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Petitioner: MUHAMMAD ABDUL AZIZ VS Respondent: THE PROVINCE OF EAST PAKISTAN AND OTHERS-
P L D 1961 Dacca 710
P L D 1961 Dacca 710
Before Murshed and Sattar, JJ
MUHAMMAD ABDUL AZIZ‑Petitioner
versus
THE PROVINCE OF EAST PAKISTAN AND OTHERS -Respondents
Writ Petition No. 59 of 1958, decided on 2nd March 1961.
(a) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)---
----- S. 2 (16) ‑"Land", definition‑"Benefits to arise out of land"‑Tolls collected in respect of Hat, held to be such benefits‑Hat (market)‑Not grant or licence but incident attached to land.
Held, that a fight to collect tolls, or rents and profits, in respect of a Hat, is covered by the words "benefit to arise out of land" used in section 2 (16), East Bengal State Acquisition and Tenancy Act, 1950.
The collection of tolls or profits or rents is not a right which arises in the abstract without any reference to the land on which the Hat is situated. It is an incident arising out of the ownership of land.
There is a fundamental difference between rights which accrue in fairs and markets in England and the corresponding rights in the sub‑continent of India and Pakistan, and, more particularly in East Pakistan. In Pakistan there is no right to hold a market or a fair by a grant from the Crown and it is not in the nature of franchise ; it is primarily a right which arises as an incident to ownership of land. Any person, who possesses a piece of land, has a right to hold a Hat thereon as an incident to his proprietary interest in the land.
Sikandar v. Bahadur I L R 27 All. 462; Surendra Narain Singh v. Bhai Lal Thakur I L R 22 Cal. 752; Gholam Mohiuddin Hossein v. Parbati I L R 36 Cal. 665; Bhudeb Chandra Roy and others v. Bhikshakar Pattanik and others 196 I C 837 Hem Chandra Roy Chawdhury v. Bepin Behary Saha Sardar 24 C W N 800 and Province of Bengal v. Hingal Kumari Law 50 C W N 184 dissented from.
Secretary of State for India v. Karuna Kanta Chowdhury 11 C W N 1053 considered.
(b) Transfer of Property Act (IV of 1882)-----
----- S. 107‑Kabuliyat (registered) executed unilaterally (by tenant alone)‑Invalid.
(c) East Eengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)-----
---- S. 3(4) (a)‑" Free from all encumbrances" Right to receive tolls from land‑Acquisition of land by Provincial Government‑Acquisition is free from such right‑(Quaere) whether such right is "extinguished" by the fact of acquisition.
(d) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)----
----- S. 3 (4) (a)‑Validity not open to question‑Validation of Laws Act, 1956, Ss. 4, 5‑Government of India Act, 1935, S. 299: [The Punjab Province v. Malik Khizir Hayat Khan Tewana P L D 1956 F C 200 ref.]
(e) East Bengal Prevention of Transfer of Property and Removal of Document and Records Act (V of 1952)----
---- S. 3‑Registered Kabuliyat in respect of Hat executed on 3‑8‑1953‑Void.
(f) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)----
----- S. 20 (2) (b) (iii)‑Whether Hat cannot be acquired‑East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance (XII of 1960), S. 6‑Whether ultra vires: Yusuf Ali Chowdhury v. Province of East Pakistan P L D 1959 S C (Pak.) 467 considered.
M. H. Khondkar with Mahbubur Rahman for Petitioner.
A. S. Chowdhury, Advocate‑General with Syed Mohsin Ali for Respondents.
Dates of hearing : 28th February 1961 and 1st & 2nd March 1961.
JUDGMENT
MURSHED, J.‑This writ petition and four such others were heard seriatim by us inasmuch as they raise certain common points and this judgment will also form part of the judgment in the rest of the petitions.
We propose to take up Writ Petition No. 59 of 1958 in which the petitioner, Muhammad Abdul Aziz, has alleged that he has taken lease of a Hat, called Navaran Hat, situated on C. S. Plot Nos. 146/816, 318, 141, 3i5, 316 and 317 of Mouza Navaran, P. S. Jhikargacha, District Jessore. He has averred that the said Hat was possessed and enjoyed by one Babu Bejoy Gopal Roy who was the owner in respect thereof. The petitioner has stated that he took settlement of the said Hat from the above‑mentioned Babu Bejoy Gopal Roy in Ijara right for the year 1359 B. S. at an annual rental of Rs. 125 only. On the expiry of the term of the said settlement, the petitioner executed a registered Kabuliyat, dated the 29th of Sravan 1360 B. S., corresponding to the 4th of August. 1953, and took Ijara of the aforesaid Hat from the said Babu Bejoy Gopal Roy and others for a term of thirty years with effect from 1360 B S., (corresponding to 1953 A. D.). He has also stated that eversince the 4th of August 1953, he has been in possession of the said Hat on payment of rent at the rate of Rs. 125 per annum and that he has been realizing tolls from temporary shop‑keepers who assemble at the Hat which is held once a week on every Wednesday.
The petitioner has further stated that, in order to improve and extend the aforesaid market, which is a cattle market, he, took settlement by two registered deeds, dated the 13th of August 1953, of C.S. Plots Nos. 312 and 169 of the said Mouza from one Md. Tabrez Ali and also took settlement of C. S Plot No. 173. from one Mohammed Azizur Rahman with a stipulation that he would use the aforesaid land only for the said market and that, on the termination of the market, the land would revert to the owner. In paragraph 4 of the petition the petitioner has stated as follows :
"That the terms of your petitioner's Ijara have not yet expired your petitioner is not a rent‑receiver nor has he any proprie tary interest in the said `Navaran Hat' or in the lands upon which the Hat is held. That your petitioner is merely an Ijaradar for the aforesaid period to collect from the temporary shop‑keepers tolls, which are also not rents. That your peti tioner is also not a rent‑receiver in respect of any other land in the District or anywhere else in the Province of East Pakistan
Again the petitioner goes on to say that the Additional Col lector of Jessore had, on the application of the petitioner, directed him to pay rent to Government, in respect of the said Hat with effect from 1363 B. S. The petitioner has also deposited a sum of Rs. 250 as rent for the years 1363 B. S. and 1364 B. S. in the Jessore Treasury by challan. Therefore, the petitioner claims that he is in possession of the said Navaran Hat as Ijaradar on payment of rent to the respondent Government as they have acquired all rent‑receiving interests in the Province. The petitioner has also claimed that he is not a rent receiver, either in respect of the said plots of land on which the Hat is situated, or with regard to any land in the Province of East Pakistan. It is not necessary to set out any further averments in the petitioner.
On behalf of the respondents an affidavit‑in‑opposition was sworn by one Md. Abdullah Chowdhuri, Assistant Secretary, Revenue Department, Government of East Pakistan. In the said affidavit‑in‑opposition all the averments of the petitioner have been traversed. In paragraph 4 of the said affidavit‑in‑opposition it has been stated as follows:
"This deponent says that these was no cattle market in the Navaran Hat alleged to have been taken settlement of by the petitioner. The fact is that at Benapole there was a cattle market. The cattle market having been banned in border belt after partition the Benapole cattle market was disbanned. As there was no market in between Benapole and Jhikargacha, the petitioner and his brother were granted a licence on 1‑10‑52 to establish a cattle market on their own land to obviate the difficulties of the local people. To avoid acquisition ‑the petitioner has collusively executed the alleged Ijara Kabuliyat adding therein that the cattle market was settled with him at Rs. 25 (sic) per annum on C.S. Plot No. 315, although there have been no such cattle market on this plot nor any since been held thereat. The cattle market actually stands on Plot Nos. 171, 173, 312 and 169. Petitioner obtained licence for establishing a cattle market on the eastern side of the Navaran Hat. Had there been any cattle market on the said `Hat' there was no necessity of establishing another market on its contiguous land."
The respondents have also contended that the alleged deed of Ijara settlement by the petitioner, dated the 4th of August 1953. did not create any right in favour of the petitioner and is not, therefore, binding on the respondents. They have also stated that the petitioner is a rent‑receiver. In paragraph 5 of the said affidavit‑in‑opposition it has been stated as follows :
"That the petitioner is a rent‑receiver will be evident froth the Dakhilas granted by him and his co‑sharer as rent‑receivers to the tenants and the Khatian No. 143/2 in respect of Mouza Narayanpur, J. L. No. 75, Touzi No. 5085, to which this deponent craves leave to refer at the time of hearing of the petition."
In paragraph 10 of the affidavit‑in‑opposition it is stated as follows:
"That this deponent does not admit the statement made in paragraph. 12 of the petition and avers that the order of the additional Collector made on the 25th of April 1957 is not final and binding upon the respondents. The Collector and the Board of Revenue were competent to revise that order at any time in any manner they thought fit. I further assert that the terms of the Ijara subsisting for 30 years are not binding upon the respondents."
It will thus be seen that the petitioner's title to the said Hat has been seriously disputed by the respondents, and, furthermore, it has been strenuously contended on behalf of the respondents that the petitioner is a rent‑receiver, both in respect of the plots of land on which the Hat is situated and also in respect of other lands in the Province of East Pakistan.
In the further affidavit filed on behalf of the petitioner it has been contended that the petitioner has parted company with the rent‑receiving interest mentioned in the affidavit‑in‑opposition by an amicable settlement with his co‑sharer and that he has, as a result of such amicable partition, taken some land which has no rent‑receiving interest.
This again has been seriously challenged before us, and no document has been produced before us to support the aforesaid averment made by the petitioner in his further affidavit.
At the hearing of this petition Mr. M. H. Khondkar appeared before us for the petitioner and has contended that the right of the petitioner in the aforesaid plots of land is merely a right to collect tolls in respect of the Hat situated on the aforesaid plots of land without his having any interest in the lands themselves. This does not seem to be clear from the petition and affidavits filed on behalf of the petitioner. But Mr. Khondkar at the hearing of the petition told us that he had with him the registered document by which the petitioner had obtained a lease of the right to collect tolls, and the document in question has been stated be the document mentioned in paragraph 2 of the petition and is dated the 4th August of 1953. From the document as read out to us it is patent that possession of the lands was made over to the petitioner in pursuance of the said document dated the 4th of August 1953.
On the affidavits that have been filed before us it is difficult for us to hold that the right of the petitioner is merely a right to collect tolls and that he has taken no interest in the land itself. However, even conceding that he has taken a mere right of collection of tolls from the said market held in the land made over to him without any other interest in the land itself, we will have to see what will be its attendant conse quences.
Mr. Khondkar has argued that, inasmuch as the petitioner's right consists of merely a right to collect tolls, it does not come within the definition of 'land' as defined in section 2, subsec tion (16) of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951) (hereinafter referred to as the Act). Subsection (16) reads as follows
" `land' means land which is cultivated, uncultivated or covered with water at any time of the year, and includes benefit to arise out of land, houses or buildings and also things attached to the earth, or permanently fastened to anything attached to the earth."
Mr. Khondkar has, therefore, contended that although possession of the land was given to the petitioner, his right in respect of the said Hat hold on such land cannot be deemed to be a `benefit to arise out of land', and furthermore, that such a right does not come within the definition of land as stated above. It has, therefore, been contended that the petitioner's interest in respect of the aforesaid plots of land cannot be acquired by the Province of East Pakistan under the provisions of the Act and, therefore, under the Notification No. 4846 L. R., dated the 2nd of April 1956, the petitioner's right was not, and cannot be acquired.
He has next contended, relying on the decision of the Supreme Court in the case of Yusuf Ali Chowdhury v. Province of East Pakis tan (P L D 1959 S C (Pak.) 467) that even if it is held that the petitioner's interest comes within the definition of land, it cannot be acquired inasmuch as such a Hat comes within the purview of a retainable land as men tioned in section 20 (2) (b) (iii) of the Act.
These were the arguments which were addressed to us by Mr. Khondkar on behalf of the petitioner.
Learned Advocate‑General appeared before us on behalf of the Province of East Pakistan, and has contended that, even if the petitioner's right in respect of the aforesaid plots of land, on which the alleged Hat is situated, is taken to be a mere right to collect tolls, it will, nevertheless, come within the definition of "Land" as stated above. He has argued that the petitioner's interest, as claimed by him, would come within the meaning of the phrase "benefit to arise out of land".
We think that this contention must be upheld. Even a mere right to collect tolls from a market, which is situated on a land is certainly a gain which arises out of the land, and is one of the incidents of ownership of the land. In the case of Sikandar v. Bahadur (I L R 27 All. 462) a Division Bench of the Allahabad High Court has held that the right to collect market dues upon a given piece of land is "a benefit to arise out of land" within the purview of section 3 of the Indian Registration Act, 1877, and a lease, therefore, of such a right for a period of more than one year must be made by the registered instrument. At page 463 of the report the learned Judges have observed as follows :
"On behalf of the appellants it is urged that by virtue of section 107 of Act IV of 1882 and also by dint of section 17, clause (d) of the Registration Act such a lease could be made only by a registered instrument, the lease being one of "immov able property" for a term exceeding one year and reserving yearly rent. Our attention is called to the definition of immov able property contained in section 3 of the Registration Act. Among the classes of property included in that definition is to be found after the last of the specific classes of property set forth, the general term "any other benefit to arise out of land". Therefore, the principal question we have to consider is whether the right to collect dues upon a given piece of land, the property of the alleged lessor, is a benefit to arise out of land within the purview of section 3 of the Registration Act. Ian our opinion the right to collect dues upon a given spot is such a benefit, and therefore we are constrained to find that the docu ment in question purported to convey that which falls within the definition of immovable property."
In the case of Surendra Narain Singh v. Bhai Lal Thakur (I L R 22 Cal. 752) a Division Bench of the Calcutta High Court has held that tolls realised in a Hat is a benefit arising out of land, and, therefore, within the definition of "immovable property" as given in section 2, chase (5) of the General Clauses Act (I of 1868) and the lease of a Hat comes within section 107 of the Transfer of Property Act (IV of 1882), and can be effected only by a registered instrument. At page 755 of the report the learned Judges have observed as follows
"In second appeal plaintiff contends that a Hat is not immov able property, and that consequently section 107 of the Transfer of Property Act does not apply. But a Hat is a benefit arising out of land, and therefore within the definition of immovable property as given in section 2, clause (5) of the General Clauses Act, and consequently the lease of a "Hat" comes within section 107 of the Transfer of Property Act, and can be effected only by a registered instrument."
In the case of Gholam Mohiuddin Hossein v. Parbati (I L R 36 Cal. 665), the question that arose before a Division Bench of the Calcutta High Court was, whether rents and profits derivable from a Hat could be validly mortgaged. Doss, J., in delivering the judgment of the Division Bench, has made the following observation at page 669 of the report
"In Bungshodhur Biswas v. Mudhoo Mohuldar (1874), 21 W R 383 the question was whether a lease could be given of the profits of a Hat. The learned Judges said : "The collections which the plaintiff let in form to the defendants are not, it seems to us, in the nature of internal duties. They are merely in the nature of rent which the owner of the land receives from persons who go to sell goods on his land in the shape of a part of the proceeds of sale, instead of a fixed monthly or yearly payment". If the rents or profits of a Hat can form the subject of a valid lease, there is no reason why a mortgage of such rents or profits cannot be given.
In Surendra Narain Singh v. Bhai Lal Thakur, the validity of a lease of a Hat was assumed and the question was whether registration of such a lease was compulsory. It was held that Hat was a benefit arising out of land, and, therefore, within the definition of immovable property as given in section 2, clause 5 of the General Clauses Act (I of 1868).
Similarly in the case of Sikandar v. Bahadur, the validity If a lease of the right to collect market dues was assumed and it was held that such market dues were in the nature of benefits arising out of land and, therefore, registration of the lease was necessary.
These authorities are, in my opinion, sufficient to establish the proposition that the rents and profits derivable from a Hat can be validly mortgaged."
It would thus appear that in the aforesaid case a' Division Bench of the Calcutta High Court cited with approval the earlier decision of a Division Bench of the said High Court in the case of Surendra Narain Singh v. Bhai Lal Thakur as also the decision of the Allahabad High Court in the case of Sikandar v. Bahadur. We have already quoted above the decisions referred to in the aforesaid case.
In the case of Bhudeb Chandra Roy and others v. Bhikshakar Pattanik and others (196 I C 837), a Division Bench of the Patna High Court has held that a mere right to receive the Jama (rent) of a land is "immovable property" inasmuch as it was held to be a `benefit to arise out of land'. In this case there was a transference of a mere right to collect some money in the shape of Jama or rent in respect of the land without a transference of any interest in the land itself. It was held that, even such a right came within the meaning of the phrase `benefit to arise out of land'. At page 841 of the 'report the learned Judges of the Division Bench have expressed themselves in the following terms :‑
"The next question that arises is whether the plaintiffs can base any claim on the deed of gift Exh. 8. By this deed Mr. C. J. Smith who had acquired from the Raja of Jharia the right to receive the Jama of Rs. 777‑4‑6 from the Rays made a gift of this right to Pran Krishna Pattanik and Chintamoni Pattanik. The deed on the face of it appears to have been attested by only one witness. If it was a gift of immovable property, the deed would be invalid because section 123 of the Transfer of Property Act requires that a gift of immovable property must be effected by a registered instrument attested by at least two witnesses. The learned Subordinate Judge has held that `the gift was a gift of the royalty Jama of Rs. 777‑4‑9 and of nothing else' and as such it was a gift of movable property. This is entirely wrong. `Immovable property is defined in section 3 (25) of the General Clauses Act (X of 1897) as follows :
Immovable property shall include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.'
In section 3 of the Transfer of Property Act it is simply stated that "immovable property does not include standing timber, growing crops, or grass'. Therefore, we must take the definition of immovable property as given in the General Clauses Act. According to this definition a benefit to arise out of land is immovable property. Future rent is a benefit to arise out of land. The point is settled by the decision of the Judicial Com mittee in M. E. Moolla Sons, Ltd. v. Official Assignee, Rangoon 163 I C 418. The right to receive the Jama of Rs. 777‑4‑9 which was gifted by the deed Exh. 8 must be held to be immovable property."
In the case of M. E. Moolla Sons, Ltd. v. Official Assignee, Rangoon (AIR 1936 P C 230) the Judicial Committee of the Privy Council has held that an interest under a deed of settlement, whereby a person is granted an income to future rents and profits of certain immov able property and also a share in the proceeds of the sale of the property in future is immovable property within the meaning of section 54 of the Transfer of Property Act. Sir George Rankin, delivering the judgment of the Board, has observed as follows :‑
"A number of Indian decisions have been brought to the notice of the Board. In 34 Mad. 64 (Mangalaswami v. Subbia Pillai) at p. 66 an assignment, which was in effect a mortgage of future rents due in respect of the plaintiff's share in certain land, was held to be inadmissible in evidence for want of regis tration. In the course of a careful and accurate discussion of the question it was said
`The question is whether future rents payable in respect of land are benefits to arise out of land. It has never been doubted that a lease by a Zamindar or a transfer by him of the Zamindari interest, which is generally the right of the melvaram, is a transfer of immovable property. If the assignment is, however, of an arrear of rent, the benefit has already arisen out of the land and is, therefore, outside the definition of immovable property. It has been held that a lease of a right to market dues upon a certain land requires registration as an instrument dealing with a benefit to arise out of land ; see 27 All. 462 (Sikandar v. Bahadur) though the profits which have already accrued from a Lambardar were held not to fall within the definition of immovable property : see 27 All. 564 (Damadar Das, v. Giridhari Das). The decision in 19 Bom. 653 (Vinkaji Babaji v. Shidramapa Salapa) seems almost exactly to cover the present case. There, a right to assessment due upon certain land was assigned by an unregistered instrument. It was held that the instrument required registration as the assessment had not accrued due at the date of the assignment but was only tai become due in the future.
It was contended for the present appellants that while a right in respect of future rents might be immovable property where the owner of the right was himself entitled vis‑a‑vis the tenants to collect and enjoy the profits of the land, the same reasoning could not be applied to a case, such as the present, where the right granted was subject to the intervention of trustees, and was no more than a right to receive from the trustees a sum of money out of the income of the property. The case in 23 Bom. 1, Natha Kerra v. Dhunbaiji, is however in conflict with any such contention. There the testator had directed his trustees to hold certain immovable property upon trust to pay the rents, profits, interest, dividend and produce of so much thereof as shall from time to time under the provisions of this my will shall remain or be in their hands, unto in y wife during the term of her natural life, she thereout maintaining, educating and bringing up my children in a manner suitable to their degree in life."
It will thus be seen that the Judicial Committee of the Privy Council has quoted with approval the decision of a' Division Bench of the Madras High Court which itself relies on the aforesaid decision of the Allahabad High Court which has been cited before us by the learned Advocate‑General, namely, Sikandar v. Bahadur. '
Mr. Khondkar has strenuously argued that the lease of a right to collect tolls from a Hat would not come within the mean ing of "benefit to arise out of land". For this proposition he has relied on the judgment…
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