P L D 1969 Dacca 795 (PLP)

SIDDIKY, C. J. 'The petitioner in this Rule, one Jagat Chandra Das, has challenged the legality of Memo. No. 1013‑E.P. dated 7‑6‑1968 issued by the Assistant Custodian of Enemy Property (Lands and Building) and Additional Deputy Commis sioner (Revenue), Dacca directing him to deposit a sum of Rs. 24,780 with the Tahsildar of the Narayanganj Sub‑Division within fifteen days from the date of issue of the Memo. failing which certificate proceedings will be started against him for non‑payment of the said money and has also asked for a declara tion that the said Memo. is without any legal authority and to cancel the same. The case of the petitioner is that a Hat, known as Madhabdi Babur Hat, belongs to Sailendra Kumar Gupta Roy, Gopal Kumar Gupta Roy and Bishad Kumar Gupta Roy, of Madhabdi within P. S. Narsingdi, District Dacca. The said Madhabdi Babur Hat sit: one day in every week. The Government of East Pakistan, under the East Bengal State Acquisition and Tenancy Act, 1951, acquired the said Hat as a non‑retainable khas land and advertised for settlement of the same by auction sometime in 1958. Thereafter a Title Suit, being Title Suit No. 25 of 1958, was instituted by the proprietors of the Hat in the 2nd Court of the Subordinate Court, Dacca only in respect of the vacant portion of the hat, as they had already given up possession of the Chandina Bhitis in favour of the Government and the Government had started realising tolls from the said Chandina Bhitis. The proprietors started collecting tolls from the cattle market and the sundry vendors attending in the open space. The suit was dismissed and an appeal was preferred in this Court; being F. A. No. 59 of 1961, and an injunction was obtained against the Province of East Pakistan by the proprietors and by virtue of the said injunction the proprietors were continuing to be in possession of this Madhabdi Babur Hat. The petitioner, as the Manager of the said proprietors, was collecting tolls until the 24th of May 1967. The petitioner admits in paragraph 7 of his petition that all the proprietors of the Hat in question migrated to India the last of whom left some months before the 6th of September 1965 and bad not returned to Pakistan since. On receipt of an information that one Ambar Ali Prodhan was trying to secure settlement of the Hat from the respondent as an enemy property, the petitioner submitted an application on 20‑5‑67 to the respondent stating that the proprietors were in possession of the ‑Hat by virtue of an order of injunction issued by the High Court and praying for stay of all pro ceedings in the matter. The proceedings thereupon were stayed by the respondent. But by Memo. No. 884‑E.P., dated 24‑5‑1967 the petitioner was informed by the respon dent that the stay order was vacated and the petitioner was asked to hand over possession of the Hat forthwith to the said Ambar Ali Prodhan. The petitioner, in obedience to the said direction of the respondent, handed over possession of the Hat to the said Ambar Ali Prodhan on 24‑5‑1967. Thereafter by Memo. No. 5614‑Rev. XXVIII‑3/67, dated 10‑6‑1967 the petitioner was directed by the respondent to furnish all accounts in connection with the Management of the Hat by the petitioner from 3‑12‑1965 to 24‑5‑1967. The petitioner submitted accounts in obedience to the said direction. On 17‑6‑1968 the petitioner through post received Memo. No. 1013‑E. P., dated 7‑6‑1968 by which the respondent directed the petitioner to deposit Its. 24,780 with the enemy property Tahsilder, Narayanganj within fifteen days from the date of issue of the said Memo. On receipt of this Memo. the petitioner submitted an application on 21‑6‑1968 to the respondent stating that the demand of Rs. 24,780 was unintelligible and that no such money was in hand of the petitioner as balance on account of realisations made in the Hat and prayed for three weeks' time for making representation against the said demand and for staying initiation of the threatened certificate proceedings but the said application of the petitioner was rejected on 24‑6‑1968. It is the further case of the petitioner that on obtaining a certified copy of the order‑sheet of the case from the office of the respondent, he discovered that the accounts submitted by him was found to be correct on verification of vouchers and registers submitted by him and the respondent passed an order on 30‑5‑1968 directing realisation of net income of the Hat for the period from 3‑12‑1965 to 24‑5‑1967 on the basis of assessment of the annual net income of the Hat made by the predecessor of the respondent on 7‑6‑1967 at the rate of Rs. 16,800 per year. It is admitted by the petitioner that the assessment of annual net income at the rate of Rs. 16,800 was made on the basis of the inspection report dated 7‑6‑1967 made by the respondent after visiting the Hat on a hat‑day and this assessment was made on the basis of the tolls charged and realised by the present lessee Ambar Ali Prodhan. But he contends that this rate of tolls realised by Ambar Ali Prodhan is four times the rate of tolls realised by his masters. He has made a grievance of not being heard by the respondent before issuance of the demand‑Memo. directing him to pay Rs. 24,

780. In paragraph 18 of the petition, the petitioner has given certain figures showing the net income and the return submitted by him to the Income‑tax Department of the Hat from 1962‑63 to 1964‑65 and also the amount of expenditure of Rs. 11,906/77 paisa incurred by him between 3‑12‑1965 and 24‑5‑1967 leaving a balance of Rs. 133/24 paisa only in his hand on 24‑5‑1967. His further case is that he is merely an employee of the proprietors of the Hat and, as such, he has no personal liability to pay the amount demanded from him by the respondent. His application for giving him three weeks' time to make representation and for staying the threatened certificate pro ceedings being rejected by the respondent, he came with this application under Article 98 of the Constitution on the 8th of July 1968, challenging the legality of the said demand. In the affidavit‑in‑opposition filed on behalf of the respon dent No. 1 and affirmed by one Rajab Ali, Superintendent, Enemy Property (Lands and Building), Dacca (Rural Areas) the respondent controverts the allegation made by the petitioner in his petition and it is stated in the said affidavit‑in‑opposition that by Notification No. 1199‑Gen., dated 3‑12‑1965, the property vested in the Custodian of Enemy Properties as enemy property and on 1‑5‑1968 one Mr. S. M. Hossain, Magistrate, 1st Class, Narayanganj who is the Assistant Custodian of Enemy Properties held an on‑the‑spot enquiry and discovered that the petitioner before us had no authority to deal with this enemy property from the 3rd December 1965, and that all the proprietors had migrated to India a decade ago and that the petitioner was in unauthorised possession of the said Hat. It was further stated that the petitioner, after disposing of all his landed properties in Pakistan was making arrangement to migrate to India. The actual income of the Hat to be Rs. 9,223 and 15 annas, as alleged by the petitioner, has been denied by the respondent and it is asserted that on enquiry by the Assistant Custodian on the spot it is found that the annual income of the Hat was Rs. 16,800 per year and it is also stated that the petitioner has shown a very heavy expenditure, which does not correspond to the actual expenditure liable to be incurred in collecting the tolls. It is asserted that the assessment of Rs. 16,800 as the net annual income of the property is based on facts revealed by the enquiry made on the spot by the Assistant Custodian who was deputed for the purpose. In the affidavit‑in‑reply the petitioner has categorically denied the allegation made against him that he is making preparation to leave Pakistan after disposing his considerable landed property in Pakistan, his family is here and that he has never attempted to migrate to India. The allegations made against him, according to the petitioner, are absolutely false and in the rest of the affidavit‑in‑reply the petitioner has .reiterated all that he had stated in his petition. Upon these facts the learned Advocate for the petitioner has contended that firstly, the petitioner is not an un authorised occupier or was not in unauthorised posses sion of the Hat in question and, therefore, the provisions of the East Pakistan Enemy Property (Land and Buildings) Administration and Disposal Order, 1966 (hereinafter referred to as the Order) are not applicable to him. According to the petitioner, he was in lawful possession of the Hat up to 24‑5‑1967 as the Manager of the proprietors and in that capacity he was collecting the tolls for and on behalf of his masters and was making such expenditures as his masters used to do out of the income of the property in addition to the expenditure for making the collection of tolls. The next point contended by the learned Advocate for the petitioner is that the assessment made by the respondent of the annual income of the property at Rs. 16,800 is arbitrary, without any bass and has no connection with the real state of affairs and, as such, cannot be accepted. Next in this connection it is contended that there is no power in the Custodian of the enemy properties to assess any damages or compensation or any amount for that matter to be realised from a person who has been in possession of the enemy property and/or was in‑charge of the administration of such a property. It was further contended by the learned Advocate for the petitioner that in view of the fact that his client was not in unauthorised possession of the property, the provisions of paragraph 5 of the Order do not apply to him. Paragraph 5 of the Order is in the following terms "Surrender of money property by trespassers.‑(1) (a) If any enemy property is found in unlawful possession of any person, the Custodian may require the Deputy Commissioner of the district in which such property is situated to recover possession of such property and place it in the possession of the Custodian. "(b) The Deputy Commissioner, on receipt of the requisition from the Custodian, will issue notice on the person in unlawful possession of the enemy property, to show cause within a period not exceeding 7 days as to why he will not be ejected therefrom and after hearing him may enforce surrender of such property by such person to the Custodian and the Deputy Commissioner or any officer empowered by the Deputy Commissioner in this behalf may use or cause to be used such force as may be necessary for taking possession of the property. (2) If any enemy property after being vested in the Custodian comes under the unlawful possession of any person, the Deputy Commissioner of the district in which such property is situated or any other officer who may be empowered in this behalf by such Deputy Commissioner may on the application of the Custodian, enforce surrender of such property by such person to the Custodian and the Deputy Commissioner or the officer so empowered by the Deputy Commissioner may use or cause to be used such force as may be necessary for taking possession of the property. (3) The person in unlawful possession of the property shall be liable to pay to the Custodian such compensation as the custodian may fix for unlawful occupation of the property and such compensation shall be recoverable from him as a public demand." The learned Advocate's contention has been that had his client been in unauthorised possession of the property then and then alone the provisions of sub‑paragraph (3) of paragraph 5 of the Order could be invoked to fix a compensation and to realise it by resorting to the provisions of the Public Demands Recovery Act, 1913. In our opinion, the provisions of paragraph 5 of this Order apply to the petitioner from 3‑12‑1965 (the day from which the property in question vested in the Custodian as enemy property) as from that date the petitioner's authority to deal with the property as a servant of the Rays ceased on the vesting of the property in the Custodian from whom the petitioner got no authority to deal with the property. The compensation mentioned in sub‑paragraph (3) of paragraph 5 of the Order will, in our opinion, include income of the enemy property collected by the unauthorised occupier. Rule 182(1) of the Defence of Pakistan Rules, 1965 empowers the Government to promulgate an order and prescribe thereby the doing of certain things by the custodian of enemy property as mentioned in clauses (a) to (f) of the said sub‑rule. Pursuant to this power conferred on the Government, the Government promulgated the East Pakistan Enemy Property (Land and Buildings) Administration and Disposal Order, 1966 (hereinafter called the Order) on 8th January 1966, being Order No. 22 General. By this Order dated 8th January 1966, made under Rule 182(1) of the Defence of Pakistan Rules powers in confirmity with various clauses of the sub‑rule (1) were conferred on the custodian of enemy property. Of the powers conferred on the custodian by this Order of the Government, powers contained fn paragraphs 5, 7, 9 and 10 are relevant for our purposes: We have already quoted earlier paragraph 5 of the Order. In terms of the powers conferred on the custodian by paragraph 5(3) of the Order, the Custodian, in our opinion, has a right to fix and recover compensation from a person in unlawful possession of the enemy property. Paragraph 7(1) of the Order provides for recovery of all amounts payable to the custodian by any person in unlawful possession of enemy property as a public demand. Paragraph 9 of the Order authorises the Custodian to enter upon, make survey, take measurement and do such other things as may be found necessary in regard to the control of the enemy property and recovery of compensation. Paragraph 10(1) of the Order vests the Custodian with authority to call for statements and records and documents from a person having any control over any enemy property. In the present case, the Custodian has, under authority of paragraph 5 (3), fixed the compensation recoverable from the petitioner whom we have already found to be in unlawful possession of the property in question with effect from the 3rd of December 1965. We shall now deal with the basis and reasons for the Custodian to have fixed the compensation recoverable from the petitioner in regard to the property in question, The petitioner, on his own admission, had realised tolls from the Hat in question from the 3rd of December 1965, to the 24th of May 1967. He has, of course, by submitting an account to the Custodian, shown the expenses that lie had incurred and the balance that is left in his hand on the 24th of May 1967. But the custodian not being satisfied with the accounts, asked the Assistant Custodian to hold an on‑the‑spot enquiry and, as is evidenced from the affidavit‑in‑opposition, such an enquiry was held by the Assistant Custodian on a hat‑day and he made, upon enquiry, an assessment of the income of the Hat and along with that the fact of the Hat having been leased out to Ambar Ali Prodhan at Rs. 16,800 per year was also taken into consideration to assess the amount that was realised by the petitioner from 3rd September 1965, to 24‑5‑1967. In these facts it is difficult to agree with the learned Advocate for the petitioner that there was no basis for the Custodian to have arrived at the figure of Rs. 24,780 due from him to the Custodian. Thus, it cannot be said that the fixation of the amount payable by the petitioner is arbitrary or capricious. The learned Advocate for the petitioner handed over to us two certified copies of the Assessment orders passed by the Income‑tax Officer in respect of the income of the masters of the petitioner in regard to the Hat in question for the assessment years 1963 64 and 1964‑

65. The assessment order of the year 1963‑64 shows that the proprietors, i e., the masters of the petitioner before us, filed return showing a total income of the Hat at Rs. 5,256/09 but they having not been able to produce the books of accounts, the Income‑tax Officer proceeded to complete the assessment on estimate and total receipt taken on estimate was Rs. 13,

000. After deduction of allowable expenses of Rs. 3,000 the next income of the property was assessed at Rs. 10,

000. On the following year, i.e., 1964‑65, the income return filed by the proprietors was Rs. 4,153/13, and they having not been able to produce books of accounts in respect of the return figure before the Income‑tax Officer, the latter proceeded to complete the assessment on estimate on the basis of the last year's position and Rs. 13,000 was estimated to be gross income. After deduction of the allowable expense of Rs. 3,000 the net income was assessed at Rs. 10,

000. It is not the case of the petitioner that they had appealed against these two assess ment orders and/or had obtained any relief against the orders of the Income‑tax Officer. The petitioner for the period from 3rd December 1965, to 24th May 1967, made up the accounts of income and expenditure of the property as follows : Rs Opening balance 2,816‑3‑3 Collection during the period from 3‑12‑65 to 24‑5‑67 9,223‑15‑6 Total 12,040‑2‑9 Expenditure during the period 11,906‑14‑9 Balance 133‑4‑0 The expenditure of Rs. 11,906‑14‑9 shown by the petitioner for the period in question seems to be not only disproportionate to the income of the property but also unreliable. There was, therefore, possibly an attempt by the petitioner, when asked to render accounts by the Custodian, to inflate‑the expenditure and deflate the income. However, on the face of the facts that previously no accounts were produced before the Income‑tax Officer by the proprietors whose work even in the years 1963‑64 and 1964‑65 was being done by the petitioner before us, because the proprietors had already left for India ; and also because of the enquiry made on the spot by the Assistant Custodian oil a hat‑day to find out the income and also because of the amount for which the lease was taken by Ambar Ali Prodhan, it can safely be said that the amount demanded by the Custodian from petitioner was done on the objective satisfaction for which, as we have already stated, there is ample power vested in the Custodian under the Order read with Rule 182 (1) of the Defence of Pakistan Rules. Furthermore, we do not think that the petitioner is entitle to any relief from us under Article 98 (2) of the Constitution wit regard to the amount of compensation assessed by the Custodian, as it involves a question of accounting and evidence which can properly be gone into in a suit framed and filed for the purpose in a civil Court of competent jurisdiction. We do not intend to be understood that the Custodian of enemy properties can assess any amount. If the assessment is made on no reasonable basis and if it is found by the Court that because of want of reasonable basis the assessment amounts to an arbitrary one, the Court will not hesitate to strike down such an assessment made by the Custodian. But, as we have already observed, in the present case there are several reasonable grounds to assess the figure demanded by the Custodian. Lastly, the learned Advocate for the petitioner contended that he was not given an opportunity to show cause before Memo. No. 1013‑E. P., dated 7‑6‑1968 was issued to him demanding the sum of ‑ Rs. 24,780 and threatening him with the certificate proceedings if the demand was not made within 15 days from the date of the demand. It is admitted by the petitioner in para graph 13 of his petition that on receipt of the impugned memo. he made a representation on 21‑6‑68 to the Custodian which representation, of course, was rejected on 24‑6‑1968. There is no question, in our opinion, involved in a case of this nature of issuing a show‑cause notice of the nature as to why such an amount would not be demanded of him for the reason stated in B the notice in question. We, therefore, do not think that there is any force whatsoever in this contention of the learned Advocate of the principle of natural justice having been violated in the present case. With regard to the application of the provisions of the Public Demands Recovery Act, 1913 in a case of this nature we find two provisions in paragraphs 5(3) and 7(1) of the Order. The sub paragraphs (?) and (1) of paragraphs 5 and 7 respectively of the Order read with the provisions of the Rule 182(1)(d)(iv) of the Defence of Pakistan Rules give, in our opinion, an authority to laze `custodian to resort to the provisions of the Public Demands Recovery Act, 1913. On this score too; therefore, we find "no illegality to have been committed by the Custodian in issuing the impugned Memo. For the reasons given above; we find no substance in any of the contentions of the petitioner and we accordingly discharge the Rule but without any order as to costs. MAKSUM‑UL‑HAKIM, J.‑I agree. Rule discharged: