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Petitioner: MOHAMMAD HAKIM MEAH VS Respondent: MAFIZULLAH DHUPI
P L D 1960 Dacca 114
P L D 1960 Dacca 114
Before Amin Ahmed, C. J. and Chakraborti, J
MOHAMMAD HAKIM MEAH‑Appellant
versus
MAFIZULLAH DHUPI and others‑Respondents
Letters Patent Appeal No. 7 of 1958, decided on 7th April, 1959.
(a) Bengal Alienation of Agricultural Land (Temporary Pro visions) Act (V of 1944), Ss. 4 (1), 9 & 5‑Before passing of any order under subsection (1) of S. 4 strict compliance with procedure laid down in S. 9 necessary‑Non‑service of notice makes order of restoration under S. 4 without jurisdiction‑No vesting of right under S. S in such a case.
The words " before " and "shall " occurring in section 9 of the Bengal Alienation of Agricultural Land (Tempo rary Provisions) Act, 1944 indicate that before the Collector is competent to pass any order under subsection (1) of section 4 of the Act some essentials have to be complied with. The Act provides that before the order of restoration is passed certain preliminaries' (such as service of notice on the landlord under section 9 of the Act) have got to be followed and, in the absence of those preliminaries, the order of restora tion would be without jurisdiction and the question of vesting of right in the raiyat or under raiyat under section 5 of the Act could not arise at all.
(b) Interpretation of statutes‑Enactments regulating procedure in Courts‑Strict compliance imperative.
Enactments regulating the procedure in Courts are usually imperative and not merely directory. If, for instance, a right of appeal is given with provisions requiring the fulfilment of certain conditions, such as giving notice of appeal and entering into recognizances, or" transmitting documents within a certain time, strict compliance with these provisions would be imperative and non‑compliance would be fatal to the appeal.
Maxwell's Interpretation of Statutes, 9th Ed. p. 377, Craies on Statute Law, 5th Ed. p. 212 and The Delhi and London Bank Limited v. Orchard I L R 3 Cal. 47. ref.
Syed Amjad Hossain for Appellant.
Naimuddin Ahmed for Respondents.
JUDGMENT
CHAKRABORTI, J.‑Defendant No. 1 is the appellant and the appeal arises out of a suit for declaration of plaintiff's title to the extent of 14‑annas share in the suit land and for khas possession in the same jointly with defendant No. 2 who is said to own the remaining 2‑annas share.
2. The plaintiff's case is that he and defendant No. 2, his mother, were the owners of the disputed land to the extent of 14‑annas and 2‑annas respectively. Plaintiff transferred his 14‑annas share of the lands to one Abdul Hye and others who again sold the same to one Jainul Abedin who then parted with a portion of the disputed holding in favour of one Muhammad Miah. After that, the plaintiff filed Case No. 7270/ 1945‑46 before the Collector of Noakhali for reliefs under the provisions of Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944, for restoration of possession of the land. That application was allowed by the Collector by his order, dated 17‑7‑46, and the plaintiff eventually got possession of the land on the 18th of December 1947. In the meantime, defend ant No. 1, who is a co‑sharer landlord of the lands, filed a suit for his share of the arrears of‑ rent for the years 1350 to 1353 B. S. against Jainul Abedin and also wanted ejectment of the said tenant under section 48 (c) of the Bengal Tenancy Act that suit was decreed on the 16th of September 1947, and defendant No. 1 got delivery of possession through Court by ejecting Jainul Abedin from the disputed land on the 15th of December 1947, and since then he claims to possess the disputed land. Thereupon the plaintiff and defendant No. 2 filed an application under Order XXI, rule 100 of the Code of Civil Procedure for restoration of possession. That appli cation was, however, rejected on 24‑8‑48. The plaintiff thereafter filed the present suit on 26‑1‑50. The plaintiff's further case was that the suit for rent and ejectment which was filed on the 16th of April, 1947, was started long after the order of restoration in favour of the plaintiff and he was not a party to that suit ; so his title was not affected by the ejectment decree obtained by defendant No. 1.
3. Defendant No. 1 contested the suit. He contended that he had no notice of the order of restoration of the land and that the suit was bad under the provisions of section 9 of the Bengal Alienation of Agricultural Land (Temporary Pro visions) Act, 1944, and the suit was also hit by the provisions of Article 11 (A) of the Limitation Act, and further the plaintiff had no right, title and interest in the land.
4. The learned Munsif dismissed the plaintiff's suit on the finding that the plaintiff had no right, title and interest in the suit land and that the suit was also barred by limitation and further the suit was also bad, as no notice of the order of restoration was served on the landlord as contemplated under section 9 of Act V of 1944. There was an appeal by the plaintiff and the learned Additional District Judge by his judg ment, dated 19‑3‑54, affirmed the judgment of the learned Munsif and dismissed the appeal. The plaintiff thereafter preferred a Second Appeal before this Court.
5. In the Second Appeal it was urged on behalf of the appellant that the suit was not hit by Article 11 (A) of the Limitation Act inasmuch as the application under Order XXI, rule 100 of the Civil Procedure Code was dismissed without any investigation. Secondly, it was also urged that section 9 of Act V of 1944 did not stand in the way of the plaintiff getting a decree in the suit inasmuch as his right to the land accrued under section 5 of the Act when the Collector made the order of restoration in his favour.
6. Defendant No. 1 respondent, however, urged before the Court that the order as passed under Order XXI, rule 100, Civil Procedure Code, was really passed upon investigation and, as such, the suit was barred under Article 11 (A)' of the Limitation Act. It was also contended that the plaintiff's right had not accrued because no notice of restoration was served on the respondent as required by section 9 of Act V of 1944. His Lordship Asir, J., who heard the Second Appeal, upheld the contentions of the appellant and allowed the appeal, set aside the judgments and decrees of the Courts below and the plaintiff's suit was decreed as prayed for. Defendant No. 1, therefore, with leave of the Court, filed this Letters Patent Appeal.
7. Initially two points were taken before us by the learned Advocate appearing for the appellant. Firstly, that the plaintiff's suit was barred by limitation as being bit by Article 11 (A) of the Limitation Act. Secondly, on the ground that section 9 of Act V of 1944 imposed a condition precedent to the making of an order under subsection (1) of section 4 of Act V of 1944 and sine qua non of the assumption of jurisdiction empower ing him to pass the order of restoration and, this not having been done, the plaintiff acquired no right under the order of the Collector and the suit itself was not maintainable. The learned Advocate for the appellant, however, did not press his objection regarding the question of limitation and he only urged ground No. 5 of the Memorandum of Appeal in the Letters Patent Appeal before us.
8. Mr. Naimuddin Ahmad, the learned Advocate appearing for the respondents, however, has drawn our attention to sec tion 5, subsection (2) of Act V of 1944 which reads:
" From the date on which an order under subsection (1) of section 4 takes effect under subsection (1) of this section, the right, title and interest in the agricultural land accruing to the transferee as a result of the transfer referred to in subsection (1) of section 4 shall, subject to the provisions of subsection (4) of that section, be deemed to have vested in the proprietor, tenure‑holder, raiyat or under‑raiyat, as the case may be, free from all incumbrances, if any, which have been created after the date of such transfer ".
The learned Advocate contends that non‑service of notice was utmost an irregularity which could not vitiate the plaintiff's title which has already accrued on the order of the Collector. He has further contended before us that by the order of the Collector, dated 15‑10‑47, it is provided that the transferee would be paid certain sums of money and the transferor applicant would be restored to possession with effect from 1‑1‑1354 B. S. and the Collector, although he mentioned that no process fee was filed, directed issue of notice upon the transferee‑defendant No. 1 in Form B under section 9 of Act V of 1944. The learned Advocate's contention is that this raises a presumption that notices were duly served on the appellant before this Court.
9. The Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944, was passed on the 4th of January 1945, to provide for the restoration to proprietors, tenure‑holders, raiyats and under‑raiyats of certain agricultural lands alienated by them during the year 1943 as a result of the prevailing economic distress. Section 4 of Act V of 1944 provides the procedure for effecting restoration of lands alienated by the proprietors, tenure‑holders, raiyats or under‑raiyats. The section reads as follows
" If, on or after the 1st January 1943, and before the 1st January 1944, a proprietor, tenure‑holder, raiyat or under raiyat has transferred any agricultural land by sale for any consideration the amount or value of which does not exceed two hundred and fifty rupees, and if,‑
(a) he applies in the prescribed manner to the Collector at any time before the 25th day of December 1945, for the restoration of such land to him ; and
(b) he satisfies the Collector that he could not have maintained himself or his family except by making such alienation of such land ;
the Collector shall, after giving the transferee and if such land is in the possession of any person other than the trans feree, an opportunity of being heard, make an order in writing restoring such land to such proprietor, tenure‑holder, raiyat or under‑raiyat, as the case may be ".
Section 5 of Act V of 1944 provides for the effect of order for restoration of lands. I have already quoted subsection (2) of that section. Under that subsection, the right, title and interest of the agricultural land that accrue to the transferee as a result of the transfer will be deemed to have vested in the proprietor, tenure‑holder, raiyat or under‑raiyat, as the case may be. Subsection (3) of section 5 of Act V of 1944 provides
" If on or before the date on which an order under sub section (1) of section 4 takes effect under subsection (1) of this section, the person in possession of the agricultural land as a result of the transfer referred to in subsection (1) of section 4 has not yielded possession of such land to the proprietor, tenure‑holder, raiyat or under‑raiyat, as the case may be, the Collector may of his own motion, and shall, on the application of such proprietor, tenure‑holder, raiyat or under‑raiyat, eject such person and place such proprietor, tenure‑holder, rafyat or under‑raiyat, as the case may be, in possession of such land ".
Section 9 of Act V of 1944 provides for notice for restoration of land and reads as follows:
" Before making an order under subsection (1) of section 4 restoring any agricultural land to a tenure‑holder, raiyat or under‑raiyat or an order under subsection (1) of section 8 converting a transfer by sale of any agricultural land of a tenure‑holder, raiyat or under‑raiyat into a complete usufructuary mortgage the Collector shall require such tenure‑holder, raiyat or under‑raiyat to deposit such fee as may be prescribed for the service of a notice of such order in the prescribed form in the case ".
10. The word " before " and the word " shall " are very significant. These two words clearly indicate that some essentials have to be complied with before the Collector is competent to pass any order under subsection (1) of section 4 of Act V of 1944. His Lordship Asir, J., in his judgment has, however, observed that the right acquired by the transferor is a substantive right and cannot in any view be said to be dependent upon the strict compliance with the procedure as laid down in section 9 of Act V of 1944. His Lordship further observed as follows:
" It is doubtful as to whether section 9 which seems to lay down some procedure for notifying the order of restoration to the landlord concerned can be said to defeat the object of res toration or the vesting of the property as provided in section 5 of the Act. Section 5 seems to me to be providing for the vesting of the right of the property in the applicant concerned ".
We are, however, not prepared to accept this proposition as, correct because section 5, subsection (2) of Act V of 1944 deals only with the effect of the order for restoration but the Act provides that, before the order of restoration is passed, certain prelimi naries have got to be followed, and, in the absence of those preliminaries, the order of restoration would be without juris diction and the question of any vesting of right in the raiyat or under‑raiyat could not arise at all. It is not disputed that there are concurrent findings of fact by all the Courts that no notice was served on the appellant‑defendant No. 1 as required by section 9 of Act V of 1944. We may quote here the obser vation of the first Appellate Court in this connection from its judgment:
" No evidence worth the name has been adduced by the plaintiff's side to show that any notice of the order of restoration was served on the landlord as required under section 9 of Act V of 1944. Only oral evidence has been adduced and the same cannot be relied upon in the absence of documentary evidence which could be filed by the plaintiff. Defendant No. 1 denied his knowledge of the order of res toration passed under Act V of 1944 and Defendant No. 1 being a land‑lord brought the rent suit only against the recorded tenant and he did not admit any transfer by Jaynal Abedin and; as such, Jaynal Abedin was made a defendant in the rent suit and there is nothing to show that in the rent suit the holding was not properly represented ".
Before his Lordship Asir, J., it was also conceded practically that no notice was served and his Lordship passed his judgment on the assumption that no such notice was served.
11. The learned Advocate for the appellant has drawn our attention in this connection to Maxwell's Interpretation of Statutes, Ninth Edition, page 377, as the rules of procedure to be obeyed in similar cases:
" Enactments regulating the procedure in Courts seem usually to be imperative and not merely directory. If, for instance, an appeal from a decision be given with provisions requiring the fulfilment of certain conditions, such as giving notice of e appeal and entering into recognisances, or transmitting docu ments within a certain time, a strict compliance would be inoperative and non‑compliance would be fatal to the appeal ".
The learned Advocate for the appellant has also quoted from Craies on Statute Law, Fifth Edition, by Sir Charles E. Odgers where the learned author referred to the opinion of Lord Blackburn at page 212 where it is stated:
" Lord Blackburn thought that all the cases which held that a power of this kind must he used were to be supported on the principle that, although prima facie the donee of the power may either exercise it or leave it unused, yet `if the object for which a power is conferred' is for the purpose of enforcing a right, there may be a duty cast on the donee of the power to exercise it for the benefit of those who have that right, when required on their behalf . . . . . . ' The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right ".
The learned Advocate for the appellant has also drawn our attention to a Privy Council decision in the case of The Delhi and London Bank, Limited v. Orchard (ILR3Cal.47) where, at page 55, the Judicial Committee made the following observation:
" It was pointed out in the case of Ram Sahai Singh v. Sheo Sahai Singh B L R Sup. Vol. 492 S C=6 W R Mis. 98 that, according to the literal wording of section 20, no process of execution could ever issue to enforce a judgment, even within a week from the date of it, unless some proceeding had been taken to enforce or keep it in force within three years next before the application for execution ; and it was held that such a construction was obviously insensible, and that the meaning of the section was that no process of execution should be issued to enforce a judgment or order of a Court not established by Royal Charter after the expiration of three years from the date of it unless some proceeding to enforce it, or to keep it in force, should have been taken within three years next before the application for such execution ".
We are, therefore, of opinion that the contention pressed by the learned Advocate for the appellant must succeed.
12. The appeal is accordingly allowed and the judgment and decree in Second Appeal No. 562 of 1954 are set aside and those of the lower Appellate Court are restored and the plaintiff's suit is dismissed with costs throughout.
AMIN AHMED, C. J. ‑I agree.
K. B. A. Appeal allowed.