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Writ Petition No. 175 of 1957, decided on 28th February 1958.
Extending life of East Bengal (Emergency) Requisition of Property Act (XIII of 1948)1 S. 15‑Continued operation of Notification No. 4837 Reqn., dated l6th August 1948, delegating powers to District Magistrates Validity‑History of legislation.
that the East Bengal (Emergency) Requisition of Property Act (XIII of 1948) was still in force and Notification No. 4837 Reqn., dated 16‑8‑1948 which was issued under section 15 of the Act delegating powers of requisition to the District Magistrates, was still in operation with reference to East Bengal (Emergency) Requisition of Property (Second Amendment) Act (XXXII of 1957) because, if the Act of 1948 did not come to an end by reason of the amendment of 1957, there was no reason why the Notification issued under that Act should cease to have any force after the amendment.
Therefore the District Magistrate had power to issue Notifi cations under section 3 of the Emergency Act.
Gouri Nandan Upadaya v. Rex A I R 1948 All. 414 rel.
Satya Narayan Nathani v. State of West Bengal A 1 R
1957 Cal. 310 ; The Crown v. Haveli P L D 1949 Lah. 550 distinguished.
Not violative of Article 5, Constitution of Pakistan.
Held, that the provisions of East Bengal (Emergency Requisition of Property (Second Amendment) Act (XXXII of 1957), were not in any manner violative of Article 5 of the Constitution.
Asgarali Nazarali Singaporewalla v. State of Bombay A I R 1957 S C 503 and Budhan Choudhuri and others v. State of Bihar AIR1955 SC 191 rel.
Yick Wo v. Peter Hopkins (1885) 118 U S 356 and Southern Railway Company v. Samuel E. Greene (1909) 216 U S 400 ref.
Charanjit Lal Chowdhury v. The Union of India and others A I R 1951 S C 41 ; The State of West Bengal v. Anwar Ali Sarkar and another A I R 1952 S C 75 and Waris Meah v. The State P L D 1957 S C (Pak.) 157 distinguished.
Dicey Law of Constitution, 1939, page 47 ; Jenning's Law of Constitution, 3rd Edition at page 49 and Wills: Amercian Constitution (Equal Protection Clause). ref.
Whether includes "acquisition," of property.
Power of acquiring property under two Acts ‑Government proceeding under one Act rather than the other‑No evidence of mala fides.
Requisition for "Public purpose"‑Question justiciable‑Government best but not sale judge‑Requisition to be in general interest of community, and demand not to be in excess of requirements‑Land required for building house5, for Governor and staff of State Bank‑Constitution of Pakistan, Article IS (2) "Public purpose."
Held, that whether requisition is for public purpose or not, is justiciable.
Prima facie Government are the best judge to decide upon the facts and circumstances of the case whether particular requisition is for a public purpose. They must however remember that they are not the sole judge. If the order is challenged, the Court will have to determine whether the requisition is for a public purpose. Hence the Government, when requisitioning property for others, must be satisfied on proper materials
(1) That the requisition is in the general interest of the community as opposed to the particular interest of the individual ;
(2) That the demand was not in excess of requirement.
The State Bank is a public utility concern and the general interests of the community is directly and vitally concerned with its activities and its undertakings, requisition of lands for con structing‑office of this Bank will be a public purpose.
While the Government has powers to decide whether a particular requisition was for a public purpose ; that decision should be made in relation to the existing facts.
From facts disclosed in this case their Lordships were not satisfied that the Government had fully applied its mind to the questions (1) of the actual requirements of the Bank and (2) of the necessity for a house for the Governor.
Held, therefore, that the Government had exercised their power arbitrarily which was not a real exercise of the power imposed upon them by the Act.
The impugned order of requisition militated against Article 15 of the Constitution.
Hamidul Huq Chowdhury, A. S. Chowdhury, R. K. Bhattacharjee and K. R. Nandi for Petitioner.
B. A. Siddiky, K. M. Subhan and A. T. M. Mustafa for Respondents.
This is an application under Article 170 of the Constitution for a writ of mandamus or any other appropriate writ for cancellation of an order, dated the 28th October 1957, purported to be passed under the East Bengal (Emergency) Requisition of Property (Second Amendment) Act, 1957, whereby the Government requisitioned plots Nos. 2670 and 2672 of Mauza East Nasirabad, P. S. Panchlaish, in the district of Chittagong.
2. The petitioner, Sarat Kumar Kanungoe, who owned the said plots as well as the . adjoining plots, used them for the purpose of manufacturing bricks. On 28‑10‑57, res pondent No. 3, the District Magistrate of Chittagong issued a notice under section 3 of the said Act and requisitioned the aforesaid plots for construction of houses for the Governor of the State Bank and for providing quarters for the staff of the Bank. On 25‑11‑57, his lawyer wrote to the District Magistrate praying for recall of the order and, failing to get any relief, he obtained this Rule.
3. The petitioner has contended that the requisition is not bona fide and is not for public purpose and that it infringes the fundamental rights guaranteed to him under the Constitution.
4. Mr. Akhand, Assistant Secretary, Revenue Department, has filed an affidavit‑in‑opposition on behalf of the respondents. He has stated that the requisitioned plots consist of a hillock and a slope and they were not used for manufacturing bricks. He explained the reasons for the requisition as follows : On 11‑10‑54, the Manager, State Bank of Pakistan, applied to the Chittagong Town Planning Sub‑Committee for a site measuring 19.08 acres for purpose of building a residence for the Governor and staff quarters for the employees of the State Bank of Pakistan. The said Committee finally approved a site measuring 11.05 acres which includes plots 2670 and 2672 measuring 8.11 acres of land. On 11‑3‑57, the peti tioner submitted objection against the proposed acquisition and the District Magistrate held a detailed enquiry in the matter and submitted a report to the Government on 11‑5‑57, and thereafter the Government decided to requisition the afore said plots. He has further contended that this requisition was for public purpose.
5. Many interesting and important points have been raised by Mr. Hamidul Huq Choudhury, the learned Advocate for the petitioner.
6. His first contention is that the notice under section 3 by the District Magistrate of Chittagong was bad in law. It is con tended that the District Magistrate had no power to issue the said notice.
7. In order to decide this point, it is necessary to look at the history of this legislation. In 1947, the Governor was satisfied that it was urgently necessary in the public interests to make special provisions for the requisition of property in con nection with the establishment of the new Government of Dacca, and, as the Legislature was not in session, he promulgated the East Bengal requisition of Property Ordinance (Bengal Ordinance V of 1947). Section 4 of the said Ordinance empowered the Government to delegate its power of requisition to the District Magistrate. The Government then authorised the District Magistrate to exercise the power under the Ordinance. In 1948 the East Bengal (Emergency) Requisition of Property Act, 1948, was passed. It is virtually a reproduction of the Ordinance with certain modifications. It was to remain in force foci 3 years. Section 15 of the Act is as follows
"The Provincial Government may, by order notified in the "Official Gazette," direct that any power conferred or any duty imposed on it by this Act, shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged by such officer as may be so specified.''
On‑the 16th August 1948, the following Notification No. 4837 Reqn. was published in the Dacca Gazette
"In exercise of the power conferred by section 15 of the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948), the Governor is pleased to direct that the powers conferred and the duties imposed on the Provincial Government by section 3 excluding the second proviso thereof, subsection (2) of section 4 clause (d) of section 7, subsections (1) and (3) of section 8, and sec tion 9 of the said Act shall be exercised and discharged also by District Magistrates of all the districts and also by the Additional District Magistrates of Dacca and Chittagong districts within their respective jurisdictions."
When the date of the above Act was coming to a close, the Legislature was not in session and hence the Governor promul gated on 2nd July 1951, the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance, 1951, by which the Act of 1948 was amended and the life of the Act was extended from 3 to 6 years. In October 1952, the Legislature itself passed the East Bengal (Emergency) Requisition of Property (Amendment) Act, 1952 (Act III of 1952) and extended the life of the Act of 1948 from 3 to 6 years. The Act was, however, not allowed to expire. By the East Bengal (Emergency) Requisition of Property Amendment) Act, 1954 (Act III of 1954) the life of the Act was further extended from 6 to 9 years, that is till August 1957. As the Legislature was not in session, the Governor extended the life of the Act for another 3 years by promulgating the East Bengal (Emergency) Requisition of Property (Second Amendment) Ordinance, 1957 (Ordinance XIII of 1957). Thereafter, the East Bengal (Emergency) Requisition of Property (Second Amend ment) Act, 1957 (Act XXXII of 1957) (hereinafter referred to as the Emergency Act) came into force on the 26th October 1957, and the life of the Act of 1948 was further extended from 9 to 12 years, that is till August 1960. In short, all the subsequent Acts and Ordinances are based on the Ordinance of 1947 with certain adaptations and variations. From the above, it is clear that the Act of 1948 is still in force, and the notification, which was issued under the Act delegating powers of requisition to the District Magistrates, still survives.
8. Mr. Chaudhury has contended that the amendment of 1957 made the Act a new Act, and, as such, a new Notification delegating the power to the District Magistrates should have been issued. In support of his contention, he has relied on the decision in Satya Narayan Nathani v. State of West Bengal (A I R 1957 Cal. 310) and in the case of The Crown v. Haveli (A I R 1949 Lah. (F B) 191= P L D 1949 Lah. 550). In the Calcutta case, Chakravarti, C. J., held that the life of West Bengal Pre mises Requisition and Control (Temporary Provisions) Act, 1947, was extended after the Constitution' of India had come into force, and hence Article 31 (2) of the Constitution of India was attracted. In other words, it was held that as the life of the Act of 1947 was extended from 31st March 1950, to 31st March 1953, it was not an existing law within the meaning of Article 31 (5) but an Act to which the provisions of Article 31 (2) applied.
9. No doubt, in the light of the Calcutta decision, it may be said that, in view of the amendment of the East Bengal Act of 1948, in October 1957, it cannot be regarded as an existing law and hence the provisions of Article 15 of our Constitution will apply to this case. The above Calcutta decision, however, does not say that the Notification issued under an Act would 'not survive the amendment extending the life of the Act. If the' Act of 19.18 did not come to an end, by reason of the amendment of 1957, we fail to see why the Notification issued under the Act should cease to have any force after the amendment. A similar question arose in the case of Gouri Naridan Upadhaya v. Rex (A I R 1948 All. 414). In the above case, the U. P. Maintenance of Public Order (Temporary) Act, 1947, was extended by one year and one of the questions for consideration was if the extension of the life of the Act would by itself extend the life of the authority delegated by the Provincial Government to the District Magistrate under section 11 of the Act, Waliullah, J., observed at page 421
"The academic question whether the extension of the life of the Act would itself extend the life of the delegated authority under section 11 of the Act need not seriously occupy one's attention. But even so far as that question is concerned, the answer to my mind is clear if one keeps in mind section 24, U. P. General Clauses Act, 1904. This section provides for the continuation of appointments, notifications, orders, etc., issued and enactments repealed but re‑enacted. In the present case, as I have held above, the extension of the life of the Act by reason of the authority conferred by section 1, subsection (4), has the effect of continuing the Act which would otherwise have expired on the expiry of the year. The position here, to my mind, is such that the principle underlying section 24 would apply with all the greater force than it would have applied to the case of a simultaneous repeal and re‑enactment of an Act. Reference might be made to the case in A I R 1925 Cal. 335 where a Bench of two Judges of the Calcutta High Court, while dealing with a notification under the Provincial Insolvency Act, held
"Under section 24, General Clauses Act, 1897, the notifica tion made under the repealed Act would remain in force."
In the light of the Calcutta decision in Satya Narayan Nathani's case, it may be said that the old Act was repealed and the new Act was passed. Hence, in our opinion, the above observations are fully applicable to the present case. Furthermore, we may observe that the facts in the Crown v. Haveli were totally different and hence the said decision is not applicable to the present case. For the reasons stated above, we are of opinion that the District Magistrate of Chittagong has power to issue notification under section 3 of the Emergency Act.
10. Mr. Chaudhury has next contended that the provisions of the Emergency Act were violative of the fundamental rights guaranteed by Article 5 of the Constitution. The learned Advocate‑General has contended that there was no classification al all and even if there was one it was based on intelligible differentia and had a rational relation to the object sought to be achieved. The way Mr. Chowdhury has formulated his point is this : The Government has been given a discretion to pick and choose the property that they will acquire under tire Land acquisition Act and the property that they Will acquire under The Emergency Act, and as no rules are lard down to regulate' the choice of the Government in such cases, the Government.. is bound to discriminate between one citizen and another. He has also drawn our attention , to the following difference in the procedure laid down in the two Acts for the acquisition of property
| Emergency Act | Land Acquisition Act |
| 1. The possession is taken immediately. | The possession is taken after hearing objection. |
| 2. Objection is referred in the first instance to an arbitrator. | The reference has to be made to Court. |
| 3. Award does not become decree. | Award becomes a decree. |
| 4. Limited right of appeal | No such limitation. |
| 5. No provision for appeal to Supreme Court. | Appeal lies to the Supreme Court.
|
11. In support of his contention that this Emergency Act violates the fundamental rights of a citizen; he has relied on the following decisions of the Supreme Court of India : Charanjit Lal Chowdhury v. The Union of India and others (AIR 1951 SC 41) and The State of West Bengal v. Anwar Ali Sarkar and another (AIR 1952 SC 75).
Article 5 (1) of the Constitution provides
"All citizens are equal before law and are entitled to equal protection of law."
Before dealing with the point raised by Mr. Chowdhury, it will be proper to consider what is meant by "equality of law." According to Dicey (Law of' Constitution, 1939, page 47), "equality before the law does not mean an absolute equality of all men which is a physical impossibility but the denial of any special privilege by reason of birth, creed or like in favour of any individual and also the equal subjection of all individual and classes to the ordinary law of the land administered by the ordinary law Courts." Sir Ivor Jennings says in his Law of Constitution,' 3rd Edition at page 49 "that among equal the law should be equal and should be equally administered, that likes should be treated alike, that right to sue and be sued, ‑to prosecute and to be prosecuted for the same kind of action should be the same for all citizens of full age and under standing and without distinctions of race, religion, wealth; social status or political influence." Professor Wills, dealing with the Equal Protection clause in the American Constitution, observes
"The guarantee of the equal protection of the laws means the protection of equal laws. It forbids class legislation but does not forbid classification which rests upon reasonable grounds of distinction It does not prohibit legislation which is limited 'either in the objects to which it is directed or by the territory within which it is to be operated. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privilege conferred and in the liability imposed. The inhibition of the amendment was designed to prevent any person or class of persons from being singled out‑ as, a special subject for discriminating and hostile legislation ."
In Yick Wo v. Peter Hopkins ((1885) 118 U S 356), the Supreme Court of the United States says : "Equal protection of law is a pledge of the pro tection of the equal law." In Southern Railway Company v. Samuel E. Greene ((1909) 216 U S 400), the Supreme Court says that there should be no discrimination between one person and another if as regards the subject‑matter of the legislation their position is the same.
12. Now, we have to scrutinise the provisions of the two Acts, namely, Land Acquisition Act and the Emergency Act in the light of the principles enunciated above. Both the Acts pro vide for compensation for acquired lands. The Acts do not discriminate between different citizens. The differentia is brought about between the properties that are immediately required and those that are not. The question, therefore; is : whether there is a reasonable classification for the purpose of acquisition : The pre amble of the Emergency Act is as follows
"An Act to provide for special measures for (emergency) requisition of property in connection with the adminis tration and development of the new Province of East Bengal."
Section 3 says
If in the opinion of the Provincial Government it is expedient or .necessary so to do for the administration and development of the new Province of East Bengal or for any other public interest connected therewith such as improve ment of towns or ports, construction or betterment of roads, waterways or other communications, development of commerce or industries, maintenance of supplies and services essential to the life of the community and other similar purpose, the Provincial Government may by order in writing requisition any property and may make such further orders as appear to that Government to be necessary or expedient in connection with such requisition Provided that no property used by the public for the purpose of religious worship shall be requisitioned ;
Provided further that the Provincial Government may exempt any particular property or class of properties or exclude any particular area from the operation of this Act."
It is needless to say that for the development of this new Province it was urgently necessary that the Government should be given power to acquire property of its citizens for the purposes mentioned in section 3. It was with that end in view that provisions were made in the Emergency Act for speedier requisition and acquisition. Slight variation was also made in procedure. In my opinion, these provisions were 'necessary to enable the Government to take immediate possession of the property. Hence it cannot be denied that this intelligible diffe rentia had rational relation to the object sought to be achieved by the Emergency Act.
13. We may further point out that the Emergency Act is applicable to all persons without distinction of religion, caste or creed. As pointed out, some distinction was made only with regard to the mode of requisition when the Government required the property urgently.
14. Now, the facts of the cases, on which Mr. Choudhury relied, are different, and hence they have no application here. In those cases, special legislation was considered bad by the Supreme Court of India, because they curtailed the rights of accused persons in several re3pects. Here, however, no such con sideration arises.
15. The Supreme Court of India, in their later decision in the case of Asgarali Nazarali Singaporewalla v. State of Bombay (AIR 1957 SC 503), considered all the cases under Article 14 of their Constitution. In that case, the Court had to consider whether the provision of the Special Act, namely, Criminal Law Amendment Act of 1952 ; violated Article 14 of their Constitution. By the said Act, provision was made for speedy trial of certain types of offence. The Court quoted with approval the following observations in Budhan Choudhury and others v. State of Bihar (AIR 1955 SC 191) ;
"The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases, namely, 1950 S C R 869 (A I R 1951 S C 41), 1951 S C R 682 (A I R 1951 S C 318), State of West Bengal v. Anwar Ali Sarkar, Kathi Raning Rawat v. State of Saurashtra A I R 1952 S C 123 ; Lachmandas Kewalram Ahuja v. State of Bombay A I R 1952 S C 235 ; Qasim Razvi v. State of Hyderabad A I R 1953 S C 156 and Ha6eeb Muhammad v. State of Hydera bad A I R 1953 S C 287. It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope; and effect of the Article is question. It is now well‑established that while Article 14 forbids class legislation, it does not forbid classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have‑ a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, ‑namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well‑established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
16. They then, while considering whether the differentia had a rational relation to the object sought to be achieved by the impugned Act, observed at page 508
"An argument was however addressed before us based on certain observations of Mahajan, J., (as he then was) at page 314 of S C R and at page 86 of A I R and Mukherjea, J. (as he then was) at page 328 of S C R and at page 91 of A I R in Anwar Ali Sarkar's case, quoted at page 43 of S C R and at page 40 of A I R by Patanjali Sastri, C. J., in the case of Kedar Nath Bajoria v. State of West Bengal A I R 1953 S C 404 that the speedier trial of offences could not afford a reasonable basis for such classification. Standing by themselves, these passages might lend support to the contention urged before us by the learned Counsel for the appellant. It must be noted, however, that this ratio was not held to be conclusive by this Court in Kedar Nath Bajoria's case where this Court held :‑
(1) That when a law like the present one is impugned on the ground that it contravenes Article 14 of the Constitution the real issue to be decided is whether, having regard to the underlying purpose and policy of the Act as disclosed by its title, preamble and provisions, the classification of the offences for the trial of which the Special Court is set up and a special procedure is laid down can be said to be unreasonable or arbitrary and, therefore, violative of the equal protection clause ;
(2) having regard to the fact that the types of offences specified in the Schedule to the Act were very common and widely prevalent during the post‑war period and had to be checked effectively and speedily tried, the legislation in question must be regarded as having been based on a perfectly intelligent principle of classification, having a clear and reasonable relation to the object sought to be achieved, and it did not in any way contravene Article 14 of the Con stitution."
They then came to the conclusion that bribery and corruption being rampant, it was necessary to enact measures for eliminating all possible delay in bringing the offenders to book. In that view of the matter, they held that differentia had a rational relation to the object sought to be achieved and, as such, the impugned Act was not bad. Here also we find that there is "a nexus between the basis of classification and the object of the Act under consideration." Further, the two conditions laid down in the case of Bud zan Chaudhury and others v. State of Bihar are also fulfilled. Hence it cannot be urged that the provision of the Emergency Act were in any manner violative of Article 5 n of the Constitution."
17. Before leaving this topic, we would like to refer to the decision of our Supreme Court in Waris Meah v. The State (PLD 1957 (SC) 157). In the above case, their Lordships had occasion to consider Article 5 of the Constitution. It was held in that case that as the Foreign Exchange Regulation (Amendment) Act (Act XXXII of 1956) gave power to the Central Government or the State Bank to determine whether a provision under the original Act was to be treated under the ordinary law or by the Adjudica tion Officer or by a Tribunal, the three sections prescribing three different punishing authorities, each with different power and procedure and entailing punishments of unequal nature and description, offended against Article 5 of the Constitution and was for that reason bad. Here however, the facts are otherwise and hence the above case has no application here.
18. Mr. Choudhury has next contended that the Government really wants to acquire the property and hence they should not have exercised their power under the Emergency Act which really provides for requisition of property. According to him, this act of the Government 'is really a fraud on the statute. The Emergency Act provides both for requisition and acquisition. In some cases, the Government may only requisition the property. In some cases, they may acquire the property because they consider it necessary for development of the Province. Even where they want to acquire the property immediately, they have first to requisition the property and then they have to take E steps under section 5 of the Act for acquiring it. We have already pointed out that there are good reasons for making this differentia and hence the exercise of the power under the Emergency Act cannot be said to be a fraud on the statute. Further, we may mention that when the power to acquire property exists under two different Acts and the Government resorts to one f Act ‑rather than the other, it is not evidence of mala fides‑see A I R 1951 Bom. 72.
19. Lastly, Mr. Choudhury has contended that this requisi tion was not for public purpose. The learned Advocate‑General has rightly conceded that the question, whether this requisition is for public purpose or not, is justiciable. He has however contended c that the Government has requisitioned this property for public) purpose.
20. Hence the question for consideration is: Whether this requisition of land for building houses for the Governor and the staff of the State Bank is a public purpose
21. We shall first notice some of the decisions that were cited before us. In Hamabai Framjee Petit v. Secretary of State for India (AIR 1914 PC 20 = 44 I A4 4), the question was : Whether a scheme for constructing houses for Government servants was a public purpose and their Lordships of the Judicial Committee observed
"But here, so far as from holding them to be wrong, the whole of the learned Judges, who are thoroughly conversant with the conditions of Indian life, say that they are satisfied that the scheme is one which will redound to public benefit by helping the Government to maintain the efficiency of its servants. From such a conclusion, their Lordships would be slow to differ, and upon its own statement it commends itself to their judgment.
In The State of Bombay v. Bhanji Munji and another (AIR 1955 SC 41), the Government requisitioned a house for a person having no housing accommodation. Having regard to the facts and circum stances of the case, Bose. J., observed
"The Constitution authorises requisitions for a public purpose. The purpose here is finding accommodation for the homeless. If, therefore, a vacancy is allotted to a person who is in fact homeless, the purpose is fulfilled."
In The State of Bombay v. Ali Gulshan (AIR 1955 SC 810), the Government requisitioned houses for the staff of a foreign Consulate and it was held that the requisition was for a public purpose.
22. In The State of Bombay v. R. S. Nanji (A I R 1956 S C 294), the Government requisitioned certain premises for housing an officer of the State Road Transport Corporation, and Imam, J., observed
"Here the Corporation is a public utility concern and the general interest of the community is directly and vitally con cerned with its activities and its undertaking ;"
and held that the requisition was for a public purpose. From the above cases, it seems to me that on the particular facts of each case, the Court came to the conclusion that the acquisi tion or requisition was for a public purpose. Hence it is neither proper nor desirable to lay down any definition of "Public Purpose." In each case, the Court will have to consider on the particular facts of that case whether the purpose is a public purpose or not. Their Lordships of the Privy Council thus approved, in Hamabai Framjee Petit v. Secretary of State for India, the following observations of Batchelor, J
"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."
23. In State of Bombay v. R. S. Nanji, Imam, J., observed
"It was suggested that a line must be drawn somewhere ; otherwise there was no guarantee to what lengths the powers of requisition might be exercised by the Government. It is sufficient to say that each case would have to be decided upon the facts and the circumstances appearing therein".
I respectfully agree with the above observations. Now, in the present case, the Government is requisitioning lands for the State Bank so that they may build quarters for their Governor and staff. Here the Bank is a public utility concern and the general interests of the community is directly and vitally concerned with its activities and its undertakings. Mr. Chowdhury has conceded that requisition of lands for constructing office of this Bank will H be a public purpose. He had, however, contended that requisition of land for building quarters for the Governor and staff of the Bank cannot, in all cases be regarded as a public purpose. He has argued that if the Government, after making necessary enquiries, is satisfied that accommodation is not available for the staff of the Bank, and that providing accommodation for them is necessary for efficient working of the Bank, in that event it may be said that the requisition of land for providing them with quarters is a public purpose. But, according to him, as no such enquiries were made in this case, the requisition order was bad. To show what should be the nature of such enquiries, he has strongly relied on the following observations of Chakravarti; C. J., in the case of Satya Narayan Nathani v. State of West Bengal and another. In that case, the Government requisitioned a certain flat for providing accommodation to a Government officer. In that connection, Chakravarti, C. J. observed at page 316
"It was a purpose of providing accommodation to an officer of the State Government who, it was said, was sorely in need of accommodation. It was not said that he had made every possible effort on his own account to secure accommodation and such efforts had failed, nor that in order to the efficient discharge of the duties of his office, it was essential that he should find accommodation in Calcutta and could not come from the suburbs or from any of the neighbouring localities. An exposition of public purpose' which has received the approval of the Judicial Committee is that whatever else public purpose may mean, it must include a purpose that has an object and an aim in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. A Government servant is undoubtedly a public servant in the broad sense of the term, though very remotedly a servant of the public, and it may also be said that the public are interested in proper discharge by a Government servant of the duties of his office. But where the conditions of a Government servant's service do not require that accommo dation is to be provided for him or there is nothing to show that there is some special reason for which it is essential to provide him with residential facilities or to find accommodation for him in a particular locality in order that he may be enabled to perform efficiently the duties of his office. I find it difficult to hold that the purpose of providing accommodation to a person, merely because he is in need of accommodation, i5 a purpose in which the public, who pay him by a salary for such services, as he renders are further interested, not to speak of being interested directly or vitally. I can, however, think of special cases. If for example, it was considered expedient to provide accommodation to the members of a firebrigade in the neighbourhood of the fire‑station on the ground that they should be easily available and land situated near the fire‑station was for that purpose acquired, I would be prepared to hold that the purpose would be a public purpose. Whether there were any special circumstances present in the case before us does not appear."
The learned Chief Justice prefaced the statement by saying that "For reasons I am going presently to state, it is not necessary for us to decide that question . . . .". Hence the above observations may be regarded as an obiter. I think it will not be proper and desirable to lay down any hard and fast rules as to the nature of enquiries that the Government should initiate before requisitioning any property. It will suffice to say that what should be considered as a proper enquiry must depend on the facts of each case.
24. With the changing conditions in the country, the demands of the Government are many. Prima facie they are the best judge to decide upon the facts and circumstances of the case whether particular requisition is for a public purpose. They must however remember that they are not the sole judge. If the order is challenged, the Court will have to determine whether the f requisition is for a public purpose. Hence the Government when requisitioning property for others, must be satisfied on proper materials.
< [if supportLists]>(1) That the requisition is in the general interest of the com munity as opposed to the particular interest of the individual ;
(2) That the demand was not in excess of requirement.
It seems that the purpose of this requisition was to provide the Governor and five officers with residential quarters. Certainly, if the Governor and the officers had no housing accommodations, and for efficient discharge of their duties it was essential to provide them with such accommodation, it may be said that the aim and object of acquisition was in the general interest of the public and not in the interest of individuals. Furthermore, the demand must be in accordance with the requirement.
2. Now, the question is : Did the Government apply its mind to the questions referred to above The reasons for this requisition are given in paras. 12 and 13 of Mr. Akhand's affidavit -in‑opposition as follows
"12. That with reference to the statements made in paragraph 15, this deponent states that the State Bank of Pakistan is a creature of statute and is the spinal column of Pakistan being the only institution for control and adminis tration of the finance and credit structure of Pakistan. The State Ballk is an integral part of the Government and the Bank and its officers are public officers within the meaning of the Evidence Act, 1872, and the Code of Civil Procedure, 1908.
13. That with reference to the allegations made in para graph 16, this deponent states that it is the responsibility of the Government to see that the State Bank has all the facilities that it needs for its own functions and to provide for all facilities to the Bank is to provide for the very existence of the Republic of Pakistan. The Governor of the State Bank has his residence and the employees of the said Bank have their quarters in Karachi and there is a staff quarter for the employees in Dacca. It is essential for the Governor of the State Bank to come to East Pakistan and remain here for some time every now and then for a closer study of economic trends and other facts affecting the formulation of financial and banking policies which is the responsibility of the State Bank of Pakistan under the State Bank of Pakistan Act, 1956.
In view of the peculiar geographical situation of East Pakistan and its economic problems, in particular with reference to its foreign exchange position and lack of proper credit structure in East Pakistan, which warrants his presence in East Pakistan in the interest of this wing, it is essential that he should have a residence in Chittagong, being the most important commercial centre of East Pakistan and the Governor's presence and stay in this place is imperative for the purpose stated above. The other allegations of paragraph 16 are not admitted by this deponent."
26. The reasons set out above are of a general and vague character and does not help the Court in deciding that the requisition was for a public purpose. In this case the Bank wanted the Government to requisition lands for providing housing accommodations for its Governor and officers. If it is assumed that there is acute shortage of accommodation at Chittagong, even then one can legitimately expect the Government to make the following enquiries, namely‑
(1) Why the Governor, who paid 2 or 3 short visits a year, would require .a building at Chittagong for his residence
(2) How much land would be required for providing the Governor and the five officers with quarters
We could not extract the above informations from the affidavit‑in- opposition filed in this case. The file of the Government that was placed before me did not show that the Government or the officers concerned applied their minds to the question of actual requirements of the Bank. It seems that at one stage the Secretary of the Communications, Buildings and Industries Department raised the following pertinent questions, namely‑
(1) How much land has to be allotted to the State Bank for residential purposes
(2) How many officers' quarters they want to build on the land
(3) Can we afford big chunks like this
He, therefore, observed "that only so much land should be given as would be sufficient to meet the requirements and no more". He also pointed out "that the Government has not allotted any land for the State Bank Governor either in Karachi or in Chittagong and Chittagong is not his head‑quarters". Un fortunately, this question was not pursued further. ‑The Advocate‑General has informed us that in the last 8 or 10 years the Governor's visit to Chittagong lasted for a day or two only excepting on one occasion when he stayed there for 8 days. We think the Government should have taken into consideration the above facts before ordering for requisition of lands for his accom modation.
27. At one stage, the petitioner submitted a representation to the Government that the proposed requisition would interfere with the work of his brickfield. The Joint Secretary, Revenue Department, visited the spot and held a detailed enquiry as to whether the requisition would affect him adversely or not.; but, curiously enough, he did not attempt to ascertain whether the demand of the Bank was in excess of their requirements or not and whether there was any necessity for constructing a house for the Governor or not.
28. It was argued that was acute shortage of housing accommodation at Chittagong and hence it was necessary to requisition the hillock in question, but we found it difficult to extract from either the affidavit or from the Government file (1) why 11.50 acres of land would be required by the Bank for building houses for its Governor and five officers, and (2) why the Governor should have a house at Chittagong. The learned Advocate‑General has stated that the requisitioned plot being a hillock, the entire area cannot be utilised for building purposes. That may be so, but even then the Government should have asked for a report as to how much land in the said hillock could be utilised for building purposes. On the materials, we are not satisfied that the entire 11.50 acres would be required by the Bank.
29. I have already observed that the Government has powers to decide whether a particular requisition was for a public purpose ; but that decision should be made in relation to the existing facts, which unfortunately they have ignored in this case. From the facts disclosed in the case, we are not satisfied that the Government had fully applied its mind to the questions (1) of the actual requirements of the Bank and (2) of the necessity for a house for the Governor. Hence we hold that the Govern ment have exercised their power of requisition in this case L arbitrarily which, in our opinion, was not a real exercise of power imposed upon them by the Act.
30. In conclusion, I would like to observe that a body charged with requisitioning others properties for public purpose owes a duty to those others' to do their work in a fairly business like manner with reasonable care and with due and alert regard to the interests of both the persons whose property is requisitioned and for whom it is requistioned. It is needless to say that persons who hold public office have a legal duty towards the citizens, to the discharge of which they must honestly apply their minds. It will not suffice to say that they have acted in a bona fide manner. Bona fide does not simply mean that they are not making a profit out of their office or not acting from a private spite. It must mean that they are giving their minds to the comprehension and their will to the discharge of the duty with which they are entrusted.
31. The purpose of the Emergency Act is to empower the Government to requisition property for public purpose. The Government is, therefore, duty bound to apply its mind to the purpose of the requisition. They must also see that the demand is not in excess. of the requirement.
32. Much was said at the Bar about the wide powers of the Government. to decide what is for the good of the people. 1 agree that there are many matters which the Courts are indisposed to question, though the question, whether a purpose is a public purpose, is justiciable. The Courts often accept the decisions of the Government simply because they are reluctant to interfere with such decisions which have been arrived at after the consider ation. This, however, is not a recognition of the absolute character of the Government's decision but of the limits within which it is practicable to question it. When the Government or its officers apply their mind to. the necessity of the requisition, the Courts will be very reluctant to interfere with such decision. I hope that I shall not have occasion to repeat the above observations.
33. Here I may also point out that, according to Mr. Akhand, the Assistant Secretary, Revenue Department, the Bank applied on 11‑10‑54 for a building site but the final order for requisition was made in October 1957. The events,. as they have happened in this case, stand as a reminder of the fact that emergency legislation, if leisurely administered, more often than not defeats its own purpose.
34. In the result, we make this Rule absolute and direct the Government to cancel the requisition order dated the 28th of October 1957, requisitioning R. S. plots Nos. 2672 and 2670 of Mouza East Nasirabad, P. S. Panchlaish, Chittagong, in Requisition Case No. 25 of 1957‑58.
35. The petitioner will be entitled to the costs of the appli cation which we assess at fifteen Gold Mohurs.
agree that the impugned order must be can celled. The facts and circumstances of this case have been set out by my learned brother and it is not necessary to repeat them.
37. The learned Advocate‑General has conceded that the existence of public purpose in respect of the impugned order is justiciable. The East Pakistan (Emergency) Requisition of Property Act, 1948, (hereinafter referred to as the Act), is no longer "an existing law" within the meaning of sub‑Article 3 (a) ,4 of Article 15 of our Constitution. The said Act was enacted as a temporary Act in 1948 and its life has been extended from time to time at regular intervals. As the Act stood prior to the promulgation of our Constitution, it was to have expired on the 16th of August 1957. By a fresh enactment of the Provincial Legislature in August 1957, the life of the Act was extended for a further period of 3 years. It is, therefore, patent that on the 16th of August 1957, the Act ceased to be "an existing law" within the meaning of the said Article 15 of our Constitution Article 15, sub‑Articles 1 and 2 of our Constitution will, there fore, now apply to the Act. There cannot be any doubt that the existence of a public purpose in respect of an order under the Act made after the 16th of August 1957, is justiciable : see Satya Narayan Nathani v. State of West Bengal and Gobardhan Jayaswal v. The First Land Acquisition Collector and another (52 CWN 158).
38. The question is : Does the impugned order disclose a public purpose within the meaning of the said Article 15 of the Constitution It is contended by the petitioner that it does not, and it is maintained by the respondents that it does. The expression "public purpose" is normally easily understood, but it is difficult to define its exact scope and meaning so as to include all the requirements of a dynamic society in the present day swift‑moving world. The locus classicus on the subject is a dictum of Batchelor, J., which has been quoted with approval by the Judicial Committee of the Privy Council in the case of Hamabai Framjee Petit v. Secretary of State for India. The oft‑quoted observations of Batchelor, J., are couched in the following terms
"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."
39. I may add that it is now accepted as axiomatic that public purpose connotes the general interest of the community as opposed to the particular interest of individuals.
40. In the aforesaid case of Hamabai Framjee Petit, the Judicial Committee of the Privy Council seems to have recognised the principle that Courts will take into account the socio‑economic conditions of the country at a given time in deciding whether a particular objective is to be regarded as serving the general interests of the public or not.
41. On the one hand‑, it is realised that in the context of the recent development of human society and the increasing density of population, such conditions have been created that it becomes necessary for the State to invade upon individual rights to a greater extent and at more points than what was necessary in former times. On the other hand, there is an increasing anxiety to reduce the extent and limit of such invasion to the minimum requirement of public benefit. This anxiety expresses itself in the categories of fundamental rights which are embodied and guaranteed in the Constitution of all progressive countries of the. world. Such rights should be guarded by the Courts unless they are to become mere inscriptions on sand to be washed away by the tidal wave of political expediency or Governmental indifference. It is, however, impossible to discover a yardstick which can measure the scope and extent of public purpose under the varied conditions of present day society.
42. It will be noticed that requisition or acquisition of properties for a class of homeless people has been considered as a public purpose by the Supreme Court of India‑see State of Bombay v. Bhanji Munji and another. In the aforesaid case, requisition of vacant premises to provide accommodation for homeless people was treated as public purpose.
43. In Hamabai Framjee Petit v. Secretary of State for India, the facts were that, owing to the dearth of, suitable houses in Bombay and the high rents that used to be demanded, Government officials were reluctant to accept appointments there, and as that circumstance was prejudicial to the efficiency of various public services, requisition of land for erecting suitable dwelling‑houses for Government servants generally was considered to be public purpose under the special circumstances of the case. The above facts can be gathered from the decision of the Bombay High Court.
44. In the case of State of Bombay v. R. S. Nanji, requisition of a certain premises for housing an unspecified officer of the State Road Transport Corporation of Bombay was held to fulfil the requirements of "public purpose" by the Supreme Court of India in the special circumstances of the case. The following are its special features
(a) The Corporation has a statutory power to provide for its employees "living accommodation", places of rest, recreation and other amenities ;
(b) It had statutory power to acquire and hold movable and immovable property;
(c) The requisitioned premises were placed at the disposal of the Corporation to house one of its officers to be named later on ;
(d) The State Government was requested to requisition the premises for an officer, whose posting was necessary in Bombay ;
(e) The State officer had to perform his duties in Bombay.
45. All the above facts were fully set out in the affidavit sworn on behalf of the State of Bombay and it was held that in the aforesaid circumstances the requisition order disclosed a public purpose.
46. In the case Satya Narayan Nathani v. State of West Bengal and another, the observations of Chakravarti, C. J., at page 316 of the Report, has been quoted by my learned brother and I need not repeat them. The principle laid down in Satya Narayan's case was followed by Sinha, J., in the case of Gobardhan Jayaswal v. The First Land Acquisition Collector and another.
47. The above cases cannot be held to afford any .general test but they do throw a considerable light on the problem before us.
48. In the present case, it will be noticed : (1) That the Governor has his headquarters in Karachi where is the Head Office of the State Bank of Pakistan. His normal work is at Karachi and he, therefore, resides there ; (2) That his visits to Chittagong has been confined to a few days in the year during the past 10 years. Even if it is now necessary for him to stay for longer intervals, it must, of necessity, be for a short period of time ; (I) It is not known why the Circuit House at Chitta going will not fulfil his requirements ; (4) It has been averred in the petition that the staff of the State Bank of Pakistan has already been provided with accommodation. This statement has not been specifically denied by the respondents ; (5) We are kept in the dark as to what are the circumstances which make it necessary to make the impugned order of requisition ; (6) It is not known how it was necessary for the efficient administra tion of the State Bank of Pakistan at Chittagong that the impugned order of requisition should be made ; (7) It was never considered how much land was actually required for housing the officials of the State Bank of Pakistan. There can be no public purpose in the acquisition or requisition of land in excess of the requirements of the alleged public purpose.
49. In these circumstances, I have no hesitation to hold that the impugned order of requisition does not disclose a public purpose and it is, therefore, hit by the provisions of sub- Articles (1) and (2) of Article 15 of the Constitution. I would like to make it clear that if a proper case had been made out, I would have been prepared to hold that acquisition of land to provide living accommodation for such members of the staff of the State Bank who have not been able to secure it themselves because of the acute shortage of housing accommodation in Chittagong would be for public purpose in view of the fact that the State Bank of Pakistan is a public utility concern. A proper case has to be made out that such acquisition would be directly conducive to the efficient administration of the State Bank of Pakistan. No such case has been made out in the present case.
50. Mr. Hamidul Huq has argued that, in the circumstances of the present case, the impugned order constitutes an abuse of power conferred on the requisitioning authorities under the Act. It is, therefore, a fraud on the statute. He has referred to the title of the Act which is as follows
" The East Bengal (Emergency) Requisition of Property Act, 1948 ".
He then referred to the preamble which runs thus
" Whereas an emergency has arisen due to Partition of Bengal which renders it necessary to provide for special measures for the requisition of property in connection with the administration and development of the New Province of East Bengal;"
He also drew our attention to section 3 of the Act which runs thus
" If in the opinion of the Provincial Government it is expedient or necessary so to do for the administration and development of the New Province of East Bengal or for any other public interest connected therewith such as improvement of towns or ports, construction or betterment of roads, water ways or other communications, development of commerce or industries, maintenance of supplies and services essential to the life of the community and other similar purpose, the Provincial Government may by order in writing requisition any property and may make such further orders as appear to that Government to be necessary or expedient in connection with such requisition
Provided that no property used by the public for the purpose of religious worship shall be requisitioned.
Provided further that the Provincial Government may exempt any particular property or class of properties or exclude any particular area from the operation of this Act."
He particularly drew our attention to section 5 which is as follows
" 5. (1) The Provincial Government may, if it thinks fit, acquire any requisitioned property and if it proposes to so acquire, the Provincial Government shall direct an officer authorised under this Act to cause a public notice to be given at convenient places on or near the property to be acquired stating that the Government intends to acquire the property
"(6) The' Provincial Government after considering the report made under subsection (5) shall make a decision about the acquisition of the requisitioned property and such decision of the Provincial Government shall be final."
51. He has submitted that requisition of property for a specified public purpose is the object of the Act. Requisition and not acquisition is the purpose of the Act. The Act provides for such public requirements as may be fulfilled by a mere requisition of properties. It also incidentally provides for the acquisition of such properties which have been already requisitioned to meet an immediate public necessity. He has contended that the Act is not intended to be an alternative to or substitute for the Land Acquisition Act. When the real purpose is acquisition of vacant land, recourse has to be made to the Land Acquisition Act unless there is also an urgent and imperative necessity for obtaining immediate possession of the land. He has argued that in the present case, where the initial and primary object was to acquire land for erecting houses, section 3 of the Act has no application. No question of requisition arises where acquisition of vacant land is the immediate object. The Governor and the staff of the State Bank cannot be accommodated on the vacant land which was requisitioned under the impugned order. When property is requisitioned for a public purpose, it can subsequent be acquired under section 5 of the Act if it becomes necessary to do so. Section 5 of the Act speaks of acquisition of requisi tioned properties. This is the scheme of the Act and its spirit and intendment. When acquisition of the land is initially decided upon, an order of requisition under section 3 of the Act is an abuse of the powers conferred by it, except, perhaps, in a case, where there is an urgent necessity for getting immediate possession of the land. Nothing has been shown in this case that such an urgency exists. On the contrary, the facts of the present case negatives the proposition that there is any urgent necessity for obtaining immediate possession of the land requisi tioned by the impugned order. The respondents should have proceeded under the Land Acquisition Act which is the normal machinery for acquiring land for public purpose. The impugned order is a mere colourable application of the summary procedures of the Act which curtails the rights of citizens in order to evade the more liberal provisions of the Land Acquisition Act. The above is, in substance, the point that has been made by the learned Advocate for the petitioner. I may quote the following passage from Maxwell's Interpretation of Statutes, 9th Edition, pages 129 to 130
" Enactments which confer powers are so construed as to meet all attempts to abuse them, either by exercising them in cases not intended by the statute, or by refusing to exercise them when the occasion for their exercise has arisen. Though the act done was ostensibly in execution of the statutory power and within its letter, it would nevertheless be held not to come within the power if done otherwise than honestly and in the spirit of the enactment . . . . . . . . .
Where, as in a multitude of Acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the Act done would not fall within the statute. According to his discretion means, it has been said, according to the rules of reason and justice, not private opinion ; according to law and not humour ; it is to be, not arbitrary, vague and fanciful, but legal and regular ; to be exercised, not capriciously, but on judicial grounds and for substantial reasons. And it must be exercised within the limits to which an honest man competent to the discharge of his office ought to confine himself, that is, within the limits and for the objects intended by the Legislature."
52. In this connection, I may also cite a decision of the House of Lords in Macbeth v. Ashley (1874 S C App. 352). In this case, a Licensing Act, after fixing hours within which liquors can be sold, authorised the Licensing Justices to alter the hours in any particular locality within the district requiring other hours. It was held that they had no power to alter the time in every case by virtue of a general resolution to which they had come. Though the resolution was limited to a portion of the locality, yet as this portion comprised every licensed house of the whole district, the limitation was regarded as a mere attempt to evade the Act. The Lord Chancellor, in delivering his address to the House of Lords, observed (pages 357 and 358) as follows
" In his very clear argument, the Lord Advocate said :
Here is a power, a discretion, given to the Magistrates, to take a particular locality within their district, that is a discretion which they may exercise not only once but again and again ; they may first take one locality and they may afterwards take another ; and in that way they may traverse the whole of their district ; why, therefore, should they not take the whole of their district at once Now, my Lords. I will assume, though it is not for learned Lord Ordinary, who took a different view, proceeded, and with which Lord Ardmillan appears to have been disposed to agree (although yielding to the authority of the majority of the Judges in the Inner House), they appear to me, my Lords, to turn upon a principle which it would be somewhat dangerous to encourage in dealing with Acts of Parliament of this description. Because, in the letter of the Magistrates' order, less than the whole of the burgh is com prehended in your Lordships now to decide, as the question has not arisen, that this may be a discretion which may be exercised more than once‑that may be so, and upon that I express no opinion ; but of this I am quite certain that if Magistrates under the guise of exercising a discretion had taken portion after portion of their district, not with reference lo the particular wants or requirements of each portion, but in order by degrees to take possession of the whole district, and under the pretence of exercising a discretion for each portion had virtually subverted the general rule laid down by the Legislature ; if I say your Lordships were to find, which I cannot imagine or suppose you ever would find, Magistrates adopting that course for the purpose or doing, what I must describe as evading an Act of Parliament, your Lordships would not be prepared to sanction, but would discountenance. and prevent the exercise of a power so used. That, however, has not been done by the Magistrates in this case ; they have done that which they believed was within their power. They have, once for all, attempted with regard to all the public houses in their district to change the rule laid down by the Act of Parliament. That, in my opinion, is a power which has not been entrusted to them by the Legislature; and 1, therefore, submit to your Lordships that the view taken by the Court of Sessions was correct in reducing the order which was thus made by the Magistrates."
Lord Selborne (pages 359 and 360) observed as follows
" With respect to the reasons on which the point of territorial limits, their Lordships seem to have been inclined to think that the strict language of the Act of Parliament was satisfied, and that the Court, under those circumstances, ought not to interfere with the discretion of the Magistrates. Now, I cannot but think that their Lordships may have lost sight of a distinction which exists between the evasion of an Act of Parliament passed in derogation or restriction of the legal rights and liberties of the subject, and the evasion of an Act which confers, for public purposes, powers that would not otherwise exist. It has been said, in this House and elsewhere, with regard to the Mortmain Acts, and others of that kind, which restrict previously existing legal powers, that a man is at liberty to evade them by keeping outside of them; but if you were to keep outside of an Act which creates for public purposes licensing powers in Magistrates, it is manifest that you would not be acting in the exercise of those powers at all.
Without meaning to deny that it is confided to the discretion of the Magistrates to determine what particular localities require other hours for opening and closing than those specified, it is obvious that such discretion as they have is not an arbitrary discretion to define any localities they please, but they must be such localities as they consider, in the honest and bona fide exercise of their own judgment, to require a difference to be made. The participle requiring' is connected with the substantive locality', and therefore it must be a requirement arising out of the particular circumstances of the place. The Magistrates must, in the exercise of an honest and bona fide judgment, be of opinion that the particular locality' which they except from the ordinary rule is one which, from its own special circumstances, requires that difference to be made. It is evident that the Magistrate have not proceeded upon that ground in the present case ; and, therefore, without saying absolutely that no case could possibly be conceived in which there might happen to be only one or two public‑houses with in the district, and those really so situated that a good reason could be given for applying the exception to them‑without saying that such a case would be impossible, it is perfectly clear, and on all hands conceded, that such a case does not exist here."
I may also quote the following observations of Lord Macnaghten in Mayor & Co. of Westminster Corporation v. London and North -Western Railway Company (1905 Appeal Cases 426) The passage is to be found at page 433 of the Report ;
" It seems to me that when a public body is exercising statutory powers conferred upon it for the benefit of the public ; it is bound to have some regard to the interest of those who may suffer for the good of the community."
53. In view of the decision we have taken on the point that there is no public purpose behind the impugned order, it is no necessary to decide the second line of argument advanced by the learned Advocate for the petitioner. The public authorities, in deciding whether to proceed under this Act or under the Land Acquisition Act, should do wqll to remember the observa tions quoted above, which are the pronouncements of reputed and eminent Judges.
54. The next point urged by the learned Advocate for the petitioner is that the notification, dated the 16th August, 1948 delegating the powers of the Provincial Government under the Act to all District Magistrates and to certain Additional District Magistrate can no longer be deemed to remain in force. His argument is, that since the Act was a temporary Act at the time when the said delegation was made under section 15 of the Act, the delegation has spent its force with the date of the expiry of the Act as it then stood. He has urged that the power of delegation under section 15 automatically exhausted. itself when the period of the statute expired. On this point I agree with the observations made by my learned brother, I would only add that to me the fallacy of the above argument) lies in ignoring the important fact that the life of the Act was never allowed to expire. The life of the Act has been extended from time to time before it actually expired and, therefore, the delegation of the power under the aforesaid Notification continues to remain in operation.
55. Lastly, Mr. Hamidul Huq Choudhury vigorously con tended that the provisions of the Act, with regard to the acquisition of properties, will be hit by Article 5 of the Constitution, inasmuch as they introduce discriminatory treatment when compared with similar provisions of the Land Acquisition Act. The learned Advocate for the petitioner built up an elaborate argument on this count. This line of argument was confined to acquisition of properties. It was not claimed that the provisions of the Act for requisitioning properties offended against the said Article 5 of the Constitution. I do not think it is necessary to decide this question as posed by the learned Advocate for the petitioner. In the present case, we are merely concerned with an order of requisition and not of acquisition and we have already held that the impugned order millitates against the provisions of Article 15 of the Constitution. I do not wish to express any opinion on this point at the present moment.
56. For reasons stated above, I am in entire agreement with the order made by my learned brother. The impugned order must be cancelled.
A. H.
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