Case No: W.P. No. 5140/2013

Facts:
The Vested Property Act 1974 was a highly controversial law that effectively allowed the Government to appropriate property from individuals it deemed to be an enemy of the state. The abuse of laws by the government and its agencies to deprive religious minorities of their land continued post independence. The Vested Property Act 1974 had empowered the Government (whether of Pakistan or Bangladesh) only to become the custodian of and to preserve enemy property in contemplation of arrangements to be made in the conclusion of peace with India. But the Vested And Non-Resident Property (Administration)(Repeal) Ordinance, 1976 (Ordinance XCII of 1976) had sanctioned the Government not only to administer and manage vested properties, but also to dispose of or transfer the same on long term basis.  The 1976 Ordinance for the first time purported to make the Government the owner of vested properties instead of its mere custodian or protector. Thus, the Government deprived individuals, mainly from the Hindu community but also significantly from among the plains Adibashis, many from the Christian community, of their ancestral property, in a gross and blatant infringement of their constitutional right to private ownership. Finally, in 2001 the then government repeals the Act, and replaced it with the Vested Properties Return Act, 2001.  In an effort to restore the confiscated property to its rightful owners, Campaign groups and affected communities, however, noted significant gaps and inconsistencies in the law, which appeared to contradict the basic spirit of the Proclamation of Independence of Bangladesh and certain constitutional rights. To ensure equal protection of law among citizens, the Association for Land Reform and Development (ALRD), BLAST and the other core organisations that had been involved in campaigning for the new law filed a Writ Petition being W.P No. 5140/2013 for a declaration that some provisions of the said Act are unconstitutional.

Arguments:
The petitioners argued that several provisions of the Vested Properties Return Act 2011 (as amended in 2011 and 2012) are ultra vires [beyond the terms] of the Constitution and in violation of fundamental rights as guaranteed under   Article 31, read with Article 7(1) of the Constitution. They further argued that the impugned provisions of the said Act are also in conflict with earlier judgments of our highest courts.
The petitioners mainly argued that according to Section 26 of the Act, after the expiry of 300 days of the publication of the gazette notifications containing the final “A” and “B’’ Schedules respectively to the Act, the Government will be the owner of the property if no claim is made for the property after it has been entered into the list of returnable property, or, if a claim is dismissed, then the Government will become the owner of the property who can sale or dispose with the property in any way.  The petitioners submitted that this will cause irreparable loss to the minority people as they may not be able to claim the property within the stipulated time due to various reasons, for example, there is a concern that vested interests, including government officials, may avail of this opportunity to appropriate “vested properties”; that the consequences of this provision are gross denial of freedom and liberty, economic, and political deprivation of the Hindu minorities in Bangladesh, as being violative of Article 27 of the Constitution, which provides that all citizens are equal before law and are entitled to equal protection of law and also Article 28 of the Constitution, which provides that the state shall not discriminate against any citizens on the grounds only of religion, race, caste, sex or place of birth.

Order:
On 05.06.2013, a Division Bench of the High Court, comprising of Mr. Justice Quazi Reza-Ul-Hoque and Mr. Justice A.B.M. Altaf Hossain issued a Rule Nisi upon the respondents to show cause as to why the declaration of the Schedule of Property contained in the “Ka” Gazette under the category of 2 (Nioh) of the Vested Property Return Act 2001 (as amended up to date) so far as it relates to the publication and enlistment of the alleged vested properties mentioned the date and V.P. Case No. and EP Case No. after 23.03.1974 in violation of the judgment and order of the highest judiciary should not be declared to have been made without lawful authority and be of no legal effect. There was no interim order issued.

Current Position:
Armed with the direction of the aforesaid Writ Petition, organizations such as BLAST, the Hindu Bouddho Christho Oikko Porishod [Hindu Buddhist Christian Unity Council], ASK and a range of powerful and eloquent voices from among professionals, academics and civil society organizations campaigned to amend the provision of the Vested Properties Return Act 2001. Against this backdrop, the Government was compelled to pass the Vested Properties Return Act 2001 (as amended in 2013) cancelling the Schedule ‘B”.  According to the new amendment, all cases challenging the ownership of the property on the schedule-B will no longer exist. According the new law, all previous judgments, and decrees of the cases relating to the property of the schedule-B will be cancelled.