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Writ Petition No. 23 of 1962, decided on 11th March 1962.
Alternative discretionary remedy by way of revision‑Failure to avail of such remedy no ground for refusing mandamus‑Each case depends on its peculiar circum stances‑Constitution of Pakistan (1962), Art. 98.
S. 3‑"Public purpose"‑Meaning‑Requisition of land for distribution to Members of Co‑operative Housing Society formed to meet acute shortage of accommodation‑Requisition, held, for public purpose.
Hamabai Framjee Petit v. Secretary of State for India 42 I A 44; Secretary of State and others v. N. Gopala Aiyar and others A I R 1930 Mad. 798 and Md. Sultan Mia v. The Secretary to the Government of East Pakistan, Finance and Revenue (Revenue) Department and others Writ Petition No. 98 of 1959 (unreported) ref.
S. C. Basu and Syed Muhammad Ali for Petitioners in both W. P. 23 & 24/62.
T. H. Khan for Respondent No. 4 in both W. P. 23 & 24/62.
Maksumul Hakim, Advocate‑General with A. H. Mirza for Respondents Nos. 1‑4 in W. P. 23/62.
Maksumul Hakim Advocate‑General with Md. Fazlul Karim for Respondents 1‑4 in W. P. No. 24/62.
.‑These two applications for Writs of mandamus relate to an order passed by the Additional Deputy Commis sioner, Dacca requisitioning some properties belonging to petitioners to the Chhaya Beethi Co‑operative Housing Society Ltd.
2. The points that arise for consideration in both the cases are common. Hence these have been heard together and disposed of by this judgment.
3. The facts relevant for the points raised may be stated as follows: --‑The Additional Deputy Commissioner, Dacca, by an order dated the 16th March 1961, requisitioned about 55 bighas of land including the lands which are the subject‑matter of these petitions for the Chhaya Beethi Co‑operative Housing Society Ltd. which is a Society formed and registered under the Co‑opera tive Societies Registration Act. The Society was formed with a view inter alia to acquiring lands and distributing the same amongst its members for building houses for their residence.
The petitioners claim that requisition of land for such a purpose cannot be said to be in public interest or for public purpose.
4. In the affidavits‑in‑opposition filed by the Additional Land Acquisition Collector for himself, the Province of East Pakistan and the Additional Deputy Commissioner, Dacca, it has been stated that the lands in question have been requisitioned for construction of a miniature model town by the members of the Society for their rehabilitation.
5. The Secretary of the Society has also filed an affidavit. The case made out in this affdavit is that most of the members of the Society are middle class homeless refugees from India. Its membership, however, is open to all and is not confined to refugees or employees only. The members individually tried their utmost to rehabilitate themselves but failed due to acute shortage of land and high price thereof within the area covered by the Master Plan of greater Dacca City. They also tried to get land from Government in Refugee Colonies established by Government but failed. The members generally are low‑paid Government employees who have been living in hired houses in slum areas of the City. In these circumstances, the members formed the Society to make a collective and concerted effort to resettle and rehabilitate themselves by their joint initiative. The immediate programmed of the Society is to develop about fifty- five bighas of land including the disputed plots, possession of which has been made over to it. The land will be reclaimed, levelled and plotted for allotment to members. Roads and approaches will be provided in such a manner as to make them available to each individual house. Provisions for a mosque, a primary school; a playground, a circulating library and reading room, a health clinic, child welfare, maternity and family plan ning centre, a park and a departmental store and similar other amenities will be made. The roads will be 30 ft. wide. The plots to be allotted to members will be of the size of about 10 and 5 cattahs each. The Society aims at establishing a miniature well‑planned township at Joydebpur which is about 21 miles off from Dacca, wherein the members of the Society aspire to settle and rehabilitate themselves and live as an organised and corpo rate society with the fervent hope of leaving shelter for their off springs. The site is quite suitable from every point of view inasmuch as it is connected by rail and motor transport and will be quite convenient to pursue ones own occupation in the different offices and parts of Dacca there from.
6. Before we enter into a discussion of the question of public purpose, it is necessary to consider certain preliminary objections raised on behalf of the respondents regarding these petitions.
7. It has been pointed out that the petitioners did not file any appeal in time under section 4‑A of the East Bengal (Emer gency) Requisition of Property Act, 1948, and even after their appeal was dismissed as time‑barred, they did not move the Provincial Government in revision under subsection (2) of the said section. Section 4‑A of the Act reads as follows:
"4‑A. (1) An appeal against an order made under section 3 shall, if presented within 30 days from the date of service of the order, lie to the Commissioner.
(2) The Provincial Government may, at any time, either on its own motion or on application by an aggrieved party, revise any order passed by the District Magistrate under section 3 or the Commissioner under subsection (1) of this section.''
It is thus clear that the Act itself has provided for the remedies against an order of requisition passed under section 3 of the Act. The petitioners did not file appeals in time, and when their appeals were dismissed on the ground of limitation they did not move the Provincial Government to revision. It is true that the exercise of the power by the Provincial Government is discretionary under subsection (2) of section 4‑A, and generally the failure to avail of this remedy, after an unsuccessful appeal to the Commissioner, will not be a good ground for refusing a mandamus, but the facts of these cases are peculiar. Each case will depend upon its peculiar circumstances. In the present cases, when the petitions did not appeal in time and the appeals were rightly rejected as time‑barred, they should have moved the Provincial Government as it could give the same reliefs which they sought before the Commissioner. The explanation that the petitioners were wrongly advised and so they filed petitions for reconsideration before the Additional Deputy Commissioner may hold good so far as the delay in filing the appeals is concerned, but this does not explain the omission to file revisional application against the order f requisition. In these circumstances, we feel that we shall not be justified in exercise of our discretion to issue writs of mandamus in these cases.
8. Wed haste already narrated the circumstances and the purpose for which the order of requisition was made. The question that arises is whether the respondents have succeeded in establishing that the requisition was in public interest."
9. Mr. Bose on behalf of the petitioners has contended that as the purpose behind this requisition was to provide land to group of individuals for building houses for themselves, the purpose cannot be said to be a public one. In the case of Hama‑bai Framjee Petit v. Secretary of State for India (421 A 44), the meaning of the expression "public purpose" came up for consideration before the Judicial Committee to connection with the resumption of some land by the Government of Bombay which was leased out by the East India Company and the lease provided that the and could be resumed if the company wanted the land "for any public purpose". The ground for resumption was to build houses which the Government wanted to let out to Government servants at adequate rents for their private residence. The resumption was held by the Judicial Committee in argument with the decision of this Bombay High Court to be fur public purpose and the following observation of Batohelor, J. from the judgment appealed against was quoted with approval:
"General definitions are, I think, rather to be avoided where the) avoidance is possible, and I make no attempt to define precisely the extent of the phrase public purpose in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, B in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned."
10. In the case of Secretary of State and others v. N. Gopala Aiyar and others (A I R 1930 Mad. 798), Venkatasubba Rao, J., upheld acquisition of some land for providing house sites for panchamas and other coolies of Tanjore as for a public purpose. In this connection, the learned Judge observed
"What the Government proposes is to acquire the lands and once they are acquired, it may allot them in such manner as it pleases. But it is obviously the most sensible and conveni ent course to allot to each servant that particular house which he has been occupying. How this renders the purpose any the less a public one am unable to follow."
11. In the unreported decision of this Court in ‑the case of Md. Sultan Mia v. The Secretary to the Government of East Pakistan, Finance and Revenue (Revenue) Department and others (Writ Petition No. 98 of 1959, decided on the 11th of January 1960, by Akbar and Asir, JJ.), the question of public purpose in connection with requisition for a Co‑operative Housing Society was considered and it was held that, when land was requisitioned and acquired to facilitate the coming into existence of a scheme having public welfare, it can be said to have been done for public purpose. The above conclusion was arrived at on the basis of the statement made by the Assistant Secretary, Government of East Pakistan, in the affidavit‑in‑opposition. The statement of the Assistant Secretary was to the following effect.
" I state that the proposal for requisition and acquisition of the land was approved by the Government on the ground of development of the Dacca Town in accordance with sound Town planning principles by a Registered Society according to a layout plan duly approved by the C. B. & I. (T. P.) Deptt. The acquired land is situated within the pocket of the layout of the Society. As only a very small area covered by the Greater Dacca plan was taken up by Govern ment and as the problem of accommodation in the city was, very acute, the individual Society was permitted to develop the area themselves according to a layout plan duly approved by the Town Planning Department. The Society wanted the pocket land being developed for the construction of residential quarters of middle class people mostly Government servants. The Agriculture Department observed that the land which fell within the Residential zone of the Dacca City should be deve loped and should not be allowed to remain slum nor it would be profitable to utilize the pocket and for Agriculture Depart ment. The Registrar, Co‑operative Societies recommended the proposal for requisition and acquisition of the land and Government agreed to the proposal as it was not possible for Government alone to develop the entire area of the city. The Government considered it essential that the Society should be helped by acquiring this land under the E. B. (Emergency) Requisition of Property Act, 1948. Therefore, the requisition and acquisition of the land in this case was for a public purpose viz., improvement of town and comes within the scope of section 3 of the Act and the subsequent acquisition was made in accordance with the knowledge of the petitioner Md. Sultan Mia."
It will thus be seen that the nature of the purpose, namely, whe ther it is public or private, will depend upon the fact whether it will serve the general interest of the community or the particular interest of individuals. It is not necessary that the entire community must be benefited. In circumstances, even benefit to a class, such as coolies, can be said to serve public interest.
12. It appears from a handout issued by the Government of East Pakistan (Annexure F', to the affidavit‑in‑opposition of respondent No. 4) that Government has decided as a policy to encourage formation of Co‑operative Housing Societies and render all help in this connection. The purpose behind this, decision is to minimize the acute shortage of accommodation in Town and help growing up of townships according to a pattern which ultimately will form art and parcel of adjoining Municipality or Development Authority Areas. Requisition of land for such Societies undoubtedly, in our view, will be for public purpose. The present Society was formed before the above decision of Government. Even then, it cannot be said that this Society is not likely to serve some or any of the aims behind the Government decision. The main purpose is to lessen congestion in towns and bring into existence houses with due regard to sanitary arrangements and other amenities of life. The affidavits filed by the respondents, in our view, have clearly established such a purpose which is a public purpose. The reason from requisition was not to benefit the members only but to further a public cause, in the execution of which some benefit will accrue to them. We are, therefore, unable to accept the contention of the learned Advocate for the petitioners that the requisition has not been in public interest.
13. The result, therefore, is that these Rules are discharged; but, having regard to the facts, each party is directed to bear its own costs.
‑I agree.
K. B. A.
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