P L D 1964 Dacca 64 (PLP)

"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. A. S. CHOWDHURY, J.‑I agree. s. B./K. B. A Rule made absolute.