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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 913

Tthe legacy of enemy turned vested property act in Bangladesh

Rabindranath Trivedi: Contributing for the Asian Tribune

Dhaka, 29 May (Asiantribune.com): : The vested property was known in Pakistan as ‘enemy property' after the 1965 Indo-Pak war. On 6 September 1965, Pakistan proclaimed a state of emergency under 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 Defence of Pakistan Rules. Under the rules, the Governor of East Pakistan passed an Order on 3 December 1965 regarding enemy property by which the property of the minorities was declared “Enemy Property”.

With the emergence of Bangladesh, the law relating to the administration of Enemy Property remained in force by virtue of the Laws Continuance Enforcement Order 1971. The President of the Country then promulgated an Order on 26 March 1972. Since then the issue has been rolling with ordinances, amendments, circulars, memos, committee and so on. But no tangible action has yet been taken by the Government to solve the contentious issue of minority Hindus. 'Property ownership has been a contentious issue since independence when many Hindus lost land holdings due to unequal application of the law.' said the U S report in 1993.

The documentation of the National Seminar on Enemy (Vested) Property Act, 6-7 May1994, Dhaka by Samprodadaik Samprity Parishad (pp35-65 ) recorded: "Depeasantization and victimization are active elements in the process of migration in more than one way. Not only the Muslim peasants depeasantized, pauperized and lumpenized on their arrival in India, the Hindu peasantry of Bangladesh is cynically and most systematically robbed of land on communal considerations in the villages of Bangladesh and the peasants are thus forced to flee. The catalyst in this case is the enemy (vested) property laws.

One report makes it clear how with the promulgation of the Vested and Non-resident Property (Repeal) Ordinance by President A. M. Sayem during the rule of General Ziaur Rahman, many government officials became the owners of lands earlier held by the Hindus.

With this process of eviction of the Hindu peasantry and their ejection from the villages has appeared a new class of land grabbers. The gradual disappearance of the Hindu peasantry from the Bangladesh countryside, the same report shows, reached a new phase with the circular of 23 May 1977 on the Ministry of Lands of the Government of Bangladesh which empowered the Tehsildars to find out the lands suitable for enlisting as enemy property. Since there was a provision for rewarding the successful tehsildars they felt encouraged to bring many undisputed properties of the Hindus under this list. Hindu peasants were thus left with no alternative but to move on, as they could not expect any remedy from the additional deputy commissioner, the sub-divisional officer, or the circle officer who, like the tehsildar, were similarly entrusted with the responsibility and similarly promised reward.

In fact, the process had started when the properties in land and building left by the Hindus, the Garos and the Oraons were taken over as enemy property by the East Pakistan Government under sub-rule (4) of Rule 169 of Defence of Pakistan Rules. Though this was withdrawn in 1969, the Enemy Property Continuance of Emergency Provision Ordinance No.1 of 1969 was promulgated, to be followed by Vested and Non-resident property Management Committee which at the sub-divisional level could transfer any vested or non-resident property with the written permission of its owner in a prescribed manner.

After the change over in 1975 the Sayem government cancelled the provision for selling vested properties by the sub-divisional committee. The government of President Ershad passed an order for selling the vested properties (land and buildings), 'the dilapidated and kutcha houses' not required by the government, to the existing lessees and if the lessees were unwilling or unable to purchase, through public auction. Subsequently, President Ershad passed on order for selling all vested properties by December 1983 but on an appeal made to him by a conference of the representatives of the Hindu community on 31 July 1984, General Ershad scrapped the order and also the enlisting of new vested properties. He further offered that vested properties would be governed according to the Hindu law of inheritance. The policy of the government of Begum Khaleda Zia was to sell vested properties to those occupants who could pay 10 per cent higher than the prevailing market price and not sell any vested property below the market price. Moreover, the government of Begum Khaleda Zia passed an order for the release of vested property in land up to eight bighas outside the 'Pourasabha'

Abul Barkat and Shafiquzzaman, of Bangladesher Grameen Samaje Arpito Sampattite Ainer Probhab: Ekti Anusandhan, in their report to the National Seminar of Association for Land Reform And Development, 13 April 1996, pp-7, said: "On the devastating effects of the vested property Act on the material and psychological conditions of the Hindus it was calculated that from 1964 each day on an average 538 Hindus have 'vanished'. The basis of calculation was the uniformity of the death rate for all religious communities in Bangladesh, the birth rate among the Hindus which has been 13 per cent less than that of the Muslims, and the difference between the migration figures coupled with total Hindu population and the figures of the census. Thus, had there been no migration, the Hindu population in Bangladesh would have been 16,500,000 instead of the census figure of 11,200,000. The same report calculated that the vanishing rate has not been uniform over periods; in 1964-71 it averaged 703 per day, between 1971 and 1981 it was 537, and in 1981-91 the figure stood at 439. The report further said: "The sample survey, on the basis of which the report was prepared, showed that out of the 161 dispossessed, 13 per cent were near landless, whereas 40 per cent became landless through dispossession, and 15 per cent of the surveyed persons were rich before dispossession but the figure came down to 6 per cent later.

The report traced four ways of dispossession, and consequent migration: forced occupation, leasing-out by the government of the said property to third party, nominal occupation but legal alienation and the extreme feeling of insecurity regarding loss of property."

Prof. Abul Barkat of Dhaka University opined in an article that 50 lakh people of the Hindu community, meanwhile, have lost 20 lakh acres of land under Enemy/Vested Property tussle.The present day value of those property would be one lakh ninety thousand crore Taka.(Prothom Alo, 4 November 04).

According to a report of the Land Ministry in October, 2004,submitted to a parliamentary standing committee "445,726 acres of vested property out of 643,140 acres ended up in encroachment across the country. “Grabbers gabbled up more than two thirds of vested property as the government lost control over the lands as the custodian and its long-line dithering blocked anti-encroachment efforts,” the report said. (The Daily Star, 15 October, 2004). It may be recalled that "Transfer of Property Act" is ignored in case of the Hindus by keeping the Enemy Property Act as The Vested Property Act. So the property based crisis deepened and disturbed society at the root.

Justice Debesh Bhattacharjya (1914-2004) was the founder President of Bangladesh Enemy Property Act Repeal Committee and some of his verdicts have been historically precedent setting judgments.

Earlier Justice Abdur Rahman Choudhury and Justice A.T. M.Afzal in their judgement (31 DLR, p 343) opined: "Such high handedness, if over looked and allowed to go unchecked, might undermine confidence of the citizens in the administration and bring a slur on the fair name of the Government." Former Chief Justice Syed Kamal Uddin Hossain also opined: "The laws on abandoned property, non-resident’s property and the like although enacted as temporary laws to meet peculiar and emergency situations had been continuing for indefinite time in one form or another causing untold sufferings to honest citizens and burdening the courts with unnecessary cases.”

Here are two judgments of the High Court:

(1) Custodian of enemy property treating a property as being a vested property without lawful basis for treating it as vested property and leasing out the same to another is unauthorized and illegal. [31 D L R (HR) 359].

(2)It appears from order sheet of vested Property Miscellaneous Case that even before the property in question was declared as vested property, the third party applied for lease and succeeded in obtaining a favourable report from local tahsilder. Thereafter it was apparent from the records that the Tahsilder and the interested party acted in collusion with each other in securing the impugned order and throwing the real owner out of their possession. It is our considered opinion; it would be just to award exemplary cost against the Tahsilder and Sona Meah, who are responsible for harassing a helpless widow and her son and depriving them of their lawful right to enjoy their own property.[31 D L R (HR) 343].

Here is an another Judgment of the Appellate Division (civil) dated 14th August 2004 on SajuHossain Vs Bangladesh (58DLR (AD)(2006) Enemy Property (continuance of Emergency Provisions) Ordinance (1of1969) Section 2 " Since the law of enemy property itself died with the repeal Ordinance No.! of 1969 on 23 March 1974 no further vested property case can be started thereafter on the basis of the law which is already dead." So, we need not to produce more evidences, rather looking forward the needful action from the non-party caretaker Government led by Dr. Fakhruddin Ahmed.

It is needless to say that Vested Property Act is a law against the spirit of the Constitution of Bangladesh. The Act has violated the fundamental rights of a class of people guaranteed in the Constitution of Bangladesh: viz.

Article-27,” All citizens are equal before the law and are entitled to equal protection of law”,

Article-28(1), “The State shall not discriminate against any citizen on grounds only of religion, race,caste,sex,or place of birth.”,

Article-29(1) “There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic” and

Article 29(2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic”.

Part-II of the Constitution: “Fundamental Principles of State Policy”

Article 11. The Republic shall be democracy in which fundamental human rights and freedoms and respect for dignity and worth of the human person shall be guaranteed*** [, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured].

Article “12. Secularism and freedom of religion”. was omitted by the Martial Law Proclamations Order No.1 of 1977.

And Article-2A was inserted by the Constitution (Eighth Amendment) Act, 1988 (Act XXX of 1988) that is [2A. The State religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic.]

Bangladesh Hindu Buddhist Christian Unity Council, was formed in protest of this "State Religion" (8th Amendment) in June 1988 .Now this organization has been observing the 'Minority Day' on 9th June every year in Bangladesh, in the USA in New York, United Kingdom, France and Kolkata and worldwide. The 9th June 1988 is a 'Black Day' in the annals of Bangladesh's history on the date the Constitution of the Republic "While minorities and migrants are the whipping boys of most societies, the ones in Bangladesh are particularly vulnerable. How many have fled to India is difficult to calculate, but it is in the millions, and their children stay abroad. The Chakmas and the rest put up a fight and threaten to do so again if the Chittagong Hill Tracts accords are not fulfilled.

Only when they take up arms again and fight a guerrilla war, will the otherwise-busy middle class sit up and notice. Another tragic war is a distinct possibility. "(DS, 7 Jan. 07)

There is another unfortunate fact, which is to be mentioned here that Pakistan and Bangladesh had to be ruled by military dictators for very many years. But it is also more displeasing that the presence or absence of democratic rule in the country can not make any real difference so far as the problems of the Enemy (Vested) Property Laws are concerned. It should be mentioned here that along with the Islamization process the operation of the Enemy (Vested) Property Laws have continued to disturb the normal life of the people belonging to the religious minorities of Bangladesh.

The Hindu properties continue to be ‘vested’ in Bangladesh

Nearly two lakh Hindus have lost 22 lakh acres of their land and houses during the last six years, a Dhaka University Professor says in May 2007. At the current market price, the value of the 22 lakh acres of land (one acre roughly equals three bighas) that the Hindu families were displaced from is Tk 2,52,000 crore, which is more than half of the country’s gross domestic product, he says.

'This is a man-made problem contrary to the spirit of humanity. We have to get rid of this uncivilised state of affairs to establish a civilised society. Otherwise, we have to face a bigger historic catastrophe,' Professor Abdul Barkat, who teaches economics, insists in his research paper, 'Deprivation of affected million families: Living with Vested Property in Bangladesh'. Some 12 lakh or 44 per cent of the 27 lakh Hindu households in the country were affected by the Enemy Property Act 1965 and its post-independence version, the Vested Property Act 1974.

Barkat points out that 53 per cent of the family displacement and 74 per cent of the land grabbing occurred before the country’s independence in 1971 after the then Pakistan government, following the India-Pakistan War in 1965, introduced the Enemy Property (Custody and Registration) Order II, which was widely criticised as a tool for appropriating the lands of the minority population.

Politically powerful people grabbed most of the Hindu lands during the reign of Begum Khaleda Zia's BNP-led four-party alliance between 2001 and 2006. Forty-five per cent of the land grabbers were affiliated with the BNP, 31 per cent with the Awami League, eight per cent with Jamaat-e-Islami and six per cent with the Jatiya Party and other political organisations, the New Age and the Daily Janakantha, on 26 May.07 quote Prof Barkat as saying in his report, which will be published shortly.

The Sheikh Hasina led Awami League government annulled this Act in 2001. It wanted to return the 'vested' property to their original Hindu owners. The move was criticised as a 'political tokenism' aimed to appease minority voters prior to the general elections.

But in reality, as Professor Barkat study shows the Hasina largesse did not benefit the Hindu minority, who owned land at the time of partition. In fact, it ended up displacing most of them from their ancestral land.

While trying to review the impact of the law on the land ownership of the Hindu community, Prof Barkat found that no list of the people evicted or the quantum of lands grabbed on the basis of the Vested Property Act has been prepared till date. Instead, politically powerful people grabbed most of the land during the reign of the BNP-led alliance government between 2001 and 2006.

The affected Hindu families met with more incidents of violence and repression in the immediate-past five years of the BNP-led government than in the previous five years of the Awami League government, the Barkat research report concludes, according to the dailies published from Dhaka.

Political elements, locally influential people in collaboration with the land administration, trickery by land officials and employees themselves, use of force and crookedness, fake documentation, contracted farmers and death or exile of original owners have contributed to the phenomenon, according to Professor Barkat's study covering 6 districts across the country. More than 60 per cent of the owners and the successors of 'vested properties' are either dead or have left the country. The Professor doesn't think the land grab was a problem of 'Hindu versus Muslim' polarisation. "Criminals do not bother whether a piece of land is owned by a Hindu, a Muslim or a Santal and they simply loot property. The problem highlights the 'inability' and 'weakness' of the majority people to raise protests though they are non-communal".

To solve the residual problems of the Vested Property Act, Barkat has come up with a number of recommendations such as identification and listing of such cases and lands, amendments to certain provisions of the 2001 law that hinders its implementation, cancellation of leases of such land to different people for 99 years, and involving citizens’ groups in addressing the problem.

He explains that the scrapping of the Vested Property Act in 2001 has not paved the way for its implementation to end deprivation of the Hindu community due to deliberate delay and criminalisation of the political economy.‘The vested property act incapacitated Hindu people in serving the nation, depriving the country of their more valuable contribution. Also the inability to raise protests against the repression by a tiny class of looters implies the weakness of the majority people who are though non-communal,’ Barkat observes. The NewAge, the daily Janakantha, the daily Manabzamin, 27 May.07)

Those discriminatory laws and post seventy-five constitutional amendments not only hurt the feelings of the minorities severely, their confidence on Bangladesh state machinery have been dwindled; they have been effectively transformed into second class citizens.

As a result the minority community, a very much-advanced component of our population, is unable to contribute to country’s development activities. It is needless to say that Vested Property Act is a law against the spirit of the Constitution of Bangladesh. The Act has violated the fundamental rights of a class of people guaranteed in the Constitution:

Rabindranath Trivedi is a retired Addl.Secretary and former Press Secretary to the President of Bangladesh.

- Asian Tribune -

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