The custodian of enemy property does not have an independent right to tenancy and their acceptance of rent cannot be considered as an acceptance of them as independent tenants.

( 1 ) OUR task has become easier in view of the recent apex Court decision in the case of Union of india v. Raja Mohammad Amir Md. Khan reported in 2005 Volume VIII. Supreme court Cases, Page 696 : (AIR 2005 SC 4383)which the learned Judge did not have as the said judgment came after the disposal of the writ application.

( 2 ) THE appellants were the owners of premises No. 14, Netaji Subhas Road, ground Floor, Kolkata. The predecessor in interest of the appellants by a deed of indenture dated May 19, 1953 gave on lease approximately 3000 sq. ft. on ground floor of the said premises to National Bank of pakistan for a term of 16 years commencing from April 1, 1951. The area was subsequently increased and ultimately the said bank came in possession of 6235 sq. ft. on the ground floor of the said premises in question at a monthly rent of Rs. 1610. 00 per month. In 1965 due to hostilities between the two countries being India and Pakistan due to Indo-Pak war the said branch of national Bank of Pakistan was declared as an enemy firm and the respondent authority became the custodian of the enemy property under the provision of the Enemy Property Act, 1968 (hereinafter referred to as the "said Act of 1968") and continued to be in possession since then. The lease expired by efflux of time on March 31, 1967. The Controller, Enemy Property sought renewal of the said lease. The predecessor in interest of the appellants initially did not agree to such renewal and asked for vacating of the said property. Series of discussions was held. Correspondence was exchanged but that yielded no result. Initially the owners impliedly permitted them to continue for a temporary period on the basis of their representations by not taking any positive step for their eviction. Authority, however, did not come to a final solution in the meantime the present appellants became the transferee owner from their predecessor in interest. They moved the writ petition before this court, inter alia, praying for direction upon the respondent to vacate the said premises and hand over possession to the appellants.

( 3 ) ON perusal of the correspondence exchanged between the parties at the material time it appears that by a letter dated april 4, 1967 the authority expressed their desire to release the excess portion in favour of the owners provided they were allowed to retain 2000 sq. ft. on the southern portion for the purpose of maintenance of their records. They also prayed for proportionate decrease of rent.

( 4 ) HOWEVER, the authority changed their stand subsequently and by their letter dated april 24, 2002 addressed to the Advocate for the appellants the Authority claimed that they became the tenant under the then owners and then the appellants by virtue of acceptance of rent by the owners. They contended that it was a monthly tenancy in their favour, hence question of release of the said premises did not arise. The appellant also approached the bank authority at Pakistan. They, however did not show any interest in the matter. From the prospectus of the bank it appears that they did not have any branch in India as appears from the list of overseas branches appearing at page 45 of the paper book.

( 5 ) IN the affidavit-in-opposition filed before the learned single Judge identical stand was taken by the respondents.

( 6 ) THE learned single Judge heard the parties at length and His Lordship came to the conclusion that the writ petitioners were not entitled to claim eviction of the respondents that too by filing a writ petition. The learned single Judge also recorded that there had been acceptance of rent by the appellants from the respondents. Hence, it was not a proper case to pass any order on the said application. His Lordship, however, gave liberty to the appellants to make representation to the respondents.

( 7 ) BEING aggrieved by and dissatisfied with the said judgment and order the appellants filed the present appeal. Mr. Shakti