Generally Pre-emption is a right of opportunity of purchasing land in priority to other people, which is ensured in some provisions in various acts of our country. So the right of pre-emption is not merely a personal right but an incident annexed to the land. In the State Acquisition and Tenancy Act of 1950 the right of pre-emption is settled by Section 96. The right of pre-emption is also given in some other laws, in some laws it is given directly and in some laws it is given indirectly.
What is Pre-emption:
The term ‘pre-emption’ is the English equivalent of Arabic term ‘shufaa’. In law, the meaning and import of both words are relevant. The word ‘pre-emption’ was derived from Latin ‘prae’ means before and ‘empto’ or ‘emption’, which means ‘buying’.
Dr. Mullah says that: ‘The right of shufaa or pre-emption is a right which the owner of the immovable property posses to acquire by purchase another immovable property which has been sold to another’. According to him pre-emption is similar to re-purchase or re-sale. To another author, a pre-emption is a right of a neighbour superior to that of a stranger in the lands continuous of one land. There are different types of opinion about pre-emption.
Again the word ‘pre-emption has not been defined by any of the statutes in Bangladesh. However there are judicial pronouncements defining the term pre-emption. In his classical judgment delivered in the celebrated case of Gobind Dayl v. Inayatullah his Lordship justice Mahmood defined pre-emption as simply a right of substitution, entitling the pre-emptor, by reason for a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of the rights and obligations arising from the sale under which he has derived his title. This definition has been adopted by the Indian Supreme Court in Vijaylakshmi v. B. Himanthraja Chetty.
In our country the case of Md. Basiruddin Mandal v. Annamoni the above view has been supported in the following terms:
“It would be incorrect to describe it as a re-sale by the transferee to the co- sharer applicant. It is not a re-purchase of the property from either the vendor or the vendee. It is a right to acquire the property at the same price as given by the transferee”.
By this case the definition of the right of pre-emption comes in a formed structure. It is now evident that the right of pre-emption does not involve “a sale” by the transferee. It is really a substitution of ownership in respect of the pre-empted property.
Sources of right of pre-emption:
- Muhammadan Law
- Local Custom
i) State Acquisition and Tenancy Act 1950
ii) Non Agricultural Tenancy Act 1949
iii) Partition Act 1893
iv) Land Reforms Ordinance 1984
v) Arpito Sampatti Prottarpan Ain (Vested Property Return Act)
State Acquisition and Tenancy Act 1950:
Sec. 96 provided the right of pre-emption in State Acquisition and Tenancy Act. It comes into operation on the 14th April, 1956. It provides:
(1) If a portion or share of a holding of a raiyat is transferred, one or more co-sharer tenants of the holding may, within four months of the service of the notice given under sec. 89, or, if no notice has been served under sec.89, within four months of the date of the knowledge of the transfer, apply to the Court for the said portion or share to be transferred to himself or themselves; and if a holding or a portion or a share of a holding is transferred, the tenant or tenants holding land contiguous to the land transferred may, within 4 months of the date of the knowledge of such transfer, apply to the Court for the holding or portion or share to be transferred to himself or themselves:
Provided, that no co-sharer tenant holding land contiguous to the land transferred shall have the right to purchase under this section unless he is a person to whom transfer of the holding or the portion or share thereof, as the case may be, can be made under sec. 88 and 90.
(2) In an application made under sub-section (1) by a co-sharer tenant or co-sharer tenants, all other co-sharer tenants of the holding and the transferee shall be made parties and in such an application made by a tenant holding land contiguous to the land transferred, all the co-sharer tenants of the holding and all the tenants holding lands contiguous to the land transferred and the transferee shall be made parties.
(3) (a) An application made under sub-section (1) shall be dismissed unless the applicants, at the time of making it, deposit in the Court the amount of the consideration money or the value of the transferred holding or portion or share of the holding as stated in the notice under section 89 or in the deed of transfer, as the case may be, together with compensation at the rate of ten per centum of such amount.
(b) On receipt of such application accompanied by such deposit, the Court shall give notice to the transferee and to the other persons made parties thereto under sub-section (2) to appear within such period as it may fix and shall require such persons to state the consideration money actually paid for the transfer and shall also require the transferee to state what other sums he has paid in respect of rent since the date of transfer and what expenses he has incurred in annulling encumbrances on, or for making any improvement in respect of, the holding, portion or share transferred, and the Court shall then, after giving all the parties an opportunity of being heard after holding an enquiry as to the actual amounts of the consideration money and rent paid and the expenses incurred by the transferee in annulling encumbrances on, or for the improvement of, the land transferred, direct the applicant or applicants to deposit a further sum, if necessary, within such period as it thinks reasonable:
Provided that the transferee shall, in no case, be entitled to claim consideration money in excess of the amount mentioned in the deed of transfer.
(4) When an application has been made under sub-section (1), any of the remaining co-sharer tenants including the transferee, if one of them, and the tenants holding lands contiguous to the land transferred may, within the period referred to in sub-section (1) or within to months of the date of the service of the notice of the application under clause (b) of sub-section (3), whichever be earlier, apply to join in the said application; any co-sharer tenant or tenant holding land contiguous the land transferred, who has not applied either under sub-section (1) or under this sub-section, shall not have any further right purchase under this section.
(5) (a). If (i) a co-sharer tenant whose interest has accrued by inheritance and (ii) a co-sharer tenant whose interest has accrued by purchase and (iii) a tenant holding land contiguous to the land transferred apply under this section and comply with the provisions herein contained, the applicant or applicants shall have the prior right to purchase under this section in the order in which they have been mentioned above.
(b) If more than one tenant holding land contiguous to the land transferred apply under this section, the Court shall determine the order of priority as among such tenants having regard to-
(i) the total quantity of land in possession of each of the tenants applying;
(ii) whether the contiguous land of the tenant is homestead land or any other class of land;
(iii) extent of contiguity;
(iv) to what extent it is necessary for the applicant to have possession of the contiguous land; and
(v) the right of easement, if any, of the applicants.
(6) (a) On the expiry of the period within which an application may be made under sub-section (4), the Court shall determine, in accordance with the provisions of this section, which of the applications filed under sub-section (1) or sub-section (4) shall be allowed.
(b) If the Court finds that an order allowing the applications made under this section is to be made in favour of more than one applicant, the Court shall determine the amount to be paid by each of such applicants and, after apportioning the amount, shall order the applicant or applicant who have joined in the original application under sub-section (4) to deposit the amounts payable by him or them within such period as it thinks reasonable; and if the deposit is not made by any such application within such period, his application shall be dismissed.
(7) (a) On the expiry of the period within which a deposit, if any, is to be made under clause (b) of sub-section (6), the Court shall pass orders allowing the application or applications made by the applicant or applicants who are entitled to purchase under and have compiled with the provisions of the section and, when such orders are passed in favour of more than one applicant, shall apportion the holding or the portion or share of the holding among them in such manner as it deems equitable; and the applicant or applicants under sub-section (1)’ if found to be entitled to a refund of any money, shall get the refund from the amount deposited by the applicant or applicants under clause (b) of sub-section (6).
(b) The Court shall, at the same time, pass an order directing that the transferee be paid out of the deposits made under sub-section (3) the amount of consideration money paid by him for the transfer together with compensation at the rate of ten per centum of such amount, the amount if any, paid by him on account of rent of the holding, portion or share transferred since the date of transfer and the amount of expenses, if any, incurred by him in annulling encumbrances on, or for making any improvement in respect of, such holding, portion or share.
(8) No apportionment order under sub-section (7) shall operate as division of the holding.
(9) From the date of the passing of the order under sub-section (7) –
(a) the right, title and interest in the holding or portion or share thereof accruing to the transferee from the transfer shall, subject to any orders passed under the said sub-section , be deemed to have vested free from all encumbrances which have been created after the date of transfer in the co-sharer tenants or in the tenants holding lands contiguous to the land transferred, as the case may be, whose applications to purchase have been allowed under sub-section (7);
(b) the liability of the transferee for the rent of the holding or portion or share from the date of the transfer shall cease; and the co-sharer tenants or the tenants holding lands contiguous to the land transferred whose applications to purchase have been so allowed shall be liable for any such rent due from the transferee; and
(c) the Court on further applications of such applicant or applicants may place him or them, as the case may be in possession of the property vested in him or them.
(10) Nothing in the section shall apply to –
(a) a transfer to a co-sharer in the tenancy whose interest has accrued otherwise than by purchase; or
(b) a transfer by exchange or partition; or
(c) a transfer by bequest or gift (including Heba but excluding Heba-Bil-Ewaj for any pecuniary consideration) in favour of the husband or wife or the testator or donor, or of any relation by consanguinity within three degrees of the testator or donor; or
(d) a simple or complete usufructuary mortgage, or, until a decree or order absolute for foreclosure is made, a mortgage by conditional sale; or
(e) a Waqf in accordance with the provisions of the Muhammadan Law; or
(f) a dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual.
Explanation— A relation by consanguinity shall, for the purpose of this section, include a son adopted under the Hindu Law.
(11) Nothing in this section shall take away the right of pre-emption conferred on any person by the Muhammadan Law.
(12) An application under this section shall be made to the Court, which would have jurisdiction to entertain a suit for the possession of land in connection with which the application is brought.
(13) An appeal shall lie to the ordinary Civil Appellate Court from any order of a Court under this section and, notwithstanding anything contained in any other law for the time being in force, there shall be no second appeal from an order of the first Appellate Court.
Partition act 1893:
Sec 4 of the Partition act confers the right of pre-emption of the co-sharer of an undivided family
- Partition suit by transferee of share in dwelling-house:
(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit, and direct the sale of such share to such shareholder and may give all necessary and proper direction in that behalf.
(2) If in any case described in sub-section (1) two or more members of family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.
Sub Sec (2) Sec3 confers that if two or more shareholders severally apply for leave to buy the Court shall order a sale of the share or shares to the shareholders who offers to pay the highest price above the valuation made by the Court.
Certain condition must be fulfilled before Sec. 4 comes into operation, (1) suit must relate to dwelling house of an undivided family, (2) transferred to stranger, (3) stranger-transferee has sued for partition. After fulfilling these conditions a co-sharer can apply to the court. The sec. 4 of this act gives a co-sharer the right of pre-emption against the right of the stranger.
Comparison of Pre-emption under SAT ACT and Partition Act:
Though the Section 4 of this Act does not utter the word ‘pre-emption’ but it gives the right of pre-emption to a co-sharer of a dwelling-house. The SAT Act gives the right of pre-emption to a co-sharer tenant and a tenant holding land contiguous to the land and the Partition Act ensures this right to a co-sharer of a dwelling-house.
The right of pre-emption in relation to a dwelling-house under section 4 is exercisable by a member of an undivided family not only when a stranger-transferee figures as a plaintiff, but also as a defendant in a partition suits.
The object of sec. 96 of SAT Act is to minimize the sub-division and fragmentation of agricultural holdings which were the main causes of agricultural backwardness of the land of Bangladesh. The object of the sec. 4 of the Partition Act is to prevent intrusion of strangers in the dwelling-house in a partition suit: The right of pre-emption in relation to a dwelling-house under section 4 is exercisable by a member of an undivided family not only when a stranger-transferee figures as a plaintiff, but also as a defendant in a partition suit. This object would be frustrated if a stranger-purchaser forces himself into the dwelling-house of an undivided family, drives the other co-owners to file a suit as plaintiffs and then figuring as a defendant is allowed to defeat the claim for pre-emption under section 4 of the Act on a narrow and literal interpretation of the section. In a suit for partition, the parties to the suit are in the position of the counter-claimants, and it can very well be predicated of a defendant in a suit for partition that he is suing for partition.
The Land Reforms Ordinance 1984:
By Section 13 of the Land Reform Ordinance the Bargadar has got the right of pre-emption of the bargaproperty which has been sold.
Sec.13.Boargadar’s right to purchase
(1) Where the owner intends to sell the barga land, he shall ask the bargadar in writing if he is willing to purchase the land:
Provided that this provision shall not apply where the owner sells the land to a co-sharer or to his parent, wife, son, daughter, son’s son or to any other member of his family.
(2) The bargadar shall, with in fifteen days from the date of receipt of the offer, inform the owner in writing of his decision to purchase or not to purchase the land.
(3) If the bargadar agrees to purchase the lands, he shall negotiate the price of the land with the owner and purchase the land on such terms as may be agreed upon between them.
(4) If the owner dose not receive any intimation from the bargadar regarding his decision either to purchase or not to purchase the land within the specified time or if the bargadar informs the owner of his decision not to purchase the land or if the bargadar does not agree to pay the price demanded by the owner, the owner may sell the land to any person he deems fit:
Provided that the owner shall not sell the land to such person at a price which is lower than the price offered by the bargadar.
Where the barga land is purchased by a person other than the bargadar, the barga contract in respect of the land shall be binding upon the purchaser as if the purchaser were a party to the contract.
Comparison of Pre-emption under SAT ACT and The Land Reforms Ordinance 1984:
Section 96 of SAT Act provides the right of Pre-emption and Section 13 of the LRO gives the bargadar the right to Pre-empt the bargaproperty, which has been sold.
A co-sharer tenant of a holding and tenants holding land contiguous to the land can apply for the exercise of the right of pre-emption under SAT Act. But a barga land owner has to ask the bargadar to buy the bargaland in writing if he wants to sell the land according to section 13 of the LRO. That means the bargadar has got the right of pre-emption on the bargaproperty.
With the pre-emption application the consideration money shall be accompanied with it by deposit in court. But under the LRO the bargadar needs not to deposit any money, he has to buy a land in general process granted by law.
If the co-sharer tenant of contiguous land owner having the notice under section 96(1) do not apply within four months, he will lose the right of pre-emption but if the Bargadar do not express any intimation to the owner within 15 days of getting the written asking to buy the Bargaland, the owner may sell the land to any person.
If person becomes co-sharer by inheritance he excludes the others from the right of pre-emption and a co-sharer by purchase excludes the contiguous land holders. But if the owner sells the Bargaland to his parent, wife, son, daughter or son’s son or to any such other member of his family the Bargadar lose the right of pre-emption.
There is time limitation of four months under SAT Act for pre-emption and there is 15 days of time limitation for Bargadar under LRO. SAT Act does not give the right of second appeal but there is no matter of second appeal in LRO for Bargadar because he can purchase the land under general of purchasing land and those rule and system is applicable for him.
Arpita Sampatti Prattarpan Ain (Restoration of Vested Properties Act) 2001:
Section 27 of the Restoration of Vested Properties Act 2001 provides the right of pre-emption for two persons. Under Section 27(1), only the following two persons are entitled to Pre-empt, namely-
i) Co-sharer of the holding by inheritance;
ii) If there is no such type of Co-sharer, the person who possessed the sold property by lease continuously at least for the last ten years.
Section 27(2) interprets that if the sold property is an agricultural land the provisions of Land Reform Ordinance 1984 (X of 1984) relating to pre-emption will be applicable on that property.
Comparison of Pre-emption under SAT ACT and Restoration of Vested Properties Act 2001:
Under Section 27 of the Restoration of Vested Properties Act 2001 if the Government want to sell or give lease an immovable property having no owner it will give priority to the co-sharer by inheritance in that holding. If there is no such type of Co-sharer, the person who possessed the sold property by lease continuously at least for the last ten years can pre-empt that property. The right of Pre- emption is provided under Section 96 of SAT Act 1950. It gives the right of pre-emption to a co-sharer tenant and a tenant holding land contiguous to the land.
SAT Act does not mention any other law as supporting laws for pre-emption. But Restoration of Vested Properties Act mentions the LRO act for an agricultural land. If the property being an agricultural land the provisions of the Land Reform Ordinance 1984 and its provisions will be applicable.
There is no provision in Restoration of Vested Properties Act relating to the process of the pre-emption but the right of pre-emption only. But there are provisions about the process of exercising the right of pre-emption in SAT Act.
Above all distinction and comparison section 96 of SAT Act is a complete section for the right of pre-emption but sec 27 only mention about the right of pre-emption on two specific person.
Though there is the right of pre-emption in various acts the Sat Act is the pioneer of all this provisions on the matter of pre-emption. Because the SAT Act gives the clear, descriptive and procedural sections about pre-emption. Section 96 relating to section 88 and 90 gives a formed structure of the right of pre-emption. The right of pre-emption was broadly included first in Bengal Tenancy Act 1885. The proceeding under section96 of the SAT Act is in the nature of a suit. The right, title and interest of the transferee vests in the petition, if he us successful and as such the order passed in a pre-emption proceeding conclusively determines the rights of the parties with regard to the land in dispute and as such this is the original proceeding and the determination of the right of the parties are conclusive. The other acts provides the right of pre-emption to some specific persons but not the process and ways how to apply the right of pre-emption. The Partition Act provides the right of pre-emption of a co-sharer of a dwelling-house. The Land Reforms Ordinance provides the right of pre-emption to a Bargadar in buying of the Bargaland if the owner wants to sell it. The Restoration of Vested Properties Act provides this right to a co-sharer by inheritance in the holding to the land sold or leased by the government having no owner of that land. Again to the who possessed the sold property at least ten years by lease before sell or give lease of that land by government having no owner. So from these discussion we can assume that the other laws then the State Acquisition and Tenancy Act provides only the right of pre-emption to some specific persons but this Act provides the right of pre-emption itself and the ways for application of this right. The time limitation and who and how can apply for this right all of these are provides by the Section 96 of the Sat Act and this sections relates itself with Section 89 and 90.