ABUL KHAIR MIAH Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(1.) This appeal arises out of a writ petition wherein the appellants attempted to get an order of the Enemy Property authority declared as without lawful authority but had not succeeded.

(2.) Facts are that the properties in appeal had been declared as enemy property by the Assistant Custodian of the Enemy Property by his orders dated 29-12-69 and 14-9-70 in E.P. Cases No. 228/70-71, 229/70-71 and 230/70-71. The properties were owned and possessed by (1) Hari Bandhu Nath, son of late Kamini Kumar Nath (2) Promoda Sundari Devi, wife of late Kamini Kumer Nath and (3) Sabitri Prova Devi, wife of late Krishna Bandhu Nath (son of late Kamini Krishna Nath). The property comprised in E.P. Case No. 228/70-71 originally belonged to Gour Chandra Karmakar and others and then it was transferred to Krishna Sundar Majumder, who in turn, sold the same to Kamini Kumar Nath by a registered Kabala dated 27.10 43. Kamini Kumar Nath was in possession of the property since his purchase. Kamini Kumar mortgaged the property to Nath Bank (Pakistan) Ltd. by a registered deed of mortgage dated 28-12- 44. The Bank filed Mortgage Suit No. 84 of 1954 in the Court of Subordinate Judge, Noakhali against the mortgage on the death of Kamini Kumar, Promoda Sundari Devi and Sabitri Devi were substituted in his place. The suit was disposed of on compromise on 22.8.75. It was claimed that Hari Bandhu Nath, Promoda Sundari Devi and Sabitri Devi were nationals of Bangladesh by birth and were permanent residents of Noakhali District and they never migrated to India either after partition or during the Indo-Pakistan War, 1965 nor during the liberation war of 1971. Hari Bandhu Nath, Promoda Sundari and Sabitri Devi sold these properties to the deceased appellant and his son and brother and others by registered kabalas dated 19-8-75 (registered on 70-8 75) It was alleged that respondent Md. Golam Mostafa, a neighbor was trying to grab the property. He moved the authority to treat the said property as abandoned property but when he failed in his attempt, he got the property declared as enemy property by unfair means. An enquiry was made into the matter to ascertain whether the property was an enemy property by Mr. S U.M Zahirul Islam, Magistrate, 1st Class, Sadar, Noakhali. The Magistrate submitted his enquiry report on 3.3.76, 01 examination of witnesses and held that appellant's vendors never migrated to India either in 1947 or in 1965 or in the year 1971. The enquiry report was not accepted by the Joint Secretary, Land Administration & Land Reforms, Administration Division and he held that the property vested as Non-Resident-Property (Administration Cell), and that the property was rightly declared as Enemy Property by the Assistant Custodian. This order was passed on 5.10.76. The appellant being aggrieved by the aforesaid order of the Joint Secretary moved the High Court Division under Article 102 of the Constitution.

(3.) The dispute centred round the question whether the vendors of the deceased appellant migrated from the then East Pakistan some time before the war of Indo-Pakistan in 1965. The High Court Division held that it was a disputed question of fact and so it could not be decided in the writ jurisdiction, and the learned Judges were of the view that the order passed by the Enemy Property authority declaring the property as enemy would stand and that is under challenge.