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Can You Build on Land Under Litigation? Development Rights in Bangladesh

The short answer

A pending lawsuit does not, by itself, freeze your land. In Bangladesh, construction on disputed land is stopped only by a court order, such as a temporary injunction or a status quo direction. A court grants one only when the person seeking it proves a prima facie case, irreparable injury and the balance of convenience.

In partition suits over urban land, the Appellate Division has settled a further rule. A co-sharer in possession of a specific portion may build on it at his own risk. If that portion later falls in another co-sharer's share, the construction can be removed. Courts adopted this rule because urban land is scarce and partition suits often run for decades.

The right has limits. Construction will be stopped where:

• the builder's title rests on a forged or fraudulent document;
• the work would reduce the value of the land or prejudice other co-sharers; or
• the builder is not actually in possession.
• Whoever buys land during a pending suit takes it subject to the result of that suit.

The legal provisions

No single statute answers the question. The answer comes from the procedural law on injunctions, the law on transfers during a suit, and the constitutional right to property, read together with case law.

The building rules also continue to apply. Construction in a city still needs plan approval from the development authority, such as RAJUK or the Chattogram Development Authority, whether or not a suit is pending.

The three tests before construction is stopped

The party who wants construction stopped must satisfy all three tests. The leading authority is Uttara Bank Ltd. v. Macneill Kilburn Ltd., 33 DLR (AD) 298. The Appellate Division held there that an injunction is granted only when the Court is satisfied that:

the applicant has a prima facie case to go to trial;

protection is necessary from irreparable injury before his legal right can be established; and

the mischief or inconvenience from withholding the injunction will be greater than that from granting it, which is the balance of convenience.

The Court added that there can be no injunction for an actionable wrong for which damages are a proper remedy.

Bangladeshi courts also draw on the House of Lords decision in American Cyanamid Co. v. Ethicon Ltd., [1975] AC 396. Under it, the court weighs the applicant's need for protection against the other side's need to exercise his own legal rights. The High Court Division adopted this approach in Monjur Alam v. Rezia Begum, 9 LNJ (2020) 213.

In construction disputes, the second and third tests often decide the case. Stopping a half-built project causes loss that rises as building costs increase. A share of land lost by a co-sharer can usually be made good by allotment, demolition or compensation at the final decree.

The “build at your own risk” rule

In urban partition suits, a co-sharer in possession is ordinarily free to build. The rule developed through five decisions.

1. Ali Ahmed v. Rezia Begum and others, 1986 BLD (HCD) 326. This was the first decision to state the principle:

“In the present day scarcity of the accommodation in the urban areas a co-sharer should not be deprived of using the land in his possession by making construction at his risk … If any portion of the constructed area falls in the saham of another co-sharer, the possession thereof shall be given to the allottee by demolition of the construction.”

The same judgment set the limit: “no change in the nature and character of the suit land which would diminish the value of the land or cause prejudice to the other co-sharers should be allowed.”

2. Md. Mofazzal Hossain v. Mainuddin, 3 BLC (AD) 78. The Appellate Division approved the refusal of an injunction. It held that the defendants “cannot be restrained from making construction on the suit land taking the risk that a portion of it will be liable to be demolished if the plaintiffs get a decree in future.”

3. Md. Nasir Uddin Howlader v. Abul Kalam, 8 BLC (AD) 156. The Appellate Division recorded that “the principle has now been settled that in case of land in urban areas there shall not be any injunction restraining construction by a co-sharer.” It upheld the setting aside of an injunction where the builder was in actual possession of a specific, demarcated portion.

4. Abul Kalam, Engineer v. M. Nasiruddin Howlader, 54 DLR (HCD) 515. The High Court Division gave the reason for the rule:

“Scarcity of the land and pressure for accommodation … in urban areas are growing while the time for resolution of a dispute is so uncertain that nobody can say when it will finally come to an end: In such situation right of a co-sharer to develop the land in his specific possession cannot be denied by an interlocutory order of injunction till partition, which would be inequitable.”

5. Monjur Alam and others v. Rezia Begum and others, 9 LNJ (2020) 213 (Civil Revision No. 2970 of 2017, decided 18.11.2018). This case arose from a partition suit in Chattogram. The defendant had built a six-storied building and had started a second one under a Chattogram Development Authority plan. He produced his sale deeds, mutation khatian, rent receipts, holding tax and electricity bills, and an Advocate Commissioner's report showing his possession.

The High Court Division found that these documents “prima facie show title followed by exclusive possession.” It held that stopping the work would cause irreparable loss “as construction cost will rise from time to time.” It vacated the status quo order and declared him “at liberty to proceed with the construction work at his own risk.”

What “at your own risk” means. The builder takes the chance that the court may allot the built-on portion to someone else. In that event the structure may have to be demolished, or the builder may have to accept what the final decree provides. Courts expect the builder to claim no special equity for the money spent.

When the court will stop construction

The own-risk rule is not a licence. Courts restrain construction in the following situations.

Title based on a forged or fraudulent document. In Md. Hashem Ali v. Begum Nurjahan, 9 MLR (AD) 314, the Appellate Division held that where a deed of gift is “found palpably forged and fraudulent the Court can rightly restrain construction of building on the land based on such type of deed by an order of injunction or status-quo.” In Monjur Alam the builder succeeded partly because “no question of forgery is raised.”

Work that diminishes value or prejudices co-sharers. Following Ali Ahmed (1986 BLD 326), improvements are allowed but destructive changes are not. Examples are demolishing a common structure or blocking a common passage. Any change that makes fair partition impossible may also be restrained.

The builder is not in possession. The rule protects a co-sharer building on the portion he actually holds. In Nasir Uddin Howlader (8 BLC (AD) 156) the builder's specific, demarcated possession was decisive. A party who must first dispossess someone else cannot rely on it.

Rural or agricultural land. The cases all rest on the scarcity of urban land. Outside urban areas, courts are more willing to preserve the land as it is until partition.

An injunction or status quo order is already in force. Building in breach of a court order is contempt of the order. Under Order XXXIX, rule 2(3) of the CPC it can lead to attachment of property and civil detention. Courts may also order the unauthorised structure removed. The proper course is to apply to vacate or vary the order, or to appeal under Order XLIII, rule 1(r), not to ignore it.

Transfers during the suit. Section 52 of the Transfer of Property Act, 1882 does not forbid a sale. However, a buyer or developer who takes the land while the suit is pending is bound by the final decree. A land-owner signing a joint-venture or development agreement during litigation must disclose the suit to the developer.

Practical guidance

Courts decide these applications on documents. The side with the better paper record usually wins.

If you want to build on land under litigation:

☐ Confirm that no injunction or status quo order is in force against you, in this or any related suit or appeal.

☐ Keep your title papers in order: deed, mutation khatian, up-to-date rent (land development tax) receipts, holding tax and utility bills.

☐ Obtain plan approval from the development authority before starting.

☐ Build only on the portion you actually possess. Consider asking for local investigation by an Advocate Commissioner to record it.

☐ Be ready to give the court an undertaking that you build at your own risk and will abide by the final decree.

☐ If an injunction is granted, appeal under Order XLIII, rule 1(r) promptly. A revision is not maintainable: Daulat Ahmed v. Md. Shafiqul Islam Chowdhury, 58 DLR (AD) 43.

If you want to stop construction by a co-sharer:

☐ Apply early, before the structure is substantially complete, since delay weakens the balance of convenience.

☐ Show your own title and possession, not merely a share on paper.

☐ Show how the work will diminish the land's value or defeat a fair partition, or that the builder's documents are forged.

☐ Ask for a local inspection if the builder's possession is in doubt.

☐ Where the court refuses a full injunction, ask for safeguards: an undertaking, no transfer of flats without disclosure of the suit, or a direction for expedited hearing.

How Justice Corner can help

Whether a project goes ahead often turns on the first hearing of an injunction application. Justice Corner advises land-owners, co-sharers, developers and buyers at every stage:

reviewing title and the litigation record before a development agreement is signed;

opposing or seeking injunctions and status quo orders in the trial court;

filing appeals under Order XLIII and petitions before the High Court Division and the Appellate Division.

Contact us for an early assessment of your position. [Insert contact details.]

This article is general information on the law of Bangladesh as of the date above and is not legal advice. Outcomes depend on the facts of each case.

Authorities cited