Case No: Civil Appeal No. 23 of 1978
Judge: Kemaluddin Hossain,
Court: Appellate Division ,,
Advocate: Abdus Sobhan,,
Citation: 33 DLR (AD) (1981) 30
Case Year: 1981
Appellant: M/S. Dulichand Omraolal
Respondent: Government of Bangladesh
Subject: Vested Property,
Delivery Date: 1980-6-18
Keraaluddin Hossain, CJ.
Fazle Munim, J.
Ruhul Islam, J.
M/S. Dulichand Omraolal
Bangladesh, through the Secretary, Ministry of Industries & others
June 18, 1980.
Enemy Property has been defined to mean any property for the time being belonging to or held or managed on behalf of an enemy as defined in rule 161, an enemy subject or any firm. ………….. (8)
The Ordinance had its validity only during the currency of the Emergency, and that is why there is no question of repeal because the ordinance will stand or fall with the currency of the emergency. ……..… (9)
R. Pal, Sr. Advocate, with S. C. Das, Advocate, instructed by Aminul Huq, Advocate-on- Record—For the Appellant.
Abdus Sobhan. Addt. Attorney-General, instructed by M R. Khan, Advocate-on-Record—For the Respondent.
Civil Appeal No. 23 of 1978.
(From the Judgment and order dated 4-3-77 passed by the High Court of Bangladesh in Writ Petition No. 121 of 1973)
Kemaluddin Hossain CJ.
The question involved in this appeal as urged by Mr. Pal is a substantial question of law of some public importance; as to whether Ordinance 1 of 1969 was not continued by Laws Continuance Enforcement Order, 1971, since it ceased to be a valid piece of legislation.
2. In Order to appreciate the contention of Mr. Pal who appears for the Appellant M/S. Dulichand Omraolal, facts in brief may be narrated. The Appellant, a partnership firm, challenged the orders and directions declaring its business and properties as enemy property, and prayed for the surrender of its management and control to the appellant firm before the High Court in Writ Petition No. 121 of 1973, but failed.
3. Question arose before the High Court whether the appellant firm is an enemy firm within the meaning of Rule, 161 of the Defence of Pakistan Rules, 1965 and its properties vested in the Custodian under Rule 182 of the said Rules. On the out break of war between Pakistan and India in 1965, Emergency under Article 30 of the Constitution of 1962 was declared by the President and Defence of Pakistan Ordinance was promulgated thereunder and under authority of the Ordinance, Defence of Pakistan Rules 1965 were framed. The Governor of the then East Pakistan under delegated authority by order of 20-9-65 made in exercise of powers conferred by Rule 181 of the Defence of Pakistan Rules, briefly called the Rules, took over the control and management of the firm along with another firm, and authorised late Sultanuddin Ahmed to carry on the trade and business of the firm. By a subsequent order dated 27-10-65, the Governor terminated the authorisation of late Sultanuddin Ahmed, and authorised the East Pakistan Small Industries Corporation to carry on the trade and business of the said firms. Thereafter the East Pakistan Enemy Property Management Board, in exercise of its delegated power under rule 182(1), by an order dated 5-10-68 vested the firms in the Additional Custodian of Enemy Property and accordingly these firms continued to be managed in pursuance of this order till the appellant and another moved the High Court and obtained the two Rules challenging the order of the respondents' right of taking over control and management of the firms and then vesting them in the Additional Custodian. In the meanwhile, however. Emergency was withdrawn on 16-2-1969 and on the date Ordinance 1 of 1969 Enemy Property (Continuance of Emergency Provision) Ordinance 1969 was promulgated continuing some provisions of the Defence of Pakistan Rules. While the law was so continuing, came the Liberation War and the emergence of Bangladesh as an independent country and the Proclamation of Independence and the Laws Continuance Enforcement Order of 10-4-1971.
4. The appellant challenged the impugned orders of the Respondent mainly on two grounds: one is that the orders of the Respondents dated 20-9-65 and 27-10-65 were not made in accordance with Rule 181, and the other, that after the lifting of Emergency in Pakistan on and from 17-2-69 the provisions of the Defence of Pakistan Rules in respect of Enemy Property became invalid because Ordinance I of 1969 which was enacted to keep alive the provisions of Rule 182, ceased to be a valid piece of legislation. Alternatively, it was urged that whatever might have been the legal position of Ordnance of I96l, with emergence of Bangladesh as an independent country from 26-3-71 and 'more particularly with the conclusion of a Treaty of Friendship between Bangladesh and India in March 1972 there. was no war between these to countries and the whole concept of "Enemy Property" became irrelevant in the new context and consequently there is no justification and legal basis for treating the Appellant firm and its assets as enemy properly under the Defence of Pakistan Rules.
5. The Petition was heard along with another petition but the accused petitioner is not before us, and the first question of law that arose has already been set out. The learned Judges of the High Court overruled all the contentions and dismissed the Writ petition.
6. Mr. Pal has submitted various grounds and advanced reasons in support of his contentions, but the argument though carries substantial merit cannot succeed, and we shall deal with it presently, but before that the position of law in relation to the facts may first be ascertained.
7. On 6-9-65 Emergency was proclaimed by the President of the then Pakistan declaring that "grave emergency exists in which Pakistan is in imminent danger of being threatened by war" and then the President declared that 'we are at war with India" and in pursuance of the declaration of Emergency, promulgated Defence of Pakistan Ordinance, 1965, and rules were framed thereunder called Defence of Pakistan Rules. The impugned order was made first under rule 181 on 20-9-65 and then on 27-10-65 under 182 of the Rule. After a short military engagement between India and Pakistan there was an announcement of ceasefire declaration in the Security Council on 17-9-fiS and both the countries we brought to a conference table by the good offices of the Russian Government at Tashkent where once again a declaration was made on 31st December. 1965 acknowledging the cessation of war between India and Pakistan, and an announcement was made to bring all outstanding disputes to a peaceful settlement. It is to be noticed, that inspite of all these announcements of cessation of hostilities and war, the Emergency and Defence of Pakistan Ordinance and the Rules made thereunder continued in operation and this continued still 16th February, 1969 when came the formal declaration came the formal declaration of the revocation of the Proclamation of Emergency reciting that 'the grounds on which he issued the Proclamation of Emergency on 6th September, 1965 have ceased to exist' and along with it came the cassation of Defence of Pakistan Ordinance and the Rules framed thereunder. But simultaneously followed the Ordinance 1 of 1969 titled as the Enemy Property (Continuance of Emergency Provisions) Ordinance. 1969. The purpose of this Ordinance was that notwithstanding the withdrawal of the Emergency, end Defence of Pakistan Ordinance ceasing to have effect, certain provisions of the Defence of Pakistan Rules made under the said Ordinance were sought to be continued relating to the control of trading with enemy and control of firms, and vesting and administration of the property belonging to them. By section 2 of the Ordinance certain provisions of the Defence of Pakistan Rules set out at column 1 as modified by column 2 of the schedule were made to continue in force and amongst others contained Rule 161 which defines '-enemy". Rule 169, which defines, amongst others the "enemy property" Rule 181, powers to carry on business of enemy firm, and Rule 182, powers to collect debt of enemy firms and vesting and administration of enemy property.
8. Pausing here for a moment the definitions of "enemy" as given in Rule 161 and "enemy property" as given in Rule 169 (4) sought to be continued by section 2 of Ordinance 1 of 19(9 need Jo be looked into. "Enemy has been defined under clause (a) to mean a Stale or Sovereign of a State at war with or engaged in military operations against Pakistan, or any individual residing in enemy territory." The other details need not be mentioned, "Enemy" subject has been defined in Rule 169(1) (a) as any individual who possesses the nationality of a State at war with or engaged in military operations against Pakistan, or having possessed such nationality at any time has lost it without acquiring another nationality. The other details need not be mentioned. And "Enemy Property" has been defined to mean any property for the time being belonging to or held or managed on behalf of an enemy as defined in Rule 161, an enemy subject or any firm. The other part of the definition and other provisions need not be mentioned as they are not material for our purpose.
9. The operative part of the Ordinance set out above, if not properly interpreted in the light of revocation of the Emergency and the consequence flowing there from, is apt to convey an idea that for a property to come within the mischief of 'enemy property' under the Defence of Pakistan Rules, a state of war or actual military operation between Pakistan & India is to exist and that existence of state of affairs as a fact could only be within the domain of the Executive Government and unless the Executive Government has indicated otherwise, it should be so assumed but a close scrutiny of the effect of the revocation of title Proclamation of Emergency and the wording of the continuing provisions of the Ordinance will reveal otherwise Section 2 of the Ordinance says notwithstanding the Defence of Pakistan Ordinance, 1965. (XXIII of 1965) ceasing to have effect, the provisions of the Defence of Pakistan Rules mentioned in the first column of the Schedule to the Ordinance shall continue in force, and shall have effect subject to the notification specified in the Second column thereof. The other clauses need not be mentioned as we get true import of the enactment from the wording of the first clause of section 2 of the Ordinances. If this provision is read in isolation,' without keeping in view that the parent Ordinance had ceased to exist on the revocation of the Proclamation of Emergency, and that the parent Ordinance got its validity from the Proclamation of Emergency under Article 30 of the Constitution of the then Pakistan one is apt to be misled. The Ordinance had its validity only during the currency of the Emergency, and that is why there is no question of repeal because the Ordinance will stand or fall with the currency of the Emergency. The Emergency was revoked on 16th February, 1969, with effect from 17th February, 1969 wherein there is express mention by the Executive Authority, entitled to promulgate and revoke the Emergency, viz, the President that the grounds on which he issued the Proclamation of Emergency on 6th September, 1965 had ceased to exist. The principal ground for promulgation of Emergency was the threat of war to Pakistan and that threat with the revocation of Emergency had ceased to exist on and from 17th February, 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 1 of 1969 was the state of the affairs which existed till 16-2-1969.
In other words, by the revocation of the Proclamation of Emergency and the promulgation of Ordinance 1 of 1969, the state of war was first ossified, and then this ossified state as past and closed transaction was continued in operation by the Ordinance. Due to currency of Emergency till 16-2-69 the definition given to 'enemy', 'enemy subject' and 'enemy property are to be interpreted in terms of the state of affairs as existed till 16-2-69. The meaning of the definition in those clauses as to the state of war or military operation is to be so interpreted, and the state of war or military operation existing during the currency of the Emergency, but that presumption ceases with the revocation of Proclamation of Emergency. What continued was the state of affairs till 16th February, 1969 as past and closed transaction. Interpreted in this way, there cannot be 'any question of supposed continuation of any state of war or military operation after 16th February, 1969. If. any action is sought to be taken with regard to any property after 16-2-69 as enemy property, it is to be seen whether the property sought to be taken over as enemy property was so between 6-9-65 and 16-2-69, 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 so the authority, whether the Custodian or Additional Custodian or Assistant Custodian or Board, 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 a property becomes an 'enemy or 'enemy property by operation of law on the fulfilment of the conditions laid down by the relevant Defence of Pakistan Rules and no further formal declaration by an officer or authority is needed and once a property comes within the definition of-enemy property' within the period of 6-9-65 to 16-2-69 subsequent taking over of such property is permissible, but not otherwise.
10. Mr. Pal has, with plausible justification, submitted in the case of Bangladesh Enemy Property Management Board Vs. Md. Abdul Majid DLR (AD) 52, there is some observation which is apt to convey an impression that by the continuance of these provisions of Defence of Pakistan Rules continued by Ordinance 1 of 1969, the stale of war or military operation were deemed to have continued. Such impression which we have already pointed out is incompatible with the provisions of law as understood in its true context. What continued is the state of affairs as an enemy property or firm as it existed on 16.2.69? The decision in the context of the facts was apt; but certain observation as we have stated is misleading and that is why the clarification given herein is called for.
11. We now revert back to the consequence of the continuance of Ordinance (1 of 1969.) AS stated earlier under Laws Continuance Enforcement Order, 1971 all laws in force on March 25, 1971 continued in force in Bangladesh as was consistent with the creation of sovereign Bangladesh and this position in law gets full recognition under President's Order No. 29 of 1972 Bangladesh (Vesting of Property and Assets) Order, 1972, and President’s Order No. 48 of 1972 Bangladesh (Adaptation of Existing Bangladesh Laws) Order, 1972. President's Order No. 29 of 1972 vests ail properties in the Government of Bangladesh which were vested in or managed by any Board constituted by or under any law or in the former Government of East Pakistan or Pakistan President's Order No, 48 of 1972 provided for the adaptation of laws which were continued to rend amongst otters Central Government or Government of East Pakistan or the Provincial Government or the Government of East Pakistan to refer to the People's Republic of Bangladesh. Then came Ordinance IV of 1974 the Enemy Property (Continuance of Emergency Provisions) (Repeal) Ordinance, 1974, which repealed the Enemy Property (Continuance of Emergency Provisions) Ordinance 1 of 1969 and provided, inter alia, that all enemy property vested in the Custodian of Enemy Property appointed under the provisions of the Defence of Pakistan Rules continued in force by the said Ordinance shall vest in the Government, meaning Government of Bangladesh, There was another Ordinance No. V of 1974. The Vested and No Resident Property (Administration) Ordinance 1974, which provided for the management and control of the vested and non-resident property in the manner set out in the Ordinance. These Ordinances were replaced by Act XLV of 1974, Enemy Property (Continuance of Emergency Provisions) (Repeal) Act. 1974, and Act No XLVI of 1974 the Vested and Non-Resident Property (Administration) Act. 1974. There had been two subsequent enactments, namely Ordinance XCII of 1976, the Vested and Non-Resident Property (Administration) (Repeal) Ordinance 1976 which repealed the Vested and Non-Resident Property (Administration) Act, 1974 followed by Ordinance XCIII of 1976 the Enemy Property (Continuance of Emergency Provision) (Repeal) (Amendment) Ordinance, 1976, which has amended Section (3) of Act XLV of 1974 by providing that the properties which had vested in the Government, the right of administration, control, management and disposal of by transfer or otherwise be conferred on the Government or of such officer or authority as the Government may direct. This brings us to the up-to date position of the enemy property laws which started with the Promulgation of Emergency and the Defence of Pakistan Ordinance and Rules made thereunder in 1965. We have already indicated that the continuance of enemy property provision was the continuance as a vested enemy property and there is no question of the vesting of the property by provisions other than contained m Rules 181 and 182. Trie effect of Provisions of Act XLV of 1974 as amended by Ordinance XCII and XCIII of 1976, is that the vesting of the property as enemy property by virtue of Defence of Pakistan Rules in the. Custodian or Additional Custodian or the Board continued as vested property in the Government of Bangladesh. The vesting occurred by operation of aforesaid Defence of Pakistan Rules in those authorities and those vested properties as enemy properties as past and closed transaction continued to be so in the Government of Bangladesh, and the Government acquired by the aforesaid laws all the right of management, control and disposal of the property by transfer or otherwise. Upon a true construction of the laws aforesaid, we get, that all rights in such property vest in the Government of Bangladesh and the title of the owner of the property remains subject to the overriding power of the Government, or, in other words, the title of the owner remains eclipsed or suspended as long as the property remains vested in the Government. The consequence is that the Government has all the power of management and disposal of those properties and also the power to release those properties. We, therefore, on facts, find that at first the Appellant firm on 20.9.65 was declared as enemy property firm under Rule 181, and on 27.10. 65 its properties were vested in the Additional Custodian under Rule 182 of the Defence of Pakistan Rules, were made during the currency of the Emergency and so we find no error in the decision of the High Court that the firm did come within the definition of enemy firm and so its assets were validly vested in the Additional Custodian as enemy property and as vested enemy property, it continued by the successive legislations to remain so first as enemy property and thereafter as vested property.
12. We now turn to question of validity of Ordinance 1 of 1969 which Mr. Pal argues was not a valid piece of legislation, which could be continued by Laws Continuance Enforcement Order, 1971. The validity of the Ordinance has been impliedly so held in Abdul Majid's case aforesaid and we do not, except for the clarification already made, find any reason to dissent from it. However, the argument of Mr. Pal may be considered. His contention is that, President Ayub Khan in violation of his own Constitution, instead of abdicating in favour of the Speaker of the National Assembly handed over power illegally and unconstitutionally to General Yahya Khan, and Yahya Khan without any legal or constitutional authority abrogated the Constitution of the then Pakistan. He was an usurper and as such the Provisional Constitutional Order which provided, inter alia, continuity of ordinance which included Ordinance 1 of 1969 was without any Constitutional validity, and as such the Ordinance ceased to exist as a valid piece of legislation after the expiry of one hundred and eighty days, and so it was not an existing law on 25th March 1971 which could continue in terms of Laws Continuance Enforcement Order, 1971. The short answer to the ingenious argument is that, so far as Bangladesh is concerned, we are to look at the legitimacy of a law from the Proclamation of Independence made on 10th April, 1971 and the Laws Continuance Enforcement Order and the Constitution of Bangladesh. As regards argument of Constitutional legitimacy of Yahya 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, as we have said, we are to look for the validity of the Laws from the sources indicated earlier. A combined reading of Proclamation of Independence, Laws Continuance Enforcement Order, the Constitution of Bangladesh, President's Order No. 29 of 1972. President's Order No. 48 of 1972 and Act XLV of 1974 as amended by Act XCIII 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. No further argument or speculation is necessary, Mr. Pal's contention fails.
For these reasons the appeal fails and it is dismissed without any order as to costs.