1. Diluvion

1.1. Definition

• Diluvion is when land slowly disappears because water takes over it. This happens naturally over time and can’t be easily noticed. It usually occurs when a river or the sea gradually eats away at the land.

1.2. Reformation-in-situ.

1.2.1. Definition

• In English law, there’s a special rule called “reformation-in-situ.” This means that if the land that disappeared underwater comes back in the same place, the original owner can claim it again. Two things need to happen for this to work:
  1. The original owner must not have given up their right to the land.
  2. The land must be identified as the same land that disappeared.

1.2.2. Example Case [Lopez v Madan Mohan]

• This principle was used in a famous legal case called Lopez v Madan Mohan. The court decided that even if land goes underwater, the owner’s right to the property isn’t lost.
• If the land reappears, the owner can claim it back, as long as they haven’t abandoned it and can prove it’s the same land.

2.2. Present Legal Position of Diluvion

Background

The legal rules about owning land that has disappeared due to flooding (called “diluvion”) and then reappeared are defined by a law called the Amending Act No. XV of 1994. This law helps decide who owns the land after such events.

Key Points of the Law

1. Reappearing Land Within 30 Years:
   • If land that was lost due to diluvion reappears within 30 years, the original owner can claim it back.
   • To prove ownership, the original owner needs a certificate from the revenue authority showing that rent payments have stopped because the land was underwater.
2. Reappearing Land After 30 Years:
   • If the land reappears after 30 years, it becomes government property.

Historical Context

• Before July 13, 1994:
  • If land reappeared before this date, the government could claim it based on the State Acquisition and Tenancy (Fourth Amendment) Order, 1972.
  • In the case of Syed Nizamuddin Mohsin v Bangladesh, the court decided that if land was lost and then reappeared before the 1972 order, it belonged to the government unless the original owner’s right was confirmed by a proper authority.

Specific Case Insights

• After July 13, 1994:
  • If land reappeared after this date, the original owner or their heirs could claim it according to the 1972 Order.
  • A key case, Government of the People’s Republic of Bangladesh v. Md. Kazemuddin, addressed whether the rights of the original owner or their heirs would continue if the land reappeared within 30 years from July 13, 1994.

Summary of the Law from Court Rulings

1. Rent Adjustment Due to Land Loss by Diluvion Before November 4, 1972
   • If a tenant’s land was lost due to diluvion (which means it was washed away by a river or water body) before November 4, 1972, the tenant can ask the Revenue Officer to reduce their rent. The amount of the rent reduction will be decided by the Revenue Officer based on what is fair and reasonable.
2. Loss of Tenant’s Rights Due to Diluvion
   • If a tenant’s land is lost due to diluvion (whether it happened before or after a specific law (section 86) was updated by a legal order (PO No. 135 of 1972)), the tenant will lose their rights, title, and interest in that land. This means the tenant no longer has any legal claim to the land that was washed away.
3. Government Ownership of Reappeared Land
   • If the land that was washed away by diluvion reappears after PO No. 135 of 1972 came into effect, but the original tenant or their heirs are not recognized or declared by the authorities or court to repossess it, then that land will become the absolute property of the Government.
4. Preference for Original Tenants in Land Settlement
   • When the reappeared land is being distributed or settled, the original tenant or their heirs will be given preference, meaning they will be considered first for getting back the land. However, this is only if:
   • The land reappears within twenty years of being lost.
   • The total land they already own does not exceed the maximum limit set by certain sections (20 or 90) of the Act of 1950.
5. Protection of Pre-existing Rights
   • Any rights that the tenant or their heirs had before the updated section 86 by PO No. 135 of 1972 came into effect will not be taken away. These rights will only be affected by new rules moving forward from the date the updated section 86 came into effect.
6. If the land or a portion thereof is diluviated after 13th July, 1994, the rent or the land development tax of the holding of the tenant or his successor-in-interest be abated on his application, such amount as may be considered by the Revenue Officer and the act of such loss by diluvion shall be recorded by such Revenue Officer.
   1. Diluviated Land: This means land that has been washed away or submerged by water, like in a flood.
   2. Date Reference: The rule applies to land washed away after July 13, 1994.
   3. Rent or Tax Relief: If a tenant (the person renting the land) or their successor (the person who inherits the land) loses land due to flooding, they can apply to pay less rent or tax on the land.
   4. Application Process: The tenant or successor must submit an application for this relief.
   5. Revenue Officer’s Role: A government official, called a Revenue Officer, will decide how much the rent or tax should be reduced.
   6. Record Keeping: The Revenue Officer will also officially note that the land was lost due to flooding.
7. The right, title and interest of the tenant or his successor-in-interest shall subsist of a holding or a portion thereof during the period of loss by diluvion from 15th July, 1994, if such land re-appear in situ within thirty years of loss.
   1. Continued Rights: The tenant or their successor keeps their legal rights to the land even if it has been washed away.
   2. Date Reference: This applies from July 15, 1994.
   3. Reappearance of Land: If the washed-away land reappears (is no longer underwater) within 30 years, the tenant or their successor still has the rights to it.
8. The Collector, either on his own motion or on the basis of application of the tenant or his successor-in-interest shall exercise the right of immediate possession of the land so reappeared and shall give public notice of the said fact, prepare a map, make survey of the land and after forty five days of completion of survey, allot the land to the tenant or his successor-in-interest such quantity of land which together with the land already held by him shall not exceed sixty standard bighas.
   1. Collector’s Actions: A government official, called the Collector, can act on their own or based on a request from the tenant or their successor.
   2. Taking Back Possession: The Collector can take immediate control of the land that has reappeared after being submerged.
   3. Public Notice: The Collector must announce publicly that the land has reappeared.
   4. Map and Survey: The Collector will create a map and survey (measure) the land.
   5. Time Frame: After 45 days of completing the survey, the land can be given back to the tenant or their successor.
   6. Land Limit: The tenant or their successor can only get back land up to a total of 60 standard bighas (a unit of measurement for land).
9. Section 86 substituted by the State Acquisition and Tenancy (Amendment) Act, 1994 (Act XV of 1994) shall have prospective operation.
   1. Law Amendment: A specific section of the law, Section 86, was changed by a law amendment in 1994.
   2. Prospective Operation: This means that the changes in the law apply only to future cases, not past ones.
10. Section 86 Overview Section 86 deals with land management and processes related to land.
    1. Public Notice and Time Period:
    • When the government needs to work on certain lands, they first give a public notice. This is an official announcement to inform everyone about the upcoming processes related to the land.
    • After giving this notice, the government has a period of twelve months (one year) to complete all necessary tasks related to the land. These tasks are handled by an official called the Collector.
11. Sub-section (6) of Section 86
    • Lands Allotted Without Salami:
      • Sometimes, the government gives out (allots) lands to people. When this happens under sub-section (5) of Section 86, the land is given out without charging a fee called “salami.”
      • However, the people who receive this land (tenants) or their future family members (successors-in-interest) must pay a fair and reasonable rent. They also need to pay a land development tax.
      • The amount of rent and tax is decided by an official called the Revenue-officer.
12. Sub-section (7) of Section 86
    1. Exceptions to the Rule:
       • The rules in Section 86 do not apply in certain situations. Specifically, if the land reappears (comes back or is restored) because of artificial or mechanical processes (human-made activities), then Section 86 does not apply.
       • For example, if the government or any authorized authority carries out development works that change the land, these changes are not covered by Section 86.

💡 Summary

What happens when land is lost due to diluvion (erosion by water)?

When land is lost due to diluvion, the owner of the land may get the land back if it reappears within 30 years. If the land reappears after 30 years, it becomes the property of the government.

How does the owner prove ownership?

To prove ownership, the owner needs a certificate of abatement of rent from the revenue authority. This certificate shows that the owner’s rent has been reduced or cancelled due to the loss of land.

What happened before 1994?

Before 1994, if land was lost due to diluvion and reappeared before July 13, 1994, the government could claim the land. The owner’s right to the land was extinguished (cancelled) when the land was lost.

What changed in 1994?

In 1994, the law was changed to allow the former owner or their successor (heir) to get the land back if it reappeared within 30 years of being lost.

What are the rules for getting the land back?

The rules are as follows:

• If the land was lost before 1972 and reappeared before 1972, the government gets the land.
• If the land was lost before 1972 and reappeared after 1972, the owner gets the land back if they can prove ownership.
• If the land was lost after 1994, the owner gets the land back if it reappears within 30 years.
• The owner must apply to the revenue authority to get their rent reduced or cancelled due to the loss of land.
• The government will give preference to the original owner or their successor when settling the land, as long as the total area of land they own does not exceed the ceiling (maximum limit) prescribed by law.

What about lands that reappear after 1994?

If land reappears after 1994, the owner or their successor gets the land back if it reappears within 30 years. The government will record the loss of land and the owner can apply to get their rent reduced or cancelled.

What is the role of the Collector?

The Collector is responsible for exercising the right of immediate possession of the land that reappears. They will give public notice, prepare a map, and survey the land. After 45 days, they will allot the land to the owner or their successor, making sure they do not own more than 60 standard bighas of land.

Are there any exceptions?

Yes, there are exceptions. If the land reappears due to artificial or mechanical processes (such as development works undertaken by the government), the provisions of section 86 do not apply.

3. Present Legal Position of Alluvion

Key Points:

1. Ownership of Newly Formed Land: Any new land formed, whether before or after June 28, 1972, automatically becomes the property of the government.
2. Scope of the Law:
   • This rule applies to all lands gained before June 30, 1972.
   • It does not apply to land gained before the State Acquisition and Tenancy Act, 1950, came into effect.

Important Cases:

1. Abdul Mannan v. Kulada Ranjan Mowali:
   • In this case, the plaintiffs (people bringing the case to court) claimed rights to the land formed through a process called “reformation in situ” (the land reappears where it once was).
   • The higher court (Appellate Division) clarified the law concerning this situation.
2. Province of East Pakistan v. Imam Sharif:
   • This case established that Section 87 of the law is not retroactive.
   • This means it does not apply to situations before the law was created.
   • The Bengal Tenancy Act, 1885, and the State Acquisition and Tenancy Act, 1950, cannot be applied at the same time.

Exceptions:

• If someone’s right to a piece of land was officially recognized or declared by a competent authority or court before the State Acquisition and Tenancy (Sixth Amendment) Order, 1972 (Order No. 137 of 1972), then their right to that land is preserved.

Current Rule:

• Any new land formed within 30 years of being washed away (diluvion) can belong to the original landowner.
• Otherwise, all such newly formed lands (chars) belong to the state, and the government can decide how to allocate or use this land according to established rules.

Summary:

• Government Ownership: Most new lands formed through natural processes now belong to the government.
• Exceptions: Rights recognized before a certain 1972 amendment are protected.
• Old Laws vs. New Laws: The laws from 1885 and 1950 don’t overlap with the newer laws, meaning new laws apply to current situations, and old laws apply to situations before their time.