Star Law Analysis
Land Administration Policy
Inefficiencies and malpractices
If we evaluate the policy of land administration in Bangladesh in the wider political and economic context, we will notice that the way land is currently administered remains firmly rooted in practices established during the colonial era. The British, from the outset, gave high priority to a centrally controlled management system that was designed to maintain political control and secure a steady source of state finance. Relatively little has been changed in the post-independence era. Attempts at re-distributive reform through establishment of land ceilings have been a feature during both the Pakistan and Bangladesh periods. But whilst ostensibly designed to place land in the hands of the tillers and to return water bodies to those who fish them, these have largely been circumvented by the wealthy and the powerful.
High population densities and increasing fragmentation of holdings mean, in any case, that the scope for re-distribution declines as time passes. Tenants' rights, including security of tenure, are enshrined in legislation. But these are currently almost invariably ignored in practice, and may offer some scope for intervention.
Measures are also in place promising the landless access to government land created by alluvion, and a range of water bodies. NGOs concerned with the land issue have tended, in recent years, to focus their attention on the different means by which these rights may, in practice, be secured.
If we go through the land policy and administration timeline, we will see that in 1793 the Permanent Settlement Act vested rights to land in a class of zamindars. Whilst intended to usher in the re-organisation of agriculture along capitalist lines, this had the actual effect of creating multiple-layers of sub-tenants. In 1882 the Transfer of Property Act, the forerunner relevant to present registration procedures, was passed. From 1888 to 1940 a Cadastral Survey (CS) of undivided Bengal created the original record of land rights. This is often still accepted as evidence by modern courts. In 1908 the Registration Act established land registers kept by the sub-registrar, an official under the Ministry of Law. They assess and collect “ad valorem” based registration fees, stamp duty and transfer tax, and provide deeds relating to the transfer of land. 90,000 cadastral maps covering the whole of contemporary Bangladesh were published in 1927. These are still considered the most reliable cartographic record by modern courts. In 1946 the Tebhaga sharecroppers' movement campaigned for reforms in ratios and procedures governing division of produce. But nobody now really represents their interests or carries the movement forwards.
In 1947 Pakistan continued with a version of the net asset system but this declined in importance with reduced frequency of settlements and poor maintenance of land records. In 1950 Zamindari system was abolished. Control of land was passed to the Revenue Department, which subsequently becomes the Ministry of Land. In 1951 East Bengal State Acquisition and Tenancy Act (EBSATA) 1951 promoted the goal of retaining the agricultural character of land by giving cultivators first right of purchase and prohibiting other use; but the large number of exceptions and poor enforcement diluted impact. A land ceiling of 33.3 acres was imposed. From 1956 to 62 a State Acquisition Survey was conducted based on the CS blueprint and in 1961 land ceiling was raised to 125 acres. In 1965 survey and revisional settlement operation commenced, but progress was very slow and by 1995 it had only been completed in 10 percent of all thanas.
In 1972 a land ceiling of 33.3 acres was re-established and various presidential order provided for the distribution of khas land amongst the landless. It was expected that 2.5 million acres of excess land would be released, but in reality there was far less. In 1976 a variety of land related charges were consolidated into the Land Development Tax, which covers the whole country except CHT, but deficiencies in the record system mean individual holdings cannot be checked, and switches to more heavily taxed non-agricultural uses frequently go unrecorded. In 1984 the Land Reform Ordinance limited future land acquisitions to 21 acres whilst retaining present ceilings. Benami (ceiling avoiding) transfers to relations were outlawed, but again evasion was easy. Legal recognition to the rights of sharecroppers was given for the first time and sharecropping was established as the only admissible form of tenancy contract.
In late 1980s Muyeed Committee recommended that functions of Land Registration (sub-registrar) and record (Tehsil) be brought together in a single office at field level but this was ignored. In 1988 cluster village programme resettled landless people on state land, but only 800, with some 32,000 households, have been formed by 1996. In 1989 Board of Land Administration split into Land Appeals Board and Land Reforms Board to deal with the ever increasing volume of quasi-judicial appeals. In 1991 a land administration manual laid down detailed instructions regarding inspection and supervision of Union and Thana land offices. In 1997 new Agricultural Khas Land Management and Settlement Policy was introduced. In 1998 total khas land was found to be 0.75 million acres (or 3% of arable land area). But the actual amount remains unclear as a result of de facto private control arising from informal local settlements.
The present day administration of land splits into four different functions, divided between two Ministries. The Directorate of Land Records and Surveys (DLRS) in the Ministry of Land conducts cadastral surveys, from which it produces mouza (revenue village) maps showing individual plots of land and khatian (individual land record certificate). The Land Reform Board, also in the Ministry of Land, has a number of functions that it discharges through Upazilla land offices and Union Tehsil offices. It administers khas (public) land, and manages abandoned and vested property. It updates maps and land records between surveys, and sets and collects the Land Development Tax. It is also formally responsible for the implementation of land reform legislation and the implementation of tenant's rights.
The Land Appeals Board (again in the Ministry of Land), is the highest revenue court in the land, serving as the final arbiter in matters of khas land, changes in records, plot demarcation and taxation which cannot be resolved at lower levels. As such, it represents the final link in a chain running upwards from the Assistant Commissioner (Land) and the Nirbahi Officer at the Upazilla, through the Additional Deputy Collector (Revenue) and the Deputy Revenue Collector at the district. Finally, the Department of Land Registration in the Ministry of Law, Justice and Parliamentary Affairs records land mutations arising through sale, inheritance or other forms of transfer and reports changes to the Ministry of Land as well as collects the Immovable Property Transfer Tax.
Amin and two chainmen are responsible to draw revised mouza map showing changes in area, location and characteristics of land followed by demarcation of boundaries. These are temporary junior staff. Insecurity and low pay affect their morale, performance, accuracy and reliability. Besides, they have to depend on the local elite for board and lodging during season and are thus open to their influence.
Display of notices and beating of drums summons owners, neighbours and interested parties to khanapuri at which each claimant presents his/her case and Amin fills up the columns of the khatian form giving plot number, khatian number, classification of land that affects land revenue, area, crops grown, name of owner, agricultural practices and this khatian also officially contains information on tenancy since 1984 Land Reform. Again poorly paid field workers are susceptible to bribery here. Besides, in practice tenancy is rarely recorded because of pressure from the rich.
Tehsildar, assisted by clerk, hears from each owner, listens to any disputes and, if satisfied, attests the khatian by signing it in red. Otherwise a re-survey may be ordered. 60 khatians may be attested in a day, but there are particular backlogs at this stage. It may take two years to clear the work of one field season.
Where objections arise, cases are heard by ASO with decisions recorded in violet. Under these circumstances, these mid level staff have few chances for promotion while extra field allowances that used to be provided have been stopped. Naturally this encourages corruption.
ZSO and ASO hear appeals at Upazilla and some are referred on to District level where decisions marked in black. Again long delays are caused by shortage of suitably qualified staff to hear appeals. Map correction, amalgamation and splitting up of jamas (interests) are done by the permanent surveyors and their supporting staff. In documents about to be dispatched for printing, powerful local people often intervene for changes.
Once completed, copies of the ROR are passed to DC, thana and union land offices for land management with originals retained at district under lock and key and records are then updated as a consequence of sale and transfer is done through mutation process. Tehsil registers are not freely open to inspection, but for payment of a small fee, landowners are formally entitled to a certified copy of the ROR and mouza map. In this situation, local officials are unable to keep records updated. If they could, there would be no need for revisional settlement. In practice a substantial bribe must be paid to access registers.
In question of the land transfer process through sale the reality is that some transfers occur on an entirely unofficial basis, perhaps when land is mortgaged, although this is becoming less common. Some buyers may not try to check the AC records first and even if they do, these may well not be up to date. The deed writers and Sub-Registrar allegedly collude to ensure that this step only proceeds if a bribe is paid first, whilst the buyer and seller may also collude to reduce the amount of Immovable Property Transfer Tax (IPTT), which is levied at 10 percent of the sale value. There is no requirement to check the legality of the transaction and it is not uncommon for the same plot to be “sold” to several different buyers, although this is much more frequent in urban areas.
The diversity of ways in which land records may be updated and the problems associated with each give rise to numerous disputes let the rich and the powerful inevitably enjoy the upper hand. Where a decision relating to the recording of land title is disputed, the appeals process starts from Tehsildar and then movers progressively upwards until the appellants and other interested parties either accept the judgement given or lack the resources to proceed further.
Many issues are dealt with in informal local shalish and so never reach the Land Appeals Board. Where suits do enter the formal system, the cost is considerable and suits can take 15-20 years to resolve, with different parties often in possession of documentation from different official bodies. Only the rich and well connected are able to climb all the way to the top.
Where a settlement survey is under operation, appeals passing beyond the Tehsildar are supposed to be heard by the ASO and if not resolved then pass on directly to the district level. All civil court proceedings relating to land should formally be suspended when a settlement is in process, but this would lead to even further delays and is thus generally ignored, adding further confusion by having two channels in operation at the same time.
The author is doing his PhD in School of Law, University of Aberdeen, Scotland, UK.