Lackings Regarding Requisition Of Immovable Property And The Probable Solutions

Shumona Akter:

Bangladesh is a small country adorned with vast population. That’s why land is very precious assest to the people. It not only a means of livelihood but also a sign of social status, power,pride and happiness. It is also essential for the development of a country.

Developmental work of a country directly or indirectly depends on the use of land. For the purpose of developmental work,the government or different organisations and private agencies do the requisition of land. According to the article 42 of the constitution of Bangladesh,every citizen shall have the right to acquire,hold,transfer or otherwise dispose of property. But the right has restriction imposed by law.

The second part of the article provides for extinction of the right to property only by the way of compulsory acquisition, requisition or nationalization under the authority of law. Requisition refers to a situation where government takes over the lands or buildings for public purposes. It is a way forward for acquisition.

According to section 2(13) of the Acquisition and Requisition of Immovable Property Act, 2017 “Requisition means  acquiring, by requiring person or organisation, the possession of any immovable property for a specific time period by providing compensation.

• There are two Acts governing requisition in Bangladesh. They are Acquisition and Requisition of Immovable Property Act,2017 and the Cantonments ( Requisitioning of Immovable Property) Ordinance, 1948. We mainly follow the Acquisition and Requisition of Immovable Property Act, 2017 for requisition of immovable property. Now I am going to discuss about the defects and solutions regarding requisition of immovable property under the Act.

Defects Regarding Requisition of Immovable Property :

There are many provisions regarding requisition of immovable property in the act mentioned above. But some of the provisions are very complex. There are some defects of the provisions. The defects may be discussed as follows:

01.The term ‘public purpose’ is not clear: According to the Acquisition and Requisition of Immovable Property Act,2017 the Deputy Commissioner  can require property for public purpose, with the prior approval of the government by order in writing.

It is clear from the section that for requisition of land the purpose must be public purpose. But the term ‘public purpose ‘ is not defined in the interpretation article of the constitution i.e.,article 152 or in any statues in our corpus juris. The newly enacted Act the Acquisition and Requisition of Immovable Property Act,2017 did not define the term public purpose as well. To meet up this lacuna we have to see some dictionary and judicial meaning.

02.Deputy Commissioner has many duties which may be the reason for making fault: The Deputy Commissioner has many duties in case of requisition. Such as:

i) The Deputy Commissioner gives order of reacquisition to the concern person with the prior approval of the government.

ii) He makes award of compensation after giving the person interested an opportunity of being hard.

iii) He gives notice of his award to the person interested.

iv)He tenders payment of compensation awarded by him to the person entitled thereto according to the award.He deposits the amount to the public account if there is any contigencies regarding the person entitled to compensation.

v)During the requisition of property, the Deputy Commissioner  is responsible for the proper maintenance of property.

vi) According to section 26 of the Acquisition and Requisition of Immovable Property Act, 2017 where the requisitioned property is released, the Deputy Commissioner restores it to the person from whom the property was requisitioned.

vii)According to section 27 of the Acquisition and Requisition of Immovable Property Act, 2017  the Deputy Commissioner  evicts allotee in case of fault of requiring person in some cases.

We have seen that in case of requisition of immovable property, the Deputy Commissioner has to do many duties. So, there is a great chance of making fault by him. The problems which may be arised for the centralization of duties to one person are :

i) Compensation paid to the person entitled may not be sufficient.

ii)Compensation may be tendered to wrong person

iii)Disequilibrium may be occured in the maintenance of requisitioned property.

03.Ambiguity in case of giving notice:The Deputy Commissione shall give immediate notice of his award of compensation to the person entitled. There is no provision in the Act regarding the fact that how, when and where the notice will be given. Notice of award of compensation is very essential fact for the person whose land is requisitioned. Because according to the section  30(1) of the Acquisition and Requisition of Immovable Property Act, 2017 the person entitled has to make an application for arbitration within 45 days of notice if there is any question regarding the award of compensation.

04.There is no complete forum for solving objection regarding requisition proceedings: According to section 30 of the Acquisition and Requisition of Immovable Property Act, 2017 concern person can make an application for arbitration, if there is any question regarding compensation payable to him. But there is no forum or committee for solving any objection regarding requisition proceedings.

05.Silence about the right of a borgadar: If there are standing crops cultivated by borgadar in the requisitioned property, then what will be the right of a borgadar? There is no provision regarding solution of this question. So,  there is a chance of unjustice with the borgadar.

We depend on land for our subsistence, residence and other necessities of life. Land gives us food, row materials and shelters. Requisition of property is threatened and frightened for some person sometimes. General people  often do not get the compensation money properly. The people are not aware of the rules regarding requisition. These cause great harm to them.

Solutions of the Defects Regarding Requisition :

Reacquisition of land has to be done following the rules set by law.The farmers of our country suffer a sorrowful situation because in practical many irregularities are existing in the requisition process. It is high time to solve the irregularities.

The term ‘public purpose ‘ should be clear. It needs to be specified. Otherwise whole object of requisition will be frustrated. Whenever furthers the general interest of the community as opposed to the particular interest of the individual, must be regarded as public purpose.

In the case of Smt.Venktamma vs City Improvement of Trust Board, Mysore the Indian Supreme Court accepted the view that any purpose which directly benefits the public or a section of the public is a public purpose. In Smt. Somawabtu vs State of Punjab the Supreme Court of India took a different approach.  The court gave an inclusive definition of this term in this case. The court held that ‘ public purpose includes a purpose that is an objector aim in which the general interest of the community as opposed to the particular interest of individual is directly and vitally concerned.

Stephen argues that the failure to define the term ‘public purpose’ makes the power of eminent domain is knotted with the breath or narrowness assigned to the definition of public purpose. The definition of public purpose should add  by making an amendment of the Acquisition and Requisition of Immovable Property Act, 2017. So that arbitrariness in acquisition and requisition of private property is lessened.

The stages of requisition have to be done by different person. In earlier discussion we have seen that the Deputy Commissioner is adorned with many more duties. So there is a possibility to make fault by him. To overcome this problem,  more people should be involved with requisition proceedings.

Specific provisions should be added for giving the notice for award of compensation.

Notice of award of compensation should give in a specific way to overcome some problems. There should exist clear provisions regarding how, when and where the notice will be given.

There should exist proper forum for solving objection against requisition proceedings. Any person concerned may file an objection against the acquisition proceedings to the DC within 15 working days. But there is no provision regarding solution of objection against requisition proceedings. According to the Requisitioning and Acquisition of Immovable Property Act,1952 of India, any person aggrieved by an order of Requisition made by the competent authority may prefer an appeal to the central government within 21 days from the date service of the order. In our country, the Act regarding requisition should be amended and provisions regarding solution of objection against requisition proceedings should be added.

In our country , the owner of the land  does not get proper compensation for the land. Government should take proper measures so that they can get compensation properly.

As land is very essential for people and we should give concern to the land administration system.

References:

01.Towhidul Islam, M. (2013)Land Law. 2nd ed. Dhaka: Centre For Human Rights & Legal Research.

02.Sayed Al Atahar, (2013) ‘Development Project, Land Acquisition And Resettlement In Bangladesh, A Quest For Well Formulated National Resettlement And Rehabilitation’, International Journal Of Humanities And Social Science [Internet], 306-319. Available from:

https://www.researchgate.net/publication/276268916_Development_Project_Land_Acquisition_and_Resettlement_in_Bangladesh_A_Quest_for_Well_Formulated_National_Resettlement_and_Rehabilitation_Policy accessed 09 January 2021

3. The Acquisition and Requisition of Immovable Property Act, 2017

4. Abu Bakar Siddique & Md Azhar Uddin Bhuiayan,’ Preserving People’s Right to Property:Demystifying the Dichotomy of the Term ‘Public Purpose’ in case of Acquisition and Requisition of Land ‘ (2017) accessed 09 January 2021https://bdlawdigest.org/right-to-property-acquisition-and-requisition-in-bangladesh.html

5. Smt.Venkatamma And Ors. Vs City Improvement of Trust Board, Mysore (Indian Kanon) https://indiankanoon.org/doc/1526687/

accessed on 17 March, 2021

6. Jones, Stephen J. “”Triumphing Eminent Domain Law: An Argument For Strict Scrutiny Analysis Under The Public Use Requirement Of The Fifth Amendment “.” Syracuse Law Review. 285 (n.d.) accessed on 09 January, 2021

07.Ariful Islam, M. (2019) ‘Law And Practice For Land Acquisition In Bangladesh’, Bangladesh Journal Of Legal Studies [Internet], Available from:

https://bdjls.org/law-and-practice-for-land-acquisition-in-bangladesh/ accessed 09 January 2021