ANANDA MOHAN_KUNDU-AND ANOTHER Versus THE PROVINCE OF EAST PAKISTAN AND 4 OTHERS

1. SIDDIKY, C. J.‑ Two persons obtained this Rule nisi against the 5 respondents of whom the respondent No. 1 is the Province of East Pakistan, for a declaration that the action taken by respondent No. 4, the Sub‑Divisional Officer, Pirojpur in the District of Bakarganj on the 29th and 30th of December 1965 in respect of the properties comprised in Plots Nos. 526, 526/852 and 528 of Mouza Ujialkhan within P. S. Kaukhali, District Bakarganj, is without any lawful authority and why a direction shall not issue upon the respondents to restore possession of the said property to the petitioners and for other consequential reliefs as mentioned in several other prayers.

2. A little detailed discussion of the facts pertaining to the case is necessary for disposal of this rule.

3. It is stated by the petitioners that petitioner No. 2 was a monthly tenant in respect of Plot No. 526 under one Sureshsince 1362 B. S. and petitioner No. 1 was residing in a two‑storied building in Plot No. 2257/2281 as a tenant under one Nani Gopal until 10‑7‑1963. On 10‑7‑1963 on the strength of a requisition order passed in Requisition Case No. 10 of 1963, petitioner No. 1 was dislodged from the said two‑storied building. This house was required, as disclosed in the requisition order, for the office‑cum‑residential accommodation of the Circle Officer, Development, who is respondent No 5 in the present petition. Later the house was de‑requisitioned by an order of the Deputy Commissioner, Bakarganj and possession was ordered to be given to the auction purchaser of the property but the Circle Officer, Development continued to live in the said premises even after de‑requisition up to a certain time to which we shall refer to later.

4. Next it is the case of the petitioners that they were carrying on negotiations since 1369 B. S. with the constituted Attorney of Suresh for purchase of Suresh's share in Plots Nos, 526/852 and 528 to the extent of `33 acres of land with some structures which are the subject‑matter of the present petition. Ultimately on the 8th Poush, 1370 B. S., corresponding to 25‑12‑63 an agreement was entered into between the petitioners and the said Attorney of Suresh for purchase of `33 acres of land of the aforesaid three plots by the petitioners at a price of Rs. 4,500 out of which the petitioners paid a sum of Rs. 3,000 and in lieu thereof obtained possession of the property from the said Attorney of Suresh. Since taking possession of the property in question, the petitioner No. 1 has been carrying on the business of betel nut in Plot No. 528 and put up a two‑storied kutcha structure thereon. Petitioner No. 1, had a stock of betel nuts of the value of not less than Rs. 50,000 on the premises.

5. On 18‑10‑1965, these properties in question, which originally belonged to Suresh, were requisitioned by the Deputy Commis sioner, Bakarganj in Case No. 12 of 1965‑66 for a firm named Messrs Karim Rice Mills. This requisition affected not only the properties in question but also some other belonging to certain other persons. The owners of those excess properties filed an appeal being Appeal No. 61 of 1965 on 15‑11‑1965 before the Commissioner of Khulna Division against the said order of requisition and the Commissioner, pending hearing of the appeal, granted stay of the operation of the requisition order, which was communicated to the Requisitioning Authority

6. On 29‑12‑1965, respondent No. 4 herein, the Sub‑Divisional Officer, Pirojpur, came with a representative of the Karim Rice Mills to the premises in question and threatened the petitioners with immediate eviction there from on the plea that the property belonged to an enemy and obtained by coercion a written under taking from the petitioner No. 1 that he would vacate the premises on the following day, i.e. the 30th December 1965. The petitioner filed an application before the Sub‑Divisional Officer, Pirojpur, respondent No. 4, praying for seven days' time and stated in the same that he being non‑plused at the threatenings of the Sub‑Divisional Officer had given the under taking in writing to vacate the premises immediately. He also moved the Deputy Commissioner, Bakarganj by a petition on the same day in which he prayed for his intervention in the matter as the petitioner was being ousted from the property by the Sub‑Divisional Officer, Pirojpur without any lawful authority. The Deputy Commissioner, Bakarganj by a telegram on that very day i.e., 30‑12‑65, addressed to the Sub‑Divisional Officer, Pirojpur, a copy of which was endorsed to the Officer‑in- Charge of Kaukhali P. S., directed the Sub‑Divisional Officer not to interfere with the possession of the petitioner and prohibiting him from evicting the petitioner from the premises in question. In spite of receipt of this direction from the Deputy Commissioner, the Sub‑Divisional Officer, Pirojpur evicted the petitioner from the premises on that very day (30‑12‑6 5) in the afternoon with the help of Kawkhali Police and threw him virtually on the street with all his stocks in trade.

7. The appeal that was filed before the Commissioner in respect of this requisition (Case No. 12 of 1965‑66) was on the 8th of February 1966, allowed by the Additional Commissioner, Khulna Division. The Additional Commissioner. Khulna Division wrote a lengthy judgment in disposing of the appeal (Annexure "F" a in which he found, as a fact, that the Karim Rice Mills had not yet come into existence and that the purpose for which the requisi tion was made, i.e. for accommodation of a private Rice Mill, was not a public purpose and it was also not in public interest. He further found that previously prayers by the said .Rice Mills for requisition of the lands for setting up a husking Mill were twice refused. He also found that the Proprietor of the Husking Mill who happens to be a brother of a learned Advocate of this Court by the name of Mr. Abdus Sobhan had lands of his own in Kankhali Bandar where the requisitioned property is also situate and could set up the Rice Mills on his own land. He, therefore, allowed the appeal and set aside the requisition order. He took serious view of the conduct of the Sub‑Divisional Officer, Pirojpur in forcibly evicting the petitioners from the requisitioned premises with Police force in spite of the order of stay granted by the Commissioner earlier and also in spite of the prohibitory order issued by the Deputy Commissioner, Bakarganj on the 30th December 1965. He directed the Deputy Commissioner, Bakar ganj to look into the matter as he felt that the action of the Sub -Divisional Officer was wholly illegal and high‑handed.

8. It is further the case of the petitioners that the properties covered by Requisition Case No. 10 of 1963 were de‑requisitioned in 1964 by the Deputy Commissioner, Bakarganj but despite the order of de‑requisition not only the petitioners therein were not allowed to take back the possession but the Karim Rice Mills was inducted therein illegally by the Sub‑Divisional Officer, Pirojpur when he found that the properties covered by the present petition, which were requisitioned for the Karim Rice Mills could not be given to them because of the Commissioner's staying the requisition order as mentioned earlier.

9. It is also the case of the petitioners that the Sub‑Divisional Officer, Pirojpur finding it difficult for him to induct the Karim Rice Mills into the premises in question because of the order of the Commissioner staying the requisition order, he forcibly evicted the petitioner on 30‑12‑65 and inducted therein the res pondent No. 5, the Circle Officer, Development, for whose accommodation neither any requisition order was made in respect of this property nor there was any other ground to do so except to accommodate Karim Rice Mill in the premises hitherto occupied by respondent No. 5 i.e., the land and structures already de‑requisitioned (Case No. 10 of 1963). Upon these facts, learned Advocate for the petitioners has contended before us the following points:‑

(1) That the respondent No. 4, the Sub‑Divisional Officer, Pirojpur had no authority either under the East Pakistan (Emergency) Requisition of Property Act, 1948 or under the Defence of Pakistan Rules which control the enemy properties to take forcible possession of the property in question; and

(2) that the eviction of the petitioners from the premises on 30‑12‑1965 was not only illegal, unauthorised and arbitrary but was also mala fade and for a collateral purpose.

10. Mr. Khondkar Mahbubuddin Ahmad, learned Advocate for the petitioners has further contended that the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order, 1966 does not authorise the Custodian of the Enemy Property or for that matter, any of his subordinates to evict a person from a property which may belong to an enemy if the person in occupation is found to be on it on some right, however limited it may be. His further contention is that even if the occupier of enemy property is found to be a trespasser, he too is entitled to seven days' notice for showing cause as to why he should not be evicted therefrom as contemplated by clause (b) of Article 5 of the said order.

11. Mr. Ahmed has further contended that the vesting of enemy property in the Custodian must be considered in law to be a vesting short of the real owner's total rights in the property. This vesting cannot transgress on the rights of the real owner of the property unless the Legislature provides for such transgression explicitly and rule 182 of the Defence of Pakistan Rules does not even contemplate the consequent situation on that count.

12. There is considerable force in the argument of Mr. Ahmed that mere vesting of the enemy property in the Custodian does not transgress on the title or the ultimate right of the real owner and a person in possession of the enemy property by virtue of a document of however limited or imperfect nature it may be cannot be said to be a trespasser and he cannot be ousted from it by the Custodian.

13. Rule 182 of the Defence of Pakistan Rules provides for appointment of a Custodian of Enemy Property by the Government for the purpose mentioned in the said rule. Under this rule a Notification No. 1199 Genl. dated 3rd December 1965, was issued by the Government of East Pakistan vesting all enemy properties other than "enemy firm" as defined in sub rule (1) of Rule 182 of the said Rules in the Deputy Custodian of Enemy Property (Lands and Buildings) with effect from the date of the said Order, i.e. 3rd of December 1965. Sub‑rule (b) of this notification prohibited transfer of any land or building so vested in the Deputy Custodian by sale, exchange, gift, will, mortgage, lease, sub‑lease or any other manner, by any other person and any such transfer bas been made null and void if made in contravention of this Order. The said Notification reads as follows:‑

14. "No. 1199 Genl., 3rd December 1965.‑Whereas the Central Government have directed the Provincial Government to exercise the powers and duties under rule 182 of the Defence of Pakistan Rules;

15. Now, therefore, in exercise of the power conferred by clause (b) of sub‑rule (1) of rule 182 of the said Rules, the Governor is pleased to order‑

(a) that all lands and buildings which are 'enemy property' within the meaning of sub‑rule (4) of rule 169 of the said rules and which are not connected with any `enemy firm' as defined in sub‑rule (2) of that rule shall vest in the Deputy Custodian of Enemy Property (Lands and Buildings) with effect from the date of this Order; and

(b) that no person shall, with effect from the date of this Order, transfer any land or building so vested in the Deputy Custodian by sale, exchange, gift, will, mortgage, lease, sub lease or any other manner and any transfer of land or building made in contravention of this Order shall be null and void."

16. Mr. Khondkar Mahbududdin Ahmed does not contend that the property in question is not an enemy property. He also does not contend that the property did not vest in the Deputy Custodian with the promulgation of the Order as notified in the Gazette on the 30 of December 196.5, which we have quoted above. But what he submits is that in spite of the vesting of the enemy property in the Custodian or the Deputy Custodian a person found to be in possession of such enemy property on the authority of some legal document creating some right and title in him, however limited it may be, cannot firstly be said to be a tres passer at all and secondly, that he cannot be ousted by the Custodian or Deputy Custodian. His submissions were that in the scheme of the Ordinance, i.e. the Defence of Pakistan Ordinance and the rules framed thereunder, it was never the intention of the Legislature to forfeit outright any enemy property to the State. What the Legislature intended is that all enemy properties should vest in the Custodian for the purposes mentioned in rule 182 of the Defence of Pakistan Rules with a view to protecting the enemy properties being utilised in any manner for the benefit of the enemy or in the interest of the enemy State and to the prejudice of Pakistan. Therefore, it amounts to only a control over the enemy property by the Custodian. If after vesting of the enemy property in the Custodian it is found on enquiry that a person who is occupying the said property is holding some sort of a document of title, though imperfect, from the real owner of the property who happens to be the enemy, then. if the occupier is a citizen of Pakistan he cannot be ousted from the property because of mere vesting order of the Government. All that the Custodian can do is to ask the occupier not to make any payment of any kind to the enemy owner and/or to take any steps towards the completion of his title either by paying the balance of the price to the enemy owner or by doing any other act which may enure to the benefit of the enemy. In the present case according to Mr. Ahmed, the petitioners held an agreement for purchase of the property in question from a lawful Attorney of the enemy owner of the property named Suresh and in part performance of the said contract for sale the petitioners had been put into possession of the property after they had paid Rs. 3,000 out of the total consideration of Rs. 4,500 to Suresh or his Attorney way back in 1963. In this case, therefore, the petitioners could not be treated as trespassers to the property. If they are treated as trespassers, then according to Mr. Ahmed, the other laws of the land will be negatived by this mere vesting order promulgated under rule 182 of the Defence of Pakistan Rules. He submitted that under ordinary law of the land the petitioners on payment of part consideration were given possession of the land by the lawful Attorney of the owner and if later, either the owner or his Attorney would have created any trouble in the way of the petitioners in the final completion of the deed of transfer, then the petitioners would, under the common law of the land, have a right to ask for a decree on the basis of part performance of the contract and for a deed to be executed under the said decree either by the owner or his Attorney or, on their refusal, by the Court itself. Therefore, if such contractual obligations of the Pakistani citizens in respect of the enemy property vesting in the Custodian, specially which were contracted to be purchased prior to such vesting, are negatived then the provisions of the common law of the land would be nullified. This was never the intention of the Legislature or of the Central Government while promul gating the Defence of Pakistan Ordinance and the Rules framed thereunder respectively. By way of analogy Mr. Ahmed stated a case of a tenant who may be holding a piece of land on the basis of an amalnama under the chandina right for more than 12 years, which, under the East Bengal Non‑Agricultural Tenancy Act, creates a valid title to the tenant in the said land. If the mere vesting of the said land in the custodian which forms part of an estate which has been declared to be an enemy property creates a title paramount in his favour then the rights of the tenant under the East Bengal Non‑Agricultural Tenancy Act are wholly negatived. Such a consequence can never be contem plated under the provisions of rule 182 of the Defence of Pakistan. Rules.

17. Next Mr. Ahmed has submitted that under Article 5 of then East Pakistan Enemy Property (Lands and Buildings) Adminis tration and Disposal Order, 1966, even a trespasser is required to be given seven days' notice to show cause as to why he shall not be evicted from the enemy land and buildings vesting in the Custodian, but in the present case the respondent No. 4, the Sub‑Divisional Officer, Pirojpur, did not even give that little time to the petitioners before forcibly evicting them from the premises in question. On being pointed out that the eviction of the petitioners took place on the 30th of December 1965 and the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order, 1966 came into operation on and from the 8th of January 1966 and, therefore, the requirements of Article 5 for giving notice to the trespassers did not arise on the date of eviction of the petitioners, he has submitted that even though this specific provision of law was not available on the 30th of December 1965, with regard to the giving of notice to the trespas sers, yet under the principle of natural justice the petitioners could not be evicted in the manner as has been done in this case. Taking his stand on his earlier submissions he reiterated that the present petitioners could not be termed as trespasser and, there fore, they could not at all be touched. Further he continued to submit that in the facts of the present case, there can be no doubt left in any reasonable mind that the respondent No. 4 was acting at the direction of the Karim Rice Mills for providing them with a plot of land belonging to some other person without any legal, authority, for the establishment of the paddy Husking Mills. The requisition in the case of both the pieces of land‑covered by Case No. 10 and Case No. 12 having failed, the respondent No. 4, out of sheer vengeance and for considerations other than legal, acted in the most highhanded manner in evicting the petitioners. He was not either the Custodian or the Deputy Custodian or the Assistant Custodian of the Enemy Property nor was he authorised by any of those Officers to oust the petitioners from the land in question. On the contrary, it is found from the records that in spite of the stay order issued by the Commissioner of Khulna Division and the prohibitory telegram by the Deputy Commissioner which was received by him prior to his ousting the petitioners, he, in violation of moral and legal obligations of a public servant in a most barbarous way, evicted the petitioners from the premises in question.

18. The respondents have not been able to lay before us even al scrap of paper to show that the Sub‑Divisional Officer, Pirojpur, the respondent No. 4, had any authority whatsoever from any quarters on the 29th and 30th of December 1965, to act on behalf of the Custodian or the Deputy Custodian in evicting the petitioners from the premises in question on the ground of property being enemy property and the petitioners being either unauthorised occupiers thereof or having been notified tres passers thereto.

19. The facts stated by the petitioners which we have detailed earlier, have not been controverted by the respondents. It is clear now that the requisition in respect of the properties covered by Case No. 10 of 1963 made for the office‑cum- residential accommodation of the Circle Officer, Development of Kaukhali ended by the order of de‑requisition made by the Deputy Commissioner resulting in the house which was being occupied by the Circle Officer, Development, the respondent No. 5 after de‑requisition remaining in his possession without any lawful authority. Neither he nor the Sub‑Divisional officer, Pirojpur paid any heed to the de‑requisition order of the Deputy Commissioner or to the order of handing back possession of the said property to the persons mentioned in the order of de requisition of the Deputy Commissioner. The properties covered by the present petition were requisitioned for the Karim Rice Mills and we entirely agree with the Additional Commis sioner, that it was not for a public purpose. The order of requisition was under challenge in appeal before the Commis sioner of Khuina Division and stay order was issued by him and the requisition order was nullified by the Additional Commissioner on 8‑2‑1966. Immediately after the order of requisition in the present case was held up by the stay order of the Commissioner it is apparent that the Sub‑Divisional Officer, Pirojpur, for reasons best known to him and to Karim Rico Mills, in order to by pass the said stay order and also possibly realising that the requisition order would not ultimately stand to test, without any legal authority from any quarters, came to the premises in question, threatened the petitioners, coerced them to submission and then ultimately with the aid of Police force, evicted them from the premises in spite of the prohibitory orders from the Deputy Com missioner, Bakarganj. For this action of the Sub‑Divisional Officer, as we have already stated, we find no legal authority.

20. We have hardly come across such a highhanded action on the part of a responsible public servant in his dealings with the private properties of individual citizens of the State, no matter to which community he may belong. Such illegal activities on the part of a responsible public servant, in our opinion, brings disgrace not only to the class to which he belongs but also on the administration in general. Therefore, in the larger interest off, the administration of the State such illegal, highhanded and: arbitrary actions of individual public servants can never be tolerated. Here we may further mention that we are left with no doubt in our mind that the action of the Sub‑Divisional Officer, Pirojpur on the 29th and 30th of December 1965, in evicting the petitioners was not only illegal and mala fide but was also for collateral purpose, i.e. to provide accommodation to the Karim Rice Mills in the premises requisitioned in Case No. 10 which was later de‑requisitioned by shifting the Circle Officer Develop ment to the present premises where he was inducted sometime after taking forcible possession of the premises.

21. Since we are allowing the application of the petitioners on the ground of the action of the respondent No. 4 being illegal and mala fide, we do not propose to give any decision on the question of vesting of the property in the Custodian vis‑a‑vis the limited right of an imperfect title‑holder as contended by Mr. Ahmed.

22. In the result, therefore, we allow this application and make this rule absolute with costs which we assess at 15 (fifteen) gold Muhars to be paid to the petitioners by the respondent No. 4, the Sub‑Divisional Officer, Pirojpur, who is responsible for; illegally evicting the petitioners on the 30th of December 1965 and direct that the petitioners be restored to possession of the properties in question within seven days of the receipt of this order by the Deputy Commissioner, Bakarganj.

23. The petitioners shall have liberty to m‑.ration before us as to whether the order has been given effect to as directed.

24. Send a copy of this judgment to the Chief Secretary to the Government of East Pakistan and also to the Deputy Commis sioner, Bakarganj.

25. ABDUL HAKIM, J. ---‑I agree.

26. S. A. H. Petition accepted.