P L D 1960 (W (PLP)

(5) An occupancy tenant acquiring land in accordance with the provisions of subsection (2) shall acquire it free from all encumbrance created in respect of that land by the landlord and if any encumbrance be created by the tenant, the share of the land received by the landlord shall be free from it and notwithstanding any provision of any law for the time being in force to the contrary each such encumbrance shall become the exclusive liability of the landlord or the occupancy tenant, as the case may be. (6) Where compensation is to be paid by a tenant in cash under clause (c) of subsection (2) Government may, with a view to enabling an' occupancy tenant to acquire land in accordance with the provisions of this section, advance a loan which shall be recoverable as arrears of land revenue with interest at such rates and in such instalments as the Government may fix generally or in particular cases. (7) Government shall frame rules to give effect to the provisions of this section, and while framing rules it my classify lands into different categories and prescribe different principles for assessment of compensation."

2. The amendment which affected the landlords was challenged by suits 'instituted in different districts of the then Province of the Punjab. Applications were made to this Court for transfer of those suits to this Court to be heard in the exercise of its extraordinary original civil jurisdiction and those applications having been granted the suits were registered here as Civil Originals Nos. 12 of 1957 and 6 to 15 of 1958 and their trial was entrusted to me by the Chief Justice. As the questions raised by the counsel who appeared for the parties to them are identical, all the above suits will be disposed of by this order.

3. At the time when the impugned Act was passed, the Constitutional enactment in force in Pakistan was the Government of India Act, 1935, as adapted for Pakistan. The main con tention raised by the learned counsel for the plaintiffs was that section 5 of the impugned Act contravened the provisions of section 299 of the Government of India Act and for that reason being ultra vires of the Provincial Legislature that had passed it, could not affect the rights of the landlords or confer any rights on the occupancy tenants. Section 299 of the Government of India Act as it stood when the impugned Act was passed read as follows:‑-- "

299. Compulsory acquisition of land, etc. (1).‑No person shall be deprived of his property save by authority of law. (2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning any commercial or industrial undertaking, unless the law provides forgiving compensation for the property acquired and either fixed the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined and given. (3) No Bill or amendment making provision for the trans ference to public ownership of any land or for the extinguishments or modification of rights therein, including rights or privileges in respect of land revenue, shall be introduced or moved in the Federal Legislature without the previous sanction of the. Governor‑General, or a Provincial Legislature without the previous sanction of the Governor. (4) Nothing in this section shall affect the provisions of any law in force at the date‑ of the passing of this Act. (4‑A) Nothing in subsection (2) shall be construed to invalidate‑ (a) any provision in any law of the kind referred to in that subsection, which purports to fix the amount of com pensation or to specify the principles on, which, and the manner in which compensation is to be determined and given, on the ground that it contravenes the provisions of that subsection or that the compensation provided for is inadequate Provided that such law has received the assent of the Governor‑General, or, in the case of a Provincial law, has been reserved for the purpose of obtaining such assent, within a period of three years next after the establishment of the Federation ; or (b) any law having reference either to the administration or acquisition of any property which is, or is deemed to be, evacuee property under any law for the time being in force or to the remedying of the dislocation in the social and economic life of Pakistan caused by the mass movement of population from and into Pakistan. (5) In this section `land' includes immovable property of every kind and any rights in or over such property and `undertaking' includes part of an undertaking." The above‑reproduced subsection (4‑A) was inserted by the second section of the Government of India (Second Amendment) Act, 1951 which had been passed by the then Constituent Assembly of Pakistan. That Act like all those which had been passed by the Constituent Assembly acting as the constitution‑making body under the provision of the Indian Independence Act, 1947 (10 and 11 Geo. 6, Chapter 30) but had not received the assent of the Governor‑General, all of which had been taken to be good law from the date that Pakistan came into being by everyone including very eminent Judges and jurists, lost their binding character because of the decision of the Federal Court of Pakistan in the beginning of 1955 in the well‑known case of Maulvi Tamiz‑ud‑Din who, as the Speaker of the Constituent Assembly of Pakistan which had been dissolved by Mr. Ghulam Muhammad, the then Governor‑General, had put in a petition for issue of a writ under section 223‑A of the Government of India Act, 1935. The result of the decision of the Federal Court in Federation of Pakistan etc. v. Maulvi Tamiz‑ud‑ Din Khan (P L R 1956 Lah. 306=P L D 1955 F C 240) was that the writ issued by the then Sind Chief Court in favour of Maulvi Tamiz‑ud‑Din became ineffective because section 223‑A of the Government of India Act by virtue of which the writ had been issued was inserted by one of those constitutional legislative measures which though passed by the Constituent. Assembly had not received the assent of the Governor‑General. After the decision of the Federal Court in Maulvi Tamiz‑ud‑Din's case the then Governor‑General gave assent to a majority of the legislative measures passed by the Constituent Assembly since August 1947 but the one which had brought section 223‑A of the Government of India Act, 1935, into being was not one of them. This grant of assent, which in the case of certain measures 'was given years after they had been passed by the Constituent Assembly of Pakistan and had been acted upon as binding law, did not, however, take the legal system of Pakistan out of the abyss into which it had fallen as a result of the decision of the Federal Court of Pakistan in Maulvi Tamiz‑ud‑Din's case and it remained in a chaotic state till the passing of the Validation of Laws Act, 1956, wherein it was provided that certain laws passed by the Constituent Assembly shall be deemed to have received the assent of the Governor General on dates on which they were passed by the Constituent Assembly and the Government of India (Second Amendment) Act, 1951, was one of those Acts. About a year later section 3 of the Validation of Laws Act, 1956, which was passed by the Constituent Assembly of Pakistan amended clause (a) of sub section (4‑A) of section 299 of the Government of India Act and substituting another clause (a) for the above‑reproduced clause (a) directed that a new clause shall be deemed always to have been substituted. The new clause (a) reads as follows :‑ "(a) any provision in any law of the kind referred to in that subsection which purports to fix the amount of compensation or to specify the principles on which and the manner in which compensation is to be determined and given on the ground that it contravences the provisions of that subsection or that com pensation is not provided for or is inadequate: Provided that such law has been made or passed within a period of five years next after the establishment of the Federation."

4. Before dealing with the main contention raised on behalf of the plaintiffs, namely, that the impugned Act contravened the provisions of section 299 of the Government of India Act, 1935, which was in force at the time when the impugned Act was passed, I will dispose of some other contentions which were raised by some of the learned counsel appearing for the plaintiffs. One such contention which was founded on subsection (3) of section 299 of the Government of India Act, 1935, was to the effect that as, the Bill which subsequently became the impugned Act had been introduced as a legislative measure in the then Punjab Legislative Assembly without the previous sanction of the Governor of that Province, it could not have been brought on the statute book. I have not tried to ascertain whether or not the sanction of the Governor was taken before moving the Bill in the Legislature because I am of the view that the defect, if it existed, would not be material on account of the fact that after the Bill was passed by the Legislative Assembly it had, as mentioned by me in the first paragraph of this judgment, received the assent of the Governor of the Province on the 29th of January 1952. The Government of India Act, 1935, as adapted for Pakistan by subsection (2) of its 109th section made it clear that if the formality of the previous sanction of the Governor or Governor‑General with regard to certain legislative measures had not been complied with, the defect would be deemed to have been cured if the Governor or Governor‑General in cases in which the previous sanction required was that of the Governor, and the Governor‑General in cases in which the previous sanction required was that of the Governor‑General, had after the Legislature had passed the Bill given assent thereto. Consequently, the contention raised has no substance.

5. Another contention that was raised on behalf of the plaintiffs was that the matter with regard to which the impugned Act had made provision was not within the legislative Province of the Provincial Assembly and, therefore, the impugned Act had no valid existence. By its Seventh Schedule the Government of India Act, 1935, divided the legislative powers of the Legislatures in Pakistan into three parts. One part comprised of matters about which the Federal Legislature but not the Provincial Legislature could make laws. This was shown as List I‑Federal Legislative List in the Seventh Schedule. The second part comprised of matters about which the Provincial Legislature but not the Federal Legislature, except 'in certain circumstances, could make laws. This was shown as List II‑Provincial Legislative List in the Seventh Schedule. The third part comprised of matters about which both the Federal Legislature and the Provincial Legislatures could make laws. This was shown as List 3‑Concurrent Legisla tive List in the Seventh Schedule. The Government of India Act, 1935, contained‑as it was bound to do‑Provisions which would determine in what circumstances a law passed by a Provincial Legislature about a matter which was contained in the concurrent Legislative List would be valid. Section 104 of the Government of India Act, 1935, provided that with regard to matters not enumerated in any of Lists in the Seventh Schedule the Governor‑General could by 'public notification empower the Federal Legislature or the Provincial Legislature to make laws. It follows, therefore, that the impugned Act will be a valid piece of Legislation only if it was with regard to a matter concerning which the Provincial Legislature could make laws, that is, that it was a matter which fell in the Provincial Legislative List or the Concurrent Legislative List (provided the matter was not already covered by a law made by the Federal Legislature if the matter fell in the Concurrent Legislative List) or was one with regard to which the Provincial Legislature had been given the powers to make laws by a public notification mentioned in section 104 of the Government of India Act. The contention of some of the counsel who appeared for the plaintiffs was that the matter legislated upon in section 114 of the Punjab Tenancy Act which was inserted in the impugned Act did not fall in the Provincial List, or the Concurrent List. To this contention the reply was that entry 21 in List 11‑Provincial Legislative List of the Seventh Schedule related to the matter in question. This entry reads, as under:‑-- "Land, that is to say, rights in or over land, tenures, including the relation of landlord and tenant, and the collection of rents transfer, alienation and devolution of agricultural land ; land improvement and agricultural loans ; colonization ; Courts of Wards ; encumbered and attached estates ; treasure trove." The counsel for the landlords who had raised the point urged that the impugned Act did not fall within entry 21 because it aimed at the termination of the relationship of landlords and tenants with regard to land in which the tenants had rights of occupancy and thus could not be deemed to be with regard to relations between landlords and tenants. This contention cannot be accepted because if a legislature has power to make laws about relations between landlord and tenant it can make laws which result in the termination of those relations. But even if there were force in the contention raised, the case of the landlords could not benefit because entry 21 relates to laws with regard to land, that is to say, rights in or over land, and the impugned Act did nothing more than provide for rights in or over land. I hold, therefore, that the impugned Act was with regard to a matter about which the Provincial Legislature could pass laws.

6. I will now take up the main contention raised on behalf of the landlords, namely, that the impugned Act contravened section 299 of the Government of India Act, 1935, and was, therefore, void and inoperative. The argument on behalf of the landlords was that the impugned Act had resulted in the compulsory acquisition of the land of landlords and its transfer to the occupancy tenants and because in cases covered by clauses (a) and (b) of subsection (2) of section 5 of the impugned Act no compensation was to be paid to the landlords for the land which they would lose, the whole of section 114 of the Punjab Tenancy Act or, at any rates, its clauses (a) and (b) were ultra vies of the Provincial Legislature that had passed the law. It was also said that when a person was deprived of his property the provisions of subsection (2) of section 299 of the Government of India Act, 1935, were attached. The reply on behalf of the defendants was that though the landlords were deprived of land as a result of the impugned Act, its compulsory acquisition in the terms of subsection (2) of section 299 of the Government of India Act, 1935, did not take place, and that even if there was acquisition of the land, as contemplated by section 299, it was valid in spite of failure to provide for compensation to some cases as the impugned Act was passed within five years of the establish ment of the Federation of Pakistan.

7. I will first of all take up the contentions concerning the scope of subsections (1) and (2) of section 299 of Government of India Act, that is, the question whether the deprivation of property mentioned in subsection (1) was the same thing a the compul sory acquisition of property which was dealt with by subsection (2) of that section. The learned counsel for the plaintiffs cited State of West Bengal v. Sabosh Gopal Bose and others (A I R 1954 S C 92). Dwarkadas Shrinivas v. The Sholapur and Weaving Company Ltd. and others (A I R 1954 S C 119) and Sagir Ahmad etc. v. State of U. F. to support the contention that subsections (1) and (2) of section 299 of Government of India Act, 1935, were meant to deal with precisely the same subject. To my mind these decisions are irrelevant in the present case because they concerned themselves with the interpretation of Article 31 of the Constitution of India which provision of law, though dealing with a subject not very dissimilar to that dealt with in section 299 of the Government of India Act, was differently worded. If the British Parliament which passed the Government of India Act, 1935, had intended that subsection (1) and subsection (2) of section 299 of the Government of India Act should apply to precisely the same subject, it is inconceivable that they would have used different expressions to describe the same thing in the two subsections. It cannot be lost sight of that section 299 of the Government of India Act, 1935, was drafted by, discussed by and passed by persons who were talking and writing and in a language which was their mother tongue and it can safely be preserved that if they had intended that precisely the same subject should be provided for in the first two subsections of section 299 of the Government of India Act, 1935, they would not describe it as acquisition in subsection (2) when in subsection (1) they had called it deprivation. No definition of the word `acquisition' or `deprivation' has been given in the Government of India Act, 1935, or the Interpre tation Act, 1899, and as there is nothing to indicate that they have some other meaning they are to be held to have their I ordinary dictionary meaning. It need hardly be mentioned that "deprive" and "acquire" have different meanings. I may deprive a person of his property and yet not acquire it. But if I acquire some property, I am certainly depriving the person who had it of that property. For example, if a person is directed to destroy his property because it is considered to be dangerous and he does so, he will certainly be deprived of his property but nobody can say that the property has been acquired either by the person who directed the destruction or by any one else. Subsection (1) of section 299 of the Government of India Act means that no one can be deprived of his property unless the law allows the deprivation and if the deprivation results in acquisition then even subsection (1) will have application unless it is a case of acquisition not by reason of any other law but of the law which concerns itself with compulsory acquisition. If a person is deprived of his property in execution of a decree, he is deprived of it under the authority of law and the decree‑holder acquires it under the law, and the same will be the position if Government gets property of a person on his conviction for an offence for which the punishment prescribed is confiscation of the whole or part of the property of the offender. If, however, he is deprived of his property because a law allows someone else to compulsorily acquire it of which law the Land Acquisition Act, 1894, is an apt example‑that is a case of compulsory acquisition of property. It is with regard to acquisitions which do not result by reason of the application of any other law but of the one that concerns itself with acquisitions only that provision has been made in sub section (2) of the Government of India Act, 1935. I will put it in another way. Every compulsory acquisition of property is acquisition of that property and deprivation of someone else of that property. Every acquisition of property is deprivation of someone else of that property but not necessarily compulsory acquisition. To cases of deprivation and acquisition subsection (1)' of section 299 of the Government of India Act applied while subsection (2) of that section applied to compulsory acquisition. If, therefore, the impugned Act was aimed at depriving the E landlords of their property but did not result in that property being compulsorily acquired, the case will fall tinder subsection and not subsection (2) of section 299 of the Government of India Act, 1935.

8. One of the questions to consider with regard to sub section (2) of section 299 of the Government of India Act is whether it was intended to apply only to cases of compulsory acquisition by Government or to all cases of compulsory acquisition irrespective of whether the acquisition was by Government or by anyone else. One way of deciding this question is that from the fact that at the time when the Government of India Act, 1935, was passed the expression compulsory acquisition was used in the Sub‑Continent to which that Act was to apply to denote compulsory acquisitions by Government, presumption should be raised that the term compulsory acquisition occurring in subsection (2) of section 299 meant compulsory acquisition by Government alone. I would have acted on this method of interpretation had it not been for something that transpired during the time when the Government of India Act was on the anvil. I refer to what the then Attorney‑General of England said with regard to clause (2) of section 299 of the Government of India Act, 1935 in the British House of Commons. It is clear from Parliamentary Debates, Indian Affairs, Commons, 1934‑35, Volume II, Column 3154 that the Attorney‑General commented on clause (2) in the following terms:‑-- "I should have been very glad if the words "for public purposes" could have been left out and my first impression was that they could safely be omitted, but then we are brought face to face with this difficulty. Suppose under a writ of execution to enforce a judgment in an action between A and B, they came along and took a man's property to satisfy the judgment. That could not be taking "for public purposes" but if we left out the words "for public purposes" the clause as drawn would make it illegal to take a man's property in satisfaction of a judgment unless he were compensated for it and that is nonsense. That is the sole reason why the words "for public purposes" are in. There was no intention in any way of limiting the operation of the Clause. It' might in theory have a little limiting effect, but in practice I do not think one could contemplate any legislation of the character my hon. Friend envisaged, namely, taking a person's or a company's property for the purpose of handing it over to some other person. In theory it is possible, but in practice I should not think any Legislature would do it." The above remarks made by as eminent an authority as the Attorney‑General of England would show that the words "Com pulsory acquisition" used in subsection (2) of section 299 of the F Government of India Act, 1935 could be applied even to cases where property is acquired by someone other than the Government. Moreover, it is inconceivable that though the British Parliament would not permit the Legislatures they had created to pass laws allowing compulsory acquisition by Government of property of the kind mentioned in subsection (2) of section 299 of 'the Government of India Act without payment of compensation it would permit them to make laws allowing compulsory acquisitions of that property by persons other than Government without payment of compensation. I would, therefore, hold that sub section (2) of section 299 of the Government of India Act, 1935, applied to all cases of compulsory acquisition be the acquisition by G Government or by someone else provided the acquisition fell within the four corners of that subsection.

9. Having held that the term "compulsory acquisition" used in section 299 of the Government of India Act, 1935, denoted such acquisitions by Government as well as by private persons, I proceed to consider whether what the impugned Act aimed at was merely the deprivation of the landlords of their property or compulsory acquisition of that property for someone else as well. In paragraph 7 of this Order I have indicated the difference between deprivation of a person of his property and acquisition of that property by someone else as well as between acquisition and compulsory acquisition and will now examine the results of the impugned Act. It is clear from the impugned Act that what the landlord lost went to the occupancy tenants and so I find no h difficulty in holding that the impugned Act related to acquisition of property and not merely to deprivation of the landlords of their property. This acquisition was allowed by no other law but , the impugned Act which was consequently a law dealing with compulsory acquisition. It is, therefore, clear, that the contention of the learned counsel for the defendants to the effect that because the impugned Act did not aim at compulsory acquisition of property it fell within subsection (1) but not within subsection (2) of section 299 of the Government of India Act, 1935, cannot be accepted.

10. This brings me to the question whether or not the impugned Act was void and inoperative by reason of the fact that, at least with regard to certain occupancy tenancies the acquisition was to be made by the occupancy tenants without any compensa tion 'being paid to the landlord though subsection (2). of section 299 of the Government of India Act enjoined that every law passed by the Federal Legislature or the Provincial. Legislature which authorised the compulsory acquisition for public purposes of any property of the kind mentioned in the subsection must contain provision for giving compensation for the property acquired and either fix the amount of the compensation or specify the principles on which and the manner in which it was to be determined or given. That the property acquired by tenants was land can hardly be doubted nor can it be doubted that the acquisition was compulsory, and if the other conditions mentioned J in subsection (2) of section 299 of the Government of India Act, 1935, were satisfied there will be no escape from the position that the Legislature had to provide for payment of compensation to the landlords when acquisition of the property of the landlords by tenants was being provided for. Now, it will be noticed that subsection (2) of section 299 of the Government of India Act, 1935, comes into play only if the property was to be compulsorily acquired for a public purpose. Ordinarily property can be acquired for public purposes only by Government or by Corporations entrusted with local self‑Government like Municipal K Committees, Notified Area Committees, District Boards etc., but there is nothing in law to prevent the power of acquisition for a public purpose being conferred on a private person. It was contended by the learned counsel for the landlords that because the object of the legislature which passed the impugned Act was the betterment of the financial position of the occupancy tenants, the acquisition by the tenants was for a public purpose and, therefore, subsection (2) of section 299 of the Government of India Act, 1935, came into operation. It can hardly be denied that the result of the impugned Act would be to improve the financial position of some of the tenants, but as only those persons who were to get the land would benefit the acquisitions which the impugned Act brought about cannot be held to be for public purposes.

11. But even if it were to be held that the impugned Act had resulted in the occupancy tenants compulsorily acquiring land for a public purpose the stand taken on behalf of the landlords would not have been accepted. I have indicated in paragraph (3) what the state of the relevant law was at the relevant time. Subsection (4‑A) of section 299 of the Government of India Act as amended with retrospective operation by the Validation of Laws Act, 1956, was aimed at curing defects in laws relating to compulsory acquisition if these laws while satisfying the other requirements of subsection (2) of section 299 of the Government of India Act, 1935, enacted that no compensation was payable for particular kinds of acquired property. This is precisely the case here because while compensation was made payable for acquisition of ownership of land in which the landlords had a substantial present interest, it was not payable in regard to M those lauds in possession of occupancy tenants in which the landlords' interest was but nominal. It is true that clause (a) of subsection (4‑A) of section 299 of the Government of India Act, as it stood on the date on which the impugned Act was passed, would not have saved the impugned Act if it was not in accordance with, the provisions of subsection (2) of section 299 of the Government of India Act, 1935, because the clause, as it then stood, was applicable to laws relating to compulsory acquisitions which were passed within three years of the establishment of the Federation of Pakistan and the impugned Act was passed long after those three years had expired, but section 3 of the Validation of Laws Act, 1956, to which reference has been made in paragraph (3), cured certain defects in laws relating to compulsory .acquisitions which were passed within five years after the establishment of the Federation of Pakistan and directed that the law shall be deemed to have been the same all along. The Validation of Laws Act, 1956, was passed by the Constituent Assembly and, therefore, no question of the measure being beyond the legislative power of the law‑maker arises. Moreover, it was provided in that Act itself that its validity shall not be called in question. The impugned Act became a law about four years and six months after the establishment of the Federation of Pakistan and, therefore, though it said that no compensation will be payable for acquisition of lands in which tenants had occupancy rights of specified kind, neither the Act nor any part of it could be held to be invalid on the ground that it offended against subsection (2) of section 299 of the Government of India Act, 1935.

12. In view of what I have said above, I hold that the Punjab Tenancy (Amendment) Act (VII of 1952) was a valid piece of legislation. The result is that I dismiss all these suits to which this judgment applies. In view of the circumstances of the case, however, I leave the parties to bear their own costs. K.M.A. Suits dismissed.