Legal Aspects of Vested Property and Law of Inheritance

Chapter one
Introduction

1.1 Context of the study
The creation and continuance of the law of enemy property, later vested property, is a violation of property rights of the people in Bangladesh. Resultantly, such law violates the law of property inheritance of the people. It created the state succession of individual property which is a violation of personal laws of property inheritance. The law governing the return of such property also violates some aspects of such personal laws. It is the object of the study to analyze different phases of development of the law of vested property with reference to its violation of personal laws of property inheritance.
Vested property, originally enemy property1, is being returned to its “original owners or their heirs, or successors in interest of original owners or their heirs”2, from the custodianship of the government by the Return of Vested Property Act, 20013 as amended in 2011. From 1965 to 2012 the property has been under control and management of the government through various laws and after such a long period of Government acquisition and management by many ways like leasing or letting it out4, the returning of vested property faces problem in finding out the original owners or their true inheritors. Thus, the returning finds a close link, between the issue of vested property and the law of succession (in particular the law of inheritance). The legal aspects of vested property and the law of inheritance together face a paradox in property rights and the law of inheritance in Bangladesh.
The debate about vested property is a plural issue, containing social, political, economic and legal aspects, which deserve to be studied critically in the context of Bangladesh. “The law of enemy property” is closely connected with the political history of Bangladesh (Rakshit 1983). It can be said that the law of enemy property or vested property, concerns the politico-legal history, since the Vested Property Act is a successor of many laws and by-laws promulgated by the Pakistani Government with its ill intention to destroy the unity of Bengalees of the then East Pakistan, particularly, the nationalist esprit (Barakat et all 1997: 20). Property rights of Hindu minority are closely connected with it, as Barakat et all (2008: 29) says, the promulgation of the Enemy Property Act (EPA) in 1965 using the war between India and Pakistan as the pretext and its subsequent continuation in the name of Vested Property Act (VPA) even after the Liberation War of 1971 in independent Bangladesh have denied all five types of freedoms5 and created an environment of endemic deprivation among the Hindu minority. Therefore, the legal aspects of returning the vested property to its rightful owners or their inheritors cannot be justified without a pluralistic legal approach6.

1.2 Vested property laws from a wider context
The present study introduces new dimensions to old approaches towards the law of vested property or enemy property. The earliest attempt in this regard was made by Mridul Kanti Rakshit7. Rakshit (1979) described his work as a comprehensive hand book for the legal professionals covering legal aspects of vested property laws (VPL). He tried to draw a concrete shape to VPL and declared such as the guiding law of the country for the alien friends and alien enemies. He included three types of properties in the special legal regime of VP, namely non-resident property, abandoned property and enemy property. He articulated government enactments which formulated the said three types of properties into enemy property (EP). Rakshit (1983: 2) analyzed Defence of Pakistan Ordinance, 1965 (DPO) and Defence of Pakistan Rules (DPR), and concluded that the concept of ‘Enemy’ and ‘Enemy property’ had been the product of DPO and DPR. (A categorical analysis of ‘Enemy Property’ is made in chapter three of the study)
After the emergence of Bangladesh the position of the law of enemy property had been completely changed as Indian nationals became the ‘alien friends’ under section 83 of the Code of Civil Procedure (CPC), 1908 (Rakshit 1979: 4). Even though the character of enemy property had not been changed till 1974 and a kind of self contradictory law continued in the independent Bangladesh. In this regard Rakshit (1983: 5) says,
“It appears that law of land against the alien friends was the law of alien enemies. Whatever that may be the said law of enemy property aimed against alien friend’s property and various laws has been promulgated for management and control of their properties. So the Enemy Property (Continuance and Emergency Provisions) Ordinance, 1969 (Ordinance I of 1969) has been replaced on 23/3/1974 by promulgation of Enemy Property (Continuance of Emergency Provisions) (Repeal) Ordinance, 1974 (Ordinance no IV of 1974). By the declaration of the aforesaid Ordinance, all enemy properties shall vest in government and such properties will no longer be known as Enemy Property but as Vested Properties.”
In this regard Rakshit noticed that the Ordinance IV of 1974 was similar to that of Ordinance I of 1969 in different languages because “enemy property” and “enemy firm” continued to have the same meaning as were assigned to them in DPR.
Another dimension of Rakshit’s work is to include abandoned property in the legal regime of vested property. The spirit and principles of law as laid down in the law of abandoned property are similar to that of law of enemy property (Rakshit 1983: 120). The backdrop of such legal regime is well described in 30 DLR 23 SC. After the surrender of Pakistan Occupation Army on December 16, 1971, many of the owners left their properties uncared on account of conditions arising from liberation war of Bangladesh. Many of the owners, who collaborated with the Pakistan army or owed allegiance to Pakistan, either left the country or went into hiding, abandoning their properties and without making any arrangement for administration of such. So in order to cope with such situation, immediate steps were taken in promulgating the Bangladesh (Taking over Control and Management of Industrial and Commercial Concerns) Order, 1972 (Acting President’s Order I of 1972) for providing an administrative machinery for control, management and disposal of those abandoned properties. In case of other kinds of properties which were left uncared for by their owners and in some cases where these properties went into occupation of some unauthorized persons, the Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 was promulgated on February 28, 1972. It provided for vesting all kinds of abandoned property in the government of Bangladesh and comprehensive provisions for control and management of such properties. Subsequently Presidential Order no XVI of 1972 was promulgated for control management and disposal of certain types of properties abandoned by certain persons who were not present in Bangladesh or who have ceased to occupy or supervise or manage in person their properties or who became alien enemies8. While including these types of abandoned properties in the legal regime of VPL Rakshit (1983: 121) says,
“On a careful perusal of the definition of the word “Abandoned property” as provided by article 2(1) of the PO 16/72 leads to the conclusion that abandoned property is nothing but the property of the enemy of Bangladesh. So in true sense of the term it ought to have been made as “Enemy Property” without calling it “abandoned property”. Practically the law of Abandoned Property stands as the law of Properties of West Pakistan’s people alone rather than Non-Bangladeshi people.”
In 1977 a martial law regulation was made for absolutely vesting of abandoned property in the hands of the government and taking over etc. of such property by the government, was made unchallengeable in any court of Bangladesh. Therefore, I also find that aforesaid abandoned property should be included in the legal regime of VPL because people of Pakistan are no longer enemy of Bangladesh. But it is a matter of regret that section 2(b) of the Return of Vested Property Act, 2001 as amended in 2011 does not include “Abandoned Property” into the legal regime of VPL.
Another major work regarding VPL is made by Abul Barakat in 1997. For the purpose of this paper, Barakat’s work is also analyzed, although it is not a pure legal analysis of VPL. While emphasizing on political economy of vested property, he explored the legal development with regard to VPL. Unlike Rakshit (1983), Barakat et all (1997) exclude abandoned property from the legal regime of VPL. He uses Vested Property Act as an alternative naming of Enemy Property Act and explores VPL to identify the magnitudes of sufferings resulted from the implementation of this law, and also to evaluate its impact on socio-economic life of Hindu community.
Property rights of Hindu minority in Bangladesh are violated by the continuance of the VPL. Barakat et all (2008) shows the deprivation of Hindu minority in Bangladesh while living with vested property. Through a survey based analysis he explained the state of deprivation of Hindus due to VPL. As a major effect of enemy and vested property Acts, he identified “missing Hindu population” which has been defined as the difference between the sizes of Hindu population as reported in official census documents and estimated Hindu population assuming no out migration (Barakat et all 2008: 67). He also identified loss of properties of the households living with vested property as an indirect effect of Vested Property Act. Such discoveries of Barakat lead the present study to analyze VPL from a socio legal perspective.
To obtain a comprehensive scenario of the VPL and its continuance in Bangladesh, I have also gone through related newspaper articles, periodicals and books. Lastly, I explore the sole law for the return of vested property with its amendments made thereafter. In this regard Sarkar (2008a), Mia (2010) and Sarkar (2012b) have been analyzed to evaluate the return process of the vested properties. Careful study of some unreported cases is also made for this purpose.

1.3 Focus of the study
In this context, and in the backdrop of the above analysis, the present study seeks to explore vested property as a mean to implement fanatic ideology of the ruling elites of the country. And since the study aims a pluralistic legal approach to the law of vested property (originally enemy property), it tries to examine the multiple dimensions (economic, social, political and legal) of the law of enemy property. Such analysis seeks an answer to the question whether the creation of enemy property is a violation of law of inheritance of property. It is one of the main focuses of the study to justify the status of enemy property, with reference to the law of inheritance of property, from its creation in 1965 to the independence of Bangladesh in 1971.
The independence of Bangladesh made radical changes in political, constitutional and legal ideologies of the land. India no longer was an enemy state and the people of India were not enemies in the new born country. Resultantly, the name of the enemy property was changed into vested property. In 1976, by promulgation of an ordinance the government was made the owner of such vested property, which Barakat, et al. (1997) describes as a gross violation of the then existing laws of the country. In 1984, a Presidential pledge was made that no new property were to be made vested property. But Barakat et al. (1997) proved that the said pledge was never implemented and many new properties were included in the list of vested property (VP). The present study with reference to law of inheritance of property, seeks the status of the newly inserted properties in the VP list during 1971-2001, keeping in mind of the politico-legal scenario of the time. It also considers whether abandoned properties created in 1971, having all the characteristics of vested property, could be inserted in legal regime of VPL.
A new dimension to the property right and the law of inheritance in Bangladesh, with regard to VP is created by the Return of Vested Property Act, 2001, with intent to return certain listed VPs to its original owners or their heirs, or successors-in-interest of original owners or their heirs, provided the person to receive the property is a citizen of Bangladesh. For the purpose of returning, the government has published VP list for the country. In the said list, the name of the SA Record9 tenant has been mentioned with the respective Khatian number and amount of property. And in almost all cases such tenants are dead. Therefore, it has become a very hard job to identify real heirs with actual possessions with the existing mechanism of land administration in Bangladesh. Thus, the study also examines the scope of mal-practice in the implementation of law of inheritance, in the returning process of vested property.

1.3.1 Objectives of the study
The main objective of the study is to find contradiction between vested property laws and right of property inheritance in the country. Besides, it aims to make reasonable solution to avoid the contradictions and probable malpractice in the VPL. Research objectives in particular are,
a) To find out contradictions between property rights and vested property laws (VPL), in its creation and continuance.
b) To seek the status and consequence of the newly inserted properties into the vested property list, after the independence of Bangladesh.
c) To decide whether abandoned properties as it were created in 1972 could be included in the legal regime of VPL.
d) To evaluate the return process of vested properties with reference to law of property inheritance.

1.4 Structure of the paper
The paper in different chapters tries to evaluate the emergence and continuance of VPL. In five chapters I have discussed, the legal aspects of VPL and law of inheritance in particular the inheritance of property rights.
Chapter one of the paper deals with the problems relating to the research I made. With a literature review of vested property laws, it determines objectives of the research paper. It provides a structure of the total research work. Last part of the chapter contains a brief on methodology.
Chapter two of the paper deals with the origin of the law of vested property. It continues with the continuance of the VPL. Here I have tried to establish a legal regime of vested property laws with a criticism of inclusion and exclusion of certain properties in VPL.
Chapter three examines complexities and contradictions in law of vested property. From a social, political and constitutional perspective this chapter evaluates the legal regime of VPL. It also tries to analyze such complexities with reference to law of inheritance and the return process of VP.
Chapter four describes four cases relating to VPL. With a comprehensive description of the fact and law such cases analyze property rights of people, law of property inheritance and VPL.
Chapter five is the concluding part of the paper. From the study made in the previous chapters, it provides recommendations and conclusion.

1.5 Methodology
The study is based on a combination of qualitative theoretical research with empirical analysis. Primary data of the study are from related statutes and reported case decisions. Some unreported cases with their relevant facts are also considered as primary data in the study. Related journal articles, newspapers, periodicals and books have been considered as secondary data for this study.
Primarily, for the purpose of the study, related statutes and case decisions were taken into consideration and with a context based analysis a projection of vested property laws were made. Then, analyzing the related secondary data along with the facts of unreported cases (as mentioned in chapter V); I tried to meet the objectives of the research.