Alluvion and Diluvion
Alluvion and Diluvion barring some hilly areas in the southeast and the rtheast, Bangladesh is the world's largest delta formed by three great river systems ganges/padma, brahmaputra/jamuna and meghna. These mighty rivers originating in the himalayas carry millions of tons of mud and sand every year on their journey to the bay of bengal. The bulk of the sand and mud get deposited in their meandering courses raising the river beds and forming chars or accretions along the course of the rivers and at their confluence. Since the torrential monsoon flow is unable to discharge itself through the inflated riverbed, it inundates vast tracts of land on both sides and swallows up the landmass on one side of the bank, and gradually and imperceptibly forms accretions on the other side. Erosion of the bank on one side and formation of char on the other are the recurring acts of the river systems. Such loss of landmass (diluvion) and formation of chars (alluvion) since time immemorial must have led to the growth of a body of usage and custom regulating the rights of ownership of such lands.
Because the rules of usage were 't being generally kwn', the courts of justice established in the early period of the east india company's rule found it difficult to determine the rights of litigant parties claiming ownership of char lands. In this context, the rules of usage were given statutory shape for the first time by promulgation of the Bengal Alluvion and Diluvion Regulation 1825. The regulation was t intended to introduce any new rule of law. On the contrary, it declared the supremacy and applicability of the rules of usage wherever a clearly established usage was available.
It was in the absence of such a clearly established usage that the principles contained in the regulation were to guide the courts in deciding the ownership of char lands. The regulation of 1825 covers broadly two categories of land re-formation: in situ and new accretions. The right to land once diluviated and subsequently re-formed in the old site and the right to new accretion are two distinct rights. The right of ownership of land re-formed in situ is considered to be incidental to one's title to a tangible property. It is t specifically provided in the regulation but is derived from the principle of justice and equity contained in the fifth clause of section 4. The underlying idea of the above principle declared by the Privy Council is that the right to property is t destroyed or affected merely because it goes under water. The owner of the diluviated land is deemed to be in constructive possession of the same during the period of its submergence and can claim back the same when it reappears out of water and is identified as such. Thus the right of ownership of the land re-formed in situ can be said to have been derived from the judge-made law.
The tenancy law, as contained in sections 17 and 18 of the Bengal Rent Act 1859, recognised the corollary principle that the tenant was liable to enhancement of rent in case of increase of area of his land by alluvion and he is entitled to a reduction of rent in the event of decrease of the area of land by diluvion. Similar provisions were made in section 52 of the bengal tenancy act 1885. By an amendment a new section, 86A, was inserted in the Bengal Tenancy Act providing that the tenant's right to the diluviated land would be deemed to have been surrendered or extinguished if he had obtained a reduction of rent. This provision was again amended in 1938 to provide for automatic abatement of rent in case of diluvion and ensured subsistence of his right to get back the land if it re-formed within 20 years of diluvion, twithstanding the abatement of rent.
In the east bengal state acquisition and tenancy act 1950, a specific provision regarding the law of accretion, which was so long being regulated by Regulation XI of 1825, was made in section 87. The provisions relating to abatement of rent for the diluviated land and subsistence of tenant's right to such land, similar to those of section 86A of the Bengal Tenancy Act, were incorporated in section 86 of the Act of 1950. On 4 August 1972, President's Order No. 135 was promulgated to provide that in case of diluvion the rent of the holding shall be abated and the tenant's right of ownership shall be extinguished and the land on reappearance shall vest in the government, except the land in respect of which the tenant's right to repossession was finally recognised by the court or competent authority before in situ, which was declared to have been founded on universal law and justice, and enjoyed the sanction of positive law from 1825, was abrogated. All char lands, whether re-formation in situ or new accretion, were declared to be khas lands. The position was again changed in 1994.
By the amending Act of XV of 1994 provision was made for abatement of rent in the case of land lost by diluvion and subsistence of the right to land re-formed in situ for 30 years, subject to the ceiling of 60 bighas. The present legal position regarding the right of ownership of the land re-formed in situ, as settled by the amending Act XV of 1994, is that the owner of the land once diluviated will get the land re-formed in situ if it reappears within 30 years of diluvion and land re-formed in situ after that period will be the property of the government. To facilitate identification of the owner, a certificate of abatement of rent from the revenue authority will be necessary.
All accretions other than those identified as re-formation in situ may broadly be of two categories, depending on the ownership of the riverbed. The Regulation of 1825, which was promulgated when the system of permanent settlement was in force, contemplated the existence of two types of rivers: (a) a small and shallow river, the bed of which with the jalkar right (right of fishery) was the property of an individual and (b) a large and navigable river, the bed of which was a part of public domain. Any char thrown up in a small and shallow river, the bed of which belongs to an individual, will remain in the ownership of that individual. This is based on the principle similar to the one, which guides the right of ownership of the land re-formed in situ.
With the abolition of zamindari system in 1956, all small and shallow rivers with the right of fisheries were acquired by the government and consequently, chars formed in such small and shallow rivers after 1956 would w be the property of the state. The right of ownership in respect of chars formed in a large navigable river or the sea, the bed of which is part of the public domain, was treated in the Regulation in three different situations.
The general law of ownership of accretion is that chars formed by slow and imperceptible means in contiguity of a person's land by recess of a river or sea will be considered as increment to the land of that person subject to payment of rent for the increased land. Such a char cant be claimed as re-formation in situ because it arises out of the public navigable river, which is t the property of any individual. When a char is thrown up in a large navigable river or sea and is separated from the shore by a channel, which is navigable by boat throughout the year, it will become the property of the state. But if the channel separating the char from the shore becomes fordable (crossable on foot) at any season of the year, such char will be considered as increment to the land, which is most contiguous to the shore.
The regulation also provides ather situation which in Roman Law is called Avulsion. This is made as an exception to the general law of accretion stated above. When a river by a sudden change of its course breaks through an estate without any gradual encroachment, or if the violence of the stream separates a piece of land from one estate and joins into ather estate without destroying the identity, such land on being clearly recognised will remain the property of the original owner.
This law of accretion as laid down in the Regulation continued in force till a new provision was made in section 87 of the State Acquisition and Tenancy Act 1950. Retaining the old provision of the regulation regarding accretion, it provides for an exception to the effect that the right to accretion will be limited to a ceiling of total holding of land and such right will t extend to accretions caused by any artificial or mechanical process as a result of development work undertaken by the government. On 28 June 1972, the riparian owner's right of accretion was also abrogated by President's Order No. 72 of 1972. The amended section 87 of the State Acquisition and Tenancy Act 1950, provides that accretions, whether from the recess of a river or sea, shall t be considered as increment to any person's holding but shall vest absolutely in the government.
A concession has been made in favour of persons whose right to accretion was finally recognised by a court or competent authority in respect of chars that appeared before the date of commencement of President's Order No. 72 of 1972. The present legal position is that all chars other than those re-formed in situ within 30 years of diluvion are the property of the state, which the government may settle in accordance with the rules. The act of forcibly taking and keeping control of accreted land is popularly kwn as char dakhal. An owner of diluviated land has the unfettered right to repossess the land re-formed in situ without any sanction from the government machinery. Similarly, the riparian owner has the right to occupy the new char, which slowly forms contiguous to his land. His only liability is to pay rent or taxes. This indefeasible property right is said to have been 'founded on universal law and justice' and codified in the Regulation of 1825. This encourages zamindars and other proprietors to grab by force any new char whenever and wherever it appears claiming the same as diluviated land re-formed in situ or contiguous accretion as the situation demands. The rival claimants are t slow in appearing with similar claims. The new chars are fertile lands and would yield handsome salami and new rents. The result invariably is the use of violence leading to riot and killings over the possession of char lands.
Initial possession obviously gives an advantage in the field as well as in law courts and muscle power almost rule the field whatever might be the legal niceties in favour of one or the other. Such a situation prevailing in the past led to the enactment of the Bengal Alluvial Lands Act 1920, with the objective 'to prevent disputes concerning the possession of certain lands in Bengal gained by alluvion or by dereliction of a river on the sea'. It provided that if the collector is credibly informed that a dispute likely to cause a breach of peace exists, or likely to arise in regard to any alluvial land, which in his opinion has recently formed, he may by an order in writing attach such land, demarcate it with boundary pillars, appoint a receiver to manage it, invite claims to such land, and after examination send the list of claimants to the district judge for determination of title of the claimants. On receipt of the order of the district court, the collector shall put the person certified to be entitled to the land in possession thereof. The collector should also cause a survey of the char and prepare a map, which will be presumed to be accurate until the contrary is proved.
This law is similar to the preventive action contemplated under section 145 of the Code of Criminal Procedure. It could be resorted to only when the collector is satisfied that a dispute likely to cause breach of peace exists or is likely to arise. This is t very helpful where someone has already taken forcible possession. Naturally, use of this law was few and far between and muscle power continued to prevail.
After abolition of the zamindari system, the situation was expected to improve. But this expectation was belied by actual events. Although zamindars were gone, the big land holders and persons who commanded money and political power stepped into the shoes of the erstwhile zamindars and continued to grab the char land as before. The most serious socio-ecomic impact of the recurring acts of diluvion is the instant loss of land and home suffered by thousands of peasant families every year.
Suddenly, they find their homesteads, lands and means of earnings gone. Persons affected by land acquisition get compensation and sometimes a scheme of rehabilitation is included within a land acquisition project. But in the case of land and home by diluvion, the affected persons get thing. They are forced to take shelter on the roadside land, embankments, and vacant spaces in the towns and cities forming bustees (slums), which create environmental hazards and other related problems.
Having lost everything, they become desperate elements in the society, ready to resort to any crime. These proletariats become easy prey to ambitious political leaders and musclemen of the locality who use them for furtherance of their interests. They are used in taking forcible possession of new chars in return of a promise of extending political support in obtaining allotment of land as landless cultivators. The real weakness of the law is that survey of the char can t be made immediately after the appearance of the char and in absence of map to be prepared after the survey, it is t possible to determine whether the char is a re-formation in situ or a new accretion. Taking advantage of the delay in the diara survey and preparation of map and determination of the nature of the new char, the local elite take possession of the char land and grow crops on the basis of money receipts issued from the revenue office. Rival parties also obtain money receipts, manufacture documents and cut away the growing crops. Attempts made to prevent riots and violence by establishing police camps during the crop cutting season have t proved to be effective.
The amendment of 1994 is intended to make an improvement of the situation in so far as initial responsibility of taking over possession of the char land has been given to the collector, who, after survey and preparation of map, will allot the lands re-formed in situ to the persons whose lands were diluviated. Success of this measure depends upon the ability of the relevant government machinery to conduct survey and prepare maps immediately after appearance of the char and to take over possession of the same twithstanding political pressure. [Aminul Huq]