1. SIDDIQI, C. J.---The petitioner in this Rule, one Radha Kanta Banik of Dewanbari Road, P. S. Kotwali, District Rangpur, has challenged the validity of requisition and acquisition notices dated 30th of May 1966 and 9th of July 1966.
2. Petitioner's case is that he is a Pakistani citizen and has been for the last 30 years carrying on the business of a petrol and kerosene distributor of Caltex Ltd. At Rangpur. He has been for this purpose running a pump on Dewanbari Road in the town of Rangpur and alongside which he had two godowns for storage of kerosene oil. It is the further case of the petitioner that in the same premises he was carrying on business of some other articles, namely, Motor batteries, Motor parts, paints, etc. According to him he was carrying on this business under a licence obtained from the Government for dealing in combustible items to the satisfaction of everyone concerned. We shall here record certain dates which are necessary to follow the sequence of events upon which the adjudication of this case depends.
3. On the 6th September 1965, no sooner had India attacked Pakistan, a State of Emergency was declared by the President of Pakistan, and to meet the situation, the Deputy Commissioner, Rangpur, as far as he was concerned, directed, by an order, the petitioner not to sell any petrol, kerosene and other com--bustible products that he was dealing without special permits issued in that behalf by the Deputy Commissioner, Rangpur. He further directed the petitioner to disclose the quantity of petrol that he was holding. On the 8th of September 1965, the petitioner was arrested under the Defence of Pakistan Rules, and on the 10th of September 1965, the Deputy Com-- missioner requisitioned under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter referred to as the Act), all movables and immovables including the petrol pump and the structures in which kerosene was stocked except the lands on which the structures and petrol pump stood. On the following day, possession of the petrol pump and the kerosene godowns were handed over to the District Marketing Representative of Burmah Shell by the Deputy Commissioner for carrying on the sale of the essential commodity. On 25-9-65 the representative of Caltex Ltd. Arrived at Rangpur and on 29-9-65 he applied for requisition and acquisition of the structures, etc., including .11 acre of land on which the petrol pump and the Kerosene godowns stood for their new distributor. On 4-10-65 the authorities delivered possession of the petrol pump and the godowns to the representatives of Caltex. On 8-10-65 Ashish Corporation was appointed by Caltex as their distributor and the Deputy Commissioner approved of the appointment of this Corporation by Caltex and on the same day Ashish Corporation took delivery and possession of the petrol pump and the godowns. On 30-9-65 another order was passed by the Deputy Commis-- sioner, Rangpur under Rule 119 of the Defence of Pakistan Rules requisitioning the self-same petrol pump, the kerosene godowns, the lands and other structures standing thereon. Thereafter, on 29-1- 66, notice under section 5 of the Act for acquisition of the land was issued, and the proposal for acquisition was sent to the Government for approval on 25-4-66. On 30-5-66 the notice under section 119 of the Defence of Pakistan Rules was withdrawn and another notice under section 3 of the Act requisitioning 11 acre of land on which the petrol pump and the godowns stood was issued.
4. On the 31st of May 1966, notice under section 5(1) of the Act was issued for acquisition of the said 11 acre of land. On the 9th of July 1966, notice for acquisition of the movables and immovables including 11 acre of land of the petitioner being No. 1022-Reqn. Was issued by the Government and the same was published in the Dacca Gazette of July 21, 1966. On the 10th of July 1966, the petitioner was released from custody. On 27th July 1966 the petitioner filed applications before the Government praying for withdrawal and setting aside of the requisition and acquisition order. On 12th of September 1966 the petitioner filed an apple--cation before the District Judge, Rangpur who under the law is the Arbitrator for fixing compensation for acquired lands and properties. On 11-12- 66 the Provincial Government rejected the applications of the petitioner under section 4-A(2) and section 8-B of the Act. On 16-1-61 the Deed of Transfer was executed by the Deputy Commissioner on behalf of the Governor in favour of Ashish Corporation, the distributors of Caltex Ltd., and on 30- 1-67 the acquisition proceedings were confirmed by the Com--missioner of Rajshahi Division in terms of the rules framed under the Acquisition Act applicable to acquisition of lands and the East Bengal (Emergency) Requisition of Property Act, 1948 as well.
5. The petitioner's case is that the requisition and acquisition of his properties is bad in law because there is no public purpose behind this requisition and acquisition; that the requisition and acquisition is also bad on the ground of non-fulfilment of require--ments of law; and that the acquisition of the land in any view of the matter is wholly without jurisdiction. The petitioner stated that he was running the petrol pump and the distribution of kerosene oil to the satisfaction of all until the 10th of September 1965, and even during the first 3 or 4 days of the War, he did not at any point of time stop supplying petrol or kerosene as required by orders issued by the Deputy Commissioner, and that taking advantage of his detention under the Defence of Pakistan Rules and at the instance of Ashish Corporation which is owned by an influential person of Rangpur, his pro--perties have been taken away to benefit the said Ashish Corporation; as such, the requisition and acquisition also suffered from mala fides on the part of the authorities.
6. Mr. Hamidul Haq Choudhry, the learned Advocate for the petitioner, argued that the requisition in the present case can, under no circumstances, be held to have been done for a public purpose or in the public interest, because the requisition and acquisition of one of the five petrol pumps of Rangpur Town, even during the Emergency period, cannot be considered to be a public purpose.
7. Secondly, the purpose for which the petrol pump and the godowns were initially requisitioned did not remain so, as will be evident from the requisition notice dated 30-5-66 in respect of the land wherein it has been mentioned that for development of commerce the requisition was being made. Mr. Choudhry wanted to argue that the two requisition orders, if taken together, has the cumulative effect of disclosing the fact of requisition and acquisition to have been made for development of commerce of the Province. Mr. Choudhry's contention has been that such a business, i.e. a petrol pump, cannot be said to be such an essential item for the development of commerce of the Province that the Emergency law of requisition has to be applied for depriving one individual for the benefit of anther.
8. On the 6th of September 1965 Pakistan was put into the greatest of jeopardy by the uncalled for and clandestine attack by India without any declaration of War. On the 7th of September, in the morning at about 7 o'clock Indian Air Force Planes came over the skies of East Pakistan and Rangpur town was subjected to aerial bombing. Rangpur is a border district and the town itself is not very far from the border itself. Pakistan was surrounded by enemy troops and any moment the border could have flared up. For the movement of modern army petrol is undoubtedly one of the most essential items. Kerosene too, in the circumstances, can, without any fear of contradiction, be said to be an essential item. The petitioner who alleges to have been loyally serving the State and distributing the oil to the satisfaction of everyone concerned including the Deputy Commissioner, the highest executive authority in the District, and from one or two of whom he has also obtained certificate of good conduct as appended to the affidavits, was by the same District Authorities taken into custody on the 8th of September 1965 under the Defence of Pakistan Rules. The maintenance and running of this petrol pump and the supply of kerosene oil and other necessary accessories in which the petitioner was dealing was, in our opinion, essential to be guarded and controlled and as such we find no reason to hold that there was no public purpose behind the order of the Deputy Commissioner dated 10th of September 1965 for requisi--tioning the movables and immovables of the petitioner connected with the petrol and kerosene business including the stock of petrol and kerosene. To keep it going, the Deputy Commissioner appointed the District Marketing Representative of Burmah Shell as man in charge of these combustible articles. We do not think that we shall dilate any further to show the importance and the necessity of the commodity vis-a-vis the time at which this was requisitioned to establish the public purpose behind the order of the Deputy Commissioner made on the 10th of September 1965.
9. Next, Mr. Hamidul Haq Choudhry's contention has been that there was no notice served on the petitioner for requisition in terms of law and therefore there was no valid requisition on this score as well. Section 4 of the Act provides for service of the notice of requisition. Mr. Hamidul Haq Choudhry argued that the whereabouts of the petitioner were certainly known to the Deputy Commissioner who himself on the 8th of September 1965 had taken the petitioner into custody under the Defence of Pakistan Rules, and as such, in terms of section 4 of the Act, it was incumbent on the Deputy Commissioner to have served the notice of requisition on the petitioner personally in Rangpur Jail.
10. No attempt, according to Mr. Choudhry, was made by the Requi--sitioning Authority to serve the notice on the petitioner inside the Rangpur Jail. We do not see any force in this argument of Mr. Hamidul Haq Choudhry because it is not the duty of the Requisitioning Authority to have a notice of this nature served inside a jail upon a detenu even though it may be within his knowledge that the proprietor of the Firm was detained there. The notice in terms of section 4 of the Act was served on the premises but it could not be served on any adult member of the family as none was available either on the premises or in their homestead which is adjacent to the petrol pump It is admitted by the petitioner that his wife and children and all other members of his family were away to Calcutta from long before the declaration of Emergency on the 6th of September 1965. Section 4 provides for service of notice on the premises in the presence of the owner or any adult male member. We have looked into the notices and the Returns made by the process-server on the back of the notice, and from those it cannot be said that the notices were not properly served in terms of section 4 of the Act. Apart from that, the notice is for the purpose of the owner, that his property was sought to be requisitioned or being requisitioned. The petitioner on his release from detention on the 10th July 1966 immediately moved the Government for cancelling the order of requisition and acquisition. In a case of this nature, we do not think that there is any defect in the service of the notice. So, on this point also, we find no substance in the case of the petitioner.
11. Now, with regard to the question of mala fides, it has been the case of Mr. Hamidul Haq Choudhry that there was no necessity for requisitioning this property from the hands of the petitioner as he was running the business even during the first 2/3 days of the War to the satisfaction of everybody as will be evident from his account of supply of petrol to the different authorities including the Army, Fire Service and the Police, except with a mala fide intention of benefiting the proprietor of the Ashish Corporation at the cost of the petitioner taking advantage of the situation. We do not find any substance in this contention of Mr. Choudhry because we find Ashish Corporation no where near the scene until the 8th of October 1965 when for the first time the Representative of Caltex who had gone from Dacca to Rangpur appointed Ashish Corporation as their distributors for the pump in question which was previously run by the petitioner and requested the Deputy Commissioner to give possession of the pump and the godowns to Ashish Corporation as the licence for distributing combustible commodities.
12. Next Mr. Choudhry's contention has been, on which he has put very great emphasis, that the acquisition of the lands of Plots No. 4219 on which the pump stands and No. 4220 on a part of which kerosene godown stands and from where he runs business in other commodities, can, under no circumstances, be sustained in: law. According to Mr. Choudhry, the mala fide character of the requisition and acquisition of the properties in question of the petitioner is clear from the manner in which the acquisition proceedings were dealt with by the office of the Deputy Commis--sioner, Rangpur. Mr. Choudhry, in this connection, has placed before us the entire Order Sheet of the case which has been annexed to his petition. He has, upon a reading of different orders made from day to day tried to show that the Land Acquisi--petition Officer who is not the authority to pass any order of requisi--petition or acquisition had gone out of his way to help Ashish Corporation to acquire this property of the petitioner. We have looked into the Order Sheet. It is true that certain orders were: passed for acquisition of the land prior to any requisition notice under section 3 was issued. We do not accept the proposition that the Land Acquisition Officer had not the authority to make the orders as we find that the Land Acquisition Officer who is an Assistant Commissioner is authorised under section 2 of the Act to pass the requisition and acquisition order as is permissible for the Deputy Commissioner. When the Deputy Commissioner asked for the approval of the Government for the acquisition of the property, the Government pointed out to the District Authorities the defect in the Acquisition Notice issued by them under section 5(1) of the Act on the ground that no notice under section 3 of the Act for the requisition of the lands had been issued earlier. Immediately on receipt of this instruction from the Government, the Deputy Commissioner issued a notice under --section 3 of the Act requisitioning 11 acre of land only on which stand the petrol pump and the kerosene godowns. The pump with its accessories stand on Plot No. 4219 and part of Plot No. 4220. It is admitted by the petitioner that he is not the proprietor of Plot No. 4219. He has asserted that he is the tenant-- in respect of that plot on which the pumps stands which, according to him, belongs to one Radharaman Banik. This Radharaman Banik has not challenged the order of' requisition and acquisition of Plot No. 4219 and we think that the petitioner is not entitled to maintain a petition against order of requisition or acquisition of Plot No. 4219 which does not belong to him. 1n this connection, Mr. Choudhry's further argument has been that it was not only the petrol pump and the-- kerosene business that the petitioner was running but was also selling certain commodities from the said premises which are not at all either combustible articles or in any way connected with the kerosene or petrol business. Those, according to Mr. Choudhry, are paints, brushes, car batteries, phenyl and electric bulbs. He therefore submitted that those not being essential items could not be requisitioned by the Deputy Commissioner. In the situation prevailing at time, i.e. In the first week of September 1965 he cannot say that electric bulbs, phenyl, car batteries, paints were not essential items specially in a border district like Rangpur, and in the circumstances of the case, if the Requisitioning Authority on whose subjective satisfaction depends the requisitioning of any property felt that these items were also necessary to be-- requisitioned, we cannot question that subjective satisfaction of the Requisitioning Authority. Mr. Choudhry's contention that these items of merchandise were also taken away to benefit Ashish Corporation cannot also be held to be reasonable. As these items are actually requisitioned, it will be for the authorities to deal with these directly or to entrust some one to deal with these under their order, control and guidance.
13. With regard to the requisition and acquisition of a part of plot No. 4220, Mr. Chowdhry's submission has been that the land of this plot has been requisitioned and acquired only to oust the petitioner from the rest of Plot No. 4220 for reasons that there is no egress and ingress from and into the rest of Plot No. 4220 on which stands his homestead except through a door in between the petrol pump and the kerosene godown which is approach--able only through the petrol pump premises. On this count also, Mr. Choudhry wanted to argue that the requisition should be held to be mala fide.
14. We have already said that a small part of Plot No. 4220 is covered by the petrol pump and its accessories, the rest of which is covered by the kerosene godowns. The whole thing has been requisitioned and acquired for the purpose of supply of the essential item for the maintenance of normal life of the community. In answer to this contention of Mr. Choudhry, the respondents have, in their affidavit-in-opposition, asserted that there are two passages by the east and the west of Plot No. 4220 and as such no inconvenience whatsoever is caused to the petitioner in the use and occupation of his house standing on the said plot.
15. Now coming to the question of acquiring the entire premises from which it can be said that the requisition in this case was made with a mala fide intention of depriving the petitioner or to benefit any particular individual and/or whether this requisition is bad for any other defect, namely, application of the mind and non-observance of the law, we may say that, as far as the public purpose for requisition of his property is concerned, we have not the slightest doubt in our mind that there could not be any better public purpose for requisitioning a petrol pump and kerosene godowns at the time when it was so done. We have already said that we find no defect in the observance, of law for the requisitioning of this property. We shall only take note of another fact in this connection and that is the argument of Mr. Choudhry that the first notice under section 3 of the Act issued on the 10th of September 1965 stood cancelled or withdrawn by virtue of the fact of a notice under Rule 119 of the Defence of Pakistan Rules having been issued on the 30th of September 1965 and therefore the acquisition notice and requisition notice dated 10-9-65 is bad in law. In answer to this, the learned Advocate---General has contended that the notices under section 3 of the Act did not die a natural death only because the notice under Rule 119 of the Defence of Pakistan Rules was issued on the 30th of May 1965. At best, according to him, it could be said that the notice under section 3 of the Act lay dormant for the time the field was held by Rule 119 of the Defence of Pakistan Rules, but with the cancellation of the notice under Rule 119 of the Defence of Pakistan Rules the notice under section 3 of the Act came back to its own with all force, and therefore it cannot be argued that there was no requisition pending upon which the acquisition notice of 9th July 1966 could be issued. In the event of the requisition under section 3 of the Act being issued by the Authorities in respect of any property, the position, as we can see, is that, unless it is withdrawn, cancelled, or rescinded the notice cannot be said to be dead or inoperative.
16. The acquisition notice of 9th July 1966 refers to the two requisition notices dated 10-9-65 and 30-5-
66. Thus, we find no defect with regard to the pendency continuance in force of any of the two notices under section 3 of the Act issued on the aforesaid two dates upon which the notice for acquisition under section 5 of the Act was issued on the 9th of July 1966.
17. With regard to the defective notice under section 5 of the Act which was cancelled and fresh notices were issued on 30-5-66, we may only say that these notices were issued as a result of mis- appreciation of the provisions of law by the District Authori--ties, and with the issuance of the fresh notice under section 3 of the Act on 30-5-66, those irregular notices stood cancelled and cannot be argued now to have been issued mala fide with intent to benefit Ashish Corporation as alleged by the petitioner. In this connection we are fortified in our view by the decision of the Supreme Court in the case of Ekramul Haq and another v. The Province of East Pakistan and others (16 D L R 121 (SC)).
18. PLD 1968 SC 185). In these two decisions the Supreme Court had to consider the question of the effect of notifications acquiring the rent-receiving interests by notifications which were found to be illegal or not valid in terms of the Fundamental Rights guaranteed by the Constitution. The Supreme Court has held that even though it may be so the acquisition cannot now be declared to be invalid because the whole thing has become a complete fact. In the present case also, as will be evident from the dates mentioned earlier, the requisition and acquisition has been completed; the transfer deed had been executed on 16-1-67; and the acquisition has been confirmed on 30-1-
67. If we would have found mala fide or illegality or want of public purpose in the acquisition of these properties of the petitioner, certainly, in spite of the fact that the acquisition stands completed today, we might have intervened in the matter. But, as already stated we find no cause for complaint either on the ground of no public purpose, mala fide, non-observation of the law and non-application of the mind by the Requisitioning Authority. The petitioner in his petition of objection before the Government dealt with the matter as a whole covering lands of Plots Nos. 4219 and 4220 and the other movables requisitioned. The petitioner did not make out separate cases for lands of Plots Nos. 4220 and 4219 and the other properties requisitioned, as has now been argued before us by Mr. Choudhry. He should have, if he wanted to raise this question squarely, moved objection petitions separately regarding the lands of Plots Nos. 4220 and 4219 and other land. He having not done so, we cannot, at this stage sitting in Writ Jurisdiction, allow him to do so. For this we may refer to the case of Ekramul Haq and another v. The Province of East Pakistan and others where the Supreme Court held that, if a point which the petitioner could have agitated before the Appellate or Revisional Authorities has not been done by him, he cannot be allowed to do so at a later stage when he comes under Article 98 of the Constitution. The other point which goes against the petitioner is that he applied to the District Judge for arbitration with regard compensation assessed for the properties requisitioned. We have been taken through this application wherein, of course, the petitioner has said that he has taken objection to the requisition itself and his application for arbitration should not be dealt with until the objection has been finally decided by the Government, yet it cannot be said that he had not, to some extent, waived his right by asking for arbitration about the compensation assessed for the properties acquired. The theory of approbate and reprobate may not fully apply to the present case as is argued by the learned Advocate---General, but the petitioner, in our opinion, has tried to put his finer in every pie including asking for arbitration of the assessment made by the Requisitioning Authority which amounts to his conceding, though indirectly, to the requisition and acquisi--petition of the lands.
19. However, we do not put much of importance to this aspect of the case as is prayed for by the learned Advocate---General.
20. Another contention of Mr. Hamidul Haq Choudhry was that this was a running business and the Act does not permit requisition or acquisition of a running business. We cannot agree with Mr. Choudhry because the property, as defined in sub--section (2) of section 3 of the Act, does not make a distinction between a business running or not or any other property, "Property" defined in the said subsection means "any movable or immovable property". In this connection, Mr. Choudhry further contended that a running business cannot be acquire because there is no provision for giving compensation for suet a business or goodwill or expectation of profit. We do no think there is any substance in this contention of Mr. Choudhry The law contemplates payment of compensation at the market value of the tangible properties taken possession of under the law.
21. We shall, before we part with this case, express our view on the point of Court's jurisdiction to interfere with a matter like this. We think it is purely up to the executive authorities to decide the quantum of land or the nature of property that is to be requisitioned for public purpose. Once a public purpose is found behind a requisition order, it is not for the Court to say that so much or so little should not have been requisitioned. It is the executive authority who knows the requirements for the purpose for which the requisition is made and the Court is not supposed to know all that and therefore the Court never interferes on this aspect of the case. We have several decisions of out A Supreme Court and the High Courts on this aspect of the case. Sitting here we cannot say as to whether that little quantity of land of Plot No. 4220 on which two kerosene godowns stand are necessary to be acquired for continued supply of this essential commodity. It is for the authorities to do so, and unless we find mala fide in their action or want of public purpose or want of application of the mind which is very closely connected with the question of mala fide, we cannot interfere with this discretion of the executive authority: for the reasons stated above, we find no substance in this application. The Rule is accordingly discharged but without any order as to costs.
22. ABDUL HAKIM, J.---I agree.