The Vested Property Act first appeared in 1965, when Bangladesh was part of Pakistan. It was at that time called the “Enemy Property Act.” In that year, war broke out between India and Pakistan. The law was directed primarily against the property of the Hindus who had temporarily fled to India in fear of their lives. The state was enabled to take their property into custody, with the rationale that a Hindu who went to India was an enemy.
After the Bangladeshi War of Independence (1971) it was expected that the law would be repealed. India, far from being an enemy of Bangladesh, enjoyed excellent relations with the newly born state. However, all that happened was that the act was renamed the Vested Property Act. Hence, on paper, according to this law, India was actually still an enemy of Bangladesh. Even worse, whereas previously the state was only the custodian of the confiscated property, an amendment was passed in 1976, which made the state the outright owner of the property, which it could redistribute. This was a cruel and callous move by the state. As a result of it millions of Bangladeshis who had fled to India from the Pakistani’s Army’s holocaust in which 1-3 million people were slain*, in the prelude to the 1971 war, could no longer return and reclaim their ancestral homes in the newly found state of Bangladesh. It was a political move, which forced the refugees to stay in India, thus conveniently offloading millions of people (of whom 80% were Hindu*), and acquire huge amounts of property.
More so, the new amendment to the law encouraged a new long and slow repression of Hindus, particularly at the behest of hard-line Islamic clerics who wanted an infidel-free Bangladesh, and greedy politicians, who could redistribute confiscated property amongst themselves. All that needed to be done to acquire Hindu owned property was to forcibly evict the Hindus, through violence, and make them flee. As per the Vested Property Act it was easy for the local government to gain ownership and redistribute the property at will. Because politicians found it particularly easy to gain from this act, it was very difficult to repeal, even when the relatively progressive Awami League was in power. Due to this, the property vested between 1976 and 1991 was far greater than previously, when Bangladesh was East Pakistan. The law has been put to particular devastating effect against homes owned by women, as these were easier targets. It was estimated in the year 2000, that the land taken from Hindus in this manner totaled to 2.1 million acres, which would at current prices be worth $22,873 million (USA), accounting for some 40% of Hindu households of the country.
This systematic process is continuing till today, with particularly renewed vigour, after a new Bangladeshi coalition government came to power in October 2001. It included the ultra hard-line Jamaat-e-Islami party, who were staunch supporters of the fallen Taliban regime of Afghanistan (who used to make Hindus wear yellow armbands to distinguish themselves) and who have held many pro-Bin Ladin rallies. This is all terrible news for the Hindus of Bangladesh whose population has already dwindled from over 25% to less than 9% today.
The time demands the removal of the oppressive Vested Property Act, which has no reason to exist except for the brutal repression of Bangladeshi Hindus, which has gone on unopposed for too many years, and call on others to support us in trying to emancipate their suffering.”
Chapter: Two
Historical Background
2.1 Vested Property Act (Bangladesh):
The Vested Property Act was a controversial law in Bangladesh that allowed the Government to confiscate property from individuals it deemed as an enemy of the state. Before the independence of Bangladesh in 1971, it was known as the Enemy Property Act and is still referred to as such in common parlance. The act is criticized as a tool for appropriating the lands of the minority population.
“In the truest of the term – is not mere increase in average income. Development entails a free-mediated process.
It is related to broadening and enlarging choice in which everybody society enjoys equal right and access in every sphere and lead life in a way a person owns and values.
It is related to inclusion of the excluded’, ensuring liberty and democracy’, and removing all sources of poverty, deprivation, and un-freedom. It is related to the removal of distress, destitution and deprivation’, tyranny and oppression’, superstition and fundamentalism. To ensure true humane development, five types Of freedom are essential: political freedoms economic facilities, social opportunities transparency guarantees, and protective security (Sen 1999).
2.2 Legal History:
The promulgation of the Enemy Property Act (EPA) in 1965 using the war between India and Pakistan as the pretext, and its subsequent continuation in tile name of Vested Property Act (VPA) even after the Liberation War Of 1971 in independent Bangladesh have denied all five types of freedom and created an environment of endemic deprivation among the Hindu minority. The Act is anti- constitutional, anti-humanitarian, and anti-civilization. It provoked communalism and served as a powerful instrument towards gradual marginalization, pauperization of the Hindu community members through eviction dispossession their lands and homesteads, breaking of family ties, loss of human potentials and formation of a parasitic vested interest groups – and all these have acted as barriers to human capital formation in the country.
In spite of the fact that the barbarian act has been remained in operation during the last over forty years, no initiative had been taken to conduct exploratory research by social scientists and economists of the country until mid-nineties of the last century. There was a considerable dearth of research based knowledge on the impact of the Act on the Hindu minority as well as on human development in Bangladesh. In this background, the first exploratory research work was conducted in 1995-96 with the initiative of Association for Land Reform & Development (AI-RD). The study titled ”Impact of Vested proper Act on Rural Bangladesh. An “Exploratory Study ” was the first of its genre in Bangladesh.
Awamil League Government, at the end of its tenure, passed the Vested Property Repeal Act 2001, through which the Government started the process of abolishing this anti-humanitarian act after thirty-five years of its enactment. But the process did not continue as the successive new Government – the Four-party Alliance Government of BNP and Jamat-e-lslami (2002-2006) – passed an amendment of the Act in 2002, which allowed the Government an unlimited time to publish the list of returnable vested properties. Therefore, the deprivation of the Hindus did not come to an end as it was expected on enactment Of the Vested Property Repeal Act 2001 and dispossession and eviction in the name of the Act continued. In addition, there were many new dimensions of oppression against the Hindu minority during the last few years.
This law is the culmination of several successive discriminatory laws against non-Muslims passed while Bangladesh was part of Pakistan.
Chronologically, they are:
*The East Bengal (Emergency) Requisition of Property Act (XIII of 1948)
*The East Bengal Evacuees (Administration of Property) Act (VIII of 1949)
*The East Bengal Evacuees (Restoration of Possession) Act (XXII of 1951)
*The East Bengal Evacuees (Administration of Immovable Property) Act (XXIV of 1951)
*The East Bengal Prevention of Transfer of Property and Removal of Documents and Records Act of 1952
*ACT XXXIX of 1954
*The Evacuee Administration of Immovable Property (Amendment) Act, Act I of 1955
*The Pakistan (Administration of Evacuees Property) Act (XII of 1957)
*The Ordinance XXVIII of 1960
*The East Pakistan Disturbed Persons (Rehabilitation) Ordinance (No 1 of 1964)
*The Defense of Pakistan Ordinance (No. XXIII of 6 September, 1965)
*Rule 119 under The Defence of Ordinance, 1965: Requisition of Property
*The Defense of Pakistan Rules of 1965
*The Enemy Property (Custody and Registration) Order of 1965
*The East Pakistan Enemy Property (Lands and Buildings Administration and Disposal Order of 1966.
*The Enemy Property (Continuance of Emergency Provision) Ordinance No. 1 of 1969
Bangladesh (Vesting of Property and Assets) President’s (Order No. 29 of 1972).
*The Enemy Property (Continuance of Emergency Provisions) (Repeal) Act (XLV of 1974)
*The Vested and Non-Resident Property (Administration) Act (XLVI of 1974)Memo No.667(18)-VP-115/76, Dt.17.4.1976, Ministry of Land Administration & Land Reforms
*The vested and Non-Resident (Administration) (Repeal) Ordinance 1976 The Ordinance, (No. XCII of 1976).
*The Enemy Property (continuance of Emergency Provision) (Repeal) (Amendment) Ordinance, The Ordinance No.XCIII of 1976
*The Circular No.1A.1/77/156 R.L Dated 23rd May, 1977, Land Administration & Land Reforms Division
*Memo No. 155(19)VP Dt.17.1.79. Detection & leasing out all vested properties(Land & Building)
*The circulars of February 26th 1990, Ministry of Land Revenue(2 circulars)
*Memo No.Bhu. MA/7-5/Arpita (Nitimala)/117/42 (Angsha)/638(61),Dt.4.11.1993.”
*Vested Property Repeal Act,2001
*Vested Property Repeal Act (AMENDMENT),2002
*Vested Property Repeal Act (AMENDMENT),2008
2.3Renamed as Vested Property Act:
“Though renamed as the Vested Property Act in 1974, the law still retains the fundamental ability to deprive a Bangladeshi citizen of his/her property simply by declaration of that person as an enemy of the state. Leaving the country through abandonment is cited as the most common reason for this, and it is frequently the case that Hindu families who have one or several members leaving the country (for economic as well as political reasons) have their entire property confiscated due to labeling as enemy”
Chapter: Three
Vested Property Act: Evolution, Paradox, & Missing
Numbers
3.1 Communalism & Colonial Legacy
“It is a great historical reality of Bangladesh that the people of this area lived in a congenial and peaceful atmosphere for centuries. Both Muslims and non-Muslims lived side by side in harmony and enjoyed their rights equally. Both Muslims and Hindus dreamt together of their common bright future, fought against their common enemies together.
Peaceful coexistence, no-inhabitance and cooperation, irrespective of religion, was the basic characteristic of this part (even when the modern civilized Europe was fighting devastatingly in the name of religion) of the globe. There are so many occasions when the rulers of this part belonging to Islam by religion encouraged non-Muslims to develop their social, economical and cultural lives. Neither Muslims nor Hindus ever thought of leaving their historic motherland just because the state executive was of other religion (no matter Muslim Sultan/Nawab or Hindu Raja ruling his mother land). On the contrary, people belonging to other religion were freely given full right of their personal laws, right of employment, trade and profession without any sectarian treatment from the state. So there were no pronounced suspicion, disbelief and adversary on that ground.
This peaceful atmosphere started warning with the inception of Britishers’
“divide and rule” policy in Bengal. The division of Bengal in 1905 and acceptance Of ”Two nation theory” as main political doctrine in the late 1930s, laid the final stone to formulate Hindu-Muslim issue as a political criteria, The first event i.e., division of Bengal (1905) popularly known as ”Bangavanga” was a shrewd political decision made by the Britisher to escalate tile division among the Bengalees and divert the in growing exception of freedom from the colonial rule. The defeat of Russian against Japan, emergence of Germany as a United & rapidly developing country, emergence of USA as a superpower on the one hand &infiltration of European democratic ideas on the other hand, played important role to influence the newly educated strata of Bengal to intensify their movement for freedom. Though at that stage the spirit of freedom movement was mainly limited within the educated people of large cities and social elites, the Britishers correctly understood that if they could not divert the attention to anything else, it would soon lead to a deep rooted socio- political movement against their oppressive colonial rule.
Bengal protested vehemently against the division on religious criteria? and the division was repealed. But by that time the devil of communalism was born and both the Muslims and Hindus of Bengal were already possessed.
On the other hand, in late 30s, the ”two nation theory” was accepted by Muslim League as its main doctrine of independence. The majority of the people of East Bengal, the Muslim community, more or les accepted the idea (but they were conceptually, misled by the active propaganda of Muslim League), that “by virtue of one’s religious belief, a Panjabee or a Uttar-pradesh Muslim is closer to him then his next door neighbor who belonged to some other religion (that is, to Hindu)”.
The caste system, with all its worst attributes which was very strongly enrooted among the Hindus were not only causing social havoc among that community but also laid its worst impacts on Bengalee Muslim.The Muslims were already experiencing economic and moral hardship as they were deprived of their socio-economic life due to lack of economic Potential and not having Europeanized educational background. Under this Circumstance, the Britishers and the Muslim League elites tried t make the Muslims believe that only the establishment of an independent state for the Muslim Would be a panacea in preventing their Sufferings.
Meanwhile, being instigated by the British, a severe communal riot was staged in Bengal in mid-forties by the miscreants of both Hindu & Muslim origin which caused enormous sufferings to the common men. Muslim origin which caused enormous sufferings to the common men.
This riot was instrumental, after the creation of India and Pakistan in 1947 in causing migration of religious groups from one part to other part on the basis of their religious affinity.
The East Bengal (present Bangladesh) was geographically included in the then Pakistan as its Eastern part. Just after independence of Pakistan, the founder of “two nation” theory Mr. Mohammad Ali Jinnah declined from his earlier stand of dividing the population by religion and formulated a concept of Pakistani nationalism. ln his first speech in the constituent assembly of Pakistan, Mr. Jinnah clearly mentioned that henceforth there would be no difference between Muslims & Hindu as all of them would be equal citizens of Pakistan. But the idea was not accepted by the vast majority of the ruling elites of the then Pakistan. After the death of Mr.Jinnah, the central leadership of Pakistan provoked massive communal riots and disturbances throughout East Bengal in 1950. It is a proven fact that communal riots and disturbances in East Bengal were always pre- planned occurrences which were instigated by the ruling elites.
The events discussed above caused such a massive migration from the then East Pakistan that it had no parallel in the history of Bengal. The Hindu population size decreased drastically to 9.2 million in 1951 compared to 1 1.7 million in 1941 The sufferings of the then Hindus in East Bengal had multiple dimensions: economic, political, constitutional, social, cultural and legal.
Obviously, behind all the act: of Pakistani rulers & their stringers in East Bengal,. had several objectives: (a) to reduce the number of bangalee speaking population of Pakistan by driving out a considerable part of the Bengalee Hindu population who constituted almost one third of East Bengal, and considered to be the bridge of Bengalee culture and spirit; (b) to provoke massive migration as repulsion, from some particular Non-Bengalee part of India to Pakistan and specially to East Bengal, which would lead to a process that would reduce the overwhelming majority of Bengalee speaking people in the context of Pakistan and its eastern part; (c) to establish a very strong and workable linkage between the state power structure and local components of power all over East Bengal by allowing to acquire minority properties.
The waves of massive migration created a serious administrative problem of managing the left-over properties. with an apparently innocent coverage on the surface of managing left-behind properties some detrimental Acts and ordinances were proclaimed. The Pakistan Government was active enough to promulgate those Acts and ordinances, and it was ensured that the Hindus migrate without taking away valuables (assets). Legally, only a small amount was allowed to take away from the country, and that even after completing a lot of procedural formalities.
The Vested Property Act, is a successor of many laws and by laws promulgated by the Pakistani government with intention to destroy the unity of Bengalees of the then East Pakistan, particularly, nationalist spirit which was crystallizing after the declaration Mohd. Ali Jinnah that Urdu and only Urdu would be the state language of Pakistan.
It should be mentioned that most of the laws were not properly discussed by the democratically elected law making bodies. Even when such laws were placed before assemblies, they were not discussed thoroughly and implications were not properly examined. The ruling party members dittoed the bills submitted by existing Governments. An example can be cited in this regard: when the East Bengal Emergency Requisition of Property Amendment bill of 1951 was moved in the East Bengal Assembly, no members except four from Hindu community (who were elected as members by virtue of separate electoral system) opposed it oft the ground that by means of this Act, mostly the properties of the Hindu community were being requisioned and thus economic structure the community was about to be destroyed.
The reality of that time was that in more than 99 percent of the cases, the properties belonging to the Hindu community were requisitioned, no matter whether it belonged to the evacuee persons or the lawful owners still living in East Bengal. Though the main theme of requisition Act was to utilize houses of evacuee persons for the use by state, there were lot of cases where buildings of commercial and industrial firms were also requisitioned under the said acts.
It is also important to note that most of the enacted laws were adopted to satisfy the ”wish” or ”desire” of the then ruling elites devoid of minimum respect for democracy, civil rights, and the constitutional provisions.”
3.2 From Requisition of Property Act to administration of Evacuees
Property Act
“In 1947, the then eastern part of Bengal emerged as the eastern province of the newly created independent state of Pakistan. Dhaka, a district town of the British Colonial India, became the capital of the newly constituted province of the newly independent state of Pakistan. An abrupt and emergent demand for accommodation for the numerous government offices and public servants appeared to be one of the key problems faced by the then provincial administration.
Moreover, to ease the public life under the changed circumstances of late forties the new province also required rapid development in the field of communication, commerce, industries, other supplies and services. In order to meet all these needs to run the administration and ensure quickening of development the then government of East
Bengal enacted a law titled The (Emergency) Requisition of Property Act (Act XI11 of 1948) as a temporary measure for a period of three years.
However, by the latest prolongation in 1980 through Ordinance No. V/80.5.2 this Act has its direct and/or indirect continuity till present day. The Act created scope of temporary and/or permanent taking over of any property that had been considered by the administration to be ”needful for the purpose of the state” (administrative and/or development). Various decisions of the High Court and Supreme Court provides evidences that the said Act had created opportunities for malpractice. The proceeding of the East Bengal assembly of 1951 evidenced the fact that the Act was widely used against the religious minorities. However, such irregularities plausibly be considered as the problems of implementation of the Act.
Moreover, the Act itself did not step over the right of a court to consider the legitimacy of the requisition order.
The partition of India in 1947 and subsequent communal riot in 1950 caused massive migration of minorities. The immigrants left the country, in many cases, without settling their properties. As a result a serious man-made administrative and legal problem of managing the properties of the said category had emerged. According to the Hindu custom of property ownership most of the properties belonged to the family, and the concept of Hindu family formed in Bengal as a joint family. Such legal phenomena complicated the situation. This was the context in which the East Bengal Evacuees (Administration of Immovable Property) Act, 1951, was enacted for administering; preserving and protecting the immovable properties of evacuee persons. The first Act in the context of evacuee persons was enacted in 1949, subsequently in 1952 and 1957 new relevant Acts were enacted.
Under Evacuees Act, ,a person (including his legal heirs) who was ordinarily resident of East Bengal left for any part of India owing to communal disturbances or fear thereof. after the August 15, 1947, would be considered as evacuee. Government through Evacuee Property Management Committee would take the charge of property of a evacuee person either on the basis of application from such person or on its own motion. The committee had the authority to grant lease or let out such properties as it deems necessary. The civil court, for the first time. was restricted to call question in any order passed or any action taken by the committee. The Hindu elites and Zaminders who were the owners of huge property, lands and buildings were mainly affected by the said Act.”
3.3 Disturbed Persons Rehabilitation Ordinance: A Prelude to Enemy
Property Act:
“In January 1964 the holy hairs of prophet Hazarat Mohammad (SM) preserved in the holy shrine of Hazarat Bal in Shreenagar, the capital of Indian state of Kashmir, was stolen by some miscreants. A communal disturbance was provoked in the East Pakistan accordingly.
The democratic and progressive cross section people of East Pakistan protested against the said provocation of ill motivated quarters. The undesired situation was brought under control within the shortest possible time. However, six months after the incidence was over, the Government of East Pakistan hurriedly promulgated an Ordinance titled the East Pakistan Disturbed Persons Rehabilitation Ordinance 1964. Ordinance 1 of 1964” with apparently innocent plea of speedy rehabilitation of persons affected by the communal disturbance.
Though a provincial assembly was in at function in the then eastern province of Pakistan, the said Ordinance was never placed before that assembly. Moreover, validity of the said Ordinance was extended time to time until .1968. In the name of speedy rehabilitation of persons (minority) affected by the civil disturbance and for the protection of property of minority community in the then East Pakistan, the ordinance introduced restriction on transferring of any immovable property of minority Community without permission of the competent authority. The Deputy Commissioner (only seventeen persons in the province) were empowered to allow transfer Of agricultural land amounting to Only two acres or a maximum limit of one fourth of the total land (which ever is higher) held by the title holder. In case of other property (including building structure, etc.) the competence of a Deputy Commissioner was restricted to the market value of the property not excelling five thousand rupees. The relief and rehabilitation commissioner of the province (only one person in the East Pakistan) had the competence to allow higher amount. The ordinance also defined the legal meaning of transfer as sale, exchange, gift, will, mortgage, lease, sublease or any other manner of transfer or change of management through a power of attorney.
The said Ordinance restricted the power of courts at all level from entertaining without permission into any suit for the specific performance of any contract relating to the transfer within the meaning defined above of any immovable property of the minority community and also for declaration title of the same.
It is not difficult to imagine how difficult it was for a small and or middle farmer belonging to the minority community to approach the Deputy Commissioner (no question about approaching the Relief and Rehabilitation Commissioner of the province) of the dissect for obtaining a permission of transfer and even for filing a case, to establish his/her title rights.
Thus, all the minority community property owners in East Pakistan had been deprived of their ownership of property right during 1964 – 1968 as two basic components of ownership right (a) right to ensure the title of his or her property, (b) right to transfer (including sell, gift, will, entrust with Power of attorney etc.) became void during that time.
It may be mentioned in the context discussed above that the minority community faced problems of malpractices and improper application of laws enacted before 1964, but from both from 30th June 1964 onward they started facing real legal discriminations. It was already sensed by many that some more draconic laws would be enacted in near future.
Thus, all necessary ground work for enacting of an Act like the Enemy Property Act had been completed more than one year before the Indo-pak war of 1965. Minorities, neither could transfer their properties, nor could change the title of the said, had nothing to do but, wait for worse days.”
3.4 Indo-pak War of 1965,Enactment of Enemy Property Act & its
Genesis
“On September 6, 1965, a war broke out between Pakistan and India. An Ordinance called the Defense of Pakistan Ordinance (Ord. XXIII of 1965) was promulgated to provide special measures to ensure the security, the public safety, interest and the Defense of the state. Since the country was threatened by war, emergency was also proclaimed through out the country.
Under the provisions of emergency powers and the Defense of Pakistan Ordinance, the Government framed Defense of Pakistan Rules (DPR) and under the Rules of the DPR the Government of Pakistan made an executive order on September 9, 1965 named the Enemy Property (Custody and Registration) Order II of 1965. There was a cease fire on September 22, 1965 and the Indo-pak War came to an end after the Tashkhent Declaration.
The East Pakistan government also made an order in 1966 under Rule 161 titled the East Pakistan Enemy property (Lands and Buildings) administration and Disposal Order of 1966.
Though the war between Pakistan and India came to an end after the Tashkent Declaration, there existed a controversy regarding the question whether there had been an ‘end of the war time situation’ between Pakistan and India in the absence of a formal peace Treaty, Using that controversy, both the central and provincial Governments continued to keep the aforesaid Orders operative by amending them from time to time.
The Enemy Property (Custody and Registration) Order of 1965 consisted of the following major parts:
*India is declared as enemy country (since Pakistan and India were at the state of war with each other).
*All interests of of enemy, i.e., that is the nationals/citizens of India, those residing in the territory occupied/captured/controlled by India – in the firms, companies as well as in the lands and buildings situated in Pakistan to be taken over by the custodian of Enemy Property for control or management
* The benefits arising out of trade or business or lands and buildings should not go to the enemy, so that it may not affect the security of the state of Pakistan or impair its Defense in any manner.
In March 1966, two months after Enemy Property the proclamation of the East Pakistan Enemy Property (land and building) Order 1966 by the then governor, the Deputy Custodian of Enemy Property (land and building) issued a circular [Memo No. 55(17) -IX_22/65-EP, dated 14.3.1966) explaining the procedure of taking over possession of the enemy property and their management. Articles 8 and 9 of the circular clarified the position of the government of East Pakistan (as well as Pakistan) regarding the Muslim citizens of Pakistan who were residing in India due to some reasons and/or Muslim citizens of India. The official instruction was that the categories of person mentioned above should not be treated as the enemies. Though according to the legal definition of enemies proclaimed by DPR, the legal definition of enemies proclaimed by DPR, the persons belonging to above mentioned category automatically fall in the category of enemies of Pakistan along with the non-Muslim enemies.
Furthermore, the circular issued by the deputy custodian of Enemy Property dated 26.6.1968
(Memo no. No.1694-XHI-5O5/67-E.P) also specified in black and white that Muslims residing in India (including the India citizens) should be excluded from the category of enemy.
The property owned (not only in the cases where the part of the property owned by the persons of the said category, but also where the entire property belonged to them) by the same. only in some exceptional cases like if it was found that the interests of such absentees might suffer, should be taken over. All the interests of such owners would be protected till their return to Pakistan.
Such properties were instructed to be handed over to the owners or their legal heirs on their demand: In the case of a minority owner, once his/her property is enlisted and/or taken over under the Enemy (Vested) Property Act by the custodian – his/her ownership right has been lapsed for ever.
Since 1947 the government had the possession of some private Property and was managing them. Such property had been requisitioned under the Requisition Act of 1948 for the benefit of the state or society. Some of the owners of such property by 1966 had left the then Pakistan, leaving behind their property matter unsettled. The circular mentioned above which was issued by the deputy custodian (Memo No.55(17) IX22/65 EP] declared the requisitioned property along with the property which had been assumed and/or were being managed under the East Bengal Evacuee Act 1951 as enemy property. The circular also instructed the concerned officials to take over the property of latter category if the possession of the same until that time was not brought under the control of the assistant custodian.
Thus, the whole issue of laws and circulars analyzed above certainly generates a lot of confusions. First, the spirit of the emergency measures like enactment of the Enemy Property Act was to ensure the security, public safety and the Defense of Pakistan so that no property belonging to any person who might be the enemy of country (under the Defense of Pakistan rules) could be used in any manner against the sovereignty, security, and the Defense of the country. Second. it could not be possible that a property, possession of which had been remaining under the government since long (and remained with the same at the moment of taken over) could be used against the sovereignty, security. public safety and Defense of the country if the provincial and or the central government itself not used same property for the ill-motivated
Purpose as mention above.
However, under all circumstances till the proclamation of Ordinance No. XCIII of 1976, the above stated properties along with the other enemy and/or vested property were temporarily vested upon the government for temporary protection. But after November 8th, 1976 the government automatically engulfed the ownership of the property which the same (or its legal predecessor) had requisitioned and used to meet up the temporary needs with the Pledge (under the law) of returning the property back to their owners (or their legal heirs). Such examples of encroachment on private property by the government have created bad precedence and might be used against any lawful citizen if such Acts, Ordinances and circulars are not repealed immediately.
3.5 Transformation of Enemy Property into Vested Property (Old Wine in a New Bottle)
“The proclamation of independence and formation of the Provincial Government of Bangladesh took place at Mujibnagar on April 10, 1971 and the order named Laws of Continuance Enforcement Order, 1971 was promulgated on the same day purporting to keep in force all the Pakistani laws which were in force in the then East Pakistan on or before March 25, 1971. In other words, Ordinance No. I of 1969, which does not fit with the spirit of proclamation of independence of Bangladesh, automatically remained ineffective in the new state. Bangladesh was not a successor state of Pakistan. On the contrary, Bangladesh established itself by waging a war of independence against Pakistan.
Immediately after liberation, the Government of Bangladesh enforced on March 26, 1972, the Bangladesh Vesting of Property and Assets Order, 1972 (Order 29 of 1972) By this order, the properties left behind by the Pakistanis and the erstwhile enemy properties were combined to a single category. However, in 1974 the Government of Bangladesh passed the Enemy Property (Continuance of) Emergency Provisions (Repeal) Act, Act XLV of 1974, repealing Ordinance I of 1969. But despite the fact of repealing Ordinance I of 1969 all enemy properties and firms which were vested with the custodian of enemy property in the then East Pakistan remained vested in the Government of Bangladesh under the banner of vested property. At the some time, Government also enacted another law namely the Vested and Non-resident Property (Administration) Act (Act XLVI) of 1974. This act was enacted to provide the management of certain properties and assets of the persons who are non-residents of Bangladesh or have acquired a foreign nationality. Though the principal aim of the Act XLVI of 1974 was to identify and take over the properties of those residents who left Bangladesh during/immediately after liberation war and/or took foreign citizenship, in practice this Act XLVI of 1974 was also widely used against Hindu minorities who had no connection with Pakistan for quite valid and obvious reasons.
In November 1976, the Government of Bangladesh repealed previous Act No. XLVI of 1974 by Ordinance XCII of 1976 and with a retrospective effect from the date of enactment amended the Act XCIII of 1976 empowered the Government not only to administer and manage the vested properties, but also to dispose of a transfer the same on long term basis. All the Acts prior to Ordinance XCIII of 1976 (including Ordinance I of 1969 empowered the Government only to become the custodian and to preserve enemy property in contemplation of arrangements to be made in the conclusion of peace with India. But the Ordinance XCII of 1976 made the Government owner of vested properties instead of protector of the same. Thus, the Government encroached the right of ownership, which is a gross violation of the existing laws pertaining to the right to private ownership. These steps undertaken by the military dictator had several dimensions all related to the strengthening of the political-base of the vested groups. First the military rulers wanted to accelerate the process of Islamization, and eliminate the spirit of Bengali nationalism built-upon secularism and developed and rooted through the war of independence of 1971. Second, the military dictators wanted to create a feeling of panic and insecurity among the 9.7 million Hindus (census 1974) as they were considered to be the bridge of Bengali nationalism, culture and spirit. Third the military wanted to establish a strong foothold of the ruling Government and the power mechanism with the local level power structure by providing them the right to acquire vested properties in exchange for collaboration with the Government. Fourth, the military ruler wanted to divert the attention of the economically rising strata of the society from the current socio-political development and by engaging them in the procurement of the property of the emigrant Hindus. It must be mentioned here that in a densely populated country like Bangladesh, getting a chance of acquiring real estate- the prime resource, is considered a great opportunity. All the above stated objectives of the military dictator were accomplished to a great extent.
In 1984 the then president of Bangladesh Lt General Hossain Mohammad Ershad and Chief Martial Law Administrator announced in a conference with the representatives of the Hindu community that henceforth no new property would be declared as vested property and the properties already enlisted as vested would not be disposed off any more. He also pledged that unless there was any legal bar, the enlisted property would be managed in accordance with the existing Hindu Law of Inheritance. Furthermore the pledge included the declaration that no deity property (i.e. property under Hindu temples and other institutions), property dedicated by Hindu families to Brahmins and the property belonging to the Hindu cremation places would not be disposed off or leased out without the concurrence of the Government. The circular directed the Deputy Commissioners to implement the presidential pledge with effect from 21-6-1990 in the sample unions. The total instances of dispossession related to the Enemy or Vested Property Act among 161 sample respondents during the year 1965-1995 were 179. Over 15 per cent of the total instances that took place during 1982-90 period proved that the above stated pledges and circulars were of declaratory nature only. Furthermore, during the field exploration, a big category of affected persons was found to have not been included in the Vested Property list prepared earlier. The respondents of this category were enjoying their property without any hindrance from the Government till late 1980’s and were paying relevant taxes to the Government. However, in early 1990’s, they were informed that as their properties belong to the category of ‘Vested Property’, no taxes could be received from them against those properties. From the Government side, no notice was served to the owners of this category of property. Moreover, these properties were also not leased out. It has been identified that such strange inclusion of property in the vested category, commonly known as ‘red marked’ properties, started taking place since late 1980’s and was practiced all over the country. For obvious reasons, it would have been difficult for the district administration all over Bangladesh to violate the Government circulars at a time without proper knowledge of the then Government and/or instructions from the some.”
3.6 Two paradoxes related to the law of vested enemy properties
“Paradox-I: It may be recalled from my previous analyses that the term ‘enemy’ here related has its root in the Defense of Pakistan Rule of 1965 and in the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order of 1966.
On March 23, 1974 the Government of Bangladesh passed two acts in this connection. The first of these two repealed (abolished) the relevant “Enemy Property Ordinance” of Pakistan and vested the properties already enlisted as ‘enemy properties’ in the Government i.e., the management and administration of previous ‘enemy properties’ were entrusted with the government of Bangladesh. The second act, on the other hand, brought the properties of non-residents under the vested category. The second act created scope for fresh enlistment of some properties, including the properties of religious minorities residing in India (no matter whether they were residing on permanent or temporary basis), though this act was not intended exclusively for the religious minorities.
The analysis presented above implies that (a) legally, there can be no new enlistment of properties under the enemy/vested/non-resident category after March 23, 1974. But in spite of this fact, fresh enlistment is still continuing through various government circulars issued from time to time thereafter, (b) the government became the owner of already vested (enemy) properties which is questionable from legal perspective.
Paradox-2: Bangladesh is supposed to be at war with India since 1965: The People’s Republic of Bangladesh is neither a part nor a successor of Pakistan. It severed its ties with Pakistan through its heroic liberation struggle and achieved independence 29 years back, neither Bangladesh nor India waged/declared war against each other. So logically the enemy of Pakistan (i.e. India) cannot be an enemy of Bangladesh. But by virtue of the continuance enforcement order promulgated on 10th of April 1971 all the laws operative in the then Pakistan on or before March 25, 1971 remained valid in the People’s Republic of Bangladesh. Though the Enemy Property Act of Pakistan was repealed/amended through various acts/ordinances enacted or promulgated after the Independence of Bangladesh, no government of Bangladesh so far repealed the effectiveness of the Defense of Pakistan Ordinance (XXIII of 1965) of 1965. As a result Bangladesh still remains at a state of war with India. Unless the Enemy/Vested Property Acts are abolished, the harassment of Hindu citizens of Bangladesh would be a never ending process.”
3.7 The vested property act and the constitution of Bangladesh
“The Vested Property Act is anti-constitutional. Some of the major aspects of the law are as follows:-
Article 11 of the Constitution: Fundamental principles of state policy proclaim that the republic shall be a democracy in which the fundamental human rights and freedom and respect for the dignity and worth of human person shall be guaranteed.
Article 27 of the Constitution: Fundamental rights chapter of the constitution proclaims that “All citizens are equal before law and entitled to equal protection of law.”
It is a fact, not a fiction that certain group of people numbered in millions, even in the nineties of the twentieth century, were incorporated as ‘enemies’ of the country in the truest understanding of the word and were evicted from their and/or (both in de facto and/or de jure) ancestor’s property in violation to the Hindu law of inheritance and the law of ownership of the Hindu joint family. The constitution however has provided the persons of such category also with the right to live under the rule of law and ensured them all the fundamental human rights as mentioned above. It is in contravention to the right of equality before law and entitlement of equal protection of law guaranteed by constitution. The right and privilege of citizens are grossly violated for the said segment of citizens who cannot even seek for relief from the court as the continuance of Defense of Pakistan Rule of 1965 under different names and circulars does not permit them to do so.
Article 2A of the constitution proclaims that “The state religion of the Republic is Islam”, at the same time, guarantees that “other religion may be practiced in peace and harmony in the Republic.” Also part III of the constitution captioned “Fundamental Rights” bears Article 2 (I) which declares that “The state shall not discriminate against any citizen on the grounds only for religion, race, caste, sex or place of birth.”
The vested property act with all its attributes is a gross violation of all the above stated articles in constitution. Firstly, it is a deliberate discrimination to certain section of manifold citizens of Bangladesh due to their religious belief. Secondly, it is contradictory to the right of practicing other religions in peace and harmony in the country. Thirdly, it appears that if anybody practicing Hinduism falls in the category of “enemy of Pakistan” and changes his/her belief and be converted to Islam, then under the earlier mentioned circular, the person is cleared from being incorporated as enemy. Finally, the places of worship of the Hindus (equivalent to places of public uses) could be vested according to so-called location of God or deity. This is a bitter obstacle for the followers of God to practice their religion smoothly, without any interference.
Article 13(c) guaranteed “private ownership, that is ownership by individuals within such limits as may be prescribed by law”. Article 25(1) proclaimed that: “The state shall uphold the right of every people freely to determine and build up its own social, economic and political system by ways and means of its own free choice; and © support oppressed peoples throughout the world waging a just struggle against imperialism, colonialism or racialism.”
From the analysis presented above, it is evident that the de facto continuance of the law of vested property (though formally repealed in 1974) contradicts the spirit of the proclamation of Independence and at least nine articles of the constitution, and therefore, adequate immediate measures should be taken by the law-makers and the Supreme Court of Bangladesh to recourse the prevailing undesirable situation.”
3.8 Missing Hindu population- A Major Effect of Enemy and Vested
Property Acts
“Mass out-migration of Hindu population (mostly to India) during mid-1960’s and thereafter is a reality beyond doubt. Among the various factors responsible for such mass out-migration of Hindu population, the effects of Enemy Property Act and Vested Property Act were important ones. The exact effect of all these factors (e.g. communal riots, Indo-Pak War of 1965, Enemy and Vested Property Acts) is difficult to assess because of a lack of relevant and reliable information. Thus, an attempt has been made to estimate the missing Hindu population using appropriate assumptions.
The size of out-migration was different during various historic periods. For example, the approximate size of the missing Hindu population was as high as 703 persons per day during 1964-1971, 537 persons per day during 1971-1981, and 439 persons per day during 1981-1991. It the above estimates are close to reality, then the inference emerges that the Enemy and Vested Property Acts acted as an effective mechanism for the extermination of Hindu minorities from their motherland, and thereby, affected the process of social-capital formation in our country.”
Chapter-Four
Impact of Vested Property Act
4.1 Hindu Population and Vested Properties: Situation in eight unions
“The eight sample spots (8 unions) covered in the study fall under six thanas of six districts. These districts include Barisal, B.Baria, Gazipur, Habigonj, Pabna & Sirajgonj. As evident from population census data there is a gradual decline trend in the relative size of the Hindu population in all the sample districts during the last 30 years (Since 1961). Compare to 1961 relative reduction of Hindu population in 1981 was highest in B.Baria districts and lowest in Barisal districts. But compared to 1981 the relative reduction of Hindu population 1991 was highest in Pabna and lowest in Gazipur district. Thus during the last 30 years the relative size of the Hindu population has declined in all the sample districts, the absolute size has declined in Pabna and B.Baria and this has remained all most same in the other districts. It may be observed that the average number of total households in the sample unions was 5,198 with Kaultia Union having the highest and Gunaigacha the lowest number. The average number of Hindu household in the sample Union was 517 with Madhabpur Union having the highest and Gunaigacha the lowest. The average of Hindu households as percentage of the total households in the sample union was 9.95 which was very close to the corresponding national figure of 10.5. However Hindu households as percentage of the total households in the union was highest in Madhabpur and Adaoir, and lowest in Chatmohor and Gunaigacha.”
“The average amount of total land in the sample unions was 753, 912 decimals, with Kaultia Union having the highest and Adaoir the lowest amount. The average amount of land per households in the sample was 145 decimal, with Gunaigacha having the highest and Barthy Union the lowest amount per household. It would be interesting to note that Gunaigacha Union having the lowest number of total house holds, had the highest amount of land per household.
The average number of Hindu households affected under VPA in the sample unions was 238, with Barthy Union having the highest and Adaoir the lowest such households. The average of the households affected under VPA as percentage of the total Hindu households in the sample unions was 46.03 with Gunaigacha having the highest and Adaoir the lowest such households. It may be noted that in 2 Unions (Chatmohor & Gunaigacha) the number of VPA affected households was higher than the total Hindu households in those unions. This implies that many households affected by VPA has left the unions, and perhaps migrated to India. “
“The average amount of land officially enlisted under VPA in the sample 8unions was 23,758 Decimals, with Barthy union having the highest (50,352 Decimals) and Adaoir union the lowest (2,148 Decimals) amount of land enlisted. Estimates based on official enlistment of vested property show that the average amount of land per household affected under VPA was 99.82 Decimals, with Chandaikona having the highest (207 Decimals) and Madhabpur union having the lowest (30 Decimals) amount of land. In other words unions having the highest number of Hindu households also have highest amount of land affected under VPA, and vice- versa.
Viewing by type of land, for highest proportion of Hindu households (1566) in the sample unions, agricultural land was affected under VPA, followed by homestead. However, the highest amount of land enlisted under VPA in the sample unions was agricultural (141719 Decimals or about 75% of total VP land), followed by pond/water bodies (23775 Decimals or about 13% of total VP land). Though in terms of amount of land affected under VPA, homestead stands third, its real importance is much higher. Taking this fact into consideration, it may be said that agricultural land and homesteads are the major targets of VPA. It may also be noted here that though the land used for religious purposes are not suppose to come under VPA ( as the custodian don’t own it personally) such land have been enlisted under VPA.”
“Two very pertinent questions which can be raised from the above discussions are related to the relative share of the Hindu households who are affected by enemy property/VPA and the total amount of land dispossessed due to these acts. Any aqurate estimate, based on available meager information, would be difficult to provide at this stage. However based on available information and using some plausible assumptions, and attempt has been made to estimate the share of Hindu households affected by and the total amount of land due to EPA/VPA. These estimates are based on the following assumptions- an average of 238 households affected by VPA in each union, and average dispossession of 99.82 Decimals of land by those households affected by VPA ( estimate based on officially enlisted affected persons), a total of 4405 unions in Bangladesh (enumerated number according to 1991 census), a total 16.5 million Hindu population including the missing ones, and the average Hindu households size of 5.4 (Census 1991). Based on above assumptions, the number of total Hindu households affected by VPA would be 1048390. However if we consider the missing Hindu households, the total number of Hindu households affected by VPA would be more than 3times higher at 3590000. Thus at least 29% of the Hindu households (including the missing households) or in other words 10 out of every 34 Hindu households are victims of EPA/VPA. Using official figures on the amount of land dispossessed by an average affected households, the total land area dispossessed by the affected Hindu population would be 1.05 million acres. These estimates are crude ones, and some caveats should be added: The amount of average per union households affected by VPA (238 per union) may be a lower figure than in reality, because in the real field situation some were found affdcted but no registered in the official VP list; the average amount of land dispossessed per household due to EPA/VPA might be higher- 120.5 Decimals than the amount estimated based on official source (i. e. 99.82 Decimals); and the estimated Hindu population and households size including the “missing cases” might be different what is used in the calculation. Thus, the above estimates should be treated as crude measures, although sufficiently indicative of the gravity of the situation. “
4.2 Socio-economic characteristics of affected Persons:
“The total affected persons interviewed or discussed with, were 161. Of these over 94% were males and about 6% females. Among the males again 94% were married and about 6% unmarried. Among the female respondents about 78% were married. The mean age of the respondents taking all the affected persons together, was 51.3 years. Though the age of the respondents ranged from 18 to 80 years, over 76% of the respondents were of 40 years and above. This was quite likely because the elderly people were in a better position to know about and report (disclose) the facts concerning VPA. Though the mean annual income (present) of the respondents was Tk. 59975, over 45% of them had annual income less than Tk 40000. While the mean years of schooling of the respondents (affected persons) was 8 years, over 8% of them had no schooling and over 19% had schooling above class X. That is, majority of the respondents had the primary and secondary education.
The mean family size of the affected persons at the time of data collection was 7 as against 8(+) in the past, though the actual family size of the majority of the respondents ranged from 5-9. The reduction in family size compare to the past may be attributed to migration of some family members and increased awareness of Hindu population (compared to the Muslims) to control family size. It should be mentioned that the relative declined in the average family size was not much pronounced, and this might be due to the increasing trend in the joint family concept, which again is not a general characteristics in Bangladesh. It is most likely that due to the reasons related to insecurity the joint family concept is still popular among Hindu populations.
Distribution of the sample affected persons by there past and present occupation shows no substantial change in their occupation, except trading and non agricultural labour. While in the past about 10% of the affected persons were engaged in trading, 18% of such persons are now engaged in trading. That is, dependency on trading has increased compare to the past. This might be an indicator of relatively reduced opportunity for depending on other stable occupations. On the other hand, whereas about 15% of the affected persons were non-agricultural labourer in the past, less than 3% of such persons are dependent on this occupation. It indicates that whereas only 3 out of 24 persons previously engaged in non-agricultural labor in their original occupation, others switched over to other occupations (cultivation, trading, service, fishing and others). Nevertheless the fact about occupation should be interpreted cautiously, as in many cases past occupation refers to the occupation of the household head at the time of dispossession of land. “
4.3 Changes in the land ownership status of affected persons:
“A snapshot review of the information shows that while in the past (before dispossession), 13% of the respondents were in the landless category (0-100 Decimals), 40% of the respondents now belong to this category. Again whereas about 15% of the respondents were rich farmers (1000+Decimals) in the past, only about 6% now belong to this category. That is compared to the past, the proportion landless person has increased substantially and the proportion of rich farmers has decreased significantly. For better understanding of the land ownership status of affected persons, it would be much more important to examine the discrepancy in their land ownership by comparing before and after dispossessions situations. At present the mean amount of land owned by the affected parsons is about 298 Decimals as against about 621 Decimals owned by them in the past. That is compared to the past; their average amount of land has decreased to about 48% at present. Taking past land holding structure as cohort, reduction in mean amount of land holding is observed to be highest in case of the rich farmers (1000+ decimals), followed by medium (400-999 Decimals), small (200-399 Decimals) and marginal (101-199 Decimals) farmers. Some of the persons who were rich/ small/ marginal farmers in the past own no land at present. That is, some of the respondents have become absolutely landless who were not so in the past. “
“It may be observed that the 24 households (14.9% of the total affected) who were rich farmers, owned 52377 (52.4% of the total land) decimals of land in the past. At present only 9 of such house holds belong to this land holding category own 15344 decimals of land. Among others in the rich farmers’ cohort 4have gone to the medium land holding category, another to small house holding category, and 7 have become landless. This pattern of landlessness among the rich farmers is not a general characteristics in BD.
The 46 households (28.6% of the total affected) who were medium farmers, owned 29,758 decimals of land in the past. Now, only 17 households belong to this land holding category but 7 others from other cohorts have joint this category and together they own 14592 decimals of land. Among others in the medium land holding cohort, 16 have become small farmers.
It is obvious from the afore said analysis that the reduction in the number of households in the rich farmers category and increase in the number of households in the landless category, at present, are both very high with landless category having the highest stock. This implies that VPA played a pivotal role in forceful alienation of the Hindu land owners from their inherited land and in making them landless or near landless. Thus the VPA has played the historical role of primary accumulation of wealth by creating the situation for plundering and exterminating of the Hindu minorities in rural Bangladesh.
For any group of people at any given point of time, discrepancy between their past and present land ownership may be attributable to the following reasons:
* Natural Selling
* Distress Selling
* Partitioning of inherited property, and
* Dispossession due to various reasons
The two major reasons behind loosing land were “manipulation of documents” reported by 71.4% (mean amount lost through “manipulation” was about 82 decimals), followed by “forceful engulfment by others” reported by 24.8% (mean amount lost through this was about 33 decimals). These two reasons combinedly constitute 85% of the mean amount of land lost by the respondents.”
4.4 Mechanism of dispossession:
“Before discussing the mechanism of dispossession of land/property as a result of Enemy Property Act (EPA) or Vested Property Act (VPA), it would be relevant to have a look at the official procedure of enlisting property under EPA/VPA.
Under the Defense of Pakistan Ordinance No. XXIII of 1965, all the Deputy Commissioners of the then East Pakistan were appointed as the Assistant Custodians of enemy properties of their respective districts. Circular Nos. S.R.O. 125(R) 1656 and 55 (17-IX-22/65 EP) empowered the Assistant Custodians to locate and enlist (register) the enemy properties. The circulars made it mandatory to issue a “show cause’ notice to the person/household in possession of such land which may appear to the Assistant Custodian as enemy property. After being satisfied of the fact that such land/property really belong to an enemy (i.e., the nationals/citizens of India, or those residing in the territory occupied/captured/controlled by India) person, the Assistant Custodian would be required to serve another notice to the possession holder to surrender the concerned property to the Assistant Custodian (i.e., to the Government).
In the process of actual enlistment of enemy property/vested property, the Government engaged a large number of Tahsilders /Assistant Tahsilders on commission basis to complete the task of enlistment within shortest possible time. These Tahsilders, who continued up to mid-eighties, were mostly non-locals, and thus had to depend on the local influentials/ touts for identification and enlistment of enemy/vested properties.
However, a close examination of the field data (both questionnaire survey and case studies) reveals following categories of dispossession of land/property:
Dispossession through engulfment by others;
Legal and physical dispossession;
Legally dispossessed but the property still under the control of the affected person(s); and
Moral dispossession.”
4.5 Characteristics of the Beneficiaries:
“Information about the beneficiaries were obtained partly through interviewing a sample of them and partly through that collected from the affected persons (the major category of respondents). The affected persons mentioned about 81 beneficiaries. Few characteristics of such beneficiaries are being described below.
Information shows that whereas in the past, highest number of the beneficiaries (26) was in the medium farmer category, whereas at present highest number of the beneficiaries (53) fall in the rich farmer category. On the other hand, in the past there were 9 beneficiaries in the landless category, whereas now there are only 3 persons in this category, and the remaining 6 have climbed up the limit of the rich farmer category. This indicates that the economic status of the beneficiaries have improved, in general. This was quite expected as “heat loss is equal to heat gain”.
As to the social identity of the beneficiaries, they mostly belong to the Matbar category However, compared to the past, the number of beneficiaries in the village Matbar category has increased to 67 from 40. It may be mentioned here that the beneficiaries who did not have any strong social standing in the past (i.e., Bothers’), have now been able to establish their identity in the society through occupying land/ property under VPA. Further, the affected persons interviewed, or discussed with, claimed that many of the beneficiaries in the “others’ category originally were stooges of the village Matbars/UC Chairmen-members. Probably, the Matbars, instead of coming in the picture of occupying property themselves, used to inspire their stooges who, later on, became Matbars or UC Chairmen-members.
By political affiliation, the beneficiaries of VPA in most cases belong to the party in power. As revealed, whereas the highest proportion of the beneficiaries used to belong to Muslim League (46.9%) in the past (before 1971), highest proportion of such individuals in 1995 belong to BNP (71.6%), the ruling party. This alignment of the beneficiaries with the ruling party is also quite obvious as they need political protection for occupying others’ property or depriving others (especially, religious minorities) from their basic rights as citizens. In other words, the beneficiaries of vested property were mostly Village MatbarslUnion Council Chairmen-members, and they always belong to the political party in power.”
4.6 Perceptions of Affected Persons
“Asked about the impact of VPA on the dispossession of land, over 83 percent of the affected persons replied in the affirmative. In support of their opinion, the affected persons offered the following reasons:
VPA has created opportunity for occupying minority’s property by the muscle-men (44.7%);
It has deprived the Hindus of citizenship right or property right (28.6%);
It has encouraged the officials (Tahsilder, etc.) to exploit the minorities (21.1%);
VPA has disturbed social harmony (20.0%).
Asked as to whether the officials at different levels have contributed in any way to the dispossession of land, over 71 percent of the affected persons replied in the affirmative. Of the explanations offered in support of their opinion, the major ones were as follows:
Officials help others in taking lease of Hindus’ land (36.6%);
They help manipulate documents in favor of the beneficiaries (31:1%);
Officials take bribe from the beneficiaries (15.0%);
Officials cooperate with the beneficiaries in clearing the land under VPA (3.9%);
They help powerful ones occupying Hindus’ land (1.9%).
Further, about two-thirds of the affected persons reported that they did not feel secured to live in the area. Asked as to whether they were threatened to leave the area, 17 percent said “always”, 53 percent said “sometimes” and 30 percent very reluctantly said “never.”
Asked to explain their feelings of insecurity or threat, the affected persons offered the following:
The members of the majority community threat us of sending to India (28.6%);
They warn us of killing (26.1 %);
They harass the girls/females (24.5%);
Do damage to our crops or other assets (18.5%);
Scold us every now and then (5.0%);
They prevent us from offering Puja (1.9%).”
“Being asked to give comments on VPA, the affected persons offered the following:
VPA should be abolished (79.0%);
Law of inheritance should be enforced (16.1%);
Harassment in the name of VPA should be stopped (15.0%);
Security should be ensured (5.0%).
Asked to offer suggestions for improving the condition of the religious minorities, the affected persons offered the following suggestions:
Rule of law should prevail in order to ensure the security of all (52.0%);
Minorities should be given equal rights at per the Muslims (43.5%);
There should be special law safeguarding the interest of the minorities (19.0%);
Hindu law of inheritance should be enforced (6.2%).
To recapitulate, over four-fifths of the sample affected persons perceived VPA as having impact on the dispossession of their land, and the majority of them considered that it has created opportunity for the muscle-men to occupy minorities’ property. Again, over two-thirds of the respondents considered the government officials as contributing to the dispossession of their land. About two-thirds of the affected persons do not feel secured to live in the area. That is, VPA has threatened the security of the religious minorities.”
4.7 Field Level Management of Vested Properties
“In order to collect information about the field level management of vested properties, some officials at the Thana/Union levels were interviewed. Discussions with these officials revealed that vested property is managed by the Government of Bangladesh under the supervision of the District, Thana and Union level administration. Deputy Commissioner is the Assistant Custodian of enemy property. On behalf of the Assistant Custodian, A.D.C. (Revenue) looks after the vested property cases. At the thana level, vested properties are managed by A.C. Land under the guidance of TNO and at the Union Council level Tahsilders preserve the documents regarding vested properties.
In response to the question ‘to what extent they have been able to bring the vested properties in their area under Government control’, the Officials’ responses varied from 0 to 95 (of the vested properties), with a mean of 35.91 percent. That is, on average, about the two-thirds of the total vested properties were beyond Government control or they were illegally occupied at the time of data collection.
Asked about the problems related to the actual implementation of VPA, they referred to the following:
Faulty documentation (64.0%);
Eviction of illegal occupants (45.5%);
Leasing out problem (27.3%);
Corruption of officials and problem of establishing inheritance right (9.1%).
As to the policies regarding the use or distribution of vested properties, the officials offered the following suggestions:
Giving it to the successor or to the person in possession at the time of enlistment of the land (73.0%);
Giving to the owner of the adjacent land (36.4%);
On the basis of application for taking lease (18.2%).”
“About two-thirds of the officials considered VPA as a discriminatory Act against the religious minorities. The major reasons offered by them in support of their opinion, were: it means absence of rule of law (about a half); and it is violation of Hindu law of inheritance (about one-third). Asked as to whether the officials consider that VPA has encouraged the members of the Hindu community to migrate to other country, their opinions were divided almost equally.
Of the officials interviewed, about two-thirds opined that the VPA has encouraged the vested interest groups of our society to tactfully force the religious minorities to sell their property/land at a very nominal price. And, all of these respondents reasoned that the property/land under VPA cannot be sold legally. That is, VPA has deprived the religious minorities of the ownership right. Asked as to how VPA has encouraged the vested interest groups of our society to tactfully force the religious minorities to give up the right of ownership, the major reasons offered by the respondents were: the Act created opportunity to evict minorities from their property/land (55.0%), and land once taken lease, can be grabbed forever (29.1%).”
“Asked about their perceptions of the factors encouraging the religious minorities to leave the country, the officials offered the following:
Lack of personal security here and/or love for India (36.4%);
Fear of eviction from own land and/or search of economic solvency (27.3%);
Lack of social security and/or fear of communalism (18.2%). About the steps to be taken to protect the right of the minorities in this country on their land, the officials offered the following suggestions:
Abolishing VPA (64.0%);
Rule of law should be ensured (45.5%);
Rapid releasing of land under VPA (27.3%);
Publishing list of land under VPA (9.1 %).
In short, according to the officials interviewed, faulty documentation and eviction of illegal occupants are the major problems related to the actual implementation of VPA. According to over two-thirds of them the policy regarding the use (usufructory right) or distribution of vested properties is to give it to the successor or to the person in possession at the time of enlistment of the land. Again, about two-thirds of the officials considered VPA as a discriminatory Act against the religious minorities, and they were in favor of abolishing this Act.”
“It is worthwhile to note here that a five-tier structure of institution has been developed to identify, enlist, manage and dispose off the vested property. All enemy properties de’Jure has been brought under the administrative control and management of the government in the vested property cell under the ministry of land. The divisional commissioner of respective administrative divisions plays the formal supervisory role of the vested properties. Within the district under the supervision and control of the Deputy Commissioners the Additional Deputy Commissioner (Revenue) is the in-charge of the vested property cell at district level, assisted by the superintendent of vested property and some additional staff appointed for the purpose. At the thana level, under the overall supervision and control of Additional Deputy Commissioner (Revenue), the Assistant Commissioner (Land) is the in-charge of all the vested property within his jurisdiction and assisted by one or two Tahsilders (vested property) depending upon the load and volume of work of the thana vested property cell. At the lowest level the vested property are managed by the Tahsilders, state acquisition tahsil staff and revenue collection staff. The officials at the mentioned five tiers have the authority to identify and incorporate any property within their jurisdiction as vested property. The power of disposing (including lease and sell out) the vested properties is differentiated according to the status of the tier.
The thana cells/committees for management of the vested properties are entitled to lease out the properties which values less or equal to Taka 0.15 million. The jurisdiction of district cell and divisional cells are Tk.0.75 million and Tk.1.5 million respectively. The land administration board is empowered to lease out and/or sale properties worth between Tk.1.5 million and Tk.3.0 million. The government has to decide the fate of properties, market value of which are more than Tk 3.O million (Memo No. 3476/685/83 V.P, dated M2-83)
The approval of the respective Divisional Commissioner is required to release of any vested agricultural land involving area not exceeding 5 bighas (165 decimals) only (which were wrongly enlisted as vested property, or for any other valid reasons). For releasing of agricultural land exceeding 5 bighas in each case and/or any of the vested non-agricultural property, the government is the sole authority to take the decision (circular No.lA-l/77/156-RL., dated 23rd May, 1977). Thus, five tiers starting from the Tahsilders upto the land administration board can incorporate any property as vested but the sole authority to unvest any non-agricultural land and agricultural land exceeding 5 bighas, in fact, lies with the Government of Bangladesh.”
4.8 Portrait of a Typical Household Affected by VPA
“The introduction of the Enemy/Vested Property Act has caused serious sufferings to the people of the largest minority group in Bangladesh. The sufferings have covered multiple areas such as economic, political and social. As it has been mentioned earlier, the sufferings have become gradually magnified and concentrated due to the promulgation of various black Ordinances and laws. Many people have already been evicted from their homestead. Many of them, finding no other alternatives, have left the country. But those after losing land and property have not left the country or the area; have been living under severe economic hardship and social insecurity. In a nutshell, the continuance of the Vested Property Act has already devastated the economic condition of the affected persons on the one hand, and imposed a serious threat upon the survival as an equal citizen of the country on the other. Although, the discriminatory treatment of the VPA vary from person to person, the misery and torture caused by the Act are more or less common to all.
In order to have a general understanding of the effect of VPA, the whole scenario could be summarized within the framework of a descriptive model. For the model, we may consider Mr. Hiralal Das, a typical household affected by VPA. Thirty years ago (l%5) Mr. Das possessed 621 decimals of land. He was also involved in business which was his second major source of income. He was economically solvent and belonged to the high income group according to the rural standard. It is also worth mentioning that due to his economic solvency, he occupied a respectable position in the village and extended his sincere cooperation to the solution of the problem of the locality. He himself is a Secondary School Graduate and his children went to school.
Sometimes in 1966, 120.5 decimals of his land were enlisted under the EPA, and ultimately, he was dispossessed from this property. As soon as he came to know about it, he used all means within his disposal to regain his property. He tried to file a law suit; however, it was not easy to do so until 1968. Assuming that the local thana and union council officials might have been involved in the affair, he asked for support of the local Chairman, member and touts who maintained a close relationship with the union and thana level administrations. Needless to mention here that the maintenance of the case needed huge financial investment which includes payment to the lawyer, fees of the court, cost of the witnesses, also charges of the UC Chairman, member and touts.”
“Since the whole process is time consuming, Mr. Das had to reduce his concentration on business which was a vital source of income, and invest time in the running of the case. While his total expenditure went up due to the running of the case, his income declined for the reduced attention to business. As his reduced income could not meet the increased requirement of the process, he was then forced to sell another 133 decimals of land. The process did not end there. The remaining land could not satisfy the needs of the family for the whole year. The struggle for the property continued. But he was no more in a position to bear the cost of the struggle. He was then compelled to stop his business. The dream of regaining the lost property was not materialized. On the contrary, the whole struggle made him landless or near landless. Since he has lost the capability of maintaining his family properly, some of his family members migrated to India. The deterioration of economic condition alienated him from the society, and the migration caused breaches lo the family bondage. Struggle for regaining property made him physically and mentally weak, Nobody cares him now.”
“U.C. Chairman, member and the local touts have left him alone after accruing their benefits. Now he is struggling for survival only.
The ultimate result of his efforts to regain enlisted land is that Mr. H.L. Das had to sell in addition to those already sold (133 decimal) another 134 decimals of land at different times to meet the financial needs for the whole process. As mentioned earlier, his income went down; he was compelled to sell some more land (approximately 66 decimals) to satisfy his urgent family needs. It is relevant to mention that during this time he had to arrange marriages of his daughter. For this purpose he had to sell about 45 decimals of land. The rest 21 decimals were sold to meet other expenses such as educational, medical and festivals.
In this historic process he lost congenial relationship with the neighbors, belonging to the Muslim community. In the past, they lived years together as good neighbors, trusted each other, shared sorrows and joys. But in the course of regaining his lost property, mistrust and misunderstanding developed between Mr. Das and his Muslim neighbors. Now, Mr. Das is scared of his Muslim neighbors though in general, most of his Muslim neighbors did not do anything harmful to him personally, and even many of them are sympathetic to him.
This process has generated an overall communal disharmony. Because, after observing the situation of Mr. Das, most other Hindus like Roy, Bose (who are not yet affected persons) also feel unsecured like Mr. Das. Similarly, a disbelief and mistrust have grown with their Muslim neighbors. Muslim neighbors feel that today or tomorrow, all of them like Das, Roy, and Bose may leave the country. And there is no denial of the fact that the emergence of this situation is a direct outcome of the Enemy/Vested Property Act.”
“A question may arise whether Mr. Das’ scenario is a typical example or not, and whether all these affected persons act like Mr. Das or not. The answer is “no1. Some of the affected persons fought for regaining their lost property as Mr. Das did. Most of them tried to regain their property at the initial stage hut later they dropped the idea of fighting like Mr. Das.”
Chapter-Five
Judgments in Different cases
Taking over possession of enemy property under the Defense of Pakistan Ordinance and Rules made there under, by the Custodian – the authorities must apply their minds to the facts of the case before passing such order, where this is not done, the order is ultra vires. In 20 DLR 976 (Dhaka) their Lordships held that in the larger interest of the administration of the state, illegal activities, high handedness and arbitrary action by individual public servants can never be tolerated
The occupation of property belonging to an enemy by virtue of an agreement to sale or tenancy – is not illegal. Where a person entered into possession of property lawfully as a tenant or on the basis of an agreement it is not enemy property, the custodian cannot evict him except in course of law. So where there is a dispute over title or legality of possession, law of enemy property is not applicable in respect of evicting a person.
So, without instituting a suit, a person cannot be evicted
Custodian is to file a suit of partition when a co-sharer is in complete possession of joint property.
The custodian cannot have better title or right than the owner of property himself on the declaration of enemy property the custodian is to institute a suit for eviction of the unauthorized person.
Citizen of Pakistan does not lose its Citizenship by mere entry into Indian Territory and temporary stay in that country. .
Whether Pakistan is at war with India being a Political question, so Government is the fit authority to answer.
The Defense of Pakistan Ordinance and Rules made there under seem to have lost their effect and force on the lifting of Emergency on 17/2/69. Any order of vesting of property in the custodian of the Enemy property after the aforesaid of property in the custodian of the Enemy property after the aforesaid ordinance and rules ceased to have any effect.[26 DLR 355]. But in ruling reported in 27 DLR 5A, the Appellate Division has overruled that ruling reported in 26 DLR 355. According to Appellate Division power to order of vesting of enemy property continued as before i.e. even after 17/2/69. So under section 2 of Ordinance of 1969 the power to order the vesting of a property which could be treated as an enemy, was available in spite of the fact that the cession of the effect of the Defence of Pakistan Ordinance and rules.
Without notice, no property can be declared to be in unlawful possession of a person. The Principle of law is that to be observed in connection with the above principle of law is that when a person on the basis of a contract of sale enters into possession of lands and continues in possession thereof for over 12 years, he acquires title to the property was executed.
There is another principle of law is that a person in possession of land or over 12 years on the basis of an illegal and invalid document, he acquires title thereto on the basis of the adverse possession. . Before settlement of the enemy property, the custodian is to take possession of the property from the person who is admittedly in possession. Unless the possession is taken from the person in possession, the custodian will have no power to settle land to any person.
The article 146 of the Constitution on 16/12/72 lays down that the Government of Bangladesh may Sue or be sued by the name of Bangladesh. So the right and liabilities enforceable against the Government are contained in the Constitution.
The Government is liable in as much as private individual. We know that Civil Courts have general Jurisdiction to ascertain whether the act of an executive is without Jurisdiction
Revenue authorities, Decision on question of title to land is not binding on a Civil Court. Government should not interfere, as little as possible and exceptional cases with due course of justice. Government should obey the decision of the Court in letter and spirit. So the executive arms of the Court in letter and spirit. So the executive arms of the Govt. Will not be allowed to attack and deface the honor and dignity majesty of judicial organ of the state. Decisions of High Court Division is binding on the Government. Deliberate dereliction of duty by Government officer leading disruption of citizen’s property in the Guide and in the name of law, generally condemned.
So the court of justice has responsibility and duty to litigant who comes to seek justice before the court.
Court on its own accord can take notice whether a state of war exists or not between the country and a foreign country. They are to seek for the view of the Government.
Where there is dispute over title or legality possession the article 5 of Disposal of Enemy Property Order, 1966 will not be applicable to evict the person.
The main purpose of vesting, as appears from the provision of Rule 182 of D. P.R was to prevent the payment of any money to any enemy firm and collect the same and to preserve the enemy properties during the war. So the nature of right accrued to the custodian by the virtue of vesting in consequence of an order made under sub-rule (1) (b) of Rule 182 has been spelt but in the provision of paragraph 4 of Enemy Property (Custodian and Registration) Order, 1965. So this right is essentially of possession and management of the property with the object preserving the same and subject to the ultimate right of the real owner i.e enemy owner.
Right of transfer is to be exercised when necessary for the purposes of substantial preservation of the property.
Vesting of enemy property is in the custodian under Enemy Property (Lands & Buildings) Administration and Disposal Order, 1966. Paragraph 5 of the Enemy Property (Lands & Buildings) Administration and Disposal Order, 1966 does not affect the title of real owner and no body in possession of such property in exercise of his right can be said to be in un-lawful possession.
Co-sharer in exclusive, possession of joint land, his possession is not unlawful and he cannot be ousted from the property.
Custodian cannot dispossess the real owner from the land, his remedy is to seek partition so as to separate the enemy portion from the owner’s portion.
A leasee holding lease under Enemy Property (Lands & Buildings) Administration and disposal Order, 1966, is not a necessary party in a suit for establishment of title between parties claiming title adverse to each other i.e when the lessor, the enemy property authorities are contesting the suit, it is not necessary that the leasee any way a necessary party in the suit. .
In paragraph 4 of the enemy property (Lands & Buildings) Administration and Disposal order, 1966. it has been laid down that no lease can be granted for more than one year at a time and the leasee shall not in any case acquire any right of occupancy in such property nor shall he be entitled to hold over after the expiry of the lease.
Vested and Non-resident property Cell is not a local authority and one appointed as Tahsilder in the Cell is not a public servant.
The authority to carry on trade and business conferred by rule 181 D. P.R. includes all power subject to such restriction that may be imposed by the Government, that are necessary for the management of firm must of necessity
include have very well been exercised by the firm itself had if not become an enemy firm. It has been provided that provisions under rule 162 and 179 prohibiting trading with enemy or enemy firm will not be attracted in case of commercial or financial dealings with an agent, under Rule 181, of enemy firm.
A person living in India with a Pakistan Passport is to be alien enemy as defined in Rule 161 of D. P. R and section 83 of C.P.C.
Before a property is declared as enemy property and recover the possession from unlawful possession, the custodian must serve the notice upon the person unauthorized occupation. Before settlement the custodian is to take possession .
Unless a person is found to be in unlawful possession of an enemy property he is not liable to be evicted. .
The Custodian cannot arrogate himself a power which the real owner of the property did not possess. So the custodian cannot enforce surrender of an enemy property when the person is in possession bona fide under a legal basis.
If one can succeed in establishing the fact of his being owner of the property then he can possibly avoid the vesting of property Custodian any other action of the custodian might choose to take. To do so, he needs the intervention of Civil
court. It is to be noted that the question of title and benami cannot be settled in writ Jurisdiction .
Question of fact cannot property be determined in Writ Jurisdiction. It is to be noted that writ petition will not be allowed other remedy is available by way of suit or appeal. When alternative civil remedy is available on writ petition lies a writ petition is not tenable in case of assessment of compensation by custodian when it involves a question of accounting and evidence.
The principal ground for promulgation of Emergency was the threat of war to Pakistan and that threat of war to Pakistan and that threat eased to exist on and from 17/2/69 with the revocation of emergency on 16-2-69.
There cannot be any supposed state of War of military operation which may be ceased to exist in the eye of law.
In connection with Defense of Pakistan Ordinance certain Calcutta case laws arising in connection with the Defense of India Act have been cited as much as the language in one seem to be identical with that of other. Further case laws of the Calcutta High decided before 1-8-47 have been adapted in Pakistan after the attainment of Pakistan. So they are the law of Pakistan and as such every lawyer is entitled to refer them in the court of laws
as the ruling of Pakistan High Court.
It has been provided that provision under Rule 162 and 175 prohibiting trading with enemy or enemy firm will not attracted in case of commercial or financial dealings with Jin agent under Rule 181 of an enemy firm.
Rule 169, amongst others, defines as enemy subject as any person who has permanently settled in any enemy territory. The Rule further says that, if any share is held by an enemy subject in a firm,, the firm is an enemy firm and any property held by it, is enemy property and shall vest in the Custodian of enemy property .
This distinction between “enemy” and “enemy subject” is that in the case of former only the share or the property held by him, will be enemy property, where in case of latter, the entire firm will become an enemy firm and the property held by it, is enemy property even thought the share held by enemy subject may be a firm.
Power to institute legal proceedings on behalf of firm declared as enemy firm.
So the true construction of the provision is that for vesting a property, an order is necessary under Rule 182 (b) of D P.R.
In Article 4 of the said order of 1966, it has been clearly laid down that no lease can be granted for more than one year at a time and the leasee shall not in case acquire any right of occupancy in such property, nor shall he be entitled to hold over after expiry of the lease and the leasee shall be liable to be evicted without notice after expiry of lease.
By Article 2 of the Ordinance I of 1969. certain provisions of the Defense of Pakistan Rules set out at Column I as modification column 2 of the schedule were made to continue in force and amongst others contained in Rule 169 which defines Enemy. Rule 169 defines Enemy Property.
Meaning of the expressions “enemy”, “enemy subject”, and “enemy property” remain unchanged under Ordinance I of 1969 (27 DLR 52 SC). So authority to vest enemy property in the Custodian remains intact even after 16/2/69 i.e. after the promulgations of Ordinance 1 of 1969. In the said case law their Lordships held that it is evident that having regard to the definition of the term “enemy” in rule 161 and the definition of the term “enemy subject” continued in force under Ordinance I of end with the end of the Defense of Pakistan Ordinance.
So under section 2 of the Ordinance I of 1969 read with the schedule thereof the power to order the vesting of a property which could be treated as an enemy property, was available in spite of the fact that the cessation of the Defense of Pakistan Ordinance on 16/2/60.
It will be noteworthy to mention that in case law reported in 33 DLR their Lordships of the Appellate Division of the Supreme Court of Bangladesh observed that what was sought to be continued in section 2 of Ordinance I of 1969 was
the state of affairs which existed till, 16/2/69, By revocation of the proclamation of emergency and the proclamation of Ordinance I of 1969 on 16./2/69, the state of war was first Ossified and this ossified stated as past and closed transaction was continued in operation by Ordinance I of 1969. there cannot be supposed continued in of Government was past and closed transaction. There is no question of vesting of property by provision other than contained in Defense of Pakistan Rules 181 and 182.
If any action is sought to be taken with regard to any property after 16/2/69, as enemy property, it is to be seen whether the property sought to be taken over as enemy property was so between 6-9-65 and 16-2-69 the promulgation and “evocation of proclamation of Emergency. It at any time during continuity of Emergency with the Defense of Pakistan ordinance and Rules remaining in full force, the property comes in the definition of enemy property, It continues to remain even though certain steps might not have been taken by authority to take it over.
So the continuance of enemy property and there is no questions of vesting of property by provisions other than contained in rules, 181 and 182 of Defense of Pakistan Rules of
The effect of Provision of Act XLV of 1974 as amended by ordinance XCIII of 1976 is that the vesting of the property as enemy property by virtue of Defense of Pakistan Rules in the Custodian or the Board continued as vested property in the government of Bangladesh. The vesting occurred by operation of the aforesaid Defense of Pakistan Rules i.e. 181 and 182 in those authorities and have those vested properties
as enemy property as part and closed transaction continued to be so in the Government of Bangladesh and the Government acquired by the aforesaid law all the rights and management and control and disposal of property by transfer or otherwise.
Further their Lordships observed what continued is the state of affairs as enemy property or firm as existed on 16/2/69. The decision in the context of facts was apt, but certain observation as we have stated is misleading and that is why the clarification given herein called for. From the Act XLV of 1974 it appears that there is legal cover for continuing suit as earlier instituted in respect of affairs of an enemy firm.
The firm did come within the deposition of “enemy firm” and so its assets were validly vested in the Additional Custodian as enemy property and as vested enemy property, it continued by the successive legislations. to remain so first as enemy property and thereafter as vested property. .
The ordinance I of 1969 was replaced by the Act XLV of 1974, which provided for vesting of all properties in the government and further sub-section (2) of section 3 provided that, subject to the provision of sub-section (1) of section 3, that repeal of Ordinance I of 1969 shall not effect any right, title, privilege, obligation or liability accrued or incurred under D. P. R or any order made there under as if there the ordinance had not been repealed.
All rights in such properties are in the Government all the title of owner of the property remain subject to overriding power of the Government as long as the property remains vested in the Government. So the Consequences of the aforesaid Ordinance is that Government has all the power of management and disposal of properties and also the power to release of those property .
Government have always to file Affidavit in support of its contention.
By revocation of the Proclamation of Emergency and the proclamation of Ordinance I of 1969 the state of war was first ossified and then ossified state as past and closed transaction was continued in operation by the Ordinance I of 1969. What continued was the state of affairs till 16/2/69, as past and closed transaction.
The state of war was existing during the currency of the emergency but that presumption ceases with the revocation of the proclamation of Emergency. So there cannot be any question of supposed continuation of any state war after 16/2/69. If any action is sought to be taken as an enemy property, it is to be seen whether the pi property sought to be taken over as enemy property comes within the definition of enemy property within the period of 6-9-65 to 16-2-69, subsequent taking over of such property is permissible but not otherwise.
Custodian of enemy properly treating a property as being a vested property without lawful basis for treating it as vested property and leasing out the same to another is unauthorized and illegal.
Before a property could be treated as enemy property the authority concerned must proved that the owner of the property migrated to India before the enemy property came into operation in 1965.
Once a property conies within the deposition of “enemy property” within the period of 6-9-65 to 16-2-64. Subsequent taking over of such property is permissible but not otherwise.
Forcible eviction of the possessor from the premises is illegal custodian cannot take over possession of enemy property in possession of the co-sharer without effecting partition.
The true construction of the provision of rule 182 (b) of D. P.R is that for vesting a property, an order is necessary under rule 182 (b).
The Honorable High Court Division of Supreme: Court of Bangladesh. held that example of extreme high handedness on the part of Public Officer who acted in utter disregard to the law. It appears from- the order that even before the property was declared as vested, property, the claimant: applied for lease of the property and thereafter the property was declared as vested property and possession. was delivered to the said interested person and it is unfortunate that a responsible officer should have passed the order without applying his mind and without affording a petition an opportunity of hearing in the matter, such high handedness if over looked and allowed to go unchallenged, might undermine the confidence of the citizen in the administration.
A person is in occupation of the property on- the basis of lawful agreement cannot be ousted from his possession.
Correct analysis of the legal position relating to enemy property (now Vested Property) shows that the property is now Vested in the Government and the Asst. custodian of enemy property has no claim in respect of such property-as the Government control, management and disposal including transfer or otherwise of the vested property in the custodian of enemy property by section 2 of Ordinance 93 of 1979.
Effect of proclamation of Independence of Bangladesh in the shape of affairs between India and Bangladesh.
A suit by co-sharer in possession of the joint property for declaration and for injunction not to go into possession without partition by Asst custodian is maintainable. Custodian is not entitled to dispossess the real owner without having the land partitioned.
In a suit for permanent injunction against the Custodian of Vested Properties a leasee is in possession is property in a suit.
In the light of Benoy Bhusan Case (30 DLR 139 SC) the act of leasing out the joint property without partition to other is illegal and without of jurisdiction.
With the repeal of Ordinance I of 1969, by Act XLV of 1974 as amended by Ordinance XCHI of 1976, the office of Deputy Custodian of enemy property which was the creature of D P R 1965 stood abolished.
Custodian now is not only to protect and manage the vested properties but has right of disposal.
Property vested in the Custodian has been vested in Govt. by Ord 29 of 1972 replacing the custodian, Now Enemy Property vested in the custodian has: been vested in Govt. by repeal of rule 182 D P R by Ord. IV of 1974. (i.-.e Act XLV of 1974. Lastly in 1976 the Govt. becomes the sole authority and got power of disposal & transfer by Ord. 93 of 1976.
Chapter-Six
SOLUTION IS POSSIBLE: WHY, WHERE, HOW
6.1 Vested Property Act; A Major Cause of deprivation of Hindu
Minority:
“The Vested Property Act (VPA) acted (which is still in-force) as a gross denial of all types of freedom to the Hindu community, especially the denial of most basic choice – the freedom to make a choice to deal with one’s own life, property, ownerships, and assets. The violation of freedom, in this case, is a direct consequence of denial of legal, political, and civil liberties by authoritarian regimes which have imposed restrictions on the freedom of the Hindu community to participate in the social, political, economic, and cultural life of the country as a whole. The visible consequence, in one word, is “endemic deprivation and discrimination” of Hindu community, and “chronic pollution” of the whole human development environment of Bangladesh.
The Vested Property Act, with all its consequences of implementation as shown in this book, is a national human development issue in the truest sense of the term. This Act grossly violates all fundamental human rights. This Act is contradictory 10 (he Proclamation of Independence in 1971 and the Constitutional provisions of “equity, equality, freedom, and justice for all citizens”. This Act is inherently communal by birth. This Act is anti-human and anti- democratic and has no legal, ethical, moral, economic, social, and political basis, whatsoever. This Act is terribly fanatic, because the basic premise is to “divide people based on their religious affiliation and rule them”, i.e., philosophy of dis¬unity is the basis of this Act, which by itself is anti-human. This Act – on that basis – produces and reproduces, on the one side, extreme misery among the Hindu community manifested through mass out-migration, dispossession of properties, all sorts of mental hazards, breaking of family ties, loss of human potentials, disruption in social capital formation; and on the other, the formation of parasitic vested interest groups with strong unholy ties with the prevailing institutional agents – the State, the Administration, the Local Governments, and the leading political parties.”
“This Act has already been recognized as a Black Act and repealed through the enactment of the Vested Property Repeal Act in 2001 (Act XVI of 2001). But the Implementation of the Act has been prolonged due to amendments made in Sections 9 and 14 of the act (Act XXXVIII of 2002), which allowed the government an unlimited time to publish the list of returnable vested properties. However, the analyses presented in the book has revealed that the original 2001 Repeal Act (Act XVI of 2001) does not sufficiently address the problem of the n flee led Hindus, and in many respects, violates their interests. The analyses presented in this book – based on assessment of the Enemy and Vested Property Acts, information from official records, primary survey, case-studies and discussions with the knowledgeable persons – substantiate various dimensions of the substantive sources of un-freedom, and the imbalances in basic human rights of the Hindu community. The solutions, therefore, need to be specific, achievable and realistic, and should be based on in-depth understanding of the gravity of the real problem with all its implications. The nature and extent of the problem demand that there should be an enabling environment, which will create the preconditions for those solutions.”
6.2 Essence of Deprivation: Empirical Evidence-based Analysis:
“The process of communal disharmony, disruption and disintegration got momentum with the evil spirited “Two nation theory’ and was further institutionalized through the enactment of the Enemy Property Act by the Pakistani regime during the 1965 Indo-Pak War (that lasted for only few days in September 1965). It was natural for a state like Pakistan to promulgate Acts and Ordinances which would expedite the process of migration of Hindus leaving behind properties. Even when the East Bengal Emergency Requisition of Property Amendment bill was moved in 1951, for more than 99 percent of the cases, the properties requisitioned belonged to the Hindus. Pakistanis lion or synonymously Illumination of the then East Pakistan was the main motive of the rulers. The promulgation of the Enemy Property Act was a logical consequence. The irony of the fact is that the Enemy Property Act persists even today under a new nomenclature – the Vested Property Act (VPA), and the content of the law remains basically unchanged. This Act is in conflict with the basic premise of our Proclamation of Independence and the Constitution by which we are pledge-bound to establish “a society in which the rule of law, fundamental human right and freedom, equality and justice – political, economic and social – shall be secured for all citizens”.
“Official statistics provide ample evidence about the gradual decline in the relative size of the Hindu population in Bangladesh. During the last forty years since 1961, the relative share of the Hindu population has declined from 18.4 percent of the total population in 1961 to 12.1 percent in 1981, to 10.5 percent in 1991, and further down to 9.2 percent in 2001 . According to the 2001 Population Census, the total size of the Hindu population in Bangladesh was 11.4 million. Assuming the 1961 population share of the Hindu population (18.4%), the absolute size of the Hindu population in 2001 would have been 22.8 million instead of 11.4 million as reported in the census, i.e., the actual current size is half of the expected size ..
Analyses presented in this research clearly points out the visible pauperization of the affected Hindus due to un-freedom mediated through the implementation of EPA and VPA. Specifically, the analyses reveal that mass out-migration, dispossession of huge amount of land and other properties/assets, breaking of family ties, loss of human potential, disruption in social capital formation, and the formation of parasitic vested interest groups – are some of the major consequences of EPA and VPA.”
In this regard, the salient features of the nature and extent of deprivation of Hindu religious minority are summarized and presented below:
6.3 State of Deprivation: Official Tahsil Record-based Analysis:
“According to the official records, the average number of Hindu households affected by EPA/VPA in the sample unions was 222 (range being 78 households and as high as 654 households). In other words, 43 percent of the Hindu households are affected by EPA/VPA. Out of the 222 affected households, 181 are affected in terms of agricultural land, 64 in terms of homestead land, 20 in terms of pond area, and 8 in terms of orchard land. This means that the incidences of vesting was overwhelming in terms of agricultural land (82 %), followed by homestead land (29%).
Vested land area includes various type of land, namely agricultural, homestead, garden, fallow, pond, commercial, religious institutions, and others. Estimates based on Tahsil records show the following pattern: out of the 388 acres of vested property per union – 313 acres (81%) constitute agricultural land, 43 acres (11%) homestead land, 6.8 acres (1.7%) under orchard, 2.7 acres (0.7%) fallow land, 8.6 acres (2.2%) pond area, and 12.4 acres (3.2%) other types of land.
The average area of land vested per Hindu households is 75 decimals, and the same per vested Hindu households is 175 decimals.
Estimates based on tahsil records show an average of 855 acres of landownership by the Hindu households in each sample union. Out of the average per union of 855 acres
of own land of Hindu households, 388 acres (45% of the total land owned) are vested land and the rest 467 acres (55%) not vested.”
Impact of EPA/VPA – National Level Estimates
“The total number of Hindu households affected by EPA/VPA would be approximately 1.2 million (estimated 1,150,606 households), which is 43 percent of the total Hindu households in Bangladesh.
Out of the total of 1,150,606 Hindu households affected by VPA, 938,107 households were dispossessed of agricultural land, 331,706 households were dispossessed of homestead land, 41,463 households of orchard land, 28,480 households of fallow land, 103,658 households of land under pond, 10,366 households of commercial land, 5,183 households of land under religious institutions, and 119,206 households were dispossessed of other land.
The total area of land lost by the Hindu households due to EPA/VPA – based on official records – would be 2.01 million acres, which is equivalent to 45 percent of the total land owned by the Hindu community. The total area of land dispossessed by Hindu households would be equivalent to 5.5 percent of the total land area of Bangladesh.”
“The pattern of dispossession of total land property by the Hindu households due to EPA/VPA by type of land would be as follows: 1.61 million acres of agricultural land (80% of total dispossession), 231,000 acres of homestead land (11%), 35,700 acres of orchard (1.7%), 14,700 acres of fallow land (0.7%), 46,200 acres of pond area (2.2%), 2,940 acres of commercial land (0.14%), and 420 acres of land under religious institutions (0.02%), and 67,200 acres of other types of land (3.2%).
Assuming the current (Year 2007) average market price of land in the sample areas (Tk.12, 000 per decimal), the total value of the total area of land officially dispossessed by the Hindu households due to EPA/VPA would be about TK. 2,416,273 million, which is equivalent to 52 percent of the estimated Gross Domestic Product of 2006-07 (at current market price) or over nine times higher than the annual development budget (Tk.265,000 million in 2007-2008) of Bangladesh. Some caveats are in order: the estimate presented above understates the real situation to the extent that many of the affected persons were found to be not enlisted in the official VP List; the above estimate should not be taken as equivalent to the total amount of financial loss to the Hindu community affected by EPA/VPA; the real amount of loss should include at least the amount of loss during the time between the dispossession (say year 1970) and today (year 2007); and providing monetary estimates of loss to the Hindu community affected by EPA/VPA is an impossibility, because it is not at all possible to assign money value against such qualitative outcomes as stresses and strains, mental breakdowns, breaking of family ties, loss of human potentials, communal disharmony, and un-freedom. The above estimate, however crude, is visible enough to indicate the gravity of the situation in terms of impact of the Vested Property Act on the life of the Hindu community.”
Impact on the Affected Persons – Outcomes of Survey and Case Studies
“On average, the affected households owned 602 decimals of land property before dispossession and the current ownership reduced to 270 decimals. The dispossession of 332 decimals (55% of original ownership) can solely be attributed to the outcome of EPA/ VPA, because direct loss due to EPA/VPA is 225 decimals (68% of the total dispossession), indirect loss due to EPA/VPA in the forms of selling of land (73 decimals) to recover vested property and land engulfed by others (28 decimals) together amounts to 107 decimals (32% of the total dispossession).
Up to 1996, the amount of land lost in the process of dispossession was 283 decimals (47% of original ownership), of which direct loss due to EPA/VPA was 219 decimals, selling due to EPA/VPA being 43 decimals, engulfing by others 16 decimals, and land being donated amounting to 05 decimals.
Between 1997-2006, the amount of land lost in the process of dispossession was 49 decimals (8%), of which direct loss due to VPA was 6 decimals, selling due to VPA being 30 decimals, engulfing by others 12 decimals, and land being donated amounting to 1 decimal.
The average amount of dispossession estimated according to official records would be 22 percent lesser than the actual amount ascertained in the survey. This implies that the total amount of Hindu-owned land lost by EPA/VPA would be 2.6 million acres instead of 2.01 million acres. The total value of these 2.6 million acres would be about Tk.3, 106,636 million which is equivalent to 67 % of the estimated GDP of Bangladesh for the Year 2006-07.
About 80 percent of the affected households have lost agricultural land; about 62 percent lost homestead land; and 30 percent lost other land. The average amount of land vested per household by type is 186 decimals of agricultural land, 24 decimals of homestead land and 16 decimals of other land. Assuming the current average market price of land (Tk. 12,000 per decimal) the monetary amount of loss due to vested would be about Tk.2, 712,000 per affected household.
The incidence of vesting by original (pre EPA/VPA) landownership groups indicates a direct positive relationship between the amount of original ownership and the extent of incidence. The less the original ownership, the higher is the incidence – or in other words, the weaker the economic condition of a household, the more it became the target of EPA/VPA.
Irrespective of original ownership status, the impact of EPA/VPA on the relative share of dispossession of land properties was almost identical.”
“The amount of vested land as proportion of own land varies by original landownership categories. Landowners who owned up to 100 decimals of land earlier have dispossessed 69 percent of their original ownership. The amount of dispossession is 54 percent for those owning 101-200 decimals earlier, 44 percent for those owning 201-300 decimals earlier, 43 percent for those owning 301-400 decimals curlier, 42 percent for those owning 401-500 decimals earlier, 39 percent for those owning 501-600 decimals earlier, 45 percent for those owning 601-700 decimals earlier, 46 percent for those owning 701-800 decimals earlier, and 33 percent for those owning 800+ decimals earlier. The distribution of all vested cases by dispossession categories indicates that 57 percent have dispossessed up to 100 decimals.
In contradiction with the widely held perception that the incidence of vesting is less pronounced among the well-off Hindus, it has been revealed that more than one-third of the well-off Hindu households have lost their property due to EPA/VPA. In addition, more than a half of the well-off respondents have reported that at least one of their close relatives have also lost land property due to EPA/VPA.
Nationally, out of 1.2 million Hindu households who are affected by EPA/VPA 244,800 are from relatively well-off and they have lost a total of 1.5 million acres of land property due to EPA/VPA. In other words, about 58 percent of the total amount of vested land property belongs to the original well-off Hindu households.
Although the relative amount of land lost due to EPA/VPA is relatively higher among the poor and less-well-off Hindu households than that among the well-off Hindu households- the total amount of land lost is much higher among the well-off Hindu households than that among the relatively less well-off Hindu households. Irrespective of original land ownership status, the economic status of all affected Hindu households has deteriorated – the poor and marginalized became pauper; the middle-class became poor; and the relatively well-off has gone down to join partly the middle class and partly the poor.”
“About 19 percent of the well-off Hindu households have reported incidences of vesting during the time between 1997 and 2006. Among the well-off respondents, 53 percent live with a permanent feeling of insecurity and threat which multiplies at times of specific events; about 22 percent are involved in land-related litigation; about 39 percent live with property-related trouble and agony; and 42 percent have faced problems in establishing their rights to their inherited property. These findings are adequate enough to indicate both direct and spillover ill-effects of EPA/VPA.
While most poor and less well-off Hindu households affected by EPA/VPA have ultimately lost their vested land and other properties, 49 percent of the well-off vested Hindu households have reported that they still somehow hold the possession on their vested land. A 51 percent reported lease and 49 percent reported decree from court as means of holding possession over their vested land.
Regarding the solution of the problem, about 38 percent of the well-off respondents suggested legal steps, about 34 percent suggested social movement, and about 29 percent suggested political initiatives and commitment.
Death and/or out-migration of one of the legal inheritors is usually used as a pretext for enlistment of properties under the EPA/VPA. Slightly over three-fifths (63%) of the respondents reported that at-least one of the inheritors have either died or out-migrated. These out-migrations and/or deaths of one of the family members in some of the affected families are mere real-life incidences and in no way should be treated as actual reasons for dispossession of familial property under any law.”
“The reasons for enlistment of Hindu-owned property under EPA/VPA are manifold and the mechanisms are complex. The two most important actors were the local influential and the land officials. Following are the seven groups of reasons attributable to the dispossession of property under the EPA/VPA:
- Influential/self-seekers were proactive in enlisting the property under
EPA/VPA. This was done in connivance with the Tahsil and Thana
Revenue Office. The motive was to take lease of that property after
EPA/VPA (reported by 72%).
- Officials of Tahsil office and/or Thana Revenue Office themselves were
interested in grabbing the property (reported by 46%).
- Death and/or out-migration of one of the members of the Hindu families
who had legal right on the property was used as a pretext to enlist the
whole property under EPA/VPA (reported by 35%).
- Influential/self-seekers engulfed the property by force using various
forms of violence as technique: by attacking with lethal weapons, guns,
deploying hooligans/gangsters; by compelling to vacate the house or
migrate under threat or continued efforts of frightening the victim
(reported by 32%).
- Influential/self-seekers occupied the EP/VP land using forge documents.
This was also done in connivance with the Tahsil and/or Thana Revenue
Office (reported by 17%).
- Influential/self-seekers allured the sharecroppers to occupy the land, and
then themselves become the owners (reported by 7%).
- Property enlisted under EPA/VPA for reasons not known to the owners (reported by 19%).”
“At least one-fourth of affected households have lost their properties even after dispossession under EPA/VPA due to various reasons. Some wanted to recover their vested property and thereby incurred various expenses; some got caught into the trap of distress sale; some became socio-politically weak to pave the way for the others to engulf their properties. The affected households were bound to sell, on average, 73 decimals of land (valued at TK. 870,720 at 2007-price) after being affected by VPA. This indirect pressure on the Hindu community, as maintained by the knowledgeable persons in the locality, will continue to prevail as long as the Vested Property Repeal Act is non-functioning primarily due to the lack of political commitment.
The price of Hindu-owned land at a given point in time is usually less than the average price of land in the market. The current average price of Hindu-owned land reported was Tk.900,000 per acre compared to that of TK. 1,500,000 per acre for the Muslim-owned land.
The Vested Property Act has been a major source of violence and oppression on the Hindu minority in Bangladesh. This situation has not changed even during the last ten years of parliamentary “democracy”. During the last 10 years, 50 percent Hindu households reported that they have faced verbal abuse, one-third households faced incidences of theft, 25 percent households faced harassment and about one-fourth faced obstruction in harvesting crops. A slightly less than one-fifth of the households reported intimidation at workplace, followed by 16 percent reporting about physical assault, 14 percent reporting about destruction of property, 13 percent reporting about eve-teasing to female members, 12 percent reporting about various threats, 10 percent reporting about looting/plundering of property, 12 percent reporting about obstruction in casting votes in local government election, 27 percent reporting about obstruction in casting vote in 2001 Parliamentary Elections, 6 percent reporting about robbery, 5 percent reporting about obstruction in shopping/business, and 5 percent reporting about extortions. Comparison of regime-specific violence against VPA-affected Hindu households shows a sharp rise from an average of 8.7 incidences of various forms of violence per household during the Awami-League led Government (1996-2001) to 17.5 such incidences during the BNP-Jamat led Four-party Alliance Government (2001-2006). On average, an EV A/VPA affected household faced 29 incidences of violence during 1996-2006, i.e., 2.6 incidences per household each year. The average number of violence faced in each year during 1996-2000 (Awami-league period) is 1.7, while it was 3.3 during 2001-2006 (IJNI’-Jamat 4-party Alliance period).”
“Attempts were made by the affected persons to recover or release the vested property. Steps taken include visit to the Tahsil office (reported by 77%), going to the Thana level (10 %), going to the court (36 %), calling village Shalish (21 %), seeking help of NGOs (3 %), seeking sympathy of the neighbors (36%), informing minority leaders/associations (39 %), seeking help of local politicians (39 %), trying to resist collectively (14 %), trying to discuss or come to an understanding with the illegal occupants (23 %), seeking help of peasant organizations (7%), and accepting fate avoiding further troubles (41%). Thus, this long list of attempts made or steps taken by the affected persons indicates that they were not dormant after being affected by EPA/VPA. But small proportions of many diverse steps indicate that so far no organized efforts have been made by the affected persons to recover or to release the vested property. The pattern of steps taken also reflects that nothing serious was attempted beyond the local level. Additionally, although various positive initiatives and steps were taken by the affected persons to recover or to release their vested properties, the outcomes in almost all the cases were discouraging.
It is a matter of regret that the Government has never published the list of returnable vested properties since the VPRA enactment in 2001. Survey on the affected households reveals that less than 30 percent of the respondents are aware about the Vested Property Repeal Act 2001, and only 13 percent are aware about the Amendment of the Act”
Impact on the Beneficiaries – Outcomes of Survey and Case-studies
“It would be pertinent to put forward a strong argument that the common Muslims were never communal in this country, which is evident from the fact that, compared to the predominant Muslim population of Bangladesh, only a few were involved in the process of grabbing the properties of the Hindus affected by EPA/VPA. According to our estimate, a total of 536,950 Muslims (i.e., at best 0.4% of all Muslims) are the direct beneficiaries of 2.6 million acres of properties of 1,150,606 Hindu households affected by EPA/VPA.
The sample of 450 affected persons mentioned a total of 210 different persons as direct beneficiaries. In terms of economic status, whereas in the past, the highest proportion of beneficiaries (39%) was in the medium landowner category followed by small landowners (35%), currently the highest proportion of them (57%) falls in the rich landowner category. The percentage of beneficiaries in the small landowner category has drastically declined from 35 percent in the past to only 1 percent at present. Thus, all the beneficiaries have benefited much by grabbing of the affected Hindu families. Based on the analysis of changes in the economic status of the beneficiaries of VPA, at least two conclusions can be drawn: (i) grabbing of land from the Hindus using VPA has been instrumental in concentration of land among few grabbers, and (ii) most grabbers were relatively well-off at the time of grabbing.
Social status of the beneficiaries in terms of their positions in the local power structure has improved much. At the time of occupying vested property, most beneficiaries (81%) belonged to the village Matbar category. Now the proportion of beneficiaries in the village Matbar category has increased to 94 percent. Beneficiaries who did not have any identifiable (strong) social standing in the past have now been able to establish their strong status in the society through occupying property vested under VPA. Thus, the Vested Property Act acted as a mechanism through which the beneficiaries were able to not only strengthens their economic strengths, bul they also strengthened their social status in the local community. In addition, it is interesting to note that, generally, the party-in-power and/or political forces upholding religious sentiments is the natural political affiliation of the beneficiaries .”
6.4 Deprivation of Hindu Minority due to EPA/VPA can
be resolved:
“The solutions proposed are based on the simple premise that, as a root cause of un-freedom, the Vested Property Act has to be abolished first, and all returnable property and assets must be returned to their legal owners. Accordingly, the specific, achievable and realistic solutions presented below in this section are the outcomes of in-depth analysis of the total situation keeping holistic humane development approach in mind. In order to find out specific and feasible solutions with all possible implications, various stakeholders including the law-makers, elected leaders, officials, lawyers, politicians (local and national), development organizations and various knowledgeable social workers were consulted.
The extent and nature of multi-faceted deprivation created by enacting and implementing the anti-human Enemy Property Act and Vested Property Act indicates that any attempt to resolve all the problems at a time can be equivalent to preparing a ground whereby the total cause of fighting against a historical misdeed might be jeopardized. The most feasible solutions, as suggested by most knowledgeable persons, should be based on objective reality and there should not be any scope for over-enthusiasm, as well as oversimplification. The problems need to be prioritized keeping in view all possible implications, and accordingly, solutions should be designed and implemented in a phased-in manner. The setting of priority and phased-in solution should be considered seriously to really resolve the historical misdeed.”
“It should be clear to all concerned that asking for a drastic solution of such an issue as EPA/VPA by involving the beneficiaries (who are intimately associated with and are powerful in the local power structure) would be an impractical proposition. The state should take lead in the whole process of implementation; may be striking a middle ground or essential trade-off or a sort of compromise solution will work. The drastic (revolutionary) solution would be impossible within the present context of Bangladesh which is characterized by scarce land resources and high competition for land and predominantly based on land property, politically dominated by the class/stratum who are natural ally of the beneficiaries, socially dominated by illiteracy and lack of secular feelings and ill-organized community, and culturally dominated by religiosity (not religion per se). Thus, the solutions should be formulated based on the objective understanding of the historically formed socio-cultural values and mindset of the people. The solution based on the slightest deviation from this may give rise to a greater danger (and may be counter¬productive) than the problem itself. It is, therefore, worth reminding time and again about the sensitivity and associated implications of the possible solution matrix.”
“Based on the analyses of the whole issue of deprivation of the Hindu minority due to EPA/VPA, and based on the discussions with all relevant stakeholders, a list containing some specific, achievable and realistic solutions is presented below. In designing the proposed solutions a recent new development towards the solutions has been given due consideration, which is the Vested Property Repeal Act 2001, and its Amendment in 2002. At this stage, it should be mentioned that some of the solutions need further investigation and examination by relevant experts (social thinkers, politicians, legal experts, etc.), and the proposed solutions do not follow a strict order in terms of priority. The solutions are as below:
- All relevant paragraphs, words, phrases and sentences of the Vested Property Repeal (Return) Act 2001 that do not protect the interests of the affected families (in fact are opposite to their interests) should be changed and amended. As for example, “enlisted” [in first and second paragraphs]; definition of “vested property” [section 2 (1)]; “continuously” [2 (m)]; 90 days [section 10 (1)], 45 days [section 18 (4)]; and various provisos under sections 13 (1) c, 14 (1), 18 (4), and 26 (2) should be changed and modified strictly in line with the spirit of returning back the lawful properties to the affected Hindu minority. Similarly, everything available in the Vested Property Repeal (Amendment) Act 2002 which are contradictory to the spirit of returning back the lawful properties to the affected Hindu minority should be changed accordingly.
- In reformulating the Vested Property Repeal Act, opinions of patriotic and civil society members, especially the concerned experts and lawyers should be given the topmost priority.
- In 2007, the Vested Property Cell under the Ministry of Land have identified about 0.7 million acres of such properties in 61 out of 64 districts of Bangladesh, of which (according to the Government) about 0.2 million acres are on lease (i.e., Government has control) and the rest 0.5 million acres are with the illegal occupants – although the amount of vested property identified by the Government is about 4 times less than that identified in this study – the Government, in compliance with the Vested Property Repeal (Return) Act, without any delay, should publish the list in the form of a Gazette.
- All properties vested after the declaration of the Vested Property Repeal (Return) Act 2001 should be declared totally unlawful and be returned back immediately to the affected owners, and those who have engulfed such properties must lawfully punished.
- All activities related to identification and enlistment of any property as
vested should be banned immediately. In this regard, an official declaration in the mass media should be the immediate action of the Government.
- In order to better comprehend the whole issue and to resolve the problem, separate lists conforming relevant historical periods should be prepared and published by the Government for those Hindu properties which were brought under the East Bengal Evacuees Administration of Property Act (Act VIII of 1949), the Defence of Pakistan Ordinance (No. XXIII of 6 September 1965), the Enemy Property (Custody and Registration) Order of 1965, the Enemy Property (Continuance of Emergency Provision) Ordinance (Ordinance I of 1969), the Vested and Non-Resident Property (Administration) Act (XL VI of 1974), the Vested Property Repeal (Return) Act 2001, the Vested Property Repeal/Return (Amendment) Act 2002, and till date. In congruence with the above, three separate lists should be prepared and published by the Government, periods being: Between 1949 and 6 September 1965, between 7 September 1965 and 16 February 1969, and between 17 February 1969 till date.
- A separate list should be prepared and published by the Government for those Hindu properties which were brought under the Enemy Property Act during the period between 6 September 1965 and 16 February 1969 (A Census List was prepared in 1966-67 which was penciled – not inked; in 1987-88 another list was prepared which is inked, and this list can be used as a starting point of resolution).
- All vested property under the custody of the government should be leased out to real owners or their legal heirs who are permanent residents of Bangladesh till the final settlement of the problems. In this regard, preferences should be assigned in accordance with the Law of Inheritance.
- No property should be taken into the custody of the VP administration if the owner(s) of the property or their legal inheritor(s) are in possession of that property.
- In absence of the major shareholders, the legal co-sharer’s right to lease-in the whole property should be ensured until the final settlement of the issue.
- All 99-year leasing-out of vested properties should be declared null-and- void and the ownership rights of the original owners or their inheritors should be established if they are the bonafide citizens of Bangladesh.
- Law of Inheritance should be enforced with adequate provisioning for women’s inheritance. If the male heirs of the property are absent and the female heirs are permanently residing in Bangladesh, the property should be leased-out to them until final settlement is made.
- Priority should be given to:
(a) Homestead land (about 62% of the total incidences and about only 39 decimals of dispossession per household in this category) should be un-vested. This will resolve shelter problem of 62 percent of the affected households.
(b) Those who were small landowners (who owned <= 300 decimals before EPA/VPA), and who in the process of EPA/VPA have become pauperized and marginalized. This alone will solve 47 percent of the problem in terms of number of vested households, and 14 percent of the problem in terms of amount of total vested land.
(c) Those families in which almost all the legal inheritors are permanently residing in Bangladesh.
(d) The affected female-headed households.
(e) Those cases whereby the property is grabbed mainly by the Tahsilders and other land administration officials.
(f) The vested properties, which are illegally occupied by others without leasing-in from the Government.
(g) Those who were affected before 1971. The beneficiaries have already derived benefits for at least 25 years – sufficiently enough time to derive much higher return than invested in leasing in the property. This will resolve 60 percent of the problem in terms of number of vested household, and 75 percent of the problem in terms of total amount of land property dispossessed by EPA/VPA.
- Amount of total benefits derived by the beneficiaries before 1971 should be estimated, and based on that, decision should be taken in terms of compensation for and/or imposition of a sort of taxation to the beneficiaries.
- Most recent beneficiaries (say those in the last ten to fifteen years) having legal lease-in documents may be given compensation from the amount to be collected through the above taxation. This will affect only 11 percent of the total beneficiaries and release 3 percent of the total vested properties. This will benefit about 15 percent of the total affected families.
- Compensation packages for the affected families in the form of bond, loan (in cash or in kind), lease of khas land etc. should be designed keeping in mind the nature of the problems, and implemented.
- If for some genuine reason(s) some of the above-stated recommendations (in full or part) cannot be implemented, the Government should think about adequate compensation payments to the affected families, and that provisioning should be logically justified and transparent to all citizens of Bangladesh.
- Vested property having no legal claimant should be utilized by the Government, especially for development of the minority community affected by the EPA/VPA.
- Spatially, prompt action can be taken in those areas in which progressive democratic forces are relatively strong.
- The Government should establish “Vested Property Bank” which will keep detailed accounts of all vested properties by types, locations and other relevant status variables having policy and programmatic relevance.”
6.5 An Enabling Environment for the Solution has to be created:
“It is based on the analysis of the nature and extent of deprivation of Hindu minority caused by the Vested Property Act. The verdict is obvious -immediately repeal the Act, eliminating all its solution-retarding implications, implement the process of returning back, and resolve all the misdeeds done in the past. As competent human beings, we need to believe that human development is a freedom-mediated process where individual freedom should be a matter of social and political commitment. As reflective creatures, we need to firmly believe that there is no substitute for individual responsibility and that responsibility requires freedom (Amartya Sen 1999). Both from the viewpoint of individual freedom and responsibility, it has been concluded firmly that the sentencing of the Hindu community by using the Vested Property Act was a suicidal step, because it has created sufficient ground to deny human freedom, liberty and choice. There is no point to be a happy slave or delirious vassal in an environment of perennially oppressed minorities in intolerant communities. Therefore, substantive public action has no second best alternative to change that environment to institutionalize freedom as both means and ends to true humane development. The first and foremost of such actions should be a meaningful repealing of the Vested Property Act and implementation the process expeditiously by involving people. It should be kept in mind that 99 percent people of Bangladesh are not involved in grabbing of the property of others.”
“It should also be kept in mind that it is absolutely impractical to assume that all the proposed solutions will be materialized automatically. Efforts to create an enabling environment to resolve the issues would be needed. Three basic preconditions, among others, should be fulfilled: the Government should recognize the gravity of the problem first, and then it should be committed to resolve the problem and be enough to carefully and confidently handle the issues involved. The Government should recognize that any feasible attempt to resolve the problem will enhance its credibility and image, both nationally and internationally. The preconditions for the creation of an enabling environment which, in turn, would be necessary to implement the suggested solutions are as follows:
- The Government should issue a “white paper’ explaining the background of the Act (both EPA/VPA and Repeal/Return) and the position of the Government on EPA/VPA. This should be circulated widely using the print and electronic media.
- Considering the significance of nation-building and human capital formation attached to the problem, it would be appropriate to organize an open debate in the society on EPA/VPA aiming at reaching a national consensus, to review the whole issue.
- The Government should declare in the mass media that, henceforth, the identification and enlistment of property under VPA is banned.
- A list containing details with the names, addresses, and amounts of the land and other assets dispossessed by types and years of dispossession, dag, khatian, mouza, current status etc. About those affected by EPA/VPA should be published by the Government.
- The Government should constitute a Vested Property Commission at the national level to deal with various issues pertaining to the immediate development and designing of the appropriate solution matrix. The Commission should be headed preferably by a retired judge (Chief Justice) or a person of a national repute with appropriate representation of the members of the civil society.
- The Government should constitute in every district a Committee headed by the District Judge and comprising judicial and administrative personnel, representatives from various relevant non-governmental social-developmental organizations, and peasants’ organizations.
- A list of beneficiaries with all the details (as the list of affected persons) should be prepared as immediately as possible.
- In designing the phased-in solution program, the Government should prioritize the problems using certain criteria, such as current disadvantaged situation of many affected families, female-headed families, families with affected homestead land, illegal occupations, places of cremation and deity property etc.
- In developing realistic solutions, the Government should gainfully utilize the findings of all relevant literatures and studies conducted on the subject.
- The Government, in collaboration with the relevant non-governmental organizations and lawyers’ associations, should arrange provisioning of free-of-cost legal assistance to the affected persons. A special “legal assistance cell for those affected by EPA/VPA’ needs to be established in each district as soon as possible.
- All political forces and non-governmental agencies, whose mission is to expand freedom-mediated human choices, should actively contribute to expediting of the process of solution. The relevant non-governmental organizations could profitably use their expertise on providing legal support to the affected persons.
- All political forces and non-governmental agencies, whose mission is to expand freedom-mediated human choices, should undertake advocacy programs on issues pertaining to the EPA/VPA, and in the process proactively involve all the actors of the civil society. Networking with the relevant organizations and individuals would be necessary to
effectively fight for the cause.
- All the officials who will be involved from the Government and non¬ government ends in the process of implementing the solutions should be Imparted with relevant competence-building training aiming at expediting the integrated process of solution.
- The mechanisms for appropriate monitoring and follow-up of the
solution should be devised involving experts in the field.
- Behavior change communication efforts in the field of maintenance and promotion of communal harmony, and promotion of freedom-mediated developmental mind-set of the people should be given the top priority.
- Secularism, freedom, liberty – as concepts of and powerful vehicles for humane development – should be institutionalized as the integral part of the whole education system and political culture of Bangladesh.”
“The operation of the Vested Property Act as a continuation of the Enemy Property Act has its distinct historical root doctrined in the religion-based state¬craft of Pakistan. Depriving Hindu minority through Enemy Property Act and Vested Property Act is not an historical accident per se. It is rather an outcome of conscious decision by the Pakistani rulers to Pakistanize the East Bengal (Pakistan), to use “Islam is in danger” as a means to obstruct development of secular Bengali culture and associated human capital formation in East Bengal (Pakistan), to out-root a large part of Bengalees from their roots based on their non-Muslim (may be Hindu and indigenous peoples) identity, and to try to establish military feudalistic elitist Pakistanized hegemony over the Bengalees and, thereby, to create their politico-economic allies in East Pakistan (Bengal). In materializing these, the Enemy Property Act promulgated in 1965 – using the War between India and Pakistan as a pretext – and subsequently the Vested Property Act – after 1971 War of Independence of Bangladesh – were used to divide people based on their religious affiliations. This legal instrument -EPA/VPA – was used by the barbarian rulers to oppress people. The consequences have been, simply, gross denial of freedom and liberty, and institutionalization of systematic socio-cultural, economic, and political deprivation of the Hindu minorities in Bangladesh. The fueling of religious fundamentalism in politics, economy and culture has been an obvious consequence (may be objective also). The national disaster has been so huge that approximately 1.2 million households or 6 million people belonging to the Hindu religion have been directly and severely affected by the Enemy/Vested Property Act, and have lost 2.6 million acres of their land property (also movable assets). In addition, there has been un-measurable extent of national losses in terms of forced mass-out migration, stresses and strains, mental agonies, breaking of family ties, loss of human potentials, disruption in communal harmony, un-freedom, and dis-integration in the process of national human capital formation. All these have happened as mediated through the Enemy/Vested Property Act. This Act violates all fundamental human rights; this Act contradicts the basic spirit of the Proclamation of Independence; this Act contradicts the basic premises of the Constitutional provisions of “equality, equity, freedom and justice for all citizens”; and this Act is inherently communal, anti-human, anti-democracy. The implementation of this Act has created an environment which is adequately enough to destroy the inherent spirit of freedom, liberty, and choice. Therefore, in order to ensure a true environment for humane development in Bangladesh, there is no alternative but to abolish this Act, and return back the properties affected by EPA/VPA to their legal owners and inheritors. The nature and extent of deprivation of Hindu minorities created by EPA/VPA demands insightful leadership with cool head, courage and warm heart together with substantive public actions. This is absolutely necessary to institutionalize freedom, liberty, and choice – as both means and ends to true humane development in future Bangladesh.”
Chapter-Seven
Concluding Part
7.1 Conclusion:
Vested Property Act, namely Enemy Property Act before the War of Liberation, was enacted for the government to take over land left behind by Hindu citizens during the 1947 partition and the India-Pakistan war in 1965.
The law still retains the fundamental ability to deprive a Bangladeshi citizen of his/her property simply by declaring them as enemies of the state.
As long as the Vested Property Act is not amended, Bangladesh will remain a non-secular state. Due to the Vested Property Act the fundamental rights of Hindu minority have been violated for many years. The law is now called a “black law” . This is the perfect time to help them acquire their property & thereby establish their fundamental right.
The above discussed ways to the solution can be, in this regard , helpful for achieving the goal & abolish the Vested Property Act, the black law.
7.2 Recommendation:
No amendments of this Act have been able to ensure the rights of the Hindu minority & that’s why, no amendment should be made rather it should be totally repealed for the betterment of its citizens.
The Government should be aware of the right of the Hindu as though they are Non-Muslim but they are citizens of this land & it is also their motherland.
Vested Property Act, as an encroachment on the law of inheritance, should be abolished. It is totally anti-constitutional.
Attempts should be made to identify the real owners or the successors of the land already enlisted under VPA /Enemy Property Act. If the owner or successors still live in Bangladesh, attempts should be made to give the land back to them.
All activities related to the identification & enlistment of any property as vested should be banned.
All vested property under the custody of govt. should be leased out to the real owners or their legal heirs who are permanent residents of ours.
So, No property should be taken to the custody of the VP administration if the owners or their legal inheritors are in the possession of that land. All 99 years leasing-out of vested properties should be declared null & void & the ownership rights of the real owners or their legal inheritors should be established.
ANNEXTURE
VESTED PROPERTY ACT, 1974
An Act to provide for the Administration of certain properties vested in the Government or belonging to non-residents.
Whereas in an expedient to provide for the administration of certain properties vested in the Government or belonging to non-residents and for matters connected therewith;
It is hereby enacted as follows;-
PART I
PRELIMINARY
Short title and commencement
(1) This Act may be called Vested and Non-Resident Property (Administration) Act, 1974.
(2) It shall be deemed to have come into force on the 23rd day of March 1974.
Definitions. In this Act, unless there is anything repugnant in the subject or context,
“Chairman” means the Chairman of a Committee
“Committee” means a Vested or Non-Resident Property Management Committee constituted under Section 3;
“Member” means a member of the Committee;
“non resident” who is not, or has ceased to be, a permanent resident of the territory now comprising Bangladesh or who has acquired a foreign nationality, but does not include a person who is an evacuee as defined in Article 2(c) of the Bangladesh (Restoration of Evacuee Property) Order, 1972 (P.O. No. 13 of 1972).
“Non-resident property” means any property owned by a non-resident, but does not include any property which
(i) Is owned by any person who is a citizen of the state which, at any time, after the 25th of March 1971, was at war with, or engaged in military operation, against the People’s Republic of Bangladesh;
(ii) Is abandoned property as defined in Article 2(i) of the Bangladesh Abandoned Property (Control Management and Disposal) Order, 1972 (P.O. No. 16 of 1972)
(iii) Has been nationalized or has been taken over and is being managed by the Government in public interest;
(iv) Is held by a foreigner under an agreement with the Government; or
(v) Has vested or is liable to be vested in the Government;
“Prescribed” means prescribed by rules under this Act;
“Vested property” means any property which has vested in the Government under Section 3(1) (a) of the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974, but does not include any share, stock, scrip, bond, debenture stock or other marketable security in or of a company or body corporate or any share of a partnership firm vested in the Government there under.
PART II
CONSTITUTION OF COMMITTEE
Constitution of Committee :
(1) The Government may, by notification in the official Gazette, constitute for each sub-division a committee to be called the Vested and Non-Resident Property Management Committee for the purpose of this Act.
(2) A Committee shall consist of-
The sub-divisional Magistrate, who shall also be its Chairman; and
Four members not being persons in the service of the Republic, to be appointed by the government.
(3) The chairman shall be the Chief Executive Commissioner of the Committee.
(4) A member may at any time, resign his office by notice in writing addressed to the Chairman.
(5) The Government may, at any time, remove any member without assigning any reason.
- Procedure of a Committee. A Committee shall subject to the provisions of this Act, have power to regulate its own procedure and may act not withstanding any vacancy in the office of any member; provided that the Chairman and one member shall constitute the quorum for a meeting of the Committee.
- Staff of A Committee. The Government shall make available to a Committee such staff as may be necessary for the discharge of its functions under this Act.
- Allowances of member of a committee. The members of a Committee may receive such allowance as may be fixed by the Government.
PART III
VESTED PROPERTY
- Taking charge of vested properties.
(1) A Committee shall take charge of all vested properties within its jurisdiction: Provided that when any such property is situated within the jurisdiction of more than one Committee, such property shall be taken charge of by such Committee as the Government may direct.
(2) Subject to the provisions of this Act, a Committee taking charge of any vested property shall have all the powers, rights and liabilities of the Government in respect of such property, and shall take such measures as may be necessary for the good management and protection of such property, for the assertion of title thereto and for maintaining and recovering possession, thereof, and may, for such purposes, do all acts and incur all expenses which are necessary and incidental:
Provided that a Committee shall not be entitled to transfer, except by monthly or annual lease, any vested property.
(3) Subject to the provision of this Act and any other law for the time being in force, a Committee may with the written consent of the owner and in the prescribed manner transfer any vested property.
PART IV
NON-RESIDENT PROPERTY
- Vesting of non-resident properties.
(1) Subject to the provisions of sub-sections (2) and (3) a Committee may, of its own motion or on the application of a non-resident or upon the direction of the Government, take charge of any non-resident property within its jurisdiction.
(2)Before taking charge of any non-resident property under sub-section (1), the Committee shall cause a public notice to be served in the prescribed manner calling to the objections to the taking charge of such property by the Committee to be filed within such period as may be specified therein, and if such property is in possession of any person, a copy of the notice shall also be served on such person in the prescribed manner.
(3) If an objection is filed under sub-section (2), the Committee shall decide the matter after giving the person filing the objection an opportunity of being heard and after making such inquiry as it may deem necessary.
(4) Any decision of the Committee under sub-section (3) shall not prejudicially affect the right of any person to establish title in a competent court.
(5) When the Committee takes charge of any non-resident property under sub-section (1), it shall pass a formal order recording such fact whereupon the property shall vest in the Committee.
(6) When any non-resident property has vested in the Committee under sub-section (5), the Committee shall, as soon as may be, give public notice of the fact in the prescribed manner.
- Functions of a Committee in respect of non-resident properties vested in it.
(1) Subject to the provision of this Act, the Committee in which any non-resident property has vested shall have all the rights and liabilities of the non-resident concerned in respect of the property, and shall take such measures as may be necessary for the management and protection of such property, for the assertion of title thereto and for maintaining and recovering possession thereof, and for such purposes, do all acts and incur all expenses which are necessary and incidental;
Provided that a Committee shall not be entitled to transfer, except by monthly or
annual lease, any non-resident property vested in it without the written consent of the non-resident vested in it, after reduction therefrom all sums properly debitable
to such income.
(2) Subject to any other law for the time being in force, a Committee shall pay to a non-resident in the prescribed manner the income of any property of the non-resident concerned.
- Rights of Non-Residents.
A non-resident, whose property has vested in a Committee may with the
previous permission of the Committee and subject to any other law for the time being in force, dispose of such property by sale, exchange or gift:
Provided that no such permissions shall be given unless he pays to the Committee all sums due to in respect of such property,
Provided further that such disposition shall be subject to any lease granted by the Committee.
(2) A disposition of any non-resident property in contravention of the provisions of sub-section (1) shall be null and void.
(3) Upon disposition of any property under sub-section (14), the non-resident shall inform the Committee in writing of such disposition, and, on receipt of such information, the Committee shall, by a written order, release such property forthwith from its management and give public notice of such order in the prescribed manner whereupon the property shall cease to vest in the Committee.
PART V
MISCELLANEOUS
- Accounts and audit.
(1) A Committee shall maintain in the prescribed form a separate account in respect of each vested property taken charge by it and of each non-resident property vested in it and shall cause to be made therein entries of all receipts and payments made in respect thereof.
(2) The Government shall cause such accountants to be inspected and audited as such intervals and by such persons as may be prescribed.
(3) A non-resident may inspect the accounts maintained in respect of his property vested in the Committee.
- Certain Payments not to be valid discharge.
(1) All sums due to the Government or a non-resident from any person in respect of a vested property or a non resident-property shall be payable to the Committee which has taken charge thereof or in which such property has vested, and any payment made in contravention of the provision of this section shall not be deemed to be a valid discharge.
(2) All sums payable to a Committee by any person under sub-section (1) shall be recoverable as a public demand.
- Expenses.
(1) a Committee may reimburse itself for, or pay or discharge out of the income of any vested property taken charge of it by it or, as the case may be, any non-resident property vested in it, all expenses reasonably incurred in respect of such property in discharging its functions.
(2) All expenses of the Committee not specifically related to any vested property or non-resident shall be defrayed out of a levy at a prescribed rate on the gross collections made by the Committee.
- Surrender of non-resident property.
(1) If any non-resident or vested property is found to be in the unlawful possession of any person, and if such person does not surrender possession of such property to the Committee on being directed to do so on the date fixed by it, the Sub-Divisional Magistrate or any other Officer authorised by him in this behalf may, on the application of the Committee, enforce the surrender of such property by such person to the Committee and the Sub-Divisional Magistrate or the officer so authorised may use or cause to be used such force as may be necessary for taking possession of the property.
- Produce of Records, etc.
(1) A Committee may, for the purpose of this Act, by notice in writing require any person to make or deliver to it a statement or to produce before it records and documents in his possession or control relating to any vested property or non-resident property as such time and place as may be specified in the notice.
(2) Every person required to make or deliver a statement or to produce any record or document under sub-section (1) shall be deemed legally bound to do so within the meaning of sections 175 and 176 of the Penal Code (XLV of 1860).
- Indemnity. No suit or other legal proceeding shall lie against the Government or a Committee for anything which is in good faith done or to be done in pursuance of this Act or the rules made there under.
- Power to make rules. The government may make rules for carrying out the purposes of this Act.
- Repeal. The Evacuees (Administration of Immovable Property) Act, 1951 (E.B. Act XXIV of 1951), and the Vested and Non-Resident Property (Administration) Ordinance 1974 (Ord. V of 1974) are hereby, repealed.