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Petitioner: MUHAMMAD HOSSAIN MEA VS Respondent: MEMBER, BOARD OF REVENUE, GOVERNMENT OF EAST PAKISTAN
P L D 1963 Dacca 971
P L D 1963 Dacca 971
Before Murshed and A. S. Chowdhury, JJ
MUHAMMAD HOSSAIN MEA‑---Petitioner
versus
MEMBER, BOARD OF REVENUE, GOVERNMENT OF
EAST PAKISTAN AND OTHERS‑---Respondents
Writ Petition No. 41 of 1962, decided on 17th August 1962.
(a) East Bengal State Acquisition and Tenancy Act 1 950 (XXVII of 1951) Ss. 9 & 75‑A‑lease granted b5, one who was rent -receiver‑Hit by S. 9 as null and void‑Immediately after lease followed sale of residuary interest of leased property‑Sale, not enforceable in: the circumstances‑S. 9 makes special provisions and overrides general provisions of S. 75‑A‑--flutter falling under S. 9 or 9‑B‑Forfeiture of transferred property, under 5.75‑A, not valid and notice given hereunder not a proper notice.
(b) Interpretation of Statutes‑Same enactment‑Special pro visions to prevail over general provision.
S. R. Pal with Abu Backkar for Petitioner.
Maksum‑ul‑Hakim, A. G., and K. M. Subhan for Respondents.
JUDGMENT
MURSHED, J.‑The petitioner, Iahammad Hossain Mea, claims to have purchased one‑third share of premises No. 30, Syed Awlad Hossain Lane, within the Municipal limits of the town of Dacca. He bases his title to the said premises upon a registered deed of lease, dated the 12th of March 1958, obtained front one Hemendra Narayan Banerjee for a term of years. On the same date and at the same time there was another registered deed of sale by which the residum of the interest of the previous owner, namely, the said Hemendra Narayan Banerjee, in respect of the said one‑third of the said property, which merely consisted of a right to receive rent, was also transferred to the petitioner. The case of the petitioner, therefore, is that, by the said two documents, which were exe cuted and registered simultaneously, a sale out‑and‑out was effected in respect of one‑third share in the said premises in favour of the petitioner. It is admitted that the transferor, i.e., Hemendra Narayan Banerjee, was a rent‑receiver, whose rent -receiving interest in this Province was acquired under section 3 (1) of the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951) (hereinafter called the Act). The aforesaid premises was, however, possessed in khas by the petitioner along with his two brothers who were his co‑sharers. Consequent upon the sale of one‑third share of the premises, the petitioner claims to have been in possession of his share. While in such posses sion, the petitioner was served with a notice, being Memo. No. 871‑3A‑XXIX‑1/59, dated the 5th of December 1959, under the signature of the Circle Inspector, Government Estates, Dacca Sadar, requiring him to produce the document by which the petitioner claims to have purchased a one‑third share in the premises from Hemendra Narayan Banerjee. The petitioner complied with the memorandum. Thereafter he received another memorandum, being Memo. No. 1106 (2)‑SA‑Miscellaneous Case No. 9 of 1960, dated the 8th of February 1960, under the sig nature of respondent No. 3. Additional Deputy Commissioner (Revenue), Dacca, calling upon the petitioner to show cause as to why the premise, in respect of which the petitioner had obtained lease, should not be forfeited to the Government under the pro visions of section 75‑A of the Act. The petitioner in showing cause in pursuance of the aforesaid notice, contended that ME property was not liable to forfeiture under section 75‑A of the Act. Respondent No. 3, Additional Deputy Commissioner (Revenue), Dacca Sadar, however, came to an adverse decision against the petitioner and held that the registered lease for 99 years came within the mischief of section 75‑A and ordered that the petitioner's property as mentioned above stood forfeited to the Government. This order has been impeached before us. Against the aforesaid order the petitioner took various steps to get redress of his grievance, but he obtained no relief whatsoever. Thereupon the petitioner obtained the present Rule Nisi from this Court calling upon the respondents to show cause as to why the impugned order of forfeiture should not be quashed.
2. On behalf of the respondents an affidavit‑in‑opposition has been filed in which it has not been denied that the prede cessor‑in‑interest of the petitioner, namely, Hemendra Narayan Banerjee, was a rent‑receiver arid that simultaneously on the same date and at the same time the two aforesaid deeds were executed and registered, as alleged by the petitioner. The case of the respondents is that, since the notification under section 17 (1) of the Act has been published, the petitioner's land is liable to be forfeited under section 75‑A of the Act inasmuch as a lease was for a term of 99 years was given by the rent‑receiver. It has been further stated in the said affidavit‑in‑opposition that, the predecessor‑in‑interest of the petitioner did not obtain permission from the relevant authority to grant lease in accordance with the requirement of section 9 of the Act.
3. At the hearing of the Rule it was contended on behalf of the petitioner that section 75‑A of the Acc had no manner of application to the transactions by which the petitioner had purchased the aforesaid property. It is the petitioner's conten tion that the two documents, namely, the deed of perpetual lease for 99 years and the deed of transfer of the remainder of the interest of the transferor in the said property, amounted in law to a sale. It was argued that a sale could not be construed as "sub‑letting" within the meaning of section 75‑A of the Act. It was further contended that, even if the word "sub‑letting" included a lease granted by a rent‑receiver, who, upon the publi cation of the notification under section 3 (1) of the Act, acquiring his rent‑receiving interest, became a statutory tenant, then the position would be that the transferor's property transferred by way of lease would be governed by section 9 and not by section 75‑A, of the Act.
4. On behalf of the respondent it was argued that the; word "subletting" covered the ease of "lease" granted by a tenant, and, inasmuch as section 75‑A applied to all persons, namely, to rent‑receivers as well as tenants, the petitioner would come within the mischief of section 75‑A and, therefore, the impugned order was a valid order passed in accordance with the law.
5. The argument before us has centred round a limited issue, namely, whether the two documents were a part of one transaction effecting a sale of the property in question. If so, the petitioner would not, admittedly, come within the mischief of section 75‑A. The next question is, whether the transaction, which purports to create a lease, would be governed by section 9 or section 75‑A of the Act. If both the sections, namely, sections 9 and 75‑A, are applicable, whether section 9, which is a particular provision specially applicable to the granting of a lease by a rent‑receiver, will prevail over the general provision of section 75‑A applicable to all persons generally.
6. Before we proceed to discuss the aforesaid contentions, we would set out the relevant provisions of section 9 as well as those of sections 9‑B and 75‑A of the Act. Bearing in mind the fact that, on and from the date of notification under section 3 (1), every rent‑receiver will become a tenant in respect of the lands in his possession. it will be evident that section 9 (1) imposes an embargo upon a rent‑receiver to transfer his land by way of lease. He is, therefore, specifically hit by section 9 (1). (The exception is irrelevant here). 1f sub‑letting covers the case of lease granted by a rent‑receiver, then the provisions of section 9 (1) are particular provisions with special reference to rent‑receivers and rent‑receivers alone. Section 75‑A would thus be a general provision in the sense that it applies to all persons rent‑receivers as well as others. The sections read as follows:
"9. (1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of publication of a notification under subsection (1) of section 3, no rent‑receiver specified in such notification shall, except as provided in subsection (la), transfer his rights and interests in any estate, taluk, tenure, holding or tenancy, to which such notification relates, by private sale, gift, will, mortgage, lease or any contract or agreement or transfer any land in his khas possession by any such means without the previous permission of a prescribed authority.
"(la) The rent‑receiver referred to in subsection (1) shall be entitled to transfer by private sale or mortgage only, agricultural land or non‑agricultural land of the classes retainable under subsection (2) of section 20, in his khas possession, not exceeding ten standard bighas in the aggregate in either case without such permission, subject to such private sale or mortgage not contravening the provisions of any other law for the time being in force
"Provided that in the case of agricultural khas land, in calculating the permissible quantity of ten standard bighas, any land transferred between the 14th December 1948 and the date of publication of the notification under subsection (1) of section 3 shall also be taken into account.
"(2) .
"(3) .
"9B. (1) Any person, to whom a rent‑receiver has prior to the coming into force of this provision (i.e. on 7‑8‑61), transferred for valuable consideration any land in contraven tion of the provisions of subsection (1) of section 9 by misrepresentation that he was legally entitled to transfer the same and has thereby caused wrongful loss to him, may file a petition before a Revenue Officer authorised by the Collector to entertain such petitions.
"(7) Where the rent‑receiver fails to carry out the order of the Revenue Officer made under subsection (5), the Revenue Officer may order forfeiture of the land to the Provincial Government and recommend to the Collector its transfer to the petitioner (that is the transferee), upon such terms as the Collector may consider fair and equitable, and may also order the forfeiture of any compensation that may be due to the rent‑receiver under the Act not exceeding the amount of the consideration money for payment to the petitioner.
"75A. (1) On and from the date of publication of a notification under subsection (3) of section 17 or under subsection (1) of section 31, no person shall sublet any land in his khas possession in the area to which such notification relates.
"(2) Any subletting made in contravention of subsection (1) shall be null and void and the land so sublet shall be forfeited to the Provincial Government.
"(3) Any person may, at any time, apply to the Provincial Government for the acquisition of any of his khas lands under subsection (2) of section 3 on payment of compen sation at the rate prescribed for such land in section 39."
We have underlined the aforesaid sections in order to illustrate their special significance.
7. In support of the argument that the aforesaid two documents, by one of which a lease for 99 years was granted to the petitioner and by the other the remainder of the interest of the transferor was transferred to the petitioner, effected a sale, learned Advocate for the petitioner has relied on a decision of a Single Bench of this Court in the case of Obaidullah Chowdhury v. Mahboobur Rahman (P L D 1959 Dacca 710). In that case a co‑sharer in an occupancy raiyati holding granted a raiyati lease in favour of another person by a registered instrument reserving the right to receive rent, and on the same date another document was executed by which the rent‑receiving interest was also transferred to the transferee. It was held that the transaction was a sale pure and simple although camouflaged as a lease.
8. We would have ourselves, but for the circumstances mentioned hereinafter, held that the two documents put together would amount to a sale. The following difficulties, however, stand in the way of the petitioner.
9. It would be noticed that, even according to the peti tioner the sale, as claimed by him, was effected by two separate jural relationships, the cumulative effect of which, according to his submission, amounted to a sale. The first jural relationship was that of a lessor and a lessee, which was created by a docu ment granting a lease to the petitioner in respect of the aforesaid property for 99 years. The second jural relationship was created by the second document purporting to transfer the remaining interest of the transferor to the transferee. It. however, so happened that, in so far as the petitioner's predecessor‑in‑interest. Was concerned, being a rent‑receiver whose rent‑receiving interest had been acquired under section 3 (1) of the Act, he was hit by the provisions of section 9 of the Act as he could not effect such a lease without obtaining permission from the relevant authority) Therefore, in accordance with provisions of section 9, sub section (2), of the Act, the transaction purporting to create lease would stand null and void. The position in law is that, as soon as a lease is created, it becomes null and void inasmuch as the granting of such lease is hit by the mandatory prohibition of law, namely, section 9 (1) of the Act. The second document is a transaction, which the petitioner himself has described as a sale of the residuary interest left in the transferor of the property, We could have spelt out a sale by virtue of these two transactions, which are a part of each other, if the former transaction, namely, the creation of a lease, had been valid in accordance with the law and if it could create legally enforceable jural relationship. The result, therefore, is, that, it cannot be said that the aforesaid two documents have affected a sale for reasons stated above. The petitioner, therefore, cannot take advantage of the positions of section 9 (la) by which a rent‑receiver has been allowed to sell his agricultural or non‑agricultural land to the extent of ten standard bighas. (In this case, admittedly, the area of the land) transferred to the petitioner is less than ten standard bighas). There has been no valid sale.
10. Learned Advocate‑General has contended that admit tedly, the transferor of the petitioner, being a rent‑receiver, purported to transfer the said property by way of a lease. Relying upon the fact that a notification under section 17 (1) of the Act has been published, he further contended that the land of the petitioner was hit by the provisions of section 75‑A of the Act. He has supported this proposition by a native argument to the effect that the predecessor‑in‑interest of the petitioner, being a rent‑receiver, became a statutory tenant directly under the Provincial Government by virtue of the provisions of section 3 (4) (f) of the Act consequent upon the publication of a notification under section 3 (1) of the Act and, therefore, a lease granted by such a statutory tenant would amount to sub‑letting. The petitioner would thus, it has been submitted, fall within the mischief of section 75‑A of the Act. In support of this conten tion, be has relied upon a decision of a Division Bench of this Court in the case of Alhaj Kutubuddin Ahmed v. Abu Jafar Hridwan Uddin Ahmed (P L D 1963 Dacca 304). Learned Advocate‑General has, therefore, submitted that, the impugned order forfeiting the petitioner's property was in accordance with the law.
11. In this connection, we would like to say that the word "sub‑let" in section 75‑A of the Act has not been defined in the statute itself and it has not also received any judicial interpre tation. A glance at the meaning of the word "let", "letting" or "sub‑letting" would show the word "sub‑let" has various shades of meaning and it has, therefore, to be construed as to what is the exact significance of the said word as used in section 75‑A. One of the meanings of the word "let" given in the Oxford English Dictionary is "To grant the temporary possession and use of (land, buildings, rooms, movable property) to another in consideration of rent or hire." In the same dictionary the word "sub‑let", when used as a verb, is stated to have the meaning. "To let (property, a tenant) to a sub‑tenant; to lease out (work, etc.) under a sub‑contract; to under‑let, sub‑lease". In Stroud's Judicial Dictionary, Third Edition, various shades of meaning of the word "let" have been set out, and it has been stated at page 1626 as follows: " Let may be used so as only to give a LICENCE and so as to exclude any INTEREST IN LAND." This is the meaning which has been given in the case of Warr v. London County Council (1904 1 K B 713 (719)).
12. Learned Advocate‑General has argued that the word `'sub‑letting" would cover a lease granted by a rent‑receiver whose rent receiving interest has been acquired under section 3 (1) of the Act inasmuch as the transaction would amount to a lease granted by a person who was himself a tenant. It may be so. Perhaps, the word may have a wider connotation. It is, however, unnecessary for us to decide the meaning of the word "sub‑let" as used in section 75‑A of the Act. Even if it is assumed that the word "sub‑let" would cover a lease granted by a rent‑receiver in the circumstances of the case, the broad question which st 11 stares us in the face is, would such a transaction be governed by the provisions of section 9 or those of section 75‑A ? Assuming further that a lease was granted, would a lease so granted come within the mischief of both the sections or one of them ? If so, which one?
13. It has been contended on behalf of the petitioner that the decision of this Court in Alhaj Kutubuddin Ahmed's ease, is not binding on us. Mr. S. R. Pal has argued that the aforesaid decision, in so far as it purports to construe 79‑A, constitutes an obiter and as such it is not binding on this Bench. We would, therefore, examine the facts are as follows: Certain property within the municipal limits of the town of Chittagong belonged to defendants 2 to 10 who were rent‑receivers (their rent‑receiving interest having been acquired under section 3 (t) of the Act), as their khas land. The said defendants had bharatia tenants (monthly tenants) in respect of the said land. Subsequently, the manager of the said defendants 2 to 10 agreed to lease out of that property to the plaintiff at a rental of R s. 24‑8‑0 per annum.
The said Manager was imp leaded as defendant No. 1. The Power of Attorney under which the said defendant manager acted, did not authorize him to grant a lease to the plaintiff. The plaintiff instituted a suit for specific performance of alleged contract, his case being that he had entered into the aforesaid contract with defendant No. 1 (manager of defendants 2 to 10) under a bona fide belief that the said defendant No. 1 was authorised to grant such lease and that, under the aforesaid circumstances, he was not bound by the lack of authority in defendant No. 1 in accordance with the said Power of Attorney. Learned Subordinate Judge decreed the suit on the ground that the plaintiff had bona fide entered into an agreement with the defendant No. 1 without any knowledge of the restriction imposed upon the said defendant to create a lease. Against the aforesaid decree an appeal was preferred which was heard by a Division Bench of this Court. The said Bench, on an appraisal of the facts of the case, came to the conclusion that the plaintiff was aware that there was a Power of Attorney incorporating the authority that was given to the manager, namely, defendant No. 1. It was held that the plaintiff had been aware of the existence of such Power of Attorney. It was also held that, in accordance with the Power of Attorney there was a restriction upon the authority of the Manager to cause a transference of the property in the manner as was sought to be done by defendant No. 1. On these findings of fact, it was further held that the plaintiff was not protected by the doctrine of estoppel and that he was not entitled to the decree which was passed in his favour. The Division Bench, in the judgment pronounced by it, made the following observations:
"As the bainanama (Exh. 1) was executed by the defendant No. 1 alone subsequent to the power‑of‑attorney, the contract of lease created by it was unauthorized and invalid and as such, the same is not binding on the defendants 2 to 10 and cannot be specifically enforced."
Thus, in accordance with the decision recorded above, the case of the plaintiff collapsed. The appeal preferred by the plaintiff was allowed and the decree of the trial Court reversed. The Division Bench, however, proceeded to strengthen its decision, on an examination of section 75‑A of the Act, although the trial Court did not base its decision on the same. The question did not arise out of the decision of the Subordinate Judge, which was under appeal. We, therefore, think that Mr. S. R. Pal is right in contending that the decision of the Division Bench, in so far as it relates to the applicability of section 75‑A, amount to an obiter pronounced by the said Division. In proceeding to do so, the Division Bench observed as follows:
"In this connection, there has arisen another question whether the plaintiff's contract of lease as per bainanama (Exh. 1) does not similarly fall within the mischief of the said section 75‑A or is not restricted by section 9 of the Act. This question was not considered by the trial Court. As, however, this is a question of law and does not require any further investigation into facts, the same can arid should be considered and decided by us in this appeal. Section 9 forbids, with effect from the date of publication of a Notification under section 3 (1) of the Act, all kinds of transfers of the rent -receivers khas lands, except with the previous permission of the prescribed authority. A proviso, however, was subse quently added to this section permitting only sale and mortgage of agricultural lands not exceeding ten bighas. Thus lease of rent‑receiver, khas lands, other than agricultural lands not exceeding ten bighas, is not permissible under section 9, except with the previous permission of the prescribed authority. Section 75‑A, on the other hand, totally prohibits the sub letting of khas land of any person, whether he is rent‑receiver or not. Thus, section 9, so far as concerns demise of khas lands of rent‑receivers, is in conflict with section 75‑A. These two sections cannot stand together and apply simultaneously so far as the demise of khas land is concerned. Of them, section 9, which deals with transfers in general is in the statute book from the very inception, but section 75‑A dealing with sub‑letting alone was subsequently incorporated in the Act by an amending legislation, namely. The East Bengal Act XII of 1954. Now, the rules of interpretation in such a case appear to be as follows:
"(i) 'If two sections are repugnant, the known rule is that the last must prevail', vide Maxwell's Interpretation of Statute 9th edition page 165.
"(ii) `Again, if the co‑existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later', vide ibid page 171.
"(iii) `The rule is that whenever there is a particular enact ment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to affect only the other parts of the statute to which it may properly apply', vide Craies on Statute Law fifth edition page 205.
"On these rules of interpretation, see 75‑A, so far as demise of khas land is concerned, whether such lands belong to rent‑receivers or not, shall prevail over section 9, but with regard to the other matters covered by section 9, that section shall continue to apply. As the suit lands are khas land and as the bainanama, of the plaintiff relates to the demise of those, lands, section 75‑A (and not section 9) calls for considera tion here."
14. With respects to the said Division Bench, we do not agree with the aforesaid decision as to the applicability of section 75‑A to the facts of Alhaj Kutbuddin Ahmed's case. We would like to observe that, as it would appear from the obser vations quoted above, the said Division Bench had itself taken notice of a rule "that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply". The aforesaid principle was not applied to the facts of the case although the same was applicable in full force to the same. We would like to point out that one of the cardinal principles of interpretation of statutes is to avoid construction by which some portion of a statute would…
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