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Petitioner: TOFAZZAL HOSSAIN AND OTHERS VS Respondent: THE PROVINCE OF EAST PAKISTAN AND OTHERS
P L D 1961 Dacca 389
P L D 1961 Dacca 389
Before S. M. Murshed and B. A. Siddiky, JJ
TOFAZZAL HOSSAIN AND OTHERS‑Petitioners
versus
THE PROVINCE OF EAST PAKISTAN AND OTHERS -Respondents
Writ Petition No. 37 of 1959, decided on 21st February 1961.
(a) Writ petition----
---‑Must be verified by each one of several petitioners‑Petition verified by only one of seven petitioners- Dismissed in limine so far as six non‑verifying petitioners were concerned‑Constitution of Pakistan (1956), Art. 170.
(b) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)-----
----- S. 20 (2a)‑"Court" includes High Court and Supreme Court.
(c) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)----
----- S. 20 (2a) as inserted by S. 6, East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance, 1960‑Not invalid‑Words "notwithstanding . . . . . . any judg ment or decree or order of any Court" do not restrict or oust jurisdiction of Supreme Court‑Provincial legislature may nullify consequence of a decision of. Court‑Such nullification is not restricting or ousting jurisdiction of Court : [Abul Fata Muhammad v. Rasamaya 22 I A 76 case in point].
(d) Interpretation of Statutes-------
----Retrospective operation‑When to be given.
(1) An enactment is presumed to be prospective unless the express provisions in the enactment, or the necessary implication of such provisions clearly indicate that it should have a retrospec tive effect.
(2) If the words are ambiguous and not clear and if their implication is also not clear, a retrospective effect will not be given to them.
(3) If by express provisions or by necessary implication an enactment is clearly retrospective in effect, Courts are bound to give it such an effect. That is to say, if an enactment is retros pective, either by express provisions or by necessary implication, Courts will not hesitate to give that effect on the ground that it may involve hardship in particular cases.
(4) As a corollary to the above propositions, .a new enactment is presumed to be inapplicable to matters pending in a Court of law when the law is altered during their pendency ; but, if the effect of the enactment is such that it has retrospective effect and applies to pending litigations, Courts cannot refuse to give it such effect even though the consequences thereof appear to be unjust and bard.
(5) When from the language used in a statute it is clear that it should have a retrospective effect and should apply to pending litigation, it would require express provisions to save its operation upon pending cases.
Mukherjee, Official Receiver v. Ramratan Kuer and others 63 I A 47 ; Quilter v. Mapleson (1881‑82) 9 QB D 672; Hutchinson v. Jauncey (1950) 1 K B 574 C A and Jonas' v. Rosenberg (1950) 2KB52C A ref.
Maxwell's "The Interpretation of Statutes", Tenth Edition pp. 213‑228.
(e) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)------
--------S. 20 (2) (a) (b) read with S. 20 (2a) (i)‑Land or building in a Hat or Bazar‑Not included in lands referred to in clauses (a) and (b) of S. 20 (2)‑S. 20 (2a) meant to have retrospec tive effect and to be applicable also to pending cases by virtue of S. 6, East Bengal State Acquisition and Tenancy (Second Amend ment) Ordinance, 1960.
On a plain construction of the words of section 6 of the East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance, 1960 it will follow that the Ordinance has specifically provided that lands of the classes referred to in clauses (a) and (b) of subsection (2) of section 20 of the Act "do not include and shall be deemed never to have included" any land or building in a Hat or a Bazar. It is clear that any land or building in a Hat or Bazar would not be included and shall never be deemed to have been included within the category of lands described in clauses (a) and (b) mentioned above. Therefore, from the language of the section it is plain that it is to have retrospective effect and it is further plain that under no circumstances Hats and Bazars will be included in the various categories of the said clauses (a) and (b). The High Court cannot amend or modify the plain provisions of the Ordinance and hold that so far as pending cases are concerned, Hats of a particular description will come under the category of retainable land within the meaning of section 20 of the Act, when the Ordinance expressly provided that they shall never be deemed to have been so included within that section.
The provisions of section 6 of the Ordinance are not only re trospective, but the same must be applied to pending litigations as well. The express provision of the section is clear and unmistakeable. It has been provided that lands of the classes referred to in clauses (a) and (b) of subsection (2) of section 20 of the Act do not include and shall be deemed never to have included any land or building in a Hat or Bazar.
To do so (to exempt pending cases) would be usurpation of the functions of the legislature. It would. amount to an amend ment of the law by judicial decision. The legislature by a mandatory provision has directed that Hats and Bazars should never be deemed to have been included within the purview of clauses (a) and (b) mentioned above. This is clearly and expressly retrospective and applicable to all matters, including pending cases in a Court of law. There is no saving clause which exempts pen ding matters from the operation of the Ordinance. It cannot be laid down that notwithstanding section 6 of the Ordinance, a land or building in a Hat shall be included in the said clauses (a) and (b) in so far as the matters pending before us are concerned.
The impugned notification of 1956 is to be read in accord ance with the express provisions of section 6 of the Ordinance with regard to all the petitions pending.
If the Court had pronounced judgment in respect of these peti tions immediately after the decision of the Supreme Court in Yusuf Ali Choudhury's case, P L D 1959 S C 467 the result would have been that in all the aforesaid petitions it would have been held that a Hat of a particular kind held on a vacant piece of land would be retainable by‑ the rent‑receiver within the terms of clause (b) (iii) of subsection (2) of section 20 of the Act. This may be so, but during. the pendency of these petitions the Ordinance has come into force and has provided that. a Hat shall never be deemed to be included within the terms of section 20 of the Act. Effect must be given to the express provisions of the Ordinance which are expressly retrospective and applicable to all matters, including pending cases.
Mukherjee, Official Receiver v. Ramratan Kuer and others 63 I A 47 ; Quilter v. Mapleson (1881‑82) 9 Q B D 672 ; West v. Gwynne (1911) 2 C D 1 ; Hutchinson v. Jauncey (1950) 1 K B 574 ; Jonas v. Rosenberg (1950) 2 K B 52 ; East End Dwelling Co. Ltd. v. Finsbury Borough Council (1952) A C 109 and Prabhakar Kondaji Bhapkar v. Emperor A I R 1944 Born. 119 ref.
Hamidul Huq Choudhury with Behter Ali for. Petitioners.
A. S. Choudhury, Advocate‑General with K. M. Subhan for Respondents.
Date of hearing : 13th January 1961.
JUDGMENT
MURSHED, J.‑This writ application and sixteen other such petitions were heard seriatim by us at the request of the parties inasmuch as they all raise several common points for our decision, and this judgment will form part of the judgments in respect of the other petitions. But we shall discuss separately any special point involved in each of the petitions.
We propose to take Writ Petition No. 37 of 1959, and to deal with the points that have been raised.
This petition purports to be on behalf of seven petitioners. But inasmuch as only petitioner No. 1, Tofazzal Hossain, has sworn and verified the statements made in the petition and the rest of the petitioners have not done so, we entertain this appli cation in respect of the said Tofazzal Hossain only and reject it in limine, in so far as the rest of the petitioners are concerned. The rules framed by this Court require that the petition must be verified and sworn by the petitioner and/or the aggrieved person.
This petitioner claims that he, along with the other petitioners, is the owner of Fulgazi Natun Bazar recorded in Khatian No. 2 of mouza Uttar Sripur and Khatian No. 4 of Bejoypur in the District of Noakhali. It is alleged that the petitioner has, along with the other, inherited the tenancy right of one Hashmat Ali Mazumdar to the extent of 8 annas share in the said bazar. According to the petitioner, a wakf was created in respect of the said Hat in the year 1924. This petitioner and his other co -sharers claim to be the Mutwallis of the said wakf estate. They have challenged the right of the Provincial Government to acquire the said Hat by virtue of Notifications Nos. 4831 L. R. dated the 2nd of April 1956, and 4847 L.R., of the said date. The peti tioner has further averred that he has no rent‑receiving interest in the said Hat.
In the affidavit‑in‑opposition, filed on behalf of the respon dents, the status of the petitioner as a Mutwalli has been specifi cally denied, and it has also been denied that the said bazar is a wakf property. The respondents have stated that the petitioner has created a rent‑receiving interest in respect of the said Hat by creating Chandina tenancies in the said bazar and that they realised rents from the tenants. It has also been stated in the affidavit‑in‑opposition that the petitioner has other rent‑receiving interests in respect of other khatians which have been set out in paragraph 3 of the said affidavit‑in‑opposition.
At the hearing of this petition Mr. Hamidul Huq Choudhury i has admitted that the petitioners are rent‑receivers‑ and has argued that the lands mentioned in paragraph 3 of the further affidavit filed on behalf of the petitioner cannot be acquired as they con stitute a Hat without any structures thereon.
The matter in controversy, therefore, is narrowed down to the only point that the said Hat is a "vacant non‑agricultural land" within the meaning of section 20 (2) (b) (iii) of the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951) (hereinafter referred to as the Act). Mr. Choudhury has confined himself to those plots which, according to him, con stitute a Hat and, therefore, not capable of being acquired. He has taken his stand on a decision of the Supreme Court of Pakistan in the case of Yusuf Ali Chowdhury and others v. Province of East Pakistan (11 D L R 316 (S C) ; P L D 1959 S C 467).
In order to understand the point, we would like to quote here the impugned notification under which certain pieces of land, claimed by all the petitioners in all the writ petitions before us have been acquired by the respondents. The notification reads 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), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance No. III of 1956), it is hereby notified, for the information of ail concerned, that the Governor is pleased to acquire with effect from the 14th April 1956, all lands in khas possession of all rent‑receivers situated in the district of Noakhali other than the classes of land 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."
We may point out that the notification in respect of the different petitions are the same except that the respective districts have been mentioned in respect of the various petitions before us inasmuch as the lands which have been acquired fall within one district or the other. For our purpose, the impugned notification as set out above will suffice.
It appears that by virtue of the aforesaid notification the Province of East Pakistan, as has been stated before us by the learned Advocate‑General, have acquired quite a large number, of Hats and Bazars in the Province of East Pakistan and have obtained possession of Hats and Bazars, in majority of the cases. This statement has not been challenged on behalf of the petitioner and we have no hesitation in accepting the same. This is a well -known and notorious fact. The right to such acquisition was challenged in this Court in the case of Yusuf Ali Chowdhury and others v. The Province of East Pakistan (9 D L R 674 : P L D 1958 Dacca 138). In that case Yusuf Ali Chowdhury and others, challenged the right of the Province of East Pakistan to acquire such Hats and Bazars of which they (Yousuf Ali Chowdhury and others) claimed to be the owners. It was contended that the Hats and Bazars came within the purview of section 20 (2) (b) (ii) of the Act and as such they come under the category of lands retainable by the rent‑receivers whose pro perties had been acquired. The said sub‑clause (ii) of clause (b) of subsection (2) of section 20 of the Act reads as follows ; "lands which are cultivable or which are capale of cultivation on re clamation". After discussing the arguments at the Bar, this Court decided that Hats and Bazars did not fall within the aforesaid category. The contentions of the petitioner's were overruled. Thereupon the petitioners in that case preferred an appeal before the Supreme Court and the decision of the Supreme Court has been reported, as we have stated above, in 11 D L R 316 (S C) =P L D 1959 S C 467. The Supreme Court did not overrule the decision of this Court in so far as it decided that Bazars did not come within the various categories of section 20 (2), clauses (a) and (b). The Supreme Court, however, proceeded to consider the validity of the acquisi tion by Government in respect of a Gohata which was a Hat sitting once a week every Tuesday, on a vacant piece of land. The Supreme Court, therefore, held that, so far as the Gohata was concerned, it would come within the category of section 20 (2) (b), sub‑clause (iii), which reads as follows : "vacant non‑agricultural land". According to the decision of the Supreme Court, as stated above, Hats which are held periodically on vacant lands would be retainable as khas lands and would come within the purview of sub‑clause (iii) of section 20 (b), inasmuch as such Hats would fit in with the description of "vacant non‑agricultural lands". It is clear that the petitioners in that case had a limited success in the Supreme Court in respect of their contention that Hats held on vacant land were not capable of being acquired under the provisions of the Act.
In this background, when several applications were pending before this Court, an Ordinance was promulgated by the Governor of East Pakistan. The said Ordinance is called the East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance, 1960 (hereinafter referred to as the Ordinance). The Ordinance was published in the Dacca Gazette, Extraordinary, on Friday, the 17th of June 1960, and it came into force at once.
Mr. Choudhury, as we have already noted above, confined himself to the Hat as described in the further affidavit on behalf of the petitioners and has merely relied on the aforesaid decision of the Supreme Court fn Yusuf Ali Chowdhury's case. That was the only contention before us.
In answer to
this contention, learned Advocate‑General has pointed out the provisions of the Ordinance and has referred us to section 6 thereof, which reads as follows
"In section 20 of the said Act,‑
(i) in subsection (2), for the explanation, the following new subsection shall be added, namely :‑
"(2a) Notwithstanding anything contained in any other law for the time being in force or in any instrument or in any judg ment or decree or order of any Court, lands of the classes referred to in the clauses (a) and (b) of subsection (2) do not include and shall be deemed never to have included.
"(i) any land or building in a Hat or Bazar
Learned Advocate‑General has contended that by virtue of the above provisions of the Ordinance, Hats and Bazars are not retainable as khas lands by rent‑receivers.
In answer to this argument Mr. Hamidul Huq Choudhury has pressed the following points before us, namely, (I) that the word "Court" in the aforesaid section of the Ordinance does not include a High Court or the Supreme Court in Pakistan ; (2) that the Governor, which in this case means the Provincial Legislature, is not competent to legislate on a matter which restricts and ousts the jurisdiction of the Supreme Court ; (3) that all legislation is deemed to be prospective, and, unless there are express provisions to that effect, it cannot have retrospective effect ; (4) that, in any event, the Ordinance cannot apply to matters which are pending before a Court of law. These were the four points which were pressed before us and no other point was canvassed by the learned Advocate for the petitioners.
Mr. M. H. Khondkar, appearing on behalf of the petitioners in some of the petitions, has elucidated further the arguments advanced by Mr. Hamidul Huq Choudhury and the learned Advocates appearing for the rest of the petitioners adopted the arguments of Mr. Choudhury as well as those advanced by Mr. Khondkar.
With regard to the first point, namely, that the word "Court" in section 6 of the Ordinance does not include a High Court or the Supreme Court, the short answer is that the word "Court" means and includes a High Court as well as the Supreme Court. That is the plain meaning of the word, and we cannot construe it otherwise:
The next point, which was pressed by Mr. Choudhury, is that the Provincial Legislature is not competent to restrict or oust the jurisdiction of the Supreme Court. This is so. But the impugned Ordinance does not seek either to restrict or to oust the jurisdiction of the Supreme Court. It may have, as indeed it has, the effect of nullifying the consequences of a decision of that Court, but it does not purport either to restrict its jurisdiction or to oust it in any manner whatsoever. We may, as an instance, point out to the Mussalman Wakf Validating Act, 1930, which was enacted by the Central Legislature of India in order to nullify the effect of a decision of the Judicial Committee of the privy Council in so far as the Muhammadan Law of wakfs relating to wakf‑al‑al‑aulad is concerned. As the Mussalman Wakf Validating Act, 1913, was merely a declaratory Act, it was considered by the Judicial Committee of the Privy Council to be prospective in effect. It' was, therefore, necessary to enact a further Wakf Validating Act, namely, the Mussalman Wakf Validating Act, 1930 (Act XXXII of 1930), and the same was passed in order to give a retrospective effect to its provisions. Section 2 of the Mussalman Wakf Validating Act, 1930, provides : "The Mussalman Wakf Valida ting Act, 1913 (VI of 1913), shall be deemed to apply to wakfs, w created before its commencement : Provided that nothing herein contained shall be deemed in any way to affect any right, title, obligation or liability already acquired, accrued or incurred before the commencement of this Act." The Musealman Wakf Validating Act of 1913 and that of 1930 nullified the difficulty created by the decision of the Judicial Committee in the case of Abul Fata Muhammad v. Rasamaya (22 I A 76), and some other cases. It will thus appear that this point has no substance.
It was next argued by Mr. Choudhury that every enactment is presumed to be prospective and that Courts lean against the retrospective operation of an enactment. The last point which was pressed by the learned Advocate for the petitioner is that the Ordinance will not apply to matters which are pending before us, or, for the matter of that, in any Court of law.
The aforesaid points have been stated in a form which is too broad and wide. They are subject to certain limitations and qualifications. The principles which are now well‑settled may be stated as follows :
(1) An enactment is presumed to be prospective unless the express provisions in the enactment, or the necessary implication of such provisions clearly indicate that it should have a retro spective effect.
(2) If the words are ambiguous and not clear and if their implication is also not clear, a retrospective effect will not be given to them.
(3) If by express provisions or by necessary implication an enactment is clearly retrospective in effect Courts are bound to give it such an effect. That is to say, if an enactment is p, retrospective, either by express provisions or by necessary impli cation, Courts will not hesitate to give that effect on the ground that it may involve hardship in particular cases.
(4) As a corollary to the above propositions, a new enactment is presumed to be inapplicable to matters pending in a Court of law when the law is altered during their pendency ; but, the effect of the enactment is such that it has retrospective effect and applies to pending litigations, Courts cannot refuse to give it such effect even though the consequences thereof appear to be unjust and hard.
(5) When from the language used in a statute it is clear that it should have a retrospective effect and should apply to pending litigations, it would require express provisions to save its oper ation upon pending cases. See Mukherjee, Official Receiver v. Ramratan Kuer and others (63 I A 47) ; Quilter v. Mapleson ((1881‑82) 9 Q B D 672.).
We may quote, in this connection Maxwell's "The Inter pretation of Statutes" Tenth Edition, pp. 213‑228 :
"It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears, very clearly in the terms of the Act, or arises by necessary and distinct implication . . . . But if the language is plainly retrospective it must be so interpreted."
"In general when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights."
It has been held that such intention may be implied from the pro visions of the statute. See Hutchinson v. Jauncey ((1950) 1 K B 574 (C A)) ; Jonas v. Rosenberg ((1950) 2 K B 52 C A).
Mr. M. H. Khondkar reinforced the arguments of Mr. Hamidul Huq Choudhury by citing a decision of the Federal Court of India in the case of the United Provinces v. Mst. Atiga Begum and others (72CLJ550). In that case a Bench of the Federal Court of India, consisting of Sir Maurice, Gwyer, C. J., Sir S. M. Sulaiman and S. Varadachariar, JJ., had to decide the validity of an enactment of the United Provinces, namely, Regularisation of Remissions Act (U. P. Act XIV of 1938). It was held by , the Federal Court of India that the Regularisation of the Remissions Act, 1938, was not beyond the competence of the Legislature. Sir S. M. Sulaiman, J. further proceeded to consider whether the said Act would apply to pending actions, namely, to matters which were already pending in Courts of law when the enactment came into operation. He held that the said enactment did not apply to pending litigations. Sir Maurice Gwyer, C. J. gave no opinion on this point, and Varadachariar, J. while discussing the point to some extent, preferred to give no decision on the subject. Sir S. M. Sulaiman, J., however, on a consideration of the provisions of the said enactment, came to the conclusion that' it did not apply to pending litigations.
We fail to see how the aforesaid case supports the contention of Mr. M. H. Khondkar that section 6 of the Ordinance under our consideration has neither retrospective effect, nor does it apply to matters which are pending before the Court. On a plain con struction of the words of section 6 of 4he Ordinance, it will follow that the Ordinance has specifically provided that lands of the classes referred to in clauses (a) and (b) of subsection (2) of section 20 of the Act "do not include and shall be deemed never to have included" any land or building in a Hat or a Bazar. It is clear that any land or building in a Hat or Bazar would not be included and shall never be deemed to have been included within the category of lands described in clauses (a) and (b) mentioned above. Therefore, from the language of the section it is plain that it is to have retrospective effect and it is further plain that under no circumstances Hats and Bazars will be included in the various categories of the said clauses (a) and (b). We cannot amend of modify the plain provisions of the Ordinance and hold that so far as pending cases are concerned, Hats of a particular description will come under the category of retainable land within the meaning of section 20 of the Act, when the Ordinance expressly provided that they shall never be deemed…
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