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Writ Petition No. 147 of 1961, decided on 5th February, 1962.
Mandamus ‑ "Demand for justice"‑Petitioner normally not entitled to obtain writ if he fails ‑to disclose demand for justice and its refusal, except where such demand is futile Constitution of Pakistan (1962), Art. 98.
Commissioner of Local Government Lands and Settlement v. Abdul Hussein Kadderbhai A I R 1931 P C 132 ref.
Mandamus‑Point not raised in petition‑Cannot be allowed at hearing‑Constitution of Pakistan (1962), Art. 98.
Bhikaji Narain Dhakras and others v. State of Madhya Pradesh and another A I R 1955 S C 781; Tropical Insurance Co. Ltd. and others v. Union of India and another A I R 1955 S C 789 ref.
---Case resting on mere technicality having no relation to equity and justice‑Court would not exercise discretion in favour of petitioner Constitution of Pakistan (1962), Art. 98.
Nawab Sir K. G. M. Farooqui Kt. v. The Province of East Bengal and another (1957) 9 D L R 174 rel.
S. R. Pal and Md. A. Aziz for Petitioner.
Maksumul Hakim, Advocate‑General and K. M. Subhan for Respondents.
MURSHED, J.
‑The petitioner, the Dacca National Medical In stitute and Hospital, a body corporate, registered and incorporated under Act XXI of 1860 is represented in this application by its Principal Officer. The petitioner had obtained a lease of a piece and parcel of land which appertains to Municipal Holding No. 53 of the Dacca Municipality. Initially the lease was for a period of 25 years on a monthly rental and it is claimed that the peti tioner has raised certain structures on the said land for estab lishing a hospital and a Medical School to impart teaching in Medical Science. It has been stated that on the expiry of the term of the said lease, the petitioner continued to remain on the pre mises on a monthly basis. On the 1st of May, 1961, the peti tioner received a notice, being Notice No. 1415 (2), dated May 1, 1961 in L. A. Case No. 131 of 1960‑61, by which the Additional Deputy Commissioner, Dacca, purported to requisition the premises of the petitioner along with the structures thereon, against the said order of requisition an appeal was preferred before the Commissioner, Dacca Division, who did not give any relief to the petitioner. Thereafter it approached the Govern ment of East Pakistan for a review of the said order, but this attempt was also of no avail. On the 31st of July 1961, the petitioner obtained a Rule nisi from this Court calling upon the respondents to show cause why a writ of mandamus should not issue directing them to cancel, withdraw and/or rescind the impugned order of requisition, dated 1‑5‑61, in L. A. Case No. 131 of 1960‑61.
2. The respondents have filed an affidavit‑in‑opposition in which they have traversed all the material averments in the application filed in this Court by the petitioner. The respondents have given full particulars about the present activities of the petitioner and have stated that the institution is practi cally in a dying and moriband state. It has further been claimed on behalf of the respondents that the aforesaid order of requi sition was made for the purpose of establishing a Maternity and Children's Hospital inasmuch as there is a crying need for such a Hospital. There is no good reason as to why we should not accept the statements made in the affidavit filed by the respondents which has made a full disclosure of matters relevant to this case.
4. At the hearing of the Rule, the only point which was canvassed before us by Mr. S. R. Pal, who appeared on behalf of the petitioner, is that the Additional Deputy Commis sioner, who passed the impugned order, has not been empowered by law to make such an order. No other point was pressed before us. In support of this contention, Mr. Pal took us through the provisions of the East Bengal (Emergency Requi sition of Property) (Amendment) Ordinance, 1960 (East Pakistan Ordinance No. III of 1960). This Ordinance has amended the East Bengal (Emergency) Requisition of Property Act, 1948. Section 4 of the Ordinance has substituted a new provision for section 3 of the said Act and reads thus:
"For section 3 of the said Act, the following shall be sub stituted, namely:
"3. When any property is required for a public purpose or in public interest, the District Magistrate may requisition it by an order in writing . . . . ."
Section 3 of the Ordinance provides as follows:
"For section 2 of the said Act, the following shall be substituted, namely :
"2. In this Act, unless there is anything repugnant in the subject or context,
(i) "District Magistrate" includes Deputy Commissioner and Additional District Magistrate and also includes a Deputy Magistrate, authorised by him to exercise any power con ferred, or any duty imposed on him by or under this Act"
Upon this, Mr. Pal has argued that the authority which is autho rised to pass an order of requisition is the District Magistrate, and he has further argued that the words "District Magistrate". Includes Deputy Commissioner and Additional District Magist rate, and also a Deputy Magistrate authorised by him to act on his behalf with regard to any power conferred, or any duty imposed on him by or under this Act. In the aforesaid premises, it has been contended that the Additional Deputy Commissioner is an officer unknown to the East Bengal (Emer gency) Requisition of Property Act, 1948 as amended by the said Ordinance and, in any event, such an officer has not been expressly authorised by the aforesaid Act read along with the Past Pakistan Ordinance No. III of 1960. It was, therefore, contended that the impugned order has no legal validity inas much as it has been admittedly passed by an Additional Deputy Commissioner who has no such authority to make the said order. In answer to this contention, the learned Advocate-General, who appeared for the respondents, has, in the first place, argued that the expression "Additional District Magistrate" has not been defined either in the Act itself or in the amending Ordinance, and that there can be no manner of doubt that an Additional District Magistrate is authorised to pass the order which is impeached before us. The question is what kind of officer is contemplated by the designation "Additional District Magistrate" It was urged by the learned Advocate‑General that, in the absence of any statutory defini tion of the words "Additional District Magistrate," it must be held that the said words denote an officer of Government who is described as such. In this connection our attention was drawn to a notification of the Government of East Pakistan, being Notification No. GAI‑339/60‑1887, dated the 24th of November 1960, which reads as follows:‑
"The Governor of East Pakistan is pleased to order that the officers in East Pakistan hitherto designated as District Magistrates and Collectors, Additional District Magistrates, and Assistant Magistrates and Collectors shall be re‑designated as Deputy Commissioners, Additional Deputy Commissioners and Assistant Commissioners respectively.
This Order shall come in to force at once."
4. By the notification quoted above, the Government of East Pakistan has made it perfectly clear that an officer, who used to be hitherto described as Additional District Magistrate, would be described, after the said notification as Additional Deputy Commissioner. What has, therefore, happened is that a particular officer, who was known as an Additional District Magistrate subsequently came to be designated by Govern ment as Additional Deputy Commissioner. The office as well as the duties, powers and responsibilities of the Additional District Magistrate remained intact. There was only a change in the name. Mr. Pal, on the other hand, has contended that the office of the Additional District Magistrate has been refer red to in the Criminal Procedure Code and, therefore, the name of the said officer cannot be changed. We do not think that this contention is tenable. The officer, who was described as Additional District Magistrate hitherto, has only been re designated as Additional Deputy Commissioner. There can, there fore, be no manner of doubt that the Additional Deputy Com missioner is in reality, the Additional District Magistrate who has been empowered to make the impugned order. We, there fore, hold that there is no substance in the contention of the learned Advocate for the petitioner, which is the only point mooted before us.
5. The learned Advocate‑General has further contended that the petitioner is not entitled to obtain a writ of mandamus from this Court inasmuch as the petitioner does not dis close a demand for justice and its refusal. He is right in con tending that the demand for justice must be made to the officer who has passed the impugned order and it is conceded that no such demand was made. Mr. Pal has tried to explain this by saying that an appeal was preferred to the Commissioner, Dacca Division, against the impugned order and thereafter a prayer for revision was made to the Government of East Pakistan. We do not think that, by saying this, Mr. Pal has resolved the difficulty posed by the learned Advocate‑General. It is now well‑settled that before issuing a discretionary writ of mandamus, Court insist that the petitioner should make a demand for justice and that the same should be refused. This is,4 the general and normal practice of the Court and, it is only in exceptional cases, that a departure from this practice is allowed. An exception is made only when the Court is of opinion that such a demand for justice and its refusal would be futile. In support of the contention the learned Advocate General has cited the case of Commissioner or Local Government Lands and Settlements v. Abdul Hussein Kaderbhai (A I R 1931 P C 132). In the aforesaid case Lord Atkin, who delivered the opinion of the Board, has observed as follows at page 136 of the Report: ---
"It is not proper to part from the case without calling atten tion to the procedure in this case which it is not desirable should form a precedent . . . . .The necessary evidence of a demand and refusal was extraordinarily weak. The Court appears to have postponed the sale by an order made ex parte, a proceeding which nothing but extreme urgency would justify. The writ of mandamus which is a high pre rogative writ, is of the greatest value in maintaining the law, but it is discretionary, and the granting of a rule in the cir cumstances seems to have conceded the applicant more than he was entitled to."
It is clear that in the passage quoted above, Lord Atkin has called attention to the fact that Courts usually and normally require demand of justice and its refusal before issuing a writ of mandamus. If there had been special circums tances in this case which might have led us to hold that it would have been futile to make a demand of the aforesaid des cription, we might not have insisted on the fulfillment of this obligation on the part of the petitioner. We do not think that there are any special circumstances in this case which would justify a departure from a well‑established practice.
6. Lastly, it was contended on behalf of the respondents that the petitioner is not entitled to press the aforesaid contention inasmuch as it has not specifically taken in the petition which has been filed, on its behalf, in this Court. It was contended by the learned Advocate‑General, that in issuing) a writ of mandamus the petitioner is not allowed to take a e new point, i.e. a point which he had not taken in his petition. Two decisions of the Supreme Court of India were cited before us in this behalf. The first is the case of Bhikaji Narain Dhakras and others v. State of Madhya Pradesh and another (A I R 1955 S C 781). Our attention was drawn to the following observations made by S. R. Das, Acting, C. J. in the aforesaid case, at page 786 of the Report :‑
"It is, therefore, not clear at all that the impugned Act was in conflict with section 299 of the Government of India Act, 1935. Besides this objection was not taken or even hinted at in the petitions and cannot be permitted to be raised at this stage."
The next case, is, that of the Tropical Insurance Co., Ltd. and others v. Union of India and another (A I R 1955 S C 789). The learned Advocate General has relied on the following observations in the judgment which was pronounced by the Supreme Court and which occur at page 790 of the Report :‑
"As to the first two contentions, they were urged in Petitions Nos. 94 of 1954 and 183 of 1954, but were not allowed to be put forward by this Court as these questions had not been specifically raised in the petitions under Article 32 of the Constitution and they were accordingly dismissed. The position is similar in this respect so far as the present applica tions are concerned and consequently it must be held that the petitioners cannot be allowed now to urge grounds which they had not taken in their petitions."
The aforesaid proposition of law is also well‑settled, but Mr. Pal has tried to meet the same by saying that Ground No. 1 in the petitioner's application to this Court covers the argument which he has now addressed before us. The said Ground No. 1 runs thus: --‑
"That the requisitioning authority did not apply its mind to the facts and circumstances of the case and as such the order of requisition is not valid under section 3 of the East Bengal (Emergency) Requisition of Property Act."
We do not think that the ground, as stated above, even hints at the point which has now been taken before us by the learned Advocate for the petitioners. The aforesaid Ground No. 1 simply means that the requisitioning authority (whoever he maybe) did not apply his mind to the facts and circums tances of this case. This ground is obviously intended to support an argument to the effect that a requisitioning authority, even if empowered by law to pass an order of requisition, is required to apply his mind to the necessity and expediency of passing such an order. Without an application of his mind in this direction his order will not be a valid order in the eye of law. The point, which has now been argued before us is a totally different point, namely, that the authority which purported to pass the impugned order was not empowered by law to do so. In these circumstances, this contention of the learned Advocate‑General must also be upheld.
7. Mr. Pal has argued that the last two contentions of the learned Advocate‑General are technical objections and they should not be very strictly enforced having regard to the pleadings in this country. It is true that even the Judicial Committee of the Privy Council has observed that the Courts in this country should not be very strict in the matter of pleadings and this Court also allows as, in proper cases, a certain amount of latitude to petitioners having regard to the general laxity of pleadings in this country, but the point taken before us by the petitioner is a technical point and the learned Advocate‑General has rightly urged that the respondents are also entitled to meet a technical point by technical objections.
We may furthermore observe that, even apart from the difficulties in the way of the petitioners as set out above, we feel that there is no merit in this case. The case of the peti tioners rests on a mere technicality which has no relation to equity and justice. In these circumstances, we are not C prepared to use our discretion in favour of the petitioner even if the technical objection taken on behalf of the petitioner had succeeded before us. On this point we are fortified by a decision of a Division Bench of this Court in the case of Nawab Sir K. G. M. Farooqui Kt. v. The Province of East Bengal and another ((1957) 9 D L R 174). At page 180 of Report Akbar, J., who deli vered the judgment of the Division Bench, has observed as follows: ---‑
"Further, this discretionary relief can and ought to be refused if the defect is technical, and has not resulted in any injustice. Here the defect, if any, is merely technical, and has no relation to equity and justice, and so, on this ground also, we overrule this contention."
With regard to the necessity of pleading demand of justice and its refusal, at page 403 of the said Report, it has been observed :‑
"In this connection, reference may be made to the follow ing passage of Halsbury's Laws of England, Second Edition, Volume 9, page 771
"As a general rule, the writ will not be granted unless the party complained of has known what it was he was required to do so that he bad the means of considering whether or not he should comply, and it must shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that such demand was met by a refusal . . . . ."
As it is, even the technical point urged on behalf of the petitioner is devoid of any substance.
Thus, for reasons which we have sufficiently set out above, we discharge the Rule without any order as to costs.
I agree.
K. B. A.
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