State Acquisition and Tenancy Act, 1951 [Section 3(1)]


State Acquisition and Tenancy Act, 1951

 

S. 3(1)—Acquisition
of rent-receiving interest by publication of notification under section 3(1). On
the publication of a notification under sub-section (1) of section 3 the
rent-receiving interests of the rent-receiver stand acquired from the date
mentioned in the notification and all his rent-receiving interests together
with his interests in all lands in his khas possession vest absolutely in the
Provincial Government free from all encumbrances and he becomes a tenant
directly under the Government.

Snahalata
Chowdhury Vs. Ostar Mia (1969) 21 DLR (SC) 440
.

 

—Upon
acquisition the estate vested in the Govt. free from encumbrances which
includes all easements and customary rights and such rights arc destroyed by
acquisition.

Kali Charan
Das Vs. Tamiruddin (1958) 10 DLR 523.

 

—Rights of
way are easements and as such are encumbrances and destroyed with the
acquisition of an estate.

Kali Charan
Das Vs. Tamiruddin (1958) 10 DLR 523.

 

—On a
notification published u/s. 3(1) the interests of the rent-receivers in
estates, taluks and tenures specified in the notification including their
interests in all the land in their khas possession and also including their
interests in any building, etc. specified in sub-section (4) shall vest in the
Provincial Govt.

Md. Ibrahim
Mondal Vs. Province of E. Pakistan (1963) 15 DLR 703.

 

—Publication
of notification under section 3 does not eliminate different classes of
tenancies till publication of compensation assessment-role.

Arfan Mia Vs.
Ead Ali (1962) 14 DLR 792.

 

—Notification
showing acquisition must be published before the date from which acquisition
became effective, otherwise notification is ineffective.

In the
Notification, it was stated that the Provincial Government was acquiring the
estate in question with effect from the 1st July, 1955. It has been contended
that even if the notification was not published on or about the 8th June 1955
or before the 1st July 1955 the notification would be effective on and from the
date when it was published.

Held: In
order that a notification under section 3 of the Act becomes effective, it is
necessary that it should be published before the date mentioned in the
notification on and from which the Provincial Government intends to acquire the
estate in regard to which the notification is issued. 11 this is not done, the
notification will be absolutely ineffective.

Province of East Pakistan
Vs. Nawab Habibullah. (1966) 18 DLR 727.

 

—Acquisition
if otherwise valid will not be rendered invalid merely because compensation for
acquisition not paid.

Held:
Payment of compensation not being a condition precedent for acquisition, its
non payment before the Fundamental Rights come into operation – on the 10th
January, 1964, cannot be said to have affected the position of the Provincial
Government if the estates had otherwise vested in it.

Province of East Pakistan
Vs. Nawab Habibullah. (1966) 18 DLR 727.

 

—If the
Government by a notification acquired the interests of all rent-receivers in a
district, part of a district, or local area, by reference to areas wherein they
had interest—It is valid.

Jibendra K.
Acharya Vs. Prov. of E. Pak. (1957) 9 DLR (SC
) 21.

 

Section 3(1)
and Form No. 1, column 2.

Omission in
the notification, of the extent of share of the interest acquired, not fatal.

Nawab Sir
KGM Faroqui Vs. Prov. of E Bengal (1957) 9 DLR 174.

 

—Acquisition
of property by notification on 24.4.1952 rendered the plaintiff (who was
originally a zaminder) ‘non-rent-receiver”—Another notification dated 11.8.52
released from acquisition certain property of the plaintiff—Plaintiffs claim to
the suit property is based on the notification of 11.5.52 is well founded, as
on the date of the general acquisition notification issued on 2.4.56 acquiring
rent receivers’ interest did not affect the plaintiffs property as he was on
that date not a rent-receiver.

Sudhir
Chandra Das Vs. Hatem Bepari (1968)20 DLR 627.

 

—Abolition
of rent-receiving interest—-Relationship between landlord and tenant  from 14.4.56—Suits for rent for period after
14.4.5 arc not rent suits but money Suits.

It appears
that the rent Suit was filed by the outgoing landlord in 1959 for arrears of
rent prior to the acquisition by the State under the notifications of 2nd
April, 1956. The Government allowed the Outgoing landlord to realise the
arrears of rent due. The suits for realization of such rents cannot be called
as rent suits. On or from 14th of April 1956, the relationship of landlord and
tenant so far as the previous rent-receivers are concerned ceased to exist. The
State had become the landlord throughout the province. Therefore, the ex-landlord
could bring only a suit which could be called money suit for realization of
their arrears of rent. Therefore, the Court had no jurisdiction to entertain
the suit in the form of a rent suit.

Abdul Hamid
Vs. Ali Baksha Mondal (1968) 20 DLR 699
.

 

—Read with
Bangladesh (Legal Proceedings) (Third) Order (90 of 1972)

After the
promulgation of P0 90 of 1972 all orders including orders of injunction, etc.
passed in appeals, applications, etc. shall cease to have any of- feet and no
court shall entertain any fresh suit, appeal, application, etc. in which the
legality of any such law of acquisition is challenged or called in question.

Promode
Ranjan Shuha Vs. Govt. of Bangladesh (1981) 33 DLR (AD) 53.

 

—Acquisition
of wakf when fundamental right not in existence.

Religious
institutions such as wakfs or debuttors, guaranteed under the Fundamental
Rights are not be acquirable under the East Bengal State Acquisition Act, but
when Fundamental Rights are not in existence such acquisition will be valid in
law and subsequent enactment of the Fundamental Right will not invalidate such
acquisition.

Province of
East Pakistan Vs. Khawaja Hahihullah Bahadur (1966) 18 DLR 727.

 

—Acquisition
of debuttor property by notification of 1959, if valid.

Question
arose was whether the Provincial Government acquired the debuttor property by
notification No. 7463 LR dated 9.5.59.

Held: If a valid
debutter had been created in respect of the properties by a deed then those
properties would not be affected by the notification of the 9th May, 1959.

Province of
East Pakistan Vs. Kshiti Dhar Roy (1964) 16 DLR (SC) 457.

 

S. 3(1)(2)—Notifications
of 2.4.56 did not acquire the wakf when the Constitution of 1956 was alive.

Jalil Ahmed
Vs. Province of East Pak. (1967) 19 DLR 106.

—Steps to be
taken for actual physical possession not
taken by the Government—Notification does not amount to acquisition. Ibid.

—When actual
physical possession of wakfs not taken they are in fact after 10.1.64 when
Fundamental Right regarding freedom of religious rights come into being. Ibid.

—Dedication
of property to religious trusts— Document to be read as a whole to find out the
real purpose.

Where a
document shows that the property has’ been substantially dedicated to religious
or charitable purposes, it becomes a religious trust notwithstanding the use of
the words lessor, lessee or rent in the document.

Kishti Dhar Roy Vs. Province of East Pak. (1962) 14 DLR 680.

 

—Government
notifications of 2.4.56 as well of 9.5.59 with regard to the acquisition of
wakf and debuttor estates—Latter notifications did not exempt wakfs from
acquisition.

Satter, J.
(Ali, J. agreeing with him):— It is impossible to hold that the Government
decided when they issued the notifications of the 9th May, 1959, to exempt all
wakf and debuttor estates from acquisition. The intention appears to be not to
seem to acquire any wakf or debuttor property which had not been till then
acquired.

Jalil Ahmed
Vs. Province of East Pakistan (1967) 19 DLR 106.

—Protection
afforded by Article 18 of the 1956 Constitution having disappeared with its
abrogation, while appeals were pending before the Supreme Court, Governments
acquisitions under section 3(1) (2) could not be challenged—This also implies
that all wakfs stood acquired less than 1956 Constitution. Ibid.

—Rent-receiving
interest and non-retainable khas lands of wakf vested in the Govt. from 14th
April, 1956 notifications and not accepted by 9th May, 1959 notifications.

Under the
notifications of the 2nd ApriL, 1956, the rent receiving interests and the
non-retainable khas lands at least of the Wakfs and debuttors having
rent-receiving interests vested in the Provincial Government on and from 14th
ApriL, 1956.

The legal
consequence under section 44, amongst others, is that all acquirable interests
“other than the interests who have already been acquired under Chapter 1l’ vest
in the Government. Ibid.

—Acquisition
revives when Fundamental Rights are gone—Subsequent introduction of Fundamental
Right not being retrospective does not help. Effect of Supreme Courts decision
in Mehdi Ali Khan’s case.

If
acquisition of such properties takes place under the Act at a time when no such
Fundamental Right is in force the same cannot be challenged on the basis of
Fundamental Rights having been brought in force subsequent to the acquisition.   Ibid.

 

—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. Secretary, Muktogachu Abbassia Senior Madrassa (1964)16 DLR
(SC) 21.

 

—Khas lands
of rent-receivers are possessed by them in their capacity as rent-receivers,
but once the rent-receiving interests are acquired on the publication of
notification under sub-section (1) of section 3, the khas lands also vest in
the Government. This vesting is rather notional and is for the purpose of
realization of rent from the outgoing rent-receivers. Whatever vests in the
Government vests free from all encumbrances. A rent-receiver in spite of this
vesting continues to retain possession of his khas lands. A change, no doubt,
takes place in his status. He held, before the date mentioned in the
notification, these lands in his right as rent-receiver but from that date he
becomes a tenant under the Government. The lands remain with him and the
vesting in the Government of these lands free from all encumbrances does not
come to his aid in any way.

Snahalata
Chowdhury (1969) 21 DLR (SC) 440.

 

—Notification
under sub-section (1) of s. 3 does not deprive rent-receiver of possession of
his khas lands for which another notification under subsection (2) is
necessary.

Tofazzal
Hossain (1963)15 DLR (SC) 139.

 

—Notifications
of 2.4.56 acquiring the interest and next notifications of 9-5-59. Effect of
these two sets of notifications—Law applied discriminatingly.

Abdullah.
J.—(Disagreeing with the majority views)—So far as notifications under section
3(1) and 3(2) issued on 9th May, 1959 are concerned it will be seen that on the
relevant date exceptions in the matter of acquisition have been made with
regard to interests and rights which had already been acquired by and already
vested in the Provincial Government under the provisions of the Act as also
with regards to the interests and rights that were held under any wakf,
debuttor or other religious trusts. If the exceptions as to the wakf, debuttor
or other religious trusts  deemed to
relate only to those estates which, because of some technicality or special
circumstances, had not been deemed to have been included in the omnibus
notifications of 2nd April, 1966, then obviously, the executives were applying
the law discriminatingly. There was no reason for the exemption of certain
particular wakfs from acquisition on 9th May, 1959.

In reissuing
the notices on 9th May, 1959, the Government exempted those properties which
had been held by the Supreme Court in Jibendra Kishore’s case to be protected
from acquisition.

For this
reason the notifications of 9th May, 1959, were the rcissuancc of the notice of
2nd April, 1956, without the vitiating inclusion of properties held by the
Supreme Court to be exempted from acquisition under the Act as it stood.

Jalil Ahmed
Vs. Pronince of East Pakistan (1967) 19 DLR 106.

 

—Notification
of 2,4.56 did not bar the right to challenge acquisition by the Government.

Notifications
of 2nd April, 1959, did not extinguish the right of any petitioner to challenge
the validity of the acquisition purported to be made by those notifications. Ibid.

Governments
acknowledgement by the notifications of 9.5.59 that they did not acquire the
wakfs, etc. by the notifications of 2.4.56—In effect notifications of 9.5.’59
arc re-issuance of notification of 2.4.56 and expressly excluded all the
proper- ties of religious institutions.

The (majority)
decision in Mehdi Ali Khan Panni’s case was confined to the set of appeals
before the Supreme Court—No declaration in the judgment that all acquisitions
of 2.4.56 valid.   Ibid.

—Two
alternative modes of acquisition under the Act.

Government
not having followed the prescribed procedure for taking possession of the properties
concerned in the manner laid down in Chapters II and VA and in relevant rules,
after service of their notifications under section 3, they were not acquired by
them. Ibid.

—Encumbrances
created by rent-receivers in respect of their khas lands — After Government
acquisition of excess khas lands, the khas lands which are retained by the
receivers, do not vest in them free from encumbrance created by them.

The question
arose was whether in view of the visions in the East Bengal State Acquisition
and tenancy Act, 1950, the rent-receivers’ khas lands, retained by them, will
also vest in them free from all encumbrances:

Held: After the
acquisition of the interest of the rent-receivers, khas lands which are
retained by the rent-receivers do not vest in them free from all encumbrances
but they are taken subject to the encumbrances created by them or by their
default.

Nirode
Ranjan Vs. Ustar Miah. (1964) 16 DLR 202.

 

—Supreme
Court in Jibendra Kishore’s case declared that acquisition by Notifications in
April, 1956 of Wakf and Debuttor properties under section 3(l)(2) of EB State
Acquisition and Tenancy Act being in derogation of the Fundamental Right,
Article 18 of the 1956 Constitution were illegal and ultra vires. But with the
abrogation of the 1956 Constitution and its replacement by the Laws
(Continuance in Force) Order, 1958, Fundamental Rights under 1956 Constitution
became dead and thereupon the acquisitions of Wakf and Debuftor properties
which were made by Notifications in April 1956 revived and regained their life
and it must, therefore, he held that properties held in Wakf and Debuttor
vested in the Government by virtue of the Notifications issued wider section
3(1 )(2) in Chapter II, and those that were not so acquired by Notifications
under section r 3(1X2) in April 1956, stood subsequently acquired d vested in
the Government on the final publications of the compensation assessment rolls
under secs. 43 and 44. (This conclusion has been arrived at on the basis of the
majority’s decisions in Khan Panni’s and Dosso’s cases. Minority view expressed
therein by the learned Chief Justice was that Writ petitions made under the
1956 Constitution challenging acquisitions on the basis of Fundamental Rights
did not abate with the abrogation of 1956 Constitution.

Introduction
of Fundamental Rights in the 1962 Constitution in 1964 being at a time when the
Government’s acquisitions of Wakf and, Debutlor proper- tics under Chapter II
and V had already taken place and therefore, the present Writ petitions on the
basis of Fundamental Rights embodied in 1964 were of no avail and must be
dismissed as non-maintainable.

Chowdhury
Tanbir Ahmed Siddiky Vs. Prov. of East Pakistan (1968) 20 DLR (SC) 145.

 

S. 3(1)(4)—Failure to
specify the interest acquired does not render the acquisition invalid.

The
specifications of the properties which are intended to be acquired mentioned in
sub-sections (I) and 4) of section 3 of the Acquisition Act refer to
rent-receivers and not to their interests. Sub-section 2(a) of section 3 of the
Act provides that in a notification issued under this section, rent-receivers
may be specified or described by name, or by reference to areas wherein they
have interests, or in such other manner as the Provincial Government may
determine. The notification dated the 2nd of April, 1956 was issued with
reference to area. For the failure to mention the interest of the
rent-receivers falling in the area, no illegality has been committed.

Haji
Altafuddin Kazi Vs Prov. of East Pakistan (1962) 14 DLR 420.

 

Ss. 3(1) &
(4)(a)—
Khas
lands which were parts of taluks and over which the neighboring people had
pasturage rights—On acquisition of taluka interests the lands remaining in
possession of the former rent-receivers were not free from the pasturage right
which the people had over them.

Khas lands
of rent-receivers are possessed by them in their capacity as rent-receivers,
but once the rent-receiving interests are acquired on the publication of
notification under sub-section (1) of section 3, the khàs lands also vest in
the Government. This vesting is rather notional and is for the purpose of
realization of rent from the outgoing rent-receivers.

Whatever
vests in the Government vests free from all encumbrances. A rent-receiver in
spite of this vesting continues to retain possession of his khas lands. A
change, no doubt, takes place in his status. He held before the date mentioned
in the notification, these lands in his right as rent-receiver but from that
date he becomes a tenant under the Government. The lands remain with him and
the vesting in the Government of these lands free from all encumbrances does
not come to his aid in any way.

On the
publication of a notification under subsection (1) of section 3 the
rent-receiving interests of the rent-receiver stand acquired from the date
mentioned in the notification and all his rent-receiving interests together
with his interests in all lands in his khas possession vest absolutely in the
Provincial Government free from all encumbrances.

Snahalata
Chowdhury Vs. Ostar Mia (1969) 21 DLR (SC) 440.