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Petitioner: JOGESH CHANDRA LODH VS Respondent: THE PROVINCE OF EAST PAKISTAN
P L D 1957 Dacca 404
P L D 1957 Dacca 404
Before Ispahani and Khan, JJ
JOGESH CHANDRA LODH and others‑----Petitioners
versus
THE PROVINCE OF EAST PAKISTAN and others----‑Respondents
Writ Petition No. 200 of 1956, decided on 9th April 1957.
(a) Writ of certiorari‑Does not lie against mere ministerial acts‑East Bengal (Emergency) Requisition of Property Act (XIII of 1948), S. 3.
Held, that requisition of property under section 3 read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948 (XIII of 1948) is an executive or an administrative Act and the order of requisition and acquisition is a purely ministerial act and, as such, the process of certiorari does not apply to it.
(b) East Bengal (Emergency) Requisition of Property Act (XIII of 1948)‑--Intra‑vires the Provincial Legislature.
(c) Constitution of Pakistan, Arts. 15 (2), 170‑Acquiring property for a "public purpose"‑Issue of "public purpose" justiciable even if impugned order of requisition was made before enforcement of Constitution provided proceedings were pending after enforcement.
Article 15 (2) of the Constitution of Pakistan empowers the Court to scrutinize and decide upon the facts whether the powers of Government have been exercised in good faith in the interest of the public and whether the land was acquired for a public purpose. Therefore, the question whether a particular requisition is for a public purpose is now justiciable in a Court of law, even if the impugned order of requisition related to a date before the enforcement of Constitution provided only that proceedings in requistings or acquisition were still pending.
An order of acquisition violative of Articles 5, 15, 11 (b) and 12 of the Constitution may therefore be impugned under Article170.
West Bengal Settlement Kanungoe Cooperative Credit Society, Ltd. v. Mrs. Bella Banerjee 55 C W N 778; State of West Bengal v. Mrs. Bela Banerjea A I R 1954 S C 170, Abdul Hamid v. The State of West Bengal and others 89 C L J 268, Radha Ram Das and another v. The State of West Bengal and others 91 C L J 347, State of Bombay v. Mohan Lal Kapur A I R 1951 Bom. 404, State of Bihar v. Sir Kameswar Singh A I R 1952 S C 252, State of Bombay v. Nanji 1956 S C A 308 (314) and Ajit Kumar Das v. The Province of East Pakistan (Not yet reported) rel.
Sudhindra Nath Datta v. Sailendra Nath Mitra 87 C L J 140, Mahmudan Nabi Chaudhury and others v. The District Magistrate and Collector of Chittagong 8 D L R 210, Wijeyesekara v. Festing 1949 A C 646 and Province of Bombay v. Khushaldas Advani and others A I R 1950 S C 222 ref.
(d) Constitution of Pakistan, Article 15 (2)‑"Public purpose"‑Meaning of expression East Bengal (Emergency) Requisition of Property Act (X111 of 1948), S. 3‑Property acquired not in public interest but for a private firm‑Violation of Article 15 (2), Constitution of Pakistan‑Writ petition lies Constitution of Pakistan, Article 170.
Held, that a purpose which furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose. No reason of general public policy will be sufficient to validate an order of requisition unless such order is made for public purpose or in public interest, that is, for the benefit of the public.
The existence of public purpose is the foundation of the power of the Provincial Government to requisition the pre mises under section 3 of Act XIII of 1948 and it is a condition precedent for the exercise of that power. The East Bengal (Emergency) Requisition of Property Act (XIII of 1948) empowers the Government 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 indivi dual in the interest of the community as a whole or for the benefit of a considerable number. The Act, does not empower the Government to give the property of one private individual to another private individual.
Where the property was acquired for a private firm engag ed in the business of jute brokerage and was claimed by Government to have been acquired for "development of commerce and industry" as mentioned in section 3 of Act, XIII of 194 8, the order of acquisition was quashed on a writ petition under Article 170, Constitution of Pakistan as violative of Article 15 (2).
Ajit Kumar Das v. The province of East Pakistan (Not yet reported), Hamabai Framjee v. Secretary of state for India A I R 1914 P C 21 (39) ref.
Willis' Constitutional Law, 1st Edition, page 818, Willoughby's Constitutional Law, Vol. 2, page 795, Cooley's Constitutional Limitation at page 744, and Corpus Juris, sVol. 20, Article 39 at page 552 ref.
(e) East Bengal (Emergency) Requisition of Property Act (XIII of 1948), S. 4 (1)‑Service of notice of order of requisi tion necessary though notice prior to making such order not necessary.
There is no provision in the Act itself that a prior notice is to be served upon the owners of the premises before the requisition order is made but there is clear provision embodied in section 4, subsection 1 of the Act that the order of requisi tion must be served upon person whose property is requisitioned.
(f) Writ‑----Mandamus‑State failing to carry out obligation enjoined by statute‑Issue of writ‑Constitution of Pakistan, Article 170.
A. S. Chowdhury with Afzal‑ul‑Huq for Petitioners.
M. H. Khondkar for Respondents.
Dates of hearing: 25th February & 1st, 4th and 22nd March 1957.
JUDGMENT
KHAN, J.‑---This is an application under Article 170 of the Constitution of the Islamic Republic of Pakistan for a writ of certiorari or a writ in the nature of certiorari or an appropriate writ of like nature or for a writ in the nature of mandamus for quashing the proceedings in Requisition Case No. 45 of 54‑55, 639 (5), dated the 18th February 1955, and for canceling the requisition order made in the said proceedings, dated the 18th February 1955, and for direction upon respondents Nos. 2, 3, 4 to forbear from giving effect to the said order of requisition and acquisition.
The dispute in this case relates to holding No. 118, Bhagabanganj, within Narayanganj Municipality, covered by Khatian No. 73 and C. S. Plots Nos. 24‑P and 25 of Mauza Bhagabanganj, bearing total area of '088 acre as stated in the requisition order.
The facts stated in the petition, briefly stated, are as follows: Petitioner No.1 who is now a citizen of Bharat and posted at Alipore as Special Judge and Additional District and Sessions Judge, 24‑Parganas, West Bengal, and the other petitioners are the owners of the holding comprising pacca structures for dwelling purposes, 2 tin godowns and one tin gadi ghar with pacca floor, etc., in Mourashi Kai rights by inheritance from late Ram Sundar Lodh.
The Pakistan Jute Board requisitioned the aforesaid premises of the petitioners on the 2nd February 1951, by order No. A‑4 (121) 51‑JB and allotted the said premises to respondent No. 5, Molla Baling Agency, in 1952 at an annual rental of Rs. 1,80C per year payable to the petitioners. Since then respondent No. 5, Molla Baling Agency, has been in occupation of the said premises on payment of rent upto the 27th February 1955. The petitioners submitted an application to the Chairman, Jute Board, for revising the said rate of rent but it was disallowed. On 23rd December 1952, petitioner No.1 received a letter from Kala Mia, an officer of Molla Baling Agency, offering on behalf of the said Firm to purchase the premises in question at an abnormally low price but the petitioner did not accept the said offer.
Being influenced by Mr. Moslem Ali Molla, the proprietor of the Molla Baling Agency, who is a member of the Consti tuent Assembly of Pakistan and an influential man of re sources, the Additional District Magistrate, Dacca, vacated the requisition order No. A‑4 (121) 51‑JB dated the 3rd February 1951, on 18th February 1955, and on the same date passed an order of requisition of the said premises under sec tion 3 read with section 9 of the East Bengal (Emergency) Re quisition of Property Act, 1948, in Requisition and Acquisition Case No. 45 of 54‑55, 639(5) and this was done for the Molla Baling Agency which was a private concern in jute brokerage. No notice of this requisition proceedings or order was served upon the petitioners. This requisition order contained a direc tion for delivery of possession on or before the 28th February 1955. Petitioner No. 1 came to know of the above order of requisition from a letter addressed to him by the Jute Board being No. R/4 (121) 55, dated the 22nd February 1955, which reached him on the 3rd March 1955. Petitioner No.1 there after filed representation on the 11th March 1955, for the revision of the assessment of the rent or, in the alternative, for derequisitioning the premises in question. Without get ting any reply till 13th August 1955, he submitted an application to the Hon'ble Minister, Revenue, for derequisitioning the said premises and for delivering possession of the same to the petitioners.
On 30th August 1955, the Government passed an order to keep the requisition and acquisition proceedings in question in abeyance and directed the petitioners to make an amicable settlement with Molla Baling Agency. On 28th December 1955, petitioner No. 1 came to Dacca when the allottee ap proached him to buy the premises. On the 9th June 1956, petitioner No. 1 received a memo. being memo. No. 13491 (2), dated the 6th June 1956, by post at his Calcutta address from Mr. M. A. Hye, the Land Acquisition Collector intimating that the local inquiry relating to the requisition of the pre mises in question will be held at 3 p.m. on the 12th June 1956. As petitioner No. 1 was unable to attend the said local inquiry within such a short time left between the date of the receipt of the letter and the date of the local inquiry, he submitted a written objection, dated the 18th June 1956, to the local enquiry and acquisition proceedings in the said requisition case, on the 25th June 1956, but the Land Acquisition Col lector, without giving the petitioners an opportunity to attend the local inquiry held the local inquiry ex parte and assessed the valuation of the premises at an unreasonable and Unfair amount which prejudiced the petitioners.
The petitioners allege that no notice of the requisition and acquisition proceedings was served on the petitioners. It is further alleged by the petitioners that the order of requisition and acquisition of the petitioners' premises in question was not made in the public interest or for a public purpose but it was made for a private purpose, that is, to help an individual and as such the officers making such order, of requisition and acquisition have clearly overstepped the lists of power con ferred by the Act, namely, Act XIII of 1948, and hence the said order is illegal, null and void and is inoperative. The benefit of the respondents in requisitioning the premises in question is also questioned. The allegations of the petitioners, in short, therefore, are that the order of requisition, dated 18th February 1955, is beyond the scope of section 3 read with section 9 of Act XIII of 1948, that the order of requisition is ultra vires of Article 5 Article 15 and Article 11 (b) of the Constitution of Islamic Republic of Pakistan and that this order is also violative of the fundamental rights of the peti tioners guaranteed by the Constitution by Article 12. In other words, it was a mala fide exercise of the jurisdiction vested in respondents Nos. 1 to 4 and, as such, the impugned order must be cancelled and the respondents must be directed to forbear from giving effect to it.
Respondent No. 4, namely, the Additional Land Acquisition Collector, Dacca, has put in a counter‑affidavit. He has con tended inter alia, that the application is not maintainable inasmuch as the petitioners are not entitled to challenge the pre‑Constitution executive orders under Article 170 of the Constitution of the Islamic Republic of Pakistan; that the application is not also maintainable on account of inordinate delay and suppression of material facts and non‑production of documents etc.,; that the application is a mala fide one in asmuch as the object of the petitioners is to put pressure upon the respondents to enhance the valuation of the premises in question which they offered to sell; that the notices of the requisition and acquisition proceedings in question were served and, even if no notice was served upon any of the petitioners, they were all along aware of the proceedings and the order in question inasmuch as petitioner No.1, on behalf of all the petitioners, filed representation personally as well as through their authorised agent, namely, pleader Babu Basuda Kanta Das of Narayanganj; that the order of requisition in question was passed with the object of acquisitioning the premises in question for the Molla Bal ing Agency for the development of the Province as a matter of public policy and there was public interest involved in the matter of requisition and acquisition in question; that the respondents acted within the scope of Act XIII of 1948 and there was no mala fides on the part of the respondents in the matter of requisition and acquisition in question. It is therefore contended on behalf of the respondents that the requisition in question was in the public interest and every thing in connection with the requisition and acquisition in question was done legally and in a bona fide manner. The correctness of the legal contentions raised in the petition and the allegation about mala fides of the respondents acting under the Act have been questioned arid denied.
At the very outset, we may state here that Mr. Choudhury, counsel for the petitioners, has frankly conceded before us that the requisition of property under section 3 read with section 9 of the East Bengal (Emergency Requisition of Property Act, 1948) East Bengal Act (XIII of 1948) is an exe cutive or an administrative Act and that the impugned order d of requisition and acquisition is purely ministerial act and, as such, the process of certiorari does not apply to such ministerial acts. The scope of a writ of certiorari has been described in Halsbury's Laws of England as follows:‑
"The writ of certiorari issues out of a superior Court and is directed to the Judge or other officer of inferior Court of record. It requires that the record of the proceedings in some cause or matter pending before such inferior Court shall be transmitted to the superior Court to be there dealt within order to ensure that the applicant for the writ may have the more sure and speedy justice. It may also be issued against a person or bodies of persons exercising judicial function or quasi‑judicial function who are required to make a decision of facts to be placed before him and to act judicially."
Mr. Choudhury has also frankly conceded that the above‑mentioned Requisition of Property Act (Act XIII of 1948) is intra vires the powers of the Provincial Legislature.
His contention, however, is that the petitioners are entitled to the issue of a writ of mandamus or an appropriate writ of like nature under Art. 170 of the Constitution of Islamic Republic of Pakistan for the enforcement of fundamental rights conferred on them by Articles 5, 15 (1) (2), 11 (b) and 12 of the said Constitution.
Mr. Choudhury has contended that the requisition order made in this case on 18th February 1955, for acquisition of the premises in question is clearly beyond the scope of the East Bengal (Emergency) Requisition of Property Act (Act XIII of 1948), because the requisition has not been made for 'a public purpose' or 'in the public interest.
Mr. Khandakar, advocate for the respondents, has con tended that under section 3 of the Act the factual exis tence or otherwise of a `public purpose' depends entirely on the subjective satisfaction of the Provincial Government, that is, the executive authority, and is not justiciable in a Court of law. In other words, according to him, the executive authority is to decide the question whether it is necessary or expedient to acquire a land and their decision on the question whether a particular requisition is for 'a public purpose' or 'in public interest' is final and is not justiciable in a Court of Law.
In support of his contention, Mr. Khandakar has relied upon the cases of Sudhindra Nath Datta v. Sailendra Nath Mitra (87 C L J 140) and Mahmudan Nabi Chaudhury and others v. The District Magistrate and Collector of Chittagong (8 D L R 210).
The case of Sudhindra Nath Datta v. Sailendra Nath Mitra was decided by a special Bench of the Calcutta High Court. That was a case in which an application for mandamus directing the respondent to show cause why a mandatory order should not be issued for cancellation of a certain order of requisition made by the respondent as an officer of Govern ment. There was an alternative prayer for a writ of prohibi tion, prohibiting the respondent from giving effect to a pre tended order of requisitioning. In that case, the petitioner Sudhindra Nath Datta was served with an order purported to have been made by Government under section 3 (1) of the West Bengal Premises Requisition and Control (Tem porary Provisions) Act, 1947 (Act V of 1947), in respect of his premises as it was required for housing a Minister. Their Lordships following the case of Wijeyesekara v. Festing (1949 A C 646) held:
"that the opinion of the Provincial Government that housing a Minister is a public purpose would be final and could not be questioned in any Court."
It was further held that the requisition under section 3 (1) of the West Bengal Premises Requisition and Control (Tem porary Provisions) Act, 1947, is clearly an executive or an administrative Act.
In the case of Wijeyeskara v. Festing, referred to above, the Governor's decision under the Ceylon Ordinance to acquire land for a public purpose was questioned.
The Ceylon Ordinance empowered the Governor to decide whether land in any locality was needed for a public purpose. The person whose land had been acquired contended that the land was not required for public purposes. Their Lordships of the Privy Council held that the Governor's decision on the question whether the land is needed or not for a public purpose is final and the district Court had no power to entertain objections against the Governer's decision. In other words, their Lordships were of opinion that the decision of the Governor that the purpose was a public purpose for which the premises was requisitioned is final and cannot be questioned in any Court.
In the case of Mahamudadan Nabi Chaudhur y and others, referred to above, Division Bench of this Court comprising of his Lordship the Acting Chief Justice Amiruddin Ahmed and His Lordship Justice Rahman held that requisitioning of property under section 3 read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948, (Act XIII of 1948) is an executive or an administrative Act, and a decision by the authority concerned that the property was required for public purposes cannot be questioned in a Court of law, the Government being the sole judge as to the purposes. Their Lordships, it appears, followed the decision of the Calcutta High Court in the case of Sudhindra Nath Datta v. Sailendra Nath Mitra and the decision of the Supreme Court of India in the case of Province of Bombay v. Khushaldas Advani and others (A I R 1950 S C 222).
The case of Mahamudan Nabi Chaudhury, referred to above, was decided by this Court in 1955. So, the view of this Court till 1955, that is, before the Constitution of the Islamic Republic of Pakistan came into force, was that the existence of a public purpose was not justiciable in a Court of law.
Now the question to be seen is whether after the Consti tution of the Islamic Republic of Pakistan came into force, the existence of `a public purpose' in requisitioning the pro perty of a private person is justiciable in a Court of law.
Article 15 (2) of the Constitution of the Islamic Republic of Pakistan runs as follows:
"No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given."
Article 31 (2) of the Constitution of India also contains a similar provision in almost similar terms regarding acquisition of property. It runs thus:
"No property, movable or immovable including any interest in, or in any Company owning any commercial or industrial undertaking shall be taken possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given."
Mr. Chaudhury has contended that since the passing of the Indian Constitution, the Courts in India have held that the situation, has changed. He has referred to us the case of West Bengal Settlement Kanungoe Co‑operative Credit Soefety, Ltd. v. Mrs. Bella Benerjee (55 C W N 778: AIR 1951 Cal. 111).
His Lordship Harries, the Chief Justice, who, before the passing of the Indian Constitution, held in the case of Sudhindra Nath Datta v. Sailendra Nath Mitra that the Government was the sole arbiter about the existence of the public purpose, explained the change in the situation after the Constitution in the case of Bella Banerjee referred to above. At Page 799, he has observed as follows:
"The Advocate‑General contended that the purposes for which compulsory acquisition of property was allowed by statute were not justiciable. But it seems to me clear from clause (2) of Article 31 and the three items in the three Lists of the Seventh Schedule to which I have referred that it is open to the Courts to scrutinize Acts empowering Government to acquire property compulsorily and to consider whether or not such Acts go beyond the power given to the various legislatures by the Constitution. No Act can be passed which permits compulsory acquisition of a citizen's property for purposes other than public and it appears to me that the Courts must see that no Act allows acquisition beyond that permitted by the Constitution".
It was held by His Lordship that section 8 of the West Bengal Land Development and Planning Act, 1948, in so far as it made the declaration of the Government regarding public purpose as conclusive, was ultra vires because it purported to oust the jurisdiction of the Court.
In the appeal against this decision to the Supreme Court of India State of West Bengal v. Mrs. Bela Banerjee (AIR 1954 S C 170) His Lord ship Sastri, the Chief Justice, observed as follows:
"The Attorney‑General, appearing for the appellant, rightly conceded that inasmuch as Article 31 (2) made the existence of a public purpose a necessary condition of acquisition, the existence of such a purpose as a fact must be established objectively . . . . . . . . . "
The decision of His Lordship Harries, the Chief Justice, has been followed by the Calcutta High Court in the cases of Abdul Hamid v. The State of West Bengal and others (89 C L J 268) and Radha Ram Das and another v. The State of West Bengal and others (91 C L J 347).
In this connection the observations of His Lordship Chagla, the Chief Justice, in the case of State of Bombay v. Mohan Lal Kapur (A I R 1951 Bom. 404 at page 405) may be quoted here:
"It is clear, and Mr. Seervai does not dispute it, that the very foundation of the power of the State to requisition premises is the existence of a purpose of the State or any other public purpose. It is also beyond dispute that the purpose of the State or any, other public purpose is not a purpose which in the opinion of the State satisfies the qualifications laid down in the statute. Whether a particu lar purpose is a purpose of the State or any other public purpose is a justiciable issue and the Court may investigate into the purpose for which the State has requisitioned a particular property. If the Court is satisfied that the purpose for which the requisition was made was not a purpose of the State or any other public purpose, then it would be open to the Court to say that the order was made without the condition precedent being satisfied."
In the case of the State of Bihar v. Sir Kameswar Singh (A I R 1952 S C 252) the following propositions were laid down by the Court:
(a) The existence of a public purpose is an essential condition for the acquisition of property under Article 31 (2). and the question is justiciable. When it is found that there was no…
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