Page |1

Table of Contents
Abstract ....................................................................................................................... 2
Introduction ................................................................................................................. 3
Pre-emption ................................................................................................................. 3
Pre-emption under Muslim Law ..................................................................................... 4
Pre-emption under the State Acquisition and Tenancy Act (SAT), 1950 .............................. 6
Rationale for Amended Section 96 of the SAT Act. ........................................................ 7
Important aspects of the amended section 96 of the SAT Act. ....................................... 8
The Right of Pre-emption when Arises ...................................................................... 8
Requirements for Amended Section 96 Pre-emption Application ............................... 9
Lacunae in Substituted Section 96 ............................................................................ 10
Pre-emption under the Non-Agricultural Tenancy Act (NATA), 1949 ................................. 10
Comparison of Two Existing Legislations about Pre-emption .......................................... 13
Comparison of Muslim Law and Legislation on Pre-emption .......................................... 14
The Importance of Pre-emption in the Present Society ................................................... 15
Recommendation ....................................................................................................... 15
Conclusions ............................................................................................................... 16
Refrences ................................................................................................................... 16
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Abstract
Pre-emption is the prior right of a neighbor, owner of adjacent property, or co-sharer of land
acquired through purchase or inheritance. When a plot of property is sold, the issue of pre-
emption—that is, the co-sharer of land has the first right to buy the land and assert ownership
appears when land is transferred to a third party without identifying such owners. If he waives his
right to purchase it explicitly or implicitly, a stranger or a third party may do so. Bangladesh has
three legal approaches to pre-emption: the Muslim Law Approach, the State Acquisition &
Tenancy Act, of 1950 Approach, and the Non-agricultural Tenancy Act, of 1949 Approach. This
research will conduct a comparative analysis of pre-emption under Muslim and statute laws in
Bangladesh. This analysis will evaluate Bangladesh's current pre-emption system, identify existing
statute legislation weaknesses, and provide solutions.1

1
Khan, Z. (2020). "Comparative Analysis of Pre-emption Laws in Bangladesh." Bangladesh Legal Studies, 5(1),
23-35.
 Page |3

Introduction
The practice of pre-emption was widely accepted in Bangladesh. Preemption has become less
significant over time in today's culture as a result of life mobility. Because of the strict provisions
adopted in 20061, the current statutory laws discourage anyone from using the right of pre-
emption2 . It reduces the numbers of application for pre-emption in civil courts comparatively.
There are three approaches to "pre-emption" in Bangladesh: one is based on Muslim law, and the
other two are based on two existing laws: section 96 of the State Acquisition and Tenancy Act of
1950 (also known as the SAT Act of 1950) and section 24 of the Non-agricultural Tenancy Act of
1949 (also known as the NATA Act, 1949). Section 24 deals with the pre-emption of non-
agricultural land, whereas Section 96 deals with agricultural land. This paper aims to examine the
current legal methods and the actual position of preemption. This article also compares the
statutory laws to Muslim law, explains changes made to the statutory laws and the rationale behind
them, assesses the significance of preemption in the context of today's mobilized society, and offers
some recommendations for correctly implementing the laws that are already in place.

Pre-emption
The right to purchase property ahead of or in front of another person is known as pre-emption. The
Latin words "prae," which means "before," and "emptions," which means "buying," are the sources
of the English phrase pre-emption. Pre-emption, as defined by Dr. A.R. Biswas' Encyclopedic Law
Dictionary, is "the legal right of buying a thing before all others."3
The term pre-emption is ‘shuf‘a’ in Arabic. ‘Shuf‘a’ means conjunction; here it denotes the right
of the owner of a property which is in conjunction-that is adjacent- to another property. Haq means
right. So, haq-shufa means right to subsequent purchase of a property adjacent to own from another
fresh purchaser. In practice it means a right to dislodge a fresh purchaser and step in his shoes in
respect of an adjacent property. It is a right to dislodge stranger from entering into ones
neighbourhood.4
The right of pre-emption is not a right to repurchase, but it is a right of substitution, entitling the
pre-emptor to stand in the shoes of the purchaser. This view had been adopted by the supreme
court of India in Bishan Singh v. Khazan Singh5, where Subba Rao, J., summarised the rules of
pre-emption thus:
The right of pre-emption is not a right to the thing sold but a right to the offer of a thing
about to be sold. This right is called the primary or inherent right.
The pre-emptor has a secondary right or a remedial right to follow the thing sold.

2
"The State Acquisition and Tenancy (Amendment) Act," 2006 .
3
S. Lutfor Rahman, "Pre-emption Laws in Bangladesh," Ain-Grantha Prokashak, vol. 1st Edition, 1984.
4
K. Rashid, "Muslim Law," Eastern Book Company, no. 4th Edition, p. 4th Edition, 4th Edition.
5
AIR 1958 SC 838
 Page |4

It is a right of substitution but not of repurchase, i.e., the pre-emptor takes the entire bargain
and steps into the shoes of the original vendee.
It is a right to acquire the whole of the property sold and not a share of the property sold.
Preference being the essence of the right, the pre-emptor must have a superior right to that
of the vendee or the person substituted in his place.

Pre-emption refers to the legal right that a co-sharer or the neighboring owner of real estate has to
buy another real estate that has been sold to a third party. Preemption law dates back to the time
of Roman law. In a sales agreement, the Romans used their pre-emption privilege. It was initially
in use during the Mugal era in the Indian subcontinent, whence the Mahomedan law originated.

Pre-emption under Muslim Law

Bangladesh's first attempt at preemption is based on Muslim law. This method does not work
between a Muslim and a non-Muslim; it is only appropriate between two Muslims. Mahomedan
law grants an immovable property owner the right of pre-emption, or Shuf'a, enabling them to
purchase another immovable property previously sold to a different party. According to Muslim
law, this is what is meant by the right of preemption. According to Mahomedan law, the purpose
of pre-emption is to avoid any inconvenience that might arise from the introduction of an
unpleasant foreigner as a co-partner or next-door neighbour. Its goals are to reduce potential
annoyance caused by an uncooperative neighbour and is based on convenience.6

Three classes of persons are entitled in Muslim law to exercise the right of pre-emption:

shafi-e sharik or a co-sharer in the property,

shafi-e khalit or a participator in immunities and appendages (a person who having right of
easement, and
“No person is entitled to pre-empt unless he takes the proper steps at proper time, and conforms
strictly to the necessary formalities.”7 These formalities or ceremonies are known as the three
demands.

i. The First Demand (talab-e mowasibat): On receiving the information of the sale, the pre-
emptor must make a declaration called talab-e mowsibat, asserting his intention to exercise
his right of pre-emption.8 Witnesses are not necessary or any particular language or form,
for making this demand. 'I have demanded or do demand pre-emption' is enough.9 The pre-

6
Syed Sayeeduddin Ahmed v. Haji Inunus Mia, 12 DLR 93
7
Fyzee, ASAF A. A. Outlines of Muhammadan Law, 4th Edition, Oxford University Press, Delhi at p. 348
8
Hedyatullah, M. and Hedayatullah, Arshad (Ed). Mulla’s Principles of Mahomedan Law, 19th Edition,
Tripathi, 1990, Para 236(1), p. 216
9
Supra Note 6, p. 348
 Page |5

emptor cannot make a delay by taking the plea that he had reason to believe the real price
should be much lower than that notified to him.10
ii. The Second Demand (talab-e ishhad): The pre-emptor must, with the least practicable
delay, make a second demand. He must (i) refer to his first demand; (ii) do so either in the
presence of buyer or the purchaser or on the premises which are the subject of sale; and
(iii) do so in the presence of two witnesses. This formality is called talab-e ishhad.11 This
is also known as talab-e taqrir, the demand of confirmation.12 A common form of the
demand is: the pre-emptor says, ‘Such person has bought such house of which I am the
pre-emptor (shafi). I have already claimed my privilege of pre-emption (shuf ‘a) and I again
claim it: be ye witnesses thereof.13 ‘The property must be clearly specified by the pre-
emptor.
If the pre-emptor is at a distance and cannot be personally present, the second demand may
be made by an agent, or even by a letter. If there are several purchasers, the demand must
be made to all of them, unless it is made on the premises, or in the presence of the vendor.
If, however, the demand is made to some only of the purchasers, the pre-emptor can claim
his right as against these purchasers only, and not as against the others.13 It is not necessary
for the pre-emptor to enter the house and make a demand. It is enough if he goes near the
house and, touching the walls, makes the demand. This would be a sufficient compliance
with the legal requirements of the second demand.14
iii. The Third Demand (talab-e tamlik): The third demand isn't actually a demand at all; the
pre-emptor only uses legal action to vindicate his rights when his claim isn't granted. This
isn't always the case, though. Talab-e tamlik, also known as talab-e khusumat, is the term
for this kind of action (the demand of possession, or the demand where there is a dispute).
If the property is incorporeal, the suit must be filed within a year of the purchaser gaining
possession of it, or within a year of the document of sale being registered. A claim to a
portion of the sold estate is insufficient in a lawsuit or preemption claim; the entire interest
must be asserted.15
When a preemption claim is upheld, the preemptor assumes full buying responsibility and
takes ownership of the property subject to prior equities. The original buyer becomes the
new vendor, and the pre-emptor becomes the new buyer if the sale has already been
completed in full. Between the date of the sale to himself and the date of transfer to the
pre-emptor, the original buyer is allowed to receive or hold onto the rentals and mesne
profits.

10
Supra Note 3, p. 299
11
Supra Note 7, Para 236(2), p.216
12
Supra Note 6, p. 349
13
Ibid
14
(Mst.) Nanhi Nabbi v. (Mst.) Bunyadi Begum AIR (1954) All. 87
15
Supra Note 7, Para 245, p. 220
 Page |6

Pre-emption under the State Acquisition and Tenancy Act (SAT), 1950
Section 96 of the State Acquisition and Tenancy Act, 1950 deals with the right of pre-emption.
This section was substituted for the former section 96 by the Act No. XXXIV of 2006. Material
changes have been made in the new section.

Under the current section, only a co-sharer tenant of the holding by inheritance may petition for
pre-emption; under the prior section, both a co-sharer tenant and a tenant holding the property
adjacent to the transferred land could exercise the right of pre-emption.

Any non-co-sharer tenant who received a portion or share of a rayait's holding could invoke the
right of pre-emption under the prior section. The word "sold" has been used in place of the phrase
"transfer" in the new section. Any other method of transfer is excluded by the use of the phrase
"sold," and preemption will now only apply to transfers made through sales.16

The current section limits the amount of time that can be used to exercise pre-emption rights to
two months, which can be used within three years of the sale deed's registration date. In the
previous section, pre-emption rights could be exercised within four months of the date the notice
was served or the date the transfer was discovered. Regardless of whether the preemptor is aware
of the details of the sale, the right to preemption cannot be used more than three years after the
sale deed's registration date. However, as previously mentioned, the pre-emptor may use this right
whenever he can demonstrate that he was not informed of the transfer.

Now 25 % compensation is accompanied with the application of pre-emption which was 10% in
past. Under the previous section, there was no provision of simple interest accompanying with the
application. In new section, there is provision of simple interest at the rate of eight per centum
which is to be deposited with the application for pre-emption. Under the new section, there is
provision of giving direction to the purchaser for executing registration deed if pre-emption is
allowed; there is no such provision in the previous section.
Case: Dewan Ali vs Md. Jasimuddin and others 60 DLR AD 73

Facts:

Pre-emption: The case revolves around a dispute involving the right of pre-emption,
which grants a person the opportunity to purchase property before it is offered to others.
This right is particularly important in real estate transactions in specific jurisdictions,
including Bangladesh.

Parties Involved: Dewan Ali, the appellant, sought to exercise his right of pre-emption
against Md. Jasimuddin and others, the respondents, who had sold a piece of property
without offering it to the right holder first.

16
Haque, Mohammad Hamidul. Trial of Civil Suits and Criminal Cases, 2010, P. 166
 Page |7

Grounds for Claim: Dewan Ali claimed that he had the right of pre-emption based on his
status as a neighboring landholder. He argued that the sale of the property was improperly
conducted without notifying him or offering him the first opportunity to purchase the
property.
Facts in issue:

Right of Pre-emption Claim: The central issue was whether Dewan Ali had the legal right
to pre-empt the sale of property by Md. Jasimuddin to another buyer. Dewan Ali claimed
that he was a neighboring landholder entitled to exercise this right.

Validity of Sale: The transaction in question had occurred without Dewan Ali being
notified or offered the property before the sale was finalized. The legality of the sale and
whether proper procedures were followed under the Specific Relief Act were in contention.
Notification Process: The case examined if the respondents properly complied with the
statutory requirements for notifying the right-holder (Dewan Ali) about the impending sale,
which is a prerequisite for a valid sale under the pre-emption laws.

Evidence of Pre-emption: The courts evaluated whether Dewan Ali provided adequate
evidence of his claim to pre-emption, including proof of his status as an adjacent landholder
and whether there was any intention on his part to exercise this right promptly.

Lower Court Rulings: The appellate court reviewed previous findings from lower courts
regarding the interpretation of rights under the Specific Relief Act and whether there were
procedural failures that warranted a reversal of the sale.

Legal Interpretation: The case emphasized the interpretations of statutory provisions

regarding the right of pre-emption, including any relevant conditions that must be satisfied
for such a claim to be upheld.

Judgement: The court was of the view that the pre-emptive right of purchase of the case land
accrued to the pre-emptor only after the case land was sold to the purchaser pre-emptee by its
owner and not before. Pre-emptive right does not exist before sale and it is not enforcea-ble before
sale.68 Further, the refusal to purchase by the co-sharer tenant of the holding before sale of the
property to a third party shall not amount to waiver/estoppel. So, the position of law on this point
is that the right of pre-emption only accrues on the date of registration of the sale deed and as such
prior knowledge is immaterial.17

Rationale for Amended Section 96 of the SAT Act.

In practice, one could exercise the power of preemption at any time under the preceding section.
Even a pre-emptor may use his right ten years after the transfer provided, he could demonstrate
that he became aware of it within four months of the transfer, at which point he had to appear in

17
Land Law by Mohammad Towhidul Islam
 Page |8

court. For the last ten years, the buyer who improved the land found it extremely difficult, and in
return, they received insufficient payment. Additionally, the cost of the land has been shown to rise
repeatedly. The guidelines in the preceding section were fairly lenient. A particular maximum time
restriction is enforced and the amount of compensation is increased in order to eliminate these
issues. In the previous part, co-sharer and contiguous tenants had the right to pre-emption, which
contributed to the high number of applications. In the previous section, co-sharer and adjacent
tenants had the right to pre-emption, which led to a high number of pre-emption applications in
court. The court was overloaded. Only co-sharer tenants can apply for pre-emption under Section
96 of the SAT Act. Section 96's current requirements may discourage applying for pre-emption
when there is no strong necessity. There were disadvantages under the previous part that can harass
the buyer. It is now deleted by adding explicit language about the three-year maximum time limit
after the deed's registration date.

Important aspects of the amended section 96 of the SAT Act.

In an effort to address the issues at hand, a 2006 amendment significantly altered Section 96 of the
SAT Act. This section examines several significant points that have been examined in order to
provide light on the current provisions.

The Right of Pre-emption when Arises

Under section 96 of the SAT Act, 1950 the right of pre-emption arises only on a sale. Section 96(1)
provides that if a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer
tenant in the holding, one or more co-sharer tenants of the same holding may exercise their right
for pre-emption. Suppose, ‘A’, ‘B’, and ‘C’ are three co-sharer tenants of the holding No.570 by
inheritance. Each share in the holding is respectively 20, 30 and 10 decimals. 'C' has sold his share
in the holding to X who is not co-sharer tenant of the holding. Under this circumstance, ‘A’ & ‘B’
collectively, or, ‘A’ or ‘B’ separately may exercise the right of pre-emption. Another example is
required to explain it well. Suppose, ‘X’, ‘Y’ and ‘Z’ are co-sharer tenants of the holding No.650
by inheritance and ‘M’ and ‘N’ are co-sharer tenants by purchase. Their sharer’s in the holding are
respectively 10, 15, 20, 10 and 15 decimals. ‘Y’ has sold his portion in the holding to ‘A’ who is a
stranger; not co-sharer tenant of the holding. Here, the right of pre-emption arises to ‘X’ and ‘Z’
but not to ‘M’ and ‘N’ because they are co-sharer tenants by purchase who cannot exercise the
right of pre-emption under the new section. 'X' and ‘Z’, both or any of them may exercise the right
of pre-emption.

Sometimes confusion arises as to the nature of the land in respect of which the pre-emption is
sought for. Under section 96, an application for pre-emption lies when an agricultural land is
transferred by way of sale. An agricultural land is a land which is used for the purpose of
agricultural or horticulture.
 Page |9

Requirements for Amended Section 96 Pre-emption Application

Parties to the Pre-emption Application: A person to whom the holding, or a portion or share
thereof, may be sold under section 90, as well as a co-sharer tenant in the holding by
inheritance, may apply for pre-emption.
The following persons are entitled to make an application for pre-emption:
a) Co-sharer tenant or tenants of a holding by inheritance (where a portion or share of a
holding is sold).
b) Applicant must be tenant when a holding of a raiyat is sold.
c) Applicant must be a person to whom sale of the holding or the portion or share thereof, as
the case may be, can be made under section 90.

It is crucial to note that a co-sharer or tenant holding adjacent lands cannot apply for pre-emption
under revised section 96. Although the seller is a co-sharer and a party in a pre-emption application,
he cannot apply for pre-emption. Co-sharers are made parties in pre-emption proceedings to allow
them to exercise their similar rights. However, the co-sharer seller cannot apply for pre-emption
of his sold portion, even though he is a party.
In an application for pre-emption under section 96, all other co-sharer tenants by inheritance of the
holding and the purchaser shall be made parties18 (opposite parties).

Time limitation for Pre-emption Application: Right of pre-emption has to be exercised

within two months either:
i. from the date of service of notice of the sale (served under section 89 of the Act) by co-
sharer tenants of the holding by inheritance or
ii. from the date of knowledge of sale (where no notice of the sale has been served under
section 89 of the Act) by co-sharer tenants of the holding.19

Pre-emption applications must be submitted within three years after the selling deed's registration
date.20 If they so choose, any of the surviving co-sharer tenants may join the initial pre-emption
application under the following schedule:

i. within two months from the date of service of notice of the sale (served under section 89
of the Act), or
ii. within two months from the date of knowledge of sale (where no notice of the sale has been
served under section 89 of the Act), or
iii. within two months of the date of the service of the notice of the application under sub-
section (4), whichever be earlier.21
Other Necessary Conditions: To apply for pre-emption, the application must include a
deposit of the consideration money for the sold holding, as stated in the notice or deed sale, as
well as compensation at the rate of 25% and simple annual interest at the rate of 8% from the

18
Section 96 (2), The State Acquisition and Tenancy Act, 1950, Ibid
19
Section 96(1), SAT Act,1950
20
Proviso of Section 96(1),
21
Section 96(6), SAT Act,1950
 P a g e | 10

date of the sale to the date of filing the application. Otherwise, the application will be denied.
22
In case of improvement of purchased land by the purchaser, the applicant must deposit
compensation on a direction of the court.
The Courts Orders to a Pre-emption Application: If an application for pre-emption is
allowed, the following orders shall be passed by the court:
a) allowing the application or applications made by the applicant or applicants who are
entitled to purchase under, and have complied with the provisions of this section;
b) apportioning the holding or the portion or share of the holding among them in such manner
as it deems equitable when such orders are passed in favour of more than one applicant
under sub-section (8);
c) refunding money to any one if entitled to such refund of any money from the amount
deposited by the applicant or applicants under sub-sections (3) and (5);
d) directing that the purchaser be paid out of the deposits made under sub-sections (3) and
(5);
e) directing the purchaser to execute and register deed or deeds of sale within sixty days in
favor of the person or persons whose application or applications have been allowed; and
no tax, duty or fee shall be payable for such registration.

The court cannot annul or declare a deed void, fraudulent, or collusive when evaluating an
application under Section 96. If the purchaser does not register the deeds of sale within the
specified time frame, the court will do so within 60 days.

Lacunae in Substituted Section 96

Some troubles may turn out from the new section 96 because under this section, only aco-sharer
tenant of the holding by heritage is entitled to convert, but there's confusion. where aco-sharer
tenant of the holding by purchase can commandeer or not. However, the anomalous may arise,
which can be explained by an illustration, If aco-sharer tenant by purchase cannot make an
operation. X is aco-sharer who Came co-sharer by grip of the finding or Khatian No. 202 in 2003
and dies after a many months, his heirs at law will come co-sharers by heritage of that finding
and will be authorized to file an operation for appropriation, but Y, aco-sharer by purchase of that
holding who bought in 1997 and is still alive, won't be privileged to file an employment for
usurpation under section 96 in view of sub-section( 1).

Pre-emption under the Non-Agricultural Tenancy Act (NATA), 1949

The Non-Agricultural Tenancy Act's section 24 deals with the pre-emption right with regard to
non-agricultural land. This section's rules apply to land located in a municipal area. 23Pre-emption
in respect of non-agricultural is only possible under section 24 of Non-Agricultural Tenancy Act.
Provision of section 96 of the SAT Act is not applicable to such case.24 The SAT Act's sub-sections
(2) and (3) do not implicitly repeal section 24 of the Non-Agricultural Tenancy Act. The object of

22
Section 96(3), SAT Act,1950
23
Md. Abdur Rouf v. Ahmuda Khatun 33 DLR (AD) 323
24
Forman Ali Howladar v. Helaluddin Rashari and others, 20 DLR, 1197
 P a g e | 11

section 24 of the Act is to prevent non-agricultural tenancy lands from being possessed by stranger
purchasers if the other co-sharer tenants desire to have the same themselves.25

“If a portion or share of the non-agricultural land held by a non-agricultural tenant is transferred,
one or more co-sharer tenants of such land may, within four months of the service of notice issued
under section 23 and, in case no notice had been issued or served, then within four months from
the date of knowledge of such transfer, apply to the court for such portion or share to be transferred
to himself or to themselves, as the case may be.”26

“The application under sub-section (1) shall be dismissed unless the applicant at the time of making
it deposits in Court the amount of the consideration money or the value of the portion or share of
the property transferred as stated in the notice served on the applicant under section 23 together
with compensation at the rate of five per centum of such amount.”27

Case: Forman Ali Howladar v. Helaluddin Rashari and others, 20 DLR, 1197

Facts:

Parties Involved: The case involved Forman Ali Howladar, the plaintiff, and Helaluddin
Rashari along with others, the defendants.
Nature of Transaction: The case revolved around a property transaction whereby the
defendants sold a piece of land. Forman Ali Howladar claimed the right of pre-emption,
asserting that he had the superior right to purchase the property before it could be sold to
any third party.
Claim of Pre-emption: Forman claimed his right was based on his existing ownership of
adjacent land, which made the transaction relevant to him. Under the NAT Act of 1949, a
person can exercise the right of pre-emption if they have a legitimate interest in the property
being sold.
Legal Proceedings: The case was brought to the court to establish whether Forman had
properly exercised his pre-emption rights and whether the sale to the defendants was valid
under the provisions of the Act.
Court's Findings: The court examined the claims of the parties, including any evidence
presented regarding the nature of the pre-emption claim and adherence to procedural
requirements under the Act.

Facts in Issue:

Parties: The plaintiff, Forman Ali Howladar, was a neighbor and the defendants,
Helaluddin Rashari and others, had sold land that was the subject of the dispute.

25
Shyamapada Bhattacharjee v. Satya Gopal Majumder, (1963) 67 CWN 599
26
Section 24(1), The Non-Agricultural Tenancy Act, 1949
27
Section 24(2), NAT Act,1949
 P a g e | 12

Land Sale: The defendants sold a piece of property without offering it to the plaintiff
first, which prompted Forman to claim his pre-emption rights under the NAT Act.
Pre-emption Claim: Forman claimed that, as an adjoining landowner, he had the right
to pre-empt the sale of the land to the defendants, asserting that he fulfilled the legal
requirements for pre-emption.
Notification and Timeliness: One of the critical issues was whether Forman was
properly notified of the sale and whether he acted within the time frame stipulated by
the law to claim his right of pre-emption.
Counter-Claims by Defendants: The defendants could have argued about the validity
of Forman’s claim, possibly contesting the nature of his interest in the property and
whether he had met the procedural requirements under the NAT Act.
Court Evaluation: The court had to consider if Forman's claim met all necessary
conditions under the NAT Act, including legitimacy of interest, timeliness of the
application, and proper notice.
Judgment:

Recognition of Pre-emption Rights: The court affirmed the right of pre-emption,

recognizing that property owners adjacent to a property being sold have a legitimate
interest in the transaction. Forman Ali Howladar, as an adjoining landowner, claimed
this right.
Compliance with Legal Requirements: The court closely examined whether Forman
had complied with the procedural requirements set out in the NAT Act. This included
verifying that he had:
o Properly notified the seller of his intention to pre-empt the sale.
o Filed his claim within the required timeframe after the sale had taken place.
Timeliness: One of the key issues was whether Forman acted promptly regarding his
pre-emption claim. The judgment assessed if he adhered to the deadlines established
by law for claiming the right of pre-emption.
Evidence and Testimonies: The court evaluated the evidence and testimonies
presented by both parties. It emphasized the importance of providing substantial proof
to affirm the plaintiff’s claims.
Decision: Ultimately, the court ruled in favor of Forman Ali Howladar, allowing him
to exercise his right of pre-emption. The judgment confirmed that Forman had met the
legal requirements established under the NAT Act, thereby entitling him to purchase
the land in question before it could be sold to third parties.
Impact on Future Transactions: The court's judgement highlighted the significance
of ensuring that neighboring landowners are afforded the opportunity to pre-emptively
purchase property, reinforcing the importance of community integrity in property
transactions.
 P a g e | 13

Comparison of Two Existing Legislations about Pre-emption

In order to understand the concept of pre-emption in respect of non-agricultural tenancy land a
comparison can be drawn between section 24 of the Non-Agricultural Tenancy Act, 1949 and
section 96 of the SAT Act, 1950.

Firstly, Section 24 of the Non-Agricultural Tenancy Act pertains to non-agricultural lands, while
Section 96 of the SAT Act applies to agricultural lands.

Secondly, Pre-emption applications can be made within four months of receiving notice under
section 23 or, if no notice is served, within four months of becoming aware of the transfer under
section 24(1). Alternatively, under substituted section 96(1), applications can be made within two
months of receiving notice under section 89 of the SAT Act or within two months of becoming
aware of the transfer. Section 24 does not mention such a time limit.

Thirdly, the right of pre-emption conferred by section 24 is confined to the co-sharers in the
tenancy.28 The right of pre-emption under substituted section 96 can only be exercised by a co-
sharer tenant in the holding by inheritance and a person to whom sale of the holding or the portion
or the share thereof, as the case may be, can be made under section 90.29

Fourthly, to apply for pre-emption, section 24 requires a deposit of the transferred property's
consideration money and a 5% compensation rate.30 Section 96 requires an application for pre-
emption to be accompanied by a deposit of the sold holding's consideration money, compensation
at the rate of 25%, and simple annual interest at the rate of 8% from the date of sale execution to
the date of filing the application.31 No interest is necessary to be paid, at the time of filing an
application for pre-emption under section 24.

Fifthly, In case of pre-emption under section 24, the applicant must deposit the amount paid by
the transferee for rent, annulling encumbrances, erecting structures, or making improvements to
the property between the transfer date and the service of notice of application.32 Conversely, in the
event of pre-emption under section 96, the applicant or applicants will be obliged to deposit
additional funds or cover costs incurred by the buyer for three reasons: (1) rent; (2) removing
encumbrances; and (3) making improvements related to the transferred property. Yet, paying
interest in full is not required.33

Sixth, in case of pre-emption under section 24, remaining co-sharer tenants, including the
transferee, can apply to join the original application made under section 24(1) within four months
or one month of receiving notice of the application, whichever is later. Section 96 allows surviving

28
Manindra Chandra Ghosh v. Majibul Islam, (1960) 12 DLR 785
29
Supra Note 21
30
NAT Act,1949
31
Supra Note 28
32
Section 24(3), Supra Note 31
33
Section 96(5), Supra Note 19
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co-sharer tenants to apply to join the initial application within two months of receiving notice of
the application, whichever is earlier. Section 96 does not allow purchasers to join the initial
application as co-applicants. 34

Seventh, according to section 24, the court may distribute the transferred property among the
applicants in any way it thinks fair, taking into account the applicants' existing possession, when
granting the motion for pre-emption in favour of multiple co-sharer tenants.35 The court will
apportion property based on the request of any applicant. New section 96 requires the court to
apportion the sold holding among the applicants in a fair way.36 The expression "after taking
existing possession into consideration" is not therein section 96.

Comparison of Muslim Law and Legislation on Pre-emption

In Bangladesh the provision of Pre-emption under Muslim Law is only applicable between two
Muslims but not between Muslim and Non-Muslim; if the dispute arises between Muslim and
Non-Muslim, the statutory laws (i.e. the SAT ACT, 1950 & the NATA Act, 1949) will be
applicable. The other differences between the Muslim law and the SAT Act, 1950 are as follows:
i. In Muslim law, the right of pre-emption can only be exercised by a co-sharer tenant or
Khatian by inheritance under Section 96. Three classes of people are entitled to this right:
(i) shafi-e sharik (a co-sharer in the property), (ii) shafi-e khalit (who has a right of
easement, right of way, and water), and (iii) shafi-e jar (neighbour).
ii. Section 96 of the SAT Act requires depositing 25% compensation on consideration money
and 8% simple interest when applying for pre-emption. However, this is not necessary for
pre-emption under Muslim Law.
iii. Pre-emption applications can be made within two months of receiving a notice under
section 89 of the SAT Act, or within two months of becoming aware of the sale. The
application cannot be made after three years from the date of registration of the sale deed.
In Muslim law, a suit for pre-emption must be filed within one year of registration or the
date of knowledge of the sale.37
iv. According to section 96 of the SAT Act, no procedures are required before applying for
pre-emption. However, under Muslim Law, certain requirements must be followed.
v. To apply for pre-emption, there is a predetermined court fee, however for Muslim law, an
ad valorem fee is required.
vi. in section 96, if an application is approved, the purchaser must execute and register a deed
as directed by the court (44). However, there is no provision for pre-emption in Muslim
law.
vii. Section 96 requires filing an application for pre-emption, sometimes known as a misc case,
without a formal decree. In Muslim law, pre-emption cases are treated like civil suits, with
a decree issued.

34
Supra Note 28
35
Section 24(7), Supra Note 31
36
Section 96(9)(b), Supra Note 19
37
Supra Note 16
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The Importance of Pre-emption in the Present Society

Preemption originated in Muslim law and spread to the Indian subcontinent. It is incorporated into
the statutory laws. Co-sharers can use pre-emption rules to prevent strangers from extending their
portion of a holding or land. The goal is to save the co-sharers or neighbors from inconvenience,
not to extend other co-sharers' property. Although important, it has lost part of its significance in
today’s culture. The culture has become more mobile, and individuals no longer stay in one
location permanently. It does not matter to the people of a society who become the owner of an
adjoining land or holding. Pre-emption in case of non-agricultural land or municipal area is now
rare due to mobilized society. The significance of pre-emption in village areas or for agricultural
property cannot be overstated. Villagers may be hesitant to welcome strangers, but this is changing
with the times. As a result, pre-emption becomes less important in villages. The SAT Act's
substituted section 96 limits the scope of pre-emption in agriculture. The new section restricts pre-
emption to co-sharer tenants by inheritance, whereas co-sharer tenants via purchase or bordering
land owner are not eligible. Pre-emption suits under Muslim law are typically launched as civil
suits, requiring ad valorem court fees and challenging proof of formalities. Statutory legislation
cannot override the power of pre-emption granted by Muslim Law.

Recommendation
Pre-emption is the right of a co-sharer renter to a holding. Pre-emption was once common in the
Indian subcontinent and Bangladesh, but its use has become increasingly limited over time. Pre-
emption is no longer as important in today's society. People are busy with their lives and
occupations, leaving little time for visits to the adjacent land. Some people still apply for pre-
emption of agricultural land, when necessary, despite the legal complexities and the fact that the
area has already been renovated. To address these circumstances, do the following steps:

i. A seven days’ notice should be hanged over the land which will be proposed to sell.
ii. After registration, the registered office should issue a notification at the purchaser's cost.
This prevents future complications and allows for smoother improvements to the purchased
land.
iii. The maximum time limitation of application for pre-emption should be six months (present
it three years).
iv. Under revised sec. 96, only co-sharer tenants of holding by inheritance can apply, however
this generates discrimination against co-sharer tenants of holding by purchase (as indicated
in point no. 2.2.8 of this paper). The bar should be eliminated.
v. ADR should be made mandatory in the pre-emption process. This means that before filing
a suit or applying for pre-emption, one must first go through ADR. If ADR fails, the
conventional process can be used instead.
 P a g e | 16

Conclusions
The right of pre-emption is not a right to repurchase, but it is a right of substitution, entitling the
pre-emptor to stand in the shoes of the purchaser. In the past, the application of Pre-emption was
high in Bangladesh; still today it does not lose its importance wholly, but after the substitution of
Section 96, the number of applications for pre-emption is reduced comparatively. This section
limits the scope of bringing an application for pre-emption. The present statutory laws discourage
people from coming before court for pre-emption. Now the time is changed; it’s the time of
globalization, so who comes near the land of another is not getting importance, and this approach
is reflected on pre-emption in Bangladesh presently.

Refrences
1) The State Acquisition and Tenancy (Amendment) Act, 2006, (Act No. XXXIV of 2006),
http// www. Bdlaws.govtbd. com
2) The Non-Agricultural Tenancy Act, 1949, http// www. Bdlaws.govtbd. com
3) Khalid Rashid, Muslim Law, 4th Edition, Eastern Book Company, Lucknow, 2004
4) Syed Lutfor Rahman, Pre-emption Laws in Bangladesh, 1st Edition, Ain-Grantha
Prokashak, Dhaka, 1984
5) M. Hedyatullah and Arshad Hedayatullah (Ed), Mulla’s Principles of Mahomedan Law,
19th Edition, Tripathi,
6) ASAF A. A. Fyzee, Outlines of Muhammadan Law, 4th Edition, Oxford University Press,
Delhi
7) Justice Mohammad Hamidul Haque, Trial of Civil Suits and Criminal Cases, 2010, P. 166