An Assignment On Land Reforms Ordinance, 1984

Submitted to:

An Assignment On Land Reforms Ordinance, 1984

Submitted to: Md. Azharul Islam Course Tutor– Land Law Code- 204 University of Dhaka

Submitted By:

Community Legal Service

Members: Tipu Das 09

Rubiya Khanam 14 Md. Golam Mostafa 15

Zubida Nasrin 72 Abu Salman Prodhan 84 Al Sadik 88 Ibn-E-Kawser Rimel 153 M. A. Azharul Islam 202 Nesarul Karim 203

Nuran Chudhury 19

Date of Submission: 13.03.2011

Bangladesh has a very complex but a dynamic pattern of land ownership. Like some other developing countries, the history of land reforms in Bangladesh is a long one; spread over centuries. Feudalism in its worst form took its deepest roots under the British colonial rule. A chain of struggle by peasants spread over a century gave them their stable rights to tenancy through Bengal Tenancy Act, 1885. Since then changes came in bits and pieces. Feudalism was legally abolished through the implementation of State Acquisition and Tenancy Act.1950.There are broadly recognized social, Political and economic objectives of Land Reform. Pressure on population, change of the times and requirements of economic development make the introduction of land reforms imperative. Reforms are usually introduced by governments at their own initiatives, or in response to pressures internal or external, to avoid economic, social on political crisis. The most common political and social objective of land reform is to effectively abolish feudalism and its intermediary vested interests between the governments and its tenants.1The Second objective is to free the peasants from their feudal bondage and make

them active citizens. Thirdly the purpose of land reforms is to help create democracy at the grassroots. Under economic objectives of land reforms, the main thrust is to encourage agricultural progress as a vehicle for economic development, by giving the tenant ownership of his land, providing him with incentives to invest capital for improving land productivity. Land reform encourages more intensive farming and contributes to increased production. It has also been seen as a strategy fore leasing the productive potential of the small and medium tenants. The importance of recording the extent and ownership of the land cannot be over emphasized.

All Lands in Bangladesh are ultimately owned by the Government, but since the abolition of Zamindery system in 1950’s all ground tenants have come directly under the control of Government.2 The tenants have the right to buy, to sell or to mortgage their land as they seem fit The State Acquisition and Tenancy Act 1950 provided for abolition lf Permanent Settlement created by the then British Rulers whereby collection of revenue was left with the Zaminder (Big land lord) or their intermediate collecting agents. But after 1950 the act quoted above, come into the force and direct relationship between the Governments has been established. All these measures required the Govt. to update and maintain its record of rights. The government feels the necessity to maintain and updated some Rules, Regulation and Reformative decision on his part.

1 An Exhaustive analysis of the Land Reforms in Bangladesh, T. Hussain

2 Land Laws of Bangladesh, Dr. L. Kabir

Every nation or country has adopted Land Reform Policy in different ways. So what this

Land Reform really is?

Land Reform is one of most unique and important concept regarding land. It is a concept

of Renaissance. Land reform means the use of land, its management. In the present situation the country, land reform may be said to be constituted of –

A. LEGAL MEASURE FOR – 1. Re – distribution of agricultural land & 2. Modification of tenancy terms with

B. ADEQUATE PROVISIONS FOR – 1. Organizational and financial support &

2. Capital investment for development of land and instification of its use.

C. IN ORDER TO MAKE POSSIBLE –

1. Increase in agricultural productivity.

2. Attainment of socially desired equitable distribution of income and wealth, effective and conscious participation of the people in development programmes.3

The importance of land reform felt by the government and to solve the problem of actual distribution of lands which is further compounded by the availability of land on an unreal basis which could be given to the landless or share croppers. This unreal basis in case of Bangladesh is related to the primary administrative units of districts.

For Example: The size of a district varies from 1100 square miles to 4000 square miles. The population too varies from 3 to 8 million.4

3 Land Reforms in Bangladesh, Mohiuddin Khan Alamgir

4 Land Reforms in Bangladesh, Mohiuddin Khan Alamgir, Page 108

Finally, we can say that the main purpose of land reform is to-

1. Determine the owner –bargadar relationship. 2. Fix the ceiling of land holdings of a family and to

determine the excess land. 3. Rationalized land revenue. 4. Restore alienate lands. 5. Distribute vested agricultural land.

Land Reform Measures in the Countries around the World:5

In Ireland the Land Act of 1923 abolished rural landlordism and fully compensated. The Land commission established there acted as a great purchaser and distributor of lands. The tenants came directly under the land transfer of fee simple ownership to them.

Agrarian reforms introduced in Egypt in 1952 provided that no person should own 200 feddan (about 10 acres) of agricultural land. The small farmers owned five feddan or less and who benefied from land distributed plan were required by law to establish co-operative of their own. The co-operatives were used to provide agriculture credit and inputs like seeds, fertilizers and farm machinery. In addition, they were to plan the cultivation of land rotation of crops and set aside price of the land, taxes, loans, etc. The ex-owners received indemnities in compensation for their acquired lands bonds redeemable in 30 years.

Land reform and land distribution programmes in Japan were carried out with great success and have been a contributory factor to increase agricultural production there. The relevant law was enforced by 10000 elected agricultural land commission composed of landlords owner – farmers and tenants. If the meeting of a land commission was not open to the public its decision was invalid. Payment of compensation (party financed by government) was made in the shape of land bonds, redeemable in 22 years through the Japan Hypothecation Bank.

In India land legislation has shown results not only in elimination of intermediaries but also in tenancy reform. In west Bengal , the land holding ceiling has been fixed at from 2.50 hectares ( 6.25 acres) to seven hectares ( 17.50 acres ) per adult raiyat, depending on the size

5 Land reforms In Bangladesh, T. Hussain, Page 70

of his family .The problems of bargadars also came up for legislative enactment . The produce of land cultivated by a bargadar was to be divided –

1. In the proportion of 50.50 if plough, cattle , seeds were supplied by the land owner

2. In the proportion of 75.25 in all other cases

The legislation also provided that no person would be entitled to terminate cultivation of his land by a bargadar except on very stringent grounds.

Major Reforms in WEST BENGAL (INDIA):6

Land reform in West Bengal unlike earlier green revolution works in favour of small and marginal farmers. It strengthens the social bondage through miniature irrigation; land distribution, local government accountability etc. On the whole the land reform in West Bengal has given agriculture an institutional character and ensured productivity and profit distribution. The major land reform activities undertaken in west Bengal relate to:

1. Determination of the owner- bargadar relationship. 2. The fixing of a family ceiling of a land holding and

determination of excess lands. 3. The provisions of institutional finance to bargadars. 4. Rationalisation of land revenue. 5. Restoration of alienated lands. 6. Distribution of vested agricultural lands

The most important land mark in implementing the foregoing has been “Operation Barga”. This is major component land reform policy of the west Bengal government.

Land reform in West Bengal unlike earlier green revolution works in favour of small and marginal farmers. It strengthens the social bondage through miniature irrigation; land distribution, local government accountability etc. On the whole the land reform in West Bengal has given agriculture an institutional character and ensured productivity and profit distribution

6 Land reforms In Bangladesh, T. Hussain, Page 72

In Bangladesh:

Land Reforms Ordinance, 1984 is the first ordinance that paved the way for the long cherished reformation of lands in Bangladesh. Land Reforms Ordinance seemed to be enacted as the first of its kind that is going to meet the demand of the time. Land Reforms Ordinance, 1984 later change to rules has a history of centuries behind it. Before giving an exhaustive analysis of this ordinance a brief touch of the previous ordinances and acts should be given.

Bangladesh is agriculture based economic supported country because of its geographical position and environmental condition. Being a blessed part of the earth it’s social, cultural, and economical development directly or indirectly related to agriculture. This part of the world experience the governance of many colonial system e.g. Mogul, British. The English influenced the culture, custom, livelihood of the inhabitants of this part as well as this subcontinent in large extent. The East India Company, through which British colonial system has started, found that the vast majority of the people in Bengal is depended on agriculture for their subsistence and had thus to suffer untold hardship from periodical famines or inundations. The Zaminders had no proprietary rights in the lands in their position and where content to realize from the tenants the full amount of the rent in order to remit to the government the required revenue the government had to make good the loss in revenue arising of the failure of crops in areas striking by famine flood or pestilence. In order to improve the agricultural condition and to safeguard the interests of the Zaminders who would then be in a position to raise the productivity of their lands The East India Company introduce Bengal Regulation of 1793 which is also known as permanent settlement regulation. This regulation is considered as the first planned codified land law of this part of the world.

Regulation VIII of 1793, no doubt, succeeded in many cases improve the condition of the previous time but it also created instability among the owners of the land who collected and paid the revenue. This regulation was criticized as a black law because of its permanent settlement rule. To improve the condition later on amendment was brought to this regulation and also new regulation was introduced. But before the advent of the Bengal Tenancy Act,

1885 the impact of the regulations are not worth mentioning except The Rent Act X of 1859 which measures to define the status and rights of raiyats vis-à-vis the landlords. The principle of the Act may be said to be based upon a system of fixity of tenure at judicial rent. It had three main objects: Firstly to give the settled raiyats the same security in his holding as he enjoyed under the old customary law. Secondly, to ensure to the landlord a fair share of the increased value of the produce of the soil. Thirdly, to lay down rules by which all disputed questions between landlord and tenant could be reduced to simple issues and decided upon equitable principles.

In pursuance of these main principles, the Act laid down rules to guide the courts in determining whether a tenant was a tenure-holder or a raiyat; it provided a producer for the registration of the transfer of tenures; it defined the position of raiyats who held at fixed rates of rent; it facilitated enhancement or reduction of rent of raiyats by suit; it established a system for the communication of rent payable in kind; it specified the grounds on which a non-occupancy raiyat could be ejected; it prescribed rules for installments, receipts and interest upon arrears; it encouraged the making of improvements; it restricted sub-letting; it provided for cases in which holdings were surrendered or abandoned; it protected the interests, both of the parties and the general public, in cases of disputes between co-sharer; it laid down a procedure for recording the private lands of properties; it introduced a new system of distrait; it gave protection to sub-tenants when the interest of the superior holder was relinquished or sold in execution of a decree, and finally it provided for a survey and the preparation of a record-of-rights in respect of any local area, estate or tenure or part thereof by a Revenue officer, and thus settled all disputes between landlord and tenant as to area, rent and status which were the chief subjects of contention.

East Bengal State Acquisition & Tenancy Act, 1951

The first major attempt in the direction of land reforms was the enactment of East Bengal State Acquisition & Tenancy Act, 1951. Prior to that, measures to define the status and rights of the raiyats vis-à-vis the landlords were contained in the Rent Act X of 1859 and the Bengal Tenancy Act of 1885, as amended subsequently in 1928 and 1938. The Floud Commission was the first major land reforms body appointed by the Government and its recommendations were the foundation of the 1951 legislation.

The main provisions of the 1951 Act were three fold: (i) abolition of all rent-receiving interests, (ii) prohibition of future subletting and (iii) putting a ceiling on land holdings per family beyond 100 standard bighas (33.33 acres). The ceiling was subsequently raised to 375 standard bighas (125 acres) during the martial law regime of Ayub Khan.7

The implementation of the scheme of State Acquisition as envisaged in East Bengal Acquisition and Tenancy Act was a time-talking process. After the Act passed in 1951, steps were initiated for acquiring, in a summary procedure as laid down in Chapter II of the Act, the interests of the proprietors of big estates on the basis of the collection papers available from the Zaminders’ cutchceries. Similar action was taken in respect of Court of Wards estates which were also acquired by the summary procedure.

7 Daily Star,2002, Desk report

The first hurdle in the implementation process came in the shape of several Civil Suits field in the courts of sub-judges by some Zaminders challenging the acquisition of their interests under the Act. The main ground of the cases was that the compensation provided in the Act was inadequate.

On the 12th October, 1955, Government, however, finally decided to acquire, by the 14th April, 1956, all the districts of the province by the summary procedure i.e. under Chapter II of the Act.

Government had, in the meantime, issued notifications on the 2nd April, 1956, acquiring with effect from the 14th April, 1956 all interests of all rent-receivers in their estates, taluks, tenures, holdings and tenancies situated within all the districts in erstwhile East Pakistan excluding Chittagong Hill Tracts, excepts those which had already been acquired by and vested in Government. Similarly, notifications were issued, acquiring with effect from the same date, all land in khas possession of all rent-receivers, which were not retainable under the law. On the 13th April, 1956 i.e. on the day previous to the day of taking over, a new problem cropped up. On that day, 83 petitions were moved against the Province of East Pakistan in the Dhaka high Court for Writ of mandamus mainly on the ground that these notifications were ultra-vires of the Constitution. Appeals were filed immediately before the Supreme Court and on the 17th June, 1957, the Supreme Court delivered judgment dismissing all the appeals with respect to acquisition of all the secular rent-receiving interests. Government then took over possession of all the secular interests of the Province which were covered by the Writ Petitions.

The case regarding the acquisition of rent-receiving interests of Wakf and Debottar estates were still pending before the Supreme Court. Consequently, the possession of rent-receiving interest and khas lands of such estates were not taken over by the Government. The Government, however, took possession of subordinate tenures of the Wakf and Debottar estate on the ground that the same had been covered by the notification of whole-sale acquisition of 2nd April, 1956. An Ordinance was then promulgated permitting the mutwallis and shebaits of by Wakf and Debottar properties, acquired but not taken possession of Government, to continue to manage such properties as agents of Government.

Land Revenue Commission, 19598

Meanwhile, it was noticed that many legal and administrative difficulties had accumulated which stood on the way of speedy completion of acquisition process and it became a

8 Land reforms In Bangladesh, T. Hussain

formidable task to arrange the payment of compensation. The collection of revenue also became a serious problem. The Government of East Pakistan, therefore, appointed a 3-man land Revenue Commission in December, 1958, headed by Khan Bahadur Md. Mahmud, a veteran revenue expert. The Commission completed their report in July, 1959 and made elaborate recommendations regarding the payment of compensation and re-organization of the administrative set-up of the Revenue Administration to cope with the situation. The Commission also examined the provisions of the State Acquisition Act with a view to making them more realistic and suitable to meet the needs of the people in the light of experiences gathered in the process of implementation of the reforms.

Recommendation of Land Revenue Commission:

The main recommendation of the East Pakistan Land Revenue Commission, 1959 were precisely as follows:

a. Now that landlordism has been abolished and all tenants have really become “peasant properties”, it is appropriate that they should be called “Malguzars” rather than “raiyats.”

b. The ceiling of the area of khas land which a person may be entitled to retain would be fixed at 100 acres per family, including the homestead and orchards. But for the local areas where the average production of land is less than 15 mounds’ per acre, the ceiling should be 133 of land per family.

c. Measures for a simpler basis of assessment of ad-interim compensation and compensation for pre-acquisition arrears rent and ceases vested in the Government should be adopted according to the suggestions of the Commission.

d. The entire revenue set-up from the tahsil level up to the district level should be re-organised and strengthened.

But in November of the same year, the committee was reconstituted and named as East Pakistan Land Reforms Committee with the same Chairman. The above recommendations were substantially accepted by the Government. The raiyats and they were called ‘maliks’. The ceiling of holding Khas lands was raised from 33.33 acres to 125 acres per family, inclusive of homestead. The law was also amended to take up re-assessment of rents at an interval of 20 years instead of 30 years.

In consequence of the amendments of the State Acquisition Act following the above recommendations, the East Pakistan Cabinet, on the 31st March, 1964, took the firm

decision authorizing the Revenue Department to start revisional settlement operations combined with rationalization of rent under Part V of the Act.

After 1965 the social and political condition getting worst day by day. The oppressed East Pakistani people have raised their voice against shrewd West Pakistani oppressors. This protest became independent movement within couple of years. West Pakistani rulers fueled the independence movement by continuing the injustice and thus the liberation war started. As a result all the amendments that were brought to the SAT Act, 1951 remained latent before came to any action.

The State Acquisition and Tenancy Act did not thus solve all the problems of the agrarian structure. The 1951 legislation did not touch the problem of bargadars (share-croppers), nor did it regulate the land owner-bargader relationship. To quote the draft second five year plan, the rural population, which forms 90 percent of the entire population of the country, is faced with “ubiquitous share-cropping, widespread sub-marginal holdings; acute sub-division and fragmentation, dubious land records and peculiar problems associated with the management of Khas or char lands.”9

After Independence the first initiative towards land reform was taken in 1972. The notable aspects of the proposed reform were: a) Reducing the maximum limit of land ownership to 100 bighas per family; b) distributing khas land among the landless poor; c) making upto 25 bigha land tax exempt; d) Withdrawing to government some authorities given to farmers in matters of taking possession of newly accreted shoals and abolishing lease of sairat mahal and khas land, haat-bazar, water bodies, ferry ghat etc. and prohibiting mortage of agricultural land under exploitative terms.10

Besides the above mentioned reformation the new government also gave intention to settle the disputes regarding alluvium and diluvium land. The President, made an order, on the advice of the Prime Minister, of the People’s Republic of Bangladesh on the 3rd of November, 1972. This order, marked as President’s Order No 135, is actually an amendment of SAT Act and titled as The Bangladesh State Acquisition Act (4th amendment) Order, 1974. It was also proposed to introduce Ceiling Act, the Bangabandhu Government backed off from doing that on political and social grounds.11

The assassination of Sheikh Mujib on 15 August 1975 and assent of Ziaur Rahman to power later on pushed the issue of land reform under carpet. However, President Zia’s Govt. tried to counter the problems. In order to do that this govt. planned to introduce

9 Land Laws of Bangladesh, Dr. L. Kabir, Vol III

village institutions like “gram sarkers”. In a deviation of the traditional thinking on land Reforms, which mainly deals with tenancy Reform and fixing ceiling upon land holdings, a study was undertaken in early 1980, at the instance of General Economic Division of the Planning Commission, Planning Ministry, Government of the Peoples Republic in Bangladesh, to determine The problems of land reforms with a view to increasing agricultural productivity through modernization. The study was assigned to Consultant Firm named Development research Associates International Ltd, Dhaka.

The study team visited West Bengal in India from 21st to 26th April, 1980 with the object of not only seeing the land reforms measures, legal and administrative, undertaken there, but also to know the problems encountered in the process of implementation of the same. With the assassination of President Zia this reformation process went to the dark room.

Gen. H.M. Ershad superseding President Zia took the power. The issue again drew attention of government and the government in 1984 realized that the importance of introducing a new land reform rules, which would reflect the demand of reality. In consequence of this realization and ordinance was announced and through this ordinance the army supported government has successfully expressed themselves as a political government and got the support of the mass.

It was felt that land reforms as presently envisaged must cover the regulation of tenancy rights, including those of bargadars (share-croppers), measures to sub-division and fragmentation of holdings, proper land management including improvement of crop yield, the organization of credit and marketing facilities of the farm-produce and other matters which the particular needs of the country demand. The objectives should be to achieve higher living standards, improvement of social status and better opportunities for those engaged in cultivation and last but not the least the attainment of greater productivity from the lands they cultivate.

Urgency of the land reforms ordinance, 1984

In many ways reformations of lands were the earnest demand of bargadars (share-croppers) and also the necessity for the country’s gross production. Here some aspects are mentioned to show the urgency of the ordinance among the citizens of the country.

Social Aspect:

It was felt that land reforms as presently envisaged must cover the regulation of tenancy rights, including those of bargadars (share-croppers), measures to sub-division and fragmentation of holdings, proper land management including improvement of crop yield,

the organization of credit and marketing facilities of the farm-produce and other matters which the particular needs of the country demand.

On the other hand, the major share of the income from land goes to the one fifth land owners in the country. That this disparity is increasing the poverty and widening the rich-poor gap in the country doesn't need further proof. For the sustainable development of the country this disparity should be discouraged. So this land reforms ordinance was necessary to safeguard the principle of our liberation war.

Financial Aspect:

It is a well proved theory around the world; a successful land reformation will have its immediate impact on the country’s land revenue vis-à-vis the total economy. As an example the spectacular immediate effect of land reforms in East Pakistan can be mentioned. Before the abolition of the Zamindary system the land revenue demand of the province stood at Rs. 1,76,74,609/-. But after the implementation of the SAT Act, 1951 this revenue goes to Rs. 10, 66, 36,367/- in 1958-59. The break-up is given below:

a. Rent Rs 9,48,91,160.00 b. Demand on account of sairat mahals i.e. hats, bazaars etc 1,17,45,207.00

After the liberation many khas land were illegally possessed by the land grabbers. To get the revenue of these lands the reformations became mandatory.

Administrative Aspect:

Bangladesh had failed to introduce a governing system that would include both the rural and urban people. As an agricultural based country majority of its people related to agriculture. So a good land administration can attach the villagers to the main stream power. To introduce an effective land reforming system the co-operation of the villagers has no alternative option. In this perspective land reforms ordinance, 1984 had the urgency.

Main Features of Land Reforms Ordinance, 1984:

1. No agricultural tenant can acquire more than 60 bighas under sec4(1) 2. If any agricultural agricultural tenant holds more than 60 bighas land, such excess land

shall be acquired by the Govt. & far such acquisition government is not bound to pay any compensation…………………under section 4.

But if the excess land is owned by right of inheritance, gift, will, then govt. is bound to pay the compensation for acquiring such land ……….under section 4.

3. This act prohibits all types of benami transactions……under section 5(c1). 4. Court will not take or prosecute for benami transaction. Court will only receive the

name mentioned in the transaction as an actual owner of that immovable property…….under section 5(2), & 5(3).

5. Any land used as a homestead by its owner in the rural area shall be exempted from all legal process , including seizure or sell by any officer, court or any other authority & the owner of such land shall not be diverted or disposed of the land or evicted thereon by any means ….under sec 6.

6. Govt. can distribute khas land to the landless people or labourer in the rural areas but not more than 5 kathas to any individual & such land shall be heritable but can’t tranferable…under section 7.

7. Every bargadhar shall be construed under the specified contact as notified by govt. from the 14th april 1984. If this procedure is not followed then such bargadar will be null & void & govt. will acquire all such product. Once a bargha contract made, it shall be valid for next 5 years from the date it is made. Under sec.08.

8. Product grown by borgha system will be divided into 3 parts .1) 1/3 one will get by the owner of the land. 2) 1/3 another will get by the bargadhar & 3) 1/3 other will get the person who bears the cost of cultivation…….under sec.12.

9. Where the owner extends to sell the bargha land he shall ask the bargadars in writing if he is willing to purchase the land & with in 15 days from the date of receipt of the offer bargadar has to communicate in writing to thre owner whether he is agree or not to purchase ……….under sec.13.

10. One bargadar can only cultivate 15 bighas of land as bargha & excess of it is prohibited by laws & Govt. will take all the cultivate product of the excess land of 15 bighas………under sec.15.

11. All disputes between bargadar & the owner shall be settled by the authority as may be prescribed by Govt. ……..under sec.16.

12. No further prosecution can be laid down in any court otherwise as the govt. prescribed……under section 17.

13. Accused will be penalised with 2 thousand taka compensationif he violate this law.Under sec. 21.

14. This act comes into force on 14 April of 1984 as Land reforms ordinance 1984__ (preamble).

15. Govt. has determined the wages of the labour in case of agricultural cultivation. Its amount will be 3.27kg rice or the equal amount of it. Sec 3 of the agricultural labour (minimum wages) ordinance 1984.

16. Suit can be filed to the village court as a compensation for compensation sec 6, ibid. 17. No question can be raised in any court about the wages of labour as determined by the

govt. sec.7, ibid.

THE LAND REFORMS ORDINANCE, 1984

(Ordinance No. XX of 1984)

(26th January, 1984)

An ordinance to reform the law relating to land tenure, land holding and land transfer with a view to maxi missing production and ensuring a better relationship between land owners and bargadar.

Where, it is expedient to reform the law relating to land tenure, holding and land transfer with a view to maximissing production and ensuring a better relationship between land owners and bargadars.

Now, therefore, the presence of the proclamation of the 24th march,1982 and in exercise of all powers enabling his in that behalf the president is p-leased to make and promulgate the ordinance related to land tenure, and holding and land transfer.

This ordinance is known as the ordinance of the land reforms ordinance, 1984.

Definitions:

In this ordinance, unless is anything repugnant is the subject or context -

(a) BARGADAR means a person who under the system generally known as adhi,bargadar or bhag cultivates the land of another person on condition of delivering share of produce of such land to that person.

(b) BARGA CONTRACT means any contract cultivation of any land cultivation by a person as a bargader.

(c) BARGA LAND means any land under cultivation of any person as a bargader.

(d) Family is relation to a person, includes such person and his wife, son, unmarried daughter, son’s wife and son’s unmarried daughter.

Provided that an adulator married son who has been living in a separate mess independent of his parents and pays union rate in his own name and his wife, son and unmarried daughter shall be deemed to constitute a separate.

(e) HOMESTEAD means a dwelling house without houses, thanks and enclosures immediately connected with it covering an area of not more than one standard bigha.

Provided that where such area exceeds one standard exceeds one standard bigha the excess land shall not be deemed to be home stead.

(f) MALIK means a person or an organization, body or authority holding agricultural land.

(g) OWNER, in relation to bargadar land, means the person from whom the bargadar gets land for cultivation under a barga contract.

(i) “PRESCRIBED” means prescribed by rules made under this Ordinance;

(j) “PRESCRIBED” Appellate Authority” means an authority appointed by the Government, by notification in the official Gazette, for the purpose of hearing all or any of the appeals under this Ordinance, or an authority specified in the rules for such purpose;

(k) “PRESCRIBED” authority” means an authority appointed by the Government, by notification in the official Gazette, for all or any of the purpose of this Ordinance, except for the purpose of hearing appeals, or an authority specified in the rules for such purposes;

(l) “PRODUCE” includes straw, stalk of any crop and any other crop residue;

(m) “RULES” means rules made under this Ordinance;

(n) “RURAL AREA” means any area which is not included within a municipality.

Ordinance to Override Other Laws, etc:

The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force or in any custom or usage or in any contract or instrument.

Limitation on Acquisition of Agricultural Land:

An ordinance to reform the law relating to land tenure, land holding and land transfer with a view to maximizing production and ensuring a better relationship between land owners and bargadars.

Whereas it is expedient to reform the law relating to land tenure, land holding and land transfer with a view to maximizing production and ensuring a better relationship between land owners and bargadars.

Now, therefore, in pursuance of the proclamation of the 24th march 1982 and in exercise of all powers enabling his in that behalf, that the president is pleased to make and promulgate this ordinance. This ordinance is known as The Land Reforms Ordinance 1984.

Section 4 of the ordinance deals with the limitation on acquisition of agricultural land.

(1)No malik who or whose family owns less than sixty standard bighas of agricultural land shall acquire any new agricultural land by transfer, inheritance , gift or any other means

(2) A malik who or whose family owns less than sixty standard bighsa of agricultural land may acquire , new agricultural land by any means, but such new land, together with agricultural land owned by him shall not exceed sixty standard bighas.

(3)If any malik acquires any new agricultural land in contravention of the provisions of this section, the area of land which is in excess of sixty standard bighas shall vest in the government and no compensation shall be payable to him for the land so vested, except in the case where the excess land is acquired by gift, inheritance or will.

(4) Compensation for the excess land payable under sub-section (3)shall be assessed and paid in such manner as may be prescribed:

Provided that where such compensation is payable only for a portion of the excess land, the assessment and payment of compensation shall be made for such portion of the excess land as the malik may specify in this behalf.

Before Land Reforms Ordinance 1984, any malik can hold and transfer more than sixty standard bighas of agricultural land. So we can say that The Land Reforms Ordinance, 1984 hits the roots of the Zamindar system.

PROHIBITION OF BENAMI TRANSACTION OF IMMOVABLE PROPERTY:

Benami purchases are purchases in false name of another person, who does not pay the consideration but merely lends his name, while the real title vests in another person who actually purchased the property and he is the beneficial owner. Benami transactions used to take place to evade law of perpetuity, because of parda system, to avoid annoyance, Zamindar’s desire to avoid indignity and legal disability, mysterious desire etc.

Benami transactions were noticed as early as the year 1778 in Mr. Justice Hyde’s notes after the establishment of British rule in India. In 1854 the committee on a review of cases in Gopeekrist Gosain Vs. Gungapersuad10, held that benami transaction is a custom of the country and must be recognized till otherwise ordered by law. In 1882 sections 81 and 82 of Indian Trusts Act gave legislative recognition to the practice of benami transactions and the courts were bound to enforce it.

Such benami transactions abused and defrauded public revenues and creditors. The Parliament for the first time intervened in 1976 when it introduced section 281A in the Income-tax Act, 1961 barring the institution of suit in relation to benami properties. But this too did not stop benami transactions and its consequences, this time the Parliament totally prohibited the benami transactions and made it an offence also, prohibiting all suits, claims and actions based upon benami transaction. The Parliament also in order to stop the abuse and fraud by the benami transaction property without compensation repealed section 82 of Indian Trusts Act and section 281A of the Income tax Act along with other consequential repeal. The Law Commission was requested to examine the subject on benami transactions in all its ramifications. The Law Commission submitted its 57th Report. To implement the recommendations of the Law Commission President promulgated the Benami Transaction (Prohibition of the Right to Recover Property) Ordinance, 1988 on 19th May, 1988 by which it barred all suits and defenses based upon benami transactions. This Ordinance was converted into an Act by introduction of a Bill in the Parliament

This ordinance become successful in three fields which are given below:-

Rights of the Bargadar:-

By this ordinance the rights of the bargadar are recognized. Before this ordinance, there was no effective law to protect the right of the bargadar by this ordinance. After this ordinance 10 1854, 6 MLA 53

the bargadar have a status in the society. A barga contract shall be a period of five years commencing from specified in the barga contract.

NO BENAMI TRANSATION:

1) No person shall purchase any immovable property for his own benefit in the name of another person.

2) Where the owner of any immovable property transfers or bequeaths it by a registered deed, it shall be presumed that he has disposed of his beneficial interest therein as specified in the deed and the transferee or legatee shall be deemed to hold the property for his own benefit, and no evidence, oral or documentary, to his beneficial interest therein or that the transferee legate holds the property for the benefit of the owner, shall be admissible in any court or authority.

3) where any immovable property is transferred to a person by a registered deed, it shall be presumed that such person has acquired the property for his own benefit, where consideration for such transfer is paid or provided by another person it shall be presumed that such other person of the transferee holds the property for the benefit of the person paying or providing the consideration, shall be admissible in any proceeding before any court of authority.

SUPPORTING CASE11:

SUDHANSHU KUMAR & OTHERS

-APPELLANTS

VS

BARADA CHARAN SARKAR & OTHERS

-RESPONDENT

11 6 BLD

FACT:

On whom burden of proof lies & how to establish a benami transaction.

HELD:

The onus of establishing benami is on the defendants and that must be strictly established. The decision on benami can not on more suspicion but must rest on legal grounds and legal testimony.

It is also settled law that to ascertain the true character of a transaction challenge as benami the vital test is what is the source from whence the consideration came.

NO EVICTION ETC…FROM HOMESTEAD:-

Any land used as a homestead by its owners in the rural area shall be exempted from all legal process including seizure, distress, attachment or sale by any officer, court or dispossessed of the land or evicted there form by any means:

Provided that nothing in his section shall apply to the acquisition of such homestead …any law.

The change, in the meantime, the of the stands in the way of transfer getting the homestead restored to him under the provision of ordinance No XX VIII of 1976, for under the New Law (ordinance XX of 1984) the homestead is exempted from all legal process.

Comments:

The change, in the mean time of the law stands in the way of the transfer or getting the homestead restored to him under the provision of ordinance No XXVIII of 1976, for, under the new law (Ordinance XX of 1984) the homestead is exempt from all legal process.

Section 6 of the ordinance bars legal in respect of any land within rural areas which is being used as a homestead by its owners.

The proviso to section 6 of the ordinance provides that this section shall not be a bar against-acquisition of a homestead under any law. A decree in a suit for declaration of title and recovery of possession of homestead land passed by a civil court can not be rendered nugatory by application of section 6 of the ordinance.

Section 182 of The Bengal Tenancy Act 1885 says “ when a raiyat or an under raiyat holds his homestead otherwise than as part of his holding within the same village or any village contiguous to that village, his status in respect of his homestead shall be that of a raiyat or an under raiyat according to the status of the landlord of the homestead, and the incidents of his tenancy of such homestead shall be governed by the provisions of this Act applicable to raiyats or under raiyats, as the case may be.

Where the homestead was held by a tenant who held no agricultural land, but the homestead formed part of an agricultural tenancy held by the raiyat from whom the tenant become an under raiyat under the general provisions of the Act, apart from section 182.

Section 2(14) of The State Acquisition and Tenancy act 1950 says that “homestead means a dwelling house with the land under it together with any courtyard, garden, tank, place of ownership and private house, and includes any out buildings used for the purpose of enjoying the dwelling house or for purposes corrected with agriculture or horticulture and such lands within well defined limits, whether vacant or not, as are treated to be appertaining thereto.

In the leading case of Rahima Begum Vs Abdul Baten it was held that “the change in the mean time of the law strands in the way of the transfer getting the ”homestead ” restored under the provision of ordinance No. XXVIII of 1976, under the new law (land reforms ordinance-1984).

SETTLEMENT FOR KHAS FOR HOMESTEAD:-

Section 2(15) of the acquisition and tenancy act,1950 says that khas land, in relation to any preson, includes any land lot out tighter with any building necessary adjuncts thereto, otherwise than is perpetuity.

In the case12 of

SUDHIR CHANDRA DAS

VS

HATEM BEPARI

It was held that land with building on and let out is khas land.

LAND FOR HOMESTEAD:-

1)where is the rural area any khas land fit for bring used as home stead is available, the govt. shall settling such give preference to landless farmers and labors.

2) Any land settled under sub-section (1) shall be heritable but not trafficable.

CULTIVATION UNDER BARGA COTRACT:-

(1)Subject to the other provision of this ordinances no person shall allow anther person to cultivate his land and no person shall cultivate the land of another person on condition of

12 8 BLD, Page 244

sharing the produce of such land between then unless they execute a contract for such cultivation in such form and manner as may be prescribed.

From this section, it is necessary to define land firstly.

Here LAND means which is cultivate, uncultivated or covered with water at any time of buildings of the year and includes house of buildings & also things attached to the earth or permanently fastened to any thing attached to the earth. It also include all fisheries, several or territorial. So, from this it is clear that no0 person shall cultivate the land which is defi9ned under sec. 16 of the SAT ACT of another without a contract for cultivation in the prescribed manner.

(2)A barga contract shall be valid for a period of five years commencing form such date as may be specified in the barga contract.

By the word barga contract under which any land cultivate by a person as a barga. So, such contract shall be valid for five years commencing from the date of contract.

RECOGNITION OF EXISTING BARGADARS:-

Recognition of existing bargadars are discussed under section 9 of LAND REFORM ORDINANCE, 1984

1) Any person cultivating the land of another person as a bargadar immediately before the commencement of Ordinance shall be deemed to be a bargadar in respect of such land under this Ordinance.

2) The owner and the bargadar of any land referred to in sub-section(1) shall execute a contract as required under section 8 within 90 days date of commencement of this ordinance.

3) If the parties fail to execute the contract within the specified period, any of them may make an application to the prescribed authority for getting a contract executed.

4) The prescribed authority shall, after making such enquiry as it deems fit, within 60 days of receipt of the application, decide whether or not the applicant is entitled to get such contract.

5) If the prescribed authority decides that applicant is entitle to get a contract executed in respect of any property to execute the contract within two weeks form the date of receipt of shall direct the opposite party to receipt of

direction and, if such party fails to execute, the authority shall execute on behalf of such party.

6) A barga contract executed under this section shall be deemed to be effective from the date of commencement of this ordinance, and shall bre valid for a period of 5 years from that date.

In this section, we find some important topics. Which are given below:--

1) Here a barga contract is essential between the bargadar & the owner. 2) The contract will be executed under the sub section (1). 3) The contract needs to be executed within 90 days according to section

8. 4) If the parties fail to execute the contract then any of them can appeal

for executing such contract to the prescribed authority. 5) The prescribed authority will enquiry that the party is entitled or not for

such contract within 60 days. 6) If the prescribed authority decides that the party is entitled to get such

contract,then the contract will be executed within two weeks. If any party fails to execute such contract then the authority will execute the contract on behalf of him.

7) The contract is valid is for a terms of five years.

CULTIVATION OF BARGA LAND AFTER BARGADAR’S DEATH:-

Section 10 of LAND REFORM ORDINANCE dicuss the above mentioned topics-

Where a bargadar dies before the expiry of the period of barga contract, the cultivation of the barga land may be continued by the surviving members and the family of the deceased Bargadar till such expiry or till the barga contract terminated under this section.

1) Where the bargadar dies without leaving any person in his family who is in a position to cultivate the land, the owner of the land may bring the land under his personal cultivation or allow to such land to be cultivated by another bargdar.

In this section we find some important portions which are given below13:-

1) After death of the bargadar, his family member can cultivate the

Land till the termination of such contract.

2) The owner of the land can take under his control if the bargadar dies without leaving any member in his family who can cultivate the land.

3) The owner can cultivate the land himself.

4) The owner can allow the land to cultivate the land to another bargadar to cultivate.

TERMINATION OF BARGA CONTRACT:-

(1) No owner shall be entitled to terminate a barga contract except in execution of an order, made by the prescribed authority, on the ground that-

(a) The bargadar has, without any reasonable cause, failed to cultivate the barga land;

(b) The bargadar has,without any reasonable cause,failed to produce any crop equal to the average output of such crop in any land similar to the barga land in the locality;

(c) The bargadar has used the barga land wholly or partly for any purpose other than agriculture;

(d) The bargadar has contravened any provision of this Ordinance or the rules or orders made thereunder;

(e) The bargadar has surrendered or voluntarily abandoned his right of cultivation;

(f) The barga land is not under personal cultivation of the bargadar;or

(g) The owner requires the barga land bona fide for personal cultivation.

13 Land Reforms, Obaidul Haq Chowdhury

(2) If the owner, without reasonable cause, fails to bring under personal cultivation any land on termination of a barga contract under sub-section (1)(g) or allows such land to be cultivated by some other bargadar within twenty four months of the date of such termination, the prescribed authority may, on an application made by the evicted bargadar, restore the possession of the land to such bargadar who shall thereupon continue to cultivate the land till the expiry of the period of barga contract or termination of the barga contract under this Ordinance.

BARGA TENURE:-

After ensuring that persons belonging to this group of properly recorded in the relevant official land records, the government realized that there tenure as barga cultivator must not lie at the sweet will of the land owners. It was stipulated that the owner of the land shall not be entitled to terminate cultivation of his land by a bargadar, except in execution of an order of the competent authority on one or more of the following grounds.

1. That the bargader has without any reasonable cause failed to cultivate the land, or has used it for any purpose other than agriculture.

2. That the land is not cultivated by the bargader personally;

3. That the bargader has failed to deposit or tender the full extend of the share of the crops of the land owners.

4. That the person owning the land requires it bonafide for bringing it under personal cultivation.

5. No bargader shall be entitled to cultivate more than 6.00 hectors of land.

DIVISION OF PROCEDURE OF BARGA LAND:-

(1) The produce of any barga land shall be divided in the following manner, namely:-

(a) One-third shall be received by the owner for the land;

(b) One third shall be received by bargadar for the labour;

(c) One-third shall be received by the owner or the bargadar or by both in proportion to the cost of cultivation, other than the cost of labour, borne by them.

(2) The harvested crop of any barga land shall be stored for thrashing and division either at any place belonging to the bargadar or any place belonging to the owner, whichever is nearer to the barga land, or at any other place agreed upon between the parties.

(3) The bargadar shall tender to the owner the share of the produce due to him immediately after harvesting of the crop and when the tendered share is accepted by the owner, each party shall give to the other a receipt in such form as may be prescribed for the quantity of the produce received by him.

(4) If the owner refuses to accept the share of the produce tendered to him by the bargadar or to give a receipt therefore, the bargadar shall give intimation of such fact in writing to the prescribed authority.

(5) The prescribed authority shall, on receipt of such intimation, serve a notice upon the owner, in such form and manner as may be prescribed, asking him to take delivery of the produce within seven days from the date of service of the notice.

(6) If the owner fails to take delivery of the produce within seven days from the date of service of the notice, the prescribed authority shall permit the bargadar to sell the produce to any Government purchasing agency or, in the absence of such agency, in the local market.

(7) If the bargadar sells the produce, he shall deposit the proceeds of such sale with the prescribed authority within seven days from the date of sale.

(8) The prescribed authority shall give to the bargadar a receipt, in such form as may be prescribed, stating therein the amount of money deposited with him and the quantity of produce sold by the bargadar and such receipt shall discharge the bargadar from his obligation to deliver the share of the produce to the owner. Provided that the quantity of the produce due to the owner, the obligation of the bargadar with regard to the delivery of the quantity of the produce not tendered or sold shall continue. (9) Where a deposit is made under sub-section (7), the prescribed authority shall give intimation of such deposit to the owner in such form and manner as may be prescribed.

(10) If the owner does not receive the money in deposit from the prescribed authority within one month from the date of receipt of intimation of such deposit, the prescribed authority may deposit the money in the treasury in revenue deposit to the credit of the owner and give intimation of such deposit to the owner in such form and manner as may be prescribed.

BARGADAR’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: Provided that this provision shall not apply where the owner sells the land to a co-sharer or to his parent, wife, son, daughter or son's son or to any other member of his family.

(2) The bargadar shall, within 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 land, 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 does 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.

(5) 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.

Related Case:

1BCR; 383 & 23CWN; 614-

A Bargadar will never be a tenant:

It was said that a bargadar will never be a tenant and a tenant will never be a bargadar. Because who will be a bargadar he can not be a tenant and a tenant can not be a bargadar.

CEILING OF BARGA LAND:-

It is discussed under section 14 of land reform ordinance 1984. After LAND REFORMS ORDINANCE, 1984:

1. No bargadar shall be entitled to cultivate more than 15 standard bighas of land. Before this ordinance, No bargadar shall be entitled to cultivate more than 6 hectors of land.

EXPLANATION: In computing this ceiling area of any land owned by the ...well as land cultivated by him as a bargadar and held by him under a complete usufructuary mortgage shall be taken in to account.

TO understand the explanation we must know the definition of usufructuary mortgage and here it is –

USUFRUCTUARY MORTGAGE:

Where the mortgagor delivers possession expressly or by implification binds himself to deliver possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgaged – money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest ore in payment of the mortgage – money , the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee .

2. If a bargadar cultivates land in excess of 15 standard bighas the share of the produce due to him as a bargadar in respect of the excess land may be compulsorily procured by the govt. by order made in this behalf by the prescribed authority.

But Before the ordinance,

If a bargadar cultivated more than 6 hectors of land the owner of the land shall be entitled to terminate cultivation of his land by the bargadar.

And After the ordinance,

There came the limitation regarding barga land and the government has been given the power to procure the excess land cultivated by the bargadar.

RESTRICTION OF CULTIVATION:- (1) No person shall cultivate the land of another person except under a barga contract or complete usufructuary mortgage or as a servant or laborer.

(2) If a person cultivates the land of another person in violation of the provisions of this section, the produce of the land may be compulsorily procured by the Government by order made in this behalf by the prescribed authority.

DISPUTES:-

(1) Every dispute between a bargadar and the owner in respect of-

(a) Division or delivery of the produce,

(b) Termination of barga contract,

(c) Place of storing and thrashing of the produce, shall be decided by the prescribed authority.

(2) If in deciding any dispute referred to in sub-section (1), any question arises as to whether a person is a bargadar or not or to whom the share of the produce is deliverable, such question shall be determined by the prescribed authority.

(3) The prescribed authority shall not entertain any dispute if it is not referred to it by an application praying for its decision thereon within three months from the date on which the dispute arose.

(4) The prescribed authority shall, after giving the parties an opportunity of being heard and adducing evidence and making such enquiry as it deems necessary, give its decision within three months from the date of receipt of the application.

APPEALS:-

(1) An appeal shall lie to the prescribed appellate authority against any order, decision or action made or taken by the prescribed authority under any provision of this Ordinance.

(2) An appeal under sub-section (1) shall be filed within thirty days from the date of receipt or knowledge of the order, decision or action appealed against.

(3) The decision of the prescribed appellate authority shall be final.

PROCEDURE:-

It is under section 18

(1) The prescribed authority and the prescribed appellate authority shall, in deciding any matter, dispute or appeal, follow such procedure as may be prescribed.

(2) Any person filing any application to the prescribed authority or any appeal to the prescribed appellate authority shall pay such fees as may be prescribed.

EXECUTION:-

Any decision or order of the prescribed authority or the prescribed appellate authority shall be executed or enforced in such manner as may be prescribed.

So, from this it is clear that the decision shall be passed by the prescribed authority or prescribed appellate authority.

By the term prescribed authority it means an authority appointed by the government, by notification in the official gazette, for all or any of the purpose of this ordinance, except for the purposes of this ordinance, except for the purpose of hearing appeals or an authority specified in the rules for such purpose.

And by the term, prescribed Appellate authority appointed by the Government, by notification in the official Gazette for the purpose of hearing all appeals under this ordinance or an authority specified in the rules of or such purpose.

So, the distinction between these two terms is that the purpose of Appellate authority is to hear the appeal and this ordinance while it is not the duty of prescribed authority to hear appeal.

So, the decision of these two authorities shall be enforced by prescribed manner which means by the rules made under this ordinance

MISCELLANEOUS:-

Bar of jurisdiction

No order, decision, action or proceedings made or taken by any authority under this Ordinance shall be called in question in any Court and no Court shall entertain any suit or proceeding in respect of any such order, decision, action or proceedings.

Penalty

Any person who violates any provision of this Ordinance or the rules or any order of any authority made under this Ordinance or the rules shall be punishable with fine which may extend to Tk. Two Thousand.

Power to make rules

The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.

Comments Regarding the Success of the Land Reforms Ordinance, 1984:-

Firstly, this ordinance recognizes the bargadars rights. Before the implementation of Land reforms ordinance 1984, there was no particular law to safeguard the rights of bargadar. For this reason, they were deprived of their legal rights. The Bargadars get dignity in society by this ordinance. Such as- at the time of selling barga land, they get priority. Any contract of the bargadar will be terminated after 5 years from date of the date contract made.

Secondly, Annul the Benami Transaction

This ordinance annulled the benami transaction which became more successful. Because of this benami transaction, one group in the society became helpless. To get rid of this situation, the implementation of this ordinance was a revolutionary step.

Thirdly, before the implementation of this ordinance, there were no rules or regulation to safe the rights of the helpless people in our society. As a result, rich people were getting richer and poor people getting poorer. This ordinance put a restriction over the people to become the owner of agricultural land more than 60 bighas. So, it can be said that this ordinance equalized all people in society.

To conclude it can be said that the aforesaid facts of this ordinance successfully met the demand of the people though it had many limitations.