MUHAMMAD MUNIR, C. J.-This is a certified constitutional appeal from the judgment of a Division Bench (Ispahani and Khan, JJ.) of the High Court of East Pakistan quashing certain acquisition proceedings taken by the Provincial Government under the East Bengal (Emergency) Requisition of Property Act, 1948, and prohibiting that Government and its officers from giving effect to the order of acquisition .... (9 D L R 272).
2. Within the limits of Narayanganj Municipality, there is situate a holding, No. 118, 088 acre in area, and having on it a big brick-built structure for dwelling purposes, 2 tin godowns and a tin Gaddr Ghar with pucca floor. The property belonged to one Ramsundar Lodh and at the time of acquisition, was held by the descendants of Lodh and one Bakulrani Talukdar. The premises were requisitioned by the Pakistan Jute Board in February, 1951, and allotted to a firm of jute brokers, carrying on business in the name of Molla Baling Agency, at an annual rent of Rs.1,800. It appears that Mr. Moslem A.I Molla, Proprietor of the firm, who was a member of the Constituent Assembly and the Provincial Assembly, moved the Government to acquire this property for him. The Government issued the necessary instructions to the Land Acquisition Department, which obtained signature of the Additional District Magistrate on an order, dated the 18th February 1955, which was in these terms:--- "Whereas in my opinion it is expedient and necessary in public interest to requisition the properties described in the Schedule below for the administration and development of the Province of East Bengal and to make the following order in connection therewith.
Now, therefore, in exercise of the powers conferred by section 3 read with section 9 of the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948) which powers have been delegated to me by the Provincial Government I requisition the said property and do hereby make the following orders:-
(1) Subodh Chandra Lodh, 66/C, Jain Dass Road, Calcutta:-
(a) Shall place the said property at the disposal and under the control of the Collector on and from 28-2-1955.
(b) Shall furnish to the said-------------such information in his/her/their possession relating to the said property as the said ----------may by an order in writing specify.
(c) Shall not without my permission in any way dispose of the said property (or any part thereof as long as this order remains in force. Reg; Reqn. And Acqn. Of godown at holding No. 118, Bhagabaraganj on behalf of Molla Baling Agency. C. S. Plots Nos. 24-P and 26 of Mauza Bhagabanganj.
(2) No. 187 (Municipality), P. S. Narayanganj Total Area ..........------------------..
088 acre.
(Sd.) Illegible.(Sd.) Illegible.(Sd.) Illegible.
16-2-5516-2-55 Add). L. A. C., DaccaL. A. C., DaccaAddl. District Magistrate, Dacca.
3. The necessary proceedings for requisition having been taken a case for acquisition under section 5 of the Act was started. But before the property could vest in the Government under subsection (7) of that section, the owners of the property made an application in the High Court under Article 170 of the Constitution, the main ground of the application being that the property was not acquired by the Government for a public purpose but for the benefit of a private party and that therefore tie requisition and acquisition were both illegal. The learned Judges who heard the application accepted the contention raised and issued the writs prayed for. They however, certified the case to be a fit one for appeal to the Supreme Court.
4. On behalf of the Government of Pakistan, the appellant before us, Mr. Khandkar has attacked the order under appeal on two grounds, first that the Government declaration that the property was required for a public purpose is not justifiable, and second that if it be held otherwise the requisition was in fact for a public purpose. The learned Judges, after referring to several Indian cases, have held that as in India, the question whether a property has been acquired for a public purpose is justiciable in Pakistan. This question has not been approached by the learned Judges from a correct standpoint and in their order no indication is to be found as to how, if a Pre-Constitution Act is saved by clause 2(a) of Article 15 of the Constitution there can nevertheless be an objection that the Act is being used for the purpose of acquiring property after, the coming into force of the Constitution. They appear to have drawn a distinction between the validity of a Pre-Constitution Act and the validity of an order passed under that Act after the commencement of the Constitution. This distinction is somewhat difficult to follow because if the order is not valid under the Act it is made, the distinction between a Pre-Constitution Act and a Post-Constitution Act ceases to be material, and if the learned Judges meant to say that though the Act may by reason of clause 3(a) of Article 15, continued be valid, the order passed under that Act after the commencement of the Constitution will be invalid, the proposition cannot be easily accepted. In the present case, however, we do not intend to pursue this question and would prefer to adopt the course that we did in the Province of East Pakistan v. Ajit Kumar Das decided on 2nd December 1957, during our last Dacca Session, of first inquiring whether the order impugned in the present case was a valid order under section 3 of the Act, which is as follows:- "If in the opinion of the Provincial Government it is expedient or necessary so to do for the administration and development of the new Province of East Bengal or for any other public interest connected therewith such as improvement to towns or ports, construction or betterment of roads, waterways or other com--munications, development of commerce or industries, maintenance of supplies and services essential to the life of the community and other similar purposes, the Provincial Government may by order in writing requisition any property and may make such further orders as appear to that Government to be necessary or expedient in connection with such requisition."
5. The powers conferred by this section on the Provincial Government can under section 15 be delegated by that Government to such officers, as may be specified by an order notified in the official Gazette. It appears that such delegation of powers had been made by the Provincial Government to the Additional District Magistrate, who made the order in this case.
6. When powers of the Provincial Government have been, delegated to an officer, that officer is substituted for Provincial Government for the purposes of section 3, with the result that it is he who has to form an opinion that it is expedient or necessary to requisition any pro--perty for the administration and development of the Province of or for any other public interest connected therewith. The record shows that the opinion which is a sine qua non for the making of an order under section 3 was not at all formed by the Additional District Magistrate who made the order. The Provincial Government seems to have received a written or oral request from Mr. Mollah for the acquisition of this property for his firm and the Government appears to have directed the Land Acquisition Department to acquire the property. The case proceedings, dated the 12th January, 1955, read: "Seen G. O. No. 18012-Reqn., dated 30-12-1954, directing that the godown at holding No. 118, Bhagabangang, should be requisitioned immediately under E. B. (Emergency) Reqn. Of Property Act, 1948, on behalf of M/s. Mollah Baling Agency and that formal possession should be delivered to the said Agency on their depositing the entire estimated cost of requisition and acquisition of the property and on executing the necessary agreement bond."
7. This order was signed by an officer whose signatures are not legible and on the same date there is another note signed by the same or a different officer, the signature again being illegible, reciting:--- "Reqn. Notices prepared by Nazir and signed by me. Nazir will serve the notices after obtaining signatures of L. A. C. And A. D. M."
8. It is perfectly clear from these proceedings that the Additional District Magistrate who made the order under section 3 merely acted as a tool of the Land Acquisition Department or the Government and did not a at all apply his mind to the question whether it was necessary or expedient to requisition the property for a public purpose. On this ground alone, therefore, the order must be held to be invalid. In the course of arguments we asked Mr. Khondkar several times whether the opinion to be formed under section 3 was formed by the Provincial Government or by the Additional District Magistrate and, after giving some hesitating replies ultimately stated that the responsibility for the requisition order was that of the Additional District Magistrate. He had no alternative but to adopt that position because on the record there is nothing to show that the requisite opinion was formed by the Provincial Government itself.
9. There can also be little doubt that the requisition was made and acquisition was intended to be made for the personal benefit of Mr. Moslem A.I Mollah. This gentleman at the relevant time was in possession of the property, under an allotment on a rent of Rs. 1,800 per year, and there is nothing to show why the Government or the Additional District Magistrate became dissatisfied with the existing arrangements and found it necessary permanently to acquire the property for Mr. Mollah under a temporary Act. This coupled with the fact that after commencement of the acquisition proceedings, when the Land Acquisition Department estimated the value of the land at Rs. 1,50,000 per acre, Mr. Mollah intervened and attempted to persuade the Department to reduce the value to Rs. 18,000 per acre does not leave the real motive behind the requisition to remain a matter of doubt and no Court could resist the finding that the object of the acquisition proceedings was to give to Mr. Molla valuable property belonging to Pakistan citizens and a foreign national just for a song. We, therefore, agree with the following finding recorded by the learned Judges: "We therefore, hold that existence of the public purpose is the foundation of the power of the Provincial Government to requisition the premises under section 3 of Act XIII of 1948 and a is a condition precedent for the exercise of that power. The East Bengal (Emergency) Requisition of Property Act (Act XIII of 1948) empowers the Government to requisition property for the purpose set out in section 3 of the Act. In other words, the Government is given the right to take the land of an individual in the interest of the community as a whole or for the benefit of a considerable number.
The Act in our opinion, does not empower the Govern--ment to give the property of a private individual to another private individual."
The entire proceedings purporting to have been taken under the Act were thus a palpable fraud on the Act and the writs objected to were rightly issued by the High Court.
10. The appeal is dismissed with costs.