ENEMY PROPERTY (CONTINUANCE OF EMERGENCY
PROPVISIONS) ORDINANCE, 1969
Section—2
Ordinance I of 1969
continued the state of affairs as an enemy property or firm as it existed on
16.2.1969 — Defence of Pakistan Ordinance (XXIII of 1965), S. 2 — Defence
of Pakistan Rules, 1965, Rules 181 and 182.
The principal ground for promulgation of Emergency was the
threat of war to Pakistan and that threat with the revocation of Emergency
ceased to exist on and from 17.2.1969 and so there cannot be any supposed state
of war or military operation which may be said to exist in the eye of law —
What was sought to be continued by section 2 of the Ordinance I of the 1969 was
the state of affairs which existed till 7.2.1969 — In other words by the
revocation of the Proclamation of the Emergency and the Promulgation of
Ordinance I of 1969 the state of war was first ossified and then this ossified state
as past and closed transactions was continued in operation by the Ordinance.
Bangladesh Enemy Properly Management Board Vs. Md. Abdul Majid, 27DLR
(AD)52 explained
Section—2
Property coming within
the definition of enemy property before 17.2.1969—Subsequent taking over of
such property is permissible—Defence of Pakistan Rules, 1965. Rules 181 and
182.
If any action is sought to be taken with regard to any
property after 16.2.1969 as en— emy property, it is to be seen whether the
property sought to be taken over as enemy property was so between 6.9.1965 and
16.2. 1969, the promulgation and revocation of Proclamation of Emergency — If
at any time during the currency of the Emergency with the Defence of Pakistan
Ordinance and the Rules remaining in full force, the property comes within the
definition of ‘enemy property’ it continues to remain so, even though actual
steps might not have been taken by the appropriate authority to take it over
and as such the authority may for its management and control and vesting or
transfer either under rule 181 or 182 of the Defence of Pakistan Rules take
action It is to be observed that an individual or property becomes an ‘enemy’
or enemy property by operation of law on the fulfillment of the conditions laid
down by the relevant rule and no further formal declaration by an officer or
authority is needed and once a property comes within the definition of Senemy
property’ within the period of 6.9.1965To 16.2.1969, subsequent taking over of
such poverty is permissible but not otherwise.
Dulichand Omraolal Vs. Bangladlesh, 1BLD (AD) 1
Ref: 27DLR(AD)52.
Section—2
Vesting of property—When
the owner left the country for India during the war of liberation the state of
war between the two untries having ended on the emergence of Bangladesh on 25th
of March, 1971 there was o scope for vesting his property in the Deputy
Custodian as enemy property.
Sunil Kumar Ghosh and others Vs. Bangladesh and others; 8BLD (HCD) 131
Ref: 33DLR (AD) 30; 27DLR (AD) 52; — Cited.
Enemy Property
Whether custodian has right of disposal ‘ transfer or he is
merely to preserve enemy property — To say that it seems to have been –
contemplation of the Government to protect and manage the property so that
original owner could get back the property appears to unfounded in law in as
much as there was contemplation of any arrangement to be made whereas by
amendment it provided for administration, disposal by way of transfer or
otherwise of the enemy property — P.O. 29 ( 1972 — Ordinance V of 1974 — Acts
92 93 of 1976.
Rahima Akhter and others Vs. Asim Limar Bose and others; 5BLD (AD) 155
Ref: 30DLR (SC)139; 1953 All. ER. 160( Vol. II)
Enemy Property
(Continuance of Emergency Provisions) (Repeal) Act,1974 XLV of 1974) —
Appellant, a partnership unsuccessfully challenged vesting of the f as enemy
property in writ jurisdiction — In appeal it was contended that the orders of
vesting were not made in accordance with Rules 181 of the Defence of Pakistan
Rules after lifting of Emergency in Pakistan on from 1711969 the provisions of
the said Rules in respect of enemy property became inoperative because of
Ordinance I of 1969 which was enacted to keep alive the provisions of Rule 182,
ceased to be a valid piece of legislation: alternatively, with the emerence of
Bangladesh and conclusion of Treaty of friendship between Bangladesh and India
there is no war between the two countries and the concept f enemy property
became irrelevant and there is no legal basis for treating the appellant firm
and its assets as enemy property.
Held, so far Bangladesh is concerned, we are to look at the
legitimacy of a law from the Proclamation of independence made on 10.4.1971 and
the Laws Continuance Enforcement Order, 1971 and the Constitution of Bangladesh
— As regards the argument of constitutional legitimacy of Yahaya Khan, all that
need be said is that this is a political question which the Court should
refrain from answering, if the validity or legality of the law could otherwise
be decided — In the present case, however, we are to look for the validity of
the laws—A combined reading of Proclamation of Independence, Laws Continuance
Enforcement Order, the Constitution of Bangladesh, P.O. 29 of 1972, P.O. 48 of
1972, Act XLV of 1974 as amended by Act XLIII of 1976 clearly indicates that Ordinance
1 of 1969 continued as a valid piece of legislation which has been repealed by
Act XLV of 1974 — Ordinance I of 1969 was a valid piece of legislation and
continued in Bangladesh — Enemy Property (Continuance of Emergency Provisions)
Ordinance (I of 1969), S. 2 — Bangladesh (Vesting of Property and Assets) Order
(P.O.No. 29 of 1972) — Bangladesh (Adaptation of Existing Laws) Order (P.O. No.
48 of 1972) — Vested and Non Resident Property (Administration) (Repeal)
Ordinance (XCIII of 1976 — Enemy Property) (Continuance of Emergency
Provisions) (Repeal) (Amendment) Ordinance (XCIII of 1976) Prochimation of
Independence, April 10. 1971 — Laws Continuance En-forcement Order, 1971 —
Constitution of Bangladesh, 1972, Article 149.
M/s Dulichand Omraolal Vs. Bangla. desh; IBLD(AD)l
Section—3
Enemy or Vested
property — Declaration and listing in 1985 of property as a vested property
belonging to one who lost interest therein by a decree in 1962. whether valid
-— The disputed property did not belong to Hrishikesh Roy ‘any more since after
the decree in 1962 and the right and possession of the same remained with
petitioner Parul Ku- sum Roy who left the country and as such the declaration
and listing of the same as vested property is illegal and without jurisdiction.
Sreeinati Parul Khusum Roy Vs. Bangladesh and others; 8BLD (HD)6
Section—3
Enemy Property —
Declaration and vesting of such property — When property can be declared and
taken over as enemy property — No order of vesting of such property could be
made nor could any step be taken to take over such property after the cessation
of the state of war inasmuch as such property had ceased to be enemy property
on the cessation of the said state of affairs—only those properties which were
vested in the custodian have been vested in the Government of Bangladesh under
Article 2(1) of President’s Order No. 29 of 1972 as amended under President’s
Order No 134 of 1972 — After the vesting of the properties under President’s
Order No. 29 of 1972, there could not be any fresh vesting of any property in
law in the Government as contemplated in Act XLV of 1974 — Only those
properties which had vested in the Custodian or Deputy Custodian of Enemy
Property under Rule I 82(1 )(b) of the Defence of Pakistan Rules, 1965 may be deemed
to have been vested in the Government of Bangladesh either under
President’s Order No.29 of 1972 of under Act XLV of 1974 — It
is only those properties which had vested in the Deputy Custodian of Enemy
Property by virtue ot notification dated 3rd December, 1965 and had
subsequently in the Government of Bangladesh may be taken over as enemy
property — There being no subsequent order of ‘vesting with respect to enemy
properties which were not connected with any enemy from. the properties which
might have become enemy properties after 3rd December, 1965 did not get any
scope of vesting in the Custodian or any other authority —- – Those properties
have ceased to have the character of enemy property on the cessation of the
state of war between India and Pakistan in respect of territory now comprised
in Bangladesh — When the owner left the country for India during the war of
liberation the state of war between the two countries having ended on the
emergence of Bangladesh on 25th of March, 1971 there was no scope for vesting
his property in the Deputy Custodian — Defence of Pakistan Rules, 1965, Rules
169 and 182 — Enemy Property (Continuance of Emergency Provisions) Ordinance,
1969 (1 of 1969). S. 2 — Vesting of Properties Order, 1972(P.O. 29 of 1972)
Art. 2.
Sunit Kumar Ghosh and others Vs. Bangladesh and others; 8BLD(HCD)131
Ref 33 I)LR(AD)30; 27. DLR(AD)52— Cited.
Section—3(1)(a)
Settlement—The
learned Judges upon referring to the up-to-date legal position as to vested
property and the various circular issued by the Ministry of Land Administration
and Land Reforms from time to time look the view that the A.D.C. (Rev.) has not
been given by Memo No. 5 177(18) V.P. 497 dated 29.11 .77 (Annexure-F), the
power to transfer or dispose of the exchanged properties snow vested in the
Government) without prior clearance from the Government under section3(1 )(a)
of the Enemy Property (Continuance of Emergency Provision) (Repeal) Act, 1974 i
XLV of 1974) read with clause 4(1) of the Circular No. IA-11771156 R.L. dated 23.5.77
— Accordingly it was held that the settlement made by the
A.D.C. (Rev.) Dhaka on 9.10.79 in favour of the appellants was without
jurisdiction and void abilities — There is no reason to interfere with the
impugned order and the Rule was accordingly discharged.
Leave was granted to consider whether the aforesaid view taken
by the High Court Division was legally correct or not.
The Court tracing ‘the history of vested property laws
amendments including the Enemy Property (Continuance of Emergence Provision)
(Repeal) Act, 1974 (XLV of 1974) as amended by the Enemy Property (Continuance
of Emergency Previsions (Repeal) Amendment Ordinance, 1976) (Ordinance No.
XCIII of 1976) visa is the Defence of Pakistan Rules and continued in force by
the Ordinance. 1969 (Ordinance No. I of 1969), The Disturbed Persons
Rehabilitation Ordinance, 1964 and policy of legislation of the law of vested
property reached the conclusion:
(a) It could not be said that the A.D.C. (Rev) in the absence
of prior approval as required under circular dated 23rd May, 1977 had no
authority to execute the document in question on behalf of the Government.
(b) None of the grounds enumerated in the impugned order of
the Government is capable of sustaining the said order.
(c) The High Court Division, therefore, was not justified in
supplying a ground which never occurred to the Government.
(d) The Memo dated 13.8.1973 read with Annexure — F along with
all other circulars on this subject leave no room for doubt that the
A.D.C.(Rev.) was properly and duly authorised under the law to execute the deed
of settlement on behalf of the Government — Therefore, the alleged absence of
prior ap proval of the Government seems to be absent in the present case in any
case.
(e) The facts disclosed in this case are highly disputed and
in the fitness of things, the parties should have been directed to go to the
civil Court instead of the Government taking upon itself the onerous task of
resolving a complicated civil dispute after execution of the document of
settlement in favour of the appellants in terms of its own policy and
instructions given to its subordinate officers.
Muzaffar Ali and another Vs. Government of Bangladesh and another;
JIBLD (AD)84
Ref: 1984 All. E.R. (Vol. II) 767; 27 DLR (HCD) 315; PLD 1
969(SC) 407 — Cited.
Section 3(1)(2)
Vested Property —
Bar against sale in execution of decree — Whether the bar exists after repeal
of Ordinance No. I of 1969 — — With the enactment of the Repealing Act, as
amended, the Government got all powers to dispose of vested property by
transfer or otherwise — Administration and Disposal Order 1966 is a by-law
which must fall to the ground along with its parent law — Even if it had not
been repealed, it will have no effect in view of the later legislation,
Ordinance No. 93 of 1976 which being later in point of time is the last
expression of the legislature’s will — With the repeal of the Defence of
Pakistan Rules, the Administration and Disposal Order stood repealed — The bar
to the execution of decree in favour of the appellant has been removed — East
Pakistan Enemy Property (Land and Buildings) Administration and Disposal Order,
1966, Article 8. — Majority Per S.
Ahmed, J (B.H. Chowdhury, M.H. Rabman and A.T.M. Afzal .JJ. agreeing)
Per Munim C.J.
(dissenting) — What was the effect of the Ordinance of the appellant’s
decree at the time he obtained it — Could the decree be executed against the
property in question 7 As on that date the Ordinance was in full peration the
decree was evidently inexecutable — Now when clause 2(b) refers to the previous
operation of the Ordinance the qualifying term ‘previous’ usedbefore the world
‘operation’ refers to the inexecutability of the decree due to the operation of
the Ordinance — The legislative intent, as it appears from this clause, would
show that the repeal was not intended to remove the inexecutability of the
decree in the 1esent case.
Per B.H. Chowdhury, J.
(agreeing):
When the land vested under paragraph 8 of thet Administration
and Disposal Order, 1966 it was only for a limited purpose —- Ordinance No.93
of 1976 being the latest legislative will displaced the bar given by the
temporary law and as such that will no longer be available for resisting the
decree to be put into execution.
Priyatosh Talukdar Vs. Assistant Custodiaiz Vested and Non-Resident
Property, Chittagong and others; 7BLD(’AD)292
Ref: I K.B.(1 91 6)688(Vol.1), (1 829)9B & C 750, 752;
33DLR(AD)175; 5BLD(AD)l55.