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Civil Appeal No. 17‑D of 1963, decided on 9th March 1964.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 30th July 1962, in Writ Petition No. 180 of 1961).

, Ss. 20(2)(a) & 3(2)‑Right to retain possession of "such building as is used primarily as office or cutchery" in S.20(2)‑In opposition to power of assuming pro prietary possession acquired by Government upon issue of general notification under S. 3(2)‑Right of rent‑receiver to retain his cutcheryghar not lost unless such cutcheryghar expressly "acquired by Provincial Government"‑Government deciding to acquire cutcheryghar subsequently‑Whether fresh notice under S.3(2) necessary (Quaere).

Maksumul Hakim Advocate‑General East Pakistan (K. M. Subhan Advocate Supreme Court with him) instructed by S. M. Abbas Attorney for Appellants.

S. M. Mohsen Ali Advocate Supreme Court instructed by Daliluddin Ahmed Attorney for Respondents.

Date of hearing : 9th March 1964.

‑This appeal by special leave raises a ques tion as to the application of clause (a) of subsection (2) of section 20 of the East Bengal State Acquisition and Tenancy Act, 1950, in respect of a building which was claimed by the respondents Ibrahim Mondal and his son Anwar Hossain who were rent‑receivers, to be their kutcheryghar. The learned Judges of the High Court have granted the respondents a writ to cancel a memorandum issued by the Sub‑Divisional Officer of Natore on the 7th August 19.,61 requiring them to deliver possession of the alleged kutcheryghar as it stood acquired by the Provincial Government in consequence of a general notification which had been issued on the 2nd April 1956 in the exercise of power derived from subsection (2) of section 3 of the said Act. This subsection provides that upon issue of a notifi cation there under, the Provincial Government would acquire "all or any of the lands in his (rent‑receiver's) khas posses sion of which he shall not be entitled to retain possession" under the provisions of section 20 aforesaid. Section 20 contained in subsection (2) a provision entitling inter alia, a rent‑receiver, "to retain as a tenant under the Provincial Government, posses sion of" inter alia "such building . . . . . outside his homestead as is used primarily as office or cutchery for the collection of rents of any estate, taluk or tenure and may be decided to be acquired by the Provincial Government." The right to retain thus given is in opposition to the power to assume proprietary possession which the Provincial Government acquired upon the issue of the aforesaid notification. The rent‑receiver's possession is assured, in the capacity of a tenant. The question was whether the said notification, by itself, was sufficient to exclude the kutcheryghar from the retainable properties.

The High Court have held that the right of a rent‑receiver to retain his kutcheryghar against such a vesting notification as aforesaid is not lost unless the kutcheryghar is expressly "acquired by the Provincial Government." The learned Judges did not decide the question which had been raised in the case whether the building in question was in fact a kutcheryghar, and have reached their decision upon the assumption that it is a kutcheryghar. So holding, they have found that the order of the Sub‑Divisional Officer is not a sufficient instrument of acquisition by the Provincial Government, and this conclusion appears to us to be clearly correct. We also agree with the construction which they have placed upon the relevant provision in section 20. Unless a decision to acquire a kutcheryghar is made by the Provincial Government, the rent‑receiver to whom it appertains has a statu tory right to retain it as a tenant under the Provincial Government. The reason for such a provision is not far to seek. The Provincial Government were replacing a vast number of rent‑receivers in the capacity of proprietors, and they would clearly not be requiring as many kutcheryghors as the individual proprietors or rent‑ receivers whom they were replacing. A selection had to be exercised as to which kutcheryghar would be required by the Provincial Government, and which kuctheryghar their owners would be allowed to retain. Therefore, it was wholly reason able that the rent‑receiver's right to retain his kutcheryghar should be preserved unless it was required by the Provincial Government, and that had to be established by a decision of the Provincial Government that the property was to be acquired.

The learned Judges have however said at the conclusion of their judgment that If and when the Provincial Government decide to acquire this kutcheryghar it will be necessary for them to issue a fresh notification under section 3(2) of the Act. We are not satisfied of the correctness of this proposition. It is a tenable proposition that the action already taken, if supplemented by an order of the Provincial Government specifying the property In question as one which they have decided to acquire, will effectually serve the purpose. As the point was not examined in the course of arguments, we shall say no more than that we must not be thought to be agreeing with the opinion expressed by the High Court. That opinion was not necessary for the disposal of the case. It should be treated as obiter, and not of binding effect.

With these observations we dismiss this appeal with costs.

K. B. A. Appeal dismissed.

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