Case No: Civil Appeal No. 40 of 2000
Judge: Amirul Kabir Chowdhury ,
Court: Appellate Division ,,
Advocate: Mr. Khandaker Mahbuhuddin Ahmed,,
Citation: 59 DLR (AD) (2007) 198
Case Year: 2007
Appellant: Arif A. Shekha and others
Respondent: Secretary, Ministry of Industries and another
Subject: Abandoned Property,
Delivery Date: 2007-06-04
Md. Fazlul Karim, J.
Amirul Kabir Chowdhury, J.
Md. Joynul Abedin, J.
Arif A. Shekha and others
Secretary, Ministry of Industries and another
June 4, 2007.
Bangladesh Abandoned Property (Control, Management & Disposal) Order (PO 16 of 1972)
Articles 2 (1)(i)(ii)(a)(2) & (4)
Bangladesh Industrial Enterprises (Nationalisation) Order (PO 27 of 1972)
Articles 4(1) & 10 (A)
The High Court Division found that the industrial concern Messrs Eastern Tubes Limited which was incorporated in Bangladesh and more than 50% of its shares were held by the petitioners of the writ petition though found to be absent from the country but could not be allegedly found by the Government that they were nationals of a country which were not at war with Bangladesh at the relevant time and their shares are not liable to be treated as abandoned and accordingly, declared the letter dated 27-5-1987 for retention on 51% shares with the corporation was issued without any lawful authority and is of no legal effect and accordingly, the same is liable to be released in favour of the writ petitioner.
Cases Referred To-
Messrs Helal Jute Press Limited Vs Government of Bangladesh, 27 DLR 551; Government of Bangladesh Vs Mirza Shahab Ispahani, 40 DLR (AD) 116; Government of Bangladesh vs Messrs ATJ Industries Limited and others, 28 DLR (AD) 120.
Khondaker Mahbubuddin Ahmed, Senior Advocate (Dr. M Zahir, Senior Advocate with him) instructed by Md. Nawab Ali, Advocate-on-Record and Syed Mahbubur Rahman, Advocate-on-Record as per Power of Attorney— For the Appellants. (In Civil Appeal No. 40 of 2000).
Syeda Afsar Jahan, Deputy Attorney-General instructed by Mvi Md. Wahidullah, Advocate-on-Record—For the Appellants (In Civil Appeal No. 33 of 1997).
Rafique-ul-Huq, Senior Advocate (Tanjib-ul Alam, Advocate with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record—For the Appellant (In Civil Appeal No. 34 of 1997).
Civil Appeal No. 40 of 2000
(From the judgment and order dated 20-7-1994 passed by the High Court Division in Writ Petition No. 298 of 1987).
Civil Appeal Nos. 33 and 34 of 1997
(From the judgment and order dated 20-7-1994 passed by the High Court Division in Writ Petition No. 298 of 1987).
1. At the instance of Arif A Shekha and nine others Civil Petition for Leave to Appeal No. 99 of 1998 was preferred against the judgment and order dated 20 July 1994 passed by the High Court Division in Writ Petition No. 298 of 1987 making the Rule absolute with an observation out of which Civil Appeal No. 40 of 2000 arises.
2. The respondent No. 1 the Secretary, Ministry of Industries Government of Bangladesh and the respondent No.3 Bangladesh Steel and Engineering Corporation also preferred Civil Appeal Nos.33 and 34 of 1997 respectively against the aforesaid judgment of the High Court Division.
3. The appellants Arif A Shekha and others of Civil Appeal No. 40 of 2000 instituted Writ Petition No. 298 of 1987 on the averments, inter alia, that two of them were Bangladeshi, seven of them were British and one of them was a Malaysian citizen and they were shareholders of Messrs Eastern Tubes Ltd. a limited company incorporated at Dhaka on 26-6-1964 holding 1,04,265 shares out of a total of 1,70,000 shares in the said company; 19,240 shares being held by Bangladesh Shilpa Rin Sangstha. The company was running an industry manufacturing fluorescent tube lights at Tejgaon Industrial Area through its appointed directors, managers, officers and executives at all relevant times. By notification No.186-SI dated 31-12-1971 passed under the Acting President's Order No. SEC-XIIM-35/71/17 dated 30-12-1971 the company was placed under a Management Board. By a notification No.P/E-1/1855 dated 17-5-1972, the company was placed under the Engineering and Ship Building Corporation, respondent No.2. The said Management continued under President's Order No. 27 of 1972. The shareholders challenged the taking over of the company and its assets by letters dated 20-1-1972, 15 -2-1972 and 4-6-1972 and pressed for release of the company without any response from the Government. On 2-2-1978 appellant No.1 received for the first time intimation from the Government that the prayers for release of the company in favour of the shareholders have been rejected. Appellant No.1 filed further applications dated 23-2-1978 and 18-7-1978 on receipt of which the Ministry of Industries by memos dated 21-10-1978 and 31-8-1979 asked for documents in proof of nationality of the shareholders. In the meantime, Messrs Bella Artifitex Industries Ltd. and some other sister enterprises of the said company in which major shares were held by the same group of persons were released to the shareholders by the Government being satisfied as to the genuineness of their claim. Suddenly appellant No.1 received the impugned Memo No. Shilpa/Dairy No.037/DT-2-/87/3028 dated 27-5-1987 intimating that the company in question and another company would not be released to its shareholders as it was done in the case of Messrs Bella Artifitex Industries Ltd. because the Government decided to disinvest these two industrial units by giving 51% and 49% shares of the said two companies to the said corporation respondent No.3 and the general public respectively. Upon sending a notice of demand of justice on 21-6-1987 the appellants challenged the impugned memo dated 27-5-1987 and the appellants obtained another Rule Nisi challenging notification No.186T 61 dated 31-12-1971 published in the Bangladesh Gazette Extraordinary dated 3-1-1972 in respect of the company in question. Both the Rules were heard together and disposed of by-the same judgment, making the Rule absolute.
4. In the writ petition filed by the appellants the Government being writ respondent filed affidavit-in-opposition stating that after independence of Bangladesh the industrial unit in question was vested in the Management Board by notification dated 26-12-1971 for its proper maintenance and management. Later it was handed over to the Bangladesh Steel and Engineering Corporation by notification dated 17-5-1972 upon alleged taking over the industrial unit as an abandoned property under President's Order No. 16 of 1972 the appellants could not claim the shares of the said company or the industry itself the shares of which having been lawfully vested in the Government. The Bangladeshi shareholders of Messrs Bella Artifitex Industries Ltd obtained release of their shares under the then disinvestment policy of the Government. But, in accordance with its present policy, the Government decided to disinvest the shares of the two industrial units including the company in question to the extent of 49% to the general public and 51% to the respondent-corporation which was clearly spelt out in the impugned memo date 27-5-1987. Since the two industrial units have vested in the Government by operation of law the Government can disinvest the same in accordance with its own policy which the appellants are not entitled to challenge.
5. The writ petitions being heard the High Court Division found that the Writ Petitioner Nos.1 and 10 are Bangladeshi Nationals, Writ Petitioner Nos.2 to 8 were British Nationals and Writ Petitioner No. 9 was a Malaysian National. The respondent corporation in its affidavit-in opposition raised doubt about the nationality of the appellant Nos. 3, 4, 5 and 9 on the ground that their nationalities could not be verified by the Bangladesh Mission in UK for their non-appearance. The High Court Division found from the letters addressed to writ petitioner appellant No.1 by the Ministry of Home Affairs dated 25-1-1982 and 12-2-1982 (Annexure-'XI') that on verification of the nationality of the appellants it was found that they acquired British Citizenship on different dates before 1971. The High Court Division found from the certificate issued by the British Consulate General, Karachi-6 dated 4-8-1976 that the writ petitioner appellant No.5 and his wife writ petitioner appellant No.6 were British subjects being holders of British Passports on 16-12-1970. The High Court Division found that although under section 14 of the Pakistan Citizenship Act, 1951 dual citizenship was not permissible the fact remains that the said writ petitioners were also the nationals of the countries mentioned above and these countries were not at war with Bangladesh in 1971.The High Court Division found that the shareholders were either Bangladeshi or were nationals of countries which were not at war with Bangladesh and, as such, the alleged vesting of the company and its shares under President's Order No.16 of 1972 were unauthorised and the second vesting of the company and its shares under Articles 4(1) and 10(A) of PO No. 27 of 1972 placing the same under the respondent corporation is not immune from challenge. Refilling the appellant's contention that the writ petitioner-appellants' claim of shares in the company is a disputed question of fact which cannot be decided in the writ jurisdiction the High Court Division found that upto 30-12-1970 (Annexure-'O') the writ petitioner-appellants were the shareholders of the company and "thus there remained no controversy with regard to the holding of share by the appellants in the company." The Government being satisfied as to the nationality of the writ petitioner-appellants and as to their share holding interest released Messrs Bella Artifitex admitted the claim of the writ appellants for payment of compensation. The High Court Division therefore, held that the vesting of the company and its shares under PO No. 16 of 1972 and its further vesting and placing under the respondent corporation under PO No. 27 of 1972 were done without application of mind and without considering whether the absence of the shareholders from Bangladesh were prejudicial to the interest of Bangladesh. The High Court Division held that the impugned order dated 27-5-1987 was issued without any lawful authority and was of no legal effect and the shares of the company are liable to be released in favour of the writ petitioner-appellants "after ascertaining the shares on proper verifications."
6. Hence are these appeals.
7. Leave was granted to consider the submissions made on behalf of the appellants submitting, inter alia, that the High Court Division committed error in law in putting a rider as to ascertainment of the share on proper verification, contradicting the finding of the High Court Division itself rejecting the plea of dispute as to the quantum of shares claimed by the appellants.
8. Mr. Khondaker Mahbubuddin Ahmed, learned Counsel with Dr M Zahir, learned Counsel appeared for the appellants while Mr.Rafique-ul-Huq, learned Counsel represented the respondent.
9. Mr. Khondaker Mahbubuddin Ahmed in his submission reiterated the argument advanced at the time of granting leave.
10. In continuation of his submission, Mr. Ahmed submits that he has got no grievance as to the findings made by the High Court Division on merits of the case since the action of the respondent has been, in fact, declared illegal by the High Court Division. But he emphatically challenges validity of the rider made in the concluding portion of the judgment, inasmuch as the High Court Division directed for release of the shares in favour of the appellants after ascertaining the same on proper verification.
11. He questioned, when the High Court Division itself found that the action taken by the respondents to the deprivation of the rights of the appellants has been declared to be without lawful authority, there was no room for the High Court Division to add the rider allowing the respondents to take any further action in the matter in the event of releasing their shares and, as such, according to him, the rider should be expunged.
12. Mr. Rafique-ul-Huq, learned Counsel appearing on behalf of the respondent No.3, submits inter alia, that in view of death of Arif A Shekha on 28 January, 2004 the alleged assignment made on 25-9-1997 cannot entitle the assignee to be substituted and there being undue delay in applying to the court for assignment and the reasons shown in the application for condonation being not satisfactory the appeal (Civil Appeal No.40 of 2000) itself has no leg to stand.
13. He then submits that the instruments of transfer of share filed by Ashraf Dawood on the face of it appear to be false and the signatures of the transferor and transferee are also false. Moreover, the signatures have not been attested by the company.
14. He further submits that in order to effect transfer of share one has to file duly executed instrument of transfer (Form 117) signed by both the transferee and transferor and the instrument is required to be stamped and the share certificates with aforesaid documents should be filed to the company for rectification of the Share Register and in the instant case there being failure to comply with the aforesaid mandatory provisions the claim of the appellants to get release of the shares cannot be considered.
15. Mr. Huq submits that Arif A Shekha was never a shareholder of the company who filed the writ petition (Writ Petition No. 298 of 1987) on behalf of Eastern Tubes Limited though in the body he claims himself as a shareholder and constituted attorney of the other appellants. Thereafter, Mr. Huq submits that no power of attorney by the appellant Nos. 2 to 10 is found available in the file and that from the facts and circumstances appearing in the record, it appears that entire proceeding initiated in the names of the appellants is a fraudulent attempt to grab the shares illegally and, as such, according to Mr. Huq, there is no illegality in the rider added by the High Court Division.
16. We have considered the submissions and perused the materials on record. Though lengthy submissions have been advanced in the appeal by both the parties, because of the grievance only on the aforesaid rider, we do not like to make a lengthy discussion.
17. As already noted above, regarding the findings made by the High Court Division for declaring the impugned order of the respondent illegal, there is no grievance from the appellants. Their main and only grievance is as to the order of the High Court Division adding a rider in case of releasing the shares after proper verification.
18. In this connection, our attention has been drawn towards a letter from the respondent No. 3 dated 30 December, 1981 (Annexure-X). It appears that the Secretary of the Bangladesh Steel and Engineering Corporation in the above letter, after examining relevant papers and records as available in connection with the prayer of appellant No. 1 Arif Abdullah Shekha and Messrs Eastern Tubes Ltd, found—
(d) It appears from the letter dated 18-7-1978 that Mr. Arif Abdullah Shekha prayed for release of the Enterprise on behalf of the following:
N0.of shares held
as on 13-12-1970
Mr Ibrahim Ahmed
Mr Ashraf Mohd Yahya
Malimohamed Modh Yahya
Mr Ashraf Ganny
Mr Ahmed Ismail B Patel
Mrs Amina Bibi Patel
Mrs. Sadia Subhan
Mr Siddik Tarmohammod
Mr Ashraf Motiwala
Mr Arif Abdullah Shekha
(e) Out of the above 1,04,266 shares as Messrs Ashraf Motiwala and Arif Abdullah Shekha are holding 25,000 shares as Bangladeshi and the others holding 79,265 shares are not Bangladeshi as per letter dated 18-7-1978.It appears from the addresses mentioned in the share list that 8(eight) persons were citizens of Pakistan and subsequently took nationality of British/Malaysia. The citizenship of the above 10(ten) persons including Mr. Ashraf Motiwala and Mr. Abdullah Shekha is required to be verified and confirmed by the Ministry of Home Affairs."
19. There is no satisfactory record as to whether the above verification has been made and their nationalities have been verified. Moreso, in view of serious allegations made on behalf of the respondent No.2 as to genuineness of the claim of the appellants, we are of the view that the order of the High Court Division in the rider of the judgment for releasing the shares in favour of the appellants after ascertaining the shares on proper verification' cannot be found fault with.
20. In this view of the matter, we do not find any substance in the appeal.
21. Civil Appeal No. 40 of 2000 is thus dismissed without any order as to cost.
22. The Secretary, Ministry of Industries and others filed Civil Appeal No.33 of 1997 and Bangladesh Steel Engineering Corporation filed Civil Appeal No.34 of 1997 against the judgment and order of the High Court Division making the Rule absolute. Mrs. Syeda Afsar Jahan, learned Deputy Attorney-General, appearing for the Corporation, submitted that on the relevant date some of the writ petitioners were British and Malaysian nationals and since section 14 of the Pakistan Citizenship Act in 1951 prohibited dual citizenship or nationality and the Writ petitioners did not furnish any evidence as to whether they were British or Malaysian or Pakistani citizens and, as such, the High Court Division has committed an error of law in dealing with this aspect of the writ petitioners' nationality and therefore, came to wrong finding that the shares of the company in question were illegally taken over as an abandoned property under President's Order No.16 of 1972.
23. Mrs. Jahan further submitted that the High Court Division upon reliance on Annexure-'O' found that the writ petitioners were share-holders upto 30-12-1970, but the relevant date of consideration being 28-2-1972 and the writ petitioners not having furnished any proof of holding shares in the company upto the said date, the High Court Division committed an error of law in deciding the disputed questions of fact in a Writ petition concerning the share holding interest of the writ petitioners on the basis of mere affidavits allegedly asserting them to be the citizens of these countries on 28-2-1972 as well. The learned Deputy Attorney-General also submitted that the Writ petition ought to have been rejected in limine on three accounts; firstly, the writ petitioners did not assert anywhere that they were all nationals/citizens of Bangladesh; secondly, they did not disclose their permanent residences and thirdly, their names themselves are indicative of their foreign nationality.
24. In Civil Appeal No. 34 of 1997 Mr. Rafique ul Huq, learned Counsel, appeared for the appellant and submitted that the High Court Division acted illegally in ordering release of the shares of the respondents because the management and control of the enterprise was taken over initially under APO of 1971 and under APO No.1 of 1972 the properties became abandoned property by definition contained in President's Order No. 16 of 1972 i.e. by operation of law. Further by Notification No. P/E-1/1855 dated 17-5-1972 issued under Article 10(1) of President's Order No. 27 of 1972 the enterprise has been placed under the corporation allegedly vesting in the Government. Having regard to the provisions of Article 10(1)(1A) read with Article 4(1) of President's Order No. 27 of 1972 which provides that notwithstanding anything contained in any other law, an industrial enterprise, placed under any Corporation shall be deemed to have always vested in the Government and further, providing that such vesting cannot be challenged in any manner whatsoever and the said President's Order No. 27 of 1972 being protected under Article 47 of the Constitution read with the First Schedule thereof, the finding of the High Court Division that the shares of the respondents in the company do not have an abandoned character and could not be vested in the Government is not legally tenable, the remedy under Article 102 of the Constitution being barred.
25. The company Messrs Eastern Tubes Limited, an industrial enterprise, was taken over for the management and operation to conduct all its affairs including operation of Bank Accounts by Notification No.l85-Sl-31 December, 1971 by the Government in exercise of the authority given under Acting President's Order No.SEC-XI/1M-35/71/17, dated 30-12-1971 and the concern was taken over with, immediate effect and until further order. Pursuant to the provision of Acting President's Notification No. SEC-XI/lM-35/71/17/30 dated 30-12-1971 published in the Gazette Extraordinary dated 3rd January,1972 and by a subsequent notification dated 3rd January, 1972 by taking over the control and management of the industrial and commercial concerns purportedly under APO 1 of 1972 and thereafter, President's Order, 1972 issued for the purpose of taking over the control and management of the industrial and commercial concerns where the owners or Directors or Managers or majority of the owners have left Bangladesh and are not available in Bangladesh to control and manage the commercial concerns and where in the opinion of the Government of Bangladesh the owners or directors of any industrial commercial concerns cannot be allowed to control and manage the enterprise for some reasons or the other under the Acting President's Order No. 1-35/71-1 dated 25-12-1971 stood repealed but in spite of its repeal, all orders passed under the Acting President's Order of 1971 were deemed to have been issued by the APO No. 1 of 1972.
26. Meanwhile, by a notification published in the Bangladesh Gazette Extraordinary, dated May 18, 1972 vide Notification No. PI/1-1855 dated 17-5-1972, pursuant to clause 1 of Article 10 of Bangladesh Industrial Enterprises (Nationalisation) Order, 1972 (President's Order 27 of 1972) Government set up Bangladesh Engineering and Shipbuilding Corporation, now known as Bangladesh Steel and Engineering Corporation, with immediate effect which shall have power to exercise all powers of taking over and placing of other industries including Messrs Eastern Tubes Limited, Dhaka.
27. It appears that from the very beginning, even on 20-1-1972, the Writ petitioners have been filing representation to the concerned Ministry of Industry for release of the concern as the company was registered in Bangladesh having its manager, executive and share-holders present in Bangladesh. Similar representations were also made on 15th February, 1972, 4th June, 1972, 22nd February, 1978 and 23rd February, 1988 for the release of the concern but the prayers were rejected. That on 18-7-1978 the writ petitioner intimated about the number of shares of Bangladesh Nationals and prayed for release of the company in favour of the controlling share-holders. The writ petitioner was, however, directed by letter October 21, 1978 to file certain documents duly authenticated by the claimants by competent authority which papers were submitted by the writ petitioners.
28. In reply to prayer for release of Messrs Eastern Tubes Limited by letter dated 31 August, 1979 the writ petitioner was asked to submit forwarding forms 'A' and 'B' (ownership and nationality) with full and exact permanent address of foreign share-holders in the above enterprise which the writ petitioner duly complied with but the Government by its letter dated 27-5-1978 intimated that the Government declined the request to release of the industry in favour of the owners which has compelled the Writ petitioner to file the writ petition.
29. It appears that the High Court Division, considering the provision of law of Acting President's Order dated 30-12-1971, Acting President's Order No. 1 of 1972 and President's Order 16 of 1972 respectively, held that under Article 2(1)(i)(ii)(a) of President's Order 16 of 1972 providing the definition of abandoned property excluding any property the owner of which is residing outside Bangladesh for any purpose which, in the opinion of the Government, is not prejudicial to the interest of Bangladesh. The High Court Division considering the reported decision in the case of Messrs Helal Jute Press Limited Vs Government of Bangladesh reported in 27 DLR 551 held that the provision of Acting President's Order 1971 as to whether the concern could be taken over initially under the said President Order and held that "The owners of the properties in question, the petitioner No.1 i.e. Helal Jute Press Limited, and this company being incorporated in the then East Pakistan and having its registered office in Dacca, could not be considered at this point of time to be absent owners who were not otherwise available in Bangladesh" and "The provisions of Article 2(1) including clause (11)(a) of President's Order No. 16 of 1972 read together would reasonably mean that the mischief of this law shall not be applicable to such persons who were away from Bangladesh for a temporary period and not prejudicial to the interest of Bangladesh".
30. The High Court Division further considered in the reference cited in the decision which held that "Even if the major shareholders being its top management as Managing Director was away from Bangladesh for a temporary period, such absence could not be described by the Government as prejudicial to the interest of Bangladesh, particularly when the said person lived during his temporary absence in a country which was most friendly to Bangladesh at the relevant time and returned to Bangladesh as citizen of Bangladesh with the clearance of the Government of Bangladesh".
31. It has been stated with a specific assertion in the petition that the Writ petitioner No.1 Arif A Shekha and petitioner No.10 are Bangladeshi nationals and the rest petitioner Nos. 2 to 8 are British nationals and Writ petitioner No. 9 is a Malaysian national and the said facts have not been specifically denied by the respondent No. 2. The High Court Division has also considered the question over dual nationality of the petitioners and held that they are nationals of the countries which were not at war with Bangladesh and vesting of their shares as an abandoned property under President's Order No. 16 of 1972 became unauthorised and subsequently, the vesting of the company and its share for the 2nd time under Article 4(1) and Article 10(4) of PO No. 27 of 1972 and placing them under the Corporation are also legal.
32. The High Court Division also considered the dual citizenship of the petitioners and considered the case of Government of Bangladesh Vs Mirza Shahab Ispahani, reported in 40 DLR (AD) 116. It is found that the property was not an abandoned property as the writ petitioners never ceased to look after the property after liberation in 1971 and also made representation to the Government but the Government refused to consider the same instead held that the Minister of Industry acknowledged the share certificates submitted by the petitioners for the purposes of compensation in respect of the "Eastern Tubes Limited" and it is apparent from the affidavit-in-opposition filed by the respondent Nos. 1-3 of the writ petition Stating the share-holding position of the petitioners in the company in question and containing the statements of verification of shares by the Bangladesh Steel and Engineering Corporation for the purpose of payment of compensation to the shareholders of Messrs Eastern Tubes Limited.
33. In the case of Government of Bangladesh vs Messrs ATJ Industries Limited and others reported in 28 DLR (AD) 120, the question regarding the interpretation of Articles 2(2) and 4 of the Bangladesh Abandoned Property (Control, Management and Disposal), Order, 1972 (President's Order No. 16 of 1972) was raised and it has been held that "It has first defined with denotation and connotation the words "abandoned property" and then has employed an inclusive definition and then exclusion clauses. It has also added an explanation. Interpretation of the definition clause no doubt creates some complexity. The best way to interpret it is to give a harmonious meaning to all the clauses of Article 2(1) so that each clause gets its own meaning and at the same time is harmonious with the meaning of the whole. The defining partly denotes property owned by a person who is either not present in Bangladesh, or whose whereabouts are not known or who has ceased to occupy, supervise or manage in person his property. A question may arise, whether the three sub-clauses are disjunctive or conjunctive. We think they have been used disjunctively and there is no need to construe them conjunctively".
34. "Then comes the inclusive definition. In the inclusive definition is included two categories of property. First is the property owned by a person who is a citizen of a state which after 25th day of March, 1971 either is at war or engaged in military operation against Bangladesh; the second is the property taken over by the Government under Acting President's Order No. 1 of 1971. So far as the inclusion clause is concerned, both the categories of properties come within the meaning of the definition of "abandoned property".
35. "Then there is the exclusion clause. The first question, which arises, is, whether the exclusion clause qualifies the inclusive clause. Except for the fact that the exclusion clause follows the inclusion clause, there is nothing in the grammatical illustration of the said clause to indicate that it qualifies the inclusion clause. Exclusion clause contemplates two categories of property. The first is the property the owner of which are residing outside Bangladesh for any purpose which in the opinion of the Government is not prejudicial to the interest of Bangladesh. The second is the property which is in possession or under the control of the Government under any law in force for the time being".
36. "Thus from the principle laid down in the case cited above, it is found that the construction of Article 2 (1) is explicit in the determination of a property as an abandoned property. Therefore, preliminary formation of the opinion of the Government is necessary. In this connection the case of Government of Bangladesh vs Mirza Shahab Ispahani, reported in 40 DLR (AD) 116 may also be referred. In the said case, the question of dual nationality was raised and it was contended by the appellant that the respondent cannot be deemed to be a citizen of Bangladesh within the meaning of the provisions of Articles 2 and 28 of the President's Order No. 149 of 1972 and, therefore, the property fell within the definition of abandoned property under Article 2(1) (i) of President's Order No. 16 of 1972. The respondent contended that his property was not an abandoned property as he never ceased to look after his property after Liberation in 1971 and he also made representation to the Government but the government refused to consider the same".
37. The Appellate Division reiterated the earlier decision in which it was held that "The law of abandoned property is a stringent law no doubt, but as has been noticed in 28 DLR (AD) 120 and 30 DLR (AD) 101 the definition contains the clause on exclusion and inclusion. One thing is very well settled that no person shall be deprived of his life and property unless it comes within the clear provisions of law itself. He cannot be deprived of his property by fallacious approach nor by provisions of enactment which merely considering points a finger to such property. To be deprived of any property it must be shown that his property has come within the mischief of law clearly."
38. In the said case it was also held that "citizenship is distinct from nationality. Citizenship is solely a creature of domestic law. It refers to right which a state sees fit to confer upon certain individuals who are also its nationals. Citizens are those persons who have full political rights as distinguished from nationals who may not enjoy full political rights and are still domiciled in the country".
39. In the said case the property was released on the claim of the respondent Mirza Shahab Ispahani though he obtained the British nationality and was staying outside Bangladesh. It is also held that "when there is no satisfactory evidence as to the respondent's permanent residence in this country on 25-3-1971 and there is no averment that he relinquished his Pakistani citizenship and the respondent's refusal to give satisfactory answer to the appellant's queries, it only dissolves the appellant's doubt that he was on 25-3-1971 and from that time till 6-4-1972 a resident of the UK as a Pakistani citizen."
40. Accordingly, the High Court Division found that the industrial concern Messrs Eastern Tubes Limited which was incorporated in Bangladesh and more than 51% shares were held by the petitioners of the writ petition though found to be absent from the country but could not be allegedly found by the Government that they were nationals of a country which were not at war with Bangladesh at the relevant time and their shares are not liable to be treated as abandoned and accordingly, declared the letter dated 27-5-1987 for retention on 51% shares with the corporation was issued without any lawful authority and is of no legal effect and accordingly, the same is liable to be released in favour of the writ petitioner after "ascertaining the shares on proper verification of shares of Messrs Eastern Tubes Limited only in favour of the writ petitioner".
In view of the above order in Civil Appeal No.40 of 2000 and the two other appeals i.e. Civil Appeal Nos.33 and 34 of 1997, we do not find any reason to interfere with the impugned judgment and hence the three appeals are dismissed without any order as to cost.