that compensation would be paid on the basis of the market‑value of the land at the date of requisition This was in consonance with the; provision: of tile late Constitutions to the affect that no land could be acquired without payment of compensation (which meant adequate com pensation) and without the same being required for a public purpose. We were referred to Article 1 5 of the late Con stitution. Mr. Suhrawardy has contended that with the abrogation of the Constitution there was a promulgation of an Order by the President to the effect that the country shall be governed as close to the provisions of the late Constitution as possible. He has, therefore, argued that the East Pakistan Ordinance XXV of 1959 could not have modified the provisions of the East Pakistan Act XXXII of 1957 with regard to the rate of compensation to be, paid in respect of the land compulsorily acquired. We have already stated that inasmuch as the Supreme Courts of Pakistan has held that in spite of the aforesaid Presidential Order the provisions as to the fundamental rights, such as, Article 15 of the late Constitution are no longer available to an aggrieved citizen, we will not consider this question any further.

19. Our attention was drawn to the Capital Development Authority Ordinance, 1960, which was promulgated by the President in June 1900, with a view to carry out the plan for building a Capital of' Pakistan at Islamabad near Rawalpindi. Incidentally we may state that it was gratifying to read the pro visions of this Ordinance which we shall describe as the Rawalpindi Ordinance. It provides for a very comprehensive scheme and brings into existence a body corporate known as Capital Deve lopment Authority. It particularly defines the powers of those who are called upon to implement the purpose of the Ordinance with regard to the lands acquired under the said Ordinance. I t has laid down a number of matters to be considered in determining compensation, which is in keeping with the Land Acquisition Act, 1894 and also with the late Constitution of Pakistan. Section 30 of the said Ordinance reads as follows: "(1) In determining the amount of compensation to be awarded for land acquired under this Ordinance the Deputy Commissioner shall take into consideration,‑-- First : the market value of land; secondly : the damage sustained by the person interested, by reason of dispossession of any standing crops or trees which may be on the land ; thirdly : the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of severing such land from his other land ; fourthly : the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of the acquisition injuriously affecting his other property, movable or immovable in any other manner of his earnings ; and fifthly : if, in consequence of the acquisition of the land the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change. (2) In addition to the value of the land determined as aforesaid the Deputy Commissioner shall in every case award a sum of fifteen per centum on such value in consideration of the compulsory nature of the acquisition."

20. Learned counsel has asked us, why an Ordinance similar to that of the Rawalpindi Ordinance could not be promulgated in East Pakistan? Our answer is, this is a question which he is not entitled to ask us. He should pose this interrogation to those, who are responsible for ‑bringing into existence such a legislation like the present one, which is impugned before us. The answer that we may give to this question would not affect the validity of the impugned Ordinance. We have repeatedly said that the Courts are concerned only with the legality of an Act or Ordinance but not with its ethics or normal justification. The propriety of a piece of legislation is not a matter which is justifiable in a Court of law. However unjust or unethical it may be, a Court of law cannot refuse to give effect to the same merely on the ground that it is unjust and unfair.

21. We now turn to the last point which, according to us, is the only effective argument that has been advanced before us on behalf of the petitioner, namely, that the impugned notice dated the 17th June 1960, served upon the petitioner, is illegal and bad. We think that the petitioner must succeed on this point. It is patent from the notice, which has been set out above, that it was served upon the petitioner with a view to receive his assent to an advance or part payment of compensation with regard to the petitioner's land on the footing that it was requisitioned and, acquired. We have already seen that the respondents have frankly conceded that the petitioner's land has not been acquired. It was said that they intended to acquire the same; without having acquired the land they cannot serve upon the petitioner the notice dated the 17th of June 1960, requiring to give his assent to an offer of compensation for acquisition of the land. The matter is premature and the question of acquisition does not arise at the present moment. It cannot be ascertained from the impugned notice what figure relates to compensation for requisition of the land and what sum is offered for its requisition. The notice is, therefore, wholly bad.

22. With regard to the rate at which compensation is to be assessed, namely, whether it would be on the basis of market rate at the date of acquisition according to Act XXXII of 1957 or according to the market rate of the land in 1953 as provided by the impugned Ordinance., the point has not been pressed before us the petitioner feels that this point may and can be agitated at the appropriate moment. 23. 1n these circumstances, we make the Rule absolute in Dart and direct the respondents to recall the impugned notice dated the 17th June, 1960 served upon the petitioner. In so far as the petitioner obtained this Rule from this Court for directing the respondents to assess compensation on the basis of the East Pakistan Act, XXXII of 1957, the rule is discharged as the point has not been pressed before us. The petitioner will be entitled to realise costs of this petition, which we assess at five gold muhars. SALAHUDDIN AHMAD, J.‑

I agree. A. H. Rule made absolute