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Petitioner: MESSRS BUNMAN'S BUILDERS VS Respondent: LAND ACQUISITION DEPUTY COLLECTOR, CHITTAGONG
P L D 1962 Dacca 356
P L D 1962 Dacca 356
Before Murshed and Salahuddin Ahmed, JJ
MESSRS BUNMAN'S BUILDERS‑Petitioners
Versus
LAND ACQUISITION DEPUTY COLLECTOR, CHITTAGONG AND OTHERS‑Respondents
Writ Petition No. 102 of 1961, decided on 28th August 1961.
(a) East Bengal (Emergency) Requisition of Property Act (XIII of 1948) [as amended by East Bengal (Emergency) Requisition of Property (Amendment) Ordinance (111 of 1960)], S. 3‑Question whether order of requisition was for "public purpose"‑Justiciable‑Purpose of requisition, building a "public road"‑Mere fact that road would be particularly beneficient to a private individual, would not deprive road of its character of a "public road"‑Question whether particular scheme is for "public purpose"‑Depends upon facts of particular case:
Ajit Kumar Das v. Province of East Pakistan P L D 1959 Dacca 586 and Belagal Gundachar v. The State of Madras A I R 1953 Mad. 537 rel.
West India Electric Company, Limited v. Mayor and Council of Kingston A I R 1914 P C 207 held, not applicable.
(b) East Bengal (Emergency) Requisition of Property Act (XIII of 1948) [as amended by East Bengal (Emergency) Requisi tion of Property (Amendment) Ordinance (III of 1960)], Ss. 5' (1) & 8‑A (2)‑Released property can be requisitioned afresh and given to person other than original owner.
(c) East Bengal (Emergency) Requisition of Property Act (XIII of 1948) [as amended by East Bengal (Emergency) Requisi tion of Property (Amendment) Ordinance (III of 1960), S. 4‑A Petitioner should first avail himself of remedy provided by section 4‑A before approaching High Court for issue of discre tionary writs ‑ Constitution of Pakistan (1956), Art. 170.
H. H. Chowdhury, with M. M. G. Hafez and A. Z. Khan for Petitioners.
Maksum‑ul‑Hakim, A. G. with K. M. Subhan for Respon dent.
Asrarul Hussain with Nurul Huq for added Respondent.
Dates of hearing : 28th and 31st July ; 10th, 11th and 15th August 1961.
JUDGMENT
MURSHED, J.‑The petitioner claims to be a registered firm having its registered office at 105, Nawab Sirajuddowla Road, within Police Station Kotwali in the town of Chittagong. The said firm has asked for a writ of mandamus or an appropriate writ of the like nature directing respondent No. 1 to cancel, recall and/or withdraw the order of derequisition purported to have been passed by him, as contained in the derequisition notice dated the 17th of May 1961, releasing part of R. S. Plot No. 1323‑P. of Mouza Char Rangamatia, P. S. Panchlaish in the District of Chittagong, in L. A. Pre‑Case No. 6 of 19611‑61 and also the order of fresh requisition as contained in notice dated the 17th of May 1951, requisitioning the said portion of the above‑mentioned plot in L. A. Case No. 125 of 1960‑61 and for various other reliefs. It is the case of the petitioner that it had applied for permission from the Government of East Pakistan, Commerce, Labour and Industries Department, to establish an industry for saw milling, timber seasoning and manufacturing machine‑made furniture. Thereafter the petitioner made an applica tion to the Chittagong Development Authority (hereinafter called the C.D.A.) with the recommendation of the Director‑General of Industries, Government of East Pakistan, to allot to them certain plots of land in the Chittagong Industrial area at Kalurghat for the purpose of setting up the said industry. The petitioner was allotted about 4 and odd acres of land in the said area. The petitioner deposited a sum of money with a view to obtain the said plots of land. Thereafter several plots of land measuring approximately over 4 acres were requisitioned by the respondent No. 1 and allotted to the petitioner and possession thereof was given to its representative on the 24th of September 1960. The land made over to the petitioner is plot No. 48 of the scheme of the C.D.A. measuring an area of 4.62 acres within the heavy industrial estate of Kalurghat consisting of a number of plots including R. S. Plot No. 1323. The petitioner claims to (save taken various measures to set up the said industry. Furthermore, the petitioner claims to spent quite a considerable amount of money in order to improve the land allotted to it, the said land being low land. This claim of the petitioner has been strenuously refuted by the respondents. According to the respondents, very little has been done upon the land by the petitioner, except for creating a mischief by digging 4 feet of earth in order to hamper the requisition of a part of the land. It appears to us that the statements of the respondents are nearer the truth. It is alleged that steps were taken in order to acquire the said plots of land and the contention of the petitioner is that the afore‑mentioned plots of land were practically the acquired property of the petitioner. Some time thereafter, on the 15th of April 1961, the petitioner received a letter from the respondent No. 1 to the effect that the Deputy Commissioner of Chittagong had cancelled the order handing over possession of the aforesaid plots of land and that the petitioner was required to vacate the said plots in favour of the C.D.A. on the 17th of April 1961, at 9 a.m, The respondents aver that, in passing the aforesaid order, the intention was to give back to the petitioner all the said plots of land excluding that portion of plot No. 1323 which was required for building a public road. The petitioner moved the Government of East Pakistan against the aforesaid order, which appears to have been set aside by the said Government with a direction to derequisition and re‑requisition only the portion of land required for the said public road. Thereafter the petitioner was served with a notice communicating to it that a part of R. S. Plot No. 1323 was derequisitioned and the petitioner was directed to make over possession of the said land to Messrs Manzar & Co., the added respondent before us. On the same day a fresh order for requisition was made in respect of the said portion of R. S. Plot No. 1323 under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (Act XIII of 1948), (herein after referred to as the Act), as amended by the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance 1960, (Ordinance No. III of 1960) (hereinafter called Ordinance). The said order of release of a portion of plot No. 1323 is marked as Annexure H to the petition, and the said notice of requisition dated the 17th of May 1961, is marked as Annexure I.
It will be seen that the petitioner has asked for the cancella tion, recalling or withdrawal of the orders as set out in Annexures H and I. The notices, that is, Annexures H and I, have been described as vague and indefinite, giving the petitioner no indication as to the extent of the land derequisitioned and requisitioned. On this point the respondents have pointed out that from the correspondence and other communications that passed between the parties it was perfectly clear that the petitioner had full notice that a 40‑feet wide strip of land in plot No. 1323 was requisitioned. It is also the petitioner's case that both the orders of release as well as of requisition as stated above are mala fide and have been made with a view to help a private individual, namely, the proprietor of the added respondent, Messrs Manzar & Co. The main contention of the petitioner, however, is, that the order of requisition of the land discloses no public purpose. The ground on which this point was canvassed before us is, that there can be no public purpose in taking away a plot of land from A fn order to make it over to B. It is contended by the petitioner that the added respondent has a good deal of influence in Chittagong official circle. The petitioner further contends that, being a firm, which was trying to set up a very useful industry in the country, it could not be deprived of a part of the land given to it so that it might be made over to another industrial concern.
The averments in the petition have not been admitted by the respondents. One of the main contentions of the petitioner is that the impugned orders are unjust and unfair and that they would have the effect of crippling the industry, which it was trying to establish. In order to obtain clarification on this point, we allowed the parties to file further affidavits In support of the petition as well as affidavits in opposition thereto. The averments and allegations made on behalf of the petitioner have been traversed by the respondents.
The reply on behalf of the respondents is that the petitioner has done very little, and practically no construction, upon the disputed land and that, according to the approved plan of construction in respect of the industry proposed to be set up by the petitioner, the portion of the plot of land requisitioned has been shown as a driveway. It is stated by the respondents that in the approved plan about 35 feet wide driveway has been shown and that the said driveway practically coincides with the area of the land requisitioned, such area being 40 feet wide. The purpose of the requisition is stated to be the construction of a public road which will give access not only to Messrs Manzar & Co. but also to various industrial estates.
Quite a number of photographs were appended to the affidavits submitted before us. The photographs filed by the petitioner will show that the plot, which was allotted to the petitioner was to some extent developed, whereas the photograph submitted by the respondents would show that practically nothing was done on the land except some unnecessary and malicious digging of earth. We think that it cannot be seriously disputed that photographs can be misleading. They, however, give us a general picture. The portion of the land that has been dug showing a long pond, practically covers the entire area which was requisitioned by the impugned order. According to the affidavits submitted on behalf of the respondents, the petitioner made haste to dig earth, 4 feet deep, in the said plot soon after the order of release was communicated to it. The respondents have submitted that the petitioner, with a view to cause obstruction to the requisition of the said plot, dug 4 feet of earth, a part of which is shown as log pond. We have no hesitation in accepting the affidavits‑in‑opposition filed by the respondents, and they give the correct position as to what has transpired in the case.
We would also deal with one feature of this case before we proceed to discuss the points mooted before us. It appears that the petitioner was directed to make over possession of the land to Messrs Manzar & Co. It further appears from the affidavits submitted on behalf of respondent No. 1 that the plot of land was requisitioned for building a public road. The petitioner has asked: why possession of the said land was directed to be made over to Messrs Manzar & Co. when the road was going to be a public road? The answer given by the respondent is a simple one, namely, that Manzar & Co. being urgently in need of the public road was prepared to build it at its own costs. It was pointed out that the road was going to be a public road inspite of the fact that Manzar & Co. badly needed such a road. The land over which the road will be built would vest in the C.D.A. and we see no reason to disbelieve the statement made by the respondent in this behalf. It is patently clear that Manzar & Co. is greatly in need of such a road, which is nonetheless going to be a public road. A public road will not cease to be such a road merely because it is particularly beneficial to some body. The fact remains that the road is not going to be a private road belonging to Manzar & Co. Furthermore, it also appears from the affidavits filed on behalf of the respondents that Manzar & Co. had entered Into a contract with the Government of East Pakistan in order to build mechanically‑propelled trawlers and fishing boats for deep‑sea fishing and this fact is supported by the letters and other documents which have been addressed to Manzar & Co. by the Fisheries Department of the Government of East Pakistan as well as by the F. A. O. It further appears that a substantial scheme has been launched upon by the Government of East Pakistan for fishing Industry both for home consumption as well as for export abroad. We have no hesita tion to accept these averments made on behalf of the respon dents. It is widely known that in this Province the Government of East Pakistan Is strenuously trying to Improve the fishing Indus tries. We can take judicial notice of this fact. From this point of view, it is claimed on behalf of Messrs Manzar & Co. that it has undertaken a vital public utility concern at the instance of the Government of East Pakistan.
We need not discuss at length, a point that has been argued faintly before us that the impugned orders are vague. From what we have stated above, It is patent that the petitioner was aware of the fact that a 40‑feet wide strip of plot No. 1323 only was required for building a public road.
Mr. Hamidul Huq Choudhury has argued, on behalf of the petitioner, that under the Ordinance the question as to whether the order of requisition made under section 3 of the Act was made for a public purpose is now justiciable. Section 3 of the Act, as substituted by section 4 of the Ordinance, reads as follows
"When any property is required for a public purpose or in public interest, the District Magistrate may requisition it by an order in writing . . . . ."
And section 3 of the Act, before being substituted by section 4 of the Ordinance, ran 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 as improvement of towns or ports, construction or betterment of roads, waterways or other communications, development of commerce or industries, maintenance of supplies and services essential to the life of the community and other similar purpose, the Provincial Government may by order in writing requisition any property and may make such further orders as appear to that Govern ment to be necessary or expedient in connection with such requisition . . . . ."
Thus, even a casual comparison of the aforesaid provisions would reveal the vital change that has been introduced by the amendment as mentioned above. Formerly 'public interest' as mentioned in section 3 was a matter of opinion formed by the Provincial Government. The question, whether there was any public interest or not In the order of requisition, entirely rested upon the satisfaction of the Provincial Government. It has been held that the question of public interest as specified in the original section was not justiciable in a Court of law. It is equally clear, according to the terms of the substituted section, that the legality of the order of requisition would depend upon the question as to whether there is or there is not a public purpose for the said order. We hold that Courts can now examined and determine the question of public purpose in order to test the legality of the order passed under the substituted section 3 of the Act.
We need not discuss the various authorities on this subject which have been set out in a decision of this Court in the case of Ajit Kumar Das v. Province of East Pakistan (P L D 1959 Dacca 586). At pages 590 to 592 the law on the subject has been discussed. Having regard to the provisions of section 3 of the Act, as it then stood, it was previously held that the question of public interest was not justiciable. In 1956, however, having regard to the provisions of the late Constitution of Pakistan with reference to Article 15 thereof the question of public purpose became justiciable. The petitioner in this case cannot now pray in aid the provisions of the said Article 15 ; but now the language of the substituted section 3 is such that the legality of the order will depend upon the answer to the question, whether the order was made for a 'public purpose.'
It was contended on behalf of the petitioner that as between two competing industries the order requisitioning a plot of land from one company so that the same may be made over to another, is bad In law. In support of this proposition, Mr. Hamidul Huq Choudhury cited before us a decision of the Judicial Committee of the Privy Council in the case of West India Electric Company Limited v. Mayor and Council of Kingston (A I R 1914 P C 207). We fail to see how this case is an authority for the proposition, which has been canvassed before us. In that case two companies were given powers to acquire land by compulsory acquisition. The appellant company, by a private treaty, acquired certain land for the use of its European inspectors. The respondent wanted to acquire the same land under its compulsory powers. The appellant contended, in the main, that the land could have been acquired under their compulsory powers and the respondent could not, therefore, dispossess them. It was held that under section 5 Kingston and St. Andrews Tramway License, 1897, and Land Clauses Law 1872, the exercise of compulsory powers of acquiring land was subject to the words of section 9 of Tramways Law 1895 and under that section it must be shown that the acquisition of the land to be taken was for the construction of the buildings necessary for the working of the Tramway pursuant to the license. It was further held that acquisition of the site for the use of European inspectors was, in no sense, necessary for the working of the Tramway unless the word was to be stretched until it became merely a synonym for convenient or advantageous use. This is the substance of the decision anti we fail to see how it is relevant for the purposes of the contention that has been sought to be advanced before us. In the present case the purpose for which the land has been acquired is specifically stated to be a public road, and it is true that the public road would be particularly beneficient to the added respondent, Manzar & Co.; but this would not deprive the road of its character, as already stated, as a public road. Manzar & Co. has naturally been particularly anxious about the road and its case is that it had used the same as a road and had constructed a bridge over the contiguous khal. It is also apparent that Manzar & Co. has already undertaken a very important and vital public utility scheme of the Province of East Pakistan. Because of its urgent requirement, Manzar & Co. consented to build the public road at its own costs, Moreover, the fact that stares one in the face is that it will not remain as a private road of Manzar & Co. but would vest in the C.D.A. On the basis of the aforesaid grounds along we have no hesitation to hold that the requisition is for a public purpose. Mr. Asrarul Hussain, appearing for Manzur & Co. has, however, cited before us a decision of the Madras High Court in the case of Belagal Gundachar v. The State of Madras (A I R 1953 Mad. 537). In that case certain plots of land belonging to the petitioner were sought to be acquired in order to enable irrigation water to be made available to the owner of c particular plot of lend. It was contented that a scheme, which seas intended to benefit a single individual could not be a scheme for a public purpose. In repelling that contention it was held that any scheme under which the Government provided for the utilization of the available water in Government sources of supply for the extension of cultivation would be a public purpose. It v. as pointed out that the chan nels for irrigation must necessarily be of two kinds, namely, major distributory channels and smaller distributory channels which ultimately led water to several fields through distributory channels (in that case the fields belonged to an Individual). It was held that an acquisition for carrying out any part of the scheme would certainly to an acquisition for a public purpose. This case to some extent supports the contention that there is a public purpose in fulfilling the urgent reed of a firm, which is engaged in under taking a public utility scheme on behalf of the Provincial Government.
We would like to add, what we have repeated on an earlier occasion, that the question whether a particular scheme is for a public purpose or not, will depend upon the facts of the particular case. In this case there is no manner of doubt that Manzar & Co. has undertaken on behalf of the Province of East Pakistan a very important public utility scheme and there is also no doubt that Manzar & Co. urgently nerds the road which is proposed to be built. It is furthermore clear that the road will not be the private property of Manzar & Co. inspite of the fact that it has undertaken to construct the road at its own costs. We have also no doubt that the requisitioning authority has considered the needs of both Manzar & Co. and those of the petitioner in making the impugned orders.
It has been argued that the order embodied in Annexure H to the petition is bad in law. Annexure H reads as follows: ‑
"Pre Case No. 6 of 1960‑61 (Acqn. of land for estt. of Timber Seasoning Industries at Kalurghat).
" FORM F
Notice under rule 10 (2) for releases and Restoration of Requisitioned Property.
To M/s. Bunwan's Builders, 105, Nawab Sirajuddowla Road, Chittagong.
Whereas by order, dated the 10‑8‑60 the property described in the Schedule below was/were requisitioned under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948);
And whereas it has been decided to release the said property from such requisition;
Now, therefore, in exercise of the power conferred by sub section (1) of section 8, I hereby order that possession of the said property be restored to M/s. Manzar & Co. for whom the property is being requisitioned at the same time.
Possession of the said property will accordingly be restored to at 11 a.m. on the20‑5‑61.
SCHEDULE
Mouza Char‑Rangamatia, P. S. Panchlaish, Kh. 476, R. S. Plot No. 1323.
(Sd.) (Illegible). Land Acqn. Dy. Collector, Chittagong.
It was contended that under the provisions of section 8 of the Act, as amended by the Ordinance, possession of the released pro perty has got to be made over to the original owner.
With regard to this point, learned Advocate‑General; who appeared on behalf of the respondents, has rightly contended that it is incorrect to say that possession of the derequisitioned property must be made over to the original owner in respect of every order of release, although this has to be done in most cases.
He has drawn our attention to the provisions of section 8‑A of the Act. Subsection (2) of that section runs thus:
" Notwithstanding anything contained in any other law for the time being in force, when a requisitioned property as aforesaid is released from requisition under subsection (1), the allottee in possession of such property shall, on and from the date of its release from requisition, be deemed to be a tenant from month to month under the person or persons who, but for the provisions of subsection (1), would have been entitled to restoration of actual possession thereof under subsection (1) of section 8, at a rental equivalent to the amount of monthly compensation which, prior to the release of that property, was payable by him for it or, if that tent be not acceptable to either party to the aforesaid tenancy, at such standard rent as may be admissible or fixed under the provisions of the East Bengal Premises Rent Control Ordinance, 1951, or any other similar law for the time being in force."
And subsection (1) of section 8 of the Act runs thus:
Where any requisitioned property is to be released from requisition, the Provincial Government may restore it to the person from whom the property was requisitioned or to his successor‑in‑interest or to such other person as may appear to the Provincial Government to be entitled to such restoration."
The learned Advocate‑General has contended that admittedly the disputed land was a part of the land, which was allotted to the petitioner for industrial purposes. In these circumstances, the petitioner would become a statutory tenant under sub section (2) of section 8‑A upon release from requisition of the disputed property. We think that this contention of the learned Advocate‑General must be upheld. The consequence of the release of the property, under the aforesaid circumstances, would be that as laid down in subsection (2) of section 8‑A. It appears that in this case what the requisitioning authority did was to release the disputed property from requisition and to requisi tion the same afresh under section 3 of the Act from the petitioner who became a statutory tenant in respect of the disputed plot of land consequent upon its release from requisition. In…
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