UNION OF INDIA AND ANR.versusRAJA MOHAMMED AMIR MOHAMMAD KHAN

-A                          UNION OF INDIA AND ANR.
                                            v.
                 RAJA MOHAMMED AMIR MOHAMMAD KHAN

                                 OCTOBER 21, 2005

B                  [ASHOK BHAN AND AL TAMAS KABIR, JJ.]


           Enemy Property Act, 1968:

            Section 18-Enemy property-Divesting of-Held, not permanently vested
C    in the custodian but is limited to the temporary taking over of the possession,
     management and control over the property only-Owner is not divested of his
     right, title and interest in the property as under the Act title does not come to
     vest in the Custodian-Section 6 and 8.

D          Section 18-Enemy property-Inheritor/successor, an Indian citizen--
     Rights of-Held, become the sole owner as having acquired the title, the
     property ceases to be enemy property.

           Administrative law:

E         Executive-Role and duty of-Has to discharge its duties in a just wanner
     otherwise people will lose faith in the governance.

           Respondent is the son of Raja of Mahmudabad in the District of
     Sitapur in Uttar Pradesh. In December, 1957 father of the respondent
     migrated to Pakistan and became a citizen of Pakistan. However, the
F    respondent and his mother Rani Kaniz Abdi (since deceased) continued
     to reside in India as Indian citizen. The erstwhile Raj a of Mahmudabad,
     father of respondent, died in London on 14.10.1973. The respondent herein
     is the sole heir of late Raja by virtue of Section 22 of Oudh Estates Act,
     1869 as also by virtue of custom and usage of the respondent's family.
     Respondent made numerous representations requesting the Union oflndia
G    as well as the custodian to release the property as the same could not
     continue to vest with the Custodian after the death of respondent's father
     and having vested in him, as an Indian citizen. Since despite protracted
     correspondence over several years, the appellant failed to hand over the
     properties to the respondent, the respondent filed Writ Petition in the High
H                                         390
             U.O.I. v. RAJA MOHAMMED AMIR MOHAMMAD KHAN                   391
  Court of Judicature at Bombay praying, inter alia, for a declaration that A
  the properties vested with the Custodian ceased to be enemy property and
  stood divested from him and that the possession of the Custodian was
  illegal and without authority of law. By the impugned judgment the High
  Court has allowed the writ petition and held that on an interpretation of
  Sections 6, 8 and 18 of the Enemy Property Act, due to vesting of the B
  property in the Custodian, the owner is not divested of his right, title and
  interest in the property as under the Act title does not come to vest in the
  Custodian. The vesting is limited to the temporary taking over of the
  possession, management and control over the property only. It was
  conceded before the High Court by the counsel appearing for the
  appellants that respondent who was an Indian citizen and was the heir C
  and suco:essor of his late father, Raja of Mahmudabad. It was held that
  the properties were no longer enemy properties as the title of the same
  now vested in an Indian citizen. The High Court accordingly directed the
  custodian to handover possession of the properties, actual or juridical, as
, the case may be, to the respondent within three months from the date of
  passing of the order.                                                        D
        In appeal before this court, the appellant contended that in view of
  Section 13 vesting of the property of the enemy or enemy subject in the
  Custodian or order of Custodian or the proceedings in consequence thereof
  are not invalidated or affected by reason that at the material time such        E
  an enemy subject had died or ceased to be enemy. Laying stress on the
  provisions of Section 18 it was 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 11nder 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       F
  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.

         The respondent, on the other hand, contended that the vesting of the
   properties in the Custodian under the Enemy Property Act is limited to         G
   the extent of possession, management and control over the properties only.
   The right, title or interest of the owner is not taken away. After the death
   of his father the respondent became the sole owner of the properties which
·· had been taken over by the Custodian of Enemy Property. Having
   acquired the title by way of succession, the properties in question could      H
    392                      SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A   not be said to be enemy property within the meaning of Section 2(c)
    because enemy property means the property belonging to or held or
    managed on behalf of the enemy or enemy .subject or enemy firm. Since
    the respondent was not an enemy within the meaning of Section 2(b), the
    properties owned, held and belonging to him cannot be held to be the
B   enemy properties under the Enemy Property Act.

          Dismissing the appeal, the court

          HELD: I.I. The enemy subject due to the vesting of his property in
    custodian is not divested of his right, title and interest in the property.
C   The vesting in the Custodian is limited to the extent of possession,
    management and control over the property temporarily. The object of the
    Enemy Property Act is to prevent a subject of an enemy state from
    carrying on business and trading in the property situated in India. It is,
    therefore, contemplated that temporary vesting of the property takes place
    in the Custodian so that the property till such time as it is enemy property
D   cannot be used for such purpose. After the ceasing of the property to be
    enemy property it ceased to be belonging to an enemy. The Custodian
    cannot be permitts to continue with the possession of such properties. The
    property which initially vested in the Custodian under the Defence of India
    Rules and thereafter under the Enemy Property Act ceased to be enemy
    property upon the death of respondent's father. In the circumstances,
E   property which was vested in the Custodian ceased to be enemy property
    upon the death of the father of the respondent and the Custodian could
    not continue with the possession of the property. [401-C-D; 402-E-F)

          Sudhendu Nath Banerjee and Ors. v. Bhupati Charan Chakraborty and
F   Ors., (1976) Calcutta 267 and Mumtaz Begam v. Union of India and Ors.,
    AIR (1991) Calcutta 241, relied on.

           1.2. After the death of his father, respondent, who is a citizen of India
    inherited the property being the sole heir and successor of his father,
    cannot by any stretch of imagination be held to be enemy or enemy subject
G   under Section 2(b). Similarly, under Section 2(c) the property belonging
    to an Indian could not be termed as an enemy property. Having acquired
    the title by way of succession the properties in question could not be said
    to be enemy property within the meaning of Section 2(c) because enemy
    property means the property belonging to or held or managed on behalf
    of the enemy or enemy subject or enemy firm. Since the respondent was
H   not an enemy within the meaning of Section 2(h), the properties owned,
           U.0.1. v. RAJA MOHAMMED AMIR MOHAMMAD KHAN [BHAN, J.] 393
;-
      held and belonging to him cannot be held to be the enemy properties under     A
      the Enemy Property Act. [402-C, D[

            1.3. The contention that only the Central Government can divest the
      Custodian of the enemy property by passing a general or special order is
m     not sustainable as in the present case the respondent filed several
      representations but the Central Government did not take a decision on         B
      them for years together and in such a situation the power of the Court is
      not taken away to pass appropriate orders in a case where the property
      which vested in the Custodian ceases to be enemy property, the same
      having vested in a citizen of India by way of succession after the death of
      the enemy subject. [403-D, E, F]
                                                                                    c
            2. I. To be just and act in a just manner is writ large in our
      Constitution and the law. The Legislature is to act in a just manner by
      enacting just laws within the frame work of the Constitution. The executive
      is enjoined with a duty to act or apply the law in a just manner and if an
      individual or institution is dissatisfied with the State action in enacting   D
      the law or their implementation he can approach the court seeking
      redressal of his grievances. 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, resulting in institutional damage.
                                                                    [404-D, E, F[
                                                                                    E
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2501 of2002.

           From the Judgment and Order dated 21.9.200 l of the Bombay High
      Court in W.P. No. 1524 of 1997.

           K. Radha Krishnan, Ashok Bhan, Mrs. Varuna Bhandari Gugnani, V.K.        F
      Venna, R. Chandra Shekhar Reddy and Shreekant N. Terdal for the Appellants.

           Ashok H.Desai Vivek Tankha. Mrs. Anjali K. Vanna, Jaydeep Narnin
      Mathur, Niraj Gupta, Ritin Roy, Satya N.Prajapati and Ms. Meera Mathur for
      the Respondent.
                                                                                    G
...        Mis. Law Consultants & Co. (NP) for lmpleadment.

           The Judgment of the Court was delivered by

            BHAN, J. Union of India has filed this appeal by leave of the Court
      against the final judgment/order dated 21.9.200 I passed by the High Court    H
    394                    . SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A of Judicature at Bombay in Writ Petition No.1524 of 1.997 whereby the High
    Court has allowed the writ petition filed by the respondent. High Court has
    further directed the return of the property to the respondent.

          In order to appreciate the controversy arising in th is appeal the facts are
    required to be set in detail.
B
        Raja Mohammed Amir Mohammad Khan, writ petitioner/respondent
  herein is the son of Raja of Mahmudabad in Distt. Sitapur Uttar Pradesh. In
  December, 1957 the erstwhile Raja of Mahmudabad (father of the respondent)
  migrated to Pakistan and became a citizen of Pakistan. However, the respondent
C and his mother Rani Kaniz Abdi (since deceased) continued to reside in India
  as Indian citizen.

          The Defence of India Rules, 1962 made under Section 3 of the Defence
    of India Ordinance, 1962 came into force with effect from 5. I 1.1962. Rule
    133-V, inter alia, provided that the Central Government was authorised to
D   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 oflndia in exercise of powers under sub-rule (I)
    of Rule 133-V issued the Enemy Property (Custody & Registration) Order,
E   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
F   vested in the Custodian of Enemy Property in hidia 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 on replaced by the Enemy Property Act on 6. 7.1968. Enemy
    Property vested in the Custodian under the Defence of India Rules, 1962,
    continued to be vested in the custodian under the said Act.
G
          The erstwhile Raja of Mahmudabad died in London on 14.10.1973.
    The respondent herein is the sole heir of late Raja by virtue of Section 22 of
    Oudh Estates Act, 1869 as also by virtue of custom and usage of the respondent
    family. Respondent made numerous representations, including the one dated
    18.5.1979 requesting the Union of India as well as the custodian to release
H
     U.0.1. v. RAJA MOHAMMED AMIR MOHAMMAD KHAN [BHAN, J.] 395

the property as the same could not continue to vest with the Custodian after A
the death of respondent's father and having vested in him, as. an Indian
citizen. Director Vigilance, Ministry of Commerce wrote to the respondent
on 7.3.1981 inter alia, informing him that the question of release had been
taken up by the Cabinet and the Cabinet had decided to release 25% of the
said property in favour of the legal heirs and successors of the respondent's B
father. Another communication dated 24.9.1981 was received by the
respondent from the Director Vigilance, Ministry of Commerce of Union of
India informing him that they would release 25% of the property to the legal
heirs of the father of the respondent who, had always been Indian citizens.
Respondent was requested to contact Custodian of Enemy Property for India
and complete the necessary procedural and legal formalities. Thereafter, on C
 10.10.1981 Custodian of Enemy Property wrote a letter to the respondent
asking for legal evidence regarding the heirs and successors of respondent's
father to enable him to release the properties to the extent of 25%.

       Respondent filed a suit being Suit No.365 of 1981 in the Court of Civil
Judge, Lucknow on 18.11.1981 seeking a declaration that he was the sole D
heir and successor of the deceased Raja of Mahmudabad. This suit was
dismissed on 26.3 .1984 for non-joinder of the Custodian of Enemy Property
(hereinafter referred to as "Appellant No.2") as a party respondent. In July,
 I984 respondent filed a second suit being Suit No.2 I 9 of I 984 in the Court
of Civil Judge, Lucknow, inter alia, contending that by virtue of taking over E
the property the title of the property did not vest in the custodian. The vesting
was limited for the purposes of taking over of the possession, management
and control of the enemy property till such time the property remained the
enemy property. It was, inter a/ia, 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 F
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 G
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 H
    396                      SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A           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 going to be released in favour of the heir of late
            Raja Mohammad Amir Ahmad Khan under the decision of the
            Government of India, as alleged."
B
          The aforesaid judgment became final, conclusive and binding as the
    appellants did not prefer an appeal against the same.

        Since despite protracted correspondence over several years, the petitioner
  No.2 failed to hand over the properties to the respondent, the respondent filed
C Writ Petition No.1524 of 1997 in the High Court of Judicature at Bcmbay
  praying, inter alia, for a declaration that the properties vested with the
  Custodian ceased to be enemy property and stood divested from appellant
  No.2 with effect from 14.10.1973 and that the possession of the Custodian
  was illegal and without authority of law.
D
           By the impugned judgment the High Court has allowed the writ petition
    and held that on an interpretation of Sections 6, 8 and 18 of the Enemy
    Property Act, due to vesting of the property in the Custodian, the owner is
    not divested of his right, title and interest in the property as under the Act
    title does not come to vest in the Custodian. The vesting is limited to the
E   temporary taking over of the possession, management and control over the
    property only. It was conceded before the High Court by the counsel appearing
    for the appellants that respondent who was an Indian citizen was the heir and
    successor of his late father Raja ofMahmudabad. It was held that the properties
    were no longer enemy properties as the title of the same now vested in an
F   Indian citizen. The High Court accordingty directed appellant No.2 to handover
    possession of the properties, actual or juridical, as the case may be, to the
    respondent with in three months from the date of passing of the order.
    Respondent's prayer for mesne profits and compensation in respect of the
    properties in question were rejected.

G         Counsel for the parties have been heard at length.

        The Enemy Property Act, 1968 was enacted for purpose of continued
  vesting of enemy property, vested in the Custodian of Enemy Property for
  India under the Defence of India Rules, 1962 and the Defence of India Rules,
  1971. Section 2(b) defines enemy, an enemy subject or an enemy firm and
H the same reads as under:-
     U.0.1. v. RAJA MOHAMMED AMIR MOHAMMAD KHAN [BHAN, J.] 397

       "2(b}--"enemy" or "enemy subject" or "enemy firm" means a person          A
       or country who or which was an enemy, an enemy subject or an
       enemy firm, as the case may be, under 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;"
                                                                                 B
     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:
                                                                                 c
       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;"
                                                                                 D
      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            E
       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 enemy, or an enemy subject or an
       enemy firm and where it appears to the Central Government that such
       transfer is injurious to the public interest or was made with a view to   F
       evading or defeating the vesting of the property in the Custodian,
       then, the Central Government may, after giving a reasonable
       opportunity to the transferee to be heard in the matter, by order,
       declare such transfer to be void and on the making of such order, the
       property shall continue to vest or be deemed to vest in the Custodian.
                                                                                 G
      This section provides that if any property vested in the Custodian has
been transferred, whether before or after the commencement of the Enemy
Property Act, by an enemy, or an enemy subject or an enemy firm and if the
Central Government is of the opinion that such transfer is injurious to the
public interest or was made with a view to evading or defeating the vesting
                                                                                 H
    398                     SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A of the property in the Custodian, the Central Government may declare such
    transfer to be void after hearing the transferee in the matter. This provision
    makes it clear that there is no bar on the transfer of the enemy property in
    general by an enemy subject meaning thereby the title still remains with him.

          Section 8 deals with power of Custodian in respect of the enemy property
B   vested in him. The same is reproduced here:-

           "8. Powers of Custodian in respect of enemy property vested in him-
                                                                                       --
                                                                                       r

           (l) With respect to the property vested in the Custodian under this
           Act, the Custodian may take or authorise the taking of such measures
           as he considers necessary or expedient for preserving such property
c          and where such property belongs to an individual enemy subject,
           may incur such expenditure out of the property as he considers
           necessary or expedient for the maintenance of that individual or of
           his family in l.ndia.

           (2) Without prejudice to the generality of the foregoing provision, the
D          Custodian or such person as may be specifically authorised by him in
           this behalf, may, for the said purpose, -

           (i) carry on the business of the enemy;

           (ii) take action for recovering any money due to the enemy;
E
           (iii) make any contract and execute any document in the name and
           on behalf of the enemy;

           (iv) institute, defend or continue any suit or other legal proceeding,
           refer any dispute to arbitration and compromise any debts, claims or
p          liabilities;

           (v) raise on the security of the 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
G          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
H          of any of the properties;
     U.0.1. v. RAJA MOHAMMED AMIR MOHAMMAD KHAN [BHAN, J.] 399

       (viii) invest any moneys held by him on behalf of enemies for the         A
       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            B
       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"        C
       includes an enemy subject and an enemy firm."

      Section 9 provides that all enemy property vested in the Custodian shall
be exempt from attachment, seizure or sale in execution of decree of a civil
court or orders of any other authority.
                                                                                 D
      Section 13 makes provision for validity of action taken in pursuance of
orders of Custodian and reads as under:-

       "13. Validity of action taken in pursuance of orders of Custodian-
       Where under this Act, -
                                                                                 E
       (a)   any money is paid to the Custodian; or

       (b) any property is vested in the Custodian or an order is given to
           any person by the Custodian in relation to any property which
           appears to t.he Custodian to be enemy propert)'. vested in him
           under this Act, neither the payment, vesting nor order of the         F
           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 or an enemy
                 firm, had died or had ceased to be an enemy or an enemy         G
                 firm; or

             (ii) some person who was so interested and who was believed
                  by the Custodian to be an enemy or an enemy firm, was not
                  an enemy or an enemy firm."
                                                                                 H
    400                     SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A        Section 18 deals with divesting of enemy property vested in the
    Custodian and reads as under:-
            "18. Divesting of enemy property vested in the Custodian The Central
            Government may, by general or special order, direct that any enemy
            property vested in the Custodian under this Act and remaining with
B           him 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 thereupon such property shall
            cease to vest in the Custodian and shall revest in such owner or other
            person."
C        A reading of Section 18 makes it evident that enemy property is not
    permanently vested in the Custodian and divesting the custodian of such
    property is conremplated.
          Section 19 protects the action taken under the Act and provides that no
    suit, prosecution or other legal proceeding shall lie against the Central
D   Government or the Custodian or enemy property for anything which is done
    in good faith or intended to be done under the Act.
         The High Court of Calcutta in Sudhendu Nath Banerjee and Ors. v.
    Bhupati Charan Chakraborty and Ors., ( 1976) Calcutta 267, held that on a
    reading of Section 6, 8, and 18 of the Act, the enemy, due to vesting of his
E property in the Custodian 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 v. Union of India and Ors., AIR (l 99 l) 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
F adjudication of tit:e 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
G 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
H   a person or country who or which was an enemy, an enemy subject or enemy
      U.O.I. v. RAJA MOHAMMED AMIR MOHAMMAD KHAN (BHAN, J.] 401

 firm, as the case may be under the Defence of India Act, 1962 and the Rules       A
made thereunder or to the Defence of India Act, 1971 and the Rules made
thereunder but does not include a citizen of India. Enemy property under the
Act means any property belonging to or held or managed or on behalf of an
enemy, enemy subject or enemy firm for the time being. Proviso to Section
2(c) provides that where an individual enemy subject dies within the territories   B
to which Enemy Property Act extends, any property which immediately before
his death belonged to or held by him or managed on his behalf may continue
to be regarded as enemy property for the purposes of Enemy Property Act
notwithstanding his death.

       A conjoint reading of Sections 6, 8 and 18 of the Act, indicates that the C
enemy subject due to the vesting of his property in custodian is not divested
of his right, title and interest in the property. The vesting in the Custodian is
 limited to the extent of possession, management and control over the property
temporarily. This position was not disputed before us by the learned counsel
appearing for the appellant. The object of the Enemy Property Act is to
prevent a subject of an enemy state from carrying on business and trading in D
the property situated in India. It is, therefore, contemplated that temporary
vesting of the property takes place in the Custodian so that the property till_
such time as it is enemy property cannot be used for such purpose.

      The question that falls for determination is whether the properties in
question after its inheritance by the respondent who is a citizen of India can     E
be said to be enemy property.

       It is not in dispute that respondent was born in India and is an Indian
citizen. His late father migrated to Pakistan in the year 1957 and become a
citizen of Pakistan. After the breaking of the hostilities between India and       F
Pakistan in the year 1965 the property of his father located in India got
vested in the Custodian. After the coming into force of the Enemy Property
Act in the year 1968 the properties of late Raja continued to be vested with
the Custodian till he died on 14.10.1973 in London. After the death of his
father respondent who is a citizen of India inherited the property being the
sole heir and successor of his father. Can he be termed as enemy or enemy          G
subject within the meaning of Section 2(b) or can the property of an Indian
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 oflndia as an enemy, or enemy subject or enemy firm.
Under the circumstances, the respondent who was born in India and his              H
    402                     SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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
B   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
C   came to be owned exclusively by him. After the death of late Raja of
    Mahmudabad the respondent became the sole owner of the properties which
    had been taken over by the Custodian of Enemy Property. Having acquired
    the title by way of succession the properties in question could not be said to
    be enemy property within the meaning of Section 2(c) because enemy property
    means the property belonging to or held or managed on behalf of the enemy
D   or enemy subject or enemy firm. Since the respondent was not an enemy
    within the meaning of Section 2(b), the properties owned, held and belonging
    to him cannot be held to be the enemy properties under the Enemy Property
    Act.

          As indicated above, the vesting of the properties in the Custodian under
E the Enemy Property Act is limited to the extent of possession, management
  and control over the properties only. The right, title or interest of the owner
  is not taken away. After the ceasing of the property to be enemy property it
  ceased to be belonging to an enemy. The Custodian cannot be permitted to
  continue with the possession of such properties. The property which initially
F vested in the Custodian under the Defence of India Rules and thereafter
  under the Enemy Property Act ceased to be enemy property upon the death
  of respondent's father on 14.10.1973. In the circumstances, property which
  was vested in the Custodian ceased to be enemy property upon the death of
  the father of the respondent and the Custodian could not continue with the
  pos~ession of the property.
G
        Reliance placed by the counsel for the appellant on Section 13 is totally
  misplaced. Section 13 does not alter the aforesaid legal position. Section 13
  only provides that the vesting of the property of the enemy or enemy subject
  in the Custodian or order of Custodian or the proceedings in consequence
H thereof are not invalidated or affected by reason that at the material time such
      U.0.1. v. RAJA MOHAMMED AMIR MOHAMMAD KHAN [BHAN, J.] 403

an enemy subject had died or ceased to be enemy. It only means that action         A
of vesting or the order passed by the Custodian of the proceedings taken in
consequence thereof is not invalidated or affected on the ground that such
enemy subject had died or ceased to be enemy when the vesting took place
or the order came to be passed by the Custodian or proceedings in consequence
thereof were taken. It does not mean that the property can be continued to         B
be enemy property under the Act when the property is succeeded to by a
citizen of India. Once the property is succeeded to by a citizen of India the
property ceases to be covered by proviso to Section 2(c). In law, the vesting
in the Custodian 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 ).         C
       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              D
 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    E
 respondent filed several representations but the Central Government did not
 take a decision on them for years together. In such a situation the power of
 the Court is not taken away to pass appropriate orders in a case where the
 property which vested in the Custodian ceases to be enemy property, the
 same having vested in a citizen of Indi.a by way of succession after the death
 of the enemy subject.                                                             F
      Another interesting feature which can be taken notice of is that on a
representation filed by the respondent the appellants agreed to release 25%
of the property in favour of the respondent on production of proof of his
having succeeded to the property of his father. It shows that the appellants
accepted that the property could be released in favour of the respondent           G
provided he had succeeded to it after the death of enemy subject. It further
shows that the property could be released in favour of an Indian citizen
provided he had succeeded to the estate. It further shows that the title of the
enemy property does not vest in the custodian and it had vested in the custodian
for the purposes of management, control and possession of the properties           H
                             SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.
    404
A only.
          Jn the High Court the Union of India had taken certain points such as
    delay in filing the writ petition; that properties had been retained by the
    Government of India as a matter of policy and that the writ petition was
    barred by the principle of res judicata and the principles analogous thereto
B   were not pressed before us. Apart from the submission noted and dealt with
    by us no other point was raised.

          On 4.9.2001 the High Court directed the appellants to place on record
    copy of note put up for release of property of the respondent's father and the
    decision taken thereon by the Cabinet. The respondents refused to place a
C   copy of the note of the Cabinet claiming privilege in regard to the said
    document as in their opinion the public interest required that the same should
    not be disclosed. This shows the ma/a fide intentions of appellants to retain
    the possession of huge properties without any authority of law.

D          To be just and act in a just manner is writ large in our Constitution and
    the laws. The Legislature is to act in a just manner by enacting just laws
    within the frame work of the Constitution. The executive is enjoined with a
    duty to act or apply the laws in a just manner and if an individual or institution
    is dissatisfied with the State action in enacting the laws or their implementation
    he can approach the court seeking redressal of his grievances.
E
           Unfortunately a dangerous attitude resulting in doing institutional damage
    is developing, that the justice is required to be done only by the Courts. This
    attitude is betrayal of Constitution as well as laws. Every and any authority
    working under the statute has to discharge its duties in a just manner otherwise
    people will lose faith in the governance.
F
          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 cust~dian
    takes over the enemy property only for the purpose of possession, control
G   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 ;15% of the property
H   although he was entitled to the whole of the property. No reasons were given
     U.O.L v. RAJA MOHAMMED AMIR MOHAMMAD KHAN [BHAN. J.J                   405

 for doing so. Still worse the appellants did not even release 25% of the A
 property. Again no reasons are forthcoming for doing so. When asked by the
Court to produce the cabinet note put up before the cabinet in this regard, the
appellants refused to do so and claimed it to be a privileged document. When
admittedly the title of the property did not come to vest in the custodian then
as soon as the title in the property came to vest in an Indian citizen the B
property ceased to be an 'enemy property'. The authorities were duty bound
to release the property in favour of the true owner (respondent). Instead of
doing it the Union of India forced the respondent to knock at the doors of
the Court. The authorities have deprived the respondent of the possession and
enjoyment of the properties for the last 32 years without any justification.
The reasons for doing so as we understand is that buildings are being occupied C
by the Deputy Commissioner, Superintendent of Police and other district
officers for their residences as well as for their offices, which they did not
want to give up. This is highly objectionable. and unjust. It needs to be
deprecated.

      In the light of what we have stated, we do not find any merit in this         D
appeal and the same is dismissed.

        The High Court had refused to grant the mesne profits to the respondents,
against the aforesaid· finding no appeal has been filed by the respondent.
Since no appeal has been filed, the appellants are not entitled to the mesne
profits till the passing of the interim orders of status quo by this Court on       E
5.4.2002. The respondent would be entitled to the actual mesne profits by
filing a suit, if so advised, for this period. However whatever moneys have
been collected by the appellants by way of rent or lease etc. after 5.4.2002
till the handing over of the possession of these properties to the respondents
be deposited/disbursed to the respondent within 8 weeks.                            F
      The appellants are directed to get the buildings (residence or offices)
vacated from such officers and handover the possession to the respondent
within eight weeks. Similarly, appellants are directed to handover the
possession of other properties as well. The officers who are in occupation of
the buildings for their residences or for their offices are also directed to G
immediately vacate and handover the buildings or the properties to the
Custodian to enable him to handover the possession to the respondent in
terms of the directions given. Failure to comply with the directions to handover
the possession within 8 weeks will constitute disobedience of this order and
the appellants would be in contempt of this order. Respondent would be at H
    406                   SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A liberty to move an application in this Court if the above directions are not
    complied with for taking appropriate action against the appellants or their
    agents. Since the appellants have retained the possession of the properties
    illegally and in a high handed manner for 32 years, the appeal is dismissed
    with costs which are assessed at Rs. 5 Lacs.

B   B.K.                                                    Appeal dismissed.