State Acquisition and Tenancy Act, 1951
S.3—With the
publication of notification u/s 3 all existing classifications of tenants did
not disappear as existed under BT Act.
Ruhul Islam,
J. (FKMA Munim, CJ and Chowdhury ATM Masud, J. agreed with Ruhul Islam, J;
Shahabuddin Ahmed, J., while agreeing with R Islam, J. in the ultimate results
of appeal, gave his separate reasons (not exactly the same as those of R Islam,
J.)
It is not
correct to say that on the publication of the Notifications under section 3 of
the State Acquisition and Tenancy Act existing classification and gradation of
tenants as provided under the Bengal Tenancy Act disappeared and there was only
one class of tenants with effect from April 15, 1956.
SM
Basiruddin Vs. Zahurul Islam Chowdhury and others (1983) 35 DLR (AD) 230.
—From the
date of notification u/s. 3 all classes of tenants became liable to pay rent
directly to the Government and became tenants under the Government alone but in
all other respects they continued to be regulated by the BT Act till Part V of
the Slate Acquisition and Tenancy Act came into operation. Ibid.
—The view
that with the acquisition of rent-receiving interests all under-raiyats were
upgraded to the status of raiyats is wrong. Ibid.
—After
acquisition of rent-receiving interests, all existing tenants became raiyats
under the Government for the sole purpose of collecting rent from them, not
that the different classifications of tenants disappeared with such
acquisition. Ibid.
—It is not
correct that once raiyat interests vested in the Government by acquisition of
superior interests, under-ralyat interests automatically upgraded to the
position of raiyats for all purposes. Ibid.
The underlying
principles of section 3—Discretion conferred by the Section may be called in question when
his exercised arbitrarily and unjustly.—Mere conferment of the discretion, the
exercise of which may lead to classification, is not unconstitutional.
Jibendra K.
Acharya Vs Prov. of E. Pak. (1957) 9 DLR (SC) 21.
What the
Supreme Court decided while remanding the appeals to the High Court was to
expound the law that wakfs in view of Article 18(b) of the Constitution were
not acquirable by the Government and left it to the High Court to apply that
law if the High Court found the properties, after investigation, to be
wakfs—The function of the High Court not being ministerial but judicial.
Prov. of E.
Pak Vs. Md. Mehdi Ali Khan (1959) 11 DLR (SC) 318.
—In Jibendra
Kishore’s case, the Supreme Court declared the law that in view of Article
18(b) of the Constitution wakfs and wakfs al-al-aulad cannot be acquired by the
Government under E.B. State Acquisition and Tenancy Act. The High Court on
remand following the law as laid down by the Supreme Court correctly held that
expropriatory notifications for acquisition of such wakfs are void. What the
Provincial Government seeks in the guise of appeal against that High Court’s
previous judgment is but a review of the Supreme Court’s judgment which is
entirely incompetent. Ibid.
—The
notifications issued by the Provincial Government under the authority of EB Act
XXVIII of 1951 for the acquisition of the estates having been issued under a
void law were themselves void, and although that law regained operation in that
respect upon the snaking of the Proclamation on 10th October, 1958, the
notifications themselves did not regain validity. Therefore, despite the
abrogation of the late Constitution and the promulgation of the Order, the
order made by the Nigh Court on remand, to the effect that the acquisitions by
the Government were void, being based on the law declared by the Supreme Court
in Jibendra Kishore’s case, was perfectly legal and valid. Ibid.
—Alter the
abrogation of the Constitution and the proriulgation of the Order of the 10th
October, 1958. ii k open to the Provincial Government, acting is under powers
derived from the Act of 1950, read with the relevant provisions in the General
Clauses Act, 1897, to withdraw the notifications in question and to issue fresh
notifications in purported exercise of owners derived from the Act of 1950 of
which the relevant provisions must now be treated as being in full force and operation. Ibid.
Forests and
fisheries—Forests
and fisheries not being specified in the notification of the 2nd April, 1956,
it is open to any person to move the authority to release any proper- Lies
which have been seized and to which the Act does not apply.
A Writ
petition is not the proper mode of implementation of the law in respect of wakf
property.
Ali Haider
Khan Vs. of E. Pak (1958) 10 DLR (SC) 80.
—Rights
conferred to acquire rent-receiving interests are not. ex-facie
discriminatory-If and when they arc so used, the party complaining has to prove
it.
Jibendra K.
Acharya Vs Prov. of E. Pak. (1957) 9 DLR (SC) 21 (38).
30 year’s
lease of non-agricultural land not a lease in perpetuity. As such, lessee’s
interest cannot be acquired under section 3 of the Act.
It is patent
that the lease was limited to a specific period of time, namely, thirty years,
and was not, therefore, a lease held in perpetuity.
The
position, therefore, is that the defendant still Continues 10 be lessee under
plaintiff, whose title has not been extinguished by acquisition of all
rent-receiving interests in the Province by the Government under Section 3 of
the said East Bengal State Acquisition and Tenancy Act, 1950.If a proprietor or
a tenure holder has a raiyat or an under raiyat under him, then the said
proprietor’s- tenure-holder becomes a rent-receiver, and, with regard to
non-agricultural land, which has been leased out otherwise than in perpetuity,
the holder of the land does not become a rent-receiver.
Abdul Hafez Vs. Ashraf Ali Choudhary (1965)
17DLR 329.
—Publication
of notification under section 3 of the Act does not eliminate different classes
of tenancies till publication of compensation assessment-rolls.
Having
regard to the provisions of section 24(1) of the East Bengal State Acquisition
and Tenancy Act read with relevant rules namely, rules 18—48(3) and 61, it is
clear that the different classes of tenancies including under-raiyati tenancies
do not cease to exist with publication of notification of acquisition under
section 3 of the East Bengal State Acquisition and Tenancy Act. The entire
chain of interest of rent- receivers will be eliminated only after the
publication of the compensation assessment-roll under section 42 of the Act.
Arfan Ali
Sheikh Vs. Ead Ali Talukdar (1962) 14 DLR 791.
Ss. 3 and
44(4):—Korfa
interest has ceased to exist from the date of acquisition of the rent receiving
interest under section 3—They (korfa tenants) having become raiyats the
provisions of preemption by co-sharer tenant available to them.
After the
wholesale acquisition by the Government of rent receiving interest in 1956
there will be one kind of raiyat only in the country under the Government and
that being the position there could not be any question of korfa or any other
kind of sub-tenants.
The holders
of korfa being upgraded to the status of raiyat, co- sharers in respect of such
interest has got the full right of pre-emption available to them under section
26(F) of the B T Act.
Priya Bala
Devi Vs. Fazar Ali (1966) 18 DLR 480.
— Scope and
functions of section 3 in relation to section 44.
Section 3
embodies a provision for acquisitions of rent receiving interest and section 44
contemplates acquisitions of all acquirable interests including those of
rent-receiver which have been left out after acquisition under section 3. There
is nothing to indicate that the latter section is either a proviso or an
exception to section 44.
Haji
Altafuddin Kazi Vs. Province of E. Pak. (1962)14 DLR 420.
—Failure to
specify the interests acquired does not render the acquisition invalid. Ibid.
—With the
publication of notification u/s 3 all rent-receiving interests including wakf
and debuttor property stood acquired by and vested in the Government.
People’s
Republic of Bangladesh Vs. Sri Sri Madan Gopal Jew Bigraha (1981) 33 DLR (AD)
13.
—Rent-receiver’s
interest stand acquired from time mentioned in notification—Tenants’ interest
stand acquired from the date of notification of the final publication of
compensation assessment-roll.
Reading the
Act as a whole the intention appears to be, firstly, that all rent-receiving
interest shall disappear, secondly, that so far as tenants are concerned, they
will be entitled to retain possession only of certain categories of lands which
are retainable, and thirdly, that even in respect of such retainable lands a
maximum ceiling is fixed. So far as the rent-receivers arc concerned, their
interests are to vest either from the date of the notification of acquisition
or from the date mentioned in such a notification. But so far as tenants were
concerned, their interests arc to stand acquired and vested in Government on
the notification of the final publication of the compensation assessment-roll.
Province of
East Pakistan Vs. Secy. Muktagacha Abbasia Senior Madrassa (1964) 16 DLR (SC)
281.
No fresh
notification for acquisition of hats and bazaars necessary—No fresh
notification for the acquisition of interest of tenants in hats and bazaars was
necessary, because that was to follow as a consequence of the publication by
operation of the provisions of the statute itself, and it is for this reason
that in subsection (3) of section 44 the language used is that they shall be
deemed to vest absolutely in the Provincial Government, that is to say, that as
a legal consequence of the notification of the final publication of the
compensation assessment-roll they shall be treated as if acquired and vested in
the Government. Ibid.
—After the
notification issued under section 3 of the State Acquisition and Tenancy Act,
the status of an under raiyat was upgraded to that of a tenant.
Md. Hossain
Vs. Amir Hossain (1977) 29 DLR 225.
—Rent-receiving
interests can be acquired even before the preparation of record of rights and
publication of compensation assessment-rolls.
An exception
has been made with regard to rent- receiving interest and special provisions
for acquisition of the interests of certain rent-receivers have been made in
Chapter II of Part II of the Act. According to the provisions of this Chapter,
rent- receiving interests can be acquired by publication of notification under
section 3 of the Act even before the general provisions of the Act are given
effect to, that is, before preparation of the record of rights and preparation
and publication of the compensation assessment rolls.
Anwara Begum
Vs. Nur Jahan (1975) 27 DLR (SC) 109.
—After the
Notification issued under section 3 of the Act, the status of the under-raiyat
became upgraded to that of raiyat. Ibid.
Malikana is
rent-receiving interest and as such acquirable under the Act—Right to get
malikana claimed by the petitioner vested in the Government on publication on
2nd April, 1956.
Section 3 is
clear indicator of the fact that the intention of the legislature was that
malikana interest also would be acquired.
Interest
claimed by the petitioner, though acquirable, has not yet vested in the
Provincial Government nor has been acquired by it. Therefore, the Provincial
Government cannot refuse to continue payment of the malikana to the petitioner
until his rights is acquired under Chapter V of the Act.
Khondkar Ali
Afzal Vs. Province of East Pak. (1966) 18 DLR 184.
—No
difference between different kinds of tenants in case of acquisition by
Government.
There is no
distinction between a temporary tenant, a tenant for a term of years, and a
tenant from year to year so far as acquisition of tenancy right by the
Government is concerned.
Province of
East Pakistan Vs. Abdul Jalil Molla, (1968) 20 DLR 1223.
—Notified
acquisition of khas lands under sec. 3(2) can be taken possession of only after
observance of the requirement of law as laid down in (1956) 8 DLR page 457, Jibendra Kishore Acharya Vs. Prov. of E.
Pak.
Prov. of E.
Pakistan Vs. Nakuldas Mridha (1968) 20 DLR 769.
—All khas
lands, till the retainable area is determined are held by the (former)
rent-receivers as tenants under the Government.
As the
acquisition of the khas lands of the rent receiver s, is subject to the
provisions of subsections (2), (3), (4) and (5) of section 20, the rent-
receivers whose interest have been acquired under sub-section 3 can retain all
khas lands in excess of the retainable limit till the excess lands are
determined and taken Out in the manner prescribed in subsections (2), (3), (4)
and (5) of section 20, but those rent-receiver shall till then hold all their
khas lands as tenants directly under the Provincial Government under clause (1)
of sub-section (4) of section 3.
Al-Haj Kutubuddin Ahmed Vs. Al Haridwan Uddin (1962) 14 DLR 128.
Chapter V
which deals with acquisition of all acquirable interests under the Act not only
of rent-receivers but also of cultivating raiyats, cultivating under-raiyats
and non-agricultural tenants. Under Chapter II acquisition precedes preparation
of compensation assessment-rolls but under Chapter V acquisition follows
preparation of compensation assessment-rolls.
Snahalata
Chowdhury (1969) 21 DLR (SC) 440.
—Rent-receiving
interest and non-retainable khas lands of waifs vested in the Govt. from 14th
April, 1956 notifications and not excepted by 9th May, 1959
notifications. Jalil Ahmed (1967) 29 DLR 106.
—Mutawallis
and shebaits who were rent- receivers—the rent-receiving interests and non-
retainable khas lands vested in the Provincial Govt. by the notification, dated
2nd April, 1956.
Excess khas
lands in possession of Mutawallis vest in the Government in terms of s. 43(2)
only when compensation assessment-roll in respect of such land has been
prepared. Ibid.
—Notification
of 2.4.56 acquiring the interest and next notifications of 9.5.59—Affect of these
two sets of notifications—Law applied discriminatingly. Ibid.
—Notifications
of 9.5.59 are re-issuance of notifications of 2.4.56 and expressly excluded all
the properties of religious institutions. Ibid.
—Notification
of 2.4.56 did not bar the right to challenge acquisition by the Governrnent. Ibid.
—Notifications
of 2.4.56 did not acquire the waifs when the Constitution of 1956 was alive. Ibid.
—No physical
possession by the notification of 2.4.56. Ibid.
—When actual
physical possession of waifs not taken, they are intact after 10.1.64 when
fundamental right regarding freedom of religious rights came into being.
Ibid.
—Rent-receiver—If
a person claims to be not a rent-receiver he must state that.
Haji Altafuddin
Kazi Vs. Prov. of East Pakistan (1962) 14 DLR 420.
—The
interest of a lessor who has granted a
temporary lease is also acquirable with only one exception, namely a
temporary lease in respect of nonagricultural land is not acquirable. 30 years’
lease of non-agricultural land not a lease in perpetuity. Such interest cannot
be acquired under section 3.
Surutannessa
Bibi Vs. Debendra Nath Barman (1966) 18 DLR 490.
—Encumbrances
on a tenure when annulled before the date of acquisition on 14.4.56—Khas lands
under the tenure pass to the purchaser.
Adhu Miah Vs. Bazlur Rahman (1964) 16 DLR 669.
—Govt.
notification of 2.4.56 as well of 9.5.59 with regard to the acquisition of waif
and debuttor esbtablish—Latter notification did not exempt waqfs from
acquisition.
Jalil Ahmed
Vs. Province of East Pakistan (1967)19 DLR 106.
—Specification
of interests acquired not necessary when “all interests” are acquired. Tofazzal
Hassan (1963) 15 DLR (SC) 139.
—Failure to
specify the interests acquired does not render the acquisition invalid. Haji
Altafuddin (1962)14 DLR 420.
—Publication
of notification u/s 3 of the Act does not eliminate different classes of
tenancies till publication of compensation assessments-rolls.
Arfan Ali
Vs. Ead Ali (1962) 14 DLR 792.
—Acquisition
of waif when fundamental right not in existence.
Religious
institutions such as waqfs or debuttors, guaranteed under the Fundamental
Rights arc not acquirable under the East Bengal State Acquisition Act, but when
Fundamental Rights arc not in existence such acquisition will be valid in law
and subsequent enactment of the Fundamental Right will not invalidate such
acquisition.
Prov, of East Pak. Vs. Khawaja Habibullah Bahadur (1966) 18 DLR
727.
—Steps to be
taken for actual physical possession not taken by the Government—Notification
does not amount to acquisition. Jalil Ahmed (1967) 19 DLR 106.
—30 years’
lease of non-agricultural land not a lease in perpetuity. As such lessee’s
interest cannot be acquired under section 3 of the Act. Where the lease was
limited to a specific period of thirty years it can be said that it was a lease
held m perpetuity. The position, therefore, is, that the defendant still
continues to be lessee under plaintiff whose title has not been extinguished by
acquisition of all rent-receiving interests under section 3 of the said East
Bengal State Acquisition and Tenancy Act, 1950. If a proprietor or a tenure
holder has a raiyat or an under raiyat under him, then the said proprietor or
tenure holder becomes rent-receiver, and with regard to non-agricultural land, which
has been leased Out otherwise than in perpetuity, the holder of the land does
not become a rent-receiver.
Abul Hafez
Vs. Ashraf Ali Chy. (1965) 17 DLR 329.
—Encumbrances
created by rent-receivers in respect of their khas lands—After acquisition of
excess khas lands, the khas lands which are retained by the rent-receivers, do
not vest in them free from encumbrances.
Nirode
Chowdhury Vs. Ostar Mia. (1964) 16 DLR 202.
—“Free from
all encumbrances” Right of way and easements are encumbrances and, as such ,
arc destroyed, with the acquisition of an estate to which they relate, by the
Government.
Kali Charan
(1958) 10 DLR 523.
—Tenant’s
interests were auction sold to the plaintiff and encumbrances annulled and
decree for khas possession was passed on 24.7.52. Execution proceeding for
delivery of possession started on 24.7.53 which continued when on 1.5.54
Government acquired the rent-receiving interests. Tenants- judgment-debtor’s
contention that with effect from 1.5.54 they became tenants under the Government
is untenable—Plaintiffs became the owner of the tenants’ interests right from
24.7.53—Execution proceeding cannot affect plaintiff’s rights—Government
acquired rent-receiving interest on 1.5.54 but that cannot affect the decrees
which the plaintiff obtained for khas possession before acquisition by the
Government. Plaintiff became tenant under the Government from 1.5.54 in respect
of lands decreed in his favour.
Tayabullah
Sowdagar Vs. Shiddique Ahmed (1961) 13 DLR 610.
—After
acquisition of the rent-receivers’ rent receiving interest u/s 3 the
relationship as landlord and tenant ceased and for arrear rent only money suit
could be filed u/s 63C.
Babar Ali
Prodhan Vs. Kinu Miah (1979) 31 DLR AD 323.