Writ
petitioners have challenged the validity of the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974 and amendment and circulars issued under the said Act—upon repeal the said Act, ceased to exist and thereafter no property could be treated as enemy property under the said law—relied upon 46 DLR (HCD) 136.
Tarekeswar Roy & Ors Vs. Ministry of Lands & Ors. 5BLT (HCD)-164
Enemy Property Ordinance, 1965
Whether the joint property without partition left by owner of 2/3rd share in the property should be declared as enemy property by virtue of enemy property law and vested in the Govt.
Held: It has been settled that 1/3rd. share of the plaintiff opposite party No. 1 and 2/3rd share of co-sharers on left the country and their property was possessed and enjoyed by the plaintiff opposite party as the property was joint having no partition. In the circumstance the government by declaring the property as enemy property or vested property could not take possession of the same and unless the share of the parties is determined by partition suit, the undivided property cannot be declared as Enemy Property—The property is a Hindu joint family property and the plaintiff opposite party No.1 is living in the house
and so the same cannot be leased out to any other persons of other religion— I discharged the rule.
Bangladesh. Vs. Dipak Baran Singh Roy & Ors. 4BLT (HCD)-141
Enemy Property Ordinance, 1965
Wrong entries
The learned Counsel for the appellant has submitted that in the background of the gazette notification dated December 3, 1965 property that assumed character of nenemy property, later on vested property, vested in the Government, as such transfers made in 1970 by successive heirs of C.S. recorded tenants and the purchasers therefrom were not legal and valid and the Ext.6, Nadabi deed, executed by Gonesh Chandra Mondal’s son Haripada Mondal ought not to have been taken into consideration for the purpose of arriving at a decision that Gonesh Chandra Mondal son of Joy Gopal Mondal ceased to be the owner of the land of Sarabo Mouza because of amicable partition between the brothers, namely Kartik Mondal and Gonesh Chandra Mondal Sons of Joy Gopal Mondal. We have already observed that part of the land recorded in R.S. khatian has been listed as vested
property on the basis of entry in the said Khatian. Since incorrectness of the entries in the said R.S. Khatian No. 42 in so far names of Durga Charan Mondal’s sons and the name of Gonesh Chandra Mondal son of Joy Gopal Mondal have been established by the Respondent Nos. 1 and 2, as such treating the property in suit as vested property on the basis of said wrong entries was illegal. As to treating the property of Gonesh Chandra Mondal son of Joy Gopal Mondal in Sarabo Mouza as vested property is also not correct, as firstly it is in the evidence of D.W. I that he cannot say when Gonesh Chandra Mondal left
for. India and second by Ext.6 it has been established by the Respondent Nos.1 and 2 that Gonesh Chandra Mondal ceased to have any interest in the land of Sarabo Mouza because of amicable partition with his brother Kartik Mondal. So
there being no reliable evidence that the property legally vested in the Government as enemy property, later on vested property, as such because of the notification of December3, 1965 it cannot be said property in suit has vested in the Government as enemy property, later on vested property.
Government of Bangladesh Vs. A.K.M. Abdul Hye & Ors. 12 BLT (AD)98
Enemy Property (Continuance and Emergency Provisions) Repeal Act, 1974
[Act No. XLV of 1974]
Whether the starting of the vested Property Case No.210 of 1980 is with one jurisdiction and has no legal basis at all
The appellants Writ petitioners challenged the Memo dated 29.7.99 issued by the Respondent No2 Additional Deputy Commissioner (Revenue), Dhaka requesting the Deputy Commissioner of Police (West), Dhaka Metropolitan Police, to deploy 40 armed police so that the illegal ‘trespassers who were in possession of l.37 acres of land which has been leased to Mr.
Habibur Rahman Khan and 31 others in V.P. Case No.210 of 1980 could be evicted on 5.8.1999 at Ii A.M. and in the above Memo the Deputy Commissioner of Police (West) Dhaka was also informed that Mr. Badra Munir Ferdous, Assistant Commissioner and Magistrate, Dhaka Collecturate, was to carry out the above eviction and that the issues of “disputed facts” and “cloud over title” on the basis of which the High Court Division discharged the Rule, Held; In the case of Nittya Gopal Roy Barman vs. Pran Gopal Nandi and others, 32 DLR 11 it washeld that “mere claim of the Assistant Custodian that the property of the deceased testator is an enemy property in respect of which an enemy propertycase was started in 1978 is not sufficient for coming to a conclusion that the property is an enemy property.”
In the case of Laxmi Kanta Roy vs. Upazila Nirbahi Officer and another 46 DLR 136 question arose whether the institution of the VP Case No.142 of 1980 was maintainable in the eye of law. The High Court Division considering that the Defence of Pakistan Ordinance and Rules came in the year 1965 were repealed in the year 1969 but by Ordinance No.1 of 1969 some of the provisions of the Defence of Pakistan Rules were kept alive and continued and thereafter by Act No.XLV of 1974, the Ordinance No. 1 of 1969 was repealed on 23.3.74 held that after the repeal of Ordinance No. 1 of 1969 on 23.03. 1974 the authority was not competent to start such vested property proceeding in the eye of law and that the law on Enemy Property itself died with the repeal of Ordinance I of 1969 on 23.3.74 by Act XLV of 1974 and accordingly no further vested property case can be started thereafter on the basis of the law which is already dead and concluded in holding that the starting of the Vested Property Case No. 142 of 1980 is absolutely without jurisdiction and has no legal basis at all. In the case of Additional Deputy Commissioner(Revenue) Dhaka Vs. Md. Mostafa Ali Mridha and others, 48 DLR 193 the High Court Division took similar view holding that after the repeal of Vested and Non-Resident Property Ordinance vide Ordinance No.92 of 1976 there was no scope for starting any VP case under the provisions of the aforesaid law afresh and if any proceeding is started for
treating a property as vested property, under law that will be absolutely without jurisdiction. In the case of Aroti Rani Paul Vs. Sudarshan Kumar Paul and others, 56 DLR(AD) 11 this Division in the back ground of the law as regards Vested Property at different times held that since the law of enemy property itself died with the repeal of Ordinance No. 1 of 1969 on 23.3.1974 no further vested property case can be started thereafter on the basis of the law which is already dead. This Division in the above case approved the principle of law laid down in 46 DLR 136.
Accordingly there is no basis at all to treat the case land as vested property upon starting V.P. Case No.210 of 1980.
Mrs. Saju Hosein & Ors Vs. Govt. of Bangladesh & Anr 16 BLT (AD)05.