P L D 1964 Supreme Court 401 (PLP)

HAMOODUR RAHMAN, J.‑These two appeals by special leave arise out of two separate judgments of the High Court of East Pakistan but raise common questions of law. They have, therefore, been heard together and will be disposed of by this judgment. The appellants in both these appeals are the Province of East Pakistan and some of its officials. The respondent in Civil Appeal No. 19‑D of 1963 is the Secretary, Muktagacha Abbasia Senior Madrassa. He claims that the institution which he represents is the owner in possession of a hat known as Trimonani hat, which is situated on Plots Nos. 274 and 278 of Mauzs Gandharbapur and Plots Nos. 289 and 303 of Mauza Payarkandi, measuring in all 3'40 acres and has been duly recorded in the current survey settlement made under the pro visions of the East Bengal State Acquisition and Tenancy Act, 1950, as a raiyati in possession of the said respondent on behalf of the Madrassa. The said hat was started by one Sabu Shaikh, since deceased, in 1928‑29 A. D. as a result of some disputes with the late Maharaja of Mymensingh concerning the management of the Dhari Charani Bazar of Muktagacha. The said Sabu Shaikh himself held the lands of Plots Nos. 274 and 278, on which the hat was started, in raiyati right, and later made a gift of his rights in the said lands to the aforesaid Madrassa, which was started shortly after the hat was established. The transfer in favour of the Madrassa was later recognised by the superior landlord and the Madrassa had been in possession of these lands ever since for more than 12 years in tenancy right. Subsequently Muhammad Abbas Ali Mia, the Secretary of the Madrassa, acquired plots Nos. 289 and 303 (now 313 and 317) of Mauza Payarkandi, which are contiguous to the other two plots, in Ijara right for a period of 9 years from 1351 to 1359 B. S. and made a gift thereof to the Madrassa. This tenancy was renewed for the benefit of the Madrassa for another period of 9 years from 1360 to 1368 B. S. and thus the Madrassa owned and possessed the said lands also under the superior land lords as a tenant. Neither the Madrassa nor the Secretary of the Madrassa has any rent‑receiving interest in respect of any land in the Province of East Pakistan. As such, after the acquisition of all rent‑receiving interests in East Pakistan by Notification issued on the 2nd of April 1956, under the East Bengal State Acquisition and Tenancy Act, 1950, the Madrassa became a tenant directly under the Provincial Government. Since the entire income of this hat is spent for the maintenance and upkeep of the Madrassa, which imparts religious education, it is also claimed that the hat is a public wakf dedicated wholly for religious and/or charitable purposes. Even after the Notification of 1956, therefore, no interference was made with the Madrassa's possession of the hat. But in 1959 the Collector of Revenue, Mymensingh, included the hat for auction settlement on the footing that it belonged to the Provincial Government. This order was, however, cancelled on the representation of the Management of the Madrassa by the Board of Revenue, East Pakistan, on the 24th of December 1959. But again in a Notification issued on the 13th of February 1962, the said hat was included in a list of hats which were to be auctioned for settlement during the year 1361‑62 B. S. This time the efforts of the Management of the Madrassa to get the said order set aside proved unsuccessful even up to the Board of Revenue. Hence the Madrassa through its Secretary filed the writ petition in the High Court of East Pakistan, being Writ Petition No. 162 of 1962, challenging the validity of the notice or order of the Collector for settling the hat by auction, mainly on the ground that since the institution was not a rent receiver in respect of any land in East Pakistan, its raiyati interest in the hat, which was held directly under the Government, could not be acquired by virtue of the general Notification issued, under section 3(2) of the East Bengal State Acquisition and Tenancy Act, in 1956. At the hearing of the writ petition the Government did not dispute that the Madrassa or its Secretary was not a rent receiver in respect of any land in the Province but the writ petition was resisted mainly on the ground that since there had, in the meantime, been a final publication of the rent and com pensation assessment‑rolls in respect of the said two Mauzas of Gandharbapur and Payarkandi and the same had been notified in the Gazette on the 27th of March 1962, the hat had vested In Government and the tenant was no longer entitled to retain possession of it by reason of the combined operation of sub section (3) of section 44 and section 20 of the East Bengal State Acquisition and Tenancy Act. The High Court accepted the contention of the Government that by virtue of the amendment made to the East Bengal State Acquisition and Tenancy Act by the Provincial Ordinance No. XII of 1960, hats and Bazars were outside the purview of the classes of lands retainable by a tenant but held that section '44(3) of the Act had no manner of application to non‑retainable lands. Hence, the Act read as a whole had not imposed a total embargo on the possession of khas lands beyond those which had been mentioned in subsection (2) of section

20. The portions of section 20 relevant for our present purposes are 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 khan lands in such area except as provided in subsection (2). (2) A rent‑receiver, a cultivating rafyat, a cultivating under. raiyat, or non‑agricultural tenant shall be entitled to retain, as a tenant under the Provincial Government, possession of‑ (a) (b) land in his khas possession of the following classes, other than derelict tea gardens, namely :‑ (i) lands used for agricultural or horticultural purposes includ ing tanks, (ii) lands which are cultivable or which are capable of cultiva tion or 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 cultivat ing raiyat, a cultivating under‑raiyat or a non‑agricultural tenant shall not exceed three hundred and seventy‑five standard bighas or an area determined by calculating at the rate of ten standard bighas for each member of his family, whichever is greater Provided that in exercising such choice, such rent‑receiver, cultivating raiyat, cultivating under‑raiyat or non‑agricultural tenant shall retain the entire area of .land held by each of the other members of his family if it is ten standard bighas or less and to the extent of at least ten standard bighas if it exceeds that quantity and that in allotting lands to a family, the Revenue Officer shall record them in the names of the persons who actually hold them (2‑a) Notwithstanding anything contained in any other law for the time being in force or in any instrument or in any judgment or decree or order of any Court, lands of the classes referred to in the clauses (a) and (b) of subsection (2) do not include and shall be deemed never to have included‑ (i) any land or building in a hat or Bazar, or (ii) any fishery other than a tank constructed solely by process of excavation, or (iii) any land consisting of forest, or (iv) any land actually in use for a ferry. (3) Subsection (1) of section 20 clearly affects the rights of also a raiyat, a cultivating under‑raiyat and even a non‑agricultural tenant and seems to indicate that as a consequence of the acquisition of the rent‑receiving interest even khas lands cannot be retained except as provided in subsection (2) of section 20, no matter by whom they are held. The High Court has stressed that since this section uses the words "no rent‑receiver etc. shall be entitled to retain possession" and does not say that "no rent‑receiver etc. shall retain possession" of khas lands except as provided in subsection (2), there is scope for making some kind of distinction. The distinction, if any, appears to us to be one without any difference. In our view, the clear intention of section 20 appears to be that as a consequence of the acquisition of the interests of the rent‑receivers in any particular, area under Chapter V of the Act the consequences mentioned therein will ensue. Chapter V of the Act contains sections 32 to 46 which deal with the method of assessment of compensation, preparation of compensation assessment‑rolls and the acquisition of certain Interests after such compensation assessment rolls have been prepared. Sec tion 42 contemplates that final compensation assessment‑rolls shall be published after all objections and appeals, as provided under the Act, have been disposed of. Section 43 requires that the final publications should be notified for general information in the manner therein prescribed. Then section 44 sets out the consequences that are to ensue after the notification of the publication has been made. One of these, as provided in sub section (3), is as follows :‑ "44(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 in the area to which such roll .relates in excess of the lands of which such ralyats, 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 agricultural year next following the date of publication of such notifica tion in the Official Gazette, be deemed to have been acquired by the Provincial Government and vest absolutely in the Pro vincial Government free from all encumbrances." This upon its plain terms deals with the interests of cultivating raiyats, cultivating under‑raiyats and non‑agricultural tenants and lands held by them "in excess" of the lands, of which they as such raiyats are entitled to retain possession under Chapter IV wherein section 20 also occurs. This subsection concludes that all such lands in excess of the retainable lands shall, with effect from the 1st day of the agricultural year next following the date of publication, be deemed to have been acquired by the Provincial Government and shall vest absolutely in that Govern ment free from all encumbrances. It may be mentioned here that under section 46‑E it is, inter alia, provided as follows :‑ "46‑E. Notwithstanding anything contained in Chapter II, on the publication of a notification under subsection (2) of section 43, declaring that a Compensation Assessment‑roll prepared under this Chapter, has been finally published,‑ (1) (2) (3) 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 posses sion, 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 absolutely in the Provincial Government free from all encumbrances." This subsection is, of course, limited to the interests of a rent receiver in lands in his khas possession and not to the interests of raiyats and tenants, but the High Court has referred to this section to show that the words "in excess" have not been used here. The words "in excess" used in subsection (3) of section 44 have, therefore, in the view of the High Court some special ,q significance, namely, that in this subsection of section 44 these words necessarily refer only to retainable lands and can have no application at all to lands which are not retainable under section 20 (2‑a). Such a narrow interpretation does not, however, appear to us to be justified, for, we cannot see any difficulty in holding that whatever is non‑retainable is in excess of that which is retainable. It seems to us that after the retrospective amendment made by Ordinance No. XII of 1960 in section 20 by the incorporation therein of subsection (2a) which had the effect of excluding hats and Bazars from the category of retainable lands from the very beginning, the hats and Bazars in the khas possession of rent receivers became vested in the Government from the date of the notification in 1956 under subsection (2) of section 3 of the Act. But so far as raiyats, agricultural tenants and other tenants were concerned, the vesting took place, after the preparation and final publication of the compensation assessment‑roll and its notification, by virtue of subsection (3) of section

44. No fresh notification for the acquisition of such interests of tenants was necessary, because, that was to follow as a conse quence of the publication by operation of the provisions of the statute itself, and it is for this reason that in subsection (3) of section 44 the language used is that they shall be deemed to t have been acquired and deemed to vest absolutely in the Provincial Government, that is to say, that as a legal consequence of the notification of the final publication of the compensation assessment‑roll they shall be treated as if acquired and vested in the Government. That this was the intention of the statute is supported also by the provision in section 39 of the Act which provides for the payment of a separate compensation in respect of interests in lands, such as hats or Bazars, to a cultivating raiyat or an under‑raiyat or a non‑agricultural tenant. It cannot, therefore, be argued that the statute in question never intended the acquisi tion of the interests of tenants in non‑retainable categories of lands but only provided for the acquisition of lands in excess of 375 standard bighas. Reading the Act as a whole the intention appears to us to be, firstly, that all rent‑receiving interests shall disappear, secondly, that so far as tenants are concerned, they will be entitled to retain possession only of certain categories of land which are retainable, and thirdly, that even in respect of such retainable lands a maximum ceiling is fixed. So far as the rent‑receivers are concerned, their interests are to vest either from the date of the notification of acquisition or from the date mentioned c in such a notification. But so far as tenants were concerned, their interests are to stand acquired and vested in Government on the notification of the final publication of the compensation assessment‑roll. The scheme of the Act, therefore, is that what ever is not retainable vests in the Government by operation of law and that too free from all encumbrances. We are, therefore, of the view that the High Court was not right in holding that the interests of tenants or raiyats in such hats and Bazars had not vested in Government. In the case of the Muktagacha Abbasia Senior Madrassa learned counsel appearing for the respondent also attempted to argue that since the income of the hat was utilised for a wholly charitable or religious purpose, namely the impartation of religious education, it was also a valid wakf and, as such, was now protected from acquisition in view of the latest amendments made in the Constitution of Pakistan guaranteeing Fundamental Rights. One of the rights guaranteed is the freedom of religion which is defined as follows : ‑ Freedom to profess religion and to manage religious institu tion.‑Subject to law, public order or morality,‑ (a) every citizen has the right to profess, practice and propagate any religion ; and (b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institutions." This question was not, however, argued before the High Court, as no such Fundamental Right was then available. Indeed, since the High Court was directing the cancellation of the Government order on other grounds it did not examine the nature of the wakf alleged. Neither any wakf deed was produced before the High Court nor was any evidence led as to its precise nature and extent. In the circumstances, this question cannot be investigated at this stage, for, further evidence will be necessary to establish the dedication, if any, and to what extent and manner the income thereof is utilised, but at the same time we should not to taken to have said anything which would debar the Madrassa concerned from asserting such rights as may now have become available to it by virtue of the amendments to the Constitution. In Civil Appeal No. 50‑D of 1963 the respondent is the Kasba Co‑operative Corporation Limited, registered under the Co‑operative Societies Act in the district of Comilla. It has established various useful institutions including a library, a reading room and a play ground for recreational activities of the people of the locality. It also has no rent‑receiving interests in either the lands in dispute or in arty other land in any place in East Pakistan. It too has on those lands, situated at Kasba in the district of Comilla, set up a hat. In this case too by a notice issued on the 1st of May 1962, the authorities claimed that the hat had vested in Government, and invited bidders to come and bid at the auction for the settlement of the said hat. Since the Government gave to the Society no relief on its representations, it filed a writ petition in the High Court being Writ Petition No. 151 of 1962. It was heard by the same Bench which heard the Writ Petition No. 162 of 1962, and although a separate judgment has been written, the writ has been directed to issue upon the same grounds as in the earlier petition. Since we have come to the conclusion that the decision of the High Court in Writ Petition No. 162 of 1962 cannot be maintained for the reasons we have set out above, both these appeals are allowed, and the writs are recalled but since the question raised was one of interpretation of a statute, we make no order as to costs. K.B.A. Appeal accepted.