# Shah Rasheed Ahmad v. Custodian of Enemy Property, G.O.I., New Delhi & Ors

- **Citation:** (2020) 10 ILRA 163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-06
- **Case number:** Misc Bench No. 16278 of 2020
- **Bench:** Pankaj Mithal, Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shah-rasheed-ahmad-v-custodian-of-enemy-property-g-o-i-new-delhi-ors-45145
- **Pages:** 6

## Headnote

C.S.C., A.S.G.

Property treated as enemy propertybelongs to real uncle of the Petitionerwho were Pakistani nationals-property
was incorporated in Schedule-II of the
Declaration
and
authorization
vestedsame was in the knowledge of the partiesnever challenged-impugned order legal
and consequential orders.

Writ Petition dismissed. (E-9)

## Text

10 All. Shah Rasheed Ahmad Vs. Custodian of Enemy Property, G.O.I., New Delhi & Ors.
163
any statutory provision for the same is a
nullity, being without jurisdiction.

14. Therefore, in view of the
above, the law on the point can be
summarised to the effect that in the absence
of any statutory provision providing for
review, entertaining an application for
review
or
under
the
grab
of
clarification/modification/correction is not
permissible.""

23. In the present case the exercise of
power
by
the
Sub
Divisional
Magistrate/Assistant Electoral Registration
Officer in entertaining the application of
respondent no. 5 and thereby reviewing his
own earlier order dated 25.05.2020, was
clearly without jurisdiction in the light of
the fact that there is no provision in the Act
of 1947or Rules of 1994 enabling the Sub
Divisional Magistrate/Assistant Electoral
Registration Officer to do the same.

24. In case respondent no. 5 was not
satisfied with the findings of fact recorded
by the Sub Divisional Magistrate/Assistant
Electoral Registration Officer, it was open
for him to file an appeal under Section 21A
of the Rules, 1994.

25. In the light of above, the impugned
order dated 24.08.2020, being without
jurisdiction, is hereby quashed.

26. The writ petition is allowed.
----------

(2020)10ILR A163
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.10.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE JASPREET SINGH, J.
Misc Bench No. 16278 of 2020

Shah Rasheed Ahmad ...Petitioner
Versus
Custodian of Enemy Property, G.O.I., New
Delhi & Ors. ...Respondents

Counsel for the Petitioner:
Shyam Mohan Pradhan, Akhilesh Kumar
Kalra, Rahul Kapoor

Counsel for the Respondents:
C.S.C., A.S.G.

Property treated as enemy propertybelongs to real uncle of the Petitionerwho were Pakistani nationals-property
was incorporated in Schedule-II of the
Declaration
and
authorization
vestedsame was in the knowledge of the partiesnever challenged-impugned order legal
and consequential orders.

Writ Petition dismissed. (E-9)

(Delivered by Hon'ble Pankaj Mithal, J. &
Hon'ble Jaspreet Singh, J.)

1. Heard Shri Shyam Mohan learned
counsel
for
the
petitioner
and
the
Additional Solicitor General of India Shri
S. B. Pandey, learned Senior Advocate
assisted by Shri Raman Pandey for
opposite party no.1 while the notices have
been received on behalf of the opposite
parties no.2 to 4 by the office of the Chief
Standing Counsel.

2. The petitioner by means of the
present
petition
has
prayed
for
the
following reliefs:-

(i) issue a writ, order or direction
or writ in the nature of certiorari quashing
the
orders
dated
17.07.2020
and
14.08.2020, passed by the respondent no.1
and respondent no.3 as contained in
Annexure No.1 & Annexure No.2, order
164 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 13.02.2020 passed by the respondent
no.2 as well as order dated 18.01.1975,
passed by the respondent no.1, contained
Annexure No.3 & 4 to the writ petition
respectively.

(ii) issue a writ, order or
direction or writ in the nature of mandamus
commanding
the
respondents
not
to
proceed in pursuance of the aforesaid
impugned orders.

3. It has been submitted by the
learned counsel for the petitioner that the
property in question which is being treated
as an enemy property by the respondent
no.1 actually belonged one Jafar Hasan,
son of Muzaffar Ali who is the real uncle of
the present petitioner. It has been submitted
that Jafar Hasan alongwith other co-sharers
which included the father of the present
petitioner amongst other were the joint
tenure holders of Khasra Nos.1106, 1130,
1268, 826, 827, 1037, 1048, 1097, 1102,
1103, 1137, 1138, 1153, 1165, 1174, 1175,
1192, 1216 and 1218. Jafar Hasan had
executed a Will on 01.10.1970 in favour of
the petitioner (real nephew) and upon the
death of Jafar Hasan on 20.06.1974 his
shares devolved on the petitioner and
moreover the name of the petitioner was
also mutated and he continued to remain in
possession of the property in question.

4. It has been submitted that Jafar
Hasan had never migrated to Pakistan and
he continued to have his 1/6th share in the
property in question which after his death
came in the hands of the petitioner. It has
further been mentioned that earlier the
other co-sharers which included the father
of the petitioner had instituted writ petition
before a Division Bench of this Court
bearing Writ Petition No.2394 of 1976
wherein by means of order and judgment
dated 07.11.1979 the writ petition was
partly allowed restraining the opposite
parties from dispossessing the petitioners
from the plots mentioned in the document
of declaration issued by the custodian
enemy property and which plots are in
actual possession of the petitioner.

5. It has further been urged by Shri
Shyam Mohan that despite the aforesaid
order the respondents did not make any
effort to partition or demarcate the shares
and once again in the year 2001 attempted
to auction the land in question which was
in the possession of the present petitioner
with a standing crop thereon which
prompted the petitioner to institute another
writ petition before this Court bearing
No.1534 (M/S) of 2001.

6. It has further been submitted that in
the aforesaid writ petition an interim order
was passed that the crop shall not be
auctioned and the aforesaid writ petition is
pending till date.

7. It is in the aforesaid backdrop that
the respondent no.1 has issued the
impugned
orders
dated
17.07.2020,
14.08.2020 and 13.02.2020 and while
assailing the aforesaid three orders the
petitioner now challenges the authorization
order passed under Section 8 of the Enemy
Property Act, 1968 dated 18th of January,
1975.

8. It has been urged that the aforesaid
orders are bad in the eyes of law; inasmuch
as Jafar Hasan the predecessor in interest of
the present petitioner had never migrated to
Pakistan and as such the property could not
be treated as enemy property and by
passing
the
impugned
orders
the
respondents are presupposing and treating
the property to be enemy property despite
the fact that the matter was already
10 All. Shah Rasheed Ahmad Vs. Custodian of Enemy Property, G.O.I., New Delhi & Ors.
165
resolved by a Division Bench of this Court
by means of judgment and order dated
07.11.1979 in writ petition No.2394 of
1976.

9. The Court has considered the
submissions of the learned counsel for the
petitioner. However, on the perusal of the
record it indicates that it is incorrect to state
that Jafar Hasan was not a pakistani
national or that his property was not treated
as an enemy property.

10. From the perusal of the judgment
and order dated 07.11.1979 passed in writ
petition No.2394 of 1979, it would be clear
that the Division Bench noticing the claim of
the petitioners in the said writ petition clearly
recorded the fact that Maqbool Hasan and
Jafar Hasan were pakistani nationals. The
order dated 07.11.1979 clearly indicated the
fact that since Maqbool Hasan and Jafar
Hasan who were real brothers had migrated
to Pakistan and being Pakistani nationals their
property was incorporated in Schedule-II of
the Declaration dated 10th of September,
1965. Even the said property was mentioned
in the authorization issued under Section 8 of
the Enemy Property Act, 1968. Significantly,
the said order, said authorization issued on
18th of January 1975 was very well in the
knowledge of the father of the petitioner
Mansoor Hasan who was the petitioner no.1
in the writ petition No.2394 of 1976
alongwith the other co-sharers and who
clearly had taken a stand that the other
brothers, namely Jafar Hasan and Maqbool
Hasan were Pakistani nationals and in the
aforesaid circumstances, the Division Bench
by means of order dated 07.11.1979 had
passed the order which reads as under:-

"The petitioners claim to be coshares in certain property along with
Maqbool Hasan and Jafar Hasan, who are
Pakistani Nationals, and whose property
has under Government of India Notification
dated 10th September, 1965, been treated
an enemy property and vested in the
Custodian of Enemy Property. An order of
Authorization under Section 8 of the Enemy
Property Act, 1968 has been issued by the
Custodian of Enemy Property, where under
the Sub-Divisional Magistrate has been
authorized to take such measures as he may
consider necessary or expedient for the
preservation and management of the Enemy
Property specified in the Schedule. This
order is Annexure - 2 to the petition. The
petitioners do not dispute (except to the
extent the will precisely clarify) that the
said Maqbool Hasan and Jafar Hasan have
in that property the shares specified in the
order, annexure - 2. This order shows that
in one plot Maqbool Hasan has 1/9 share,
while in two others he has 2/9 share, and
Jafar Hasan has 1/9 share in three plots.
There is only one plot in annexure - 2 of
which Jafar Hasan has been shown
exclusive owner, i.e., plot No.56. As regards
this plot, the case of the petitioners is that
the plot was ancestral, in which Jafar
Hasan was only a co-sharer, and further
that the plot comprises a grove which was
planted by the petitioner No.1 and as such,
the name is in his exclusive possession.

So far as plots, which according
to the order, annexure - 2 and also
according to the petitioners' own case, are
jointly owned by one or more of the
petitioners and the Pakistani Nationals, are
concerned, It is obvious that if the
petitioners as co-sharers are in actual
possession, then the Custodian of the
Enemy Property stepping into the shoes of
the said Pakistani Nationals cannot have
any right of dispossessing the petitioners.
He can claim a right of getting the property
partitioned or to claim his share in profits,
but he cannot dispossess the petitioners so
166 INDIAN LAW REPORTS ALLAHABAD SERIES
long as jointness continues. As regards plot
No.56, the facts appear to be in dispute. We
do not have before us the original
notification of vesting that may have been
issued under the Defence of India Rules,
1962. Even annexure -2 has not been
sought to be quashed. We therefore express
no opinion on the merits of the case set up
by petitioner No.1 with respect to plot
No.56. It will be open to the said petitioner
and to the Custodian to have the matter
resolved through appropriate proceedings.

In the result, the writ petition is
allowed in part and the opposite parties are
restrained
from
dispossessing
the
petitioners
from
plots
mentioned
in
annexure - 2 in which the Pakistani
Nationals have only a share and which
plots are in actual possession of the
petitioners. It shall, however, be open to the
opposite parties to take other proceedings
in regard to those plots as indicted above.
No order as to costs."

11. It will be significant to notice that
the name of the present petitioner is on the
basis of an alleged unregistered Will said to
have been executed by Jafar Hasan who is
said to have died on 20.06.1974. The fact
remains that when the petitioner's father,
namely, Mansoor Hasan alongwith the
other co-sharers had instituted the writ
petition in the year 1976 which came to be
decided in the year 1979. There was never
any claim or even vague whisper that Jafar
Hasan had not migrated to Pakistan, or that
he had died and had left his Will by virtue
of which the present petitioner who is the
son of Mansoor Hasan (Mansoor Hasan
petitioner no.1 in writ petition No.2394 of
1976). Even in the earlier writ petition,
both the notifications dated 10th of
September,
1965
as
well
as
the
authorization order passed under Section 8
of the Enemy Property Act, 1968 dated
18th of January, 1975 was in the knowledge
of the parties yet there was never any
challenge thereto. Now for the first time,
the petitioner is assailing the authorization
order under Section 8 dated 18th of
January, 1975.

12. The submission of Shri Shyam
Mohan that the said order was not in notice
is also not tenable coupled with the fact
that despite a challenge having been raised
to
the
authorization
order
without
challenging the initial order passed on 10th
of September, 1975 by virtue of which the
immovable properties of Jafar Hasan vested
with the custodian, the challenge to Section
8
authorization
order
pales
into
insignificance.

13. At this juncture, it will be apposite
to notice Section 8 of the

14. Enemy Property Act, 1968 which
reads as under:-

"8. Power of Custodian in respect
of enemy property vested in him.-- 1[(1)
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 till
it is disposed of in accordance with the
provisions of this Act.]

(2) Without prejudice to the
generality of the foregoing provision, the
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;

2[(ia) fix and collect the rent,
standard rent, lease rent, licence fee or
usage charges, as the case may be, in
respect of enemy property;]
10 All. Shah Rasheed Ahmad Vs. Custodian of Enemy Property, G.O.I., New Delhi & Ors.
167

(ii) take action for recovering any
money due to the enemy;

(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 liabilities;

2[(iva) secure vacant possession
of the enemy property by evicting the
unauthorised
or
illegal
occupant
or
trespasser and remove unauthorised or
illegal constructions, if any].

(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 contributions to, or in respect of, any
employee of the enemy and the repayment
of any debts due by the enemy to persons
other than enemies;

(vii) transfer by way of sale,
mortgage or lease or otherwise dispose of
any of the properties;

(viii) invest any moneys held by
him on behalf of enemies for the purchase
of Treasury Bills or such other Government
securities as may be approved by the
Central Government for the purpose;

(ix) make payments to the enemy
and his dependents;

(x) make payments on behalf of
the enemy to persons other than those who
are enemies, of dues outstanding on the
25th October, 1962 3[or on the 3rd
December, 1971]; and

(xi) make such other payments
out of the funds of the enemy as may be
directed by the Central Government.

Explanation.--In this sub-section
and in sections 10 and 17, "enemy"
includes an enemy subject and an enemy
firm.

15. From the perusal of the aforesaid
Section, it would indicate that the aforesaid
Section only authorizes the custodian to
takes such measures as he considers
necessary or expedient for preserving the
property. The important section by virtue of
which property vests in the custodian is
under Section 5 which reads as under:-

"5.
Property
vested
in
the
Custodian of Enemy Property for India
under the Defence of India Rules, 1962,
and the Defence of India Rules, 1971 to
continue to vest in Custodian.--4[(1)]
Notwithstanding the expiration of the
Defence of India Act, 1962 (51 of 1962),
and the Defence of India Rules, 1962, all
enemy
property
vested
before
such
expiration in the Custodian of Enemy
Property for India appointed under the said
Rules and continuing to vest in him
immediately before the commencement of
this
Act,
shall,
as
from
such
commencement, vest in the Custodian.

(2)
Notwithstanding
the
expiration of the Defence of India Act, 1971
(42 of 1971) and the Defence of India
Rules, 1971, all enemy property vested
before such expiration in the Custodian of
Enemy Property for India appointed under
the said Rules and continuing to vest in him
immediately before the commencement of
the Enemy Property, (Amendment) Act,
1977 (40 of 1977) shall, as from such
commencement, vest in the Custodian.]

(3) The enemy property vested in
the Custodian 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
168 INDIAN LAW REPORTS ALLAHABAD SERIES
the citizen of a country which is not an
enemy, continue to remain, save as
otherwise provided in this Act, vested in the
Custodian.

Explanation.--For the purposes of
this sub-section, "enemy property vested in
the Custodian" shall include and shall
always be deemed to have been included all
rights, titles, and interest in, or any benefit
arising out of, such property vested in him
under this Act.]

16. Thus, from the conjoint reading of
the aforesaid two sections, it would indicate
that there has never been any challenge to
the order passed under Section 5 dated 10th
of
September,
1965
by
which
the
immovable property of Jafar Hasan and
Maqbool Hasan vested with the custodian.
Even in the instant petition, the petitioner
has raised a feeble challenge to the
authorization order dated 18th of January,
1975. However, there is yet no challenge to
the vesting order dated 10th of September,
1965.

17. In the aforesaid backdrop, where the
fact that neither the father of the petitioner
nor the concerned person Jafar Hasan,, who
was admittedly alive till 1974, never assailed
the vesting order and moreover his other real
brother and co-sharers also stated before the
High Court that Jafar Hasan and his other real
brother Maqbool Hasan were Pakistani
nationals
and
under
the
aforesaid
circumstances, the earlier Division Bench had
passed the order dated 07.11.1979.

18. In light of the aforesaid order,
which has been relied upon by the
petitioner himself, while filing other writ
petition bearing No.1534 (M/S) of 2001,
the fact remains that it is now not open for
the petitioner to assail the aforesaid orders.
Moreover, under the Enemy Property Act,
there is a complete procedure which has
been provided regarding assailing the order
of vesting of property in terms of Section
18 of the Act which has further been made
appealable in terms of Section 18-C of the
said Act.

19. In view of the aforesaid facts the
submission of the learned counsel for the
petitioner does not merit consideration and even
otherwise
the
orders
dated
17.07.2020,
14.08.2020
and
13.02.2020
are
merely
consequential orders.

20. The petition is misconceived and is
accordingly dismissed, however, there shall be
no order as to costs.

21. In view of the aforesaid, the
submission of the learned counsel for the
petitioner does not have merit. The writ petition
is devoid of merit and is accordingly dismissed.
----------
(2020)10ILR A168
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Matters Under Article 227 No. 237 of 2020
(Civil)

Mrs. Madhuri Saxena ...Petitioner
Versus
Sahkari Awas Evam Vitt Nigam Ltd.
Sarojni Marg, Lucknow ...Respondent

Counsel for the Petitioner:
Shrish Chandra

Counsel for the Respondent:
-----
Civil Law - Arbitration and Conciliation Act
(26 of 1996)- Section 34(6) - Expeditious
disposal - Application for setting aside