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Vested Property


Vested Property known in Pakistan as 'enemy property' during 1965-1971. On 6 September 1965, Pakistan proclaimed a state of emergency by the Defense of Pakistan Ordinance at the outbreak of war with India. In exercise of the powers conferred by the ordinance, the central government of Pakistan promulgated on the same day the Defense of Pakistan Rules. According to the rules, the Governor of East Pakistan passed an order on 3 December 1965 regarding enemy property, which included all lands or buildings and all moveable properties defined as per the Defense of Pakistan Rules, exclusive of those managed by the Court of Wards, and those in respect of which transaction for exchange as contemplated in the Transfer of Property Act 1882 was made before 3 December 1965. Permission for such exchange was granted by the appropriate authority under the East Pakistan Disturbed Persons (Rehabilitation) Ordinance 1964. Properties not connected with any 'enemy firm' as defined in that rule, were to be vested in the deputy custodian of Enemy Property (Lands and Buildings) with effect from the date of this order. No person could transfer any land, building or movable property so vested in the deputy custodian, by sale, exchange, gift, will, mortgage, lease, sub-lease or any other manner or transfer land, building or movable property from this date.

According to the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order 1966, the custodian and the deputy custodian were empowered to manage and protect the property by granting lease on an annual basis. However, with the lifting of emergency on 16 February 1969, the Defense of Pakistan Ordinance and the Defense of Pakistan Rules lost their validity. But to provide for continuance of certain provisions of the Defense of Pakistan Rules relating to the administration of enemy property, control of trade with an enemy firm, the Enemy Property (Continuance of Emergency Provisions) Ordinance was promulgated on the same date. The ordinance was in effect till the emergence of Bangladesh in December 1971. The director of Land Records and Surveys, East Pakistan, was appointed deputy custodian; the deputy commissioners as assistant custodians; and later, the additional deputy commissioners (Revenue) and the subdivisional officers were also appointed assistant custodians.

On 14 March 1966, the deputy custodian (Land and Buildings) issued a memorandum containing detailed instructions for taking over enemy property (Land and Buildings) and their management. It also contained instructions for locating enemy property (Land and Buildings), taking over possession, and leasing out the same for a period not exceeding one year at a time. It was clearly directed that the assistant custodians should not transfer or otherwise dispose of the property so taken possession of, without the previous approval of the provincial government. The assistant custodian was to maintain a separate account for the enemy property under his management and to submit a return showing the progress of the lease or disposal of the same.

Several other circulars and instructions were issued by the deputy custodian from time to time for maintenance and management of the enemy property between June 1967 and August 1970. These were: Taking over requisitioned enemy property (Land and Buildings), 20 June 1967; Disposal of movable enemy property on enemy land and buildings, 1 May 1968; Instructions on maintenance and management of enemy property (L&B), 5 June 1968; Management of the property owned by Indian Muslims, 26 June 1968; Lease of enemy property and payment of government dues thereof, 4 July 1968; Taking over debottor property by the custodian, 25 March 1970; and Renewal of lease of urban and non-agricultural enemy property (Land and Buildings), 15 August 1970.

With the emergence of Bangladesh, the law relating to the administration of enemy property continued in force by virtue of the Laws Continuance Enforcement Order 1971. The President of the country then promulgated an order, namely, Bangladesh (Vesting of Property and Assets) Order 1972 on 26 March 1972, under which 'all properties and assets which were vested in the government of Pakistan or any officer appointed by such government or were vested in or managed by any Board constituted by or under any law or in the former government of East Pakistan shall be deemed to have been vested in the government of Bangladesh on and from 26 March 1971'.

A number of memoranda were issued by the deputy custodian, Enemy Property (L and B) for management and control of enemy property since January 1972. Notable among them are: Requisition/acquisition of enemy property (L and B), 18 March 1972; Leakage of enemy property (L and B) under the cover of decrees from the civil courts, 28 August 1972; Management of enemy property (L and B) and taking over possession thereof, October 1972; Release of property from the schedule of enemy property (L and B), March 1973; and Management of enemy property, 25 February 1974.

To repeal the Enemy Property (Continuance of Emergency Provisions) Ordinance 1969 and to provide for matters connected with such repeal, the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act 1974 was passed. This received the assent of the President on 1 July 1974. This Act was amended on 27 November 1976 by the Enemy Property (Continuance of Emergency Provision) (Repeal) (Amendment) Ordinance 1976. The government, or any officer or authority as directed by the government, was empowered to administer, control, manage and dispose of, by transfer or otherwise the enemy property or enemy firms known as 'vested property'. On 23 May 1977, the Land Administration and Land Reforms Division of the government issued a circular containing instructions for administration, management, and disposal of vested properties in relation to lands and buildings. The circular contained as many as 38 paragraphs divided into four parts. Part II of the circular described vested properties in relation to land and buildings as agricultural land, vacant non-agricultural land, house properties (kutcha/pucca in rural and urban areas); shops, godowns etc, orchards, etc; tanks, ponds, beel, danga, etc; and moveables and any other properties attached or fastened to a vested property.

Detailed instructions were issued in the circular for management of different types of vested properties. There were provisions for appeal against the orders of the sub-divisional officers, additional deputy commissioners (revenue) and the divisional commissioners. Release of vested agricultural land involving an area not exceeding 5 bighas on the ground of wrong enlistment, or for any other valid reasons, required the approval of the divisional commissioner.

The Land Administration and Land Reforms Division of the Ministry of Law and Land Reforms issued a memo on 13 September 1982 containing policy for disposal of vested/abandoned properties under the effective control of this division. Some policy issues were as follows: (a) Houses used for accommodation of government offices and residence of officers and staff which were in good maintainable condition would be retained and handed over to the Ministry of Public Works for maintenance; (b) Dilapidated and kutcha houses and houses not required by the government would be offered to the existing lessees at an evaluated price, provided they or their dependants had no house or plot of land in any urban area; (c) Vested vacant land in urban areas not required for any public purpose would be settled on a long-term basis with institutions like schools, colleges, madrasahs, mosques etc. Vacant urban land suitable for residential use would be handed over to Town Development Authorities like Dhaka Improvement Trust (DIT, later renamed RAJUK), Chittagong Development Authority (CDA), Khulna Development Authority (KDA), Rajshahi Development Authority (RDA) or Housing Settlement Directorate for development and distribution for residential use in accordance with the policy of the government; (d) No urban vested property, whether house or vacant land, should be disinvested, sold, or leased out on long term basis without prior approval of the government; and (e) Vested agricultural land not affected by civil suits or otherwise disputed and in effective control of the government would be settled to bona fide landless or near landless cultivators in accordance with the rules and orders applicable to government khas lands. In a meeting of 17 July 1983 presided over by the Chief Martial Law Administrator, the cabinet ministers had resolved that all vested properties should be disposed of by December 1983.

The Board of Land administration was constituted by the government as per the Board of Land Administration Act 1981 to deal with: management and supervision of vested properties (Land and Buildings) including appeals, revisions etc in connection with lease of vested properties and release thereof, disposal of all proposals or prayers for release of vested properties and establishment matters relating to vested properties.

The Board of Land Administration issued a memo on 5 December 1983 on the 'Instruction for Disposal of Vested Property - Powers of Various Committees'. The government approved formation of committees for disposal of vested property at upazila, zila and division levels. Powers of the committees in approving valuation of property and disposal thereof were indicated. Valuation of land was to be assessed on the basis of average sales price of the preceding 12 months of similar land of the same locality. The valuation of the structure was to be made on the basis of the rate provided by Public Works Department. The upazila, zila, and divisional committees, the Board of Land Administration, and the Land Administration and Land Reforms Division of the government were empowered to approve valuation up to Tk 0.75 million, Tk 1.5 million, Tk 3.0 million, and above Tk 3.0 millions respectively. The Upazila Nirbahi Officer was empowered to execute deeds and deliver possession in respect of properties, which the upazila committee was empowered to dispose. In other cases, the collector was to execute deeds and deliver possession.

While steps for disposal of vested properties were under way at different levels, the President of the People's Republic of Bangladesh issued an order to stop disposal and fresh enlistment of vested property by an announcement on 31 July 1984 in the conference of the representative of the Hindu community held at Shilpakala Academy, Dhaka. In pursuance of the announcement of the President, the Ministry of Land Administration and Land Reforms issued a memo on 23 November 1984 reiterating that disposal of vested property and further enlistment of any property as vested would stop on 21 June 1984, and that any action taken in contravention of the announcement of the President should be treated as cancelled. Accordingly, all actions regarding disposal of vested property in relation to land and buildings were suspended.

The Memo of the Ministry of Land Administration and Land Reforms issued on 29 December 1984 declared that vested properties under the effective control and management of the government managed, leased out and leased granted previously should be renewed on an annual basis as per rules, and that the existing lessees should not be disturbed, if they paid their dues regularly and they observed the terms and conditions of the lease, and that no eviction order should be passed without proper local verification. The procedure of 'eviction from vested property, census list and release of vested properties' were elaborated in the memo of the Ministry issued on 6 August 1988. On 23 May 1989, the Ministry of Land issued the Memorandum for management and supervision of vested/non-residential properties and for control, overall management and supervision of the concerned staff. According to another memo issued in February 1990, The Ministry of Land (MOL) will control the budget, release funds, control expenditure and deal with other matters concerning vested properties, and the Divisional Commissioner will appoint vested property lawyers with the approval of the Ministry, will pass orders for release of agricultural land up to 10 bighas, and will take final decision in leasing out vested property on an annual basis, except in Dhaka City, where the lease will be approved by the Ministry. The memo issued on 22 March 1990 noted that management and supervision of vested/non-resident properties and appointment, transfer of concerned officers and staff, and departmental and administrative actions against them, would be the responsibilities of the deputy commissioners and the divisional commissioners at their respective levels, and the Ministry would take actions on matters out of the jurisdictions of the divisional commissioners.

A memo issued on 4 August 1990 directed deputy commissioners to forward proposals for release of vested properties to the Ministry of Land along with acceptable papers and documents and specific comments/recommendation of concerned officers, like the assistant commissioner (land)/circle officer (revenue), the upazila nirbahi officer, vested property lawyers, the revenue deputy collector and additional deputy commissioner (revenue) at their respective levels. A prescribed form was to be filled in and forwarded by the additional deputy commissioner (revenue) with his specific comments and recommendations.

In fact, following the presidential announcement on 31 July 1984 stopping disposal of vested property, the action of the government centred round management of the enlisted vested property and their release as and when agitated by some individual persons. No effective step was taken to resolve problems that arose with the property. Even the enlistment process could not be accomplished properly.

As part of the land reforms campaign, the Ministry of Land constituted a Task Force with a deputy secretary and an assistant secretary as the convenor and member secretary respectively. The terms of reference of the Task Force included identification of all vested properties (L&B) and abandoned property in the Dhaka City, preparation of list of trespassers, preparation of a full list of arrears of rent and other related matters.

Leasing of vested property, renewal of lease, and eviction from vested property were suspended till the completion of the work of the Task Force. The government, however, issued a memo on 1 June 1989 revoking the ban on renewal of lease and eviction from vested property on certain conditions. The report of the Task Force noted that, among other things, 1,722 holdings of vested property, covering 125 acres of land, were in possession of trespassers and ownership claimants and that 1,599 holdings not enlisted as vested property were found fit for taking over as vested property.

The Task Force was abolished on 2 May 1995. There was no scope to enlist any more property as vested in contravention of the announcement of the President on 31 July 1984. The Ministry of Land decided to proceed under Section 92 of the east bengal state acquisition and tenancy act 1950 for taking over management of the lands and buildings under illegal and unauthorised possession of trespassers. To ascertain the actual legal position by giving hearing to the claimant/possessors, the government constituted high powered committees, consisting of senior civil servants, including a retired secretary of land, a retired chairman of the Board of Land Administration and a retired director general of Land Records and Surveys. Revisional Settlement Operations were to be corrected according to the recommendations of the committee. However, the collector and additional deputy commissioner (revenue), Dhaka could not implement the decision of the government, as there was a change in the government in 1996. [Shamsud-Din Ahmed]