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Civil Appeal No. 30 of 1957, decided on 26th March 1958.

(On appeal from. the Order of the High Court of Judicature at Dacca in East Pakistan, dated the 17th May 1956, in Writ Petition No. 7 of 1956).

S. 7‑Agreement as to compensation to be valid must be between Provincial Government and claimant‑Assessment of compensation by District Magistrate‑Not a compliance with provisions of S. 7.

that an agreement to be a valid agreement within section 7 should be between the claimant on the one side and the Provincial Government on the other.

Where immovable property is involved, no compensation can be validly claimed except such as has the sanction of the Provincial Government.

Where a final assessment of compensation was made by the District Magistrate.

that such assessment could not be regarded as con stituting, in any respect, compliance with the requirements of section 7. It was made by the District Magistrate, and no finality can be claimed for it, as compensation under section 7, unless it be established that it was agreed upon between the claimant on the one side and the Provincial Government on the other. The function of agreeing as regards the amount of compensation was not one which the District Magistrate was competent to exercise ; it could only be performed by the Provincial Government itself.

, S. 7‑B ‑Duty of District Magistrate to procure sum award able as compensation‑Writ of mandamus can issue against Magistrate.

It must be assumed that the Legislature had in mind that requisition might be made under the Act at the request of any Department of the Provincial Government and several Departments of the Central Government as well, and that for the purpose of complying with this duty under section 7‑B of the Act, the District Magistrate would be required to undertake the responsi bility of procuring the necessary sum payable by way of compen sation, from the Department concerned, for payment to the proper claimant. That duty is clearly implicit under the terms of section 7‑B and it is impossible to endorse the opinion that a writ to enforce the duty of payment of compensation cannot be issued to the District Magistrate, unless the claimant satisfies the Court that the District Magistrate has in his possession the necessary funds to meet the claim.

Constitution of Pakistan, Art. 170.

that a writ of mandamus does not issue for the enforce ment of a contract.

Muhammad Fazlur Rehman, Advocate, Supreme Court instructed by M. Siddiq, Attorney acting on behalf of A. W. Malik Attorney on record, for Appellant.

Maksumul Hakim, Advocate, Supreme Court instructed by K. Hossain, Attorney for Respondent No. 1.

Respondent No. 2 : Not represented.

Date of hearing : 26th March, 1958.

.‑This civil appeal by the Chandpur Mills Limited against the District Magistrate, Tippera and the Province of East Pakistan is brought before the Court on the basis of a certificate granted under Article 158 of the. Constitution. It calls in question the dismissal of a writ petition filed by the appellant Company against the District Magistrate of Tippera, for a direction in the nature of mandamus under section 7‑B of the East Bengal (Emergency) Requisition of Property Act, 1948 to pay to the Com pany a sum of rupees four lacs as assessed and agreed compensation, in the nature of terminal compensation, for the use of the premises of the Company by units of the Defence forces of Pakistan for a period of some 21 years commencing in April 1950. Section 7‑B aforesaid reads as follows------

"When the compensation has been assessed under section 7, the District Magistrate shall tender payment of such compen sation to the persons entitled thereto".

There is a proviso which has no application in the present case, as there is a single claimant namely, the Company, and no question either of apportionment or of ascertainment of the rightful claimant arises, nor has any suit been brought to recover the amount as provided by section 7‑A. Section 7 of the Act deals with the ascertainment of the quantum of compensation. It has been amended from time to time, but at the relevant time, which in the present case, and for the purpose of the appellant is a period commencing about the end of 1952, and ending on the 3rd January 1953, the material provisions were to the following effect. The section laid down a duty of paying compensation for immovable property requisitioned under the Act, to be determined in the following manner, viz :‑----

"(a) Where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement ;

(b) Where no such agreement can be reached, the Provincial Government shall appoint as arbitrator a person qualified‑for appointment as a Judge of the High Court".

The rest of the section was concerned with appointment of an assessor to assist the arbitrator, the commencement of proceedings before the arbitrator and the terms of the arbitrator's award. By means of a proviso, certain conditions were laid down regarding fixation of the market value of particular kinds of property, and an appeal was provided. In the present case, the contention of the Company was that compensation had been agreed, and consequently the remaining provisions of the section are not relevant for the decision of this appeal.

Nor is it necessary in deciding the present appeal to state in detail the averments contained in the petition and the replication, and the various affidavits filed in support by both parties. The few facts necessary for determination of the question as it has emerged in the course of argument may be based upon a few documents, consisting of letters which passed between the District Magistrate, the Military Estate Officer, the Government of East Pakistan, and the Company. There is however upon the record a document which in our opinion is of significance in relation to the true construction of the operative provision, viz. section 7. This is a formal sanction dated the 15th November 1950 by the Government or East Bengal, to the payment of a sum of Rs. 260 p.m. to the Irate, Company as recurring compensation for certain premises which had been requisitioned. It may be mentioned that in addition to these premises, certain other premises were also requisitioned, for which a monthly compensation was separately fixed at Rs. 50. In comparison with these modest amounts, the sum of rupees four lacs claimed as terminal compensation certainly appears to be highly inflated. It includes claims in respect of properties of which the use was denied to the Company on account of the requisition of the smaller premises for which monthly compensation had been assessed and sanctioned, for loss of business profits and damage to property during the period, of military occupation, as well, it may be as for other items. Te judgment of the Division Bench of the Dacca High Court contains indications to the effect that the assessment of this amount in favour of the Company may not have been entirely honest. With that aspect of the matter, we do not propose to deal, since we find that a decision may be arrived at upon other facts clearly appearing from the record. But we should like to make it clear that we do not agree with these observations of the learned Judges, in so far as they reflect upon the integrity of the officer in question, who has been named in the judgment. Our object in mentioning the Government's sanction to payment of recurring compensation, which was issued on the 15th November 1950, is to establish that the Provincial Government was aware that compensation under section 7 of the Act, in respect of immovable property, was to be sanctioned by the Provincial Government and by no other authority.

In our opinion, this point is made further clear by reference to section 6 of the Act, which reads as follows :

"6. Whenever any movable property is requisitioned or acquired under the Act, the owner thereof shall be paid such compensation as may be determined by the District Magistrate subject to revision by the Provincial Government."

The contrast between the two sections is unmistakably clear. In respect of movable property the District Magistrate has the power to determine the compensation. It is open to the Provincial Government to revise the District Magistrate's order, but that is an optional power which may or may not be exercised. The substantive power resides in the District Magistrate. On the other hand, and m clear contrast, section 7 gives power only to the Provincial Government, wherever a statutory authority is specifically mentioned in that section. This circumstance is of primary importance in answering the question which naturally arises in regard to the provision of payment of agreed compensation who is the person or officer who can enter into an agreement on the Government's side, so as to make it a valid agreement on the basis of which payment of compensation can be claimed We entertain no doubt upon a full reading of section 7, in relation to the other provisions of the Act and in particular section 6, that where immovable property is involved, no compensation can be validly claimed except such as has the sanction of the Provincial Government. Our attention was invited to section 15 of the Act which empowers the Provincial Government by order in the Official Gazette to direct that any power conferred upon it under the 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". Mr. Fazal‑ur‑Rehman for the appellant was good enough also to furnish the Court with a copy of the orders made by the Government of East Bengal under this section. With reference to section 7 the only power which has been delegated to the District Magistrate is that of stating before the arbitrator what, in the opinion of the Government, is a fair amount of compensation. Such a statement is required to be made at the initiation of proceedings before the arbitrator. It seems to us that this very limited delegation of power, in relation to section 7, furnishes strong support to the view which we have already expressed above namely that all other functions to be performed on behalf of the Government under section 7, are to be performed by the Provincial Government itself. This includes the power of agreeing with the claimant upon the amount of com pensation, and this power has not been delegated to the District Magistrate.

In refusing the relief prayed for, the learned Judges of the Division Bench have proceeded on three grounds. The Company had relied upon a number of letters by the District Magistrate stating that he had finally assessed the compensation at Rupees four lacs and certain subsequent letters by the District Magistrate urging the Military Estate Officer to make early payment, as well as a letter from the Government of East Bengal to the Military Estate Officer, urging payment as assessed by the District Magistrate. The learned Judges observed that there is no proof that in assessing the com pensation, any Military Officers had been associated with the District Qanungo and the Requisition Officer, but on the other hand the District Magistrate's communications showed that he had based his compensation upon an assessment by the Requisition staff alone. The impression is gained that the learned Judges thought that an agreement to fall within section 7 of the Act should be agreement between the Military authorities on the one side and the District Magistrate on the other. Such a con clusion is in our opinion not warranted by the words of the statute. An agreement to be a valid agreement within section 7 should be between the claimant on the one side and, as we haven found above, the Provincial Government on the other.

The judgment then proceeds to consider certain correspondence which passed and reached the conclusion that these letters "also negative the theory of agreed settlement." On consideration of some further letters, the learned Judges observing that the claim for terminal compensation had been raised for the first time when there was a change of incumbency in the post of District Magis trate, concluded that the demand "fluctuated with the change of authority, but there was no agreed solution at any stage". As they had held earlier in their judgment, that if "the theory of mutual agreement turns out to be true, there is hardly any doubt that the petitioner will have a smooth sailing", their conclusion that there was no "agreed solution" was by itself sufficient for disposing of the petition. They went on however to give two further reasons.

The first is that there was laches on the part of the Company in bringing the petition. It seems that the petition was filed on the 24th February 1956. There had been an earlier petition brought under section 223‑A. of the Government of India Act, 1935, which however lapsed on account of the decision of the Federal Court that section 223‑A had not been brought upoi5 the statute book in proper form (Case of the Federation of Pakistan v. Moulvi Tamizuddin Khan) (PLD1955FC240). It was not until a date in October 1955 that section 223‑A was once again brought into the Government of India Act, 1935. In the circumstances it is difficult to uphold the view of the learned Judges that the Company was "guilty of gross laches", for during the period Intervening between April and October 1955 when section 223‑A was off the statute book, there was great uncertainty as to whether it would ever be restored. In the circumstances, if the dismissal of the writ petition had rested upon the ground of laches alone, it would have been necessary for us to give closer examination to the question than appears from the judgment under appeal.

The third ground advanced for dismissing the writ petition is that money was due to be paid not by the District Magistrate but by the Military authorities, and the learned Judges posed before themselves a question in the following form :‑--

"But where is the scope for writ against the Magistrate when no funds were placed at his disposal "

They went on to say that "a writ of mandamus on the District Magistrate appears to be misconceived, for unless fund is placed at his disposal, he could not be expected to make any tender". The question whether a writ should issue and to whom it should issue, is settled by the Legislature in the terms in which section 7‑B of the Act has been enacted. Requisition under the Act may be made whenever 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, waterways or other communications, development of commerce or industries, main tenance of supplies and services essential to the life of the community and other similar purposes. It is clear that these words are of very wide scope, and embrace practically all the functions of the Provincial Government as well as functions of the Central Government, as a number of the subjects mentioned are clearly Federal subjects. It must be assumed that the legislature had in mind that requisition might be made undo the Act at the request of any Department of the Provincial Government and several Departments of the Central Government as well, and that for the purpose of complying with this duty under section 7‑B of the Act, the District Magistrate would be required to undertake the responsibility of procuring the necessary Zuni payable by way of compensation, from the Department concerned, for payment to the proper claimant. That duty is clearly implicit under the terms of section 7‑B and we find it impossible to endorse the opinion of the learned Judges that a writ to enforce the duty of payment of compensation cannot be issued to the District Magistrate, unless the claimant satisfies the Court that the District Magistrate has in his possession the necessary funds to meet the claim.

The decision of the case therefore turns upon a single question whether compensation had been agreed in the present case, within the meaning of section 7. Mr. Fazal‑ur‑Rehman when asked to support the allegation of an agreement by reference to evidence on record, was able only to refer to a letter written by the Company to the District Magistrate on the 23rd January 1956, which is in the nature of a notice under section 80, Civil P. C., though that section is not expressly cited. The letter ends with a request for a tender of payment of rupees four lacs failing which the District Magistrate would be deemed to have refused the payment and the Company would "be free to take such steps as we may be advised". In this letter the Company made a categorical statement that the amount of rupees four lacs as "compensation was finally accepted agreed upon between the parties and we were assured payment whereof and in pursuance of which the then District Magistrate and Collector, Comilla by his letter No. 2976‑E, dated 3rd January 1955 asked the Military Estate Officer, East Bengal Circle, Tejgaon, Dacca to make payment to us." This letter was written three years after the alleged agreement, and Mr. Fazal‑ur‑Rehman was unable to point to any earlier document issued by either the District Magistrate or the Provincial Government or the Company in which any reference to an agreement is contained. The letter of the District Magistrate dated the 3rd January 1955 which has been mentioned above is on the record. It is addressed to the Military Estate Officer, and states that the amount of compensation had been finally assessed at rupees four lacs, and that the District Magistrate had approved this "final assessment made by the Requisition Officer, Tippera" as being "reasonable and just". These words do not in our opinion convey any sense that the figure of rupees four lacs had been reached by agreement, much less that it had been accepted by the claimant.

Our attention has been invited by Mr. Fazal‑ur‑Rehman to a letter of the East Bengal Government dated the 27th November 1952, addressed to the District Magistrate, Tippera, on the subject of compensation claimed by the Company after their properties had been released to them. The Company had claimed a sum of approximately Rs. 4,90,000 and this letter refers to an earlier memorandum of the District Magistrate from which it appeared that this claim had previously been checked by the "Qanungo of the Collectorate", whose "report generally agrees with the claim submitted to the District Magistrate by the mill owners in their letter dated 13th October 1952". The letter goes on to say that the Company was entitled to receive fair and reasonable compensation by way of terminal compensation and finally directed the District Magistrate "to prepare an estimate of compensations' as admissible under the executive instructions relevant to the law in question, and "to submit the same to the Military Estate Officer, Dacca for payment of the amount to the Mill authorities." It was on the strength of this letter that the District Magistrate took the steps which resulted in his "final assessment" of rupees four lacs, as declared in his letter of the 3rd January 1955. That final assessment, however cannot be regarded as constituting, in any respect, compliance with the requirements of section 7 aforesaid. It was made by the District Magistrate, and no finality can be claimed for it, as compensation under section 7, unless it be established that it was agreed upon between the claimant on the one side and the Provincial Government on the other. The functions of agreeing as regards the amount of compensation was not one which the District Magistrate was competent to exercise; it could only be performed by the Provincial Government itself. There is nothing on the record to show that there was any accord between the claimant and the Provincial Government in regard to the amount of compensation. As has already been seen, there is nothing which can establish that there was agreement even with the District Magistrate as to the correctness of the amount. Mr. Fazal‑ur‑Rehman has referred us to a letter written on the 8th February 1953 by the Government of East Bengal to the Military Estate Officer Dacca, referring to the District Magistrate's letter of the 3rd January 1953 to which reference has already been made, and requesting "that the amount of compensation in question may be sanctioned and the necessary funds placed at the disposal of the District Magistrate for payment without further delay". He contends that reading this communication with the letter of the 27th November 1952 which has been referred to above, the conclusion should be reached that the Provincial Government had ratified the assessment of com pensation made by the District Magistrate, namely rupees four lacs.

We cannot conceive that a writ of mandamus to carry out the requirement of such an enactment as section 7‑B of the Act in question can possibly be issued on the basis of an inter pretation of several documents such as that which Mr. Fazal‑ur-Rehman has attempted to place before us. A contract may sometimes be construed out of a number of documents in the manner suggested, but a writ of mandamus does not issue for the enforcement of contracts. What should be established on the record in order to obtain a writ in this case is a clear agreement to which the Provincial Government should be a party on the Government side as against the private claimant, as to what the compensation for the requisition should be, stating a specified sum. Nothing of that kind appears on the record a unilateral assessment of compensation by the District legislature and although by the letter of the 27th November 1952 the District Magistrate was directed to forwarded his estimate to the Military Estate Officer for payment, that order is not a valid order under section 7. A proper order might have been that the estimate prepared by the District Magistrate should be sent to the Provincial Government, which in consultation with the Military Estate Officer would move to reach agreement with the private claimant, and if such an agreement had been reached, there would have arisen an immediate duty applicable to the District Magistrate to pay the amount agreed. Nothing of that kind appears and it is not therefore surprising that .the requests of the Government of East Bengal made to the Military Estate Officer for payment of a sum which was not valid com pensation in terms of section 7, was ignored. As to the plea of ratification, that is not one which can, in our opinion be canvassed in a case of the present kind in support of a claim for relief by the short‑handed method of a writ. It should properly be raised in a suit, for decision on the basis of evidence and in relation to issues drawn out of the pleadings. For a writ such as that claimed by the Company in the present case the only issue for the Court to consider is whether there is in existence any agreement entered into by competent parties which the District Magistrate is bound to honour and make payment accordingly. That issue must be firmly and clearly answered in the negative.

For these reasons we dismiss this appeal with costs.

A. H. Appeal dismissed.

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