1. Pre-emption Rights: Definition

1.1. Definition from Oxford Concise Dictionary of Law

• Pre-emption is a legal concept that gives a person the right to buy a property before others can buy it.
• This means that if someone wants to sell a property, the person with the right of pre-emption gets to buy it first.

1.2. Justice Mahmood’s Explanation

• Justice Mahmood said that pre-emption is a right that allows someone to buy a property that is not theirs, but is connected to their own property, in order to enjoy their own property peacefully.

2. When is the Right of Pre-emption lost?

2.1. Acquiescence

Acquiescence means giving up a right or claim voluntarily. In the context of the Right of Pre-emption, it means that the person who has this right decides not to exercise it. This can be done in two ways:

• Expressly: The person can explicitly say that they don’t want to exercise their Right of Pre-emption. They might do this in writing or verbally.
• Impliedly: The person’s actions or behavior can imply that they have given up their Right of Pre-emption. For example, if they know about the sale of the property but don’t take any action to buy it, it can be inferred that they have abandoned their right.

If someone with the Right of Pre-emption doesn’t take the necessary steps to buy the property after learning about the sale, it can be seen as a sign that they have given up their right. Similarly, if they offer to buy the property from the buyer or ask for the property on lease, it can be considered as a relinquishment of their Right of Pre-emption.

2.2. Death

If the person who has the Right of Pre-emption dies before a court order is made in their favor, their right is extinguished. This means that their legal representatives cannot continue the action after their death. However, in some laws (Ithna Ashari and Shafi laws), the right passes on to the heirs in proportion to their share.

2.3. Release (only in Muslim law)

In Musum law, the Right of Pre-emption can be lost if the person with this right releases their claim in exchange for some compensation. This means that they give up their right to buy the property in return for something else. However, if the person refuses to buy the property before the sale or is unwilling to make an offer to purchase after being notified that the property is for sale, their Right of Pre-emption is not lost.

Additionally, there are some clever ways to avoid the Right of Pre-emption. For example, if someone sells their entire house except for a small strip of land (about one yard wide) that borders the property of the person with the Right of Pre-emption, the latter cannot claim their right. This is because they are no longer considered a neighbor.

💡 Summary

2. When the Right of Pre-emption is Lost

2.1. Acquiescence

• Acquiescence: Voluntarily giving up the right.
  • Expressly: Clearly stating not to use the right, verbally or in writing.
  • Impliedly: Actions show giving up the right, like not acting on knowing about the sale.
• Signs of giving up the right:
  • Not taking steps to buy after knowing about the sale.
  • Offering to buy from the new buyer or asking to lease the property.

2.2. Death

• If the person with the right dies before a court order, the right is lost.
• Legal representatives cannot continue the action.
• In some laws (Ithna Ashari and Shafi), the right passes to heirs based on their share.

2.3. Release (only in Muslim law)

• The right can be lost if the person releases their claim for compensation.
• The right is not lost if the person:
  • Refuses to buy before the sale.
  • Is unwilling to make an offer after knowing the property is for sale.
• Clever avoidance:
  • Selling all but a small strip of land next to the neighbour’s property makes the neighbour lose their right.

SAT Act এর আন্ডারে Pre-emption রাইট কাদের আছে?

3. When is the Right of Pre-emption arise? / Section 96 of the State Acquisition and Tenancy Act, 1950 / কারা Pre-emption রাইট প্রাক্টিস করতে পারবে?

3.1. When Does the Right of Pre-emption Arise?

According to Section 96(1) of the State Acquisition and Tenancy Act, 1950, the right of pre-emption arises when a part or a share of a property (known as a “holding”) is sold to someone who is not already a co-owner (co-sharer) of that property. This means if you and your siblings co-own a piece of land, and one sibling sells their share to an outsider, the other siblings have the right to buy that share first.

3.1.1. Changes Made in 2006

In 2006, significant changes were made to Section 96(1). Before these changes, any co-owner could claim the right of pre-emption if agricultural land was transferred. After the changes:

• The right of pre-emption only applies to sales, not to other types of transfers like gifts or inheritance.
• Only co-owners who inherited their share of the property can claim the right of pre-emption. If you became a co-owner by buying a share, you do not have this right.
• If the property records (khatiyan) are separated or officially updated (mutation), the right of pre-emption is lost, even if the records are still in draft form.

3.2. Important Court Cases

1. Dewan Ali (Md) v Md. Jasimuddin & Others:
   • The court ruled that the right of pre-emption becomes active only after the property is sold, not before. If a co-owner refuses to buy the property before it is sold to an outsider, this does not mean they have given up their right of pre-emption.
2. Fatema Khatun & Others v Abdul Quddus:
   • The court stated that only those who are co-owners at the time the sale deed is registered can claim the right of pre-emption. If someone becomes a co-owner after the deed is registered, they cannot oppose the pre-emption claim. The sale must be fully registered for the right of pre-emption to apply.

3.3. Sale Conditions and Pre-emption

• For the right of pre-emption to apply, the sale must be complete. Sometimes sales include conditions, such as the option for the seller to buy back the property (reconveyance).
• If this buy-back condition is genuine and legal, then the right of pre-emption does not apply because it is not a straightforward sale.
• However, if the buy-back agreement is made only to bypass the right of pre-emption and if there is collusion between the seller and the buyer, the agreement may be considered fraudulent, and the right of pre-emption could still apply.

💡 Summary

When is the Right of Pre-emption Arise?

• Section 96(1) of the State Acquisition and Tenancy Act, 1950
  • The right of pre-emption arises when a part or share of a property is sold to someone who is not a co-owner.
• Changes Made in 2006***
  • The right of pre-emption only applies to sales, not gifts or inheritance.
  • Only co-owners who inherited their share can claim the right of pre-emption.
  • If property records are separated or updated, the right of pre-emption is lost.
• Important Court Cases
  • Dewan Ali (Md) v Md. Jasimuddin & Others:
    • The right of pre-emption becomes active only after the property is sold.
  • Fatema Khatun & Others v Abdul Quddus:
    • Only co-owners at the time of sale deed registration can claim the right of pre-emption.
• Sale Conditions and Pre-emption
  • The sale must be complete for the right of pre-emption to apply.
  • If the sale includes a genuine buy-back condition, the right of pre-emption does not apply.
  • If the buy-back agreement is fraudulent, the right of pre-emption may still apply. </aside>

4. Who Can Apply for Pre-emption under SAT?

4.1. Person Who Can Buy Under Section 90 of SAT Act: (2 Criteria)

1. Land Ceiling:
   • If you own less than 60 bighas (a measure of land) of agricultural land, you can buy more land, but the total amount must not go over 60 bighas. This means if you have less than 60 bighas, you can apply for pre-emption to buy more land.
2. Bona Fide Cultivator:
   • A bona fide cultivator is someone who farms the land themselves or with the help of family members, workers, or partners. If you are a bona fide cultivator, you can apply for pre-emption.
   • This includes agricultural labourers, which means people who work on farms.

💡 Summary

1. Land Ceiling:
   • If you own less than 60 bighas of agricultural land, you can buy more land.
   • But your total land ownership cannot exceed 60 bighas.
   • If you have less than 60 bighas, you can apply to buy more land (pre-emption).
2. Bona Fide Cultivator:
   • A bona fide cultivator is someone who farms their own land or with the help of:
     • Family members
     • Workers
     • Partners
   • If you are a bona fide cultivator, you can apply for pre-emption.
   • This includes people who work on farms (agricultural labourers).

5. Time Limit for Filing a Case

1. Time Limit for Filing a Case:
   • You have a limited time to file a case if you want to enforce your pre-emption rights (the right to buy a property before others if it’s sold).
   • The case must be filed:
     • Within 2 months from the date you know about the sale.
     • Or within 2 months from the service of notice given under section 89 (if applicable).
     • Or no later than 3 years from the date the sale deed is officially registered.
2. Special Rule in the Limitation Act, 1908:
   • According to Section 8 of the Limitation Act, 1908, the usual rules that extend the time limits for legal actions due to certain disabilities (like being a minor or insane) do not apply to cases about pre-emption rights.
3. Understanding “Date of Knowledge”:
   • The “date of knowledge” means the day you clearly and certainly know about the sale.
   • This doesn’t mean hearing a rumor or gossip about the sale. It must be definite information, like knowing who bought the land and the details of the sale.
   • The Supreme Court of Bangladesh clarified that “knowledge” starts when you obtain the certified copy of the sale deed (the official document proving the sale).
4. Example Case:
   • In the case of Habibur Rahman & another vs. Mobarak Ali Rari & others, the court ruled that you can’t claim to be unaware of the sale for 12 years if you have been seeing the land being used by the new owner (pre-emptee) all this time.
5. Burden of Proof for Date of Knowledge:
   • If you claim you only learned about the sale shortly before filing your case, and the other party (opposite party) says you knew earlier, the opposite party must prove that you knew about the sale earlier.
   • For example, if you say you found out about the sale only 20/25 days before filing the case, and the opposite party disagrees, they must show evidence that you knew before that.

💡 Summary

1. Time Limit for Filing a Case:
   • Limited time to file for pre-emption rights (buying property before others).
   • File the case:
     • Within 2 months of knowing about the sale.
     • Or within 2 months of notice under section 89 (if given).
     • Or no later than 3 years from the sale deed’s registration date.
2. Special Rule in the Limitation Act, 1908:
   • Section 8 of the Limitation Act, 1908:
     • Usual extensions for disabilities (like being a minor or insane) do not apply to pre-emption cases.
3. Understanding “Date of Knowledge”:
   • “Date of knowledge” = the day you are sure about the sale details.
   • Not based on rumors; must have definite information.
   • Supreme Court of Bangladesh: “Knowledge” starts when you get the certified sale deed copy.

6. Court Fees and Deposit of Money under SAT Act

When you apply to the court, you need to pay certain fees and deposits. Here’s of what you need to deposit:

1. Fixed Court Fees:
   • Amount: You must deposit TK 200 as a fixed court fee.
2. Consideration Money:
   • What it is: This is the amount of money mentioned in the sale deed (the document showing the sale of property) or the average market price of similar properties in the area.
   • Reference: This is recorded by the local sub-registry office as per Section 96(3).
3. Compensation:
   • Amount: You need to deposit an additional 25% of the consideration money as compensation.
   • Reference: Section 96(3).
4. Simple Interest:
   • Rate: You need to pay simple interest at 8% per year.
   • Period: This interest is calculated from the date the sale deed was executed (signed and finalized) to the date you file the pre-emption application.
   • Reference: Section 96(3).
5. Other Sums Spent (Improvement Costs and Removing Debts):
   • What it includes: Money spent on improving the property or removing debts and claims against the property.
   • Procedure:
     • When you submit your application and these deposits, the court will notify the purchaser (the person who bought the property) and other involved parties.
     • The court will ask the purchaser to report any rent payments and expenses for improving the property or removing debts.
     • Reference: Section 96(4).
6. Rent Paid (After Hearing and Enquiry):
   • What happens:
     • The court will hear all parties involved and conduct an enquiry about the rent paid and expenses incurred by the purchaser.
     • Based on this enquiry, the court may ask you to deposit additional money if necessary.
     • Reference: Section 96(5).
7. Deposit by Joining Party in Portion:
   • What it means:
     • If someone else wants to join your application, they must also make a deposit.
     • After the period for joining the application ends, the court will decide which applications are allowed based on the provisions of this section.
     • Reference: Section 96(7).

💡 Summary

Court Fees and Deposit of Money under SAT Act

• Fixed Court Fees:
  • Pay TK 200.
• Consideration Money:
  • Money mentioned in the sale deed or average market price of similar properties.
  • Recorded by the local sub-registry office (Section 96(3)).
• Compensation:
  • Pay an extra 25% of the consideration money.
  • Based on Section 96(3).
• Simple Interest:
  • 8% per year.
  • Calculated from the sale deed date to the pre-emption application date.
  • Refer to Section 96(3).
• Other Sums Spent (Improvement Costs and Removing Debts):
  • Includes costs for improving the property or clearing debts.
  • Court informs the purchaser and other parties.
  • Purchaser reports rent payments and improvement expenses.
  • Refer to Section 96(4).
• Rent Paid (After Hearing and Enquiry):
  • Court hears all parties and investigates rent and expenses.
  • Court may ask for additional deposits if needed.
  • Based on Section 96(5).
• Deposit by Joining Party in Portion:
  • Others joining your application must also deposit money.
  • After the joining period, the court decides on the applications.
  • Refer to Section 96(7).

7. NAT Act এর আন্ডারে Pre-emption রাইট কাদের আছে? Who can apply for pre-emption under Section 24 of NAT Act 1949?

1. Pre-emption Rights:
   • What is Pre-emption? Pre-emption is the right to buy a piece of land before others can. It’s like having the first chance to buy when the land is up for sale.
2. Who Can Apply?:
   • Co-sharer Tenant: If you own a part of a piece of land along with others, you are called a co-sharer tenant. As a co-sharer, you can apply for pre-emption.
3. Application Process:
   • Applicant/Petitioner: The person who wants to exercise their pre-emption right and is applying for it.
   • Respondent/Opposite Party: The person against whom the application is made. This includes the buyer, seller, and all other co-sharers.
4. Joining the Application:
   • Any other co-sharers can join the original application. This means if one co-sharer starts the process, other co-sharers can support it by joining in.

Court Ruling on Pre-emption:

• Plot vs. Khatiyan:
  • Plot: A specific piece of land.
  • Khatiyan: A record or document that shows ownership of the land.
  • The court has decided that if you own any part of a plot, you are a co-sharer of the entire plot, even if the land is listed in different khatiyans (ownership records). This means you can apply for pre-emption for any part of that plot, even if your name isn’t on that specific khatiyan.

Ceiling on Land Holdings:

• No Ceiling in Act: The Non-Agricultural Tenancy Act, 1949 doesn’t limit how much non-agricultural land you can own.
• Ceiling from 1972 Order: However, there is a different rule (Article 4 of the Bangladesh Land Holding (Limitation) Order, 1972) that limits owning more than 100 bighas (a unit of area) of land. This rule applies to non-agricultural land as well.

8. Court Fees and Deposit of Money under NAT Act 1949.

• Fixed Court Fees
  • TK 200 is the fixed court fee.
• Consideration Money
  • The amount of money or value of the property share transferred is stated in the notice.
  • Can be disputed under section 24(6) during a hearing.
• Compensation
  • 5 percent compensation under section 24(2).
• Other Expenses
  • Costs for buildings, structures, or improvements made between the transfer date and notice date, with an additional 6.25 percent.
• Rent and Encumbrances
  • Rent paid and encumbrances annulled with a hearing after enquiry under section 24(3).
• Deposit by Joining Party
  • Deposit required by the joining party in the portion under section 24(4).

9. বর্গাদারদের মধ্যে কারা Pre-emptory রাইট এক্সারসাইজ করতে পারবে? [Land Reform Ordinance, 1984]

Bargadar’s Right to Purchase

What is a Bargadar? A bargadar is a person who cultivates or farms someone else’s land. They do not own the land but have an agreement (barga contract) with the landowner to farm it.

Section 13: Right to Purchase

1. Owner’s Offer to Sell the Land
   • If the landowner wants to sell the land that the bargadar is farming, the owner must first ask the bargadar in writing if they want to buy it.
   • Exception: The owner does not need to ask the bargadar if they are selling the land to a close family member like a parent, spouse (husband or wife), son, daughter, grandson, or any other family member who shares ownership of the land.
2. Bargadar’s Decision Time
   • The bargadar has 15 days from the day they receive the offer to let the owner know in writing if they want to buy the land or not.
3. Agreement on the Price
   • If the bargadar decides to buy the land, they must discuss and agree on a price with the owner. They need to come to an agreement on the terms of the sale.
4. Owner’s Next Steps if Bargadar Declines
   • If the bargadar does not reply within 15 days, or if they say they do not want to buy the land, or if they cannot agree on a price, the owner can sell the land to anyone else they choose.
   • Condition: The owner cannot sell the land for a price lower than what the bargadar offered to pay, if the bargadar made an offer.
5. Binding Barga Contract
   • If someone other than the bargadar buys the land, the new owner must respect the existing barga contract. This means the new owner takes over the agreement as if they were the original owner.

Ceiling of Barga Land

Section 14: Limit on Land a Bargadar Can Farm

1. Maximum Land Limit
   • A bargadar cannot farm more than fifteen standard bighas of land. A bigha is a unit of area used in some parts of South Asia.
2. Calculating the Land Limit
   • To calculate if the bargadar is over the limit, include:
     • The land they own.
     • The land they farm as a bargadar.
     • Any land they hold under a complete usufructuary mortgage (a type of lease where the person can use the land and enjoy its benefits).
3. Government Action for Excess Land
   • If a bargadar is found to be farming more than the allowed fifteen bighas, the government can take the extra produce (the crops grown on the excess land) by issuing an order through the proper authority.

💡 Summary

Bargadar’s Right to Purchase

• Owner’s Offer:
  • Owner must ask the bargadar in writing if they want to buy the land before selling it.
  • Exception: No need to ask if selling to close family (parent, spouse, children, grandchildren, or co-owner).
• Bargadar’s Response:
  • Bargadar has 15 days to reply in writing if they want to buy the land.
• Price Agreement:
  • If bargadar wants to buy, they must agree on a price with the owner.
• If Bargadar Declines or Doesn’t Respond:
  • Owner can sell to anyone else.
  • Owner can’t sell for less than the price offered by the bargadar (if any).
• Barga Contract Continuation:
  • New owner must follow the existing barga contract.

Ceiling of Barga Land

• Maximum Land Limit:
  • A bargadar can’t farm more than 15 bighas of land.
• Land Calculation:
  • Include land owned by the bargadar, land farmed as a bargadar, and land under complete usufructuary mortgage.
• Government Action:
  • Government can take produce from excess land if a bargadar farms more than 15 bighas.