P L D 1962 Dacca 126 (PLP)

In view of the decision of this Court on this point in the case of Mohar Ali v. Province of East Pakistan (P L D 1958 Dacca 17) the proposition of law as stated above is correct, but the question is, can this petitioner obtain the writ as prayed for by him ? The contention that has been raised before us on behalf of the respondents is that, by virtue of the aforesaid document the petitioner has not acquired any title or interest in the land or Hat in question inasmuch as the document has not been registered as required by the provisions of section 107 of the Transfer of Property tact as well as section 17 (1) (d) of the Registration Act. It was, therefore, urged that the petitioner having failed to establish any interest in or title to the land in question, cannot maintain this application. We think that this contention of learned counsel for the respondents must be accepted. We have already decided in Mohd. Abdul Aziz v. Province of East Pakistan (P L D 1961 Dacca 710) that the interest as claimed by the petitioner in this case is "land" within the meaning of the East Bengal State Acquisition and Tenancy Act, 1950. In answer to this contention it was argued on behalf of the petitioner that, even if the document is deemed not to have conveyed any interest to the petitioner, he has, in any event, acquired a tenancy right because under section 9 of the Transfer of Property Act a lease of land for a year or less than a year can be effected by oral agreement. Furthermore, it has been claimed that on the doctrine of holding‑over the petitioner will be deemed to have been a tenant of the proprietor, the latter having accepted rents from him. For this proposition the petitioner has prayed in aid the provisions of section 116 of the Transfer of Property Act. Reliance has been placed on a number of decisions and we may quote the case of Adinath Bhattacharjee v. Krishna Chandra Bhattacharjee and others (47 C W N 127). In the aforesaid case it was held, that a lease of immovable property for a term exceeding one year though made without a registered instrument, is valid for the first year ; and if the lessee continues to be in possession thereafter and the lessor accepts rent from him, a tenancy by holding over, from month to month or year to year, as the case may be, is created. Such tenancy must be terminated in accordance with law before the lessor can resume possession. We respectfully agree with the proposition enunciated in the aforesaid case. The principle is now well‑settled, but the fact that there has been a lease for a year and that thereafter the lease was continued by holding over, the landlord having accepted rents shall have to be established on evidence. In the petition before us no case has been made out that the landlord having inducted him as a tenant on the land subsequently allowed him to hold over by accepting rents from him thereafter. There is, therefore, no substance in this contention of learned Advocate for the petitioner. In any event, even if it is held that a tenancy was created in favour of the petitioner by virtue of the provisions of sections 109 (sic) and 116 of the Transfer of Property Act, the petitioner has to face another insuperable difficulty put in his way by the respondents, who have relied on the provisions of section 3 of the East Bengal Prevention of Transfer of Property and Removal of Documents and Records Act, 1952 (East Bengal Act V of 1952). Section 3 of the East Bengal Act V of 1952 reads as follows: ‑ "

3. Prohibition against transfer of cutchery buildings and certain lands contiguous thereto‑ (1) Notwithstanding anything contained in any other law for the time being in force or in any contract, no person shall transfer, without the previous permission of the Collector in writing‑ (i) any cutchery building ; or (ii) any land contiguous to any cutchery building which, on the 16th May 1951, lay vacant and was not used for agricultural purposes ; or (iii) any vacant land situated within any hat or bazar, (2) Every transfer made fn contravention of subsection (1) shall be null and void." And section 2 (d) reads as follows: ‑ "all other words and expressions used in this Act and in the East Bengal State Acquisition and Tenancy Act, 1950 shall have the same meanings as in that Act." Section 4 of the East Bengal Act V of 1952 has made the provi sions of this Act also applicable to transfers between the 16th May 1951, and the 21st day of July 1951. It cannot be disputed that the tenancy right claimed by the petitioner is a transfer of land and is, therefore, bit by the provisions of section 3 of the East Bengalis Act V of 1952. It is admitted that the previous permission of the Collector was not obtained in respect of the lease upon which the petitioner relies. It was next contended before us that Act V of 1952 was itself hit by the provisions of section 107 of the Government of India Act, 1935 and that it was not, therefore, a valid law. Section 107 of the said Government of India Act reads thus: "107.‑(1) If any provision of a Provincial law is repugnant to any provision of a Dominion law which the Dominion Legisla ture is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Con current Legislative List, then, subject to the provisions of this section, the Dominion law, whether passed before or after the Provincial law, or, as the case may, the existing law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void. (2) Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor‑General has received the essent of the Governor- General, the Provincial law shall in that Province prevail, but nevertheless the Dominion Legislature may at any time enact further legislation with respect to the same matter Provided that no Bill or amendment for making any provision repugnant to any Provincial law, which, having been so reserved, has received the assent of the Governor‑General, shall be Intro duced or moved in the Dominion Legislature without the previous sanction of the Governor‑General. (3) If any provision of a law of an Acceding State is repugn ant to a Dominion law which extends to that State, the Dominion law, whether passed before or after the law of the State, shall prevail and the law of the State shall, to the extent of the repugnancy, be void." It was argued that a legislation restricting transfer of property would come under Item 8, in List III (Concurrent List) and the said item reads as follows: - "Transfer of property other than agricultural land; registra tion of deeds and documents." Our attention was also drawn to Item 21 of List II, which is exclusively a Provincial List and Item 21 reads thus: "Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents ; transfer, alienation and devolution of agricultural land ; land improvement and agricultural loans"; . . ." It was argued that Act V, 1952 was essentially a legislation In the concurrent field under Item 8 as quoted above. It was also contended that the Transfer of Property Act is an existing enactment in the same field. Learned Advocate further argued that, inasmuch as the restrictions on transference of property imposed by Act V of 1952, which did not receive the assent of the Governor‑General, militates against the provisions of section 6 of the Transfer of Property Act, it will have to give way to the said section and would have no validity because of the provisions of section 107 of the Government of India Act, 1935. In the firstly place, think that Act V of 1952 comes within Item No. 21 in the List II of the Schedule to the Government of India Act, 1935 . It is an enactment in furtherance of the provisions of the East Bengal State Acquisition and Tenancy Act, 1950. It was, there fore, a legislation exclusively in the Provincial field. Section 107 of the Government of India Act, 1935, therefore, does not apply to it. Even if it is held that this legislation is in the concurrent field, as comming under Item 8 in List III, we do not think that it militates against the provisions of section 6 of the Transfer of Property Act. Section 6 of the Transfer of Property Act recognizes the right of transfer in property save and except as otherwise provided in any other law for the time being in force. It is, therefore, clear that section 6 itself provides that transfer of property may be restricted by any other law for the time being in force. In these circums tances, there is no substance in this argument as there is no repugnancy between the two enactments mentioned above. The rest of the points that were argued before us are covered by our judgment delivered in Writ Petition No. .59 of 1958. Therefore, for reasons stated above, the Rule is discharged without any order as to costs. SATTAR, J.‑I agree. K. B. A.