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Writ Petition No. 25 of 1961, decided on 12th February 1962.

(a) Writ‑Affidavit‑in‑opposition‑

Officer filing such affidavit, not competent to depose as to facts averred in petition nor having any personal knowledge about things stated by him‑Affidavit cannot be relied upon.

S. 3‑Requisition of private property for providing office accommodation to officer concerned in performance of Village Aid work‑Records must show that attempt to obtain such accommo dation by private negotiations were made and that such attempt had failed‑Purpose for which requisition made, ceasing to exist Requisition order set aside.

Remedy by way of writ not barred where order is attacked as wholly without jurisdiction ‑ Petition for writ in such cases "more appropriate remedy".

Lt.‑Col. Nawabzada Amir Khan v. The Controller of Estate Duty and others P L D 1961 S C 119 rel.

Moinul Huq for Petitioner.

Maksum‑ul Hakim, Advocate‑General with T. H. Khan for Respondents.

MURSHED, J.‑

The petitioner Mritunjoy Paul is the occupier of, and claims to have interest in, certain properties appertaining to dag No. 1221 in, Mouza Sherpur in the District of Bogra. On the 14th of January 1961, an order was served upon him along with others under the illegible signature of a gentleman, who signed the same for the District Magistrate, Bogra, requisitioning the aforesaid properties together with all the structures thereon. The aforesaid order as served on the petitioner has been passed on a printed paper in From A, where it is shown that the requisition order was made for the purpose of providing office accommodation to the Development Officer, Village‑Aid, Sherpur.

2. The petitioner has stated in his petition that in the premises which was so requisitioned there was a bakery as well as the residence of the petitioner and other members of his family. He has challenged the order of requisition on various grounds and amongst others, it is his contention that the aforesaid order of requisition is wholly void inasmuch as it is not passed by the District Magistrate or any of the officer authorised to make the impugned order under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 as amended by East Pakistan Ordinance No. III of 1960. Secondly, it is contended by the petitioner that there is no public purpose in requisitioning the aforesaid premises for the office accommodation of the said Development Officer inasmuch as it does not appear that any attempt was made either by the said Development Officer or by the requisitioning authority to find as to whether office accommodation for the said Development Officer was available by private negotiation or that the said officer made any attempt procure such accommodation by his own efforts. Thirdly, it has been contended that the office of the Development Officer, Village‑Aid, has been abolished with effect from December 1961 and, therefore, the purpose for which the premises was requisi tioned is no longer there and the Rule is liable to be made absolute on this account.

3. The affidavit‑in‑opposition was filed on behalf of the respondents, by a Section Officer of the Government of East Pakistan in the Revenue Department. It is obvious that this Officer is not competent to depose as to the facts which have been averred in the petition. He claims to have made certain statements on the basis of the records in respect of the impugned order of requisition. We would like to say at the outset that this practice of filing of affidavit in such matters by Section Officer of the Government is not only undesirable but extremely unsatisfactory. Such affidavits are of no assistance to the Court as the said Section Officer has obviously no personal knowledge about the things he states in them. In most cases, as in the present case, it is difficult for us to place any reliance on such affidavits. There are various averments in the said affidavit‑in -opposition which are not borne out by the records which have been produced before us by the learned Advocate‑General.

4. The petitioner, however, has obtained a Rule nisi from this Court calling upon the respondents to show cause why the impugned order should not be cancelled, withdrawn or rescinded on the application made by him.

5. At the hearing of the Rule Mr. Moinul Huq, who appeared for the petitioner, pressed the contentions of the petitioner which we have already stated above.

6. As to the legality of the impugned order, the petitioners' case is, that the District Magistrate and not the gentleman who has signed the order of requisition, is authorised to make the impugned order under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 as amended by the said East Pakistan Ordinance No. III of 1960. It is contended on behalf of the respondents that, in fact, the order has been made for the District Magistrate as the signatory to the order did sign it for, and on behalf of the said District Magistrate. It is also contended that the officer, who passed the impugned order is competent to do so under subsection (2) (i) of the said Act as amended by the Ordinance No. III of 1960. Subsection (2) (i) of the said Act as amended by the Ordinance reads thus: --‑

"District Magistrate includes Deputy Commissioner and Additional District Magistrate and also includes 4 Deputy Magistrate authorised by him to exercise any power conferred, or any duty imposed, on him by or under this Act."

Neither the affidavit‑in. opposition filed on behalf of the respon dents nor the records of this case, produced by the Advocate General, discloses anywhere that the officer who passed impugned order was authorised by the District Magistrate to do so. It appears from the said record that the said Development Officer, Village‑Aid, Sherpur, addressed an application to the Deputy Commissioner, Bogra, for requisitioning the aforesaid premises for the office accommodation of the said officer. This gentleman, who has signed the impugned order and who is des cribed in the affidavit‑in‑opposition as a Senior Deputy Collector, directed a Kanungo to make an enquiry about the application. The Kanungo submitted a report to the effect that the aforesaid premises was suitable for office accommodation of the said Officer. Thereupon the Senior Deputy Collector passed the impugned order of requisition. It is, therefore, clear that the impugned order is wholly void, the said officer having no authority to make the same. The records show that the District Magistrate, on whose behalf, he has signed the impugned order of requisition, has had nothing to do with the aforesaid order. At no point the matter engaged the attention of the District Magistrate. It further appears that the Development Officer had merely addressed an application to the Deputy Commissioner for requi sitioning the aforesaid premises for office accommodation of the said officer. He has nowhere stated that he has made any attempt to obtain of such office accommodation by private negotiation and that, on such attempt, he failed to do so. Furthermore, it does not appear any where in the said application that such office accommodation was not available and that for this reason the aforesaid premises had to be requisitioned. The Kanungo, who submitted his report to the officer who passed the impugned order, has also not stated in the said report that office accommodation was not available by private negotiation. In these circumstances, it is evident that the officer, who passed the impugned order, did not at all considered whether there was a necessity for passing the impugned order. To provide office accommodation for a Village Development Officer might become a public purpose if such accommodation was not otherwise available by private negotiation, the said officer being concerned in the performance of an urgent public need. But it must appear from the records that an attempt has been made to obtain) such office accommodation by private negotiation and that such attempt had failed. Otherwise, there would be no public purpose in requisitioning the property of a private citizen for the purpose of such office accommodation merely on the ground that the said property is suitable for that purpose. Besides, the requisitioning authority has to consider whether the property is required for a public purpose.

7. The learned Advocate‑General has admitted that the office of the Village Development Officer, Sherpur, has been abolished and there is no such officer or office. In these circum stances, Mr. Moinul Huq has rightly contended that the purpose for which the impugned order of requisition was made, being no longer in existence the said order must be set aside. We/ 1 hold that there is substance in all the contentions of the petitioner is as indicated above and we uphold them.

8. On behalf of the respondents it was argued that the petitioner, not having availed himself of a remedy provided by the said Act, as amended by Ordinance No. III of 1960, he is not entitled to obtain a discretionary writ of mandamus from this Court. The amended Act provides for an appeal in the following terms: ---

"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."

In these circumstances, it was urged that the petitioner not having pursued the remedy provided by this Act, has disentitled himself to obtain a writ of mandamus from this Court.

9. In answer to this contention Mr. Moinul Huq has submitted, in the first place, that the petitioner was not aware of the amendment to the Act which had given a remedy by way of an appeal and, secondly, he has contended that, when the petitioner's case was that the order was wholly without juris diction, this Court would give him the relief prayed for, even if he had not availed himself of an alternative remedy by way of an appeal as stated above. We think that these contentions of the petitioner in this behalf must also be upheld. On this point we may refer to a decision of the Supreme Court of Pakistan in the case of Lt.‑Col. Nawabzada Amir Khan v. The Controller of Estate Duty and others (P L D 1961 S C 119). Mr. Justice Kaikaus, in delivering judgment of the Supreme Court has observed at page 127 as follows :‑

"The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion. As stated in Halsbury at page 107, 3rd Ed. Vol. II:

The Court will, as a general rule, and in the exercise of it discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective." "One of the well‑recognized exceptions to this general rule is a case where an order is attacked on the ground that it was wholly without authority. This exception was referred to in the very case on which reliance is placed by the learned Attorney‑General, i.e. Tariq Transport Co. v. Sargodha‑Bhera Bus Service P L D 1958 S C 437 and also in the later case of this Court, S. A. Haroon v. Collector of Customs P L D 1959 S C 177. In the last mentioned case an appeal against the order of Collector of Customs was actually pending when the writ petition was decided by the High Court, yet this Court refused to give effect to this preliminary objection on the ground that the order of the Collector was attacked as in excess of authority and a question of interpretation of law, which was of general importance, was involved. It may be pointed out here that in accordance with a passage in Balsubry (p. 130, 3rd Edn. Vol. 11), which is reproduced in S.A. Haroon v. Collector of Customs the objection as to existence of the rights of appeal which is available in a petition for mandamus is not available in a petition for certiorari at all. The passage runs: ---‑

"In the present case, the attack was on the very jurisdiction of the Controller to proceed with the assessment of estate duty on account of section 74‑A of the Estate Duty Act. An appeal had been filed during the pendency of the writ petition, but that could not stand in the way of the exercise of the writ jurisdiction by the High Court. In fact, in cases where an order is challenged as wholly without jurisdiction a petition E for a writ "appears to be a more appropriate remedy."

10. The observations quoted above is a complete answer to the contention of the learned Advocate‑General.

11. The result, therefore, is that we make the rule absolute and direct that the respondents to cancel forthwith the notice dated 14‑1‑61, served on the petitioner in L. A. Case No. 40 R. H. of 1960, issued from the office of the District Magistrate at Bogra requisitioning the properties mentioned therein.

12. It appears that the respondents have taken possession of a part of the properties. Learned Advocate‑General has given an undertaking to this Court that he would advise the respondents to restore possession of the rest of the premises to the petitioner.

13. The petitioner is entitled to the costs of this petition which we assess at seven gold mohars.

SIDDIKY, J.

---‑I agree.

K. B. A.

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