The illegalities of enemy turned vested property
The law of enemy property has a long and complex history in Bangladesh. Although it originated from the emergency laws promulgated during the India-Pakistan war in 1965, its legacy even continued in independent Bangladesh till recent years. After Independence in 1972, the Bangladesh (Vesting of Property and Assets) Order (P.O. 29 of 1972) was promulgated. By this Order, all properties situated in the former East Pakistan which had previously belonged to the Pakistan government, became vested in the government of Bangladesh including properties that were 'vested in or managed by any Board constituted by or under any law with effect from 26 March 1971'. Thus amongst other properties, the enemy properties that were vested in the Custodian during Pakistan period became vested in the government of Bangladesh in the same right with which the properties were initially vested in the Pakistan government.
When the properties had vested in the Pakistan government, they were vested for limited purpose and without extinguishing altogether the title of the owners during emergency. As the Bangladesh government had no larger right over those properties than that of the Pakistan government, it was only natural that it should initiate restoration of those properties once the immediate purpose of vesting had been served. Even if it could be assumed that there was no obligation on the Pakistan government to restore the properties taken as 'enemy property' that could not free the Bangladesh government from this obligation as the owners of such properties could never be legally considered as 'enemies' of the newly independent Bangladesh, which had a very different alignment with India. Therefore a clear obligation lay upon Bangladesh after its emergence as an independent sovereign to return the enemy turned vested properties to their original owners. It could not assume full ownership over those properties, let alone adding new properties to the existing list of enemy properties. However unfortunately not only has there been lack of any successful attempt to restore the properties, there had been large scale new additions to these properties under the pretexts of various laws and administrative circulars during different government regimes.
In 2001, the Vested Property Return Act was enacted which promised to return these properties to their original owners. But this Act is deeply flawed and unfortunately has failed to meet its promises.
The term 'returnable property' has been defined by the Act as those properties which had been enlisted by the government as vested properties under the vested property laws and which were under the possession or control of the government immediately before the promulgation of the Act.
Legally, any property that were vested after the Vesting Order of 1972 cannot be termed as vested property, as none of the vested property laws mentioned in the Act which were passed after the 1972 Order, authorised in effect any 'new' vesting of property. However the Act did not make any distinction as to whether the returnable properties were vested upon the government before or after the 1972 Order. Hence, properties which were taken over by the Pakistan government as being enemy properties and properties the owners of which were most illegally ousted from their possession during the period subsequent to our independence, both have fallen under the same criteria of 'returnable properties', and the deprived owners with no fault of their own, had to go through series of hurdles with no guarantee of actual return of their properties.
Another significant drawback of the Act is to exclude a large number of properties from being enlisted as returnable properties under Section 6. According to this section, properties that had been permanently disposed of or leased out by the government to any organisation or individual cannot be returned. Thus the Act, which apparently promised to redress the grievances of those whose properties were illegally taken by the government, had in effect legalized all the permanent disposal of those properties over which the government had never acquired any lawful title.
Again, the entire process of hearing of an application for return of vested properties under the 2001 Act is clogged with so many provisions that it is almost like a civil suit for declaration of title. Separate vested property tribunals have been created for hearing these claims, and submitting original documents of title is only the first stage of the process and it includes even hearing of witnesses from both sides. Usually it takes more than 3/4 years to get a decree of return and that also is subject to appeal to the vested property appellate tribunals. Even when a decree has been passed for return of the property to the owner, the file would go to the office of the Deputy Commissioner who would then take steps to execute the decree. Thus although the Act was passed in 2001, till date none of the properties has been reported to have been actually returned to its owner.
The problem of enemy property as it stands currently will probably exist for a prolonged period within the present legal and bureaucratic processes. The only plausible solution to this would be to create a stronger pressure group collectively with the representation from the civil society and rights movements, to break the chain of illegality and injustice that is being endured and practiced in Bangladesh in the name of 'enemy turned vested properties'.
The writer is a legal analyst and researcher. Her research interests include issues involving family law, gender violence and human rights. She is currently working as an Assistant Professor at the Department of Law, University of Dhaka.