Home Blog Property/Land Law From Enemy Property to Vested Property: Fifty Years of Public Sufferings
From Enemy Property to Vested Property: Fifty Years of Public Sufferings
Imtiaz Ahmed Sajal
On September 6, 1965 a war broke out between India and Pakistan. An Ordinance called the Defence of Pakistan Ordinance, 1965 was promulgated and emergency was proclaimed to ensure the security of the state and public safety. Thereafter the government of Pakistan made an executive order namely the Enemy Property (Custody and Registration) Order, 1965 to declare India as enemy country and to take over all the interests of enemy (nationals/citizens of India) by the custodian of Enemy property.
By dint of this law the erstwhile Pakistan government took over all the lands and properties of Hindus who left the country for India or stayed there at that time. On September 22 the Indo-Pak war came to an end after the Tashkent Declaration. Emergency was lifted in February 16, 1969 and the government promulgated the Enemy property (continuance of Emergency Provisions) Ordinance, 1969. Thus the most discriminatory law against the minority Hindu community remained in force till the beginning of the liberation War on March 26, 1971.
Transformation of Enemy Property into Vested Property
The Proclamation of Independence and formation of the provisional Government of Bangladesh took place at Mujibnagar on April 10, 1971. And the Laws Continuance Enforcement Order, 1971 was promulgated on the same date to keep in force all the Pakistani laws which were in force in the then East Pakistan on or before 25th March, 1971. The Ordinance 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 its independence by waging war against Pakistan. Immediately after liberation, the Bangladesh Government enacted the Bangladesh Vesting of Property and Assets Order, 1972 on 26th March, 1972. By this Order, the properties left by Pakistanis and erstwhile 'enemy properties' were combined in a single category. However, in 1974 Parliament passed the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974. But despite repealing the Ordinance of 1969, all the enemy properties and firms which were vested with the custodian of Enemy property of the then East Pakistan remained vested in the Government of Bangladesh under the banner of vested property. At the same time Government also enacted another law namely the Vested and Non-Resident Property (Administration) Act, 1974. Though the aim of this Act was to identify and take over the properties of those residents who left Bangladesh during/immediately after liberation was and/or took foreign citizenship, in practice this Act was also widely used against Hindu minorities who had no connection with Pakistan.
Restoration of Vested Property Act and Amendments
After three decades long continued protest and movement of minority Hindu community, civil societies, liberal politicians, educationists and many others the government took initiative to restore the Vested Properties (in Government's possession and control) to the rightful owner or his heirs. Subsequently on 11 April, 2001, the Restoration of Vested Property Act was passed in the National Parliament. Till now this Act has been amended for 6 times in different political regimes. But it cannot meet the aspiration of the affected people and causes further sufferings and harassment of Hindu minority living with vested property. The Act was enacted just before 3 months of the completion of period of the government. As a result it was not be possible for the enacting government to implement the Act. After changing the political government this Act became almost repealed by further Amendment in 2002. This Amendment allowed the unlimited time to return the Vested Properties and also provides that, the properties are to remain under the control of Deputy Commissioners until a tribunal settles ownership.
Enlistment of vested property
The original Act mandates the Government to prepare and publish the district wise list of Returnable Vested Properties through gazette notification within 180 days after the enactment. The 2011 Amendment of this Act divided the whole vested properties into 2 schedules i.e. 'Ka' schedule (under government's control and restorable), 'Kha' schedule (under other's control and non-restorable). To resolve the disputes arising out of 'Kha' schedule properties the amending Act provides for forming different committees in central, divisional and district level. In 2012 this Act has been amended for two times to extend the time limit of publishing the list of vested properties and to extend the time limit for application to the committees and tribunals. The 2013 Amendment (2nd) of the Act omitted all the provisions relating to 'Kha' schedule and committee system. A new section 28A titled "Kha schedule omitting related special provisions" has been inserted by this Amendment, provides that all the judgments and decrees of the Tribunals and Appellate Tribunals relating to 'Kha' schedule shall become null and void, and all pending proceedings shall become abated. All the applications filed before the Committees shall become automatically void but civil suit to the ordinary civil courts regarding these properties is allowed. Though, it was totally illegal to prepare or update the list of vested property (VP) with inclusion of new VP case after 23rd March 1974. Since the law of Enemy Property itself died with the repeal of Ordinance No. 1 of 1969, no further VP case can be started thereafter on the basis of the law which is already dead [held in Aroti Rani Paul vs. Sudarshan Kumar Paul 56 DLR (AD), 76; Saju Hossain vs. Bangladesh, 58 DLR (AD), 177]. Insertion and omission of such unnecessary provisions causes immeasurable sufferings and deprivation of Hindu minority in Bangladesh living with vested property.
Vested Property Return Tribunal and Appellate Tribunal
The original Act of 2001 provides for establishment of one or more tribunal/s in each district with a District Judge or Additional District Judge. An appeal against any decision of the Tribunal shall lie to the Vested Property Return Appellate Tribunal consists of a person qualified to be a Judge or retired judge of the Supreme Court. There was also provision for Appeal to the Appellate Division of the Supreme Court against any decision of the Appellate Tribunal. The 2013 Amendment (1st) of the Act has changed the formation of Tribunals and Appellate Tribunal. Now Tribunals consist of Senior Assistant Judge and Appellate Tribunals consist of District Judges. It omitted the provision for appeal to the Appellate Division of the Supreme Court and provides that the decisions of the Appellate Tribunal will be final. As per the mandate of the Act,Tribunals have been set up at each district, except in Chittagong Hill Tracts. Around two lakh applications have been filed to the tribunals claiming ownership of vested properties but the disposal rate is frustrating. Although a few people had obtained orders in their favour, but the Deputy Commissioners were, however, not implementing the tribunals' orders, as they think it's a loss of government property.
Claims for compensation
Section 28 of this Act says that no one shall have the right to claim compensation or income/ benefit received by the Government/individual for the property due to enlisting, return, release, settlement or lease as enemy (vested) property, to any court or authority. If someone claims as such, the court or authority will straight reject such claim. After reading such an inhumane provision, it seems that, as if there were no pecuniary loss or deprivation of Hindu minority in Bangladesh living with Vested Property. Or such a minor loss should not be considered. According to the research conducted by Prof. Dr. Abul Barkat (2008), direct consequence of enemy/vested property is among 2.7 million Hindu households- 1.2 million households dispossessed 2.6 million acres land. The estimated value of the 2.6 million acres of dispossessed land at current market price would be about Tk. 3,106,636 million. The average dispossession was 332 Decimals per household. Among them about 80% of affected households have dispossessed agricultural land, 62% dispossessed homestead land and 30% dispossessed other types of land. What about equity, justice, good conscience in this regard? Why they cannot approach to any court or authority? In addition to this, all the unclaimed vested properties will be government khas property and the government can dispose that property in whatever means. There is no provision to settle this particular type of khas land among the Hindu minority in priority basis. To mitigate this long lasting problem concerned authorities have to change their "mindset" regarding Hindu minority and their property right. Government should come forward with quick solutions to protect the rights of religious minority so that they could get back their lands without further harassment and stop their silent migration. We hope this issue will be settled within very near future, then rolling down of tears of Hindu minorities will be stopped.
Cite this article as: Imtiaz Ahmed Sajal, 'From Enemy Property to Vested Property: Fifty Years of Public Sufferings' (Bangladesh Law Digest, December 29, 2015) <https://bdlawdigest.org/from-enemy-property-to-vested-property-fifty-years-of-public-sufferings.html>
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Mr. Sajal obtained an LLM in International Law at South Asian (SAARC) University, New Delhi, India. He serves as the Editor in Chief of the Bangladesh Law Digest (BDLD). He is an environmental lawyer and Lecturer in Law at Bangladesh Army International University of Science and Technology. He can be reached at [email protected]
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