Shafiqur Rahman Vs. Idris Ali, 37 DLR (AD) (1985) 71

Case No: Civil Appeal No. 1 of 1983

Judge: Shahabuddin Ahmed ,F.K.M.A. Munim,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mr. Rafique-ul-Huq,,

Citation: 37 DLR (AD) (1985) 71

Case Year: 1985

Appellant: Shafiqur Rahman

Respondent: Idris Ali

Subject: Interpretation of Statute,

Delivery Date: 1983-10-31

 
Supreme Court
Appellate Division
(Civil)
 
Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
 
Shafiqur Rahman
……...............Appellant
Vs.
Idris Ali
……………...Respon­dent
 
Judgment
October 31, 1983
 
The State Acquisition and Tenancy Act, 1951
Sections 9(1), 9(2), 9(3)
Interpretation of Statutes  
Section 9(1) of the State Acquisition and Tenancy Act substituted by Ordinance XXVII of 1961 lifted embargo on all transfers of land agricultural or nonagricultural, not exceeding 10 Bighas and this amendment was given retrospective effect from the date section 9 of the State Acquisition and Tenancy Act came into force on 16.5.51. ………….(20) 
 
The Amendment under Ordinance XXVII of 1961 having brought in giving retrospective effect and the deed of the Respondent being executed during such period of retrospective operation, the Judgment debtor had no saleable interest in the suit land to be transferred by subsequent court-sale - Per Shahabuddin Ahmed J.………..(21) 
 
“It was held by the Supreme Court of Pakistan that the legislature which is competent to make a law has full and plenary power to legislate retros­pectively and prospectively.” Hamoodur Rah­man CJ. - Per Shahabuddin Ahmed J..............(23) 
 
“It is a fundamental   rule of English law that no statute shall be construed to have a retrospective   operation   unless such a cons­truction   appears   very clearly    in   the terms of the   Act or arises by necessary   and distinct implication” - Per Shahabuddin Ahmed J.……………..(24) 
 
On the gro­und of equity and justice   the   appellant's vested right by court-sale should not have been affected by a subsequent enactment. But in view of express language of the amending statute the Court   cannot   give   a   different interpretation on   the ground   of equity   and justice. By majority decision the Appeal is dismissed. - Per Shahabuddin Ahmed J…………….(26)
 
Cases Referred To-
Colonial Sugar Mills Company Vs. Irving (1905) AC 369; M/S Haider Automobile Ltd. vs. Pakistan and Province of West Pakistan v. Manzoor Quader (1970) 22 DLR (SC) 65, 1969 PLD SC 623; Syedur Rahman V. Chief Election Commissioner, 17 DLR SC 23; Delhi Cloth & General Mills Company vs. Income-tax Commissioner, AIR 1927 PC 242; Province of West Pakistan vs. Manzoor Quader, PLR 1969 SC 623; Tarapada Ghose vs. Marimnessa Bibi, 19 DLR 711.
 
Lawyers Involved:
Rafiq-ul-Huq, Senior Advocate (M. Hafizullah, Advocate with him, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellant.
B.K Das, Advocate, Ins­tructed by Syed Sakhawat Ali, Advocate-on-Record—For the Respondent.
 
Civil Appeal No. 1 of1983.  
(From the judgment and decree dated August1, 1979 passed by the High Court Division in First Appeal No. 163 of 1963.)
 
JUDGMENT
 
Fazle Muim CJ.
 
This appeal arises from First Appeal No. 63 of 1963 passed by the High Court Division on 1-8-79.
 
Plaintiff-appellant instituted Title Suit No.73 of 1961 in the Court of Subordinate Judge, Sylhet for declaration of title and recovery of possession. Facts as stated in the plaint are that his father Haji Kalimullah used to advance money to Jogesh Chandra Das who was his retained lawyer. Before leaving for Calcutta for treatment of his illness Jogesh Chandra Das took loan from him, but as the loan was not repaid plaintiff-appellant filed Money Suit No. 3 of 1958 in the court of Subordinate Judge, Sylhet. During the pendency of the suit Jogesh Chandra Das died but the suit was decreed. In execution of the decree plaintiff appellant purchased the properties described in schedule 1 to the plaint for Tk. 4,500/- on September 20, 1959, and in pursuance of the auction sale took delivery of possession on February 2, 1960. As the decretal amount was not fully satisfied by the first sale, property descri­bed in Schedule 2 of the plaint was auction purchased by plaintiff-appellant for Tk. 3,100/- on February 16, 1961. As the properties were, however, in possession of defendant-respondent, he could not obtain actual possession of the properties.
 
2. Plaintiff-appellant on enquiry came, to learn that defendant-respondent in collusion with Jogesh Chandra Das created an ante-dated kabala on January 20, 1958 in respect of the properties auction purchased by him and got  the kabala registered thro­ugh one Ahmed Khan alleged to be the attor­ney of Jogesh Chandra Das. Plaintiff ap­pellant asserted that as Jogesh Chandra Das was a rent-receiver he was required to take prior permission for transfer of the properties which he did not do, his application for permi­ssion having been rejected. According to plain­tiff-appellant, the intended transfer by the afor­esaid kabala is, therefore, hit by the provi­sions of section 9 of the Sate Acquisition and Tenancy Act rendering the same null and void. Plaintiff-appellant acquired perfect lawful right and interest in the suit properties and was entitled to recovery of khas possession thereof.
 
3. Defendant-respondent contested the suit in the written statement it was stated that Jogesh Chandra Das, a senior Pleader of Sylhet, having suffered a stroke of paralysis left for Calcutta for better treatment. During his illness he incurred   some debt. As he was required to clear off the debts he transferred his residential house along with other lands measuring 1½ bigha for a consi­deration of Tk. 15,000/- to defendant-respon­dent and executed a kabala on January 30, 1958. For affecting the transfer he executed a power of attorney in favour of Ahmed Khan on January 28, 1958. Properties in question were purchased by the defendant-respondent before the institution of the plain­tiff's money suit. He, therefore, acquired a lawful interest in the suit properties. After purchase he constructed a pucca boundary wall which was not in existence before his purchase. The trial Court dismissed the suit on finding that Ext. A, the kabala executed by Jogesh Chandra Das in favour of the defendant-respondent, was genuine and bona-fide document, not collusive and ante-dated as alleged by plaintiff-appellate. Further, though Jogesh Chandra Das was a rent-recei­ver, the transfer in question by Ext. A was not hit by section 9 of the State Acquisition and Tenancy Act as amended, because plain­tiff-appellant did not succeed to establish that Jogesh Chandra Das transferred more than 10 standard bighas of land either agricultural or non-agricultural before the execution of the kabala, Ext. A. Plaintiff-appellant preferred First Appeal No. 63 of 1963 before the High Court Divi­sion which dismissed the appeal.
 
4. Being aggrieved plaintiff-appellant moved this Court and obtained special leave to appeal on the contentions as to whether the High Court Division was wrong in not holding that section 9 of the State Acquisi­tion and Tenancy Act as amended by the Ordinance No. XXVII of 1961 had no appli­cation to the transfer in question and as such no interest passed to the defendant-res­pondent under the kabala, Ext. A.
 
5. The main point for consideration as appears from the contentions of learned Counsels appearing on behalf of the appellant and the respondent is whether the transfer under Ext. A, the kabala executed in favour of  the  defendant-respondent, was a valid transfer under the amended provisions of section 9(1) of the State Acquisition and Tenancy Act being prior to the  auction  sales under which the appellant claims to derive the title.
 
6. To decide this point it would be necessary to have a look at the provisions of Section 9 (1) of the Act as amended from time to time till 1961 to determine whether the section as amended till that date had any retrospective operation so as to validate the transfer under Ext. 1, defen­dant-respondent's kabala.
Section 9 of the Act reads thus:
 
"(1) Notwithstanding anything con­tained in any other law for the time being in force, on and from the date of publication of a notification under sub-section (1) of section 3, no rent-receiver specified in such notification shall, except with the previous permis­sion of a prescribed authority transfer his rights and interests in any estate, taluk or tenure, to which such notifica­tion relates, by private sale, gift, will, mortgage, lease or any land in his khas possession by any such means.
(2) Any transfer made in contra­vention of the provisions of sub-section (1) shall be null and void." 
 
Section 9 of the Act was amended in 1957 as follows:
 
"East Pakistan Ordinance No. XIV of 1957, 15-8-57. The East Bengal State Acquisition and Tenancy (Amendment) Act, 1957 in section 9 of the said Act in sub­-section (1), for the full-stop at the end, a colon shall be substituted and there­after the following proviso shall be added, namely:-
"Provided that any such rent-receiver shall be entitled to transfer by private sale or mortgage only, agricultural land in his khas possession not exceeding ten standard bighas in the aggregate, without any such permission."  
 
7. In 1958, the same provisions were con­tinued which are as follows —
 
East Pakistan Ordinance No. XLIV of 1958 dated 1-7-58. The East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance, 1958.

In section 9 of the said Act, in sub­-section (1); for the full-stop at the end, a colon shall be substituted and there­after the following proviso shall be added, namely:—
 
"Provided that any such rent-receiver shall be entitled to transfer by private sale or mortgage, only, agricultural land in  his khas possession not exceeding ten standard bighas   in  the aggregate, without any such permission."  
 
8. In 1961, extensive amendments were made in section 9 of the Act. They are as follows:  
 
"East Pakistan Ordinance No. XXVII of 1961 dated 7-8-61
The East Bengal State Acquisition and Tenancy (Fourth Amendment) Ordinance, 1961.
An Ordinance
further to amend the East Bengal State Acquisition and Tenancy Act, 1950.
Whereas it is expedient further to amend the East Bengal State Acquisi­tion and Tenancy Act, 1950, for the purpose, and in the manner hereinafter appearing;
Now therefore in pursuance of the Presidential Proclamation of the 7th day of October, 1958, and having received the previous instructions of the President, the Governor is pleased, in exercise of all powers enabling him in that behalf, to make and promulgate the following Ordinance, namely:—
1. (1) This Ordinance may be called the East Bengal State Acquisition and Te­nancy (Fourth Amendment) Ordinance, 1961.
2. The East Bengal State Acquisi­tion and Tenancy Act, 1950 (thereinafter referred to as   the said Act) shall be amended as hereinafter provided.
3. In section 9 of the said Act,-
(i) for sub-section (1), the following shall be substituted and shall be deemed always to have been substituted namely:—
(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of publica­tion of a notification under sub-section (1) of section 3, no rent receiver speci­fied in such notification shall, except as provided in sub-section (1a), transfer his rights and interests any estate, taluk, tenure, holding or tenancy, to which such notification/elates, by private sale, gift, will, mortgage, lease or any contract or agreement, or transfer any land in his khas possession by any such means without the previous permission of a prescribed authority.
(1a) The rent-receiver referred to in sub-section (1) shall be entitled to trans­fer, by private sale or mortgage only, agricultural land or non-agricultural land of the classes retainable under sub-section (2) of section 20, in his khas possession, not exceeding ten stan­dard bighas in the aggregate in either case without such permission, subject to such private sale or mortgage not contravening the provisions of any other law for the time being in force:
Provided that in the case of agricul­tural khas land, in calculating the per­missible quantity of the standard bighas, any land transferred between 14th De­cember 1948 and the date of publication of the notification under sub-section 1 of section 3 shall also taken into ac­count."
(ii) in sub-section (2), after the words "null and void" the words ''and the land so transferred shall be forfeited to the Provincial Government" shall inserted and
(iii) after sub-section 2 so amended, the following new sub-section shall be added, namely:—
"(3) Nothing contained in the fore­going sub-section shall render void and transfer which, prior to the coming into force of the East Bengal State Acquisi­tion and Tenancy (Fourth Amendment) Ordinance, 1961, was not in contraven­tion of any law for the time being in force and was legal and valid." 
 
9. After section 9 of the said Act, the following new section shall be inserted, namely:—
 
''9A. Any rent-receiver, within six months from the coming into force of this provision, by an affidavit declare be­fore a Revenue officer authorised by the Collector in this behalf, all the agricultural khas lands transferred by him since the 14th December, 1948 and all the non-agricultural khas lands of the classes retainable under sub-section 2 of section 20 transferred by him since the date of publication of the earliest notification under sub-section 1 of section 3 acquiring any of his interest, and if the sub-section 1 of section 3 acquiring any of his interest, and if the Revenue Officer, after making such enquiries as may be necessary, is satisfied about the truth of the declaration, he shall make an order declaring the transfer of only such quantity of land as do not exceed the permissible ten stan­dard bighas under sub-section (1) of sec­tion 9 as valid and shall also specify the land to the extent of the quantity so de­clared valid:
Provided that such declaration shall not validate any transfer   which is   invalid under any other law for the time being in force." 
 
From the unamended provisions of section 9 of the State Acquisition and Tenancy Act it appears that no rent-receiver whose name had appeared in the notification under section 3 (1) of the Act could transfer his rights and interests in any estate, taluk, tenure or any land in his khas possession which was covered by such notification without the permission of the prescribed authority, whether the transfer concerned was by private sale, gift, will, mortgage, lease. In sub-section (2) of section 9 it was further provided that if such transfer was made without complying with the aforesaid provisions shall be null and void. By subsequent amendments of the section in 1957 and 1958 by proviso added to section 9 of the Act any sue rent receiver was, however, allowed to transfer  by private sale or mortgage only agricultural land in his khas possession no exceeding ten standard bighas. These amendments will be seen to have permitted the rent receiver to effect transfers subject to two limitations, namely (1) the transfer was restricted to only agricultural land; and (2) transfer to be effected only in the form of private sale or mortgage. Subject to these two limitations a rent receiver whose name appeared in the notification under section 3(1) of the State Acquisition and Tenancy Act could transfer without obtaining previ­ous permission.
 
11. It appears that in 1961 by the Fourth Amendment of the State Acquisition and Tenancy Act, 1950 the provisions of section 9 of the Act were further amended, but while the previous amendment as referred to above did not give any retrospective effect to the amending provisions of section 9 of the Act, the amendment of 1961 intended to give retrospective effect to the amended provisions of section 9 by inserting the follo­wing words in section 3 (i): 
 
"For sub-section (1), the following shall be substituted and shall be deemed always to have been so substituted". 
 
12. The substituted sub-section (1) of section 9 has been quoted above which subs­tantially reproduces the previous amendments under the amending Ordinance of 1957 and 1958. The modification concerned gave permission to transfer also "non-agri­cultural land of the classes retainable under sub-section (2) of section 20, in his khas possession." The position as it emerges from the amend meats previous to 1961 and those under the Ordinance of 1961 is that as Jogesh Chandra Das did not obtain or failed to obtain prior permission to transfer the suit land before executing the kabala Ext. A in favour of the defendant-respondent, such transfer was rendered null and void by the provisions of section 9 of the Act. The position, however, changed af­ter the amendments effected in 1961 under the Ordinance of 1961, a rent receiver was allo­wed to transfer land, both agricultural and non-agricultural, in his khas possession with the previous permission of the prescribed authority. But for the express language em­ployed in the amending Ordinance of 1961 giving retrospective effect to its provisions, the Ordinance would have been considered as prospective. To put it more explicitly, every statute, whether an Act or Ordinance is prospective, vide ''Colonial Sugar Mills Company Vs. Irving (1905) AC 369. It, however, such Act or Ordinance by express langu­age or impliedly intends to give retrospec­tive operation to its provisions, such effect must be given to them, either expressly or by implication. There would be no difficulty in giving retrospective effect to an Act if it expressly said so but the difficulty may, how­ever, arise if no express words have been used giving retrospective operation to the provi­sions of an Act, whether such operation has been intended or not is to be gathered from reading the Act as a whole. It will be an arguable proposition when the intention of the legislature has not been expressed in clear language. One of the consequences of giving retrospective operation to the provisions of an Act is whether it has taken away any vested right under the previous state of law prior to giving retrospective operation to an Act already existing by subsequently amend­ing it or a newly enacted Act which has been given retrospective effect beginning from any date prior to its enactment. There are innumerable decisions on this proposition regarding retrospectivity of statute.
 
12A. In the present case, it is found that the amending Ordinance of 1961 has declared that the provisions of Section 9 of the State Acquisition and Tenancy Act as amended by it "shall be substituted (the Ordinance actu­ally substituted them) and declared further that they "shall be deemed always to have been so substituted". The words underlined (by me) would show that the amended provi­sions of section 9(1) of the State Acquisition and Tenancy Act are being given retrospec­tive effect. Accordingly, the transfer made by Jogesh Chandra Das by kabala, Ext. A, which was null and void under the previous provi­sions of section 9(1) of the Act, appear to have become valid under the provisions amended by the Ordinance of 1961. If so, the sub­sequent court sales in 1960 and 1961 under which the plaintiff-appellant claims to have acquired right, title and interest in the suit land are of no effect because such right, title and interest had already passed under the previous transfer to the defendant-respondent.
 
13. The difficulty, however, arises due to the following provisions in the amending Ordinance which added a new sub-section (3) to section 9 of the State Acquisition and Tenancy Act. It provides as follows: 
 
"Nothing contained in the foregoing-sub-section shall render void any trans­fer which, prior to the coming into force of the East Bengal State Acquisition and Tenancy ("Fourth Amendment) Ordinance, 1961, was not in contraven­tion of any law for the time being in force and was legal and valid." 
 
14. According to this provision, it appears that whatever retrospective effect was given to section 9(1) of the State Acquisition and Tenancy Act by the amending Ordinance of 1961 has been rendered ineffective by this sub-section in respect of the kind of transfer mentioned in this sub-section. For, it says that whatever is provided in sub-section (1) of section 9 under the amending Ordinance of 1961 will not reader void any transfer which was legal and valid before the amending Ordinance came into force.
 
15. It may, of course, be questioned when the amending Ordinance of 1961 came into force? It appears to me that the Or­dinance came into force on the date it received the   assent of the Governor that is on 7-8-61. Unless there is any express mention in the statute that it has to come into force from any date prior to its enact­ment, it comes to into force from the date received the assent of the authority concer­ned.  Now, whether such a clause "shall be deemed always to have been so substituted" inserted in the Ordinance appearing to have given retrospective effect to a particular section of the Ordinance will be taken to mean that the entire Ordinance came into force on a date earlier than its enactment is extremely doubt­ful. I cannot conceive that such words will mean that the Ordinance as a whole come into force on a date earlier than its enactment.
 
16. It would, therefore, seem to me that since the date when the court sales took place though not earlier than that of Ext. A, in view of the provisions of section 9(1) of the State Acquisition and Tenancy Act the previous transfer to the defendant-respondent under Ext. A being void, the court sales must be considered as legally valid. Such court sales being legally valid which have been saved by the amended provisions of section 9(1) of the State Acquisition and Tenancy Act as quoted above cannot be null and void even though retrospective effect has been given to sub-section 9(1) by the amending Ordinance of 1961. In spite of the retrospective operation given to sec­tion 9(1), since sub-section (3) of the same Ordinance has clearly stated that not withstanding such provisions any transfer which was legal and valid at the time when such provisions were not in existence, it can hardly be said that the court sales became invalid by the amended provisions of section 9(1) of the State Acquisition and Tenancy Act It would, therefore, follow that the court sales on September 20, 1959 and Febru­ary 16, 1961 under which the plaintiff appe­llant purchased the suit land being valid he is entitled to the declaration sought for by him in the suit. For the reasons, sated above, the appeal is allowed? There will be no order as to costs.
 
Badrul Haider Chowdhury J.
 
I have gone through the judgments written by the lear­ned Chief Justice and my learned brother Shahabuddin Ahmed J. I concur with the judgment of Shahabuddin Ahmed J.
 
Shahabuddin Ahmed J.
 
This is plaintiff’s appeal. The question involved in this appeal is whether the plaintiff's vested right in the suit property purchased in auction was taken away retrospectively by Ordinance No. XXVII of 1961.
 
18. Facts of the case, so far necessary for disposal of the appeal, are the following: Plaintiff's father filed Money Suit No.3 of 1958 in the Court of Subordinate Judge, Sylhet, against one Jagadish Chandra Das for realisation of his dues from a loan. In due course the suit was, decreed, and for reali­sation of the decretal amount, the property described in Schedule I of the plaint was purchased by the plaintiff on 20 September 1959. But as decretal amount was not fully satisfied by this auction-sale another land of the judgment-debtor, as described in sche­dule II, was also purchased in auction by plaintiff on 16 February 1961. But though sym­bolical possession was taken through court both the cases the plaintiff could not take actual pos­session of the properties from the defendant. The plaintiff subsequently came to know that the defendant, in collusion with the judgment-debtor, created an ante-dated sale-deed-Ext. A dated 30 January 1953 in respect of the same properties. Secondly, the transfer under Ext. (A) was also hit by section 9(1) of the East Bengal State Acquisition and Tenancy Act, (briefly, the State Acquisition Act) in that the transfer was made in violation of mandatory provision for obtaining prior permission from the prescribed authority. On these allegations he filed Title Suit No. 73 of 1961 in the 2nd Court of Subordinate Judge, Sylhet, for declaration of his title and recovery of khas possession in the suit land. The suit was contested by the defen­dant who contended that the sale-deed Ext. A was genuine and that the transfer there under was not hit by section 9(1) as the mandatory provision therein for prior permission for the transfer was repealed by East Pakistan Ordinance No. XXVII of 1961 with retros­pective effect from 16 May 1951 that is the beginning of the State Acquisition Act. Both these contentions were accepted concur­rently by the trial Court and the first Appe­llate Court namely, the High Court Division. The High Court Division further rejected the contention of the plaintiff that his vested interest in the properties created by the court sales on 20 September 1959 and 16 February 1961 was not taken away or affected by the subsequent Amendment of the law dated 7 August 1961, and held that the transfer of the suit land under the sale-deed dated 30-1-58 was valid and as such the plaintiff derived no title by subsequently purchasing in auction the same land. The suit was accordingly dismissed.
 
19. There is no dispute that the original judgment, debtor, Jagadish Chandra Das was a rent-receiver whose rent-receiving interests were acquired under section 3(1) of the State Acquisition Act. As such he was prohibited from transferring any interests without prior permission of the prescribed authority. But by the sale-deed Ext. A he transferred the suit land on 30 January 1958 without permission as required by sub section (1) of section 9 of the State Acquisition and Tenancy Act, which is quoted below: 
"(1) Notwithstanding anything conta­ined in any other law for the time being in force, on and from the date of publication of a notification under sub­section (1) of section 3, no rent-receiver specified in such notification shall except with the previous permission of a pres­cribed authority, transfer his rights and interests in any estate, taluk or tenure, to which such notification relates, by private sale, gift, will, mortgage, lease or any land in his khas possession by any such means." 
 
20. This subsection was substituted by Ordinance No. XXVII of 1961 promulgated on 7 August 1961 which lifted the embargo on transfer of land, agricultural or non-agricultural, not exceeding ten bighas and this amendment was given effect from the date of coming   into force of original sec­tion 9 of the State Acquisition and Tenancy Act that is 16-5-1951. This sub-section is quoted below:
 
"(1) Notwithstanding anything con­tained in any other law for the time being in force, on and from the date of publication of a notification under sub-section (1) of section 3, no rent-receiver specified in such notification shall, except as provided in sub-section (1a), transfer his rights and interests in any estate, taluk, tenure, holding or tenancy, to which such notification relates, by private sale, gift, will, mort­gage, lease or any contract or agree­ment, or transfer any land in his khas possession by any such means without the previous permission of a prescri­bed authority.   
 
(1a) The rent-receiver referred to in sub-section (1) shall be entitled to tra­nsfer, by private sale or mortgage sale, agricultural land or non-agricultural land of the classes retainable under sub-section (2) of section 20, in his khas possession, not exceeding ten standard bighas in the aggregate in either case without such permission, subject to such private sale or mortgage not contraven­ing the provisions of any other law for the time being in force." 
 
As to the date of effect of this amendment Article 3 of this Ordinance provides:        
 
''In section 9 of the said Act—
(i) for sub-section (1), the following shall be substituted, and shall be deemed always to have been so substituted." 
 
This amendment, though made in August 1961, is found to have been given effect from the commencement of the original section 9(1). The words, the section ''shall be dee­med always to have been so substituted" are clear and unambiguous enough to show that this amendment has been given retrospective operation from long before the transfer under Ext.A was effected and also before the plaintiff's auction was held. In view of this provision of law as stood after the amen­dment the transfer of the suit land under the kabala-Ext. A-stood valid. This being the position the judgment-debtor had no saleable interest in the   suite land to be transferred by court-sale.
 
21. But contention of Mr. Rafiq-ul-Huq, learned Advocate for the plaintiff-appellant, is  that though the Amendment was appa­rently given retrospective effect, this Amendment did not affect or take away the plaintiff's vested right. The learned Judges of the High Court Division are found to have given due consideration to this question and held that the vested right of the plaintiff, if any, had been taken away by the Amendment in clear language expressed therein. The learned Judges obser­ved: 
 
"Words in the amended section are clear and unambiguous enough to give retrospective and retroactive operation of the law. By amendment of section 9(1) of the Act it was provided as if there was no provision restricting trans­fers of land not exceeding 10 stan­dard bighas by a rent receiver in the enactment since its inception." 
 
The learned Judges placed reliance on the cases of MIS. Haider Automobile Ltd. v. Pakistan and Province of West Pakistan v. Manzoor Quader (1970) 22 DLR (SC) 65, 1969 PLD SC 623 and Syedur Rahman V. Chief Election Commissioner, 17 DLR SC 23.
 
22. Mr. Rafiq-ul-Huq has strenuously arg­ued that this amendment is not applicable to the transfer under the kabala Ext. (A) dated 30-1-58 and that the appellant's vested right could not be affected by the Amend­ment. In support of this contention he has sought reliance   from "Colonial Sugar Mills Company Vs. Irving" (1905) AC 369 and “Delhi Cloth & General Mills Company vs. Income-tax Commissioner", AIR 1927 PC 242. The principle of law enunciated in the first mentioned case has been followed in the last mentioned one, AIR 1927 PC 242. It has been held there that "provisions touching existing rights are not ordinarily retrospec­tive". Their Lordships observed: 
 
"While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospec­tive effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute comes into force, were final, are provisions which touch existing rights." 
 
We do not find anything in this decision to disagree on. This decision does not say that a vested right or an existing right cannot be taken away by a law with retrospective effect. What has been emphasized therein is that provisions touching existing rights are not ordinarily retrospective. But if an enactment is specifically and clearly made retrospective in operation then this decision will not apply. If the language of a statute is not clear enough to show whether it has been given retrospective effect or where The intention to give retrospective effect is not found from the words used in a statute then and only then it's provision will be construed so as not to affect the  vested or existing right. The decision of the Pakistan Supreme Court in the Province of West Pakistan vs. Manzoor Quader, PLR 1969 SC 623 on which the High Court Division placed reliance is found to be quite appropriate to this case.
 
23. The question raised there was whether the right of a retired Judge of a High Court to practice law, conferred by President's Order No. 21 of 1962, was taken away by a subsequent law, namely, the Ordinance 11 of 1964 which was given retrospective operation from 15 August 1947. Under the Constitution of the Islamic Republic of Pakistan, 1956, the practice of law by a retired Judge of the High Court in the same High Court or any Court or Tribunal subordinate to that High Court was prohibited. But the Retired Judges (Legal Practice) Order, P.O. No. 21 of 1962, gave a retired Judge of a High Court or any such Judge who resigned, right to practice law as a profession in the High Court. Taking advantage of this provision of law Mr. Monzoor Quader who had acted as Chief Justice of the West Pakistan High Court for about a year from October 1962 to September 1963 resigned an resumed practice in the High Court of West Pakistan. After about a year of his practice the Legal Practice (Disqualification Ordinance) No. 2 of 1964 was enacted which imposed total bar to practice law by retired Judge or a Judge who resigned in the High Court, and this Ordinance clearly stated that "a Judge" meant a person who acted as a Judge at any time since 15 August 1947. The question that arose was whether Mr. Monzoor Quader who started practice after his resignation and got vested right to practice under P.O. No. 21 of 1962 stood deprived of his right to practice in view of the subsequent Ordinance No. 2 of 1964. His contention was that his vested right was not affected or taken away by the Ordinance, and this contention was upheld by the West Pakistan High Court. But on appeal by the Government, this contention was rejected by the Supreme Court which held that his vested right was taken away "in clear and express words" used in the Ordinance of 1964 which disqualified from practice any person who acted as a Judge of the High Court "at any time since 15 August 1947". It was held by the Supreme Court of Pakistan that the legislature which is competent to make a law has full and plenary power to legislate retrospectively and retroactively. Hamoodur Rah­man CJ who delivered the judgment observed: 
 
"There is no such rule that even if the Legislature has, by the use of clear and unambiguous language, sought to take a way the vested right yet the Courts must hold that such legisla­tion is ineffective or strike down the legislation on the ground that it has retrospectively taken away a vested right." 
 
24. Law as to "retrospectively" has been elucidated in Maxwell’s Interpretation of Statutes (12th edition) page 215 quoting from English decisions at length and also in Craies on Statute Law. The question of vested interests arises upon the presumption that the legislature does not intend what is un­just. "It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a cons­truction appears very clearly in the terms of the act or arises by necessary and distinct implication". "If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.” It, however the language or the dominant intention at the enactment so demands, the Act must be construed so as to have a retrospective operation, for the rule against retrospective effect of statutes is not a rigid or inflexible rule but is not to be applied always in the light of the lang­uage of the statute and the subject-matter with which the statute is dealing".
 
25. In the words of  Craies  on  Statute Law, a statute is retrospective "which takes away or impairs any vested right acquired under existing laws, or creates a new obliga­tion, or imposes new duty or  attaches a new disability  in respect to transactions  or considerations already past''. It is therefore an established rule of construction that a law may be enacted taking away a vested right with retrospective effect in express language or by necessary intendment.
 
26. The question whether Section 9(1) as amended by Ordinance No. 27 of 1961 of the State Acquisition and Tenancy Act was retrospective in effect came up for consideration before the East Pakis­tan High Court in the case of Tarapada Ghose v. Marimnessa Bibi, 19 DLR 711 and Morshed CJ held that the legis­lature by express language had given effect to the Amendment from the date of the original Act. In the instant case contention of Mr. Rafiq-ul-Huq is that even if the Amendment is retrospective in operation, it will not affect the appellant's vested right in that when the vested  right was created by court-sales in September 1959 and Febru­ary 1961, the transfer under the kabala Ext. A was invalid being hit by law as it was then. In this contention is upheld the Amend­ment will be reduced to an enactment only prospective in operation. In that case the expression it "shall be deemed always to have been so substituted" will be useless, meaningless and totally unnecessary. A car­dinal principle of construction is that it must be presumed that the legislature does not use any word unnecessarily or without any meaning or purpose. Of course, on the gro­und of equity and justice the appellant's vested right by court-sale should not have been affected by a subsequent enactment. But in view of express language of the amending statute the Court cannot give a different interpretation on the ground of equity and justice. In view of this express provision of the Amendment the transfer under the kabala Ext. A dated 30 January 1958 stood valid and as such the plaintiff by auction purchase of the same property derived no title. The suit is found to have been rightly dismissed.
 
27. In the result, the appeal is dismissed without any order as to cost.
 
Chowdhury ATM Masud J.
 
I have had the opportunity to go through the judgments proposed to be delivered by the learned Chief Justice and my learned brother Shahabuddin Ahmed J. I concur with the judgment of Shahabuddin Ahmed J.
 
Syed Md. Mohsen Ali J.
 
I have gone through the judgments proposed to be delivered by the learned Chief Justice and my learned brother Shahabuddin Ahmed J. I concur with the decision of Shahabuddin Ahmed J.
 
ORDER OF THE COURT
 
By the majority decision, the appeal is dis­missed without any order as to costs.
 
Ed.