A Comparative Analysis on Sub-lease of Immovable Property in the light of the State Acquisition and Tenancy Act, 1950 and the Transfer of Property Act, 1882.
Then Second Year student
Now assistant judge of BJSC
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Abstract
The State Acquisition and Tenancy Act, 1950 was enacted with the intent to provide for the acquisition by the State of the rent-receivers and certain others interests in the land of Bangladesh and in define the law relating to tenancies to be held under the state after such acquisition and other matter connected therewith. But, the Transfer of Property Act, 1882 maintained the provisions of lease made by one person to another and thus exercised the provisions of sub-tenancies strongly prohibited by the SAT Act, 1950.
Introduction
Lease as envisaged in the Transfer of Property Act, 1882 is treated as sub-lease in the light of the SAT Act, 1950. Because, sub-lease, the so called lease of TP Act, is granted by a person who is himself a lessee of the same property. Under lease defined in the TP Act, 1882, the lessee has to pay rent to the lessor who is himself a lessee and tenant of the state. Thus, the Transfer of Property Act encourages sub-tenancies. On the other hand, the SAT Act is to create only one class of raiyats, to place the raiyats directly under the Govt. and to make obliged to pay rent to the Government as well. But when sub-lease defined in the Transfer of the Property Act, 1882 as lease is allowed , it would enable the riayats of the land to create further tenancy and put the under tenants in oppression.
Fundamentals of Sub-lease
The term “sub-lease” in general sense means giving part of a contract to somebody else. The term “sub-leasing” in another sense means leasing to another under raiyats by one raiyats. In this sense, the raiyat is himself or herself a lessee of the same property. In view of Oxford Dictionary, sub-letting/sub-leasing as a lease is granted by a person who is himself a lessee of the same property.
However, there is an indication in section- 2(31) of the State Acquisition and Tenancy Act, 1950 on sub-lease. It says that words used in the parts 1-4 of the Act but not defined therein are to be given the same meaning as they bear in the Bengal Tenancy Act, 1885 or the Sylhet Tenancy Act, 1936. These Acts treat sub-letting as the creation of a sub-ordinate tenancy on a special contract between the lessee and sub-lessee under which the sub-lessee would be liable to pay rent for that land to a person other than the Government. Here it is pointed out that the term ‘sub-letting’ is synonymous to sub-lease.
In Government of East Pakistan v. Md. Hossain where sub-letting is said to connate the creation of sub-ordinate tenancy or under raiyati, under which the lessee would, but for a special contract, be liable to pay rent for that to a person other than Government. In the State Acquisition and Tenancy Act, 1950 giving part of one’s property to somebody else on payment of rent is referred to as sub-letting. It indicates that the creation of lease/ letting subsists between the state and the malik of the land creates further letting for his property it is sub-letting.
Under the law relating to Transfer of Property, a sub-lease or under lease connotes the transference of only a part of the original lessee’s interest, whereas the transference of the whole of the interest in the lease by the transferor amounts to an assignment of the lease hold-interest. The assignee of a lease stands in the place of original lessee and becomes a tenant of the original landlord. A sub-lessee on the other hand is liable only to the sub-lessor. He cannot sue or be sued by the original landlord. However the difference exists between a lease and a sub-lease, there is the provisions on prohibition of sub-lease and restriction on sub-lease. If a lessee sub-lets in breach of those provisions, the lessor has the right of forfeiture of the lease.
Prohibitive areas of sub-lease
The Transfer of Property Act, 1882 has kept the provision of lease in section 105 of the Act. If we explain this provision in the light of State Acquisition and Tenancy Act, 1950 and also under the case of East Pakistan v. Md. Hossain, we can find that this is sub-lease in guise of lease. Though it has been allowed in The Transfer of Property Act in 1882 but the State Acquisition and Tenancy Act , 1950 (East Bengal Act no.28 of 1951) maintained the provision of restriction on subletting. Besides an irregular provision 75A was inserted by the E.B. State Acquisition and Tenancy (Amendment) Act, 1954 to prohibit sub-lease.
Section-93 of the State Acquisition and Tenancy Act, 1950 is a regular provision prohibiting sub-letting of agricultural lands. This provision was made to materialize the objects of the SAT Act, 1950. If this provision was not kept in the same, the object of the said Act would fail. Under s-93 of the SAT Act, no raiyat shall sub-let the whole or any part of his holding on any terms or conditions whatsoever. If any holding or any part of a holding is sublet in contravention of the provisions of this section, the interest of the raiyats in the holding or in that part of holding shall be extinguished, and the holding or the part of the holding shall vest in the Government from the date of such sub-letting free from all encumbrances.
Now if it is explained under the TP Act, 1882, the so called lessor who is lessee of the Govt. under the SAT Act, 1950 make a sub-lease of immovable property to another to enjoy such property. Under the state Acquisition and Tenancy Act, 1950 the raiyats though they are now called maliks , are tenants of the State and they are debarred from creating another tenancy under them. But the language of the TP Act as enshrined in s-105 does not go with the language of the SAT Act as enshrined in s-93 and 75A. Under The SAT Act, the Govt. is treated as lessor and the raiyat is lessee. But under the TP Act, landlords are treated as lessor and they are allowed to lease it to another.
To guard against subletting, in 1954 s-75A of the State Acquisition and Tenancy Act, 1950 was inserted by the East Bengal State Acquisition and Tenancy (Amendment ) Act, 1954.
This was introduced as a temporal measure to prevent the mischief practiced by the people before the commencement of the tenancy part of the SAT Act, 1950. According to S-75A, no person shall sub-let any land in his khas possession. It has been also provided that any subletting made shall be null and void and the land so sub-let shall be forfeited to the Govt.
In case of Surrendra Nath Halder v. Satyandra Nath Halder as soon as the provisions of s-75A came into effect, subletting was turned into null and void. Another proceeding Alhaj Kutubuddin v. Abu Jafar Before the provisions of 75A came into effect, sub-letting was valid.
Lease defined in s-105 of the TP Act, 1882 is applicable in case of both agricultural and non-agricultural immovable property. So, it is necessary to expound whether sub-lease is allowed for non-agricultural tenant.
Under s-81A (2), a non-agricultural tenant has also been disallowed to sub-let the whole or any part of his tenancy on such terms and conditions whatsoever. This is a regular provision prohibiting sub-letting of non-agricultural lands. This provision was also made to materialize the very objects of the SAT Act, 1950. If this was not made, the whole object would remain unsatisfied.
Lease under the TP Act and Sub-lease under the Land Law: An identical term
The Transfer of the Property Act was enacted in 1882 and the State Acquisition and Tenancy Act came in force in 1950. Under the former, a land owner can transfer his immovable property in the way of lease under s-105 but under the latter the raiyat is not the real owner of the land. Since he cannot leave his land at will and thus getting deprived of his right of leaving the land at will in the fear that his right to land will extinguish. Now it comes out that this two statutes are controversial to establish the similar meaning of lease. If we look at the procedure of lease which is lease under the transfer of property Act, 1882 that is considered as sub-lease under the State Acquisition and Tenancy Act, 1950.
Now 3 questions arises to support the argument.
Who is the owner of the property?
Who is the lessor? and
Who is the lessee?
The Constitution of the Peoples’ Republic of Bangladesh keeps the provision of the principles of ownership. Under article-13, there are three types of ownership of property. Those are
State ownership on behalf of the people
Co-operative ownership
Private ownership by individuals within such limits as may be prescribed by law.
It appears that three types of ownership is recognized in a way that the individuals can own property alike the cooperative or the state but they have to pay rent and other taxes as the state ensures security and protection to the individuals.
In view of article-42, the citizen can exercise his right to property but this right is not unfettered as he got to conform to certain guidelines framed by the state .
Under A-144 of the Constitution of Bangladesh, the executive authority if it feels necessary for public purposes can make interference with the ownership or enjoyment of the property of the citizen by exercising eminensus dominium means states’ power of taking private property without consent of owner.
Now whether the private ownership exists in land in the modern period in Bangladesh. The answer must be negative. Under s-92 of the SAT Act, 1950 read with Rule-6 of the Tenancy Rules, 1954. These sections speak of the extinguishment of interest of the raiyats in the land.
In Bangladesh, under the SAT Act, 1950 the raiyat or malik is not the real owner of the land rather they are tenants of the state. The state is itself a lessor of the land and the citizens are the raiyats or the tenants though they are called malik. The state gives tenant the land to the raiyats and the raiyats are debarred from creating another tenancy under them.
Now if the above contentions are brought in s-105 of the TP Act, 1882. It can be asserted that as lease is made by a person who is owner of the land to another and thus make the latter under tenant, it amounts to sub-lease in the language of the State Acquisition and Tenancy Act, 1950.
However, the definition of "lease" can be adopted mutatis mutandis for defining "sub-lease". What is "lease" between the owner of the property and his tenant becomes a sub-lease when entered into between the tenant and tenant of the tenant, the latter being sub-tenant qua the owner- landlord. A lease of immovable property as defined in Section 105 of the Transfer of Property Act, 1882 is a transfer of a right to enjoy such property made for a certain time for consideration of a price paid or promised. A transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is sine qua non of a lease. A sub-lease would imply parting with by the tenant of the right to enjoy such property in favor of his sub-tenant.
In Nirmal Kanta (Dead) Through LRs. v. Ashok Kumar and Another , the Court held thus
"What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favor of such third party and puts him in exclusive possession thereof.”
Now in view of this decision, and in language of land law-
1. The lessor in section-105 of the TP Act, 1882 is a tenant in the view of land law.
2. He (tenant under Land law) inducts a lessee who is a 3rd party stranger under land law and
3. He gives possession wholly or in part in favor of such 3rd party and puts him in exclusive possession.
In light of above analysis, it can be submitted that lease under the Transfer of property Act, 1882 amounts to sub-lease under the State Acquisition and Tenancy Act, 1950.
The points of contradiction on sub-lease between the TP Act and SAT Act
It is clear from s-105 of the TP Act that for the creation of relationship of landlord and tenant, it is necessary that there should be a contract between the parties regarding transfer of a right to enjoy the property.In Technicians Studio Pvt. Ltd. V. Smt. Lila Ghosh when the relationship of land lord and tenant exists between the parties, the parties intend to create a tenancy and intention had to be gathered from the facts and circumstances.
The above explanation indicates a quite sub-lease under the SAT Act. Though the under TP Act, the landlord is a lessor and the lessee stands in the shoes of the original land lord but the SAT Act indicates that the creation of letting subsists between the state and the malik of the land and when the malik of the land creates further letting for his property it is sub-letting.
Now the nature of the lease under TP Act and sub-lease under the SAT Act are the same only title is different in two different statutes. Now contradiction is that it is allowed in guise of lease though nature is sub-lease in the TP Act but the same is strictly prohibited in SAT Act.
In case of Province of East Pakistan v. Md. Hossain It placed a complete embargo on sub-letting of any land in the khas possession of any person within the area specified. If the land is let out in contravention of this section, it will be null and void and the so sublet will be forfeited to the Govt. after the amendment of this section in 1956.
When the TP Act came into force, the concept of sub-lease was not a burning issue. Later it was found that certain people who were to retain up to 375 bighas or less lands in their khas possession, did not cultivate or use the lands themselves. They sub-let their lands to other people and thus created sub-tenancies. This sub-tenancies worked against the very objects of the SAT Act, 1950. It made raiyats indirect tenants of the state again and made them to pay excessive rent through intermediaries. To Guard against this mal-practice, the SAT Act keeps the provisions on the prohibition of making sub-tenant. But, the TP Act allows and creates sub-tenant in guise of lease and thus degrades the object of latest statute enacted on demand of one class of raiyats stopping intermediaries.
Prevailing Position
Before the insertion of s-75A and 81A (2) in the SAT Act, there was no bar on the very exercised sub-letting of immovable agricultural property. But after that inclusion, the door of sub-letting has stopped. Nevertheless, it is not the real picture in the context of Bangladesh. The TP Act, encourages to exercise lease by a land malik to another whose nature is not more than sub-lease under SAT Act and thus the way maintains the provisions of sub-lease in guise of lease. Even though sub-letting has been prohibited under s-93, 81A 2), and75A of the SAT Act, it is still exercised in Bangladesh. A person can easily lease his agricultural property or other premises to another and thus intermediaries comes between the State, rent-receivers and the land malik, tenant of the state.
The grant of a sub-lease conveys only a portion of the tenant's rights in the property. In a sub-lease scenario, the new tenant frequently leases only a portion of the original tenant's space, or the sub-lease covers only a portion of the remaining lease term. For this reason, a sub-lease is often viewed as a lease within a lease. The analogy of landlord and tenant arises and is applied to the original and new tenant, respectively.
According to the above statement, in SAT Act, we find that state is the lessor and the citizens are the lessee or tenants not the original owner of the land. When one tenant (citizen) transfers his property through lease to another, he create a lease within a lease (sub-lease). And it is still exercised in Bangladesh.
Though the TP Act was an Act of 1882, the SAT Act is so the latest one which has been enacted in considering of the present context of Bangladesh after the removal of Zamindaris System and to make only one class of raiyats under the Govt.by equaling the status of the rent receivers to that raiyat, to enable raiyats to cultivate the land themselves and concentrate on improving productivity of land, to enable raiyats to pay rent directly to the Govt. so as to relive raiyats of the excessive rent burden often created by the intermediaries.
Now it is the Constitutional duty of every citizen to observe the law here the SAT Act, 1950 which is later than the TP Act. And the latest shall prevail.
Effects and disadvantages of sub-lease
Under the Permanent Settlement, 1793, the state claimed only revenue and land ownership and other interests relating to land such as transfer, sale, gift etc. were imposed on the Zamindaris. The Raiyats and the peasants were in the enjoyment of the property. Under the then C.S. Khatian, the raiyats were not owners of the property rather the Zamindaries were the owners. It was pointed out that the Zamindaries are only a person, the may have deep relationship with the rulers of the state but he is not as like as the state and the rulers of the state. Under this settlement, in many Bengal the raiyats bore the brunt of the increased demand. However after a long period, the SAT Act, 1950 was enacted. Under this Act not only the Zamindaries but also others intermediaries and sub-lessors were abolished. In the Language of Dr. D.C. Wadhwa, he said that as intermediaries were considered to be the main obstacle to progress in agriculture, the institution of Zamindaries was abolished in the whole of the country, where ever it existed with a view to creating peasant proprietorship.
In considering the disadvantages positions of the intermediaries and sub-lessor, the State Acquisition and Tenancy, Act 1950 was enacted. Before this enactment, sub-ordinate tenancy was created by the intermediaries on a special contract between themselves and the others who were under them. For this the under tenants would be liable to pay rent to that intermediaries/ Zamindaries other than the Govt.
The creation of sub-tenancy or under raiyati under which, but for a special contract, be liable to pay rent to a person other than the Govt.
Letting is a relationship between the state and the malik of the land. So under this relation the malik of the land has to pay rent only to the state. Thus one class of raiyat is created under the control of the State. But when the malik create further letting for his property it creates the relationship of sub-lettting. Under this relation the under tenant has to bear the burden of more rent of the sub-let property created by the intermediaries.
After all, if sub-let is allowed, it would enable maliks of the land to create further tenants in oppression as existed before the Sat Act, 1950.
Under s-105 of the TP Act, a lease is created as a matter of relationship between the landlord and the tenants. When the relationship of landlord and the tenant exists between the parties, the parties intended to create tenancy.And the tenants has to pay rent to the landlord directly not to the state. Thus this provision of Transfer of Property Act make the scope to create more than one raiyat and to pay rent to the intermediaries other than the Govt.
However, it means it would be totally incomplete with the very object of the SAT Act, 1950 and could jeopardize the existence of the SAT, 1950 as well.
Probable Solutions
The general principle is that when the two laws exists at the same time on the same provision, the subsequent shall prevail. According to this principle, the Sate Acquisition and Tenancy Act, 1950 shall prevail over the TP Act, 1882. The TP Act, 1882 maintains the provision under s-105 of lease which is made between the landlord and the tenant. If it is explained from the view of SAT Act, sub-lessor or intermediaries are allowed to exercise sublet. But it is strictly prohibited under the SAT Act. When the TP Act was enacted in 1882, the term sub-let was allowed. The Zamindaries or intermediaries could create sub-tenant under themselves and the subtenant paid rent to the intermediaries other than the Govt. However with the passage of time, the right of the Zamindaries and tenant has been modified. The usage of Zamindaries was abolished. Nevertheless the term “lease” under the TP Act in guise of sub-lease by a person to another has not been modified yet. Taking considering the disadvantages of the sub-let, the SAT Act maintain the provision on the provision of sub-let. It is the latest provision after the abolishing of Zamindaries to create one class of raiyats by equaling the status of the rent- receiver to that of a raiyat, to enable raiyats to pay rent directly to the govt. so as to relieve raiyats of the excessive rent burden often created by the intermediaries or sub-lessor. So in keeping consistency with the latest provision of the SAT Act, the provision of lease under TP Act shall be reconsidered in the context of Bangladesh so that the humble objects of the SAT Act shall come true.
Conclusion
The SAT Act was framed by making invalid the permanent settlement of 1793 with a view to relieving the tenants from the oppression of the Zamindaris and to bring them under the direct relation with the govt. But the TP Act bears the provisions of lease which conveys the nature of sub-lease. So it should be modified with the passage of time and it should open the door for the tenants to make direct relationship with the Government by stopping the exercise of intermediates and sub-tenancy in guise of lease.
Bibliography
Books and Journal Articles
The Constittion of the Peoples’ Republic of Bangladesh.
Dr. Mohammad Towhidul Islam, Lectures on Land Law.
Kabadul Islam, The land system of Bangladesh( Mowla Brothers, Dhaka, 2000)
Kazi Ebadul Haque, Gradual Development of Land Laws and Land Administration( Bangla Academy, 2000).
Dr. S.N. Shukla, Transfer of Property Act. ( 24th Edition, 1995)
Mullah, The Transfer of Property Act, 1882.
Dr. L. Kabir, The State Acquisition and Tenancy Act, 1950.
F K M A Munim, Rights of the citizens under the Constitution and law, BILIA, 1st Edition, 1975.
Elizabeth A Martin (ed), A Concise Dictionary of Law (OUP, London, 1983).
D. Rothermund and D.C. Wahdwa, Zamindaries , Mines, and peasants.
Statutes
The Constitution of the Peoples’ Republic of Bangladesh, 1972.
The State Acquisition and Tenancy Act, 1950.
The Transfer of Property Act, 1882.
Web materials
www.legalblog.net
www.lawteacher.net.
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