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The Financial Express

The study of land law: past, present and future

| Updated: October 16, 2021 20:43:56


The study of land law: past, present and future

The study of land law or in the wider sense, property law plays an important role in establishing the right of persons - natural or legal to own, possess, maintain, and transfer the immovable property meaning land, water, building or anything attached to the earth or permanently fastened to anything attached to the earth or any benefit in or over it. Such property right has been a core area of interest from the very inception of human civilisation since it helps people to empower themselves with the freedom of ownership. Recognising the importance, George Washington, the first President of the United States of America said: "Freedom and Property Rights are inseparable. You cannot have one without the other." On the utility of such link, Thomas Sowell, an American economist, social theorist and senior fellow at the Stanford University's Hoover Institution has rightly said, "Both free speech rights and property rights belong legally to individuals but their real function is social, to benefit vast numbers of people who do not themselves exercise these rights". In such a context, the study of land law is crucial in terms of land holding and management in a least developed country like Bangladesh where population density in per sq. km of land area stands at 1,265 making it the tenth most densely populated country in the world (World Bank data), and where such population density is leading to land scarcity causing almost 80 per cent lawsuits of civil nature.

As is seen, the intricate area of land law is fascinating as well as complex. One can apply neither the general reading approach of social science nor the rules of mathematical calculation in it. Rather one needs to understand each and every concept from their roots and relate them accordingly. Historically, people of the country are mostly dependent on agriculture and the land they cultivate was previously given to them by the then King/Emperor or rent receiver in leases or settlements. In both cases, the land right especially possession of land is significant to the people since the possession brings them ownership of land from the ancient period to modern times enabling them to transfer the property via sale, exchange, mortgage, lease, gift and will, or pass it on to heirs through succession. However, the recording of transfers is not duly made sometimes due to complexities in the system and costs involved therein and mostly due to people's non-awareness of land related laws and procedures which are large in number, scattered in different legislation and often difficult to understand for laymen. There are also allegations of corrupt practices committed by the powerful in collusion with some officials concerned causing transfer of the same land to several persons or making someone owner through forged documents. In addition, on preparation and maintenance of record of rights, there arise issues regarding departmental resolution of disputes often involving land title or possession which requires judicial members to decide. 

As mentioned above, land laws which are numerous, complicated, and, in some cases, not simply understandable, often make the study uninteresting and boring to students. They frequently succeed in understanding how the law operates in other areas but find themselves intimidated by land law. Regarding the complexity of land law, Lord Macnaghten observed in the case of Samuel v Jarrah Timber and Wood Paving Corporation Ltd [1904] AC 323, p 326 that although Albert Einstein claimed that at the age of 5 years, he completely understood the most popular theory of physics E=mc² which was developed from a series of elementary ideas, he could not comprehend the concept of an English mortgage of real estate without the help of his friends.

As it appears, land law is an assemblage of the most complicated and technical issues of law; students find this law both challenging and unrewarding in obtaining good grades in law schools and shining in the future court practice without labouring further. It was not an easy task even for the great English legal scholar Blackstone who apparently submitted to the depressing conclusion that the study of land law 'afforded the student less amusement and pleasure in the pursuit' than other studies of law. Given this frightening scenario in law schools, very few students desire to become civil lawyers in the future.

Further, the conventional limitation prevailing in the legal education system fails to prepare the graduates to deal with situations they are going to face later. Here the legislation and jurisprudence e.g., enemy, and abandoned property laws that deal with numerous important and practical matters are often not taught in the course. Such inchoate teaching and understanding makes the learners vulnerable when they face matters related to those laws. Another serious limitation that hurdles the path of learning is that most of the books and facilitators do not use case laws in teaching, let alone updated case laws or further dimension of the case. For example, most of the students probably have heard of the "5th Amendment Case" from constitutional law. However, many of them do not know the land related issues involved herein and the courts' intricate reasoning about the same. So, not knowing about case jurisprudence remains a problem too, especially, when the judicial precedents are an established source of the Bangladeshi law under the article 111 of the Constitution, ignoring them in the study of law is tantamount to distorted learning.

In addition, the teaching of land law around the world is problem based. But if we look at our conventional question patterns, we find them mostly analytical. This makes the learners vulnerable in future when they find complex problems of land law. Fearing that they will not survive in legal career, many opt for something else. Further, even those pursuing the legal career fail to develop adequate progressive jurisprudence through their contribution because their knowledge revolves around the conventional teachings. So, the teaching method of land law should emphasise more upon issue-finding and applying laws upon them thereby solving problems.

Further, students do not have sufficient reading materials in this field as regards issues that pertain to the creation, transfer, and extinction of land rights. There are also not many textbooks covering the whole ambit of land law as is done in other parts of the world. For example, in textbooks of land law written by the English writers, there are issues about the creation, transfer, and extinguishment of land rights covering areas of sale, mortgage, trust, lease, registration etc. However, the Bangladeshi textbooks on land law deal with the analysis of some erstwhile land laws, and the zamindari abolishing provisions contained in the State Acquisition and Tenancy Act, 1950 and the Non-Agricultural Tenancy Act, 1949 and the consequential effects i.e., creation and management of tenancy rights thereafter. Further, the issues that relate to modes of transfer of land rights including mortgage, lease etc., or the issues relating to extinction of land rights including illegal possession, acquisition and requisition, enemy or abandoned property etc., are not discussed in the textbooks of land law. These are certainly land issues but are dealt with in other law subjects in the country, not titled as land law. However, such issues are the subject-matters of land law textbooks across the globe.

In addition, land law is included in the subject list as compulsory for pursuing bar vocational or bar course throughout the world. However, as a subject it is not included in the Bangladesh Bar Council Examination for the enrolment of lawyers. It is recently made a mandatory subject for competitive exams including the Bangladesh Judicial Service Commission Examination through which judges are recruited in the lower judiciary of Bangladesh. However, the judges in the lower judiciary require to try suits relating to land rights from the very beginning of their profession.

To improve the study of land law, in addition to the issues raised, it should include several other 'should have been' topics, for example, the enemy property, the abandoned property, declaratory title, the settlement of Khaslands etc., under which good number of litigations are being filed every day for protecting the property right. Further, the study should address the progressive case laws, doctrines, or jurisprudence from foreign courts as prerequisites of having good philosophical stand over the areas in the local corpus juris. The study should also introduce new concepts and ideas to the legal fraternity in defining the term 'public purpose' in cases of acquisition and requisition of private property in the light of international property law and best practices.

The study should also incorporate issues like constitutionality of pre-emption rights and adverse possession, and some criminal remedies in cases of benami transactions, fraudulent transfers, grabbing land illegally, holding land more than the ceiling set in laws and dispossession from land. The study should emphasise on land reforms that can enable the State to forfeit lands from illegal grabbers, identify and possess Khas lands, and distribute them to the landless with a view to curtailing the disparity between the rich and poor and materialising the constitutional ambition of turning the country into a socialist republic. In addition, as part of the study, the law schools can establish real time Land Law Clinics to offer legal advice to the helpless people on land related issues as preventative to disputes and help the judiciary reducing piles of civil cases.

Dr Mohammad Towhidul Islam is a

Professor of Law, University of Dhaka.

[email protected]

 

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