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Writ Petition No. 193 of 1961, decided on 30th May 1962.
Requisition of adjoining land to enable rice mill to increase production‑Held: requisition for public purpose-- Urgent necessity of land at time of requisition‑Mere fact that land was ultimately intended to be acquired does not render order of requisition bad.
Abdus Sobhan Sowdagar v. Province of East Pakistan (1962) 14 D L R 486 distinguished.
S. R. Pal with Mozammel Huq and Farid Ahmed for Petitioner.
Maksum‑ul‑Hakim A.‑G. with A. T. Sadi for Respondents 1 and 2.
Asrarul Hussain with Md. Nurul Huq and A. Azim for Respondent No. 4.
Petitioner, Kabir Ahmed Choudhury, claims to be a tenant in respect of some land in the district of Chittagong as a lessee under one Haridas Chowdhury, who has been impleaded as respondent No. 4 in this case, on a monthly rental of Rs. 250. He has alleged that he carries on business of manufacture, sale and export of salt and had made necessary constructions on the said land for those purposes. He has also stated in the petition that he had set up two salt‑crushing factories on the said land and had also constructed four godowns for storing salt. He further claims that he had built a ghat for landing and shipping of cargo after incurring considerable expenses. On the 23rd of February 1961, an order was served upon him under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948. The said order was made by the Additional Deputy Commissioner of Chittagong in L. A. Pre Case No. 86 of 1960‑6i. The petitioner has challenged the validity of the order of requisition on various grounds and has obtained a Rule nisi from this Court calling upon the respon dents to show cause as to why a writ of mandamus or any other appropriate writ should not be issued directing respondents Nos. 1 and 2 to cancel, withdraw and/or quash the said order dated the 23rd of February 1961.
2. Respondents Nos. 1 and 2 have filed an affidavit‑in- opposition and have opposed the petitioner's application. Similarly, respondent No. 3 has also opposed the petition and has filed a separate affidavit‑in‑opposition.
3. At the hearing of the Rule the main point, which was pressed before us on behalf of the petitioner, is to the effect that the order served upon the petitioner is bad inasmuch as there is no public purpose in making the said order. The petitioner's case is that he himself carries on business of produc tion and distribution of salt on the said land and that, therefore, there is no public purpose in requisitioning the land for respondent No. 3 in order to enable the said respondent to extend his mill which has been established in proximity to the said land. The gist of this contention is that there is no public purpose in helping one industry at the cost of another.
4. On this point the petitioner's averments have been traversed both by respondents Nos. 1 and 2 as well as by respondent No. 3. It is said that at the time when the impugned order was passed there was hardly any structure worth mention ing in the land in question. It has also been stated on behalf of respondents Nos. 1 and 2 that they do not know whether the petitioner carries on business of manufacture of salt elsewhere. They have stated that on the land in question there was hardly any sign of the petitioner's running any business. In the light of the facts and circumstances of the case, we find it difficult to place any reliance on the averments of the petitioner in this behalf, particularly, because there is no good reason as to why we should reject the statements made on behalf of respon dents Nos. 1 and 2 that no structures or godowns worth mentioning were in existence at the time when the order was passed.
5. The next question, therefore, is, whether the requisition of the land to enable respondent No. 3 to increase production) of rice by enlarging the rice mill is a public purpose. It is a well‑. known fact that this country often faces acute shortage of food and in these circumstances any measure which is directed towards f increasing the production of food is in the general interest off the public apart from any profit which such a venture may bring to an individual or a body of individuals. We, therefore, hold that there is a public purpose in making the impugned order of requisition.
6. It has been next argued that the impugned order is mala fide and that it has not been made in good faith inasmuch as the same was solely directed towards promoting the personal inter ests of respondent No. 3. This allegation has been also traversed on behalf of respondents Nos. 1 and 2 and we do not think that the petitioner has been able to establish before us that the impugned order was passed in bad faith as alleged by him. It appears from the records of this case that some enquiry was made by and on behalf of the relevant authority to find out what was the requirement of respondent No. 3 for the purpose of enlarging his rice mill with a view to step up the production of food. Upon such enquiry it seems that the impugned order was passed.
7. The petitioner has contended that there were some other lands at the disposal of respondent No. 3 which could have been utilised for the purpose of extension of the aforesaid mill. It has been stated on behalf of respondents Nos. 1 and 2 that such lands were not available for the said purpose and that the authori ties have considered as to what would be the minimum requirement of respondent No. 3 in enlarging the said mill.
8. It is alleged that the Additional Deputy Commissioner who passed the impugned order did not apply his mind to the exigencies of the situation. This allegation, which has been traversed by the respondents, is not borne out by the records of this case. We have already stated that an enquiry was made in this behalf and upon such enquiry the impugned order was passed.
9. In a supplementary affidavit, which the petitioner was allowed to file, it has been alleged that the impugned order is ultra vires the provisions of the East Bengal (Emergency) Requisi tion of Property Act, 1948, inasmuch as the order of requisition was passed solely with the object of acquiring the land under the said Act without considering the question as to why the said land should be requisitioned. We have heard arguments addressed to us at great length on this point, particularly, in view of our decision in the case of Abdus Sobhan Sowdagar v. Province of East Pakistan ((1962) 14 D L R 486). Respondents Nos. 1 and 2 having also filed an affidavit‑in‑opposition to the further affidavit submitted by the petitioner, and it has been categorically stated on behalf of the said respondents that no order of acquisition was under consideration at the time when the impugned order was made and that the question as to whether the said land would be acquired or not had not till then been decided. It has been averred that the land in question was urgently required in order to enable respondent No. 3 to increase the production of food.
10. In this connection, we have also examined the records of this case as produced before us. It appears that on the 24th of January 1961, the following letter was addressed to the Deputy Commissioner, Chittagong, on behalf of respon dent No. 3 : ‑
"We have the honour to 'bring' to your" 'kind notice the following facts for favour of your kind and sympathetic consi deration : -
That we have installed a biggest and most modern Rice Mills in 1959, and started production from 8th June, of the same year. During the year 1960, a Salt Crushing Mill was also erected in the same premises. At present our rice mills pro duces white rice only. There is a growing demand of boiled rice, so to meet the local demand we have a scheme to add a Boiler and a Steam Engine with the rice mills. Now we are neither able to store sufficient quantity of paddy and salt, feed the mill regularly and efficiently nor translate our scheme of expansion into action only for want of suitable land. We immediately require a site to store paddy, salt, rice and also an open space for drying boiled paddy. At present we have stocked a big quantity of paddy on a piece of open land.
"Our present Government is encouraging the industries to increase production and assured help to remove all difficulties that stands in the way of smooth running.
* * * * * * (sic)."
It transpires from the records of the case, which were made available to us, that certain enquiries were directed to be made on behalf of the Deputy Commissioner on receipt of the afore said letter. The land, which is the subject‑matter of this case, was inspected by officers who also made some enquiries. It does not, however, appear from the records as to what was the nature of those enquiries; but it transpires that as a result thereof the impugned order of requisition was passed. It further appears that at the time when the order of requisition was made it was realised that the land in question might have to be acquired. The authorities were conscious of the fact that eventually the said land would have to be acquired and the matter was treated by them as an acquisition case. It seems that this is the reason why the order served on the petitioner contains a reference to acquisition of land for Ibrahim Modern Rice Mills. It has been contended on behalf of respondents Nos. 1 and 2 that the order of requisition was made in view of the fact that respondent No. 3 required some suitable land for storing paddy, salt and rice and also an open space for drying up boiled paddy. It was vigorously contended by the learned Advocate‑General that nowhere in the body of the records placed before us there is anything to indicate any present intention to acquire the land. He has further argued that the order of requisition has been passed with a view to satisfy an urgent and imperative necessity of possessing the land which has been requisitioned in order to have sufficient space for drying up boiled paddy, as asked for by the respondent No. 3. It was furthermore pointed out that the fact that the respondent No. 3 was subsequently made to give an undertaking to give back the land when required by the Chittagong Port Trust corroborates the averment made on behalf of the respondents Nos. 1 and 2 that the impugned order of requisition was passed merely to obtain possessory interest in the land in question with a view to meet an urgent necessity. On an examination of the records of this case, we do not find that there is any good reason for not accepting this contention on behalf of the respondents.
11. It has been submitted before us that the land in ques tion may be, and probably will be, acquired in future when it becomes necessary to do so. It was argued that at the time when the impugned order was passed there was no question of any acquisition of the property in question. We accept this contention and in the light of this finding we cannot hold that the impugned order was passed merely for the purpose of enabling respondents Nos. 1 and 2 to acquire the land under the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948. The purpose of the order, as it appears from the facts and circumstances of the case, was to requisition the land for an objective which could be satisfied on a mere posses sion of the land. The petitioner has failed to satisfy us that the order of requisition was merely a cloak for the purpose of acquiring the land and that the same was made for no other purpose. We have already stated that the acquisition of the said land may be ultimate objective; but we cannot hold that at the time when the order of requisition was made such was the sole object of the respondents. In a decision of this Court in Abdus Sobhan's case already referred to, it was pointed out that an order of requisition would not necessarily be bad merely because at the time when the order was passed there was a consciousness that the land in question might have to be ulti mately acquired. The most important thing to consider is, what was the object and intention of the authority which made the order at the time when it was passed From the records of this case it is patent that at the time when the order was passed there was a good ground for the mere requisitioning of the said land apart from the question of acquisition of the land. One of the demands made on behalf of the respondents and very clearly set out in the letter which has teen quoted above is that respondent No. 3 was urgently in need of an open space for drying boiled paddy. Such a purpose could be served by a mere requisitioning of the said land.
12. Mr. S. R. Pal has vigorously contended that the under taking given by respondent No. 3 on the 5th of February 1952, to hand back the possession of the land in question, if and when required by the Chittagong Port Trust, is wholly irrele vant to find out the intention behind the impugned order. It is true that the aforesaid and,‑rtaking which was given after the passing of the order, has no direct connection with the impugned order itself. But, it certainly lends support to the respon dents, contention that initially there was no intention to acquire the land in question. It further corroborates the respondents' averment that even up to the present moment the question whether the land should be acquired has not been finally decided.
No other point was pressed before us.
The result, therefore, is that for reasons stated above, the Rule is discharged without any order as to costs.
I agree.
s. R./K. B. A.
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