LAND LAW

Serial No

Pages No

1.0 Introduction 2

2.0 The history of abandoned property in Bangladesh 3

3.0 Abandoned property 4

4.0 The ten cases on the abandoned property 7

5.0 Classification of abandoned properties 10

6.0 Vesting of abandoned property: 11

7.0 Different between abandoned and vested property 12

8.0 Measures for securing administration, control and management of abandoned properties

13

9.0 Liabilities 15

10.0 Obligation 15

11.0 Immunity from legal process 16

12.0 Grievance procedure 17

13.0 Compensation for unauthorised possession 18

14.0 Punishment for damage and default 18

15.0 Conclusion 18

Bibliography 19

Tables of contents:

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1.0 Introduction:

In Bangladesh ,Abandoned Property law and Enemy Property law are the

outcome of war of the liberation and war of attrition respectively .most of the

countries enact such sort of laws in the time of war. This is because of enemy

owners may be used against the interests local national state .during the time of

the war of liberation , Bangladesh could have abandoned property to serve the

purpose .the abandoned property law was enacted in 1972 dealing with the

purpose of the restoring the national economy by making the abandoned

properties operative. This act was effected the economy and development

situation after liberation. The abandoned property which was before war of

liberation and left property another country. Shortly after Independence of

Bangladesh, the Government of Bangladesh promulgated several laws that were

intended to manage properties abandoned by the Biharis. Biharis, who in order

to save their souls had gone to the ICRC sponsored camps. Of course those who

could flee to Nepal, Burma and Pakistan. These laws applied to not only

residential but also commercial and movable properties of the Biharis.

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2.0 The history of abandoned property in Bangladesh:

During the war of liberation, many of the owners of industrial and commercial

concern collaborated with the Pakistani army or owed allegiance to Pakistan.

They either left the country or went into holding. They abandoned their

properties without making any arrangement for the administration and

management of them .as a result, many of industrial and commercial concerns

stopped running and went out of production. This caused harm to the national

economy of newly liberated Bangladesh. To restore the national

economy ,acting president Syed Nazrul Islam promulgated APO NO IM -

35/71/13.it was published in the Bangladesh Gazette on 26 December 1971 and

later amended on 30 December 1971.the above order was repealed by the

Bangladesh (Taking over of Control and Management of Industrial and

Commercial Concerns ) Order 1972.( Acting President`s Order no1 of

1972).Then came the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972.this is the PO Order NO 16 OF 1972.this was

promulgated by the president on 28 February 1972. According, certain rules

were framed such as-

1. The Bangladesh Abandoned Property (Land, Building and any

other Property) Rules, 1972

2. The Bangladesh Abandoned Property (Industries) Rules 1972

3. The Bangladesh Abandoned Property (Motor Vehicles) Rules 1972

4. The Bangladesh Abandoned Property (Disposal of Light Vehicles)

Rules 1972

5. The Bangladesh Abandoned Property (Cash, Ornaments and

Bullion) Rules 1972

6. The Bangladesh Cantonment Abandoned Property (Land and

Building) Rules 1973

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7. The Bangladesh Abandoned Property (Administrator's Efficiency

and Discipline) Rules 1973

8. The Abandoned Building (Supplementary Provisions) Ordinance

1985

3.0 Abandoned property:

The word` abandonment `means the idea of the owner vacating the property

with the intention of never returning to it .mere temporary absence or absence in

certain circumstances is not sufficient to warrant the inference of abandonment.

This because of the owner of the property may not always be in possession of it

and thus mere absence of physical possession does not suffice to treat the

property as abandoned.

``The meaning of the word abandonment is to give up, to desert ,or give up

all claims, or to go away from ,or not intending to return ,to leave or forsake

completely and finally ,to give up the possession or control of , to cast

away ,leave or desert ,a property or a child ,to discontinue ,to withdrew from

``(Under the Oxford Advanced Learner`s Dictionary Current English and the

Random House Dictionary of the English language)

The ordinary meaning contains the element of giving up rights. The act of

abandonment implies two factors:-

1. Desertion of the property and

2. Giving up one`s right to the property.

``The owner having abandoned owner ship of his property was res derelicta as

where a man throws away an old shoe .in the case of res derelicta there must be

an intention to abandon on the part of the previous owner. Hence a person who

appropriate s things thrown overboard in a storm to lighten the ship, or

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accidentally dropped from a carriage, is guilty of theft. `` (Under the Roman

law)

Abandonment means the relinquishing of a right or interest with the intention of

never reclaiming it. The relinquishing of or departing from a homestead, etc.,

with the present, definite, and permanent intention of never returning or

regaining possession.[Under Black`s law Dictionary,( 9th ed.)]

In law, abandonment is the relinquishment or renunciation of

an interest, claim, privilege, possession, or right, especially with the intent of

never again resuming or reasserting it. Such intentional action may take the

form of discontinuance or a waiver. This broad meaning has a number of

applications in different branches of law. In common law jurisdictions,

both common law abandonment and statutory abandonment of property may be

recognized.

Common law abandonment is "the relinquishment of a right [in property] by the

owner thereof without any regard to future possession by himself or any other

person, and with the intention to forsake or desert the right or the voluntary

relinquishment of a thing by its owner with the intention of terminating his

ownership, and without [the intention of] vesting ownership in any other person;

the giving up of a thing absolutely, without reference to any particular person or

purpose. By contrast, an example of statutory abandonment (albeit in a common

law jurisdiction) is the abandonment by a bankruptcy trustee under 11

U.S.C. § 554. In Scots law, failure to assert a legal right in a way that implies

abandonment of that property is called taciturnity. (http://en.wikipedia.org)

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According to article 2(1) of the Bangladesh Abandoned Property (Control,

Management and Disposal) Order, 1972 provided that “abandoned property”

means any property owned by any person who is not present in Bangladesh or

whose whereabouts are not known or who has ceased to occupy, supervise or

manage in person his property, including-

I. any property owned by any person who is a citizen of a State which at

any time after the 25th day of March, 1971, was at war with or engaged

in military operations against the People's Republic of Bangladesh.

II. any property taken over under the Bangladesh (Taking Over of Control

and Management of Industrial and Commercial Concerns) Order, 1972

(Acting President's Order No. 1 of 1972), but does not include-

a) Any property the owner of which is residing outside

Bangladesh for any purpose which, in the opinion of the

Government, is not prejudicial to the interest of

Bangladesh

b) Any property which is in the possession or under the

control of the Government under any law for the time

being in force.

Inclusion clause:

I. any property owned by any person who is a citizen of a State which at

any time after the 25th day of March, 1971, was at war with or engaged

in military operations against the People's Republic of Bangladesh.

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II. Any property taken over under the Bangladesh (Taking Over of Control

and Management of Industrial and Commercial Concerns) Order, 1972

(Acting President's Order No. 1 of 1972).

Exclusion clause:

I. Any property the owner of which is residing outside Bangladesh for any

purpose which, in the opinion of the Government, is not prejudicial to the

interest of Bangladesh.

II. Any property which is in the possession or under the control of the

Government under any law for the time being in force.

4.0 The ten cases on the abandoned properties:

1. Legitimate inference as to whereabouts, the very fact that Md.Hanif

regularly drew pension from the government Exchequer 1-7-72 till

August 1981 leads to the only legitimate inference that his whereabouts

were very much known to the government and this the appellants

discharged thus onus by rebutting the presumption that the above house

is an abandoned house and in view of the above and on the face of the

contents of annexure along with acknowledgement receipt and facts of

this case being different ,the principle laid down in 49 DLR (AD) 26 will

not applicable .according in the facts and circumstances of the present

case HCD erred in law observing that after liberation the whereabouts

of Md. Hanif were not known and the owner of the above house failed

to prove the manage and supervise the property .`` [Serajul Huq vs.

Bangladesh 61 DLR (AD) 2009,88]

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2. As soon as any property is taken over as an abandoned property , it is

vested in the government and remains so vested in it until the owner

such property succeeds in getting it back on obtaining the declaration

that it is not abandoned property or for any other reason the government

releases the property `.[ Md.Kashem vs. Government ,3BCR (AD)1983,

46,49]

3. Once a building is in the list of abandoned properties it is conclusive

evidence that the building in questions is an a abandoned property where

either was not present i the Bangladesh or his whereabouts were not

known or he ceased to manage or occupy the property at the time when

Po.16 0f 1972 was promulgated on Po .16-2-1972 .the presumption is a

rebuttable one .it is for the claimant is show that the original owner was

present in Bangladesh or his whereabouts were known or he did not

cease to occupy or manage the property in question at the relevant

time .since the notification in the official gazette carries a presumption

that the building in question is an abandoned property .it is exempt from

any legal process be it an auction sale by the government itself or through

court. [ Rahim Begum vs. Court of Settlement ,1997 BLD (AD)118]

4. The case property acquired the character of abandoned property within

meaning article 2(1) of Po NO 16 of 1972 and vested in the government

under article 4 of said PO NO 16 of 1972 by operation by law .After

such property vested in the government article 14 of said PO NO 16 OF

1972 because operative at once with the consequence thre such property

was exempted from all legal process ,including seizure , distress ,

enjectment or sale by any officer of a court on any other authority.

(Padma type foundry karmachare samaybaya samity vs. Bangladesh ,60

DLR ,2008, 631)

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5. Onus lies upon the petitioner to prove that on 28 February 1972 when

President`s Order no 16 of 1972 came into operation .the original lessee

and his heirs had been present in Bangladesh or had been occupying

supervising or managing in the person the disputed property on

consideration of the court of settlement has held that the original

lessee and his heirs at the relevant time were not traceable in

Bangladesh and that the petitioner has unauthorisedly been occupying

the property in question by creating spurious sale deeds by false

personation. [Abul Kalam Khan vs. Bangladesh ,60 DLR (2008) 339]

6. P.O. 16 was promulgated on 28.2.1972 immediately after the emergence

of Bangladesh as an independent nation. Hundreds of west Pakistani

industrial / business entrepreneurs had left the country, mills, factories,

establishment etc. Had been abandoned ,for which this specific law was

promulgated .such absentee owners had left their assets , properties e.g.

houses , building etc .such property was the subject matter P.O. 16 and

the definition has in P.O. itself.[ Government of Bangladesh vs. Mirza

Shahab Ispahani 40 DLR (ad) 1988,116,129.]

7. Undisputedly the owner of the properties in question is a company,

namely Al- Helal Printing and Publishing .Co.Ltd. Reside in Bangladesh.

The owners are undisputedly residents and present in Bangladesh and

they are not citizens of a state. Which was at war with Bangladesh after

25th March 1971 indicating the state of Pakistan? In our view the

petitioners, company being domiciled in Bangladesh is outside the ambit

of the definition of abandoned property. (Hamidul Huq Chowdhury vs.

Banglaesh , 33 DLR 1981 ,381)

8. Bangladesh (Taking Over of Control and Management of Industrial and

Commercial Concerns) Order, 1972 (Acting President's Order No. 1 of

1972) defines abandoned property that the title of the order indicates that

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the legislative measure was for making provision for control management

and disposal of such properties .the control ,management and possession

of which have been given by the owners, and this view ,as gathered from

the title of the legislation is consistent with the objective as spelt out in

the preamble.``[Speed Bird Navigation vs. Bangladesh 27 DLR (1975)

170,183]

9. The onus, therefore, is squarely on the claimants of the building to prove

that the building is not an abandoned property. The government has no

obligation either to deny the facts alleged by the claimant or to disclose

the basis of treating the property as abandoned property merely because

the same is disputed by the claimant. (Bangladesh vs. Chairman, First

Court of Settlement , 61 DLR 2009,153)

10.Other law before President`s Oder No 16 of 1972 came into force could

not be treated as an abandoned property. admittedly the suit property

was requisitioned on 14 -2 -1972 by the order of requisition Ext. –A

and was taken possession of such on 16-2-1972 by the government

before the President`s Order No 16 of 1972 came into force .the being

the position ,the suit property could not be treated as abandoned

property. [ Zahoor vs. Bangladesh ,42 DLR (1990),430,432]

5.0 Classification of abandoned properties:

In the terms of control and management of authority, the abandoned properties

were first classified into three categories, namely;

1. Abandoned properties of agricultural lad controlled and managed by

Ministry of land

2. Abandoned properties of industrial and commercial concerns controlled

and managed by Ministry of Industry and Trade.

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3. Abandoned properties of building controlled and managed by Ministry of

public works.

In the terms of taking, abandoned were later classified in 11 categories, namely;

1) Agricultural, horticultural and non-agricultural lands not connect with

any commercial or industrial undertaking controlled by Ministry of

Revenue.

2) Residential and other building in urban areas controlled by Ministry of

Works.

3) Properties concern with the film industry and including cinema controlled

by Ministry of Information and Broadcasting.

4) Shops, god owns and other commercials undertaking with or without

stock in trade controlled by Ministry of Commerce.

5) Industrial undertaking (including jute industry) other than those

controlled by Ministry of Industry.

6) Tea gardens controlled by Ministry of Commerce.

7) Trucks, buses and other means of transport controlled by Ministry of

Communication.

8) Corporate and government security controlled by Ministry of Commerce.

9) Goods in transit or at port, railway stations and terminals controlled by

Ministry of Communication.

10) Cash, ornaments and bullion not connect any commercial or

industrial undertaking controlled by Ministry of Finance.

11) Any other property not covered by the above classification

controlled by Ministry of Revenue.

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6.0 Vesting of abandoned property:

Under article 4 of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 provided that On the commencement of this Order,

all abandoned properties in Bangladesh shall vest in the Government and shall

be administered, controlled, managed and disposed of, by transfer or otherwise,

in accordance with the provisions of this Order.

`As soon as any property is taken over as an abandoned property , it is vested

in the government and remains so vested in it until the owner such property

succeeds in getting it back on obtaining the declaration that it is not

abandoned property or for any other reason the government releases the

property `.[ Md.Kashem vs. Government ,3BCR (AD)1983, 46,49]

7.0 Different between abandoned and vested property:

The meaning of vest is to furnish or give as a fixed right, to invest, to settle, to

secure, or put in fixed right of possession, to endow. Vesting means a variety

which has to be gathered from the context in which it has been used .it may be

full ownership or only possession for a particular purpose, or clothing the

authority with power to deal with the property as the agent of another person or

authority.

Whereas the word` abandonment `means the idea of the owner vacating the

property with the intention of never returning to it .mere temporary absence or

absence in certain circumstances is not sufficient to warrant the inference of

abandonment. This because of the owner of the property may not always be in

possession of it and thus mere absence of physical possession does not suffice

to treat the property as abandoned.

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8.0 Measures for securing administration, control and management of

abandoned properties:

Under article 5(1)of the Bangladesh Abandoned Property (Control,

Management and Disposal) Order, 1972 provided that for the purpose of

carrying the provisions of this Order into effect, and in particular for the

purpose of securing, administration, control, management and disposal, by

transfer or otherwise, of abandoned property, the Government may take such

measures as it considers necessary or expedient and do all acts and incur all

expenses necessary or incidental thereto.

(2) Without prejudice to the generality of the foregoing provisions, the

Government may, for the said purposes,-

a) constitute one or more Boards for such area or areas or for such

abandoned property or such class or classes of abandoned properties and

in such manner as may be prescribed

b) appoint an administrator for any abandoned property on such terms and

conditions as may be prescribed

c) carry on the business in respect of any abandoned property

d) take action for recovering any money in respect of any abandoned

property

e) make any contract and execute any document in respect of any

abandoned property

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f) institute, defend or continue any suit or other legal proceeding, refer any

dispute to arbitration and compromise any debts, claims or liabilities

arising out of or in connection with any abandoned property

g) raise on the security of any abandoned property such loans as may be

necessary

h) pay taxes, duties, cesses and rates to the Government or to any local

authority in respect of abandoned property; and

i) transfer by way of sale, mortgage or lease, or otherwise dispose of, any

abandoned property or any easement, interest, profit or right, present or

future, arising there from or incidental thereto.

During the administration, transfer of a property listed as abandoned property

cannot be transferred .article 6 of the Bangladesh Abandoned Property (Control,

Management and Disposal) Order, 1972 prohibits transfer any abandoned

property in any manner or create any charge or encumbrance on such property,

and any transfer made or charge or encumbrance created in contravention of this

Order shall be null and void.

Under article 7 of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 provided that

(1) Where any abandoned property is not in possession of any person, the

Deputy Commissioner or the Sub-divisional Magistrate, or the authorised

officer, shall take possession of the property in such manner as may be

prescribed.

(2) Where any abandoned property is in possession of any person, such

person shall, within seven days of the commencement of this Order,

surrender such property to the Deputy Commissioner or the Sub-

divisional Magistrate, or the authorised officer

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(3) . Where the person in possession of any abandoned property fails to

surrender such property as he is required to do the Deputy Commissioner

or the Sub-divisional Magistrate, or the authorised officer, shall serve a

notice on him in the prescribed manner requiring him to surrender

possession of the property, within seven days of the service of the notice,

to the person mentioned in the notice or to show-cause against such

surrender within the said period and, if he fails to do so, the Deputy

Commissioner or the Sub-divisional Magistrate or the authorised officer]

shall take possession of the property in such manner as may be

prescribed

(4) Where the person on whom a notice is served showed cause, within the

period specified in that clause, against the surrender of the abandoned

property, the Deputy Commissioner or the Sub-divisional Magistrate, or

the authorised officer as the case may be, shall, after making such local

enquiry as he may consider necessary and after giving the person an

opportunity of being heard, pass such order as he deems fit.

9.0 Liabilities:

Under article 9 of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 stated that the government does not owe any liability

in respect of the abandoned property .this liability however includes the liability

prior to the taking of the abandoned property. The government however can be

approached to meet the liability, which can be determined by the authority

concerned in such manner prescribed by the rules.

10.0 Obligation:

Under article 11 of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 stated that obligation in respect of the property

abandoned may be varied in the nature. Any person may be liable to pay certain

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amounts pr dues to the original owner in the respect of his property under some

contract. But since the property is subsequently abandoned the said amount will

be vested in the government. There may be part performance of a contract for

tenancy or sale in respect of such property. Any amount payable in respect of

any abandoned property shall be paid to the Government by the person liable to

pay the same.

Illustration:

A, being the owner of the house let it out to B before 25th day of March 1971

under an agreement of lease .the said house was declared abandoned .B is liable

to pay the rent to the government until the government in due course of law

terminates his tenancy.

11.0 Immunity from legal process:

Under article 14 of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 provided that any property vested in the Government

under this Order shall be exempt from all legal process, including seizure,

distress, ejectment, attachment or sale by any officer of a Court or any other

authority, and no injunction or other order of whatever kind in respect of such

property shall be granted or made by any Court or any other authority, and the

Government shall not be divested or dispossessed of such property by operation

of any law for the time being in force. Any such legal process as aforesaid

subsisting immediately before the commencement of this Order shall cease to

have effect on such commencement and all abandoned properties in custody of

any Court, receiver, guardian or other person or persons appointed by it, shall

upon delivery of the same being called for by the Government, be delivered to

the Government.

Illustration:

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B brought a lawsuit claiming ownership in X, a company in 1962. While the

suit was pending in the court, X was declared abandoned. Here the subject

matter of the suit is the company itself .the suit cannot lie.

12.0 Grievance procedure:

Under article 15 of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 provided that any person claiming any right or

interest in any property treated by Government as abandoned property may

make an application to the prescribed authority on the ground that—

i. The property is not abandoned property

ii. his interest in the property has not been affected by the provisions

of this Order

An application shall be made within three months of the date of the

commencement of this Order. On receiving an application the authority to

which the application is made shall hold a summary inquiry in the prescribed

manner and, after taking such evidence as may be produced, shall pass an order,

stating the reasons therefore, rejecting the application or allowing it, wholly or

in part, on such terms and conditions as it thinks fit to impose.

Under article 16 of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 provided that any person aggrieved by an order

passed under Article 7 or Article 15 of this Order may, within one month of

such order, file an appeal before such authority as may be prescribed. The

Government may, either of its own motion or on application, at any time, revise

any order passed under Article 7 or Article 15 or clause (1) of this Article.

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13.0 Compensation for unauthorised possession:

Under article 17of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 provided that any person who has been in

unauthorised possession of any abandoned property shall be liable to pay such

compensation for such unauthorised possession as may be assessed by such

authority and in such manner as may be prescribed. Any person who has caused

damage to or disposed of the whole or a part of any abandoned property shall be

liable to pay such compensation as may be assessed by such authority and in

such manner as may be prescribed.

14.0 Punishment for damage and default:

Under article (19,20) of the Bangladesh Abandoned Property (Control,

Management and Disposal) Order, 1972 stated that any person who wilfully

causes damage to, or disposes of the whole or a part of, any abandoned property

or allows damage to be caused to, or disposal of the whole or a part of any

abandoned property and any person who fails to surrender any abandoned

property as required under clause (2) or clause (3) of Article 7 or Article 10shall

be punishable with imprisonment for a term which may extend to five years, or

with fine, or with both.

15.0 Conclusion:

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The provisions of the Bangladesh Abandoned Property (Control, Management

and Disposal) Order, 1972 must be obeyed to control and to manage properties

which are abandoned properties. It must be applied in the appropriate places

where are needed. The purposes of the Bangladesh Abandoned Property

(Control, Management and Disposal) Order, 1972, are restored the economy of

Bangladesh.

Bibliography:

1. Lectures on land law, Dr.Mohammad Towhidul Islam2. Land law of Bangladesh, Dr.L.Kabir3. Law of abandoned property ,M.I.Farooqui4. State Acquisition and Tenancy Act (4th ed, Dhaka Law Reports,

2007).Obaidul Huq Chowdhury.5. Land law made Easy,2008,Md. Nazrul Islam Khan6. Black`s law Dictionary (9th ed.)7. http://en.wikipedia.org8. Oxford Advanced Learner`s Dictionary Current English

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