P L D 1969 Dacca 836 (PLP)

Upon these facts, the learned Advocate for the petitioner, Mr. K. Hossain, contended that Panday Stores being a Firm must be governed by the provisions of rule 181 of the Defence of Pakistan Rules (hereinafter referred to as the Rules) if it is found to be an Enemy Firm, and a notification made under rule 182 of the Rules is not a proper notification to cover an enemy firm and/or to give authority to the Assistant Custodian of Enemy Property to deal with an enemy firm. "Enemy Firm" has been defined in sub‑rule (2) of rule 169 of the Rules. In view of the fact that Jogendra Narayan A Panday, who was one of the owners of the Panday Stores, being an Indian National at the time of passing of the order, as admitted by the petitioners, and two of his minor sons, namely, petitioners 3 and 4 before us also being Indian Nationals because their nationality is to be governed by the nationality of their father, Panday Stores is fully covered, in our opinion, by the definition of "enemy firm" as given in this rule in clauses (a) and (d), thereof. We find three distinct provisions made in the Rules for dealing with enemy firms and enemy properties in Pakistan. Rule 181 deals with control or management of an enemy firm ; rule 182 deals with control and management of any money payable to an enemy firm and for administration and disposal t of enemy property by the Custodian. This rule, except to the extent that it controls money payable to an enemy firm, deals mainly with enemy properties of the nature of immovable properties in the shape of buildings and lands. Rule 183 deals with powers of the Government to control and wind up enemy firms in Pakistan. For application of the provisions of rule 181 to an enemy firm, it is required of the Government to be satisfied objectively as to whether the running of the enemy firm is likely to be affected by the state of war as to prejudice the effective continuance of its trade or business and as to whether in the public interest the trade or business of the said enemy firm should be continued or carried on. If the Government is satisfied with regard to these conditions, then and then alone the Government may pass an order authorising a person to carry on the trade or business in such manner and to such extent as may be prescribed in the said order. It comes to this then that, whenever powers under rule 181 are to be exercised, the Government will have to make an order which, in our opinion, must be a speaking order fulfilling the conditions laid down in sub‑rule (1) of rule 181 of the Rules. This view has been taken by a Division Bench of this Court to which I am a party P L D 1968 Dacca 177 and also by our Supreme Court in the case of Province of East Pakistan v. Daulatpur Jute Mills Ltd. and another (P L D 1968 S C 398). In the present case, there is no controversy with regard to the fact that Panday Stores is a firm, and since three of its proprietors were enemy nationals, it was an enemy firm at the time when the order was made. There may be a number of enemy firms existing in Pakistan but all those firms may not be necessary to be taken over by the Government, and only those in respect of which the Government feels that the conditions mentioned in sub‑rule (1) of rule 181 are fulfilled, an order under the sub‑rule can be made. It means that the Government will have to name the enemy firm and make an order specifically with regard to that enemy firm under rule

181. It is admitted by the respondents that no notification was issued in respect of Panday Stores under rule 181 of the Rules. The notification which has been annexed to the petition as Annexure `C' was issued under rule 182 of the Rules. This notification was for the purpose of vesting of Panday Stores, which has been mentioned to item 2 of the Schedule to the said Notification, in the Assistant Custodian of Enemy Property for Dinajpur District. By virtue of this Notification, it is con tended by the respondents that the Assistant Custodian of Enemy Property, Dinajpur, had appointed respondent No. 4, the Assistant Registrar of Co‑operative Societies, Dinajpur, to run the business of the said enemy firm. We may mention here that, although nowhere in the petition the petitioners have said that the business of this firm is being run up till today and on the contrary the petition disclosed that the business of the firm was stopped from the 11th of December 1966, it is found from para. 9 of the affidavit‑in‑opposition of respondents 1 and 2 that the business of this enemy firm‑Panday Stores‑is being run by the Assistant Registrar of Co‑operative Stores, Dinajpur, as per orders of the Deputy Commissioner, Dinajpur, who happens to be the Assistant Custodian of Enemy Property for that district. It is, therefore, clear that the respondent No. 4 has been appointed as an agent for running the enemy firm known as Panday Stores. The provisions of rule 182 of the Rules are not, in our l opinion, applicable to enemy firms except to the extent of any money payable to an enemy firm by a third party. As such, the Notification No. Sec.‑158/65/1‑EPS dated 7th January 1966, by which M/s. Panday Stores of the petitioners has been vested in the Assistant Custodian of Enemy Property, Dinajpur, is of no consequence only in respect of the enemy firm, M/s. F. Panday Stores. With regard to enemy firms, in our opinion, two pro visions of the rules could be applied: The provisions found in rule 181 and provisions found in rule

183. The Government may choose to act under any of these two rules with regard to an enemy firm but cannot act under rule 182 in regard to an enemy firm. It is nobody's case that any order has been made under rule 183 of the rules in respect of Panday Stores. The respondents have not been able to 1place before us any Notification made under rule 181 of the Rules in regard to Panday Stores of the petitioners. In view of what has been said above, we find no authority in the Assistant Custodian of Enemy Property, Dinajpur, to have taken over possession of Panday Stores and to have appointed respondent No. 4 to run the business of the said enemy firm. The Notification No. Sec‑158/65/1‑EPS dated 7th of January 1966, does not also, in our opinion, confer any authority on the Government in respect of the enemy firm, Panday Stores, belonging to the petitioners either for the purpose of vesting it in the Assistant Custodian of Enemy Property or for the purpose of taking over of the business. We accordingly set aside the Notification No. Sec.‑158/65/1 EPS dated 7th of January 1966, only to the extent that it affects item No. 2 of the Schedule to the said Notification, namely, M/s. Panday Stores (Stationery Shop) of Jogendra Narayan Panday, Nimtala, Dinajpur Town. It seems to us that the authorities were in some confusion with regard to the application of the proper rule to this enemy firm. Actions that have been taken are all seem to have been taken under rule 181 but unfortunately no Notification under that rule has been made to confer jurisdiction on the Assistant Custodian of Enemy Property, Dinajpur, to do what he has done. In the result, therefore, this application must succeed and the Rule nisi issued Is made absolute but without any order as to costs. ABDUL HAKIM, J.‑I agree. K. B. A. Rule made absolute.