P.C. Borooah, J.
1. The petitioners, who are eleven in number, claim to be the legal heirs and representatives of one Sheikh Gholam Rasul Qais who died intestate on the 17th Jan., 1977. The said Sheikh Gholarn RasulQais purportedly purchased premises No. 6, Harinbari First Lane, Calcutta-73 from one Mst. Khadiza Bi by means of a registered deed of conveyance dated Sept. 1, 1969. The particulars of the registration have been set out in para 4 of the petition.
2. It is stated in para 3 of the petition that the said premises had been purchased by Mst, Khadiza Bi from the original owners by a registered kobala dated Feb. 15, 1945. After the death of Sheikh Gholam Rasul Qais the said property is said to have devolved upon the petitioners in accordance with the principles of succession under the Mohammedan Law.
3. In this writ petition the petitioners have challenged the Notice dated April 21, 1979 issued by Sri A. S. Dasgupta, Assistant Custodian of enemy property, to the first petitioner Janab Tanwir Eqbal, wherein it has been stated that it has been ascertained that the immoveable property at 6, Harinbari First Lane, Calcutta-73 was owned by Mst. Khadiza Khatun, wife of Abdul Rasis, a Pakistani National, and is therefore 'Enemy Properly' and had vested in the Custodian of Enemy Property for the Government of India by virtus of a Notification issued by the Government of India, Ministry of Commerce, on Sept. 10, 1965 and as the property, in question was purported to have been transferred to the late Ghulam Rasul Qais under a registered deed of conveyance dated Sept. 1, 1969, such transfer of the properly after vesting was illegal and the first petitioner was asked to show cause within ten days of the receipt of the notice as fo why the rent and profits of the said enemy property should not be collected by the Custodian and why he should not deposit the rents and profits so far collected since Sept. 10, 1965 with the said Custodian. A copy of this notice, which is Annex. 'C' to the petition, is the subject matter of challenge in this Rule.
4. Mr. Sankar Das Banerji appearing on behalf of the petitioners, has submitted that Mst. Khadiza Bi alias Khadiza Khatun had never migrated to Pakistan and she was an Indian citizen and continued to be such on the date of the sale of the property in question to the late Gholam Rasul Qais. Mr. Banerji has further submitted that in coming to the conclusion that Mst. Khadiza Bi was a Pakistani National, the respondents have relied on a report dated Sept. 14, 1979 from the Deputy Commissioner of Police, Special Branch, Calcutta, addressed to the Assistant Custodian of Enemy Property, according to which Mst. Khatiza Khatun not Khadija,the owner of 6, Harinbari First Lane, Calcutta-73, migrated to West Pakistan in the year 1949. Copy of this letter is Annex. 'A' to the supplementary affidavit affirmed on behalf of the respondents Nos. I, 2 and 3 by Sri Manindra Kumar Dutta, the General Assistant in the office of the Custodian of Enemy Property for India at Calcutta on Jan. 22, 1981. Mr. Banerji has further submitted that this report should not be relied upon in view of the statement made in paragraph 9 (2) of the affidavit-in-opposition affirmed by the same deponent on Jan. 9, 1981 from which it appears that the respondents' source of information is a purported letter dated Dec. 16, 1978 from one Md. Soleman to the effect that Khadiza Bibi, the owner of 6, Harinbari First Lane, Calcutta-73, and her husband Abdul Rashid migrated to Pakistan in 1947 and permanently settled in Karachi and became Pakistani Nationals. Mr. Banerji's further contention is that in view of the conflicting submissions made in the two affidavits this Court should come to the conclusion that Mst. Khadiza Khatun. was never a Pakistani National.
5. The next submission of Mr. Banerji is that the Notification dated Sept. 10, 1965 issued by the Ministry of Commerce, in exercise of the power conferred by Sub-rule (1) of Rule 133 V of the Defence of India Rules, 1962 ceased to have any force after the Defence of India Act and the Rules were repealed on July 10, 1968 and the impugned order having been issued on Sept. 14, 1979 cannot be given effect to: In this connection, Mr. Banerji has relied on two single Bench decisions of this Court, the first being the case of Asadulia Chowdhury v. State of West Bengal, reported in (1975) 79 Cal WN 153 and the second is the case of Md. Nazrui Islam v. Union of India, reported in (1977)2 Cal LJ 96.
6. Mr. Dipankar Ghosh appearing for the added respondents Nos. 8, 9 and 10, has submitted that by virtue of the Notification dated Sept. 10, 1965 all immovable property in India belonging to or held by or managed on behalf of all Pakistani Nationals vested in the Custodian of Enemy Property for India with immediate effect. Mr. Ghosh's contention is that Mst. Khadiza Khatun dues not come within the definition of 'Enemy' within the meaning of the Defence of India Rules, 1962. He has drawn my attention to sub-clause (4) to Rule 133-1 of the Rules which defines 'enemy property' to mean any property for the time being belonging to or held or managed on behalf of any enemy asdefined in Rule 133-A, an enemy subject or any enemy firm. Mr. Ghosh then referred me to Rule 133-A and submitted that Mst. Khadija Khatun cannot be brought within the definition of enemy as defined in Sub-clauses (a) to (g) of the said Rule. As such the Notification dated Sept. 10, 1965 can have no manner of application to any immovable property owned by her.
7. Mr. D. N. Das, appearing on behalf of the Custodian of the Enemy Property, has opposed this Rule. He has submitted that on the date of purported sale of the aforesaid property by Mst. Khadiza Bibi, the question whether she was a Pakistani National or an India citizen is a pure question of fact which should not be gone into by this Court. Mr. Das has also drawn my attention to the definition of 'enemy' under Section 2 (c) (ii) of the Defence of India Act, 1962 where 'enemy' has been defined to mean 'any person belonging to a country committing such external aggression and he has also referred to Rule 133 A (b) of the Rules which defines 'enemy' to mean 'any individual resident in enemy territory'. Mr. Das's submission is that in view of these definitions there should not be any manner of doubt that Mst. Khadiza Khatun was in fact an enemy within the meaning of the Act and the Rules. As regards the two decisions cited by Mr. Banerji, Mr. Das has submitted that the two learned Judges completely overlooked the fact that on and from Sept. 10, 1965 all enemy property automatically vested in the Government of India and even if the impugned order was passed after the expiry of the Defence of India Act or the Rules in the year 1968, the vesting would not be affected. Mr. Das has in this connection drawn my attention to a decision of the Supreme Court in the case of Fruit & Vegetable Merchants' Union v. Delhi Improvement Trust, reported in : 1SCR1 where the Supreme Court was construing the meaning of the word 'vest' under Sections 16 and 17 of the Land Acquisition Act, 1894. The Supreme Court, held, inter alia, that in the cases contemplated by Sections 16 and 17, the property acquired becomes the property of the Government without any conditions or limitations either as to the title or possession and the legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. Mr. Das has submitted that inasmuch as the two learned Judges in the decisions cited by Mr. Banerji did not take into consideration the effect of automatic vesting of the property from the date of the Notification orthe aforesaid decision of the Supreme Court, I am not bound by those decisions nor should I refer this matter to a larger Bench as suggested by Mr. Banerji.
8. The question whether Mst. Khadiza Bibi was an Indian citizen or a Pakistani national on the date of the alleged transfer of the property in question to Sheikh Gholam Rasul Qais and whether she had in fact migrated to West Pakistan or had all along remained in India are disputed questions of fact which can only be decided on the basis of evidence and cannot be gone into by this Court exercising powers under the constitutional writ jurisdiction. Moreover, most of the grounds urged by the writ petitioners in support of the Rule also raise pure questions of fact. Besides the facts disclosed in the supplementary affidavit and the affidavit-in-opposition affirmed on behalf of the respondents Nos. 1, 2 and 3 and which have been referred to above prima facie bring in Mst. Khatija Khatun within the meaning of 'enemy' as defined under Section 2 (c) (ii) of the Defence of India Act, 1962 and Clause (f) of Rule 133 A of the Defence of India Rules, 1962.
9. The notification issued by the Government of India, Ministry of Commerce, being Notification No. 12/2/65 E. Pty., dated the 10th Sept., 1965 reads thus:--
'In exercise of the powers conferred by Sub-rule (1) of Rule 133-V of the Defence of India Rules 1962, the Central Government hereby orders that all immovable property in India, belonging to or held by or managed on behalf of all Pakistani nationals, shall vest in the Custodian of Enemy Property for India with immediate effect.
Nothing in this notification shall apply to any such property, belonging to or held by or managed on behalf of such of the Pakistani nationals as are employed in the different Missions of the Government of Pakistan in India,'
By virtue of this notification enemy property automatically vested in the Government of India from the date of the notification. As such, premises No. 6 Harinbari First Lane, Calcutta-73, having on that day belonged to a Pakistani national automatically vested in the Government of India.
10. In the case of Asadulla Chowdhury v. State of West Bengal (1975-79 Cal WN 153) (supra) D, Pal, J,. (as, he then was) held an order issued, by the J. L. R. O. Mathura-pur Circle in the district of Malda to be bad as the order of vesting was issued after the expiry of the period of emergency on July 10, 1968. A similar view was expressed by Amiya Kumar Mookerjee, J. in the case of Md. Nazrul Islam v. Union of India (1977-2 Cal LJ 96) (supra).
11. Both the learned Judges in holding the impugned orders to be bad did not take into consideration the question that on and from the date of the notification dated September 10, 1965 all immovable property held or managed on behalf of all Pakistani nationals would automatically vest in the Custodian of Enemy Property for India. The learned Judge also did not take into consideration the decision of the Supreme Court as to effect of vesting in the case of the Fruit and Vegetable Merchants Union v. Delhi Improvement Trust : 1SCR1 (supra). In the premises both the decisions, in my view, can be dissented from as the main question, namely, that of automatic vesting from the date of the notification was either overlooked or not brought to the notice of the learned Judges.
12. For the reasons stated above, I do not find any merit in this application. Th3 Rule is accordingly discharged. AH interim orders are vacated. The Receiver is also discharged she will hand over the possession of the property and submit all the accounts together with the amounts of th3 rents collected upto date to the Custodian of the Enemy Property. I also make it clear that the discharge of this Rule will not prevent the petitioners from agitating the questions of fact which they have raised in tail petition in an appropriate Civil Court.
13. There will be no order as to costs.
14. Mr. Das has disputed that some persons who are at present claiming to occupy premises No. 6, Haribari First Lane, Calcutta-73, are not at all tenants. The Custodian of Enemy Property will be at liberty to realise the compensation and/or rent for the said rooms in alleged occupation of such persons without prejudice to the rights and contentions of the parties.
15. Mr. Sankar Das Banerjee orally prays for a stay of the operation of this order. His prayer is refused,
16. As prayed for, let plain copies of the ordering portion of this judgment duly countersigned be handed over to the learned Advocate for the respective parties.