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Protecting land owners against developers\' exploitation  

FE Team | Published: August 07, 2017 22:11:50 | Updated: October 20, 2017 07:52:29

Protecting land owners against developers\' exploitation  

The Bangladesh Constitution provides that it shall be a fundamental aim of the State to realise through democratic process a society free from exploitation, a society in which rule of law, fundamental human rights and freedom, equality and justice will be secured for all citizens. 
A recent newspaper report said there has been a gradual increase in the number of complaints against land developers in Bangladesh. The land owners are being exploited by the developers in spite of having reasonably efficient regulatory and monitoring authorities in Bangladesh. 
Article 31 of the Constitution provides for the right to protection of law of every citizen. It also provides that no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 42 provides for the right to property of a citizen. It provides that every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalised or requisitioned save by the authority of law.
For safeguarding the interest of land owners against developers, the government enacted the Real Estate Management Law in 2009, the Real Estate Development and Management Act in 2010 and the Real Estate Development and Management Regulation in 2011. The Real Estate Development and Management Act 2010 (Act of 2010) provides necessary provisions for overall management of the real estate businesses in Bangladesh (http://bip.org.bd/Sharing Files/201307211331591.pdf). 
As per Section 15 of the Act of 2010, in case of delay in handover of the allotted portion of the apartment/ plot of land, the land owner will be entitled to compensation as agreed in the deed of agreement entered between land developer and land owner. 
As per Section 36 of the Act of 2010, in case of dispute between land owner and developer, the parties will try to resolve mutually at first attempt. However, if such an attempt fails, then the resolution of the disputed matter shall be governed by the Arbitration Act 2001. If the land owner and/or land developer fail to constitute the Arbitration Tribunal as per the Arbitration Act 2001, then a case can be filed against the defaulting party in an appropriate court under the Act of 2010. 
As per Section 33 of the Act of 2010, the offences under the Act of 2010 are face a summary trial before the first class magistrate or the metropolitan magistrate. As per Section 30 of the Act of 2010, when a land developer does not transfer the possession of the due portion of real estate to the land owner as per the contract entered by the land developer and owner, then the land developer shall be punishable with an imprisonment for a period not exceeding two years or with fine of Tk 2,000,000 or with both.   
There is a notification issued by the Ministry of Commerce, dated May 21, 2017, which provides for compulsory membership with the Real Estate and Housing Association of Bangladesh (REHAB) of all developer companies with reference to Section 13 of Trade Organisations Ordinance, 1961 (http://www.rehab-bd.org/mis/attachment/upload/86_dynamic_notice_0.pdf).
Hence, the code of conduct prescribed for REHAB members with land owner is also relevant. The code of conduct provides: 
 --The time-frame for completion of the building must be specified in the deed of agreement entered between land developer and owner and the consequence of delay in the handover of the apartments to the land owner must be detailed in the deed of agreement. 
 --REHAB member shall not change or substitute the apartment originally allotted to the land owner without the land owner's consent. 
 --REHAB member shall deliver the apartments allotted to the land owner as per the scheduled date of handover mentioned in the deed of agreement. In case of delay in the handover, the land owner will be entitled to rental compensation as per mutual agreement which must be written in the deed of agreement and should be paid on a monthly basis. The rental compensation amount must be mentioned in the deed of agreement, provided, however, that such delay in handover of the apartment is not due to circumstances beyond the control of the REHAB member such as natural disasters, political turmoil, unusual rise in prices of the building material, delay in getting utility connection from the concerned authority or other force majeure.
Besides these, the land owner may file a suit for specific performance of contract under the Specific Relief Act 1877 against the developer company for possession of the allotted apartment/ plot of land. The land owner may file a writ under Article 102 of the Constitution against the Ministry of Commerce, keeping the registering authority of the developer company and the developer company as other respondents in the writ petition. This option may be explored even though it may give rise to a debate on whether or not there is an equally efficacious remedy available to the land owner. If there is an equally efficacious remedy available, then this writ option may not be explored.
Therefore, to uphold the commitments under the Constitution and to safeguard the fundamental rights (Article 31- right to enjoy the protection of law and Article 42- the right to property) of land owner, this matter should be scrutinised by the government with care and the judiciary may step in to uphold the commitments of the government. This is how it will be possible to establish a society in Bangladesh free from exploitation, a society in which the rule of law and fundamental human rights will be secured for all citizens. 
 The writer, an advocate of the Supreme Court, is Research Assistant (Law), Bangladesh Institute of Law and International Affairs (BILIA).  
tasmiah.nuhiya.ahmed@gmail.com
 

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