MOHAMMAD ISRAIL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a writ petition challenging a notice dated the 24th of October, 1973 and two letters dated the 29th of October, 1973 issued by the respondent No. 3, Deputy Custodian of Enemy Property.

(2.) The facts shortly are; That a premises No. 19, Pheares Lane (formerly known as Chunamgully) hereinafter refer-red to as the said 'premises' belonged to the estate of one Benoy Madhab Law. On the 8th of February, 1927, the Executrix of the said estate leased out the said premises (a vacant plot of land) to one Haji Allah Jawaya for period of 20 years commencing from the 1st of March, 1927 with permission to build thereon structures and/or houses for residential purposes. Thereafter by virtue of a purported decree dated the 6th of April, 1936 in Suit No. 1319 of 1973 of this Court, the said premises was allotted on the 29th of August, 1944 to Mohendra Nath Law, the youngest son of the said Benoy Madhab Law On the 28th of December, 1945, the said Mohendra Nath Law sold the said premises to one Mussamet Boktam Begum and Md. Shafiq by a deed of conveyance subject to the said lease in favour of Haji Allah Jawaya. The said lessee and his successors-in-interest constructed buildings and structures on the said premises and alleged to have enjoyed the said premises even after the expiry of the said lease as lessees thereof under the said Mussamet Boktam Begum and Md. Shafiq. It is alleged that the Calcutta Thika Tenancy Act Ordinance was promulgated in 1948 and the same was replaced by the Calcutta Tenancy Act, 1949 and after the said expiry of the said lease, the successors-in-interest of the said lessees being Mohammad Anwer and Mohammad Zafar, grandsons of Haji Allah Jawaya continued to occupy the said premises as thika tenants. Thereafter by a deed of lease dated the 20th of February 1956 executed between Mossamet Boktam Begum and Md. Shafiq on the one part and Md. An-war and Md. Zafar as parties on the other part the said owner of the premises demised the said premises to Md. Anwar and Md. Zafar for period of 15 years. It is alleged (that) by the said purported deed of lease, the said Mussamet Boktam Begum and Md. Shafiq sought to defeat and annul the effect of the Calcutta Thika Tenancy Act and as such the said deed of lease is void. It further appears from the said alleged lease dated the 20th of February, 1955 that Md. Anwar and Md. Zafar were the absolute owners of structures standing on the plot of land at the said premises and thereby practically admitted that they were thika tenants under the said Mussamet Boktam Begum and Md. Shafiq. By a registered deed of lease dated the 22nd of August, 1955 between the said Md. Anwar and Md. Zafar on the one part and Haji Mohammed Hossain on the other part, the said Haji Mohammed Hossain since deceased 'became the owner of the (partly tile-roofed and partly corrugated tin-roofed one storied hut consisting of 29 rooms erected on the said premises together with leasehold interest in the said premises. The said Md. Anwar and Md. Zafar at all material times and at the time of the sale of the said structures and transfer of the leasehold interest on the said premises were citizens of India. It is also alleged that the said Haji Mohammad Hossain also constructed five more rooms on the said plot of land at the said premises and continued in possession thereof till the date of his death on the 23rd of June, 1968. The petitioners Mohammad Israil and Ashique Hossain being the sons and Anwari Begum, Nejma Begum, Hargis Begum and Shamim Begum are the sons and daughters of the said Haji Mohammad Hossain and are the legal heirs and heiresses. Thereafter toy an amicable Deed of Partition dated the 12th of September, 1969, the said premises together with structures thereon was allotted to the petitioners Mohammad Israil and Ashique Hossain and since the said date the petitioners' are enjoying the proprietary right and exercising all acts of possession in respect of the said premises and all structures thereon. It is alleged that between June 1973 and August, 1973, the petitioners with a view to erect a building on the said premises entered into several agreements with several tenants of the huts which contained inter alia a term that the tenants would vacate their respective rooms under their tenancies in the said premises on the expiry of the month of September, 1973 failing which each of them would be liable to pay damages at the rate of Rs. 10 per diem till they would vacate the rooms and also if the petitioners would fail to construct the proposed new building within the specified time mentioned in the said agreement after obtaining vacant possession, then the petitioners would be liable to pay each of the tenants damages at the rate of Rs. 10 per diem until building is completed and possession is restored to them and the time was made essence of the said contracts between the petitioners and their tenants. It is alleged by the petitioners that with a view to frustrate the said agreement some interested persons and some of the tenants in collusion with each other began to create trouble for the petitioners. Thereafter the petitioner No. 1 received the letter dated the 15th of September, 1973 from the respondent No. 3 alleging that various complaints were received from various sources that there is enemy interest in the said premises which has been purchased by the petitioners' father Haji Mohammad Hossain. By the said letter the said respondent No. 3 also called upon the petitioners to produce before him satisfactory documentary evidence in that regard 'by the 25th of September, 1973, it is alleged that from the above notices the petitioners realised that (tome of the tenants who have entered into the agreement for vacating the said premises in their respective possession were not inclined to honour their agreement and caused the said notices to be issued toy lodging complaints with him. It is alleged that the respondents Nos. 2 and 3, the Custodian of Enemy Property and Deputy Custodian of Enemy Property most arbitrarily and without giving a hearing to the petitioners and without any prior intimation to the petitioners issued notices on the monthly tenants of the petitioners calling upon them to pay their respective rents to the respondent No. 3. By a letter dated the 29th of October, 1973 which contained the order of the respondent No. 3 called upon the petitioners to pay him by 17th November, 1973--the rents payable to the owners of the said premises under the lease as from 10th of September, 1965 to 23rd of February, 1970 and rents collected by the petitioners from the tenants of the said premises from 1st of March, 1970 to 30th of September, 1973 and along with the said letter a copy of authorization dated the 24th of October, 1973 was forwarded wherein it is stated that Mussamet Bokhtan Begum and Md. Shafiq are Pakistanis and owners of the said plot of land in the said premises and huts thereon. It appears that the respondents Nos. 2 and 3 are claiming as custodian of enemy property on the basis of the alleged Deed of Lease dated the 20th of February, 1955 executed 'between the said Mussemet Bokhtan Begum and Md. Shafiq as lessors and the said Md. Anwar and Md. Zatar dated the 20th of February 1955. It is further alleged that one of the provisions in the said purported Deed of Lease dated the 20th of February, 1955 is that on the expiry of the period of 15 years the land together with the structures standing thereon without any compensation would become the property of the said Mussa-met Bokhtan Begum and Md. Shafiq. It is alleged that such a provision was clearly void as it was designed to take away the protection of the tenants under the Calcutta Thika Tenancy Act, 1949 and was against the public policy being contrary to statutes. In this writ petition the petitioners have challenged the Notification No. 12/2/65 dated the 10th of September, 1965 of the Ministry of Commerce, Government of India, Authorisation No. 5 (216) PAK dated 24th October, 1973 made by the respondent No. 2 and the order contained in the Letters Nos. 115/2315-6 dated the 29th of October, 1973 of the respondent No. 3 on the grounds mentioned in paragraph 36 of the petition. After serving a letter demanding justice dated the 29th of January, 1974 through the petitioners' Advocate and the refusal by the respondent No, 3 by his letter dated the 9th of March, 1974, the present writ petition was filed on the 22nd of March, 1974 and an interim injunction was obtained by the petitioners. It will be convenient to set out the said Notification, Authorization and letter which are impugned in this petition which are as follows:-- "Copy of Government of India, Ministry of Commerce Notification No. 12/2/65 E. Pty., dated the 10th September, 1965. In exercise of the powers conferred by Sub-rule (1) of Rule 133-V of the Defence of India Rules 1962, the Central Government hereby orders that all immovable property in India, 'belonging to or held by or managed on behalf of all Pakistan nationals, shall vest m the Custodian of Enemy Property for India with immediate effect. 2. Nothing in this notification shall apply to any such property, belonging to or held by or managed on behalf of such of the Pakistan nationals as are employed in the different Missions of the Government of Pakistan in India. <FRM>JUDGEMENT_189_AIR(CAL)_1976Html1.htm</FRM> <FRM>JUDGEMENT_189_AIR(CAL)_1976Html2.htm</FRM>

(3.) Mr. Hassan imam appearing for the petitioners placed before me the facts which I have set out before from, the petition and annexures and thereafter submitted "that two important questions arise in this matter: (i) Is the Rule 133-V of the Defence of India Rules, 1962 ultra vires Section 3 of the Defence of India Act? (ii) Can the respondents Nos. 2 and 3 take possession of the said premises and interfere with the petitioners' possession and realising the monthly rents without taking recourse to due process of law?