P L D 1967 Dacca 546 (PLP)

MURSHED, C. J.‑This reference arises out of the following circumstances. An application under section 24 of the East Bengal Non- Agricultural Tenancy Act, 1949 (Act XXIII of 1949) (hereinafter called the Act) was filed by opposite‑parties before us asking for enforcement of a right in the nature of pre‑emption in respect of a land of which the said applicants were admittedly co‑sharers. A co‑sharer of the land transferred one‑third share, which belonged to him, with structures thereon, to one Waheda Khatun by a registered kabala on the 17th of February 1955. Thereafter, the said Waheda Khatun, on her part, transferred to petitioner the building appertaining to the entire land. She transferred the building to petitioner on the 17th of December 1956, without notice to the co‑sharers. The superior right in respect of the land, namely, the rent‑receiving interest in the land appertaining to this Province had been acquired, en mass, by the Provincial Government long before December 1956, under the East Bengal State Acquisition and Tenancy Act, 1950, which it is needless to say, was not brought into existence when the aforesaid Act was passed. Relying on section 85 (2) of the Act, the application was opposed on the ground that section 24 of the aforesaid Act could not be prayed in aid by the applicants because of acquisition, as stated above, of the superior right in respect of the suit‑land by the Provincial Government under the said East Bengal State Acquisition and Tenancy Act, 1950. The learned Subordinate Judge, who tried the application, came to the conclusion that the applicants (opposite‑parties before us) could not avail themselves of the provisions of section 24 of the Act because section 85 (2) thereof bars the exercise of such a right, inasmuch as, at the time when Waheda Khatun had effected such transfer, the superior right with regard to the land had been acquired by Government under the East Bengal State Acquisition and Tenancy Act, 1950, although at the time when the Act came into force it was not so acquired by Government. The applicants (opposite‑parties before us), therefore, preferred an appeal which was heard and disposed of by the District Judge, Pabna, who, on a discussion of the provisions of the Act, took the view that the application was not barred by the said section 85 (2). He, therefore, allowed the appeal as well as the application. The opposite‑party in the trial Court (petitioner before us) then moved this Court in its revisional jurisdiction and obtained a Rule nisi against the order passed by the learned District Judge. At the hearing of this Rule, the main point canvassed, on behalf of the petitioner, was that under section 85 (2) of the Act the application was incompetent. This proposition was strenuously opposed by the original applicants who are now opposite‑parties before us. The point gyrates round the interpretation of section 85, subsection (2) of the Act. The Division Bench, which had initially heard the revisional application, was of opinion that the view taken by another Division Bench of this Court in the case of Brindaban Chandra Chowdhury v. Mst. Razia Begum (16 D L R 77) to the effect that section 85 (2) did not take away the right conferred upon a tenant under section 24 of the Act, was debatable, and has referred the case to a Full Bench. Under the relevant rule the Full Bench is required to dispose of the entire case and not merely to answer the question referred to it. In support of the present Rule, it has been contended on behalf of the petitioner that what has been saved by the proviso to section 85 (2) is a "vested right" in a tenant, that is to say, a right which has fructified for immediate enforcement, as distinguished from the generality of rights vested in a tenant by the provisions of the Act. The gist of the argument is, that in so far as section 24 of the Act purports to confer a right of pre‑emption, such a right does not "vest" in a tenant until the transference of a share to a co‑sharer, that is to say, that the right itself is a contingent right dependent upon the transference of a co‑sharer's share. It is patent that, according to this line of argument, the word "right" has been treated as an equivalent of the concept of "vested interest". In such view of the provisions of subsection (2) of section 85 of the Act, it has been strenuously contended that the transference by a co‑sharer having taken place after the superior rent‑receiving interest has been acquired by Government under the East Bengal State Acquisition and Tenancy Act, 1950, it cannot be said that any right had "vested" in the petitioners under section 24 of the Act. It was, therefore, submitted that the application for pre‑emption under the said section 24 cannot be said to be saved by the proviso to section 85 (2) of the Act. The argument to the contrary is that the proviso to sub section (2) of section 85 of the Act does not specifically speak of a "vested right", as opposed to "contingent right". It does not confine itself to a mere "vested interest". It speaks of a right which is vested by the provisions of the Act and not merely of a fructified right such as one which a co‑sharer tenant might acquire under the provisions of the Act by actual transference of land. It is contended that there is no warrant for saying that a contingent right does not vest in a tenant by the provisions of subsection (1) of section 24 of the Act. It is true that a contingent right would fructify upon the happening of the contingency, nonetheless it is a right which vests in its recipient. It has been further contended that section 24 of the Act vests a right to ask for pre‑emption in respect of a share of a co‑tenant if and when such share is transferred by the said co‑sharer. It has, therefore, been urged that such a right is "vested right", ab initio, notwith standing the fact that the contingency of transference of the co‑sharer's share has yet to take place. The point which has been referred to us has been formulated as follows: "Whether the right to apply for pre‑emption as provided in section 24 (1) of the Act can be said to be a right vested in the tenant within the meaning of the proviso under section 85 (2) of the said Act as being not liable to be divested as a result of the acquisition of the superior rent‑receiving interest by the Government irrespective of the question as to when the relevant transfer of the portion or share of the land concerned takes place." Before we proceed to deal with the aforesaid point, we may refer to section 24, subsection (1), of the Act, which reads thus: "24. (1) If a portion or share of the non‑agricultural land held by a non‑agricultural tenant is transferred, one or more co‑sharer tenants of such land, or of the non‑agricultural land held by non‑agricultural tenant or a portion or share there is transferred, the immediate landlord of such non‑agricultural tenant may within four months of the service of notice issued under section 23 and in case no notice had been issued or served than within four months from the date of knowledge of such transfer, apply to the Court for such portion or share or for such land or portion or share, to be transferred to himself or to themselves, as the case may be." Section 24 (1) of the Act confers a right similar to that conferred by section 26‑F of the Bengal Tenancy Act as well as that given by section 96 of the East Bengal State Acquisition and Tenancy Act, 1950. Such right is in the nature of a right of pre‑emption. We may now turn to section 85 of the Act which reads thus: "85. (1) Nothing in this Act shall apply to‑ (a) any land vested in, or in the possession of‑ (i) a port authority of a port, or (ii) a railway administration, or (iii) any local authority, or (b) any lease in respect of any forest‑rights or rights in any non‑agricultural land, or (c) any land acquired under the Land Acquisition Act, 1894, or under any other law for the use of any Depart ment of the Central or Provincial Government, or (d) any other land in the possession of the Central or Provincial Government, or (e) any land held under a public Wakf or a trust for public purpose. (2) Nothing in this Act shall apply to any non‑agricultural land held by a tenant under the Central or Provincial Government Provided that the right vested in a tenant by the provisions of this Act shall not be divested by the acquisition of the superior right only in the land by the Government." We have quoted section 85 in its entirety with a view to interpret subsection (2) and the proviso which has been appended to it. Pausing here for a moment, it may be noted that the Act purports to confer a mass of rights upon a "tenant" in the sense that it enables him to reap the benefit conferred upon him by its provisions. It specifically recognises an "under‑tenant" and also confers certain rights upon him. In some cases landlords have also been invested with specific rights. Such portions of the Act as do not deal with the conferment of such rights are inci dental to their investment. It is obvious that the Act was brought into existence with the object of conferring a wide range of rights on non‑agricultural tenants whom it intended to protect by raising a barrage of massive statutory rights. These rights have been vested by the Act and, it is in such a sense, that the term "right" should be understood wherever the expression has been used in the enactment. The word "right", as used in the Act, connotes a "right" to pray in aid the provisions of the Act and does not confine itself to a particular right acquired under the Act so as to become immediately enforceable by interplay of events. It is important to remember this. In the context of such extensive rights, which the Act vests in a tenant, a saving clause has been incorporated in section 85, which is, virtually, a code by itself. The operation of the entire Act has been excluded in the catalogue of cases mentioned in the said section. In this enumera tion of exclusions, the proviso quoted above, has been appended to subsection (2) of section

85. The subsection, namely, subsection (2), speaks of the non‑application of the Act as a whole. It does not merely deal with a particular right acquired under a specific section individual cases by intervening circum stances. The question is, whether the proviso deals with a package of rights, which has been given to a tenant by the Act? Or, in other words, does the "right" mentioned in the proviso refer to a right, vested in the tenant by the provisions of the Act, to avail himself of the advantage conferred upon him by the Act? The concept of "vested right" was canvassed before us at some length, but no useful purpose would be served by profitless meanderings in fields of jurisprudential abstractions. The proviso to section 85(2) is not merely directed towards "vested interests" acquired under the Act. It should be noted that the word "vested" has not been used in the proviso as an adjective qualifying the word "right" but as a verb in the past perfect tense. The vesting is done by the Act itself, that is, by section 24 of the Act. It refers to the kind of right which is created by the Act and not merely to a right acquired under the Act and created by supervening events. It appears that the word "vested" which occurs in the proviso, simply connotes the idea of a mere confer ment. The proviso does not speak of any "vested right", as the expression is understood, in contradistinction to a "contingent A right" and, even so, is there any justification for saying that a right which has fructified can alone be described as such ? An illustration, gathered from a decision of the Judicial Committee of the Privy Council, may be stated as follows: When A transfers his land to B for life and, thereafter, to C, then, upon such transference, a right has already vested in B, but a contingent right has also vested in C immediately upon the transference as stated above. C's right is contingent but, nevertheless, it is a "vested right" (See Bhagabati Barmanya v. Kali Charan Singh (15 C W N 393)). When a co‑sharer has transferred his share to another, a right vests in another co‑sharer under section 24 of the Act to pre empt such share, but prior to such transfer it would be permis sible to say that the Act vests a right in a co‑sharer tenant to ask for pre‑emption in the event of his co-sharer transferring his share to another. The right vested by section 24 appertains as an incident to co‑sharer‑ship in a land held by a non‑agricultural "tenant". The right to ask for pre‑emption in case a co‑sharer transfers his land to another is also a "right". It is an enabling right, that is, it enables a tenant to avail oneself of the provisions of the section. Such a right has been vested in a co‑sharer tenant B by section

24. It is a present right which becomes enforceable in future, that is, in the event of a co‑sharer tenant transferring his right. It consists in the mere power to ask for pre‑emption. The right may be exercisable only on the occurrence of a future event, nevertheless, it is a "right". The language of section 85 (2) of the Act is not ambiguous in its context. In accordance with the plain meaning of its language, the proviso should be paraphrased thus: "Provided that the right conferred upon a tenant by the provisions of this Act shall not be taken away by the acquisition of superior right only in the land by the Government." It is true that the word "divested" presupposes a vestment; but we have seen above that a fructified right as well as a contingent right, which has not yet ripened into fruition, can both be said to "vest" in a person The word "divested" is synonymous with the term "deprived". The expression "to vest" should be understood in the sense, "to confer", "to clothe", "to give", "to bestow" and "to impart". When section 24 says that if a portion or share of a land is transferred by a co‑sharer, any other co‑sharer can ask for pre emption, would it not be legitimate to say that as an incident t sharing the land, a co‑sharer has been vested with a right to ask for such pre‑emption whenever his co‑sharer makes such transfer? As soon as the Act had come into force a co‑sharer tenant stood vested with a right conferred by section

24. And what is the right? The right to ask for pre‑emption in case a share or portion of the non‑agricultural land is transferred With the commencement of the Act whoever answered the description of a "co‑sharer tenant" within the meaning of the Act became clothed with the sort of right mentioned above. The proviso, as we read it, simply means that a tenant would not be stripped of his right, merely because of acquisition of superior right by the Government. The proviso does not purport to save the application of section 24 in respect of the right it confers upon the landlord. It does so only in respect of a tenant. What the proviso saves is a right with which "a tenant" has been invested by the provisions of the Act and not merely a right which has already become enforceable as a "vested interest" under the provisions of the Act by the intervention of an event contemplated by the Act. In the latter case the right would become a "vested interest" flowing from the event itself, namely, the transference of a portion or share of the land. The right to ask for pre‑emption is a power created by the Act. Its source is the Act itself. The right to take advantage of a statute is a right vested by the Act. It is significant to note that in Abbott's case (1895 A. C. 425), which is the mainstay of the argument that the application under section 24 is incompetent, the Lord Chancellor has observed thus at page 431 of the report. "It may be, as Windeyer, J. observes, that the power to take advantage of an enactment may without impropriety be termed a "right". It was held that, in the context of the enactment under consideration, the said right could not be described as an "accrued right" within the meaning of the Act. A distinction was made between a mere right and an "accrued right". The words used in the East Bengal Non‑Agricultural Tenancy Act, 1949, are "by the provisions of this Act" and not "under the provisions of this Act". A power to avail on self of the benefit of the section is a right vested by the 'o provisions of section 24 of the Act. On transference of a portion or share of land by a co‑sharer, the said right becomes an "accrued right" under the said provisions of section

24. Reference has been made to decisions, such as, the cases of Abbott v. The Minister for Lands, (L R 1895 A. C 425), referred to above Jatindra Nath De v. Jetu Mahato (50 C W N 502) and similar other cases. In Jatindra Nath De's case here is a full discussion of various other decisions of Courts in England as well as in India. In the aforesaid cases the point for consideration was the effect of repeal upon a statute in the light of the Interpretation Act and the General Clauses Act. Each of the cases, as referred to above, has been decided on the basis of the specific provisions of the enactment concerned. Since they shed no direct light on the point which confronts us, they would, in all probability, lead to a cul de sac. A number of cases have been cited both in support of the Rule as also in opposition to it. We have not discussed them because, as we have stated above, the decisions in all such cases are dependent upon a consideration of the effect of a repeal of some provisions of a statute upon rights which have already accrued under the statute prior to the repeal. Abbott v. The Minister for Lands and Jadndra Nath De v. Jetu Mahato as we have noticed above, deal with such a question, namely, what would be the effect of repeal with regard to rights which have already "accrued" or vested in a person as an "accrued right". Similarly, Colonial Sugar Refining Company, Limited v. Irving (L R 1905 A C 369) Hamilton Gell v. White ((1922) 2 K B 422) and Reynolds v. Attorney -General for Nova Scotia ((1896) A C 249) cited in opposition to the Rule and in support of the application under section 24, are decisions which involve the effect of repeal upon a right which has already "accrued". The aforesaid cases, however, point to the cardinal principle that the language of a statute should be construed in the context of the statute itself. In all the above‑mentioned cases meticulous care has been taken to find the intention of the Legislature upon a construction of the statute as a whole. If the meaning of an expression used in a statute can be gathered from its text, read in its context, nothing else need be done. No other aid is necessary. We are not concerned with questions, which call for investigation, when a statute is repealed. We are merely called upon to construe a proviso to a subsection in a statute. This is all that we are required to do. We have seen that a preponderance of the provisions of the Act is directed towards conferring a volume of rights upon tenants. The said provisions are essentially "enabling provisions". The entire body of rights so vested in a tenant by the provisions of the Act can be called "vested rights" which include rights presently enforceable in a Court of law and also rights which would become enforceable upon the fulfillment of a contingency. The right as created by specific provisions of the statute is a mere right to take advantage of such provisions. We may illustrate the point by, for instance, a reference to the case of the Colonial Sugar Refining Company, Limited v. Irving. In this case what happened was that although there was a right of appeal from the Supreme Court of Queensland to His Majesty in Council given by an Order‑in‑Council, the Australian Commonwealth Judiciary Act, 1903, provided that the only appeal therefrom would lie to the High Court of Australia. It was held that there would still be a right of appeal to the King in Council in a suit which was pending when the Act was passed and decided by the said Supreme Court afterwards. It was argued that inasmuch as the provision of the aforesaid Order‑in‑Council, which conferred a right of appeal to His Majesty in Council, stood repealed by the Act, the alteration made by the Act would affect even pending actions because the said alteration was one of procedure and did not affect private rights. On the other hand, it was argued, in opposition to the above contention, that the said Act, not being retrospective, could not defeat a right in existence at the time when the Act was passed. We may interpose and add here that the "right in existence", as stated above, was a mere right to take advantage of provisions of law. The judgment against which an appeal to His Majesty in Council was preferred was not passed at the time when the Act came into existence. Lord Macnaghten in delivering the opinion of the Board observed as follows: "And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well‑known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." Although the aforesaid case was primarily concerned with the application of a statute upon pending litigation when the statute was not given a retrospective operation, we have discussed it merely for the purpose of showing that a bare right to take advantage of the provisions of a law can be described as an existing right. In a sense it would be correct to say that a right of appeal does not vest until a judgment or a decree is passed against which an appeal can be preferred. But, at the time when the case was pending, the law conferred upon a litigant the right to prefer an appeal against the judgment or decision which might be given or a decree which might be passed. Thus a right to take advantage of the provisions of the law can be legitimately termed a "right." Section 6 of the Act speaks of rights which can be described as rights which are immediately enforceable. Section 7 confers rights most of which may be called "contingent rights". Chapter V, wherein section 24 finds place, deals with provisions as to transfer of non‑agricultural lands. Finally, we come to Chapter XII which is the last chapter of the Act. The first section in Chapter XII is section

85. If we travel back to the provisions of section 85 as quoted above, it would be remembered that this section makes the entire Act (not merely portions thereof) inapplicable under various situations. Subsection (2) of section 85 specifically provides that the Act itself, in its totality, would not apply to "any non‑agricultural land held by a tenant under the Central or Provincial Government." Section 85 thus shuts the door against a tenant holding land under the Central or Provincial Government with regard to the entire Act. Then comes the material rider clause, namely, the proviso which has also been quoted above. The proviso saves the operation of subsection (2) of section 85 with regard to a right of a tenant conferred by the provisions of this Act. It purports to say that that Act will be applicable in so far as it confers a right upon a tenant, in case where the only thing that has happend is that Government has acquired the superior interest. It saves the powers vested in a tenant by the Act. The ability to invoke such powers is a "right" (See 1895 A C 425 at page 431, quoted above). The important thing to notice is that subsection (2) of section 85, including its proviso, is not a mere appendage to section

24. If subsection (2) of section 85 and its proviso had been, mutatis mutandis appended to section 24 of the Act, it might have been possible to argue that the proviso was in reference to an enforceable right vested in a tenant under the said section

24. The proviso is correlated to the main provision of subsection (2) and it is designed to save the operation of that subsection with regard to the entire body of rights conferred by the Act upon a tenant. It is, of necessity, connected with the bundle of rights vested by the Act. The language of the proviso seems to be dictated by the exigency of the fact that only the rights conferred upon a tenant were intended to be saved and that there was no intention to save rights conferred upon a landlord under the Act. Presumably, the rights conferred upon an "under‑tenant" were also not intended to be saved. Furthermore, it is also clear that the proviso did not intend to save the operation of other provi sions of the Act apart from those which conferred rights upon a tenant. The proviso apparently seeks to resolve difficulties which might be posed when, at the time the Act came into force, a tenant may not have been a tenant under Government, but he might have subsequently become such a tenant. What would happen in such cases? fhe proviso seems to provide the answer. In our opinion, the right mentioned in the said proviso refers to all manner of rights which the Act creates in favour of a tenant. The Act vests a tenant with a category of rights. The proviso says that there would be no divestment of such rights by mere acquisition of superior interest by the Government. We would, therefore, answer the question, which has been referred to us, as follows: In the light of the proviso to section 85(2) of the Act a tenant in respect of a non‑agricultural land would not be deprived of a right reposed in him by the provisions of Act on the only ground l of acquisition of superior right in the land by Government. The right vested in a tenant by the provisions of the Act is the right to take advantage of the provisions of the Act, including a right which is immediately enforceable and also a right which is enforceable in future, on the happening of a contingency. The aforesaid answer will also apply in respect of an appli cation under section 24 of the Act. We hold that section 85 (2) of the Act does not bar the application filed by the opposite -parties under section 24 of the Act. We also hold that the case reported in 16 D L R 77, in which it was held that such an appli cation under section 24 was competent, was correctly decided although we have come to the same conclusion by a somewhat different process of reasoning. We now turn to deal with the merits of the application. It is clear that having held that the application is not barred, the applicants under section 24 of the Act, are entitled to succeed unless we uphold the belated argument that has been advanced before us that they (the applicants), namely, opposite‑parties before us, would be deemed to have waived their right as conferred by the said section 24 of the Act. Such a right can be waived and such waiver may operate as estoppel, The question is, has it been established in this case that it has been so waived? The basis of this argument appears to be that the aforesaid share was, previous to the sale under our consideration, purchased by Waheda Khatun who is the present transferee. It is said that since the applicants did not choose to exercise their right of pre emption under section 24 of the Act when a co‑sharer had transferred his interest to Waheda Khatun, they are deemed to have waived the exercise of such a right in respect of the present sale. Such an argument is untenable. If A does not exercise his right against B, it does not and cannot mean that he has also waived a similar but independent right against C. We hold that this contention also cannot be upheld. We, therefore, discharge the Rule without any order as to costs. ABDUS SATTAR, J.‑I agree. SALAHUDDIN AHMED, J.‑I agree. S. Q. Rule discharged.