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BANGLADESH UNIVERSITY OF BUSINESS & TECHNOLOGY

SUBJECT TITLE : Land Laws of Bangladesh Part 2

SUBJECT CODE : LAW-621

ASSIGNMENT TOPIC IS : Right of Pre-emption and Land rights of

Indigenous people in Bangladesh

SUBMIT DATE : 08-04-2018

SUBMITTED BY SUBMITTED TO

NAME : MD: Lavlu Munshi Ashif Ul Haque

ID : 15163105021 Lecturer, Department of Law & Justice

PROGRAM : LL.B. (Hons.) Bangladesh University of Business &

INTAKE : 29th Technology

SECTION : 1
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INDEX

Introduction

Who are indigenous peoples

Indigenous Peoples' Land Rights in Banglades

Bangladesh must restore land rights of Indigenous People

Rights of indigenous peoples in Bangladesh

Indigenous peoples need land rights

Indigenous people struggle to protect land rights, way of life in Bangladesh

Conclusion
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Introduction:

Indigenous peoples, also known as first peoples, aboriginal peoples or native peoples, are ethnic

groups who are the original inhabitants of a given region, in contrast to groups that have settled,
occupied or colonized the area more recently. Groups are usually described as indigenous when
they maintain traditions or other aspects of an early culture that is associated with a given region.
Not all indigenous peoples share this characteristic, usually having adopted substantial elements
of a colonising culture, such as dress, religion or language. Indigenous peoples may be settled in
a given region (sedentary) or exhibit a nomadic lifestyle across a large territory, but they are
generally historically associated with a specific territory on which they depend. Indigenous
societies are found in every inhabited climate zone and continent of the world

Who are indigenous peoples:

It is estimated that there are more than 370 million indigenous people spread across 70 countries
worldwide. Practicing unique traditions, they retain social, cultural, economic and political
characteristics that are distinct from those of the dominant societies in which they live. Spread
across the world from the Arctic to the South Pacific, they are the descendants - according to a
common definition - of those who inhabited a country or a geographical region at the time when
people of different cultures or ethnic origins arrived. The new arrivals later became dominant
through conquest, occupation, settlement or other means. Among the indigenous peoples are
those of the Americas (for example, the Lakota in the USA, the Mayas in Guatemala or the
Aymaras in Bolivia), the Inuit and Aleutians of the circumpolar region, the Saami of northern
Europe, the Aborigines and Torres Strait Islanders of Australia and the Maori of New Zealand.
These and most other indigenous peoples have retained distinct characteristics which are clearly
different from those of other segments of the national populations.

Indigenous Peoples' Land Rights in Bangladesh:

Bangladesh is a country of ethnic and cultural diversity, with more than 54 indigenous
communities speaking at least 35 languages, where 80% of the indigenous peoples live in plain
land districts of the North and South-East of the country, and the rest in the Chittagong Hill
Tracts (CHT) areas. Historically, indigenous peoples of Bangladesh have been at the forefront of
different struggles against feudalism and colonialism, and many members of these communities
also took an active part in the 1971 Liberation War of the country as well. In spite of all these
great contributions, they remain one of the most deprived sections in all sectors.
The Government of Bangladesh does not recognize indigenous peoples as 'indigenous'. In 2011
the National Parliament enacted the 15th Amendment to the Constitution of Bangladesh denying
recognition of indigenous people as full citizens of this country. Article 6(2) of our Constitution
states, "The people of Bangladesh shall be known as Bangalees as a nation and the citizens of
Bangladesh shall be known as Bangladeshis". Again Article 23A provides, "The State shall take
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steps to protect and develop the unique local culture and tradition of the tribes, minor races,
ethnic sects and communities." Article 6(2) explicitly denies the indigenous peoples as citizens
of Bangladesh while Article 23A categories and alienates indigenous people from Bengalis
making them second class citizens of the State. Thus the Government has categorically denied
the existence of indigenous peoples in Bangladesh, though the term was used earlier by the in
legislations. The land is the mother of indigenous peoples who think themselves as the son of
land and forest as they were entirely dependent upon land and without it, they have no existence
to survive at all. The major international laws governing the land rights of indigenous peoples
inter alia include the UDHR (1948), ICCPR (1966), and UN Declaration on the Rights of
Indigenous Peoples (2007). The Declaration in its Article 10 provides that, "Indigenous person
shall not be forcibly removed from their lands or territories". Furthermore, Article 26(1) of the
Declaration stipulates that "Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise used or acquired". While
in Bangladesh, the laws governing land rights of indigenous peoples in the plains is contained in
the SAT Act (1950) and in the CHT is contained in the CHT Regulation (1900) and many other
legislations passed in the period following the CHT Accord (1997). 
However, throughout 2016 and still, present the indigenous peoples have been protesting against
governments' plans to expropriate their land in Bangladesh. Thus militarization, land grabbing,
development interventions, corporate greed, forestry and energy projects on their inherited lands
have pushed the endurance of indigenous peoples to an alarming situation. Since passing of the
15th Amendment of the Constitution, it has been observed that many attacks have been taken
place on the indigenous peoples of the CHT and plain lands of Bangladesh. 
The CHT Accord (1997) was a constructive agreement, which was signed by the Bangladesh
Government and the PCJSS has entered its 20th year. However, even after 20 years, key issues
of the CHT Accord, e.g. the Land Commission, the delegation of power to the local bodies,
militarization, rehabilitation of the IDPs, etc. remain unresolved. Though the government claims
that 48 out of 72 provisions of the CHT Accord have been implemented, the PCJSS and others
claim. In order to resolve these aforesaid problems, the government should form an independent
Land Commission for indigenous peoples of the plains to settle down the land-related disputes.
Articles 6(2) and 23A of the Constitution should be amended to give the Constitutional
recognition to indigenous peoples. The Government should completely implement the CHT
Accord (1997) as well as the Land Disputes Resolution Commission Act (2001) should be
amended. Finally, the Bangladesh Indigenous Peoples Rights Act (2015), drafted by the
Parliamentary Caucus on Indigenous Peoples, should be reviewed and considered for enactment.
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Bangladesh must restore land rights of Indigenous People:

It was more than 17 years ago — on 12 June 1996 — that plainclothes security personnel entered
the house of Kalpana Chakma, blindfolded her along with her brothers and took her away. She
has not been seen since.

Chakma was an activist working for the rights of the Pahari Indigenous People in Bangladesh’s
southeastern Chittagong Hill Tracts (CHT). In particular, she campaigned tirelessly for women’s
rights, and is still a symbol for indigenous rights in the region. Every 12 June, Pahari women
activists gather to commemorate her “disappearance” and call for an independent inquiry to find

out what happened to her. Partly to commemorate Chakma’s case, Amnesty

International this June released a report, Pushed to the Edge, which looks at the immense
struggles facing the Pahari Indigenous People in the Chittagong Hill Tracts. Today, 9 August
2013, is the International Day of the World's Indigenous People – and we are using the date to
renew our efforts to highlight the decades of plight and struggle of the Pahari, just one of
many Indigenous Peoples around the world whose rights are still being trampled on.

The Bangladeshi authorities’ failure to address land rights in the region has not only left tens of
thousands of Pahari homeless without access to their traditional lands, but also fueled tensions
with Bengali settlers, which frequently erupt into violent clashes.

The Chittagong Hill Tracts (CHT) makes up an isolated and remote region in Bangladesh.
Unlike the rest of the country, which is flat and at risk of flooding, the CHT consists of rolling
hills and deep valleys. It is home to various Indigenous Peoples – collectively known as Pahari.

It has long seen armed conflict over the Pahari demands for greater autonomy, until a 1997 peace
accord formally brought an end to hostilities. The violence, however, had a devastating effect on
the CHT – countless people were forced to flee their homes, many of which had no option but to
take refuge in the surrounding forest areas.

During the conflict a government policy to move Bengali settlers into the region, has fuelled
tensions and led to frequent clashes.  Pahari tend to suffer disproportionately in the violence,
which has over recent years left hundreds of Pahari families homeless: their houses burned down
in mob violence triggered by land disputes. Still today, it is estimated that some 90,000 Pahari
families remain internally displaced.

The peace accord included provisions both for greater regional autonomy in the CHT, as well as
the establishment of a Land Commission that would settle land ownership claims, with a view to
restoring the Pahari traditional lands to them. But, more than 15 years later, this has at best only
been partially fulfilled; the land commission has yet to make a ruling on a single case.

The peace accord also called for the removal of all temporary army camps from the region, but
the CHT still remains the country’s most militarized region today. The army presence is obvious
to anyone visiting — camps are dotted along all the main roads and throughout the region. To
Pahari villagers, this gives the impression of being under constant surveillance.
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A Pahari indigenous woman told us: ““We are now left with no land to farm. We have the army
at very close proximity and I feel very insecure even walking short distances. There are
checkpoints we have to cross if we want to travel a bit further in search of fuel. Our home has
become an insecure unsafe place to live. I’m now constantly worried about getting food for my
family and the security of my children.”

This combination — the heavy military presence, the inflow of Bengali migrants, and the
unresolved land issues — makes for a volatile mix. Clashes between the Pahari and Bengali
settlers are common, often affecting the Pahari badly, who feel the military tend to take the
Bengalis’ side.Many Pahari have no formal record of ownership of their lands, making them
constantly vulnerable to dispossession by governments and private parties.
Successive Bangladeshi government have also operated on the assumption that these lands are
“owned” by the state. But this ignores the fact that, under international human rights
law, Indigenous Peoples have a right to their traditional lands.

These lands are not just crucial for the livelihoods of people in the region, but for many Pahari
their lands are also intimately linked to their culture, identity and way of life.
Indeed, almost all those who Amnesty Internatonal met in the CHT– whether Bengali settlers,
Pahari villagers and leaders, or army/government officials – felt that addressing the land issue
was central to resolving many of the problems in the region today.

Bangladesh must respect its obligations under international human rights law – including the UN
Declaration on the Rights of Indigenous Peoples and the International Labour Organisation
Convention on Indigenous and Tribal Peoples No.107 – and take concrete steps to return the
Paharis’ traditional lands to them, with the effective participation of Pahari women and men in
the process.The Land Commission could play a crucial role in solving the protracted land
disputes, but years of official neglect and exclusion of Paharis from its decision making means
that it has become little more than an empty shell. However, a new bill on the Commission was
introduced in parliament in June this year – this has to be taken seriously by the government, and
the Commission should be assigned the resources and priority it needs to perform its
function.One villager we spoke to summed up the Pahari’s decade-long struggle in a simple but
poignant way: “You see all these hills around — they used to be ours, but the settlers have taken
them.”It is high time for the Bangladeshi authorities to take concrete measures to protect Pahari
people’s fundamental human rights

Rights of indigenous peoples in Bangladesh:

The International Day of World's Indigenous Peoples is observed on 9th August of each year to
protect the rights of indigenous people worldwide, as on 23rd December 1994, the UNGA has
decided that this day should be observed on 9th August each year during the International
Decade of the World's Indigenous Peoples. The rights of indigenous people have assumed a
significant place in the international human rights law. In recent years the issues concerning
indigenous peoples have not only been received the national and global attention, but have
attained the status of customary international law and thus legally binding upon all States.  
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Now the question is, “who are the indigenous peoples?” There exists an informal common
accord among the States that indigenous peoples are the descendents of those who inhabited a
geographic region, when people of different ethnic origins arrived. In Asian context, the term
'indigenous peoples' is commonly understood as different cultural groups, e.g., 'Adivasis', 'tribal
peoples', 'hill tribes' or 'scheduled tribes'. In Bangladesh, they are treated as 'tribals' in official
documents, though in the Act 12 of 1995 and Rules 6, 34, 45, 50 of Chittagong Hill Tracts
(CHT) Regulation (1900), they are documented as 'indigenous peoples' or 'aboriginal' as per
section 97 of the SAT Act (1950). In Bangladesh there are about 50 different indigenous
communities living in the plain lands and hill areas. Though they claim that their population is
over 3 million, according to the survey of 2011, the country's indigenous population is around
1,586,141, which signifies 1.8% of total population of the country.

The Constitution of Bangladesh ensures affirmative action for indigenous peoples and prohibits
discrimination inter alia on grounds of race, religion or place of birth, Article 23A of which
provides, “the State shall take steps to protect and develop the unique local culture and tradition
of the tribes, minor races, ethnic sects and communities”. It also spells out in Article 28 (4),
“nothing in this Article shall prevent the State from making special provision in favor of women
or children or for the advancement of any backward section of citizens”.

Also the State Acquisition and Tenancy Act (1950) restricts the sale of lands of 'aboriginal castes
and tribes' to anyone except aboriginal castes domiciled in Bangladesh. There are five major
Acts that address the crucial aspects of rights of indigenous peoples in the CHT: (i) the CHT
Regulation (1900); (ii) the CHT Development Board Ordinance (1976); (iii) the Hill District
Council Acts (1989); (iv) the CHT Regional Council Act (1998); and (v) the CHT Land Disputes
Resolution Commission Act (2001). The Bangladesh Indigenous Peoples Forum (BIPF) urged
the government to enact the Bangladesh Indigenous Peoples Rights Act (2015) which is being
drafted by the Parliamentary Caucus on Indigenous Peoples and formulated by the NHRC
aiming to ensure economic, social, and cultural rights of indigenous people.

At the universal level, the UN Declaration on the Rights of Indigenous Peoples (2007) is the
latest human rights instrument addressing the basic rights of world indigenous people. Also the
ILO has developed two global instruments regarding indigenous people: the Indigenous and
Tribal Populations Convention, 1957 (No. 107) to which Bangladesh is a Party from 1972, and
the Indigenous and Tribal Peoples Convention, 1989 (No. 169). These treaties signify that, self-
identification as 'indigenous' shall be regarded as a basic criterion for determining the groups to
which the provisions of this Convention apply.

Though the indigenous people retain the economic, social, cultural and political characteristics
that are different from those of the dominant societies in which they live, a major portion of them
continues to be deprived of the basic socio-economic rights. Despite Bangladesh has acceded to
a number of global human rights treaties, effective implementation of those treaties through
taking effective legislative, administrative and judicial measures is far from good.
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Indigenous peoples need land rights:

The failure of the ILO’s Indigenous and Tribal Peoples Convention 1957, adopted by
Bangladesh in 1972, is to blame for some of the problems being faced by the indigenous
communities, the NHRC chief has said

Reazul Haque, chairman of the National Human Rights Commission, has said that one of his
long-term goals is to solve the land disputes that have plagued the indigenous groups.

He made the statement at a national seminar on the Rights of Indigenous Human Rights
Defenders, organised by the Indigenous Peoples Development Service (IPDS). The seminar was
held at the CBCB Centre in the capital.

The event was organised in order to increase awareness among the indigenous peoples, where
National Coordinator of the International Labour Organisation (ILO) Alexius Chicham gave a
presentation informing the human rights defenders of their rights, duties and practices.

The United Nations declaration on Human Rights Defenders 1998, which outlines the
protections and duties afforded to human rights defenders and organisations, took a central part
of the discussions.

Rezaul claimed that the failure of the ILO’s Indigenous and Tribal Peoples Convention 1957,
which was adopted by Bangladesh in 1972, was to blame for some of the problems being faced
by the indigenous communities. “It was integrated, but never implemented, and that is why the
indigenous peoples face violence in this country,” he said.

The NHRC chief also urged for decisive action against those responsible for attacks against
minorities, as well as harsh punishment in order to discourage future atrocities.

The indigenous groups in the Chittagong Hill Tracts region have long been demanding land
rights, but the CHT Land Commission formed in 1999 has failed to solve a single case. The
government recently amended the law and issued a circular seeking complaints.

Dr Meghna Guhathakurta, a member of the  NHRC, also spoke on the role and importance of the
human rights defenders, emphasising on Chicham’s presentation.

President of IPDS Sanjeev Drong presided over the national seminar. More than 250 young
indigenous human rights defenders were in attendance.

Indigenous people struggle to protect land rights, way of life in Bangladesh:

Indigenous people in Bangladesh face threats to their way of life because the government is
ignoring long-standing land ownership rights, two advocates said during a visit to the U.S.
Conference of Catholic Bishops.
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Oblate Fr. Joseph Gomes of the Sylhet diocese, in northeastern Bangladesh, and Sanjeeb Drong,
general secretary of the Bangladesh Indigenous Peoples Forum based in the capital of Dhaka,
said indigenous people are being forced from the rural lands their ancestors have lived on and
farmed for centuries to make way for the majority Bengali population.

The indigenous have been relegated to "second-class" status by the government, allowing for
their removal from areas in northern provinces and the Chittagong Hill Tracts in the southeast,
Gomes said.

The indigenous population encompasses about 3 million people, a small percentage of

Bangladesh's estimated 160 million inhabitants. They belong to 54 different ethnic groups in a
country the size of Iowa. The country is nearly 90 percent Muslim and about 10 percent Hindu,
with a handful of Christians and Buddhists.

About 90 percent of indigenous people have lost their land holdings, the men told a small
gathering at USCCB headquarters. "The big problem is that the Islamization of indigenous areas is
getting stronger," said Drong, who hails from an indigenous community in the country's north.
"Intolerance toward non-Muslim people is increasing today."

Bangladesh won its independence from Pakistan in 1971 after a particularly brutal nine-month
civil war. Since then, indigenous people have struggled to maintain their identities and traditional
land holdings.

The situation has worsened since 1988 when Bangladesh's constitution was amended to make
Islam the state religion, explained Gomes, who is of the mainstream Bengal community, but
works for the Sylhet diocese's Justice and Peace Commission advocating for indigenous people.

"For Sylhet and likewise in other dioceses, we need a very strong leadership, even in the church,"
the Oblate said. "(We need) priests and nuns to work together with the people's organizations so
we can protect these indigenous peoples' rights, especially the land rights. That's very urgent.
That's not really very possible without any support (from the church)."

The country's constitution was amended again in 2010 and 2011 to redefine indigenous
populations as "tribes," "minor races" and "ethnic sects and communities." Without the
indigenous designation, the minority population is unable to secure protection under U.N.
protocols.

"We need to change the attitude of the government," Gomes added.

Drong said much of the drive to move indigenous people is fueled by efforts to boost tourism
and to allow three companies to expand their production of tea, a staple in Bangladeshi life.

Indigenous Bangladeshis also face threats from a small insurgency driven by an adherence to the
ideology of the Islamic State group as well as climate change, which is causing low-lying areas
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of the country to be inundated by seawater, forcing the government to relocate people to other
areas, including some indigenous lands, the men said. Pleas by indigenous groups for land and
human rights largely have been ignored by the government despite ongoing demonstrations,
community meetings and repeated outreach efforts to authorities, Drong explained.

During an interview with Catholic News Service after the gathering, Drong called for special
measures from the Bangladeshi government to protect the human rights of indigenous
communities.

"It's not like saying, 'We all are human beings and people all have equal rights.' That is fine, but
it doesn't work. Special protections, special measures are needed for indigenous people," he said.

The men participated in the U.N. Permanent Forum on Indigenous Issues May 13. In
its 15th year, the forum is an annual two-week program examining indigenous issues related to
economic and social development, culture, the environment, education, health and human rights.

The men also planned to meet with an official at the U.S. Department of State to discuss their
concerns in the hope that the United States would stress the importance of upholding indigenous
rights with Bangladeshi officials.

"We seek U.S. government support," Drong said. "They should speak when they see a violation
of human rights, destroying the buildings, burning houses. It's in the newspaper these reports.
Then they should speak. They should at least express their concern about what is going on with
indigenous people with the government."

Gomes and Drong told CNS they have received threats for their advocacy. At one
time, Drong was run off the road while riding his motorcycle and had to flee on foot, fearing for
his life, he said. Gomes said threatening messages have been left on his phone and a member of
parliament suggested he work in traditional ministry rather than "politics."

Conclusion:

The indigenous peoples of Bangladesh refer to native ethnic minorities in southeastern,

northwestern, north-central and northeastern regions of the country. These regions include the
Chittagong Hill Tracts, Sylhet Division, Rajshahi Division and Mymensingh District. The total
population of indigenous ethnic minorities in Bangladesh was estimated to be over 2 million in
2010. They are diverse ethnic communities including Tibeto-Burman, Austric, and Dravidian
people. Vast number of indigenous tribes of Bangladesh are Buddhists and Hindus by faith while
the remaining few are Christians and animists. The primary census report of 2011 gives the
number of ethnic population groups of Bangladesh as 27. The first is Chakma, consisting of
444,748 people while the Marma, the second largest ethnic group compares with 202,974
persons.
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INDEX of Right of Pre-Emption

1. Introduction

2. What is Pre-emption

3. Historical meanings

4. Sources of right of pre-emption

5. State Acquisition and Tenancy Act 1950

6. Comparison of Pre-emption under SAT ACT and The Land Reforms Ordinance 1984

7. Why we use Pre-emption rights

8. Pre-emption related ACT

9. Conclusion
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Introduction:

Generally Pre-emption is a right of opportunity of purchasing land in priority to other people,

which is ensured in some provisions in various acts of our country. So the right of pre-emption is
not merely a personal right but an incident annexed to the land. In the State Acquisition and
Tenancy Act of 1950 the right of pre-emption is settled by Section 96.  The right of pre-emption
is also given in some other laws, in some laws it is given directly and in some laws it is given
indirectly.

What is Pre-emption:

The term ‘pre-emption’ is the English equivalent of Arabic term ‘shufaa’. In law, the meaning
and import of both words are relevant. The word ‘pre-emption’ was derived from Latin ‘prae’
means before and ‘empto’ or ‘emption’, which means ‘buying’.

Dr. Mullah says that: ‘The right of shufaa or pre-emption is a right which the owner of the
immovable property posses to acquire by purchase another immovable property which has been
sold to another’. According to him pre-emption is similar to re-purchase or re-sale. To another
author, a pre-emption is a right of a neighbour superior to that of a stranger in the lands
continuous of one land. There are different types of opinion about pre-emption.

Again the word ‘pre-emption has not been defined by any of the statutes in Bangladesh.
However there are judicial pronouncements defining the term pre-emption. In his classical
judgment delivered in the celebrated case of Gobind Dayl v. Inayatullah his Lordship justice
Mahmood defined pre-emption as simply a right of substitution, entitling the pre-emptor, by
reason for a legal incident to which the sale itself was subject, to stand in the shoes of the vendee
in respect of the rights and obligations arising from the sale under which he has derived his title.
This definition has been adopted by the Indian Supreme Court in Vijaylakshmi v. B. Himanthraja
Chetty.

In our country the case of Md. Basiruddin Mandal v. Annamoni the above view has been
supported in the following terms:

“It would be incorrect to describe it as a re-sale by the transferee to the co- sharer applicant. It is
not a re-purchase of the property from either the vendor or the vendee. It is a right to acquire the
property at the same price as given by the transferee”.

By this case the definition of the right of pre-emption comes in a formed structure. It is now
evident that the right of pre-emption does not involve “a sale” by the transferee. It is really a
substitution of ownership in respect of the pre-empted property.
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Historical meanings:

In earlier time, "pre-emption right" has had a separate and distinct meaning to that given to it
today.

Under international law, the right of preemption formerly referred to the right of a nation to
detain merchandise passing through its territories or seas, in order to afford to its subjects the
preference of purchase. This form of right was sometimes regulated by treaty. A treaty between
the United States and Great Britain in 1794 agreed that:

whereas the difficulty of agreeing on precise cases in which alone provisions and other articles
not generally contraband may be regarded as such, renders it expedient to provide against the
inconveniences and misunderstandings which might thence arise. It is further agreed that
whenever any such articles so being contraband according to the existing laws of nations, shall
for that reason be seized, the same shall not be confiscated, but the owners thereof shall be
speedily and completely indemnified; and the captors, or in their default-the government under
whose authority they act, shall pay to the masters or owners of such vessel the full value of all
articles, with a reasonable mercantile profit thereon, together with the freight, and also the
damages incident to such detention.

In the United States in the eighteenth century, when an individual bought the preemption right to
land, he did not buy the land. He was only buying the right to buy the land. In the case of
the Phelps and Gorham Purchase, the syndicate paid Massachusetts USD$1,000,000 for the pre-
emptive rights, and then paid the Indians, who thought they owned the land, $5,000 cash and an
annual $500 annuity forever for their title to the land

Sources of right of pre-emption:

1. Muhammadan Law

2. Local Custom

3. Statutes:

i) State Acquisition and Tenancy Act 1950

ii) Non Agricultural Tenancy Act 1949

iii) Partition Act 1893

iv) Land Reforms Ordinance 1984

v) Arpito Sampatti Prottarpan Ain (Vested Property Return Act)

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State Acquisition and Tenancy Act 1950:

Sec. 96 provided the right of pre-emption in State Acquisition and Tenancy Act. It comes into
operation on the 14th April, 1956[5]. It provides:

(1)   If a portion or share of a holding of a raiyat is transferred, one or more co-sharer tenants of
the holding may, within four months of the service of the notice given under sec. 89, or, if no
notice has been served under sec.89, within four months of the date of the knowledge of the
transfer, apply to the Court for the said portion or share to be transferred to himself or
themselves; and if a holding or a portion or a share of a holding is transferred, the tenant or
tenants holding land contiguous to the land transferred may, within 4 months of the date of the
knowledge of such transfer, apply to the Court for the holding or portion or share to be
transferred to himself or themselves:

Provided, that no co-sharer tenant holding land contiguous to the land transferred shall have the
right to purchase under this section unless he is a person to whom transfer of the holding or the
portion or share thereof, as the case may be, can be made under sec. 88 and 90.

(2)   In an application made under sub-section (1) by a co-sharer tenant or co-sharer          

tenants, all other co-sharer tenants of the holding and the transferee shall be made parties and in
such an application made by a tenant holding land contiguous to the land transferred, all the co-
sharer tenants of the holding and all the tenants holding lands contiguous to the land transferred
and the transferee shall be made parties.

(3)   (a) An application made under sub-section (1) shall be dismissed unless the applicants, at
the time of making it, deposit in the Court the amount of the consideration money or the value of
the transferred holding or portion or share of the holding as stated in the notice under section 89
or in the deed of transfer, as the case may be, together with compensation at the rate of ten per
centum of such amount.

(b) On receipt of such application accompanied by such deposit, the Court shall give notice to
the transferee and to the other persons made parties thereto under sub-section (2) to appear
within such period as it may fix and shall require such persons to state the consideration money
actually paid for the transfer and shall also require the transferee to state what other sums he has
paid in respect of rent since the date of transfer and what expenses he has incurred in annulling
encumbrances on, or for making any improvement in respect of, the holding, portion or share
transferred, and the Court shall then, after giving all the parties an opportunity of being heard
after holding an enquiry as to the actual amounts of the consideration money and rent paid and
the expenses incurred by the transferee in annulling encumbrances on, or for the improvement of,
the land transferred, direct the applicant or applicants to deposit a further sum, if necessary,
within such period as it thinks reasonable:
 15

Provided that the transferee shall, in no case, be entitled to claim consideration money in excess
of the amount mentioned in the deed of transfer.

(4) When an application has been made under sub-section (1), any of the remaining co-sharer
tenants including the transferee, if one of them, and the tenants holding lands contiguous to the
land transferred may, within the period referred to in sub-section (1) or within to months of the
date of the service of the notice of the application under clause (b) of sub-section (3), whichever
be earlier, apply to join in the said application; any co-sharer tenant or tenant holding land
contiguous the land transferred, who has not applied either under sub-section (1) or under this
sub-section, shall not have any further right purchase under this section.

(5) (a). If  (i) a co-sharer tenant whose interest has accrued by inheritance and (ii) a co-sharer
tenant whose interest has accrued by purchase and (iii) a tenant holding land contiguous to the
land transferred apply under this section and comply with the provisions herein contained, the
applicant or applicants shall have the prior right to purchase under this section in the order in
which they have been mentioned above.

(b) If more than one tenant holding land contiguous to the land transferred apply under this
section, the Court shall determine the order of priority as among such tenants having regard to-

(i)     the total quantity of land in possession of each of the tenants applying;

(ii)   whether the contiguous land of the tenant is homestead land or any other class of land;

(iii) extent of contiguity;

(iv) to what extent it is necessary for the applicant to have possession of the contiguous land; and

(v)   the right of easement, if any, of the applicants.

(6) (a) On the expiry of the period within which an application may be made under sub-section
(4), the Court shall determine, in accordance with the provisions of this section, which of the
applications filed under sub-section (1) or sub-section (4) shall be allowed.

(b) If the Court finds that an order allowing the applications made under this section is to be
made in favour of more than one applicant, the Court shall determine the amount to be paid by
each of such applicants and, after apportioning the amount, shall order the applicant or applicant
who have joined in the original application under sub-section (4) to deposit the amounts payable
by him or them within such period as it thinks reasonable; and if the deposit is not made by any
such application within such period, his application shall be dismissed.

(7) (a) On the expiry of the period within which a deposit, if any, is to be made under clause (b)
of sub-section (6), the Court shall pass orders allowing the application or applications made by
the applicant or applicants who are entitled to purchase under and have compiled  with the
provisions of the section and, when such orders are passed in favour of more than one applicant,
 16

shall apportion the holding or the portion or share of the holding among them in such manner as
it deems equitable; and the applicant or applicants under sub-section (1)’ if found to be entitled
to a refund of any money, shall get the refund from the amount deposited by the applicant or
applicants under clause (b) of sub-section (6).

(b) The Court shall, at the same time, pass an order directing that the transferee be paid out of the
deposits made under sub-section (3) the amount of consideration money paid by him for the
transfer together with compensation at the rate of ten per centum of such amount, the amount if
any, paid by him on account of rent of the holding, portion or share transferred since the date of
transfer and the amount of expenses, if any, incurred by him in annulling encumbrances on, or
for making any improvement in respect of, such holding, portion or share.

(8) No apportionment order under sub-section (7) shall operate as division of the holding.

(9) From the date of the passing of the order under sub-section (7) –

(a)    the right, title and interest in the holding or portion or share thereof accruing to the
transferee from the transfer shall, subject to any orders passed under the said sub-section , be
deemed to have vested free from  all encumbrances which have been created after the date of
transfer in the co-sharer tenants or in the tenants holding lands contiguous to the land transferred,
as the case may be, whose applications to purchase have been allowed under sub-section (7);

(b)   the liability of the transferee for the rent of the holding or portion or share from the date of
the transfer shall cease; and the co-sharer tenants or the tenants holding lands contiguous to the
land transferred whose applications to purchase have been so allowed shall be liable for any such
rent due from the transferee; and

(c)    the Court on further applications of such applicant or applicants may place him or them, as
the case may be in possession of the property vested in him or them.

(10) Nothing in the section shall apply to –

(a)    a transfer to a co-sharer in the tenancy whose interest has accrued otherwise than by
purchase; or

(b)   a transfer by exchange or partition; or

(c)    a transfer by bequest or gift (including Heba but excluding Heba-Bil-Ewaj for any
pecuniary consideration) in favour of the husband or wife or the testator or donor, or of any
relation by consanguinity within three degrees of the testator or donor; or

(d)   a simple or complete usufructuary mortgage, or, until a decree or order absolute for
foreclosure is made, a mortgage by conditional sale; or

(e)    a Waqf in accordance with the provisions of the Muhammadan Law; or

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(f)    a dedication for religious or charitable purposes without any reservation of pecuniary
benefit for any individual.

Explanation— A relation by consanguinity shall, for the purpose of this section, include a son
adopted under the Hindu Law.

(11) Nothing in this section shall take away the right of pre-emption conferred on any person by
the Muhammadan Law.

(12) An application under this section shall be made to the Court, which would have jurisdiction
to entertain a suit for the possession of land in connection with which the application is brought.

(13) An appeal shall lie to the ordinary Civil Appellate Court from any order of a Court under
this section and, notwithstanding anything contained in any other law for the time being in force,
there shall be no second appeal from an order of the first Appellate Court.

Comparison of Pre-emption under SAT ACT and The Land Reforms Ordinance 1984:

Section 96 of SAT Act provides the right of Pre-emption and Section 13 of the LRO gives the
bargadar the right to Pre-empt the bargaproperty, which has been sold.

A co-sharer tenant of a holding and tenants holding land contiguous to the land can apply for the
exercise of the right of pre-emption under SAT Act. But a barga land owner has to ask the
bargadar to buy the bargaland in writing if he wants to sell the land according to section 13 of the
LRO. That means the bargadar has got the right of pre-emption on the bargaproperty.

With the pre-emption application the consideration money shall be accompanied with it by
deposit in court. But under the LRO the bargadar needs not to deposit any money, he has to buy
a land in general process granted by law.

If the co-sharer tenant of contiguous land owner having the notice under section 96(1) do not
apply within four months, he will lose the right of pre-emption but if the Bargadar do not express
any intimation to the owner within 15 days of getting the written asking to buy the Bargaland,
the owner may sell the land to any person.

If person becomes co-sharer by inheritance he excludes the others from the right of pre-
emption and a co-sharer by purchase excludes the contiguous land holders. But if the owner sells
the Bargaland to his parent, wife, son, daughter or son’s son or to any such other member of his
family the Bargadar lose the right of pre-emption.

There is time limitation of four months under SAT Act for pre-emption and there is 15 days of
time limitation for Bargadar under LRO. SAT Act does not give the right of second appeal but
there is no matter of second appeal in LRO[15] for Bargadar because he can purchase the land
under general of purchasing land and those rule and system is applicable for him
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Why we use Pre-emption rights:

A right of pre-emption means a right to buy in priority to any other buyer.

So I might agree to sell you land to grow vegetables, but I also think one day you might sell it to
someone who might get planning permission for six houses. The simplest way for me to make
sure I have the benefit of any future uplift in value is to add a few paragraphs to my sale contract
that sets down my rights in the event that you should ever try to sell.

Those paragraphs set out that if a seller appears, you have to tell me and give me evidence of the
terms agreed provisionally. I then have the chance to step into the buyer’s shoes, either at the
same price or at some other price, fixed specifically or by formula. For example, my price could
be the price at which I sold to you, an index linked price or maybe something greater.

In practice, pre-emption rights are commonly cleared by you and I getting together informally
and agreeing that I get paid out in cash when the next sale goes through. That is because my
circumstances have changed and all I want is the uplift in value, not the actual land.

Generally, the seller sets out the terms of the deal and so the buyer has little power to object to
the pre-emption right being included as part of the sale. The seller includes a pre-emption right
because it is simpler than using a separate option agreement and less complicated than inlcluding
other terms in the sale agreement that might prove to be wrong or inappropriate at a later date.

Pre emption related ACT :

Pre-emption is a prior right of a co-sharer of a land either by purchase or by inheritance, owner

of adjoining property or neighbor of a land. When a piece of land is sold to a third party without
acknowledging such owners of land, the question of right of pre-emption arises, i.e., the co-
sharer of land is first entitled to purchase the land and claim the ownership. If he waves his right
by consent either expressly or impliedly, a third party or a stranger can purchase it. In
Bangladesh there are three legal approaches as regards pre-emption- (i) Muslim Law Approach,
(ii) State Acquisition & Tenancy Act, 1950 Approach and (iii) Non-agricultural Tenancy Act,
1949 Approach. This paper will focus on pre-emption under Muslim law and statutory laws in
Bangladesh and make a comparative study. It will analyze present situation or approach of pre-
emption in Bangladesh and determine the drawbacks of the existing statutory law and problems
in case of application of pre-emption, and give way of solution.
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Conclusion:

Though there is the right of pre-emption in various acts the Sat Act is the pioneer of all this
provisions on the matter of pre-emption. Because the SAT Act gives the clear, descriptive and
procedural sections about pre-emption. Section 96 relating to section 88 and 90 gives a formed
structure of the right of pre-emption. The right of pre-emption was broadly included first in
Bengal Tenancy Act 1885. The proceeding under section96 of the SAT Act is in the nature of a
suit. The right, title and interest of the transferee vests in the petition, if he us successful and as
such the order passed in a pre-emption proceeding conclusively determines the rights of the
parties with regard to the land in dispute and as such this is the original proceeding and the
determination of the right of the parties are conclusive. The other acts provides the right of pre-
emption to some specific persons but not the process and ways how to apply the right of pre-
emption. The Partition Act provides the right of pre-emption of a co-sharer of a dwelling-house.
The Land Reforms Ordinance provides the right of pre-emption to a Bargadar[18] in buying of
the Bargaland if the owner wants to sell it. The Restoration of Vested Properties Act provides
this right to a co-sharer by inheritance in the holding to the land sold or leased by the government
having no owner of that land. Again to the who possessed the sold property at least ten years by
lease before sell or give lease of that land by government having no owner. So from these
discussion we can assume that the other laws then the State Acquisition and Tenancy Act
provides only the right of pre-emption to some specific persons but this Act provides the right of
pre-emption itself and the ways for application of this right. The time limitation and who and
how can apply for this right all of these are provides by the Section 96 of the Sat Act and this
sections relates itself with Section 89 and 90.