P L D 1959 Supreme Court (Pak (PLP)

AMIRUDDIN AHMAD, J.‑This is a certificated appeal from a judgment of the High Court of East Pakistan at Dacca refusing to issue a writ of mandamus on the Province of East Pakistan and the Secretary, Finance and Revenue Department, Government of East Pakistan, directing them not to take possession of the appellants' Tepakhola Gohatta and a daily bazar in pursuance of Notifications Nos. 12993 L. R., dated the 22nd August 1955 and 4851 L.R., dated the 2nd April 1956, published in the Dacca Gazette Extraordinary. By the Notifications referred to above the Government, under section 3, subsection (2) of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951), purported to acquire the khas lands of the appellants, who are rent‑receivers, including some hats and bazars belonging to them. Subsection (2) of section 3 runs as follows: ‑ "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 of which he shall not be entitled to retain possession under the said section and so much of the lands in his khas possession as has been acquired under this subsection and has not vested in the Provincial Government under clause (a) of subsection (4), shall vest absolutely in the Provincial Government free from all incum brances." The contentions of the appellants are that they are entitled to retain possession of their hats and bazars within the limits permitted by the Act under section 20 of the Act, and they relied on the case of Mohar Ali and another v. The Province of East Pakistan and another (P L D 1958 Dacca 17). That case is distinguishable from the facts of the present case and does not help the appellants. In that case the bazar owned by the petitioners was held not to be liable to acquisition on the sole ground that it was not proved that the petitioners were rent‑receivers at all. The further question whether the income from the hat or bazar, which the petitioners claimed as belonging to them was rent, was neither raised nor considered at all. The ratio decidendi in that case was that as the petitioners were not proved to be rent‑receivers, their lands could not be acquired. In the present case it is not disputed that the appellants are rent‑receivers and they can only get protection, if they come under section 20 of the Act. Section 20 of the Act provides as follows: ‑ "20. (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 a 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 outside his homestead as is used primarily as office of cutchery for the collection of rents of any estate, taluk or tenure and may be decided to be acquired by the Provincial Government ; (b) lands in his khan 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 culti vating 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. Explanation.‑For the purpose of clause (a), lands covered by buildings do not include hats or bazars. (3) .." The sole question for determination in this case, therefore, is whether hats and bazars fall within the three classes of lands mentioned in section 20 (2) (b). From the khatian (Revenue Record) relating to these hats and bazars exhibited in the case, plot No. 341 is a bazar and in the remarks column it is stated that it is held every day in the morning. From the affidavit it appears that there are also certain structures on this land. With regard to the order disputed plots, plots Nos. 342 and 346 are described as hats and in the remarks column it is stated `Gohata once in a week on every Tuesday'. The hats remain vacant except being used as a hat for sale of cattle for some time once a week. In the circumstances of the case we are of opinion that the bazar in question does not cone tinder any of the three sub‑clauses of clause (b) of subsection (2) of section 20, but that the hats come under sub‑clause (iii) as vacant non‑agricultural lands. In putting, this construction on the section we are mindful of the principle that statutes, which encroach on the rights of the subject whether as regards person or property, are subject to a strict construction. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights. (Maxwell on Interpretation of Statutes, Ninth Edition, p. 289). The appellants are, therefore, entitled to retain within the limits permissible under the Act as their khas lands the hats mentioned above ff. The result is that this appeal is allowed and a writ will issue as prayed for directing the respondents to refrain from taking possession of the hats so far as they come within the limits of the area permitted by the Act to be retained by the appellants. K. B. A. /A. H. Appeal allowed.