State Acquisition and Tenancy Act, 1951
Scheme of
the Act
—The whole
scheme of the East Bengal State Acquisition and Tenancy Act, 1950 is to effect
the transference of intermediate interests in the land to public ownership of
the State, and it is, therefore covered at least by sub-section (3) of section
299 of the Government of India Act which authorizes ‘transference to public
ownership’ of any land or immovable property.
There is no
preamble to the Act itself and there is no express mention of a public purpose
but the whole intention is clear that the interest in the intermediate owners
were to be acquired and to vest in the state for the purpose of ameliorating
the condition of the actual cultivators of the soil.
Radhika
Mohan Munshi Vs. Shama Kishore Manshi (1954) 6 DLR 531 (536).
—Interests
of usufructuary mortgage
The
interests of usufructuary mortgage cannot be acquired under this Act. The mere
fact that a mortgagee is in possession of the mortgaged property by realizing
rent there from will not bring him within the four corners of this Act.
Nawab Sir
KGM Faroqui Vs. Province E. Bengal. (1957) 9 DLR 174.
—In the case
of the present impugned Act. (I.e., E.B. State Acquisition and Tenancy Act) the
Government of East Pakistan acquired en bloc all rent- receiving interests and
khas lands all over the province simultaneously; so far as acquisition is
concerned, there is, therefore, no discrimination whatsoever.
Jibendra K.
Acharya Vs. Prov. of E. Pakistan (1956) 8 DLR 457.
The impugned
Act cannot be challenged on the ground that the Act has not made any provision
for payment of the adequate compensation or that the acquisition is not for a
public purpose as required by Article 15 of the Constitution or on account of
any defect existing until the 29th of February, 1956, when the Validation Act
was passed.
Jibendra K.
Acharya Vs. Prov. of E. Pak. (1 956)8 DLR 457.
S. 2(10)
,(11), (16)—Right of fishery—Right of fishery in a navigable river—Not a profit
arising out of land—Cannot be acquired under the Act.
Md. Tozammel
Hossain Vs. Prov. of 13. Pak. (1959) 11 DLR 145.
—Right of
fishery in a navigable river—Not an encumbrance. Ibid.
—A several
fishery is an incorporeal right and cannot be acquired under the Act. Ibid.
S.
2(10),(16)—Inland fishery falls within the definition of gestate” &
“land” and as such can be acquired. Ibid.
S. 2(1
2)—Hat—Distinctive feature of hat—The distinctive
feature of a hat or bazaar, as opposed to a number of shops established in a
particular place, is that it is a place for assembling persons daily or on
particular days in a week for purposes of buying or selling articles of general
house-hold use. The setting up of a few shops, as found in this particular
case, cannot be described as establishing a hat or bazaar.
Kari
Azharuddin
Ahmed Vs. Province of East Pakistan (1963) 15 DLR 5.
Hat—If
necessaries of life are not sold on a land either daily or on particular days
of the week the land cannot be said to be a hat.
If
agricultural or horticultural produce used as food or drink, or any other
necessaries of life arc sold in a hat and bazaar, either daily or on particular
days in the week the aforesaid factum would constitute a hat or bazaar within
the meaning of the said section 2(12) of the Act. The important thing to be
remembered is that Golpalas (thatching straw) to be sold either daily or on a
particular day or days in a week. If there is no evidence on record that there
is any regularity in the sale of such Golpatas on the suit-land, therefore, the
suit land cannot be described as a hat or bazaar within meaning of the Act.
The crucial
point is whether there is any regularity in holding the hat with reference to
particular days in the week. Irregular use as a hat is not within the purview
of the Act.
If prior to
the point of time when the Act came into force, the suit-land was used as a
hat, but if subsequently, it has not been used as such, then the suit-land
would not come within the mischief of the East Bengal State Acquisition and
Tenancy Act.
The entry in
the R S Khatian is in favour of defendant No. I and presumption is that the
Suit land is a hat within the meaning of the Act.
Hashem Ali
Hawlader Vs. Province of E. Pak. (1968) 20 DLR 18.
Hat—What is
meant by hat—On analysis of the definition the following arc found to be the
ingredients of a hat :
1.
It means a
place.
2.
The place is
such where persons assemble daily or on particular clays in a week.
3.
The purposes
of such assembly arc primarily buying or selling agricultural or horticultural
produce and other commodities.
4.
It includes
all shops of such articles or manufactured articles within such place.
Golam
Hossain Khan Vs. Abdul Mannaf Khan (1983) 35 DLR 331.
—A hat may
shift from one place to another bearing the same name and with the assembly of
same set of persons—In such a case in fact and in law it is a new hat distinct
and separate.
Golam
Hossain Khan Vs. Abdul Mannaf Khan (1983)35 DLR 331.
S.2(13) and
2(17)—Definition of holding and non-agricultural land—The word
‘holding’ has been defined in Section 2(13) of the SA & T Act According to
the definition ‘holding’ means a parcel or parcels of land or an undivided
share thereof held by a raiyat or an under-raiyat and forming the subject of a
separate tenancy.
The
expression ‘non-agricultural -tenant’ has been defined in section 2(17) and
means a tenant who holds land for purposes not connected with agriculture or
horticulture, but does not include a person holding together with any building
standing thereon and necessary adjuncts thereto under a lease other than a
lease in perpetuity.
SM
Basiruddin, Vs. Zahirul Islam Chowdhury & others (1983) 35 DLR MD) 230.
S. 2(15)—Khas land”:
Land with buildings on and let out is ‘khas land’ is retainable as khas land.
In this case
there is ample evidence to show that the land in question had the structures on
it and the plaintiff was realizing rent and lease was not a lease in perpetuity.
Sudhir
Chandra Das Vs. Hatem Bepari (1968) 2O DLR 627.
S. 2(16)—Land—Right
of fishery in a navigable river is not profit arising out of land and cannot
therefore be acquired under the Act. Md. Tozammel Hossain (1959) ii DLR 145.
—On the
question as to who was the owner of the premises the decision of the Settlement
Officer cannot be final and binding on Civil Court.
Sudhir
Chandra Das Vs. Hatem Bepari. (1968) 20 DLR 627.
—Right to
collect rent is a benefit arising out of land, and can therefore be acquired.
The right to
collect rents or profits from a hat comes within the meaning of the phrase
“benefit to arise out of land” in sub-section (16) of section 2 of the East
Bengal State Acquisition and Tenancy Act.
And
therefore such right is capable of being acquired under the East Bengal State
Acquisition and Tenancy Act as land within the meaning of section 2 (16) of the
said Act.
Md. Abdul
Asia Vs. Province of East Pakistan (1961) 13 DLR 873.
S. 2(17)—If a
proprietor or a tenure-holder has a raiyat or an under-raiyat under him, then
the said proprietor or a tenure-holder becomes a rent-receiver and with regard
to non-agricultural at land which has been leased out otherwise than in
perpetuity the holder of the land does not become rent-receiver.
Abdul Hafez
Vs. Ashraf Ali Chowdhury (1965) I7 DLR 329.
—In this
country a lease in perpetuity can be created by an express grant to that effect
or by a necessary presumption raised by the terms of a grant and by an
unambiguous and long possession. Ibid.
—30 years
lease of non-agricultural land is not a lease in perpetuity. As such lessee’s
interest cannot be acquired under sec. 3 of the Act. Ibid.
—A monthly
tenant under Non-Agricultural Tenancy Act is a non-agricultural tenant.
AFM Kutubudowla
(1959)11 DLR 401 (SC).
S. 2(20)—Mutawalli
not a rent receiver. By operation of law a Mutwalli has been treated as a
rent-receiver and the Legislature has not made provision for the Mutwalli nor
gave a definition of Mutawalli. So he cannot be classified within the provision
of the definition of rent-receiver in its general term. Keeping in view the
intention of the wakf this portion of the property should be distributed
amongst the legal heirs and representatives of the wakf.
Shamsuzzoha
Nurul Amin Chowdhury Vs. Province of East Pakistan, (1970) 22 DLR 377.
S. 2(23)—Rent-receiver—defined— According
to clause (23) of section 2, ‘rent-receiver’ means a ‘proprietor and according
to clause (20) of section 2, proprietor’ means “a person owning whether in
trust or for his own benefit, an estate or a part of an estate.” The word
‘trust’ in clause (20) of section 2 of the impugned Act is not limited in its
meaning as the word “trust” in the Indian Trusts Act. A mutwalli holds wakf
property either in trust or for his own benefit and he must be taken as a
proprietor who has a rent-receiving interest. Ibid.
—Mutwalli or
Shebait holding property for the benefit of a religious or charitable
institution is a rent-receiver within the meaning of section 2, clause (23). Ibid.
—Proprietor
within the meaning of rent receiver’ includes Mutwalli. Ibid.
—The Mirashdar
in Sylhet is a rent-receiver. A. Noor Vs. Province of East Pakistan (1966) 18
DLR 666.
—Usufructuary
mortgagee’s interests is an encumbrance and cannot be acquired, The mere fact
that a mortgagee is in possession of the mortgaged property by realizing rent
there from will not bring him within the four corners of the Act.
KGM Farooqui
Vs. Province of East Bengal (1957) 9 DLR 174.
—The holder
of malikana is a rent-receiver and his interest is acquirable. (1966) 18 DLR
184.
—Ejaradar is
a tenure-holder within the meaning of the expression ‘tenure-holder’ used in
the Acquisition Act.
KGM Farooqui
Vs. Province of East Bengal (1957) 9 DLR 174.
—Who is and
who is not rent receiver—Clause (23) of section 2 does not leave any scope for doubt that
a proprietor or a tenure holder and a raiyat, an under raiyat or a
non-agricultural tenant whose land has been let out is a “rent-receiver” but a
person is not a rent-receive” in respect of such of his lands as has been let
out together with any building standing thereon and necessary adjuncts thereto,
otherwise than in perpetuity.
Surutannessa
Bibi Vs. Debendranath Barman (1966) 18 DLR 490.
—“Otherwise
than in perpetuity” explained.
The whole of
the earlier portion of the section is not governed by the words “otherwise than
in perpetuity.” They only govern the words “a person in respect of such of his
land, as has been let out together with any building standing thereon and
necessary adjuncts thereto.” Ibid.
—“Lease of
land with building and necessary adjuncts thereto”—Let out other wise than in
perpetuity explained.
If the lease
of land let out together with any building standing thereon and necessary
adjuncts thereto is a permanent lease, the lessor does not come within the
exception and, as such, he becomes a “rent receiver.” The last portion of
clause (23) which refers to the exception to “rent-receiver” makes it
abundantly clear that a non-agricultural land, or, in other words, land let out
together with any building standing thereon and necessary adjuncts thereto
comes within the exception subject to the condition that such land is not let
out in perpetuity. Ibid.
—Interest of
a temporary lessor, is acquirable.
The interest
of a temporary lessor or in other words, the interest of a lessor who has
granted a temporary lease, is acquirable under the Act with only one exception,
namely, a temporary lease in respect of non-agricultural land which is not
acquirable. Ibid.
—Acquisition
of rent receiving interest became effective from the midnight of 30th Chaitra,
1362.
The
acquisition of the rent receiving interest became effective on the midnight of
30th Chaitra while the lease was terminable from the first of Baisak which,
commenced from the following morning i.e. sunrise. Ibid.
S. 2(27)—A Pourasava can establish and maintain a new market under sections
84 and 85 of the Pourasava Ordinance 1977, with the permission of the
Government as contemplated under Ordinance No. XIX of 1959 as amended by Act.
No.XII of l967.
Srimangal
Pourashava Vs. Bangladesh (1980) 32 DLR 156 (157).
—“A person”
is sec. 2(27) includes a local authority like Pourashava which is therefore a
tenant within the meaning of s. 2(27).
Language
used in s. 2(27) is “a tenant” meaning “a person”. There is no statutory
provision whereby a local authority like a Municipality or Pourashava has been
specifically omitted from being a person like a tenant under the Government. Ibid.
—Acquisition
of any municipal market is only possible under Chapter V showing final
publication of compensation assessment-roll u/s44. Where this is not done
taking over any municipality hat under a Pourashava u/s. 20(2)(a) is
unauthorized and illegal. Ibid.