Law and Practice for Land Acquisition in Bangladesh

Introduction:

In modern time, Infrastructural developments are growing up day by day. For infrastructural developments, the main ingredient is land. But, if we look upon the present situation of the owner of the land specially those who are farmers, they suffer a sorrowful situation because of acquisition of land. Article-42 of our Constitution provides the fundamental right for right to Property, Article-42(1) provides some privileges but 42(2) impose some of the restrictions. Acquisition of the private land by the government for the public purpose is the first condition for infrastructural development. The acquisition of private land has to be done by following rules set in relevant laws. However, in practice the scenario is quite different as various irregularities are happening in the process. This study attempts to find out the dissimilarities between law and practice in this regard.    

We don’t forget the condition of the farmer or the owner of the land whose land is acquired. On the other side if we look upon the process of land Acquisition in Bangladesh, then, we see the real scenario of it. The owner of the land doesn’t get the proper compensation for the land. And some of the bureaucratic problems are also available here.

Acquisition and Requisition of Immovable Property:

For the purpose or the interest of the public, the Government can acquire other’s property by paying compensation. It may be for the temporary or permanent basis. If it is taken over for permanently but afterward if it is not used, the government does not bind to return it. However, lands used for graveyards, places of cremation, religious or educational instructions are usually not taken over.

On the basis of duration, taking over is of two kinds

(a) Acquisition and

(b) Requisition.

Acquisition of Land in Bangladesh:

Government, non-government or semi-government private agencies or departments carry out development works for the purpose or interest of public. Development works may be carried out in their own lands or in lands taken over by the government with due compliance of some definite processes or rules. This process is generally called as acquisition of land. Development works are generally permanent nature and are carried out directly or indirectly on or over the land which is taken over by way of acquisition. the newly enactment Act, The Acquisition and Requisition of Immovable property Act, 2017, Section 2(1) defines the term as follows:

“Acquisition means acquiring the ownership and possession of any immovable property for any requiring person or organization in exchange for compensation or rehabilitation or both.”

Acquisition procedure under the Acquisition and Requisition of Immovable Property Act, 2017

The purpose of an acquisition and requisition law is to empower the acquiring authority to acquire land only for a public purpose affecting proprietary right of citizens. Article 42(1) of our Constitution states subject to any restrictions imposed by law, 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.’ The idea of this provision is that a citizen shall not be deprived of his land otherwise than in accordance with law and if he is deprived of for public purposes, compensation at the market rate is given to him. No beneficial object of the acquisition can exonerate the government from the restrictions imposed by law and payment of compensation at the market rate. Further, the law is required to be expounded liberally in favor of the citizen whose land is acquired and strictly against the Government. When constitutional rights of an exceptional character have been created the conditions prescribed by the statute for exercise of such rights should be strictly fulfilled.

However, once compensation has been paid there remains no right in any person to get back the land acquired. Property validly acquired and vested in the requiring body cannot be claimed by the original acquisition.

 In 2017, the parliament of Bangladesh has passed the Acquisition and Requisition of Immovable property Act, 2017. This is basically an update of the Acquisition and Requisition of Immovable Property Ordinance-1982.

 Shamsur Rahman Sherif, Land Minister, on 10 July, 2017 introduced the Acquisition and Requisition of Immovable Property Bill, 2017” in the Parliament. The bill has annulled of the Acquisition and Requisition of Immovable Property Ordinance, 1982 for updating provisions of newly enacted law. The land minister told parliament that the present law lacked the provisions of providing a justifiable return to the people affected by the acquisition.

The new law states that lands of worship can also be acquired now only if it is indispensable in public interest. The bill proposes increasing compensation of the affected people as the previous law lacked the provisions. The new law provides for an additional 200 percent compensation on the market rate if any land is acquired for the government project and the compensation will be an additional 300 percent if the land is for any non-governmental organization. It also provides for the appointment of joint district judge level officials as the arbitrator in this type of cases. But the appeal, if there is any, will be heard by district judge level officials.

It is necessary to mention that under section 50 of newly enacted Act any act done or any measure taken under the foregoing Ordinance shall be deemed to be done under this Act. Further, all notices, notifications, orders, compensation or award made under the previous ordinance shall be deemed to be made under this Act, and all applications and appeals pending before any authority, Arbitrator or Arbitration Appellate tribunal under the previous ordinance shall be continued as if this Act had not been promulgated.

Land Allocation Committee:

Before the Act of 2017, the authority of the Ordinance of 1982, there were two levels or land allocation committee dealing with the acquisition of land, namely, the upper Land Allocation Committee and the lower Land Allocation Committee. Any rule or manual has been gazetted after the newly enactment Act. So, it can be said that when there is no conflict between the new Act and the previous rule or manual, the previous rule can be followed until there is a new gazette notification from the Government.

The upper Land Allocation Committee is at the national level and consists of 22 members headed by the Minister of Land. The lower Land Allocation committee is at the district level and consists of 10 members headed by the Deputy Commissioner. The areas included within the jurisdiction of the upper Land Allocation Committee are: City Corporation of Dhaka and its vicinity, City Corporations of Chittagong, Rajshahi, Khulna, Barisal, Sylhet, Rangpur, Narayaganj and Comilla.

Without those areas, all areas of each district are included within the jurisdiction of the District Land Allocation Committee.

The acquisition law gives the Deputy Commissioner power to acquire property situate either in the central zone or in district zone in two likely situations. At first, if the property is needed and secondly, if the property is likely to be needed. A property is either needed or it is likely to be needed for public purpose or public interest, but while acquiring a property the Deputy Commissioner cannot keep both the alternatives in his pocket. He has to choose between the two, if he keeps both the options open, then he does not know whether the property is needed for immediate use or it likely to be needed for some future use. The use of both these alternative ways in the notice under section 3 [of the 1982 ordinance] is indicative of a lack of application of mind and the notice under section 4 is liable to be struck down on that ground as well.

When any action is taken or proceeding is initiated with mala fide intention without formation of any opinion as to the purpose of the acquisition the entire proceeding should be vitiated and, as such, the acquisition proceedings should be declared to be without any lawful authority.

Application for Acquisition:

According to 1982 Ordinance, a person or organization has to apply to the Ministry of Land for land situated within the jurisdiction of the upper Land Allocation Committee or to the Deputy Commissioner concerned for land situated within the jurisdiction of the District Land Allocation Committee. or the acquisition proposal of the requiring organization whether government semi government of autonomous, five copies of the following documents have to be submitted:

•  Approval from the concerned ministry
•  Requirement Certificate
• Layout plan
• Alignment shown in red ink
• Schedule of land
• plot numbers of the proposed land
• No objection Certificate from the City corporation (If applicable)
• Letter covering allocation of the budget for acquiring
•  Old establishment would be surrendered if acquisition take place for new establishment
• Letter detailing the works 

For the Acquisition proposal of the non-government requiring body or organization, five copes of the following documents have to submit:

• Letter covering objective of the proposed project, source of its fund and undertaking of the financial institution funding
• Minimum Requirement Certificate
• Layout plan
• Alignment shown in red ink
• Agreement with the government in Form-G on Non-Judicial Stamp of TK 150
• Plot numbers of the proposed land
• No Objection Certificate from the City Corporation where applicable
• Letter detailing the project.

Proceedings of Land Acquisition in Bangladesh:

If the proposal of acquisition is from the governmental, semi-governmental or autonomous body and passes all the tests, the Deputy Commissioner will start acquisition proceedings. However, section 4(2) of the newly enactment Act provides that in case of acquisition of immovable property for any non-governmental person or organization whatever be the quantity, prior sanction of the government must be taken before the starting of the acquisition proceedings.

The proposal of the requiring body or organization, be it governmental or any non-governmental person or organization, approved by the upper or lower Land Allocation Committee or by the Ministry of Land wherever application has to be entered in the register separate with a separate file for each proposal with number/s. Under section 4(1) of the Act of 2017 a preliminary notice has to be published at the well-known places on or near the property proposed to be acquired.

The Deputy Commissioner, under sub section (1), before the serving of notice, in the prescribed manner and form, shall record the real nature, condition and infrastructures built therein, crops and trees of the proposed immovable property in video or still picture or any other technology and thereafter prepare a report accordingly. This statutory provision has actually covered the previous proactive of forming the land allocation committee, application to the Committee and field verification.   

After the serving of notice, in the prescribed manner and form, the Deputy Commissioner shall prepare a joint list of requiring persons of organizations and persons interested. If the nature of land is changed in reality from its recent record of right, the Deputy Commissioner, at the time of preparation of the joint list, shall decide about the change of the nature of the land. The Deputy Commissioner shall mention in the joint list, in the prescribed manner, if any house or infrastructure in built or is being built in the proposed immovable property for acquisition, in contravention of public purpose for illegal gain.

The term purpose for obstructing the implementation of section means of purpose for obstructing the implementation of the project, creating hindrance or doing anything that retards the implementation of a project or doing something to get monetary benefit by compensation.[1]

The list prepared sub-section 3(b) of this Act shall be affixed in the notice board of the local land office and in the convenient place of the project. The Deputy Commissioner shall not record the change of the nature of land in the joint list, if after the initiation of proceeding under sub-section 3 (a), the nature of the land is changed by building houses or infrastructures in bad motive.[2]

Previously under the 1982 Ordinance and the Rules framed there from, within 3 days of serving the notice, the representatives of the Deputy Commissioner and the requiring body or organization require starting the field verification and preparing field verification book with the following columns:

• Serial. No.
• Plot No.
• Class
• Amount of the Land
• Name of the Owner
• Particulars and Numbers of the Houses
• Particulars of the Ponds
• Particulars of the Trees
• Particulars of the Crops
• Particulars of the Standing Crops
• Other important information
• Important Remarks.

Section 10(f) of the Act says that after serving the notice any alteration or improvement in, or disposal of, the property to be acquired, made or affected is of no effect.

If any person is not satisfied by the decision of the Deputy Com­missioner under 4(7) of the Act, he may apply to the Commissioner within the next 7 working days. The Commissioner, in the prescribed manner, shall hear the hearing under sub­section 8 and shall provide with the decision within next 15 working days and in case of a important project, shall provide with the decision within the next 10 working days. The decision of the Commissioner under sub-section 9 shall be deemed to be final.

If there is any disposal of dispute under sub-section 9 or no appeal is preferred within the prescribed period in sub-section 8, within the next 24 hours, the concerned persons shall in his own cost remove the houses or infrastructures from the proposed immovable property, otherwise the Deputy Commissioner shall take steps to eradicate those in accordance with the concerned of law.

The Deputy Commissioner may, after choosing the place for important project, by order, impose restrictions over the sale of plots and building of infrastructures thereon. Mainly religious places, graves or crematoriums cannot be taken into acquisition. However, if it is essential in public purpose or public interest, by relocating and rebuilding, in the own money of the requiring persons or organizations, it may be taken into acquisi­tion.

Under section 5(1) of this Act, Any person concerned may file an objection against the acquisition proceeding to the Deputy Commissioner within 15 working days. The Deputy Commissioner shall, under section 5(2), speedily hear the objection filed in the presence of the appellant or an agent, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, prepare a report within-thirty working days, and in case of a nationally important project within 15 working days, following the expiry of the period specified under sub-section (1) containing his opinion on the objections.

 Under section 5(3) the Deputy Commissioner-

(a) If the property exceeds 50 [fifty] standard bighas (or 16.5 acre) of land, shall submit the record of the proceedings held by him, together with his opinion, for the decision of the Ministry of Land; and

(b) If the property does not exceed 50 [fifty] standard bighas (or 16.5 acre) of land, shall submit the record of the proceedings held by him, together with his opinion, for the decision of the Commis­sioner:

 If no objection is raised within the period specified in sub-section (1), the Deputy Commissioner shall, instead of submitting the records of the proceedings to the Divisional Commissioner, make a decision within ten days of the expiry of the aforesaid period, or within such further period but not exceed­ing thirty days, as the Divisional Commissioner  orders to Deputy Commissioner in writing and in case of a nationally important project within 15 days, about the acquisition of the property and such decision of the Deputy Commissioner shall be final.

In addition, at the time of proceeding, the Deputy Commissioner or his representative will make sure whether the alternative venue if chosen will not hamper the proposed project and if he thinks necessary, he will make further enquiry or verification and prepare a report containing his opinion on the objections.

The Government will, on receiving the record of the proceed­ings along with the report submitted by the Deputy Commissioner, within next 60 days, and the Commissioner will, on receiving the record of the proceedings along with the report submitted by the Deputy Commissioner, within next 15 days, make a final decision about the acquisition of the property and return the proceedings to the Deputy Commissioner.

When the Government, the Divisional Commissioner or the Deputy Commissioner makes a decision about the acquisition of the property, such decision made therein shall be conclusive evidence that the property is needed for a public purpose or in the public interest.

Compensation for Acquisition:

Compensation awarded under this Part, take measures to give to pay the According section 11 of this section, the Deputy Commissioner shall, before taking possession of the property, pay the compensation awarded by him to persons entitled thereto within sixty days from the date of deposit by the requiring person.

If the persons entitled to compensation  but do not consent to receive it, or if there be no person competent to receive the compensation, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Deputy Commissioner shall keep the amount of the compensation in a deposit account in the Public Account of the Republic which shall be deemed payment for the purpose of taking over possession of the property without any prejudice to the claim of the parties to be determined by the Arbitrator. Further, any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount. However, no person who has received the amount otherwise than under protest shall be entitled to make any applica­tion under section 30. Deputy Commissioner shall, realizing the compen­sation from the recipient, who may have received the whole or any part of the same to the person lawfully entitled thereto. In addition, when the property acquired contains standing crops cultivated by bargadar, such portion of the compensation as may be determined by the Deputy Commissioner for the crops shall be paid to the bargadar according to section12 of this Act

Conclusion:

Acquisition of land by the government for public purpose is a well-known practice in all over the world. Acquisition of private land is made for the purpose of establishment of public institution, autonomous institution, educational institution and so on as the government deems fit. The Acquisition and Requisition of Immovable Property Act, 2017 operates the functions regarding land acquisition in Bangladesh. This Article finds that in most of the acquisition, the rights of the land owner are violated and neglected. Practice is far different and many important duties and responsibilities are not prescribed by this Act. The Acquisition and Requisition of Immovable Property Act 2017 should be implemented properly and effectively.

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Md. Ariful Islam

Md. Ariful Islam completed his LLB(Hon ’s) and LLM Degree from Rajshahi University. He is an apprentice lawyer of Judge court, Jhenidah. He works as an associate in Ad. Nekbor Hussain Law chamber at Jhenaidah judge court. He participated in various training courses relating to moot court, Case Analysis, Memorial writing and Advocacy and also participated in the Model United Nations programs. He is a human rights activist. He can be reached at islamarif345@gmail.com.

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• Law and Practice for Land Acquisition in Bangladesh - January 12, 2019