Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Writ Petition No. 162 of 1962, decided on 8th August 1962.
Words "in excess" in S. 44(3)‑Relate to lands which persons mentioned in S. 20(2) are "entitled to retain" and refer to quantum of 375 standard bighas which is limit fixed by proviso to S. 20(2)(a) & (b)‑Words have no reference to lands outside class of such retainable lands --Hat by virtue of S. 20 (2a), not being such retainable land cannot vest in Provincial Government under S. 44(3).
Provision of Art. 146 relates to law of escheat and vesting in Government of ownerless property‑Operation of S. 20 (1) does not automatically render hat in possession of person res mullius within meaning of Art. 146.
M. H. Khondakar and M. R. Khan for Petitioner.
Maksum‑ul‑Hakim, A. G. and S. M. Abbas for Respondents.
Dates of hearing : 2nd, 3rd, 6th, 7th and 8th August 1962.
The petitioner, Md.. Abbas Ali Mia, as Secretary of the Muktagachha Abbasia Senior Madrassa, has filed the present application and has obtained the Rule nisi which has come up for hearing before us.
2. It is alleged that a hat', known as Trimohini hat which is held on plots Nos. 274 and 278 (measuring 1'32 acres and '24 acres, respectively) of mouza Gandharbapur and plots Nos. 289 and 303 (now 313 and 317) (measuring '70 acres and 1'01 acres now 1' 14 acres, respectively) of mouza Payarkandi, is owned and possessed by the petitioner in his capacity as Secretary of the said Madrassa in raiyati right under respondent No. 1, Province of East Pakistan. The said lands have been duly recorded, in the current survey settlement under the provisions of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII off' 1951) (hereinafter called the Act) in khatian No. 67/2 of mouza Gandharbapur, J. L. No. 43, and khatian No. 36 of mouza Payarkandi, J. L. No. 62, as a raiyati interest, in possession of the Secretary on behalf of the said Madrassa. Copies of the above‑mentioned khatians have been appended to this petition and marked as Annexures A and A(1), respec tively. It is claimed that the petitioner as Secretary of the said Madrassa never was, and is not, a rent receiver in respect of any land in the Province of East Pakistan. It is alleged that on account of certain disputes with the late Maharaja Shashi Kanta Acharyya Chowdhury in respect of the management of the Dari Charani Bazar of Muktagachha, the local public started and established in 1355 B. S. (corresponding to 1928‑29 A. D.) a hat, known as the Trimohini hat on plots Nos. 274 and 278 of mouza Gandharbapur, belonging to one Sabu Shaikh (now deceased) in raiyati right. The said Sabu Shaikh made a gift of the said plots of land and delivered possession thereof to the aforesaid Madrassa, which was started shortly after the hat was established, for the purpose of maintaining and running the Madrassa. Since then, the lands are being owned and possessed in raiyati interest on behalf of the said Madrassa by its Secretary. It is said that the landlord of Sabu Shaikh, who was indebted to the said landlord, won over Sabu Shaikh and obtained a registered kabala, dated the 1st of Sravan, 1340 B. S. (17th July 1933 A. D.), with a view to make the said plots of land as landlord's khas lands of the said landlord in order to destroy the said hat. Eventually, the landlord, however, recognised the tenancy as belonging to the said Madrassa which continued to retain such possession for over twelve years in tenancy right. The Madrassa is maintained with the income derived from the said hat.
3. The above‑mentioned Madrassa, which imparts religious education, had been growing from strength to strength, and it became necessary to extend the hat in order to obtain larger income for the Madrassa and to meet the expenses of its extension. Accordingly, one Md. Abbas Ali Mia, namely, the Secretary of the said Madrassa, acquired plots Nos. 289 and 303 (313 and 317 in the new record) of mouza Payarkandi, which were contiguous to the said hat, namely, the hat on plots Nos. 274 and 278 of mouza Gandharbapur, in ijara, in the first instance, for a period of nine years from 1351 B. S. to 1959 B. S. and made a gift thereof, delivering possession of the same, to the said Madrassa. The income thereof, has always been appropriated by and/or spent for the up‑keep and maintenance of the said institution which is a religious and charitable institu. tion. The said Md. Abbas obtained renewal of the tenancy for the benefit of the Madrassa from the landlord for another period of nine years from 1360 to 1368 B. S. and the said Madrassa is in ownership and possession of the same under the landlord. After the acquisition of all rent‑receiving interests in East Pakistan by the Government, the Madrassa is holding the land as tenant directly under the Provincial Government. The petitioner further claims that the landlord purchased the said plots from the original owners and made over the said title deeds to the lessee at the time of the aforesaid settlement. The petitioner has averred that the lands constituting the aforesaid hat are being held as a public wakf and/or as a public trust having been dedicated by the persons mentioned above in the manner aforesaid for a religious and/or charitable purpose, namely, imparting religious instruction. The entire income of the said hat is spent for the purpose of the said Madrassa.
4. While matters stood as stated above, some time in 1959, the Collector of Revenue, Mymensingh, included the said hat for auction‑settlement of the same on the footing that the same belonged to the Provincial Government. The management of the Madrassa then moved the Member, Board of Revenue, East Pakistan, for the cancellation of the aforesaid order for putting up the said lands to sale, and the said Member, Roard of Revenue, allowed the said prayer by a memorandum, being Memo. No. 6207 SM., dated the 24th of December 1959, with the result that since then the possession of the Madrassa with regard to the said hat was never disturbed and the same was never included in the list of annual auction of hats and markets.
5. However, in a notification published on the 13th of February 1962, the said Trimohini hat was included in a list of hats which were to have been auctioned for settlement for the year 1361‑62 B. S. The petitioner as Secretary of the said Madrassa applied to the Additional Deputy Commissioner. Mymensingh, not to proceed with the proposed auction and the auction was accordingly stayed until further order. The peti tioner made an application before the Board of Revenue for vacating the order for putting the said hat to auction‑settlement by the Additional Deputy Commissioner. The Member, Board of Revenue, rejected such prayer. It is stated that the local authorities are threatening to obtain possession of the said hat without any title to the same. It appears that, except for notification under section 3 (2) of the Act, acquiring certain khas lands of rent receiving there has been no notification purport ing to acquire the hat as such. The petitioner has, therefore, challenged the said notice or order which was passed with a view to settle that by auction and has asked us to restrain the respondents from interfering with the possession of the petitioner in respect of the said hat and this Rule nisi was obtained for that purpose.
6. On behalf of the respondents an affidavit‑in‑opposition has been sworn by one Kabiruddin Ahmed, Sub‑divisional Manager, Estate Acquisition Department, Government of East Pakistan, (Sadar) South Mymensingh, who has generally traversed the various averments in the petition. There has been no denial to the assertion of the petitioner that he is in possession of the lands covered by the said hat, and, furthermore, that he is not a rent‑receiver in respect of any land within the Province of East Pakistan. It is, therefore, admitted before us that the petitioner is not a rent‑receiver. Although there has been general denial to the other averments in the petition, we find it difficult to place any reliance on them because, in the first place, they are not bornq out by papers on records with regards to this case as produced by the learned Advocate‑General and upon which reliance has been placed by respondents. The petitioner has reiterated in his affidavit‑in‑reply what he stated in his petition. There is no denial to the fact that the Madrassa was established long before Independence and the consequent establishment of Pakistan. The facts stated by the petitioner appear to be probable and are, furthermore, corroborated by Annexures A and A (1) which has been produced by the petitioner. The respondents have been content with a mere ispe dixit that the khatians in respect of the current survey settlement as shown in Annexures A and A (1) have been obtained by the petitioner on misrepresentation. There is nothing to show that, in fact, that is the position. In these circumstances, we have no hesitation in accepting the averments that have been made by the petitioner in his application as well as in the affidavit‑in‑reply filed in this behalf. Admittedly, the Madrassa has been functioning for a long time and there is no reason to disbelieve the state ment that the Madrassa is maintained from the income derived from the said hat.
7. At the hearing of the rule before us, the learned Advocate‑General did not dispute the facts of the case as stated by the petitioner in his application to this Court. He has, however, attempted to support the impugned order on the ground that there has been a final publication of the rent‑rolls and compensation assessment‑roll in respect of the said two mouzas of Gandharbapur and Payarkandi, as would be evident from a Gazette Notification, being Notification No. S. A./62/800 dated the 27th of March 1962, in which all the above‑mentioned four plots have been recorded in favour of respondent No. 1, Province of East Pakistan. The petitioner has, however, chal lenged the correctness of such entry.
8. Learned Advocate‑General has not contested the asser tions of the petitioner that he is not a rent‑receiver and, further more, that he is in possession of the lands relating to the said hat. He has, therefore, accepted the position that the petitioner was holding the lands in question as tenant directly under the Provincial Government under subsection (4) (e) of section 3 of the Act, which runs as follows
"(4) On and from the date specified in a notification under subsection (1),‑
* * * * * * * * *
(e) all tenants holding lands in such estates, taluks or tenures directly under the rent‑receivers specified in the notification under subsection (1), shall become tenants directly under the Provincial Government and shall pay rent at the existing rate, in respect of the rent‑paying lands so held by them, to the Provincial Government and not to any body else.
He has, however, vigorously contended that the impugned order was perfectly legal because of the operation of subsection (3) of section 44 of the Act. He has pointed out that the final publication of the compensation‑assessment‑roll under Chapter
of the Act has been made under the provisions of section 42 of the. Act and there has also been a notification under section 43 (2) of the said Act. He then drew our attention to the provisions of section 44 of the Act, the relevant portions of which are as follows
"44. Notwithstanding anything contained in any other law for the time being in force or in Chapter II of this Act or in any contract, but subject to the provisions of clauses (a), (b), (e) and (d) of subsection (4) of section 3 and subsection (3) of section 46‑E on the publication of a notification in the Official Gazette under subsection (2) of section 43, declaring that a Compensation‑Assessment‑roll has been finally published, the following consequences shall ensue, namely,‑
"(1) all the interests of all the proprietors in their respec tive estates and of all the tenure‑holders in their respective tenures and of all other rent‑receivers in the holdings or tenancies respectively let out by such rent‑receivers within the area to which such roll relates or in such parts of such estates, tenures or holdings, or tenancies as the case may be, as are within such area including the interests of all such proprietors, tenure‑holders and other rent‑receivers in all lands comprised in such estates, tenures and holdings or tenancies or part of such estates, tenures and holdings or tenancies within such area which are in the khas possession of such proprietors, tenure‑holders and other rent‑receivers in all sub‑soil including any rights to minerals in such estates, tenures and holdings or tenancies or part of such estates, tenures and holdings or tenancies within such area other than the interests which have already been acquired under Chapter II or subsection (3) of section 46‑E shall, with effect from the first day of agricultural year next following the date of publication of such notification in the official Gazette, be deemed to have been acquired by the Provincial Government and vest abso lutely in the Provincial Government free from all encum brances but subject to the rights of such proprietors, tenure holders and other rent‑receivers specified in clause (2);
(2) each proprietor, tenure‑holder and other rent‑receiver, whose interests in any estate, tenure or holding or tenancy or in any part of any estate, tenure holding or tenancy, as the case may be, within the area to which such roll relates, are acquired under this Act, shall with effect from the first day of the agricultural year next following the date of publication of such notification in the Official Gazette, be entitled to retain possession of and hold, subject to the provisions of this Act, as a tenant directly under the Provincial Govern ment all lands of which he is entitled to retain possession under Chapter IV and be liable to pay rent for such lands to the Provincial Government ;
(3) the interests of all cultivating raiyats, cultivating under‑raiyats and non‑gricultural tenants in all lands held by such raiyats, under‑raiyats and non‑agricultural tenants with the area to which such roll relates in excess of the lands of which such raiyats, and the under‑raiyats or non‑agricultural tenants are entitled to retain possession under Chapter IV, including the interests in the sub‑soil of all lands so held in excess and all rights to minerals therein other than the interests which have already been acquired under any other provision of this Act shall, with effect from the first day of the agricul tural year next following the date of publication of such notification in the official Gazette, be deemed to have been acquired by the Provincial Government and vest absolutely in the Provincial Government free from all encumbrances ;
(4) all cultivating raiyats, cultivating under‑raiyats and other tenants holding lands, within the area to which such roll relates, immediately before the first day of the agricultural year next following the date of such publication of such notification, shall, with effect from the first day of the said agricultural year if they have not already become tenants directly under the Provincial Government under any other provisions of this Act, become tenants directly under the Pro vincial Government and shall have the right to continue to hold, subject to the provisions of this Act, as tenants under the Provincial Government, such of those lands as have not vested in the Provincial Government under item (3) or under any other provisions of this Act and shall be liable to pay rent to the Provincial Government in respect of the lands so con tinued to be held; * *"
9. It was argued by the learned Advocate‑General that the provisions of subsections (1) and (2) of section 44 would apply to rent‑receivers and those of subs‑.ction (3) of that section to tenants, as the petitioner claims to be. He has submitted that subsection (3) of section 44 has to be read along with the pro visions of subsections (1) and (2) of section 20 of the Act, which run thus
"(1) On the acquisition of the interests of rent‑receivers in any area under Chapter V, no rent‑receiver, cultivating raiyat, cultivating under‑raiyat or non‑agricultural tenant shall be entitled to retain possession of any of his khas lands in such area except as provided in subsection (2).
(2) A rent‑receiver, a cultivating raiyat, a cultivating under raiyat or non‑agricultural tenant shall be entitled to retain, as a tenant under the Provincial Government, possession of‑
(a) lands covered by his homestead or any other building belonging to him with necessary adjuncts thereto, other than such building or part of a building out‑side his homestead as is used primarily as office or kutchery for the collection of rents under the Provincial Government and shall pay rent at the existing rate, in respect of the rent‑paying lands so held by them, to the Provincial Government and not to any body else.
He has, however, vigorously contended that the impugned order was perfectly legal because of the operation of subsection (3) of section 44 of the Act. He has pointed out that the final publication of the compensation‑assessment‑roll under Chapter of the Act has been made under the provisions of section 42 of the. Act and there has also been a notification under section 43 (2) of the said Act. He then drew our attention to the provisions of section 44 of the Act, the relevant portions of which are as follows
"44. Notwithstanding anything contained in any other law for the time being in force or in Chapter II of this Act or in any contract, but subject to the provisions of clauses (a), (b), (e) and (d) of subsection (4) of section 3 and subsection (3) of section 46‑E on the publication of a notification in the Official Gazette under subsection (2) of section 43, declaring that a Compensation‑Assessment‑roll has been finally published, the following consequences shall ensue, namely,‑
"(1) all the interests of all the proprietors in their respec tive estates and of all the tenure‑holders in their respective tenures and of all other rent‑receivers in the holdings or tenancies respectively let out by such rent‑receivers within the area to which such roll relates or in such parts of such estates, tenures or holdings, or tenancies as the case may be, as are within such area including the interests of all such proprietors, tenure‑holders and other rent‑receivers in all lands comprised in such estates, tenures and holdings or tenancies or part of such estates, tenures and holdings or tenancies within such area which are in the khas possession of such proprietors, tenure‑holders and other rent‑receivers in all sub‑soil including any rights to minerals in such estates, tenures and holdings or tenancies or part of such estates, tenures and holdings or tenancies within such area other than the interests which have already been acquired under Chapter II or subsection (3) of section 46‑E shall, with effect from the first day of agricultural year next following the date of publication of such notification in the official Gazette, be deemed to have been acquired by the Provincial Government and vest abso lutely in the Provincial Government free from all encum brances but subject to the rights of such proprietors, tenure holders and other rent‑receivers specified in clause (2);
(2) each proprietor, tenure‑holder and other rent‑receiver, whose interests in any estate, tenure or holding or tenancy or in any part of any estate, tenure holding or tenancy, as the case may be, within the area to which such roll relates, are acquired under this Act, shall with effect from the first day of the agricultural year next following the date of publication of such notification in the Official Gazette, be entitled to retain possession of and hold, subject to the provisions of this Act, as a tenant directly under the Provincial Govern ment all lands of which he is entitled to retain possession under Chapter IV and be liable to pay rent for such lands to the Provincial Government ;
(3) the interests of all cultivating raiyats, cultivating under‑raiyats and non‑agricultural tenants in all lands held by such raiyats, under‑raiyats and non‑agricultural tenants with the area to which such roll relates in excess of the lands of which such raiyats, and the under‑raiyats or non‑agricultural tenants are entitled to retain possession under Chapter IV, including the interests in the sub‑soil of all lands so held in excess and all rights to minerals therein other than the interests which have already been acquired under any other provision of this Act shall, with effect from the first day of the agricul tural year next following the date of publication of such notification in the official Gazette, be deemed to have been acquired by the Provincial Government and vest absolutely in the Provincial Government free from all encumbrances ;
(4) all cultivating raiyats, cultivating under‑raiyats and other tenants holding lands, within the area to which such roll relates, immediately before the first day of the agricultural year next following the date of such publication of such notification, shall, with effect from the first day of the said agricultural year if they have not already become tenants directly under the Provincial Government under any other provisions of this Act, become tenants directly under the Pro vincial Government and shall have the right to continue to hold, subject to the provisions of this Act, as tenants under the Provincial Government, such of those lands as have not vested in the Provincial Government under item (3) or under any other provisions of this Act and shall be liable to pay rent to the Provincial Government in respect of the lands so con tinued to be held; * *"
9. It was argued by the learned Advocate‑General that the provisions of subsections (1) and (2) of section 44 would apply to rent‑receivers and those of subs‑.ction (3) of that section to tenants, as the petitioner claims to be. He has submitted that subsection (3) of section 44 has to be read along with the pro visions of subsections (1) and (2) of section 20 of the Act, which run thus
"(1) On the acquisition of the interests of rent‑receivers in any area under Chapter V, no rent‑receiver, cultivating raiyat, cultivating under‑raiyat or non‑agricultural tenant shall be entitled to retain possession of any of his khas lands in such area except as provided in subsection (2).
(2) A rent‑receiver, a cultivating raiyat, a cultivating under raiyat or non‑agricultural tenant shall be entitled to retain, as a tenant under the Provincial Government, possession of‑
(n) lands covered by his homestead or any other building belonging to him with necessary adjuncts thereto, other than such building or part of a building out‑side his homestead as is used primarily as office or kutchery for the collection of rents
If the intention of the Legislature under section 44 (3) was also to include such lands, which are outside the purview of retainable classes of land as set out in section 20 (2) (a) and (b), nothing was easier than saying so and the result would have been easily achieved, if, with regard to "tenants", a provision similar to that in subsection (3) of section 46‑E of the Act (relating to "rent‑receivers") had been made. The said subsection (3) runs thus
"With effect from the first day of the agricultural year next following the date of such publication of such notification, the interest of a rent‑receiver in all lands in his khas possession of which he is not entitled to retain possession under section 20 and for which compensation has been assessed in such Compensation Assessment‑roll shall, if not already acquired under subsection (2) of section 3, be deemed to have been acquired by the Provincial Government and vest abso lutely in the Provincial Government free from all encum brances."
15. It will be seen that, section 46‑E vests all the lands of rent‑receivers of which they are not entitled to retain possession under section 20, in the Provincial Government. It will be next seen that, under section 20, a rent‑receiver (as also a tenant) is not entitled to retain two kinds of land in his possession, first, such lands which do not fall within the categories of land as set out in section 20,(2) (a) and (b), and secondly, such lands which exceed the quantity of three hundred and seventy‑five standard bighas, which is the limit of retainable land fixed under the aforesaid subsection. Therefore, there is no escape from the conclusion that the term "in excess" in subsection (3) of section 44 refers to the quantum of three hundred and seventy five standard bighas. which is the limit fixed by the proviso to section 20 (2) (a) and (b). This argument follows from the ordinary and plain meaning of the expression "in excess" and it is further strengthened by the circumstance that in section 44 (1) the expression "other than" has been used, and not the term "in excess". Under section 44(1) all the interests of the ex‑proprie tors and tenure‑holders in all the lands stand acquired by the Provincial Government and vest the said Government, "other than" the interests which had already been acquired under Chapter 11 of the Act and subject to the rights which the said ex‑proprietors or tenure‑holders or other rent‑receivers had acquired under Chapter IV, i.e., under section 20 of the Act.
16. The conclusion at which we have arrived, would be further strengthened by an examination of the Act as a whole and its scheme. The paramount object of this piece of legislation is to wipe out rent‑receivers and other intermediate tenure‑holders, i.e., the classes of persons who have hitherto been known as Zamindars. In the case of Radhika Mohan Munshi v. Shyma Kishore Munshi ((1954)6DLR531), Ahmad, J., (as he then was), in delivering the judgment of a Division Bench of this Court, has stated the object and scheme of the Act in the following terms
"The whole scheme of the East Bengal State Acquisition and Tenancy Act, 1950 is to effect the transference of intermediate interests in the land to public ownership of the State . . . . . It is true that there is no preamble to the East Bengal State Acquisition and Tenancy Act itself and there is no express mention of a public purpose but the whole intention is clear that the interest in the intermediate owners were to be acquired and to vest in the State for the purpose of ameliorating the condition of the actual cultivators of the soil."
This view has also been reiterated by another Division Bench of this Court in the case of Birendra Chandra Das v. Narash Chandra Bhattacharjee ((1955) 7 D L R 399) where in the judgment that was pronounced it was observed as follows
"From the provision of East Bengal State Acquisition and Tenancy Act, 1950, it appears that the object of the Statute is to abolish the intermediate estates and to acquire them for the benefit of the tillers of the soil."
17. Chapter II of the Act enables the Provincial Government to acquire all the rent‑receiving interests and, in fact, by a notification, the Provincial Government has acquired such rent receiving interests and has totally wiped out the intermediate classes of land‑holders. This was done by virtue of the pro visions of section 3 (1) of the Act. Subsection (2) of section 3 furthermore empowers the Provincial Government to take away all khas lands in possession of the rent‑receivers, of which they shall not be entitled to retain possession under section 20. By another notification, all lands, other than retainable khas lands, have, in fact been acquired by the said Government and have vested in the Government. But, so far as the class of persons, who were at the bottom of the ladder, namely, the tenants, Chapter II of the Act did not, in fact, empower the Provincial Government to touch them at all; on the contrary, the tenants of the ex‑rent‑receivers became, by operation of law, tenants directly under the Provincial Government. This will be clear from the provisions of clause (e) of subsection (4) of section 3 of the Act, already quoted above.
18. Subsection (1) of section 46‑E of the Act reads as follows
"all tenants who became tenants directly under the Pro vincial Government under clause (e) of subsection (4) of section 3, shall with effect from the first day of the agricultural year next following the date of publication of such notification, pay to the Provincial Government rent for the lands, held by them at the rates determined under this Chapter."
Thus, subsection (1) of section 46‑E provides categorically for payment of rent at a revised rate with regard to tenants who have already become tenants directly under the Provincial Government by virtue of the provisions of section 3(4) (e). In fact, all the tenants in East Pakistan, who were not rent‑receivers, became directly tenants under the Provincial Government under section 3(4) (e) of the Act. It is 4dmitted that the petitioner before us was never a rent‑receiver with respect to any land in this Province; he had, therefore, admittedly, become a tenant directly under the Provincial Government under section 3 (4) (e), and under section 46‑E (1) he became liable to pay rent at a revised rate.
19. It is significant to note that subsection (3) of section 46‑E of the Act seeks further to divest and dispossess a rent‑receiver of all his lands which do not come within the categories of retainable lands as defined in section 20. There is not only no corresponding provisions with regard to a "tenants" as distin guished from a "rent‑receiver", but there is only a provision for revised rent with regard to such "tenants".
20. It is thus patent that, while the Legislature had taken meticulous care to wipe out all rent‑receiving interests and other tenures in East Pakistan and also to divest the rent‑receivers and to dispossess them of all khas lands, except those which they are entitled, as of right, to retain under the provisions of section 20 (2) (a) and (b) of the Act, there has been no corresponding provision with regard to khas lands of the tenants. The only provision with regard to a "tenant" is one which fixes a limit of three hundred and seventy five standard bighas of retainable khas land.
21. The result, therefore, is, that the words "in excess" in subsection (3) of section 44 of the Act refer only to the retainable lands specified under clauses (a) and (b) of subsection (2) of section 20 of the Act, the limit of which has been fixed at three t hundred and seventy five standard bighas; they do not refer to lands which are outside such classes of lands which the tenant are entitled to retain possession of under Chapter IV of the Act. This conclusion is irresistable for the following reasons : (a) Because such a result follows from the plain meaning and ordinary significance of the words "in excess" which have been specifically and expressly used in relation to lands which "tenants are entitled to retain under Chapter IV". In Chapter IV under the proviso to section 20 (2) (b) a quantity of three hundred and seventy‑five standard bighas has been fixed with regard to retainable lands. (b) Because such a result is inevitable, if the scheme of the Act is considered. (c) Because, in accordance with the well‑established canons of interpretation, a provision of a statute, which takes away the rights of citizens has to be construed strictly against the Government and liberally in favour of the citizens. (d) Because in the Act itself the Legisla ture has used the words "other than" in subsection (1) of section 44, in contradistinction to the words "in excess" in subsection (3) of that section of the Act. (e) Because, when the Legislature wanted to divest and dispossess the rent‑receiver of all his khas lands, other than the lands which he could claim to retain possession of under section 20, they have specifically said so in subsection (3) of section 46‑E of the Act.
22. Thus, a hat, not being a retainable land of a, tenant, does not vest in the Provincial Government under, section 44 (3).
23. Learned Advocate‑General has further argued that, although the plain and ordinary meaning of the words "in excess" may lead to the conclusion which we have arrived at, by virtue of another canon of interpretation, they should not be so con strued inasmuch as such construction, according to him, would render the provisions of subsection (1) of section 20 of the Act unworkable. Is that so It is further significant to note that subsection (1) of section 20 says that no rent‑receiver etc. "shall be entitled to retain possession of any of his khas lands except as provided in subsection (2)". Subsection (2) of section 20 provides that a rent‑receiver, tenant etc., shall be entitled to retain, as a tenant under the Provincial Government, possession of the lands mentioned thereafter as tenant under the Government. The important thing to remember is that, the words that have been used in subsection (1) are : No rent receiver, tenant etc.‑shall be entitled to retain possession. It does not say that no rent‑receiver etc. shall retain possession. It is clear that the Legislature has deliberately refrained from imposing a total embargo upon the rent‑receiver and others from possessing khas lands beyond those which have been mentioned in subsection (2) of section 20. If they had intended to do so, they could have easily used a simple expression, such as, "no rent‑receiver‑shall retain possession", instead of "no rent receiver . . . . . shall be entitled to retain possession". As we have seen, similar expression has been used in subsection (2), and if we read both the subsections together, the meaning of the expression would become very clear. Subsection (1) has laid down that no rent‑receiver etc. shall, as of right, retain possession of any of his khas lands other than those specified in subsection (2), whereas subsection (2) provides that a rent‑receiver and others shall retain, as of right, lands which have been des cribed in the clauses mentioned thereafter. It follows, therefore, that section 20 has nothing to do with dispossession in respect of lands that are not retainable. It merely indicates what lands can be retained as of right. Section 20 (1) does not say that a rent‑receiver (and others) cannot in any case and under any circumstances, retain possession of lands other than retainable lands under subsection (2) of section 20. It will be seen that so far as a rent‑receiver is concerned, under the provisions of section 3 (2), section 44 (1) and (2) and section 46‑E (3), he has been completely divested and disposed of all his khas lands which do not come within the classification or retainable khas lands mentioned in section 20 (2) (a) and (b). It is also clear that, on the contrary, the Legislature has taken meticulous care to avoid such a result in the case of tenants. It is true that subsection (1) of section 20 says that no non‑agricultural tenant shall be "entitled to" retain possession of any khas lands, except as provided in subsection (2) of that section. This means that he can claim the "right" to retain lands specified in section 20 (2), but he cannot claim such "right" under section 20 (1) as to lands outside the classes of lands mentioned in subsection (2). But, he is not prevented from retaining such lands if he is allowed to do so as a statutory tenant. There is no provision for the vesting of non‑retainable classes of land in the Provincial Government, in so far as a "tenant" is concerned. It is also clear that, having regard to the classes of retainable lands specified in section 20 (2) (a) and (b), it is most difficult to conceive of a tenant, at the bottom rung of the ladder, possessing any khas land which would not come under the categories of such lands as set out in section 20(2)(a) and (b). It is only by a fiction of law that a hat has travelled outside the category of retainable khas land. But for the amendments made by East Pakistan Ordinance No. XII of 1960, a hat would be retainable khas land under section 20 (2)(b)(iii).
24. In this connection, it will be worth‑while to remember that the Bengal Tenancy Act itself provided that, whenever there was possession of more than one hundred bighas of land, a presumption of tenure, rather than that of tenancy, would be raised. This provision took statutory notice of the well‑known fact that it was most unusual for a tenant to possess more than one hundred bighas of land. It is also well known that in this Province tenants hardly possess a class of land which is outside the classification of lands provided in section 20(2)(a) and (b) of the Act.
25. In this background, it is strange that, the object of the Legislature being to confer benefits upon such classes of persons who have been described as "tenants" and, further, having regard to the fact that in this country there would hardly be any tenant who would possess lands belonging to the non‑classified list as given in section 20 (2)(a; and (b), they have left the matter of an extremely unlikely event of a tenant possessing non retainable khas land to be finally worked out under the later provisions of the Act, namely, under Chapter XII[, which relates to incidents of holdings of maliks, "and transfers, purchase and acquisition of lands. By process of devolution and acquisition, section 90 would come into play, under which tenant would be limited to one hundred standard bighas (now three hundred and seventy‑five standard bighas), automatically by operation of law. It seems that there is no other arrangement within the framework of the provisions of Chapters II, III and V of the Act by which a tenant would become automatically dispossessed of his non retainable classes of lands. Admittedly, even after the acquisi tion of rent‑receiving interest has been completely made under Chapter II, this class has been completely left undisturbed. When Chapter V comes into operation, the rent‑receiver is divested of all lands except his retainable land, but a "tenant" is divested of merely the excess quantity of retainable land. However, when Chapter XIII of the Act comes into full play, there will be an automatic adjustment and if the provisions of that Chapter are by efflux of time fully worked out, a tenant or raiyat cannot possess any land, whatever might have been the previous classification of such land, beyond the limit of three hundred and seventy five standard bighas. It is thus clear that the argument advanced by the learned Advocate‑General to the effect that the construction that we have placed upon the pro visions of section 44(3) would render the provisions of section 20 (1) unworkable, has no substance. We have shown that, so far as rent‑receivers are concerned, there have been various provisions under which he will be stripped of all lands which do not come within the category of retainable khas lands enumerated in section 20(2)(a) and (b). With regard to tenants the same result will be achieved by efflux of time when the provisions of Chapter XIII would be worked out. In the case of tenants, there is a mere postponement of the inevitable conse quence, and not a total escape from it.
26. It seems that the Legislature, in its anxiety to dispossess the rent‑receiver of all his khas lands, other than his retainable khas lands, has, as a matter of abundant precaution, enacted the provisions of section 46‑E(3).
27. If a hat, as has been rightly contended by the learned Advocate‑General, has never been within the class of lands described as retainable lands under section 20(2)(a) and (b), it must follow that the words "in excess" as used in section 44(3) cannot refer to such non‑retainable class of land.
28. It would be interesting to examine again the provisions of subsection (4) of section 20 of the Act, which reads, inter alia, as follows
"Notwithstanding anything . . . a rent‑receiver . . . . may . . . . retain possession of and hold such quantity of lands in excess of the limit specified in the said subsection
It is obvious that the words "in excess" have been used with reference to the limit of the quantity of lands mentioned in section 20 (2) (a) and (b). Section 20 has further been amended by inserting subsection (4a) which inter alia, reads thus
"Notwithstanding anything contained in subsection (2), a person . . . . . may . . . . . retain possession of and hold such quantity of land in excess of limit specified in the said subsection . . , . ."
Learned Advocate‑General has asked us to import the words "other than" which have been used in section 44 (1), into section 44 (3) and to replace the words "in excess" by substitu ting the words "other than", to reach the result which he wants us to do.
29. From what we have stated above, it is patent that the words "in excess" occurring in subsection (3) of section 44, refer to the quantum of retainable khas lands as specified in the proviso to section 20 (2)(a) and (b), namely, the limit of three hundred and seventy‑five standard bighas of land which can be retained.
30. Thus, as it has been established that the petitioner is not a rent‑receiver and inasmuch as it has also been established before us that the petitioner is a person who became a tenant directly under the Provincial Government in accordance with the provision of section 3 (4) (e), it cannot be claimed by the Provincial Government that he has been divested of his hat land which he is not entitled to retain possession of under section 20 (1).
It is true that he cannot claim that he can, as of right, retain possession of the land; but it has been rightly asked on behalf of the petitioner; by what magic he has been divested of this land Learned Advocate‑General has pointed out the provisions of section 44 (3), and we have seen that that section has no manner of application to lands which do not com‑ within the land which would not come under the categories of such lands as set out in section 20(2)(a) and (b). It is only by a fiction of law that a hat has travelled outside the category of retainable khas land. But for the amendments made by East Pakistan Ordinance No. XII of 1960, a hat would be retainable khas land under section 20 (2)(b)(iii).
24. In this connection, it will be worth‑while to remember that the Bengal Tenancy Act itself provided that, whenever there was possession of more than one hundred bighas of land, a presumption of tenure, rather than that of tenancy, would be raised. This provision took statutory notice of the well‑known fact that it was most unusual for a tenant to possess more than one hundred bighas of land. It is also well known that in this Province tenants hardly possess a class of land which is outside the classification of lands provided in section 20(2)(a) and (b) of the Act.
25. In this background, it is strange that, the object of the Legislature being to confer benefits upon such classes of persons who have been described as "tenants" and, further, having regard to the fact that in this country there would hardly be any tenant who would possess lands belonging to the non‑classified list as given in section 20 (2)(a; and (b), they have left the matter of an extremely unlikely event of a tenant possessing non retainable khas land to be finally worked out under the later provisions of the Act, namely, under Chapter XII[, which relates to incidents of holdings of maliks, "and transfers, purchase and acquisition of lands. By process of devolution and acquisition, section 90 would come into play, under which tenant would be limited to one hundred standard bighas (now three hundred and seventy‑five standard bighas), automatically by operation of law. It seems that there is no other arrangement within the framework of the provisions of Chapters II, III and V of the Act by which a tenant would become automatically dispossessed of his non retainable classes of lands. Admittedly, even after the acquisi tion of rent‑receiving interest has been completely made under Chapter II, this class has been completely left undisturbed. When Chapter V comes into operation, the rent‑receiver is divested of all lands except his retainable land, but a "tenant" is divested of merely the excess quantity of retainable land. However, when Chapter XIII of the Act comes into full play, there will be an automatic adjustment and if the provisions of that Chapter are by efflux of time fully worked out, a tenant or raiyat cannot possess any land, whatever might have been the previous classification of such land, beyond the limit of three hundred and seventy five standard bighas. It is thus clear that the argument advanced by the learned Advocate‑General to the effect that the construction that we have placed upon the pro visions of section 44(3) would render the provisions of section 20 (1) unworkable, has no substance. We have shown that, so far as rent‑receivers are concerned, there have been various provisions under which he will be stripped of all lands which do not come within the category of retainable khas lands enumerated in section 20(2)(a) and (b). With regard to tenants the same result will be achieved by efflux of time when the provisions of Chapter XIII would be worked out. In the case of tenants, there is a mere postponement of the inevitable conse quence, and not a total escape from it.
26. It seems that the Legislature, in its anxiety to dispossess the rent‑receiver of all his khas lands, other than his retainable khas lands, has, as a matter of abundant precaution, enacted the provisions of section 46‑E(3).
27. If a hat, as has been rightly contended by the learned Advocate‑General, has never been within the class of lands described as retainable lands under section 20(2)(a) and (b), it must follow that the words "in excess" as used in section 44(3) cannot refer to such non‑retainable class of land.
28. It would be interesting to examine again the provisions of subsection (4) of section 20 of the Act, which reads, inter alia, as follows
"Notwithstanding anything . . . a rent‑receiver . . . . may . . . . retain possession of and hold such quantity of lands in excess of the limit specified in the said subsection
It is obvious that the words "in excess" have been used with reference to the limit of the quantity of lands mentioned in section 20 (2) (a) and (b). Section 20 has further been amended by inserting subsection (4a) which inter alia, reads thus
"Notwithstanding anything contained in subsection (2), a person . . . . . may . . . . . retain possession of and hold such quantity of land in excess of limit specified in the said subsection . . , . ."
Learned Advocate‑General has asked us to import the words "other than" which have been used in section 44 (1), into section 44 (3) and to replace the words "in excess" by substitu ting the words "other than", to reach the result which he wants us to do.
29. From what we have stated above, it is patent that the words "in excess" occurring in subsection (3) of section 44, refer to the quantum of retainable khas lands as specified in the proviso to section 20 (2)(a) and (b), namely, the limit of three hundred and seventy‑five standard bighas of land which can be retained.
30. Thus, as it has been established that the petitioner is not a rent‑receiver and inasmuch as it has also been establishedbefore us that the petitioner is a person who became a tenant directly under the Provincial Government in accordance with the provision of section 3 (4) (e), it cannot be claimed by the Provincial Government that he has been divested of his hat land which he is not entitled to retain possession of under section 20 (1). It is true that he cannot claim that he can, as of right, retain possession of the land; but it has been rightly asked on b‑half of the petitioner; by what magic he has been divested of this land Learned Advocate‑General has pointed out the provisions of section 44 (3), and we have seen that that section has no manner of application to lands which do not come within the classes of land which are retainable under section 20(2)(a) and (b). Therefore, the claim of the respondents to dispossess the petitioner of the lands in question, is not justified in law. The present quantity of land is nowhere near the figures of three hundred and seventy‑five standard bighas.
31. Mr. Khondkar, who appeared for the petitioner, drew our attention to the provisions of section 39 (la) which has provided that compensation for acquisition in respect of khas land held under wakf‑alai‑aulad, debuttar or any other trust, on which any hat or bazar is held, and the income from which is exclusively applied to religious or charitable purposes without any reservation of pecuniary benefits for any individual, shall be assessed as a perpetual annuity equal to such annual average of the income of that property. Learned Advocate has argued that the impugned order, far from conferring any benefit on the Provincial Government, will saddle the said Government with a perpetual annuity which is equivalent to the average annual income derived from the said hat. It appears that the hat in question will, perhaps, come under the category of wakf or trust. But, we have refrained from deciding this question as we are not called upon to do so. In any event, this point is not, in view of the decision at which we have arrived, relevant for the purpose of this rule.
32. Learned Advocate‑General has addressed another argument to the following
33. Under section 20 (1), the hat of the petitioner in respect of which this application is would be a piece of land of which the petitioner is not entitled to retain possession under the pro visions of the said section 20(1). He has argued that, inasmuch as the petitioner is not entitled to retain possession of the said land, he has lost all title to the same and the hat has, therefore, become vested in the Provincial Government by virtue of the provisions of Article 146 of the Constitution of the Republic of Pakistan which has been recently promulgated. The said Article 146, inter alia, reads as follows
"146. (1) Any property that has no rightful owner, shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Central Government.
(2) All lands, minerals and other things of value under lying the ocean within the territorial waters of Pakistan shall vest in the Central Government."
This argument is ingenuous, but it would not bear the test of scrutiny. We can leave aside the sub‑Article (2), which has no application in this case. Reliance has been placed on sub Article (1) of Article 146. It is clear that the provision relates to the law of escheat and the vesting in Government of ownerless property. Having regard to what we have discussed above in extense, it is clear that the hat in question is not an ownerless property, that is, "res nullius" as such property is described. The petitioner has become a tenant directly under the Provincial Government by virtue of the provisions of section 3 (4) (e).1 Such relationship has not been terminated by any provision of the enactment and, in the absence of a termination of such relationship, it cannot be said that the said hat has become an ownerless property. Under section 20 (1), a tenant cannot say that he has the "right" to retain a hat, but that does not mean that he cannot retain the same if he is otherwise "allowed" to retain it as a statutory tenant.
34. Let us now turn to the provisions of section 20 of the Act. All that the said section provides is to define what classes of land and in what quantity, a rent‑receiver, etc., is entitled to retain, as of right, as his khas lands. So far as the tenant is con cerned, it is true that the hat would be a non‑retainable class of land, if we may use that expression; but he does not become automatically divested of it. As we have pointed out, this process is left to be worked out at subsequent stage when Chapter XIII of the Act comes into operation. At no point of time it is, therefore, correct to say that the hat has become an ownerless property within the meaning of Article 146 (1) of the Con stitution.
35. This disposes of all the points that have been raised before us, and for reasons stated above, we make the rule absolute and direct the respondents to cancel the impugned notice or order by which the respondents purported to settle the Muktagacha Trimohini hat and to refrain from interfering with the ownership and possession of the petitioner in respect of the said hat.
The petitioner is entitled to the costs of this application, which we assess at ten Gold Mohurs.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer