P L D 1963 Dacca 472 (PLP)

SATTAR, J.‑‑‑This Rule was issued on the opposite‑parties to show cause why a writ of mandamus or an appropriate writ of like nature should not issue directing them to forthwith withdraw, cancel and/or rescind the notice dated the 4th April 1961, proclaiming that Sripur Hat would be settled by public auction.

2. It is said that the petitioner, being in ownership and khas possession of the Sripur Hat in its 14 annas 10 gandas share, dedicated the same as a Public Wakf by a registered deed dated the 7th of January 1955, and has been holding the same in khas possession as the" Wakif Mutwalli". The Province of East Pakistan, in spite of the general notification dated the 2nd of April 1956, issued under section 3 of the State Acquisition and Tenancy Act, 1950, (hereinafter called the Act), did not enter into or take possession of this hat. During the current survey settlement operation, the petitioner's name has been recorded as "tenant" under the Government in respect of 44 acres of the disputed land out of 48 acres at the annual rental of Rs.

66. The Additional Collector, by an order dated 28‑6‑57, released the hat, and the Provincial Government also, by a notification dated the 9th May 1959, published in the Dacca Gazette on the 21st of May 1959, excluded all khas lands belonging to wakf estates and other religious trusts. Respondents 4 and 5, however, all on a sudden, issued notices dated the 4th of April 1961, proclaiming that the hat would be settled by public auction on the 12th of April 1961. The petitioner, it has been asserted, is entitled to keep the aforesaid hat land in his ownership and khas possession as the Mutwalli either as retainable khas land or as khas land belonging to a public wakf and/or as tenant under the Government since rent has been assessed thereon. The hat has not been lawfully specified in the published notification dated the 2nd of April 1956, nor any fresh notification has been issued by the Government for re‑acquisition thereof. On the contrary, the land has been excluded by notification from acquisition.

3. An affidavit‑in‑opposition has been filed by Mr. A. S. M: Nurunnabi, Section Officer, Revenue Department, Government of East Pakistan. It has been asserted that the petitioner was a rent‑receiver on the 13th of April 1956, having rent‑receiving intesest in khatian Nos. 118 Touzi No. 1720, 7289, 9282 of the Bakerganj Collectorate. It has been stated further that as hat lands are not retainable khas lands under section 20 of the East Bengal State Acquisition and Tenancy Act, 1950, as amended by Ordinance XII of 1960, the said hat stood acquired by the Province of East Pakistan under Notification No. 4850 L. R. dated the 2nd of April 1956, and the land duly vested in the Provincial Government from that date. The claim of the petitioner that he had been in possession of the disputed land since 14‑4‑56 has been denied, and it has been asserted that Government took over possession of the disputed hat in year 1957 and advertised the same for auction to be held on the 13th of May 1957, for temporary settlement for the year 1957‑

58. The petitioner objected to the acquisition of the hat and then the Additional Collector wrongly released the hat then. The hat was again taken possession of by Government on the 5th of March 1961, under Ordinance No. XII of 1960 and as the compensation assessment rolls had been finally published on 11‑3‑

58. In the affidavit‑in‑opposition, it has further been stated that the hat originally was recorded in the name of the Collector and subsequently, on an objection raised by the petitioner, 44 acres were wrongly recorded in the name of the petitioner and 4 acres were recorded in the name of the Collector. Against that order, Government preferred an appeal under section 50 of the Act and had the record‑of‑rights corrected and the hat recorded in the name of the Collector for the Province of East Pakistan on the 3rd of July 1961.

4. On behalf of the respondents, it has been pointed out that, as the hat in question was validly acquired by Government on the 14th of April 1956, in pursuance of Notification No. 4850‑L. R. dated the 2nd of April 1956, and the compensation assessment rolls having been published in the Dacca Gazette on 15‑11‑58 vide No. 3251 L. R. dated the 11th of March 1958, the exemption provided in the notification dated the 9th May 1959, did not affect the position in any manner.

5. It is not necessary to go into the other assertions of fact and the assertions made on behalf of the petitioner in his affidavit in‑reply.

6. It has been contended on behalf of the petitioner that the general notification dated the 2nd of April 1956, is a fraud on the Statute as by this the whole scheme of the Act has been sought to be affected or reversed. According to Mr. Khondkar, the general scheme of the Act is that Records of rights as provided in Chap. IV should be prepared which should be followed by preparation of compensation assessment rolls and then only acquisition should take place. In this connection, reference has been made to section 44 of the Act and it has been argued that this section really provides for acquisition of all acquirable interests in the Province and section 3 is meant only to provide for exceptional cases. The learned Advocate thinks that the scheme of the Act is that the acquisition of all interests which can be acquired must take place at a time, but to meet emergent situations resort can be had to section

3. Reliance has been placed in this connection on the decision in the case of Macbeth v. Ashley (L R Scotch Divorce Appeals Cases Vol. 11 (1875) p. 352). In that case, the question that came up for consideration before the House of Lords was whether, when by a Statute the number of hours during which excise-able liquors could be sold was fixed, Magistrates who had the discretion to reduce the number of hours in respect of any particular locality taking into account its peculiar needs, could do so in respect of all hotels, inns and public houses in a particular burgh. The House of Lords decided that this could not be done as the effect of that would be to allow the Exception to swallow up the general rule. There can be no dispute that, in exercise of a power provided for by way of Exception, the general provision in a Statute cannot be done l away with or completely given a go‑by. We are, therefore, to consider whether section 3 is an Exception to section 44 of the Act. On a careful consideration of the language of these two sections, we find no ground to hold so. On the contrary, in our view, section 3 embodies a provision for acquisition of rent receiving interest and section 44 contemplates acquisitions of all acquirable interests including those of Rent Receivers which have been left out after acquisitions under section

3. There is nothing to indicate that the latter section is either a proviso or an,, Exception to section

44. The learned Advocate‑General thinks that the two sections contain parallel provisions and any one can be availed of for acquisition of rent‑receiving interests. We feel that there is force in this contention, and section 44 cannot bet read to embody a general rule to which section 3 is an Exception. We, therefore, find no reason to hold that the general notification dated the 2nd of April 1956, is a fraud on the Statute.

7. Mr. Khondkar has then argued that the disputed land has been exempted from acquisition by notification No. 7464 L. R. dated the 9th May 1959, which runs 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), it is hereby notified, for the information of all concerned, that the Governor is pleased to acquire, with immediate effect, all lands in the khas possession of all rent‑receivers situated anywhere in the Province of East Pakistan except in the district of Chittagong Hill Tracts other than the classes of lands 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, and other than lands that are held under any wakf, debuttor or other religious trusts." We do not think that this notification has any application to acquisitions which had already taken place by the general notification dated the 2nd of April 1955. The exemption relating to lands that are held under any wakf, refers to khas lands of rent receivers which were sought to be acquired by this notification and cannot be said to relate to such lands which had already vested in Government by virtue of the notification dated the 2nd of April 1956.

8. It has then been contended that the petitioner Mutwalli, on and from the date of the creation of the wakf in respect of the hat, became a tenant. The notification dated the 2nd of April 1956, did not affect the hat. The learned Advocate has relied in this connection on the decision in the case of Mohar Ali and another v. The Province of East Pakistan and another (P L D 1958 Dacca 17), to which one of us is a party. The facts of that case are clearly disting uishable. The petitioners there asserted that they were merely tenants in respect of the bazar which was sought to be acquired by a general notification and had no rent‑receiving interest any where in the province. This assertion was challenged on behalf of Government but could not be substantiated and in that view it was held that the notification in question which related to rent receivers could not affect the interests of the tenants. 1n the present case, the petitioner has set up a tenancy right in the dis puted hat by virtue of recognition of this right by Government in the Settlement Proceedings, but, in the absence of any assertion B that the petitioner is not a rent‑receiver anywhere in the Province, it cannot be said that the hat in question has not vested in Government by the notification dated the 2nd of April 1956.

9. Regard being had to the above facts, it is not necessary for us to enter into the question as to the status of the petitioner after the creation of the wakf. The petitioner in his personal capacity was not only a tenant but also a rent‑receiver in respect of the hat, as is evident from khatian No. 118 produced before us by Mr. Khondkar. The Wakf Deed is not before us; and in that view of the matter also, we think it unnecessary to decide the right that attached to the land since the creation of the wakf. We may add that Mr. Khondkar's argument regarding status has been advanced on grounds different from what were taken in the petition. In the petition, the claim to tenancy right was solely based on recognition by Government in the Settlement Pro ceedings.

10. The last question that falls for determination is whether, for the failure to mention the disputed land in the notification in question, nothing has vested in Government. Mr. Khondkar contends that subsection (4)(a) of section 3 provides that an interest sought to be acquired must be specified in the notification. He concedes that the specification mentioned in subsection 3 (1) (i) is specification of rent‑receivers but according to him subsection (4) contemplates specification of the properties which are intended to be acquired. On a reading of the whole of subsection (4), we see no reason to accept this contention. The specifications mentioned in subsections (1) and (4) refer to rent‑receivers and not to their interests. Sub section (2) (a) of section 3 of the Act provides that in a notifi cation issued under this section, rent‑receivers may be specified or described by name, or by reference to areas wherein they have interests, or in such others manner as the Provincial Government may determine. The notification dated the 2nd of April 1956, was issued with reference to area. For the failure to mention the interest of the rent‑receivers falling in that area, no illegality has been committed. A similar argument was advanced in the case of Nawab Sir K. G. M. Faroqui v. The Province of East Bengal and another ((1957) 9 D L R 174). The argument, though not accepted, was based on the rule framed on the basis of the old section 3 before the introduction of subsection (2) (a). The old rule however has since been changed and under the present rule and the forms prescribed therein there is no necessity of mentioning the interests sought to be acquired. We, therefore, find no substance in any of the contentions of Mr. Khondkar. The Rule, therefore, is discharged with costs which we assess at five Gold Mohurs. SIKANDAR ALI, J.‑

‑I agree. A. H. Rule discharged.