Course Title: Land Laws of Bangladesh

Course Code: LAW-332

6th Semester
Date: 20-08-2020 (Thursday)
Duration: 10.35am-12.00pm

Lecture On The Principle Of Pre-Emption

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.

Sources of right of pre-emption:

1. Muhammadan Law
2. Local Custom
3. Statutes:

i) The State Acquisition and Tenancy Act 1950

ii) The Non Agricultural Tenancy Act 1949

iii) The Land Reforms Ordinance 1984

Others:-

iv) The Partition Act 1893

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

The 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. 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:

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, 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

(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.

The Partition act 1893:

Sec 4 of the Partition act confers the right of pre-emption of the co-sharer of an
undivided family

4. Partition suit by transferee of share in dwelling-house:

(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
shall undertake to buy the share of such transferee, make a valuation of such share
in such manner as it thinks fit, and direct the sale of such share to such shareholder
and may give all necessary and proper direction in that behalf.

(2) If in any case described in sub-section (1) two or more members of family
being such shareholders severally undertake to buy such share, the Court shall
follow the procedure prescribed by sub-section (2) of the last foregoing section.

Sub Sec (2) Sec3 confers that if two or more shareholders severally apply for leave
to buy the Court shall order a sale of the share or shares to the shareholders who
offers to pay the highest price above the valuation made by the Court.

Certain condition must be fulfilled before Sec. 4 comes into operation, (1) suit
must relate to dwelling house of an undivided family, (2) transferred to stranger,
(3) stranger-transferee has sued for partition. After fulfilling these conditions a co-
sharer can apply to the court. The sec. 4 of this act gives a co-sharer the right of
pre-emption against the right of the stranger.
Comparison of Pre-emption under SAT Act and Partition Act:

Though the Section 4 of this Act does not utter the word ‘pre-emption’ but it gives
the right of pre-emption to a co-sharer of a dwelling-house. The SAT Act gives the
right of pre-emption to a co-sharer tenant and a tenant holding land contiguous to
the land and the Partition Act ensures this right to a co-sharer of a dwelling-house.

The right of pre-emption in relation to a dwelling-house under section 4 is

exercisable by a member of an undivided family not only when a stranger-
transferee figures as a plaintiff, but also as a defendant in a partition suits.

The object of sec. 96 of SAT Act is to minimize the sub-division and

fragmentation of agricultural holdings which were the main causes of agricultural
backwardness of the land of Bangladesh. The object of the sec. 4 of the Partition
Act is to prevent intrusion of strangers in the dwelling-house in a partition suit:
The right of pre-emption in relation to a dwelling-house under section 4 is
exercisable by a member of an undivided family not only when a stranger-
transferee figures as a plaintiff, but also as a defendant in a partition suit. This
object would be frustrated if a stranger-purchaser forces himself into the dwelling-
house of an undivided family, drives the other co-owners to file a suit as plaintiffs
and then figuring as a defendant is allowed to defeat the claim for pre-emption
under section 4 of the Act on a narrow and literal interpretation of the section. In a
suit for partition, the parties to the suit are in the position of the counter-claimants,
and it can very well be predicated of a defendant in a suit for partition that he is
suing for partition.

The Land Reforms Ordinance 1984:

By Section 13 of the Land Reform Ordinance the Bargadar has got the right of pre-
emption of the bargaproperty which has been sold.

Sec.13.Boargadar’s right to purchase

(1) Where the owner intends to sell the barga land, he shall ask the bargadar in
writing if he is willing to purchase the land:

1) Provided that this provision shall not apply where the owner sells the land to a
co-sharer or to his parent, wife, son, daughter, son’s son or to any other member of
his family.
(2) The bargadar shall, with in fifteen days from the date of receipt of the offer,
inform the owner in writing of his decision to purchase or not to purchase the land.

(3) If the bargadar agrees to purchase the lands, he shall negotiate the price of the
land with the owner and purchase the land on such terms as may be agreed upon
between them.

(4) If the owner dose not receive any intimation from the bargadar regarding his
decision either to purchase or not to purchase the land within the specified time or
if the bargadar informs 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 any person he deems fit:

Provided that the owner shall not sell the land to such person at a price which is
lower than the price offered by the bargadar.

Where the barga land is purchased by a person other than the bargadar, the barga
contract in respect of the land shall be binding upon the purchaser as if the
purchaser were a party to the contract

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 LROSAT Act does not give the right
of second appeal but there is no matter of second appeal in LRO for Bargadar
because he can purchase the land under general of purchasing land and those rule
and system is applicable for him.

Comparison of Pre-emption under SAT ACT and Restoration of Vested

Properties Act 2001:

Under Section 27 of the Restoration of Vested Properties Act 2001 if the

Government want to sell or give lease an immovable property having no owner it
will give priority to the co-sharer by inheritance in that holding. If there is no such
type of Co-sharer, the person who possessed the sold property by lease
continuously at least for the last ten years can pre-empt that property. The right of
Pre- emption is provided under Section 96 of SAT Act 1950. It gives the right of
pre-emption to a co-sharer tenant and a tenant holding land contiguous to the land.

SAT Act does not mention any other law as supporting laws for pre-emption. But
Restoration of Vested Properties Act mentions the LRO act for an agricultural
land. If the property being an agricultural land the provisions of the Land Reform
Ordinance 1984 and its provisions will be applicable.

There is no provision in Restoration of Vested Properties Act relating to the

process of the pre-emption but the right of pre-emption only. But there are
provisions about the process of exercising the right of pre-emption in SAT Act.

Above all distinction and comparison section 96 of SAT Act is a complete section
for the right of pre-emption but sec 27 only mention about the right of pre-emption
on two specific person.