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Writ Petitions Nos. 162, 163, 185, 187 and 188 of 1961, decided on 27th March, 1962.
New grounds, not raised in original petition Sought to be raised by affidavit‑Not entertained‑Constitution of Pakistan (1956), Art. 170.
S. 4‑Contemplates service of notice conveying orders of requisition "already" passed, not service of the original order itself.
Facsimile signature‑Rubber‑stamp replica of signature‑Recognised method‑Document bearing such stamp deemed in law to be "signed".
Petition challenging requisition of property‑Amount of compensation‑Plea that petitioners be allowed to stay in their lands ‑Question not to be gone into in writ proceedings‑Constitu tion of Pakistan (1956) Art. 170.
Two years‑Excuse: repeated representations to Requisition Authorities‑Not condoned‑Constitution of Pakistan (1956) Art. 170.
M. Moazzem Hossain for Petitioners in all cases.
Moksumul Hakim, Advocate‑General with Md. F. Karim in Writ Petition 162/61, T. H. Khan in Writ Petition 163/61, A. T Sadi Writ Petitions 185/61 and 187/61, and K. M. Subhan in Writ Petition No, 188161 for Respondents in all cases,
‑Rule Nisi in each of these cases was issued upon the respondents to show cause why a writ of mandamus or an appropriate writ of like nature should not issue directing them to cancel, recall or rescind the orders of requisition passed on different dates by the Additional Deputy Commissioner Dacca.
2. The petitioners are residents of Senpara harbot a mouza within Police Station Tejgaon, District Dacca and owned and held in different plots lands mentioned in their respective peti tions. These lands, according to them, comprised also on their ancestral homesteads on which they have been living with their respective families. They have however been served with notices purported to be orders requisitioning the said lands and homesteads of theirs for the purpose of setting up a satellite town at Mirpur. It is said that, though the purpose is said to be the setting up of a satellite town, the requisition is in fact meant to rehabilitate the refugees, and that, although applications have been invited from the displaced families for allotment of lands in the requisitioned area, price has been demanded at Rs. 14,000 per bigha, whereas the corresponding compensation paid to them works out at about Rs. 400 per bighu. The petitioners' complaint is that if they are ejected from their homesteads, they will be rendered homeless having neither means nor lands or at any rate suitable lands to rehabi litate themselves, and that this having the effect of displacing one family for the rehabilitation of another will really frustrate the purpose for which the requisition is purported to be made.
3. In the affidavit‑in‑opposition filed on behalf of the respondents by respondent No. 4, the Land Acquisition Collector, Dacca it has been asserted that the lands in question have been requisitioned in the public interest for the public purpose men tioned in the notices, namely, the setting up of a satellite town for providing accommodation to the refugees as well as others with a view to alleviating the misery suffered by the people in general in the capital town in regard to living accommodation. The requisitioned area is proposed to be developed in a planned manner and provided with the basic amenities of modern community life where after the residential plots of suitable sizes will be allotted to deserving applicants at the rates corres ponding to amounts of compensation paid therefore together with proportionate costs of development without any profit. For such allotment applications have also been called from those whose lands have been affected by the impugned requisition f and their case will be considered along with others depending on their genuine need.
4. At the hearing, Mr. Moazzem Hossain, the learned Advo cate for the petitioners, wanted to put in a supplementary affidavit attacking the validity of the notices served upon the peti tioners. The affidavit was sought to be put in raising some new grounds which were not taken in the original petitions and we therefore could not see our way to accept t4 same at this belated stage.
5. The learned Advocate, however, was allowed to can vass the point on the basis of the materials already on record. According to him, the orders that have been served upon the petitioners in these cases are not orders which are required to be served under the provisions of section 4 of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter called the Act). According to the learned Advo cate, section 4 of the Act contemplates that when an order is passed under section 3 the order in original has to be. served upon the owner. We have given our anxious consideration to this contention and the two judgments in this connec tion by two Division Benches of this Court in the case of Kumudini Welfare Trust of Bengal v. The Province of East Pakistan (P L D 1959 Dacca 417) and Dr. Azizul Islam v. The Province of East Pakistan (P L D 1962 Dacca 368). Section 4 provides that when an order of requisition has been made under section 3, it shall be served on the owner. It goes on then to say that the order shall be served on the owner personally by delivering or tendering the same to him or where the owner cannot be found it shall be served by leaving "an authentic copy" of the order with some adult male member of the family of such owner, or and, if no such adult male member can be found, then "the notice" may be served by affixing "such copy to some conspicuous part of the premises in which he (the owner) is known to have last resided or carried on business or per sonally worked for gain and also by affixing another such copy to some conspicuous part of the requisitioned property". It is evident from the above provisions that at least in the case of service on an adult male member in the absence of the owner, the service of an authentic copy is sufficient. The learned Advocate has argued that in case however service is affected on the owner personally or by tendering to him, the original order has to be served. We are afraid this can never be the meaning of section 4. We have no hesitation in holding that the intention is that the service of the order on the owner personally or by tendering to him does not refer to any thing other than an authentic copy as in the case of service on an adult male member of the family of the owner on when service is affected by affixing. We cannot persuade our selves to think that in two cases service of copies will serve the purpose but in two other cases the original order has to be served. Such a conclusion cannot be countenanced for the simple reason that, if by one consolidated order properties of 1,200 persons are requisitioned, the officer passing the order will be required to sign each and every form concerning the requisition. The form has been prescribed for apprising the owner of the order already passed up that he can seek his legal remedies against the order and possession be taken of the property as provided in subsection (2). There is no other purpose behind the provision in section 4 and we do not see how it can be said that the failure to serve an original order signed by the officer concerned vitiates the whole proceedings. Rule 3 of the rules framed under the Act can have no refer‑ Hence to any thing other than the form for service of notice because the order of requisition is based under section 3 for which no form can be prescribed by rules framed under the pro visions of section 18 of the Act, To our mind, section 4 Con templates nothing more than service of a notice conveying the order already passed under section 3 of the Act because, other wise, we shall be forced to the conclusion that the two sections taken together require that two orders of requisition have to be passed. If however from the notice served and other materials placed it is found that there has been no proper application of the mind by the officer passing the order, which we are satisfied is not the case here the matter takes a differ ent turn.
6. Next comes the question of service of an order with facsimile stamp Mr. Moazzem Hossain contends that the service of such a notice is in clear contravention of the provi sions of section 4 of the Act. So far as we know, this is one C of the recognized methods of signature. When the rubber stamp replica of a signature is put to a document, it is in law a document signed by the person, the facsimile of whose signature the rubber stamp contains. The danger of the use of the facsimile stamp however is the opportunity it affords for fraud. But if there is an original order passed by an officer authorised to act under the law and if copies of such order are prepared over facsimile stamps for service, we do not think the service of such copies can be said not to be in accordance with the provisions of section 4 of the Act.
7. It has then been argued that the compensation that is payable to the petitioner as compared with the price charged from them for allotment of lands is disproportionate inas much as the petitioners will be paid at the rate of Rs. 400 per bigha whereas price at the rate of Rs. 14,000 per bigha will be charged when land is allotted to them. We do not see how this is a question which can be gone into in determining whether these requisitions have been validly made by the Additional Deputy Commissioner. If the law that has fixed the compensa tion cannot be said to be ultra vires which is not the case of the petitioners before us, we do not see how we can enter into this D question.
8. The next point canvassed before us is that, since lands have been requisitioned in these cases for the purpose of setting up of a satellite town where lands will be available to individual persons for building purpose, the scheme can b given effect to without disturbing the homesteads of the present petitioners. We are afraid this again is a question which cannot be gone into by this Court in these proceedings. We cannot decide whether the scheme will have any adverse effect if the properties of the petitioners are left untouched. We, therefore, find no substance in this contention also of the learned Advocate.
9. These writ petitions, we find, were filed after a lapse of about two years except in the case of Writ Petition No. 185/61. There is no sufficient explanation for this long delay. The only statement that we find in these petitions is that the petitioners made repeated representations against the requisition order to the Governor, Chairman, Dacca Improvement Trust and Com missioner Housing and Settlement, Secretary, Revenue Depart ment, District Magistrate and Land Acquisition Collector. Dacca. These facts are hardly sufficient to justify this long) delay.
We, therefore, see no ground to hold that the orders of requisition in these cases are bad.
The result, therefore, is that these Rules are discharged.
Having regard, however, to the facts of this case, we direct each party to bear its own costs.
A. H.
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