Bombay High Court
MANTRI BROTHERSversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- DISPOSED OFF
Holding
There was no valid vesting of the Wakf property on the Custodian of Enemy Property, rendering the Custodian’s communications and the subsequent mutation entries illegal and set aside.
Summary
The petitioners, comprising Mehta Impex Pvt Ltd, the Wakf of Khan Bahadur Haji Shaikh Meherbaksh and the Mantri Brothers, challenged a series of communications and mutation entries that inserted the Custodian of Enemy Property as the owner of Wakf‑derived lands, alleging that no valid vesting under the Enemy Property Act had occurred. The respondents argued that the property was enemy property by virtue of the Defence of India Rules and the Enemy Property (Amendment) Act, and that the Custodian’s actions were statutory. The Court examined the historical creation of the Wakf, the absence of any Central Government notification under Rule 133‑V, the withdrawal of earlier enemy‑property notices, and the effect of the 2007 consent order deleting the Custodian’s claim. It held that without a valid vesting order or certificate, the Custodian had no jurisdiction to direct the revenue authorities, and the 2021‑2023 mutation entries were ultra vires. Consequently, the Court set aside the impugned communications and mutation entries and allowed the writ petitions. The decision also clarified the limited reach of Section 22A of the 2017 amendment and affirmed the primacy of High Court writ jurisdiction over statutory provisions.
Issues considered
- The existence of a valid vesting of the Wakf property in the Custodian of Enemy Property under the Enemy Property Act, 1968 and its amendments.
- Whether the Custodian had jurisdiction to issue directions to revenue authorities without a Central Government notification or a Section 5A certificate.
- The effect of the 2007 consent order and the withdrawal of earlier enemy‑property notices on the status of the property.
- The applicability of Section 22A (2017 amendment) to override the High Court’s consent order.
- The availability of an alternative remedy under Section 18 of the Enemy Property Act.
Legislation cited
- Companies Act
- Constitution of India — s. Article 226
- Defence of India Act, 1962
- Defence of India Rules, 1962 — s. 133-V
- Defence of India Rules, 1971
- Enemy Property Act, 1968 — s. 12, 18, 22A, 23, 5, 5A, 6
- Enemy Property (Amendment and Validation) Act, 2017 — s. 22A, 5(3), 6
- Muslim Wakf Act, 1954 — s. 2, 25, 3(l), 41
- Mussalman Wakf Validating Act, 1913
- Mussalman Wakf Validating Act, 1930
Subjects
- Wakf
- Enemy Property
- Custodian of Enemy Property
- Mutation entry
- Article 226
- Natural justice
- Vesting of property
- Consent order
- Section 5A
- Section 22A
- Alternative remedy
Judgment
WP-1080-2024-WAKF-F.doc
Shephali
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1080 OF 2024
1. MEHTA IMPEX PRIVATE LIMITED,
A company incorporated under the
Companies Act, having its registered
Office at 6th Floor, Kundan House,
Dattapada, Borivali East of Village,
Kanheri, Borivali East,
Mumbai 400066.
2. ANIL CHOPRA,
Director of M/s. Mehta Impex Pvt. Ltd.,
having its registered office at 6th Floor,
Kundan House, Dattapada, Borivali East
of Village Kanheri Borivali East,
SHEPHALI Mumbai 400 066 …Petitioners
SANJAY
MORMARE
~ versus ~
Digitally signed by
SHEPHALI SANJAY
MORMARE
Date: 2026.07.22
17:57:18 +0530 1. THE STATE OF MAHARASHTRA,
through Secretary, Department of
Revenue, Mantralaya, Mumbai.
2. THE COLLECTOR,
Mumbai Suburban District,
Bandra Kurla Complex, Bandra, Mumbai.
3. CUSTODIAN OF ENEMY PROPERTY FOR
INDIA,
having address at Kaiser I, Hind Building,
1st Floor, Kaiseri, Currimbhoy Rd.,
Ballard Estate, Fort, Mumbai,
Maharashtra 400 001. …Respondents
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WITH
WRIT PETITION NO. 1233 OF 2024
KHAN BAHADUR HAJI SHAIKH,
Meherbaksh First Wakf through it
Mutawalli Amjad Aziz Meherbaksh,
Indian inhabitants of Mumbai,
having his address at 104, Zaitoon
Apartments, 10/14, S.V.S. Road, Mahim,
Mumbai 400 016. …Petitioner
~ versus ~
1. THE STATE OF MAHARASHTRA,
through Secretary, Department of
Revenue, Mantralaya, Mumbai.
2. THE COLLECTOR,
Mumbai Suburban District,
Bandra Kurla Complex, Bandra, Mumbai.
3. CUSTODIAN OF ENEMY PROPERTY FOR
INDIA
having address at Kaiser I, Hind Building,
1st Floor, Kaiseri, Currimbhoy Rd.,
Ballard Estate, Fort, Mumbai,
Maharashtra 400 001. …Respondents
WITH
WRIT PETITION NO. 3746 OF 2023
1. MANTRI BROTHERS,
A Firm registered under the provisions of
the Indian Partnership Act 1932,
having its office at 254, Mayfair, Ground
Floor, Premier Road, Kurla (West),
Mumbai 400 070.
2. FIROZE ZAINUDDIN MANTRI,
Aged 75 years, an Indian Mumbai
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inhabitant, the partner of Petitioner No.
1, having his office at 254, Mayfair,
Ground Floor, Premier Road, Kurla
(West), Mumbai 400 070.
3. JOHAR JAINUDDIN MANTRI,
Aged 74 years, an Indian Mumbai
inhabitant, the partner of Petitioner No.
1, having his office at 254, Mayfair,
Ground Floor, Premier Road, Kurla
(West), Mumbai 400 070. …Petitioners
~ versus ~
1. THE STATE OF MAHARASHTRA,
through Secretary, Department of
Revenue and Forest, having its office at
Mantralaya, Mumbai 400 001 and
through the Government Pleader, Writ
Cell Original Side, High Court Building,
Mumbai.
2. THE COLLECTOR,
Mumbai Suburban District, having its
office at Mulund office, Topiwala College
Building, Sarojini Naidu Road, Mulund
(West), Mumbai 400 080.
3. CUSTODIAN OF ENEMY PROPERTY FOR
INDIA,
having address at Keser I-Hind Building,
1st Floor, Kaiseri, Currimbhoy Rd.,
Ballard Estate, Fort, Mumbai,
Maharashtra 400 001.
4. PRATIKSHA COOPERATIVE HOUSING
SOCIETY LTD,
a registered cooperative housing Society
having its registered address at Pratiksha
Apartment, 239, New Mill Road, Kurla
West, Mumbai, Maharashtra 400 0070 …Respondents
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A PPEARANCES
For the Petitioners in all Mr Rajiv Narula, with Mr Tarang Jagtiani
Petitions. & Mr Rahul Pillai, i/b Jhangiani Narula
& Associates.
For Respondent No. 3 Mr Rajiv Chavan, Senior Advocate, with
CEPI in all Petitions. Ms Sonam Pandey, Ms Asmi Desai, Mr PS
Gujar, i/b Mrs Manisha Jagtap.
For Respondent No. 4 in Mr Syed Nabeel Ali, with Mr Omkar
WP/3746/2023 Mhasde.
For Respondents-State Mrs Jyoti Chavan, Addl. GP.
in WP/1080/2024 &
WP/1233/2024.
For Respondents-State Mr Milind More, AGP.
in WP/3746/2023.
Present in Court Ms Patricia Fialho, Deputy Custodian.
CORAM : SUMAN SHYAM &
SHYAM C. CHANDAK, JJ
RESERVED ON : 29th APRIL 2026.
PRONOUNCED ON : 22nd JULY 2026.
JUDGMENT (Per Suman Shyam, J):-
1. Rule. Rule is made returnable forthwith.
2. By consent of the parties, the matters are taken up for final
hearing and disposal.
3. Writ Petition No 1080 of 2024 has been instituted by the
purchasers of the Wakf property under Property Card of CTS No.
1010/1 to 41, assailing the communication dated 28 th December
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2021 (Exhibit-I) and the Mutation Entry No. 1218 made on 17 th
May 2023 making an insertion in the revenue record noting that
the property vests with the “Custodian of Enemy Property in
India” thereby, deleting the names of the Petitioners as owners of
the property in the Property Card of CTS No. 1010/1 to 41. Writ
Petition No 1233 of 2024 has been instituted by the Wakf assailing
the communication dated 28th December 2021. The mutation
entry made inserting the name of the Custodian of Enemy
Property by deleting the name of the owners on Property Card
CTS No. 1012/ 1 to 16 and CTS No. 1010/42 to 64. Writ Petition
No 3746 of 2023 has been instituted by the three Petitioners, also
being the purchasers of properties of the Wakf, bearing CTS Nos
239 and 239/1 to 35, challenging the communications dated 16 th
December 2012 and 28th December 2021 as well as the Mutation
Entry No 571 dated 30th May 2023 indicating that the property
has vested on the Custodian of Enemy Property for India, i.e., the
Respondent No 3. The core issue involved in all these Writ
Petitions is pertaining to the question as to whether, the recourse
adopted by the Respondent No. 3, pertaining to the alleged
vesting of the property in question and the insertion of mutation
entries, are as per the prescription of law and if not, whether the
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directions issued by the Respondent No. 3 to the revenue
authorities encumbering the properties is liable to be declared as
illegal and, hence, null and void. Since common questions of law,
set out in identical fact situation, are involved in all the three Writ
Petitions, hence, we propose to dispose of these Writ Petitions by
this common judgment and order. For appreciating the controversy
involved in these proceedings, the facts projected in Writ Petition
No 1080 of 2024 are referred to, as here under, for ready
reference.
4. Md. Khan Bahadur Haji Shaikh Meherbaksh had created a
Wakf-al-aulad on 19th January 1926 for the benefit of his family
members and descendants. Clause 4(a) to (i) of the Wakf Deed
dated 19th January 1926 records the names of the Petitioners.
Clause 5 lays down that if all the children of the Wakif died
without leaving any legal heir, the balance income of the Wakf
property shall be utilised for religious, pious and charitable
purposes. Clause 12 of the Wakf Deed authorised the Muttawallis
to sell and transfer Wakf properties. On 19 th July 1929 a
Supplementary Deed of the Wakf was executed modifying certain
terms and conditions of the original Wakf Deed, which included
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the area of Wakf property admeasuring 2949.10 sq. mtrs. Mohd.
Abhubakar was one of the Muttawallis of the Wakf property.
However, after his demise, by Indenture dated 28 th September
1982, three new Muttawallis, viz., (i) Abdul Aziz Meherbaksh, (ii)
Abdul Haque Shaikh Meherbaksh, and (iii) Amjad Aziz
Meherbaksh were appointed as Muttawallis of the Wakf property.
5. The Petitioner No. 1 in Writ Petition No 1080 of 2024 is a
registered company and the Petitioner No. 2 is its director. By
means of a registered instrument dated 14 th September 1988
executed by the Mutawallis, the Writ Petitioners had purchased
land admeasuring 2949.10 sq. mtrs situated at T.P.S. No. II, Juhu
Sector, Village-Mouje Juhu, Vile Parle (West), Mumbai in the
Registration District and Sub-District of Bombay Suburban relating
to City Survey No. 1010/1 to 41 (hereinafter referred to as the
“suit property”). On the date of execution of the Indenture dated
14th September 1988, there was no record, including any Mutation
Entry, pertaining to the suit property indicating that the wakf
property had vested on the Custodian of the Enemy Property for
India.
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6. In the year 1984, one of the beneficiaries, viz., Nabilla
Begum, i.e. the daughter of S. M. Farooq, who was the eldest son
of the Wakif, had instituted Suit No. 250 of 1984 before this High
Court, claiming her share in the Wakf property. Nabilla was a
Pakistani National. It appears that some of the other beneficiaries
belonging to the family of Nabilla, were also Pakistanis. In the
aforesaid suit, a compromise settlement was arrived at by and
between the parties and it was agreed that a sum of Rs. 1,25,000/-
(Rupees One Lakh and Twenty Five Thousands) would be paid to
Nabilla Begum and other beneficiaries, who were Pakistani
Nationals. The said amount was deposited before this Court as per
the Consent Terms recorded vide order dated 6th November 1986
passed in Suit No. 250 of 1984. Thereafter, on 9 th January 1989, a
Deed of Rectification was executed by and between the Petitioners
and the Muttawallis of the Wakf amending the Indenture dated
14th September 1988 whereby, the area of the property was
amended pursuant whereto, on 12 th January 1990, the name of
the Petitioner No. 1 came to be recorded in the Property Card and
the revenue record, in respect of the subject property. On 10 th
March 2004, Custodian of Enemy Property issued a notice to the
effect that the Wakf properties are enemy properties. Following
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the Notice dated 10th March 2004, Certificate dated 5th April 2004
was issued under Section 12 of the Enemy Property Act, 1968 in
respect of the Wakf properties, including the suit property
purchased by the Petitioners. Aggrieved thereby, the Muttawallis
had filed Writ Petition No. 1296 of 2004 before this Court inter
alia assailing the Notice dated 10th March 2004 and the Certificate
dated 5th April 2004. During the pendency of the aforesaid Writ
Petition, the Wakf had addressed a communication dated 21 st
August 2007 to the Custodian of Enemy Property (Respondent No.
2 in the said Writ Petition) requesting for issuance of ‘NOC’ in
respect of any claim/right/beneficial interest of alleged Pakistani
Nationals and proposed withdrawal of the Writ Petition.
7. On 26th November 2007, a communication was issued by
the Custodian of Enemy Property conveying his no objection for
release of the claims/right/beneficial interest of the alleged
Pakistani Nationals in the Wakf, subject to payment of
Rs.1,25,000/- (Rupees One Lakh and Twenty Five Thousands) to
be deposited in the Bombay High Court. Thereafter, the Custodian
of Enemy Property had addressed a letter dated 7 th December
2007 to his Advocate conveying that after consultation with the
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Ministry of Law and Justice,Government of India, it was felt that
the attempt to vest the properties belonging to “Meherbaksh
Wakf” may not stand the legal scrutiny. In the said letter, it was
also mentioned that an administrative decision has been taken to
issue ‘NOC’ to the Wakf and that Wakf properties cannot vest in
the Custodian of Enemy Property. Thereafter, Consent Terms were
filed in Writ Petition No. 1296 of 2004 agreeing to withdraw the
Notice dated 10th March 2004 and the Certificate dated 5th April
2004. Based on such Consent Terms, Order dated 14 th December
2007 came to be passed by the Division Bench of this Court in Writ
Petition No. 1296 of 2004 disposing of the Writ Petition. By order
dated 22nd November 2011, the Bombay High Court had directed
that the amount of Rs. 1,25,000/- (Rupees One Lakh and Twenty
Five Thousands), along with the accrued interest, pertaining to the
beneficial interest of the Pakistani Nationals (Nabilla and others),
be paid to the Custodian of Enemy Property. The amount was
deposited in the High Court.
8. In view of the order dated 14 th December 2007 whereby, the
High Court had recorded the consent of the then Custodian of
Enemy Property (i.e., the Respondent No. 2 in that Writ Petition),
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the Wakf property had been completely and absolutely divested of
any interest of the Pakistani Nationals over the same. Therefore, it
was incumbent upon the revenue authorities to delete the
Mutation Entries/endorsement made in the Revenue Record
pertaining to the Wakf property showing it as Enemy Property.
However, no action was initiated by the authorities on that behalf.
On the contrary, in the year 2019, an inquiry was initiated in
respect of the Wakf property. The Wakf had addressed
communication dated 16th September 2019 to the Respondent No.
3 calling upon him to refrain from passing any order or initiating
any proceeding in respect of the Wakf property by projecting that
the property in question had already been sold. Despite the receipt
of the said communication, the Respondent No. 3 had issued the
impugned order dated 28th December 2021 to the Collector
projecting that the properties were enemy properties and,
therefore, consequential Mutation Entry in the revenue records,
pertaining to the subject property, was required to be made.
Following the communication dated 28th December 2021, the
Respondent No. 3 issued further communication dated 15 th May
2023 directing the Revenue Authorities to immediately record the
name of the Custodian of Enemy Property in the revenue records
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in respect of the properties mentioned therein, which included the
suit properties. Pursuant to the communication dated 15 th May
2023, Mutation Entry No. 1218/1219 was made in the Property
Card/Revenue Records on 17th May 2023 thereby, recording the
name of the Custodian of Enemy Property in respect thereof, by
deleting the names of the Petitioners. The entry also came to be
sanctioned on the same date. On 18th May 2023, the City Survey
Officer communicated the action taken in the matter in the
mutation proceedings and informed that the name of the
Respondent No. 3 had been inserted in the Revenue Records. Prior
to that, on 17th May 2023 the Settlement Commissioner and
Director of Land Records had communicated that the name of the
Respondent No. 3 had been inserted in the Revenue Records as
per Mutation Entry No. 1219 dated 17th May 2023. The City
Survey Officer, Vile Parle had also informed that the site inspection
report was also submitted. In view of the above developments, the
Petitioners have been compelled to approach this Court by filing
the instant Writ Petition inter alia assailing the letter dated 28th
December 2021, the Mutation Entry dated 17 th May 2023 and the
consequential communications and orders issued thereunder.
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9. The primary contention of the Petitioners is that the suit
property was never declared as “Enemy Property” by the Central
Government under Rule 133-V of the Defense of India Rules, 1962
and therefore, it never vested with the Custodian under the Enemy
Property Act 1968 (here-in-after referred to as the Act of 1968) in
as much as, there was no order ever vesting the suit property upon
Respondent No. 3. It has further been contended that the
impugned order dated 28th December 2021 was issued by the
Respondent No. 3 without examining the jurisdictional facts or
ascertaining if any order had been passed by the Central
Government under Rule 133-V. As such, the communication dated
28th December 2021 issued by Respondent No. 3 is without
jurisdiction. Consequently, the letter dated 15th May, 2023
directing the Mutation Entries to be made in Revenue Record is
also illegal and liable to be interfered with.
10. The Petitioner has also stated that the property in question
was purchased by the Petitioners by a registered instrument, long
before the impugned letter/notice was issued and the name of the
Petitioner No 1 was also reflected in the Property Card since 12 th
January 1990. Since the property in question, all along belonged
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to Indian Citizens, hence, the same cannot be treated as Enemy
Property. As such, there cannot also be any vesting of the property
upon the Respondent No. 3.
11. In the reply of the Respondent No. 3, it has been inter- alia
contended that in view of provisions of Section 5 read with
Sections 6 and 22A(b) of the Enemy Property (Amendment and
Validation) Act, 2017 (here-in-after referred to as the ‘Act of
2017’), the claim of the Petitioners is wholly untenable in as much
as even the consent order dated 14 th December 2007 cannot come
to the rescue of the Petitioners. It has also been contended that the
Writ Petition is not maintainable in view of availability of
alternative efficacious remedy provided under Section 18 of the
Act, 1968. According to the Respondent No. 3, the impugned
communications are nothing but derivative steps taken by the
authorities, so as to give effect to the statutory provisions pursuant
to the amendment to the Enemy Property Act. It is also the stand
of the Respondent No. 3 that in view of the embargo created
under Section 6, the Wakf property could not have been sold to
the Petitioners and, therefore, they cannot claim to be the
bonafide purchasers of such property. Moreover, according to the
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Respondent No. 3, the eldest son of the Wakif viz. Md. Farooq,
along with his family, had migrated to Pakistan and, therefore, the
property in question was evidently, property belonging to an
enemy subject, as a result of which, the Wakf property had
automatically vested on the custodian. The Respondent No. 3 had
also contended that the enemy interest in the Wakf property was
detected on the basis of a complaint received by the answering
Respondents, which had prompted the inquiry which was followed
by the issuance of the Notice dated 10 th March 2004. It is the case
of the Respondent No. 3 that vesting of Enemy Property would be
automatic under the statute and, therefore, no further notice was
required to be given to the owner of the property on such count.
The Respondent No. 3 has, therefore, denied and disputed the
claim of the Petitioners that due to the purchase of the same by
means of registered instrument, the suit property had never vested
on the custodian.
12. The Respondent No. 3 had also filed an Additional Affidavit
in Reply which apparently became necessary in view of the order
dated 24th June 2025 passed by this Court directing status quo to
be maintained as regards the subject property. However, since the
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averments made therein, basically relate to the various events that
took place pursuant to the order dated 24 th June 2025, primarily
aimed at avoiding any action for contempt of court, we do not
deem it necessary to refer to the statements made there-in for the
purposes of adjudicating the core legal issues involved in these
proceedings.
13. Mr Narula, learned counsel appearing for the Petitioners has
argued that the “Wakf-al-aulad” was created as per law and had
also been duly registered although there was no necessity to
register the same under the Mussalman Wakf Validating Act, 1930.
It is also his submission that unless an order is passed by the
Central Government under Rule 133-V of the Defense of India
Rules, 1962 specifying that the properties had vested in the
Custodian, there was no question of automatic vesting of
properties under the Act of 1968 or the amendment Act of 2017.
According to Mr Narula, not a single property of the Wakf was
ever declared as Enemy Property under the Defence of India Rules,
1962 or the Defence of India Rules, 1971. Therefore, there was
also no question of continuance of vesting of the property under
the Enemy Property Act, 1968.
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14. It is also the submission of Mr Narula that even to take over
possession of any property as enemy property, it would be
incumbent upon the custodian to issue Show Cause Notice upon
the owner in possession of the property, so as to give adequate
opportunity of hearing to such affected party. But, in the present
case, no such notice was issued to the Petitioners. As such, submits
Mr Narula, the impugned orders are liable to be set aside only on
the ground of violation of principles of natural justice.
15. To sum up his argument, Mr Narula has contended that as
per material available, Mr Farooq was an Indian, holding an
Indian Passport. Save and except his daughter Nabilla and her
family members, whose beneficial interest in the Wakf property
has already been taken over by the Custodian, no other member of
the family of Farooq or the Wakif and the Muttawallis are
Pakistani National. If that be so, the question of the Wakf property
being declared as Enemy Property would not arise in the eyes of
law. In support of his above arguments, Mr Narula has relied upon
the decision of the Hon’ble Supreme Court in the case of Union of
India & Anr. Vs. Raja Mohammed Amir Mohammad Khan ,1 as well
1 (2005) 8 SCC 696.
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as the decision of this Court in Lotus Classique Housing Society Vs.
Union of India,2 and Neelkamal Realtors Suburban Pvt. Ltd. Vs.
Office of CEPI.3
16. Mr Rajiv Chavan, learned Senior Counsel appearing for the
Respondent No. 3, on the other hand, has argued that once the
property is detected to be Enemy Property, the vesting of the same
on the Custodian would be automatic. In support of his above
argument, Mr Chavan has relied upon the order dated 9 th
November 2021 passed by the learned Single Judge of the Kerala
High Court in the W. P.(c) No. 25261 of 2009. Mr Chavan has also
relied upon the order dated 18 th December 1971 issued by the
Additional Secretary to the Government of India to submit that in
view of the aforesaid Notification, all movable and immovable
property belonging to or held by or managed by and on behalf of
an enemy defined in clauses (b) and (c) of Rule 130 of the
Defence of India Rules, 1971 shall vest on the Custodian of Enemy
Property.
2 Writ Petition No. 903 of 2025 (BHC Goa), passed on 22 nd September 2025.
3 2023 SCC OnLine Bom 2314.
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17. Questioning the legitimacy of the Wakf, Mr Chavan has also
argued that in view of the provisions of the Mussalman Wakf Act,
1954, any Wakf, which is unregistered, would be invalid in the
eyes of law. Therefore, there is neither any question of treating
such unregistered Wakf as a legal entity nor can there be any valid
conveyance of title in respect of the Wakf properties to a third
party.
18. Addressing elaborate arguments in support of his contention
that the vesting of property to the Custodian of Enemy Properties
under the Defense of India Rules, 1962 and Rules of 1971 would
be automatic and such vesting would continue even under the
provisions of the Enemy Properties Act 1968, Mr Chavan has,
argued that this is a classic case where the subject property/ suit
property had clearly vested upon the Custodian of Enemy
Properties, i.e., the Respondent No. 3 by operation of law and,
therefore, the Petitioners cannot assert or maintain any claim over
such Wakf property.
19. The learned AGP appearing for the Respondent Nos. 1 and 2
have supported the stand of the Respondent No. 3.
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20. We have considered the arguments advanced at the Bar and
have also meticulously gone through the record. At the very out-
set, it must be noted herein that Khan Bahadur Haji Shaikh
Meherbaksh “Wakf-alal-aulad’ was created under the Mussalman
Wakf Validating Act, 1913 (Act of 1913).This act was enacted with
the object of declaring the rights of Mussalmans to make
settlements of property by way of ‘Wakf’ in favour of their
families, children and descendants. It is a validating legislation
enacted during the pre-independence era. The Act of 1913 was
enacted to validate creation of private family trust known as Wakf-
alal-aulad by Hanafi Settlors which came under cloud of invalidity
after the decision of the Priviy Council in the case of Abul Fata
Mahomed Ishak vs Russomoy Dhur Chowdry4, where-in it was
inter-alia that the gift created for the poor by the settlor was
illusory and have been put into the settlement merely to legalize
the settlement by giving it a colour of piety.
21. The Act of 1913 lays down what is a Valid ‘Wakf’. Sections 1
and 2 of the Act of 1913 defines a “Wakf” and “Hanafi
Mussalman”, respectively as follows:-
4 1894 SCC Online PC 24
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“(1) “Wakf” means the permanent dedication by a person
professing the Mussalman faith of any property for any
purpose recognized by the Mussalman law as religious, pious
or charitable.
(2) “Hanafi Mussalman” means a follower of the Mussalman
faith who conforms to the tenets and doctrines, of the Hanafi
school of Mussalman law.”
22. As per Section 3 of the Act of 1913, it shall be lawful for any
person professing Mussalman faith to create a Wakf for the
purposes mentioned therein. Section 3 of the Act of 1913 deals
with the power of a Mussalman to create a Wakf, which is
reproduced hereinbelow for ready reference:-
“3. Power of Mussalmans to create certain wakfs.
It shall be lawful for any person professing the Mussalman faith
to create a wakf which in all other respects is in accordance
with the provisions of Mussalman law, for the following among
other purposes:-
(a) For the maintenance and support wholly or partially of his
family, children or descendants, and
(b) Where the person creating a wakf is a Hanafi Mussalman,
also for his own maintenance and support during his lifetime or
for the payment of his debts out of the rents and profits of the
property dedicated:
Provided that the ultimate benefit is in such cases
expressly or impliedly reserved for the poor or for any other
purpose recognized by the Mussalman law as a religious, pious
or charitable purpose of a permanent character.”
23. The Act of 1913 did not apply to the Wakfs created before
the enactment. Therefore, Mussalman Wakf Validating Act, 1930
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was enacted, so as to give retrospective effect to the Mussalman
Wakf Validating Act, 1913. Section 2 of the Act of 1930 lays down
that the Act of 1913 shall be deemed to apply to Wakfs created
even before its commencement.
24. There is no controversy in this case about the fact that the
Wakf- created by Khan Bahadur Haji Shaikh Meherbaksh would be
governed by the provisions of the Act of 1913 which legitimizes a
Wakf created by a Hanafi Mussalman for his own maintenance
and of his family members, provided, the ultimate benefit is
reserved for charitable purpose. Under the Act of 1913, it was not
mandatory to register the Wakf.
25. After independence, the Parliament had enacted the Muslim
Wakf Act, 1954 with the object of providing a better mechanism
for administration and supervision of Wakfs. Section 3(l) of the
Act of 1954 defines “Wakf” as follows:-
“3(l) “wakf” means the permanent dedication by a person
professing Islam of any movable or immovable property for
any purpose recognised by the Muslim law as pious, religious
or charitable and includes—
(i) a wakf by user;
(ii) mashrut-ul-khidmat; and
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(iii) a wakf-alal-aulad to the extent to which the
property is dedicated for any purpose recognised by
Muslim law as pious, religious or charitable;
and “wakif” means any person making such
dedication.”
26. Section 2 of the Act of 1954 lays down that unless expressly
provided under the Act, it will apply to all Wakfs, whether created
before or after the commencement of the Act. Section 25 of the
Act of 1954 provides that all Wakfs, whether created before or
after the commencement of the Act, shall be registered at the
office of the Board for which, applications shall be made by the
Muttawallis within the time frame prescribed there-in. Section 41
prescribes the penalties if the Muttawallis fail to carry out any of
the duties laid down there-in, including failure to apply for
registration.
27. From a careful reading of the definition of “Wakf”, as
provided by the different statutes referred to above, it is apparent
that a “Wakf-alal-aulad” is a permanent dedication of the property
for purposes recognized by Muslim Law, i.e., pious, religious or
charitable. However, under the Act of 1913, “Wakf-alal-aulad” can
also be created for the maintenance of the Wakif, the families and
the decedents. By creating a Wakf, the property involved therein is
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permanently, irrevocably and inalienably turned into a corpus
property, the ownership of which, by the fiction of Islamic Law,
vests with the God Almighty.
28. In the present case, there is no dispute about the fact that
the suit property forms part of the Wakf-alal-aulad created by Mr
Khan Bahadur Haji Shaikh Meherbaksh on 19th January 1926,
exclusively for the benefit of his wives and children. It was only
once the line of succession in the family stood obliterated that the
usufruct of the Wakf property was to be utilized for religious,
pious and charitable purposes.
29. As has been note above, the Act of 1913 is only a validating
enactment which did not contain specific provisions for
administering the Wakfs. The statutory framework for laying down
a mechanism for administrative oversight of the Wakfs in India,
has been provided only in the Act of 1954 which, by virtue of
Section 2, would have retrospective application on all Wakfs
created even before the commencement of the Act. As per Section
25 of the Act of 1954, all Wakfs would have to be registered.
However, the consequences for non-registration as provided in
Section 41, do not include invalidation of the Wakf itself.
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Therefore, even though Mr. Narula has argued that the Wakf in
question was registered, even assuming that it was not, even then,
non-registration of the Wakf by itself, would not denude it of its
legitimacy even though the same might have certain other adverse
consequences visiting the Muttawallis. Since, we are not
concerned in this proceeding with the question of validity of
conveyance of the title on the Wakf property to the Writ
Petitioners, it would not be necessary for this Court to record any
further observation in this regard, in this Judgment. Suffice it to
mention here-in that there is nothing on record to show that the
Writ Petitioner did not acquire valid title over the Wakf property,
being the purchasers for valuable consideration.
30. Having held as above, we would now deal with the next
issue, which is pertaining to the plea of automatic vesting of the
Wakf property on the Custodian, as raised by the learned counsel
for the Respondent No 3.
31. On the out-break of the Sino-Indian War, in exercise of
powers conferred under clause (1) of Article 352 of the
Constitution of India, the President of India had issued
Proclamation of Emergency on 26th October,1962 on the ground of
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grave threat to the security of India due to external aggression.
Following the Proclamation of Emergency, The Defence of India
Act,1962 (for short ‘Act of 1962’) was enacted by the Parliament,
which received the assent of the President on 12 th December,1962.
The object clause of the Act of 1962 provides that it was an
enactment aimed at providing for special measures so as to ensure
the public safety and interest, the defence of India and civil
defence and for trial of certain offences and for matters connected
there with.
32. The Act of 1962 provided certain extra-ordinary powers to
the Central Government to over ride any ordinary statute or
constitutional protection in the interest of national security.
Section 3 of the Act of 1962 provided very wide Rule making
powers to the Central Government to make such rules as may
appear to be necessary or expedient for securing the defence of
India and civil defence, the public safety, maintenance of public
order or efficient conduct of military operations or for maintaining
supplies and services essential to the life of the community. In
exercise of powers under section 3, the Central Government had
framed and promulgated the Defence of India, Rules 1962. Rule
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133-V of the Rules of 1962, which deals with Collection of debts of
enemy firm and custody of property reads as follows:-
“133-V. Collection of debts of enemy firm and custody of
property.—(1) With a view to preventing the payment of
moneys to an enemy firm and preserving enemy property, the
Central Government may appoint a Custodian of Enemy
Property for India and one or more Deputy Custodians and
Assistant Custodians of Enemy Property for such local areas as
may be prescribed and may by order:
(a) require the payment to the prescribed custodian of money
which would but for these rules be payable to or for the
benefit of an enemy firm; or which would but for the
provisions of Rule 133-Q and Rule 133-T be payable to any
other person and upon such payment the said money shall
be deemed to be property vested in the prescribed
custodian;
(b) vest, or provide for and regulate the vesting, in the
prescribed custodian such enemy property as may be
prescribed;
(c) vest in the prescribed custodian the right to transfer such
other enemy property as may be prescribed, being enemy
property which has not been, and is not required by the
order to be, vested in the custodian;
(d) confer and impose on the custodian and on any other
person such rights, powers, duties and liabilities as may be
prescribed as respects-
(i) property which has been or is required to be, vested in a
custodian by or under the order,
(ii) property of which the right of transfer has been, or is
required to be, so vested,
(iii) any other enemy property which has not been, and is not
required to be, so vested,
(iv) money which has been, or is by the order required to be,
paid to a custodian;
(e) require the payment of the prescribed fees to the custodian
in respect of such matters as may be prescribed and
regulate the collection of and accounting for such fees;
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(f) require any person to furnish to the custodian such
returns, accounts and other information and to produce
such documents, as the custodian considers necessary for
the discharge of his functions under the order;
and any such order may contain such incidental and
supplementary provisions as appear to the Central
Government to be necessary or expedient for the purposes
of the order.
(2) Where any order with respect to any money or property is
addressed to any person by a custodian and accompanied
by a certificate of the custodian that the money or property
is money or property to which an order under sub-rule (1)
applies, the certificate shall be evidence of the facts stated
therein, and if that person complies with the order of the
custodian, he shall not be liable to any suit or other legal
proceeding by reason only of such compliance.
(3) Where, in pursuance of an order made under sub-rule (1)-
(a) any money is paid to a custodian, or
(b) any property, or the right to transfer any property, is vested
in a custodian, or
(c) an order is given to any person by a custodian in relation
to any property which appears to the custodian to be
property to which the order under sub-rule (1) applies,
neither the payment vesting nor order of the custodian nor
any proceedings in consequence thereof shall be
invalidated or affected by reason only that at a material
time-
(i) some person who was or might have been interested in the
money or property, and who was an enemy firm, had died
or had ceased to be an enemy firm, or
(ii) some person who was so interested and who was believed
by the custodian to be an enemy firm, was not an enemy
firm.
(4) In sub-rules (1), (2) and (3), the expression “custodian”
includes a Deputy Custodian of Enemy Property and an
Assistant Custodian of Enemy Property and every reference
to an enemy firm shall be construed as including a
reference to a person who is an enemy as defined in Rule
133-A.
(5) Where in pursuance of an order made under sub-rule (1)
the assets of a company are vested in the custodian, no
proceedings, civil or criminal, shall be instituted under the
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Companies Act, 1956, against the company or any director,
manager; or other officer thereof except with the consent
in writing of the custodian.
(6) If any person pays any debt or deals, with any property to
which any order under sub-rule (1) applies otherwise than
in accordance with the provisions of the order, he shall be
punishable with imprisonment for a term which may
extend to six months, or with fine, or with both and the
payment or dealing shall be void.
(7) If any person without reasonable cause fails to produce or
furnish in accordance with the requirements of an order
under sub-rule (1) any document or information which he
is required under the order to produce or furnish, he shall
be punishable with imprisonment for a term which may
extend to six months, or with fine, or with both. and any
such order may contain such incidental and supplementary
provisions as appear to the Central Government to be
necessary or expedient for the purposes of the order.”
33. Consequent upon the Chinese aggression that took place in
the year 1962, the immovable properties and cash in balance
belonging to the Chinese Nationals in India were vested in the
Custodian of Enemy Property for India appointed under the
Defence of India Rules, 1962. Likewise, after the aggression by
Pakistan in the year 1965, immovable and other specified movable
properties of Pakistani Nationals situated in India were also vested
in the Custodian of Enemy Property. These vestments were
evidently made under the powers derived under Rule 133-V of the
Defence of India Rules, 1962 permitting administration of such
property by the Custodian of Enemy Property in India in
accordance with the provisions of the Rules of 1962.
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34. The proclamation of emergency was revoked with effect
from 10th January 1968. As result of the same, the Defence of
India Act, 1962 and the Rules framed thereunder were to remain
in force only for a period of six months, i.e, upto 10 th July 1968.
As such, in order to bring in fresh legal authority for
administration of properties belonging to the Chinese and
Pakistani Nationals with effect from 10th July 1968 and for
management of such properties by the Custodian of Enemy
Property for India. “The Enemy Property Ordinance, 1968” (7 of
1968) was promulgated by the President on 6 th July 1968. The
Ordinance was later replaced by Enemy Property Act, 1968. The
dominant purpose of the Enemy Property Act, 1968 (hereinafter
referred to as the Act of 1968) was to continue with the vesting of
Enemy Property on the Custodian.
35. As per Section 5 of the Act of 1968, notwithstanding the
expiration of the Defence of India Act, 1962 and the Defence of
India Rules, 1962, all Enemy Property vested on the Custodian of
Enemy Property for India, before such expiration, under the said
Rules, would continue to vest in him immediately as from the
commencement of the Act. Therefore, the Act of 1968 provided
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the legal framework for continuing the vesting of enemy property
on the Custodian even after the expiration of the Act and the Rules
of 1962.
36. As noted above, the Defence of India Act, 1962 was a
temporary statute which was to remain in force during the period
of emergency proclaimed on 26th October, 1962. In view of the out
break of the 1971 Indo-Pak war and the subsequent proclamation
of emergency on 3rd December, 1971, the Parliament had enacted
the Defence of India Act, 1972 with similar object. The Defence of
India Rules, 1971 framed there under, also contained substantially
similar provisions, as the Rules of 1962, thus continuing with the
same policy as regards enemy property. However, the legal
landscape of the statutory frame work for dealing with enemy
property was laid down by the Act of 1968.
37. Section 2(b) of the Act of 1968 defines “Enemy” or “Enemy
Subject” which read as follows:
“2(b) “enemy” or “enemy subject” or “enemy firm” means a
person or country who or which was an enemy, [an enemy
subject including his legal heir and successor whether or not
a citizen of India or the citizen of a country which is not an
enemy or the enemy, enemy subject or his legal heir and
successor who has changed his nationality] or [an enemy
firm, including its succeeding firm whether or not partners
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or members of such succeeding firm are citizen of India or
the citizen of a country which is not an enemy or such firm
which has changed its nationality], as the case may be,
under the Defence of India Act, 1962 (51 of 1962), and the
Defence of India Rules, 1962 [or the Defence of India Act,
1971 (42 of 1971) and the Defence of India Rules, 1971, but
does not include a citizen of India other than those citizens
of India, being the legal heir and successor of the "enemy" or
“enemy subject” or “enemy firm”.
Explanation 1.—For the purposes of this clause, the
expression "does not include a citizen of India" shall exclude
and shall always be deemed to have been excluded those
citizens of India, who are or have been the legal heir and
successor of an "enemy" or an "enemy subject" or an "enemy
firm" which or who has ceased to be an enemy due to death,
extinction, winding up of business or change of nationality
or that the legal heir and successor is a citizen of India or the
citizen of a country which is not an enemy.
Explanation 2.—For the purposes of this clause, it is
hereby clarified that nothing contained in this Act shall affect
any right of the legal heir and successor referred to in this
clause (not being inconsistent to the provisions of this Act)
which have been conferred upon him under any other law
for the time being in force.”
38. 2(c) defines “Enemy Property”, which reads 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, [or dies in any
territory outside India], 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;
Explanation 1.—For the purposes of this clause, it is
hereby clarified that "Enemy Property" shall, notwithstanding
that the enemy or the enemy subject or the enemy firm has
ceased to be an enemy due to death, extinction, winding up of
business or change of nationality or that the legal heir and
successor is a citizen of India or the citizen of a country which
is not an enemy, continue and always be deemed to be
continued as an Enemy Property.
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Explanation 2.—For the purposes of this clause, the
expression "Enemy Property" shall mean and include and shall
be deemed to have always meant and included all rights, titles
and interest in, or any benefit arising out of, such property.”
39. By the Enemy Property (Amendment and Validation)
Act,2017 (here-in-after referred to as the ‘Act of 2017’), significant
amendments were carried out in the Act of 1968 including
amendments in Sections 5, 6, 8, 17, 18, 20, 22 and 23. Several
new provisions such as Sections 5A, 5B, 18A, 18B, 18C and 22
were also inserted. The amended provision of Section 5(3)
provides that the enemy property vested in the Custodian shall,
notwithstanding that the enemy or enemy subject or enemy firm
has ceased to be an enemy due to death, extinction, winding up of
business or change of nationality or that the legal heir or successor
is a citizen of India or the citizen of a country which is not an
enemy, continue to remain, save as otherwise provided in the Act,
vested in the custodian.
40. Section 5A of the Act of 1968 inserted by the Act of 2017
provides for issuance of Certificate by the Custodian which reads
as follows:-
“5A. Issue of certificate by Custodian. —The Custodian may,
after making such inquiry as he deems necessary, by order,
declare that the property of the enemy or the enemy subject or
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the enemy firm described in the order, vests in him under this
Act and issue a certificate to this effect and such certificate
shall be the evidence of the facts stated therein.”
41. From the scheme of the Defence of India Act, 1962, Defence
of India Rules, 1962, the Defence of India Rules, 1971 as well as
the Act of 1968, it is apparent is that the Act and Rules of 1962
and 1971 were emergency and/or war time legislation which were
framed with the specific purpose of preventing the properties in
India belonging to the enemy, viz., the Nationals of China and
Pakistan, from being funneled out of India and also to prevent any
influence or economic exploitation of such property by the enemy
subject. As noted above, the Act of 1968 was enacted with the
objective of continuing with the vesting of enemy property, which
had vested in the Custodian under any notification or order issued
by the Central Government under the Rules of 1962.
42. From a careful examination of the scheme of the Act of
1962, Act of 1971, the Act of 1968, and the Rules framed
thereunder, it is apparent that the law envisages two different
modes of vesting of enemy property on the Custodian. Firstly, by
means of an order or notification issued by the Central
Government published in the Official Gazette, vesting the specific
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property on the Custodian of enemy property appointed under the
Rules of 1962 or the Rules of 1971. If such a notification is issued
under the provisions of the Rules of 1962 or the Rules of 1971
vesting the enemy property on the Custodian, such vesting will
continue under the Act of 1968 by virtue of section 5 of the Act.
Secondly, by making a declaration to such effect by the Custodian,
upon verification of the fact that the property is an enemy
property within the meaning of Section 2(c) or if the same belongs
to “Enemy” or “Enemy Subject” or “Enemy Firm” as described in
Section 2(b) of the Act. In such a case, once the jurisdictional
facts, as noted above, are established, the vesting would be by
operation of law.
43. We are in agreement with the submission of Mr. Chavan
that, even without a notification or order issued by the Central
Government, specifically vesting the enemy property on the
Custodian, there could be statutory vesting of the enemy property
on the Custodian simply by operation of law. However, such
vesting would be contingent upon fulfillment of the requirements
of the statue. In those cases, the statue would be triggered only
when the conditions laid down under Sections 2(b) and 2(c) of
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the Act of 1968 are satisfied and not otherwise. It would,
therefore, be incumbent upon the Custodian to make necessary
inquiry and satisfy himself that the property in question is in fact
an enemy property within the meaning of the Act of 1968.
Therefore, even in case of statutory or automatic vesting of enemy
property, by operation of law, such vesting would take effect only
after a declaration is made to such effect upon the necessary
verification and/or inquiry being conducted by the Custodian so as
to record a prima facie satisfaction that the property in question is
enemy property.
44. It would be significant to note herein that Section 5 of the
Act of 1968 contains provisions for continuation of vesting of the
enemy property on the Custodian. Such continuance of vesting
would obviously apply to only those enemy properties, the vesting
of which on the Custodian took place under the Rules of 1962 or
the Rules of 1971. The Act is, however, silent as regards the
procedure of vesting of enemy property on the Custodian under
the Act of 1968, which is independent of the Rules of 1962 and
Rules of 1971. By inserting Section 5A by the Act of 2017
provision has been made for issuance of certificate by the
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Custodian. Such certificate shall be the evidence of vesting of the
enemy property on the Custodian. However, there is no mention in
the Act as to in what manner, an inquiry is to be made or the
procedure to be followed by the Custodian so as to declare the
property as enemy property.
45. What must, however, be borne in mind that even in the
absence of any procedure prescribed by law, the Custodian will
have to scrupulously adhere to the principles of natural justice and
give proper opportunity of being heard to the affected party before
initiating any action in respect of a property in possession of a
party by treating the same as enemy property. In other words, the
requirement of adherence to the principles of natural justice by
the Custodian before declaring or treating any property as enemy
property upon the custodian must be treated to be an inbuilt
requirement of the provisions of the Act of 1968 since, such action
of the Custodian will have adverse Civil consequences on the
owner/possessor of the property. Therefore, in the absence of any
Notification issued by the Central Government specifically vesting
the property on the Custodian by declaring the same as Enemy
Property, property held by any person or institution cannot be
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encumbered by treating the same as Enemy Property based on
mere ipse dixit of the Custodian, that too, by issuing ex-parte
orders/directions.
46. Section 23 of the Act of 1968 provides Rule making power
to the Government. In exercise of powers conferred under section
23, ‘The Enemy Property Rules, 2015 (here-in-after referred to as
Rules of 2015) have been framed, which was published in the
official gazette on 19th March 2015. These Rules prescribes the
procedure for vesting of enemy property in the Custodian under
the Act of 1968. Rule 3, which deals with the procedure for
identification of immovable property, is reproduced here-in-below
for ready reference :-
“3. Procedure for identification of immovable property.-(1) The
Custodian may seek assistance of the District Authority for
examination of the tehsil-wise or block-wise revenue records for
the purposes of identifying any immovable property belonging
to or held in the name of an ["enemy" or "enemy subject" or
"enemy firm"].
(2) The concerned District Authority shall on identifying any
immovable property belonging to or held [by the enemy or
enemy subject or enemy firm], forward to the Custodian the
complete details of such enemy property [and the name and
address and other particulars of the person who is in possession
of such property or the name of the occupier or manager or
agent of the owner].
(3) If the District Authority receives any information or
complaint from any person or from any source in respect of an
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enemy property, he shall forward such information or complaint
to the Custodian along with details referred to in sub-rule (2).
(4) The Custodian may direct the District Authority in which
the enemy property is located, to carry out physical inspection
or verification of the enemy property for obtaining the
information as specified by the Custodian.
(5) On receipt of the direction from the Custodian under sub-
rule (4), the District Authority shall check the relevant revenue
or municipal or police records to verify the location or area and
other details of the enemy property and conduct survey for
obtaining the information as specified by the Custodian.
[(5-A) Without prejudice to the provisions contained in this
rule, the District Authority shall take all such steps as may be
necessary for the purpose of identification of the enemy
property.]
(6) The District Authority or any person authorised by the
Custodian shall prepare a detailed report of all cases identified
as enemy property and shall submit the same to the Custodian
along with his comments thereon.]
… … ...
(14) All properties under examination and in the process of
identification or verification shall be considered as Process Case
and details of such cases shall be recorded in Annexure-I till its
declaration.
(15) The Custodian shall maintain a register containing the
properties identified as enemy properties and place the same in
public domain and also exhibit the same on the website of the
office of the Custodian.”
47. Rule 4 prescribes the procedure for declaration of vesting of
enemy property which reads as follows:-
“4. Procedure for declaration and vesting of the enemy
property.-[(1) On receipt of the report under sub-rule (6) of
Rule 3 or any other evidence, the Custodian shall examine
and cause further inquiry, if considered necessary.
(1-A) On obtaining the required information referred to in
sub-rule (5) of Rule 3 and on being satisfied that the
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property or interest therein is prima facie enemy property,
the Custodian shall serve or cause a notice to be served in
Form 1, on the person claiming title to such property or
interest and on any other person or persons whom he
considers to be interested in the property.
(1-B)(a) The notice referred to in sub-rule (1-A) shall be
served personally to the person concerned or to his manager,
or to other members of his family; or be sent through
registered post; or affix it on some conspicuous part of the
premises concerned of the enemy property or at the last
known place of the business of the person concerned and
may also be sent electronically.
(b) The Dasti service of notice through police may be
resorted only in the case of persistent non-compliance of the
notice.
(1-C) Where a notice has been duly served, the person or
persons concerned shall be called upon to show cause as to
why the subject property should not be declared as an
enemy property.
(1-D) Any other person or persons claiming to be interested
in the proceedings relating to enemy property, may file an
application before the Custodian who shall then proceed
further to inquire under Section 5-A of the Act and hear the
applicant himself or cause the same to be heard by his
authorised representatives.
(1-E) The Custodian shall give sufficient opportunity to the
noticees and if the noticees fail to appear on the dates fixed
for hearing even after giving reasonable opportunity, the
Custodian may proceed further to hear the matter ex-parte
and declare the property as enemy property under Section 5-
A of the Act.
(1-F) The Custodian may, after making such inquiry as he
deems necessary, by order, declare that the property of the
enemy or the enemy subject or the enemy firm described in
the order, vests in him under Section 5-A of the Act and issue
a certificate in Form 2 to this effect and such certificate shall
be the evidence of the facts stated therein.
(1-G) After issue of the order under sub-rule (1-F), the
Custodian shall issue an authorisation in Form 3, authorising
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the District Authority to take over the said enemy property
immediately on his behalf.]
(2) … … ...
(3) On receipt of the authorisation order from the
Custodian under sub-rule (2), the District Authority shall
proceed further to take control over the management of the
enemy property and shall initiate action for recovery of
arrears or dues recoverable from the occupier of the vested
property and a notice in Form 4 shall be affixed over the
property declaring the said property as vested with the
Custodian.
(4) The District Authority shall prepare a list of the
22[vested immovable enemy property] pertaining to his
district in the format given in Annexure II and a copy of the
same shall be sent to the Custodian.”
48. Rule 5 of the Rules of 2015 prescribes as follows :-
“5. Procedure for preservation, management and control of
[immovable enemy property].-(1) Where any [vested
immovable enemy property in respect of which no income is
received] by the Custodian, is under occupation of a person or
persons or a company, the Custodian may serve a notice
directing them to enter into an agreement with the Custodian
in Form 5 and such occupant or occupants or the company,
shall pay all arrears as may be determined by the District
authority with effect from the date of occupation of the
property or the date of vesting, whichever is earlier:
Provided that where the occupant of the [vested immovable
enemy property] is unwilling to enter into an agreement, the
Custodian may initiate process for the eviction of the occupant
and take control over the property in accordance and in the
manner provided [under the Act and the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 and the rules
made thereunder]:
Provided further that where the share of the enemy in such
property exceeds one-half of the [whole immovable enemy
property], the control over the whole property may be taken
over by the Custodian.
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[(1-A) The lease, leave and licence agreement, or tenancy or
occupancy of the enemy property shall not be transferable by
the tenant, lessee or licensee, as the case may be.
(1-B) The provisions of entering into a leave and licence
agreement under sub-rule (1) or payment of rent, standard
rent, lease rent, licence fee or usage charges, as the case may
be, by any occupant shall not confer a perpetual right to
continue as a tenant, lessee or licensee, as the case may be.
(2) Where [the vested immovable enemy property] is jointly
owned by an enemy and an Indian National or is an undivided
share in joint property, the income and expenses in respect of
such property shall be apportioned for its preservation,
management and control.
(3) All [vested enemy property] which is unoccupied at the
time of taking over of control by the Custodian or has become
vacant due to eviction under 31 [these rules] shall be leased
out through open auction to the highest bidder.
(4) The Custodian shall prepare a list of all enemy properties
out of which any income is received or receivable, in Annexure
III which shall be reviewed and updated from time to time.
Explanation. For the purposes of this rule, "date of vesting"
means the date of vesting of any property declared as enemy
property in the Custodian which shall be with effect from 10th
September, 1965, as notified under the notification of the
Government of India in the Ministry of Commerce number
12/2/65-E.Pty. dated the 10th September, 1965.”
49. Rule 6 lays down the procedure for taking over possession
of movable enemy property whereas, Rule 9 enjoins a duty upon
the Custodian to prepare inventory of immovable enemy property,
the details whereof, is required to be published in the website so
as to put it in the public domain.
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50. A conjoint reading of the relevant provisions of the Rules of
2015 shows that the said rules lay down the operational
mechanics for identification and verification of enemy property.
On being prima facie satisfied that the property or the interest of
any person therein is in enemy property and/or is an enemy
subject, as the case may be, by following the procedure prescribed
under Rule 3, the Custodian will have to serve notice under Rule 4
(1-A) upon the person claiming title or interest to such property.
Upon completion of the above process, a certificate under Section
5A of the Act of 1968 can be issued. It is only after the aforesaid
procedure is completed culminating in the issuance of a Certificate
under section 5A that the Custodian can issue instructions to the
Collector for making mutation entry in the revenue record
showing it as an enemy property and not otherwise.
51. By interpreting the provision of the Rules of 2015, a
Division Bench of this Court, in the case of Lotus Classique
Housing Society Vs. Union of India (Supra), has categorically held
that upon identifying the immovable property belonging to or held
by an enemy or enemy subject, complete details of the property
must be forwarded to the Custodian who shall, upon being
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satisfied that the property is Enemy Property, serve notice and give
sufficient opportunity to the person concerned to show cause
before issuing any declaration under the statute. The relevant
observations made in the case of Lotus Classique Housing Society
Vs. Union of India (Supra) in paragraph 15 are reproduced
hereinbelow for ready reference:-
“15. In order to declare certain property to be Enemy
Property, the procedure prescribed under the Enemy
Property Rules, 2015, contemplate the process of
identification of the immovable property belonging to or
held in the name of 'enemy or enemy subject or enemy firm.’
Upon identifying any immovable property belonging
to or held by the enemy or enemy subject or enemy firm, the
District Authority is duty bound to forward the same to the
Custodian, the complete details of such property and also
particulars of the persons who is in possession of such
property or the name of the occupants or manager or agent
of the owner. The Custodian may then direct the District
Authority in which the Enemy Property is located, to carry
out physical inspection or verification of the property for
obtaining the information as specified by the Custodian.
Upon receipt of the report from the District Authority
or any other evidence and on obtaining the required
information and being satisfied that the property or interest
therein is, prima facie, Enemy Property, the Custodian shall
serve or cause a notice to be served in Form-1 on the person
claiming title to such property or interest or any other person
or persons who will be interested in the property.
Where a notice has been duly served, the person or
persons concerned shall be called upon to show cause as to
why the subject property should not be declared as Enemy
Property and the Custodian is duty bound to give sufficient
opportunity to the noticees as a part of the inquiry, before he
declares the property as 'Enemy Property’.
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The Rules of 2015 also set out the procedure for
preservation, management and control of immovable Enemy
Property and this shall include preparation of inventory as
well as conduct of internal audit, etc.
The Enemy Act read with the Rules therefore is a
complete code prescribing identification of Enemy Property.”
52. In Neelkamal Realtors Suburban Pvt. Ltd. Vs. Office of CEPI
(Supra) relied upon by Mr Narula, another Division Bench of this
court has held that under the Defence of India Acts and Rules as
well as the Act of 1968, the Custodian does not have any power to
issue directions restraining transfer of certain properties or for
stopping of construction unless the Enemy Property has already
vested in him and has been declared as such under Section 5A.
53. Coming to the facts of this case, as noted above, there is no
controversy in this proceedings about the fact that by the Wakf
Deed dated 19th January 1926, KBHS Meherbaksh had created a
‘Wakf-al-aulad’ for the benefit of his family members and
descendants. The suit property forms a part of the “Wakf”. With
the creation of the Wakf, the property stood inalienably and
irrevocably dedicated to the Almighty. Even assuming that such
dedication to the Almighty is just nominal with there being no
realistic basis for the same, even then, unless it is shown that the
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owners of the Wakf property or any one or more of them or the
Managers of the property or the Mutawallis were or/are Pakistani
Nationals and therefore, enemy subject under the Act of 1968, the
property can neither be treated an enemy property nor can it vest
on the Custodian. In such circumstances, the question of
automatic vesting of the property will also not arise.
54. It is no doubt correct that there were some beneficiaries of
the Wakf including Nabilla who were Pakistani Nationals.
However, the custody of the beneficial interest of such Pakistani
Nationals including Nabilla in the Wakf property had already been
taken over by the Custodian pursuant whereto, a NOC regarding
the Wakf property, had also been issued by the Custodian. There is
nothing to show that Nabilla or any other member of her family
being a Pakistani national, continued to derive benefits from the
Wakf property in any manner. It is not the case of the Respondents
that any other owner of the Wakf property or the Muttawallis,
were nationals of enemy country, i.e., in this case, Pakistan. There
is also no Notification issued by the Central Government notifying
the vesting of the Wakf property or any part thereof, upon the
Custodian of Enemy Property, i.e., the Respondent No. 3.
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55. It is the admitted position of fact that the Notice dated 10 th
March 2004 was issued on the basis of some complaint received
by the authorities that the Wakf property was enemy property. The
Certificate dated 5th April 2004 was also issued on the basis of
such notice. However, the notice dated 10th March 2004 as well as
the Certificate dated 5th April 2004 were subsequently un-
conditionally withdrawn by the Custodian himself. Thereafter, no
further order or notifications had been issued by competent
authority vesting the Wakf property on the custodian.
56. In the above context, it would be pertinent to mention
herein that the claim of the Custodian over the property in
question by treating it as enemy property was finally put to rest on
the basis of a consent order dated 14 th December, 2007 passed by
the Division Bench of this Court. A perusal of the consent order
dated 14th December 2007 passed in Writ Petition No. 1296 of
2004 would go to show that, by consent, the Custodian had
voluntarily withdrawn the Notice dated 10 th March 2004 as well
as the Certificate dated 5th April 2004 issued by him. The
Custodian had also agreed to issue a communication for deletion
of adverse endorsements made in respect of Wakf property. The
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order dated 14th December 2007, along with the Consent Terms,
are significant for the purpose of this case and, therefore, are
being reproduced hereinbelow:-
“Learned counsel appearing for the parties have filed in
Court today consent terms. It is stated at the Bar that the
petition can be disposed of in terms of the consent terms
which may be directed to form part of this order. Consent
terms is taken on record and marked `X' for identification.
Petition is disposed of in terms of the consent terms.
Parties agree to act as per the consent terms. Parties to bear
their own costs.”
“CONSENT TERMS
1. Agreed, declared and confirmed that by and under
letter dated 26th November 2007, the Respondent No.2
(Custodian of Enemy Property) has conveyed their No
Objection to the Wakf releasing Wakf's properties from all
their claims or beneficial interest on behalf of all the
Pakistani nationals subject to conditions enumerated therein.
Further agreed and confirmed that in view of the said letter
conveying NOC issued by Respondent No.2, the Notice dated
10th March 2004 (Exhibit G to the Petition) and impugned
letter dated 5th April 2004 issued under Section 8 of the
Enemy Property Act, 1968 and Certificate dated 5th April
2004 issued under Section 12 of the Enemy Property Act,
1968 (Exhibits W, X and Y to the Petition) are withdrawn. A
copy of the said letter dated 26 th November 2007 is annexed
herein and marked as Annexure “A”
2. Agreed, declared and confirmed that the properties
enumerated in Annexure “A” hereto being the properties
described in Exhibit "G" to the Petition are belonging to the
Wakf and are not enemy properties. Further agreed, declared
and confirmed that the Custodian of Enemy Property namely
the Respondent No.2 has no right, title, interest or claim in
respect thereof.
3. Further agreed, declared and confirmed that the
Petitioners have deposited a sum of Rs.1,25,000/- (Rupees
One lakh twenty five thousand only) in Suit No.250 of 1984
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towards the share of Nabila Begum & Others, who were
beneficiaries of the said Wakf and some of them were
Pakistani nationals. The Petitioners shall make an
Application before the Hon'ble High Court for release of the
said amount of Rs.1,25,000/- alongwith accrued interest
thereon till date to the Respondent No.2 being the full and
final share of the Pakistani nationals.
4. The Respondent No.2 shall address a letter for
deletion of the endorsements made by the Collector of
Mumbai in respect of some of the properties of the Wakf in
the Property Register Cards and/or other revenue records'
and to delete the name of Custodian therefrom.
5. By consent, the. Petition is disposed off in the terms
aforesaid, with no order as to costs.”
57. Record reveals that the Consent Terms filed in Writ Petition
No. 1296 of 2004 was not based on the decision of the Custodian
alone but the stand taken therein was based on proper
consultation with Ministry of Law and Justice, Department of
Legal Affairs, Branch Secretariat, Mumbai which is apparent from
a bare perusal of the communication dated 7th December 2007
issued by the Custodian to his Advocate. In the said
communication, it has been categorically mentioned that in view
of the judicial pronouncements, the vesting of properties
belonging to Meherbaksh Wakf may not stand legal scrutiny and,
therefore, the continued litigation will only cost the government in
terms of time and money. Therefore, it would be prudent for his
office to agree to issue a “No Objection Certificate” to the Wakf in
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respect of any claim, right or interest in the beneficial interest in
the property belonging to the Wakf. Based on such written
communication, the Consent Terms were prepared and filed in
Writ Petition No. 1296 of 2004 which forms part of the order
dated 14th December 2007.
58. There is no change in the circumstances since the consent
order dated 14th December 2007 was passed by the Division
Bench. There is also no application filed by the Respondent Nos.
2/3 seeking review and/or modification of order dated 14 th
December 2007. There is no fresh declaration or certificate issued
by the Custodian under Section 5A of the Act of 1968.
Notwithstanding the same, an inquiry was made in the year 2019,
which was followed by the impugned order dated 28 th December
2021 encumbering the property purchased by the Petitioner (suit
property) by showing it as Enemy Property. Such action on the
part of the Respondents, in our view, is only ex facie in complete
contravention of the scheme of Rules of 1962 as well as the Act of
1968 and the Rules framed thereunder but also in flagrant
violation of the consent order dated 14th December 2007 passed
by the Division Bench of the Bombay High Court.
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59. In the above context, it would be significant to note herein
that by the Act of 2017, Section 22 A was inserted in the statute,
which reads as follows:-
“22A- Validation.—Notwithstanding anything contained in
any judgment, decree or order of any court, tribunal or other
authority,—
(a) the provisions of this Act, as amended by the
Enemy Property (Amendment and Validation) Act, 2017,
shall have and shall always be deemed to have effect for all
purposes as if the provisions of this Act, as amended by the
said Act, had been in force at all material times;
(b) any Enemy Property divested from the Custodian
to any person under the provisions of this Act, as it stood
immediately before the commencement of the Enemy
Property (Amendment and Validation) Act, 2017, shall stand
transferred to and vest or continue to vest, free from all
encumbrances, in the Custodian in the same manner as it
was vested in the Custodian before such divesting of Enemy
Property under the provisions of this Act, as if the provisions
of this Act, as amended by the aforesaid Act, were in force at
all material times;
(c) no suit or other proceedings shall, without
prejudice to the generality of the foregoing provisions, be
maintained or continued in any court or tribunal or authority
for the enforcement of any decree or order or direction given
by such court or tribunal or authority directing divestment of
Enemy Property from the Custodian vested in him under
section 5 of this Act, as it stood before the commencement of
the Enemy Property (Amendment and Validation) Act, 2017,
and such Enemy Property shall continue to vest in the
Custodian under section 5 of this Act, as amended by the
aforesaid Act, as the said section, as amended by the
aforesaid Act was in force at all material times;
(d) any transfer of any Enemy Property, vested in the
Custodian, by virtue of any order of attachment, seizure or
sale in execution of decree of a civil court or orders of any
tribunal or other authority in respect of Enemy Property
vested in the Custodian which is contrary to the provisions of
this Act, as amended by the Enemy Property (Amendment
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and Validation) Act, 2017, shall be deemed to be null and
void and notwithstanding such transfer, continue to vest in
the Custodian under this Act.”
60. By placing heavy reliance on Section 22A(b) which projects
overriding effect of the statutory provision over any Judgment,
Decree or Order of any Court or Tribunal, the learned counsel for
the Respondent No 3 had submitted that notwithstanding the
order dated 14th December 2007, the property in question would
continue to vest on the Custodian. We are unable to countenance
such argument of the learned counsel for Respondent No. 3
primarily for two reasons. Firstly, as noted above, there has never
been any valid vesting of the subject property on the Custodian.
Therefore, the question of the Custodian being divested from the
property also does not arise. Under such circumstances, Section
22A(b), in our opinion, would not have any application in the
facts and circumstances of the case.
61. Secondly, the order dated 14th December 2007 is a consent
order passed by the High Court in a writ petition in exercise of
extra-ordinary jurisdiction under Article 226 of the Constitution of
India. Such order was passed on a concession made by the
Respondent No. 3 upon due consultation with the concerned
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Ministry. By the order dated 14th December 2007, the Respondent
No. 3 had given up all claims over the property by issuing an NOC.
Therefore, it is not a case where the Custodian has been divested
of the property on the basis of any Judgment, Decree or Order of
the Court or Tribunal, so as to attract Section 22A(b) of the Act.
62. The expressions ‘judgment’ ‘decree’ or ‘order’ of a ‘court’ or
‘tribunal’ in Section 22A cannot be interpreted to include a
judgment or order passed by the High court in exercise of writ
jurisdiction under Article 226. The power of the High Court in
exercise of writ jurisdiction cannot be circumscribed or excluded
by statute. [see- Maharashtra Chess Association vs Union of India–
(2020) 13 SCC 285]. Therefore, Section 22A(b) of the Act, in our
opinion, cannot have the effect of wiping out or nullifying the
order of the High Court passed in exercise of writ jurisdiction,
based on a provision in the statute, that too with retrospective
effect.
63. While dealing with an issue of similar nature involving pre-
amended provisions of Sections 6, 8, 13 and 18 of the Enemy
Property Act, 1968, the Hon’ble Supreme Court, in the case of
Union of India & Anr. Vs. Raja Mohammed Amir Mohammad Khan
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(Supra) relied upon by Mr Narula, has held that under the Enemy
Property Act, the title of the property of an enemy does not vest in
the Custodian. The Custodian merely takes over the Enemy
Property only for the purpose of possession, control and
management. However, the said decision was rendered by
interpreting the law, as it stood, prior to amendments carried out
to Sections 5, 6 of the Act of 1968.
64. It will be pertinent to note herein that the Act of 2017 had
inserted Section 5(3), which provides that the property once
vested on the Custodian shall continue to vest notwithstanding the
fact that the “Enemy” or “Enemy Subject” or “Enemy Firm” has
ceased to be an enemy due to death, extinction, winding up of
business or change of nationality. Likewise, by carrying out
amendment to section 6, it has been provided that no “Enemy” or
“Enemy Subject” or “Enemy Firm” shall ever have any right and
shall never be deemed to have any right to transfer any property
vested in the Custodian and the property deemed to have been
vested in the Custodian shall, notwithstanding anything contained
in any Judgment, Decree or Order of any Court, Tribunal, continue
to vest or deemed to have been vested on the Custodian and no
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person shall have any right including rights, titles and interests or
any benefits arising out of such property vested or deemed to have
been vested on the Custodian.
65. In view of the aforesaid amendments carried out to Sections
5 and 6 of the Act of 1968, which took effect from 7 th January
2016, the very basis of the Judgment rendered in the case of
Union of India & Anr. Vs. Raja Mohammed Amir Mohammad Khan
(Supra) stood altered. Therefore, the ratio laid down in the said
decision, in our opinion, would not have been any bearing on the
facts and circumstances of the present case.
66. In the decision of the learned Single Judge of the Kerala
High Court dated 9th November 2021 relied upon by Mr Chavan,
there was evidence to show that the property in question
originally belonged to one Mr. Moosa who was a Pakistani
National, holding a Pakistani Passport. There was no specific
denial by the Writ Petitioner of the assertion made by the
authorities that Moosa was a Pakistani National. Mr. Moosa had
assigned the property in favour of the Writ Petitioner. The learned
Single Judge also took the note of the Notification dated 11 th
September 1965 issued by the Central Government in exercise of
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powers under Rule 133-V of the Defence of India Rules containing
details of the properties in the schedule annexed thereto belonging
to or held or managed on behalf of Pakistani National, thus
vesting those on the Custodian of Enemy Property for India.
However, as would be apparent from the narrations above, none
of these conditions are met in the present case. Therefore, the
decision of the Kerala High Court is clearly distinguishable on
facts.
67. Mr Rajiv Chavan, learned Senior Advocate for the
Respondent No. 3 has also placed heavy reliance on Section 18 of
the 1968 Act to contend that in view of availability of alternative
remedy, the Writ Petition should not be entertained by this Court.
In order to appreciate his above argument, we have gone through
the provisions of Section 18, which reads as follows:-
“18. Transfer of property vested as enemy property in certain
cases.—The Central Government may, on receipt of a
representation from a person, aggrieved by an order vesting a
property as enemy property in the Custodian within a period
of thirty days from the date of receipt of such order or from
the date of its publication in the Official Gazette, whichever is
earlier and after giving a reasonable opportunity of being
heard, if it is of the opinion that any enemy property vested in
the Custodian under this Act and remaining with him was not
an enemy property, it may by general or special order, direct
the Custodian that such property vested as enemy property in
the Custodian may be transferred to the person from whom
such property was acquired and vested in the Custodian.”
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68. First of all, the law is well settled that the Doctrine of
‘alternate remedy’ is not a Rule of law but a Rule of prudence. In a
given case, where alternate remedy is available to the Petitioner,
the High Court may refuse to entertain a Writ Petition in exercise
of discretionary jurisdiction under Article 226 of the Constitution
of India. However, it is purely a matter of discretion of the High
Court. There is no statutory bar for a litigant to maintain a Writ
Petition under Article 226 of the Constitution of India, even if
there is an alternative, efficacious remedy is available. The
Supreme Court in the case of Whirlpool Corporation versus
Registrar of Trade Marks, Mumbai, 5 has observed in paragraph 20,
as follows :-
“20. Much water has since flown under the bridge, but there has
been no corrosive effect on these decisions which, though old,
continue to hold the field with the result that law as to the
jurisdiction of the High Court in entertaining a writ petition
under Article 226 of the Constitution, in spite of the alternative
statutory remedies, is not affected, specially in a case where the
authority against whom the writ is filed is shown to have had no
jurisdiction or had purported to usurp jurisdiction without any
legal foundation.”
69. From a reading of Section 18 of the Act, we find that an
Appeal would lie before the Central Government by a person
aggrieved by an order vesting a property as Enemy Property,
5 (1998) 8 SCC 1.
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within a period of 30 days from the date of receipt of such order
or from the date of its publication in the Official Gazette. In the
present case, there is no order vesting the property on the
Custodian which was published in the official gazette. What the
Custodian has done is that he has issued instructions to Revenue
Authorities to make suitable insertions in the revenue records by
showing the same as enemy property vesting on the Custodian of
Enemy Properties even though the certificate of vesting dated 5 th
April,2007 had earlier been revoked by him. There is neither any
order of the Central Government vesting the property on the
Custodian nor is there any Certificate under Section 5A available
in this case. Under such circumstances, we are of the considered
view that this is not a fit case where the Petitioners should be
asked to avail alternate remedy in the form of an appeal under
Section 18 of the Act of 1968.
70. In view of the determination made hereinabove, we hereby
declare that there was no valid vesting of the Wakf property,
including the suit properties, on the Custodian of enemy property
for India, i.e., the Respondent No. 3, at any point of time. As such,
the Respondent No. 3 did not have any jurisdiction or authority
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under law to issue the impugned communications to the revenue
authorities. Consequently, the impugned communication dated
28th December 2021 and the Mutation Entry dated 17 th May 2023
impugned in Writ Petition No. 1080 of 2024, Mutation Entries
both dated 15th May 2023 and the communication dated 28 th
December, 2021 impugned in Writ Petition No. 1233 of 2024 and
Mutation Entry dated 30th May 2023 and communications dated
16th December 2021 and 28th December 2021 impugned in Writ
Petition No. 3746 of 2023 are held to be illegal and dehors the
law. The same are accordingly, set-aside.
71. For the reasons stated above, all the three Writ Petitions
succeed and the same are hereby allowed.
72. Parties to bear their own costs.
(SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.)
{
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