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1

Law / The Non-Agricultural Tenancy Act,1949

« on: November 14, 2012, 12:54:52 PM »

Definition of improvement:

According to section 64 of the, Non-Agricultural Tenancy Act,1949  the definition of improvement is given bellow. As per this Act the term “improvements” used with reference to a tenancy shall mean any work which adds to the value of the non-agricultural land comprised in the tenancy, which is suitable to such land and consistent with any of the purposes specified in section 4 for which it is being used and which, if not executed on such land, is either executed directly for its benefit, or is, after execution, made directly beneficial to it, and subject to the foregoing provisions, shall include the following, namely:-

(a) laying out of passages or roads,

(b) providing open spaces for ventilation,

(c) providing facilities for taking water,

(d) laying out drainage connections,

but shall not include any work executed by a non-agricultural tenant if it substantially diminishes the value of his landlord's property


Who can posses the rights to make improvements?

According to section 65 of the Non-Agricultural Tenancy Act,1949

a) subject to the provisions of sub-section (2), neither the non-agricultural tenant nor his landlord shall, as such, be entitled to prevent the other from making an improvement in respect of the tenancy

 
b)If both the non-agricultural tenant and his landlord wish to make the same improvement the non-agricultural tenant shall have the prior right to make it, unless it affects another tenancy or other tenancies under the same landlord.

 
Settlement of disputes arising any conflict regarding improvements:

According to section 66 of the Non-Agricultural Tenancy Act, 1949

If a question arises between the non-agricultural tenant and his landlord-

(a) as to the right to make an improvement, or

(b) as to whether a particular work is an improvement,

In that case the Deputy Commissioner may, on the application of either party, decide the question. An appeal, if presented within thirty days from the date of the order appealed against, shall lie to the District Judge from every order passed by the Deputy Commissioner under sub-section (1) and the order passed by the District Judge on such appeal shall be final.

   

Md. Haider Ali

Senior Lecturer

Department of Law

Daffodil International University.

2

Law / About Witness in Evidence Act

« on: June 19, 2012, 06:18:52 PM »

                                                                        Who may testify
 
118. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation.–A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

Examination-in-chief   
137. The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination   
The examination of a witness by the adverse party shall be called his cross-examination.
 
Re-examination   
The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
 
Order of examinations   
138. Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
 
Md. Haider Ali
Senior Lecturer
Department of Law
Daffodil International University.

3

Law / Judicial Notice in Evidence Act

« on: June 19, 2012, 06:14:56 PM »

                                                                     Judicial Notice
A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action.
judicial notice in. the authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rain fall and temperature records, known historic events, or the fact that ice melts in the sun.
When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in court. Ordinarily, facts that relate to a case must be presented to the judge or jury through testimony or tangible evidence. However, if each fact in a case had to be proved through such presentation, the simplest case would take weeks to complete. To avoid burdening the judicial system, all legislatures have approved court rules that allow a court to recognize facts that constitute common knowledge without requiring proof from the parties.
The danger of judicial notice is that, if abused, it can deprive the fact finder of the opportunity to decide a contestable fact in a case. In Walker v. Halliburton Services, 654 So. 2d 365 (La. App. 1995), Johnny Walker fell from a tank truck approximately ten feet to a concrete floor. Walker sought Workers' Compensation benefits for his injuries, and his claim was denied by the Office of Workers' Compensation.
Fact judicially noticeable need not be proved
56. No fact of which the Court will take judicial notice need be proved
Facts of which Court must take judicial notice   

57. The Court shall take judicial notice of the following facts:-

 (1) All Bangladesh Laws:]

(2) [Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]

(3) Articles of War for the Armed Forces:

(4) The course of proceeding of Parliament and of 3[ any Legislature which had Power to legislate in respect of territories now comprised in Bangladesh].

 (5) [Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]

4[ (6) The seals of all the Courts in Bangladesh: the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by any law in force in Bangladesh:]

(7) The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in Bangladesh, if the fact of their appointment to such office is notified in any official Gazette:

( The existence, title and national flag of every State or Sovereign recognized by the Government:

(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette:

(10) The territories 5[ * * *] of Bangladesh:

(11) The commencement, continuance and termination of hostilities between Bangladesh and any other State or body of persons:

(12) The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates 6[ * * *] and other persons authorized by law to appear or act before it:

(13) The rule of the road on land or at sea.

In all these cases and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.

If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.


Md. Haider Ali
Senior Lecturer
Department of Law
Daffodil International University.

4

Law / Dying Declaration in Evidence Act

« on: June 19, 2012, 06:11:33 PM »

                                                                  Dying Declaration
Definition of Dying declaration: Dying declaration is bases on the maxim “Nemo moriturus praesumitur mentire” i.e. a man will not meet his maker with a lie in his mouth. Hearsay evidences are not given any weightage in the courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. Dying declaration is an exception to this rule because if this evidence is not considered very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. Sometimes it the best evidence in such situations. Its admissibility is explained in the section 32 (1) of Indian Evidence Act. According to this section when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made this was expecting death or not  [1]In English law he must be under expectation of death only then this declaration is valid. This declaration is valid both in civil and criminal cases whenever the cause of death comes into question. If we read the various judgments on the admissibility of dying declaration at times various judges have taken diagonally opposite views and different explanations have been offered though the motive in all have been to provide justice to the people. Main thing is that if these declarations seem trustworthy to courts these retain their full values. Most important point of consideration is that victim was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind till the recording of the statement finished. Merely stating that patient was fit will not serve the purpose. This can be best certified by the doctor who knows best about the condition of the patient. But even in conditions where it was not possible to take fitness from the doctor, dying declarations have retained their full sanctity if there are other witnesses to testify that victim was in such a condition of the mind which did not prevent him from making statement. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration.  [2]Second most important point to be considered is that it should not be under the influence of any body or prepared by prompting, tutoring or imagination. Even if any one of these points is proved then dying declaration is not considered valid. If it becomes suspicious then it will need corroboration. If a person has made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are contradictory than these lose value. Best form of dying declaration is in the form of questions and answers. If it is in the form of narrations it is still good because nothing is being prompted and every thing is coming as such from the mind of the person making it. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of declaration is valid. Whenever this is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. It is preferred that it should be written in the vernacular which the patient understands and speaks. It is best that it is recorded by the magistrate but if there is no time to call the magistrate due to the deteriorating condition of the victim it can be recorded by anybody e.g. public servant like doctor or any other person. Courts discourage the recording of dying declaration by the police officers but if there is no body else to record it dying declarations written by the police officers are also considered by the courts. If these are not recorded by the magistrate it is better that signatures of the witnesses are taken who are present at the time of recording it. In burn cases usually it is debated the person is not capable of making dying declaration due to the effect of burns or due to the narcotic sedation given to treat burns. But Gupta and Jani have opined that neither effect due to burns nor the drugs used to treat burns victims conventionally affects the higher functions. Therefore they safely concluded that compos mentis is not affected either by burns or by its treatment [3]. If the person making it is imbecile or is of tender age and was incompetent to testify due to this reason, that dying declaration would not be valid [4] As a measure of safety original dying declaration should be sent to the court like FIR and its Photostat should be kept in the case file [5]. It does not matter that the person has put a thumb impression or signed it if this is duly witnessed. But in the court question does arise if a person who can sign puts a thumb impression. If a literate person putting the thumb impression is in such a condition that he cannot sign e.g. he was lying in the bed and could not get up to sign it or it was inconvenient for him to put thumb impression due to his condition (intravenous drip on the back of hand) or injury e.g. injury on the right hand in a right handed person. In the absence of such conditions if there is thumb impression and this is not witnessed by disinterested persons a doubt may be created whether this was done after the person died to take revenge by some interested person. There is usually no time limit that dying declaration becomes invalid if the person died after many months after making the declaration. Cases are on record when it was considered valid after 4 months. Even the HISTORY given by the injured recorded by the doctor in the case file has been considered as dying declaration by the honorable Court if it is mentioned that the patient told in the history that incident occurred in such and such manner which was responsible for the death of the victim [6]. Hence it is important that if such history is written as narrated by the victim it should be recorded carefully, keeping in mind the mentioned finding of the court. First information report got recorded by the police has been taken as dying declaration by the Honorable Supreme Court, when the person did not survive to get his dying declaration recorded [7]. But when patient remained admitted in hospital for sufficient days i.e. for 8 days FIR cannot be treated as dying declaration [8]. A suicidal note written found in the clothes of the deceased it is in the nature of dying declaration and is admissible in evidence under Section 32 of Indian Evidence Act [9]. 


Md. Haider Ali
Senior Lecturer
Department of Law
Daffodil International University.

5

Law / Leading Question and estoppel in Evidence Act

« on: June 19, 2012, 06:08:59 PM »

                                                                       Estoppel
A rule of evidence whereby a person is barred from denying the truth of a fact that has already been settled. Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied."
This term appears to come from the Old French estoupail (or variation), which meant "stopper plug", referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop" which comes from the Old French term estopper, meaning "stop up, impede."
Section 115 of the Evidence Act,1872 provides that, when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration

A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

                                                                   Leading questions

141. Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.
When they must not be asked
142. Leading questions must not, if objected to by the adverse party be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
When they may be asked
143. Leading questions may be asked in cross-examination.

Md. Haider Ali
Senior Lecturer
Department of Law
Daffodil International University.

6

Law / Burden of proof in Evidence Act

« on: June 19, 2012, 06:05:08 PM »

                                                      Definition of burden of proof:

The burden of proof (Latin: onus probandi) is the obligation to shift the accepted conclusion away from an oppositional opinion to one's own position.
The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges. This is a statement of a version of the presumption of innocence that underpins the assessment of evidence in some legal systems, and is not a general statement of when one takes on the burden of proof. The burden of proof tends to lie with anyone who is arguing against received wisdom, but does not always, as sometimes the consequences of accepting a statement or the ease of gathering evidence in its defense might alter the burden of proof its proponents shoulder. The burden may also be assigned institutionally.
He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party. However the incidence of burden of proof is affected by common law, statute and procedure.
Burden of Proof is the legal obligation on a party to prove the allegation made by him against another party. The burden of proof in a case lies with the plaintiff unless defendant counter with a factual claim based on the allegation, that is when categorical acceptance is made by the defendant and he is disputing a factual position.
Burden of proof
101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations

(a) A desires a Court to give judgment that B shall be punished for a crime which A says
B has committed.A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true.A must prove the existence of those facts.

On whom burden of proof lies
102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.

Burden of proving that case of accused comes within exceptions
 
105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the 2[ * * *] Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations

(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.The burden of proof is on A.

(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control.The burden of proof is on A.

(c) Section 325 of the  Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section 335 lies on A.

Md. Haider Ali
Senior Lecturer
Department of Law
Daffodil International University.

7

Law / Admission and Confession in Evidence Act.

« on: June 19, 2012, 06:02:51 PM »

                                                                General Concept of Confession

The term confession is not defined anywhere in  Evidence Act. But it is thought that an Admission in case of a criminal matter is Confession.  The same was stated by Stephen in his digest that that a confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed the crime.  However, Privy Council, in case of Pakala Narayan Swami vs Emperor AIR 1939, did not accept this definition. In this case Lord Atkin observed that no statement that contains self exculpatory matter can amount to a confession. Further, a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An offence of a gravely incriminating fact, is not in itself a confession. For example, an admission that the accused is the over of and was in recent possession of the knife or revolver which caused death with no explanation of any other man's possession, is not a confession even though it strongly suggests that the accused has committed the murder.

The decision by Privy Council in Pakala Narayan Swami case was approved by SC in the case of Palvinder Kaur vs State of Punjab, AIR 1952. In this case, Palvinder was on trial for murder of her husband along with another, who all the time remained absconding. In her statement to the court, her husband was hobbyist photographer and used to keep handy photo developing material which is quick poison. On this occasion, he was ill and she brought him some medicine and the medicine was kept near the liquid developer and by mistake swallowed the liquid and died. She got afraid and with the help of the absconder, she dumped the body in the well. The statement, thus, partially admitted guilt and partially showed innocence. Here, the lower courts sorted out the exculpatory part and convicted her on the inculpatory part. However, SC rejected this approach and held that the rule regarding confession and admission is that they must either be accepted or rejected as whole.

Difference between Confession and Admission
This brings us to the main difference between admission and confession. An admission is a statement that may or may not be a conclusive evidence of a fact in issue or relevant fact but to be a confession, the admission must conclusively prove the guilt of the maker of the admission.  For example, in the case of Veera Ibrahim vs State of Maharashtra, AIR 1976, a person being prosecuted under Customs Act told the customs officer that he did not know that the goods loaded in his truck were contraband nor were they loaded with his permission. SC held that the statement was not a confession but it did amount to admission of an incriminating fact that the truck was loaded with contraband material.

Thus, a statement which may not amount to confession may still be relevant as admission. Only a voluntary and direct acknowledgment of guilt is confession, but when a confession falls short of actual admission of guilt, it may nevertheless be used as evidence under Section 21.

Regarding admission that contains multiple sentences, Justice Thomas, of SC stated the law in the case of Lokeman Shah vs State of WB, AIR 2001 as follows -
The test of discerning whether a statement recorded by a judicial magistrate under Section 164 of CrPC, is confessional or not is not to determine it by dissecting the statement into different sentences and then to pick out some as not inculpative.The statement must be read as a whole and then only the court should decide whether it contains admissions of his inculpatory involvement in the offence. If the result of that test is positive the the statement is confessional otherwise not.

Classification of Confessions:
A confession may occur in any form. It may be made to the court itself, or to anybody outside the court. In this manner, a confession may be divided into two categories - Judicial Confession and Extra-judicial Confession.

Judicial Confession -  A judicial confession is a confession that is made in front of a magistrate or in a court. It may be made in the course of a judicial proceeding.
Extra - Judicial Confession -  An extra-judicial confession is a confession that is made by the party elsewhere than before a magistrate or in a court. It is admissible in evidence under Section 21 and it is proved by the witnesses who had heard the speaker's words constituting the confession.

A confession ma even consist of conversation with oneself. For example, in case of Sahoo vs State of UP, AIR 1966, an accused who was charged with murder of his daughter in law with whom he was always quarreling was seen on the day of the murder going out of the home saying words to the effect, "I have finished her and with her the daily quarrels.". The statement was held to be a valid confession because it is not necessary for the relevance of a confession that it should communicate to some other person.

Relevancy of Confessions:
Confessions when Not Relevant
A confession becomes irrelevant and thus, inadmissible, in situations described in the Sections 24, 25, and 26.
1. Section 24 - Confession caused by inducement, threat, or promise from a person in authority - Confession made by an accused is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by inducement, threat, or promise, made by any person in authority and that in the view of the court such inducement, threat, or promise gives reasonable ground to the person that by making the confession he would gain any advantage or avoid any evil of a temporary nature in reference to the proceedings against him.


Md. Haider Ali
Senior Lecturer
Department of Law
Daffodil International University.

8

Law / Law of Evidence

« on: June 19, 2012, 05:59:28 PM »

                                                 confession and admission

Definition of Evidence:
Evidence is ground for belief or disbelief; data on which to base proof or to establish truth or falsehood and  a mark or sign that makes evident; indication his pallor was evidence of ill health. It is a (Law) Law matter produced before a court of law in an attempt to prove or disprove a point in issue, such as the statements of witnesses, documents, material objects, etc. It turns queen's (king's, states) evidence (of an accomplice) to act as witness for the prosecution and testify against those associated with him in crime. In evidence on display; apparent; conspicuous her engagement ring was in evidence

Definition of confession:
In the law of criminal evidence, a confession is a statement by a suspect in crime which is adverse to that person. Some authorities, such as Black's Law Dictionary, define a confession in more narrow terms, e.g. as "a statement admitting or acknowledging all facts necessary for conviction of a crime," which would be distinct from a mere admission of certain facts that, if true, would still not, by themselves, satisfy all the elements of the offense.
Definition of Admission:
Admission means voluntary Acknowledgment made by a party to a lawsuit or in a criminal prosecution that certain facts that are inconsistent with the party's claims in the controversy are true. An admission may be express, such as a written or verbal statement by a person concerning the truth, or it may be implied by a person's conduct. If someone fails to deny certain assertions which, if false, would be denied by any reasonable person, such failure indicates that the person has accepted the truth of the allegations.
An admission is not the same as a confession. A confession is an acknowledgment of guilt in a criminal case. Admissions usually apply to civil matters; in criminal cases they apply only to matters of fact that do not involve criminal intent.
Admission n. a statement made by a party to a lawsuit or a criminal defendant, usually prior to trial, that certain fact are true. An admission is not to be confused with a confession of blame or guilt, but admits only some facts. In civil cases, each party is permitted to submit a written list of alleged facts and request the other party to admit or deny whether each is true or correct. Failure to respond in writing is an admission of the alleged facts and may be used in trial.




Differences between Admission and Confession:
The Evidence Act 1872 deals with the provisions of admission and confession. Section 17-23 and 31 of the Evidence Act 1872 states about the admission and its relevancy and section 24 -30 of the Evidence Act 1872 describes the confession. Going through these sections we may differentiate them as following-
A statement oral or documentary admitting a fact arising from, and relevant to the civil suit is called admission whereas an admission made before the Judicial magistrate by an accused stating or suggesting that he has committed the crime for which he has been made accused.
1. Admission is a matter of civil suit but confession is a matter of criminal case.

2. Admission may be of both kinds i.e. oral or documentary but confession must be oral.

3. Judicial Magistrate takes the confession but he has no power to take admission as he has no jurisdiction over the civil suit. But in case of admission it must be taken by the judge of civil court.

4. All confessions may be recognized as an admission but all admissions are not confession.

5. Admission is a genus whereas confession is a species.

6. An admission may be made from any of the party of the civil suit but a confession must be made by accused.

7. Admission is taken according to the procedure stated in Code of Civil Procedure 1908 whereas Confession is taken according to the procedure stated in section 164 of Code of Criminal Procedure 1898

8. There may be another difference regarding the concern sections of the Evidence Act 1872 about confession and admission. Section 17-23 and 31 of this Act describes about admission whereas section 24-30 describes about cofession.
So, these are the general differences between admission and confession in the light of the Evidence Act 1872.

Md. Haider Ali
Senior Lecturer
Department of Law
Daffodil International University.

9

Law / Land Laws of Bangladesh

« on: June 19, 2012, 05:56:06 PM »

                              Limitation on acquisition of agricultural land

4. (1) No malik who or whose family owns more than sixty standard bighas of agricultural land shall acquire any new agricultural land by transfer, inheritance, gift or any other means.

(2) A malik who or whose family owns less than sixty standard bighas of agricultural land may acquire new agricultural land by any means, but such new land, together with the agricultural land owned by him, shall not exceed sixty standard bighas.

(3) If any malik acquires any new agricultural land in contravention of the provisions of this section, the area of land which is in excess of sixty standard bighas shall vest in the Government and no compensation shall be payable to him for the land so vested, except in the case where the excess land is acquired by inheritance, gift or will.

(4) Compensation for the excess land payable under sub-section (3) shall be assessed and paid in such manner as may be prescribed:

Provided that where such compensation is payable only for a portion of the excess land, the assessment and payment of compensation shall be made for such portion of the excess land as the malik may specify in this behalf.

No benami transaction   

5. (1) No person shall purchase any immovable property for his own benefit in the name of another person.

(2) Where the owner of any immovable property transfers or bequeaths it by a registered deed, it shall be presumed that he has disposed of his beneficial interest therein as specified in the deed and the transferee or legatee shall be deemed to hold the property for his own benefit, and no evidence, oral or documentary, to show that the owner did not intend to dispose of his beneficial interest therein or that the transferee or legatee holds the property for the benefit of the owner, shall be admissible in any proceeding before any Court or authority.

(3) Where any immovable property is transferred to a person by a registered deed, it shall be presumed that such person has acquired the property for his own benefit, and where consideration for such transfer is paid or provided by another person it shall be presumed that such other person intended to pay or provide such consideration for the benefit of the transferee, and no evidence, oral or documentary, to show that the transferee holds the property for the benefit of any other person or for the benefit of the person paying or providing the consideration shall be admissible in any proceeding before any Court or authority.




Ceiling of barga land   

14. (1) No bargadar shall be entitled to cultivate more than fifteen standard bighas of land.
Explanation.- In computing this ceiling, area of any land owned by the bargadar as well as the land cultivated by him as a bargadar and held by him under a complete usufructuary mortgage shall be taken into account.

(2) If a bargadar cultivates land in excess of fifteen standard bighas, the share of the produce due to him as a bargadar in respect of the excess land may be compulsorily procured by the Government by order made in this behalf by the prescribed authority.

Bargadar’s right to purchase   
13. (1) Where the owner intends to sell the barga land, he shall ask the bargadar in writing if he is willing to purchase the land:

Provided that this provision shall not apply where the owner sells the land to a co-sharer or to his parent, wife, son, daughter or son's son or to any other member of his family.

(2) The bargadar shall, within fifteen days from the date of receipt of the offer, inform the owner in writing of his decision to purchase or not to purchase the land.

(3) If the bargadar agrees to purchase the land, he shall negotiate the price of the land with the owner and purchase the land on such terms as may be agreed upon between them.

(4) If the owner does not receive any intimation from the bargadar regarding his decision either to purchase or not to purchase the land within the specified time or if the bargadar informs the owner of his decision not to purchase the land or if the bargadar does not agree to pay the price demanded by the owner, the owner may sell the land to any person he deems fit:

Provided that the owner shall not sell the land to such person at a price which is lower than the price offered by the bargadar.

(5) Where the barga land is purchased by a person other than the bargadar, the barga contract in respect of the land shall be binding upon the purchaser as if the purchaser were a party to the contract.

Penalty   
21. Any person who violates any provision of this Ordinance or the rules or any order of any authority made under this Ordinance or the rules shall be punishable with fine which may extend to two thousand Taka.



Appeals   
17. (1) An appeal shall lie to the prescribed appellate authority against any order, decision or action made or taken by the prescribed authority under any provision of this Ordinance.

(2) An appeal under sub-section (1) shall be filed within thirty days from the date of receipt or knowledge of the order, decision or action appealed against.

(3) The decision of the prescribed appellate authority shall be final.

Md. Haider Ali
Senior Lecturer
Department of Law
Daffodil International University.

10

Law / Land Laws of Bangladesh

« on: June 19, 2012, 05:53:54 PM »

                          Land Survey Tribunal and Land Survey Appellate Tribunal

Sec. 145A Land Survey Tribunal: Sec. 145A (4) A land survey tribunal shall dispose of the suit arising out of the final publication of the last revised record of rights prepared under sec. 144. (5) If any suit arising out of the final publication of the last revised record of rights prepared under sec. 144 is instituted in any Civil Court. (6) Any person aggrieved by the final publication of the last revised record of rights prepared under sec. 144 may, within one year from the date of such publication. or from the date of the establishment of the Land Survey Tribunal.
Sec. 145B Land survey Appellate Tribunal: (5) Any person aggrieved by any judgment, decree or order of the Land Survey Tribunal may, within three months from the date of such judgment, decree or order, prefer an appeal to the Land Survey Appellate Tribunal. (6) An appeal may be admitted within next three months even after the expiry of the period specified in sub-sec. (5).
Sec. 145C. Appeal to the Appellate Division: An appeal from a judgment or order of the LSAT shall lie to the Appellate Division of the Supreme Court only if the Appellate Division grants leave to appeal. Art-103 of the Bangladesh Constitution says Leave to Appeal.
Sec. 145D. Power and Procedure or Tribunals: (1) For the purpose of disposal of suits or appeals, a LST or a LSAT, as the case may be, shall exercise the powers and follow the Procedure under the Code of Civil Procedure, 1908, in respect of the following matters, namely: (a) Summoning (b) Discovery of document (c) requiring evidence on affidavit. (5) The LSAT may, of its own motion or upon an application made to it, by order in writing, transfer, at any stage of the proceedings, any suit from one LST to another LST within the territorial limits of its jurisdiction.
Sec. 145E. Finality of Tribunals’ decisions and orders: The decisions of the LST shall be final.
Sec. 145F. Bar to jurisdiction of Civil Courts: Under sec. 144 shall lie in any civil court within the territorial limits of the jurisdiction for which a LST is established under sec. 145A.
Sec. 145G. Power to abolish tribunals etc. The Govt. may, by notification in the official Gazette, at any time abolish any LST established under sec. 145A and LSAT established under sec. 145B, and while so abolishing, the Govt. shall in the same notification, specify the courts where the suits, appeals and other proceedings pending in such Tribunal at the time of such abolition shall be transferred to and be disposed of.

11

Law / Land Laws of Bangladesh

« on: June 19, 2012, 05:51:43 PM »

Daffodil International University

Tentative Semester Plan
Department of Law
Program: LL.B (Hon’s), Level: 2 & 3
Code: LL.B-222, Semester: Summer 2012
Course Instructor: Md. Haider Ali.

Statute: State Acquisition and Tenancy Act, 1950

Sl. No.   Chapter   Topic   Number of Class
01   
Preliminary      Introducing session
   Preliminary resume of the course
   General discussion   
01

02   
Permanent Settlement Act       Definition of Permanent Settlement Act
   Scope and objectives of Permanent Settlement Act
   Merits of Permanent Settlement Act
   Demerits of Permanent Settlement Act
   Abolition of Permanent Settlement   

02
03   
Rent Receiver      Definitions who is not a rent-receiver
   Acquisition of all rent receiving interest by the State   
01
04   
Record of Rights      Definition of Record of Rights
   Modes preparation of Record of Rights
   Evidentiary value of Record of Rights    

02
05   Payment of Compensation
      Manner of Payment of Compensation
   Limits and amount of compensation   
01

**   Quiz-1      Based on above topics   
06   
Amalgamation        Definition of  Amalgamation of holding
   Provisions of  Amalgamation and  Subdivision
   Provisions of  Consolidation   
01


07   Alluvion and Delluvion      Definition of Alluvion and Delluvion
   Provisions as to Alluvion and Delluvion   
01
08   
Preemption       Definition of Preemption
   Entitlement of Preemption
   Procedure of the Preemption suit.   
01





09   

Maintenance of Record of Rights      Provisions as to Maintenance of Record of Rights
   Special Provisions as to Maintenance of Record of Rights
   Correction of  Record of Rights
   Revision of Record of Rights   


02
10   
Land Survey Tribunal       Composition of  Land Survey Tribunal
   Powers and Procedures of Land Survey Tribunal
   Appeal against the order of the Land Survey Tribunal   
01

11   Land Survey Appellate Tribunal      Composition of  Land Survey Appellate Tribunal
   Powers and Procedures of Land Survey Appellate Tribunal
   Appeal against the order of the Land Survey Appellate Tribunal   

02
12   
Appeal, Review, Revision      Definition of Appeal
   Provisions as to Appeal
   Limitation of Appeal
   Compensation of termination by the employee   

02
**   Quiz-2      Based on above topics after Quiz Test-1   

 Statute: Non Agricultural and Tenancy Act, 1949

13   
Tenants      Classes of non agricultural Tenants
   Manner of use of non agricultural Land
   Related provisions of non agricultural land   
01

14   
Improvement       Definition of improvement of Improvement
   Rights to make Improvement
   Powers of the collector as to rights of Improvement   
01

 Statute: Land Reforms Ordinance, 1984

15   
Nature and Scope      Nature and Scope of the Land Reform Ordinance ,1984
   Characteristics of the Land Reform Ordinance ,1984   
02

16   

Bargadars
      Who are bargaders
   Rights of the Bargadars
   Termination of barga contract   

02

**   Quiz-3      Based on above topics after quiz Test-2    








Book Recommended

Standard Book: Kabir L,Land Laws of Bangladesh, Ain Prokashan, Dhaka,2010

Reference Book: Khan Ansar Ali, Land Laws of Bangladesh
      M.K. Rakshit: E.B. State Acquisition & Tenancy act. Vols. I, II & III.
      Haque, Nurul, Land Laws of Bangladesh (Bengali)

Basic Statute:  State Acquisition and Tenancy Act, 1950
       Non Agricultural and Tenancy Act, 1949
       Land Reforms Ordinance, 1984
      
Leading Case:
Lopez Vs Madan Mohan Thakur ( 13 M.I.A. 467)
Mohesh Narain Vs Nawbut Pathak(33 Cal. I.C.L.J 437)
Contact: +08801719452743
E- mail: haider@daffodilvarsity.edu.bd
N.B: Presentation and Viva Voce will be held in due time and make up class will be held in case of necessity.
Prepared by:
Md. Haider Ali
Senior Lecturer & Coordinator
Department of Law
D.I.U

12

Law / Re: Rule of Law-traditional & modern concept

« on: March 06, 2012, 05:01:24 PM »

Go a head ...& try to ensure the rule of Law in Bangladesh.

13

Law / Law of the Sea

« on: March 06, 2012, 03:23:06 PM »

                                   THE CONTINENTAL SHELF

The continental shelf concept emerged primarily in 1958, the concept of the exclusive economic zone at the 1973-1982 Conference. Provisions derived from both concepts expressly state that the coastal state has sovereign rights to the non-living resources of the sea-bed and its subsoil within the area of each of the zones. But whereas the continental shelf concept is dependent on the rise of the continental shelf and can basically be applied only up to a certain depth of the sea-bed, the exclusive economic zone's outer limits are determined solely in terms of a distance from the coast (baseline), regardless of the depth of the water (and whether there is a continental shelf or not). A distinction between the exclusive economic zone and the continental shelf zone is therefore necessary for two reasons:
(a) a state party has to proclaim an exclusive economic zone, whereas the continental shelf rights exist for the coastal state independent of any proclamation or occupation, etc.Consequently, a coastal state may exercise sovereign rights to resources of the sea-bed beyond the territorial sea, even where an exclusive economic zone has not been established or where it has not been established to the full extent permitted;
(b) if an exclusive economic zone has been established to the full extent permitted, a continental shelf subject to the coastal state's jurisdiction exists beyond the 200 nautical mile limit, if the topography of the sea-bed displays shelf character. The shelf may not exceed 350 nautical miles from the baseline from which the territorial sea is measured or 100 nautical miles from the 2,500 meter isobath, a line connecting the depth of 2,500 meters. If an exclusive economic zone has been established - and this will be the general rule - two legal regimes exist with regard to the sea-bed subject to coastal state sovereign rights. Part of the shelf (sea-bed) is then subject to the regime of the exclusive economic zone and is governed generally by its provisions, which include reference to continental shelf provisions.To avoid confusion, one should speak of the "sea-bed of the exclusive economic zone" or, synonymously, the "primary sea-bed," and call the sea-bed beyond the limits of the exclusive economic zone the "outer shelf." The "outer shelf" would be governed by an independent legal regime under the application of the provisions of Part VI for the "continental shelf" only. The sovereign rights of the coastal state always include the exploitation of living organisms belonging to sedentary species, drilling, tunneling, and the use of artificial islands, installations, and structures. On the outer shelf beyond the 200 mile limits, the coastal state has no rights with regard to the superjacent waters to the sea-bed and the air space above those waters. It must avoid interference with navigation and other rights and freedoms of other states as laid down in the regime of the high seas. The coastal state must make annual payments or contributions to the Sea-Bed Authority for resources exploited from the outer shelf, beginning five years after the start of production and increasing yearly to a maximum of seven percent of the value or volume of production at the site. The delimitation of the outer shelf is to be undertaken by the coastal state on the recommendation of the Commission on the Limits of the Continental Shelf; corresponding charts and relevant information are to be deposited with the Secretary-General of the United Nations or the Secretary-General of the Authority (charts showing outer limits) and published. The coastal state can exclude compulsory settlement of disputes which might arise from delimitation of the outer shelf where other states have opposite or adjacent coast.


Md. Haider Ali
Senior Lecturer &
Coordinator (Uttara Campus)
Dept. of Law
DIU.

14

Law / Permanent Settlement Act of 1793

« on: December 13, 2011, 12:17:20 PM »

Permanent Settlement Act of 1793
This Act was passed on 1793 and was proposed by Lord Corwallis to earn a minimum revenue for East India Company.



Lord Cornwallis concluded the Permanent Settlement Act of 1793. Permanent Settlement was a grand contract between the East India Company and the Landholders of Bengal (Zamindars and independent Talukdars of all designations). Under this act, the landholders and Zamindars were admitted as the absolute owners of landed property to the colonial state system. Not only those, the Zamindars and landholders were allowed to hold their proprietary right at a rate that never changed. Under this contract of Permanent Settlement, the Government could not enhance the revenue demands on Zamindars.

Earlier, zamindars of Bengal, Bihar and Orissa had officials for collecting revenue on behalf of the Mughal emperor and his representative or Diwan in Bengal. The Diwan would in turn supervise on them so that there is no less or excessive pressure for earning revenue. East India Company was able to win over Diwani or the right to rule Bengal following the victory in Battle of Buxar in 1764. The Company thus had the responsibility of ruling but it lacked the trained administrator, especially with the persons who knew local tradition and custom. As a result the landlords and Zamindars had to deposit the revenue to the corrupted officials of East India Company. As a consequence the revenue had no certain amount. There was constant pressure to exceed the amount as well as the revenue was never used for the social welfare.

The devastating famine of Bengal was caused mainly due to lack of insight of the officials of East India Company. The officials of Company in Calcutta thus understood the importance of supervising of the revenue earning but the question of having incentives over the tax was ignored. Thereby the Governor General Warren Hastings introduced a system of five-yearly inspections and collecting the revenue.

The bad side of this system was the appointed tax farmers absconded with as much money as they could earn within this five years of period. The consequences were disastrous and the Parliament came to know about the corruption of East India Company. In 1784 British Prime Minister Pitt the Younger tried to alter the Calcutta Administration with Pitt`s India Act and in the year 1786 lord Charles Cornwallis was sent out to India to supervise   the alteration.

In 1786 the Court of Directors of East India Company first proposed The Permanent Settlement Act for Bengal. The act was proposed as they were acting against the policy of attempt to increase the taxation of Zamindars. Between 1786 and 1790 the Governor General Lord Cornwallis and Sir John Shore (the later Governor General himself) debated over whether or not to introduce Permanent settlement Act in Bengal. Shore`s point of argument was that the native Zamindars could not trust the permanent Settlement and it would take a long time for them to realize the genuineness of this act. But Cornwallis believed that they would immediately accept Permanent Settlement Act and start investing in improving their land. In 1790 the Court of Directors passed a ten-year (Decennial) Settlement Act to the zamindars, which was later changed to Permanent Settlement Act on 1793.

By Permanent Settlement act the security of tenure of the lands were guaranteed to the landlords and the process of paying tax was clear, In short, the former landholders and revenue intermediaries were benefited as their proprietorship on lands they held was assured. This also ensured the minimization of the fortune made on revenues earned by the Company officials. Smallholders were not allowed to sell their lands though their new landlords had no chance to deprive them.

The Permanent Settlement Act brought the improvement of the lands by the landowners as they took care of drainage and irrigation. Construction of roads and bridges were encouraged which were lacking in the state of Bengal. As the land revenue got fixed zamindars could securely invest the rest of the money to increase their income without the fear of tax increment. Corwallis made the motivation of the company clear by stating "when the demand of government is fixed, an opportunity is afforded to the landholder of increasing his profits, by the improvement of his lands." The earning of company was thus assured as there were no shortage in the revenues due to defaulting Zamindars, who fell into debts as they could not fix their budged due to fluctuation of revenue.

The Permanent Settlement Act had definitely some objectives in view, which can be summarized as :
•  Earning revenue could be made certain.
•  Ensuring a minimum amount of revenue
•  The system needed less supervision, so officials could be engaged in other spheres of administration
•  Forging an alliance between Zamindar class and British Colonial rulers.

The goals were achieved largely though not entirely. The immediate consequence of Permanent Settlement act was sudden as well as dramatic but there were also results, which were apparently not apprehended before. The Government tax demand was inflexible and the collectors of East India Company refused to make any adjustment during the time of drought, flood or other natural calamity. This was the drawback of the Permanent Settlement Act, that caused many Zamindars to fall into arrears. The Company`s policy was to put the land in auction, whose taxes are not fulfilled. This created a new market for the land. Many Indian officials of East India Company purchased this land. Thus a new class of bureaucrats was created who purchased lands those were under assessed and profitable. This led to two possibilities- one, to manipulate the system to bring to sale the lands they wanted specifically and the other was that the officials could be purchased by bribing them in order to get possession of a certain land. Thus this bureaucrats class became rich by unfair means. Thus, the Permanent Settlement Act led to commercialization of land, which did not exist in Bengal before. This in consequence created a change in social background. Those who were "lineages and local chiefs" turned to "under civil servants and their descendants, and to merchants and bankers." The new landlord class was generated who had no connection with their lands but managed the property through the managers.

There was some obvious influence of Permanent Settlement Act. The company hoped that Zamindar class would be their revenue generating machine as well as they would serve as intermediaries for the political aspect of their rule and would protect British Government in all their interests. However, in course of time it acted both ways. Zamindars were the natural protectors of the British rulers but when the British policy changed during mid -nineteenth century that interfered with social reform, some Zamindars put themselves in opposition.

The agreement of permanent Settlement Act only included the revenue earning but there was no mention of the use of the land. Thus to earn more money from the land, the Company officials and Zamindars insisted on planting Indigo and cotton rather than wheat and rice. This was the cause of many worst famines of the Bengal. Another disadvantage was creation of absentee Zamindar class who did not pay attention in the improvement of land.

Thus, by Permanent Settlement Act of 1793, Zamindar class became more powerful than they were in the Mughal period.

15

Law / Re: Applying diversion process for ensuring child rights

« on: December 13, 2011, 11:56:23 AM »

Thanks for writing this about child

Haider