P L D 1967 Dacca 728 (PLP)

(ii) in due course of business of the transferor, He will refuse permission in cases under clause (i) and may grant permission in cases falling under clause (ii)." Thereafter by Ordinance VI of 1964 the aforesaid Ordinance No. I was amended inter alia by substituting in subsection (1) "the specified authority" for "the Deputy Commissioner of the district concerned" for the purpose of according the requisite prior permis sion and for subsection (2) the following was substituted:‑ "(2) An application for such permission shall be submitted to the Deputy Commissioner in such form as may be pres cribed. On receipt of the application for permission under subsection (1), the Deputy Commissioner shall cause an inquiry to be made to ascertain whether the proposed transfer (i) has been a4reed upon due to coercion, threat, intimidation, undue influence, misrepresentation, inadequate consideration or fraud; or (ii) is a bona fide transaction. By another amendment an explanation was added to section 4 to the effect that in this section, the word "transfer" shall include sale, exchange, gift, will, mortgage, lease, sub‑lease and change of Management through a power‑of‑attorney. It may be noted here that by a specific provision, as em bodied in subsection (2) of section 1, this Ordinance, i.e., Ordinance No. VI of 1964, was given retrospective effect from the date on which Ordinance No. I of 1.964 came into force, i e. the 12th February 1964. Lastly, came the amending Ordinance No. X of 1964 which was promulgated on, and came into force with effect from, the 17th February 1965. Apart from other amendments made under this Ordinance in certain provisions of the earlier Ordinance, a new provision was added as subsection (3) to section

6. This new provision reads:‑ "(3) No immovable property belonging to a member of a minority community shall be sold in execution of any decree of a Civil Court or of any certificate signed under the Bengal Public Demands Recovery Act, 1913, except with the prior permission of the Board of Revenue." On the back‑ground of the successive enactments referred to above the question mooted in this case is whether a Court sale could be said to come within the mischief of the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964, prior to its amendment by Ordinance X of 1964, promulgated on the 17th .February 1965. There is no controversy, as there can be none, that Court sales of offending properties were expressly banned by Ordinance No. X of 1964 with effect from the 17th February 1965, and this Ordinance, it is important to note, was not made retros pective, as was done in the case of the earlier amending Ordinance, to wit, Ordinance No. VI of 1964. The controversy, therefore, boils down to the question whether the word "transfer" used in the earlier two Ordinances included a Court sale as well. In the present case, however, that controversy does not appear to be quite relevant, As is apparent from the provisions already cited above, what was banned under Ordinances Nos. I and VI of 1964 is the sale, besides the other modes of transfer, of immovable property belonging to a ‑ member of a minority community. Assuming that the word "Transfer" was used to include a Court sale as well, the prohibition applied to the holding of the sale and not to the confirmation of the sale after it had been held. In this case the impugned sale took place prior to the introduction of Ordinance No. I of 1964 and all that was done thereafter was only to confirm the same which was done on 31‑8‑

64. In my opinion, therefore, even assuming that the word `transfer' occurring in section 4, subsection (1) included a Court sale also, the impugned sale held prior to the 17th February 1964 cannot be said to be hit by Ordinance No. I of 1964 as amended by Ordinance No. VI of 1964 even though that was confirmed after that date. It follows that the learned Munsif was perfectly right and justified in holding, as he did, that as the sale was held on 10‑1‑64 and confirmed on 31‑8‑64 the "Ordinance was not a bar". Having regard to the view thus taken by me it is not necessary to go into the question whether the word "Transfer" used in section 4, subsection (1) is restricted to voluntary transfers, i.e. transfers by acts of parties or includes involuntary transfers, i.e. transfers by operation of law as well. Nevertheless, I would like to observe that although 1 was, at first, strongly inclined to the view that the said term was used in its wide sense and included involuntary transfers, i.e. transfers by operation of law also, on a close scrutiny of the different provisions of the relevant Ordinances, i.e. Ordinances Nos. I and VI of 1964 and having regard to the scheme envisaged therein, I am now definitely of opinion that the word "transfer" in section 4 subsection (l), though used without any restrictive qualification, refers to voluntary transfers, i e. transfers by acts of parties, only. On a perusal of the relevant provisions of the Ordinances there appears to me to be little room for doubt that application for prior permission has to be made by the person owning the property involved and proposing to transfer the same. That is not feasible in the event of a Court sale, to which the owner is hardly ever a consenting party. It can not conceivably be done even if it were to be assumed that the transferee, too, may apply for the said permission, for the simple reason that there is no provision for an application for permission by the Court holding the sale, and the person, at whose instance the sale is proposed to be held, i e., the decree‑holder, may or may not be the purchaser in the long run and the permission has to be obtained prior and not subsequent to the sale. Again on receipt of an application for permission the Deputy Commissioner under Ordinance No. 1 of 1964 was required to ascertain whether the proposed sale has been brought about due to coercion, threat, intimidation, undue influence, misrepresentation and fraud of the transfer. By Ordinance No. 6 of 1964 the scope of this inquiry was further widened and the Deputy Commissioner is required to ascertain besides what has already been stated above whether the proposed transfer has been agreed upon for inadequate consideration or is a bona fide transaction. In my opinion no question of coercion etc. referred to in subsection (2) of section 4 can arise at all in connection with a Court sale. In this connection I would like to underline in particular the expressions "agreed upon" and "adequate consideration". These expressions, to my mind, point unmistakably to transfers inter parties inasmuch as a Court sale is hardly ever "agreed upon" in that it is held not with the consent but inspite of the person owning the property. Similarly, an inquiry as to adequacy or otherwise of the price appears to be wholly out of question in the case of a sale proposed to be held by the Court in execution of a decree. For the reasons stated above, I am of opinion that the word "transfer", though in its ordinary connotation it imports transfers by acts of parties as well as transfers by operation of law, has been used in section 4. subsection (1) to refer to the former, i.e. transfers, by acts of parties, only. The Rule is accordingly discharged, but having regard to the circumstances I make no order as to costs. K. B. A. Rule discharged.