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Petitioner: DR. AZIZUL ISLAM VS Respondent: PROVINCE OF EAST PAKISTAN AND OTHERS
P L D 1963 Dacca 555
P L D 1963 Dacca 555
Before Murshed and Salahuddin Ahmed, JJ
DR. AZIZUL ISLAM‑---Petitioner
versus
PROVINCE OF EAST PAKISTAN AND OTHERS
Respondents
Writ Petition No. 34 of 1961, decided on 1st December 1961.
(a) East Bengal Emergency Requisition of Property Act (XIII of 1948), Ss. 3 & 4‑Order under S. 3‑Service by printed form bearing rubber‑stamp replica of signature‑Not legally valid Rubber‑stamp not conscious substitution of signature of person making order‑S. 4 does not relate to service of notice but service of order‑Act, a, drastic piece of legislation, to be very strictly construed.
Kasim Ibrahim v. Jahurmulla Khemka I L R 43 Cal. 447; Jhaburmull Dudhivala v. Bhagatram Serowgir 51 C W N 189; Kamudin Welfare Trust of Benga, Ltd. v. Pakistan and others P L D 1960 S C (Pak.) 121 rel.
Mohammed Nur Hussain v. Province of East Pakistan P L D 1959 S C (Pak.) 470 distinguished.
(b) East Bengal Emergency Requisition of Property Act (XIII of 1948), Ss. 5 & 12‑C‑Cases under S. 5‑Signature of relevant persons mandatory by S. 12‑C.
(c) Precedent‑Decision, authority only for point mooted and decided and not for points neither canvassed nor decided.
Moinul Huq for Petitioner.
Maksumul Hakim, Advocate‑General with A. H. Mirza for Respondents.
JUDGMENT
MURSHED, J.‑The petitioner, Dr. Azizul Islam, claims to be the owner and occupier of a piece of land consisting of C. S. Plots 1343 and 1424 of mouza Shahar Khilgaon, J. L. No. 287, in the District of Dacca. It is stated that he has built a building on the said plots where he resides with members of his family. On the 30th of December 1959, he received a piece of printed paper which purported to be a notice under section 3 read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948 (Act XIII of 1948) (hereinafter called the Act) from the office of the Land Acquisition Collector, Dacca. The document which was made over to him bore a seal of that office and a rubber‑stamp replica of a signature appended under the printed space provided for the signature of the Additional District Magistrate, Dacca. This paper, which was served on him, according to its printed directions, required him to deliver the said piece of land which was purported to be requisitioned for a rehabilitation scheme for displaced persons. On receipt of the so‑called notice as described above, the, petitioner made several representations to the Land Acquistion Collector for a recon sideration of the pretended order of requisition on the ground that he lived on the said plots of land along with his family in a house which he had built thereon. When he found that his representations were of no avail, he obtained the present Rule from this Court for a writ of mandamus directing the respondents to cancel, rescind or withdraw the said notice. It is not necessary to set out here in detail all the various averments in the petition.
2. On behalf of the respondents an affidavit‑in‑opposition has been filed wherein the statements of the petitioner has either been denied or not admitted, but the averment that the petitioner received a piece of paper, which is called a notice bearing a rubber‑stamp at the place which should have contained the signature of the District Magistrate or Additional District Magis trate Dacca, has not been traversed and, indeed, it cannot be traversed on the face of the pretended order itself.
3. At the hearing of this petition of the points which was canvassed before us by Mr. Motnul Huq, who appeared on behalf of the petitioner, was that the service of the printed paper on the petitioner, which is mis‑called a notice, cannot amount to the service of a legally valid order upon the petitioner.
4. In order to deal with this point, it is necessary to set out the provisions of sections 3 and 4 of the Act. On the date, which the so‑called notice was served upon the petitioner, the said section 3 ran as follows:
"3. 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, 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 purpose, 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 Provided that no property used by the public for the purpose of religious worship shall be requisitioned Provided further that the Provincial Government may exempt any particular property or class of properties or exclude any particular area from the operation of this Act."
This section, namely, section 3, has been subsequently amended, but we are not concerned with the amendment at the present moment. Section 4 of the Act reads as follows:
"4. (1) When an order of 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 conspicuous part of the requisitioned property.
(2) Where the order of the requisition has been served under subsection (1) in respect of a property, the Provincial Govern ment may take possession of the property forthwith and may use or deal with the property in such manner as may appear to it to be expedient:
Provided that notwithstanding anything contained in section 15 the Provincial Government shall not delegate its powers of taking possession to an officer other than one having a gazetted rank."
For an appropriate construction of the provisions of these two sections they must, of necessity, be read together. On a con sideration of the aforesaid sections, we have reached the following conclusions:
(a) Section 3 is an enabling section which empowers the Provincial Government to requisition properties for the purposes mentioned in the said section when the Provincial Government is satisfied that it is expedient or necessary to do so.
(b) The power to requisition properties as enacted in the said section must take the form of an order in writing.
(c) Section 4 provides that the very order itself must be served upon the owner of the requisitioned property.
(d) Section 4 further provides for two other alternative modes of service in case of failure to effect personal service. These are not relevant for the purpose of the present case.
(e) The said order will have a legally binding effect only upon the service of the order on the person mentioned above, namely, the petitioner here. It, therefore, clearly follows that service of the order itself, which must, in the first place, be a personal service, is the condition precedent for enforcement of the order, that is to say, that the said service of the order provides the legal sanction behind the order.
5. With these observations we would like to examine the printed paper, which was served upon the petitioner and which is claimed to be a notice under section 4 of the Act. This paper, as has been rightly contended before us, is a printed paper bearing a rubber‑stamp replica of a totally illegible signature which appears above the words "District Magistrate" with the word "Addl." added to them. What strikes one in the face is that this document which was served on the petitioner is not an order at all. Section 3 of the Act, as quoted above, requires an order to be passed. The order to be treated as an order must be made by somebody. The document does not disclose that any body had personally made the order. A rubber‑stamp is nor substitute for the conscious signature of the person who is required to make the order. In this printed paper
6. It is interesting to note that under section 18 of the Act the Provincial Government has been empowered to frame rules for carrying out the purposes of this Act and subsection (2) of the said section enumerates, amongst others, the matters in respect of which the rules may make provisions. Section 18(2)(a) authorises the framing of the procedure to be followed in making an order for requisition under section 3 of the Act. In fact, rules there under have been framed and published in the Dacca Gazette by a notification, being Notification No. 7824 Requisi tion dated the 27th of October 1948. They are called the East Bengal (Emergency) Requisition of Property Rules, 1948. Rule 3 of the said Rules reads thus:
"An order of requisition referred to in subsection (1) of section 4 shall be in Form A."
Form A has been printed in very large numbers. In fact, such a form has been served upon the petitioner with only the petitioner's name and plots numbers mentioned in the schedule. The form itself provides for the signature of the person making the order. There has to be a signature of the person who is making the order because otherwise it cannot operate as an order which is consciously passed by the individual authorised to make the order. A mere printed form with a rubber‑stamp does not convey an order. Rule 3, as quoted above, provides that the order itself must be in Form A and below the schedule there are dotted lines for the signature of the District Magistrate and mere rubber‑stamp cannot perform the duty for that signature. The significant B point to remember is that the value of the signature lies in the fact that the person signing the order takes the responsibility for it, whereas a rubber‑stamp can be appended by anybody without the cognizance of the person, the replica of whose signature the said rubber‑stamp purports to be. The document, which i served under section 4 of the Act, must, under the requirement of law, be the order itself and the aforesaid rule specifically mentions that the order itself must be in Form A.
7. The learned Advocate‑General, who appeared for the respondents, has submitted the following points in answer to the arguments advanced by Mr. Moinul Huq. In the first place, he has said that the law does not require the appending of any signature to Form A. Next he has argued that the service of notice upon the petitioner is a mere technical matter which cannot vitiate the order itself and it would be enough to show that the petitioner had otherwise derived knowledge of the order of requisition. The short answer to this argument would be, first, that Form A provides for a dotted line where the signature is expected to be appended. But the most important point to remember is that an order must be made by some one and a mere printed document bearing a rubber‑stamp cannot be described as an order for which the rubber‑stamp cannot take the responsi bility. We asked the learned Advocate‑General to produce the original order passed by the Additional District Magistrate, if there is any original order at all. The result has been a revelation of a most eye‑opening character. The learned Advocate‑General handed over to us a file dealing with the requisitioning of properties of hundreds of persons. The order passed by the gentleman, whom the learned Advocate‑General has described to be the Additional District Magistrate, on the 27th of November 1959, reads as follows:
"Seen G. O. No. 17866 Reqn. dated 24‑11‑59, forwarding a copy of the Memo. No. 4510 T. P. dated 21‑10‑59, from W. H. S. (C & B) Department with request to requisition and acquisition lands as per Schedule attached for rehabilitation of persons displaced by the Dacca Rly. Dvn. Line. Mr. A.M.A. Qader A/L. A. C. will please take up the case with right earnest (illegible).
(Sd.) Illegible. 27‑11‑59."
Some portion of the note‑sheet has become illegible and the following portion, which is legible, is quoted below:
" ..Repuisition notices, demarcation and title verification must go on with the utmost speed. Requisition notices must be ready for despatch by Monday the 30th instant. Both myself and Mr. A. H. Chowdhury will be available for any assistance that may be needed by Mr. Qader.
(Sd.) Illegible.
"Later Illegible."
On the next sheet there is an endorsement which purports to be an order and it reads as follows:
"28‑12‑59. Requisition notice signed. To A. D. M.
(Sd.) Illegible."
Presumably the A. D. M. simply wrote one word, "Signed", after which an equally illegible initial has been put in bearing the date "29/12". When we asked the learned Advocate‑General to point out the order passed and signed by the Additional District Magistrate with respect to the properties of the petitioner, he failed to do so and enlightened us by saying that out of a large number of printed papers, in a bundle, the Additional District Magistrate had signed one such in the beginning and another towards the end. Nowhere is there any noting or endorsement to the effect that the Additional Magistrate has in fact, passed an order of requisition in respect of the properties of the petitioner. This is one of the many instances of the slip‑shod and perfunctory manner in which officers have exercised their drastic power of compulsory requisitioning of properties. The learned Advocate‑General has failed to show us from the records that were produced before us that there was any order of requisi tion passed with regard to the property of the petitioner.
8. We shall now deal with the next contention of the learned Advocate‑General that knowledge of the requisition., how soever derived by the petitioner is sufficient to serve the purpose of the notice under section 4 of the Act. This contention is wholly untenable. To hold so would be to wipe out the provision of section 4 of the Act. The service of notice under section 4 is the very foundation of the legality of the order.
It will be interesting, on this point, to refer here to two decisions of the Nigh Court of Calcutta, which have been cited before us by Mr. Moinul Huq. The first of them is a decision of a Special Bench in the case of Kassim Ibrahim v. Jahurmuh Khemka (I L R 43 Cal. 447), with regard to service of summons under the Code of Civil Procedure. The decision of the Court, which has been faithfully summed up in the head‑notes, reads as follows:
"For substituted service of summons to be effective, it is essential that the requirements of the rules of the Code should be strictly observed.
Knowledge of the institution of the suit, derived by the defendant aliunde is not sufficient in the absence of proper service of the summons.
Where the serving officer on three separate occasions went to the place of business of the defendant's firm, under the erroneous belief that it was his ordinary place of the residence, and asked for the defendant and, or not finding him pasted a copy of the writ of summons on outer door of the premises :‑
Held, that this was not sufficient service . . . . . ."
Woodroffe, J., has very precisely stated the law as follows:
"That the defendant had otherwise knowledge of the institu tion of the suit is highly probable. But that is not sufficient, if service is not formally proved.
I would like to add that the decision referred to by the Chief Justice, Cohen v. Nursing Dass Auddy (1892) I L R 19 Cal. 201, was followed by Sir Lawrence Jenkins, C. J., and myself in an unreported decision in appeal from Order No. 75 of 1912, dated the 28th November 1913."
The next case which was cited before us is that of Jhabarmull Dudhwala v. Bhagatram Serowgir (51 C W N 189), in which a Division Bench of the same High Court re‑affirmed the view taken in the former case. Gentle, J., observed as follows:
"Even in the absence of service, if the defendant, otherwise becomes aware of the proceedings, nevertheless he is entitled to avail himself of the provisions of Order IX, rule 13 of the Cods and to have an ex parte decree set aside in the absence of service."
10. It is thus clear that it is no answer to an argument based on absence of service or insufficiency of service to say that the petitioner had otherwise notice of the fact that an order was made.
11. In the case before us the question is of a still more far‑reaching consequence. It has to be remembered that the Act itself is a drastic piece of legislation which enable Government to compulsorily requisition properties of the citizens. To say the very least, an enactment like this must be very strictly con strued. This principle of interpretation has been reiterated by the Supreme Court of Pakistan in the case of Kumudini Welfare Trust of Bengal Ltd. v. Pakistan and others (P L D 1960 S C (Pak.) 121) wherein it has been observed as follows:
"Since sequestration of property js involved it is essential that the proceedings under the law authorising such sequestra tion shall be held in strict conformity with that law."
In the case of Kumudini Welfare Trust of Bengal v. The Province of East Pakistan (P L D 1963 Dacca 136) a Division, Bench of this Court has held that, according to section 3 read with section 18 (2) (c) of the Act and Rule 3 of the Rules framed there under, an order of requisition shall be in writing and shall be made in the prescribed Form A and that the order itself shall be served on the owner of the requisitioned property. In the judgment that was delivered in the aforesaid case a similar point was dealt with as follows: -‑
"When a statute invades a private right, the relevant provision thereof should be construed rigidly. It has been observed by their Lordships of the Supreme Court in another case of Kumudini Welfare Trust P L I3 1960 S C (Pak.) 121 that ''sine requestration of property is involved it is essential that the proceedings under the law authorising such sequestration should be held in strict conformity with the law'." The principle underlying this observation of their Lordships equally applies to this case, because the Act provides for compulsory requisi tion and acquisition of private property. Therefore, when the Act expressly requires that the requisition order shah be made in the prescribed Form A and that that order itself shall be served on the owner, the requirement of the Act will not be satisfied if the requisitioning authority merely records an order of requisition on the file. Even if the order of requisition be not made strictly in accordance with the prescribed form, the making of the order by a person duly empowered to do so, and the service of that order on the owner is indispensable for its validity and effectiveness. If the person aggrieved by an order of requisition intends to challenge it as illegal, void and without jurisdiction or on any other ground, he can do so only on the basis of the order served on him, if the requisition of a property, as contended by Mr. Khondkar, becomes complete and effective as soon as an order in that regard is recorded on the file by the requisitioning authority, then, the service of a notice of such requisition on the owner shall not be necessary so as to render the owner legally binding and effective. In order to maintain his point of view Mr. Khondkar has gone so far as to say that the service of a notice of requisition, though desirable, is not obligatory. It is difficult to accept these con tentions as correct in face of the mandatory provision of the Act with regard to the making of an order of requisition and its service on the owner. If requisition becomes complete and effective with the making of an order in that regard on the file the requisitioning authority may not serve a notice thereof on the owner and, by claiming privilege against the produc tion of the relevant file in Court, or as has been done, in this case, by objecting to the file being seen by the owner, keep the owner completely ignorant of the particulars and purpose of the requisition and thereby may make it difficult for him to formulate his grounds of objection against the requisition. This must not have been intended by the Legislature."
12. The learned Advocate‑General has relied on a decision of the Supreme Court of Pakistan in the case of Mohammad Nur Hussain v. Province of East Pakistan (P L D 1959 S C (Pak.) 470). He has relied upon the following observations made by Shahabuddin, J:
"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 rot 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 re quisition. 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 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."
13. The learned Advocate‑General has invoked the aforesaid passage to support his proposition that if the knowledge of an intention to requisition is by some manner obtained by the petitioner, it would be enough compliance with the requirement of law. We do not think that this decision of the Supreme Court cited before us by the learned Advocate‑General is any authority in support of the proposition which he tried to canvass before us. This is a case against the judgment of a Division Bench of this Court to which one of us was a party. As has been noticed, in the judgment of Shahabuddin, J., as quoted above, the statement of the petitioner with regard to the service of notice upon him was a seriously contested issue. What happened in that case was that the impugned order was served upon a brother pf the petitioner. This was obviously a service according to the second alternative mode which is provided in section 4 of the Act. The petitioner's statement in this behalf was very seriously opposed by the respondents in the affidavit‑in‑opposition that was; filed. The Division Bench refused to adjudicate upon this point holding that the issue was a highly controversial and contested issue of fact. On the facts of that case the point was disallowed. The decision was armed in the Supreme Court. As we read the aforesaid observation, it merely says that the point as canvassed before them as well as in the High Court, was a technical objection as to the mode of service. Whether the mode of service was a proper one or not was neither decided by the High Court nor by the Supreme Court. The entire decision turned round the question that the petitioner failed to drive home the point successfully.
14. In this connection, it is interesting to note that section 4 of the Act does not speak of service of any notice but service of the order itself. The service of the order will be attended with the consequences mentioned in the section itself and would enable D the Provincial Government to take the property forthwith. Without such service of the order, the Provincial Government cannot act under the order in taking away the property in question.
15. Section 5 of the Act speaks of notice with regard to a proposed acquisition of a property and it reads as follows:
"5. (1) The Provincial Government may, if it thinks fit, acquire any requisitioned property and if it proposes to so acquire, the Provincial Government shall direct an officer authorised under this Act to cause a public notice to be given at convenient places on or near the project to be acquired…
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