TANWIR EQBAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petitioners are having the second round in the Hon'ble High Court. A writ petition with identical facts was moved in 1979 and thereafter the Trial Court's decision was challenged before the Division Bench in 1982. The Division Bench made certain direction and on the basis of that direction an order was passed on 14th Feb., 1984 which is under challenge in the instant writ application.

(2.) The facts of the writ application, in short, are as under : The predecessor-in-interest of the present petitioners, i.e. Shaikh Gulam Rasul Qais, purchased from one Mussammat Khadija Bi the premises No. 6, Harinbari lst Lane, Calcutta, by a registered Deed of Sale dt. lst Sept., 1969 for valuable consideration mentioned therein. After purchasing the said premises Qais mutated his name in the Corporation of Calcutta and paid taxes and was in peaceful possession and enjoyed the usufructs thereof. The said Qais died on 17th Jan., 1977 leaving behind the petitioners as his sole legal heirs and representatives and the estate left by him devolved upon his legal heirs and representatives according to the Mohammedan Law. Since the demise of Qais the petitioners were in peaceful possession and enjoyment of the premises in dispute. It is stated in the writ application that some of the tenants of the premises were inimical to the petitioners and at their instigation the Assistant Custodian of Enemy Property sent a notice dated 21st April, 1979 to petitioner 1 alleging that " it has been ascertained that the immovable property at 6, Harinbari 1st Lane, Calcutta-73, is owned by Mt. Khadija Khatoon, the wife of Abdur Rashid, a Pakistani National and is, therefore, " Enemy Property" and had vested in the Custodian of the Enemy Property for Government of India, Ministry of Commerce, Notification No. 12/265 E.Pty. dated 10th September, 1965 (copy enclosed) and continues to so vest in the said Custodian under the provisions of the Enemy Property Act. 1968". (It is an admitted fact that Khadija Bi or Khadija Khatoon is one and the same person). The said notice further stated that this property was transferred to the late Gulam Rasul Qais under a registered Deed of Conveyance and that the rents and profits are realised by the legal heirs of the deceased Qais. The notice called upon petitioner 1 to show cause within 10 days from the receipt of the notice why the rents and profits of the property should not be collected by the custodian, etc. But strangely enough much before the expiry of 10 days' time given for the show cause notice i. e. on 23rd April, 1979 the Assistant Custodian of the Enemy Property issued letters to the tenants of the said premises asking them to pay rents not to the petitioners but at his office. The petitioner 1 replied to the show cause notice on 25th April, 1979 stating, inter alia, that the said Khadija Khatoon has never been a Pakistni National as alleged and the premises No. 6, Harinbari 1st Lane does not come under the purview of the Enemy Property Act. In view of the facts that the emergency expired on 10th July, 1968 the purported order dated 21st April, 1979 declaring that the said property as vested in the custodian is without jurisdiction and contrary to the provision of S.5, Enemy Property Act. It was further contended that S.5 of the said Act states that notwithstanding the expiration of the Defence of India Act and Rules, 1962 all enemy properties vested before such expiration in the Custodian of Enemy Property will continue to vest in him immediately under the Enemy Property Act, 1968. In order to attract the operation of the said S.5 it is necessary to establish that the enemy properties had vested in the Custodian of Enemy Property under the Act and continue to vest in him before the commencement of the Enemy Property Act in 1968. But in the instant case there was no such order by which the property vested in the Custodian. The further case of the petitioners is that property was purchased after the expiry of the emergency and this makes the alleged notice illegal, unwarranted and without jurisdiction. The petitioners moved the Hon'ble High Court under writ jurisdiction on 3rd May, 1979 and A.K. Mookerji, J. was pleased to issue a Rule and interim order of injunction in C.R. No. 3679(W) of 1979 which was ultimately heard by P.C. Borooah, J. on 18th June, 1982 when the Rule was discharged. An appeal was preferred being F.M.A.T. No. 1853 of 1982 and on 22nd Dec., 1983* M.M. Dutt and G.N. Ray, JJ. allowed the appeal in part by modifying the order of the Trial Court. In pursuance to the Court of Appeal's order, the Assistant Custodian of Enemy property disposed of the representation of the petitioners (which was answer to the show cause notice) by Memo dt. 14th Feb., 1984 rejecting the contentions of the petitioners and the said Memo is now under challenge in this writ application.

(3.) The decision as contained in the aforesaid Memo has been challenged on several counts including that according to the direction of the Division Bench the Assistant Custodian of Enemy Property ought to have decided the matter on evidence or materials that might be made available to him whether the property was an enemy property/ or not. The further case of the petitioners is that in spite of the above direction respondent 3 who is the Assistant Custodian and who was directed to hear the matter, a board of three persons including the Assistant Custodian heard the matter jointly and the petitioner's learned Advocate had to answer a number of questions from all of them thus defying the specific order of the Appeal Court. It is the further case of the petitioners that the finding of respondent 3 that Khadija Khatoon/Khadija Bi, the wife of Abdur Rashid and the owner of 6, Harinbari 1st Lane, left Calcutta for good in 1949 and became a Pakistani National and never came back to India is not based upon any evidence at all as not a single chit of paper was produced before the petitioners to enable them to rebut the same because the reports and other papers already in the possession of the Assistant Custodian and the report of the local enquiry which were referred to in the impugned Memo were never disclosed to the petitioners or the petitioners' learned Advocate. The learned Advocate for the petitioners produced two registered Deeds of Conveyance in support of the contention of the petitioners and the same find no place in the decision of the Assistant Custodian which is not a reasoned one. It is further contended that the Assistant Custodian is holding Khadija Bias a Pakistani National and, as such, it is for him to prove that Khadija Bi is not an Indian Citizen and this onus cannot be shifted by the respondents upon the petitioners and unless the same is proved, the property in question cannot be declared as an enemy property because the petitioners are its legitimate owners in their own right by virtue of the said sale deed.