P L D 1958 (W (PLP)

RAHMAN, C. J.‑--This case raises the question of the true construction of subsection (4) of section 5 of the North- West Frontier Province Tenancy Act, 1950, (hereinafter referred to as the Act). The question has arisen in the following circumstances. Nawabzada Muhammad Umar Khan of Hoti, the petitioner in this case, is a big landlord in the Mardan District. His lands are being cultivated by tenants, who, according to the petitioner, are under an obligation to pay him half the share of the produce. The main crop on the lands in question at present is sugar‑cane. Apparently there is a dispute between the landlord and his tenants in respect of the form in which the rent should be paid. The landlord is anxious that he should secure for himself his half share of the produce in the form of sugar‑cane, while the tenants insist that they should be allow ed to convert, sugar‑cane first into gur and then divide the processed product with the landlord. On the 13th of February 1957, the petitioner applied to the revenue authorities under section 5 of the Act, praying that the produce of his lands be divided between himself and his tenants, by a Revenue Officer, at the spot. The revenue authorities, however, were of the view that the landlord was not entitled to the division of the sugar‑cane crop under this section, which, according to them, applied only to threshable food-grains and oilseeds and did not cover sugar‑cane. The petitioner, therefore, approached the Peshawar Bench of this Court for the issue of an appropriate writ to the revenue authorities directing them to perform their statutory duty towards the petitioner. The Tahsildar, Mardan and the Deputy Commissioner, Mardan, were cited as respondents in the petition, and some tenants of the petitioner were impleaded as parties to the petition, at their own request. The case came up for hearing before a Division Bench, con sisting of my brothers, Muhammad Shafi and Habib Ullah Khan, JJ. The learned judges differed as to the true interpre tation of section 5 (4) of the Act. Muhammad Shafi, J. was of the opinion that the words of the subsection should be construed in their ordinary meaning and in his view only threshable crops fell within the ambit of this subsection and not sugar‑cane. On the contrary, Habib Ullah Khan, J. thought that the subsection could not be confined to thresh able crops but covered all crops and the expression "threshing -floor" occurring therein should be given an extended meaning so as to cover all places at which divisible products were gathered, as the contrary view, in his opinion, would lead to absurd results. The case was then laid before my brother, Abdul Hamid, J., who was apparently inclined to agree with, the interpretation of the subsection adopted by Habib Ullah Khan J., but considering the importance of the question involved made a suggestion that the case may be considered by a Full Bunch for an authoritative pronouncement. The case has, therefore, been heard by a Full Bench at Lahore. Before the enactment of the Act, the relations between the landlords and tenants in the region of the former North -West Frontier Province were regulated by the Punjab Tenancy Act. 1887, as made applicable to that Province by the North- West Frontier Province Law and Justice Regulation, 1901, and as subsequently amended from time to time, and the Hazara Tenancy Regulation, 1887, as amended in 1904. The preamble to the Act declared that it was considered expedient to con solidate and amend the law‑ relating to the tenancy of land in the North‑West Frontier Province. It was not, therefore, a purely consolidating measure. Some radical changes were introduced by way of agrarian Reform, in the Act, as com pared with the position prevailing previously. However, to understand the true import of section 5 (4) of the Act, it may be helpful to refer to the provisions of the Punjab Tenancy Act, 1887, (referred to in the sequel as the Punjab Act) bear ing on the same question. Section 12 of the Punjab Act concerns the respective rights of landlord and tenant to the produce of a tenancy and is in the following terms:‑ "12. (1) The rent for the time being payable in respect of a tenancy shall be the first charge on the produce thereof. (2) A tenant shall be entitled to tend, cut and harvest the produce of his tenancy in the due course of husbandry without any interference on the part of his landlord. (3) Except where rent is taken by division of the pro duce, the tenant shall be entitled to the exclusive possession of the produce. (4) Where rent is taken by division of the produce‑ (a) the tenant shall be entitled to the exclusive possession of the whole produce until it is divided ; (b) the landlord shall be entitled to be present at and take part in, the division of the produce ; and (c) when the produce has been divided the landlord shall be entitled to the possession of his share thereof." Section 16 of the Punjab Act declares that where rent is taken by division or appraisement of the produce, if the tenant removes any portion of the produce at such a time or in such a manner as to prevent the due division or appraise ment thereof, or deals therewith in a manner contrary to established usage, the produce may be deemed to have been as full as the fullest crop of the same description on similar land in the neighbourhood for that harvest. Section 17 of the Punjab Act provides for the appointment of a referee for division or appraisement of the produce between the landlord and the tenant, by order of a Revenue Officer. Section 18 gives discretion to the Revenue Officer to give instructions to the referee with respect to the association with himself of any other persons as assessors. The procedure envisaged by this section is that before the division or appraisement, the referee shall give notice to the landlord and the tenant, of the time and place at which the division or appraisement will be made, but if either the landlord or the tenant fails to attend either personally or by agent, the referee may proceed ex‑parse. For the purpose of making the division or appraise ment, the referee, with his assessors, if any, may enter upon any land on which or into any building in which the produce is kept. Section 19 of the Punjab Act empowers the Revenue Officer, after considering the report of the referee about the division or appraisement and after such further inquiry as he may deem necessary, to make an order either confirming or varying the division or appraisement. It is thus clear that under the Punjab Act, whenever the contract between the landlord and the tenant provided for division of the produce of all kinds, the produce could be divided with the assistance of the revenue authorities at the instance of either party. It is now to be determined whether the position was in any way altered so far as the North‑West Frontier Province was concerned by the Act in this behalf. Section 5 of the Act reads as follows:‑ "

5. Respective rights of landlord and tenant to produce‑ (i) The rent for the time being payable in respect of a tenancy shall be the first charge on the produce thereof. (2) A tenant shall be entitled to tend, cut and harvest the produce of his field in due course of husbandry without any interference on the part of his landlord. (3) Except when the rent is taken by division of the produce, the tenant shall be entitled to the exclusive posses sion of the produce but in the case of food‑grains and oil seeds that have to be threshed, he shall not remove the produce from the threshing‑floor until the rent payable by him for the preceding agricultural' year has been paid to the landlord. (4) Where rent is taken by division of the produce‑ (a) the tenant shall be entitled to the exclusive possession of the whole produce but shall not be entitled to remove it from the threshing‑floor until it is divided; (b) no sooner the produce is ready for division on the threshing‑floor, any Assistant Collector of the 2nd Grade, specially empowered in this behalf on his own accord, or on the application of either the tenant or the landlord shall himself, or through any Revenue Officer, not below the rank of a Field Qanungo, or a Police Officer, not below the rank of a Station House Officer, divide the produce on the threshing‑floor; (c) If the tenant or landlord removes any portion of the produce in such a manner as to prevent the due division thereof, the officer conducting the division of the produce may enter the building or the premises, as the case may be, where the produce is kept and divide the produce there; (d) the landlord and the tenant shall be entitled to be present, and take part in, the division of the produce ; (e) when the produce has been divided the landlord and the tenant shall be entitled to the possession of their respec tive shares immediately. Explanation.‑-The practice of appraisement of the stand ing crop (Kankat) (sic‑should be Kankut) shall henceforth be discontinued." Section 9 of the Act embodies a similar presumption, as envisaged by section 16 of the Punjab Act, that where a tenant removes any portion of the produce to prevent the due division thereof, or deals with it in a manner contrary to established usage, the produce may be deemed to have been as full as the fullest crop of the same description on similar land in the neighbourhood, for that harvest. Section 10 of the Act invests the decision of the officer conducting the division with finality if either of the parties to the dispute fails to attend at the time of the division after due notice, either personally or through agent. It will thus be seen that the provisions of the Act proceed on lines similar to those envisaged by the Punjab Act, though there are apparently some differences in the procedure applicable, and it is expressly enacted that the system of appraisement of produce (Kankut) will no longer be available. Moreover, by sub section (3) of section 5 of the Act, an additional advantage seems to have been conferred on the landlord, even where the rent is not to be taken by the‑division of the produce provided that the crop is covered by the description food-grains and oilseeds that have to be threshed." In such a case the tenant is debarred from removing the produce from the threshing‑floor until the rent payable by him for the preceding agricultural year has been paid to the landlord This is an innovation apparently giving an advantage to the landlord, which did not exist in the Punjab Act. We are, however, concerned principally with subsection (4) of section 5 of the Act. It has been contended on behalf of the petitioner by Mr. Manzoor Qadir that this subsection refers to division of produce in general and not to the produce of threshable produce alone and that the use of the expression "threshing‑floor" in clauses (a) and (b) thereof, cannot control the generality of the word "produce" in this context, so as to confine its meaning to threshable produce. He urges that either an extended meaning should be given to the expression "threshing‑floor" so as to include within its scope all places where any crop, after being cut, may be gathered for the purpose of division or, in the alternative, the suggestion may be accepted that the draftsman of the Act had assumed that all divisible produce, whether threshable or not, would be transferred to the threshing‑floor for the purpose of division. It is conceded that this assumption may have been wrongly made by the draftsman owing to his ignorance of agricultural conditions. For instance, in the case of fodder crops, some times, the standing crop is divided between the landlord and the tenant, who then appropriate their share of the produce from time to time by cutting it as and when they feel the need for it. It is pleaded that even if the underlying assump tion was misconceived, the interpretation contended for on behalf of the petitioner would be consonant to the object of the Act and consistent with its scheme. It is argued that no rational ground can be suggested for the exclusion of non‑threshable produce from the purview of subsection (4) of section 5 of the Act. Mr. Manzoor Qadir has also cited Bidie v. General Accident, Fire and Life Assurance Corpora tion Limited (1948 (2) All Eng. L. R. 995), to support the rule of construction pressed for by him. At page 998 of the published report of that case. Lord Greene M. R, made the following pertinent obser vations:‑ "The first thing one has to do, I venture to think, in construing words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question: "In this state, in this context, relating to this subject‑matter, what is the true meaning of that word?". I find that the same principle has been recently affirmed by the House of Lords in a judgment reported as Attorney -General v. Prince Ernest Augustus of Hanover (1957 A C 436). Learned counsel also referred us to Maxwell on Interpretation of Statutes, tenth edition, page 24, as an authority for the pro position that even in the case of consolidating and amending statutes, the Court should lean towards a presumption that it is not intended to alter the law unless a change is expressly provided for. Reliance was moreover placed on the observa tions of Lord Esher, M. R. in Curtis v. Stovin ((1889) 22 L R, Q B D 513 at 517). In that case Lord Esher thought that the Legislature had mis described the expression "Court" occurring in section 65 of the County Courts Act, 1888, but that at the same time, they had misdescribed it in such a way as to show that there was in fact misdescription of the Court. The section provided that where certain conditions be lawful for either party to the action to apply to a judge of the High Court for an order that the action be tried in any Court in which the action might have been commenced. These words were interpreted to mean: "In any county Court in which, if it had been a county‑court action the action might have been com menced." Bowen, L. J., who agreed with the Master of Rolls, remarked in that case that the rules for the construction of the statutes are very like those which apply to the con struction of other documents, especially as regards one crucial rule, viz., that if it is possible, the words of a statute must be construed so as to give a sensible meaning to them. The words ought to be construed ut res magis valeat quam pereat. On the other hand, Mr. Abdul Qayyum Khan, who appeared for the tenants, and Mr. M. B. Zaman, who repre sented the Tahsildar and the Deputy Commissioner, Mardan, pressed for the literal construction of the section, but at the same time suggested that the word "threshable" was to be taken as qualifying the word "produce" in subsection (4) of section 5, because of the mention of the expression "threshing -floor" in that section. As has been observed by Abdul Hamid, J., it appears that both parties rely on certain implica tions to construe the section, the petitioner having resort to the Object and General Scheme of the Act for the purpose of the wider interpretation contended for on his behalf and the respondents reading the implication of the expression "threshing‑floor" as qualifying the general word "produce" in the subsection. It cannot be said that the subsection is artistically drafted or unequivocal in its expression. The true signification of the subsection, therefore, has to be determined, in my humble judgment, in the context of the Act itself and its declared object. It is no doubt true, as Mr. Abdul Qayyum Khan has pointed out, that the Act makes a departure from the previous position in several respects. For instance, the Act provides for the institution of occupancy tenancy to be extinguished by a scheme of compensation, in certain cases, to be paid to the landlord and in other cases, for vesting full ownership rights in the occupancy tenants without compensation, under section 4 of the Act. It is stressed that it is not a merely consolidating measure but an amending Act in addition. It does not, however, seem that the idea was merely to benefit the tenant at the cost of the landlord. On certain matters indeed, the Legislature showed an equal solicitude for the rights of the landlord. As mentioned above, one illustration of that solicitude is provided by subsection (3) of section 5 of the Act. The Statement of Objects and Reasons published with the North‑West Frontier Province Tenancy Bill, 1950, in the Government Gazette, Extraordinary, of the North‑West Frontier Province, dated the 6th of May 1950, is instructive when the aim and scope of the Act is to be considered, and may be reproduced in extenso:‑ "During the last decade, the relationship of landlords and tenants worsened considerably and as a result thereof, the Government decided to bring out a legislation which tended to check the growing tension between these two classes. It was therefore proposed to amend and con solidate the existing Punjab Tenancy Act so as to enable the occupancy tenants to purchase the proprietary rights of their landlords under certain conditions. It was further decided to give a security to the tenants‑at‑will for a limited period during which they shall not be ejected. This decision of the Government had the support of the Muslim League. With this object in view a Bill, the North‑West Frontier Province Tenancy Bill, 1950, was introduced in the Provincial Legislature and passed during its session held in January 1950. The Governor reserved this Bill for the assent of the Governor‑General who with held his assent therefrom on the ground of a penal clause contained therein. The clause was intended to punish the tenants who removed the food-grains from the threshing- floor before payments of rent to their landlords. This clause was held to be inconsistent, with clause 70 of the said Bill. Under the advice of the Adviser of Land Tenures of the Central Government, this offending clause has been omitted and some other consequential amendments have been incorporated in the revised Bill, which is being brought before the House." The reference to the penal clause in the above Statement of Objects and Reasons, was obviously to clause 6 of the original Bill, which was published in the North‑West Frontier Province Government Gazette, Extraordinary, dated the 6th of January 1950. That clause provided that whoever removes any portion of the produce at such a time or in such a manner as to prevent the due division thereof or to evade the payment of cash rent or dues therewith, contrary to the established usage or prevents or obstructs the landlord or the tenant, as the case may be, from taking his share of the produce or obstructs the officer conducting the division in performing his duties under this Act, shall be punishable with imprisonment for a period of three months or a fine not exceeding Rs. 200 or both. These cases were to be tried summarily under section 260 of the Code of Criminal Procedure by a first class Magistrate specially, empowered in this behalf. It will be noticed that this clause visualised benefit of both parties in respect of all kinds of produce and even made the evasion of cash rent a penal offence. This was apparently taken exception to, on behalf of the Governor -General as, to a certain extent, it conflicted with clause 70 of that Bill, which provided that a tenant during the con tinuance of his occupancy, shall not be liable to be imprisoned on the application of his landlord, in execution of a decree for an arrear of rent. The penal clause was, therefore, omitted from the new Bill, which was passed by the Legislature and became an Act, with the assent of the Governor‑General, on the 20th of June 1950. One of the declared objects of this legislation was clearly to check the growing tension between landlords and tenants. If any guidance is to be obtained from this fact, the inference would be that the Legislature was anxious to minimise the sector of controversy between the landlords and tenants as far as possible, and it was, therefore, unlikely that any class of divisible produce should have been excluded‑ from the ambit of subsection (4) of section

5. This view is strengthened by a reference to the fact that henceforth, the device of appraisal of produce was also not to be available to the landlord or the tenant. This general consideration, however, could not override the meaning of the provision, if the words of the enactment were plain and unambiguous. This is admittedly a cardinal principle of interpretation of statutes. It is, however, common ground between the parties that the words of the subsection are not unequivocal and do not yield one exclusive meaning. The aid of the Statement of Objects and Reasons, therefore could be legitimately invoked for fixing the scope of this particular provision. The indications are available in favour of a wider interpretation rather than the narrow one contended for by the respondents. The intrinsic evidence of section 5 itself points towards the wider interpretation being correct. The heading of the subsection is: "Respective rights of landlord and tenant to produce." There are no qualifying words to limit the word "produce" in this heading to "threshable produce" The headings prefixed to sections are regarded as preambles to those sections and can properly be used as giving the key to the interpretation of the section unless the wording of the section is inconsistent with such interpretation, vide Maxwell in Interpretation of Statutes, Ninth Edition, page

54. In subsection (4) of section 5 itself, no words of limita tion exist before the word "produce", though it is suggested on behalf of the respondents that the expression "threshing -floor" occurring therein introduces a limiting factor. It is doubtful whether a change from the existing position, as it obtained under the Punjab Act, was effected by the Legislature, so to speak by a side‑wind, leaving the matter on the plane of implication, whereas it would have been easy enough to make the intention clear by express words. Clause (c) of subsection (4) of section 5 again uses the general term "produce" and not "threshable produce", and makes provision for an officer conducting the division, to follow up the produce, if it had been removed so as to prevent its division, to another place. This would tend to fortify the view that the use of the expression "threshing‑floor" wash not to be made fetish of and the real object was apparently to provide a machinery for the division of all divisible produce. It would, therefore, be legitimate to conclude that subsection (4) of section 5 was not intended to be limited to "threshable produce" and there is force in the suggestion that the draftsman had assumed that all divisible produce would be removed for the purpose of division to the threshing‑floor, which is undoubtedly "a prepared hard level surface on which corn is threshed", according to the definition of that term in the Oxford Dictionary. That may be the normal use of the threshing‑floor, but there is nothing inherently improbable in the suggestion that the draftsman of the Act visualised the removal of all cut crops that are to be divided, to the threshing‑floor, for the purpose of division. Even if, therefore, the expression "threshing‑floor" is given its normal dictionary meaning, there would be no difficulty in construing the section and making it applicable to all kinds of divisible crops provided that the assumption which seems to have been made by the draftsman is kept in view. If the opposite view is accepted, then it would seem to follow that clause (a) of subsection (4) of section 5 of the Act would not cover "non‑threshable produce", because the implication that the subsection deals with non‑threshable produce will have to be read into all its clauses. The result would be that the tenant would not be entitled to the exclusive possession of the whole produce of a divisible crop if it was non‑threshable and the landlord might conceivably be argued to have power to take possession of it, even before it was divided. This would open the flood‑gates to litigation both in the criminal and the revenue Courts, between the parties. As far as possible, an interpretation which leads to such a result should be avoided. Mr. Abdul Qayyum Khan on behalf of the tenants suggested that section 18 of the Act provided a speedy remedy to a landlord for the recovery of rent. This apparently rests on a misconception of the scope of that section, which is obviously intended to safeguard the interests of a landlord in cases where the produce of a tenant is attached by a third party. It does not apply to all cases of dispute between the landlord and the tenant over the division of produce. Learned counsel for the respondents also tried to argue that no effective writ could possibly be issued in respect of a sugar‑cane crop to ensure its division between the parties, as the crop in question was not cut as a whole at one time but in instalments, as and when the need arises for turning the sugar-cane into gur or for sending it to the sugar factories. It was pointed out that only a limited quantity of sugar‑cane could be sent to factories on each occasion as the factory owners followed a permit system under which they took sugar‑cane of the prescribed quality, in prescribed quantities only, from the growers, on any one day. It was, therefore, contended that it would be practically impossible for Revenue Officers to attend to frequent division of sugar‑cane crops. This was pressed into service as an additional argument in support of the view that the Legislature could not have intended all kinds of divisible produce to be covered by subsection (4) of section

5. The argument, however, omits to take note of the ordinary course of conduct between the landlord and the tenant. It is not to be presumed that all tenants and all landlords will dispute the division or their produce. It is only in some cases that the matter may assume controversial form. It is, therefore, not necessary that the Revenue Department should provide an army of officers to meet the demand. Their services would be requisitioned only in case a dispute arises between the parties. Once the principle has been settled, the chances of such disputes arising in future may be minimised. Even if sugar‑cane crop is not normally taken to the threshing -floor, it could be so taken for the purpose of division as soon as a sufficient quantity of it had been cut for the day. I do not, therefore, share the doubts raised by learned counsel about the effectiveness of the writ asked for in this case. After careful consideration of the relevant provisions, I have, therefore, reached the conclusion that the view taken by my brothers, Habib Ullah Khan and Abdul Hamid, JJ., in so far as they refused to accept that the word "produce" in subsection (4) of section 5 was limited to "threshable H produce" was correct and I am in respectful agreement with that view. With due deference for the interpretation adopted by Muhammad Shafi J.; I am unable to share his opinion on the point, in view of the above discussion. It follows that the revenue authorities, when properly moved in the matter, failed to exercise jurisdiction vested in them by law and. this is a fit case for the issue of the writ prayed for. Mr. Abdul Qayyum Khan on behalf of the tenants tried to raise the issue that in fact the contract between the parties was for payment of the rent in the shape of gur and not in the shape of a share of the sugar‑cane crop at all. This is a matter which we consider it unnecessary to decide in the present case. There is not enough material on the file for its proper determination, as the relevant entries from the revenue records, showing in what form the rent was payable, have not been produced. I would, therefore, issue a direction to respondents Nos. 1 and 2 to do their statutory duty and arrange for the division of the sugar‑cane crop still standing, as soon as it is cut and, if necessary, at the threshing‑floor or at any other place to which it may have been moved, as provided by the law, if the contract between the parties is to divide the produce. In view of the difficult nature of the question involved, I would make no order as to costs. KAYANI, J.--‑I agree. SHABIR AHMAD, J.‑--I agree. A. H. Petition accepted.