Exchange of Immovable Property The partition of 1947 led to migration of millions of people from East Bengal to India and from India to East Bengal. Mainly Hindus migrated to India and Muslims to East Bengal.

Transaction for such exchange was contemplated in section 53A of the Transfer of Property Act 1882. It provided that where any person contracted to transfer any immovable property by writing, signed by him or on his behalf, from which the terms necessary to constitute the transfer could be ascertained with reasonable certainty, and the transferee had, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continued in possession and had performed or was willing to perform his part of the contract, the transferor or any person claiming under him was debarred from enforcing against the transferee any right in respect of the property of which the transferee had taken possession or continued in possession.

After the promulgation of the Disturbed Persons (Rehabilitation) Ordinance 1964, permission for such exchange was granted by the appropriate authority. Under section 4 of this ordinance, no transfer, including exchange of any immovable property belonging to a minority community, was valid and legal, unless it had been made with the prior permission of the competent authority. The sub-divisional officer, or the deputy commissioner, or the commissioner of relief and rehabilitation, or such other authority as might be appointed in that behalf by the provincial government by notification in the official gazette, was the competent authority according to the area of the agricultural land.

The market value of the non-agricultural land and/or building or structure proposed to be transferred for the bona fide purpose of meeting an urgent and unavoidable expenditure. In other cases where the applicant proposed to transfer his immovable property in any manner for any other purpose, the competent authority was the commissioner of relief and rehabilitation, or such other authority as might be appointed by the provincial government by notification in an official gazette. No instrument for transfer of immovable property of a person who was a member of a minority community was admitted for registration, unless accompanied by the permission of the competent authority. No transfer was permitted more than once in a year.

With the promulgation of the Defence of Pakistan Ordinance on 6 September 1965 (Ordinance no. XXIII of 1965), and subsequent rules and orders, the question of regularisation of the property in possession of the refugees/expellees came up. On 15 November 1968, the revenue department of the government of East Pakistan issued elaborate instructions for regularisation of genuine exchanges of immovable properties made by refugees/expellees from India with those of Hindu migrants from East Pakistan.

All exchanges made before 16 September 1965 were considered for regularisation and were divided into two categories (i) those made before 10 October 1964, where the properties had become enemy properties under the Defence of Pakistan Rules, 1965; and (ii) those made between 10 October 1964 and the 5th September, 1965, where the properties stood forfeited to the government under section 6A of the Disturbed Persons (Rehabilitation) Ordinance 1964. Section 6A of the Disturbed Persons (Rehabilitation) Ordinance provided that a transfer of immovable property in contravention of the provisions of the Ordinance was null and void and the property so transferred stood forfeited to the government.

In both categories, the deputy commissioner was to receive applications for regularisation of exchanges. In the first category of cases, when the deputy commissioner was satisfied about the genuineness of the exchange, he would furnish a certificate to that effect. The deputy/assistant custodian, enemy property (land and buildings), would, on the basis of such certificate of genuineness, give effect to the exchange by executing necessary the deed of transfer in favour of the refugee/expellee concerned on behalf of the migrant.

The certificate required to be granted by the deputy commissioner was very important as it formed part of the registered deed and had to be preserved as a permanent document. Under the instructions of the deputy custodian, enemy property, (land and buildings), issued on 18 November 1969, the certificate was to be granted on durable paper (cartridge paper) supplied by exchangees and sent to him in duplicate with office seal and signature of the deputy commissioner with date. All columns of the schedule of property as prescribed in the form of certificate were to be filled up wholly and sealed and signed by the deputy commissioner with the date appearing at the bottom of each page.

Total area of land exchanged had to be mentioned in figures and words at the bottom of the last page of the schedule. The schedule had to contain holding number, if the property was a house/building/structure, mentioning therein also the boundary/location of the property. The papers and records of the exchange case were to be numbered serially and a complete list of such papers etc. were to accompany the records when forwarded to the deputy custodian, enemy property. The court fee stamps on the petitions were to be properly punched and numbered. Overwritings of figures in the certificate/schedule were to be avoided and corrections, if any, were to be properly initialled by the deputy commissioner. The number of corrections made was also to be mentioned on the body of the certificate with his signature.

In the second category of exchange, if the deputy commissioner found the exchange to be genuine, he would formally forfeit the property covered by the exchange and settle it with the refugee/expellee concerned. In either case, no consideration money other than the usual land revenue was to be charged for such transfer or settlement.

However, some refugees/expellees took over possession of the exchanged property, before the exchanges were regularised. Their property was being enlisted as enemy property and leased out to others and the expellees were being evicted. The deputy custodian, enemy property (land and buildings), East Pakistan, under Memo no. 1108-EP-236/70 dated 4 May 1970, directed the assistant custodians (deputy commissioners) not to disturb bona fide refugees in possession of land and buildings on the strength of exchanges till their cases were decided by the appropriate authorities.

No provision was made in the government orders for filing petitions of appeal or revision against the orders passed by the deputy commissioner certifying genuineness or otherwise of an exchange, as the orders passed by the deputy commissioners were executive in nature. The affected persons approached the Ministry of Relief for redress of their grievances. The Land Administration and Land Reforms Division issued the following instructions: (a) Where the deputy commissioner finds or it is brought to his notice that there is a bona fide mistake in determining the genuineness or otherwise of an exchange, he should exercise his inherent power to correct his own mistake and for that he may entertain an application for review or on his own motion review his earlier orders and correct such a mistake and communicate revised orders, if any, passed in that behalf to the assistant custodian, enemy property (land and building) for taking necessary action in pursuance of such orders; and (b) Any person claiming a right and title to the property covered by the exchange or to any part thereof and affected by the orders passed by the deputy commissioner, will have the lawful right of going to the Civil Court for seeking appropriate remedy.

For satisfaction as to the genuineness of a case of exchange, where the refugee/expellee transferred his property in India to the migrant by a registered deed of exchange, with or without any power of attorney, deputy commissioners were to take into consideration that (a) the examination of the documents produced established a prima facie case of genuineness; (b) the exchanges was done by a bona fide refugee/expellee; and (c) the property involved in East Pakistan belonged to the migrant.

In a case where there was no registered deed of exchange in respect of the Indian property, the deputy commissioners were required to hold inquiries requiring the production of such proof as considered necessary for ascertaining the genuineness of the transfer.

In case of property enlisted as vested property and transferred to the exchanger/expellee by execution and registration of a deed of transfer, it was not required to be formally released from the list of enemy property, but proper note of such transfer was to be kept in the relevant list, register and case records to avoid the property being leased out again through mistake or oversight.

To avoid hardship to the refugees/expellees and to expedite disposal of exchange cases which were made prior to 6 September 1965 and application for regularisation in respect of which were filed to the deputy commissioners on or before 30 September 1970, the government issued circulars/orders from time to time to deputy commissioners of districts for regularisation of such exchange cases and execution of deeds, subject to the maximum returnable quantity of land.

It also authorised the additional deputy commissioner (revenue) of the districts to execute and register deeds on behalf of the government. In view of the fact that large number of exchange cases were still pending, the government, in consultation with the Ministry of Law and Justice, decided that the pending exchange cases would be dealt with by civil courts, and not by deputy commissioners. Deputy commissioners and additional deputy commissioners (revenue) were not to take any action for disposal of exchange cases and were asked to transfer all pending exchange cases to the district judges concerned.

The Ministry of Law and Justice informed the Ministry of Land Administration and Land Reforms that it was not possible for civil courts to entertain administrative functions as is required to be performed under administrative orders and circulars. As per the Civil Procedure Code, regular cases have to be instituted in civil courts for declaration of rights and titles in any property on the basis of exchange, contract or otherwise. The Ministry of Land Administration and Land Reforms was requested to rescind the circular issued on 6 October 1985.

The orders of the Ministry of Land directing deputy commissioners to make over all pending cases to civil courts and the letter of the Ministry of Law and Justice asking the Ministry of Land to withdraw the orders made the situation complicated and disposal of pending exchange cases faced a standstill position. This state of affairs continued till July 1987. The Ministry of Land issued Circular no. V-7/85(Part)-AP/571 dated 30 July 1987 authorising deputy commissioners and additional deputy commissioners (revenue) to regularise exchange cases submitted to them on or before 30 September 1970, after examining relevant documents, subject to the maximum quantity of returnable land. The circular issued on 6 October 1985 was repealed.

To mitigate the sufferings of the refugees/expellees, the deputy commissioners and the additional deputy commissioners (revenue) were asked to take up regularisation of exchange cases on a priority basis and dispose them of as quickly as possible. But the exchange cases could not be disposed of in time due to all sorts of complications. In June 1999, the number of pending exchange cases in districts stood at more than 3,000. The time for regularisation of exchange cases was extended several times. The Ministry of Land extended the time up to December 2000 by issuing a memo on 2 June 1999. [Shamsud-Din Ahmed]