Land Acquisition
Land Acquisition action of acquiring private land by the state as per provisions of the law of the land. The earliest law on such land acquisition in the territory of present Bangladesh was the Bengal Regulation I of 1824 enacted to promote British commercial interests in salt manufacture. This law was repealed and replaced by Act I of 1850, by which the provision was extended to calcutta town so that land needed for public works in the capital could be acquired without any legal impediment. By Act XLII of 1850, construction of railways was declared a public purpose and summary powers were assumed by the government to expedite acquisition of land as well as taking earth for construction of roads, canals, and railways.
Act VI of 1857 consolidated various laws on the subject. This act was made applicable to the whole of British India. But it did not provide for acquisition of land for private companies. A new law entitled Act XXII of 1863 was enacted to authorize the Governor General-in-Council to declare projects dealing with irrigation, navigation, and improvement of docks and harbours as work of public utilities. This process of modification and consolidation continued till enactment of Act X of 1870.
The most striking feature of the law of land acquisition prior to 1870 was that, unless agreed upon by the collector and the landowner, the valuation of land proposed to be acquired was entirely in the hands of the arbitrators whose decision was final and thus no appeal could be made. This system led to lamentable waste of public money since arbitrators were often found to be incompetent and corrupt. This defect was remedied by Act X of 1870, which did away with the system of arbitration. In case of any disagreement between the collector and the landowner regarding the value of land, the case could now be referred to the civil court for decision. The judge of the civil court could finally decide the issue if he agreed with one of the two assessors. If the judge disagreed with both assessors, an appeal to the High Court was usually allowed. This resulted in multiplicity of suits, delays, and expenses. Consequently, the act was found not entirely effective and therefore, was repealed by the Act of 1894.
The Act of 1894 made the collector's award of compensation final, unless altered by a decree of the civil court in a regular suit. The object of the act was to provide a speedy method of determining the compensation to be followed for acquiring land. This was a comprehensive law, which also provided for emergency situations. A collector was not authorised under normal circumstances to take over possession of any land without making an award of compensation, although section 17 of the act gave him the authority to take over possession even before determination of award on the expiry of 15 days notice period. However, to mitigate the hardships of those affected, the collector was put under legal obligation to pay compensation on the basis of provisional estimates as under: (a) 10% for structures and buildings; (b) 75% for households, overheads and orchards; and (c) 50% for vacant 'nal' lands. This law did not provide for requisition of houses and buildings, even though provisions were made for temporary occupation of land, mainly for removal of earth for repair of roads, embankments etc.
As regards determination of compensation under Act 1 of 1894, the duty of the collector was to fix the sum, which, in his opinion, was the value of the acquired land. The proceedings for determination of compensation were administrative, and not judicial, and his award was subject to review by courts. The landowner had the right to refer the dispute to court for decision. The exact valuation was, however, impossible and the approximate market value was all that could responsibly be arrived at. The compensation, therefore, could not be determined with mathematical accuracy. As a result, the act only provided for matters that had to be considered while dealing with the determination of compensation.
After the partition of bengal in 1947, there was a sudden demand for land for accommodation of numerous government offices and public servants all over the new province. An ordinance called 'The East Bengal Emergency Requisition of Property Ordinance' was thus promulgated on 14 July 1947 for a short period. Since problem of accommodation was acute, the new province required 'rapid and energetic development in the matter of commerce and industries and supplies and services to make public life easy under the new conditions'. To address the situation, a new law called 'the (Emergency) Requisition of Property Act 1948' (Act XIII of 1948) was passed. This act provided for a summary procedure for requisition of any property, both movable and immovable, and for immediate taking over possession thereof on mere serving of a notice by the deputy commissioner upon the owner as well as the occupier of the required property. It also provided for a two-stage acquisition procedure whereby a property was first requisitioned for facilitating taking over of possession immediately and then initiation of proceedings for permanent acquisition. The salient features of the Ordinance of 1947 were retained and improved upon in the new act for reducing hardships of the affected people. Although it was for the government to take decisions in matters of permanent acquisition, it was always open to the deputy commissioner to requisition and taking over of any property at any time with permanent acquisition in view, pending subsequent approval of the government.
The courts were barred from entertaining any suit or application against any order passed or any action taken under this act. However, the bar of jurisdiction as contained in this act did not operate as a complete ouster. Since the courts themselves were to be the judges to determine whether their jurisdiction had been really ousted. The courts still retained the jurisdiction, in spite of the bar, to decide whether any order purported to have been passed under the act was within the authority of law or coram non judice or mala fide. As such they could strike down any particular order on these grounds.
The existing Land Acquisition Act of 1894 was, however, allowed to continue, even after enactment of Act XIII of 1948. But it was seldom resorted to, because (a) the proceedings under the Act of 1894 was 'tardy and protracted of property on requisition', and (b) it was always found convenient to take over possession of property on requisition and then to initiate proceedings for permanent acquisition.
The law relating to land acquisition was reviewed and consolidated in 1982 to provide owners of immovable properties reasonable protection against the harsh procedural law contained in the Act of 1948. A new law entitled 'The Acquisition and Requisition of Immovable Property Ordinance, 1982' (Ordinance 11 of 1982) was promulgated. The Act I of 1894 was repealed and Act XIII of 1948 was rescinded.
Following the severe floods of 1988, the need for emergency acquisition of immovable property for permanent measures to control flood and tidal bore and to prevent river erosion was felt. A new law, called the 'Acquisition of Property on Emergency Basis Act 1989' (Act IX of 1989) was thus enacted for a temporary period of five years. This temporary law was given an overriding effect upon all other laws, which meant that the provisions of this act were to prevail over any other laws in force. It authorised a deputy commissioner to order for acquisition of any property, both movable and immovable, by serving a notice upon the owner. The owner was debarred from challenging the validity of the acquisition order and could only submit claims of interests in the property to the deputy commissioner for getting compensation. This law was rescinded in 1994.
The Acquisition and Requisition of Immovable Property Ordinance 1982 (Ordinance 11 of 1982), now constitutes the sole instrument of land acquisition in Bangladesh (except in the 3 hill districts). This law provides for acquisition and requisition of immovable properties for a public purpose or in the public interest. Places of worship, graveyard or cremation ground, however, were exempted. Detailed procedures have been prescribed to ensure that a deputy commissioner proceeds systematically and on sound principles in such cases, leaving room for owners to raise objections which must be disposed of after due hearing.
Under the Act of 1948 every case of land acquisition needed government approval, although a deputy commissioner could take over possession of the property under his requisitioning authority and make alienation a fait accompli. The new law delegated the authority for final decision if the quantity of land was up to 50 bighas (6.7 hectares) and there was no objection from the owner against the acquisition notice. If the owner raised any objection, the approval of the divisional commissioner was considered to be necessary.
This delegation of decision making power was dictated by the delay in the acquisition process under the previous law. Delay in acquisition of land caused delay in the implementation of development projects. Moreover, foreign financing agencies were insistent upon expeditious land acquisition. Accordingly, a time limit was fixed according to the following scheme: (a) if the quantity of land proposed to be acquired was up to 50 bighas and there was no objection - 45 days; and if objection was raised - 75 days; and (b) if the quantity was over 50 bighas and no objection was raised - 105 days; and if objection was raised - 135 days. An additional maximum time limit of 112 days was allowed for finalisation of the award. Thus the maximum time of finalisation of an acquisition case is now 187 days if the quantity of land is up to 50 bighas and 274 days if it is over 50 bighas.
The deputy commissioner is now under obligation to determine compensation in accordance with the guidelines mentioned in sections 8 and 9 of the ordinance. He is then required to offer compensation money to the owners and make payment before taking over possession. If any owner does not accept his ruling or raises objection to it, the deputy commissioner will keep the money in revenue deposit in the treasury. Once such deposit is made, the compensation is legally deemed to have been paid, and the deputy commissioner is considered competent to take over possession of the concerned property. Provision was also made for authorising the owner, who objects as to his share or adequacy of the compensation award, to make a reference to an arbitrator (a judicial officer of the rank of a sub-judge) and further, to an Arbitration Appellate Tribunal headed by a district judge.
A significant feature of the present law is the provision for ensuring use of the land for purposes for which it was acquired. The use of the acquired property for any purpose other than the purpose for which it was acquired is, except with the prior approval of the government in the Ministry of Land, forbidden. This has been made so because the requiring bodies, for whom land is acquired, are government agencies, who often acquire more land than they actually need and do not use the acquired land for the purpose for which it was acquired, or keep the land unutilised for a long period. The law now ensures that if the land is not used for the specific purpose for which it was acquired or is kept unutilised, the land will be liable to be surrendered to the deputy commissioner.
As the law of land acquisition is expropriatory and the affected persons and families are to give up rights over the land involuntarily, the compensation to be paid is calculated as the average market price of the land plus an additional amount. At present, this additional amount is fifty percent of the average market price.
There is also provision for temporary requisition of properties for a public purpose or in the public interest. Such requisition can be done only with the prior approval of the government. The prior approval, however, is not required in emergencies. The provision that 'save in the case of emergency requirement for the purpose of maintenance of transport or communication system, no property which is bona fide used by the owner thereof as the residence of himself or his family or which is used either for religious worship by the public or as an educational institution or orphanage or as a hospital, public library, grave yard or cremation ground shall be requisitioned' extends valuable protection to citizens against abuse of power by the executive authority.
The two important provisions that make the existing requisition procedure different from previous ones are: (a) assessment of compensation commensurate with the rent payable for the use and occupation of the property, if it had been leased out for that period; and (b) revision of compensation if 'the property is kept under requisition for more than two years'.
The laws of land acquisition are administered by the Ministry of Land through the officers of commissioners at the divisional level and of deputy commissioners at the district level. Considering the importance and numbers of land acquisition cases in dhaka and some other divisional headquarters, a deputy commissioner is assisted in these areas, in addition to land acquisition officers, by an additional deputy commissioner (land acquisition). Ministry of Land issues executive instructions from time to time to ensure that deputy commissioners perform their functions properly and within the spirit and ambit of the law.
The government agencies that acquire lands often avoid devoting time and energy in making estimates for the actual amount of land required for the project(s) in hand usually, ask for a gross amount which is invariably more than what is actually needed. Land requirements are estimated by the concerned agencies unilaterally. The Land Allocation Committee that approves the land requirement at the district and national level lacks expertise in scrutinising the proposals. The committee also often is not allowed much time to do the scrutiny. Under these circumstances, the approval becomes a mere formality and is made casually.
It is hardly possible to ascertain the impact of land acquisition on a locality or its populace. With a population disproportionate to its land resources, Bangladesh can ill afford to use land recklessly in the name of development. Unfortunately, a casual approach is also noticeable in the matter of selection of project sites. Although there exists a Site Selection Committee under the chairmanship of the deputy commissioner in every district, the committee seldom visits the site. This often results in unsuitability of a project site and also situations like conversion of valuable agricultural land non-agricultural use and damage to environment.
Laws, rules and procedures for land acquisition in the plain land districts of Bangladesh do not apply in the chittagong hill tracts, which now comprise the districts of Rangamati, Khagrachhari and Bandarban. The region has been enjoying a special status since British days. Most areas of the hill tracts belong to the government either as reserve forests or as unclassified state forests. The sole instrument for the governance and administration of the hill districts in the 'Chittagong Hill Tracts Regulation 1900' (Regulation I of 1900) authorises the deputy commissioner to resume land, although settlements might have been made earlier. But the rules framed under the Regulation provided for payment of compensation. Later, Regulation I of 1958 was promulgated, authorising the deputy commissioner to acquire land which is not resumable under Regulation I of 1900. [Aminul Huq]
See also acquisition and requisition.
