P L D 1969 Dacca 841 (PLP)

The petitioner has challenged the validity of this notice on the ground that he,, being a Pakistani citizen now temporarily residing in Ina on Pakistani passport, cannot be termed as an "alien enemy" and as such the properties and, lands in question cannot vest in the Custodian of Enemy Properties under the Defence of Pakistan Rules and consequently cannot be taken possession of by the Custodian or any of his agents. Secondly, it is contended that, since the petitioner is running a firm on those lands, the lands cannot betaken possession of, as lands connected with any business firm can only be taken over under rule 181, and the present notice being 'supposed to be under rule 182, even if the lands are said to be enemy properties, those cannot be taken possession of on the aforesaid ground. One A. N. Kalimulla, Additional Deputy Commissioner (Revenue) and Assistant Custodian, Enemy Property (Lands and Buildings), Mymensingh, has armed the affidavit‑in‑opposition in which he has stated that the petitioner, Guru Das Saha, is not a Pakistani citizen as there is no evidence of his being so since after his Pakistani passport's expiration something in 1963. He has further stated that Guru Das Saha left for Pakistan sometime in 1961 and has not come back to Pakistan since then, and also that when this matter was being agitated by his officer and Constituted Attorney before the Additional Deputy Commissioner an undertaking was given in July 1966, that Guru Las Saba will be back to Pakistan within two months but he has not returned to Pakistan, and this is because he is no more a Pakistani citizen. Apart from that, it has been stated that some of the lands, of which mention has been made in paragraphs 5 and 6 of the affidavit‑in‑opposition, do not belong to the petitioner but are properties of one Nepal Chandra Saha and another Gangamani Saha who have left Pakistan within the Partition of Indian in 1947 and have not come back to Pakistan at all, and these properties are being occupied bas the petitioner as trespasser and on no document of title or as a tenant. He has further stated in his affidavit‑in‑opposition at para. 4 that there is no registered firm of the name of "Messrs Budhai Cour Kishore Saha" on the lands in question. Another objection which has been taken in the affidavit‑in‑opposition is that the petition is liable to be rejected in limine on the grounds that, the petitioner being an "alien enemy" residing in India at the time of filing of the petition, cannot invoke the writ jurisdiction of this Court. The petitioner, in his affidavit‑in‑reply has reiterated what he has stated in' his petition, and has denied the statement made in the affidavit‑in‑opposition with regard to some of the plots belonging to Nepal Chandra Saha and Gangamani Saha as well as his being an Indian national or not being a Pakistan national. Mr. Hamidul Huq Choudhury, appearing for the petitioner, contended that Notification No. 119‑Gen. dated 3rd December 1965 does not cover the present properties, because the same is connected with an enemy firm. If at all the firm is an enemy firm, for the purpose of vesting of lands connected with enemy firm or taking over of lands connected with enemy firm, according to Mr. Choudhury the proper rule is rule 181 of the Defence of Pakistan Rules and not rule 182 of the said Rules. Secondly, he has contended that Guru: as Saha, the petitioner before us, cannot be termed as an "alien enemy" for reasons that although he is residing in India he is residing there not as a citizen of that State but as a citizen of Pakistan holding a passport issued by the Government of Pakistan which has been renewed from year to year. For this purpose he relied on certain photostat copies of the passport of the petitioner showing renewal of the same by the Deputy High Commissioner for Pakistan in Calcutta up to October 1967. The petitioner, as is admitted by himself, has been living in India since 1961 and has not in the course of these many years come back to Pakistan. Only in January 1963 he appointed Mono. Mohan Saha and two others as his At torney to look after his personal interests and interests of the firm "Messrs Budhai Cour Kishore Saha". This Power of‑Attorney was executed in Calcutta and was authenticated in Pakistan sometime in February 1963. Reliance has been placed by Mr. Hamidul Huq Chaudhury on the assessment orders of the Income‑tax officer in respect of the firm of the petitioner which are Annexures 'G' and G (1) appended to the affidavit‑in‑reply. All that we need to say on this point is that the name of the Firm as given in para. 2 of the petition is "Messrs Budhai Lour Kishore Saha" whereas in the assessment orders (Annexures 'G' and `G(o)' for the years 1965‑66 and 1966‑67 the name of the firm is found to be "M/s. Budhai Cour Kishore Guru Das Saha." There is, therefore, a material discrepancy in the name and style of the firm as given in the petition and as found in the latest assessment orders of the Income‑tax Officer. The reasons for the petitioner remaining in Culcutta for these many years is that hg had gone there for treatment. It has been observed in many such cases that persons of this category, whenever confronted with their staying away from the State to which they claim their allegiance and in the neighbouring Country, come forward with this patent reply of having gone to that country for treatment had staying there for unlimited period. This ground put forward by the petitioner in the present case that since 1961 he has been staying in India for his treatment leaving his properties and business here, is not acceptable to us. It is very difficult to believe that a man who belongs to this State would live in India for more than 6‑7 years at a stretch leaving his lucrative business and considerable property in Pakistan in charge of ordinary officers. There has been no evidence brought before us to show that for his expenses in India either for maintenance or for treatment he has with the per mission of the State Bank of Pakistan got any money remitted from the income of his properties and business in Pakistan, and no other evidence has been adduced even in the present petition and the affidavit‑in‑reply as to how he has been defraying his expenses in Calcutta for the last six years or more. This, in our opinion, only suggests that he has kept no connection with this State except for the purpose of de riving benefit out of his properties and business, the income of which Heaven alone knows how he is enjoying sitting in a foreign country without any legal authority, if at all. It is a puzzle as to how in cases of this nature the Pakistan Deputy High Commissioner's officer in Calcutta has been renew ing the passport, if at all, of the petitioner year after year. We do not know if these renewals are being made with the sanction of the Home Department of the Government of East Pakistan or the Ministry of Interior, Government of Pakistan. However all that we take note of the circumstances of the case it becomes difficult to prove that he is not an "alien enemy". We do not take notice of the photostat copies of supposed renewals of his passport by the Pakistan Deputy High Commissioner's officer in Calcutta without the original passport having been produced before us or without any further corroborative evidence to establish these renewals to be genuine. The question of the property of the petitioner being declared to be enemy property has arisen in the context of the proclamation of emergency made on the 6th of September 1965 by the President of Pakistan and the promulgation of the Defence of Pakistan Ordinance, 1965 on the very same day. We have, therefore, to look to the provisions of the Defence of Pakistan Ordinance and the Rules made thereunder for deciding the question as to whether the petitioner can be treated as an "alien enemy". Rule 161 of the Defence of Pakistan Rules gives the definition of "Enemy". Clause (b) of the said Rule says : "any individual resident in enemy territory". This definition of an "Enemy" does not say that, to .be an "alien enemy", one has to be a national of a country at war with or engaged in Military operations against Pakistan. It only says "any individual resident in enemy territory" Even a Pakistani can become an alien enemy as defined in section 83 of the Code of Civil Procedure. Whether Pakistan even today is actively at war with India or whether India is engaged in Military operations against Pakistan today, does not seem to be the criteria for us to decide the question of an individual being an "alien enemy". We think that so long as the proclamation of emergency continues and the Defence of Pakistan Ordinance holds the fields, any individual who is living in India, whether a Pakistan national or not, without any authority from the Government of Pakistan, is to be considered an "alien enemy". Although it is claimed by the petitioner that he is staying in India on the authority of the passport granted to him by the Government of Pakistan, yet, in the face of the affidavit‑in‑opposition filed by the Addi tional Deputy Commissioner, Mymensingh from whose office the passport is alleged to have been issued, wherein he has categorically stated that the passport of the petitioner was not renewed after December 1963, it is difficult for us to hold that the petitioner is at present living in India with per mission from the Government of Pakistan. The learned Advocate‑General has contended that the petitioner's application under Article 98 of the Constitution cannot be considered even, because he is an "alien enemy" and is not entitled to invoke the discretionary jurisdiction of this Court under the said Article. He has, therefore, prayed for dismissal of this application on the preliminary ground of the same not being maintainable. He has, in support of his contention, submitted that it makes no difference whether the petitioner is a Pakistani citizen or not for purposes of application of the Defence of Pakistan Rules in regard to his properties if it can be shown that he is living in India without any authority from the Government of Pakistan. In reply to the contention of Mr. Hamidul Huq Choudhury that a Pakistani citizen living in India today cannot be considered to be an "alien enemy", the learned Advocate‑General has cited before us a decision of the King Bench Division of England in the case of Porter v. Freudenberg ((1915) 1 K B D 857) He has also referred us to two other decisions of the England Courts, one being Janson v. Driefontein Consolidated Mines Limited ((1902) A C 484) and Daimler Co. Ltd. v. Continental Tyre & Rubber Co. (

3. B.1 Ltd. ((1916) 2 A C 307). In the present case, there is no doubt that the petitioner his been conducting his business sitting in Calcutta under his guidance through his officers. From the facts stated above, it seems to us that the petitioner, Guru Das Saha, cannot maintain an application under Article 98 (2) of the Constitution, and his try to do so through his Attorney in Pakistan is but a device to obtain the benefits of the laws of this country, not possibly having any allegiance to it. The learned Advocate‑General further contended that, as' an "alien enemy" cannot be allowed to initiate proceedings in Courts of Pakistan and to proceed with the same even at the appellate stage if he is the appellant because of section 83 of the Cole of Civil Procedure, he cannot also be allowed to invoke the jurisdiction of Article 98 of the Constitution. He submitted that if the ordinary law of the land does not permit an "alien enemy" to sue in any ('hurt in Pakistan, then this Court, in its jurisdiction under Article 98, shall not allow such a person to take advantage of these provisions of the Constitution which will amount to making the provisions of the common law of land to be nugatory i.e., the provisions of section 83 of the Code of Civil Pro cedure. We agree that if the petitioner could not as an "alien enemy" sue for his rights in any Court of Pakistan because of the bar of section 83 of the Code of Civil Procedure, we cannot exercise our discretionary jurisdiction under Article 98 to give him the same benefits which the common law of the land would not grant him. We can see the force of the argument of Mr. Hamidul Huq Choudhury that if a landed property is in any way connected with an enemy firm, then rule 182 of the Defence of Pakistan Rules will not apply to such a case but the proper Rule for that would be rule 181 of the said Rules But since in the present case we are not going into the merits of it and are deciding the fate of the application on its maintainability, we do not go into a detailed discussion of the merits of the case. We have upon a consideration of the facts and circum stances of the case, come to the conclusion that the petitioner Guru Das Saha, for the reasons stated earlier, is not entitled to maintain this application under Article 98 (2) of the Constitution. In the result, therefore, this application fails. The Rule is discharged but without any order as to costs. PETITION No. 296 OF 1966 Petition No. 296 of 1966 is by one Mono Rajan Saha through his Constituted Attorney Gopal Chandra Saha made in respect of lands situated in Bhairab Bazar in the District of Mymensingh challenging a similar order as in Petition No. 295 of 1966 and more or less upon the same set of facts. The present petitioner executed the Power‑of‑Attorney sitting in Calcutta on the l0th of June 1966 in favour of Gopal Chandra Saha and the impugned notice was received by Gopal Chandra Saha on the 26th of May 1966, i.e. about two weeks before the Power‑of‑Attorney was executed by the petitioner in his favour. Mono Ranjan Saha, the petitioner before us in this case has not given us the date or the year in which he left Pakistan and/or since when he has been living in India. But according to the affidavit‑in‑opposition filed by the Additional Deputy Commissioner (Rev.) and Assistant Custodian of Enemy Property (Lands and Buildings), Mymensingh, Mono Ranjan Saha has left Pakistan sometime in 1961 and has since been living in India. The petitioner's case is that he has been living in India on grounds of health for treatment and he is there on a passport issued by the Government of Pakistan which has been renewed by the Deputy High Commissioner for Pakistan in Calcutta from year to year until October 1967. He has, in support of this contention of his passport having been renewed from year since 1961, appended certain photostat copies alleged to be of his passport showing renewals thereof by the Pakistan Deputy High Commissioner's Office in Calcutta. Unfortunately for him, we cannot rely on these photostat copies without the original passport having been produced and/or without any other sufficient and good evidence to corroborate these renewals as shown in the photostat copies. Even if he is living in India with a Pakistan Passport he is an alien enemy as defined in rule 161 and section 83 of C. P. C. What we have stated in the case of Guru Das Saha (Petition No. 295/66) earlier on this point equally applies to the case of the present petitioner Mono Ranjan Saha. Mr. D. C. Bhattacherjee, appearing for the petitioner in this case, adopted the arguments of Mr. Hamidul Huq Chou dhury advanced in Petition No. 295 of 1966 and the reply of the Advocate‑General to those arguments has been the same as in the other case. For the reasons stated in Petition No. 295 of 1966, we are of the opinion that Mono Ranjan Saha, the petitioner in this case (Petition No. 296/66). is not entitled to maintain the petition under Article 98 of the Constitution before us. We, therefore, without going into the merits of the case, decide this application on the preliminary point of its main tainability as raised by the learned Advocate‑General and we hold this petition too must fail. In the result, therefore, this Rule is also discharged but with out any order as to costs. ABDUL HAKIM, J.‑I agree. A, B, Rule discharged.