Vested Property to Ensure the Right of Land Ownership of the Religious Minorities

Introduction:

Barakat argues that the Vested Property Act (VPA) 1974 is inherently communal - communal by birth, anti-human and anti-democratic and has no legal, ethical, moral, economic, social, and political basis. The Act originated from the Enemy Property Act of 1968, the content of the law remains basically unchanged, 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. The Act is fanatic because the basic premise is to divide people based on their religious affiliation and rule them, which by itself is anti-human.[1]

The creation and continuation of the VPA can be considered as a violation of property rights of the minority communities in Bangladesh.[2] Acts on enemy property and vested property can be identified as one of the major effect behind ‘missing Hindu population’.[3] Vested property is on the process of return to its original owners or their heirs or successors in interest of original owners or their heirs from the custodianship of the government by the Return of Vested Property Act (RVPA), 2001.[4] Flawless implementation of RVPA would have established rule of law, and human rights if vested properties were returned to their original owners.^[5] This is because the returning process of vested property has a close link, between the issue of vested property and the right of property inheritance.[6] The legal aspects of vested property and the law of inheritance together create a paradox in property rights and the law of property inheritance in Bangladesh.[7]

This chapter addresses the following issues, which an activist or lawyer must know while addressing cases related to vested property:

International Legal framework on Vested Property

Origin of Vested Property Act

National Legal framework on Vested Property

Sample of “Ka” Schedule (ÔÔKÓ Zdwmj) of the Vested Property Act, 2001

Sample of “Kha” Schedule (ÔÔLÓ Zdwmj) of the Vested Property Act, 2001

Identifying the steps to redress the victim regarding vested property

International Legal framework on Property Rights:

SL No.	International Legal framework on Property Rights	Articles
1.	The Universal Declaration of Human Rights, 1948	Article 17 provides that everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property.
2.	The European Convention on Human Rights, 1950	Protocol 1, Article 1 provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
3.	The International Convention on the Elimination of All Forms of Racial Discrimination, 1965	Article 5 provides that everyone has the right to equality before the law without distinction as to race, color and national or ethnic origin, including the "right to own property alone as well as in association with others” and "the right to inherit".

Origin of VPA and RVPA:

The origin of the VPA can be identified as back to a number of laws and by laws that were proclaimed by the Pakistani government in the period of post-partition.[8] A large number of Hindus from the minority community were compelled to migrate from East and West Pakistan to India, as a result of communal violence after the partition in 1947.[9] To tackle the situation the Pakistani government enacted a series of laws for the purpose of administering and managing a huge number of left behind (means land and buildings which Hindus had abandoned suddenly to flee to India) such as the Enemy Property Act, 1968.[10] Later on, the president of Pakistan promulgated the Enemy Property Ordinance, 1969. This Ordinance was in effect until the emergence of Bangladesh in December 1971. During the war of liberation, the Laws of Continuance Enforcement Order was promulgated by the acting president on 10 April 1971. The Order stated that-

all laws that were in force in Bangladesh on 25th March 1971 shall, subject to the Proclamation aforesaid, continue to be so in force, with such consequential changes as may be necessary on account of the creation of the sovereign independent state of Bangladesh, formed by the will of the people of Bangladesh …[11]

Accordingly, the Enemy Property Orders also continued in force.

After Independence the government of Bangladesh repealed the Vested Property Act 1972 in 1974. However, the law was used by local and political elites to grab Hindu lands.[12] Human Rights Congress for Bangladesh Minorities (HRCBM) challenged the vested property regime in the Supreme Court of Bangladesh by filing a Writ Petition under Article 102 of the Constitution.[13] Upon hearing both the parties, the High Court Division of the Supreme Court of Bangladesh delivered its rule nisi upon the government on the Enemy Property (Continuance of Emergency Provision) (Repeal) Act 1974 and subsequently promulgated Arpita Sampatty Protyapyan Ain 2001 and circulars, administrative orders.[14] The respondent was asked to show cause as to why instructions issued in the contents of presidential order 29 of 1972, act 45 and 46 of 1974, ordinance No. 92,93 of 1976, Arpita Sampatty Protyapyan Ain 2001 and circulars issued by government that are in contradiction with the fundamental rights and the Charter of Declaration of Independence of Bangladesh, 10 April 1971, should not be declared to be ultra vires the constitution.[15] The Rule nisi also demonstrates why the properties so far incorporated in the list as Enemy (Vested) should not be returned to the title holder/successor/legal possession holders and or such other or further order or orders passed as to this Court may seem fit and proper.[16]

VPA was considered a positive step towards settling the controversy associated with the vested property issue but it had no effect.[17]

Case Study

In 1965, Mr. Das possessed 621 decimals of land.[18] He was also involved in business which was his second major source of income. In 1966, 120.5 decimals of his land were enlisted under the Enemy Property Ordinance and, ultimately, he was dispossessed of this property. As soon as he came to know about it, he used all the means within his disposal to regain his property. He tried to file a lawsuit. However, it was not easy to do so until 1968. 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 due to the reduced attention to business. As his reduced income could not meet the increased requirements 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 then compelled to stop his business. The dream of regaining the lost property did not come true. On the contrary, the whole struggle made him landless or near landless. Since he lost the capability to maintain his family properly, some of his family members migrated to India. The deterioration of economic condition alienated him from society, and the migration caused breaches to the family bondage. Struggle for regaining his property made him physically and mentally weak. Nobody cares for him now. The village council chairman, members and the local touts have left him after accruing their benefits. Now he is struggling for survival only. The ultimate result of his efforts to regain enlisted land is that Mr. Das had to sell, in addition to those already sold (133 decimals), another 134 decimals of land at different times to meet the financial needs of the whole process.

National Legal framework on Property Rights:

Violation of property rights by creation and continuance of vested property has further been recognized by the High Court Division of the Supreme Court of Bangladesh.[19] Mr. Justice Obaidul Hassan and Justice Krishna Debnath in Md. Abdul Hye Vs. Government of Bangladesh (writ petition no. 8932 of 2011, judgment dated 23.11.2017) stated that the EPA (Enemy Property Act) and its subsequent adaptations have methodically violated the norms of fundamental human rights of Hindu community living in Pakistan and Bangladesh in breach of established human rights treaties and conventions. Referring to the right to property, equal protection under the law and freedom of religion honorable judges also pointed out the inequitable provisions of the EPA and VPA and decided that the inequitable provisions and discriminatory application of the EPA and VPA have obviously violated the legal standards created and practiced by the international community.

SL No.	Recognition of Right to property in National Instruments	Articles/Sections
1.	The Constitution of the Peoples Republic of Bangladesh, 1972	Article 27 ensures that all citizens are equal before law and entitled to equal protection of law.
2.	The Constitution of the Peoples Republic of Bangladesh, 1972	Article 13(c) guaranteed “private ownership that is ownership by individuals within such limits as may be prescribed by law.
3.	The Constitution of the Peoples Republic of Bangladesh, 1972	Article 42 (1) provides that every citizen shall have the right to acquire,hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
4.	The Vested Property Return Act,2001,	section 2 provides definition of "vested property" as property vested in the Government under the vested property law section 2 (r) "Schedule" means the list of properties described in Schedule'K' published by notification in the Official Gazette under this Act.]”
5.	The Vested Property Return(2nd Amendment) Act,2013	Section 28a provides schedule 'B' relating to vested property shall be canceled and it shall be canceled in such a manner that the said Scheduled Property has never been listed as vested property.

The national legal framework on vested property includes the Constitutional rights, apart from the previously mentioned enactments. It will also include two schedules passed by the Government in 2011. ‘Ka’ schedule includes the properties which are in possession of Government and its agencies. ‘Kha’ schedule includes the properties which are either leased to private persons by the Government or who has subsequently became owner by purchase or who are in possession illegally.

Sample of ‘Ka’ Schedule ( ‘ক’ তফসিল) of the Vested Property Act, 2001:

অর্পিত সম্পত্তির তালিকা

‘ক’ তফসিল

(অর্পিত সম্পত্তি প্রত্যর্পণ আইন ২০০১ সংশোধন ২০১৩ এর ধারা ৯ এর উপধারা ১(ক) অনুযায়ী প্রকাশিত)

ক তফসিল ভুক্ত অর্পিত সম্পত্তির সংশোধনী তালিকা

জেলাঃ উপজেলাঃ মৌজাঃ জেএলনংঃ

ক্রমিক নং	গেজেট প্রকাশের তারিখ	গেজেটের পৃষ্ঠা নং	গেজেটের ভুল বিবরণী ও সংশোধনী
১	২	৩	৪
……	……..	…….	……..

Sample of ‘Kha Schedule ( ‘খ’ তফসিল) of the Vested Property Act, 2001ঃ

অর্পিত সম্পত্তির তালিকা

খ তফসিল

অর্পিত সম্পত্তি প্রত্যর্পণ আইন ২০০১ (সংশোধন ২০১১) এর ধারা ৯ অনুযায়ী প্রকাশিত

জেলারনামঃ উপজেলা/থানাঃ মৌজাঃ জেএলনংঃ

ক্রমিক নং	মালিকের নাম পিতার নাম ও ঠিকানা	খতিয়ান নং		দাগ নং		জমির পরিমাণ	সম্পত্তির প্রকৃতি
ক্রমিক নং	মালিকের নাম পিতার নাম ও ঠিকানা	সাবেক (এসএ)	হাল (আরএস)	সাবেক (এসএ)	হাল (আরএস)	জমির পরিমাণ	সম্পত্তির প্রকৃতি
১	২	৩	৪	৫	৬	৭	৮
…..	……..	………….	…………….	……………	……….	…………….	………….
…….	…………..	…………..	……	………….	…………..	……..	………..
…….	…………..	…………..	……	………….	…………..	……..	………..

Present Position of Vested Property Laws:

Despite the rights to land as articulated in the Constitutions vested property laws remains in continuity in various forms against the religious minorities in Bangladesh.[20] The situation appears that the RVPA is deeply flawed and unfortunately has failed to meet its promises.[21] One of the present situation is the ‘Kha’ schedule of the RVPA is scrapped by the government[22] when it is understood in the wake of popular demand that the land management officials through corrupt practice included the properties in the list which are owned by bona fide purchasers and original owners.[23] Despite the scrapping of the schedule ‘kha’ the following flaws exists:

During the making of the land record management officials demanded bribe from the bona fide owners of the property and the owners who could not meet their demand, their lands were inserted in the schedule ‘ka’.[24]
After scrapping of schedule ‘kha’, the land management officials have further demanded bribes to the owners and who could not pay, their properties are inserted in a supplementary list of ‘ka’ schedule. Since these supplementary schedules were published after the deadline as prescribed by RVPA, the owners could not file the case before the Tribunal; they had to file writ petitions before the High Court Division since the Limitation Act does not apply in these cases.[25]
When an individual gets the judgment and decree in his favor, the local government taking permission from the Ministry of Land used to file writ petitions. However, after the judgment and order in an unreported Writ Petition No. 5140 of 2003 between ALRD and others vs. Bangladesh and others, this practice stopped and the High Court Division ordered the local government officials, mainly Deputy Commissioners to return the properties to the owners who got the decree.[26]
The scrapping of schedule ‘kha’ has been nullified by the issuance of eight different circulars by the Government. Arpito Sompotti Protorpon Cell and Bangladesh Hindu Buddhist Christian Unity Council (BHBCUC) are raising their voice for scrapping these circulars.[27]
The Anti Corruption Commission (ACC) is yet to take any action against the corrupt land management officials.
The victims are paying a lot of money for bribing the land management officials and for paying the legal fees.[28].

The aforesaid discussion over vested property is an unpredictable issue, containing social, political, financial and legal angles.[29] Human rights activists, community leaders and lawyers have a duty, while they are working with the victims of Vested Property and Enemy Property Laws, to stand by and helping them in collecting papers so that they do not have to run from pillars to posts for getting back the properties which original belong to them.

Remedy and Actions to be taken by Human rights activists, community leaders and lawyers to address the victim/claimant of Vested Property:

To examine the land record, deed

To pursue the relevant gazette

If the victim failed to apply under Vested Property Restoration Tribunal for want of limitation, then advice the victim to file a Writ Petition under Article 102 of the Bangladesh Constitution

In the Writ, pray for restoration of the property or permission to file restoration suit before the learned Tribunal.

If the victim/claimant obtained judgment and decree from the Vested Property Restoration Tribunal follow the below procedure:

Obtain certified copy of the judgment and decree including plaint, land record document, deed.

Apply to the local land Administrative office for mutation by submitting all the above documents

If mutation is denied advised to file a writ under Article 102 of the Bangladesh Constitution

In the Writ praying for mutation

If the judgment goes against claimant then he/she following the below steps for appeal:

victim/claimant collect the certified copy of the plaint, written statement, witness statement, judgment and decree

If victim/claimant comes within limitation then file a memorandum of appeal along with all document mention above

If victim/claimant comes after the prescribes 30 days for filing appeal then victim/claimant will go for file a Writ Petition

If the appeal is not allowed then he/she may file a Writ Petition

If the Writ dismissed then file a Civil Petition before the Appellate Division

Exercise:

In 1967, Mr. Roy possessed 138 decimals of land. In 2001, 95 decimals of his land were enlisted under the Vested Property Act and ultimately, he was dispossessed of this property. Nevertheless, he faced loss in his business. The remaining land could not satisfy the needs of the family for the whole year. The struggle for the property continued, but he was then compelled to stop his business. The dream of regaining the lost property did not come true. On the contrary, the whole struggle made him landless or near landless.

Suppose, you are an activist/a lawyer. Now-

How will you, as an activist, assist Mr. Roy?
How will you, as an activist, assist the whole community regarding this matter?

Outcome of this Chapter:

SL No.	Outcomes
1.	Gathering knowledge about the origin of Vested Property Act
2.	Understanding national legal framework on right to property
3.	Understanding international legal framework on right to property
4.	Case Studies
5.	Identifying the steps to redress the victim regarding vested property

[1]Barkat, A., Zaman, S., Khan, S., Podadar, A., Haque, S., Uddin, T. (2008). Deprivation of Hindu Minority in Bangladesh. Pathak Shamabesh.

[2]Ahmed, I. S. (2015). From enemy property to vested property: fifty years of public sufferings. Bangladesh Law Digest.

[3]Barkat, A. (2008). Deprivation of Hindu Minority in Bangladesh: Living with Vested Property. Pathak Samabesh Books. p. 46.

[4]ibid

[5]Baul, T.K., (2015). Definition of Genocide to Address the Atrocities on Religious Minorities of Bangladesh, ELCOP Yearbook, p,23.

[6]Rakshit, S. M. (1983). The Law of Vested Properties in Bangladesh. Signet Press Ltd.

[7]Ibid.

[8]Chandra, G. (2019). The Trajectories of Hindu Existence in Bangladesh: A Politicolegal Exploration, ELCOP YearBook of Human Rights, p.15.

[9]Barkat, A. (2008). Deprivation of Hindu Minority in Bangladesh: Living with Vested Property. Dhaka Pathak Samabesh Books, p. 46.

[10]Ibid

[11]Panday, K.P. (2016). Politics of Land Grabbing: The Vested Property Act and the Exploitation of Hindu Communities in Bangladesh. Koninklijke Brill, p.382-401.

[12]Preeth, S., Sharmin, S. (2011 September 23).Protecting Whose Vested Interests?.The Daily Star.Retrieved from: https://www.thedailystar.net/magazine/2011/09/03/human.htm Accessed on: 09.02.2021.

[13]Writ Petition No. 3380 of 2006, for details of the petition see: Bangladesh: HRCBM's Litigation against Government of Bangladesh.

[14]Roy, D. (2007, April 21). Vested Property Act: A story of deprivation and exploitation. The Daily Star. Retrieved from: https://www.thedailystar.net/news-detail-31799 Accessed on: 09.02.2021.

[15] Ibid

[16] Ibid

[17]Barkat, A. (2008). Deprivation of Hindu Minority in Bangladesh: Living with Vested Property. Pathak Samabesh Books, p. 46.

[18] Ibid, p. 90-93.

[19]Sarkar, A. (2018 April 02).Enemy property cases: HC for quick settlement. The Daily Star. Retrieved from: https://www.thedailystar.net/frontpage/enemy-property-cases-hc-quick-settlement-1556821 Accessed on 09.02.2021.

[20]Chandra, G. (2019). The Trajectories of Hindu existence in Bangladesh: a politicolegal exploration, ELCOP Year Book of Human Rights, p.15.

[21]Kabir, G. (1978). Minority Politics in Bangladesh, 1947-1971, University of British Columbia, p.1.

[22] Vested Property Return (Second Amendment) Act, 2013 passed in October 2013.

[23]Demand for removal of barriers to return of vested property. (2016, June 21). The Prothom Alo. Retrieved from: https://tinyurl.com/yyej5c98, Accessed on 27.01.2021.

[24] Land Agenda First, ALRD Newsletter, Issue 4, 2013.

[25] Ibid

[26] ALRD and others vs. Bangladesh and others. Writ petition No. 5140 of 2013.

[27]Hasan M. (2017, May 17). Land min circulars create new complications for owners. The New Age. Retrieved from https://www.newagebd.net/print/article/7843, Accessed on 27.01.2021.

[28]Baul, T.K. (2020). Study on Victim and Witness Protection Act. Manusher Jonno Foundation

[29]Panday, K.P. (2016). Politics of Land Grabbing: The Vested Property Act and the Exploitation of Hindu Communities in Bangladesh. Koninklijke Brill, p.382-401.