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'Enemy Property' Cases

HC for quick settlement

Says enemy property act, enacted under so-called Pak constitution of 1962, was a 'misnomer'

Ashutosh Sarkar
The High Court has issued directives for properly and quickly settling the "enemy property" cases and ordering public officials not to make any attempt in future to include any property in the official gazette as "vested" one.
An HC Bench comprising Justice Obaidul Hassan and Justice Krishna Debnath came up with nine directives in the full text of its verdict on a 2011 writ petition regarding the enemy property ordinance and laws.
In the verdict, the court observed that the 1962 Pakistan constitution is not a constitution at all in the eye of law. So, enactment of the Enemy Property Act under the so-called charter was a "misnomer". The HC delivered a short verdict on November 23 last year, and its full text was released yesterday.
One Md Abdul Hye had filed the writ petition challenging the legality of the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act-1974 and the Enemy Property (Continuance of Emergency Provisions) (Repeal) Amendment Ordinance-1976.
The petition also challenged all actions taken pursuant to the said ordinance, and fresh listing of "enemy property" subsequent to enactment of the 1974 act and section 6 (Ga) and (Gha) of the Vested Property Return Act-2001.
Petitioner's lawyer Mohammad Imtiaz Farooq told the HC that the concept of "enemy property" emerged from the 1965 war between Pakistan and India.
The break in the history of Pakistan and the Independence of Bangladesh in 1971 diminished the need or justification for continuance of the 1969 ordinance. Against this backdrop, the 1974 act was enacted repealing the ordinance, he added.
But successive governments, in utter disregard for the proclamation of independence and the history of struggle for the liberation, continued the process of listing "enemy property" in an independent Bangladesh, the lawyer added.
He argued that any inclusion of "enemy property" after the enactment of the 1974 act is liable to be declared to have been done il legally.
Barrister Imtiaz further said that section 6 (Ga) and (Gha) of the 2001 act makes an exception to return of the property which had been disposed of by the government without taking into consideration that such right to dispose of any property of a citizen of Bangladesh terming it "the property of enemies of Pakistan" is violation of the constitution.
In the full verdict, the HC ruled that the government may set up an exclusive tribunal having no other jurisdiction but only to dispose of the applications under section 10 of the Vested Property Return Act-2001 in every district, and more than one tribunal may be set up in the district
where a huge number of petitions are pending.
The court directed the tribunals already set up under that law to dispose of the applications maintaining the timeframe strictly as provided in the act.
It said the Limitation Act-1908 should be made applicable in filing application under section 10 (1) of the 2001 act.
Section 5 of Limitation Act reads, "Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
The HC also directed the authorities concerned to implement the decision of the appellate tribunal where no appeal has been preferred within the time of limitation.
It asked the government officials not to make any delay in executing the decree of the tribunal concerned on the plea of filing writ petition or any other plea in any way or in any other form.
The government by enacting the 2001 act decided to give back the property to the owner or successors-in-interest within shortest period of time, the court noted.
The judges said they believe the legislature should come forward in taking further legislative measures regarding the property listed under section 6 (Ga) and (Gha) of the 2011 act.
There should be a special appellate tribunal in each district as the law provides for setting it up to decide the appeal against the verdict of the tribunal concerned, the court said.
It further observed, "The property which has been lying with the government as vested property having no legal claimant should be utilised by the government for the purpose of human development only.
"The government may take necessary measures by enacting law in respect of properties which were vested
to the government and where institutions have already been developed for the purpose of the development of the country may be named after the original and lawful owner.
"The legislature may enact law to give sufficient and just compensation to a lawful claimant in lieu of returning the property to him whose property has already been made non-returnable under the provision of section 6."
The HC judges also observed that the 1962 constitution of Pakistan was not a constitution at all in the eye of law because it was given to the nation not by the people's representatives but by a usurper abrogating the 1956 constitution which was duly framed and adopted by the then Constituent Assembly.
"Thus the Enemy Property Act | EPA], which was promulgated under a void constitution of 1962 given by a usurper, the Pakistan Defence Rule 1965 and the Ordinance I of 1969 and its continuance under the garb of Act XLVof 1974 were a misnomer.
"Enactment of Enemy Property (Continuance of Emergency Provisions) (Repeal) Act-1974 was a historical mistake.
"In view of our observations regarding 1974 act and 1976 Ordinance we hold that measures are likely to be needed to give proper effect of the objective of the Act-2001 (amended in 2013) and these are the matter to be dealt with by the legislature and executive."
The judges said all actions, decisions regarding listing any property within the territory of Bangladesh as "enemy property" or vested property after March 23, 1974 are illegal; the persons engaged with the task of listing the property as vested property after March 23, 1974 are liable to be held responsible for doing illegal work.
"The above decisions were given by the Supreme Court of Bangladesh during 1980-2004. Not a single judgment has yet been pronounced contrary to the principles enunciated by our apex court in the above mentioned cases. Thus, the persons who were/are engaged in listing property as vested property subsequent to 18.06.1980 are liable to be proceeded with for contempt of Court."