An order of requisition made under the West Bengal Security Ordinance, 1949, must be made in strict conformity with the provisions of the Ordinance and must be for a purpose contemplated by the Ordinance.

Harries, C. J. :- This is a petn. filed under Art. 226, Const. Ind. praying for the issue of a writ of certiorari or mandamus in respect of an order of requisition made by the Dist. Mag: of Malda.

2.I would state at the outset that a writ of certiorari is not appropriate, but that this is a case in which the Ct. can be asked to issue a mandamus if the facts are established as suggested.

3. The petnr. is a pleader who resided in a house No. 34, Bundh Road, English Bazar, Malda. He was a tenant of one Sri Tarapada Das who was a police officer in the employ of the East Bengal Govt. Apparently, he had been in the service of the old province of Bengal and on partition ho elected to serve under Govt. of East Bengal which is of course a part of Pakistan.

4. In Oct. 1948, Tarapada Das came to reside at Malda and lived in a house which he rented. He eventually applied to the Dist. Mag. who requisitioned a part of the house, of which the petnr. was tenant. The order requisitioning a part of the premises was made on 12-10-1949 and on 17-10-1949, Tarapada Das was put in possession of the part so requisitioned and the petnr. was left with practically only one room.

5.It is suggested on behalf of the petnr. that his order of requisition was wholly invalid as was not made under any valid provision of law. The requisition order was made under cl. 31 (1) read with cl. 41 of Ordinance ii [2] of 1949. That Ordinance was replaced by the West Bengal Security Act, 1950, which came into force on 31-3-1950 and s. 40 of that Act provided that any order issued under the Ordinance which was in force immediately before the Act came into force was to be deemed to be an order made or issued under the corresponding provision of the Security Act.

6. On 21-8-1950 the petnr. obtained this rule and shortly afterwards this Bench held that s. 38, West Bengal Security Act, was ultra vires the Const. Ind. Section 38 dealt with the right of Govt. to delegate their powers under the Act. The section provided that the Govt. could delegate their powers to any officer and this Bench held that the section was ultra vires and void. The result of that decision was that there was no power in the Act, when s. 38 was eliminated, providing for delegation and, therefore, orders passed by officers to whom powers had been delegated were invalid.

7. The present requisition order was made by the Dist. Mag. as powers had been delegated to him under s. 38 of the Act. Therefore, the order, it is said, could not be regarded as validly made after the decision of this Court to which I have made reference.

8. The State Govt. realised the position and the West Bengal Security (Second Amendment) Ordinance, 1950, that is, West Bengal Ordinance xiv [14] of 1950, was promulgated. By cl. 2 of that Ordinance, a new section is substituted for old s. 38 of the Act. The new section provides that powers of Govt. can only be delegated to certain more senior officers of Govt. It is also provided by cl. 3 of the Ordinance that the same is to be retrospective and that orders previously made are to be deemed to have been always valid as if made under the Ordinance.

9. Later the West Bengal Security Act (LXI [61] of 1950) was passed and the provisions of Ordinance xiv [14] of 1950 were incorporated in the Act. It is to be observed that this later Act received the assent of the President of the Republic on 31-3-1950.

10. The first point taken by Mr. Chakravarty on behalf of the petnr. was that the Dist. Mag. had no power whatsoever to make the order. The order was made whilst Ordinance ii [2] of 1949 was in force which, as I have said, was superseded by the West Bengal Security Act XIX [19] of 1950. Section 38 of this latter Act having been declared ultra vires and invalid Ordinance xiv [14] of 1950 was passed which was subsequently replaced by the West Bengal Security Act, lxi [61] of 1950. What is suggested is that Ordinance xiv [14] of 1950 was invalid and, therefore, no delegation was permissible at all