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Petitioner: MOMTAZ BEGUM VS Respondent: THE PROVINCE OF EAST PAKISTAN
P L D 1962 Dacca 516
P L D 1962 Dacca 516
Before Murshed and A. S. Chowdhury, JJ
MOMTAZ BEGUM‑Petitioner
Versus
THE PROVINCE OF EAST PAKISTAN AND OTHERS‑Respondents
Writ Petition No. 81 of 1962, decided on 20th July 1962.
(a) East Bengal (Emergency) Requisition of Property Act (XIII of 1948), S. 3‑Order of requisition vague and indefinite regar ding property sought to be acquired‑Illegal and inoperative--- Section does not authorise relevant authority to requisition land specification as to location and extent of which is to be determined in future.
(b) East Bengal (Emergency) Requisition of Property Act (XIII of 1943), S. 3 read with S. 4‑Order tinder S. 3 must bear personal signature of person making order‑Rubber stamp no substitute for conscious signature ‑ Requirement of S. 4 not a mere technicality Original order and trot copy to be served personally upon person affected by order‑Alternative mode of service under S. 4 may be resorted to only after it is proved that personal service was not possible‑Right to obtain possession of requisitioned property vests only upon service of order made under S. 3 in manner specified in S. 4‑Order recorded in official file of relevant authority under S. 3 without service of notice under S. 4‑Of no legal consequence.
(c) East Bengal (Emergency) Requisition of Property Act (XIII of 1948), S. 3‑Order mala fide‑Set aside.
(d) East Bengal (Emergency) Requisition of Property Act (XIII of 1948), S. 3‑Authority passing order of requisition not applying his mind as to need for order and also as to public interest behind it‑Order, void and inoperative.
(e) East Bengal (Emergency) Requisition of Property Act (XIII of 1948), Ss. 3 & 5 and Land Acquisition Act (I of 1894) Acts do not provide two alternative modes of acquisition of land in public interest‑ Purpose of East Bengal (Emergency) Requisition of Property Act, 1948 simply requisition whereas that of Land Acquisition Act, 1894: acquisition simplicitor-- Acquisition of requisitioned property under East Bengal (Emer gency) Requisition of Property Act, 1948 valid but converse proposition: requisition merely for acquisition‑Not authorised-- Authorities taking recourse to provisions of East Bengal (Emer gency) Requisition of Property Act, 1948 in order to evade more liberal provisions of Land Acquisition Act, 1894‑Order, held, illegal and void.
Abdus Sobhan Sowdagar v. Province of East Pakistan 14 D L R 486 ref.
M. M. G. Hafez and A. T. M. Afzal for Petitioner.
Maksum‑ul Hakim, A. G. and A. T. Sadi for Respondents.
Asrarul Hussain, and Md. Nurul Huq for Added Respon dent.
Dates of hearing : 17th, 18th and 19th July 1962.
JUDGMENT
MURSHED, J.‑The petitioner, Mrs. Momtaz Begum alias Momtaz Malik, is the owner and possessor of C. S. Plot No. 644 of mouza Dhanmandi, J. L. No. 251, appertaining to Khatian No. 6/5, P. S. Lalbagh, in the district of Dacca, measur ing, 58 acres. The aforesaid C. S. plot stands on the north of Elephant Road, on the west of Gulbagh Road, on the east of the land of one Mrs. Zainabunnessa and on the south of the petitioner's other lands.
On the 12th of April 1961, a notice of requisition was purported to be served upon the petitioner, which was, in fact, received by the petitioner's husband and by which an undefined, unspecified and undemarcated part of the petitioner's aforesaid plot of land was requisitioned by the Additional Deputy Commissioner of Dacca. The said order of requisition thus served on the petitioner and marked Annexure A, consists of a printed paper bearing a rubber stamp facsimile of what is supposed to be the signature of the said Additional Deputy Commissioner, specifying that a part of the said plot is requisitioned.
Since the aforesaid piece of paper, which is claimed by the respondents to be an order of requisition, did not give any notice or information to the petitioner as to what portion of the land and the area thereof was requisitioned, petitioner's husband, on her behalf, made desperate attempts to receive particulars and to be definite about the extent and area of the land thus requisitioned. Towards the last week of April 1961, petitioner's husband met the Deputy Commissioner of Dacca and complained to him about the vagueness of the requisition order and also informed him about various other illegalities in respect of the purported order. He wanted to know the exact amount of land, which was sought to be taken away from the petitioner. The Deputy Commissioner could not throw any light on the subject and referred the petitioner's husband to the Land Acquisition Collector, who, in his turn, referred the said gentleman to the Kanungo. The petitioner's husband was told by the Kanungo that the requisition was made in accordance with an approved road alignment of 1954 which would necessitate the acquisition of only about 5 ft. of petitioner's land and furthermore that such land would be taken away from the southern part of the petitioner's land. He was also told that pegs would be put on the land in accor dance with the alignment of 1954.
Sometime in the middle of September 1961, respondent No 3, the Chief Engineer of the C. and B. Department of the Government of East Pakistan (Mr. S. Rahman), came to the petitioner's land with one Mr. Sakhawat Hussain, who, on his application, has been added as respondent No. 4 in this case. The said Mr. Sakhawat Hussain is the husband of Mrs. Zohora Hossain who owns land on the opposite side of the petitioner's land and has constructed a house thereon. The construction on Mrs. Zohora Hussain's land was at that time incomplete. It is alleged that the said Mrs. Zohora Hossain, in the course of the construction of her building, encroached upon a part of the 1954 road alignment in violation of her own building plan as approved by the authorised officer under the Building Construction Act, 1954. The pur pose of this averment in this petition is to show the connection between respondent No. 3 (The Chief Engineer) and the added respondent, Mr. Sakhawat Hossain. It is further alleged that in the first week of October 1961, the said respondent No 3, along with the said Mr. Sakhawat Hossain, again came to the petitioner's land as well as on the land of Mrs. Zohora Hossain, wife of added respondent No. 4. Thereafter the petitioner heard a rumour current in the locality that a change in the 1954 road alignment was being contemplated in order to save the unauthorised construction of Mrs. Zohora Hussain against whom a file had been started by the Town Planning Branch of the C and B Department for taking steps against such unauthorised construction.
As no pegs were put on the petitioner's land demarcating the boundary and area of the petitioner's land sought to be requisitioned petitioner's husband again, towards the latter part of October 1961, saw the Land Acquisition Collector and asked to be informed about the exact area which was proposed to be taken away from the petitioner's land. On a reference to the Kanungo again, petitioner's husband was told that 10 ft. of petitioner's land from the south would be requisitioned in accordance with the 1954 road alignment. This would show that even several months after the pretended order of requisition was passed the authorities did not know what amount of the petitioner's land they purported to requisition.
In the third week of November 1961, the petitioner found that two wooden pegs had been fixed on her land during her absence. On physical verification, it transpired that, if the pegs were taken to indicate the boundary upto, which the land of the petitioner was sought to be requisitioned the invasion on her land would be to the extent of 14 ft. deep. This glaring change and deviation from what the petitioner was told to be the plan of the acquisition was brought to the notice of the Land Acquisition Collector, who directed the Kanungo to fix pillars in accordance with the 1954 road alignment. Having come to learn that the road alignment of 1954 was changed in respect of portions of lands which concerned the petitioner on the one hand and the said Mrs. Zohora Hussain on the other, in order to save the unauthorised construction of the latter, representations were addressed by the petitioner to various authorities. In the first week of January 1962, the officials of the C and B Department of the Government of East Pakistan removed the pegs from the petitioner's laud. On enquiry the petitioner came to learn that the pillars would be fixed on a later occasion after finally deciding the quantum of land to be taken with a proposed change in the plan of acquisition. Thereafter the petitioner's husband met the Deputy Secretary, Revenue Department (Requisition Branch), Government of East Pakistan and explained to him about the illegality of the order, which is impeached before us and also acquired4him about its mala fide nature. The petitioner's husband told the said Deputy Secretary that the C and B Department was trying to take possession of the petitioner's land in excess of what was required under the 1954 road alignment and, for therefore, that the plan was being changed in order to save the land and unauthorised construction of the said Mrs. Zohora Hussain from being requisitioned. The petitioner's husband further informed the said Deputy Secretary that the impugned order did not specify the exact area, which was sought to be requisitioned. The Deputy Secretary referred the petitioner's husband to the Additional Deputy Commissioner of Dacca who, however, was not available in his office.
On the 4th of February 1962, again the officials of the Land Acquisition Department and those of the C and B Depart ment visited the petitioner's land with a plan of the proposed road alignment as amended by the respondent No. 3 (the Chief Engineer) by his order dated the 9th of October 1961. From the road alignment map, which the Kanungo had with him, the petitioner came to learn that a substantial and extensive encroachment would be made upon the petitioner's land. But no such map was made available to the petitioner. On further enquiry the petitioner's husband came to learn that the said respondent No. 3 had himself made a change in the 1954 road alignment.
The respondents thereafter threatened to take possession of the petitioner's land to the extent of more than 25 ft. in breadth towards the south. The petitioner's husband approached the Chairman of the Dhanmandi Union Council and wanted to know if he had any approved road alignment plan of the Ele phant Road. The Chairman obtained a copy of the same from the Additional Chief Engineer (Roads), C and B Depart ment and the petitioner then obtained a copy of the same from the said Council. The plan would show the 1954 road alignment as well as the new alignment amended by the Chief Engineer (respondent No. 3). A copy of the said plan has been annexed to the petition as Annexure B. The petitioner has made a definite statement to the effect that the said plan, namely, Annexure B, would show a wall of Mrs. Zohora Hussain's building on the crest of the Elephant Road. The petitioner has further categorically stated that the alignment of 1954 will show how much of the land of the petitioner as well as that belonging b) the said Mrs. Zohora Hossain fell within the alignment and, in fact, the said alignment did show that a part upon which a construction was proposed to be made by the said Mrs. Zohora Hossain, encroached upon the said alignment. Paragraph 21 of the petitioner's application runs thus:
"That the impugned requisition order is illegal, inoperative, void ab initio and mala fide and the same has been kept purposely vague by the Requisitioning Authorities with the ulterior motive of saving the land and unauthorised con struction of Mrs. Zohora Hussain. The Chief Engineer C and B Department took the trouble of coming over to your peti tioner's land with Mr. Sakhawat Hussain in order to save the land and unauthorised building of the said Mrs. Zohora Hussain (wife of Mr. Sakhawat Hussain) from being requisi tioned inasmuch as the Chief Engineer illegally and with mala fide intention amended the road alignment map of the Elephant Road of 1954 on the 9th October 1961. It is stated that the Requisitioning Authorities including the Land Acquisition Collector and Kanungo‑in‑charge are very friendly with other officers and engineers of the C and B Depart ment in charge of the Elephant Road. It is further submitted that there is about sixty feet vacant space in front of the building of Mrs. Zohora Hossain. In spite of that the road has intentionally been curved in your petitioner's land by illegally showing that twenty‑five (25) feet of your petitioner's land would be requisitioned for saving the land and building of Mrs. Zohora Hossain. That your petitioner states that the road alignment as amended by the Chief Engineer, C and B Department, on the 9th October 1961, is mala fide and an illegal and fraudulent exercise of a power granted under the statute."
Respondents Nos. 1, 2 and 3 (Province of East Pakistan), Additional Deputy Commissioner, Dacca and the Chief Engineer, C and B Department, respectively) have not denied the allega tions made in the said paragraph 21. We shall see hereafter that various other allegations have not been similarly denied.
After an infructuous attempt by the petitioner to obtain a redress of her grievances she obtained the present Rule nisi from this Court calling upon the respondents to show cause why a writ of mandamus should not issue directing respondents Nos. 1 and 2 to cancel and/or withdraw the said order of requisition, dated the 12th of April 1961, in L. A. Case No. 108 of 1960‑61.
On behalf of respondent Nos. 1 to 3 an affidavit‑in‑opposi tion has been filed and sworn by a Land Acquisition Collector of Dacca, wherein most of the petitioner's averments in her application to this Court have been admitted, in the sense that they have not been denied. It appears that the respondents in the said affidavit‑in‑opposition have asserted that the impugned order is legal and was made in accordance with the law and also in accordance with the plan. It has further been denied that there was no application of the mind of the Additional Deputy Commissioner to the requirement of the impugned order. Quite a number of paragraphs in the petitioner's application have not been denied at all and with respect Jo various other paragraphs there is only a partial denial of facts to which we shall refer hereafter.
Inasmuch as some very serious allegations were made in the petition against the husband of Mrs. Zohora Hussain, owner of the plot of land opposite to the petitioner's C. S. plot, an application was made by him for being added as a party respondent. The application was allowed by this Court and the husband of the said Mrs. Zohora Hussain, namely, Mr. Sakhawat Hossain, was added as a party respondent and as appeared as respondent No. 4. The said Mr. Sakhawat Hossain has also filed an affidavit‑in‑opposition in which he has denied the allegations that have been made against him.
Learned Advocate‑General has also, at the hearing of the present Rule, produced the relevant file with regard to the impugned order of requisition and has also produced the specific files connected with this case from the C and B Department of the Government of East Pakistan, in order to show how the impugned order came to be passed, and has relied on the same.
We have carefully gone through the statements of the petitioner in her application to this Court and her affidavit‑in -reply as well as the various affidavits which have been filed on behalf of respondents Nos. 1 to 3 as also by the added respondent, Mr. Sakhawat Hussain. We accept the statements of fact as given by the petitioner in preference to other statements to the contrary because, in the first place, they ring true; secondly, because her statements receive material corroboration from the records produced by the Advocate‑General; and thirdly, because they are, in our opinion, in consonance with the probabilities of this case. Whenever we have used the records of this case for our decision we have drawn the attention of the Advocate- General as well as that of the learned Counsel for the added respondent and have heard them in reply.
Mr. Hafez who has appeared before us on behalf of the petitioner, has, in the first instance, urged that the impugned order is void, illegal and inoperative inasmuch as it cannot be treated as an "order" under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (Act XIII of 1948). He has argued that the power conferred to requisition a property necessarily postulates a definite, specified and identifiable property. He has pointed out that the order of requisition merely purported to requisition a vague, indefinite and unidentifiable part of the petitioner's land. No notice was given to her as to what portion and area of her land she was required to make over under the said order. It transpires that the petitioner was driven from pillar to post in her desperate attempts to be informed about the extent of her land and the portion thereof, which had been requisitioned by the impugned order and she failed to receive any light on the subject. It further transpires from the facts and circumstances of this case that, whereas the requisition order was passed on the 12th of April 1961, it was not even known to the requisitioning authorities at that time what was the extent of the land required by the requiring body. At a later date attempt was made to take such portion of the petitioner's land as fell within an alignment which was subsequently changed by respondent No. 3, the Chief Engineer, in October 1961. In these circumstances, Mr. Hafez is right in contending that the impugned order being vague and indefinite with regard to the property sought to be acquired, is one which cannot be made under section 3 of the said Act. We uphold this con tention of the learned Advocate for the petitioner. In our opinion, the power to requisition a property postulates that such requisitioned property must be specific and capable of being identified at the time w hen the order is made. The said section 3 does not authorise the relevant authority to requisi tion a land the specification of which would be determined at some future date after a good deal of fluctuations in the mind of the authorities as to the location and the amount of land that would be required for a public purpose. The petitioner is, therefore, entitled to succeed on this point.
Mr. Hafez has contended further that the order as served on the petitioner is also no order in the eye of law inasmuch as it con sists of a mere printed paper to be an order made under section 3 of the East Bengal (Emergency) Requisition of Property Act with a rubber‑stamp facsimile of the signature of an official who has been designated as the Additional Deputy Commissioner of Dacca. The learned Advocate‑General has, however, contended that in the file, which has been produced by him there is an order passed by the Additional Deputy Commissioner, Dacca purporting to requisition a part of the petitioner's land,
It is true that in the relevant file as shown to us there is such an order; but that order has no legal effect and cannot come into operation unless it has been served on the petitioner as required by section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948. This point is covered by a decision of this Court in the case of Dr. Azizul Islam v. Province of East Pakistan (P L D 1962 Dacca 368). We would like to add that the legal foundation of such an order is dependent upon a compliance with the provisions of the said section 4. If sections 3 and 4 are read together, the following conclusions would inevitably emerge:
(a) Section 3 empowers certain authorities to pass an‑order of requisition in respect of certain properties and is, therefore, a section, which is described in legal parlance as an enabling clause.
(b) The positive requirement of section 4 is that the order as made by the relevant authority under section 3 must itself be served personally on the person affected by the order.
What has to be served is the very order itself, and not a copy there of. That it has been so understood by the relevant authorities is borne out by the facts that printed form (form/A) expressly purports to be an order pas rd under the said section 3 itself.
(c) Section 4 further provides that if the person affected is not available and it is not possible to effect a personal service upon him, an authentic, i.e., a true copy of the order can be served by leaving the same with some adult male member of the family of the said person.
(d) 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 conspicuous part of the requisitioned property.
Subsection (2) of section 4 provides that, it is upon the service of the order effected in the manner indicated above, that the re levant authority may take possession of the property.
Thus the original order itself must be served personally upon the person affected by the order so made and, before an alternative mode of service can be taken recourse to, it must be proved that it was not possible to effect a personal service of the order upon the said person.
Section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948, is comparable to section 3 of the East Bengal State Acquisition and Tenancy Act, 1950, (Act XXVIII of 1951), subsection (4) (a) whereof provides that from the date specified in a gazette notification the property acquired by such notifica tion shall vest absolutely in the Provincial Government. The legal consequence of the provision is, that it is upon the gazette notification in accordance with the provisions of the said section that there will be vesting of the property in the Provincial Government. Mutatis mutandis, section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948, provides that there will be a vesting of the title to obtain possession of the requisitioned property only upon the service of the order made under section 3 in the manner specified in section 4. It cannot be argued that, without service of any notice under section 4 and by a mere order recorded in the official file of the relevant authority under section 3, the said order can have any legal effect or will be attended with legal consequences, namely, the vesting of the title to obtain posses sion of the requisitioned property. An order purported to be made under section 3, if it is merely recorded in an official file, is in a "State of suspended animation" and is not clothed with any legal force, which is capable of being executed. It is upon the service of the order that it comes to life and is clothed with the attendant legal consequences, namely, that it vests in the relevant authority the title to obtain possession of the requisi tioned property and to enforce the same with the sanction of law. The raison d'etre of the elaborate provision of section 4 is easily understandable. The East Bengal (Emergency) Requisi tion of Property Act, 1948, is a drastic piece of legislation, which encroaches upon a basic right, namely, the right to possess property. It provides for compulsory acquisition of possessory interest in property and, therefore, some amount of formality has been enjoined in respect of a power of such drastic nature in order to give it the necessary sanction of law. The protection of formalities given to the person affected by such an order is designed to give him a specific notice of the fact that his property has been requisitioned by an authority authorised by law to do so in the larger interest of the public. 1t provides him with an opportunity to know who the person is who has made the order by requiring that the order as made must be served personally upon him. It further provides him with an opportunity to know the extent of a defined property which has been taken away from him. These formal provisions of law spell a certain amount of protection to him (however illusory they may be the benefit of which is fully entitled to receive. We do not think that the requirement of section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948, is a mere technicality which can be waived in a particular case.
Learned Advocate‑General has advanced the same argument which he had pressed before this Court in the case of Dr. Azizul Islam v. Province of East Pakistan, namely, that if the petitioner has otherwise become aware of the order recorded in an official file, or if a copy thereof has been served without showing why a personal service of…
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