P L D 1958 Dacca 138 (PLP)

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. CHOWDHURY, J,‑I agree. Z. A. S. Application dismissed.