What rights and remedies do you have under Article 42 (rights to property)?
Do you know what fundamental rights and remedies under Article 42 (rights to property) you have in the High Court Division? Do you know High Court is there for you to protect your rights to property? Do you know what you can do when any authority violates the rights to property? What the recourse or redress can you take when you have been subjected to violation of rights to property? If not, this piece of writing let’s you know your rights and remedies under article 42. A Writ Petition can be filed before the High Court Division if any authorities violate rights to property.
Article 42 of the Constitution of Bangladesh protects the Right to Property. It protects an individual's right to own and manage assets from the state's power to take private property for public use. Article 42 provides two primary layers of protection for citizens; 1) according to Article 42(1), no property can be compulsorily acquired, nationalized, or requisitioned except by the "authority of law." This means the government cannot simply seize land via an executive order; it must follow a specific statute (e.g., The Acquisition and Requisition of Immovable Property Act, 2017). 2) According to Article 42(2), any law providing for acquisition must also provide for compensation. It must either fix the amount or specify the principles by which the compensation will be assessed and paid. When the right to property under Article 42 of the Constitution is violated by the State, statutory bodies, or government authorities, a Writ Petition may be filed before the High Court Division of the Supreme Court of Bangladesh under Article 102.
Constitutional Provision:
Article 42(1) of the Constitution of Bangladesh provides that every citizen has the right to acquire property, to hold property, to transfer property and to dispose of property. However, the State may compulsorily acquire, nationalise, or requisition property only by authority of law.
Article 42(2) of the Constitution of Bangladesh ensures that any law authorising acquisition or requisition must provide for the compensation, and fix the amount or principles for determining compensation.
Issues, Matters, and Grounds for Filing a Writ Petition under Article 42:
Acquisition of Property without Authority of Law:
Issue: The State cannot acquire property without legal authority.
Grounds for Writ: A writ petition may be filed where government authorities acquire or occupy private property without statutory authority, or land is taken by the government without following acquisition laws.
Example: A local administration constructs a public road over private land without initiating lawful acquisition proceedings.
Judicial precedent: In case of Fazlur Rahman, property cannot be taken without lawful authority and proper procedure.
Acquisition of Property without Compensation:
Acquisition refers to the permanent taking of a private property by the State for a public purpose. State has the power to take private land for public projects.
Issue: Article 42 requires compensation when property is compulsorily acquired. If the state occupies land but fails to assess or pay the compensation, a Writ petition can be filed under Article 102 to compel the authorities to perform their constitutional duty.
Grounds for Writ: A writ petition may be filed where 1) property is acquired without payment of compensation, 2) authorities delay compensation unreasonably, and 3) compensation is not determined according to the law.
Example: the government acquires agricultural land for a highway project but fails to pay compensation to the landowner.
Judicial precedent: the state must follow statutory procedures and ensure compensation when acquiring property.
Requisition of Property without Following Legal Procedure:
Issue: Requisition refers to the temporary taking of a property by the State for a public purpose. If the government or a public body takes over your land or building without following the mandatory legal steps, it is a violation of your fundamental rights.
Grounds for Writ: A writ petition may be filed where property is requisitioned without lawful order, or authorities continue possession beyond legal limits.
Example: A private building is requisitioned for government office use but remains under government control long after the requisition period expires.
Judicial precedent: in the case of Abdul Jalil, the Court held that requisition must comply strictly with statutory requirements.
Arbitrary Cancellation of Property Rights
Issue: Authorities cannot arbitrarily interfere with property ownership.
Grounds for Writ: A writ petition may be filed where authorities cancel land ownership or lease without lawful authority, or government officials interfere with lawful possession of property.
Example: A government department cancels a long-term lease of land without giving notice or opportunity of hearing.
Judicial precedent: Government actions affecting legal rights must comply with due process of law.
Arbitrary Interference with Transfer or Disposal of Property:
Issue: Article 42 guarantees the right to transfer or dispose of property. Such interference violates Article 42.the arbitrary interference with transfer of property violates Article 42.
Grounds for Writ: A writ petition may be filed where authorities unlawfully prevent sale or transfer of property, or government imposes restrictions not authorized by law.
Example: A landowner attempts to sell property but the authority refuses registration without legal reason.
Unlawful Occupation of Private Property by Public Authorities:
Issue: Government authorities cannot occupy private property without lawful acquisition or requisition. Courts may order restoration of possession or compensation.
Grounds for Writ: A writ petition may be filed where public authorities illegally occupy private land, or government projects use land without completing acquisition procedures.
Example: A government agency constructs a drainage system across private land without acquisition or compensation.
Conclusion:
A Writ Petition may be filed where property is acquired without authority of law, acquisition occurs without compensation or legal procedure, property is requisitioned unlawfully, authorities cancel or interfere with property rights arbitrarily, property is nationalised without lawful authority, government unlawfully prevents transfer or disposal of property, and public authorities occupy private property illegally.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist
+8801971993639
lawyer.kamruzzaman@gmail.com