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Writ Petition No. 58 of 1957, decided on 22nd July 1957.

Ordinary and natural meaning to be given to words used‑Statute taking away right‑To be construed strictly.

A cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same.

A statute which takes away a right from a person or which imposes a burden upon him has to be strictly construed. If there is ambiguity in the meaning of the words used, an interpretation in favour of the subject should be given effect to.

Minister of Railways and Harbour of the Union of South Africa v. Summer clack 1918 A C 591, Jennings and another v. Kelly 1940 A C 206, Abbey v. Dele (1851) 20 L J C 233 (235) and The Gauntlet 1872 (4) P C 184 ref.

Words "Cultivable land" do not include hat and Bazar.

The qualifying word "cultivable" indicates that the land must be capable of cultivation without alteration or conversion. It cannot mean a conversion of land from one use to another. The word "cultivable" clearly shows that the Legislature never int4nded to include hat and Bazar within clause (ii) of section 20 (2) (b) of EastBengal State Acquisi tion and Tenancy Act.

From the words used in clause (ii) of section 20 (2) (b), it is clear that hat and Bazar are not included in the said clause.

Hamidul Huq Chowdhury with A. S. Chowdhury and Af zalul Huq for Petitioners.

B. A. Siddiky with K. Hossain for Respondents.

This is an application under Article 170 of the Constitution for a writ in the nature of mandamus directing the respondents not to take possession of Tepakhola Gohata and a daily Bazar in pursuance of Notifications Nos. 12993‑L. R. dated the 22nd of August 1955, and 4851 L. R., dated the 2nd of April 1956, issued under section 3 of the East Bengal State Acquisition and Tenancy Act, 1950, (hereinafter referred to as the Act) and published in the Dacca Gazette, Extraordinary, dated the 12th of September, 1955, and the 2nd of April 1956, respectively.

By Notification No. 12993, the Government acquired the hat and Bazar of this petitioner under the provisions of the said Act. The Act was amended by Ordinance III of 1956 and by this amendment the Government was empowered to specify and describe the rent‑receivers by name or by refer ence to the area or in such other manner as they may determine. In exercise of the above power, the Government issued the second Notification No. 4851.

To appreciate the contentions raised on behalf of the petitioners, it is necessary to refer to some of the provisions of the Act.

Subsection 1 of section 3 empowers the Provincial Govern ment to acquire, by notification in the official Gazette, all interests of the rent‑receivers, as were specified in the notifica tion, in respect of estates, taluks, tenures, holdings or tenancies in any district or local area. Subsection 2 of section 3 empowers the Government also to acquire in similar manner all or any of the lands in khas possession of such rent receivers Further, from the date of notification under subsection 1, all interests of the rent‑receivers affected were to vest absolutely in the Provincial Government free from encumbrances. Subsection 2 of section 3 which provides for vesting of khas land runs thus:

"Subject to the provisions of subsections (2), (3), (4) and (5) of section 20, the Provincial Government may, also, simultaneously with or at any time after the publication of a notification under subsection (1) in respect of the interests of any rent‑receiver in any estate, taluk, tenure, holding or tenancy, acquire, by notification in the official Gazette, with effect from such date as may be specified in the notification (hereinafter referred to as the notified date), all or any of the lands in his khas possession, in such estate, taluk, tenure, holding or tenancy of which he shall not be entitled to retain possession under the said section."

Subsection 2 of section 20 with which we are concerned in this case provides

"A rent‑receiver, a cultivating raiyat, a cultivating under raiyat or a non agricultural tenant shall be entitled to retain as a tenant under the Provincial Government, possession of‑

(a) land covered by his homestead or any other building belonging to him with necessary adjuncts thereto, other than such building or part of a building outside his homestead as is used primarily as office or cutchery for the collecting of rents of any estate, taluk or tenure and may be decided to be acquired by the Provincial Government ;

(b) lands in his khas possession of the following classes, namely :‑

(i) lands used for agricultural or horticultural purposes including tanks,

(ii) lands which are cultivable or which are capable of cultivation on reclamation, and

(iii) vacant non‑agricultural lands

Provided that the aggregate quantity of all lands of the classes referred to in the clauses (a) and (b) in the whole Province so retained in possession by a rent receiver, a cultiva ting raiyat, a cultivating under‑raiyat or a non‑agricultural tenant shall not exceed one hundred standard bighas or an area determined by calculating at the rate of ten standard bighas for each member of his family, whichever is greater. In addition, he shall be entitled to retain an area of land equal to the area actually covered by his homestead or ten standard bighas, whichever is less.

For the purpose of clause (a), lands covered by buildings do not include hats or Bazars",

From the above, it appears that subsection 2 makes it lawful for the Government to acquire by a notification all or any of the lands in the khas possession of a rent‑receiver of which he is not entitled to retain possession under section 20.

Section 20 directs that a rent receiver is not to be dispossessed of all the lands in his khas possession and that he is entitled to retain as a tenant under the Provincial Govern ment hundred standard bighas or an area determined by calculating at the rate of ten standard bighas for each member of his family, whichever is greater. The area has to be allotted according to the choice of the rent‑receiver concerned, provided such choice is exercised witherin a prescribed period.

Mr. Hamidul Huq Chowdhury, the learned Advocate for the petitioner, has contended that under sub‑clause (ii) of clause (b) of subsection 2 of section 20 of the Act and the proviso thereunder, he is entitled to retain possession of hat and Bizar as part of his allotment of hundred bighas. He has therefore, argued that hat and Bazar were to continue in the possession of the re4it‑receivers under subsections 2 and 3 of section 20 till the choice of the area had been made in the first instance by the expropriated rent receiver himself.

The learned Advocate General appearing for the Govern ment on the other hand contended that hat and Bazar are not subject to the provisions of sub‑clauses (a) and (b) of subsection 2 of section 20.

I am not impressed by the arguments of Mr. Hamidul Huq Chowdhury. Under sub‑clause (b) of subsection 2 of section 20, a rent‑receiver, a cultivating raiyat, a cultivating under‑raiyat or a non‑agricultural tenant is entitled to retain the following three classes of lands in his khas possession :‑

(i) Lands used for agricultural or horticultural purposes including tanks.

(ii) Lands which are cultivable or which are capable of cultivation on reclamation, and

(iii) Vacant non‑agricultural lands.

Mr. Chowdhury has contended that hat and Bazar will fall under sub‑clause (ii) because it may be included within the lands which are cultivable. He has argued that hat and Bazar are held on vacant lands and the landlord can at any time utilise it for agricultural purposes. Hence the question is : Are hat and Bazar included in the "Cultivable land" occurring in sub‑clause (ii).

Now the cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But, if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case, a literal construction of the sub‑clause leads to no apparent absurdity and, therefore, there can be no compelling reason for departing from the golden rule of construction. The dictionary meaning of 'cultivate' is to till or produce by tillage or to prepare for crops. 'Cultivable' means capable of being cultivated. Hence the words 'cultivable land' mean land which is capable of being cultivated. The qualifying word 'cultivable' indicates that the land must be capable of cultivation without alteration or conversion. In my opinion, it cannot mean a conversion of land from one use to another. Furthermore, the word B 'cultivable' clearly shows that the Legislature never intends to include hat and Bazar within clause (ii). The interpretation which Mr. Choudhury is suggesting would practically amount to saying that every class of land, whether with building or without building, is "cultivable land". If that was the intention of the Legislature, they would have used the words 'lands capable of cultivation' on conversion and not the words 'cultivable land'. Furthermore, the interpretation suggested by Mr. Choudhury would lead to repugnancy and contradiction in the different parts of this section 20. We are, therefore, unable to stretch the meaning of the words "cultivable lands" to embrace cases which it was never intended to govern. We are not entitled to ignore the obvious intention of the Legislature so as to interpret or construe it as to enlarge the scope of its application by importing into it meanings by implication which do not necessarily arise. We are, there. fore, unable to interpret this sub‑clause (ii) in the manner suggested by Mr. Chowdhury.

Mr. Chowdhury has next contended that this clause is really a confiscatory clause and it should be construed strictly and in favour of the subject. In support of his contention, he has relied on the following decisions : Minister of Railways and Harbour of the Union of South Africa v. Summer Jack (1918 A C 591) and Jennings and another v. Kelly (1940 A C 206). He has also referred to certain passages from "Maxwell on Interpretation of Statutes". We are alive to this cardinal rule of the inter pretation of a statute, namely, that a statute which takes away a right from a person or which imposes a burden upon him has to be strictly construed. Furthermore, if there is ambiguity in the meaning of the words used, an interpretation C in favour of the subject should be given effect to. But when words are plain and clear, the duty of the Court is to gather the intention of the Legislature from the words used in the statute taking its plain and ordinary meaning. Here we may aptly point out the rule of constructions laid down by Jervis, C. J., in Abbey v. Dele ((1851) 20 L J C 233 (235))

"If the precise words are plain and unambiguous in our f judgment, we are bound to construe them in their ordinary sense even though it do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure ; but we assume the functions of Legislature when we depart from the ordinary meaning of the precise words used merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning".

The following observations of the Privy Council in The Gauntlet (1872 (4) P C 184) may also be profitably quoted

"No doubt all penal statutes are to be construed strictly that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a causa om ssus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing, charged, although within the words, is not within the sprit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument according to the fair commonsense meaning of the language used . . . . . . . ."

Undoubtedly section 20 is a part of a penal statute and it must be construed in favour of the subject. But even while con struing that section, simply because it will affect the subject,. we cannot give the material words used in sub‑clause (ii) the unreasonable construction for which Mr. Chowdhury contends. From the words used in the said clause (ii), we come to the unhesitating conclusion that hat and Bazar is not included in the said clause.

Before leaving this question, we may observe that the words, "cultivable land" do not include hat and Bazar are also clear with reference to the context in which they appear. Subsection 2 of section 20 which contains two clauses lays down what type of buildings and what classes of land the rent‑receivers, cultivating raiyats, etc., are entitled to retain. Sub‑clause (a) exempts homestead buildings. Sub‑clause (b) enumerate three classes of land that may be retained by the rent‑receivers. The explanation under the section says :‑

"For the purpose of clause (a), lands covered by buildings do not include hats or Bazars".

Hat and Bazar are defined in subsection (12) of section 2 as follows :‑

"Hat" or "Bazar" means any place where persons assemble daily or on particular days in a week primarily for the purposes of buying or selling agricultural or horticultural produce, livestock, poultry, hides, skins, meat, fish, eggs, mills‑products or any other articles of food or drink or other necessaries of life, and includes all shops of such articles or manufactured articles within such place".

From the above definition, it is clear that a hat and Bazar may have shops and buildings. In other words, hats and Bazars could be treated as lands with buildings. The Legis lature's intention to exempt hat and Bazar from the operation of section 20 is made clear by the explanation set out under

that section. We, therefore, think it was not necessary to refer to clause (b) in the said explanation because the said clause (b) dealt with lands only. It is thus quite clear that section 20 will not apply to, hat and Bazar.

Mr. Chowdhury has next contended that in any event hat and Bazar are khas lands and, as such, they cannot be taken possession of before the preparation of the Assessment roll under Chapter V of the Act. In support of his contention, he has relied on section 44 of the Act which provides

"Notwithstanding anything contained in any other law for the time being in force or in Chapter 11 of this Act or in any contract, but subject to the provisions of clauses (a). (b), (c) and (d) of subsection (4) of section 3 and subsection 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: ‑ ..

He has argued that as the Assessment roll has not, been prepared, the Government is not entitled to take possession of the hat and Bazar in question. This argument, however, overlooks the provisions of section 46‑E (3) which runs thus

"With effect from the first day of the agricultural year next following the date of such publication of such notifica tion, 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, if not already acquired under subsection (2) of section 3, be deemed to have been acquired by the Provincial Govern ment and vest absolutely in the Provincial Government free from all incumbrances".

From the above, it is clear that such khas lands of which the rent‑receivers, or the culivating raiyats are not entitled to retain possession under section 20 will vest in the Govern ment immediately on the publication of the notification. As the provisions of Chapter V are not applicable to hat and Bazar, the Government is, therefore, entitled to take posses sion of hat and Bazar soon after the publication of the notification.

Mr. Chowdhury's last contention is that by the above notification the Government is attempting to acquire lands which do not come within the definition of hat and Bazar. He has drawn our attention to a copy of the Khatian to show that some of the plots mentioned in the notification are paths and tanks. The learned Advocate General has contended that they are part of the hat and Bazar and they are used by the shop‑keepers and the people visiting the hat and Bazar. Further. according to him, the tanks are also used by the people of the hat and Bazar. It is well‑settled that contro versial questions of fact cannot ordinarily be gone into by a High Court in a writ petition : See Laws of England, Volume 9, Hailsham Edition, paragraph 1493 at page 888.

We do not think it would be proper for us in the exercise of the jurisdiction under Article 170 of the Constitution to determine the truth or falsity of the rival version of the parties. The petitioners will be at liberty to agitate this question in any future proceeding.

In this view of the matter, we hold that the Government was entitled to acquire the hat and Bazar of the petitioners and that the said hat and Bazar vested in the Government on the publication of the notifications referred to above in the earlier part of the judgment.

We accordingly dismiss this application and discharge the Rule. Having regard to the facts and circumstances of the case, we make no order as to costs in this application.

As no substantial question of law as to the interpreta tion of the Constitution is involved in this case, the certificate prayed for under Article 157 of the Constitution is refused.

Z. A. S.

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