Law on pre-emption
Introduction:
Pre-emption is a legal right of buying a thing before all others. The right of pre-emption is one
of the cardinal features of the Hanafi School of Muslim law. This is a right which the adjacent
owner of an immovable property process to acquire by purchase another immovable property
transferred to another person .
There classes of persons can claim pre-emption;
(a) Co-sharers in the property;
(b) Participators in easements’ and
(c) Owner of adjacent immovable property.
It has been held some High court s and Supreme courts of the sub-continent that the
board principle of pre-emption is to keep out the strangers and to maintain
exclusiveness of the estate. Keeping this principle of Muslim Law in view ,pre-emption is
now regulated by statutes S.24 of the Non-Agricultural Tenancy Act 1949 and S.96 of the
State Acquisition and Tenancy Act 1950.These statutes simply gave recognition to the
principle of Muslim Law. In Muslim law it is known as Shufa.
Chapter one
PROVISIONS AS TO TRANSFER OF NON-AGRICULTURAL LAND
1.1:Manner of transfer of non-agricultural land and notices to landlords
Under section 23 the transfer of non-agricultural land is compulsorily irrespective of the value of such land. Under sub-section (1) Every transfer of non-agricultural land held by a non-agricultural tenant or of any portion or share thereof shall, except in the case of a bequest or a sale in execution of a decree or of a certificate signed under the Public Demands Recovery Act, 1913, be made by registered instrument, and a Registering officer shall not accept for registration any such instrument unless the sale price or, where there is no sale 1price, value of the land or portion or share thereof transferred is stated therein, and unless it is accompanied by-
(a) a notice giving the particulars of the transfer in the prescribed form, together with the process fee prescribed for the service thereof on the landlord who is not a party to the transfer, 2and
(b) such notices and process fees as may be required by sub-section (4).
(a) a notice giving the particulars of the transfer in the prescribed form, together with the process fee prescribed for the service thereof on the landlord who is not a party to the transfer, 2and
(b) such notices and process fees as may be required by sub-section (4).
(2) In the case of a bequest of such land or portion or share thereof, no Court shall grant probate or letters of administration until the applicant files a notice similar to, and deposits a process fee of the same amount, as, that referred to in clause (a) of sub-section (1).
(3) A Court or Revenue-officer shall not confirm the sale of such land or portion or share thereof put to sale in execution of a decree or a certificate signed under the Public Demands Recovery Act, 1913, and no Court shall make a decree or order absolute for foreclosure of a mortgage of such land or portion or share thereof until the purchaser or the mortgagee, as the case may be, files a notice similar to and deposits a process fee of the same amount as that referred to in sub-section (1).
(4) If the transfer of a portion or share of such land be one to which the provisions of section 24 apply there shall be filed notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service thereof on all co-sharer tenants of such land who are not parties to the transfer.
(5) The Court, Revenue-officer or Registering Officer, as the case may be, shall serve, in the prescribed manner, the notices referred to in the preceding sub-section:
Provided that the service of such a notice shall not operate as an admission of the amount of rent or the area of such land by the landlord or by any co-sharer tenant of such land on whom such notice is served or be deemed to constitute an express consent of the landlord or such co-sharer tenant to the division of the tenancy or to the distribution of the rent payable in respect thereof:
(4) If the transfer of a portion or share of such land be one to which the provisions of section 24 apply there shall be filed notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service thereof on all co-sharer tenants of such land who are not parties to the transfer.
(5) The Court, Revenue-officer or Registering Officer, as the case may be, shall serve, in the prescribed manner, the notices referred to in the preceding sub-section:
Provided that the service of such a notice shall not operate as an admission of the amount of rent or the area of such land by the landlord or by any co-sharer tenant of such land on whom such notice is served or be deemed to constitute an express consent of the landlord or such co-sharer tenant to the division of the tenancy or to the distribution of the rent payable in respect thereof:
-------------------------------------------------------------------------------------------------------------------------
1.Non-agriculturalbtenancyAct 1949,S.26(2)(a)
2.nakul v. kalipada(1938)42 CWN 630
Provided further that, if a transfer is subsequently set aside or modified by a competent authority in any suit, appeal or other proceedings to which the landlord was not a party, the authority before whom the appropriate suit or proceedings was first initiated shall transmit a copy of such order to the landlord.
1.2Power of the co-sharer to purchase
Under section 24 the transfer of non-agricultural land. sub-section (1) If a portion or share of the non-agricultural land held by a non-agricultural tenant is transferred, one or more co-sharer tenants of such land may, within four months of the service of notice issued under section 23 and, in case no notice had been issued or served, then within four months from the date of knowledge of such transfer, apply to the court for such portion or share to be transferred 3 to himself or to themselves, as the case may be.
(2) The application under sub-section (1) shall be dismissed unless the applicant at the time of making it deposits in Court the amount of the consideration money or the value of the portion or share of the property transferred as stated in the notice served on the applicant under section 23 together with compensation at the rate of five per centum of such amount.
(3) If such deposit is made, the Court shall give notice to the transferee to appear within such period as it may fix and to state what other sums he has paid in respect of rent for the period after the date of transfer or in annulling encumbrances on the property and also what other amounts, if any, have been spent by him, between the date of the transfer and the date of service of the notice of the application, in erecting any building or structure or in making any other improvement in the portion or share of the property transferred. The Court shall then direct the applicant, including any person whose application under sub-section (4) is granted, to deposit within such period as the Court thinks reasonable such amount as the transferee has paid or spent on these accounts together with interest at the rate of six and a quarter per centum per annum with effect from the date on which the transferee made such payments or spent such amounts:
Provided that if the correctness of any amount claimed to have been paid or spent by the transferee on any
(2) The application under sub-section (1) shall be dismissed unless the applicant at the time of making it deposits in Court the amount of the consideration money or the value of the portion or share of the property transferred as stated in the notice served on the applicant under section 23 together with compensation at the rate of five per centum of such amount.
(3) If such deposit is made, the Court shall give notice to the transferee to appear within such period as it may fix and to state what other sums he has paid in respect of rent for the period after the date of transfer or in annulling encumbrances on the property and also what other amounts, if any, have been spent by him, between the date of the transfer and the date of service of the notice of the application, in erecting any building or structure or in making any other improvement in the portion or share of the property transferred. The Court shall then direct the applicant, including any person whose application under sub-section (4) is granted, to deposit within such period as the Court thinks reasonable such amount as the transferee has paid or spent on these accounts together with interest at the rate of six and a quarter per centum per annum with effect from the date on which the transferee made such payments or spent such amounts:
Provided that if the correctness of any amount claimed to have been paid or spent by the transferee on any
such account is disputed by any applicant the Court shall enquire into such dispute and, after giving the
transferee an opportunity of being heard, determine the amount actually paid or spent by the transferee on any such account and shall then direct the applicant to deposit the amount so determined with interest at the rate of six and quarter per centum per annum as aforesaid within such period as the Court thinks reasonable4.
(4) (a) When an application has been made by one or more co-sharer tenants under sub-section (1) any of the remaining co-sharer tenants including the transferee, if one of them, may within the period of four months referred to in the said sub-section or within one month of the service of notice of the application, whichever is later, apply to join in the said application, and any co-sharer tenant who has not applied under sub-section (1) or has not applied to join under this sub-section, shall not have any further right to purchase under this section.
(4) (a) When an application has been made by one or more co-sharer tenants under sub-section (1) any of the remaining co-sharer tenants including the transferee, if one of them, may within the period of four months referred to in the said sub-section or within one month of the service of notice of the application, whichever is later, apply to join in the said application, and any co-sharer tenant who has not applied under sub-section (1) or has not applied to join under this sub-section, shall not have any further right to purchase under this section.
-------------------------------------------------------------------------------------------------------------------------
3.Non-agricultural Tenancy Act,1949,S.24(1);Abdul Moleque Lashkor v. Tryabunnessa(1964) 18 DLR 6184.Hazzat ali v. Imamuddin,(1960)13DLR 819
(b) Such application to join as a co-applicant shall be dismissed unless within such period as the Court may fix, the applicant deposits in Court for payment to the applicant under sub-section (1), such sum, as the Court shall determine as the share to be paid by him for the purposes of sub-section (2).
(c) If such deposit is made, the Court shall grant the application to join and thereafter such applicant shall be deemed5 to be an applicant under sub-section (1).
(5) If the deposits required under sub-section (2) or clause (b) of sub-section (4), as the case may be, and under sub-section (3) are made, the Court shall make an order allowing the application and directing that the deposits made under sub-sections (2) and (3) shall be paid to the transferee or to such persons as the Court thinks fit.
(6) Notwithstanding anything contained in any other law for the time being in force the Court shall, if the applicant under sub-section (1) or any person whose application under sub-section (4) is granted disputes the correctness of the amount of the consideration money as stated in the notice issued under section 23, inquire into such dispute before making an order under sub-section (5) and after giving the transferee an opportunity of being heard determine for the purposes of this section the amount of the consideration money which the transferee has actually paid for the transfer of the portion or share of the property and the amount so determined shall be deemed to be the consideration money referred to in sub-section (2) and where the amount of the consideration money has been so determined the deposit made under that sub-section shall for the purposes of sub-section (5) be the amount so determined together with the compensation at the rate of five per centum of such amount6.
(7) In making an order under sub-section (5) in favor of more than one co-sharer tenant, the Court may apportion the property comprised in the portion or share transferred among the applicants in such manner as it deems equitable after taking existing possession into consideration; the Court shall so apportion the said property or portion thereof on the request of any applicant and, in this case, may require the applicant who makes such request to deposit, within such period as the Court may fix, such further sums as the Court considers necessary for equitable distribution among the remaining applicants:
Provided that no apportionment order under this sub-section shall operate as a division of the tenancy.
-------------------------------------------------------------------------------------------------------------------------
5.Lakhi khan v.Sunil Kumer (1964)17 DLR 327;
6.Abdur Rahoman v.BaserAli,(1969) 21DLR 599.
(8) From the date of making of the order under sub-section (5)-
(i) the right, title and interest in the share or portion of the non-agricultural land accruing to the transferee from the transfer shall, subject to any order passed under sub-section (7), vest free from all encumbrances, which have been created after the date of transfer, in the co-sharer tenant whose application to purchase has been allowed under sub-section (5),
(ii) the liability of the transferee for the rent due from him on account of the transfer shall cease7, and
(iii) the Court, on further application of such applicant, may place him in possession of the property vested in him.
(9) An appeal from any order of a Court under this section shall lie to the Civil Appellate Court having jurisdiction to entertain such appeals.
(10) Nothing in this section shall take away the right of pre-emption conferred on any person by Muhammadan Law.
(11) Nothing in this section shall apply to-
(a) a transfer to a co-sharer in the tenancy whose existing 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-ewaz for any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or
(d) a wakf in accordance with the provisions of the Muhammadan Law, or
(e) a debottor or any other dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual.
Explanation.- A relation by consanguinity shall for the purposes of this sub-section, include a son adopted under the Hindu Law.
(i) the right, title and interest in the share or portion of the non-agricultural land accruing to the transferee from the transfer shall, subject to any order passed under sub-section (7), vest free from all encumbrances, which have been created after the date of transfer, in the co-sharer tenant whose application to purchase has been allowed under sub-section (5),
(ii) the liability of the transferee for the rent due from him on account of the transfer shall cease7, and
(iii) the Court, on further application of such applicant, may place him in possession of the property vested in him.
(9) An appeal from any order of a Court under this section shall lie to the Civil Appellate Court having jurisdiction to entertain such appeals.
(10) Nothing in this section shall take away the right of pre-emption conferred on any person by Muhammadan Law.
(11) Nothing in this section shall apply to-
(a) a transfer to a co-sharer in the tenancy whose existing 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-ewaz for any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or
(d) a wakf in accordance with the provisions of the Muhammadan Law, or
(e) a debottor or any other dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual.
Explanation.- A relation by consanguinity shall for the purposes of this sub-section, include a son adopted under the Hindu Law.
--------------------------------------------------------------------------------------------------------------------
7.Begum Syedunnessa v.Shahna Begum,PLD 1960 Dhaka 626
Chapter two
PROVISIONS AS TO TRANSFER OF AGRICULTURAL LAND
2.1;Manner of transfer
Under section 89 the State Acquisition And Tenancy Act. 1950deals with the manner of transfer of a raiyat’s holding. Under sub- section (1) Every such transfer shall be made by registered instrument, except in the case of a bequest or a sale in execution of a decree or of a certificate signed under the Bengal Public Demands Recovery Act, 1913; and a Registering officer shall not accept for registration any such instrument unless the sale price, or where there is no sale price, the value of the holding or portion or share thereof transferred is stated therein and unless it is accompanied by-
(a) a notice giving the particulars of the transfer in the prescribed form together with the process fee prescribed for the transmission thereof to the Revenue-officer1; and
(b) such notices and process fees as may be required by sub-section (4).
(2) In the case of a bequest of such a holding or portion or share thereof, no Court shall grant probate or letters of administration until the applicant files a notice similar to, and deposits a process fee of the same amount as, that referred to in clause (a) of sub-section (1).
(a) a notice giving the particulars of the transfer in the prescribed form together with the process fee prescribed for the transmission thereof to the Revenue-officer1; and
(b) such notices and process fees as may be required by sub-section (4).
(2) In the case of a bequest of such a holding or portion or share thereof, no Court shall grant probate or letters of administration until the applicant files a notice similar to, and deposits a process fee of the same amount as, that referred to in clause (a) of sub-section (1).
(3) No Court or Revenue Authority shall confirm the sale of such a holding or portion or share thereof put to sale in execution of a decree or a certificate signed under the Bengal Public Demands Recovery Act, 1913 and no Court shall make a decree or order absolute for foreclosure of a mortgage of such a holding or portion or share thereof, until the purchaser or the mortgagee, as the case may be, files a notice or notices similar to, and deposits process fees of the same amount as, that referred to in sub-section (1).
(4) If the transfer of a portion or share of such a holding be one to which the provisions of section 96 apply, there shall be filed notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service thereof on all the co-sharer tenants of the said holding who are not parties to the transfer and for affixing a copy thereof in the office of the Registering officer or the Court house or the Office of the Revenue Authority, as the case may be.
(5) The Court, Revenue Authority or Registering officer, as the case may be, shall transmit the notice referred to in clause (a) of sub-section (1) to the Revenue-officer and shall serve the notices on the co-sharer tenants referred to in sub-section (4) by registered post and shall cause a copy of the notice to be affixed in the Court house or in the Office of the Revenue Authority or of the Registering Officer, as the case may be:
Provided that the service of such a notice shall not operate as an admission of the amount of rent or the area of such holding by the Government or by any co-sharer tenant of such holding on whom such notice is served or be deemed to constitute an express consent of the Government or such co-sharer tenant to the division of the holding or to the distribution of the rent payable in respect thereof:
(4) If the transfer of a portion or share of such a holding be one to which the provisions of section 96 apply, there shall be filed notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service thereof on all the co-sharer tenants of the said holding who are not parties to the transfer and for affixing a copy thereof in the office of the Registering officer or the Court house or the Office of the Revenue Authority, as the case may be.
(5) The Court, Revenue Authority or Registering officer, as the case may be, shall transmit the notice referred to in clause (a) of sub-section (1) to the Revenue-officer and shall serve the notices on the co-sharer tenants referred to in sub-section (4) by registered post and shall cause a copy of the notice to be affixed in the Court house or in the Office of the Revenue Authority or of the Registering Officer, as the case may be:
Provided that the service of such a notice shall not operate as an admission of the amount of rent or the area of such holding by the Government or by any co-sharer tenant of such holding on whom such notice is served or be deemed to constitute an express consent of the Government or such co-sharer tenant to the division of the holding or to the distribution of the rent payable in respect thereof:
------------------------------------------------------------------------------------------------------------------------
1.Nakul v. Kalipada (1938) 42 C.W.N. 630.
Provided further that if a transfer is subsequently set aside or modified by a competent authority in any suit, appeal or other proceedings to which the Revenue-officer was not a party,
the authority before whom the appropriate suit or proceedings was first initiated shall transmit a copy of such order to the Revenue-officer.
(6) In this section-
(a) “transferee”, “purchaser” and “mortgagee” include their successors-in-interest, and
(b) “transfer” dose not include partition or, until a decree or order absolute for foreclosure is made, simple or usufructuary mortgage or mortgage by conditional sale.
2.2:Limitation of transfer of holding
Under section 90 the State Acquisition And Tenancy Act. 1950 puts a limitation on transfer of raiyat’s holding. Under sub- section. (1) Notwithstanding anything contained in any other law for the time being in force, no person shall, after the commencement of this Part, be entitled to purchase or otherwise acquire, except in accordance with the provisions of this Part, any quantity of land which added to the total quantity of land already held by him for himself and his family exceeds three hundred and seventy-five standard bighas2.
(2) Notwithstanding anything contained in any other law for the time being in force, the holding of a raiyat or a share or portion thereof shall not be transferred whether by sale or gift or bequest or otherwise or by sale in execution of a decree or of a certificate signed under the Bengal Public Demands Recovery Act, 1913, except to a bona fide cultivator, and any other tenancy or a share or portion thereof shall not be transferred by any such means except to a person, who holds for the time being lands for himself and his family of a total area of less than three hundred and seventy-five standard bighas; and no such transfer shall be valid if, on such transfer, the area of the land so transferred added to the area of land held by the transferee at the time of such transfer exceeds three hundred and seventy five standard bighas:
(2) Notwithstanding anything contained in any other law for the time being in force, the holding of a raiyat or a share or portion thereof shall not be transferred whether by sale or gift or bequest or otherwise or by sale in execution of a decree or of a certificate signed under the Bengal Public Demands Recovery Act, 1913, except to a bona fide cultivator, and any other tenancy or a share or portion thereof shall not be transferred by any such means except to a person, who holds for the time being lands for himself and his family of a total area of less than three hundred and seventy-five standard bighas; and no such transfer shall be valid if, on such transfer, the area of the land so transferred added to the area of land held by the transferee at the time of such transfer exceeds three hundred and seventy five standard bighas:
Provided that nothing in sub-sections (1) and (2) shall render a transfer to any person or co-operative society invalid where the total area of the land held by such person or co-operative society on such transfer exceeds three hundred and seventy-five standard bighas, if-
------------------------------------------------------------------------------------------------------------------------
2.sec.91
(i) such person has been certified by the prescribed Revenue Authority to be a person who has undertaken large scale farming by the use of power driven mechanical appliances, and
(ii) in the case of a co-operative society, the prescribed Revenue Authority has certified that such society has been formed by a group of cultivating land owners for better farming, irrespective of whether it uses power driven mechanical appliances or not, and that the ownership of the land has been transferred unconditionally to the society by the individual members,
and, in either case, such transfer is limited to the extent specified in the certificate granted by such Revenue Authority:
Provided further that nothing in sub-section (1) or (2) shall apply to the transfer of lands to a person who is bona fide carrying on the cultivation of tea or to a co-operative society or company which is bona fide carrying on the cultivation of sugarcane for the purpose of manufacture of sugar by that society or company or to any other company the object of which is to develop industries by the manufacture of commodities.
Provided further that nothing in sub-section (1) or (2) shall apply to the transfer of lands to a person who is bona fide carrying on the cultivation of tea or to a co-operative society or company which is bona fide carrying on the cultivation of sugarcane for the purpose of manufacture of sugar by that society or company or to any other company the object of which is to develop industries by the manufacture of commodities.
(3) Notwithstanding anything contained in sub-section (1) or (2), a person who is not a bona fide cultivator, may, with the previous written permission of the prescribed Revenue Authority, purchase or otherwise acquire such quantity of land as may be specified in such permission, for occupation and use for commercial or industrial purposes or for charitable or religious purposes.
(4) Notwithstanding anything contained in sub-section (1) or (2), a person who is not a bona fide cultivator, may, with the previous written permission of the prescribed Revenue Authority, purchase or otherwise acquire, such quantity of land as may be specified in the permission, for the purpose of constructing a dwelling house for himself and his family or for the purpose of cultivating such land by himself or by the members of his family or by, or with the aid of, servants or laborers or with the aid of partners or bargadars; and such person shall hold the land so acquired as a tenant under the Government:
Provided that no such person shall be allowed to hold any area of land in excess of the limit imposed in sub-section (1):
Provided further that, in case of land acquired by such person for the purpose of constructing a dwelling house for himself or his family, if no dwelling house is constructed on the land within five years from the date of such acquisition, the right of such person in such land shall be extinguished and the land shall vest on the Government.
---------------------------------------------------------------------------------------------------------------------------
(4) Notwithstanding anything contained in sub-section (1) or (2), a person who is not a bona fide cultivator, may, with the previous written permission of the prescribed Revenue Authority, purchase or otherwise acquire, such quantity of land as may be specified in the permission, for the purpose of constructing a dwelling house for himself and his family or for the purpose of cultivating such land by himself or by the members of his family or by, or with the aid of, servants or laborers or with the aid of partners or bargadars; and such person shall hold the land so acquired as a tenant under the Government:
Provided that no such person shall be allowed to hold any area of land in excess of the limit imposed in sub-section (1):
Provided further that, in case of land acquired by such person for the purpose of constructing a dwelling house for himself or his family, if no dwelling house is constructed on the land within five years from the date of such acquisition, the right of such person in such land shall be extinguished and the land shall vest on the Government.
---------------------------------------------------------------------------------------------------------------------------
(5) Any transfer of a holding or tenancy or of a share or portion thereof made in contravention of the provisions of this section shall be void, and the lands comprised in the holding or tenancy or share or portion thereof so transferred shall vest absolutely in the Government free from all encumbrances.
2.3:Right of pre-emption
Under section 96 the State Acquisition And Tenancy Act. 1950 deals with the right of pre-emption of a co-sharer tenant and tenant holding3. Under sub- section (1) If a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer tenant in the holding, one or more co-sharer tenants of the holding may, within two months of the service of the notice given under section 89, or, if no notice has been served under section 89, within two months of the date of the knowledge of the sale, apply to the Court for the said portion or share to be sold to himself or themselves:
Provided that no application under this section shall lie unless the applicant is-
(a) a co-sharer tenant in the holding by inheritance; and
(b) a person to whom sale of the holding or the portion or share thereof, as the case may be, can be made 4under section 90:
Provided further that no application under this section shall lie after expiry of three years from the date of registration of the sale deed.
(2) In an application under sub-section (1), all other co-sharer tenants by inheritance of the holding and the purchaser shall be made parties.
(3) An application under sub-section (1) shall be dismissed unless the applicant or applicants, at the time of making it, deposit in the Court-
(a) the amount of the consideration money of the sold holding or portion or share of the holding as stated in the notice under section 89 or in the deed of sale, as the case may be;
(b) compensation at the rate of twenty five per centum of the amount referred to in clause (a); and
Provided that no application under this section shall lie unless the applicant is-
(a) a co-sharer tenant in the holding by inheritance; and
(b) a person to whom sale of the holding or the portion or share thereof, as the case may be, can be made 4under section 90:
Provided further that no application under this section shall lie after expiry of three years from the date of registration of the sale deed.
(2) In an application under sub-section (1), all other co-sharer tenants by inheritance of the holding and the purchaser shall be made parties.
(3) An application under sub-section (1) shall be dismissed unless the applicant or applicants, at the time of making it, deposit in the Court-
(a) the amount of the consideration money of the sold holding or portion or share of the holding as stated in the notice under section 89 or in the deed of sale, as the case may be;
(b) compensation at the rate of twenty five per centum of the amount referred to in clause (a); and
------------------------------------------------------------------------------------------------------------------------
3.Huzzat Ali v. imamuddin (1960)13 D.L.R..819
4.Satya Ranjan v. Surendra (1961)13 D.L.R.338
(c) an amount calculated at the rate of eight per centum simple annual interest upon the amount referred to in clause (a) for the period from the date of the execution of the deed of sale to the date of filing of the application for preemption.
(4) On receipt of such application accompanied by such deposits, the Court shall give notice to the purchaser and to the other persons made parties thereto under sub-section (2) to appear within such period as it may fix and shall require the purchaser to state what other sums he has paid in respect of rent since the date of sale and what expenses he has incurred in annulling encumbrances on, or for making any improvement in respect of the holding, portion or share sold5.
(5) The Court shall, after giving all the parties an opportunity of being heard after holding an enquiry as to rent paid and the expenses incurred by the purchaser as referred to in sub-section (4), direct the applicant or applicants to deposit a further sum, if necessary, within such period as the Court thinks reasonable.
(6) When an application has been made under sub-section (1), any of the remaining co-sharer tenants may, within the period referred to in sub-section (1) or within two months of the date of the service of the notice of the application under sub-section (4), whichever be earlier, apply to join in the said application; any co-sharer tenant who has not applied either under sub-section (1) or under this sub-section, shall not have any further right to purchase under this section.
(7) On the expiry of the period within which an application may be made under sub-section (6), the Court shall determine, in accordance with the provisions of this section, which of the applications filed under sub-section (6) shall be allowed.
(8) If the Court finds that an order allowing the applications made under sub-section (7) is to be made in favor of more than one applicant, the Court shall determine the amount to be paid by each of such applicants and, after apportioning the amount, shall order the applicant or applicants who have joined in the original application under sub-section (6) to deposit in the Court the amounts payable by him or them within such period as it thinks reasonable; and if the deposit is not made by any such applicant within such period, his application shall be dismissed.
(9) On the expiry of the period within which a deposit, if any, is to be made under sub-section (8), the Court shall pass orders-
(a) allowing the application or applications made by the applicant or applicants who are entitled to purchase under, and have complied with the provisions of, this section;
-----------------------------------------------------------------------------------------------------------
5.Syed Abdul Karim v. Harendra (1961) 14D.L.R. 847
(b) apportioning the holding or the portion or share of the holding among them in such manner as it deems equitable when such orders are passed in favor of more than one applicant under sub-section (8);
(c) refunding money to any one if entitled to such refund6 of any money from the amount deposited by the applicant or applicants under sub-sections (3) and (5);
(d) directing that the purchaser be paid out of the deposits made under sub-sections (3) and (5);
(e) directing the purchaser to execute and register deed or deeds of sale within sixty days in favor of the person or persons whose application or applications have been allowed; and no tax, duty or fee shall be payable for such registration.
(e) directing the purchaser to execute and register deed or deeds of sale within sixty days in favor of the person or persons whose application or applications have been allowed; and no tax, duty or fee shall be payable for such registration.
(10) If the purchaser fails to execute and register deed or deeds of sale in pursuance of the directions under clause (e) of sub-section (9), within sixty days in favor of the person or persons whose application or applications have been allowed, the court shall execute and present deed or deeds of sale for registration within sixty days thereafter in favor of such person or persons whose application or applications have been allowed.
(11) From the date of the registration of sale deed or deeds under clause (e) of sub-section (9) or under sub-section (10), the right, title and interest in the holding or portion or share thereof accruing to the purchaser from the sale shall, subject to any orders passed under sub-section (9), be deemed to have vested, free from all encumbrances which have been created after the date of sale, in the co-sharer tenant or tenants whose application or applications to purchase have been allowed under sub-section (9).
(12) The Court on further application 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.
(13) No apportionment ordered under clause (b) of sub-section (9) shall operate as division of the holding.
(14) An application under this section shall be made to the Court which would have jurisdiction to entertain a suit for the possession of the land in connection with which the application is brought.
(11) From the date of the registration of sale deed or deeds under clause (e) of sub-section (9) or under sub-section (10), the right, title and interest in the holding or portion or share thereof accruing to the purchaser from the sale shall, subject to any orders passed under sub-section (9), be deemed to have vested, free from all encumbrances which have been created after the date of sale, in the co-sharer tenant or tenants whose application or applications to purchase have been allowed under sub-section (9).
(12) The Court on further application 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.
(13) No apportionment ordered under clause (b) of sub-section (9) shall operate as division of the holding.
(14) An application under this section shall be made to the Court which would have jurisdiction to entertain a suit for the possession of the land in connection with which the application is brought.
----------------------------------------------------------------------------------------------------------------------
6.Satyendra v.Fulson(1932) 36 C.W.N.486=136 I.C.403.
(15) An Appeal shall lie to the ordinary Civil Appellate Court from any order of the Court under this section.
(16) Nothing in this section shall be deemed to apply to homestead land.
(17) Nothing in this section shall take away the right of pre-emption conferred on any person by the Mohammadan Law.
(18) Nothing in this section shall apply to any transfer of any portion or share of a holding of a raiyat or any application under section 96 of this Act, made prior to coming into force of the State Acquisition and Tenancy (Amendment) Act, 2006.]
(18) Nothing in this section shall apply to any transfer of any portion or share of a holding of a raiyat or any application under section 96 of this Act, made prior to coming into force of the State Acquisition and Tenancy (Amendment) Act, 2006.]
2.4:Case reference .
Non-agriculture land and pre-emption
Pre-emption in respect of non- agriculture land is only possible under S.24 of the non- agriculture Tenancy Act. Provision of section 96 of the E.B.S.A.T. Act is not applicable to such case.
Forman Ail Howlader Vs. Helaluddin Pashari (1968)20 DLR 1197.
Contiguous owner cannot claim right of pre-emption
Section 96 of the Act is confined to agriculture land and therefore a right of pre-emption under this section cannot be claimed in respect of a homestead land within a Municipality.
Mst.Lutun Nahar Vs.Steeda Hashmat Are Begum (1969) 21 DLR 562.
S.96.
Pre-emption claim fails, if the person seeking to pre-empt is in loco parentis with the pre-emptee. In a case of acquiescence principle of estoppels is applicable.
Moulana Abdul Karim Vs. Nurjahan Begum 38 DLR (1986) 361.
Chapter three
Pre-emption under Muslim law
“Where a person has the right to have any property transferred to himself on his paying the consideration for which the owner of the said property has agreed to sell it to another, such aright is called the “right of pre-emption” ;the person having or claiming to have the said right is called the “pre-emption” ,and the said property is called the “subject of pre-emption”.
The right of shufaa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person.
3.1:Pre-emption among Hindus
The right of pre-emption is recognized by custom among Hindus who are either natives of, or are domiciled in 1Behar 2Sylhet 3 and certain parts of Gujarat,such as Surat, Broach and Godhra4,and it is governed by the rules of the Mahomedan law of pre-emption except in so far as such rules are modified by such custom5.
------------------------------------------------------------------------------------------------------------------------
1.Parashth Nath v.Dhanai(1905)
2.Fakir Rawot v. Emambaksh(1963)
3. Geerischandra Bhattacharaya v. Rabindranath Das (1934)61Cal.
4.Gordhandas v. Prankar(1869)
5.Chakauri v.Sindari (1906)
Where the existence of any such custom is generally known and judicially recognized, it is not necessary to assert or prove it6.
3.2:Pre-emption by contract
(1)Rights of pre-emption may be created by contract between the sharers in a village7.
(2)A Mahomedan Vendor may agree with a Hindu purchaser that the Mahomedan law on pre-emption applying between the vendor and his co-sharer also Mahomedan ,should be applicable to the purchase . Where such a contract is entitled into, and the vendor informs his co-sharer about it, and the co-sharer makes the “demands” as required by law , he is entitled to pre-emption against the purchaser , though he purchaser may be a Hindus8.
3.3:Who may clam pre-emption
The following three classes of persons and no others , are entitled to clamper-emption , namely:-
(1)a co-sharer in the property9 [ shafi-i-sharik];
(2)a participator in immunities and appendages,such as aright of way or right of discharge water10 [shafi-i-khalit]
(3)owners of adjoining immovable property11 [shafi-i-jar], but not their tenants 12, nor persons inpossession of such property without any unlawful title13.
The first class excludes the second , and the second excludes the third. But when there are two or more pre-emtors belongto the same class , they are entitled to equal shares of the property in respect of which the right is clamed.
------------------------------------------------------------------------------------------------------------------
6Jadu lal v Janki Koer (1908)34 Cal.575
7.Parsasahth Nath v.Dhanai(1905) 32 Cal. 988
8.Hamed miya v.Benjamin(1929) 53 Bom.
9.Digmbar Singh v.Ahmed(1915) 37 all.
10.Sita ram v. Sayad sirajul(1917) 41 Bom.
11Karim v. Priya lal (19050) 28 All.
12.Aziz Ahmed v.Nazir Ahmad C (1928) 50 All
13.Gooman Shing v. Tripool (1867)8W.R 437.
3.4:Sale along gives rise to pre-emption
The right of pre-emption arises only out of a valid(e) , complete(f), and bona fide (g)sale ,it does not arise gift(hiba) ,sadaqah, wakf, inheritance, be-quest(h) or a lease even though in perpetuity(i).Nor does it arise out of a mortgage even though it may be by way of conditional sale(j) ; but the right will accrue, if the mortgage is foreclosed (k).
An exchange of properties between two persons subject to an option to either of them to cancel the exchange and take back his a conditional sale (J);but the right will accrue, if the mortgage is foreclosed(k).
3.5:Right of Shuffa/Pre-Emption under Muslim Law
The right of pre-emption or Shuffa, is a preferential right as it implies ‘to become the buyer of an immovable property.’ The principle of pre-emption was developed under the Muslim law, to prevent a stranger from becoming a co-owner of the property, which may cause inconvenience. The right of pre-emption arises only when a complete sale takes place.
Pre-emption is recognized under the Shia law, only when there are two co-owners. In case one co-owner sells his share, the other co-owner has a preferential right to be the purchaser. Suppose a person died, leaving behind two sons. His property was divided equally, among the brothers but one brother wants to sell off his share to another person. Based on the right to pre-emption under Muslim law, he can be stopped by his brother from doing so.
3.6:Muslim Law: Difference between Sunni and Shia Law
Muslim law is broadly classified into the Sunni law and Shia law. However, there are some differences in the provisions of Shia and Sunni law, pertaining to the right of Shuffa, such as:
Number of Co-owners
The Shia law recognizes the right of Shuffa, when there are only two co-owners. However, the Sunni law recognizes this right, irrespective of the number of joint-owners. All the co-owners are entitled to the right of Shuffa.
Who all Are Entitled for Pre-emption
As per Sunni law, the participator of immunities, appendages and the owner of an adjoining property are also entitled to the right of pre-emption. However, under the Shia law no one else, but the two co-owners are entitled to this right.
Chapter four
Difference between section 24of the Non-Agricultural Tenancy Act 1949 orSection96 of the State Acquisition Act 1950 and Mahomedan law:-
Section 24of the Non-Agricultural Tenancy Act 1949 | Section96 of the State Acquisition Act 1950 | Mahomedan law |
1.It’s applies in respect of non-Agricultural lands | 1.It’s applies in respect of Agricultural lands | 1.It’s applies in respect of non-Agricultural or Agricultural lands |
2.Acontiguous owner can not claim a right of pre-emption | 2.Acontiguous owner can claim a right of pre-emption | 2.Acontiguous owner can claim a right of pre-emption |
3.a deposit of the consideration money of property transferred as started in the notice, with compensation at the rate of five per centum . | 3.a deposit of the consideration money of property transferred as started in the notice, with compensation at the rate of ten per centum . | 3.a deposit of the consideration money of property transferred as started in the notice, with compensation. |
4.The applicant or applicants to deposit such amount as the transferee ;in making any improvement of property transfer together with interest of six per centum. | 4.The applicant or applicants to deposit such amount as the transferee ;in making any improvement of property transfer they need not pay any interest. | 4.The applicant or applicants to deposit such amount as the transferee ;in making any improvement of property transfer they need may not pay any interest. |
5.There is provision of24(3) the applicant can challenge the correctness of any amount clamed to have been paid or spent by the transferee on any such account mentioned above. | 5.There is no provision of 96 the applicant can challenge the correctness of any amount clamed to have been paid or spent by the transferee on any such account mentioned above. | 5.There is no provision of Mahomedan law the applicant can challenge the correctness of any amount clamed to have been paid or spent by the transferee on any such account mentioned above. |
6.An opportunity to join as co-applicants in the pre-emption proceeding within the period of four month ,one month of the service notice the applicants. | 6.An opportunity to join as co-applicants in the pre-emption proceeding within the period of four month ,two month of the service notice the applicants. | 6.An opportunity to join as co-applicants in the pre-emption proceeding within the period of four month ,two month of the service notice the applicants. |
Chapter five
Case references:
5.1:Judgment of a case.
RANGPUR BENCH
Civil Revisional Jurisdiction
Latifur Rahman J. Rmesh Chandra Barma and others….
Judgment petitioner
Nov.24.1982 v.
Naresh Chandra Barma and others…..
opposite party
State Acquisition And Tenancy Act of 1951.
s.96; If the land sought to be pre-emption has already gone back to the original vendor ,no right of pre-emption can be clamed. When a land sought to be pre-empted has already gone back to its original owner by way of resale before an application for pre-emption is filed ,then the whole matter ends there and no right o pre-emption subsist(5) “Every if it accepted for the purpose of argument that the recoverence was a result of collusion between the transfer or and the transferee still the petitioner will have no right to pre-emption if he filed application for pre-emption after the reconveyance take place.(5)
AbdulMannan khan …. For the petitioner no one –for the opposite party.
Judgment:
The rule arises out of a judgment of revisional in a proceeding under section 96 of The State Acquisition Tenancy Act. The pre-emption filed an application for pre-emption starting that he is a non-notified co-sharer by inheritance. The pre-emption cases was filed within time after proper deposit as required under the law for pre-empting the land sold by kabala.
2. The pre-emption contested the proceeding starting, inter alia :that the applicant has no cause of action as the land has already been reconvened to the original vendor before the filing of the pre-emption proceeding.
3.The learned munsif on consideration of the materials on record dismissed the pre-emption case holding that the case land was reconveyed to the original vendor on 14.11.77 and the application was filed 18.11.77 and as such there was nothing to pre-empt. The learned Munsif raying on the case of opendra Chandra Ray vs. Jonab Ali reported in 29 DLR(dacca) (1977) 229 dismissed the proceeding for pre-emption . The learned lower appellate court set aside the judgment holding that the deed of recoveyance was bought into being only to defect the claim of pre-emption and that view refused to apply the law as enunciated in the above ruling.
Mr.Abdul Mannan khan the cairned advocate appearing for the petitioner submits that the learned District Judge committed an croon of law in not applying the principle of law as enunciated in 29 DLR (dacca)at page 229 which applies with all force to the present case.
4.From the submission of the learned Advocate for the petitioner :it appears that a qustion of law has been raised squarely in this case and the same needs to be determined with reference to the facts and circumstances of the present case. In this case admittedly deed of reconveyance to the original owner came into being on 14.11.77 and the application for pre-emption was filed on 18.11.77. Thus in the present cause days before filing of the application for pre-emption the case land was transferred to the original vendor.
5.In 29 DLR a at page 229it has clear terms that if the recoveyance takes place before the starting of the proceeding for pre-emption the right to pre-emption a longs not exit. In unreported decision in the case of pender Ali Halder vs. khan Halder and others Mr.Jstice Ruhul Islam also found that if the reconveyance takes place before the starting of the proceeding for pre-emption.
6.Thus in view of the facts and circumstances of the case and the proposition of law as enunciated in the decisions, the submission of the learned Advocate for the petitioner must succeed.
In the result, the rule is made absolute without any order as to costs.
5.2:Here is a summary of those cases.In Begin v. Town of Sabbaths409 A.2d 1269 (Me. 1979)
the Court upheld against preemption arguments (but struck down on other grounds) an ordinance limiting to four the number of construction permits which could be issued each year per park developer and per mobile home park. The Court found that despite a partial repeal of the State Subdivision Law's provision dealing with municipal review and regulation, sufficient authority remained in that statute and in the Home Rule statute to permit municipalities to implement slow-growth limitations. (But see 30-A MRSA Sec. 4356, the moratorium law: some question has arisen whether slow growth laws remain permissible since enactment of this statute.)
In Schwanda v. Bonney, 418 A.2d 163 (Me. 1980),
the Court held that the Town of Freeport was preempted from adding to the "good moral character" requirement of state law for the issuance of concealed weapons permits. The Court found that the state licensing law has statewide application and does not involve "matters ... which are local and municipal in character," and that local power to add to the regulatory requirements was denied to municipalities by clear implication from the law and legislative history. 418 A.2d 167. (And see now 25 MRSA Sec.2011: "The State intends to occupy and preempt the entire field of legislation concerning the regulation of firearms, components, ammunition and supplies." The only room left open to municipalities under this statute (subsection 3) is a local ordinance duplicating, with the exception of the civil penalty provision, an applicable state law, and regulation of the discharge of firearms within the municipality.)
In Ullis v. Town of Boothbay Harbor, 459 A.2d 153 (Me. 1983)
, a similar result was reached with respect to liquor regulation In a later opinion, the Court characterized both Schwanda and Ullis as involving "comprehensive statewide schemes to exercise the police power for regulating important matters of public safety. Tisei v. Town of Ogunquit, 491 A.2d 564 (Me. 1985).
Ties itself did not involve such a comprehensive, statewide scheme, but was Sabbaths revisited In Ties, the Court upheld against preemption challenge a slow-growth ordinance which limited hook-up access to the local sewer district's system. The Court found nothing in the legislative charter of the local district which barred the town from posing restrictions on access "as a legitimate regulation of a public utility and as one tool in the Town's efforts to control its growth and development." 491 A.2d at 570.
In Midcoast Disposal, Inc. v. Town of Union, 537 A.2d 1149 (Me. 1988)
, the Court struck down parts of two local ordinances which, taken together, effectively barred Midcoast and other private solid waste disposal companies from locating and operating within the town disposal facilities which would receive solid waste generated outside of town. The Court found that the allocations of authority contained in the Maine Hazardous Waste, Seepage and Solid Waste Management Act as it stood at the time of enactment of the ordinances manifested a clear legislative intention to remove any authority a municipality might have had to prohibit such operations.
The next case decided had a national dimension, as it implicated a Federal statute, the Federal Insecticide, Fungicide, and Rodenticide Act of 1975 ("FIFRA"), as well as two state statutes, the Maine Pesticide Control Act and the Maine Board of Pesticides Control Act. In Central Maine Power Company v. Town of Lebanon, 571 A.2d 1189 (Me. 1990), the Court upheld Lebanon's ordinance, which banned the non-agricultural use of pesticides in the town without advance approval from the voters of the town (at a town meeting, the voters had withheld such approval from CMP, which wished to apply herbicides to a transmission line corridor it owned in the town in order to hold down the growth of vegetation).
The case is valuable for what it teaches about Federal preemption doctrine. The Court acknowledged that it is through the Supremacy Clause "that federal law preempts conflicting state law."
The Court then noted that Federal preemption occurs in any of the following circumstances:
(1) when Congress, in enacting a federal statute, expresses a clear intent to preempt state law,
(2) when there is an outright or actual conflict between federal and state law,
(3) where compliance with both federal and state law is in effect physically impossible,
(4) where there is implicit in federal law a barrier to state regulation,
(5) where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the states to supplement federal law, or
(6) where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.
Although these are not known to have been expressly adopted by Maine's highest court as governing state-local preemption issues, they are a fair summary of the most commonly imaginable circumstances giving rise to preemption. In Maine, however, they must be examined in the context of Maine home rule.Conclusion:
Most often conflict arises in the broad area of shared or concurrent powers. "Preemption" is the word used to characterize the displacement by the act of a superior legislative body of the power of a political division or subdivision to legislate in a given area or in a particular way. A finding of preemption means that the preempted act will ordinarily be void to the extent necessary to remove the conflict or inconsistency between the acts of the two powers concerned. Preemption is a question of law determined by a court on a case-by-case basis. Thus there is no fixed rule or yardstick for determining whether preemption has occurred. Rather, in all cases, the search of the court is to discover the intent of the legislature of the superior power.
From a municipal perspective, obviously the instances of preemption of concern are where
(1) a Federal statute or agency regulation preempts a municipal ordinance, or
(2) a state law or agency regulation preempts a municipal ordinance.
The issue in both is fundamentally the same: has the superior legislative body shown an intent to limit or preclude legislation in the same area by political subdivisions? So, too, the inquiry in both cases is in essence the same; a determination whether conflict or inconsistency indeed exists, and a determination, by a search of the legislative history of the superior legislative body, of the intent of that body in enacting the law. Such a search might look at things like legislative debates but more commonly it focuses on the statute itself and inspects closely such things as a preamble, a statement of policy or intent, or legislative findings or determinations.As has been said many times, the adoption of home rule in Maine reversed what was known as the "Dillon Rule," under which municipalities had only such powers as were expressly granted to them. Under home rule, municipalities can exercise any power not expressly or by clear implication withheld from them. Home rule and the former Dillon Rule define only the relations between the state and municipalities, not the relation between the Federal government and municipalities. But look again at the statute quoted above: municipalities have only the power to "exercise any power or function" to the extent that the Legislature has the power to confer such power upon them.
In Maine, home rule doctrine is rounded out by three subsections of 30-A MRSA Section 3001 in addition to the one quoted above. The statute also provides that the ordinance power accorded to municipalities, being necessary for the welfare of the municipalities and their inhabitants, is to be liberally construed to effect its purposes. A rule of liberal construction favors the upholding of ordinances against attacks as being violative of home rule powers. The statute also declares that there is a rebuttable presumption that any ordinance enacted under Section 3001 is a valid exercise of a municipality's home rule authority. This has the effect of placing the burden of proof of a violation of home rule squarely on the shoulders of the person asserting the violation. Finally (for this discussion), the statute provides that in order for a court to find that the Legislature has implicitly denied a power otherwise granted to municipalities under home rule it must find that the ordinance in question would "frustrate the purpose" of a State law.
This last provision merits special comment. A requirement, for implicit overrule, that an ordinance be found to frustrate the purpose of a State law requires a greater showing than mere conflict or inconsistency. For example, a municipality's minimum lot size law may call (and many do) for a size larger than those required under the State's septic waste laws. Such local laws are plainly inconsistent with the State one. But do they frustrate the purpose of the State law? Surely not. For another example, suppose the State creates a civil penalty for the violation of a law, but is silent on the question of municipal enforcement or penalties that a local ordinance imposes a far greater civil penalty for the same violation as set out in the ordinance. Should a civil defendant have to pay both the State and the local penalties? Is the State purpose frustrated by the separate but potentially additional penalty?
In the past dozen years, Maine's highest court has addressed the question of preemption in a series of six cases. In addition, the Court of the Federal District of Maine has considered one preemption case.
Bibliographical Index
1. Kabir Dr. L.- Land Laws of Bangladesh (Vol. I, II, III & IV)
2. Khan Md. Ansar Ali -Land Laws of Bangladesh
3. Khan Prof. A. A. - Land Laws of Bangladesh
4. Land Administration Manual (Vol. I & II): Ministry of Land
5. Sikdar M. Ansar Uddin- Land Laws and Land Administration Manual by
6. Acquisition and Requisition of Immovable Property Manual: Dhaka Law
Reports (DLR)
7. www.bdlaws.bd.com
No comments:
Post a Comment