CHAPTER IV
UNDER-TENANTS
Application of Chapter16. The provisions of this Chapter shall apply to all under-tenants whether their tenancies were created before or after the commencement of this Act.
[Omitted.]17. [Terms on which an under-tenant may be admitted to occupation of non-agricultural land.- Omitted by section 8 of the East Bengal Non-Agricultural Tenancy (Amendment) Ordinance, 1967 (East Pakistan Ordinance No. IX of 1967).]
[Omitted.]18. [Rate of rent payable by an under-tenant.- Omitted by section 8 of the East Bengal Non-Agricultural Tenancy (Amendment) Ordinance, 1967 (East Pakistan Ordinance No. IX of 1967).]
[Omitted.]19. [Enhancement of rent.- Omitted by section 8 of the East Bengal Non-Agricultural Tenancy (Amendment) Ordinance, 1967 (East Pakistan Ordinance No. IX of 1967).]
Ejectment of an under-tenant20. Notwithstanding anything contained in any other law for the time being in force or in any contract, an under-tenant shall, subject to the provisions of this Act, be liable to ejectment on one or more of the following grounds, and not otherwise, namely:-
(a) on the ground that he has used the non-agricultural land comprised in his tenancy in a manner which renders it unfit for use for any of the purposes specified in section 4;
(b) on the ground that the term of his lease has expired when he holds the non-agricultural land under a written lease:
Provided that in the case where any non-agricultural land is held by an under-tenant without a lease in writing or under a lease in writing but no term is specified in such lease, it shall be also lawful for his landlord to eject him from such land after having given him six months’ notice in writing expiring with the end of a year of the tenancy, and on payment of such reasonable compensation as may be determined by the Deputy Commissioner in the prescribed manner.
Other incidents of tenancies of under-tenants21. The interest of an under-tenant in any non-agricultural land shall,-
(a) in the case where such under-tenant dies intestate in respect of such interest, be, subject to the provisions of section 91 of the 12[* * *] State Acquisition and Tenancy Act, 1950, transmitted by inheritance in the same manner as his other immovable property:
Provided that in any case in which under the law of inheritance to which such under-tenant is subject his other property goes to the State, his interest in such land shall be extinguished; and
(b) subject to the provisions of this Act and of the provisions of section 90 of the 13[* * *] State Acquisition and Tenancy Act, 1950, be capable of being transferred and bequeathed in the same manner and to the same extent as his other immovable property.
Special incidents of a permanent tenancy of an under-tenant22. Notwithstanding anything contained in any other law for the time being in force or in any contract, where the conditions referred to in clauses (1), (2), (3), (4) or (5) of section 7 or section 10 are fulfilled in relation to the tenancy of an under-tenant or where any non-agricultural land is held by an under-tenant under a lease in writing for a term of not less than twelve years specified in such lease, such under-tenant shall have as regards his immediate landlord all the rights and liabilities of a tenant as set forth in section 7, section 8 or section 10, as the case may be, and the provisions of section 6 shall apply, and the provisions of section 20, in so far as they are inconsistent with the provisions of this section, shall not apply, to such under-tenant.
CHAPTER V
PROVISIONS AS TO TRANSFER OF NON-AGRICULTURAL LAND
Manner of transfer of non-agricultural land and notices to landlords23. (1) Every transfer of non-agricultural land held by a non-agricultural tenant or of any portion or share thereof shall, except in the case of a bequest or a sale in execution of a decree or of a certificate signed under the 14[* * *] Public Demands Recovery Act, 1913, be made by registered instrument, and a Registering officer shall not accept for registration any such instrument unless the sale price or, where there is no sale price, value of the land or portion or share thereof transferred is stated therein, and unless it is accompanied by-
(a) a notice giving the particulars of the transfer in the prescribed form, together with the process fee prescribed for the service thereof on the landlord who is not a party to the transfer, and
(b) such notices and process fees as may be required by sub-section (4).
(2) In the case of a bequest of such land or portion or share thereof, no Court shall grant probate or letters of administration until the applicant files a notice similar to, and deposits a process fee of the same amount, as, that referred to in clause (a) of sub-section (1).
(3) A Court or Revenue-officer shall not confirm the sale of such land or portion or share thereof put to sale in execution of a decree or a certificate signed under the 15[* * *] Public Demands Recovery Act, 1913, and no Court shall make a decree or order absolute for foreclosure of a mortgage of such land or portion or share thereof until the purchaser or the mortgagee, as the case may be, files a notice similar to and deposits a process fee of the same amount as that referred to in sub-section (1).
(4) If the transfer of a portion or share of such land be one to which the provisions of section 24 apply there shall be filed notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service thereof on all co-sharer tenants of such land who are not parties to the transfer.
(5) The Court, Revenue-officer or Registering Officer, as the case may be, shall serve, in the prescribed manner, the notices referred to in the preceding sub-section:
Provided that the service of such a notice shall not operate as an admission of the amount of rent or the area of such land by the landlord or by any co-sharer tenant of such land on whom such notice is served or be deemed to constitute an express consent of the landlord or such co-sharer tenant to the division of the tenancy or to the distribution of the rent payable in respect thereof:
Provided further that, if a transfer is subsequently set aside or modified by a competent authority in any suit, appeal or other proceedings to which the landlord was not a party, the authority before whom the appropriate suit or proceedings was first initiated shall transmit a copy of such order to the landlord.
Power of the co-sharer or the immediate landlord of transferor to purchase24. (1) If a portion or share of the non-agricultural land held by a non-agricultural tenant is transferred, one or more co-sharer tenants of such land may, within four months of the service of notice issued under section 23 and, in case no notice had been issued or served, then within four months from the date of knowledge of such transfer, apply to the court for such portion or share to be transferred to himself or to themselves, as the case may be.
(2) The application under sub-section (1) shall be dismissed unless the applicant at the time of making it deposits in Court the amount of the consideration money or the value of the portion or share of the property transferred as stated in the notice served on the applicant under section 23 together with compensation at the rate of five per centum of such amount.
(3) If such deposit is made, the Court shall give notice to the transferee to appear within such period as it may fix and to state what other sums he has paid in respect of rent for the period after the date of transfer or in annulling encumbrances on the property and also what other amounts, if any, have been spent by him, between the date of the transfer and the date of service of the notice of the application, in erecting any building or structure or in making any other improvement in the portion or share of the property transferred. The Court shall then direct the applicant, including any person whose application under sub-section (4) is granted, to deposit within such period as the Court thinks reasonable such amount as the transferee has paid or spent on these accounts together with interest at the rate of six and a quarter per centum per annum with effect from the date on which the transferee made such payments or spent such amounts:
Provided that if the correctness of any amount claimed to have been paid or spent by the transferee on any such account is disputed by any applicant the Court shall enquire into such dispute and, after giving the transferee an opportunity of being heard, determine the amount actually paid or spent by the transferee on any such account and shall then direct the applicant to deposit the amount so determined with interest at the rate of six and quarter per centum per annum as aforesaid within such period as the Court thinks reasonable.
(4) (a) When an application has been made by one or more co-sharer tenants under sub-section (1) any of the remaining co-sharer tenants including the transferee, if one of them, may within the period of four months referred to in the said sub-section or within one month of the service of notice of the application, whichever is later, apply to join in the said application, and any co-sharer tenant who has not applied under sub-section (1) or has not applied to join under this sub-section, shall not have any further right to purchase under this section.
(b) Such application to join as a co-applicant shall be dismissed unless within such period as the Court may fix, the applicant deposits in Court for payment to the applicant under sub-section (1), such sum, as the Court shall determine as the share to be paid by him for the purposes of sub-section (2).
(c) If such deposit is made, the Court shall grant the application to join and thereafter such applicant shall be deemed to be an applicant under sub-section (1).
(5) If the deposits required under sub-section (2) or clause (b) of sub-section (4), as the case may be, and under sub-section (3) are made, the Court shall make an order allowing the application and directing that the deposits made under sub-sections (2) and (3) shall be paid to the transferee or to such persons as the Court thinks fit.
(6) Notwithstanding anything contained in any other law for the time being in force the Court shall, if the applicant under sub-section (1) or any person whose application under sub-section (4) is granted disputes the correctness of the amount of the consideration money as stated in the notice issued under section 23, inquire into such dispute before making an order under sub-section (5) and after giving the transferee an opportunity of being heard determine for the purposes of this section the amount of the consideration money which the transferee has actually paid for the transfer of the portion or share of the property and the amount so determined shall be deemed to be the consideration money referred to in sub-section (2) and where the amount of the consideration money has been so determined the deposit made under that sub-section shall for the purposes of sub-section (5) be the amount so determined together with the compensation at the rate of five per centum of such amount.
(7) In making an order under sub-section (5) in favour of more than one co-sharer tenant, the Court may apportion the property comprised in the portion or share transferred among the applicants in such manner as it deems equitable after taking existing possession into consideration; the Court shall so apportion the said property or portion thereof on the request of any applicant and, in this case, may require the applicant who makes such request to deposit, within such period as the Court may fix, such further sums as the Court considers necessary for equitable distribution among the remaining applicants:
Provided that no apportionment order under this sub-section shall operate as a division of the tenancy.
(8) From the date of making of the order under sub-section (5)-
(i) the right, title and interest in the share or portion of the non-agricultural land accruing to the transferee from the transfer shall, subject to any order passed under sub-section (7), vest free from all encumbrances, which have been created after the date of transfer, in the co-sharer tenant whose application to purchase has been allowed under sub-section (5),
(ii) the liability of the transferee for the rent due from him on account of the transfer shall cease, and
(iii) the Court, on further application of such applicant, may place him in possession of the property vested in him.
(9) An appeal from any order of a Court under this section shall lie to the Civil Appellate Court having jurisdiction to entertain such appeals.
(10) Nothing in this section shall take away the right of pre-emption conferred on any person by Muhammadan Law.
(11) Nothing in this section shall apply to-
(a) a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, or
(b) a transfer by exchange, or partition, or
(c) a transfer by bequest or gift (including heba but excluding heba-bil-ewaz for any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or
(d) a wakf in accordance with the provisions of the Muhammadan Law, or
(e) a debottor or any other dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual.
Explanation.- A relation by consanguinity shall for the purposes of this sub-section, include a son adopted under the Hindu Law.
Saving as to statements in instruments of transfer where landlord is not a party25. Notwithstanding anything contained in the Evidence Act, 1872, nothing contained in any instrument of transfer to which the landlord is not a party shall be evidence against the landlord of the permanence, the amount or fixity of rent, the area, the transferability or any incident of any tenancy referred to in such instrument.
Interpretation
- (1) In this Chapter “transferee”, “purchaser” and “mortgagee” include their successors-in-interest.
(2) In section 23,-
(a) “transfer” does not include partition or until, a decree or order absolute for foreclosure is made, simple or usufructuary mortgage or mortgage by conditional sale;
(b) “transferor” includes a person whose interest in any non-agricultural land or portion or share thereof has terminated in the circumstances mentioned in sub-section (2) or sub-section (3) of that section.
Bar to sub-let16[26A. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or in any contract, no non-agricultural tenant shall sub-let the whole or any part of his tenancy on any terms or conditions whatsoever.
(2) If any tenancy or any part of a tenancy is sub-let, in contravention of the provision of sub-section (1), the interest of the non-agricultural tenant in the tenancy or in that part of the tenancy, as the case may be, shall be extinguished, and the tenancy or the part of the tenancy shall vest in the Provincial Government from the date of such sub-letting free from all encumbrances.]