TANWIR EQBAL v. UNION OF INDIA — 1992 DIGILAW 234 (CAL)

K. M. YUSUF, J. ( 1 ) THIS matter is having the third round in the Calcutta High Court. In the second round on 24th June, 1988 in CO. No. 6818 (W) of 1984 I set aside and quashed the Memo dated 14th February, 1984 along with the certificate under section 12 of the Enemy Property Act, 1969 issued by the Assistant Custodian of Enemy Property in Calcutta and allowed the writ application. I, however, gave liberty to the Union of India, Ministry of Commerce, to have the matter heard in accordance with section 6 of the said Act by a high ranking officer not below the rank of the Joint Secretary or equivalent thereto and sitting or sittings should take place at New Delhi after giving full opportunity of producing evidence and documents to the petitioners and the Assistant Custodian of Enemy Property in Calcutta and hearing the parties on the basis of such evidence and documents in the light of the observations made in the Judgment. I further ordered that the officer concerned should be free to come to his findings in accordance with law and should pass a reasoned order. ( 2 ) THE first writ petition being C. R. No. 3679 (W) of 1979 was ultimately discharged ( AIR 1982 Cal. 542 ). The appeal was preferred being F. M. A. T. No. 1853 of 1982 and was allowed in part by a Division Bench consisting of M. M. Dutt and G. N. Ray, JJ. The Appeal Court held as follows :-"in our opinion, before any step for taking possession of the premises in question are taken by the Assistant Custodian of Enemy Property it must be decided by him whether property is an enemy property or not, and such decision shall be made after giving the appellants a reasonable opportunity of being heard. The Assistant Custodian of Enemy Property cannot proceed on the basis of a pre-conceived notion or assumption, but he has to decide on evidence or materials that will be made available to him. The Assistant Custodian of Enemy Property cannot proceed on the basis of a pre-conceived notion or assumption, but he has to decide on evidence or materials that will be made available to him. In the circumstances, therefore, we are of the view that the Assistant Custodian of Enemy Property cannot take possession of the premises in question without deciding the plea of the appellants that their vendor was not a Pakistani national and, consequently, the property was not and is not an enemy property" ( 3 ) IN accordance with the Appeal Court's direction the Assistant Custodian disposed of the representation of the appellants and passed an order dated 14th February, 1984 which was quashed by me in the second writ petition as stated hereinbefore. ( 4 ) AGAINST the order passed in C. O. No. 6818 (W) of 1984 i. e. the second writ petition the Union of India preferred an appeal being F. M. A. T. No. 2273 of 1988. A Division Bench consisting of G. N. Ray and Pabitra Kumar Banerjee, JJ. allowed the appeal with inter alia, the following order :-"after hearing the learned Counsels for the parties and considering the facts of the case and adjudication made by the Assistant Custodian of Enemy Property it appears that the contentions made by the writ petitioners have substance. The Assistant Custodian of Enemy Property ought to have dealt with the contentions raised before me and should have passed the order by indicating the reasons therefore. The order passed by him is cryptic and it does not appear that the contentions raised by the writ petitioners had been properly adverted to. It may be noted in this connection that the adjudication of the Assistant Custodian, Enemy Property has far-reaching consequences on the right and title of the writ petitioners-respondents and in the facts of the case, it is reasonably expected that the appropriate authority invested with the power of adjudication must act properly as a quasi judicial authority and give a reasoned order. In the facts and circumstances we are however of the view that this appeal should be allowed and the matter requires reconsideration. "the Appeal Court instead of the Joint Secretary, Ministry of Commerce and Industries, Government of India, directed the Custodian of Enemy Property at Bombay to hear the matter in Calcutta. In the facts and circumstances we are however of the view that this appeal should be allowed and the matter requires reconsideration. "the Appeal Court instead of the Joint Secretary, Ministry of Commerce and Industries, Government of India, directed the Custodian of Enemy Property at Bombay to hear the matter in Calcutta. ( 5 ) BEFORE dealing further I must state that the full fact of the case appears from my Judgment in C. O. No. 6818 (W) of 1984 delivered on 24th June, 1988 and reported in AIR 1989 Cal. 139 : CAL. LT. 1989 (1) HC 129 and therefore I am not repeating the facts in this Judgment to unnecessarily prolong it. Suffice it to say that the predecessor-in-interest of the writ petitioners, Shaikh Gulam Rasul Qais, purchased from Khadija Bibi the premises in question being No. 6, Harinbari 1st Lane, Calcutta, by a registered Deed of Sale dated 1st September, 1969. After purchasing the said property Qais mutated his name in the Calcutta Corporation and paid taxes and was in peaceful possession and enjoyed the usufructs thereof. He died in January 1977 leaving behind the writ petitioners as his sole legal heirs and representatives and the estate left by him was succeeded by them. The petitioners were in peaceful possession and enjoyment of the said property. Some of the tenants became inimical to the petitioners and at their instigation the Assistant Custodian of Enemy Property sent a Notice dated 21st April, 1979 to the petitioners that the said property was owned by Mt. Khadija Khatoon, wife of Abdur Rashid, a Pakistani National, and was therefore, "enemy Property" and had vested in the Custodian of Enemy Property vide Notification dated 10th September, 1965 Ministry of Commerce, Government of India. It is an admitted position that Khadija Bibi or Khadija Khatoon is one and the same person. ( 6 ) IN accordance with the order of the Division Bench dated 14th July, 1988 the hearing was given by the Custodian of Enemy Property for India. It is an admitted position that Khadija Bibi or Khadija Khatoon is one and the same person. ( 6 ) IN accordance with the order of the Division Bench dated 14th July, 1988 the hearing was given by the Custodian of Enemy Property for India. The most surprising feature of this hearing is that the writ petitioners and some of the added-respondents (tenants) were given first bearing on 26th December, 1988 and thereafter the second hearing on 18th January, 1989 but immediately after the first hearing of 26th December, 1988 the Custodian of Enemy Property for India, Smt. Padma Swaminathan, wrote a Note dated 29th December, 1988 to the Union Law Ministry to clarify the following points :-" (I) Whether the Judgment dated 24-6-88 is an open remand to the Central Govt. or it is only a limited remand under section 6 of the Enemy Property Act. (ii) Does the Custodian has power to give hearing under section 6 of the Enemy Property Act as the authority who has been authorised by section 6 is only the Central Government as distinct from Custodian who is appointed under the Enemy Property Act. (iii) Whether the Appellate Order dt. 14-7-88 which only directs that Custodian to hear the matter instead of Ministry of Commerce can be regarded as granting stay on all points of Order of Judgment dated 24-6-1988. (iv) Does the Custodian have the full power to examine and decide on all the documentary evidences old and new to come to the conclusion whether the property is Enemy Property or not or is it only restricted to the few documents relied during the course of the Court case. " ( 7 ) AND also enclosed with her Note were some documents as appears in handwriting on page 4 of the said Note. Mr. V. L. Kale, Asstt. Legal Adviser, gave his answer to all the four points raised in the Note of the Custodian of Enemy Property. The "learned" Mr. Kale clarified in respect of points (i) and (ii) that the Division Bench Judgment of 14th July, 1988 is an open remand to the Central Government and at the same time not restricted to section 6 of the Enemy Property Act only. The "learned" Mr. Kale clarified in respect of points (i) and (ii) that the Division Bench Judgment of 14th July, 1988 is an open remand to the Central Government and at the same time not restricted to section 6 of the Enemy Property Act only. It has been further stated that the Appeal Court's order was made by consent of both the sides and as the order of the Appeal Court has been made by consent of both sides the Custodian is not acting as an Officer of the Central Government under section 6 but he is a Custodian appointed under the, said Act a distinct from the Officers of the Central Government under section 6. So far point (iii) was concerned the Asstt. Legal Adviser clarified that the Appeal Court directed the Custodian to hear the matter afresh and hence the order of the Division Bench should be obeyed and not that of the Single Bench. As to point (iv) the said Officer gave the opinion that the Division Bench directed a fresh hearing and a fresh hearing necessarily means afresh trial i. e. by allowing the parties to adduce such evidence as it deemed fit as distinct from the hearing before the Asstt. Custodian whose order was cryptic. To justify his clarification of the points to the Custodian of Enemy Property Mr. Kale quoted a few decisions in support of his clarification which I need not touch. The action of the "learned" V. L. Kale, Asstt. Legal Adviser to the Ministry of Law and Justice, Branch Secretariat, Bombay, deserves highest condemnation because this gentleman treated himself as the Supreme Court of India. He had the audacity to interpret and clarify the decision of a Division Bench of Calcutta High Court which can only be done either by the said Division Bench or the Apex Court of India and in the name of clarification which is the exclusive jurisdiction of the Division Bench Mr. Kale gave his own clarification by way of his decision. He defaced and mutilated the order of the Division Bench of Calcutta High Court, and misguided the lady Custodian of Enemy Property for India, Smt. Padma Swaminathan, and provoked her by encouraging falsely to pass an order on the basis of his self-styled clarification which is palpably a contemptuous act. I cannot understand from where Mr. He defaced and mutilated the order of the Division Bench of Calcutta High Court, and misguided the lady Custodian of Enemy Property for India, Smt. Padma Swaminathan, and provoked her by encouraging falsely to pass an order on the basis of his self-styled clarification which is palpably a contemptuous act. I cannot understand from where Mr. Kale discovered that the order by the Division Bench presided over by G. N. Ray J, was "by consent of both sides". This discovery is hundred per cent his own invention and hundred per cent false and he has committed worst type of dishonest act by putting something in the mouth of the Division Bench which the Division Beach never said within the four walls of its order. Not only he misconstrued in extreme the contends of the Judgment dated 14th July, 1988 passed by the Division Bench consisting of G. N. Ray and P. K. Banerjee, JJ. but he even went a step further in a most heinous way to undo and change the order passed by the earlier Division Bench in this case in F. M. A. T. No. 1853 of 1982 arising out of C. R. No. 3679 (W) of 1979 in which M. M. Dutt and G. N. Ray, JJ. made clarification to the effect that the Assistant Custodian could not proceed on the basis of a preconceived notion or assumption and cannot take possession of premises without deciding the nationality that the vendor was a Pakistani national and whether the property is or is not an enemy property. I have quoted the decision on the point by the first Division Bench at the beginning of this order and even the second Division Bench upon which the "learned" Kale gave his clarification did not touch the verdict of the first Division Bench. This must be borne in mind that both the Benches passed order in respect of this very property which is under dispute being premises No. 6, Harinbari lst Lane, Calcutta, and both were shared by G. N. Ray, J. ( 8 ) IT will be clear that nowhere the Division Bench did discuss the merit of the Judgment of the Single Judge against whose judgment the appeal arose. If one goes through the Division Bench Judgment under question it would be found that the learned Judges observed that "the contentions made by the writ petitioners have substance. If one goes through the Division Bench Judgment under question it would be found that the learned Judges observed that "the contentions made by the writ petitioners have substance. " The Division Bench further observed as under : "in the facts and circumstances, we are however of the view that this appeal should be allowed and the matter requires reconsideration. " But nowhere the learned Judges discussed the Single Judge's order on merit nor said that the order of the Single Judge has been set aside or quashed in spite of the fact that the appeal was allowed. This clearly indicates that the reconsideration which the trial court referred to was within the confines of paragraphs 23 and 24 of the Single Judge's order as appears in AIR 1989 Cal, 139. It can safely be said that the Note dated 29th December, 1988 of the Custodian of Enemy Property for India inviting clarification on four points from the Union Law Ministry was highly irregular, and, in fact, miscarriage of justice. After the fast hearing on 26th December, 1988 she not only sent the aforesaid Note to the Union Law Ministry but also sent some documents unknown to the parties for opinion. By this act of the Custodian Smt. Padma Swaminathan an external force played a vital part and influenced the independent decision of the Custodian. She was fully guided by the clarification given to the Custodian misleading her all through by an Asstt. Legal Adviser known as V. L. Kale. The order pronounced by the Custodian of Enemy Property for India on 10th May, 1989 is not the product of her independent thought but she was actually guided by the external force and her independent thinking was overshadowed by the so-called clarification given by V. L. Kale. The decision in paragraph 31 of the order dated 10th May, 1989 passed by the Custodian of Enemy Property for India vesting the premises No. 6, Harinbari 1st Lane indicates that the Custodian of Enemy Property has not made the decision with an open mind but with closed mind clouded and well prejudiced by the misdemeanour of Mr. Kale. Had she heard the matter without the so-called clarification of the Asstt. Legal Adviser the decision would have been passed on the principles of justice and fair play? Kale. Had she heard the matter without the so-called clarification of the Asstt. Legal Adviser the decision would have been passed on the principles of justice and fair play? I am sure the lady became nervous or was made nervous by the surroundings she had to face in Calcutta and perhaps she was pressurised to ask for clarification not from the Division Bench but from an ordinary officer of the Union Law Ministry. This is the reason why I ordered in the writ application being C. O. No. 6818 (W) of 1984 that a high ranking officer not below the rank of a Joint Secretary or equivalent thereto of the Ministry of Commerce, Government of India, should hear the matter in accordance with section 6 of the Enemy Property Act, 1963 and sitting or sittings should take place at New Delhi on the basis of such evidence and documents as discussed in the said judgment. My apprehension has now come true and here is the example how those stationed in Calcutta at the Assistant Custodian's Office brain washed Smt. Swaminathan and immediately after the first hearing of the matter on 26th December, 1988 she wrote to the Union Law Ministry on 29th December, 1988 for clarification and the pleasant job of clarification was taken up not by the Division Bench of Calcutta High Court which passed the order nor by the Supreme Court but by one Mr. V. L. Kale, an Asstt. Legal Adviser, who, perhaps, thinks himself superior to the highest judiciary of India. The decision arrived at by the Custodian of Enemy Property for India cannot stand as its biased, influenced and perverted by the innovation of an ordinary official of the Union Law Ministry who has no focus standi to clarify the Judgment of the Division Bench of Calcutta High Court. ( 9 ) IN that view of the matter I quash the order, dated 10th May, 1989 (File No. 5 (253) CEP/350) passed by the Custodian of Enemy Property for India in respect of premises No. 6, Harinbari lst Lane, Calcutta. I further direct the respondents Nos. 1 to 4 particularly the Custodian of Enemy Property for India at Bombay and the Assistant Custodian of Enemy Property in Calcutta to hand over the possession of the premises No. 6, Harinbari 1st Lane, Calcutta, to the writ petitioners within 10th July, 1992. I further direct the respondents Nos. 1 to 4 particularly the Custodian of Enemy Property for India at Bombay and the Assistant Custodian of Enemy Property in Calcutta to hand over the possession of the premises No. 6, Harinbari 1st Lane, Calcutta, to the writ petitioners within 10th July, 1992. In case the above respondents fail to deliver possession of the said property to the petitioners, the Deputy Commissioner of Police of the area concerned and the Officer-in-Charge of the Local Police Station are directed to render all possible help to the petitioners to take over the possession. The private-respondents (tenants) are hereby directed to pay all rents including arrears to the petitioner No. 1, Tanwir Eqbal, who will receive and collect the same and give receipts for self and on behalf of the other petitioners. I further direct the Custodian and the Assistant Custodian to hand over the amounts lying with the Banks or other places and cash in hand in respect of the said premises to the petitioners within 10th July, 1992. ( 10 ) I further direct the Secretary of the Ministry of Law, Government of India, New Delhi, to take appropriate action against Mr. V. L. Kale, Asstt. Legal Adviser, who on the 4th April, 1989 was posted at Bombay (or now anywhere in India) and who had the audacity to clarify the Order dated 14th July, 1988 passed by the Division Bench of Calcutta High Court. ( 11 ) THE writ petitioners shall be paid a cost assessed at 200 G. Ms by the respondents Nos. 1, 2 and 3. The writ application succeeds and is allowed. The Registrar, Appellate Side, High Court, Calcutta, is directed to forward a xerox copy of this Judgment to the Secretary, Ministry of Law, Government of India, New Delhi, for appropriate action against Mr. V. L. Kale. Let xerox copy of the Judgment be made available to the parties on usual undertaking and upon compliance of necessary formalities. Petition allowed.