The Saga of Vested Property:

“Fokka Fokka, Naire Naire Na, Taire

Naire Na”

S M Masum Billah
PhD (VUW)

Professor of Law

Jagannath University

billah002@[Link]

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 Minority Rights
2  Widely held official misconception that
Bangladesh is a Homogenous Nation-
state

 Reality: multi-religious, multi-ethnic,

multi-lingual

1. Religious Minority = Hindu, Christian,

Buddhist
2. Ethnic Minority = Indigenous Peoples
 Enemy Property Act

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Hindustan = Enemy ‘stan’ (place)
Hindu = Enemy
Hindu residing anywhere = Enemy
Hindu in Pakistan = Enemy
Hindu in East Pakistan = “Key” Enemy

Enemy Property Act, 1965

Vested Property Act, 1974

 Legislative History
Requisition of Property Act, 1948

Evacuees Acts, 1949-57

Disturbed Persons Rehabilitation Ordinance, 1964

Defense of Pakistan Ordinance, 1965 Defense of Pakistan Rules, 1965

The Enemy Property Custody Rule 119 framed under the Defense of Pakistan
and Registration Order, 1965 Ordinance, 1965 Requisition of Property
The East Pakistan Enemy Property Order, 1966

The Enemy Property (Continuance of Emergency Provision) Ordinance, 1969

PO 29, 1972

The Enemy Property (continuance of Emergency The Vested and Non-Resident Property
Provision) Ordinance (Repeal) Act - 1974 (Administration Act–1974)

The Enemy Property (continuance of Emergency The Vested and Non-Resident (Administration)
Provision) (Repeal) (Amendment) Ordinance, 1976 (Repeal) Ordinance, 1976)
Memo No.667(18)-VP-115/76, Dt.23-4-1976 of Ministry Vested Property Return Act, 2001
of Land, Administration and Land Reforms (Act XVI of 2001)
Circular No.1A-1/77/156 R.L. Dt.23 May, 1977, Vested Property Return Act (Amendment),
Land Administration and Land Reforms Division 2002, 2011, 2013
Circular [Link].4 Nov., 1993, Ministry of Law Memo Dt. March 15, 2007, Ministry of Land

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5
 Missing Hindu Population during 1971-2001(in million)

Hindu Population 19.5

without missing
16.5
14.3
11.4 Missing Hindu Population

11.2 11.4
10.6
9.6 Hindu Population
in Census

1971 1981 1991 2001

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Techniques of Grabbing
1. Influentials/opportunity-seekers and Land Office Holy Unison:
Pro-active role for getting lease
Forged documents
By force, by attacking with lethal weapons, guns – deploying hooligans/gangsters; or by
compelling the owners to vacate the house or out-migrate under threat or continued efforts of
frightening the victim
Allured the sharecroppers to occupy the land, and then themselves became the owners.
2. Officials of Tahsil office and/or Thana Revenue Office themselves were
interested in grabbing the property.
3. Death and/or out-migration.
4. Reasons not known.

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Amount of vested land with grabbers/beneficiaries
by political affiliation, 2006

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 The Depth of Deprivation
Powerlessnesss
rising discrimination, exclusion from
participation in nation-building, obstruction in
exercising voting rights, non-cooperation from
power structure, constant threat from land
grabbers and their allies

Vulnerability
Isolation
forced out migration, “look down” status,
breaking of family ties, losing permanent threat, communal disharmony, object
interest in participation in socio- of plundering-extortion-looting-harassment,
cultural activities, declining obstruction in performing religious practices,
social standing, rising mistrust violence against women, eve teasing, obstruction
in harvesting crops

Poverty
economic hardship, consumption Physical Weakness
poverty, landlessness, shelterlessness,
low price of Hindu land, declining ill health, mental breakdown, agony
financial strength and anxiety, physical assault

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To what extent the
State owned the
property?
1. Ananda Mohan Kundu v Province of East Pakistan (1968) 20 DLR
(HCD) 976:
“Custodian”, “protecting the enemy properties from being utilized in any
manner for the benefit of the enemy or in the interest of the enemy state and
to the prejudice of Pakistan.”

2. Benoy Bhusan v SDO, B Baria:

◦“Gives no larger right than that of protection and management of the
property”.

 After the emergency or war, the property should rebound to the

owner.

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Contd.
1. Bangladesh Enemy Property Management Board v Abdul Majid, 27
DLR (AD) (1975) 52:
◦ As the idea of vesting enemy property continued by the 1969 Ordinance, so
new properties could be taken over as enemy property under this Ordinance,
notwithstanding the lifting of emergency.

2. Dulichand Omraolal v Bangladesh 33 DLR (AD) (1981) 30:

◦ Revversed Abdul Majid, saying after revocation of emergency there cannot
be any supposed state of war or military operations which may be said to
exist in the eye of law, however, controversially held that “no formal order
required to take over enemy property if it would fulfil the criteria prevailed
under 1965-1969 period.

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Sunil Kumar Ghosh v The State 39 DLR (HCD) (1987) 377, ineffectively
said against Dhulichand:
◦ If during emergency there was no appropriate order of vesting under Rule
182(1)(b) of the Defence of Pakistan Rules, no order of vesting or no step for
taking over such property could be made after the state of war ends.

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1972-1975: What
Happened?
Laws Continuance Enforcement Order 1971: “all laws that were in force in
Bangladesh on 25 March 1971, shall subject to the Proclamation [of
Independence] continue to be so in force.”
Thus, in order for Ordinance 1 of 1969 to continue in force in independent
Bangladesh it needed to be consistent with the spirit of the Proclamation
of Independence. Clearly from that perspective, Ordinance 1 of 1969
remained ineffective in the newly created Bangladesh.
An administrative letter dated 6 January 1972 noted the problems of
returning of enemy properties. Because, many innocent occupants were
being evicted.

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Contd.
Circular on 1 February 1972: As there was no policy for restoring the
properties, unless a policy is made Ordinance 1 of 1969 should continue
by virtue of the Laws Continuance Enforcement Order 1971.
It was merely for the purpose of ‘administration’ of enemy properties
and it did not encourage new enlisting of enemy properties.
This circular had importantly mentioned that the government was
soon to formulate a policy for restoration of enemy properties to the
original owners and pending such policy, status quo should be
maintained so that no one could illegally occupy enemy properties.

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Contd.
Bangladesh (Vesting of Property and Assets) Order (PO 29 of 1972):
◦ Should have ended the effect of 1969 Ordinance.
◦ All properties situated in the former East Pakistan, which had previously
belonged to the Pakistan government became vested in the Government of
Bangladesh.
◦ Thus, the term vested appeared in the scene formally.

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Why the return was
necessary?
Two arguments:
1. Pakistan govt did not own the property fully, so Bangladesh govt also
did not get larger right over those properties than that of the Pakistan
government.
2. Owners of “enemy properties” were not the enemy of Bangladesh
government.
24 October 1972 Circular sadly denied this arguments, saying: “the
process of detecting and taking over possession of enemy properties’
would continue as before, under the same authority given in article 5 of
the 1966 Order.

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Two developments in
1974:
1. Enemy Property (Continuance of Emergency Provisions) (Repeal)
Act, 1974: Repealed the 1969 Ordinance and expressly said that
properties taken under 1969 ordinance will vest in Bangladesh
government.
2. Vested and Non-Resident Property (Administration) Act 1974: Dealt
with regulation and management of the properties.
 The first one was not necessary as already the 1969 came to an end.
So, it confused people as to whether the 1969 law had operated
from 1972 to 1974. The latter, however, stopped new enlisting and
assured releasing property taken after the 1974 Repeal Act.

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Gen Zia: 1976-1982
Vested and Non-Resident Property (Administration) (Repeal)
Ordinance 1976: Repealed the Vested and Non-Resident Act.
Along with this, came the Enemy Property (Continuance of Emergency
Provisions) (Repeal) Amendment Ordinance of 1976: Triggered the
state-sponsored illegalities under the guise of enemy properties.
Rahima Akhtar and others v Asim Kumar Bose and others 40 DLR (AD)
(1988) 23: By this amendment ‘the entire complexion was changed’ and
the government had become the ultimate authority to dispose of the
properties in any manner as if the rights of the original owner had
elapsed.

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Contd.
1976 Govt Circular:
◦ Annulled government’s earlier decision to release property
◦ Provided that the government had the authority to take over possession of
enemy properties even after the Repeal Act of 1974
◦ Misquoted the decision of Abdul Majid stated earlier.

1977 Circular:
◦ Guidelines on how to lease property
◦ How to enlist new property
◦ long-term lease of vacant non-agricultural lands to any ‘deserving person’—a
vague term.
◦ Tahsilders got absolute authority over dealing with such enemy properties
and awarded if they can discover ‘concealed vested property’.

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Contd.
Bakul Rani v Bangladesh, 31 DLR (HCD) (1979) 343:

Revealed that the application for granting lease of a property was accepted
long before the property was declared as enemy property and on the very
day when the property was declared as ‘enemy’, the Hindu owners were
evicted from that land and the applicant of the lease was inducted into
possession. More so, the same applicant was granted the lease one year
after getting into possession.

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Gen Ershad: 1982-1990
Disposing of enemy properties continued with the same vigour without
making any distinction.
On 17 July 1983, a cabinet decision was issued which ordered speedy
disposal of all enemy turned vested properties by the month of December
of that year.
By this time the question of restoring the enemy turned vested properties
to their original owners had become almost a forgotten issue; instead, their
immediate disposal was treated with utmost priority.
Following this cabinet decision, a detailed instruction was issued by the
Board of Land Administration
Speedy disposal of enemy properties reinforced the authority of the union
and district level land officers to further ‘identify, detect and declare’
properties as vested.

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Contd.
Amidst protest, on 31 July 1984, General Ershad promised the
representatives of the Hindu community that the government would
stay all proceedings relating to disposal and new enlistment of vested
properties.
Accordingly, on 23 November, 1984 by an administrative order all such
proceedings were stayed from the date of 21 November 1984.
However, this pledge was not ‘materialised subsequently’.

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K. Zia: 1991-1995
With the change of regime in 1991, the BNP administration instead of
requiring the properties to be returned to their rightful owners,
emphasised on the need to keep the properties under government’s
effective control.
In a circular dated 8 June 1993, the government’s concern was
expressed over losing possession of many vested properties and noting
the loss of income that resulted thereby.
Again in a circular dated 4 November 1993,vested property
committees were formed at the district level to examine and amend the
existing census list of vested properties. This circular yet again made
provisions for ‘concealed vested properties’ and required the committee
to inform the government on any such finding.

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Sk Hasina: 1996-2001
AL’s election promise.
On 3 September 2000, the then Prime Minister Sheikh Hasina, in a regular
meeting of the Cabinet of Ministers, took the decision to return the vested
properties to their original owners.
In order to materialise this decision, a five-member cabinet committee was
formed to formulate a draft law for restoration of ownership of the vested
property, which submitted the final draft of the Vested Property Return Act
on October 22nd, 2000.
On 8 January 2001, the Cabinet approved the draft of the ‘Vested Property
Return Bill 2001′ as recommended and amended by the Cabinet Committee.
The bill was placed before the National Parliament on 29 March 2001, and
on 11 April 2001, the Bangladesh Parliament passed the Vested Property
Return Act

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2002-2019
Primarily did well, but faced many problems.
BNP made amendment to foil the purpose.
Made no time limit to publish the list of returnable properties.
A number of further amendments had been brought to the Act in
2011, 2013 in response to the plea of the minority rights activists.
However, these amendments had mostly dealt with procedural issues
without touching upon the real question of legality or effectiveness of
the entire process.

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 Highlights of Present Law
 Return of vested properties to their owners
 Properties that will not be included in the list of returnable
properties
 Handover of enlisted properties are prohibited
 Publication of the list of vested properties
 Application for return or release of vested property
 Implementation of decree
 Rules for temporary lease of returnable properties
 Rules for return of public welfare properties
 Tribunal and Appeal Tribunal
 Rules for property not claimed
 Claims for compensation due to vesting of property and
other claims are prohibited
 Protection for activities done in good faith

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 Criticisms
Prottarpon v Obomukto/Ferot
Not all laws are vested property laws.
Not all properties are returnable.
The returnable list suffers the procedural jolt (KA Schedule), whereas the properties not in
control of the govt remained as it was (KHA Schedule).
Makes a big exclusion list (for example, permanent leased out property, public charity etc).
No civil suit against the list of returnable property.
No publication of total vested property. Not re-estimated, time over.
Virtually a civil suit, a lengthy procedure, Tribunal and Appellate Tribunal. Courts are already
overburdened.
No actual return so far, since 2001.

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 Further:
Not only legal but also a socio-psychological issue.
1 lakh 62 total VP cases, 10 thousand disposed with no return.
Res-sub judice/Division of jointly owned property.
Partial abetment of the case, then how to decide.
Phase by phase intervention.
Compensation.
Study.
Address the problems of laws.
Equip and sensitise administration.
Implement HCD’s directions of 2018.

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VP is a Stigma in the
Forehead of Our
Constitutionalism
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