P L D 1961 Dacca 389 (PLP)

MURSHED, J.‑This writ application and sixteen other such petitions were heard seriatim by us at the request of the parties inasmuch as they all raise several common points for our decision, and this judgment will form part of the judgments in respect of the other petitions. But we shall discuss separately any special point involved in each of the petitions. We propose to take Writ Petition No. 37 of 1959, and to deal with the points that have been raised. This petition purports to be on behalf of seven petitioners. But inasmuch as only petitioner No. 1, Tofazzal Hossain, has sworn and verified the statements made in the petition and the rest of the petitioners have not done so, we entertain this appli cation in respect of the said Tofazzal Hossain only and reject it in limine, in so far as the rest of the petitioners are concerned. The rules framed by this Court require that the petition must be verified and sworn by the petitioner and/or the aggrieved person. This petitioner claims that he, along with the other petitioners, is the owner of Fulgazi Natun Bazar recorded in Khatian No. 2 of mouza Uttar Sripur and Khatian No. 4 of Bejoypur in the District of Noakhali. It is alleged that the petitioner has, along with the other, inherited the tenancy right of one Hashmat Ali Mazumdar to the extent of 8 annas share in the said bazar. According to the petitioner, a wakf was created in respect of the said Hat in the year 1924. This petitioner and his other co -sharers claim to be the Mutwallis of the said wakf estate. They have challenged the right of the Provincial Government to acquire the said Hat by virtue of Notifications Nos. 4831 L. R. dated the 2nd of April 1956, and 4847 L.R., of the said date. The peti tioner has further averred that he has no rent‑receiving interest in the said Hat. In the affidavit‑in‑opposition, filed on behalf of the respon dents, the status of the petitioner as a Mutwalli has been specifi cally denied, and it has also been denied that the said bazar is a wakf property. The respondents have stated that the petitioner has created a rent‑receiving interest in respect of the said Hat by creating Chandina tenancies in the said bazar and that they realised rents from the tenants. It has also been stated in the affidavit‑in‑opposition that the petitioner has other rent‑receiving interests in respect of other khatians which have been set out in paragraph 3 of the said affidavit‑in‑opposition. At the hearing of this petition Mr. Hamidul Huq Choudhury i has admitted that the petitioners are rent‑receivers‑ and has argued that the lands mentioned in paragraph 3 of the further affidavit filed on behalf of the petitioner cannot be acquired as they con stitute a Hat without any structures thereon. The matter in controversy, therefore, is narrowed down to the only point that the said Hat is a "vacant non‑agricultural land" within the meaning of section 20 (2) (b) (iii) of the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951) (hereinafter referred to as the Act). Mr. Choudhury has confined himself to those plots which, according to him, con stitute a Hat and, therefore, not capable of being acquired. He has taken his stand on a decision of the Supreme Court of Pakistan in the case of Yusuf Ali Chowdhury and others v. Province of East Pakistan (11 D L R 316 (S C) ; P L D 1959 S C 467). In order to understand the point, we would like to quote here the impugned notification under which certain pieces of land, claimed by all the petitioners in all the writ petitions before us have been acquired by the respondents. The notification reads as follows : "In exercise of the power conferred by subsection (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance No. III of 1956), it is hereby notified, for the information of ail concerned, that the Governor is pleased to acquire with effect from the 14th April 1956, all lands in khas possession of all rent‑receivers situated in the district of Noakhali other than the classes of land coming under clauses (a) and (b) of subsection (2) of section 20 and other than such lands as have already been acquired by and have already vested, in the Provincial Government under the provisions of the said Act." We may point out that the notification in respect of the different petitions are the same except that the respective districts have been mentioned in respect of the various petitions before us inasmuch as the lands which have been acquired fall within one district or the other. For our purpose, the impugned notification as set out above will suffice. It appears that by virtue of the aforesaid notification the Province of East Pakistan, as has been stated before us by the learned Advocate‑General, have acquired quite a large number, of Hats and Bazars in the Province of East Pakistan and have obtained possession of Hats and Bazars, in majority of the cases. This statement has not been challenged on behalf of the petitioner and we have no hesitation in accepting the same. This is a well -known and notorious fact. The right to such acquisition was challenged in this Court in the case of Yusuf Ali Chowdhury and others v. The Province of East Pakistan (9 D L R 674 : P L D 1958 Dacca 138). In that case Yusuf Ali Chowdhury and others, challenged the right of the Province of East Pakistan to acquire such Hats and Bazars of which they (Yousuf Ali Chowdhury and others) claimed to be the owners. It was contended that the Hats and Bazars came within the purview of section 20 (2) (b) (ii) of the Act and as such they come under the category of lands retainable by the rent‑receivers whose pro perties had been acquired. The said sub‑clause (ii) of clause (b) of subsection (2) of section 20 of the Act reads as follows ; "lands which are cultivable or which are capale of cultivation on re clamation". After discussing the arguments at the Bar, this Court decided that Hats and Bazars did not fall within the aforesaid category. The contentions of the petitioner's were overruled. Thereupon the petitioners in that case preferred an appeal before the Supreme Court and the decision of the Supreme Court has been reported, as we have stated above, in 11 D L R 316 (S C) =P L D 1959 S C

467. The Supreme Court did not overrule the decision of this Court in so far as it decided that Bazars did not come within the various categories of section 20 (2), clauses (a) and (b). The Supreme Court, however, proceeded to consider the validity of the acquisi tion by Government in respect of a Gohata which was a Hat sitting once a week every Tuesday, on a vacant piece of land. The Supreme Court, therefore, held that, so far as the Gohata was concerned, it would come within the category of section 20 (2) (b), sub‑clause (iii), which reads as follows : "vacant non‑agricultural land". According to the decision of the Supreme Court, as stated above, Hats which are held periodically on vacant lands would be retainable as khas lands and would come within the purview of sub‑clause (iii) of section 20 (b), inasmuch as such Hats would fit in with the description of "vacant non‑agricultural lands". It is clear that the petitioners in that case had a limited success in the Supreme Court in respect of their contention that Hats held on vacant land were not capable of being acquired under the provisions of the Act. In this background, when several applications were pending before this Court, an Ordinance was promulgated by the Governor of East Pakistan. The said Ordinance is called the East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance, 1960 (hereinafter referred to as the Ordinance). The Ordinance was published in the Dacca Gazette, Extraordinary, on Friday, the 17th of June 1960, and it came into force at once. Mr. Choudhury, as we have already noted above, confined himself to the Hat as described in the further affidavit on behalf of the petitioners and has merely relied on the aforesaid decision of the Supreme Court fn Yusuf Ali Chowdhury's case. That was the only contention before us. In answer to this contention, learned Advocate‑General has pointed out the provisions of the Ordinance and has referred us to section 6 thereof, which reads as follows "In section 20 of the said Act,‑ (i) in subsection (2), for the explanation, the following new subsection shall be added, namely :‑ "(2a) Notwithstanding anything contained in any other law for the time being in force or in any instrument or in any judg ment 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 Learned Advocate‑General has contended that by virtue of the above provisions of the Ordinance, Hats and Bazars are not retainable as khas lands by rent‑receivers. In answer to this argument Mr. Hamidul Huq Choudhury has pressed the following points before us, namely, (I) that the word "Court" in the aforesaid section of the Ordinance does not include a High Court or the Supreme Court in Pakistan ; (2) that the Governor, which in this case means the Provincial Legislature, is not competent to legislate on a matter which restricts and ousts the jurisdiction of the Supreme Court ; (3) that all legislation is deemed to be prospective, and, unless there are express provisions to that effect, it cannot have retrospective effect ; (4) that, in any event, the Ordinance cannot apply to matters which are pending before a Court of law. These were the four points which were pressed before us and no other point was canvassed by the learned Advocate for the petitioners. Mr. M. H. Khondkar, appearing on behalf of the petitioners in some of the petitions, has elucidated further the arguments advanced by Mr. Hamidul Huq Choudhury and the learned Advocates appearing for the rest of the petitioners adopted the arguments of Mr. Choudhury as well as those advanced by Mr. Khondkar. With regard to the first point, namely, that the word "Court" in section 6 of the Ordinance does not include a High Court or the Supreme Court, the short answer is that the word "Court" means and includes a High Court as well as the Supreme Court. That is the plain meaning of the word, and we cannot construe it otherwise: The next point, which was pressed by Mr. Choudhury, is that the Provincial Legislature is not competent to restrict or oust the jurisdiction of the Supreme Court. This is so. But the impugned Ordinance does not seek either to restrict or to oust the jurisdiction of the Supreme Court. It may have, as indeed it has, the effect of nullifying the consequences of a decision of that Court, but it does not purport either to restrict its jurisdiction or to oust it in any manner whatsoever. We may, as an instance, point out to the Mussalman Wakf Validating Act, 1930, which was enacted by the Central Legislature of India in order to nullify the effect of a decision of the Judicial Committee of the privy Council in so far as the Muhammadan Law of wakfs relating to wakf‑al‑al‑aulad is concerned. As the Mussalman Wakf Validating Act, 1913, was merely a declaratory Act, it was considered by the Judicial Committee of the Privy Council to be prospective in effect. It' was, therefore, necessary to enact a further Wakf Validating Act, namely, the Mussalman Wakf Validating Act, 1930 (Act XXXII of 1930), and the same was passed in order to give a retrospective effect to its provisions. Section 2 of the Mussalman Wakf Validating Act, 1930, provides : "The Mussalman Wakf Valida ting Act, 1913 (VI of 1913), shall be deemed to apply to wakfs, w created before its commencement : Provided that nothing herein contained shall be deemed in any way to affect any right, title, obligation or liability already acquired, accrued or incurred before the commencement of this Act." The Musealman Wakf Validating Act of 1913 and that of 1930 nullified the difficulty created by the decision of the Judicial Committee in the case of Abul Fata Muhammad v. Rasamaya (22 I A 76), and some other cases. It will thus appear that this point has no substance. It was next argued by Mr. Choudhury that every enactment is presumed to be prospective and that Courts lean against the retrospective operation of an enactment. The last point which was pressed by the learned Advocate for the petitioner is that the Ordinance will not apply to matters which are pending before us, or, for the matter of that, in any Court of law. The aforesaid points have been stated in a form which is too broad and wide. They are subject to certain limitations and qualifications. The principles which are now well‑settled may be stated as follows : (1) An enactment is presumed to be prospective unless the express provisions in the enactment, or the necessary implication of such provisions clearly indicate that it should have a retro spective effect. (2) If the words are ambiguous and not clear and if their implication is also not clear, a retrospective effect will not be given to them. (3) If by express provisions or by necessary implication an enactment is clearly retrospective in effect Courts are bound to give it such an effect. That is to say, if an enactment is p, retrospective, either by express provisions or by necessary impli cation, Courts will not hesitate to give that effect on the ground that it may involve hardship in particular cases. (4) As a corollary to the above propositions, a new enactment is presumed to be inapplicable to matters pending in a Court of law when the law is altered during their pendency ; but, the effect of the enactment is such that it has retrospective effect and applies to pending litigations, Courts cannot refuse to give it such effect even though the consequences thereof appear to be unjust and hard. (5) When from the language used in a statute it is clear that it should have a retrospective effect and should apply to pending litigations, it would require express provisions to save its oper ation upon pending cases. See Mukherjee, Official Receiver v. Ramratan Kuer and others (63 I A 47) ; Quilter v. Mapleson ((1881‑82) 9 Q B D 672.). We may quote, in this connection Maxwell's "The Inter pretation of Statutes" Tenth Edition, pp. 213‑228 : "It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears, very clearly in the terms of the Act, or arises by necessary and distinct implication . . . . But if the language is plainly retrospective it must be so interpreted." "In general when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights." It has been held that such intention may be implied from the pro visions of the statute. See Hutchinson v. Jauncey ((1950) 1 K B 574 (C A)) ; Jonas v. Rosenberg ((1950) 2 K B 52 C A). Mr. M. H. Khondkar reinforced the arguments of Mr. Hamidul Huq Choudhury by citing a decision of the Federal Court of India in the case of the United Provinces v. Mst. Atiga Begum and others (72CLJ550). In that case a Bench of the Federal Court of India, consisting of Sir Maurice, Gwyer, C. J., Sir S. M. Sulaiman and S. Varadachariar, JJ., had to decide the validity of an enactment of the United Provinces, namely, Regularisation of Remissions Act (U. P. Act XIV of 1938). It was held by , the Federal Court of India that the Regularisation of the Remissions Act, 1938, was not beyond the competence of the Legislature. Sir S. M. Sulaiman, J. further proceeded to consider whether the said Act would apply to pending actions, namely, to matters which were already pending in Courts of law when the enactment came into operation. He held that the said enactment did not apply to pending litigations. Sir Maurice Gwyer, C. J. gave no opinion on this point, and Varadachariar, J. while discussing the point to some extent, preferred to give no decision on the subject. Sir S. M. Sulaiman, J., however, on a consideration of the provisions of the said enactment, came to the conclusion that' it did not apply to pending litigations. We fail to see how the aforesaid case supports the contention of Mr. M. H. Khondkar that section 6 of the Ordinance under our consideration has neither retrospective effect, nor does it apply to matters which are pending before the Court. On a plain con struction of the words of section 6 of 4he Ordinance, it will follow that the Ordinance has specifically provided that lands of the classes referred to in clauses (a) and (b) of subsection (2) of section 20 of the Act "do not include and shall be deemed never to have included" any land or building in a Hat or a Bazar. It is clear that any land or building in a Hat or Bazar would not be included and shall never be deemed to have been included within the category of lands described in clauses (a) and (b) mentioned above. Therefore, from the language of the section it is plain that it is to have retrospective effect and it is further plain that under no circumstances Hats and Bazars will be included in the various categories of the said clauses (a) and (b). We cannot amend of modify the plain provisions of the Ordinance and hold that so far as pending cases are concerned, Hats of a particular description will come under the category of retainable land within the meaning of section 20 of the Act, when the Ordinance expressly provided that they shall never be deemed to have been so included within that section. In this connection, we may refer to a decision of the Judicial Committee of the Privy Council in the case of Mukherjee. Official Receiver v. Ramratan Kuer and others. In that case the plaintiff, representing the landlord's interest in a village, claimed possession of a holding on the ground that it was a non‑transferable occu pancy holding of which the defendant had taken a transfer by a deed, dated the 28th of September 1916. The High Court reversed the trial Judge's decree in the plaintiff's favour, and while an appeal to the Judicial Committee was pending the Bihar Tenancy (Amendment) Act, 1934, was passed, which, by section 10 amended the Bengal Tenancy Act, 1885, in its application to Bihar and Orissa by (inter alia) the insertion of section 26 (N), which provides that every person claiming an interest as a landlord in any holding shall be deemed to have given his consent to every transfer made before the 1st of January 1923. It was held that, inasmuch as no saving could be implied in respect of occupancy holdings which at the date of the commencement of the Act (June 10, 1935) were in question in a pending suit, section 26 (N) applied to the suit and the plaintiff's appeal failed in limine. It will be seen that even in the appellate stage a new enactment was held to apply to a pending appeal before the Judicial Committee. Sir George Rankin, delivering the judgment of the Judicial Committee, observed as follows at pp. 51‑52 : "There are two sections 26 (N) and 26 (O), expressed and intended to have retrospective action. Section 26 (N) directly governs the present case, and is as follows : "Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will‑made before the first day of January 1923, and, in the case of the transfer of a portion of a holding, to have accepted the distribution of the rent of the holding as stated in the instrument of transfer, or if there is no such instrument, as settled between the transferor and the transferee." "Section 26(0) provides that in the case of a transfer made on or after January 1, 1923, but before the date of the com mencement of the Act, the transferee may pay to the landlord, or deposit with the Collector, a transfer fee as therein parti cularized, and that upon his complying with this condition the consent of every person claiming an interest as landlord in the holding or portion transferred shall be deemed to have been given to the transfer. The Act contains no saving clause modifying the effect of sections 26 (N) and 26 (O). "In these circumstances, it appears to their Lordships that unless some saving can be implied as regards occupancy holdings which, at the date of the commencement of the Act, are in question in a pending suit section 26 (N) must be applied to the present case, and the plaintiff's appeal must fail in limine. Their Lordships are of opinion that no such saving can be implied. Section 26 (N) is not a provision to the effect that no action shall. lie in certain circumstances, nor has it any reference directly to litigation. Its provision is that every person claiming an interest as a land lord shall be deemed to have given his consent to every transfer made before January 1, 1923. This is retrospective : the question is not whether general language shall be taken only to a prospective sense. The object of this section can only be to quiet titles which are more than ten years old, and to ensure that if during those ten years the transferee has not been ejected he shall have the right to remain on the land. Within this class the Legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued causes vi action were to be abrogated, respect for pending suits over old transfers cannot be assumed." Thus it will be seen that from the 'phrase "shall be deemed to have given his consent to every transfer" the Judicial Committee of the Privy Council held that it was expressly retrospective and must also apply to pending litigations. It will also be seen that accord ing to the decision in that case, when the provisions of the enact ment were retrospective the same would also apply to pending litigations in the absence of any saving clause to that effect. The Privy Council held that inasmuch as there was no saving clause that the aforesaid provisions of sections 26 (N) and 26 (O) would not apply to pending litigations, they must be so applied. We may also refer to the case of Quilter v. Mapleson ((1881‑82) 9 Q B D 672). In that case a landlord brought an action to recover the demised property under a proviso of re‑entry for breach of a covenant to insure. The defendant claimed relief under Statutes 22 and 23 vict. c. 35, section

4. The plaintiff obtained judgment in the month of July 1881. On the 4th of August the defendant appealed. A stay of proceedings was granted and continued, so that the plaintiff never obtained possession. On the 1st of January 1882, the Conveyancing and Law of Property Act, 1881 (44 .and 45 Vict. c. 41), came into operation, after which the appeal came on to be heard. It w as held that the Conveyancing and Law of Property Act, 1881, section 14, subsection (2), was not confined to breaches taking place after the Act came into operation but extended also to breaches committed before the Act, and to proceedings pending when the Act came into operation, and that as the landlord had not obtained possession, but the action was still pending, there was jurisdiction to grant relief to the tenant under that subsection. It was further held that, assuming the judgment of the Court below to have been correct according to the law, as it then stood, the Court of appeal could grant the tenant the relief to which he was entitled according to the law as it stood at the hearing of the appeal, since the general orders provide that appeals shall be by way of re‑hearing, and give power to the Court of appeal not merely to make any order which ought to have been made by the Court below, but to make such further or other order as the case might require. It would be seen that in the aforesaid case a new enactment was applied when it came into force when the matter pending in an appellate Court. Jessel, M. R. at page 675 observed as follows : "We must, therefore, in furtherance of the objects of the Act, hold the enactment to apply to pending proceedings, unless there is something in the words to prevent our doing so." In the case of West v. Gwynne ((1911) 2 Ch. D 1) it was held that section 3 of the Conveyancing and Law of Property Act, 1892, applied to all leases whether executed before or after the commencement of the Act, and, in the absence of express provision to the contrary, engrafts upon every covenant in any such lease against assignment or underletting without consent a proviso that no money should be payable in respect of such consent. If a lessor refuses to give a consent except upon payment, the lessee is relieved from obtain ing his consent and can make a valid assignment or under-lease without it ; but he is also entitled to bring an action for a declara tion to that effect, in which costs will be given him though no relief is asked for beyond the declaration. Cozens‑Hardy M. R. at page 11 of the report observes as follows : "It was forcibly argued by Mr. Hughes that a statute is pre sumed not to have a retrospective operation unless the contrary appears by express language or by necessary implication. I assent to this general proposition, but I fail to appreciate to the present case." And Buckley L. J. observes in the following terms "During the arguments the words "retrospective" and "retro active" have been repeatedly used, and the question has been stated to be whether section 3 of the Conveyancing Act, 1892, is retrospective. To my mind the word "retrospective" is inappropriate and the question is not whether the section is retrospective. Retrospective operation is one matter. Inter ference with existing right is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is 1 not this case. The question here is whether a certain provision " as to the contents of leases is addressed to the case of all cases or only of some, namely, leases executed after the passing of the Act." "There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact; do interfere with existing rights." In the case of Hutchinson v. Jauncey ((1950) 1 K B 574) the Landlord Tenant (Rent Control) Act, 1949 was applied to a pending action. Evershed M. R. in the above case at pages 578 and 579 has observed as follows "To qoute from Maxwell, on the Interpretation of Statutes (9th Ed.) p. 229 : "In general, when the law is altered during the pendency of an action, the rights of the parties are "decided according to the law as it existed when the action" was begun, unless the new statute shows a clear intention "to vary such rights". Two of the cases seem to indicate that there should be found express reference to causes of action pending. For example, in In re Joseph Suche & Co. Ltd. (1 Ch. D. 48, 50), Jessel M. R. sitting at first instance decided a particular case on this ground of principle. He stated his conclusion thus : "I so decide because it is a general rule that when the "legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in "express terms they apply to pending actions, do not affect" them. Something of the same kind, I think, may fairly be said to emerge from the language of Wide B. in Wright v. Hale ((1860) 30 L J (Ex.) 40, 43). Having examined the many cases cited for the landlord, I doubt whether the principle ought to be expressed in quite such precise language as Jessel M. R. used in In re Joseph Suche & Co., Ltd. In other words, it seems to me that, if the necessary intendment of the Act is .to affect pending causes of action, then this Court will give effect to the intention of the legislature even though there is no express reference to pending actions." At page 583 of the report Cohen, L. J. has observed as follows: "In the particular case before us the question is whether sections 9 and 10 of the Landlord and Tenant (Rent Control) Act, 1949, had the effect of making the tenant in this appeal a protected tenant, although had the law not been altered' the land lord would have been entitled to possession; in other words, has section 9, having regard to section 10, retrospective effect, and, if so, how far? For the reasons given by my Lord, with which I entirely agree, I think that the intention of the section is plainly that the alteration of the law shall have retrospective effect." In the case of Jonas v. Rosenberg ((1950) 2 K B 52) Landlord and Tenant (Rent Control) Act, 1949 (12 and 13 Geo. 6, c. 40) was applied to a pending case where the judgment was pending at the date when the new law came into force. In the case of East End Dwelling Co. Ltd. and Finsbury Borough Council ((1952) A C 109) in construing section 53 subsection (1) of the Town and Country Planning Act, 1947 (10 and 11 Geo. 6, c. 51) Lord Porter observed at page 121 as follows: "But, my Lords, the primary duty of a tribunal is to construe the section, and if, upon the reading of its terms, it bears in its wording a plain meaning, the fact that an unexpected result is occasioned is no reason for rejecting the obvious meaning and substituting something which might be conceived to be that which Parliament would be more likely to intend to bring about." Lord Asquith at pages 132 and 133 of the report has' made the following oft‑quoted observations: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." In the case of Prabhakar Kondaji Bhapkar v. Emperor (A I R 1944 Bom. 119) a Full Bench of the Bombay High Court had to consider the effect of the Defence of India (Amendment) Ordinance (14 of 1943 section 2) it was held : "The words "the following clause shall be substituted, and shall be deemed always to have been substituted" in section 2 can only mean that the new clause is substituted, and the old clause from the date of its inception is to be read in the form of the substituted clause." Coming back to the Ordinance, under our consideration it will be clear that the provision of section 6 of the Ordinance are not only retrospective, but that the same must be applied to pend ing litigations as well. The express provision of the section is clear and unmistakable. It has been provided that lands of the clauses referred to in clauses (a) and (b) of subsection (2) of section 20 of the Act do not include and shall be deemed, never to have included any land or building in a Hat or Bazar. Mr. M. H. Khondkar has asked us to hold that in respect of pending matters before us Hats should be taken to be included within the provisions of clauses (a) and (b) of subsection (2) of section 20 of the Act. But, can we do so? To do so would be usurpation of the functions of the legis lature by us. It would amount to an amendment of the law by Judicial decision. The legislature by a mandatory provisions has directed that Hats and Bazars should never be deemed to have been included within the purview of clauses (a) and (b) mentioned above. This is clearly and expressly retrospective and applicable to all matters, including pending cases in a Court of law. There is no saving clause which exempts pending matters from the operation of the Ordinance. We cannot lay down that notwith standing section 6 of the Ordinance a land or building in a Hat shall be included in the said clauses (a) and (b) in so far as the matters pending before us are concerned. We have to read the impugned notification of 1956 in accord ance with the express 'provisions of section 6 of the Ordinance with regard to all the petitions pending before us. Mr. M. H. Khondakar has further argued that, if we had pronounced judgment in respect of these petitions immediately after the decision of the Supreme Court in Yusuf Ali Choudhury's case, the result would have been that in all the aforesaid peti tions we should have held that a Hat of a particular kind held on a vacant piece of land would be retainable by the rent‑receiver within the terms of clause (b) (iii) of subsection (2) of section 2 of the Act. This may be so, but during the pendency of these petitions the Ordinance has come into force and has provided that a Hat shall never be deemed to be included within the terms of section 20 of the Act. We must give effect to the express pro visions of the Ordinance which are expressly retrospective and applicable to all matters, including pending cases. We have already noticed cases where a new legislation altering the position of parties was applied although it came into effect after the conclusion of the hearing of a case but pending delivery of judgment. See Jonas v. Rosenberg. In Mukherjee, Official Receiver v. Ramratan Kuer and others and in Quilter v. Mapleson a new legislation which affected the rights of the parties was applied at an appellate stage when it came into existence during the pendency of the appeal. We cannot refuse to apply the provisions of the Ordinance to the cases pending before us when they expressly apply to them. Lastly, we shall deal with another point which was made by both Mr. Hamidul Huq Choudhury and Mr. M.. H. Khondkar. It was argued before us that according to the impugned notifica tion of 1956, the Province of East Pakistan expressly excluded from acquisition' certain categories of land which came within the purview of clauses (a) and (b) of subsection (2) of section 20 of the Act. It was contended that, in accordance with the decision of the Supreme Court of Pakistan in Yusuf Ali Choudhury's case the Province of East Pakistan will be deemed to have expressly excluded Hats from being acquired. It was, therefore, submitted that if it is desired that a Hat should be acquired, it can be only done by way of a fresh notification to that effect and that a Hat cannot be acquired under the impugned notification. The point sought to be made may be stated thus : Inasmuch as ‑the Supreme Court of Pakistan has held that of a parti cular description comes within the meaning of the phrase "vacant non‑agricultural lands" in section 20 (2) (iii) of the Act, therefore, a Hat of this description is deemed to have been expressly excluded from acquisition by the impugned notification. But, is that so? The aforesaid notification does not, in express terms, exclude Hats from being acquired. In this notification there is no reference to Hat or Bazar. There is also no conscious exemption of Hats and Bazars from acquisition. The notification merely excludes all the various categories of land which come within the meaning of clauses (a) and (b) of subsection (2) of section 20 of the Act. In fact, it is obvious that the Province of East Pakistan had all along acted on the footing that neither a Bazar nor a Hat comes within the purview of the said clauses (a) and (b). They have already taken possession of a large number of Hats of the Province in pursuance of the impugned notification. On behalf of the Province of East Pakistan it was vigorously contended in Yusuf Ali Choudhury's case in this Court that Hats and Bazars do not come within the purview of the said clauses (a) and (b). The decision of this Court was in favour of the Province of East Pakistan. Even before the Supreme Court it was also strenuously urged on behalf of the Province of East Pakistan that neither a. Bazar nor a Hat would come under the above‑mentioned clauses (a) and (b). With regard to Bazars, the Supreme Court did not repel the contention of Province of East Pakistan nor over rule the decision of this Court in that respect; all that the Supreme Court has held in Yusuf Ali Choudhury's case is that a Hat, which periodically takes place on a vacant land, would come under the description of "vacant non‑agricultural land." The legislature has now intervened and the Ordinance has expressly provided that Hats and Bazars shall be deemed never to have been including in clauses (a) and (b) of subsection (2) of section 20 of the Act. In the face of this express provision in the Ordinance, we cannot but give effect to the same in the impugned notification of 1956. To quote the language of Lord Asquith in ((1952) A C 109 p. 132), we cannot allow our imagination to boggle when it comes to applying the provisions of the Ordinance to the impugned notification. There is, there fore, no substance in this point. We hold that in respect of all the Writ Petitions now before us, Hats do not come within the purview pf clauses (a) and (b) of subsection (2) of section 20 of the Act. Thus all the points canvassed before us on behalf of the peti tioner are answered in the negative. The Rule is, therefore, discharged without any order as to costs. SIDGIKY, J.‑I agree. A. H. Rule discharged.