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Writ Petition No. 145 of 1957, decided on 4th January, 1958.
Art. 170‑Questions of fact‑Cannot be legitimately gone into in writ proceedings.
Questions of fact cannot be legitimately gone into in a petition under Article 170 of the Constitution of Pakistan (1956). Proceedings in a petition under Article 170 of the Constitution are by their very nature of a summary character. It is, therefore, incumbent upon the party applying for a writ to show that he has a clear legal right, and that the right to its performance is so clear as not to admit of a reasonable doubt or controversy. Seriously disputed questions of fact cannot be satisfactorily determined in this summary proceeding where the only evidence relied upon consists of pleadings of the parties, their affidavits and certain documents produced by them. The question that there was no proper service of notice in the requisition proceedings is not capable of being established in a writ proceeding.
S. 3‑Notice not specifying particular purpose for which property was being requisitioned‑Omission not fatal so long as public purpose is established to the satisfaction of Court.
In order to make an order of requisition valid, it is not necessary to set out the purpose of the requisition in a notice under, the East Bengal (Emergency) Requisition of Property Act, 1948. A purpose and a public purpose must undoubtedly be made out to the satisfaction of the Court, if the order is to be upheld as valid, but if such a purpose is proved to the satisfaction of the Court in some other way, the order cannot be impugned as invalid for the mere reason that the purpose was not specified in it.
Satya Narayan Nathani v. 'State of West Bengal and another A I R 1957 Cal. 310 (313) and State of Bombay v. Bhanji Munji A I R 1955 S C 41 (45) rel.
Radharaman Das and another v. The State of West Bengal and others 91 C L J 347 (352) and State of Bombay v. Mohanlal Kapur A I R 1951 Bom. 404 ref.
‑Intra vires of the powers of Provincial Legislature.
Art. 170‑Person invoking a special jurisdiction of Court must act expeditiously‑Writ of mandamus.
A person invoking a special jurisdiction of the Court for an extraordinary relief should be diligent. A writ of mandgmus can be issued at any time but a petitioner coming to the Court for the issue of a writ of mandamus must come with due expedition or give a satisfactory explanation for the delay in making his application praying for a speedy relief under Article 170 of the Constitution (1956).
Asrarul Hossain, Baarul Hyder Chowdhury and B. C. Panday for Petitioner.
B. A. Siddiky, Advocate‑General, and A. Hye Chowdhury for Respondents.
.‑This is a petition under Article 170 of the Constitution for issue of a writ of mandamus or any other appropriate writ.
2. The petitioner is owner of C. S. Plots Nos. 694, 696 and northern portion of Plot No. 692 of Mauza Dhanmandi. In January 1957, the Government in Land Acquisition Case No. 37 of 1955‑56 issued notices under the East Bengal (Emergency) Requisition of Property Act, 1948, for requisition of a part of the said Plots Nos. 692, 694, and some other plots. On 5th February 1957, the Government took possession of the requisi tioned plots.
3. The petitioner is now challenging the requisition of a part of his Plot No. 692. His case is that he had not received any notice of this requisition, that in 1957 he, after obtaining necessary approval of the Chief Engineer, started constructing a building on the aforesaid plot, that on receipt of a memorandum, dated 7th September, 1957, from the Executive Engineer of the Govern ment to the effect that his building had encroached upon the requisitioned land, he came to know for the first time that a strip of land from Plot No. 692 had been requisitioned by the Govern ment in January, 1957, and that in spite of his representations to the Chief Engineer and to the Minister, the Executive Engineer with the help of 300 police‑men demolished the construction from the alleged requisitioned land on 28th September, 1957. Hence, he moved this Court and obtained a Rule calling upon the respondents to show cause why a writ of mandamus or any appropriate writ should not issue directing the respondents to recall the order of requisition, dated 21st January, 1957. Curiously enough, he did not challenge the requisition of C. S. Plot No. 694 which adjoins Plot No. 692.
4. It was contended, in the first place, that the notice of requisition was not served on the petitioner in accordance with the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter referred to as the Act). His case is that his permanent address is Babupura, Dhanmandi, which is only a few yards away from the requisitioned land, but the notice was sent to some other address. In the notice of requisition, the following persons were named as owners of Plot No. 692: (1) Mr. Nur Hussain (the petitioner), (2) Md. Ismail, (3) Md. Yusuf, all sons of Munshi Ibra him, (4) Habibunnissa, and (5) Alimunnissa, and their addresses were given as Rajar Dewri, Dacca, and Khaje Dewan 2nd Lane, Dacca. The peon's return shows that the notice was accepted by Yusuf, a brother of this petitioner. The learned counsel has contended that the petitioner separated from his brother long ago, and hence he had no authority to accept the notice on his behalf. In support of his contention, he has drawn our attention to a kabala, which is annexure G' to his affidavit‑in‑reply. By this kabala, Mst. Khatun Hadi sold to Pakistan Peoples Picture' some lands appertaining to Mouza No. 251 of Dhanmandi. In tht said kabala. it was recited that the lands originally belonged to Munshi Ibrahim, and, on his death, it was inherited by his three sons and two daughters, and, thereafter, Nur Hussain (the present petitioner) brought a Partition Suit, No. 3 of 1947. in the 3rd Court of Subordinate Judge, Dacca, and the kabala‑land fell in the share of Md. Ismail and Md. Yusuf, who in their turn sold it to Mst. Khatun Hadi. It, however, appears from the affidavit‑in‑opposition affirmed by Mr. Azizur Rahman, Executive Engineer, that two notices were issued in the Land Acquisition Case No. 37 of 1955‑56, one for requi sition of Plot No. 692, and another for requisition of a part of Plot No. 694 of Mouza Dhanmandi. As already stated, the above notice for requisition of Plot No. 692 was accepted by petitioner's brother Yusuf. In the notice for requisition of a part of Plot No. 694, only the name of the petitioner appears, because he is the full owner of that plot, and his address therein is given as Babupura, Dhanmandi, that is the address which appears in the petition before us. The petitioner does not say anything about the non‑receipt of the notice regarding Plot No. 694. Though reference to it was made in the affidavit-in‑opposition, he does not clearly say that he had not received this notice. We are, therefore, inclined to thins; that this notice was properly served on him. It further seems to us that he has not filed any application in respect of Plot No. 694, because it would have been difficult for him to assert that he had not received any notice with regard to the requisition of the said plot. Hence these facts lead us to think that he had full knowledge about the requisition proceedings in Land Acquisition Case No. 37 of 1955‑56. This conclusion is further strengthen ed by the fact that in his application or affidavit‑in‑reply he has nowhere stated that he had no knowledge of this requisition pro ceeding.
5. Now, the questions that the petitioner lives separately from his brother, that his brother had no authority to accept the notice on his behalf, and that he had no knowledge of the delivery of possession which was given in the requisition case, are questions of fact and cannot be legitimately gone into in a petition under Article 170 of the Constitution. In a petition under Article 170, this Court will generally not enter into dis puted facts to ascertain which version is correct. Some Courts have gone so far as to say that where facts are disputed the Court would not exercise its jurisdiction under Article 170. Pro ceedings in a petition under Article 170 of the Constitution are by their very nature of a summary character. It is, therefore incumbent upon the party applying for a writ to show that he has a clear legal right, and that the right to its performance is, so clear as not to admit of a reasonable doubt or controversy. Seriously disputed questions of fact cannot be satisfactorily determined in this summary proceeding where the only evidence relied upon consists of pleadings of the parties, their affidavits, and certain documents produced by them. On the facts of this case, we are of opinion that the question that there was no proper service of notice in the requisition proceedings is not capable of being established in this summary proceeding. On careful con sideration of whatever materials have been produced, we are inclin ed to think that tire petitioner has failed to establish that the service of notice was not proper. Furthermore, in view of the service of notice with regard to Plot No. 694 which is not dis puted in this case, we are inclined to think that, in any event, he had knowledge of this requisition proceeding.
6. The second point taken on behalf of the petitioner is that the notice was ex facie bad, because it did not specify the particular purpose for which the property was being requisition ed. In support of this contention, the learned Counsel has relied on the following observations of Sinha, J., in the case of Radharaman Das and another v. The State of West Bengal and others (91 C L J 347 (352)):
"The existence of a public purpose' being justiciable, the question arises whether the notice under section 3 (1) of the West Bengal Act ought to have specified the particular public purpose for which the property was being requisitioned. It is argued that there is nothing in the Act or the Constitution which makes it necessary to mention the public purpose in the order. It is sufficient if the public purpose exists in fact, and it would be quite enough if the purpose was brought to the notice of the Court, which was examining the same. In this case, this argument is of no avail, because the order was made by the Governor, and signed on his behalf by respondent No. 2, neither of whom has given any indication as to what the public purpose was."
In coming to the above conclusion, the learned Judge relied on the following observations of Chagla, C. J., in State of Bombay v. Mohanlal Kapur (A I R 1951 Bom. 404). In that case, Chagla, C. J., observed as follows:
"It is clear that the very foundation of the power of the State to requisition premises is the existence of a purpose of the State or any other public purpose. It is also beyond dispute that the purpose of the State or any other public purpose is not a purpose which in the opinion of the State satisfies the qualifications laid down in the Statute. Whether a particular purpose is a purpose of the State or any other public purpose is a justiciable issue, and the Court may investigate into the purpose for which the State has requisitioned a particular property. If the Court is satisfied that the purpose for which the requisition was made was not a purpose of the State or any other public purpose, then it would be open to the Court to say that the order was made without the condition precedent being satisfied."
7. I agree with the learned Judge that the Government should specify the particular purpose in the notice, but if the learned Judge meant to say that non‑mention of public purpose in the notice will make the requisition bad, I am unable to sub scribe to that view. The Appellate Court of the Calcutta High Court, while considering similar observations of Sinha, J., in Satya Narayan Nathani v. State of West Bengal and another (A I R 1957 Cal. 310 (313)), observed:
"It has, however, now been finally decided by the Supreme Court in the case of State of Bombay v. Bhanji Munji, A I R 1955 S C 41 (45) and in the earlier case of Biswabhusan Naik v. State of Orissa A I R 1954 S C 359, that in order to make an order of requisition valid, it is not necessary to set out the purpose of the requisition in the order itself. A purpose and a public purpose must undoubtedly be made out to the satis faction of the Court, if the order is to be upheld as valid, but if such a purpose is proved by the facts established in the case, which may properly be done, the order cannot be impugned as invalid for the mere reason that the purpose was not specified in it."
In the State of Bhanji Munji and another, Bose, J., observed:
"But in itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the Court in some other way. The underlying principle bf our‑‑decision in Biswabhusan Naik v. State of Orissa applies here."
In our opinion, the law has been correctly enunciated by the Supreme Court of India in the above case, and hence we overrule t this contention of the learned counsel.
8. The learned counsel has next contended that the Act itself was ultra vires of the Constitution, I had occasion to consider the question of vires of the Act in the case of Ajit Kumar Das v. Province of East Pakistan and another (P L D 1958 Dacca 280). There I held that Moslehuddin Ahmed Khondakar's case (6 D L R 450) was correctly decided, and the Act was intra vires of the powers of the Provincial Legislature. I understand that an appeal against my decision' in Ajit Kumar Das's case has been dismissed by the Supreme Court. I, therefore, do not deal with the question further.
9. The learned counsel has next attempted to show that the order of requisition was not passed under a valid Act. He has drawn our attention to the following facts : The original Act came into force in 1948, and it was to remain in force for 3 years. When the life of this Act was drawing to a close, it was kept alive by Ordinance XI of 1951. The Legislative Assembly met on 17th October, 1951. On 5th November, 1951, they passed the East Bengal Expiring Laws Act, 1951 (Act XXXVIII of 1951). The said Act received the assent of the Governor‑General on 2 rd December, 1951. The learned counsel has, therefore, argued that the Ordinance, having not been passed into an Act within six weeks of the meeting of the Legislature, the Governor- General's assent given after six weeks could not bring the Ordi nance into life.
10. We are unable to accept this contention. It is really regrettable that the learned counsel has not taken the trouble to study the various Acts by which the East Bengal (Emergency) Requisition of Property Act, 1948, was kept alive, and we had to take the trouble(of finding it out ourselves. The original Act was passed on 16th August, 1948, and it was to remain in force for 3 years. When the life of the Act was drawing to a close, Ordinance XI of 1951, was passed. The Legislative Assembly then passed the East Bengal Expiring Laws Act of 1951, and section 3 of the said Act provides:
" The provisions of each of the Ordinances specified in Schedule II shall be deemed to be enacted by this Act and shall have effect and shall continue to operate, as such, until the 31st day of October, 1952, from the date of which the said Ordinances by virtue of clause (a) if subsection (2) of section 88 of the Government of India Act, 1935, cease to operate."
Ordinance XI of 1951, was mentioned in Schedule II of the said Act. On 10th October, 1952, the Legislative Assembly passed the East Bengal (Emergency) Requisition of Property (Amendment) Act of 1952, and the life of the Act was extended from 3 to 6 years, i.e., till 16th August, 1954. In July, 1954, the life of the Act was further extended for another three years by the East Bengal (Emergency) Requisition of Property (Amendment) Act of 1954, (East Bengal Act III of 1954). Hence, it is evident that the present requisition order was passed in accordance with the provisions of the Act of 1948 as amended by the Act of 1954. The learned counsel has not been able to assert that the last Amendment Act of 1954, was not properly passed. We may further observe that we are also unable to accept the contention of the learned counsel that the Expiring Laws Act of 1951, did not properly keep alive the Act of 1948. All that could be said is that as the Ordinance was passed into an Act after six weeks, there was an interregnum during which the Act was not in force: but it cannot be said that the Act was bad. In any event, the vacuum was filled by the provisions of section 3 of the Act itself, which we have quoted above. Hence, we are unable to accept the contention of the learned counsel that the order eras passed under an invalid Act.
11. The learned counsel also attempted to show that this acquisition was not for a public purpose, but for providing vacant space Cinema called "Pakistan Peoples Picture". This the Government has denied. Mr. Azizur Rahman, the Exe cutive Engineer, has stated in paragraph 4 of his affidavit‑in‑op position:
"For building up a strategic road of public importance in connection with the defence of the country, the road was to be built up from the junction of Nilkhet‑Mirpur to Aricha, commonly known as Dacca‑Aricha Road, about 55 miles in length. The proposed road was to be of width 120' for about 1 and a half miles commencing from the junction of Nilkhet‑Mirpur towards north, and, thereafter, of the width of 200'. For expansion of the said road, the land on either side of the road had to be requisitioned and acquired. From a point about of a mile from the Nilkhet‑Mirpur Road towards the north for about 1 miles, lands were already acquired for the expansion of the road to a width of 120' as aforesaid. For of the mile commencing from Nilkhet Mirpur Road, lands of a width of about 60' was previously acquired by the Provincial Government, which together with the original road of 30' would make a road of 90' width. In order to make a road of 120' width therefrom, additional land of width of 30' was to be acquired. Be sides, where the Elephant Road meets the Dacca‑Aricha Road, an extra width of road is essentially necessary. Similarly, an extra width of road was necessary at the Nilkhet Mirpur junction itself. In consideration of the above, the Provincial Government decided to acquire additional land of 30' width on the eastern side of the Mirpur Road begin ning from the junction of Nilkhet‑Mirpur Road. It was thus that on the 9th April, 1956, the Provincial Govern ment sent the proposal to the District Magistrate, Dacca, for requisition and acquisition of lands from New Market to the Elephant Road crossing, which gave rise to the Requisition Case No. 37 of 1955‑56."
The petitioner in paragraph 4 of his affidavit‑in‑reply does not seriously dispute the above statement of the Executive Engi neer ; but his grievance seems to be that the other buildings on the same side of the road have not been requisitioned, and hence he has contended that this requisition of a part of his plot is mala fide. From the possession certificate in the Land Acquisi tion Case No. 37, which is an annexure to the affidavit‑in-opposition, it appears that Plots Nos. 686 and 687 were also acquired by the Government. The Government has left out a big Cinema Hall standing on Plot No. 688. This has led the petitioner to think that the Government has made discrimina tion in the matter of acquisition. He has, therefore, suggest ed that this acquisition was made to provide additional space for the Cinema Hall. On a perusal of the affidavits as well as the records of the Requisition Case, we are satisfied that these allegations are without any substance. The learned Advocate- General has stated that the Cinema Hall was constructed at a huge expense in 1955, and the acquisition of the same at pre sent would have meant payment of a very large sum as com pensation. He has, however, pointed out that, if necessary, the Government will not hesitate to acquire the plot on which the Cinema Hall is situated. In short, we have no reason to doubt the statement of Mr. Azizur Rahman, the Executive Engineer, that the land of this petitioner was acquired for widening of the strategic road which was obviously a public purpose.
12. The learned counsel has also attempted to argue that the Government has taken possession of more land than they were entitled to do under the requisition proceedings. No such case was, however, made out in the petition or in the affidavits. The petitioner's case was that this acquisition was mala fide. Hence, we are unable to enter into the question whether the Government has really acquired more land than they were entitled to do.
13. Lastly, we may observe that this application was filed on 12th October, 1957. Having regard to the facts and circum stances of the case, we have come to the conclusion that the petitioner had knowledge of the Land Acquisition Case No. 37 of 1955‑56, at least in January, or February, 1956. He has really not given any satisfactory explanation for coming so late to the Court. A person invoking the Special Jurisdiction of the Court for extraordinary relief should be diligent. Hence, we also think that this application was filed after an inordinate delay.
14. For the reasons stated above, we are of opinion that the petitioner in this case is not entitled to any relief by way of a writ of mandamus, as prayed for by him the application, therefore, must be dismissed.
15. The Rule is accordingly discharged with costs which is assessed at fifteen Gold Mohurs.
.‑I agree. Speaking for myself, I would reject the petitioner's application on the ground of laches on his part. The order of requisition was made on the 21st of January 1957, and possession of the disputed land was taken on the 5th of February, 1957. For reasons which have already been stated by my learned brother, I hold that the petitioner had full know ledge of the requisition at the time when it was made. The petitioner has come to this Court alleging that the requisition was invalid. He has not stated that be was not aware of the requisition. He has also given no explanation for the inordi nate delay in moving this Court. The petitioner, in fact, has come to this Court after about nine months from the date of the requisition. A writ of mandamus can be issued by this Court at any time ; but, when a petitioner makes such an inordinate delay in coming to this Court, as be has done in the present case, I do not feel satisfied that he could not have pursued his ordinary remedy by way of a suit. A petitioner coming to this Court for the issue of a writ of mandamus must come with due expe dition or give a satisfactory explanation for the delay in making his application praying for a speedy relief under Article 170 of the Constitution.
K. B. A. Petition dismissed.
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