Defence of Pakistan Rules, 1965

 

 

Enemy Property — it appears that no census list was prepared by the defendants as per the provisions of Defence of Pakistan Rules, 1965 and there is no proof that the original owners were possessing till they left the country. There is also no specific date given by the defendant when the original owner left this country— appeal is allowed. [Para-7]

Anwara Khatoon Vs. Enemy Property 4 BLT (HCD)-87                                                                                                                                           

Distinction between a void document and an avoidable document

Where a written instrument is ab initio void the transaction is a nullity and the plaintiff is not required to have it cancelled or set aside, and if, on the other hand, the instrument is only avoidable, then it would be essential for the plaintiff to have it cancelled or set aside. [Para-9]

Sree Chittaranjan Chakraborty Vs. Md. Abdur Rob. 5 BLT (AD)-135

 

Distinction between Repeal and Enactment of a declaratory Statute

In the present case the Repeal Act, 1996 repealed the Indemnity Ordinance, 1975 prospectively. It means it was an existing law till the 13th November, 1996. When a statute is repealed by the Parliament its disappearance from the statute-book takes place from the date of repeal, either prospectively or retrospectively according as the legislature prescribes. But if as statute is declared void ab initio by the Court its disappearance from the statute-book takes place retrospectively from the date of enactment of the repealed statute, never prospectively. If a statute is declared void ab initio by a Court no rights accrue at all. No obligation or liability generates from the void law. But a repealed statute retains accrued rights and obligaions, unless avoided specifically or by necessary implication. In the present case no Court of law has earlier pronounced that the Indemnity Ordinance, 1975 is void ab initio. The Parliament was therefore free to pass a declaratory statute declaring that the said Ordinance was void from the very beginning; but it did not do so. It preferred to treat the said Ordinance as an existing law and repealed it. The High Court Division made a basic mistake in holding that the Parliament has legally repealed a void law, little giving thought that a void law has to be declared void by a declaratory statute and a repeal can only be made of an existing law in case of repeal the Repeal Act is itself liable to be repealed by the same Parliament or subsequent Parliament, reviving the Indemnity Ordinance, 1975; but when a Court declares the Indemnity Ordinance, 1975 void ab-initio the Parliament cannot re-enact the same legislation afresh. It will be struck down as unconstitutional. It is buried forever. This distinction was lost sight of by the High Court Division. [Paras-41, 42 & 43]

Shahriar Roshid Khan Vs. Bangladesh & Ors. 7 BLT(AD)-186

 

Ends of Justice

Ends of justice can never be the caprice or sweet will of a court. The court must proceed on sound principles. [Para-9]

F Alam & Ors. Vs. Zobaida Nahar & Ors. 5 BLT (AD)-88

Estoppel or Waiver of Legal Dues

It appears to us that the decree which the respondent obtained was an inexcusable decree. He could not have compelled the Government to reinstate him in service on the basis of that decree. If he wanted his full relief he should have preferred an appeal against the said decree re-agitating the question of his reinstatement in service, arrear salary and promotion. But once the Government takes a decision to reinstate him in service, whether by way of executing an otherwise inexcusable decree or by its own volition, without re-appointing him or giving him any break in service, the respondent will be deemed to be in service throughout the period of his removal. Invalidation of the order of removal by the Government itself means as if no order of removal was passed. The incumbent continues in service. Being in service, salary is his due. There can be no waiver of his legal dues. The question of estoppel also does not arise. [Para-16]

Government of Bangladesh Vs. Shamsuddin Ahmed 7 BLT(AD)-260.

Defence of Pakistan Rules, 1965

 

Defence of
Pakistan Rules, 1965


Rule 16–

Since
there is no evidence and materials on record showing the vendor of the
petitioner or the predecessor–in–interest of the vendor of the petitioner
migrated to India before 1955 and it was declared and treated as enemy property
before the Ordinance and Rules 1965 ceased to have effect, the proceeding
treating the suit plot as vested property in 1980 is illegal and inoperative.

Indu Moti Howlader
vs Additional Deputy Commissioner and others 50 DLR 444.

 

Rule 169(4)–

Debotter
property in any way cannot be taken over as an enemy property and the same
cannot be put to sale.

Laxmi
Janardhan Jew Thakur and 3 others vs Government of the People’s Republic of
Bangladesh, and others 50 DLR 273.

 

Rule 169(4)–

Defines
“Enemy Property”–In view of the compromise decree Hrishikesh Roy had
subsisting right in the disputed property and as such the property could not be
treated as “Enemy Property.”

Parul Kusum
Roy vs Bangladesh 39 DLR 389.

 

Rule
182(1)(b) –

Hrishikesh Roy having no right to possession
and the same having remained in the petitioner and Parul Bala Roy who never
left for India the disputed property does not come within the scope of Enemy
Property and a vested property.

Parul Kasum
Roy vs Bangladesh 39 DLR 389.

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