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Writ Petition No. 124 of 1962, decided on 29th November 1962.
Order of requisition and notice served for purpose both indefinite and vague‑Order and notice not valid‑Requisi tion in excess of land actually required‑Order, as a whole, held illegal‑Future necessity, not justified for requisitioning land, in addition to immediate necessity.
Mirza Golam Hafez with A. T. M. Afzal for Petitioner.
Maksum‑ul‑Hakim, Advocate‑General and Mahbubur‑Rahman for Respondents.
Dates of hearing : 14th, 15th and 21st November 1962.
‑The petitioner along with some other persons owned and/or possessed lands in C. S. plot No. 7054 measuring 10.40 acres of land within C. S, Khatian No. 1239 in Mouza Prannathpur within the Dinajpur Municipality and P. S. Kotwali in the District of Dinajpur. There are certain Pucca buildings and structures on the said plot, some of them in the occupation of the owners and their relations and some let out to tenants. By an order of requisition dated the 3rd of July 1961, contained in a notice of the same date, an undefined an unidentified portion measuring 3.20 acres of the aforesaid land in C. S. plot No. 7054 was requisitioned by respondent No. 1, Mr. N. Hossain, Land Acquisition Collector of Dinajpur under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, for the purpose of constructing buildings for the Telephone Exchange and Head Post Office at Dinajpur. The aforesaid Pucca buildings and structures, however, were not requisitioned. The petitioner deligently took steps to have the said requisition order set aside but was ultimately unsuccessful.
2. The petitioner's case is that the Head Post Office at Dinaj pur is accommodated in a spacious and good building and there is no necessity to shift it. Petitioner's case further is that the Post Master General of East Pakistan, who is the requiring body in the case ultimately wanted only 1.60 acres of land for the cons truction of the Telephone Exchange only. The petitioner has, therefore, averred that the area of the lands requisitioned is far in excess of the actual requirement of the requiring body. He has averred that lands belonging to him and others have been acquired by the Government under the East Bengal State Acquisi tion and Tenancy Act and that he and his co‑sharers have been left with only the said plot of lands wherein they have family residential houses as well as houses let out to tenants and that in a portion of the land a power driven timber industry for mak ing furniture has been functioning. The petitioner avers that the requisition has been made at the instance of respondent No. 1 who, in order to feed fat his grudge against him caused by his refu sal to sell a portion of the land in the said plots to respondent No. 1, maliciously made the impugned order of requisition. It has been averred further that the requisitioned land is permanently required for constructing buildings for the Telephone Exchange and the Head Post Office at Dinajpur and, the impugned order of requisition is merely a cloak to conceal the fact of acquisition, under the East Bengal (Emergency) Requisition of Property Act so that the peti tioner may be deprived of the benefits of acquisition under the normal law, namely, the Land Acquisition Act. It is said that on two previous occasions the authorities had requisitioned the said plot but on representations having been made by the petitioner and his co‑sharers the requisitions had not been proceeded with.
3. Mr. W. A. Moarif, Additional Deputy Commissioner of Dinajpur, who is, in no way connected with actual requisition, having been posted at Dinajpur after the impugned order of requisition had been made, has sworn an affidavit‑in‑opposition on behalf of the respondents. He has generally traversed the aver ments made by the petitioner. It has been averred on behalf of the respondents that, although the requiring body, namely, the Post Master General of East Pakistan Circle, had originally required 5 acres of land for construction of buildings for the Tele phone Exchange and the Head Post Office only 3.20 acres of land, was permitted to be requisitioned. The site for the build ings was selected by a high powered Site Selection Committee. Previous to this selection attempts were made to make some other lands available to the requiring body but in vain. It has also been averred that there was urgent necessity for the construction of the Telephone Exchange at Dinajpur. It has been averred that the Telephone Exchange has been provisionally accommodated in a hired small room but with the ever increasing volume of work at the Exchange it is not possible now to handle the same efficiently in that room. Besides, the money for construction of the Telephone Exchange was provided for in the current year's budget and the project would be in serious jeopardy if the money was allowed to lapse. The respondents have averred that respondent No. 1, the Land Acquisition Collector, has requisitioned the land under a validly delegated authority.
4. The learned Advocate‑General at the hearing of the rule produced before us the records of the case in support of the respondents' case.
5. The petitioner has raised before us various objections in regard to the impugned order of requisition.
6. It has been argued on behalf of the petitioner that the impugned order of requisition prima facie shows that the requisi tioning authority wanted the lands in question for a permanent purpose, namely, construction of Telephone Exchange and Head Post office buildings and, therefore, the requisition is nothing but a cloak to conceal the fact of acquisition under the East Bengal (Emergency) Requisition of Property Act as this will enable the authority to avoid the rigours of the Land Acquisition Act which is the normal law for acquisition of the land and which is comparatively beneficial to the petitioner, at least, with regard to compensation to be paid to him. In support of this contention the petitioner has cited a decision of this Court in the case of Abdus Sobhan Sawdagar v. The Province of East Pakistan ((1962) 14 D L R 486).
7. The decision in the aforesaid case does not help the peti tioner. All that has been laid down in that decision is that in order to justify an acquisition under the East Bengal (Emergency) Requi sition of Property Act it must first be established that there has been a valid requisition under the Act and in order to justify a valid requisition, it must be shown that there exists urgent and immediate necessity to take possession of the requisitioned property. Acquisition simpliciter, which has no reference to valid requisition in the first instance, is not countenanced by the East Bengal (Emergency) Requisition of Property Act. This has been amply and lucidly explained in the judgment which has been pronounced in the case of Mumtaz Begum v. Province of East Pakistan (P L D 1962 Dacca 516).
8. From the averments in the respondents' affidavit‑in‑oppo sition which find support from the records of the case placed before us by the learned Advocate‑General, it appears that the requiring body was, as a matter of fact, in urgent need of taking immediate possession of the requisitioned lands for promptly starting construction of the Telephone Exchange building. Failure to obtain immediate possession was very likely to put the project in regard to the Telephone Exchange building in jeopardy, as the requisite sanction of money would otherwise lapse. Construction must start within a given time, else there would be no money for the project. The purpose of the requisition is no doubt a public one, and on the facts of the case we have no hesitation in holding that there was urgency for the requisition of the land in question to the extent of such land which was immediately required by the requiring body. In these circumstances the impugned order would have been justified if it had confined itself to 1.60 acres of land for which there was a necessity for immediate possession, but the impugned order covers an amount of land which includes such land which may be needed in future but for which there was no immediate necessity. The impugned order must be held to be illegal because it operates as a whole.
9. As to the insinuation made against respondent No. 1, the Land Acquisition Collector, in order to characterise the requi sition as mala fide, we may add that it is not borne out by facts of this case. It is true that respondent No. 1 has not come out with any statement before us to deny the insinuation. The records that have been placed before us by the learned Advocate‑General and relied on by the respondents as well as the petitioner, show that there is no substance in this allegation. The records clearly show that the Post Master General was offered one land after another, but it was either not available for requisition or was turned down by him as unsuitable for technical reasons. Finally a high powered Site Selection Committee was formed and it select ed the requisitioned land. Respondent No. 1, was not even a member of the 'Committee. It cannot, therefore, be said that the decision to acquire the land in question was made either by respon dent No. 1, or at his instance.
10. It has next been contended that respondent No. 1, the land Acquisition Collector, was not authorised to make the impugned order of requisition. The records placed before us by the learned Advocate‑General show that this is not correct. It has been averred on behalf of the respondents in the affidavit‑in‑opposition that respondent No. 1 Mr. N. Hossain has been duly authorised to make the order of requisition. The records support this and show that power was delegated to Mr. N. Hossain, under section 2, clause (I) of the East Bengal (Emergency) Requisition of Property Ordinance, 1960.
11. The petitioner has further contended that the impugned order of requisition is void, illegal and inoperative inasmuch as it is indefinite and vague. The relevant portion of the impugned order runs thus :‑‑
"Whereas in my opinion it is expedient and necessary in the public interest to requisition the immovable property described in Schedule A annexed to this order for Government purpose. (Telephone Exchange and Head Post Office building at Dinajpur) . . . . .
"Now, therefore, in exercise of the power conferred by section 3 read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948) which powers have been delegated to me by the D. C., Dinajpur.
"I requisition the said property and hereby make the follow ing orders
* * * * x s
"Schedule A Mouza Parannathpur, J. L. No. 63, P. S. Kotwali District Dinajpur, Khatian No. 1249, Plot No. 7054P area 3.20 of 1911.
Dated 19‑6‑61.
(Sd.) N. Hossain,
L. A. Collector, Dinajpur."
12. Now this plot No. 7054 measures 10'40 acres whereon stand at different places several Pucca buildings and structures. No indication whatsoever has been given in the order of requisi tion or in the notice that was served upon the petitioner as to wherefrom this 3.20 acres of land has been requisitioned and whether the said quantity of land has been requisitioned in one piece or in several pieces. It cannot be left to the sweet will of the officer going to take possession of the requisitioned property in pursuance of such an indefinite and vague order to carve out the 3.20 acres of land from the said C. S. plot No. 7054 in a manner that may seriously and vitally affect the enjoyment of the several Pucca buildings and structures on the plot. At any rate, the peti tioner must be apprised of such particulars of the land requisi tioned as will identify the land so as to enable him to make arrangements for making over possession of the same to the requisitioning authority. In the case of Mumtaz Begam v. Province of East Pakistan, it has been held thus by a Division Bench of this Court to which one of us was a party
"Mr. Hafez, who has appeared before us on behalf of the petitioner, has in the first instance, urged that the impugned order is void, illegal and inoperative inasmuch as it cannot ,be treated as‑ an order' under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (Act XIII of 1948). He has argued that the power conferred to requisition a property necessarily postulates a define specified and identifi able property. He has pointed out that the order of requisition merely purported to requisition a vague, indefinite and un identifiable part of the petitioner's land.
"No notice was given to her as to what portion and area of her lands he was required to make over under the said order.
We uphold this contention of the learned Advocate for the petitioner. In our opinion, the power to requisition a property postulates that such requisitioned property must be specified and capable of being identified at the time when the order is made. The said section 3 does not authorise the relevant authority to requisition a land the specification of which would be deter‑ A mined at some future date after a good deal of fluctuations in the mind of the authorities as to the location and the amount of land that would be required for a public purpose. The peti tioner is, therefore, entitled to succeed on this point."
13. On similar lines are two other decisions of this Court. In the case of Mansur Ali v. Province of East Pakistan (P L D 1959 Dacca 464), which is a case under the Town Improvement Act, 1958 (East Bengal Act XIII of 1958), the provisions of which so far as requisition is concerned, is more or less similar to section 3 of the East Bengal (Emergency) Requisition of Property Act, a Division Bench of this Court observed thus
"Such service of the order postulates that the order must convey to the affected person an idea as to what property is sought to be acquired from him and to what extent. It need not set out in any detail the particulars which may perhaps be required under subsection (4) (b) of section 93‑A of the Act, but sufficient particulars must be set out which will enable the person from whom the property is requisitioned, to identify the property and to ascertain the extent of such requisition. It is difficult to lay down the exact limits as to what those particulars should be, but the order must give sufficient notice to the person affected by it, setting out such particulars which would enable the person concerned to understand what has been acquired from him.
"Learned Advocate‑General has pointed out that the order has specified the cadastral survey plot numbers of the lands which have been requisitioned and has contended that the same would sufficiently indicate to the petitioner what has been requi sitioned. The requisitioned lands can be identified with reference to the C. S. Plots as set out in the order. This argument is partially correct but not wholly so.
"We have already quoted the plot‑numbers as specified in the order. Some part of the land which has been requisitioned has been described as "part of C. S. plots Nos. 67, 69, 73, 75, 78, 79, 83 and 89". This is undoubtedly vague and does not convey to the petitioner any idea of what part of the said plots and the amount of lands which have been requisitioned in the aforesaid plots."
14. In the case of Fatik Chandra Dey v. The Province of East Pakistan (not yet reported) another Division Bench of this Court, in circumstances similar to the present case, made the following observations
"The next point urged by the learned Advocate for the peti tioner is that the notice served on his client is vague and indefi nite. On a reference to the notice, it is found that only the area of plot No. 2063 has been given in the notice. But no definite indication has been given as to from which part of that plot, area of land as requisitioned will be taken. Nor any mention of the pathway has been made in the notice. It is also not clear whether the area proposed to be taken will be of a B square or rectangular shape and for what purpose the area requi sitioned will be utilised. Therefore, the contention of the learn ed Advocate that it is not possible for his client to know from the notice as to which part of the plot has been requisitioned, is of substance and, we hold that the notice suffers from indefi niteness and vagueness. When somebody's property is sought to be taken, he should be given a precise notice of what is being actually taken from him. On this ground also the impugned order is liable to be set aside."
15. We, therefore, uphold this contention and hold that the impugned order of requisition suffers from indefiniteness and l vagueness and is not a valid notice of the order under the law.
16. It has also been contended on behalf of the petitioner that the area of the requisitioned land is in excess of the immediate requirement of the requiring body. The petitioner's case is that the requiring body, namely, the Post Master General of East Pakistan Circle, ultimately asked for only 1.60 acres of land for the construction of the Telephone Exchange building but that respondent No. 1, the Land Acquisition Collector, requisitioned 3.20 acres of land for the Telephone Exchange and the Head Post Office Buildings. This contention finds supports from the records of the case that have been placed before us by the learned Advo cate‑General and relied on by both the parties. An order dated 25‑6‑61 of respondent No. 1, the Land Acquisition Collector, reads thus
"Seen P. M. G.'s Memo. No. 101/Reconstn., dated 12‑6‑61 intimating sanction of Rs. 9,327 and asking for land for Tele phone Exchange Site only (1.60 out of 3.20 acres) leaving aside the site of Post Office and saying that the payment of the cost of the balance amount Rs. 9,327 of land will be paid during the next financial year (1961‑62) under a separate project.
"Discussed with D. C. about the requisition of part land belong ing to private individual. For Post and Telephone Exchange both an area of 3.20 acres is proposed for acquisition by the Site Selection Committee. Now P. M. G. has asked for land for Telephone Exchange only. Difficulty will arise to acquire the land in piecemeal. If the land is acquired partly, balance portion of the site may not be available later. The owner may block the vacant area of the site by constructing overnight which will create additional trouble.
"So send a telegram to P. M. G. stating the point as discussed above (sic) with copy to Divisional Engineer.
(Sd.) N. Hossain,
25‑6‑61.
L. A. C."
17. There is, therefore, no doubt that the requiring body, which is normally expected to know its actual requirement, wanted as an immediate requirement only 1.60 acres of land for the Tele phone Exchange building only. It did not think it necessary to ask for more, presumably, because the construction of the Head Post Office building had to be deferred on account of lack of funds. Be that as it may, the fact remained that in the ultimate resort the requiring body asked for only 1.60 acres of land for the Telephone Exchange only. On the facts and circumstances of the case, it can hardly be gainsaid that the 3.20 acres of land that have been requisitioned is in excess of the immediate requirement of the requiring body. As to the balance of 3.20 acres of land, it is patent that there is no immediate and pressing necessity for taking possession of the same.
18. It may be mentioned here that had the order of requisi tion not suffered from indefiniteness and vagueness and of the order requisition had been confined to the actual requirement of the requiring body, namely, 1.60 acres of land, we would have had no hesitation in upholding the impugned order of requisition. We, however, hold that the impugned order is illegal and, there fore, liable to cancellation on the ground that 3.20 acres of land have been requisitioned, whereas the necessity for immediate possession (justifying an order of requisition) has been established only in respect of 1.60 acres of land. Furthermore, there can be no public purpose behind an order of requisition in excess of land actually required. Public interest demands that an inch of land beyond the actual requirement for public purpose should not be compulsorily taken away.
19. For the reasons stated above, we make the rule absolute and direct the respondents to cancel the impugned order of requi sition dated the 3rd of July 1961, served upon the petitioner in L. A. Case No. 60/4 of 1960‑61 of Dinajpur District.
The petitioner is entitled to costs of this application, which we assess at seven Gold Mohurs.
I agree.
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