2005 Supreme(SC) 1376

2005(7) Supreme 399
Supreme Court of India
(From Bombay High Court)
Ashok Bhan & Altamas Kabir, JJ.
Union of India & Anr. —Appellants
versus
Raja Mohammed Amir Mohammad Khan —Respondent
Civil Appeal No. 2501 of 2002
Decided on 21-10-2005
Counsel for the Parties :
For the Appellants : K. Radha Krishnan, Sr. Advocate, Ashok Bhan, Mrs. Varuna Bhandari Gugnani, V.K. Verma, R. Chandra Shekhar Reddy and Shreekant N. Terdal, Advocates.
For the Respondent : Ashok H. Desai and Vivek Tankha, Sr. Advocates, Mrs. Anjali K. Varma, Jaydeep Narain Mathur, Niraj Gupta, Ritin Roy, Satya N. Prajapati and Ms. Meera Mathur, Advocates.
For the Impleadment : M/s. Law Consultants & Co., Advocates (NP).

Important point
The properties belonging to an Indian could not be termed as an enemy property and the vesting of the properties in the Custodian under the Enemy Property Act is limited to the extent of possession, management and control over the properties only.

Headnote:Enemy Property Act, 1968—Sections 6, 8 and 18—Defence of India Rules—Enemy Property vested in the Custodian—Divesting the Custodian of such property is contemplated—Vesting in Custodian is limited to the extent of possession, management and control over the property temporarily—Respondent born in India is an Indian Citizen—His late father migrated to Pakistan in year 1957 and became a citizen of Pakistan—After the breaking of hostilities between India and Pakistan in year 1965, property of his father located in India got vested in the Custodian—After coming into force of Enemy Property Act in year 1968, properties of his father continued to be vested with the Custodian till he died in 1973 in London—After the death of his father, respondent inherited his property being the sole heir and successor of his father—Can respondent be termed as enemy or enemy subject within the meaning of Section 2(b)—(No)—Property belonging to an Indian could not be termed as an enemy property—Custodian could not continue with the possession of the property.

       Held : The definition of enemy provided under Section 2(b) excludes citizens of India as an enemy, or enemy subject or enemy firm. Under the circumstances, the respondent who was born in India and his Indian citizenship not being in question cannot by any stretch of imagination be held to be enemy or enemy subject under Section 2(b). Similarly, under Section 2(c) the property belonging to an Indian could not be termed as an enemy property. After the death of his father the respondent had filed a Suit No. 219 of 1984 seeking a declaration that he was the sole heir and successor of his father. The appellants were defendants in the said suit. The suit was decreed on 8.7.1986. The said judgment and decree having attained finality there remains no dispute that the respondent is the sole legal heir and successor of his father, the late Raja of Mahmudabad and properties belonging to late Raja came to be owned exclusively by him. After the death of late Raja of Mahmudabad the respondent became the sole owner of the properties which had been taken over by the Custodian of Enemy Property. Having acquired the title by way of succession the properties in question could not be said to be enemy property within the meaning of Section 2(c) because enemy property means the property belonging to or held or managed on behalf of the enemy or enemy subject or enemy firm. Since the respondent was not an enemy within the meaning of Section 2(b), the properties owned, held and belonging to him cannot be held to be the enemy properties under the Enemy Property Act. As indicated above, the vesting of the properties in the Custodian under the Enemy Property Act is limited to the extent of possession, management and control over the properties only. The right, title or interest of the owner is not taken away. After the ceasing of the property to be enemy property it ceased to be belonging to an enemy. The Custodian cannot be permitted to continue with the possession of such properties. The property which initially vested in the Custodian under the Defence of India Rules and thereafter under the Enemy Property Act ceased to be enemy property upon the death of respondent’s father on 14.10.1973. In the circumstances, property which was vested in the Custodian ceased to be enemy property upon the death of the father of the respondent and the Custodian could not continue with the possession of the property. (Paras 23 to 25)

       In the present case the respondent filed several representations but the Central Government did not take a decision on them for years together. In such a situation the power of the Court is not taken away to pass appropriate orders in a case where the property which vested in the Custodian ceases to be enemy property, the same having vested in a citizen of India by way of succession after the death of the enemy subject. Another interesting feature which can be taken notice of is that on a representation filed by the respondent the appellants agreed to release 25 of the property in favour of the respondent on production of proof of his having succeeded to the property of his father. It shows that the appellants accepted that the property could be released in favour of the respondent provided he had succeeded to it after the death of enemy subject. It further shows that the property could be released in favour of an Indian citizen provided he had succeeded to the estate. It further shows that the title of the enemy property does not vest in the custodian and it had vested in the custodian for the purposes of management, control and possession of the properties only. (Paras 27 and 28)

       Unfortunately a dangerous attitude resulting in doing institution damage is developing, that the justice is required to be done only by the Courts. This attitude is betrayal of Constitution as well as laws. Every and any authority working under the statute has to discharge its duties in a just manner otherwise people will lose faith in the governance. The case in hand is a typical example of such an attitude. It is admitted by the counsel for the appellants that under the Enemy Property Act the title of the property of an enemy does not vest in the Custodian. The custodian takes over the enemy property only for the purpose of possession, control and management. An Indian citizen is excluded from the definition of an ‘enemy’ or ‘enemy subject’ under Section 2(b). Respondent was declared to be the heir and successor of late Raja of Mahmudabad. On being so declared the property which came to vest in the respondent who is a citizen of India ceased to be an enemy property. On a representation filed by the respondent, the appellants recognized this fact and agreed to release 25 of the property although he was entitled to the whole of the property. No reasons were given for doing so. Still worse the appellants did not even release 25 of the property. Again no reasons are forthcoming for doing so. When asked by the Court to produce the cabinet note put up before the cabinet in this regard, the appellants refused to do so and claimed it to be a privileged document. When admittedly the title of the property did not come to vest in the custodian then as soon as the title in the property came to vest in an Indian citizen the property ceased to be an ‘enemy property’. The authorities were duty bound to release the property in favour of the true owner (respondent). Instead of doing it the Union of India forced the respondent to knock at the doors of the Court. The authorities have deprived the respondent of the possession and enjoyment of the properties for the last 32 years without any justification. The reasons for doing so as we understand is that buildings are being occupied by the Deputy Commissioner, Superintendent of Police and other district officers for their residences as well as for their offices, which they did not want to give up. This is highly objectionable and unjust. It needs to be deprecated. (Paras 32 and 33)