Pre-emption is a prior right of a co-sharer of a parcel of land by purchase or inheritance, the owner of adjacent property, or a land's neighbor. When a piece of land is sold to a third party without acknowledging the land's co-owners, the issue of pre-emption emerges, i.e., the co-owner has the right to purchase the land and claim ownership.
If he waives his right, either directly or implicitly, a stranger or a third party can purchase it. Regarding pre-emption, Bangladesh has three distinct legal approaches: I the Muslim Law Approach, (ii) the State Acquisition & Tenancy Act, 1950 Approach, and (iii) the Non-agricultural Tenancy Act, 1949 Approach. This paper will compare and contrast pre-emption under Islamic law and statute law in Bangladesh.
It will assess the current condition or approach of pre-emption in Bangladesh, identify the flaws of the existing statutory law and problems if pre-emption is applied, and propose a remedy.
Rights of Pre-emption in land law of Bangladesh:
Pre-emption is the right to acquire property before or in the presence of another. The term pre-emption was formed from the Latin words prae, which means "before," and emptions, which means "purchasing." According to Dr. A.R. Biswas's Encyclopedic Law Dictionary, pre-emption is the legal right to purchase an item before anyone else.
In Arabic, preemption is referred to as shuf'a. "Shuf'a" means conjunction; in this context, it refers to the right of the owner of a property that is adjacent to another. Haq means accurate. Therefore, haq-shufa refers to the right to acquire a property adjacent to one's own from a new buyer. In practice, it signifies the right to displace a new purchaser and assume his position in relation to an adjacent property. One has the right to prevent strangers from entering their neighborhood.
The right of pre-emption is not a right to repurchase, but rather a right of substitution, allowing the pre-emptor to step into the shoes of the buyer. In Bishan Singh v. Khazan Singh4, where Subba Rao, J., summarized the rules of pre-emption, the supreme court of India took this viewpoint:
(1) The pre-emption right is not a right to the item being sold, but rather a right to the offer of an item that is soon to be offered. This right is known as the fundamental or inherent right. (2) The pre-emptor has a remedial or secondary right to follow the sold item. (3) It is a right of substitution but not of repurchase, meaning that the pre-emptor assumes the obligations of the original purchaser. (4) This is a right to acquire the entire property sold, not a fractional interest.
(5) As preference is the heart of the pre-emption right, the pre-right emptor's must be superior to that of the vendee or substitute. Pre-emption is the right of a co-owner or adjacent owner of an immovable property to acquire by purchase another immovable property that has been sold to a third party. The pre-emption statute dates back to Roman law. In a purchase agreement, the Romans utilized their pre-emption right. In the Indian subcontinent, it was originally implemented during the rule of the Mugals, whose origins can be traced to Islamic law.
v) Arpito Sampatti Prottarpan Ain (Vested Property Return Act)
How State Acquisition and Tenancy Act section 96 gave for the right of preemption:
(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 section 89, or, if no notice has been served under section 89, within four months of the date of knowledge of the transfer, apply to the Court for the portion or share to be transferred to him or them; and if a holding or a portion or a share of a holding is transferred,
Provided, however, that no co-sharer tenant owning land adjacent 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 portion or share thereof, as applicable, may be made pursuant to sections 88 and 90.
(2) In an application made under subsection (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 an application made by a tenant holding land adjacent to the land transferred, all co-sharer tenants of the holding and all tenants holding lands adjacent to the land transferred shall be made parties.
(3)
(a) An application made under subsection (1) is dismissed unless the applicants, at the time of making the application, deposit with 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 applicable, along with compensation at the rate of ten percent of such amount.
The transferee shall not, under any circumstances, be entitled to claim consideration money in excess of the amount specified in the transfer deed.
(4) When an application under subsection (1) has been made, 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 subsection (1) or within two months of the date of service of the notice of the application under clause (b) of subsection (3), whichever is earlier, apply to join in the said application; any co-sharer tenant or tenant holding lands contiguous to the land transferred
(5) (a) (a). If I a co-sharer tenant whose interest has accrued by inheritance, (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 specified above.
(b) If more than one tenant holding land next to the transferred land applies under this section, the court shall decide the order of priority among such tenants by considering:
(i) the total amount of land owned by each of the tenants applying;
(ii) if the tenant's contiguous land is homestead land or another type of land;
(v) the applicants' easement rights, if applicable.
(6) (a) Upon expiration of the period within which a petition may be submitted pursuant to subsection (4), the Court shall, in accordance with the requirements of this section, determine which of the petitions filed pursuant to subsection (1) or subsection (4) shall be granted.
(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 applicants who joined in the original application under subsection (4) to deposit the amounts payable by him or them within such period as the Court deems reasonable; and if the deposit is not made within such period, the Court shall order the applicant or applicants to pay
(7) (a) On the expiry of the period within which a deposit, if any, is to be made in accordance with 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 complied with the provisions of the section and, when such orders are passed in favour of more than one applicant, shall apportion the holding or the portion or share of the holding among them in such manner as the Court.
(b) The Court shall simultaneously pass an order directing that the transferee be paid out of the deposits made under subsection (3) the amount of consideration money paid by him for the transfer along with compensation at the rate of ten percent 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, if any, incurred by him in annulling encumbrances obstructing the transfer.
(8) A apportionment order issued pursuant to subsection (7) does not constitute a partition of the holding.
(9) Commencing on the date of issuance of the order under subsection (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 of all encumbrances 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 approved under sub-section (7);
(b) the transferee's liability for the rent of the holding or portion or share from the date of the transfer shall cease; and the co-sharer tenants or tenants holding lands contiguous to the land transferred whose applications to purchase have been approved shall be liable for any such rent due from the transferee; and
c) Upon further application of such applicant or applicants, the Court may place him or them in possession of the property vested in him or them.
(10) This subsection does not apply to:
(a) a transfer to a co-tenant whose interest has accrued through means other than acquisition; or
b) a transfer through exchange or partition; or
(c) a transfer by bequest or gift (including Heba but excluding Heba-Bil-Ewaj for any pecuniary compensation) in favor of the husband or wife or the testator or donor, or any consanguineous connection within three degrees of the testator or donor; or
(d) a simple or complete usufructuary mortgage, or a mortgage by conditional sale, until a decree or order of absolute foreclosure is issued; or
e) a Waqf established in line with the Muhammadan Law; or
(f) a donation made for religious or philanthropic reasons without any monetary gain being reserved for an individual.
Explanation: For the purposes of this provision, a son adopted under Hindu law shall be considered a consanguineous relation.
(11) Nothing in this section shall abrogate a person's right of preemption under the Muhammadan Law.
(12) An application under this section must be filed with the court that would have jurisdiction to hear a suit for possession of the land in question.
(13) An order of a court issued pursuant to this section may be appealed to the regular Civil Appellate Court, and, notwithstanding anything to the contrary in any other legislation now in effect, there shall be no second appeal from an order of the first Appellate Court.
Partition Act 1893 in regards to Pre-emption in land law of Bangladesh:
Section 4 of the Partition Act grants the co-sharer of an intact family the right of pre-emption.Suit for partition by the transferee of a stake in a dwelling:
(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the court shall, if any member of the family being a shareholder undertakes to buy the share of such transferee, make a valuation of such share in the manner it deems appropriate, direct the sale of such share to such shareholder, and may give all necessary and proper direction in that behalf.
(2) If, in any situation specified in subsection (1), two or more family members, each of whom is a shareholder, promise to purchase such a share separately, the court shall follow the procedure outlined in subsection (2) of the preceding section.
(2) Section 3 stipulates that if two or more shareholders petition separately for permission to purchase, the court shall order the sale of the share or shares to the shareholder who proposes to pay the greatest price above the court's value.
Certain conditions must be met prior to the application of Section 4: (1) the suit must relate to the dwelling house of an undivided family; (2) the dwelling house must have been transferred to a stranger; and (3) the stranger-transferee must have filed a suit for partition. [6] Once these conditions are met, a co-sharer may apply to the court. Section 4 of this statute grants a co-sharer the right of pre-emption over a stranger's right.
Preemption under the SAT Act and the Partition Act:
Despite the fact that Section 4 of this Act does not contain the phrase "pre-emption," it grants the power of pre-emption to a co-tenant. The SAT Act grants the right of pre-emption to a co-tenant and a tenant holding adjoining land, while the Partition Act guarantees this right to a co-tenant of a home.
A member of an undivided family may exercise their right of pre-emption in connection to a dwelling house under section 4 not only when a stranger-transferee is the plaintiff, but also when they are the defendant in a partition suit.
The purpose of section 96 of the SAT Act is to minimize the subdivision and fragmentation of agricultural estates, which were the primary causes of Bangladesh's agricultural backwardness. The purpose of section 4 of the Partition Act is to prevent the intrusion of strangers into the dwelling-house in a partition suit: The right of pre-emption in relation to a dwelling-house under section 4 may be exercised by a member of an undivided family both when a stranger-transferee is a plaintiff and a defendant in a partition suit.
This purpose would be defeated if a stranger-purchaser is permitted to overcome a pre-emption claim under section 4 of the Act based on a literal and restrictive construction of the section. In a suit for partition, the parties are in the position of counter-claimants, and a defendant in a suit for partition may very well be presumed to be suing for partition.
The 1984 Land Reforms Ordinance and Pre-emption in land law of Bangladesh:
According to Section 13 of the Land Reform Ordinance, the Bargadar has the right of pre-emption over sold barga property.
Section 13.Boargadar's right to acquire
(1) If the owner plans to sell barga land, he must ask the bargadar in writing if he is interested in purchasing the land.
1) This rule shall not apply if the owner sells the land to a co-owner, his parent, his wife, his son, his son's son, or any other member of his family.
(2) Within fifteen days of receiving the offer, the bargadar must notify the owner in writing of his decision to purchase or not purchase the land.
(3) If the bargadar decides to purchase the land, he must negotiate the price of the land with the owner and purchase the land on the terms agreed upon by the two parties.
(4) If the owner does not receive notification from the bargadar regarding his decision to purchase or not purchase the land within the specified time period, or if the bargadar notifies the owner of his decision not to purchase the land, or if the bargadar does not agree to pay the price demanded by the owner, the owner may sell the land to whomever he deems appropriate:
The owner may not sell the property to such a person at a price lower than the price offered by the bargadar.
When barga land is purchased by a party other than the bargadar, the barga contract pertaining to the land is enforceable as if the purchaser were a party to the contract.
Pre-emption in land law of Bangladesh under the SAT Act versus The Land Reforms Ordinance of 1984:
A co-tenant of a holding and a tenant owning land next to the holding may apply to exercise their pre-emption rights under SAT. According to section 13 of the LRO, a barga land owner must request the bargadar to purchase bargaland in writing if he wishes to sell the land. This indicates that the bargadar has pre-emption rights over bargaproperty.
With the pre-emption application, the consideration funds must be deposited with the court. Under the LRO, however, the bargadar is not required to make a cash deposit; rather, he must acquire the land through a legally sanctioned process.
If the co-sharer tenant of a contiguous land owner who has received notice under section 96(1) does not apply within four months, he forfeits his right of pre-emption. However, if the Bargadar do not notify the owner within 15 days of receiving a written request to purchase Bargaland, the owner may sell the land to anyone.
If a person becomes a co-shareholder through inheritance, he excludes the others from the pre-emption right, while a co-shareholder through purchase excludes adjacent landholders. However, if the owner sells Bargaland to his parent, wife, son, daughter, son's son, or any other family member, the Bargadar forfeit their pre-emption rights.
There is a four-month time limit under the SAT Act for pre-emption, and a fifteen-day time limit for Bargadar. The SAT Act does not give the right to a second appeal, but there is no question of a second appeal in LRO or Bargadar because he can purchase the land under the general rules and procedures for purchasing land.
Restoration of Vested Properties Act of 2001: Arpita Sampatti Prattarpan Ain
Section 27 of the 2001 Restoration of Vested Properties Act grants two individuals the right of pre-emption. Under Section 27(1), only the two individuals listed below are permitted to pre-empt.
I Co-owner of an inherited property;
ii) If no such Co-sharer exists, the individual who has continuously leased the sold property for at least the last ten years.
If the sold property is agricultural land, then the pre-emption provisions of the Land Reform Ordinance of 1984 (X of 1984) will apply.
Comparative Analysis of Pre-emption in land law of Bangladesh under the SAT Act and the Restoration of Vested Property Act of 2001:
In accordance with Section 27 of the Restoration of Vested Properties Act of 2001, if the government wishes to sell or lease an immovable property that has no owner, the co-sharer by inheritance will be given preference. If there is no such Co-sharer, the person who has continuously leased the sold property for at least the previous ten years may pre-empt it. Section 96 of the SAT Act of 1950 establishes the pre-emption right. It grants the right of pre-emption to a co-tenant and a tenant who owns land next to the property.
The SAT Act does not name any other laws as supporting pre-emption laws. However, the Restoration of Vested Properties Statute makes reference to the LRO act for agricultural land. If the property in question is agricultural land, the Land Reform Ordinance of 1984 and its provisions will apply.
The Restoration of Vested Properties Act contains no provisions about the pre-emption procedure, simply the pre-emption privilege. However, the SAT Act contains provisions regarding the procedure for exercising the pre-emption power.
Section 96 of the SAT Act is a comprehensive section on the right of pre-emption, whereas section 27 simply mentions the right of pre-emption for two specific individuals.
Muslim law introduced the concept of preemption to the Indian subcontinent. It is incorporated into the statutes. By applying the rules of pre-emption, a co-sharer prevents a stranger; he can extend his portion in the holding or land, but its sole purpose is to save co-sharers or neighbors from the annoyance and inconvenience of a stranger purchaser; it is not intended to increase the portion or share or property of other co-sharers of a holding or land. Consequently, it is significant, although in contemporary culture it has lost some of its significance.
Now that society is mobilized, people no longer reside in the same location forever. It does not matter to the members of a society who acquires adjacent land or a holding. Due to the mobilization of society, preemption of non-agricultural land or municipal land is now uncommon. The significance of pre-emption in rural or agricultural areas cannot be disputed.
The inhabitants of a village dislike the intrusion of a foreigner into their domain, yet the villagers' way of life is also evolving as a result. Consequently, the value of pre-emption decreases in the village region. In addition, the amended section 96 of the SAT Act restricts the extent of application of pre-emption in the case of agricultural land.
Only a co-sharer tenant by inheritance may seek for pre-emption; neither a co-sharer tenant by purchase nor a neighboring landowner may pre-empt. It must be brought as a civil matter and an ad valorem court fee must be paid, and the proof of pre-emption required under Muslim law is extremely difficult to establish. Notably, the provisions of statutory laws should not abrogate the power of pre-emption granted to any individual by Islamic law.
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This article will aim to encapsulate all the information you need to know about arbitration in Bangladesh. It will cover international commercial arbitration, composition, recognition and enforcement of foreign arbitral awards, costs of arbitration, and appeals in arbitration.
What is ADR or Arbitration in Bangladesh?
In order to explain ADR or Arbitration in Bangladesh, it is essential to define alternative dispute resolution also known as ADR. Alternative Dispute Resolution (ADR) is a spectrum of less expensive and quicker alternative to litigation in which a neutral third party aids the disputing parties in finding a resolution. ADR allows for more collaborative and diverse solutions than traditional litigation.
They are increasingly used in issues that might otherwise result in litigation, such as high-profile labor disputes, contractual and commercial disputes, divorce proceedings, and personal injury claims.
ADR can be divided into four categories: arbitration; mediation; conciliation; court resolution, including Lok Adalat settlement.
Arbitration is a non-court alternative for settling disputes in which a single arbitrator or a panel of arbitrators is appointed by the parties to render a binding decision that is very difficult to reverse as it has few grounds of challenge.
As arbitrations are typically confidential, this encourages parties to settle their issue through arbitration, which is also a faster process than litigation. Arbitration is appropriate for international conflicts because the outcomes are internationally binding.
Typically, the arbitration clause is governed by the same law as the rest of the contract, and its validity is evaluated under the law of that country. As an arbitration clause is distinct and independent from the contract, various laws may be applied throughout the arbitration procedure.
Therefore, where a party wants the law applicable to the arbitration provision to differ from the law applicable to the contract, the arbitration clause must specifically indicate this demand.
It should be noted that a dispute can also be settled without an arbitration provision by a separate agreement of arbitration between the parties, containing the entire arbitration procedure outlined in chapter III of the Arbitration Act, 2001.
Composition and Proceedings of Arbitration
The disputing parties will be entitled to determine the location of the arbitration, people who will comprise the arbitration panel, what procedure will govern the arbitration and how the arbitral panel will be assembled. Also, the party may seek resolution from any of the arbitral institution mentioned above . According to section 3 of the First Schedule of the Arbitration Act, arbitration proceedings should normally be concluded in four months
A body of a three-member arbitral tribunal and a single arbitrator of any nationality can often serve as arbitrators. One or three arbitrators are used in commercial arbitrations subject to discretion of the parties.
In the instance of a single arbitrator, the parties have the option of appointing the arbitrator either in advance or when a disagreement occurs. Typically, when a dispute arises, one arbitrator is assigned. The parties should agree on how the arbitrator will be selected and how he will carry out his duties. Additionally, an arbitration institution is able to make the appointment.
In case of multiple arbitrators, there are usually three arbitrators. Each party picks an arbitrator, and the two arbitrators nominated by the parties appoint the third arbitrator who serves as the tribunal’s chair. In the event that none of the arbitrators are appointed, an appointing authority shall be designated to appoint the arbitrators.
Regarding the selection of each arbitrator, the requesting party must notify the responding party of its request for arbitration in writing and by registered mail or courier, and immediately nominate an arbitrator. The responding party must respond in writing and by registered mail or courier service within fourteen days of receiving the request for arbitration, naming an arbitrator in the response.
As arbitration is an informal process, the arbitrator proceeds in this manner as he or she sees proper.
The Arbitration in Bangladesh begins with the submission of a request by the applicant; the sessions may be oral, but is typically written. Evidence and witnesses may be presented orally or in writing, as the arbitrator sees suitable. Under the Arbitration Act of 2001, evidence must be presented in accordance with the Evidence Act of 1870.
Arbitral Awards and Enforcement
If the parties obtain a settlement agreement during the arbitration, they may seek that the arbitral tribunal record the terms in the arbitral award.
In general, an Arbitration in Bangladesh tribunal renders a ruling based on the arbitrators’ majority vote, or if that fails, as per the president of the panel and c oncerning a single arbitrator, the president can also render the award.
In order to execute the award, the prevailing party may petition the national court of the losing party. It should be noted that the award is enforceable by the parties.
In rare circumstances, the award may be appealed, and the party may also seek that the award be set aside under the Arbitration Act of 2001.
In the case of Nurul Abser vs. Golam Rabbani, for instance, 68 DLR (AD) (2016) stipulates that an application to set aside an arbitral judgement must be filed within 60 days, after which the award becomes enforceable.
In this instance, the petitioning party failed to contest the award within the allotted time period; hence, the award has become final and enforceable.
Chapter IX of the Arbitration Act of 2001 addresses the enforcement of arbitration awards. The request for enforcement of an arbitral award shall be made in accordance with the Code of Civil Procedure, as if it were a court decision, if the time limit for filing an application to vacate the award has elapsed or if such an application has been denied.
The enforcement of the international arbitral award shall follow the same procedure and be executed by the court as if it were a court order.
The number of arbitrators has an impact on the arbitration’s costs. If the number of arbitrators increase, costs will increase inevitably. Additionally, the parties may negotiate the cost prior to the arbitration process. Regarding arbitration by the institution, the institution fixes the cost. Another factor that might determine the cost is the difficulty of the issue at hand. More complications equals to higher quotation.
Appeals in Arbitration
An appeal under the Arbitration Act of 2001 must be filed with the High Court Division concerning the following issues:
a) Setting aside or refusing to se aside an arbitral award,
(a) Refusing to comply with the arbitral award,
(c) Refusing to acknowledge or enforce foreign arbitral proceedings or award
As mentioned above, a party must apply to set aside the arbitral award within sixty days after receiving the award. If the party successfully makes the application within the stipulated time. the Court has the power to set aside the arbitral award.
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How much money is required for company registration in Bangladesh?
The governmental fees for registering a company are determined by the amount of authorized capital. Government fees for the issuance of an Incorporation Certificate shall be BDT 1000.
How long does it take to register a company in Bangladesh?
Once the aforementioned formalities have been completed, RJSC will usually issue the certificate of incorporation (Company registration certificate) within 6-8 working days.
It usually takes 2-3 weeks from the date of submission of all documents to RJSC to register a company.
What is BIDA?
Bangladesh Investment Development Authority (BIDA) is in charge of facilitating foreign investments in the country.
BIDA's responsibilities include issuing work permits for foreign employees, visas for foreign investors, processing loans from foreign sources, approving remittance of royalties and technical fees, assisting in the acquisition of industrial plots, facilitating utility connections, approving foreign loans, suppliers credit, and providing assistance and advice on a variety of investment-related issues.
Foreign investors with industrial projects are strongly advised to register with BIDA after forming their limited company. However, there is no requirement for a commercial or trading company to register with BIDA. The average time frame for obtaining registration is 7-10 working days.
What documents are needed to set up a private limited company in Bangladesh?
1. Memorandum of Association 2. Article of Association 3. Certificate of Incorporation 4. Trade License 5. TIN 6. VAT Registration Certificate 7. Name Clearance 8. Environmental Clearance Certificate 9. Fire Certificate
What is the minimum capital required for a private limited company in Bangladesh?
In Bangladesh, there is no minimum or maximum authorised capital for a local company.
However, for practical reasons and to obtain complete flexibility in terms of expatriation and bringing in foreign expatriates, a minimum of USD 50,000/- must be invested in the Company.
Can a single person start a company in Bangladesh?
Bangladesh does not allow a single person to open a private limited company or One Person Company (OPC).
A private limited company must have at least two shareholders. In the case of a public limited company, however, the total number of shareholders required is seven.
Can a private limited company have one director in Bangladesh?
A private limited company must have at least two directors. Local or foreign nationals may serve as directors.
Directors must be at least 18 years old and have never been bankrupt or convicted of a crime. A director is required by law to own the qualification shares specified in the Articles of Association.
What is the difference between authorised capital and paid-up capital?
- Authorised capital: The amount of authorised capital must be specified in the Memorandum of Association and Articles of Association. It is the maximum amount of share capital that a company may allocate to shareholders.
In Bangladesh, there is no minimum or maximum authorised capital for a local company. However, for practical reasons and to obtain complete flexibility in terms of expatriation and bringing in foreign expatriates, a minimum of USD 50000/- must be invested in the Company.
-Paid-Up Capital : The minimum paid-up capital for registering a Bangladeshi company is Taka 1 (for local companies) and USD 50000 (for foreign companies).
A witness is someone who has direct or indirect knowledge of the commission of an event, while a victim is someone who has suffered physically, mentally, psychologically, or financially as a result of the crime. Crime victims and witnesses are frequently required to testify at trials and other legal proceedings.
Both the Penal Code and the Code of Criminal Procedure lack a definition for the term "victim." We can, however, define 'victim' as a person or persons who, individually or collectively, have suffered physical, emotional, financial, social, or psychological injury as a result of the commission of an offense; in some cases, it also includes the immediate dependants or a member of the direct victim's family, as well as a person who has suffered harm in intervening to assist the victim in distress or to prevent victimization of the victim.
Witness is defined as any individual, including a child, who is or may be compelled to make a statement or give evidence, or who has made a statement or given evidence, in any investigation or judicial proceedings related to the conduct of an offense.
The victim of a crime plays a crucial role in the administration of criminal justice as both a complainant/informant and a prosecution witness. At both the investigation and trial stages of a case arising from a reported crime, the victim's participation is crucial. Today, however, these victims are susceptible to threats, intimidation, coercion, and harassment by the offenders or their friends, which prevents them from testifying before the investigating officer during the investigation phase or before the courts and tribunals during the trial phase.
The testimony of a victim during the investigation and trial of a case, particularly when the offense is a crime of violence against women and children, is the strongest evidence that may be utilized against the defendant. As the victim is a crucial participant in the entire criminal justice system, the victim's rights, privileges, and protection must be given significant consideration.
Victims and witnesses are considered the "heart" of the criminal justice system, and it is difficult to decide an accused's guilt or innocence without the full cooperation and true testimony of all victims and witnesses.
According to the NGO Naripokka, between 2011 and June 2018, 4372 rape crimes were reported, but only five perpetrators were prosecuted. Due to a lack of witnesses, most of them were acquitted.
In a Gopalgonj murder case, the plaintiffs held a press conference lamenting that the defendant had threatened to abandon the case and that they dread receiving fair justice.
In contemporary society, threats, intimidation, coercion, and pressure from offenders and their associates are now commonplace. This is a flagrant violation of Articles 31 and 32 of our Constitution, which safeguard the "Right to protection of law" and "Right to life and personal liberty." All of these horrible atrocities occur in our country, but there is no particular "Witness and Victim Protection Act" in place.
Disrespectful and scandalous questions to witnesses
Some sections of the Evidence Act of 1872, such as Sections 151 and 152, restrict disrespectful and scandalous questions to witnesses. However, these are only covered by judicial protection. Section 506 of the Penal Code of 1860 specifies the penalties for criminal intimidation. 1973 International Crime Tribunal Act, section 58(A)(1). Section 14 of the 2012 Act for the Prevention and Suppression of Human Trafficking addresses the protection of witnesses. However, none of these measures adequately protect witnesses and victims.
A High Court Division bench composed of Justices M Enayetur Rahim and Amir Hossain issued an order to the government on December 7, 2015, during the hearing of the "Rinku murder case." In 2006 and 2011, the Law Commission issued two reports to the law ministry about the protection of witnesses and victims.
A significant provision for the protection of victims and witnesses is included in the Rome Statute. Article 68.1 states that the Court shall take reasonable measures to preserve the safety, physical and mental well-being, dignity, and privacy of victims and witnesses. Article- 32 para-1 and 32 2(b) of the UNCAC emphasizes the protection of witnesses and other individuals from potential reprisal or intimidation in relation to their testimony.
Witness Protection laws in neighbouring countries
Recently, our neighboring nation Nepal enacted the 2018 Crime Victim Protection Act. This Act's Chapter 2 addresses the rights and responsibilities of victims in the Criminal Justice Process. Right to receive fair treatment (sec-4), right against discrimination (sec-5), right to privacy in certain cases such as rape, incest, human trafficking, and sexual harassment (sec-6), right to information (sec-7,8,9), right to become safe (sec-10), right to remain in a separate chamber during a hearing (sec-14), and right to have property returned (sec-15) (sec-15).
Through the historical judgment of 'Mahendra Chawla vs Union of India,' India has also implemented the 'Witness Protection Scheme, 2018' where they have implemented rights such as: right to secure waiting place at the time of court proceedings, right to information of the status of the investigation and prosecution of the crime, right to treated with compassion and dignity and respecting privacy, right to protection from harm and intimidation, and right to give evidence without fear of retaliation.
If we compare the Nepalese Act with the Indian Scheme, we see that both apply the same rights for victims and witnesses.
We adhere to the adversarial judicial system in Bangladesh, which is a common law nation. Constitutionally and customarily, the long-established rule is that "everyone is deemed innocent until proven guilty beyond a reasonable doubt." Article 35(3) of our Constitution outlines the constitutional guarantee and fundamental rights of the accused: "Every person accused of a criminal offense shall have the right to a quick and public trial by an independent and impartial court or tribunal established by law."
Burden of Proof when it comes to Witness Protection laws
Therefore, the burden of proof generally rests with the prosecution and victims. According to sections 101 to 106 of the Evidence Act of 1872, the burden of proof can be changed, but is initially and exclusively the responsibility of victims and the prosecution. Thus, in a criminal prosecution, criminals have a variety of constitutional and legal rights.
The term "victim" is not defined in either the Penal Code of 1860 or the Code of Criminal Procedure of 1898. In some circumstances, we can define 'victim' as a person or persons who have experienced physical, emotional, financial, social, or psychic harm as a result of the commission of a crime. Witness is defined as any individual, including a child, who is or may be compelled to make a statement or give evidence, or who has made a statement or given evidence, in any investigation or judicial proceedings related to the conduct of an offense.
The victim of a crime plays a crucial role in the administration of criminal justice as both a complainant/informant and a prosecution witness. Today, however, these victims are susceptible to threats, intimidation, coercion, and harassment by the offenders or their friends, which prevents them from testifying before the investigating officer during the investigation phase or before the courts and tribunals during the trial phase.
Witness Protection laws and challenge to the existing administration of law and order
The syndicated and organized nature of crime in contemporary society poses a challenge to the existing administration of law and order. Particularly, murder, kidnapping, abduction, rape, human trafficking, acid throwing against women and children, and drugs crimes have expanded significantly and are now well-coordinated. For the sake of achieving justice, it is necessary that the victim be allowed to testify in court or before a tribunal freely and without fear or coercion.
Due to fear, intimidation, and threats from the accused, and the absence of any protection measures, it is a common occurrence in our subordinate court that witnesses do not voluntarily appear in court to provide testimony. As a Magistrate, I have dealt with a large number of instances in which witnesses have complained that the defendant lacked the courage to appear in court.
In August of 2019, a witness's daughter was gang-raped and murdered in the Patuakhali District after her mother testified against the offenders in the Rape case as a witness. The well-known case of Nusrat Jahan Rafi is likewise emblematic of inadequate victim protection.
Witness Protection laws and when the victim is in the custody:
When the victim is in the custody of law enforcement authorities, the crime is sometimes committed. In this context, it is possible to mention the Yesmin murder case, the Pollobi Police Station case, the Sheema murder case, and the Naraiyonganj seven murder case.
The case of Bogura's Tupan Chowdhury is another unfortunate example of a lack of protection for victims. According to national newspapers, the victim was persuaded to compromise the high-stakes case of rape and torture in exchange for Tk 40 lac.
The Police Bureau of Investigation (PBI) completed a study and released a report on the country's dacoity incidents in July of 2019. According to PBI's analysis, 50% of dacoity trials failed in court due to hostile witnesses. In the past decade, the Narcotics Control Department confessed that 48.45% of cases were dismissed and the accused was acquitted due to the testimony of witnesses.
In a few recent cases, the High Court Division (HCD) has ordered the formation of a monitoring cell and monitoring committee to ensure the presentation of witnesses in the courts, particularly in the Women and Children Repression Prevention Tribunal cases. The HCD stated that the government will take the necessary steps to enact legislation protecting victims and witnesses.
Statistics and Witness Protection laws in Bangladesh:
From 2002 to 2016, the daily Prothom Alo undertook an exhaustive study of the cases heard by the Women and Children Repression Prevention Tribunals of Dhaka. In the research done, there were a total of 7864 incidents, 2604 of which were rape, gang rape, or homicide following rape.
According to the study, only 3% of cases resulted in a conviction for the accused. They claimed that 55% of cases were dismissed for lack of proper and adequate witnesses. Moreover, the defendant was acquitted solely because of witnesses. It is regrettable that our Law Commission filed a report recommending the enactment of the concerned law, after submitting drafts of the proposed Act in 2006 and 2011.
There are only a few statutes in our judicial system that guarantee protection for victims and witnesses. The 2013 Prevention of Torture and Custodial Death Act is one of the best laws. It provides comprehensive protection when in the custody of a law enforcement agency or governing body.
The Women and Children Repression Prevention Act of 2000
The Women and Children Repression Prevention Act of 2000 is another statute. Sections 9 (5) and 14 address the victim's interest and protection. Section 14 of the Prevention of Human Trafficking Act-2012 makes it a separate offense to threaten or intimidate a victim or witness, as well as to obstruct the investigation or trial of a crime, with a maximum penalty of seven years.
Parliament passed a new Children Act in 2013 that thoroughly addresses the protection and legal rights of children in accordance with international standards. The International Crimes Tribunal Rules of Procedure, 2010, has an unique provision 58A that addresses the protection of witnesses and victims. Bangladesh's accomplishment in ensuring the conviction of war criminals after nearly 40 years of independence is attributable to the country's creative legislation.
Numerous nations have implemented a law protecting victims and witnesses, including the United States in 1982, the United Kingdom in 1999, Australia in 1994, Hong Kong in 2000, Colombia in 1997, Germany in 1998, South Africa in 1998, Italy in 2001, Pakistan in 2017, and Sri Lanka in 2015. India has taken the initiative to create legislation and develop "The Witness Protection Scheme 2018", and the Delhi Provincial Government enacted legislation in 2015.
Moreover, on the advice of its Supreme Court, India enacted in 2018 "the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes." Even in many Indian states, there are victim compensation programs. In 2008, the United Nations on the Drug Convention created a standard approach for witness protection. The 1985 UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power is also a landmark in the creation of such legislation.
On February 24, 2021, Children Charity Bangladesh (CCB) filed a writ case with the HCD asking to develop laws and a plan for the protection and compensation of victims of rape and sexual assault. In 2018, India's Supreme Court devised a national plan to guarantee compensation for victims, which is an interesting development. In conclusion, I would assert that a comprehensive victim and witness protection law is urgently required in the current climate. The objective should be to safeguard victims and witnesses by granting them specific rights and privileges to ensure their appearance before investigating bodies and courts or tribunals to testify about the alleged crime without fear of intimidation or threat from the accused.
Defence and witness protection in Bangladesh:
As witnesses always have a realistic fear of being harmed by the defense, the free and truthful involvement of witnesses to testify before the court is primarily dependent on the protective and security measures supplied by the concerned court in any crimes tribunals. Since 2010, when Bangladesh began to prosecute war criminals, the security of witnesses has become a crucial issue that must be resolved through applicable state instruments and international experiences. In this regard, we shall examine the provisions for victim and witness protection in other international and hybrid tribunals, as well as the International Crimes (Tribunals) Act of 1973, which can be referred to as a subsequent edition of the proposed law on victim and witness protection.
The protection and assistance provisions for witnesses and victims in international and hybrid criminal tribunals. The Statutes of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC), the International Criminal Tribunal for Rwanda (ICTR), the International Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), and the Special Tribunal for Lebanon (STL) included provisions for victims and witness protection where the Rules of Procedure and Evidence included policies to implement those provisions of the statute.
International Criminal Court and witness protection in Bangladesh:
Article 68 of the Rome Statute of the International Criminal Court, for instance, states that "the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or permit the presentation of evidence by electronic or other special means," noting that these measures should be implemented in the case of a victim of sexual violence in particular. Specifically, Rule 72, Rule 87, and Rule 88 of the Rules of Procedure and Evidence apply this statutory provision respecting in camera procedures.
These regulations govern, among other things, the appropriate use of in camera proceedings in accordance with the statute. In addition, they outline the in camera procedure for determining the relevance or admissibility of evidence related to consent in suspected crimes of sexual violence, as well as the precise procedures for requesting in camera proceedings and other available measures, including notice requirements.
All legislation contain provisions providing victim and witness protection and using clear language tying these protective measures to the accused's right to a fair trial. For instance, the language of the statute may provide that the measures cannot be detrimental or conflicting with the rights of the accused.
A summary of victim and witness protection measures in various statutes and rules of procedure and evidence ECCC strategy: It addresses a fairly wide direction that procedures must respect the rights of victims and the accused, and that the Court must take steps to protect victims and witnesses. (See Article 33 and Rules 12, 24, 25, 29, and 60 in particular)
Approach of the ICTY and ICTR: It contains a directive that procedures must respect the rights of victims and the accused, and that the Court must take precautions to safeguard victims and witnesses. Inclusion of explicit provisions for victim and witness protection in the Rules of Procedure and Evidence adopted by the courts. (See notably Articles 14, 19, and especially Article 21 of the ICTR legislation, Articles 15, 20, and especially Article 22 of the ICTY statute, and Rules 34, 53, 69, 70, 75, 77, and 79, ICTR and ICTY)
It grants the accused the right to a fair and public trial, subject to witness protection procedures. It also provides for the formation of a Victim and Witness Protection Unit. It further says that employment of prosecutors and investigators with experience in gender-related offences should be considered. (See in particular Articles 15, 16, and 17 of the Act as well as Rules 34, 69, 70, 75, and 79)
It grants the accused the right to a fair and public hearing, subject to witness protection procedures. It provides for the formation of a Victim and Witness Unit that offers protective services and allows victims to participate in legal procedures. It gives access to compensation for victims. It further stipulates that victim involvement and protective measures for victims and witnesses must be incorporated into the Rules of Procedure and Evidence issued by the courts. (See in particular Articles 12, 16, 17, 25, and 28 of the Act as well as Rules 50, 51, 52, 93, 116, 133, 137, 139, 159, and 166).
It contains extensive statutory provisions establishing the Victim and Witness Unit and defining the victim and witness protection obligations of the Prosecutor, pre-trial chamber, and trial chamber, which provide protective measures in cases of sexual violence. Includes particular safeguards for the protection of victims involved in help requests. (See specifically Articles 43, 53, 54, 57, 64, 75, 79, 87, and Article 68 of the Act as well as Rules 16, 17, 18, 19, 43, 72, 76, 81, 87, 88, and 112)
International Crimes (Tribunals) in Bangladesh:
Though the 1973 Act contains no provisions for witness and victim protection, the Rules of Procedure were amended in June 2011 to define the term "Victim" as "a person who has suffered harm as a result of the commission of the crimes specified in section 3(2) of the International Crimes (Tribunals) Act, 1973." In addition, under the new Chapter VIA, a new Rule 58 A(1) on Witness and Victim Protection has been added, which states, "The Tribunal on its own initiative, or at the request of either party, may pass necessary orders directing the concerned authorities of the government to ensure the protection, privacy, and well-being of the witnesses and or victims." This procedure will be confidential, and the opposing party will not be informed." Subrule 02 was amended by the addition of provisions for the lodging of witnesses or victims, as well as other measures relating to a trial in camera and the maintenance of confidentiality, if a violation of such an undertaking is to be prosecuted under section 11(4) of the Act.
The effectiveness of these protective measures has yet to be demonstrated, particularly in regards to sexual violence witnesses. In addition to holding the trial in camera, the Tribunal should take further protective measures to encourage more witnesses to testify.
The proposed national law on victim and witness protection addresses numerous significant needs of members of this vulnerable group and recognizes the importance of support mechanisms that address the physical, psychological, and economic well-being of victims and witnesses who will testify before the court. In contrast to international and hybrid criminal tribunals, the proposed legislation does not contain complete provisions. Consequently, if we wish to secure the safety and security of witnesses of any crime in the future, we must adopt specific standards from international and hybrid tribunals that are consistent with and applicable to Bangladesh's current socioeconomic environment.
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People frequently state, "I am too young to prepare a Will" or "I have nothing to leave behind." Traditionally, young adults have not prioritized the creation of a will. This is altering; in 2021, 23% more young adults from Generation Z created a will.
After the recent pandemic, it is logical that opinions on mortality have altered. People may have accepted the inevitability of the future. Everyone is responsible for organizing their affairs to protect their loved ones in the future.
A will is a legal document that expresses a person's desires about the disposition of his possessions after his death. Unlike a Trust, which becomes effective immediately upon creation, a Will only becomes executable upon the death of its creator. The person who creates a will is referred to as the "Testator," while the person selected to carry out the will is called the "Executor." A "legatee" is the recipient of a will's assets.
How to make a will in Bangladesh
In Bangladesh, wills are governed by a mixture of legislative and religious guidelines. The Succession Act of 1925 governs wills in Bangladesh generally. In contrast, the Muslim Personal Laws on this topic are more widespread in this country due to the flexibility of criteria and desire of the majority. In Islam, executing a will or (Wassiyyah) is one of four required rites performed for the departed.
A Muslim may only bequeath one-third of his property through a bequest. The testator's intent must be evident that the wasiyyah will be carried out after his death.
According to the 1925 Act and Muslim personal law, a will can only be revoked if the testator creates a second will.
Both sets of rules regulating wills are necessary for their legal execution. There are numerous parallels and differences between the two. The legislation exists in harmony and is in effect, albeit with undetermined limitations.
1) Ensure your children's well-being.
A Guardian is the individual (or individuals) you name in your Will to care for and raise your minor children in the case of your death. You can only appoint a Guardian if you are the legal parent of a child. Appointing a Guardian results in the Guardian acquiring parental responsibility for the kid at the time of appointment, i.e., upon your passing. A Guardian has the authority to make all significant decisions about the upbringing, education, and welfare of the kid. You can also include instructions for the upbringing of your children in your Will.
2) Appoint the individual or individuals of your choosing to manage your estate.
You will name an Executor in your Will to manage your estate. Executors might be family members, close friends, or professionals. An Executor is the individual you name in your Will to administer your estate and distribute your assets according to the terms of your Will. You can appoint one or more executors.
3) Make a will to Safeguard your Partner
In today's culture, living together as "co-habitees" rather than getting married is becoming increasingly frequent. However, many cohabitants mistakenly believe they have the same legal protections as married or civil partnership couples. This is not the case, and there is little protection for unmarried couples. Upon the demise of a partner, a number of problems can develop. If an unmarried individual dies without a Will, their assets will pass to their children, parents, siblings, or other family members, potentially causing anguish to a surviving spouse. Cohabitants should always have a valid Will that allows them to prepare for the future and the unforeseen.
4) Make a will to Protect your personal information online
It is likely that you have vital data online, such as in an email account or social media profile. A correctly crafted Will can enable your Executors to access your internet information, which, in the absence of a Will, your family may have to legally access through the Court system.
5) Protect your inheritance for the future
Although you may not possess much now, you may receive an inheritance in the future. A Will addresses property you have not yet acquired. A properly designed Will can account for changes in the value of your estate and specifies how you would wish your assets to be distributed upon your death. Wills and Testaments It is extremely advised that you create a Last Will and Testament.
Transfer of Property by a Last Will and Testament in Bangladesh:
TRANSFER from the dead to the living has two sides: (i) Testamentary Succession (ii) Intestate Succession.
During marz-al-maut, testamentary successions under Muslim law are (a) Will and (b) Gift. The Islamic law of testamentary succession governs this. The main criteria of a will are that I it takes effect only after the testator's death, ii) no donation may exceed one-third of the estate, and iii) no bequest may be made to an heir. In Muslim law, a Will can be verbal. It does not have to be reduced to writing. Will registration is not required. The content of a Will can be altered at any moment by its author.
Gift during marz-al-maut contains all the basic requirements of gift intra-vivos, including:
(1) Offer from the donor,
(2) Acceptance from the donee, and
(3) Immediate transfer of possession. It is also subject to all limits outlined in the law of will,
including: (1) It takes effect after the death of the donor, (2) It cannot be provided to an heir, and (3) It cannot exceed one-third of the property. In accordance with Hindu law, after the demise of the testator, the District Judge must grant probate for the will's execution.
How to make a Will under Hindu Law:
To make a will under Hindu law, any adult may dispose of his property by will, provided that he does not violate his wife's or anybody else's legal claim to maintenance. A Hindu may dispose of his distinct or independently acquired property through a will. Currently, Hindu wills are controlled under the Succession Act of 1925. Every Hindu will must be in writing, signed by the testator, and attested by at least two witnesses, in accordance with section 63 of the Succession Act of 1925.
Intestate succession:
In Bangladesh, the Muslim law of intestate succession is governed by the Hanafi law of inheritance, whereas the Hindu law of intestate succession is governed by the Dayabhaga School of Inheritance. In Hanafi inheritance law, there are three classes of heirs:
a. Sharers, who are entitled to a prescribed share of the inheritance;
b. residuaries, who take no prescribed share but succeed to the remainder after the claims of the sharers are satisfied; and c. distant Kindred, who are all blood relatives who are neither sharers nor residuaries.
The Dayabhaga Law of inheritance under Hindu law recognizes three groups of heirs: (a) Sapindas, (b) Sakulyas, and (c) Samonodakas.
According to section 2(h) of the Succession Act 1925, a will is "the legal declaration of a testator's intentions regarding his property that he wishes to be carried out after his death." According to the Sahih Al-Bukhari, a Muslim who has something to bequeath is obligated to make a will within two nights after acquiring it.
According to section 59 of the Act, every adult who is not a juvenile may dispose of his property through a will. Under section 3 of the Majority Act of 1875, an individual attains adulthood at the age of eighteen in Bangladesh. In accordance with the Succession Act, anyone above the age of eighteen may make a will. Under Islamic law, however, an adult who has achieved the age of fifteen may also establish a will.
Make a will under Succession Act:
In accordance with Section 63 of the Succession Act, to make a will, it must be in writing, signed by the testator, and witnessed by at least two individuals. Under Muslim personal law, however, a will may be either oral or written, and a written will need not be signed or witnessed if it is signed. In Muslim law, however, the need of two witnesses is the same as in the preceding section.
Probate is obtained to confirm the will's validity, and it is the sole valid proof of the executor's appointment. In accordance with section 227 of the 1925 Act, when a judge grants probate for a will, all executor actions become legitimate. The executor must file a probate action with the District Judge Court in order for the will to take effect. However, under Islamic law, such conditions do not exist.
Therefore, if you were to make a will there are numerous sorts of transfers of real property. Some transfers are between live individuals, while others are between deceased and living individuals. There is an urgent need for a centralized administrative agency to govern all types of real estate transfers. In addition, a comprehensive law should be enacted to control the transfer of all types of immovable property. The Transfer of Property Act of 1882 is incomplete.
It does not address the transfer from the dead to the living. Currently, transferees' rights are most usually restricted. Therefore, there should be explicit legal safeguards protecting the rights and interests of the transferee or land purchaser. Modern society and circumstances have become increasingly complex; consequently, it is preferable that all transfers of immovable property be documented and recorded.
It is unpleasant to contemplate one's own demise. Nevertheless, you should prepare your estate in advance so that your affairs are in order in the terrible case of your dying. The last thing you want to do during this time is cause further stress for your family. Your property in Bangladesh has value once you sign the contract and make the initial payment; therefore, you will have an asset to consider for estate planning even before the property is transferred.
It is prudent to periodically examine your Will throughout your life to ensure that it still reflects your wishes, especially in light of any changes to your family, such as births, deaths, or weddings. The Wills, Trusts & Probate team at Tahmidur Rahman Remura Wahid welcomes your call at 01779127165 or 01847220062 if you would like more information about Wills or would like to schedule an appointment to discuss your specific situation.
While making a will in Bangladesh, our organisation offers legal services for drafting a Wasiotnama, also known as a Bangladeshi Will. The paperwork will list your assets in Bangladesh, such as real estate, bank accounts, and vehicles. Upon the death of a foreigner in Bangladesh or a Bangladeshi in a foreign country, the government officer will typically request a copy of the deceased's Will from the family or the deceased's attorney.
If you are unaware of your legal rights in Bangladesh, there are a number of things that can occur to your property. If certain measures are not taken from the outset, the entire procedure can become highly convoluted and often rather expensive. The reduction of risk and the protection of your investment are of paramount importance in any real estate acquisition.
This is especially more critical when purchasing homes outside of your home jurisdiction, when communication can be a significant obstacle to achieving your goals. A valid will mitigates the majority of the risk. It is always prudent to obtain professional counsel from a reliable expert who looks out for your best interests and understands your requirements.
Are you intending to make a will in Bangladesh?
Make a will in Bangladesh with the help of Tahmidur Rahman Remura: TRW: The Law Firm in Bangladesh:
Real Estate and Developer laws in Bangladesh : Rights and Liabilities:
The construction industry contributes significantly to the growth of our GDP. Co-developing land with a development business has proven extremely lucrative for urban landowners. This not only produces a substantial amount of revenue up front for landowners, but also allows them to develop the area without expending any money.
Due to the appeal of the actual contractual agreement, landowners sometimes neglect to conduct due diligence on the developer businesses, while new developer companies, in an effort to generate a rapid profit, also neglect to conduct due diligence on landowners.
Normally, the developer company reach an arrangement with the landowner who was willing to transfer building rights to the Real Estate Developer Company. In this area of Real Estate and Developer laws in Bangladesh, a number of contracts are established between landowners and real estate developers, regardless of whether they adhere to the Contract Act of 1872 or other pertinent legislation enacted by the government of Bangladesh for this subject. Without sufficient legal knowledge, landowners unknowingly encountered numerous challenges. Also, the number of disputes between the parties increases.
The government enacted the Real Estate Development and Management Act in 2010 to protect the interests of landowners against developers. In addition, the government has lately issued circulars mandating that developer companies receive REHAB registration, so insuring a particular level of quality and standard as per Developer laws in Bangladesh.
There are numerous Real Estate Developer Companies in Bangladesh that have constructed structures on landowners' property with their approval. As a result, parties are entering into contracts to complete the necessary legal requirements. Disputes can emerge between the real estate developer and the landowner on their respective rights and liabilities.
Before entering into any kind of formal agreements, all parties must be informed of the applicable law pertaining to their respective responsibilities. This paper will examine the rights and responsibilities of the landowner and real estate developer vis-à-vis one another in light of the applicable laws, rules, and regulations in Bangladesh.
Real Estate and Developer laws in Bangladesh in 2023:
The Constitution of Bangladesh; the Contract Act of 1872;
the Real Estate Development and Management Act of 2010;
the Real Estate Development and Management Regulation of 2011;
the Specific Relief Act of 1877; the Arbitration Act of 2001;
the Transfer of Property Act of 1882; the Registration Act of 1908;
the Land Development for Private Residential Projects Rules of 2004;
the Building Construction Act of 1952; the Building Construction Rules of 1996;
the Town Improvement Act of 1953; the Private Residential Project Land Development Act of 1953; and
the Private Residential Project Land Development Partnership-based Infrastructure Development (Flat Construction) on Public Land Rules, 2008; Bangladesh National Building Code, 2006; Trade Organizations Ordinance, 1961; etc.
Real Estate and Developer laws in Bangladesh and the structure:
According to this Act, "Real Estate" refers to land-based property established or developed for sale and purchase in the following real forms: residential, organizational, commercial plot, apartment flat, organizational, or mixed floor space. This Act applies only to private or mixed ventures, i.e. undertakings done by the landowner or developer on their own land, excluding government activities. In the case of joint venture assignments between the government and private development businesses, however, the following rule applies.
Essentials to know for Developer firms :
In order to publish advertisements in public media for the sale of any real estate, developer companies are required to include the following information: registration number, sanction number of the authorized plan with memo numbers, dates of such grants, etc. in their published prospectus or advertisements. It should be noted that landowners and developers do not have the power to commence or conduct construction work prior to securing design, allocation, and other required licenses from the relevant government entity.
Legal responsibilities of the landowner and real estate developer:
According to the laws of this country, the parties to the agreement must first understand their rights and responsibilities in order to conduct and finish all legal procedures amicably and without argument or difficulty. However, if a dispute arises, the parties to the contract, such as the landowner, developer company, etc., have the option of resolving the disputed issues amicably; if this is not possible, they have the option of resolving the dispute through arbitration; in this case, the decision of the arbitration tribunal is binding on the parties.
Rights and responsibilities of the Property Owner:
Transfer of the required documents:
The landowner has the right to get all required property documents from the developer company, and is obligated to submit all required documents to the developer company in accordance with the agreement and the laws of the nation. Additionally, the landowner must sign the power of attorney in favor of the developer business.
Damages in the event of a delay:
In accordance with the REHAB code of conduct, the landowner and the developer business must form a mutual agreement that entitles the landowner to rental compensation that will be paid on a monthly basis by the developer company in the event of a developer delay.
Transfer of ownership:
According to the provisions of the contract, the landowner must transfer possession of the land to the developer business for the purpose of its development. In addition, upon completion of the real estate development, the corporation is obligated to transfer ownership of the designated share of the property to the landowner.
Punishment for tardiness:
According to Bangladesh's Real Estate Development and Management Act, if a landowner delays the handover of possession of a property or cancels a power of attorney executed in the name of a developer company without giving 30 days' prior notice, he or she will be subject to a maximum fine of BDT 10 lacs and/or two years in prison. Alternatively, if the developer firm is responsible for the delay in handing over possession, the landowner is legally entitled to compensation under the terms of the agreement and the laws of this country.
Legal right to sue the developer and Real Estate and Developer laws in Bangladesh:
Depending on the circumstances, if a real estate dispute arises between the landowner and the developer company, the aggrieved landowner may file a suit for specific performance of the contract against the developer company for various matters done in breach of contract, such as continuous delay in development of the land, possession of the allotted property, etc. (Real Estate and Developer laws in Bangladesh)
In addition, the landowner may submit a writ under the Constitution in order to get the desired remedy if no other equally effective remedy is available under the law of this country.
Rights and responsibilities of the Developer:
Formation, enrollment, and membership for Developer laws in Bangladesh:
First and foremost, all developer companies are required to be formed and registered with the relevant government authorities, i.e. RJSC etc., in order to conduct business in Bangladesh; failure to do so would result in imprisonment of two years or a fine of ten lacs BDT, or both. If a developer begins work on a real estate project without authorisation from the proper authorities, the punishment is the same as previously stated. In order to be recognized as legally valid in Bangladesh, developer businesses must also obtain membership from the proper authorities, such as REHAB.
Transfer of the required documents for Developer laws in Bangladesh:
In accordance with the terms of the agreement, the developer must give the necessary documentation to the landowner and purchasers at the time of turning over the portion of the property ensuring other services and advantages, such as parking, telephone, water, and gas. Similarly, the landowner is required to supply the developer with the essential paperwork for the development of the land. In addition, the development business is required to deliver the property's deeds, including the sale deed, registration, etc., to the buyer within three months after the buyer's payment.
Carrying out deeds and Developer laws in Bangladesh:
If no power of attorney was executed by the landowner in favor of the developer company for the purpose of executing sale deed and completing registration in favor of the purchaser of the developer's portion of the property, then the landowner is required to execute the deed in favour of the purchaser within 15 days of receiving written notice from the developer company. Nonetheless, if the landowner fails to comply with the aforementioned notice, the developer firm will be allowed to finish the sale deed as if it were the landowner and will also be able to complete the registration.
Repair and upkeep obligations and Developer laws in Bangladesh:
It should be noted that if repairs are necessary due to construction problems after handover, the developer will pay for the repairs for at least two years from the date of handover. In addition, according to the conditions of the agreement between the parties, each developer must maintain the property for at least one year following the transfer.
Transfer of ownership:
The landowner must surrender possession of the property (land, etc.) to the developer business in order for the estate to be developed. Similarly, the developer company is obligated to transfer possession of the allotted portion of the real estate, i.e. apartment, plot of land, etc., to the landowner(s) within the time agreed upon in the deed of agreement between the developer company and the landowner(s) in accordance with the Real estate development and management Act of this country.
In the event of a delay in handing over possession to the landowner, the developer company is obligated to pay rental compensation in accordance with the agreement between the developer company and the landowner, with the following exceptions: natural disaster, political unrest, unusual rise in prices of building materials, delay in obtaining utility connection from the appropriate authority, or other force majeure.
Consequences for the developer business for specific actions:
If the developer business mortgages real estate without the buyer's approval, it will risk imprisonment for one year or a fine of up to five lakhs Bangladeshi taka, or both.
In addition, if the real estate company uses substandard materials or if the proper quality and quantity of materials are not used for construction, or if the real estate construction was made outside of the approved design, or if the real estate was not sold to the owner without his knowledge as promised, then the developer company is subject to imprisonment for a term not to exceed three years or a fine not to exceed twenty lakhs, or both.
In addition, in the event of a breach of contract between the developer company and the landowner for the following, i.e. intentional delay of development work without payment of compensation, refusal to hand over the property, etc., the developer company will be subject to the following penalties, i.e. a fine not exceeding BDT twenty lacs and/or two years in prison, etc.
Moreover, if the services or facilities, i.e. water, gas, electricity, etc., promised in the prospectus by the developer company during the handover of the portion of the property, i.e. flat, etc., were not provided, the developer company would be subject to a fine of less than BDT 5 lakh and imprisonment for less than one year.
Right to file a lawsuit against a property owner:
According to the rules in effect in this country, as a legal person, the developer business has the right to launch a lawsuit against the landowner if it is the aggrieved party in any real estate issue and Developer laws in Bangladesh.
We will attempt to provide useful information for landowners who enter into a building contract with a real estate developer company as per Developer laws in Bangladesh.
The Joint Venture Agreement is typically the first document signed between the Landowner and the Developer following protracted negotiations. This Agreement stipulates the Developer's and Landlord's share percentages, the timetable, the advance payable, and the penalties for delays. The Landowner is obligated to sign and execute this Agreement under section 10 of The Real Estate Development and Management Act of 2010. It is not required by law to register this Agreement.
Power of Attorney:
Section 10 of the Real Estate Development and Management Act of 2010 mandates that the Landowner complete a Power of Attorney in favor of the Developer. This will enable the Developer to submit an application to RAJUK/ CDA for approval of the layout plan, execute sale agreements with third-party purchasers, and do other required tasks.
The contract between the landowner and the real estate developer must comply with section 10 of the Contract Act of 1872, which addresses the essential elements of a valid contract.
Written contract:
The transfer of land to a real estate developer must be documented in writing with mutual consent from parties that are legally able to contract under the Contract Act of 1872 and have no fraudulent intent. The contract must contain the terms and conditions of the agreement. Add to the contract the consequences for contract violation.
5. Real Estate Development and Management Act of 2010,:
According to section 15 of the Real Estate Development and Management Act of 2010, the transfer has been delayed. In the event of a delay in the handover of the assigned portion of the apartment/plot of land, the landowner is entitled to compensation as stipulated in the deed of agreement between the land developer and land owner. Also, the landowner will be entitled to rental compensation in accordance with a mutually agreed-upon, written contract.
Delay by Landowner -
Pursuant to Section 28 of the same Act, if the Landowner fails to hand over possession of the land to the developer in accordance with the terms of the contract, the Landowner shall be subject to a fine of up to Tk. 10 lacs and/or imprisonment for up to 2 years. Also in accordance with Section 29 of Chapter 36 of the Real Estate Development and Management Act of 2010, the Landowner will be subject to a fine and/or jail if he revokes the Power of Attorney executed in favor of the Developer without giving 30 days' notice.
Dispute Resolution:
According to section 36 of The Real Estate Development and Management Act of 2010, in the event of a problem between a landowner and a developer, the parties will make an initial attempt to resolve the dispute amicably. Nonetheless, if such an endeavor fails, the 2001 Arbitration Act shall control the resolution of the dispute.
Transfer of due portion as per Developer laws in Bangladesh,:
According to section 30 of The Real Estate Development and Management Act, 2010, if a land developer fails to transfer the possession of the due portion of real estate to the land owner in accordance with the terms of the contract between the land developer and the land owner, the land developer shall be punished by imprisonment for a period not to exceed two years or a fine of Tk 2,000,000 or both.
The landowner may initiate a suit for specific performance of contract under the Specific Relief Act 1877 against the developer business in order to obtain ownership of the allotted apartment/plot of land. The landowner may submit a writ against the Ministry of Commerce under Article 102 of the Constitution, with the registering authority of the developer company and the developer firm as additional respondents.
Both landowners and developers should discuss the provisions of the developer agreement with care to prevent future disputes. Special consideration must be paid to the potential delay and handover of such projects, since the developers may incur criminal liability. Also, landowners should be wary of proposals that are excessively profitable compared to market rates.
Are you intending to get into real estate scene in Bangladesh or wants to know more about Developer laws in Bangladesh?
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