ASADULLA CHOWDHURY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioners are stated to be the citizens of India and permanent residents of village Ratua in the district of Malda within the Indian union. By a Notice dated 30th March, 1968, the petitioners were called upon by the Junior Land Reforms Officer, Mathurapur circle, P. S, Mathurapur, Dist. Malda to show cause why all the immovable properties in India belonging to or held by or managed on behalf of Pakistani nationals, mentioned in the Schedule to the said notice will not vest in the Custodian of Enemy Property by reason of the government of India Ministry of Commerce notification No. 12/2/65 E. Pty, dated the 1st September, 1965. The petitioners allege that the Pakistani Nationals named in the said show cause notice and the petitioners are Mohammedans of the hanafi Sect. The said Pakistani Nationals were alleged to be formerly Indian Citizens and when they intended to go over to pakistan during the disturbed period of 1950, they gifted away their respective properties in the later part of 1955 by verbal Hebas to the petitioners and delivered possession of their lands in the respective donees. It is not necessary for me to examine the correctness or otherwise of the said allegation in this application. It may however be pointed out that although the suit properties were alleged to be gifted in favour of the petitioners, their names were not mutated in the records of rights finally published under the west Bengal Estates Acquisition Act, 1954. It is also stated in paragraph 9 of the affidavit of Sri Gouranga Chandra Pal filed on behalf of the respondents that the petitioners never applied for correction of the records of rights to the settlement department or for mutation of their names before the Junior Land Reforms Officer. Be that as it may, after the show cause notice was issued, and after cause was shown and the petitioners were heard by sri Dinesh Gopal Misra, predecessor-in-office of Sir Gouranga Chandra Pal being respondent No. 2 an order was made by the Junior Land Reforms Officer, Mathurapur, on 7. 1. 1969 that the said immovable properties set out in the said show cause notice left by the Pakistani Nationals (1) Fowzi Islam, (2) Bibi Atiakhatun, (3)Aktar Jahan Khatun, (4), Airab Jahan khatun have been vested in the Custodian of the Enemy Properties under the Government of India Ministry of Commerce notification No. 12/2/65 E. Pty. dated 1st september, 1965.

(2.) THE petitioners have challenged the said order in this rule. The learned Counsel appearing for the petitioners has contended that the said notification having been issued under Rule, 133v of the Defence of India Rules, 1962 (hereinafter preferred to as the Rules) framed under the Defence of India Act, 1962 (hereinafter referred as the Act) the order of vesting dated 7. 1. 1969 was without Jurisdiction in view of the fact that the Act being as emergency legislation expired on 10th July, 1968. It is not disputed by the parties that the notification No. 12/2/65 E. Pty. dated 1st September, 1965 has been issued in exercise of the power conferred by Sub-rule (1) of Rule 133v of the Rules framed under the Act. The said Notification was produced before me at the time of the hearing of this Rule. A copy of the said Notification has been kept on record with the consent of the parties. The said Notification runs thus :

(3.) IN my opinion, in view of the fact that the Act had expired on 10th July 1968 the purported order dated 8th January, 1969 declaring the said properties to have been vested in the Custodian of the enemy Property is without any jurisdiction and authority of law. Learned Counsel for the respondents sought to rely upon Section 5 of the Enemy Properties act, 1968 which states that not-withstanding that the expiration of the Defence of india Act, 1962 and the Defence of India rules, 1962 all enemy properties vested before such expiration in the Custodian of enemy Property will continue to vest in him immediately under the Enemy Properties Act, 1968. In order to attract the operation of the said Sec. 5 it is necessary to establish that the enemy properties hail vested in the Custodian of Enemy properties under the Act and continue to vest in him before the commencement of the Enemy properties Act, 1968. As I have already pointed out that there was no order by which such properties were declared to be enemy properties and necessarily there was no order by which such properties vested in the Custodian pf Enemy Properties before the Act expired. Such order was made only on 7th January 1969 i. e. after the expiration of the Act. In these circumstances the respondents are not entitle ed to take recourse to the said Section 5 of the Enemy Properties Act, 1968 for the continuance of the vesting of such properties in the Custodian of the enemy properties