High Court – J Farid Ahmed- F.A No.343 of 2003 (J. Rahim)

Present:

Mr.Justice Farid Ahmed

And

Mr.Justice M. Enayetur Rahim

First Appeal No. 343 of 2003.

 

S.N. Kabir

                                                    …..  Appellant.

 Versus.

 

Mrs. Fatema Begum

                                                …. Respondent

Mr. Mahmudul Islam with

Mr. Probir Neogi

                                             ..  For the Appellant.

Mr. Abdul Wudud Bhuiyan with

Mr. Mahbubey Alam

                                         .. ..  For the Respondent.

Heard on : 16th February, 7th April, 11th April, 15th April, 2010.

Judgment on: 26th April, 2010.

FARID AHMED, J.

            This Appeal was preferred by the plaintiff against the judgment and decree dated 5.8.2003 passed by the learned Joint District Judge, 2nd  Court, Dhaka in Title Suit No. 270 of 2002 rejecting the plaint of the suit.

            The plaintiff-appellant instituted Title Suit No. 270 of 2002 for declaration that he is the owner of the suit property and that the defendant wife is his benamdar and is not the owner thereof.

            The case of the plaintiff-appellant in brief is that he married defendant No. 1, Mrs. Fatema Begum who is a simple house wife have no source of income of her own and dependant  on the plaintiff; that the plaintiff being an industrialist and  with motive to get income tax relief  purchased the suit property being urban property in the “Benami” of defendant No. 1 and that the plaintiff purchased the suit property with his own money and he is residing in the suit property with his family treating the suit property as his own property and that defendant No. 1 knowing that the plaintiff purchased the suit property in the benami of defendant No. 1 is claiming ownership of the suit property at the behest of her father and brother hence the plaintiff-appellant filed the suit.

            The defendant No. 1 filed an application under Order 7 Rule 11(d) of the Code of Civil Procedure for rejection of the plaint contending that under the provision of section 5 of the Land Reforms Ordinance, 1984 (hereinafter referred to as “the Ordinance”) the suit of the plaintiff is barred as benami transaction is prohibited.

The plaintiff-petitioner filed written objection against defendant’s application for rejection of the plaint contending, inter alia, that the suit property is urban property and that the Land Reforms Ordinance of 1984 has been promulgated with the object to reform the land relating to land tanures, land holding and transfer with the view to maximizing  production and ensuring a  better relationship between land owners and bargaders and the provision of entire Ordinance are relating to agricultural and cultivable land holding and transfers  and not relating to urban land and the provisions of section 5 of the said Ordinance do not apply to urban land transfer and the application of the defendant No. 1 for rejection of the plaint is liable to be rejected.

            The learned Joint District Judge by the impugned judgment and decree rejected the plaint of the suit. Being aggrieved thereby, the plaintiff preferred this appeal.

            Mr. Mahmudul Islam, the learned Senior Counsel and  Mr. Probir Neogi, learned Advocate appearing on behalf of plaintiff-appellant have submitted that when all the provisions of the Ordinance except section 5 unquestionably and beyond doubt relate to agricultural land and the purpose of the Ordinance is to maximize production and to that end to make provision for stable and satisfactory relationship between agricultural land owner and bargadar, the expression “immovable property” (which literally connotes agricultural and also non-agricultural land) cannot be said to be unambiguous and a doubt lingers as to whether in dealing with agricultural lands, the legislative authority at all intended to bring non-agricultural lands within the mischief of section 5 of the Ordinance. Mr. Mahmudul Islam thereafter has submitted that a dispute relating to ownership of non-agricultural land does not affect agricultural production and it is not necessary to make the provision of section 5 in respect of non-agricultural land and the legislative authority cannot be ascribed with an intention to prohibit benami transaction in respect of non-agricultural land.

            Mr. Abdul Wudud Bhuiyan and Mr. Mahbubey Alam, learned Senior Counsels appearing on behalf of defendant-respondent have submitted that there is no ambiguity in section 5 of the Ordinance to consider the same is applicable only in case of agricultural land. Mr. Abdul Wudud Bhuiyan thereafter has submitted that if section 5 of the Ordinance is made applicable only in case of the agricultural land in that case before ‘immovable property’ mentioned in section 5 in case of land of the ‘Rural area’ is to be read and imported in the section and in the section no such particular area having been mentioned the law should be read and to be considered as it is. Thereafter he has submitted that since the words “in rural areas” have not been incorporated in section 5 of the Ordinance, it is not permissible to read the same in section 5, which will amount to legislation.

            The learned Advocates for both the sides have cited several decisions of  the Sub-continent for the purpose of interpretation of section 5 of the Ordinance as to whether the benami transaction has been prohibited in case of the land of  rural area only or in case of urban area also. Section 5 of the Ordinance reads as follows:

“(1)      No person shall purchase any immovable property for his      own benefit in the name of another person.

(2)        Where the owner of any immovable property transfer or bequeaths it by a registered deed, it shall be presumed that he has disposed of his beneficial interest therein as specified in the deed and the transferee or legatee shall be deemed to hold the property for his own benefit, and no evidence, oral or documentary, to show that the owner did not intent to dispose of the beneficial interest therein or that the transferee or legatee holds the property for the benefit of the owner, shall be admissible in any proceedings before any court or authority.

(3)   Where any immovable property is transferred to a person by a registered deed, it shall be presumed that such person has acquired the property for his own benefit, and where  consideration for such transfer is paid or provided by any another person it shall be presumed that such other person intended to pay or provide such consideration for the benefit of the transferee, and no evidence, oral or documentary, to show that the transferee hold that property for the benefit of any other person or for the benefit of the person paying or providing the consideration shall be admissible in any proceeding before any court or authority.”

In order to construe the expression “immovable property” we are to construe it in its proper context to  find out if  the expression is clear and unambiguous. In construing any expression or any provision, it should not be construed in isolation. It has to be construed in its proper context to determine its meaning; in other words it should involve reading of the statute as a whole including the preamble and other provisions of the statute. In Attorney General V. Prince Ernest Augustus, [ 1957] 1 All ER 49, Lord Reid in the House of Lords observed:

“ For words, and particularly general words, cannot be read in isolation: their colour and content are derived from context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use “ context” in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in parimateria, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.”

and again:

“ On the one hand, the proposition can be accepted that

“….. it is a settled rule that the preamble “ cannot be made use of to control the enactments themselves “where they are expressed in clear and unambiguous terms.”

I quote the words of Chitty L.J., which were cordially approved by Lord Davey in Powell V. Kempton Park Racecourse Co. Ltd. ([1899] AC 143 at page 185). On the other hand, it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order bring in the aid of the preamble. It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.”

In that case the noble Law Lord Viscount simonds observed;

“I reject, therefore, the agreement in favour of restricting the meaning of the enacting words as far as it is based on any other consideration than that of the words of the statutes itself.”

In Amin Jute Mills Vs. Bangladesh, 29 DLR (SC)-85, D.C. Bhattacharya J. observed:

“It is now well-recognized, in this regard that although there was previously some difference of opinion among the distinguished jurists in England, the long title of an Act which is set out at its head giving the general purpose of the Act as well as the preamble of an Act which also recites the main purpose of the Act are part of the Act. One of the basic rules of interpretation of a statute is that to understand the meaning of a particular provision of an Act one is to read the Act as a whole, each part shedding light on the other and the following observation of Lord Wright in the case of Jennings V. Kelly decided by the House of Lords and reported in 1940 A.C. 206 same case (1939) All. E.R. 464 may be referred in this connection:”

“The proper course is to apply the broad general rule of construction, which is that section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest.”

“It is a settled Rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms.”

“There is however, another Rule of warning which cannot be too often repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recital. To do so would in many cases frustrate the enactment and defeat the general intention of the Legislature.” (From  para 11 of the report )

In the case of M/S. Speed Bride Navigation Company  and another Vs. Bangladesh reported in 27 DLR (1975)-170 where a similar view, as referred to above, was expressed at page 182 of the said report:

“When a court is confronted with the task of interpreting a certain provision of a statute, its main endeavour is to find out the intention of the law maker as expressed in the said provision. The Court is to read the intention from the language used in the statute. By employing the literal rule the ordinary and grammatical sense of the word should be accepted at the first instance”.

In the case of Anwar Hossain Chowdhury vs Government of the people’s Republic of Bangladesh reported in 41 DLR(AD) 165 our Appellate Division in paragraph 489 of the report quoted with approval the observation of the Indian Supreme Court in the case of Smt., Indira Gandhi V. Rajnarain reported in AIR 1975 (SC) 2299, as follows:

“The preamble, though a part of the Constitution is neither a source of power nor a limitation upon that of the ideological aspirations of the peoples.”……….

The Supreme Court of Pakistan in the case of Md. Ismail Vs. The State observed in paragraph 15 of the report [21 DLR (SC) 161] that the function of the Court is interpretation, not legislation in the following terms:

“15. The purpose of the construction or interpretation of a statutory provision is no doubt to ascertain the true intention of the Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those words are so clear and unmistakable that they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the courts are not concerned with the consequences of the interpretation however drastic inconvenient the result, for, the function of the courts is interpretation, not legislation.”

            The Indian Supreme Court in the case of Commissioner of Income Tax, Kerala Vs. Tara Agencies reported in (2007) 6 Supreme Court cases 429 held in paragraph 58 of the report (p-447) as follows:

“58. In Union of India V. Deoki Nandan Aggarwal a three Judges Bench of this Court held that it is not the duty of the Court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The Court cannot rewrite the legislation for the reason that it had no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there.”

            In  finding the meaning of the expression ‘immovable property’ it is necessary to take into consideration the purpose and object of the statute. In Ummida Khan v. Salahuddin Khan, 37 DLR 117, it has been held that the scheme and purpose of an Act is to be gathered from a reading of the enactment as a whole. In Amalendu Majumder v. Selimuzzaman, 39 DLR 140, it has been held that the ordinary meaning of a word used in a statute does not always meet the ends of a fair and reasonable construction. To find out the exact colour and shape of the meaning of the word one must look to the context in which it is used because the context the context often provides the key to the meaning of the word and the sense it carries. Lastly, In Doly Enterprise v. Additional District Judge, 59 DLR 37, reiterated the same principle stating:

“ It is also the settled Rule of construction that in arriving at the true meaning of any particular phrase available in the statute the same must not be viewed in an isolated manner from other context, rather, it must be viewed in its whole context, i.e., the title, the preamble and all other enacting parts of the statute wherever it is required to be interpreted.”

            The aforesaid decisions show that the preamble cannot control the meaning of the expression when its meaning is clear and unambiguous, but if the meaning is not clear and unambiguous, the preamble can be useful in finding out the true meaning of the expression in question.

            The learned Advocate for the appellant placed the entire Ordinance before the Court and submitted that the definition section defines words which are used in the Ordinance in relation to the provisions relating to agricultural land. Section 4 speaks of limitation on acquisition of agricultural lands. Section 6 and 7 of the Ordinance relate to homesteads ‘in the rural area’ and thus refer to homestead of agriculturist. Section 8, 9, 10, 11, 12, 13, 14 and 15 relate to bargadars and per force relate to agricultural lands. Section 16, 17, 18 and 19 relate to disputes between land owners and bargadars and settlement of such disputes and obviously involve agricultural lands. Section 20, 21 and 22 respectively deal with bar of jurisdiction, penalty and power to make rules.  Only section 5 deals with benami transaction. In this scenario doubt arises as to whether section 5 at all contemplates a provision involving non-agricultural land. The title, preamble and all other provisions of the Ordinance except section 5 clearly indicate the intention of the legislative authority to limit the land holding and to create a better relationship between agricultural land owner and the bargadar to achieve the purpose of maximizing agricultural production.

            From the language of the preamble of the Ordinance we  find that the law was enacted to bring reformation in the lands of the country. Under Chapter III of the Ordinance the provisions prohibiting beanmi transactions of immovable property have been enacted. Section 5 of the Ordinance provides that no person shall purchase any immovable property in the name of another persons. Section 5 (3) of the Ordinance provides that where any immovable property is transferred to a person by a registered deed, it shall be presumed that such person has acquired the property for his own benefit and where consideration of such transfer is paid by another person it shall be presumed that such other person intended to pay such consideration for the benefit of the transferee, and no evidence, oral or documentary , to show that the transferee holds the property for the benefit of any other person or for the benefit of the person paying the consideration shall be admissible in any proceeding before any court or authority.

In the case of Nurjahan Begum vs Mahmudur Rahman Mullick reported in 34 DLR (AD) 61 our Appellate Division observed that the practice of benami developed in the Indian Sub-continent long before its conquest by the Muslim and during the Muslim rule practice of benami received full recognition from the authorities and the Courts as well. The practice of benami was widely practiced throughout the Sub-continent is evident from the early history of the East Indian Company. The company started administering the province of Bengal in 1757. Law reports of cases involving benami transaction decided by Sudder Diwany Adalat and the Supreme Court of Bengal amply show that the benami system became an institution which was accepted in the common parlance though the Judge, used to refer to it as a ‘pernicious system’ but were obliged to recognize it and give effect to such transactions which were otherwise valid.

                        The meaning of provision of section 5 of the Ordinance is plain and unambiguous and if the submissions made on behalf of plaintiff-appellant that section 5 of the Ordinance is applicable only in the ‘rural area’ is accepted then the words “in rural areas” are to be read in section 5 of the Ordinance which will amount to amendment of section 5 and a legislation but the same  is only for the legislature.

            Before promulgation of the Ordinance the benami system was prevalent both in rural areas and in urban or municipal areas and it is only reasonable that the system, if prohibited, will be prohibited both in rural and urban or municipal areas. Merely because most of the provisions of the Ordinance related to rural areas  will not alter the meaning of the provisions of section 5 of the Ordinance nor the same will restrict the applicability of section 5 to rural areas only for the reason that the plain and literal meaning of the provisions of section 5 does not express such an intention.

            The legislature had the intention to bringing a reformation in acquisition of immovable property through benami transaction. In Bangladesh, in fact in most of the cases the black money is used in the name of benami transaction of immovable property which increases corruption in the society and in many cases the property does not go back to the real purchaser without  litigation.  By making provision of  section 5, the legislature had intended to prohibit benami transaction, so, it cannot be said that to prohibit benami transaction in the ‘rural areas’ only the law was enacted. The benami transaction of ‘immovable property’ stated in section 5  has got the same affect in case of urban area also.

Since the word ‘in rural areas’ have not been incorporated in section 5 of the Ordinance, it is not permissible to read the same in section 5 which will amount to legislation. Section 6 of the Ordinance  contains provisions relating to ‘homestead’. In that section  the words ‘in the rural area’ have been inserted in specific ward to denote that the provisions of section 6 is only applicable in case of rural area. If the legislature intended to mean that the benami transaction would be prohibited only in the ‘rural area,’ then it would have been mentioned in specific word as has been mentioned in case of ‘homestead’ in section 6 of the Ordinance and there is no reason for not inserting the same in section 5 of the Ordinance.  But the same was not done which shows that the legislature had no intention to restrict the application of section 5 to rural areas only.

            Considering all these aspects the legislature did not make it applicable in case of rural areas but had intended to make it applicable in the urban areas also and in our view due to that reason ‘ rural areas’ or ‘urban areas’ was not mentioned in the law. We do not find any ambiguity in the language of section 5 of the Ordinance. It is to be read as it is. By importing or adding the word ‘rural’ or ‘urban’ in the section it need not be interpreted otherwise. For the purpose of applicability of this section in the entire part of the country the legislature did neither used the word rural or urban nor used the word agricultural land or non-agricultural land in the section. So, we have found that by making the provision of  section 5  acquisition of the ‘immovable property’ by benami transaction has been prohibited. The plaintiff had no legal title in the suit property to get declaration that the defendant is benamdar and he has acquired the property through benami transaction and as such the suit is barred under section 42 of the Specific Relief Act.

            We do not find any reason to interfere with the judgment and decree passed by the trial Court rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure.

            In the result, the appeal is dismissed without order as to costs. Send down the lower court records.

 

M. Enayetur Rahim, J.  

            I agree.