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Writ Petition No. 158 of 1964, decided on 7th December 1964.

S. 3‑Public purpose‑Test: whether direct benefit accrues to public or to individual‑Construction of Cinema Hall by private individual‑Mere user of Hall by public does not justify, requisitioning of land for purpose.

In considering the question whether an order under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 has been passed in public interest or for public purpose as contemplated by the section, what is to be seen is whether the purpose is to benefit the public directly. If that is so, then the purpose is undoubtedly a public purpose though it is likely to benefit an individual incidentally or remotely. If, however, the purpose is to benefit an individual directly and the benefit to the public is prospective or incidental, then the purpose is not public. Public pleasure and recreation alone would not justify the taking of land by private individual. Where, therefore, a piece of land adjoining a Cinema Hall, where films were exhibited by an individual, was requisitioned for the purpose of extension of the Hall, it was held, that the benefit accrued to the owner of the Hall directly and the mere user of the Hall by the public on payment did not make the extension of the Hall a public purpose. The order of requisition under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, in the circumstances, was therefore, set aside.

Hamabai Framjee Petit v. Secretary of State for India A I R 1914 P C 20 and Nichols on Eminent Domain, 3rd Ed., Vol. 11, pp. 508, 509 ref.

K. A. Bakr for Petitioner.

Md. Fazal ul Karim for Respondents.

Date of hearing: 1st December 1964.

This application under Article 98 of the Con stitution is directed against an order purported to have been passed under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, by the Additional Deputy Commissioner, Noakhali, requisitioning a portion of plot No. 137 of Mouza Joykrishnapur, J. L. No. 110, P. S. Sadar, District Noakhali, measuring .61 acre belonging to the petitioner for construction and extension of Cinema Industry at Maijdee.

The petitioner's case, in short, is that C. S. Plot No. 137 of Mouza Joykrishnapur measures 71 acre and the petitioner has purchased the western portion of it measuring '61 acre. A Cinema Hall was recently constructed under the name of Rowshan Talkies which is sufficiently big for the locality and the accommodation there is sufficient and it needs no further extension. Due to serious business competition with the petitioner however some of his rivals have been openly trying to harras the petitioner and further trying to cause loss to the petitioner's business. The petitioner with a view to constructing a modern residential hotel and a restaurant on the disputed land, applied to the Secretary, Trade and Commerce Government of East Pakistan, through the Deputy Commissioner, Noakhali, for necessary permission to set up the said hotel, but the rival party men of the petitioner, in order to cause loss to the petitioner, got the disputed land requisitioned. The petitioner has claimed that the order of requisition has not been passed for a public purpose.

In the affidavit‑in‑opposition filed on behalf of the Provincial Government and the Additional Deputy Commissioner, which has been affirmed by Mr. K. M. Ali, Additional Deputy Commissioner, Noakhali, it has been stated that Government sanctioned a loan of Rs. 2,00,000 to the Cinema Industry in question as it was felt that a place for recreation for the growing population of the Maijdee Town was necessary, A Cinema Hall is a dire necessity in the locality. The Cinema Hall in question is under construction on the land of the proprietor of Howsan Bani Talkies. It covered the whole area of the proprietor's land and the requisitioned land is necessary for constructing power house, latrine, urinal and ladies' rest room as there was no other space adjacent to the Hall for that purpose.

The only question that arises in this case is whether the order in question has been passed in public interest or for a public purpose as contemplated by section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948. The question as to what amounts to a public purpose or what can be said to have been done in public interest, came up for consideration in various Courts not only in this Sub‑Continent of India and Pakistan but in other countries such as the U. S. A. as well. In the case of Hamabai Framjee Petit v. Secretary of State for India (A I R 1914 P C 20) the Judicial Committee, while affirming the decision of a Division Bench of the Bombay High Court, quoted with approval the following observation of Bachelor, J., one of the members of the said Division Bench:

"General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase public purposes' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned."

The test indicated in the above observations, to our knowledge, has not been departed from though in applying it the prevailing circumstances at the relevant time have bee taken into account. The determining factor, therefore, is whether the purpose is to benefit the public directly. If that is so, then the purpose is undoubtedly a public purpose though it is likely to benefit an individual incidentally or remotely. If, however, the purpose is to benefit an individual directly and the benefit to the public is prospective or incidental, then the purpose is not public.

The only circumstance on which Mr. Fazal ul Karim on behalf of the respondents has relied to show that the order was passed in public interest is that Government advanced a loan of Rs. 2,00,000 to the owner of the Cinema Hall in question for construction as it was felt that there was dire necessity for a Cinema Hall for Maijdee Town. This decision of Government by itself in our view, is no proof of the fact that the order was passed in public interest. It is difficult for us to hold that the construction of the Cinema Hall with the loan granted by the Government will benefit the public directly and the owner of the Cinema Hall only indirectly. In our view, the resultant effect will be just the contrary. Construction of a Cinema Hall where films are exhibited by an individual benefits him primarily as the investment yields profits to him. Mere user of the Hall by the public on payment does not make the purpose of its construction public. In this connection the following passage from Nichols on Eminent Domain, 3rd Ed., Vol. 2, pp. 508, 509, may profitably be quoted:

"Just how far the Legislature can go in authorizing a taking of land to provide a place for public pastimes is a question not fully settled. Play‑grounds in congested districts so benefit the health and morals of the children of the neighbourhood that a taking for such purposes is clearly valid, and the Courts could hardly draw the line if part of a large park outside the thickly settled section of a city was reserved for sports or outdoor exhibitions. Land may be taken for a municipal bath‑house or for a public bathing beach. Speed‑ways have been constructed in many large cities as well as municipal golf courses. Public money has often been granted to aid an industrial exposition operated by a private corporation‑and a grant for such a purpose by a municipality has been held valid.

But public pleasure and recreation alone would not justify the expenditure of public money for a theatre or the taking of land by private individuals for a baseball field or trotting track, even if the public was admitted on payment of a reasonable fee, as the taking of property under this branch of eminent domain must be by the public and for public advantage and mere use by the public is not the test."

Regard being had to what we have already said, we are unable to accept the contention advanced on behalf of the respondents that the order in question has been passed in public interest.

The Rule, therefore, is made absolute. It is declared that the order of requisition passed in this case was passed without any lawful authority and the respondents are directed to cancel the same.

The petitioner will be entitled to the costs of this petition which we assess at ten Gold Mohurs.

---I agree.

K. B. A. Petition accepted.

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