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Writ Petitions Nos. 215, 216, 217, 218, 223, 224 and 225 of 1961, decided on 26th February 1962.
East Bengal Emergency Requisition of Property Act (XIII of 1948), Ss. 3 & 4‑Act contemplates valid requisition dependent on special reasons therefore, followed incidentally by acquisition Requisition is colour-able if object is acquisition simpliciter‑Passing an order and signing an order‑Bifurcation not allow-able Requisitioning authority to apply mind independently.
T. Ali, Md. Mozammel Huq and H. K. Chowdhury for Petitioners.
Maksumul Hakim, A.‑G. with B. H. Chowdhury in Writ Petitions Nos. 215 and 218 for Respondents 1 to 4.
S. M. Abbas in Writ Petitions Nos. 216, 217 and 223.
A. W. Mallik in Writ Petitions Nos. 224 and 225.
‑These seven writ petitions were all heard together by us and in as much as the facts in respect of these are substantially the same and the points involved are identical, this judgment will dispose of all the said applications.
2. The petitioners in these applications claim to be owners of certain plots of land which have been requisitioned by an order dated the 12th of July 1961, passed in L. A. Pre. Case No. 79 of 1960‑61 by an Additional Deputy Commissioner of Chittagong and signed by a Land Acquisition Deputy Collector. The petitioners obtained these Rules nisi from this Court calling upon the respondents to show cause as to why a writ of mandamus or any other appropriate writ in each case should not issue direct ing them to cancel or withdraw the impugned orders.
3. The properties involved in these applications are situated in the town of Chittagong and they constitute a self contained habitation of a large number of persons who have their houses, cultivable land, grave‑yards, including public grave yards, and mosque therein. It appears that a jute mill was proposed to be set up under the name and style of Hafiz Jute Mill, sponsored by the Pakistan Industrial Development Corporation (hereinafter called the P. I. D. C.) and the petitioners lands were required to be acquired for the said Jute Mill owned by a private proprietor.
4. Before we discuss the various averments in the affidavits that have been filed before us, we would set out the facts which appear from the records of this case. The impugned orders of requisition and acquisition originated from a letter, dated the 26th of January 1961, addressed by a senior executive officer of the P. I. D. C. to the Deputy Commissioner, Chittagong, which reads thus: -‑
"This is to confirm that the Pakistan Industrial Development Corporation have selected the site adjacent to the Bhatiari R4ilway station Sitakunda P. S. and the actual area to be acquired measuring more or less 80 acres, has been marked in Red.
"We would request you to kindly take immediate steps for requisitioning the area and also to assess the value of the land and compensation, if any. On receipt of your advice, we shall arrange to furnish you with necessary fund.
"Our further requirement of land for Railway siding, Road and Colony shall be intimated to you shortly.
Yours faithfully,
(Sd.) M. A. Latif Khan.
Senior Executive (CJN)"
This letter is a very important piece of document inasmuch as it is on the basis of the aforesaid letter that the impugned orders were passed. It is patent that the letter conveyed absolutely no information to the Deputy Commissioner as to why it was con sidered necessary to establish a Jute Mill in Chittagong upon compulsory acquisition of land, although there are quite a large number of jute mills already existing in this Province. The letter specifically mentions that land measuring more or less 80 acres is to be " acquired ". Thereafter a request is made to the Deputy Commissioner to " requisition " the said land for the purpose of " acquisition ". It is important to re member this as the orders of requisition were made solely for the purpose of acquisition of the lands under the provisions of the East Bengal (Emergency) Requisition of Property Act without any special reason for requisitioning the same. There is no information as to why this particular area was selected in pre ference to others. There is also no information as to whether there was any attempt to obtain a suitable site by private nego tiations. Furthermore, there is no mention as to the "need" for such acquisition, and lastly, there is absolutely no case made out for requisitioning the lands in question. There was only a per emptory direction that it should be requisitioned. In effect it was merely a demand on the Deputy Commissioner to requisition the lands with a view to their being acquired without giving him any information upon which he could exercise his discretion as to whether the lands should be requisitioned at all.
5. It transpires that about twelve days after the receipt of the aforesaid letter, a file was started in the Land Acquisition Office in the District of Chittagong. On the 7th of February 1961, the first noting in the order‑sheet was made thus:
"Seen memo. No. PJ 45/2 dated 26‑1‑61 of the Senior Executive (CJN) of P. I. D. C. enclosing a copy of the site plan showing the land required to be acquired for Jute Mills at Bhatiary, P. S. Sitakunda, Chittagong on an area of 80 acres of land. Office to write to the Chairman, C, D. A. for com municating their approval to the land in question early as the P. I. D. C. wants to have the land immediately.
(Sd.) S. Majumdar.
L. A. D. C.
The next endorsement which is dated 18‑2‑61 runs thus:
"The Chairman, C. D. A. has been requested under this office memo. No. 348/L. A. dated 13‑2‑61 for communicating their approval to the land in question. Seen memo. No. PJ‑45/2 dated 10‑2‑61 of Dev. Officer, P. 1, D. C. requesting to acquire the land and also to make over the same to them early. Seen also memo. No. (sic) enclosing a revised plan showing 100 acres of land required to be acquired in place of 80 acres of land wanted previously. Wait till C. D. A's approval is received. In the meantime office to start a Misc case. Kgo. concerned will please prepare schedule of land properly and also a rough and ready estimate by 25‑2‑61.
(Sd.) S. Majumdar
L.A.D.C."
The noting made on 28‑2‑61 runs thus:
"Sern P. I. D. C's telegram dated 27‑2‑61 requesting to intimate the position of case. Inform P. I. D. C. that approval of C. D. A. has not yet been received. Send a copy of rough and ready estimate to them for their information and taking necessary action. Office to send the copy of telegram to C. D. A. with a request to communicate their approval early.
(Sd.) S. Majumdar
L.A.D.C."
Thereafter the nothings are as follows :‑
"2‑3‑61. Copy of P. I. D. C's telegram has been sent to C. D. A. under this office memo. No. 526/L. A. dated 2‑3‑61. A copy of rough estimate amounting to Rs. 4,41,804.38 paisa for 100 acres of land including structures has been sent to Senior Executive P. 1. D. C. under this office memo. No. 527/ L. A. dated 2‑3‑61.
(Sd.) S. Majumdar
L.A.D.C."
"14‑3‑61. The C. D. A. should be requested to expedite their reply. The R. B. should also be informed that permission either from C. D. A. or C. L. A. C. Dacca is required which may be obtained before the land can be requisitioned.
(Sd.) S. M. Nasim
Dy. Commr. Ctg.
14‑3‑61."
"14‑3‑61. Seen the order of Dy. Commr., dated 14‑3‑61 in the note‑sheet Office to write to R. B. accordingly.
(Sd.) S. Majumdar
L.A.D.C."
"30‑3‑61. Seen memo. No. PJ. 45/2 dated 25‑3‑61 of the Development Officer, Pakistan Industrial Development Corpo ration enclosing the United Bank Ltd. cheque No. DD000686/ 45 dated 24‑3‑61 for Rs. 4,41,804/38 (Rupees four lakhs, forty‑one thousand, eight hundred and four and thirty‑eight paisa only). Accountant will please draw the amount and keep the same in the head "Deposit for work done for public bodies" in respect of this case. Office to acknowledge the receipt pf the cheque. Office to issue reminder to the C. D. A. foz their opinion about acqn.
(Sd.) S. Majumdar
L.A.D.C.
"5‑4‑61. Signed the United Bank Ltd. Cheque No. DD000686/ 45 dated 24‑3‑61 for Rs. 4,41,806. 38 paisa by transfer credit to "Deposit for work done for public bodies" as per chalans attached.
(Sd.) S. Majumdar
L.A.D.C."
"I1‑4‑61. Amount placed by the R. B. has duly been drawn. C. D. A. has been reminded under this office memo. No. 812/ L.A. dated 5‑4‑61. Seen memo. No. 1/ANAQ/37/383 dated 8‑4‑61 of the Secretary, C. D. A. communicating their disap proval to the land being clashing with the Master Plan for Chittagong. It has requested to ask the R. B. to select site for the purpose at Fouzderhat Industrial Estate in consultation with the C. D. A. office to inform the R. B. accordingly.
(Sd.) S. Majumdar
L.A.D.C."
It would thus appear that the Secretary of the C. D. A. com municated disapproval of the plan as it would clash with the Master Plan of Chittagong. On the 1st of May the requiring body was requested by the said Land Acquisition Office to select an alternative site for the said purpose at Fouzderhat, forwarding a copy of the minutes dated the 29th of March 1961, addressed to the Additional Chief Secretary. Thereafter on the 23rd of May 1961, Mr. S. M. Nasim, Deputy Commissioner of Chitta gong, addressed the following communication to the Secretary to the Government of East Pakistan, Revenue (Requisition) Department.
"The site selected by the Hafiz Jute Mills Authority at Bhatiari, P. S. Sitakunda of this District, has since been approved by the Chittagong Development Authority on certain conditions after a slight modification of the original site plan as set forth in and communicated to us through Chittagong Development Authority's memo. No. 1/ANAQ/37/556 dated 8‑5‑61, a copy of which is enclosed herewith for reference. The Land Acqn. staff of my office have almost completed the preparation of the schedule of lands and list of structures and trees being the preliminary steps towards reqn. and acqn. of the area.
"On a representation of the people of Bhatiari Union headed by the Chairman of Bhatiari Union Council addressed to the Governor of East Pakistan and copy endorsed to me vide his memorandum dated 26‑2‑61 (copy enclosed), I along with the Land Acqn. Officer and the S. D. O. Sadar (North) visited the site selected by the Hafiz Jute Mills Authority and finally approved by the C. D. A. on 20‑5‑61 and found it to be a congested residential area where some families have since also come for re‑settlement after they have been displaced by the Cyclone and Tidal Bore on 31st October 1960.
"About 140 families with 335 structures including a Mosque and some Graveyards and several thousand trees are required to be displaced and dismantled if this site is finally acquired for the Hafiz Jute Mills. The people of the locality have been as if thunder‑struck when they came to know of the intention of the Government's acquiring their hearth and home at a time when they have just recovered from the shock sustained from the last cyclone of Oct/60. Though the C. D. A. has given a condition in their allocation letter of 8‑5‑61 that a minimum 2 katas lands will have to be allotted to each of the family to be evicted from this site free of cost in the Housing Area on the other site of the Trunk Road, I do not consider the acquisition of this area to be a suitable one for the following reasons:‑
"(1) Eviction of persons from their original ancestral hearth and home and then rehabilitation in different area after its proper development, is a most unpleasant task requiring a lol of expenditure and time and causing great hardship to other people.
"(2) The land acqn. proceedings of this area cannot be finalised in a short period as without prior rehabilitation of the persons to be directed vacant possession of the land cannot be made available for the Hafiz Jute Mills.
"(3) Rehabilitation of persons in a new area after their eviction from the site selected by the Hafiz Jute Mills, will mean and require acqn. of another site and its development for rehabilitation of people, anti will thereby put additional pressure on Land Acqn. Deptt. which is running short of officers and staff'.
"(4) It is also not clear from the letter of the C. D. A. as to who will take the responsibility of rehabilitation and who will be requiring body for the lands to be selected and required for rehabilitation.
"I have also visited two other alternative sites shown as 'ki' and 'C' in the map enclosed herewith. Either of the two sites will be equally suitable for setting up the proposed Jute Mills without disturbing and displacing any persons and both the sites will have easy road and rail facilities. The site already approved by the C. D. A. has been marked as 'A' in the map, The site 'B' is in Mouza Bhatiari and Zahanabad and is about J of a mile from the last border line of the site 'A' and is situated on eastern side of the Railway line and may be extended as much as, required to the Hill Area on the east. Besides the hills; an area of about 100 acres of paddy land will now be available in the site B. The site 'C' is in Mouza Kesabpur and Shahadabad is about 1 mile, to the north from the north eastern corner of the site and is bounded by the Dacca Trui1R Road on the west (at 10th mile from Chittagongi and by the Railway line on the east. These two sites B & C.' are slightly lower than the homestead area of the site 'A' buy. not lower than other lands besides homestead one of site 'A'. The area of the site 'C' will be more than 100 acres and can be extended towards north without disturbing any people from their hearth and home. None of the two sites B & C have got any residential homesteads and are paddy lands. In my opinion the site 'C' will be more suitable and less expensive and can very quickly be acquired for the purpose.
"Acquisition cost of site 'A' after acqn. of another site and its development for rehabilitation purposes, will be much more bigger than the acqn. cost and development cost of either of the two sites B & C.
"From the administrative point of view as well as humani tarian consideration also I do not consider it proper to disturb and displace so many persons at a time when Government are taking all possible steps to render relief to and rehabilitate so many persons all over the Province.
"I would therefore, request the Government to consider all these points and then to ask the P. I. D. C. and Hafiz Jute Mills authority to have their Mills set up in either of the two sites suggested by me.
"An early action and reply thereof is requested."
The aforesaid letter speaks for itself and it would be noted that the Deputy Commissioner of Chittagong emphatically opposed the plan for the requisition and acquisition of the lands in question on grounds which have been fully set out in the said communica tion quoted above. Thereafter the endorsements in the relevant file run thus:
"11‑5‑61 Government has been intimated about the position under this office Memo. No. 1139/1/L.A. dated 1‑5‑61. Seen Secretary, C. D. A.'s Memo. No. 1/ANAQ/37/556 dated 8‑5‑61 communicating their approval for 64 acres of land for the pur pose at Bhatiary. Henceforth Mvi. Sultan Ahmed Kgo. will please deal with the case. Some preliminary works have already been done by the other Kgo. He will please complete the verification and preparation of Schedule within 7 days.
(Sd.) S. Majumdar
L.A.D.C."
"23‑5‑61. On receipt of G. O. No. 45/61/378 Reqn. dated 12‑5‑61 instructing to furnish a comparative map showing how the proposed land clashes with the Master Plan a detailed report stating the difficulties in acquiring the land and also suggesting alternative site for the purpose has been sent to Government under this office Memo. No. 146/L.A. dated 23‑5‑61.
(Sd.) S. Majumdar
L.A.D.C."
"31‑5‑61. Seen Dev. Officer, P. I. D. C.'s Memo. No. Pj‑45/2 dated 18‑5‑61 requesting to acquire the land & also to make over the same to them early. Reply of Commr's Memo. No. 1343/R dated 12‑5‑61 has been sent under this office Memo. No. 1488/L.A. dated 31‑5‑61. Seen P. I. D. C.'s telegram dated 24‑5‑61 intimating that the alternative site will not be suitable for their purpose. Wait till Government decision in this respect is received.
(Sd.) S. Majumdar
L.A.D.C."
"12‑6‑61. Seen Memo. No. Pj‑45/2 dated 31‑5‑61 of Jute Adviser stating that alternative site will not be suitable for the purpose and requesting to take necessary measure for acqn. of land already proposed by them. Seen also D. C.'s order dated 12‑6‑61 in the note‑sheet. Wait till Government decision is received.
(Sd.) S. Majumdar
L.A.D.C."
"7‑7‑61. Seen G. O. No. Ch. 45/61/520‑Reqn. dated 1‑7‑61 and D. C.'s order thereon dated 1‑7‑61. Government has instructed to acquire an area of 64 acres of land at Bhatiary selected by the P. I. D. C. and approved by the C. D. A. with a slight modification in the original plan and also on certain condition. It has also been stated that the affected families will be provided with 2 katahs of land each by the Mill Autho rity free of cost for their rehabilitation. It has further been instructed to reqn. and acqn. the land early as per the site plan excluding the mosque and the graveyard falling within the alignment and also to make over possn. of land to R. B. after making necessary advance payment to the owners. Kgo. Mvi. S. Ahmed will please put up reqn. notices already pre pared at once. Copy of the aforesaid G. O. has been sent to M/s. Hafiz Jute Mills with a request to select necessary land for rehabilitation of the families to be evicted from the site as per Government instruction and the P. 1. D. C. Dacca and also C. D. A. under this office Memo. No. 2138(3)/L.A. dated 7‑7‑61 to 10‑7‑61.
(Sd.) S. Majumdar
L. A. D. C."
"10‑7‑61. Kgo. will please prepare reqn. notice and list of plots under 3 or 4 categories as (1) Nal (2) Homestead bhiti, Garden (3) tank and (4) khilla, khai etc. and other waste lands with total area. Notices will be issued on 12‑7‑61 giving 17‑7‑61 for taking over possession in the notices. Pl. put up with all complete papers and notices on 12‑7‑61.
(Sd.) S. Majumdar
L.A.D.C."
6. It would thus appear that the Deputy Commissioner's sews were overruled by the Government and it is significant that thereafter the Deputy Commissioner, Mr. S. M. Nasim and/or his successor disappeared from the scene altogether.
7. In this maze of correspondence, memoranda and notings set out above some very note‑worthy features emerge and strike one in the face: In the first place, it is patent that "acquisition" of the said lands is the "burden of the song" in all these, if we may use a poetic phrase in respect of a rather sordid mundane business. Secondly, it would appear that it has been assumed that if acquisition of the land is the objective, an order of requisition could be ipso facto made without any other circumstance justify ing such order of requisition. Thirdly, it is evident that nothing has been stated anywhere as to why the land should be requisitioned even if the same could be validly acquired. It has been taken for granted that the East Bengal (Emergency) Requisition of Property Act, 1948, would apply automatically as soon as it has been decided that a piece of land has to be acquired.
8. For the first time an Additional Deputy Commissioner of Chittagong makes his appearance at this rather belated stage, and this officer has passed what has been described as an order under section 3 of the East Bengal (Emergency) Requisition of Property Act, the next of which is as follows:
"Whereas in my opinion it is expedient and necessary in the public interest, to reqn. the movable and immovable property described in the Schedule below for the development of Industries of the Province of East Pakistan.
"Now, therefore, in the exercise of the power conferred by section 3 read with section 9 of the East Bengal Emergency Requisition of Property Act, 1948 (East Bengal Act XIII of 1948) I reqn. the property in respect of R. S. Plots Nos. 1915, 1914, 1913, 1919, 1920, 1921, 1922, 1927, 1928, 1929, 1930, 1931, 1932, 1933, 1934, 1935, 193 6, 1938, 1939, 1941, 1942, 1943, 1944, 1945, 1946, 1947, 1948, 1949, 1950, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014 and others of sheet No. 2 and Plots Nos. 2589, 5290, 5291, 5292, 5298, 5294, 5295, 5296, 5297, 5298, and others as shown in the site map of sheet No. 3 of mouza Bhatiari, P. S. Sitakunda Dt. Ctg. owner as per schedule noted in notices and as per Schedule attached and taken necessary possession by 17‑7‑61. Put up with service return on 17‑7‑61.
(Sd.) S. Majumdar
L.A.D.C.
(Sd.) S. Ahmed
12‑7‑61
Addl. Dy. Commissioner,
Chittagong."
9. With the passing of the aforesaid order the Additional Dy. Commissioner also disappears from the records of this case. It is clear that he did not even pause to enquire as to why the aforesaid lands should be requisitioned even if they have to be acquired. In fact, the Additional Dy. Commissioner merely gave a legal colour to what was, in reality, a governmental decision at the insistent demand of the P. I. D. C.
10. In pursuance of the aforesaid endorsement in the file the impugued orders were served upon the petitioners in a peculiar fashion and in a manner not contemplated by the Act. The originals of the orders served on the petitioners appear in the records of this case in the land acquisition office. A sample of the same is quoted below:
"Pre case No. 79 of 1960‑61 Acqn. of land for Hafiz Jute Mills.
"Order of Requisition of Movable/Immovable property
Whereas in my opinion it is expedient and necessary in the public interest to requisition the movable /immovable pro perty described in Schedule A below/annexed to this order for the Reqn. and Acqn. of land for the Hafiz Jute Mills at Bhatiari:
"Now, therefore, in exercise of the power conferred by section 3, read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948).
"I requisition the said property and hereby make the following orders:
"Hashmat Ali, son of Ramjan Ali Ahmed, Soyeal Ali, son of Raham Ali (illegible) of Bhatiari.
"the owner/occupier of the said property
(a) shall place the said property at my disposal and under my L. A. Dep. control with effect from the 17‑7‑61 and deliver possession thereof on the said date to L. A. D. C. who has been a , authorised to receive it on my behalf;
"(b) shall furnish to the said District Magistrate such in formation in his/her their possession relating to the said pro perty as said District Magistrate may by an order in writing specify;
"(c) shall on or before 17‑7‑61 remove from the said property the movable properties as specified in the Schedule B below or any other movable properties which may be specified in an order in writing by the said District Magistrate ;
"(d) shall not dispose of the said property in any way which may disturb or interfere with the use or the dealing of the said property in the manner desired by me so long this order remains in force.
"Schedule A. Mouza Bhatiari, P. S. Sitakunda, khatian 795 plot‑5177, 5178, 5222.
(Sd.) Illegible
Land Acqn. Dy. Collector,
Chittagong
12 -7-61.
The orders served on the petitioners are all signed by the Land Acquisition Deputy Collector who has not even purported to have signed them for or on behalf of the District Magistrate or Additional District Magistrate and the said orders served on the petitioners are nothing but orders by the Land Acquisition Deputy Collector of Chittagong. In fact, the copies which the petitioners were allowed to retain bear no signature but only a rubber‑stamp facsimile of the signature of the said officer. We should hereafter again deal with this question at an appropriate place. The petitioners have stated in their petitions that the aforesaid lands were being requisitioned and acquired for the benefit of an individual who is the proprietor of the proposed Jute Mills. Paragraph 6 of the petition reads as follows :‑
"The respondent No. 5 is the individual for whose benefit and at whose instance the purported requisition is sought to be made He is the proprietor of the proposed Hafiz Jute Mill to be financed by the Pakistan Industrial Development Corporation."
The affidavit‑in‑opposition to the petitions were made by one A. B. C. Islam, Land Acquisition Deputy Collector, Chittagong, who had nothing to do with the aforesaid orders and is not therefore, in a position to speak with any competence about the matters stated in the petitions, having no personal knowledge about them. He has answered the aforesaid paragraph 6 by a bare denial in paragraph 4 of the affidavit‑in‑opposition which is as follows:
"That the statements made in paragraph 6 are not correct and denied by this deponent. It is submitted that the proposed requisition has been made for the development of commerce and industry of the Province and in the interest of the public at large and not in the interest of a particular individual, namely, Hafiz Wali Muhammad. The scheme was sponsored by the Pakistan Industrial Development Corporation, statutory body constituted with a view to enlarge the development of commerce and industries in the country."
Except a general assertion that the proposed requisition is for the development of commerce and industry in the Province, there is no specific denial to the positive averment in the petition to the effect that the respondent No. 5 Hafiz Wali Muhammad is the proprietor of the Hafiz Jute Mill. Even the said respondent No. 5 has not controverted the aforesaid averment. Therefore, it must be held that it is admitted that the proprietor of the proposed jute mill is respondent No. 5.
11. In paragraph 13 of the petition the petitioners have stated as follows: ----
"That on receipt of the notices the petitioner along with other aggrieved persons approached the then Deputy Com missioner Mr. Nasim and impressed upon him the disastrous effect of the purported requisition on hundreds of families who will be uprooted from their hearths and homes and reduced to homeless nomads without any means of subsistence and the petitioner also impressed upon him that the purported requisi tion was being viewed by the public at large not as one for public purpose but for their liquidation for generations to come."
And in paragragh 23 of the petition it has been stated thus:
"That about 200 families with about 400 structures including mosque, grave yards and several thousands fruit‑bearing trees and hundreds bighas of paddy growing lands will be completely uprooted from their hearths and homes and would be deprived of their only means of subsistence as a result of the proposed requisition and the two kathas of land suggested for each of the families thus uprooted will be hopelessly inadequate to meet the requirement of the families even for the purpose of constructing a bare shed over the head of each family. Besides, it is entirely uncertain as to what will be the situation of these two kathas of land."
12. There have been some attempts to deny the aforesaid averments, but the record of this case corroborates the statements made on behalf of the petitioners and we have no hesitation in accepting the same.
13. Inasmuch as it was stated before us that a number of grounds were not taken in the petitions through inadvertence, we allowed the petitioners to file supplementary affidavits. We also give the respondents an opportunity to controvert the aver ments in the supplementary affidavits, but the learned Advocate General, on behalf of the respondents, apprised us that it was not necessary to file any fresh affidavit‑in‑opposition in respect of the supplementary affidavits. He intimated to us that he would depend upon the records of this case. In the supplementary affidavits the petitioners have set out the following, among other statements:
"3. That the simultaneous requisition and acquisition by a single notice purporting to be issued under Act XIII of 1948 of the East Bengal Emergency Requisition of Property Act is not only not contemplated by the scheme and purpose of the Act but also contrary to the provisions made in that behalf and as such the purported requisition and acquisition is ultra vires and void.
"4. That the motive behind the purported‑ simultaneous requisition and acquisition in the aforesaid manner is to deprive the petitioner and his co‑villagers of their rightful claim for compensation according to the market rate and as such the impugned order is a fraud on the statute . . . . ."
14. Upon the aforesaid facts the petitioners have urged, in the first place, that the impugned orders are ultra tires of the Act inasmuch as the requisitioning authority, namely, the Additional Deputy Commissioner did not apply his mind as to whether there was any public purpose to support the requisitioning of the land and properties in question. The idea of requisitioning of the lands and properties emanated from the proposal to acquire them by an executive officer of the P. I. D. C. Uptil the time when the impugned order was made by the said Additional Deputy Commissioner there was no material placed before the said officer upon which he could exercise his discretion as to the expediency or necessity for passing the impugned orders. As a matter of fact, the whole matter was proceeded with on the footing that there was no discretion left in the officer who passed the impugned orders. It has been assumed that it was entirely a ''matter for the P. I. D. C. and/or the Government of Last Pakistan to take whatever decision they liked. We have already noted that the Deputy Commissioner of Chittagong was vehemently opposed to the plea of acquisition and that, thereafter, there was a Government direction to the affect that the acquisi tion should be proceeded with. The Additional Deputy Com missioner appeared on the scene merely to pass a stereotyped order for which he had no opportunity to exercise any discretion whatsoever having not been even furnished with necessary materials upon which he could apply this independent mind as to the necessity or expediency of passing the impugned orders. The records of this case, as we have seen above hardly furnish any such material. On the facts of this case we hold that the Additional Deputy Commissioner did not apply his independent mind to a consideration of the case, but merely lent his name to what was, in fact, nothing but a peremptory direction from the Government of East Pakistan. We hold that the impugned orders were not passed in good faith and that in that sense they are mala fide.
15. Secondly, it has been argued that in this case it is difficult to decide who passed the impugned orders. The orders served on the petitioners are signed by a Land Acquisition Deputy Collector. In this connection, we would set out the pro visions of sections 5 and 4 of the Act, as amended by subsequent Ordinances. These are as follows :‑
"3. When any property is required for a public purpose or in public interest the Deputy Commissioner may requisition it by an order in writing.
"4. (1) When an order of requisition has been made under section 3, it shall be served on the owner of the property person ally by delivering or tendering it 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, the notice may be served by affixing such copy to some con spicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain and also by affixing another such copy to some conspicuous part of the requisitioned property.
"(2) Where the order of the requisition has been served under subsection (1) in respect of the property forthwith and may use or deal with the property in such manner as may appear to him to be expedient.
16. Thus, section 3 of the Act invests the Deputy Com missioner, which expression includes an Additional Deputy Commissioner, with the discretionary power to pass an order of requisition on the fulfillment of two conditions, namely, in the first place, that the order must be made for a public purpose and, secondly, that the requisitioning of a land must be "required" for such purpose.
We have dwelt upon this aspect of the case in the judgment that we have recently pronounced in respect of Writ Petition No. 84 of 1961 disposed of on the 26th of February 1961, and we need not respect them here.
17. By section. 2 of the Act, as substituted by the East Bengal (Emergency) Requisition of Property (Amendment) Ordinance, 1960 (Ordinance No. III of 1960), a Deputy Magis trate, who is authorised by the Deputy Commissioner and/or Additional Deputy Commissioner, comes within the definition of the term Deputy Commissioner'. Presumably the Land Acquisition Deputy Collector is such a Deputy Magistrate and our attention was drawn to an order made by the Additional Deputy Commis sioner of Chittagong, which runs thus:
"In exercise of the power conferred on me under section 2(1) of E. B. (Emergency) Requisition of Property Act, 1948, as inserted by section 3 of the East Pakistan Ordinance No. III of 1960, 1, the Additional Deputy Commissioner Chittagong do hereby authorise‑
"(1) Mr. Safiullah Majumder, E.; P. C. S., (Ex.) Land Acquisition Deputy Collector, Chittagong.
(2) Mr. A. Hye, E. P. C. S., (Ex.) Addl. Land Acquisition Officer, Chittagong ;
(3) Mr. S.J. Chowdhury, E.P.C.S., (Ex.) Addl. Land Acquisi tion Officer, Chittagong ;
to sign the notices under sections 3 and 5 (1), (3) of the aforesaid Act after the requisition and acquisition orders have been passed by me in record.
(Sd.) S. Ahmed. 8‑4‑61.
Addl. Deputy Commissioner,
Chittagong."
The Land Acquisition Deputy Collector, who has signed the orders that were served on the petitioners, is the first named gentleman in the aforesaid order, namely, Mr. Safiullah Majumder. He was authorised only to sign the notices under section 3 and section 5 (1) (3) of the Act. It is difficult to understand what is meant by signing notices under section 3 which merely speaks of the power to pass an order. Section 4 requires the personal service of the order made under section 3 on the person con cerned; if the person concerned is not found, the section further provides for service by leaving an authentic copy of the order with some adult male member of the family of such person; if neither the person concerned nor the adult male member is found, it provides that notice may be served by affixing such copy to some conspicuous part of the premises in which the person is known to have last resided. The notice as mentioned in the said section 4 is the third alternative to the service of the order of re quisition which is the requirement of law. Subsection (1) of sec tion 2, as substituted by section 3 of the Ordinance No. III of 1960, empowers the Deputy Commissioner or the Additional Deputy Commissioner to authorise a Deputy Magistrate to exercise any of the powers conferred or any duty imposed on him under the Act.
18. In this connection, the most important thing to re member is that the duty cast on the Deputy Commissioner of the Additional Deputy Commissioner is to pass an order under section 3 of the Act, in appropriate circumstances. If section 4 confers any duty upon him, it is the duty to serve the order. The fallacy lies in thinking that signing an order is something which is divorced from the making of the order. In any event, B the Act does not bifurcate the service of the order from signing it. It is clear that there is no authority to split the duty cast on the Deputy Commissioner or the Additional Deputy Commis sioner into the making of an order to be served on the petitioners. Such a distinction is unwarranted by the provisions of the enactments as quoted above.
19. So far the signing of the notice under section 5, sub sections (1) and (3) of the Act is concerned, we do not propose to deal with the same as we are not called upon to do so in the present case. But in the circumstances stated above, we hold hat it has been rightly contended on behalf of the petitioners that the Additional Deputy Commissioner could have authorised the Land Acquisition Deputy Collector to pass an order of requisition but could not limit him to mere signing of the orders to be C served on the petitioners. In any event, the orders which were served on the petitioners before us, were not made by him inas much as he only signed the orders. There is no escape from the position that what were served on the petitioners are orders made and signed by the Land Acquisition Deputy Collector.
20. The next contention is the main argument on behalf of the petitioners. It was argued that the object behind the aforesaid orders was to acquire the lands in question. It is it) evident from the entire record of this case that that was the object. In these circumstances, neither the P. 1. D. C. nor the Govern ment of East Pakistan in the Revenue Department nor any of the officers concerned with the passing of these orders has ever made or tried to make out a case as to why the lands should be re quisitioned. Section 3 of the Act authorises the requisitioning of properties upon due consideration of matters which may necessitate such an order of requisition. Nowhere any attempt has been made to show as to why the lands should be requisi tioned, and unless some "need" is fulfilled by obtaining merely the possessory interest in the said land, there will be no legal foundation for such order of requisition. The impugned order has been made for a collateral purpose, namely, to facilitate the acquisition of the lands under section 5 of the Act, without establishing any necessity for requisitioning the same.
21. Subsection (1) of section 5, as substituted by section 7 (1) of Ordinance No. III of 1960, reads thus :‑
"The District Magistrate may, if he thinks fit, acquire any requisitioned property and if he purposes to so acquire, he shall cause a public notice to be given at convenient places on or near the property to be acquired stating that he intends to acquire the property."
The power to acquire any requisitioned property under the East Bengal (Emergency) Requisition of Property Act is conditioned upon such property being validly requisitioned. The purpose and object of requisitioning the lands must be considered by itself and it is only after a land has been validly requisitioned that it can be so acquired under the Land Acquisition Act. Nobody seems to have considered as to why the land should be requisitioned if it has to be acquired. In this case an order of requisition was passed merely for the purpose of acquiring the land under the said Act which authorised such acquisition only upon valid re quisition. In these circumstances, the impugned orders are ultra vires the provisions of the Act inasmuch as the said orders have been made for a collateral purpose, namely, purely for the purpose of acquiring the land there being no special circum stances justifying an order of requisition.
22. It has also been argued, in the alternative, that under the aforesaid circumstances the impugned orders amount to a fraud upon the statute as they have been made in order to avoid the more liberal provisions of the Land Acquisi tion Act by a colour-able exercis9 of the powers given under section 3 of the East Bengal (Emergency) Requisition of Property Act. We have already considered such arguments in the judgment delivered by us in Writ Petition No. 84 of 1961 of the 26th of February 1962. We have dealt with this question at length in that judgment.
23. We would like to add that then the object is nothing more than to acquire a land, the Act, has no manner of applica tion, the Land Acquisition Act is the normal machinery for such acquisition and it is only when a property has been validly, requisitioned under the Act, upon specific circumstances which may justify such requisition that the power to acquire it arises.
24. In the supplementary affidavits filed by the petitioners there is categorical assertion that the purpose of the orders was to acquire the lands in question with a view to pay a lesser compensation than that which would otherwise have been avail able to the petitioners if the lands had been acquired under the Land Acquisition Act. 1 here is no denial to the averments and the learned Advocate‑General argued that if the law allows the respondents to do so, there is an end of the matter in this respect. Learned Advocate‑General has argued that where two alternative modes are provided for acquiring a land, resort can be made to either of them. This is really begging the question and the fallacy of such a contention lies in ignoring the patent fact that under the East Bengal (Emergency) Requisition of Property Act, the power to acquire land is dependent upon a special condition, namely, that that land must be requisitioned for special reasons which would authorise the requisition. The Land Acquisition Act deals with the acquisition of land simpliciter; the East Bengal (Emergency) Requisition of Property Act, 1948, deals with requisitioning of land and incidentally deals with acquisition H of property so requisitioned. If the requisition order is passed merely for the purpose of acquisition, it is an order which is, as we have already decided, a colourable exercise of the powers conferred by the East Bengal (Emergency) Requisition of Property Act for a collateral purpose which is not authorised by the Act. We have also exhaustively dealt with this line of argument in giving our judgment in respect of the said Writ Petition No. 84 of 1901, on the 26th of February 1962, and we adopt the view we had taken therein.
25. The result, therefore, is that we make all these seven Rules absolute and direct respondents Nos. 1 to 4 to cancel or withdraw orders dated the 12th of July 1961, passed in L. A. Pre. Case No. 79 of 1960‑61. The petitioners in all these writ petitions are entitled to their costs which we assess at three gold Mohurs for each of the petitions which is hereby disposed of.
S. B./A. H.
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