The Vested Properties Act owes its existence to the Enemy Property Order II

(custody and registration) of 1965, which was promulgated following the outbreak of

a short-lived war between India and Pakistan in September, 1965. History shows that

the state called Pakistan was born through a process of bloody riots and communal

conflicts based on fanatic ideology, and subsequently never showed respect or trust in

democracy or secular human values. Of course, the people of Bangladesh, known then

as East Pakistan, and beginning in 1948, almost from the very first day of new state

life, the middle class and particularly the student community and the progressive

intelligentsia, built resistance in order to create a secular and democratic society,

keeping the issue of state language in the forefront.

The Indo-Pak War and the Enemy Property Order II of 1965 thus came as further

blows to our secular culture, to the tradition of communal harmony, and to the human

values that were being built through our popular democratic movements. While

Bangladesh ultimately emerged as an independent and sovereign country the heroic

war of liberation in 1971, it is ironic that even after the final military defeat of the

occupation force, the force of a most draconian and discriminatory law, which in fact

had been enacted by a military dictator, was continued under a new nomenclature

called the Vested Property Act (VPA).

By the implementation of this draconian law, the woes of the affected people are

indescribable. Hundreds of thousands of people were homeless, jobless and their

stateless. They were compelled to leave their lands, their house and family members.

Many people were forced to be refugee. Particularly the Hindu communities were the

core affected people by this Act.

Keywords: Vested Property, Hindu, Law, Communalism, Enemy, Mass Migration.

Looking back in the History

If we look back in the history, we see that before the independence of

Bangladesh in 1971, this act was known as the Enemy Property Act and is still

referred to as such in common parlance. This law allowed the Government to

confiscate property from individuals it deems as an enemy of the state. The act is

criticized as a tool for appropriating the lands of the minority population. From the

history we are known of some prominent cases regarding the confiscation under the

law of Vested Property.

For example,

i) Mr. Dhirendra Nath Dutta, the veteran politician from Comilla, freedom

fighter against the British Raj, and a member of the then-Pakistan

Constituent Assembly, raised the first voice of protest in the Parliament

against imposition of Urdu as the only state language of Pakistan and

demanded Bangla be recognized as a state language.

After dedicating his whole life to the people and fighting to his last breath

for the cause of the country, Shaheed Dhirendra Nath Dutta was brutally

tortured and killed along with his son Dilip Dutta by Pakistani Armies in

1971 at Comilla Cantonment. The tiny, token village property left to his

family after he had donated the rest of his landed property for welfare and

educational purposes in his village Ramrail in Brahmanbaria district was

grabbed by a group of people under the pretext of ‘vested property.’ In

response to the case filed by his family members in the Sub judge court of

Brahmanbaria, the court demanded that the family produce Shaheed

Dhirendra Nath Dutta’s death certificate, an impossibility in the case of a

liberation war martyr.

ii) The family property of Nobel Prize winning economist Amartya Sen had

been confiscated by the Pakistan government. In 1999, the Bangladesh

government announced that it was investigating opportunities to return the

property to Sen's family.

iii) Other eminent personalities such as Masterda Surya Sen, who dedicated his

life to the freedom struggle against the British Raj, Mr. Amal Sen, a veteran

leader of peasant movement in British India who because of his

involvement in the political struggle for freedom and democracy spent

about twenty years in Pakistani prison, and Mr. Barin Mazumder, the

renowned classical artist who devoted his life to developing the music and

culture of this country, had their properties listed as enemy properties by the

Pakistani administration.

Prfessor Abul Barkat’s Seminal Work

A seminal work was published in 1997 by Professor Abul Barkat of Dhaka

University, “Inquiry into Causes and Consequences of Deprivation of Hindu

Minorities in Bangladesh through the Vested Property Act.” This demonstrated that

925,050 Hindu households (40% of Hindu families in Bangladesh) have been affected

by the Enemy Property Act. This included 748,850 families dispossessed of

agricultural land. The total amount of land lost by Hindu households as a result of this

discriminatory act was estimated at 1.64 million acres (6,640 km²), which is

equivalent to 53 per cent of the total land owned by the Hindu community and 5.3 per

cent of the total land area of Bangladesh.

The survey also showed that the beneficiaries of the land grab through the act cut

across all party lines. The political affiliation of direct beneficiaries of appropriated

property was:

Bangladesh Awami League = 44.2%

Bangladesh Nationalist Party (BNP) = 31.7%

Jatiya Party = 5.8%

Jamaat-e-Islami = 4.8%

Others = 13.5%

The greatest appropriation of Hindu property took place immediately after

independence during the first Awami League government (1972–75) and during the

first period of rule of the Bangladesh Nationalist Party (1976-1980). Dr Barkat's work

also showed that since 1948, 75% of the land of religious minorities in East Pakistan

and subsequent Bangladesh had been confiscated through provisions of the act.

Dr Barkat also emphasized that less than 0.4% of the population of Bangladesh has

benefited from the Enemy Property Act, demonstrating that this law has been abused

by those in power through corruption, with no demonstrated sanction by the

population at large.

Vested Property Act: Evaluation, Paradox

and Missing Numbers

In this section, we will try to expose the evaluation and paradox as well as the

missing numbers of Hindu population by the impact of this law. This draconian was

evaluated from the origin of partisan of this subcontinent into India and Pakistan in

1947 based on the controversial “Two Nation Theory”, which was promulgated by the

Pakistani Leader Muhammad Ali Jinnah.

Communalism and Communal Legacy

It is a great historical reality of Bangladesh that the people of this area lived in

a congenial and peaceful atmosphere for centuries. Both Muslims and Non-muslims

lived side by side in harmony and enjoyed their rights equally. Both Muslims and

Hindus dreamt together of their common bright future, fought against their common

enemies together. Neither Muslims nor Hindus ever thought of leaving their historic

motherland just because the state executive was of their religion (no matter Muslim

Sultan/Nawab or Hindu Raja ruling his motherland.

This peaceful atmosphere started waning with the inception of the Britishers’ “divide

and rule” policy in Bengal. The division of Bengal in 1905 and acceptance of “Two

Nation Theory” as main political doctrine in the late 1930s, laid the final stone to

formulate Hindu-Muslim issue as a political criteria.

Communalism

Development of the ActDisturbe

d Persons Rehabilit

ation Ordinan

ce

Enactment of Enemy Property Act

From Requisition of Property Act to

Administration of Evacuees Property

Act

Old Wine in a New Bottle

The first event i.e., division of Bengal (1905) popularly known as

“Bangabhanga” was a shrewd political decision made by the Britishers to escalate the

division among the Bengalees and divert in growing expectation of freedom from the

colonial rule. The defeat of Russia against Japan, emergence of Germany as a United

and rapidly developing country, emergence of USA as a superpower on the one hand

and infiltration of European ideas on the other hand , played important role to

influence the newly educated strata of Bengal to intensify their movement for

freedom.

Though at that stage the spirit of freedom movement was mainly limited within the

educated people of large cities and social elites, the Britishers correctly understood

that if they could not divert the attention to anything else, it would soon lead to a

deep-rooted socio-political movement against their oppressive colonial rule. Bengal

protested vehemently against the division on religious criteria, and the division was

repealed. But by that time the devil of communalism was born and both the Muslims

and Hindus of Bengal were already possessed.

0 Divide and Rule Policy

1 Division of Bengal (Bangabhanga) 1905

2 Two Nation Theory (India & Pakistan) 1947

On the other hand, in late 30s, the “two nation theory” was accepted by Muslim

League as its main doctrine of independence. The majority of the people of East

Bengal, the Muslim community, more or less accepted the idea (but they were

conceptually, misled by the active propaganda of Muslim League). Meanwhile, being

instigated by the British, a severe communal riot was staged in Bengal in mid-forties

by the miscreants of both Hindu and Muslim origin which caused enormous sufferings

to the common men. This riot was instrumental, after the creation of India and

Pakistan in 1947, in causing migration of religious groups from one part to other part

on the basis of their religious affinity.

Development of the Act

Requisition of Property Act, 1948

Evacuees Act, 1949-1957

Enemy Property Order (custody &

Registration), 1965

Requisition of Property 1965

The E.P. Enemy Property Order,

1966

The Enemy Property Ordinance, 1969

(emergency provision)

Defense of Pakistan Rules, 1965

Disturbed Persons Rehabilitation Ordinance

1964

Defense of Pakistan Ordinance, 1965

PO 29, OF 1972

The Vested & Non-resident Property

(Administration) Act 1974

The Vested & Non-resident Property (Administration)

(Repeal) Act, 1974

Enemy Property Ordinance (Repeal) (Amendment) Act,

1974

(emergency provision)

Circular No. 1. Dt. 4-11-1993, Ministry of Law

Enemy Property Ordinance (Repeal)

Act, 1974

(emergency provision)

Circular No. 1. A -1/77/156. R.L. Dt. 23-5-

1977, Land Administration & Land

Reforms Division

Memo No. 667 (18) VP- 115/76. Dt. 17-4-1976,

Ministry of Land Administration

and Land Reforms

From Requisition to Administration

In 1947, the then eastern part of Bengal emerged as the eastern province of the

newly created independent state of Pakistan. Dhaka, a district town of the British

Colonial India, became the capital of the newly constituted province of the newly

independent state of Pakistan. An abrupt and emergent demand for accommodation

for the numerous government offices and public servants appeared to be one of the

key problems faced by the then provincial administration. Moreover, to ease the

public life under the changed circumstances of late forties the new province also

required rapid development in the field of communication, commerce, industries,

other supplies and services.

In order to meet all these needs to run the administration and ensure quickening of

development the then government of East Bengal enacted a law titled The E.B.

(emergency) Requisition of Property Act (Act XIII of 1948) as a temporary measure

for a period of three years. The Act created scope of temporary and/or permanent

taking over of any property that had been considered by the administration to be

“needful for the purpose of the state.” Various decisions of the High Court and

Supreme Court provide evidences that the said Act had created opportunities for

malpractices.

Disturbed Persons Rehabilitation

Ordinance

In January 1964 the holy hairs of the prophet Hazrat Muhammad (pbuh)

preserved in the holy shrine of Hazrat Bal in Shreenagar, the capital of Indian state of

Kashmir, was stolen by some miscreants. A communal disturbance was provoked in

the East Pakistan accordingly. The undesired situation was brought under control

within the shortest possible time. However, six months after the incidence was over,

the Government of East Pakistan hurriedly promulgated an Ordinance titled “The East

Pakistan Disturbed Persons Rehabilitation Ordinance 1964, Ordinance 1 of 1964”

with apparently of speedy rehabilitation of affected persons by disturbance.

Thus, the Disturbed Persons Rehabilitation Ordinance was a prelude to Enemy

Property Act. In the name of speedy rehabilitation of persons (minority) affected by

the civil disturbance and for the protection of property of the minority community in

the then East Pakistan, the Ordinance introduced restriction on transferring of any

immovable property of minority community without permission of the competent

authority. The relief and rehabilitation commissioner of the province had the

competence to allow higher amount. The ordinance also defined the legal meaning of

transfer as sale, exchange, gift, will, mortgage, lease, sublease or any other manner of

transfer or change of management through a power of attorney.

Thus, all the minority community property owners in East Pakistan had been deprived

of their ownership of property right during 1964-1968 as two basic components of

ownership right (a) right to ensure the title of his or her property, (b) right to transfer

(including sell, gift, will, entrust with power of attorney etc.) became void during that

time.

Indo-Pak war of 1965, Enactment of Enemy

Property Act and its Genesis

On September 6, 1965, a war broke out between Pakistan and India. An

Ordinance called the Defense of Pakistan Ordinance (Ord. XXIII of 1965) was

promulgated to provide special measures to ensure the security, the public safety,

interest and the defense of the state. Since the country was threatened by war,

emergency was also proclaimed throughout the country. Under the provisions of

emergency powers and the defense of Pakistan Ordinance, the Government framed

Defense of Pakistan Rules (DPR) and under the rules the DPR the Government of

Pakistan made an executive order on September 9, 1965 named Enemy Property

(custody and registration) Order II of 1965. There was a cease fire on September 22,

1965 and Indo-Pak War came to an end after the Tashkhent Declaration.

The East Pakistan Government also made an Order in 1966 under Rule 161

titled the East Pakistan Enemy Property (Lands and Buildings) Administration and

Disposal Order of 1966. Though the war between Pakistan and India came to an end

after Tashkhent Declaration, there existed a controversy regarding the question

whether there had been an ‘end of the war time situation’ between Pakistan and India

in the absence of a formal Peace Treaty. Using that controversy, both the central and

provincial Governments continued to keep the aforesaid Orders operative by

amending them from time to time.

The Enemy Property (custody and registration) Order of 1965 consisted of the

following major parts:

India is declared as enemy country (sinse Pakistan and India were at the

state of war with each other).All interests of enemy, i.e., that is the

nationals/citizens of India, those residing in the territory

occupied/captured/controlled by India- in the firms, companies as well as in the lands and buildings situated in

Pakistan to be take over by the custodian of Enemy Property for control

or management.The benefits arising out of trade or

business or lands and buildings should not go to the enemy, so that it may not

affect the security of the state of Pakistan or impair its defense in any

manner.

In March 1966, two months after the proclamation of the East Pakistan Enemy

Property (Land and Building) Order 1966 by the then Governor, the Deputy Custodian

of Enemy Property issued a circular [Memo No. 55(17)-IX-22/65-EP, dated

14.3.1966] explaining the procedure of taking over possession of the enemy property

and their management. Articles 8 and 9 of the circular clarified the position of the

government of East Pakistan (as well as Pakistan) regarding Muslim citizens of

Pakistan who were residing in India due to some reasons and/or Muslim citizens of

India. The official instruction was that the categories of person mentioned above

should not be treated as the enemies. Though according to the legal definition of

enemies proclaimed by DPR, the persons belonging to the above mentioned category

automatically fall in the category of enemies of Pakistan along with the non-Muslim

enemies.

Transformation of Enemy Property into Vested

Property:

Old Wine in a New Bottle

The proclamation of Independence and formation of the Provisional

Government of Bangladesh took place at Mujibnagar on April 10, 1971 and the Order

named Laws of Continuance Enforcement Order, 1971 was promulgated on the same

day purporting to keep in force all the Pakistani laws which were in force in the then

East Pakistan on or before March 25, 1971. In other words, Ordinance No. 1 of 1969,

which does not fit with the spirit of proclamation of independence of Bangladesh,

automatically remained ineffective in the new state. Bangladesh was no a successor

state of Pakistan. On the contrary, Bangladesh established itself by waging a war of

Independence against Pakistan.

Immediately after liberation, the Bangladesh Government enforced, on 26th March

1972, the Bangladesh Vesting of Property and Assets Order, 1972 (Order 29 of 1972).

By this order, the properties left behind by the Pakistanis and the erstwhile

‘enemy properties’ were combined to a single category. However, in 1974, the

Government passed the Enemy Property (continuance of) Emergency Provisions

(Repeal) Act, Act XLV of 1974, repealing Ordinance I of 1969. But despite the fact of

repealing Ordinance I of 1969 under Act XLV of 1974, all enemy properties and firms

which were vested with custodian of enemy property in the then East Pakistan

remained vested in the Government of Bangladesh under the banner of Vested

Property. At the same time, Government also enacted another law, namely the Vested

and Non-resident Property (Administration) Act (Act XLV) of 1974.

This Act was enacted to provide the management of certain properties and assets of

the persons who are non-residents of Bangladesh or have acquired a foreign

nationality. Though the principal aim of the Act XLVI of 1974 was to identify and

take over the properties of those residents who left Bangladesh during/immediately

after liberation war and/or took foreign citizenship, in practice this Act XLVI of 1974

was also widely used against Hindu minorities who had no connection with Pakistan

for quite valid and obvious reasons. All the Acts prior to Ordinance XCIII of 1976

empowered the Government only to become the custodian and to preserve enemy

property in contemplation of arrangements to be made in the conclusion of peace with

India. But the Ordinance XCIII of 1976 made the Government owner of Vested

properties instead of protector of the same.

Thus, the Government encroached the right of ownership, which is a gross violation of

the existing laws pertaining to the right to private ownership. These steps undertaken

by the military dictator had several dimensions, all related to the strengthening of the

political-based of the vested groups.

Paradoxes related to the Vested Property

Act

Paradox One:

It may be recalled from our previous analyses that the term “enemy”, as here

related, has its root in the Defense of Pakistan Rule of 1965 and in the East Pakistan

Enemy Property (lands and buildings) Administration and Disposal Order of 1966. On

March 23rd, 1974, the Government of Bangladesh passed two Acts in this connection.

The first of these two repealed the relevant Enemy Property Ordinance of Pakistan,

and vested the properties already enlisted an ‘enemy properties’ in the Government,

Paradox

One: Vesting of Properties continue even in the absence of legal basis.

Paradox

Two: Bangladesh is at war with India since 1965.

i.e., the management and administration of previous ‘enemy properties’ were

entrusted with the government of Bangladesh.

The second Act, on the other hand, brought the properties of Non-residents under the

vested category. This second Act created scope for fresh enlistment of some properties

including the properties of religious minorities residing in India, though this Act was

not intended exclusively for the religious minorities.

Paradox Two:

People’s Republic of Bangladesh is neither a part nor a successor of Pakistan. It

served its ties with Pakistan through its heroic liberation struggle and achieved

independence on 26th March, 1971. After the achievement of our independence,

neither Bangladesh nor India waged/declared war against each other. So, logically, the

enemy of Pakistan (i.e., India) cannot be an enemy of Bangladesh. But by virtue of the

continuance enforcement order promulgated on 10th April 1971, the entire laws

operative in the then Pakistan on or before 25 th March 1971, remained valid in the

People’s Republic of Bangladesh.

Though the Enemy Property Act of Pakistan was repealed/amended/renamed through

various Acts/Ordinances enacted/promulgated after the Independence of Bangladesh,

no Government of Bangladesh so far repealed the effectiveness of the Defense of

Pakistan Ordinance (XX III of 1965). As a result, Bangladesh still remains at a state of

war with India.

VPA and Constitution of Bangladesh

The Vested Property Act is anti-constitutional, because there are some laws

which are against the constitution. The constitution of Bangladesh are pledged to

establish- “a society in which the rule of law, fundamental human rights, equality and

justice to all citizens.

Article 7 states that, “this constitution is, as the solemn expression of the will of

the people, the supreme law of the Republic and if other law is inconsistent

with the constitution that other law to the extent of inconsistency be void.”

Article 27 provides that, “all citizens are equal before the law and are entitled

to equal protection of law.

Article 28 states that, “the state shall not discriminate against any citizen on the

grounds only of religion, race, caste, sex or place of birth.

So, we can see that, the Vested Property Act has violated the constitution in

multifaceted terms:

Firstly , the Act coined the term that India would be considered as enemy and

the property will be as enemy property. Though Pakistan and India both were

engaged in war.

Secondly , the Act has enlisted and taken over the properties to the custody by

the government in the name of ‘vested property.’

Thirdly , though Bangladesh has changed the name from ‘enemy’ to ‘vested’,

but the internal factors were not changed. Thus, Bangladesh becomes the

‘dejure’ owner of the lands.

Aftermath: Missing Numbers & Socio-

Economic Loss

Mass out-migration of Hindu population (mostly to India) during mid 1960s

and onward is a reality beyond doubt. Among the various factors responsible for such

mass out-migration of Hindu population, the effects of Enemy Property Act and

Vested Property Act were important ones.

The exact effect of all these factors (e.g. communal riots, Indo-Pak war of

1965, Enemy and Vested Property Acts) is difficult to quantify due to lack of relevant

reliable information. Thus, an attempt has been made to estimate the missing Hindu

population using appropriate assumptions. The “missing Hindu population” has been

defined as the difference between the size of Hindu population assuming “no out-

migration.” Attempt has been made to estimate the missing Hindu population for three

periods: 1964-1971, 1971-1981, and 1981-1991.

According to the information in the population census, the average annual growth

rates of the Muslim population was 3.13 percent for 1961-1974, 3.08 percent for

1974-1981, and 2.20 percent for 1981-1991 periods. On the other hand, the average

annual growth rates in the Hindu population under “no-out migration” situation would

have been 2.72 percent during 1964-1971, 2.68 percent during 1971-1981 and 1.92

percent during 1981-1991. Prior to this situation, Hindu population size was

drastically decreased to 9.2 million in 1951 compared to 11.7 million in 1941.

The sufferings of the then Hindus in East Bengal had multiple dimensions:

Movie Review: Earth

Deepa Mehta's 1947: Earth is another partition saga. This is the second in her

trilogy of films, Fire, Earth, and Water. It's based on Bapsi Sidhwa's Ice Candy Man.

The film begins with the British finally preparing to quit their empire in India and the

searing process of splitting British India into Independent India and Pakistan is about

to begin. Lenny (Maia Sethna) is an eight-year-old Parsee girl who is growing up rich

in pre-partition Lahore in 1947, enjoying the warm, enveloping life that loving parents

and a filial household staff of four brings. Lenny travels daily to the nearby Queens

Gardens with her beautiful Ayah (nanny), Shanta (Nandita Das), and a young Hindu

woman with the kind of curves and smile that ensures a constant supply of eager male

suitors. These men are a mixed bunch: Hindus, Muslims and Sikhs, and similarly the

staff-members serving Lenny and her well-heeled family are a happy collection of the

religious groups represented in India.

It is an entirely pleasing world. This world is inhabited by her beloved Ayah, Shanta,

by Imam Din, the genial cook (Kulbhushan Kharbanda), by Dil Navaz, (Aamir Khan),

the Ice Candy Man, a rogue, who is Lenny's hero. Also by Hasan (Rahul Khanna), the

masseur, who invents oils made from pearl dust and fish eggs and by her precocious

cousin, Adi. For Lenny, the trouble first appears in her Lahore home when a quarrel

erupts between Mr. Singh (Gulshan Grover), a Sikh neighbor and Mr. Rogers, a

British Inspector General of Police, who have come to dine with her parents.

Bitter words metamorphose into slogan shouting mobs and arson. Angry Hindus storm

through Lahore one day and angry Muslims the next. The once charming Ice Candy

Man turns into a near madman, one of the many roaming the streets of Lahore with

vengeance and murder on their minds. The Muslim Masseur, Hasan, the only voice of

reason amongst Ayah's admirers, implores the group of friends to stand by each other.

A love affair between him and Shanta, the Ayah, blossoms amidst the carnage and

Lenny is privy to this fragile relationship between a Muslim and a Hindu.

Movie Review: Train to Pakistan

Based on the novel by Khushwant Singh, this is a thought-provoking drama set in the

period immediately after the partition of India. Like Deepa Mehta's controversial

Earth, the emphasis is on the tensions that arose between the subcontinent's various

ethnic groups following independence in 1947. In this case, director Pamela Rooks

concentrates on the events that spark gang warfare between the dominant Sikhs and

the Muslim minority in the small Punjabi town of Mano Majra. The political themes

aren't always easy to follow, but the cast members, led by Mohan Agashe, turn in

committed performances and Rooks handles her own script with care.

Plot Summary

Drama set during the early years of India's independence. The peaceful co-existence

of Sikhs and Muslims in a small Punjab community is threatened by the news of

political unrest in other parts of the country.

Cast and crew

Cast

Hukum Chand: Mohan Agashe

Jagga: Nirmal Pandey

Jailor: Rajit Kapur

Nimmo: Smriti Mishra

TBC: Divya Dutta

TBC: Mangal Dhillon

Crew

Director: Pamela Rooks

Annexation

[Mass migration during the Partisan of India and Pakistan in 1947]

At the end, we can conclude that, the law in its implementation has been seen

as a major driver behind the reduction of the Bangladeshi Hindu population, which

has declined from an estimated 30% in 1947, to 17% in 1965 to 16% today,

representing a loss of around 11 million people. Most of this population left for India,

while the more affluent Bangladeshi Hindus leaving due to the act have moved to

USA, Canada, Europe and Australia. It also portrayed the international concern;

Congressman Crowley of the Bangladesh-American caucus has called for the repeal

of the act, as have several Bangladeshi politicians and human rights activists.