TMI Blog2005 (10) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... Ordinance, 1962 came into force with effect from 5.11.1962. Rule 133-V, inter alia, provided that the Central Government was authorised to appoint a Custodian of Enemy Property for India to preserve enemy property. Defence of India Ordinance, 1962 was repealed by Section 48 of Defence of India Act, 1962. The 1962 Rules, however, made under the Defence of India Ordinance, 1962 were deemed to be the rules under the Defence of India Act. Thereafter, the Government of India in exercise of powers under sub-rule (1) of Rule 133-V issued the Enemy Property (Custody Registration) Order, 1962. In the year 1965 hostilities between India and Pakistan broke out and on 11.9.1965 the Enemy Property (Custody Registration) Order, 1965 (for short the Enemy Property Order, 1965 ) was issued by the Government of India. The effect of the order was that all immovable property in India belonging to or held by or managed on behalf of Pakistani nationals stood vested in the Custodian of Enemy Property in India with immediate effect. Since the father of the respondent was a national of Pakistan his property also vested in the Custodian. Enemy Property Ordinance, 1968 was promulgated which was later o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such time the property remained the enemy property. It was, inter alia, prayed that he be declared the sole heir and successor of his father and thereby entitled to 25% of the properties and to such other percentage or the whole of the said properties. Appellant No.2 filed the written statement contesting the suit inter alia contending that the suit property had vested in the Custodian free from all encumbrances and denied that it had vested in the Custodian for the purpose of management only. It was denied that the respondent was the heir of late Raja of Mahmudabad. Trial Court decreed the suit on 8.7.1986. It was declared that the respondent was the sole heir and successor of his father and thereby entitled to 25% or whatever percentage it may be of the property in the suit. The suit was decreed in the following terms:- The suit of the plaintiff for declaration is decreed with costs against the defendants and it is hereby declared that the plaintiff is the sole heir and successor of his father late Raja Mohammad Amir Ahmad Khan and thereby he is entitled to the 25% or whatever percentage it may be, of the properties in suit, described in Schedule I of the plaint, which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Defence of India Act, 1962 and the Defence of India Rules, 1962 [or to the Defence of India Act, 1971 and the Defence of India Rules, 1971], but does not include a citizen of India; Section 2(c) defines the expression enemy property as follows:- 2 (c) - enemy property means any property for the time being belonging to or held or managed on behalf of an enemy, an enemy subject or an enemy firm; Provided that where an individual enemy subject dies in the territories to which this Act extends, any property which immediately before his death, belonged to or was held by him or was managed on his behalf, may, notwithstanding his death, continue to be regarded as enemy property for the purposes of this Act; Section 6 of the Act provides or declaring the transfer of property by enemy subject which is vested in the Custodian to be void by the Central Government after giving reasonable opportunity of being heard. Section 6 reads as under:- 6. Transfer of property vested in Custodian by enemy or enemy subject or enemy firm - Where any property vested in the Custodian under this Act has been transferred, whether before or after the commencement of this Act, by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property such loans as may be necessary; (vi) incur out of the property any expenditure including the payment of any taxes, duties, cesses and rates to Government or to any local authority and of any wages, salaries, pensions, provident fund contributions to, or in respect of, any employee of the enemy and the repayment of any debts due by the enemy to persons other than enemies. (vii) transfer by way of sale, mortgage or lease or otherwise dispose of any of the properties; (viii) invest any moneys held by him on behalf of enemies for the purchase of Treasury Bills or such other Government securities as may be approved by the Central Government for the purpose. (ix) make payments to the enemy and his dependents; (x) make payments on behalf of the enemy to persons other than those who are enemies, of dues outstanding on the 25th October, 1962 (or on the 3rd December, 1971); and (xi) make such other payments out of the funds of the enemy as may be directed by the Central Government. Explanation - In this sub-section and in sections 10 and 17, enemy includes an enemy subject and an enemy firm. Section 9 provides that all enemy property vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an is not divested of all his right, title and interest in the property, but the vesting in the Custodian is limited to the extent of possession, management and control over the property temporarily. In Mumtaz Begum Vs. Union of India and Others, AIR 1991 Calcutta 241 the High Court reiterated its earlier view. In this case the High Court was seized of a matter in respect of enemy property which had vested in the Custodian. After adjudication of title in his favour the appellant filed a writ petition in the High Court claiming the property as it no longer belonged to an enemy subject. The Single Judge dismissed the writ petition. The Division Bench reversing the order of the Single Judge took the view that the appellant therein was entitled to get the property back as it no longer belonged to an enemy subject. That the title of the property does not vest in the Custodian and the Custodian takes over the property under the Act temporarily for its management and control. The High Court in the impugned judgment has followed the said Rule. The enemy, an enemy subject or enemy firm under Section 2(b) means a person or country who or which was an enemy, an enemy subject or enemy firm, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n citizen be termed as enemy property within the meaning of Section 2 (c)? Answer is emphatic No. 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 acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property belonging to an Indian citizen cannot be permitted to be continued under the Enemy Property Act as Indian citizen is excluded from being an enemy in terms of the provisions of Section 2(b). Counsel for the appellant laying stress on the provisions of Section 18 contended that only the Central Government can divest the Custodian of the enemy property by passing a general or special order directing that any enemy property vested in the Custodian under the Act shall be divested from him and be returned in such manner as may be prescribed to the owner thereof or to such other person as may be specified in the direction and only thereupon such property shall cease to vest in the Custodian and revest in such owner or such other person. Since in the present case no such order has been passed by the Central Government this Court cannot divest the Custodian of the property. We do not agree with this submission. 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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