P L D 1961 Dacca 710 (PLP)

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 delivered by Das, J. in the case of Province of Bengal v. Hingal Kumari Law (50 C W N 184). In that case the assessment of cess, to which the plaintiff was assessed, was impeached in a suit and the question that arose was, what was the nature of the tolls realised from the vendors and hawkers, who had come upon a piece of land upon which a Hat was situated ? Biswas, J. held that as a Hat was not excluded from the definition of land in section 4 of the Cess Act and as it was not shown that the Hat in question was treated otherwise than as land, assessment of cess under Chapter V was invalid. Thus, according to Biswas. J. tolls, realised from vendors and hawkers, who come upon a piece of land to sell their merchandise, come within the definition of land set out in section 4 of the Cess Act. Das, J. who was another learned Judge constituting the Division Bench; while agreeing with the decision of Biswas, J. delivered a separate judg ment in which he held that tolls realised in a Hat could not be regarded as "benefit to arise out of land". We have carefully gone through the judgment of Das, J. and with respect to the learned Judge, we cannot agree with his observation to the effect that tolls realised from a Hat do not come within the meaning of the phrase "benefit to arise out of land". The foremost thing which stares us in the face is that the collection of tolls or profits or rents,, as has been described in some cases, is not a right which arises in the abstract without any reference to the land on which the Hat is situated. In this country it is an incident arising out of the ownership of land. In this connection, we may note that there is a fundamental difference between the right to receive tolls in a market place in England and similar right to receive tolls in a Hat in the sub continent of India and Pakistan. In the case of Hem Chandra Roy Chowdhury v. Bepin Behary Saha Sardar (24 C W N 800) it was held that in Bengal (we may add, in East Pakistan) there is no such thing as a market franchise or a right to hold a market conferred by grant from the Crown, nor can such right be acquired by pres cription. The right to hold a market is' treated as an incident to the ownership of land. The proprietor of the old market has no monopoly or privilege which is entitled to protection and no immunity from competition. In that case a prayer for the issue of an injunction restraining the holder of a rival Hat in proximity to the Hat of the plaintiff was rejected. The Division Bench of the Calcutta High Court, approving of the decision, has observed as follows : (at pages 802‑803) :‑ "It might possibly be expedient that markets should be regulated by some system of licensing. But that raises a question of policy which is outside the province of the Courts. In England, it is said, no one holds a market without a licence from the Crown and the reason has been thus stated : "The reason why a market or fair cannot be holden without a grant is not merely for the sake of promoting traffic or commerce but also, for the like reason as in the Roman Law, for the preserva tion of order and prevention of irregular behaviour ; Ubi est multitudo, ibi debt esse rector." The words are those of Mr. Justice Wilmot in Rex v. Marsden (1765, 3 Burr. 1812) and they were cited in the House of Lords in the case of Hammerton v. Earl of Dysart (L R 1916 I A C 57). In Bengal the right to hold a market is treated as incident to the ownership of land . . . . . . " In this connection, it is interesting to note that Das, J. in the above‑noted case, is arriving at his decision that tolls collected from a Hat do not come within the meaning of "benefit to arise out of land", has borrowed light from a number of decisions of various Courts in England in respect of the matters which have nothing to do with the case before us. The cases cited, on the contrary, bring out 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. As we have already noted, in our country 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 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. In vain have we tried to find from the judgment of Das, J. any decisions of the High Courts in India and Pakistan to support the proposition which has been enunciated by the learned Judge. The learned Judge has tried to obtain some support from a decision of a Full Bench of the Calcutta High Court in the case of Secretary of State for India v. Karuna Kauta Chowdhury (11 C W N 1053=I L R 35 Cal. 82). We fail to see bow that case supports the decision of Das, J. In that case (Secretary of State v. Karuna Kanta) the plaintiff- respondent was the owner of Taluk Kalian Khata. Some lands within the taluk had been let out in jote to certain tenants who paid rent for them for the whole year: Certain persons, called Fakirs, executed a kaimi chandina jama mokarart kabuliyat by which they agreed to pay to the plaintiff a sayari chandina Jama of Rs. 16 for the right and privilege of holding a mela or fair on those lands every year for 20 days in the month of Falgoon, when there were no crops standing on the lands. The fakirs in their turn gave to certain persons, who were called Ijaradars, what was called an Ijara of the right to hold the mela at an annual rental of Rs. 3,

000. The Collector of Rangpore, holding that the Zemindar and Fakir's holding under him were liable to pay cess on account of the profits of the mela, obtained from the ijaradars a return of profits of the mela and. he fixed the profits in respect of the plaintiff's estate at Rs. 2,215 and assessed on it cess amounting to Rs. 138‑8‑

0. The sum was realised by the Collector from the plaintiff. The plaintiff then sued the Fakirs for recovery of the cess. A Division Bench of the same (Calcutta High Court) Court held that, as the profits of the mela were liable to income‑tax, they should not be assessed to cess at the same time, and dismissed the suit. The plaintiff then filed a suit against the Secretary of State for India, submitting that the assessment of cess was illegal and praying for a declara tion that he was not liable to pay the cess, for injunction and for refund of the amount paid by him. The suit was decreed by the Subordinate Judge and the decision was upheld by the lower appellate Court. A Division Bench of the Calcutta High Court in a second appeal, referred certain questions for the decision of a Full Bench, and the main question was expressed in the following terms "Whether the profits of a mela can be lawfully assessed with Road and Public Work Cesses when the land on which such mela is held is not being used for agricultural purposes but is so used during the rest of the year ?" After discussing the facts of the cases the learned Judges expressed themselves in separate judgments ; but the main decision is that the money realised by the Zemindar and the Fakirs does not come within the definition of rent paid for actual user and occupation of the land by the said persons. It has been also held that the said Zemindar's arid Fakir's interests do not come within the defini tion of immovable property as defined in section 4 of the Cess Act, namely, they are not profits arising out of the land. It will be seen that this is a very peculiar case where the right given to the Fakirs by the Zemindar was in the nature of a mere license similar to grants as in vogue in England. It is difficult to see how such licence could be given. The Zemindar had parted with the possession of the land, having given settlement thereof to somebody else. He could not and did not give any possessory interest in the land and to the Fakirs. The previous transferee of the land would have been, perhaps, within his right if he refused to allow the Fakirs to hold any mela on the land that was settled with him. It seems that the Fakirs could hold the mela if permitted by the lessee of the land. But the Full Bench was rot concerned with such a question. The question before it was, whether the assessment of cess was permissible under the circumstances stated above? The patent fact that stares one in the face is that the Zemindar had already parted company with the land and had let out the same in jote right to tenants who paid rent to the Zemindar for the whole year. Thereafter the Zemindar purported to grant to the Fakirs, in consideration of only a sum of money, a bare licence to hold a fair on the said land for a number of days every year. Such a licensee in his turn leased out his interest thus acquired to another set of persons in consideration of a sum of money. It is un questionable that, in the circumstances aforesaid, the right which the Zemindar had conferred on the Fakirs was a mere licence to hold a mela on a land which was already demised to a completely different set of persons. Therefore, that case cannot be held to support, in any way, the broad and general principle which has been stated by Das, J. in Hingal Kumari's case. It is thus patent that the observations of .some of the learned Judges in the Full Bench case of Secretary of State v. Karuna Kanta, on which Das, J. relies, have been made with reference to the very peculiar facts of the case. It will be seen that in this respect the judgment pronounced by Das, J. is not supported by the senior member of the Division Bench Biswas, J. The views expressed by Das, J. 'militate against an earlier decision of another Division Bench of the same Court in Surendra . v. Bhai Lal. They are also inconsistent with the decision of that Court in Golam Mohiuddin v. Parbati which has cited with approval Surendra v. Bhai Lal and Sikandar v. Bahadur. They are also directly in conflict with the decision in Sikandar v Bahadur which was relied‑on in Mangalaswami v. Sunbia Pillai (34 Mad. 64) cited with approval by the Privy Council in Moolla Sons v. Official Assignee, Rangoon. We hold that the right to collect rents or profits, as they have been called in some decisions, from a Hat does come within the meaning of the phrase "benefit to arise out of land". In the present case from the document read over by Mr. Khondkar to us it is quite evident that possession of the land was given to the. petitioner in respect of the right to collect tolls in the Hat. In the view that we have taken we are supported by a series of decisions which have been set out above and some of which have received the approval of the Judicial Committee of the Privy Council. The, conclusion that we have arrived at is also supported by the plain meaning of the phrase in question. As discussed above; the right to hold a Hat is in this country an incident of ownership of land and such 'right is not divorced from the land. It arises out of a user of the land although in the context of various enact ments it may not be held to be "an interest in the land." Thus, if the right to collect tolls in a Hat is an incident of ownership of the land, it is certainly "a benefit arising out of land". We, therefore, hold that there is no substance in the contention, of Mr. Khondkar that the petitioner's right, as stated by him does not come within the purview of the phrase "benefit to arise out of land". Accordingly, the petitioner's right if he succeeds in establishing his title thereto comes within the definition of land" as given in subsection (16) of section 2, of the Hat. Therefore, there is no question that the petitioners interest is capable of being acquired under the Act as land within the meaning of the said Act. It was next contended by the learned Advocate‑General than under section 107 of the Transfer of Property Act; the petitioner could not have validly acquired' the right claimed by him by a mere kabuliyat executed unilaterally by the petitioner himself without the lessor thereof also executing to instrument to that effect. Section 107 of the Transfer of Property Act runs thus "A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be y made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee* * * ' It is admitted by Mr. Khondkar that the, document on which he relies is a document which has been executed merely by the petitioner: It is, therefore, admitted that the lessor or lessors has or have not executed the document. From the cases that we have already discussed it appears that the right claimed by the petitioner does come within the meaning of "immovable property" as defined in the General Clauses Act, and, therefore, section 107 of the Transfer of Property Act is attracted to the same. In these circumstances, we hold that there has been no valid document by which the petitioner has been able to acquire the interest claimed by him. On this point Mr. Khondkar has repeated his former argu ment, namely, that the right claimed by the petitioner does not come within the definition of "land" or of "immovable property" mentioned above. We have already rejected that contention and we, therefore, hold that the petitioner has not been able to establish his title to the right claimed by him. The Rule is, there fore, liable to be discharged on this ground alone. Learned Advocate‑General has addressed an alternative argu ment to the effect that, by virtue of the provisions of clause (a) of subsection (4) of section 3 of the Act, the petitioner's alleged right in the aforesaid plots of land has been extinguished as it constitutes an "encumbrance". It was argued that if the peti tioner's interest is not "land" as stated above, it would certainly be an "encumbrance" on the land of the rent‑receiver. Subsection (4) (a) of section 3 of the Act runs thus : "On and from the date specified in a notification under sub‑section (1),‑ (a) all interests of the rent‑receivers in the estates, taluks, tenures, holdings or tenancies specified in the notification, including their interests in all lands in their khas possession, and interests in all sub‑soil and rights to, minerals, in such estates; taluks, tenures, holdings or tenancies and also including the interests of any such rent‑receiver in any building or part of a building standing on any such land and used primarily. as office or cutchery for the collection of rent of any estate, taluk, tenure, holding or tenancy, shall vest absolutely in the Provincial Government free from all incumbrances." It has been contended that, inasmuch as the interests of the petitioner's alleged lessor, namely, Babu Bejoy Gopal Roy and others, who are undoubtedly rent‑receivers, have been acquired by a notification under the provisions of the said section; their interests, including those in all lands in their khas possession, have, vested absolutely in the Province of East Pakistan "free from air, incumbrances." Mr. Khondkar has accepted the proposition that the alleged interests of the petitioner in the aforesaid plots of land do, in accordance with the construction he seeks to put on the turns of the lease in question, constitute an "incumbrance" within the meaning of section 3 (4) (a) of the Act. He has, how ever contended that‑the said section 3 (4) (a) is void as being ultra vires of the provisions of section 299 of the Government of India Act, 1935, as adapted in Pakistan, in so far as it purports to vest land in the Government "free from all incumbrances" without providing for any compensation in respect of such "incumbrances". Section 299 of the Government of India Act, 1935, ,adapted in Pakistan, runs as follows: ' "

299. Compulsory acquisition of land, etc.‑(1) No person shall be deprived of his property save by authority of law. (2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined * * * * * * * *," On a reference to subsection (2) of section 299 of the Govern ment of India Act, 1935, as adapted in Pakistan; it will be clear that it relates to compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking. If the interests of the petitioner come within the definition of "land", then the Act does provide for compensation in respect of acquisition of land. The question of adequacy of .the compensation cannot be questioned by virtue of the amendment which has been introduced in Pakistan. Alternatively, if the interests of the petitioner do not come within the definition of "land", and this has been the conten tion of the learned Advocate for the petitioner, then the petitioner cannot pray in aid the provisions of subsection (2) of the said section 299, which expressly refers only to acquisition of land. This is a complete answer to the points raised by Mr. Khondkar on behalf of the petitioner, and we think that the con tention of the learned Advocate‑General on this point must, be upheld. In this view of the matter, the interests of the petitioner have been wiped out as being "incumbrances" immediately upon the acquisition of the rent‑receiving interests of his grantor.' Learned Advocate‑General has also alternatively, argued that section 3 (4) (a) of the Act merely extinguished the incumbrances mentioned therein by operation of law and the real position is that the Province of East Pakistan has not, and does not purport to have, acquired the incumbrances' which constitute the interests of the petitioner, which have been extinguished automatically as a legal consequence of the acquisition of the rent‑receiving interests of the petitioner‑lessee. Mr. Khondkar has argued that it would amount to depriva tion of property within the meaning of section 299 (1) of the Government of India Act, 1935, as adapted in Pakistan. It will be seen that subsection (1) of the said section 299 does not provide for the payment of compensation in respect of depri vation of property of any person ; all that it provides is that no body should be deprived of his property, accept by the authority of low. With regard to "land." however, the requirement of the' section is that it cannot be acquired without compensation. However, although we feel that there is substance in this argument advanced by the learned Advocate‑General, it is not necessary for us to give a decision on this point. Learned Advocate‑General has again drawn our attention to the provisions of the Validation of Laws Act, 1956, which is a constitutional provision enacted by the Constituent Assembly of Pakistan and it received the assent of the Governor‑General on the 29th of February, 1956, coming into force at once upon such assent. It was, therefore, contended that the validity of the East Bengal State Acquisition and Tenancy Act, 1950 could not be called in question in any Court. Section 4 of the Validation of Laws Act, 1956, runs as follows : "Declaration of validity.‑The laws set out in column (1) of the Schedule to this Act are hereby declared to be valid and shall be deemed to have had the force and effect of law on and from the dates mentioned against them in column (2) of that Schedule and anything done thereunder in accordance with the provisions thereof shall be deemed to have been validly done, and any rights declared or acquired in derogation pf the provisions of those laws whether by decree or order of a Court of civil or revenue jurisdiction or by any other means are hereby declared to be void and of no effect." And section 5 of the said Act reads as follows : "Bar of jurisdiction.‑The validity of any law to which section 4 applies shall not be called in question in any Court." In the schedule mentioned in section 4 of the Validation of Laws Act the first enactment mentioned is, the East Bengal State Acquisition and Tenancy Act, 1950, and the date mentioned in column 2 of the schedule is the 16th of May, 1951. Learned Advocate‑General has, in this connection, cited a decision of the Federal Court of Pakistan in the case of Punjab Province v. Malik Khizir Hayat Khan Tewana (PLD 1956 F C200) and has relied on the following observations of Munir, C. J. at page 206 of the report : "Section 5 then proceeds to enact that the validity of none of these laws is to be called in question and in its ousting intention certainly includes all objections which could be taken to the validity of those laws." We hold that the learned Advocate‑General has rightly contended that the validity of section 3 of the Act cannot be called in question, and that Mr. Khondkar cannot be heard to urge that section 3 (4) (a) of the Act is bad to the extent it militates against the provision of section 299 of the Government of India Act, 1935, as adapted in Pakistan. We, therefore, hold that on Mr. Khondkar's interpretation of the nature of rights claimed by the petitioner they constitute (as Mr. Khondkar admits it) an incumbrance within the meaning of subsection (2) (a) of section 3 of the Act. From this point of view, the rights of the petitioner have been extinguished by opera tion of law and he cannot, make this application. It was next contended before us that, having regard to the provisions of the East Bengal Prevention of Transfer of Property and Removal of Documents and Records Act, 1952 (E. B. Act V of 1952), the petitioner has not acquired any title by virtue of the document on which he purports to base his title. The document is the registered Kabuliyat, dated. the 29th of Sravan, 1360 B. S., corresponding to the 4th of August, 1953. Section 3 of the E. B. Act V of 1952 provides as follows : "

3. Prohibition against transfer of kutchery buildings and certain lands contiguous thereto.‑(1) Notwithstanding anything contained in any other law for the time being in force or any contract, no person shall transfer, without the previous permis sion of the Collector in writing‑ (i) any kutchery building ; or (ii) any land contiguous to any kutchery building which, on the, 16th May, 1951, lay vacant and was not used for agricultural purposes ; . (iii) any vacant land situated within any hat or bazar. (2) Every transfer made in contravention of subsection (1) shall be null and void." After providing definition of the expression, "Collector" "kutchery building", "transfer", section 2 (d) of this Act proceeds 'to enact as follows "(d) all other words and expressions used in this Act and in the East Bengal State Acquisition and Tenancy Act, 1950, shall have the same meaning as in that Act." Learned Advocate‑General has contended that, inasmuch as the alleged interest of the petitioner in the aforesaid plots of land constitute "land" within the meaning of the said Act, the document on which the petitioner relies is a transfer of land in contravention of subsection (1) of section 3 of the East Bengal Act V of 1952, and, therefore, such transfer in accordance with the provisions of subsection (2) is null and void. Mr. Khondkar has, in this connection merely repeated his argument to the effect that the rights of the petitioner do not constitute "land" as stated above. We have already negatived the contention of Mr. Khondkar on this point, and we, therefore, uphold the contention of the learned Advocate‑General in this behalf. This is another ground , do which the present Rule should be discharged by us. It has been contended by Mr. Khondkar that the petitioner is sot a rent‑receiver within the meaning of the Act, either in respect of the Hat in question or in respect of any land within the Pro vince of East Pakistan. In the affidavit‑in‑opposition filed on behalf of the respondents this contention of the petitioner has been completely controverted. In the said affidavit‑in‑opposition particulars have been set out which, according to the respondents, would show that the petitioner is a rent‑receiver, both in respect of the plots of land in question as also in respect of other lands in the Province. The petitioner, has, in the affidavit‑in‑reply, tried to get out of this situation by stating that, by virtue of an amicable partition between him and his co‑sharer, he has now divested himself of any rent‑receiving interest in the land mentioned in the affidavit‑in‑opposition filed on behalf of the respondents. The respondents, in their turn, vigorously contest this contention. From the affidavits, and there are a good number of them, filed in this case, it is perfectly clear that there is a serious dispute with regard to the question as to whether the petitioner has any rent‑receiving interest in any land in this Province. It is also clear that, on the materials placed before us, this point cannot be decided in a summary proceeding like this. He cannot, therefore, hold that the petitioner is not a rent‑receiver in respect of the land Y in question or any other land within the Province of East Pakistan. We hold, that the petitioner is not entitled to maintain this petition on the aforesaid ground. Finally, Mr. Khondkar fell back on some of the points, which he had already agitated before Division Bench of this Court in another Writ Petition, namely, Writ Petition No. 37 of 1959. The point made is that by virtue of the decision of the Supreme Court in Yusuf Ali Chowdhury. Hats, which come under the definition of "vacant non‑agricultural lands". Cannot be acquired, as such Hats are retainable land within the meaning of section 20 (2) (b) (iii) of the Act. This point was met by the learned Advocate‑General by drawing our attention to the provisions of section 6 of the East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance, 1960 (Ordinance XII of 1960) which reads as follows. "In section 20 of the said Act‑ (i) in subsection (2), for the explanation, the following new subsection shall be added, namely;‑ (2‑a) Notwithstanding anything contained in any other law for the time being in force or in any instrument or in any judg ment or decree or order of any Court, lands of the classes referred to in clauses (a) and (b) of subsection (2) do not include and shall be deemed never to have included‑ (i) any land or building in a hat or bazar, . . . . . The arguments of Mr. Khondkar may be summarised as follows: The word "Court" in the above‑mentioned section 6 does not mean "High Court" or "the Supreme Court; the aforesaid section is ultera vires of the powers of the Provincial Legislature, which, in the present case is the Governor, inasmuch as it purports to oust or restrict the jurisdiction of the Supreme Court of Pakistan ; such enactment cannot have restrospective effect, and, in any event, it cannot apply to pending litigations before us. In Writ Petition No. 37 of 1959 this Court (and I was a party to its decision) has already negatived all the contentions raised by Mr. Khondkar, in this behalf. We hold the same view which need not be repeated here. This exhausts all the points urged before us on behalf, of the petitioner. We have, as stated above, decided them against the petitioner. The Rule is, therefore, discharged without any order as to costs. SATTAR, J‑ I agree with the conclusions reached by my learned brother on all the points raised in this writ petition. I, however, want to add a few words of my own in regard to the main contention of the petitioner. The argument of Mr. Khondkar is that the right created by the document in question is not land within the meaning of the Act and, therefore, the interest of the petitioner exists in spite of the acquisition oaf the lands of the rent‑receiver from whom the petitioner took lease of the right to collect tolls in the Hat in dispute. The definition of "land" in the Act is as follows " `land' means land which is cultivated, uncultivated or covered with water at any time of the year, and includes benefits to arise out of land, houses or buildings and also things attached to the earth, or permanently fastened to anything attached to the earth." On being questioned as to whether, the right of the petitioner would not fall within the expression "benefits .to arise out of land", the learned Advocate for the petitioner submitted that it did not. Reliance has been placed on the decision in the case of Province of Bengal v. Hingal Kumari (50 C W N 184) for this purpose. The judgment of Das, in the above‑mentioned case, no doubt, supports the view canvassed before us by Mr. Khondkar. Both the learned Judges of the Division Bench agreed in their decision, but Biswas, J's judgment is based on considerations other than those on which Das, J. relied. Das, J., on a view of some of the decisions of the Calcutta High Court and the Patna High Court, came to the conclusion that the owner of the land, in which a Hat was situated, had the right to hold the Hat on that land: he might transfer that right with or without any interest in the land itself; where no interest in the land was transferred, then such a person was not a lessee or a tenant of the land but a mere licensee of the right to hold the Hat. He has held that, if no interest in the land, on which the Hat is held, is transferred to a person, who is permitted to hold the Hat, then such a person is not a lessee or a tenant of the land and this bare right to hold the Hat, independently of any interest in the site, on which the Hat is held, is not "land" and the sums paid by such bare licensee are fees paid for the right to hold the land Hat are not rents. The obvious conclusion, therefore, of the learned Judge is that, "Fees received from such a licensee, cannot be regarded as `benefit arising out of land' for they are not paid for the use anal occupation of the land on which the Hat is held." Reading the judgment of Das, J. I find that the only case, where the transfer of the kind mentioned by hire came up for consideration was the case of Secretary of State for India v. Karuna Kanta Chowdhury (I L R 35 Cal. 82 = 11 C W N 1053). The facts of that case may better be quoted from the judgment of Das, J., and they are as follows "In that case the plaintiff‑respondent was the owner of Taluk Kalian Khata. Some lands within the taluk had been let out in jote to certain tenants who paid rent for them for the whole year. Certain persons called Fakirs executed a kaimi chandina jama mokarari kabuliyat by which they agreed to pay to the Plaintiff a sayari chandina jama of Rs. 16 for the right or privilege of holding a mela or fair on those 'lands every year for 20 days in the month of Falgoon, when there were no crops standing .ors the lands. The Fakirs in their turn gave to certain persons who were called Ijaradars what was called an Ijara of the right to hold the mela at an annual rental of Rs. 3,

030. The Collector of Rangpore, holding that the Zamindars and Fakirs holding under him were liable to pay cess on account of the profits of the mela, obtained from the Ijaradars a return of the profits of the mela and he fixed the profits in respect of the plaintiff's estate at Rs. 2,215 and assessed on it oess amounting to Rs. 138‑8‑

0. This sum was realised by the Collector from the plaintiff. . The plaintiff then sued the Fakirs for recovery of the cess. A Division Bench of this Court ......Held ..that as the profits of the mela were liable to be assessed to income tax, they should not be assessed to cess at the same time and dismissed the suit. The plaintiff then filed a suit against the Secretary of State for India submitting that the assessment to cess was illegal and ultra vires and praying for a declaration that he was not liable to pay the cesses, for injunc tion and for refund of the amount paid by him." After stating the above facts the learned Judge goes on to say that the suit was decreed by the Subordinate Judge and the decision of the Subordinate Judge was upheld by the lower Appellate Court. A Division Bench of the Calcutta High Court, before which the appeal against the decree of the lower Appellate Court came up, referred certain questions for decision by a Full Bench and the Full Bench came to the conclusion that the profits of the mela were not profits arising out of land. The facts of that case are peculiar and, in my view, the deci sion in that case is not an authority which can govern cases where facts are not even similar. Das, J. has himself, in course of the judgment, observed the, fundamental difference between a right to collect tolls in England, which arises out of franchise, independently of the ownership of the market, and a right in India which emanates from ownership ; but, according to him, this circumstance makes no difference in the nature of the collections made, because the .right to collect tolls can be claimed independently of ownership of land. With due deference to the opinion of the learned Judge, I am unable to agree with him in this regard. The ownership of land and tire right to hold a Hat on the said land go together, and, in my opinion, the two rights are inseparable and the right to hold a Hat cannot be transferred without parting with, wholly or partially, the right of ownership. The facts of the Full Bench case are peculiar and the right of the licensee was enjoyed by sufference of the raiyats in whose favour tenancy rights were already granted. It is doubtful whether, if the raiyats, in whose favour the land had already been demised, asserted their full right, the licensee could at all hold the fair in question. The English decisions relied on by the learned Judge hardly help us in view of the fundamental differ ence between the‑ nature of rights in England and that in this country. My conclusion, therefore, is that; in view of the recent amendments of the East Bengal State Acquisition and Tenancy Act, the land, on which the Hat is held in this case, has vested in the Government by virtue of the notification, dated the 2nd of April, 1956, as it does not come within the exceptions mentioned in section 20 of the Act, and with that the right to collect tolls from the Hat ha; also vested in the Government and there is no question of the Government taking the land subject to the right of the petitioner. A. H Rule discharged.