Preamble: An intensive amendment to sec. 96 of the State Acquisition & Tenancy Act has come in 2006 coming into effect on 20.09.2006 and thereby a great change has been introduced in the arena of pre-emption laws of the country. At said replacement of sec. 96 of the said Act, various new problems have arisen too. Under such circumstances we shall discuss the present law of pre-emption u/s. 96 of the SAT Act as well as the problems arisen thereunder.
Criteria for making application u/s. 96 for pre-emption:
Relevant portion of the present section 96 of the SAT Act provides that –“if a portion 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, …, apply for the said portion 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 thereof, as the case may be, can be made u/s. 90.”
Under said portion of law, now the applicant for pre-emption must have 2 criteria that i) he is a co-sharer in the holding by inheritance and ii) he is permitted to purchase the case lands u/s. 90 of the Act, i.e. he owns such quantity of lands that if he is allowed to get the case lands by pre-emption, his total lands will not exceed the highest ceiling of lands (60 standard bighas) as stipulated u/s. 90.
Co-sharer by inheritance in the tenancy/holding:
We have already seen that u/s. 96 of SAT Act only a recorded tenant himself or his heirs has right to pre-empt and there is no more chances to pre-empt now u/s. 96 by any other category of persons.
Some more decisions in this regard are – Tenant means a person holding land on payment of rent. Sec. 96 of the SAT Act stipulates that only the co-sharers in the tenancy can pre-empt the land sold to a stranger purchaser in the tenancy/holding/jote/khatian and none else can pre-empt under section 96 of the SAT Act, 1 ADC 310, 2 ADC 365, 13 MLR (AD) 143. In a pre-emption case, it is predominantly question to be determined that whether the pre-emptor is a co-sharer in the case land or not, 7 ADC 568, 8 BLT (AD) 165, 11 BLT 189, 8 MLR 173, 6 BLT 172. The right of pre-emption on the basis of the petitioner being a co-sharer of the tenancy must be proved to the hilt. He cannot succeed on establishing a prima facie case. When the dispute has to be finally adjudicated, the proof of the claim must be established by cogent and reliable evidence, 7 MLR (AD) 150.
But it is shocking that the terms “co-sharer”, “co-sharer by inheritance” and “holding” is no where defined either in the SAT or in any other statutory law of the land.
Holding – Sec. 2(13) of the Act provides that ‘holding’ means a parcel or parcels of lands or an undivided share thereof, held by a raiyat or an under raiyat and forming the subject of a separate tenancy.
It should be pertinent to mention that as per practical use the terms holding, tenancy, khatian and jama bear same meaning.
Co-sharer – However, from long line usual practice in this sub-continent, we may say that persons, who pay rents under a jama/khatian/holding/jote for a portion of lands, are called “co-sharer tenants” in those lands.
It also should be mentioned here that for the purpose of right of pre-emption the term co-sharer always indicate co-sharer in the latest (present) record of rights, i.e. tenancy/khatian/holding/jote/jama.
Co-sharer by inheritance – Though no where it is defined that which is meant by “co-sharer by inheritance, but as per long practice by our judicial pronouncements and applying the purpose of right of pre-emption, it can be said that the term “co-sharer by inheritance” includes 4 classes of persons-
- i) The persons who are themselves recorded tenants in the latest record of rights as published u/s. 144A of SAT Act;
- ii) The persons who jointly opened a mutation (khariji) khatian respecting a portion of lands;
iii) The heirs of both types of above mentioned recorded tenants; and
- iv) The heirs of co-sharer by purchase, (however, in my opinion, under present amended sec. 96 in this type of co-sharer by inheritance is no more co-sharer by inheritance).
Categories of co-sharers: There are 3 classes of co-sharers tenants in our laws. Firstly, the co-sharer by inheritance, i.e. the original tenants as recorded in the latest record of rights, themselves or their legal heirs; secondly, co-sharer by purchase, i.e. those who have purchased some portion of land of the holding or acquired some portion of land of the holding by any way other than by inheritance, e.g. gift, exchange, etc; and thirdly, co-sharer holding lands contiguous to the land of the case land.
Which category of co-sharers can pre-empt u/s. 96: In earlier sec. 96 of SAT Act, 1950 provision was that persons of 3 categories could apply for pre-emption. But in 2006 a fundamental amendment to this section has come. Now the applicant for pre-emption must have 2 criteria that i) he is a co-sharer in the holding by inheritance and ii) he is permitted to purchase the case lands u/s. 90 of the Act, i.e. he owns such quantity of lands that if he is allowed to get the case lands by pre-emption, his total lands will not exceed the highest ceiling of lands (60 standard bighas) as stipulated u/s. 90. Therefore, only a recorded tenant himself or his heirs has right to pre-empt. Co-sharers of other 2 categories have no more night to pre-empt now.
Whether heirs of a co-sharer by purchase become co-sharers by inheritance at death of said co-sharer by co-sharer by purchase:
Controversy is burning that whether, after death of a co-sharer by purchase, his heirs became co-sharers by inheritance?
It is universally settled principle is that no person can inherit better title/position than which his ancestor did have. Therefore, general view is that a person, who himself is a recorded co-sharer in the holing, his descendant heirs, how low so ever, must be treated in the same rank, i.e. co-sharer tenant in the holding by inheritance. As such, it is also viewed that those who are co-sharers in the holing by purchase, at their death, their descendant heirs, how low so ever, should not be considered as co-sharer tenants in the holding at all; unless and until their names are included as tenants in the latter published record of rights; rather they should be treated as heirs of purchaser tenant.
But this view of mine is not supported by the judicial views. Rather, it has been frequently and consistently held by the higher courts that after death of a co-sharer by purchase, his heirs must be held co-sharers with the original co-sharers by inheritance, also held that rights of pre-emption shall be defeated by such subsequent acquisition of co-sharership in the holding by the pre-emptee. 35 DLR (AD) 54, 15 BLC 497, 8 BLD 497, BSCD V- IV, p- 174, 58 DLR (AD) 203, 6 MLR (AD) 92, 9 BLT (AD) 34, 58 DLR (AD) 110, 35 DLR (AD) 54, 3 BLD (AD) 103, 15 BLC 497.
However, it should be kept in mind that the pronouncement of our higher court that “after death of a co-sharer by purchase, his heirs must be held co-sharers by inheritance” was laid down at the time when under very statutory law the co-sharers by purchase were also allowed to pre-empt. But after amendment of sec. 96 of SAT Act in 2006, co-sharers by purchase are no more allowed to pre-empt. In such circumstances, when the original co-sharer by purchase themselves have no right to pre-empt, then how and why at their death, their heirs shall be treated as co-sharer by inheritance acquiring right of pre-emption u/s. 96. Under these observations, I may suggest that time has come to re-consider this principle and now it should be considered that heirs of co-sharer by purchase should never be treated as co-sharer by inheritance.
Whether co-sharer by purchase are also allowed to pre-empt u/s. 96 of SAT Act still now: In earlier sec. 96 of SAT Act, 1950 provision was that persons of 3 categories could apply for pre-emption, i.e.- i) a co-sharer in the holding by inheritance, ii) a co-sharer in the holding by purchase and iii) a contiguous land holder to the case lands.
But in 2006 a fundamental amendment to this section has come. Now, as we have seen above, only a co-sharer in the holding by inheritance is allowed to pre-empt and there is no more chances to pre-empt now u/s. 96 by a co-sharer by purchase.
Contrarily, there is another view upon interpretation of sec. 96 (1)(b) that even now a co-sharer tenant by purchase has right of pre-emption.
But in this respect my view is that the co-sharer by purchase has no right to pre-empt now.
My points of view are: In this respect I have studied the new s. 96 comparing with the earlier s. 96. I find that the condition as given in new sec. 96 (1)(b) is not a new creation in the present s. 96; rather it was existed even in the earlier s. 96. This provision only intends to restrain a person from acquiring lands by way of pre-emption more than the highest ceiling as given by the government.
I also studied that in previous s. 96 (2) provision was that a person who applies for pre-emption as a co-sharer tenant must implead in the case all other co-share tenants in the holding, i.e. the applicant had to implead all other tenants of his same categories and superior categories. But the present s. 96 (2) states that “in an application under this section, all other co-sharer tenants by inheritance of the holding and the purchaser shall be made parties.” It is noted that here purchaser denotes the purchaser of the case land. Now question by me is that if the co-sharers by purchase are also be allowed to pre-empt under the present section, then why they shall make party only the other co-sharers by inheritance and shall not make party the all other co-sharers by purchase?
Another study is that earlier s. 96 (5) provided that if persons of 3 categories of tenants i.e. – i) co-sharers by inheritance, ii) co-sharers by purchase and iii) contiguous land holders to the case lands apply for pre-emption, the applicants shall have prior right to purchase in the order as mentioned above. But in present s. 96 no such provision of priority is given. My doubt is that if co-sharer by purchase is also allowed to purchase, then how they shall be classified in giving priority?
Under the discussions made herein above, it shall be clear to every one that the legislative intent of amendment of Sec. 96 of SAT Act in 2006 is to give right of pre-emption only to the recorded co-sharers in the holding/khatian and their inheritance and not to any other more.
Whether a recorded tenant himself can pre-empt: After the said amendment in 2006 of sec. 96, another controversy also oftenly raises that whether a recorded tenant himself can pre-empt now.
A large group is of view that under present sec. 96 there is no chance to pre-empt for a recorded tenant himself, only his heirs can do it. They argue that sec. 96 (1)(a) states- “a co-sharer tenant in the holding by inheritance”; this provision means that only the co-sharers by inheritance are allowed to pre-empt. There is nothing mentioned in the section that whether the recorded tenants or the mutation(khariji) khatian holders themselves can pre-empt.
In answer to this controversy, I may say that those, who are of above confused view, they are in thousand miles (far) distant from the real purpose and spirit of creation of right of pre-emption.
Basis of my arguments are: The actual spirit of creation of ‘right of pre-emption’ is that a holding (jote/joma/khatian) can not be split up, i.e. no stranger can enter into their own jote and whereupon of the real co-sharers can remain in enjoyment of their property and others cannot interfere with their right of possession, 14 BLT 357, 5 MLR 140, 51 DLR 136.
To ascertain the intention of the legislature, I also may refer to references respecting interpretation of statutes that – In interpreting a provision of a Constitution the widest construction possible in its context should be given according to the ordinary meaning of the words used, 11 DLR (SC) 423, 21 DLR (SC) 297, 21 DLR 84, 31 DLR 275; when a court is called upon to give a wide or limited interpretation, and when the expression is capable of both these interpretations, it is open to the Court to consider what was the object of the legislature. 11 DLR 117. When the main object of pre-emption law is to protect uniqueness of a jama then why the recorded owner is not allowed to pre-empt?
Another answer may be given that it is well settled natural principle, which has universal application and reiterated in AIR 1940 Mad 426, that ‘no person can inherit better title/position than that which his predecessor had’. Therefore, if the recorded co-sharer himself can not pre-empt, then how his heirs can inherit the said right only relying upon the right of the recorded co-sharer tenant?
In these circumstances, we are of clear view that the legislative intent of this provision is not to deprive the recorded tenants and mutation khatian holders; rather its intention is only to exclude the co-sharers who have been included in the khatian by purchase. It also should be mentioned here that the co-sharers in any khariji (mutation) khatian will have same right to pre-empt as the recorded co-sharers.
When holding is split up right of pre-emption ceased:
It is also a matter of difficulty that even after publication of present BRS (somewhere it is named R.S. or BS) record of rights, some persons apply for pre-emption claiming themselves as co-sharer in the earlier S.A. record. In this regard we have to say that, as the intent of creation of right of pre-emption, such right is only in regard of present record of rights which is called jama or tenancy or holding or khatian. When the latter khatian/holding has been published and thereby earlier jama ceased to exist, the right to pre-empt also ceased in regard of earlier jama. Because, as soon as a latter record of rights is published u/s. 144 of the SAT Act, the previous record of right ceases to exist to receive rents from the tenants and as such when the tenants cannot pay rents under the said holding there right to keep the tenancy intact is also ceased and therefore, right of pre-emption does no longer prevail.
In this regard we may give here some judicial verdicts as follows:
However, right of pre-emption exists so long the tenancy/holding/khatian is intact. But when the tenancy/ holding is split up and are recorded in separate khatian prepared under modified/revisional record of rights, at the time the dispute transfer was made, the petitioner in consequence thereof does no longer remain the co-sharer of the tenancy and as such he is not entitled to pre-empt the case land, 13 MLR (AD) 143, 1 ADC 515, 12 BLC 787, 10 BLC 365, 8 BLT 144, 17 BLT 513, 35 DLR 305.
I have to say that the joma/holding/khatian may be split up by any of the two way; (i) by publishing latter record of rights, 50 DLR (AD) 97, 54 DLR 181, 13 MLR (AD) 143, 29 DLR 153, 36 DLR 193; or (ii) by opening a mutation khatian u/s. 117 of SAT Act, 7 MLR 46, 1 ADC 515, 12 BLC 787.
Whatsoever, unless it is satisfactorily proved that the parent jama has been separated in accordance with the provisions of sec. 117 of the SAT Act on proper service of notices upon all the co-sharers, the parent jama remains intact and a co-sharer to the holding continues to be a co-sharer to it and his right of pre-emption remains unaffected, 6 MLR 185, 52 DLR 223, 10 MLR 1, 55 DLR 214.
Whether pre-emption lies against a co-sharer by purchase: At replacement of sec. 96 of SAT Act by amendment in 2006, a new and strong controversy has been arisen that whether pre-emption in agricultural lands still lies against a person who has already been become a co-sharer in the holding by purchase?
The controversial group views that the present sec. 96 (1) states that –‘if a portion of the holding is sold to a person who is not a co-sharer tenant.’ Therefore, a person who has already purchased some portion of the case holding also has become a co-sharer in the holding; as such pre-emption does not lie against him. I also agree with the controversial group that the statutory provision of this portion clearly means that any person who has already become co-sharer in the tenancy by any way, pre-emption does not lie against him.
Whatever, upon this controversy, I may compare this provision with the previous provision of this section. The earlier s. 96 (5) provided that if persons of 3 categories of tenants i.e. – i) co-sharers by inheritance, ii) co-sharers by purchase and iii) contiguous land holders to the case lands apply for pre-emption, the applicants shall have prior right to purchase in the order as mentioned above. This view of mine gets support in from the judicial principles reported in 37 DLR (AD) 220, 34 DLR 180. It was held in 34 DLR 177 & 180 that co-sharer by inheritance shall have the highest priority over co-sharers by purchase and contiguous owners.
In this regard, the decision given in the case reported in 37 DLR (AD) 220 is sufficient elaborate and exhaustive; the same is that ‘transfer to a co-sharer by inheritance not pre-emptible in any way’, ‘it clearly appears from sub-section 5(1)(a), a co-sharer by inheritance gets the first priority and he claims pre-emption he will exclude all other claimants. If no co-sharer by purchase claims pre-emption, the claim of a contiguous land-holder stands superseded’, ‘transfer to a co-sharer by purchase is immune from pre-emption by a contiguous land-holder’, ‘ In case of transfer to a co-sharer by purchase, it is not protected from pre-emption and any other co-sharer, whether by purchase or by inheritance, may claim pre-emption’.
More decisions are that – transfer made to a co-sharer by inheritance is not pre-emptable while transfer made to a co-sharer by purchase is pre-emptable, 6 DLR 267, 557; 12 DLR 248. The transferee-pre-emptee, who is a co-sharer in the tenancy by purchase, can claim for rateable pre-emption, even by the written-objection which he files in traversing the original pre-emption application, in a case which has been started by a co-sharer by purchaser. 36 DLR 250, 5 DLR 254, 4 BLD 135(b). A transfer in favour of a co-sharer by purchase is not immune from pre-emption by a co-sharer by inheritance, BSCD Vol. 1 p. 280. Right of pre-emption of a co-sharer by inheritance prevails over the claim of co-sharer by purchase and as such an application u/s. 96 by a co-sharer by inheritance is quite maintainable, 5 MLR (AD) 50. Since the pre-emptor is a co-sharer by inheritance in the suit land and the pre-emptee is one by purchase, there is no impediment u/s. 96 to file the pre-emption case. 26 BCR 21. Right of pre-emption of co-sharer by inheritance excludes the right of pre-emtpion of the co-sharer by purchase, 13 MLR (AD) 332. No waiver of pre-emption if a co-sharer does not exercise his right of pre-emption on the first transfer, 17 DLR 384.
But in the new sec. 96, only one category i.e., co-sharers by inheritance, is permitted to pre-empt, therefore, I may interpret and vehemently say that pre-emption by co-sharer by inheritance is permitted against even a purchaser co-sharer now.
When the vendee-pre-emptee is a co-sharer by purchase and the pre-emption application has been made by another co-sharer by purchase, the pre-emptee may also apply for rate-able pre-emption, 4 BLD 135.
Subsisting Interest: Another pre-requisite for pre-emption, the pre-emptor must have subsisting interest in the jote, i.e. the pre-emptor-applicant is not only a recorded co-sharer tenant in the jote, but also has some rights in the jote. The person, who himself or his predecessor, has already transferred his total share in the jote and has become interestless in the jote, has no right to pre-empt, 37 DLR 324. A co-sharer seeking pre-emption must have a subsisting interest in the holding at the time when he files an application for pre-emption, 4 BLD (AD) 320, 33 DLR (AD) 505. It has been held that in order to establish a claim for pre-emption the petitioner co-tenant should have his interest in the holding not only at the time of bringing the case, but also throughout the proceedings, 10 MLR (AD) 275, 3 ADC 966, 17 DLR 327, 19 DLR 36 (SC), PLD Dhaka 372, 22 DLR Dhaka 294, 33 DLR (AD) 305, 14 BLT (AD) 69.
N.B. This article is also available in writer’s book “Pre-emption Laws in Bangladesh”. For more details of laws relating to pre-emption as prevailing in Bangladesh, e.g. u/s. 96 of the SAT Act, u/s. 24 of NAT Act, u/s. 4 of the Partition Act, u/s. 13 of the Land Reforms Ordinance or right of shufa’ under the Muslim Law, see the writer’s said named book.