P L D 1958 Dacca 280 (PLP)

On this question, the following observations of Imam, . J., of the Supreme Court of India in the case of State, of Bombay v. V. R. S. Nanji (1956 S C A 308 (314)) is also pertinent "Prima facie the Government is the best judge as to whether `public purpose' is served by issuing a requisition order, but it is not the sole judge. The Courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is .not for a public purpose". It is thus clear that since the passing of the Indian Constitu tion the Indian Courts have held that the question whether a particular requisition is for a `public purpose' is justiciable in a Court of law. Mr. Hakim, the learned Counsel for the State, has argued that if Article 15 (2) of the Constitution of Pakistan had stood alone, it would certainly make the purpose of the acquisition justiciable and the Courts would be entitled to go into the question whether the acquisition was for a public purpose or not. But there is an exception to clause (2) of Article 15 of the Constitution and this exception is contained in clause (3) (a) of the same Article which lays down " Nothing in this Article shall, affect the validity of (a) any existing law." 'In other words, according to him, the law prior to the passing of 'the Constitution debarred the Court from going into the question whether the purpose of the acquisition was public or not and hence that law is saved by clause (3) (a) of Article 15 of the Constitution. In support of his contention, he has relied on the decisions in the cases of Brij Nath Sarin v. Uttar Pradesh Government and another (A I R 1933 All. 182), the case of V. Gopalakrishna v. The Secretary, Board of Revenue, Madras and another (A 1 R 1954 Mad. 362), and the case of Samiruddin Sheik v: Subdivisional Officer and others (A I R 1954 Assam 81). It seems that he has built up this argument on section 6 of the Land Acquisition Act. We do not wish to refer to the above cases in detail because those were under the Land Acquisition Act which expressly provided in section 6 of that Act that the order of the Local Government directing the acquisition of the land is conclusive. If there was such a provision in the Act under consideration, it might have been said that the existing law, though contrary to the, provisions of Article 15 (2) (u), is saved but there is no such provision in this Act. We may further observe here that the question here is not regarding tile validity of this Act but the question is one of the validity of an order passed under the Act. Hence, we fail to see how clause (3) of Article 15 can debar the Court from entering into the question whether the requisition was for a public purpose or not. Mr. Hakim has also placed reliance on the case of Sodhi Shnnrsher Singh and others v. The State of Pepsu and others (1). In the above case, Mukherjee, J., while considering section of Preventive Detention Act (1950), observed at page 277 as follows :‑ " It has been held by this Court on more occasions than one that the propriety or reasonableness of the satisfaction of the Central or the State Government upon which an order for detention under section 3, Preventive Detention Act, is based cannot be raised in this Court and we cannot be invited to undertake an investigation into sufficiency of the matters upon which such satisfaction purports to be grounded. We can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely the prevention of objects prejudicial to the defence of India or to the security of State and maintenance of law and order therein." In the above case, there was no question of interpretation of Article 31 of the Indian Constitution. The application was for a writ of habeas corpus under Article 32 of the Indian Constitution. Further, there is also difference in the wording of section 3 of the Safety Act and section 3 of the Act under consideration. Hence this case, in our opinion, is not of much assistance to Mr. Hakim. For the reasons stated above, we hold that Article 15 (2) of the Constitution of Pakistan empowers the Court to scrutinise such cases and to decide upon the facts whether the powers of C Government have been exercised in good faith in the interest of the public and whether the land was acquired for a public purpose. We, therefore respectfully agree with the decision of Harries, C. J., in the case of Mrs. Bella Banerjee. Furthermore, the observations of Chagla, C. J., in Mohanlal Kupur's case, and that of Imam, J., in R. S. Nanji's case, quoted above, have all, our full and respectful concurrence. It is thus clear that after passing of the Constitution the situation has changed and the decision in Mahumudan Nabi Chowdhury's case, namely, that the Government is the sole judge as to whether the purpose is or is not a public purpose is no longer applicable to the cases of requisition under the East Bengal (Emergency) Requisition of Property Act, 1948. In other words, the question whether a particular requisition is for a public purpose now justiciable in a Court of law. Mr. Hossain has contended that this requisition was wade solely for the benefit of the firm Messrs Asad Ali and Surat Ali. On the other hand, Mr. Hakim has contended that this requisition was for development work of East Pakistan. Mr. Hakim has placed before us a copy of the order. dated 7th December 1956, which was issued under section 3 of the Act. It seems that such order for requisition is issued by the Government in, a set form described as `Form A'. The order is to the following effect :‑‑ " Whereas in my opinion it is expedient and necessary in the public interest to requisition the movable/immovable property described in Schedule A below annexed to this order for the brick‑field of Messrs Asad Ali and Surat Ali at Pangaon, district Dacca. Administration/Development of the Province of .East Bengal. Improvement of Communications/Waterways/Drainage/the town/part of . . . . . . in the Province of East Bengal. Development of Commerce/Industries of the Province of East Bengal, maintenance of supplies and services essential to the life of the community in th.e Province of East Bengal. Now, therefore, in exercise of the power conferred by section 3, read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act XII1 of 1948). which powers have been delegated to me by the Provincial Government. I requisition the said property and hereby make the following orders :‑ (1) Name‑‑‑Ajit Kumar Das of (Address) Pangaon, P. S. K;traniganj, District Dacca, the owner/occupier of the said property‑ (a) shall place the said property at my disposal and under my control with effect from 7th December 1956 and deliver possession thereof on the said date to L. A. Collector who ha, been authorised to receive it on my behalf. (b) shall furnish to the said District Magistrate, Dacca, such information in his/her/their possession relating to the said pro perty as the said District Magistrate, Dacca, may by an order in writing specify. (c) shall on or before . . . . 1952 remove from the said property the movable properties as specified in the Schedule B below, annexed to this order, or any other movable properties which may be specified in an order in writing by the said District Magistrate, Dacca. (d) shall not dispose of the said property in any way which may disturb or interfere with the use or the dealing of the said property in the manner desired by me so long as this order remains in force. Schedule A. Part of C. S. Plot No. 729, 1081, 1083 of Mouza Pangaon, J. L. 451, P. S. Karaniganj, District. Dacca Area more or less. .40, .48 and .08 respectively. Schedule B (Sd.) Illegible Additional District TAR Mr. Hakim has been candid enough to say that the use of the expression "for the brick‑field of Messrs Asad Ali and Surat Ali" was not a happy one. He has, however, argued that the sentence "Development of the Province of East Bengal" which follows the sentence "For the brick‑field of Messrs Asad Ali and Surat Ali" shows that the acquisition was in the public interest. Further, according to him, the fact that this order was issued under section 3 of the Act indicates that it was for a public purpose. In this set `Form A', all the various purposes, as mentioned in section 3 of the Act, have been printed. The authority issuing the order is expected to retain the purpose for which a particular requisition is made and to strike out the portion which does not apply to the case. If the issuing authority had not clearly men tioned the purpose as "for the brick‑field of Messrs Asad Ali and Surat Ali", there would have been room for argument that some of the purposes mentioned in the Form would apply. Such is not the case. The authority has not left any room for conjectures and surmises. They have clearly mentioned the purpose of requisition as "for the brick‑field of Messrs Asad Ali and Surat Ali". Hence, we are unable to accept the contention of Mr. Hakim. We may also observe that from the affidavits we are not satisfied that this requisition was really in the public interest. The Deputy Secretary has stated in paragraph 10 of his affidavit in opposition " That because of the appeal, dated 26th December 1956, of the petitioner to the Government, the Provincial Government by its order, G. O. No. 16406 Reqn., dated 26th December 1956, directed to stay requisition proceedings. After due enquiry, the Government was satisfied that the pro forma respondents Messrs Asad Ali and Surat Ali were urgently in need of at least half the portion of the land which was originally requisi tioned, that is the portion which was requisitioned by the amended order of requisition, and without this the said firm could not supply the bricks to the Provincial Government which were essentially needed by the said Government for the develop ment works and for which a contract was given to this firm of Messrs Asad Ali and Surat Ali". Asad Ali and Surat Ali in their joint affidavit have supported the Deputy Secretary by saying " In this connection, I submit that our Firm, namely, Messrs Asad Ali and Surat Ali, have contracted with the Government of East Pakistan ‑ to supply ten lacs of bricks and with the Government of Pakistan to supply 15 lacs of bricks and these brick must be supplied to the respective Governments before the rainy season so that the Government may use these bricks for the construction of roads and buildings and for other development purposes before the next rainy season". They further say :‑ " As both the Governments are in urgent need of bricks and as the area of land in which our brick‑field is situated is not enough and self‑sufficient and as it is absolutely necessary to extend the works of brick‑field to enable us to supply the contracted bricks to both the Governments within the scheduled time, the aforesaid requisitioned plots were requisitioned to manufacture bricks to meet the growing and ever‑increasing and immediate need of bricks for the public purposes for development works." The Superintending Engineer, Development Circle No. 1, has filed an affidavit to show that the Government requires a large number of bricks for development work in East Pakistan and that in spite of their best efforts they were able to place orders with Messrs Asad Ali and Surat Ali and other contractors for supply of only 80 lacs of bricks. He has also stated that the last date of submitting the tender was 8th October 1956 and that the acceptance of tender of Messrs Asad Ali and Surat Ali was communicated to him (Superintending Engineer) on 1st November 1956. Mr. Hakim has stated that Surat Ali applied for requisition of the brick‑field in February 1956, and the Revenue Department passed an order on 8th November 1956 to the effect that the District Magistrate, Dacca, may requisition the brick‑field provided there was no objection. Now, the date of acceptance of the tender submitted by Messrs Surat Ali and the date of the order of the Revenue Department give us an impression that when the Revenue Depart ment made up its mind to requisition the brick‑field they were not aware if the tender of Messrs Asad Ali and Surat Ali had been accepted. If really the Revenue Department had been apprised of the said fact before passing of the order of requisition, they would certainly have insisted that the requisitioned brick field should be used by Messrs Asad Ali and Surat Ali solely for the purpose of supplying bricks to the Government. Mr. Hakim says that there was no such condition and the contractor was at liberty to sell the bricks from the requisitioned brick‑field to outsiders. The Superintending Engineer has said that the con tractors were unable to supply their full requirements. There is, however, nothing in the record to show that this fact had also weighed with the Revenue Department. The sentence "As such, the Government by their G. O. No. 28 Reqn., dated 1st January 1957, approved the requisition" in paragraph 10 of the affidavit in opposition is also very signifi cant. It leaves an impression that prior to that date the Government was not aware of all the facts and circumstances about the requisition of this brick‑field. Now, before an order of requisition could be made, the requisitioning authority must determine for itself what the purpose of the State or other public purpose is for which the requisition order was made. In other words, the condition precedent and the foundation of the exercise of the power must be present in the mind of the requisitioning authority before it issues the order by which it takes away the property of the subject. Whether this was done or not could only be tested by the specific purpose as set out in the order. As already stated, the order says that it was acquired "for, the brick‑feel/of Messrs Asad Ali and ` Surat Ali". Therefore, on the face of the order, we find it difficult to hold that this requisition is for a `public purpose,' or `in the public interest'. Mr. Hakim has argued that such requisition for an individual is permissible under the Act. He has built up this argument on the expression "Development of Commerce and Industries" occurr ing in section

3. Section 3 reads as follows " If in the opinion, of the Provincial Government it is expedient or necessary so to do for the administration and development of the new Province of‑ East Bengal or for any other public interest connected therewith such an improvement of towns or ports, construction or betterment of roads, water ways or other communications, development of commerce or industries, maintenance of supplies and services essential to the life of the community and other similar purposes, the Provincial Government may by order in writing requisition any property and may make such further orders as appear to that Government to be necessary or expedient in connection with such, requisition". Now, in this section, the words used are `public interest.' We, however, do not see much distinction between the expression "public purpose" and "public interest". In any event, the word `public' denotes that the requisition: must be for the benefit of the people in general as distinguished from a particular individual. No doubt, this section empowers the Government to requisition land for developing commerce and industries which may be in the public interest. The Government must first decide which particular industry should be developed. Furthermore, for carry ing out that purpose, they can also employ a private agency But, by no stretch of imagination, it can be said that this section empowers the Government to requisition the property of a subject for the benefit of a particular individual. Here we may profitably quote the following passage ,from Willoughby's Constitutional Law at page 795 As between individuals, no necessity however great, no exigency however imminent, no improvement however valuable, no refusal however unneighbourly, no obstinacy however unreasonable, no offer of compensation however extravagant can compel or require any man to part with an inch of his estates". What is a public use has also been described in Corpus Juris, No. 20, Article 39, at page 552 :‑‑ "The meaning of the term is flexible and is not confined to what may constitute a public use at any given time, but in general it may be said to cover a use affecting the public generally or any number thereof, as distinguished from particular individuals." Reference in this connection may also be made to Vol. 2 of Cooley's Constitutional Limitation at page 744 wherein, it is said "The purpose must be public and must have reference to the needs or convenience of the public and no reason of general public policy will be sufficient to validate other transfers when, he concern existing vested rights". The Courts of India have also held in the following cases that a ;and cannot be acquired for an individual : State of Bihar v. Sir Kanteshwer Singh (AIR 1952 S C 252) and Bankey Singh and others v. Jhingan Singh and others (A I R 1952 Pat. 166). We may also observe that Article 11 (b) of the Constitution also supports this view. Article 11 (b) says " Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right‑(b) to, acquire, hold and dispose of property." F1iis Artrcte, in our opinion, also shows that the State has no tower it) acquire pzwatc property merely to give it to a private person It is thus clear that by this Act the Legislature never intended any requisition of land for an individual, nor the. words of section 3 would justify such an interpretation. Any such enact ment will be void and unconstitutional. Mr. Hakim attempted to argue that the development of industry by an individual may ultimately benefit the community. We have already pointed out that section 3 does not contemplate requisition for the benefit of an individual. Further, in our opinion, that such remote possibility of benefit to the community cannot be regarded as "for public purpose or' in the public interest" is also clear from the following passage from the judgment of Batchelor, J., which was quoted with approval by the Judicial Committee in the case of Hamabai Framjee Petif v. Secretary of State for India (42 I A 44 (47)). " General definitions are, I think, rather to be avoided where the avoidance ' is possible, and I 'make no' attempt to define precisely the extent of the phrase `public purposes' in the lease , it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed' to the particular interest oaf individuals, is directly and vitally concerned". ' In conclusion, we may observe that the foundation of the power of the State to requisition property is the existence of a public purpose of the State or any other public purpose. The State has the power to requisition property for the purposes set out in section 3 of the Act. In other words, the Government ' is given the right to take the land of an individual in the interest of the community as a whole. The Act does not empower the Government to transfer the property of A to B. By the impugned order, the requisitioning authority has tried to give part of the brick‑field of one person to another person. This they, were not entitled. to do under the East Bengal (Emergency) Requisition of Property Act, 1948. Mr. Hossain has also contended that the notice of the pro ceedings was not served on the petitioner. From the service return it appears that, as no one was found on the land, it was affixed on a pole on the disputed land. The petitioner has stated in paragraph 7 of his petition " Your petitioner states that he has his manager's residence in the said brick‑field and his other employees are constantly on the said brick‑field as brick laying and manufacturing work is in full swing now ever since November 1956". In the affidavit in opposition, the Deputy Secretary has not specifically denied that the house of the petitioner's manager is not near the disputed brick‑field. Furthermore, section 4 (1) of the Act provides :‑ When an order of the requisition has been made under section 3, it shall be served on the owner of the property personally by delivering or tendering it to him or where the owner cannot be found it shall be served by leaving an authentic copy of the order with some adult male member of the family of such owner, or/and, if no such adult male member can be found, the notice may be served by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain and also by affixing another such copy to some con spicuous part of the requisitioned property." In this case we find that no attempt whatsoever was made to find out where the petitioner resides. In these circumstances, we hold that the notice of the requisition proceeding was not served on the petitioner in accordance with the provisions of section 4 (1) of the Act. A point has been taken before us by Mr. Hakim that this application for a writ of mandamus is not maintainable. This application is one under Article 170 of the Constitution. To make out a case under this Article for a writ of mandamus, it is incumbent upon the petitioner to show that the order of requisition affects his legal right guaranteed by the Constitution. This he has done. The existence of his legal right to the requisi tioned brick‑field has not been disputed. Now, the State is under a legal obligation to requisition the land only for the purposes laid down in section 3 of the Act. As they have failed to carry out the duty enjoined by the Act, we think the Court can issue a mandate recalling the impugned order. For the reasons stated above, we must hold that there was no valid order of requisition of. the land in dispute. We, therefore, direct respondents Nos. 1 and 2 to forbear from giving effect to the order of requisition, dated 7th December 1956, as also the modified order, dated 22nd December 1956, and to recall the said orders. This Rule is made absolute. The. petitioner will be entitled to his costs assessed at 30 gold mohurs. This order will be served after two weeks. As this case involves a substantial question of law as to the interpretation of the Constitution, the certificate prayed for is granted. ASIR, J.‑I agree. Rule made absolute.