Secretary Ministry of Land & others Vs. Las Nur Miah [4 LNJ AD (2015) 41]

Case No: CIVIL APPEAL No. 132 OF 2002

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Rajik-Al-Jalil,Mr. Fakhrul Islam,,

Citation: 4 LNJ AD (2015) 41

Case Year: 2015

Appellant: The Secretary, Ministry of Land and others

Respondent: Las Nur Miah

Subject: Interpretation of Statute,

Delivery Date: 2014-03-05

APPELLATE DIVISION
(CIVIL)
 
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J

Judgment on
05.03.2014
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The Secretary, Ministry of Land and others
...Appellants
Versus
Las Nur Miah
...Respondents
 
Interpretation of Statute
The settled principle is that forfeiture clause should be strictly construed. When the Government is dealing with the citizen or the public in the matter of leasing out fishery for a particular period on certain terms and the terms are not expressed, the Government must be fair and clean in such dealing. Reading the forfeiture clause of the tender document it does not appear to us that it contained the expressed provision for payment of VAT. The expression ‘other tax’ would not include VAT because of the doctrine of ejusdam generis applicable in interpretation of statutes and documents. This doctrine is not only applicable in construction of statutory terms but also applicable in respect of terms used in contacts and other non-statutory terms. . . . (12, 13 and 14)
 
Thames and Mersy Insurance Company Vs. Hamilton, Fraser and Company [(1987) 12 App Cas 448,419] and Tillmanns and Company Vs. S.S. Knutsford Co. (1908) 2 K.B. 358 ref.
 
For the Appellants : Mr. Rajik-Al-Jalil, Deputy Attorney General, instructed by Mrs. Madhumalati Chowdhury Barua, Advocate-on-Record.
For Respondent : Mr. Fakhrul Islam, Advocate-on-Record.
 
CIVIL APPEAL No. 132 OF 2002
 
JUDGMENT
Syed Mahmud Hossain, J:
 
This appeal, by leave, by the appellants, arises out of the judgment and order dated 02.12.1999 passed by a Division Bench of the High Court Division in Writ Petition No. 4660 of 1997 making the Rule absolute.
 
The facts involved in this appeal, in brief, are:
The tender was invited by the Deputy Commissioner, Sunamgonj for leasing out Bardai Castro Ganga Group Jalmahal for the year 1404-1406 B.S. The writ-petitioner and others participated in the tender invited for leasing out the Jalmahal and the writ-petitioner’s bid was the highest. On acceptance of the writ-petitioner’s bid, he was directed to deposit Tk.16,40,0000/- within three days from receipt of the letter dated 14.05.1997. The writ-petitioner by filing an application prayed for extension of time to deposit the lease money for the year 1404 B.S. and he was allowed time up to 24.05.1997. On 22.05.1997, the writ-petitioner approached the Revenue Deputy Collector, Sunamgonj, who directed the writ-petitioner to pay 15% VAT and 5% L.R. fund. On 22.05.1997, the writ-petitioner filed an application to the Additional Deputy Commi-ssioner (Revenue) stating that as per terms of the tender and the letter intimating acceptance of his bid, demand of 15% VAT is illegal and he requested the authorities to accept the lease money with 3% income tax. Having not received any reply of the letter dated 22.05.1997, the writ-petitioner submitted another letter to the Deputy Commissioner, Sunamgonj on 27.05.1997. On 08.05.1997, he received a letter intimating him that his prayer made in letter dated 27.05.1997 was rejected and that lease was cancelled on forfeiture of his earnest money.
 
The writ-petitioner thereupon moved the High Court Division in its writ jurisdiction challenging the legality of the action of the writ-respondent No.2 canceling the lease upon forfeiting the earnest money deposited at the time of submitting tender inviting bid for leasing out Bardai Castro Ganga Group Jalmahal and obtained Rule Nisi in Writ Petition No.4660 of 1997.
 
The writ-respondents contested the Rule by filing affidavit-in-opposition denying the material averments made in the writ petition.
 
Upon hearing the parities, a Division Bench of the High Court Division, by its judgment and order dated 02.12.1999 made the Rule absolute so far as it relates to the forfeiture of the security money amounting to Tk.1,64,000/- (one lac sixty four thousand) and the impugned order dated 08.06.1992 (Annexure-G) forfeiting the security money of the writ-petitioner was declared to have been passed without any lawful authority and the writ-petitioner was accordingly entitled to get back the money from the respondents.   
 
Feeling aggrieved by and dissatisfied with judgment and order dated 02.12.1999 passed by the High Court Division, the writ-respondents as the leave-petitioners moved this Division by filing Civil Petition for Leave to Appeal No.838 of 2000, in which, leave was granted resulting in Civil Appeal No.132 of 2002.
 
Mr. Rajik-Al-Jalil, learned Deputy Attorney General, appearing on behalf of the appellants, submits that the High Court Division misconstrued clause-6 of the tender document and erred in holding that the writ-petitioner was not required to pay 15% VAT and as such, the impugned judgment should be set aside.
 
Mr. Fakrul Islam, learned Advocate-on-Record, appearing on behalf of the respondent, on the other hand, supports the impugned judgment, stating that, there is no scope for payment of 15% VAT.
 
We have considered the submissions of the learned Deputy Attorney General for the leave-petitioners, the learned Advocate-on-Record for the respondent, perused the impugned judgment and the materials on record. 
 
At the very outset, it would be proper to go through the ground, on which, leave was granted as under:
“The High Court Division misconstrued Clause-6 of the tender document and erred in holding “But how the terms of the tender documents when there was no express provision in the forfeiture clause for payment of VAT along with the lease money” and this has resulted an error in the decision of the case on its merit.”
 
The writ-petitioner participated in the tender by depositing Tk.1,64000/- as security money and became the highest bidder. On 15.05.1997, the bid of the writ-petitioner was approved. The writ-respondent No.3, Additional Deputy Commissioner (Rev), Sonamgonj, issued a letter dated 14.05.1997 asking the writ-petitioner to deposit Tk.1,64000/- within 3 days of the receipt of the letter. The writ-petitioner filed an application praying for time to deposit the entire money and the prayer was allowed up to 24.05.1997. On 22.05.1997, the writ-petitioner went to respondent N.4 and offered to deposit the bid money along with 3% income tax when writ-respondent No.4 verbally asked the writ-petitioner to pay 15% VAT and 5% L.R. fund. Since there was no express provision in the tender document for payment of 15% VAT, he requested writ-respondent Nos.3 and 4 for exemption of payment of VAT but to no avail.
It is pertinent to quote clause-6 of the tender document, which is under:
“নির্বাচিত দরপত্র দাতাকে সিদ্ধামত গ্রহনের দিনে প্রথম বছরে ইজারা মূল্যের ৫০% এবং ৩% উৎস করসহ সরকারের অন্যান্য কর প্রদান করতে হবে। অবশিষ্ট্য ৫০% ইজারা মূল্য ঐদিন থেকে ৭(সাত) দিনের মধ্যে পরিশোধ করতে হবে। অন্যথায় দাদনের টাকা/জমাকৃৃত টাকা ইত্যাদি বাজেয়াপ্ত করা হবে এবং দরপত্র দাতার বিরুদ্ধ আইনানুগ ব্যবসহা গ্রহন করা হবে এবং সংশ্লিষ্ট্য মহালটি পুনরায় ইজারা প্রদানের কার্যএুম গ্রহণ করা হবে এবং সংশ্লিষ্ট্য মহালটি পুনরায় ইজারা প্রদানের কার্যএুম গ্রহন করা হবে।”
 
The only questions to be resolved whether the writ-petitioner was liable to pay 15% VAT. The settled principle is that forfeiture clause should be strictly construed. When the Government is dealing with the citizen or the public in the matter of leasing out fishery for a particular period on certain terms and the terms are not expressed, the Government must be fair and clean in such dealing. Reading the forfeiture clause of the tender document it does not appear to us that it contained the expressed provision for payment of VAT.
 
The expression ‘other tax’ would not include VAT because of the doctrine of ejusdam generis applicable in interpretation of statutes and documents. Dealing with this doctrine, Lord Halsbury L.C. states in Thames and Mersy Insurance Company Vs. Hamilton, Fraser and Company [(1987) 12 App Cas 448,419] as follows:

“Two rules of construction now firmly established as part of our law. One is that words, however general, may be limited in respect to subject matter in relation to which they are used. The other is that general words may be restricted to the same genus as the specific words that precede them.”
 
This doctrine is not only applicable in construction of statutory terms but also applicable in respect of terms used in contacts and other non-statutory terms. Referring to the case of Tillmanns and Company Vs. S.S. Knutsford Co. (1908) 2 K.B. 358, Odgers in his book, the Construction of Deeds and Statutes, 5th Ed. at page 184, furnished an example stating, “A ship was to be relieved from liability for not delivering cargo at a certain port or ports if it was in the opinion of the master unsafe to do so ‘in consequence of war, disturbance or any other cause’. The question arose whether a port inaccessible in the opinion of the master through ice was within the exception. It was held not to be so:“any other cause” must be construed to apply to causes ejusdam generis or similar to ‘war or disturbance’.”

In the light of the findings made before, we are of the view that the writ-petitioner is not required to pay 25% VAT. The findings and decision arrived at by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accordingly, the appeal is dismissed without any order as to costs.  

Ed.

Reference: 4 LNJ AD (2015) 41