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Petitioner: MESSRS PARBATIPUR INDUSTRIES VS Respondent: THE CHIEF SECRETARY, GOVERNMENT OF EAST PAKISTAN
P L D 1960 Dacca 660
P L D 1960 Dacca 660
Before Akbar and Asir, JJ
MESSRS PARBATIPUR INDUSTRIES‑Petitioner
versus
THE CHIEF SECRETARY, GOVERNMENT OF EAST PAKISTAN AND OTHERS‑Respondents
Writ Petitions Nos. 102 and 103 of 1959, decided sin 25tb January 1960.
Writ‑Petitioner must show his clear right beyond reasonable doubt or controversy‑Question of title‑Cannot be adjudicated in writ proceeding‑Constitution of Pakistan (1956), Art. 170.
It is incumbent upon a party applying for a writ to show that he has a clear legal right and that the right is so clear as not to admit of a reasonable doubt or controversy. In a writ petition the Court will not generally enter into disputed questions of fact.
Question of title to property cannot be properly adjudicated upon in a writ petition when it is necessary to try or decide com plicated or extended questions of fact.
Kesho Prasad Singh v. The Board of Revenue I L R 38 Cal. 553 rel.
A. M. Sayem and Md. F. Karim for Petitioners.
T. H. Khan for Respondents Nos. 2‑3.
JUDGMEMT
AKBAR, J.‑As the parties are the same and common questions of law are involved in these two Writ Petitions, they have been heard together at the request of the lawyers for the parties.
2. In these two petitions, the petitioner, Messrs Parbatipur Industries of Parbatipur, has prayed for cancellation of certain orders of the District Magistrate, Dinajpur, directing requisition of their properties.
3. The facts briefly are as follows: Babu Hanuman Prasad Shroff is the sole proprietor of Parbatipur Rice, Oil, Flour Mills, Iron Foundry Workshop and a Cinema House known as 'Anwar Talkies', all situated in Parbatipur. Towards the end of 1958, the Mills and the Workshop were lying idle. On 4‑11‑58, the District Magistrate, Dinajpur, wrote to the proprietor that the industrial undertakings, namely, the Mills and the Foundry, could not be allowed to remain idle and if they were not brought into operation within one month they would be requisitioned under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter referred to as the Act). On 2‑12‑58, the District Magistrate extended the time by further two months for the functioning of the Mills. On 2‑4‑59, Shroff wrote to the District Magistrate as follows:
"While I am fully prepared to run the mills and, as a matter of fact, I am running the same, any step towards the requisition will be most unfortunate and will simply deprive me of my properties uncalled for. As stated in my earlier letter, dated 17‑11‑58, I am waiting for my visa for going to Parbatipur.
Your honour may be pleased to ensure the supply of raw materials and accord the assistance of your good office for our getting the visa. Kindly give us reasonable opportunities and assistance and, if we fail to avail it, then of course we are open for action. It is well within the District files that our bona fide requirements have been recommended by the different Govern ment Departments but still the necessary permits for securing the raw materials are not given to us so that the Mills could have run smoothly."
For the above reasons, he prayed for stay of the contemplated requisition proceeding. On 4‑4‑59, the District Magistrate issued notices inviting applications from bona fide refugees and local people for allotment of the Mills that, were lying idle. It is alleged that on 9‑4‑59 Shroff took Laduram Maheswari and Satish Chandra Rai as his partners in the said industrial undertakings and the Cinema House, and the partnership firm was called‑ "Parbatipur Industries." Twenty‑eight bighas of land on which the said Mills, Foundry and the Cinema House were situated, were included in the partnership assets. On 30‑4‑59, Hanuman Prasad Shroff purported to sign the Deed of Partnership in Calcutta. On 5‑5‑59, the Manager of the Cinema House applied for renewal of the licence for two months. On 24‑5‑59, the other two partners signed the Deed of Partnership at Dinajpur in Pakistan. By a memo randum, dated 30‑5‑59, the District Magistrate informed the Manager of their decision not to renew their licence. On 30‑5‑59, the officer in charge of Parbatipur police‑station locked up and sealed the Cinema House. On 1‑6‑59, two of the partners, Laduram Maheswari and Satish Chandra Rai, filed an application before the District Magistrate praying for revision of the order refusing licence and closing down the Cinema House. The said application was however rejected by the Magistrate. On 5‑6‑59, they filed an application to the Chief Secretary against the order closing the Cinema House and the Secretary, Revenue Department, to whom the application was sent for disposal, stayed further pro ceedings in the matter. On 8‑6‑59, an order purporting to requisi tion the Oil Mill which was issued in the name of Hanuman Prasad Shroff was served on his men. On 10‑6‑59, a notice for requisition of the aforesaid Cinema House was issued in the name of Babu Hanuman Prasad Shroff and he was directed to deliver possession of the said Cinema to the Land Acquisition Officer by 15‑6‑59. On 11‑6‑59, Ladurm Maheswari filed an application before the District Magistrate against the order of closure of the Cinema House. The District Magistrate rejected the petition on the ground that he had no locus standi to make the application. On 13‑6‑59, they then filed an application before the Secretary, Revenue Department, against the order of requisition of the Cinema House, the Mill and the Workshop, and the Secretary stayed further proceedings in the matter. On 14‑6‑59, the Land Acquisition Officer took possession of the Oil Mill and the Workshop. On 18‑11‑59, the Land Acquisition Officer took possession of the Cinema House. On 4‑12‑59, a notice for requisition of the Rice Mill addressed to Babu Hanuman Prasad Shroff was served on his men, and on 6‑12‑59 the Land Acquisition Officer took possession of the said Rice Mill. The representation to the Government by the alleged partners against the aforesaid orders of requisition was rejected. They then sent notices of demand of justice and, failing to obtain any relief, moved this Court and obtained these Rules.
4. In Writ Petition No. 102 of 1959, the Partnership Firm "Parbatipur Industries" is challenging the legality of the order requisitioning the Cinema House, The case of the Firm is that the District Magistrate acted mala fide in refusing renewal of licence and ordering closure of the Cinema House and that there was no public purpose for its requisition. It was also contended that the order of requisition, not being in the name of the Firm, was bad.
5. Mr. Alauddin Sikdar, Assistant Secretary, Finance and Revenue Department, in his affidavit‑in‑opposition, has challenged the locus standi of the Firm to move this Writ Petition. He has further stated that the alleged partnership is a bogus and a fraudulent transaction. He has also challenged the Partnership Deed on the following grounds :‑---
(1) that it was not properly executed ;
(2) that as it involved transfer of immovable property it should have been properly stamped and registered under the Registration Act ; and
(3) that the said transfer of immovable properties was contrary to the provisions of the law relating to evacuee property.
6. It was further contended that renewal of licence for the Cinema was refused on receipt of a report from the Sub‑divisional Officer that the owner, Hanuman Prasad Shroff, an Indian national, was permanently residing in India and that the Cinema House was not functioning properly. Further, there was a report from the Anti‑Corruption Department. about the use of forged Amusement stamps and also about smuggling of Pakistan money to the owner in India by the Manager of the Cinema. The Govern ment, therefore, decided to requisition the Cinema House.
7. In Writ Petition No. 103, the case of the petitioner‑firm is that towards the end of February 1958, the owner Shroff had to stop the running of the Mills and the Factory due to some differences with his constituted Attorney and also due to scarcity of raw materials. It was further contended that on receipt of a letter on 4‑11‑58 from the District Magistrate directing Shroff to bring the Mills and the Factory into operation within a month, all arrangements were made for running the Mills and the Factory and the undertakings actually came into operation with effect from 5‑2‑59. The Government, however, at the instigation of respondent No. 4 Atiqullah, who coveted the Mills, illegally issued orders for requisition. In short, this requisition was made mala fide and that it was not for a public purpose.
8. Mr. Alauddin Sikdar, the Assistant Secretary, has chal lenged the locus standi of the Firm to make this application. He has further stated that the Mills were lying idle to the detriment of public interest, and Government revenue and hence the District Magistrate was justified in requisitioning the Mills and the Factory.
9. The learned Advocate for the State has taken a preli minary objection as to the entertainment of these applications. He has contended:
(1) that there was no real partnership at all between the owner Hanumaa Prasad Shroff, an Indian national, and the other two, namely, Laduram Maheswari and Satish Chandra Rai, Pakistani nationals, and that these Pakistani nationals merely lent their names to help the owner;
(2) that this partnership related to immovable property and required registration under section 49 of the Registration Act and, as it was admittedly not so registered, the partnership could not be proved and the application must fail ; and
(3) that the question of title cannot be adjudicated upon in the absence of the owner Shroff.
10. Mr. Sayem, the learned Advocate for the Firm, has con tended that, though the Partnership Deed affected immovable property, it can be used for collateral purposes, namely, for establishing that there was a partnership agreement. He has further pointed out that as this partnership was duly registered with the Registrar, Joint Stock Companies, the Firm was entitled to make these applications.
11. Now, before entering into the merits of the case, we have to consider:
(1) Whether on the basis of the Deed of Partnership the plaintiff‑firm is entitled to any relief ;
(2) Whether the Partnership Deed has the effect of a transfer of the right in the immovable properties to the partnership and requires registration under section 49 of the Registration Act ;
(3) Whether the requisitioned properties belong solely to Hanuman Prasad Shroff or to the partnership firm ;
(4) Whether this question of ownership can be decided in the absence of Shoff ;and
(5) Whether this partnership is a bona fide transaction.
12. In our opinion, these serious disputed mixed questions of fact and law cannot be satisfactorily determined in this summary proceeding where the only evidence relied upon consists of affidavits of the parties and certain documents produced by them. It is well‑settled that in a writ petition the Court will not generally enter into such disputed questions of fact. Some Courts have gone so far as to say that where facts are disputed the Court should not exercise this extraordinary jurisdiction. It is incumbent upon a party applying for a writ to show that he has a clear legal right and that the right is so clear as not to admit of a reasonable doubt or controversy. On the facts of this case, we are of opinion that the question of title cannot be properly adjudicated upon in these petitions. Here we may quote the following observation from the decision in Kesho Prasad Singh v. The Board of Revenue (I L R 38 Cal. 553):
"It is an elementary principle that the title to property will not be tried in mandamus proceedings, and the writ will not issue when it is necessary to try or decide complicated or extended questions of fact."
13. We may further point out that according to the petitioner this partnership firm came into existence on 9‑4‑59. On 9‑4‑59, Shroff took Laduram Maheswari and Satish Chandra Rai as his partners and he executed the Deed of Partnership on 30‑4‑59. The fact however remains that on the 18th April 1959, Hanuman Prasad Shroff in the petition presented through his constituted Attorney Ishaque Ali mentioned himself as sole proprietor of the Mills, the Factory and the Cinema House. On receipt of notice, dated 8‑5‑59, Hanuman Prasad Shroff's lawyer wrote to the Government demanding justice and therein he again claimed the Cinema the Mills, and the Factory for Hanuman Prasad Shroff alone. On 11‑5‑59, a Writ Petition, being Writ Petition No. 46 of 1949, was moved on behalf of Hanuman Prasad Shroff against the order of requisition of the Oil Mill. He however withdrew the said petition with liberty to file a fresh petition. The above shows that even after the execution of the alleged Deed of Partner ship Hanuman Prasad Shroff claimed to be the sole owner of these properties. In these circumstances it will not be proper to decide the question of title of the requisitioned properties in his absence.
14. On a careful consideration of whatever materials that have been produced, we are inclined to think that there is a genuine dispute as regards title of the petitioner to the properties which are the subject‑matter of requisition and the said dispute cannot be decided in these proceedings. In this view of the matter, we have not entered into the merits of the case.
15. We accordingly dismiss these applications and discharge the Rules but without any order as to costs.
ASIR, J.‑I agree.
K. B. A. Applications dismissed: Rules discharged.