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Letters Patent Appeal No. 5 of 1959, decided on 17th December 1959. ,
‑Entered into on behalf of Government‑To be enforceable, must be made in compliance with statutory provisions prescribing method by which such contract should be made--- Government of India Act, 1935, S: 175‑Constitution of Pakistan (1956), Art. 135.
When a statute provides a particular method by which a contract should be made, there must be compliance with the provisions of the statute. Section 175 of the Government of India Act, 1935, and Article.135 of the Constitution of Pakistan (1956) provide a particular method by which a contract should be made with the Government. Any contract with the Government, not made in accordance with the statutory requirements will not be enforceable.
Firm Babu Munir Gulam Sadiq v. North‑West Frontier Pro vince Government and others P L D 1955 F C 410 and H. Young & Co. v. The Mayor and Corporation of Royal Leamington LR8AC517rel:
Does not impose on Requisitioning Authority any duty to enter into contract with owner or occupier for purpose of requisitioning.
The East Bengal (Emergency) Requisition of Property Act, 1948 does not impose any duty on the Requisitioning Authority to enter into any contract with any owner or occupier of the property for the purpose of requisition. The Act gives extraordinary power to the Government to n requisition a property for public purposes. It .will, therefore, be absurd to suggest that simply because, in a particular case, the authority acceded to the prayer of the tenant of a requisitioned house to give him an alternative accommodation, they undertook an obligation to provide him with an alternative accommodation so long as the requisitioned house remained, under requisition. No such undertaking can be implied from the conduct of the Requisitioning Authority.
Raderiaktiebelaget Amohitrite v. The King L R 1921 3 K B 500 and Antonio Buttiagieg v. Captain Stephen H. Cross and others A I R 1947 P C 29 ref.
B. C. Das, and K. M. Subhan for Appellant.
Md. Jani Alam, Assistant Government Pleader for Respondent No. 1.
This appeal under Clause 15 of the Letters Patent is from the judgment and decree of our learned brother Chowdhury; J., in Second Appeal No. 183 of 1958. It arises out of a suit for a declaration; that the orders of the Provincial Government derequisitioning premises No. 63/1, Digbazar Road (hereinafter referred to as Digbazar house) and asking the plaintiff to vacate the said premises, were Illegal and without jurisdiction. The plaintiff also prayed for a permanent injunction restraining the Government from taking possession of the said premises.
2. The facts, which are not in dispute, are as follows : The plaintiff, Babu Nalini Kanta Roy, a practicing lawyer of the Court of the District Judge, Dacca, used to reside with his family in a rented house at 8/1, Zindabahar 1st lane (hereinafter referred to as Zindabahar house). On 8‑I 1‑47 Mr. A. M. A. Rouf, Teacher of Medicine, Dacca Medical School and Mitford Hospital, filed an application to the Accommodation Officer, Dacca requesting him to requisition Zindabahar house situated within three minutes' walk from the Medical School and to allot it to him. He also prayed for requisitioning Digbazar house for the purpose of giving an alternative accommodation to Babu Nalini Kanta Roy. The Kanungo, under order of the Accommodation Officer, enquired into the matter and reported as follows :
"The prayer of the applicant, who is a teacher of medicine, Dacca Medical School, Mitford Hospital, is quite fair and reasonable. The house at 8, Zindabahar is only three minutes' walk from the school. Both the houses may be requisitioned. The pleader occupant of 8, Zindabahar is agreeable to be provided with alternative accommodation at 63/1, Digbazar Road."
Along with the report, the Kanungo also submitted the following written undertaking of Babu Nalini Kanta Roy
"I am ready to quit the house in favour of Dr. Rouf in exchange of the holding No. 63/1, Digbazar being given po6ses sion of a due allotment in my, favour under Bengal Ordinance V of 1947.
On 10‑11‑47 the Additional District Magistrate passed orders requisitioning both the houses, namely; the Zindabahar house and the Digbazar house, and asked the Kanungo to take possession of the said houses. On 4‑11‑47, the Additional District Magistrate passed the following order :
"Seen the Kgo.'s report. Possession taken over by him on 11‑11‑47. Ask the pleader occupant of 8, Zindabahar 1st lane to give vacant possession of the house to' Dr. A. M. M. A. Rouf, B. M. B. M. S. (Upper) and shift to the house at 63/1, Digbazar Road which has been given him as alternative accom modation. Start allotment proceedings separately."
On 15‑11‑47 letters were issued allotting Zindabahar house to Mr. A. M. M. A. Rouf and Digbazar house to Babu Nalini Kanta Roy and they were asked to take possession of their respective houses. They then occupied the houses allotted to them. In other words, Roy shifted to Dighazar house from Zindabahar house and Mr. Rouf occupied the Zindabahar house.
3. In March 1952, pro forma defendant No. 2., Dr. Md. Ibrahim, purchased Digbazar house from the owner and at his instance the Estate Officer cancelled the allotment of the said house to Babu Nalini Kanta Roy and asked him to give vacant possession of the house to the purchaser. On the representation of Roy the said order of cancellation of his allotment was with drawn. On 7‑5‑56 ‑the Government again served the following notice on Roy cancelling his allotment
"It has been decided by 45overnment that the premises No. 63/1. Digbazar, Dacca should be derequisitioned and its vacant possession restored to the owner with effect from 1‑9‑56 on derequisition. In the meantime, the allottee should find out his own accommodation in a private house."
As Roy did not vacate the house, another notice was issued on 25‑5‑56 asking to vacate the house by 31‑8‑56 failing which possession would be taken by police force.
4. Roy then filed this suit under appeal challenging the legality of the orders dated 7‑5‑16 and 25‑5‑56. His case is that there was an agreement between him and the Government that, in the event of Zindabahar house which was then under his occupation being requisitioned, another house would be requisi tioned, to provide him with an alternative accommodation and that in pursuance of that agreement Digbazar house was requisitioned and allotted to him in exchange of the Zindabahar house. His further case is that still the Zindabahar house is not restored to him, he is entitled to remain in possession of Digbazar house. Hence, according to him, the order dated 7‑5‑56 derequisitioning Digbazar house and the order dated 25‑5‑56 asking him to vacate that house, were illegal, ultra vires and without jurisdiction.
5. The Government and the purchaser contested the suit. The Government denied the alleged agreement. According to them, the plaintiff was allotted Digbazar house on compassionate grounds and not on the basis of any contract. It was further contended that the order for derequisition and the order asking the plaintiff to vacate the house which were made in good faith are in accordance with law.
6. The learned Munsif held that ha got possession of the Digbazar house on the basis of an agreement of exchange of the Zinda bahar house and hence he dismissed the suit.
7. On appeal by the plaintiff, the District Judge, Dacca upheld the findings of the learned Munsif and dismissed the appeal.
8. The plaintiff then took a second appeal to the High Court Chowdhury, J. who heard this second appeal, came to the con clusion that the plaintiff was given possession to Digbazar house in lieu of exchange of Zindabahar house and that this was a valid agreement. As however the agreement was not executed in conformity within the requirements of section 175 of the Govern ment of. India Act, 1935 or Article 135 of the Constitution, he held that it was not enforceable in law. Hence he dismissed the appeal.
9. The plaintiff has tried to establish an agreement of exchange between him and the Government from the following facts : ‑
(1) That Mr. Rouf applied to the Accommodation Officer for requisition of Zindabahar house and Digbazar house.
(2) That the Kanungo reported that the pleader occupant of Zindabahar house was agreeable to vacate his house provided he was given an alternative accommodation at Digbazar house. The Kanungo also filed an undertaking from the plaintiff to that effect.
(3) That thereafter the orders were passed for requisition of both the houses at Digbazar house was allotted to him as an alternative accommodation.
10. Mr. Das, the learned Advocate for the appellant, has, therefore, contended that there was an agreement of exchange between the Government and the plaintiff to the effect that if Government requisitioned the house occupied by the plaintiff, they would provide him with an alternative accommodation. We have really failed to appreciate how the above can be regarded as contractual agreement between the Government and the plaintiff. The Accommodation Officer had two proposals before him, one for requisition of the Zindabahar house and another for requisition of Digbazar house. The Kanungo submitted a report to the effect that the occupant of Zindabahar house had no objection to the. proposal provided Digbazar house was alloted to him. Along with the report an undertaking from the occupant of Zindabahar house, i.e., Roy to the effect that he was ready to quit Zindabahar house in exchange to Digbazar house was submitted , to the Accommodation Offcer. Thereafter, the Additional District Magistrate ordered for requisition of both the houses and allotted Digbazar house to Roy and Zindabahar house to Mr. Rouf. The Said Magistrate requisitioned the houses under the provisions of the East Bengal (Emergency) Requisition of Property Act, 1948 The Act gives extraordinary power to the Government to requisition a property for public purposes. It will, therefore, be absurd to suggest that simply because the authority acceded to the prayer of the tenant of Zindabahar house to give him an alternative accommodation, they undertook an obligation to provide him with an alternative accommodation so long as Zindabahar house would remain under requisition. Nor such an undertaking can be implied from the conduct of the said authority. Hence, in our opinion, really there was to basis for such an agreement as alleged by the plaintiff.
11. At the most, the plaintiff may say that he left the Zindabahar house on the assurance of the Requisitioning Authority that he would be provided with an alternative accommodation and in pursuance of that assurance he was given another requisitioned house. This also cannot be regarded as a contractual agreement.
12. In this connection, reference may be made to the case of Raderiaktiebelaget Amohitrite v. The King (L R 1921,3 K B 500). In the above case, at the time of First Great War, a Sweden ship was prevented from leaving British Port by executive order of the British Government. Previously the British Government had by art authorised agent given an assurance to the owner of the ship that the ship would be allowed to release herself on her next voyage to the United Kindom. The Company, therefore, moved a petition of right against the Government for breach of the Government's undertaking. The Government's contention was that the undertaking did not amount to enforceable contract.Rowlatt, J. observed
All I have got to say is whether there was an enforceable contract, and I am of opinion that there was not. No doubt the Government can bind itself through its officers by a com mercial contract, and if it does so it must perform it like anybody, else or pay damages for the breach. But this was not a commercial contract it was an arrangement whereby the Government purported to give an assurance as to what its executive action would be in the future in relation to a particular ship in the event of her coming to this country with a particular kind of cargo. And that is to my mind, not a contract for the breach of which damages can be sued for in a Court of law. It was merely an expression of intention to act in a particular way in a certain event. My main reason for so thinking is that it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State."
13. A similar question arose in the case of Antonio Buttiagleg v. Captain Stephen H. Cross and others (AIR 1947 P C 29). The plaintiff, acting on certain assurances given by the Military Authority in the Island of Matta, had undertaken to rent premises and to fit them up for use as a Club for members of the Armed Services. The Club which was opened in 1941 was declared to be out of bounds for the Armed Services in 1942 with the inevitable result that it was closed down. The plaintiff awed for damages contending that there was an implied contract that the club was to be allowed to run during the War. Their Lordships observed
In their Lordships' view, no contract whatever is proved to have existed between the appellant and H. Q., nor was any such contract ever contemplated. The passage in the plaintiff's evidence quoted above and relied on by the appellant and em bodying the contract, even assuming it represented the actual words used, conveys an intention, which undoubtedly existed in the minds of all parties, and not a contract by H, Q.
The above observations were quoted with approval in the case of Firm Babu Munir Gulam Sadiq v. North‑ West Frontier Province Government and others (P L D 1955 F C 410). It is thus manifest that the assurance or undertaking in this case also did not amount to an enforceable contract.
14. If it is assumed that there was a contract between the plaintiff and the Requisitioning Authority, even then the plaintiff was not entitled to enforce the said contract. The alleged contract was between the plaintiff and the Additional District Magistrate who issued the requisition order. Hence the question would be: Had the Additional District Magistrate power to enter into such a contract Mr. Das has contended 'that the agreement was binding on the Government because it was entered into by a person properly authorised by. Government. In support of his conten tion, he has relied on section 15 of the East Bengal (Emergency) Requisition of Property Act, 1948 which runs thus
"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."
This section authorizes delegation of function, imposed by the Act. In order to appreciate the function of the Requisitioning Officer, it will be necessary to look to the scheme of the Act. This Act provides for special form of property in connection with the administration and development of the Province. The Act em powers the authority to requisition a property for the purpose specified in section 3 of the Act; even against the wishes of the owner or occupier of the said property. In other words, the likes or dislikes of the owner or occupier have no basis whatsoever for such requisition. Section 4 speaks of service of order of requisition. Section 5 provides for publication of notices of requisition. Sections 6 and 7 deal with the compensation payable by the Government. It is thus manifest that the Act does not impose any duty on the requisitioning Authority to enter into any contract with any owner or occupier for the purpose of requisition. Hence section 15 does not help the plaintiff.
15. It will not be out of place to mention rule 10 o' the Rules for the conduct of the business of the Government of East Pakistan.
The said rule is as follows :‑
"Save in cases where an officer has beer specially empowered to sign orders or instruments of the Government of East Pakistan every such order or instrument shall be signed by either a Secretary, an Additional Secretary, a Joint Secretary, an Additional Joint Secretary, a Deputy Secretary, an Additional Deputy Secretary, an Under Secretary, an Additional Under Secretary, an Assistant Secretary or an Additional Assistant Secretary to the Government of East Pakistan and such signature shall be deemed to be the proper authentication of such orders or instruments."
16. From the above rule, it is also clear that the Additional District Magistrate had no authority to enter into any such contract on behalf of the Government. Furthermore, there was no formal agreement between the plaintiff and the Government. In other words the agreement between the plaintiff and the Govern ment did not comply with the requirements of section 175 (3) of the Government of India Act, 1935 which was in force when the alleged agreement was made. The said section 175 (3) of the Government of India Act runs thus :‑
"Subject to the provisions of this Act with respect to the Federal Railway Authority, all contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made by the Governor‑General, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor -General or Governor by such persons and in such manner as he may direct or authorise."
The statute, therefore, provides a particular method by which a contract should be made with the Government. In this case no formal document was executed. The plaintiff has merely relied on the assurance given by the Accommodation Authority. The Government, however, is not bound by the said assurance as it, was not expressed to be made by the Governor. It is well‑settled that, when a Statute provides a particular method by which a contract should be made, there must be compliance with the provisions of the Statute See H. Young & Co. v. The Mayor and Corporation or Royal Leamington LPA (LR8AC517) and Province of Bengal y. S. L. Furl (2). It is thus clear that the alleged agreement is not also in accord with the statutory requirements laid down in section 175 (3) of the Government of India Act.
The appeal, therefore, fails and is accordingly dismissed.
Having regard to the facts and circumstances of the case, we order that each party will bear its own costs throughout.
---‑I agree.
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