Case No: Civil Appeals No. 4, 5, 6 and 7 of 1972
Judge: D.C. Bhattacharya,
Court: Appellate Division ,,
Advocate: Syed Ishtiaq Ahmed,Mr. M.H. Khondkar,,
Citation: 29 DLR (AD) (1977) 86
Case Year: 1977
Appellant: M/s Amin Jute Mills Ltd.
Respondent: Government of Bangladesh
Subject: Interpretation of Statute,
Delivery Date: 1976-5-7
Sayed A.B Mahmud Hussain, CJ.
Ahsanuddin Choudhury, J.
Kemaluddin Hossain, J.
D.C. Bhattacharya, J.
Fazle Munim, J.
M/s Amin Jute Mills Ltd. …………………………Appellant (In Appeal No. 4 of 1972).
M/s. Amin Textile Ltd…………………………….Appellant (In Appeal No. 5 of 1972).
M/s. Amin Oil Field. ………………………………Appellant (In Appeal No. 6 of 1972).
M/s Carpet Allied Products Ltd………………. Appellant (In Appeal No. 7 of 1972).
Bangladesh and another.................... Respondents in all the appeals
May 7, 1976.
E.P. Urban Immovable Property Tax Act (XI of 1957)
Section 1 (2)
The provisions of section 1(2) of E.P. Act extended the taxable area by means of the Notification which are not town or urban area, but are village.— The authority is competent to extend the provisions of the Act, by means of Notification, to villages other than town or urban areas in view of the words. “to such other areas in East Pakistan” in sub-section (2) of section 1 of the Act.
Cases Referred to-
Messrs Chittagong Jute Manufacturing Co. Ltd. Vs. Province of East Pakistan in P.L.D. 1966 Dacca 117; Jennings Vs. Kelly 1940 A.C. 206 same case (1939) All. E.R. 464; Vacher and Sons Ltd. Vs. London Society of Compositors 1913 A.C 107; Powell Vs. The Kempton Park Race Course Company Limited (1899) A.C. 143 at page 157; Attorney General vs. Prince Ernest Augustus of Hanover, 1957 A.C. 436 same case 1957 (1) All. E.R. 49; M/s Speed Bird Navigation Company and another vs. Bangladesh in (1975) 27 D.L.R. 170; Md. Rejaul Haque vs. Bangladesh m (1976) 28 D.L.R. 38.
M.H. Khandker, Senior Advocate, with Syed Mozaffar Hossain, Advocate, instructed by M.R. Khan, Advocate-on-Record-For the Appellant (In all the appeals).
Syed Ishtiaq Ahmed, Additional Attorney-General with Mahmudul Islam, Assistant Attorney-General, instructed by A.M.A. Khan Chowdhury, Advocate-on-Record—For the Respondent (In all the appeals).
Civil Appeals No. 4, 5, 6 and 7 of 1972.
(From the Judgment Order dated 19-6-70 passed by the Dacca High Court in Petitions No.504,505,506 and 407 of 1967).
These four appeals by special leave are at the instance of four Limited Companies operating certain factories in connection with their jute manufacturing business at Sholashahar within P.S. Panchalaish, District Chittagong and directed against a judgment of a Bench of Dacca High Court rejecting the petitions flied by the said Companies under Article 98 of the then Constitution of Pakistan by which certain notices issued by Respondent No. 2, the Assessing Officer, asking the said Companies to furnish returns in respect of their holdings for the purpose of imposition of tax under the East Pakistan Urban Immovable Property Tax Act, 1957 (East Pakistan Act XI of 1957) were challenged.
2. The notices asking for returns under the said Act were preceded by the Notification dated 30th January, 1958 issued by the Government of East Pakistan under sub-section (2) of section 1 of the Act, extending the Act, among other areas, to Paschim Sholashahar where the factories and properties of the appellants lie. The legality of this Notification was, however, challenged by two of the present appellants, namely, M/s Amin Jute Mills and M/s. Chittagong Jute Manufacturing Co. Ltd. before the Dacca High Court under Article 98 of the then Constitution of Pakistan on the ground that the Governor of East Pakistan was not competent to issue the Notification under the said section inasmuch as the Act omitted to specify the authority that could issue such a Notification.
3. The provisions of section 1 of the Act relating to its extent and commencement, as originally enacted, were to the following effect:
(2) It shall, in the first instance, extend to such areas as have been constituted municipalities under the provisions of the Bengal Municipal Act, 1932 of the Assam Municipal Act, 1932 and such other areas in East Pakistan as may be notified in the Official Gazette and shall be deemed to have come in these areas from the first day of April, 1957.
(3) The Provincial Government may by notification in the Official Gazette, extend this Act to such other areas in East Pakistan as may hereafter be constituted municipalities under the provisions of any of the said Acts with effect from such dates as may be specified in such notification, whereupon this Act shall apply to such areas from these dates."
4. A Division Bench of Dacca High Court having held in the said case of Messrs Chittagong Jute Manufacturing Company Ltd. Vs. Province of East Pakistan, P.L.D. 1966 Dacca 117 that the said Notification was illegal, because of non-mention of any authority competent to issue such Notification sub-section (3) of section 1 of the Act was amended by East Pakistan Act V of 1967 and by such amendment the Provincial Government of East Pakistan was mentioned as the authority competent to issue the Notification thereafter. The original sub-section (3) of Section 1 of the Act was entirely replaced by a new sub-section (3) by the Amending Act providing that "it shall extend to such areas as have been constituted towns under section 57 of the Electoral College Act, 1964." After these amendments Section 1 of the East Pakistan Immoveable Property Tax Act, stood in the following form:
"1. (1) The Act may be called the East Pakistan Urban Immoveable Property Tax Act, 1957.
(2) It shall extend to such areas as have been constituted Municipalities under the provisions of the municipal Administration Ordinance 196 land such other areas in East Pakistan as may be notified by the Provincial Government of East Pakistan in the Official Gazette and shall be deemed to have come into force in those areas from the first day of April, 1957.
(3) It shall extend to such areas as have been constituted towns under section 57 of the Electoral College Act, 1964 (Act IV of 1964)."
Section 8 of the Amending Act contained a validation provision which was to the following effect:
"Notwithstanding any judgment and decree, order or decisions of any court, including the High Court, to the contrary, anything done, action taken, order passed, notification issued or purporting to have been done, taken, passed or issued under the said Act before the commencement of this Act shall be deemed to have been done, taken, passed or issued under the said Act, as amended by this Act and shall have and shall be deemed always to have had effect accordingly."
5. After the amending Act had come into force as aforesaid, fresh notices were served upon the appellants seeking to impose taxes under the said Act in respect of their holdings in Paschim Sholashahar for the years 1957-58 to 1967-68, whereupon the said notices were challenged by the appellants before the High Court of East Pakistan by means of writ petitions under Articles 98 of the then Pakistan Constitution, as having been made without any lawful authority, on the contentions, inter alia, that the Urban Immovable Property Tax Act being applicable only to urban areas and Paschim Sholashahar being rural areas, the notification dated 30-1-58 purporting to extend the act to the said areas was void and inoperative, that there having been no lawful provision for creating any new municipal areas there could not be any lawful extension of the Act under section 1 (2) of the Act and that in any view of the matter there could not be any retrospective operation of the notification so as to make the appellants liable for the taxes prior to the notification dated 16-2-64.
The High Court of East Pakistan dismissed the said petitions negativing all the contentions of the appellants.
Special Leave to appeal was granted by the Supreme Court of Pakistan to consider the following question:
(1) Whether the expression ''such other areas" occurring in section 1(2) of the Urban Immovable Property Tax Act, 1957 means urban areas only or both urban and rural areas.
(2) Whether tax under the Act could be levied for the year 1957 although under the amending Act of February 1967 no area could be declared a town before 1964 in which year the Electoral College Act was enacted making provisions for constitution of towns.
6. Mr. M. H. Khondker, learned Counsel appearing on behalf of the appellants has submitted in respect of the first question that the provisions of the Urban Immoveable Property Tax Act as it appears from its very title as well as from the preamble are applicable only to urban properties and have absolutely no application to the properties in rural areas and that the properties of the appellants which have been sought to be taxed under the provisions of the said Act having been situated in the village Sholashahar which was being administered by a Union Council the impugned Notification by which the said Act was purported to have been extended to the said village' Sholashahar was without any lawful authority. According to the learned counsel, the learned Judges of the High Court having failed to properly notice the well-know rules of construction of a statute in construing the provision of section 1 (2) of the Act committed an error in interpreting the expression ''such other areas" occurring in the said section and in holding that the Notification dated 30-1-1958 was a valid notification under the law and was fully operative to make the Act applicable to Paschim Sholashahar. The learned counsel has contended that in order to understand the true meaning and real import of a particular expression occurring in a section of a legislative enactment it is necessary to read that section in the context of the whole enactment along with its title and preamble that the long title and preamble of East Pakistan Act XI of 1 957 which are parts of the said Act and are important guides to its interpretation clearly show that the expression "such others areas" means only such other urban areas and not rural areas and that as such the impugned notification having purported to extend the operation of the Act to certain rural areas has in excess of the jurisdiction of the issuing authority.
7. Learned Additional Attorney-General who has argued the case on behalf of the Government has, on the other hand, submitted that when the meaning of a section of a Statute or a part thereof is clear and unambiguous, the title or preamble of the said statute cannot be brought in for the purpose of curtailing or restricting the meaning and scope of the said section of the statute and that as the aid of the title or preamble can be invoked only in case of ambiguity or inconsistency in respect of certain provision made or expression used in the statute, the provision of section 1(2) of East Pakistan Urban Immoveable Property Tax Act being clear and unambiguous the "reference to the title or preamble of the Act for interpreting the said provision in the instant case is wholly irrelevant. Learned Additional Attorney-General has further submitted that whatever defect or infirmity there might have been in the Notification as issued on the 30th January, 1958 has been cured and perfected by the validation provision contained in the amending East Pakistan Act V of 1967.
8. A number of decisions have been cited and references to various authorities have been made at the bar on behalf of both parties. It is not necessary for our present purpose to-refer to all of them, as the principles for the exposition of which the said decisions and authorities have been referred are now well established, and we shall mention only more important of them to elucidate the particular points.
9. It is now well, recognised 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 it head giving the general purpose of the Act as well as the preamble of an act which also recites the main object 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 Vs. 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."
10. One can therefore very well refer to the title and preamble of the Act for the purpose of understanding the scope of the Act and appreciating its various provisions in their true perspective. As Lard Moullon observed in Vacher & Sons Ltd. Vs. London Society of Compositors 1913 A. C. 107 referring to the usefulness of the title of an Act.
"The title is part of the Act itself and it is legitimate to use it for the purpose of interpreting the Act as a whole and ascertaining its scope.''
and Coke is quoted in Craies on Statute Law (6th Edition) at page 199 as saying :
''The preamble of the Statute is a good means to find out the meaning of the Statute and as if it were a key to open the understanding thereof (I Inst. 79a)".
11. These are salutary maxims no doubt but their efficacy should not be exaggerated. If the words of a substantive provision of an Act are precise and unambiguous then the meaning thereof should not be restricted and controlled by taking recourse to the title or preamble of the Act. Lord Halsbury, L. C. in his speech in the case of Powell Vs. The Kempton Park Race Course Company Limited (1899) A. C. 143 at page 157 clearly stated the law in this regard in the following words:
"Two propositions are quite clear-one that a preamble may afford useful light as to what a statute intends to reach, and another that, if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment."
Lord Davey dwelt on this question further in his separate speech in the same case and made the following observation at page 185 of the Report:
''Undoubtedly I quote from Chitty L.J.'s Judgment words with which I cordially agree—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 But the preamble is a key to the statute and affords a clue to the scope of the statute when the words construed by themselves without the aid of the preamble are fairly capable of more then one meaning There is however another rule or warning which cannot be too open repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recitals to do so would in many cases frustrate the enactment and defeat the general intention of the Legislature. It may well be in this and in other cases that the Legislature taking the recited fact as the occasion of the enactment, has deliberately used large words to prevent the same kind of mischief in other forms."
12. The contention of Mr. M. H Khondker, learned Counsel for the appellant, is that having regard to the long title and preamble of the East Pakistan Urban Immoveable Property Tax Act the amended provision of section (1)2 of the Act authorising the Provincial Government of East Pakistan to extend the Act to "such other areas in East Pakistan" by issuing a Notification in the Official gazette must be construed to be referring only to such other urban areas in East Pakistan, and the Notification in question having purported to extend the Act to certain rural areas was dearly in excess of the jurisdiction of the Provincial Government.
13. The long title and the preamble of the Act have been worded almost in identical terms in the following manner:
"An Act to make an addition to the revenues .of East Pakistan and for that purpose to impose tax on lands and buildings in urban areas.
Whereas it is necessary to make an addition to the revenues of East Pakistan and for that purpose to impose a tax on the lands and buildings in urban areas;
It is hereby enacted as follows:"
14. As it appears from the title and the preamble quoted above, the object of the legislation was to augment the revenues of East Pakistan by enabling the provincial Government to levy a tax on lands and buildings in urban areas. The reference to urban areas in the title as well as in the preamble as the area of proposed taxation may be taken to have been significant in the sense that in the opinion of the Legislature the lands and buildings in urban areas could be fruitful sources of taxation for the purpose of increasing the revenue receipts of the Government.
15. It should however be noticed that in 1957, when the Act was promulgated, there was no statutory definition of an urban area either in the said Act or in any other Act in pari materia, and therefore it should be understood in its ordinary dictionary meaning which is pertaining to a city or town. Town also was not defined in any Act. The Bengal Municipal Act 1932 which came into force on the repeal of The Bengal Municipal Act, 1834 and was in force in the whole of Bengal excepting the city of Calcutta contained provisions for constituting a town and its neighbouring area a municipality and for administration of such a municipality. The relevant provision of section 6 of the said Act was to the following effect:
"6. (1) The Provincial Government may, by notification and by such means as may determine, declare its intention.
(a) to constitute any town, together with or exclusive of, any railway station, village land or building in the vicinity of any such town a municipality under this Act:
Provided that a declaration shall not be made (2) under clause (a) unless the Provincial Government is satisfied that three fourths of the adult male population of the town to which it refers are chiefly employed in pursuits other than agriculture and that such town contains not less than three thousand inhabitants, and an average number of not less than one thousand inhabitants to the square mile of the areas of such town;"
16. What was considered in the aforesaid provision to be the characteristic of a town which could be constituted a municipality appears to be that the dominant way of life of the inhabitants of such an area would be other than agriculture and that there would be a kind of close or compact habitations. This is consistent with the ordinary concept of a village and a town; a village is regarded in general to comprise mainly an agricultural area with a sparse population, while a town generally denotes a comparatively concentrated population mainly of non- agricultural pursuits.
17. The East Pakistan Urban Immoveable Property Tax Act, when enacted in 1957, provided in section (2) of the Act that it should in the first instance, extend to the areas within the municipalities constituted under the provisions of the Bengal Municipal Act, 1932 or Assam Municipal Act, 1933 and then to such other areas in East Pakistan as might be notified in the Official Gazette. On a perusal of the said provision it appears to be clear that full discretion was allowed to the authority concerned to choose such other areas for the extension of the Act thereto as might be considered fit by the said authority for the purpose of the Act. The purpose of the Act was to collect additional revenue by imposing a tax on the annual value of lands together with building, and as the owners of such lands with buildings who are capable of paying any substantial amount of tax thereon are likely to be found only in an urban area the Legislature may be taken to have deliberately used the term 'urban' both in the title and the preamble of the Act. But in a changing society where the process of urbanisation was growing apace, lands could hardly be permanently classified as rural and urban, and therefore, provisions were made in the Act for enforcing it not only in the recognised towns which had been or would be constituted municipalities and brought under their administrative control, but also in the areas which, though not constituted municipalities, yet might have been considered suitable for the purpose of collection of revenue by levying tax on the properties lying in the said areas, and notified to the said effect in the official Gazette. Learned Counsel for the appellant has strenuously argued that the authority concerned had no absolute discretion to choose and notify such other area for enforcing the Act thereat but that its power in this regard was limited to urban areas only and that the areas notified by the impugned notification being basically villages administered by Union Councils and being no urban areas, the said notification was without lawful authority. It has already been mentioned that in 1957 there was no statutory definition of what a town or an urban area was, and the existence or absence of municipalities was not the determining factor as to the character of such an area, namely, whether urban or rural. It is well known and Mr. M.H. Khondker has conceded it at the bar that there were certain localities in the country in the past which were popularly recognised as towns or urban area, there being certain sub-divisional headquarters among them, but were not constituted as municipalities and were being administered by village Union Boards or Union Councils for many years. We have also noticed in the provision of section 6(1) (a) of the Bengal Municipal Act, 1933 that even villages lying in the vicinity of a town could be brought under the administration of a municipality. Having regard to the title and preamble of the Act, it may of course be plausibly argued that the Legislature enacted the measure with an idea that it was the owners of the lands and buildings in an urban area who would be the possible source of the additional revenue of the Provincial Government, but because of the uncertain position as to what an urban area was, as has been referred to above, it seems, the Legislature advisedly did not limit the discretion of the authority concerned by qualifying the expression 'such other area' with the use of the word 'urban' therewith. The main purpose of the Act was to collect additional revenue for the Provincial Government, and for the said purpose, the Legislature devised measures for imposition of a kind of property tax upon a class of well-to-do persons whose means of livelihood, in all likelihood, is other than agriculture and who, in usual course of things, reside in towns and similar localities. Reading the provision of section 1(2) of the Act as a whole it does not appear that the said provision of section 1(2) of the Act is uncertain or ambiguous in any way or that the absence of the word 'urban' in the expression 'such other areas' as used in the said section, leads to any inconsistency or injustice requiring us to read the additional word 'urban' in the said expressions as an intention of the Legislature.
18. It is pertinent to refer in this connection to the illuminating views of certain distinguished law Lords expressed in their speeches before the House of Lords as to the relative importance of the preamble and an enacting provision of a statute in construing such a prevision, in the celebrated case of Attorney-General vs. Prince Ernest Augustus of Hanover, 1957 A.C. 436 same case 1957(1) All. E.R. 49, 1 on which reliance has been placed by Mr. M. H. Khondker, as well as the learned Additional Attorney-General. This case involved the interpretation of a statute of 1705 enacted during the davs of Queen Anne, the Title of the Statute being:
"An Act for the Naturalisation of the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover and the Issue of her body."
It was recited in the preamble of the Act:
....................it is just and highly reasonable that they (i.e., Princess and the issue of her body and all persons lineally descending from her) in your Majesty's life-time should be naturalised............'
but the enacting part of the Act provided
"Princess..................and the issue of her body, and all persons lineally descending from her, born or hereafter to be born, be and shall be ............ deemed .............. natural born subjects of this Kingdom....... "
19. It will appear that the Title of the Act, contemplated the naturalisation of Princess Sophia and the issue of her body only. The preamble no doubt enlarged the category of the persons covered by the Statute by including, "all persons lineally descending from her but contemplated that all of them should be naturalised during the life time of Her Majesty, implying thereby that the Act contemplated the naturalisation of such lineal descendants of Princess Sophia who were born during the life time of Queen Anne. The operative part of the Statute, however, purported to extend the benefit of the Act not only to Princess Sophia, the issue of her body and the persons lineally descending from her born during the life time of Queen Anne, but to all lineal descendants born or hereafter to be born. Relying upon this provision of the Act, H.R.H. Prince Ernest Augustus of Hanover who was a lineal descendant of Princes Sophia, claimed himself to be a British subject, pleading that the positive provisions of the Act could not be cut down or restricted by the preamble of the Act or other considerations in the said excerpts, with which we find ourselves in respectful agreement.
20. The claim of the Prince was, however, resisted by the Attorney-General on the contention that the generality of the words used in the Statute must be restricted to persons born in the life time of Queen Anne by construing the Statute with reference to the historical and political background, the state of the relevant law as well as the verbal context of the Act itself, including the preamble in particular.
21. It has been pointed out in this case that for the proper appreciation of the true meaning and import of a particular provision of an enactment, the enactment shall have to be read as a whole together with its context of which the preamble is an important part, but if the enacting provision is precise and clear, the preamble should not be used for cutting down or restricting its meaning. Viscount Simonds, however, explained the importance of the preamble in his speech in the said case in the following words:
''My Lords, the contention of the Attorney-General was, in the first place, met by the bald general proposition that where the enacting part of a Statute is clear and unambiguous, it cannot be cut down by the preamble, and a large part of the time which the hearing of this case occupied was spent in discussing the authorities which were said to support that proposition. I wish at the put-set to express my dissent from it, if it means that I cannot obtain assistance from the preamble in ascertaining the meaning of the relevant enacting part. For words, particularly general words cannot be read in isolation; their colour and contents are derived from their 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 law, other statutes in pari materia, and the mischief of which I can, by those and other legitimate means, discern the Statute was intended to remedy."
22. Referring to the proposition that the preamble cannot be made use of to control the clear and unambiguous provisions of an Enactment, the noble Lord added:
"To say then that you may not call in aid the preamble in order to create an ambiguity in effect means very little, and with great respect to those who have from time to time invoked this rule, I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless these is a compelling reason for it. And I do not propose to define that expression except negatively by saying (as I have said before) that it is not to be found merely in tne fact that the enacting words go further than the preamble has indicated."
23. The rule of statutory construction with reference to the preamble of an Act was fury ther elucidated in the speech of Lord Normand in the following terms:
"Where there is a preamble, it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act, as are other relevant enacting words to be found elsewhere in the Act or ever in related Acts. There may be no exact correspondence between preamble and enactment, and the enactments may go beyond, or it may fall short of the indications that may be gathered from the preamble."
24. In the light of the observations as to the rule of statutory construction with reference to the preamble of an Act, as quoted above from the speeches of two of the eminent Law Lords, the House of Lords, held in that case that the preamble in that statute of 1705, even if construed to bear tie narrow meaning of being referable to the lineal descendants of the Princess born in the life-time of the Queen, had no compulsive force of altering radically the plain meaning of the enacting words which clearly meant all lineal descendants born 01 hereafter to be born and that the enacting words went beyond the preamble. Prince of Hanover was granted naturalisation in that case on the basis of the aforesaid view of the matter.
25. We think that the rule as to the importance and limitation of the preamble of an Act in the construction of a substantive provision of the Act has been quite lucidly explained
26. We may mention here that a Bench of the High Court Division of this Court had an occasion to consider the same questions as to the role a long title and preamble of an Act may have in the interpretation of the Act, while interpreting a certain provision of Bangladesh Abandoned Property (Control, Management .and Disposal) Order, 1972 (President's Order No. 16 of 1972) in the case of M/S. Speed Bird Navigation Company and another Vs. Bangladesh, reported in 27 DLR (1975) 170, where a similar view, as referred to above was expressed in the following passage 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 lawmaker as expressed in its 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. But if such acceptance would lead to an absurdity or inconsistency, the true meaning is to be gathered from the entire statute, each part throwing light on the other part and the plain meaning may be departed from according to what is known as the golden rule of interpretation. In such a case, the court is to look into the general policy of the statute and the evil which was sought to be removed by that legislation. In the said circumstance, the search for the intention of the law-maker is therefore to be made not only from the plain meaning of the words used in the statute but also from-a consideration of the special conditions which occasioned the making of that particular law and the mischief which it was sought to remedy. A long title and the preamble of a statute undoubtedly elucidate the intent and design of the law-maker and indicate the purpose and scope of the legislation. When the plain meaning of the words used in a particular provision leads to a kind of absurdity or inconsistency or gives rise to some ambiguity, the long title and the preamble of the statute may sometimes be a very valuable guide to the true meaning of the said words."
27. This question, namely, how far the enacting provision of a statute could be controlled by the preamble of the statute was considered by another Bench of the High Court Division in the case of Md. Rezaul Hoq Vs. Bangladesh, reported in 1976 28 DLR 38 and it has also been held there that there being no uncertainty or ambiguity in the enacting provision, the aid of the preamble cannot be invoked for controlling or restricting the meaning of such provision.
28. Let us now examine the provisions of the Act as a whole in the light of the principle referred to above in order to find out the legislative intent as to whether the expression, 'such other areas' as has been used in section 1(2) of the Act should be read as such other urban areas.
The main object of the Act as has been spelt out in the preamble was to add to the revenue of the Provincial Government by levying a kind of property tax upon a class of well-to-do persons having buildings in urban areas. We have already seen that 'towns' or 'urban areas' had no statutory definitions or precise connotation at the time when the Act was promulgated and such terms meant, in ordinary parlance, municipalities and other areas where the dominant pursuit of life was other than agriculture.
29. In addition to providing that the Act would come into force in all municipal areas, sub-section (2) of section 1 confers upon the authority concerned the power of extending the Act such other areas as it may notify in the official Gazette. The Act is silent as to the nature of areas, that is to say, whether urban or rural, which can be notified under the said provision and on a plain reading of the said provision the authority concerned appears to have unrestricted power to extend the Act to any area outside the Municipality as it may think fit or proper. Sub-section (3) of section 1 originally provided that the Provincial Government might extend the Act to such areas as might be subsequently constituted municipalities, under the relevant Municipal law and, after the coming into force of the Electoral College Act, 1964, it has been provided that the Act shall extend to such areas as have been constituted towns under the said Act. Section 2 defines certain expressions used in the Act. Section 3 lays down that the Provincial Government shall levy and realise a tax on lands and buildings on the basis of their annual value as specified in the schedule. Section 4 enacts that the annual value of such lands and buildings in Municipal areas or Towns shall mean the annual value as determined under the relevant municipal or other law and in areas notified under section 1(2), it shall mean the annual letting value of the holding as may be determined in the prescribed manner. Section 5 provides that when the annual value of a holding is revised or altered in accordance with the provision of the relevant municipal law or when that in areas other than municipal areas or towns is revised or altered under the prescribed rule, such revised or altered annual value shall be deemed to have been made under this Act. Section 6 recites the kinds of the buildings and lands which are exempted from any levy of the tax. Clause (f) of that section mentions vacant lands as such lands. Section 7 in its original form provided that in municipal areas the tax would be assessed and collected in the same manner as the Municipality did under the relevant municipal law and in areas in which there was no Municipality, it, would be assessed and collected in the prescribed manner. By subsequent amend-ment, however, it has been generally provided that such tax will be assessed and collected in the prescribed manner. Section 8 provides for payment of penalty for default in payment of the tax. Section 9 declares that all dues payable under the Act shall be the first charge upon the defaulting holding as well as the moveable property found thereat. Section 11 makes the tan payable by the owner of the holding in respect of which the tax is assessed but section 11A, which has been subsequently introduced, mates it payable by the occupier also, Section 14 confers rule making power upon the Government for carrying out the purpose of the Act.
30. From a perusal of the entire provisions of the Act it is thus clear that it was contemplated at the time of making of the law that the tax would be levied not only on the lands and buildings within the Municipal areas but also in areas which are outside the Municipal administration and were being administered in accordance with the provisions of the Bengal Village Self Government Act, 1919 through a body called Union Board.
31. As we have observed, section 3 has provided for levy of the urban immoveable tax on the annual value of the lands and buildings situated in the areas in which the Act has come into force. We have seen, section 4 of the Act has enacted that the annual value of the lands and buildings in municipal areas mean the annual value as determined under the Municipal law and that the annual value of the lands and buildings outside the municipal areas shall be determined 'in the prescribed manner', which means "according to rules framed by the Government under section 14 of the Act. Accordingly, the East Pakistan Urban Immoveable Property Tax Rules, 1957 was framed by the Government and Chapter II of the said Rules lays down procedure as to how the tax will be levied in non-municipal areas. According to the said Chapter it is the Assessing Officer, that is, Agricultural Income-tax Officer (subsequently termed Taxation Officer) appointed under the Bengal Agricultural Income-Tax Act, 1944, who has been given the authority to assess and realise the said tax in non-municipal areas. Rule 4 of this Chapter provides that the annual letting value of a holding shall be deemed to be gross annual rental at which, the holding may reasonably be expected to let, regard may be had to the rent of the holding in the vicinity of the like size and amenities. The remaining rules relate to the procedure for determination, revision, or alteration of such valuation. Under the relevant municipal law also, the annual value of a holding is the gross annual rental at which the holding may reasonably be expected to let (vide section 128 of the Bengal Municipal Act, 1934). The difference lies only in the personnel of the-assessing authority and the manner of the assessment.
32. We way take note of the fact that the entire area of the country was broadly divided into two classes of areas, namely, municipal and non-municipal, for the purpose of local administration and there was nothing incongruous or inconsistent in giving full discretion to the Government, which alone was concerned with the collection of additional revenue by levying the tax, in choosing such non-municipal areas as may be considered fit for the purpose of enforcement of the Act. The whole basis of the argument of learned Counsel for the appellants appears to be that tne provisions of the Act have no application outside the Municipality and as the notification purported to extend the operation of the Act to areas which were still regarded as villages and administered by Union Board or Union Councils, it was without jurisdiction simply on that account. From the provisions of the Act as well as the Rules to which reference has been made above it is clear that such an argument is misconceived.
33. The reading of the word 'urban' which had no statutory or specific connotation at the time of the making of the Act, for the purpose of qualifying the expression 'such other areas' occurring in section 1(2) of the Act would rather create a good deal of confusion instead of furthering the object of the Act. The Provincial Government which was in collecting a substantial amount of the tax is expected to choose such non-municipal areas as are likely to comprise lands and buildings having good letting value. In villages as such, where agriculture is the dominant pursuit of life, one can hardly expect holding having food letting value. It is in certain areas which are developed as centres of administration, commerce or industry that one can expect concentration of numerous people in search of, or in connection with, their jobs, resulting in appreciable demand for houses for there and only in such areas houses having letting value oh which the tax may be levied are likely to be found. These areas may be partly urbanised in the sense that they have completely lost their agricultural character or they may be partly urbanised or partly agricultural, but all the same, they will be situated in non-municipal areas within the local administration of Union Boards or Union Councils.
34. Having regard to the fact that the expression ‘urban' had no fixed and precise criterion, it would be neither reasonable nor necessary to require the Govt. before it exercised its power under section 1(2) of the Act in respect of certain non-municipal areas, to determine Whether such area was urban. Under no principle or rule of interpretation of statute the Court does appear to be entitled to read the additional word 'urban' in section 1(2) of the Act, which is not there.
35. Some Have after the enactment of the East Pakistan Urban Immoveable Property Tax Act, 1957, the nature and manner of local administration underwent certain changes in the promulgation of The Basic Democracies Order, 1959 by repealing Bengal Village Self- Govemtnent Act, 1919. The object of this Order was to provide for the constitution of basic democratic institutions and to consolidate and amend certain laws relating to local Government. Under this Order, basic democratic institutions were set up throughout the country in municipal as well as in non-municipal areas, but at that time the function of local government was given to such institutions as were newly constituted in the villages only, which replaced the Union Boards and came to be known as Union Councils. In municipal areas, these institutions came to be known as Town Committees or Union Committees but they did not replace the already existing Municipal bodies, which now co-existed with the said basic democratic committees after the said Order had come into force. According to article 31, such Committees had to 'perform functions, relating to national reconstruction, social uplift etc. in addition to those which were specifically assigned to them. Municipal bodies or Cantonment Boards also could delegate some of their functions to these Committees. The expression 'urban area' was for the first time defined in Article (3)(55) of the said Order in the following manner.
"Urban area means an area within the jurisdiction of a municipal body or a Cantonment Board, and includes any area which the Government may, by a notification in the official Gazette, declare to be an urban area for the purpose of this Order."
36. This definition clause also appears to leave the decision of declaring a certain area outside municipal or cantonment areas to be an urban area solely to the discretion of the Government. It may also be mentioned that under Article 8(2) of the Order, the Divisional Commissioner was given the power to divide the urban and rural areas of Thana within his jurisdiction separately into a number of areas for the purpose of the Order and declare by a Notification each such area to be Town or Union, provided that no area which was not included in such urban areas could be declared to be a Town.
37. The Municipal Acts of Bengal and Assam were repealed by the enactment of the Municipal Administration Ordinance, 1960 with the object of consolidating and amending the law relating to municipal administration, and the Ordinance provided for the constitution of a Municipal Committee in every municipality. Under section 7 of this Ordinance, the Government could declare any urban area other than a cantonment to be g municipality, extend, curtail or" otherwise alter the limits thereof or declare that any urban area should cease to be a municipality, according to this Ordinance, the expression 'urban area would have the same meaning as assigned to it in the Basic Democracies Order. The Electoral College Act, 1964 was enacted for the Constitution of Electoral College for the purpose of election of President and members of the National and Provincial Assemblies under the then Constitution of Pakistan and section 57 of the said Act provided that for the purpose of conferring on the members of the Electoral College functions in relation to matters of local government, the Provincial government should arrange the electoral units in the rural and urban areas into groups so that each group was a union, or as the case may be, a Town and declare that, after the elections were over, the members for the electoral units within a Union or Town should constitute the Union Council or Committee for the Union, or, as the case may be, the Town Committee for the Town. Under this provision, the Provincial Government was given the power to make a particular urban area a Town and declare that the members elected from such an area for the purpose of election should constitute a Union or Town Committee. From these provisions also it appears that the Government concerned had its full discretion in declaring a particular area to be an urban area and making an urban area a Town.
38. From an examination of all the provisions of The Urban Immoveable Property Fax Act, 1957, as well as on a consideration of the legislations referred to above which are in pari materia it appears to us to be quite natural and reasonable for the Legislature not to limit or circumscribe the authority of the Government concerned in selecting areas outside the jurisdiction of municipalities, for the purpose of the extension of the Act to such areas and we do not find any compulsive reason for reading .the additional word 'urban' in section 1(2) of the Act. The Notification which has been impugned in the cases cannot therefore be held to be invalid merely because, as has been argued, it relates to a rural area.
39. We may also take cote here of the contention of learned Additional Attorney-General, which seems to be not without force, that even if it is conceded that there was the defect in the notification, as alleged by the appellants, in its being sought to be applied to an area which was outside the pale of the East Pakistan Urban Immoveable Property Tax Act, that defect has been cured and corrected by the validation provision as contained in section 8 of the Amending Act. (East Pakistan Act V of 1967). Although the immediate cause for enacting the said Amending Act was the judgment of the Dacca High Court declaring the self-same Notification as issued by the Provincial Government invalid on the ground of non-specification of the name of the issuing authority of such Notification in Section 1(2) of the Act, the provision of section 8 of the Amending Act is quite general to cover this Notification, purporting to have been issued under the present Act before the commencement of the Amending Act, which may have been defective on any ground, whatsoever. According to the said provision notwithstanding any defect the Notification dated 30-1-58 purporting to have been issued under the Act shall be always deemed to have been rightly issued under the said Act and shall be deemed to have had effect accordingly.
40. The contention of learned Counsel for the appellants as to the invalidity of the Notification on account of its being issued in respect of certain rural areas is, in the next place, essentially one of fact. Even if it is assumed that the Act could not be brought into force in any area which was not urban, the appellants, for their success, are faced with the task of showing that Mouza Sholashahar was not really urban within the meaning of the Act. There having been no statutory definition of the term, we shall have to go by the dictionary or popular meaning of the term.
41. The whole argument of learned Counsel for the appellants in this regard is based upon the assumption that the areas mentioned in the impugned Notification were all rural areas. For the purpose of showing the rural character of the said areas, learned Counsel has merely pointed out that all of these areas have been described as villages which were admittedly outside the limits of stay Municipality. On referring to the various provisions of the Act and the Rules thereunder, we have already observed that such view of learned Counsel is manifestly wrong. The provisions of the Act and the Rules thereunder are dear enough to show that the field of their operation lies within the municipal as well as non-municipal areas. If The Act itself contemplates that it has its application, not only in municipal but also in non-municipal areas, it can naturally be concluded that an urban area—if that was the only area where the Act could be enforced, as has been argued on behalf of the appellants, might be found in non-municipal areas as well, which would necessarily comprise areas described as villages. The description of the areas as villages in the impugned notification is therefore no answer to the question, whether the areas mentioned in the Notification was urban or rural.
42. We have already noticed that there was no statutory definition of an urban area at the time when the impugned Notification was issued and we shall, therefore, have to understand the expression in its ordinary popular sense. The appellants have made out a case in paragraph 1 of their writ petitions before the Dacca High Court in the following manner.
"M/s.....................a limited Company………….. have their factories etc. of their jute manufacturing business at village Sholashahar, P.S. Panchalaish, District Chittagong. The said village Sholashahar and/or the area and/or the sites of the -factories etc. of the said Company are rural area, although the municipal limits of the Chittagong Municipality Ms been purported to be extended to Paschim Sholashahar by Notification No. S-ni/38-4/65/857-16th August, 1965. The said Company had been paying union rates for their aforesaid factories and offices ever since the establishment of these factories at the said village."
43. It has already been pointed out that the first part of sub-section (2) of section 1 and sub-section (3) thereof make the Act applicable to the present and future municipal areas respectively, but the second part of sub-section (2) definitely contemplates non-municipal areas to which the Act may be extended by issuing a Notification thereunder. Similarly, sections 4, 5 and 7 (as it stood before its amendment) of the Act as well as Chapter II of the Rules thereunder specifically refer to non-municipal areas to which the Act may be operative. The existence or non-existence of a Municipality or payment of Municipal or union rate thereunder cannot be a criterion for an urban or rural area, as has been sought to be argued on behalf of the appellants, if the Act was intended by the Legislature to be operative only in urban areas.
44. The Province of East Pakistan in its affidavit-in-opposition controverted the appellants' ease that the area in dispute was a rural area and made the following averment in paragraph 4 of its affidavits-in-opposition:
“....it is stated that the Mouza West Sholashahar where the petitioner's holding stands is not at all a village in any standard as a village is understood but that it is highly developed new urbanised area of Chittagong town; that the area in question has a great number of factories including residential and highly developed industrial area with beautiful modern roads, electricity, and all town facilities; that a number of foreigners live in these beautifully built residential houses paying high rent in that area and that petitioner's factory in this West Sholashahar the whole area of which is more urbanised than many parts of Chittagong main town itself with factories, new houses, roads, light etc ......."
45. The appellants in their affidavits-in-reply filed before the High Court do not appear to have seriously disputed the correctness of the aforesaid statements made by the Government of East Pakistan as to the state of development of the village Sholashahar, but have stated their case on this point in paragraph 4 of their Affidavits-in-reply in the following way:
"That the deponent (i.e., of the affidavit-in-opposition) forgets the fact that the present Administration of the country has developed the whole Pakistan and mostly villages by industrialisation, necessarily by constructing roads providing electricity and modern residential houses, but the same have not automatically transformed the villages into towns and/or the rural areas into urban areas.
That when an area grows into a town law provides for a procedure to take the same into the category of towns and to give to it that status and to apply this or that particular law thereto as an urban area. That unless that is done by law, the so-called highly developed, urbanised, more urbanised or new urbanised area remains rural."
46. We thus find that the factual state of development of the village Sholashahar and a kind of urbanisation of that area in the close proximity of the town of Chittagong as a result of the setting up of a large number of factories, construction of many residential buildings, laying of modern roads and electrification of the area are not disputed. What was contended in the said paragraph and what has been, indeed, the main burden of the argument of learned Counsel for the appellants is that the village Sholashahar may have been in fact an urban area, but it was in law a village, and not an urban area, inasmuch as the said village was not constituted a municipality or town under any law. We have already noticed that there having been no statutory definition of an urban area and the provisions of the Act and the Rules framed thereunder having clearly shown that the said Act was operative also in certain area outside a municipality, the said argument of the appellants has absolutely no force. If, however, notwithstanding the absence of a statutory definition of an urban area it is assumed that what was intended by the Legislature, in authorising an appropriate body to extend the Act to certain other area outside any municipality, was that such other area must be urban area, it will be extremely difficult to say that the village Sholashahar was not an urban area in its ordinary connotation or popular sense at the time when the impugned Notification was issued. It is, therefore, abundantly clear that even if the contention of learned Counsel for the appellant that in interpreting the provision of section 1(2) of the Act we should read and understand the expression 'such other areas' occurring in the said provision as 'such other urban areas', is acceptable to be correct— we have, of course, already held that such a contention is not well founded according to the well-recognised rules of statutory interpretation—the Notification under challenge cannot be held to be bad on the ground that the mouza Sholashahar was a rural area and not an urban area.
47. It has already been observed, that the expression 'urban area' was given a sort of Statutory status on the promulgation of the Basic Democracies Order, 1959 and on 19-2-64 the mouza Sholashahar was declared to be an urban area for the purpose of the said Order and on 16-8-65 the said mouza was included within the Municipality of Chittagong by virtue of a Notification issued under section 6 of the Municipal Administration Ordinance, 1960. This mouza was also constituted an Electoral College and declared to be a Union of a Town by a Notification under section 57 of the Electoral College Act, 1965.These Notifications bear eloquent testimony to the process of development and urbanisation which completely changed the rural character of the disputed mouza.
48. After the first of the two questions for which leave was granted has been answered in favour of the Respondent, the second question which was formulated on the assumption of a favourable answer for the appellants has lost all of its relevance. Having regard to the contentions raised in these appeals, the second question does not appear to have been happily framed. What was meant by this question seems to be that the urban property tax, if at all, could be levied on the lands and buildings situated at Sholashahar, only after the declaration of the said village to be an urban area under the Basic Democracies Order in 1964 or its inclusion as a part of Chittagong Municipality under Municipal Administration Ordinance or its declaration as a Union of a town under the Electoral College Act in 1965 and as such, no levy of the tax could be lawful before such declaration or inclusion. As we have held that the validity of the Notification dated 30-1-58 is beyond any dispute, the question whether levy of the tax before the declaration of the village Sholashahar an urban area or its constitution as a municipal area does not at all arise. In view of the conclusion at which we have arrived as to the interpretation of section 3(2) of the Act, namely, that the authority concerned had the unrestricted power to choose any area outside the municipal area at its discretion for the purpose of the extension of the Act and that the validity of the Notification cannot be challenged on the ground that the mouza Sholashahar to which the Act was purported to be extended was not an urban area, there is absolutely no scope for any doubt as to the authority for the levy of the tax after the said Notification came into force.
49. Before parting with this case, we may, however, take notice of one of the points which has been vigorously urged at the bar on behalf of the appellants in this connection. Mr. M. H. Khondker, learned Counsel for the appellants, has argued that the mouza Sholashahar having been constituted a part of a Union Council under the Basic Democracies Order, 1959 and Article 6 of the said Order having provided that the provisions of the Order shall take effect notwithstanding anything inconsistent therewith contained in any other law relating to local Government and that any conflicting provision of such law shall be deemed to have been amended so as to be in conformity with this Order, the provisions contained in the Bengal Municipal Act, 1932 and the Assam Municipal Act, 1923-or since their repeal, the Municipal Administration Ordinance, 1960 relating to the inclusion of further areas within a municipality became inoperative and as such the notifications purporting to constitute the lands of the mouza Sholashahar an urban or municipal area were nothing but futile exercise. His argument appears to have been advanced without noticing the extent end scope of the Basic Democracies Order. It is no doubt true that the Basic Democracies Order covered the entire area of Pakistan, but we have already pointed out that it repealed the Village Self-Government Acts but did not repeal the Municipal Acts with the result that the self-Government institutions functioning in the villages outside the Municipal and Cantonment areas were completely supplanted by the Basic Democratic institutions, namely, Union Councils in the villages. But in areas within the limits of a Municipality or Cantonment, the relevant Municipal body or Cantonment Board continued to function alongside with the Union or Town Committee which was a newly created basic democratic institution under the Order. Their functions being different and complementary, as it appears from Article 31 of the Order, there appears to have been little conflict between them or between the provisions of the respective enactments so as to invite the operation of Article 6 of the Order. The provisions of section 19, 20, 113 and 114 of The Municipal Administration Ordinance, 1960, which was enacted' soon after the promulgation of the Basic Democracies Order, may be pertinently referred to in this connection. Section 19 of the ordinance provides for delegation of certain functions of a Municipal Committee constituted under the Ordinance, to the Union Committees within the municipality and section 20 directs the Municipal Committee to co-ordinate the activities of such Union Committees. Section 113 contemplates the joint functioning of a Municipal Committees and a local council through the creation of Joint Committees and section 114 provides for the resolution of the disputes between a Municipal Committee and a Local Council. From these provisions also, it is clear that, so far as municipal areas were concerned, the underlying concept of the Basic Democracies Order was a kind of harmonious operation of its provisions along with those of the relevant Municipal law and the Order does not appear to have introduced any conflict between them. Section 6 of the Bengal Municipal Act, 1932 which authorised the Government to constitute a Municipality, or to extend or alter its limits does not seem to have been affected in any way by the promulgation of this Order. Section 7 of the Municipal Administration Ordinance which has come into force on the repeal of the Municipal Acts and after the enactment of the Basic Democracy purports to preserve similar rights for the Government, when it has provided that the Government may declare any urban area other than a Cantonment to be a municipality and extend, curtail or otherwise alter the limits thereof and else to declare that any urban area shall cease to be a municipality from a certain date. It is, of course, correct that according to the said provision the Government can exercise such powers in respect of only an urban area, but now that the said expression was statutorily defined in Article 3(55) of the Order, according to which the Government was given the power to declare any area outside a Municipality or a Cantonment to be an urban area for the purpose of the order, and that under Article 8(2) of the Order, a Divisional Commissioner was given the power to declare an urban area to be a Town, there seems to have been little difficulty in the way of constituting a new Municipality, or a Town or extending or altering the limits thereof. There appear to be little force, therefore, in the contention of learned Counsel for the appellants that after the promulgation of the Basic Democracies Order the power of the Government to declare a new Municipality or alter the limits thereof came to be a dead stop. Section 57 of the Electoral College Act, 1965 conferred further power upon the Government to constitute a Committee for the Union, or as the case may be, the Town Committee, for the Town. On a critical review of all the relevant legislations relating to local administration we do not find any substance in the contention of learned Counsel for the appellants that the legal authority of the Government to constitute any new Municipality or a Town or to extend the limits of the existing ones was put into abeyance because of the enactment of the Basic Democracies Order.
We, therefore, do not find any substance in all these appeals which are dismissed, but there shall be no order as to costs.