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Civil Petition for Special Leave to Appeal No. 28‑D of 1970, decided on 18th June 1970.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 11th November 1969, in Appeal from Appellate Decree No. 624 of 1969).

------S. 106‑Lease‑Agree ment‑Notice‑Lease deed providing for termination of lease on one month's notice on either side‑Contention that subject‑matter of lease being manufacturing concerns six months' notice ought to have been given to effect termination of lease as enjoined by S. 106‑Sec tion 106 itself, held, operates subject to agreement between parties, and parties having agreed to effect termination of lease on one month's notice, notices issued were rightly held by High Court to be lawful and valid.

K. M. Subhan, Advocate Supreme Court instructed by Md. Nurul Hug, Advocate‑ on‑Record for Petitioner.

K. A. Baker, Advocate Supreme Court instructed by A. M. Khan Chowdhury, Advocate‑ on‑Record for Respondents Nos. 1 to 3.

Nemo for Respondent No. 4.,

Date of hearing : 18th June 1970.

The petitioner, Goalundo Fishing Industries brought Title Suit No. 199 of 1969 in the Court of Munsif, Goalundo for declaration that the two notices Nos. 7(56) IND/ 68/183 and 7(56) IND/68/184, dated the 29th January 1969, issued by the Additional Custodian of Enemy Property (respondent No. 3 herein) are illegal, ultra vires and null and void and that the petitioner was not liable to be evicted in pursuance of the said notices. A further prayer was made for a permanent injunction restraining the respondents from taking forcible possession of the two ice factories, namely, Goalundo Ice Association Limited and Messrs. Padma Ice Factory which were the subject‑matter of the suit. These two ice factories, on the migration of their owners to India, became enemy properties, and these vested in the Additional Custodian of Enemy Property under a notification issued under rule 182(6) of the Defence of Pakistan Rules. The petitioner claimed to have taken lease of these ice factories from the Additional Custodian of Enemy Property with effect from the 1st April 1968 on a monthly rent of Rs. 2,800. The petitioner got possession of the ice factories and paid rent therefore. On the 29th January 1969, the Additional Custodian issued the impugned notices. Exhs. 5 and 5(a) terminating the lease on the expiry of one month from the date of the receipt thereof by the petitioner, on the ground that the two ice factories would be sold out. Having terminated the lease in the above manner, the Additional Custodian put the factories to auction bid and the respondent No. 4 herein gave the highest bid. The petitioner took the stand in the suit that its lease was not terminable by notice and that the lease was not terminated according to law. The defendants contested the suit contending that the petitioner was a mere licensee and not a lessee in respect of the two ice factories and that the licence was brought to an end by the notices issued on the 29th January 1969.

The trial Court decreed the suit and granted a permanent injunction as prayed for. On appeal, the lower appellate Court set aside the judgment and decree of the trial Court and dismissed the suit holding that the petitioner's interest in the two ice factories was terminated by the impugned notices. On second appeal, a learned Single Judge of the High Court of East Pakistan agreed with the lower appellate Court that the impugned notices are legal and valid and that the petitioner was not entitled to any relief. The petition for special leave is directed against the judgment of the High Court.

Admittedly, the two ice factories in suit are enemy properties and these vested in the Additional Custodian of Enemy Property. The petitioner and the Additional Custodian made two separate agreements in respect of the two ice factories on the basis of which the petitioner claims its right to those factories as a lessee. Both the agreements contain the same conditions. The condition No. (ii) in each agreement runs thus:

"(iii) The lessee shall occupy and use the said enemy property' for such period as may be allowed by the lessor, who will give the lessee a notice of one month before terminating this lease. The lessee may also terminate this lease by giving the lessor a notice of one month."

The two impugned notices were issued to the petitioner in terms of this condition.

Mr. K. M. Subhan, learned counsel for the petitioner contends that the impugned notices are bad in law as the subjects‑matter of the suit being manufacturing concerns, six months' notice should have been given under section 106 of the Transfer of Property Act. This contention has no substance inasmuch as section 106 of the Transfer of Property Act itself operates subject to agreement between the parties. In the present case, one month's notice was enjoined by condition No. (iii) of the agreement, as quoted hereinbefore.

The learned counsel next challenges the validity of the notices on the ground that the vesting of the factories in question under Rule 182 of the Defence of Pakistan Rules does not authorise the sale thereof by the Additional Custodian. In other words, his contention is that when it is expressed in the notices that the possession of the ice factories was required in order to effect a sale thereof, the notices are bad in law. There is no substance in this contention either. Whatever might be the purpose for taking possession of the ice factories, the petitioner has nothing to do with it. The petitioner can resist the impugned notices only if these are in contravention of the terms of the agree ment with the Additional Custodian or otherwise invalid. The very Rule 182 of the Defence of Pakistan Rules provides that the purpose of the vesting of enemy property, among others, is to provide for the administration and disposal by way of transfer or otherwise of enemy property . It is significant that the petitioner itself gave a bid at the auction sale of the ice factories, as pointed out by the Courts below. The impugned notices having been issued in terms of the agreement where under the petitioner claims an interest, these were rightly held by the High Court to be lawful and valid.

There is no merit in this petition. This petition is, accordingly; dismissed.

Petition dismissed.

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