Delhi High Court
Vijay Kumar And Anr vs Union Of India & Ors. on 5 November, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 15thJuly, 2024
Decided on: 5th November, 2024
+ W.P.(C) 6461/2018 & CM APPL.24851/2018
VIJAY KUMAR AND ANOTHER
.....Petitioners
Through: Mr. Rajat Aneja,
Ms. Chandrika Gupta and
Mr. Anant Chaitanya,
Advocates
V
UNION OF INDIA & OTHERS
.....Respondents
Through: Mr. Ripu Daman Bhardwaj,
CGSC with Mr. Kushagra
Kumar and Mr. Abhinav
Bhardwaj, Advocates for
UOI
Mr. Varun Tawar and
Mr. Devesh Tuli, Advocates
with Ms. Patricia Fiacho,
ACEP
+ RFA 234/2019, CM APPL. 12999/2019, CM APPL.
30114/2022, CM APPL. 30115/2022 & CM APPL.
50590/2023
UNION OF INDIA & ANOTHER
.....Appellants
Through: Mr. Chetan Sharma, ASG
with Mr. Anil Soni, CGSC,
Mr. Amit Gupta,
Mr. Devvrat Yadav,
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By:HARVINDER KAUR
BHATIA
Signing Date:07.11.2024 W.P.(C) 6461/2018 & RFA 234/2019 Page 1
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Mr. Vinay Yadav,
Mr. Saurabh Tripathi,
Mr. Varun Talwar,
Mr. Devesh Tuli and
Mr. Vikram Aditya Singh,
Advocates for UOI along
with Ms. Patricia Fiacho,
ACEP
V
VIJAY KUMAR SHARMA & OTHERS
.....Respondents
Through: Mr. Rajat Aneja,
Ms. Chandrika Gupta and
Mr. Anant Chaitanya,
Advocates for R-1 & 2
Mr. Anubhav Gupta, Panel
Counsel, Civil, GNCTD for
R-3
Mr. Ashish Dholakia, Sr.
Advocate with Ms. Geeta
Dhingra, Mr. Pushpendra S.
Bhadoriya, Mr. S. Banerjee,
Advocates for R-4
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present writ petition bearing no. W.P.(C) 6461/2018 is
filed under Article 226 of the Constitution of India seeking issuance
of directions for quashing the impugned notice dated 01.05.2018
(hereinafter referred to as “the impugned notice”) bearing file no.
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BHATIA
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08-00-68/CC/1792 issued under section 11 of the Enemy Property
Act, 1968 (hereinafter referred to as “the Act”) by the Custodian of
Enemy Property for India with respect to the properties bearing no.
1859-1864 and 2248-2260 situated at Wazir Singh Street, Raj Guru
Road, Ward no. XV, Chuna Mandi, Paharganj, New Delhi
(hereinafter referred to as “the suit properties”) and also seeking
issuance of directions for restraining the respondents from causing
any interference in controlling, managing or supervening or taking
any coercive action in respect of the suit properties.
1.1 The present appeal bearing no. RFA 234/2019 is filed under
section 96 read with Order 41 of the Code of Civil Procedure, 1908
(hereinafter referred to as “the Code”) against the order and decree
dated 28.03.2018 (hereinafter referred to as “the impugned order
and decree”) passed by the court of Additional District Judge-01,
Central, Tis Hazari Courts, Delhi (hereinafter referred to as “the trial
court”) under Order 12 Rule 6 (2) of the Code in CS no. 19994/2016
titled as Vijay Kumar Sharma and another V Union of India and
others.
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BHATIA
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2. Briefly stated, the facts of the present case are that the Vijay
Kumar who is the petitioner no. 1 in W.P. (C) 6461/2018 and the
respondent no. 1 in RFA 234/2019 (hereinafter referred to as “Vijay
Kumar”) is claiming to be the lawful owner of the immovable
property bearing Municipal nos. 1862-1864 and 2248-2254 situated
at Wazir Singh Street, Raj Guru Road, Ward no. XV, Chuna Mandi,
Paharganj, New Delhi vide Registered Sale Deeds executed in his
favour by the previous owner Mohd. Naqi on 13.03.1996 and
18.03.1996. Chaman Lal who is the petitioner no. 2 in W.P.(C)
6461/2018 and the respondent no. 2 in RFA 234/2019 (hereinafter
referred to as “Chaman Lal”) is claiming to be the lawful owner of
the property bearing municipal nos. 1859-1861 and 2254-2260
situated at Wazir Singh Street, Raj Guru Road, Ward no.XV, Chuna
Mandi, Paharganj, New Delhi vide Registered Sale Deeds executed
in his favour by the previous owner Mohd. Naqi on 13.03.1996 and
18.03.1996 and above-mentioned properties bearing nos. 1859-1861,
1862-1864, 2248-2254 and 2254-2260 are part of one composite
building.
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BHATIA
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2.1 The Custodian of Enemy Properties for India which is
respondent no. 2 in W.P. (C) 6461/2018 and appellant no. 2 in
RFA 234/2019 (hereinafter referred to as “CEPI”) started claiming
the suit properties as enemy properties on the basis of frivolous
complaints made by tenants/illegal occupants and further claimed
that the Union of India through Ministry of Home Affairs which is
the appellant no. 1 in RFA 234/2019 and the respondent no.1 in
W.P.(C) 6461/2018 (hereinafter referred to as “Union of India”) had
issued a notification bearing no. 12/2/65/E Pty. dated 10.09.1965 and
S.O. 5511 dated 18.12.1971 whereby all the immovable properties in
India belonging to or held by or managed on behalf of Pakistani
nationals were declared to be „Enemy Properties‟ and vested in CEPI
and shall continue to vest in CEPI under section 5 of the Act. CEPI
claimed that the above-mentioned notification was issued under the
Defence of India Rules, 1971. CEPI also claimed in its letter bearing
no. F. no.08-00-68 dated 10.04.2006 that the persons detailed in
column no.2 of the Schedule annexed thereto were all Pakistani
nationals owning/holding/managing the immovable properties
mentioned in column no.3 of the Schedule.
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BHATIA
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2.2 The name of one Haji Abdul Aziz was mentioned in column
no. 2 and the details of the suit properties were mentioned in column
no.3. However, late Haji Abdul Aziz was wrongly shown as a
Pakistani national in column no. 2 of the said Schedule. CEPI then
proceeded to declare the suit properties as enemy properties without
affording any opportunity of being heard to Vijay Kumar and
Chaman Lal to put forward their case. Vijay Kumar and Chaman Lal
came to know that the suit properties have been declared as „Enemy
Properties‟ when they received a copy of the letter in a case pending
before the court of Additional Rent Controller, Delhi on 13.04.2006
and also came to know that the tenants/illegal occupants of the
subject properties had submitted a representation on 03.04.2006
which was immediately considered with utmost haste within 03
working days and was decided on 10.04.2006 and a letter of
allotment was also issued to 43 illegal occupants. The illegal tenants
were hand-in-glove with the officials of CEPI particularly, when no
Enquiry Report or Status Report had been submitted by the
respondent no.3/Additional District Magistrate (Central) i.e. the
Nodal Officer (Enemy Property) which is the respondent no. 3 in
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BHATIA
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W.P.(C) 6461/2018 and RFA 234/2019 (hereinafter referred to as
“ADM”).
2.3 Vijay Kumar and Chaman Lal had made various
representations and sent reminders to Ministry of Home Affairs and
CEPI and also moved 02 applications dated 24.08.2006 and
24.02.2007 under the Right to Information Act, 2005 seeking
clarification about the representation dated 02.05.2006 and for supply
of certified copies of the entire file. In response to the application
dated 24.08.2006, CEPI sent a reply in October 2006 along with
documents including copy of letter dated 10.04.2006 addressed to
the ADM and in response to the application dated 24.02.2007, CEPI
sent a reply dated 30.03.2007. The report of ADM was requisitioned
vide letters dated 29.08.2006 and 30.03.2007 but no such report has
been received and is still awaited. CEPI vide letter dated 19.09.2003
addressed to the Ministry of Home Affairs, stated that without any
response from ADM, CEPI was unable to ascertain whether the suit
properties are enemy properties or not. CEPI vide another letter dated
24.09.2003 sent to the ADM stated that the suit properties should be
treated as enemy properties despite CEPI having issued Standing
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BHATIA
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Order bearing no. 5/2000 dated 17.04.2000 whereby no property
could be vested with CEPI unless an enquiry is conducted in
consonance with the said policy. CEPI proceeded in an unlawful and
arbitrary manner.
3. It is also stated in the writ petition bearing no.
W.P.(C) 6461/2018 that the suit properties originally belonged to late
Haji Abdul Aziz who was an Indian national throughout his life and
in 1947, the suit properties were held to be Evacuee Properties
presuming that Haji Abdul Aziz migrated to Pakistan although he
was very much in India. Haji Abdul Aziz approached the Custodian
of Evacuee Properties immediately after he came to know that the
suit properties have been vested in the Custodian of Evacuee
Properties. He filed applications and after full enquiry, it was held
that Haji Abdul Aziz had not migrated to Pakistan and was a citizen
of India and all his properties including the suit properties were
declared as non-evacuee properties.
3.1 The suit properties were restored to Haji Abdul Aziz vide order
dated 07.07.1955 passed by Sh. K.L. Taxali, Assistant Custodian,
Evacuee Property and constructive possession was also delivered to
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BHATIA
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Haji Abdul Aziz as the property was occupied by different tenants
who started paying rent to Haji Abdul Aziz during his lifetime. Haji
Abdul Aziz went to visit Karachi, Pakistan in October 1958 where he
suddenly fell ill and died on 28.01.1959 as an Indian national. Haji
Abdul Aziz was survived by a number of legal heirs including his son
namely Abdul Hamid who was also an Indian national.
3.2 Haji Abdul Aziz during his lifetime bequeathed the suit
properties in favour of Abdul Hamid by an Oral Will which was
admitted and accepted by all his legal heirs by executing
no-objections in the form of registered Relinquishment/Release
Deeds which hereinafter are referred to as “RDs”. Abdul Hamid
became the sole and absolute owner of the suit properties and
remained an Indian national throughout his lifetime. He got the suit
properties mutated in his name in the records of Municipal
Corporation of Delhi (MCD) as well as Delhi Development
Authority (DDA) in 1964 itself. Abdul Hamid expired on 02.09.1968
at Calcutta leaving behind his widow Mst. Hajra Bi and an adopted
daughter Mst. Rukhsana Begum.
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BHATIA
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3.3 Abdul Hamid during his lifetime bequeathed the suit properties
in favour of his close relative namely Mohd. Naqi by oral Will dated
01.08.1968 and immediately on the demise of Abdul Hamid, Mohd.
Naqi became the sole and absolute owner of the suit properties and
his legal heirs claimed no right or interest in the suit properties and
executed RDs in favour of Mohd. Naqi who was an Indian national
and a permanent resident of Calcutta, West Bengal.
3.4 Mohd. Naqi sold the suit properties to Vijay Kumar and
Chaman Lal, who are also Indian nationals and permanent residents
of Paharganj, Delhi, vide 04 registered Sale Deeds dated 13.03.1996
and 18.03.1996. Vijay Kumar and Chaman Lal after purchasing the
suit properties, got them mutated in their respective names in the
records of MCD. The petitioners filed eviction petitions against some
of the tenants who were in occupation of certain portions of the suit
properties and obtained possession thereof.
3.5 The tenants and occupiers of the suit properties hatched a
conspiracy against Vijay Kumar and Chaman Lal and started lodging
false complaints in the office of CEPI alleging that the suit properties
belonged to Pakistani nationals. CEPI conducted a preliminary
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BHATIA
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enquiry into the said complaints and found no merit therein and held
that the suit properties do not belong to Pakistani nationals and were
not enemy properties. CEPI however in 2006 started to allege that the
suit properties are enemy properties and thus vested with CEPI. CEPI
wrote letters dated 10.04.2006 to the tenants and occupiers of the suit
properties declaring the suit properties vested with CEPI. The tenants
started filing copies of the said letter before various courts where the
cases instituted by Vijay Kumar and Chaman Lal were pending and
started adversely affecting the lawful right, title and interest of Vijay
Kumar and Chaman Lal qua the suit properties which cast a cloud
over the title of Vijay Kumar and Chaman Lal in respect of the suit
properties. CEPI also issued letters dated 10.04.2006 even to the
persons from whom the Vijay Kumar and Chaman Lal had taken
possession in accordance with law on 15.10.2000.
3.6 CEPI issued letters dated 10.04.2006 upon the illegal tenants
of the suit properties in an arbitrary manner stating that the suit
properties have been declared as enemy properties and allotted the
suit properties to the illegal tenants on certain terms and conditions.
CEPI further issued a certificate dated 10.04.2006 under sections 8
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BHATIA
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and 12 of the Act in respect of the suit properties stating that the suit
properties are vested in CEPI. The officials of CEPI threatened to
take over the charge and control of the suit properties.
3.7 Vijay Kumar and Chaman Lal filed a suit bearing no. CS (OS)
751/2009 titled as Vijay Kumar and Others V Union of India and
Others before this Court seeking that they be declared the absolute
owners of the suit properties as well as permanent injunction. Union
of India and CEPI filed their written statement wherein they took
various preliminary objections with regard to maintainability of the
suit in view of the provisions of the Act and also submitted a detailed
reply on merits. The ADM filed a separate written statement. Union
of India and CEPI denied the allegations of Vijay Kumar and
Chaman Lal and stated that the suit was not maintainable as the suit
properties belonged to Pakistani nationals and therefore vested with
CEPI which comes under the purview of the Act and that Vijay
Kumar and Chaman Lal had not come to Court with clean hands and
concealed material facts. Vijay Kumar and Chaman Lal filed their
respective replications whereby the contentions raised by Union of
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BHATIA
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India and CEPI were denied and the averments made in the suit were
reiterated and reaffirmed.
3.8 This Court vide order dated 23.09.2014, framed the issues and
thereafter, Vijay Kumar and Chaman Lal were directed to lead
evidence. The suit was subsequently transferred to the jurisdictional
subordinate court i.e. the trial court. Vijay Kumar and Chaman Lal
filed an application seeking issuance of directions to Union of India
and CEPI to answer certain interrogatories and file complete original
documents available with them. Union of India and CEPI filed their
reply whereby they answered all the interrogatories, admitting that
CEPI had submitted the report of ADM dated 28.10.2015 and report
of CEPI bearing file no. 08-00-68 dated 02.12.2015 to R.L. Meena,
Under Secretary to the Government of India, Ministry of Home
Affairs, New Delhi.
3.9 The Reports dated 28.10.2015 and 02.12.2015 state that there
were conflicting claims from the tenants and from Vijay Kumar with
regard to the status of the suit properties, so a request was made to
ADM to investigate into the matter and furnish a report regarding the
status of the property. ADM vide his report dated 28.10.2015 stated
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that the suit properties belong to an Indian citizen which was
accepted by CEPI who in its report dated 02.02.2015, stated that in
view of report of ADM, the suit properties are liable to be divested in
favour of Vijay Kumar and Chaman Lal. Noting in this regard was
also prepared at the office of the Ministry of Home Affairs on
04.12.2015.
3.10 Vijay Kumar and Chaman Lal filed an application under Order
XXII Rule 6 of the Code and Union of India and CEPI filed their
reply on 04.12.2017. Virinda Kapoor also filed an application under
section 151 of the Code (who was later on impleaded as defendant
no.4 in the suit) on 19.07.2017 seeking dismissal of the suit, being
one of the tenants in the suit properties and the said application was
dismissed by the trial court vide order dated 26.02.2018. The trial
court partly decreed the suit vide the order and decree dated
28.03.2018. The relevant portion of the impugned order is
reproduced under:-
27. Accordingly, Application under Order XII Rule 6 CPC
is partly allowed and the Certificate/Notification/Office
Orders/Rent Receipts and Letters issued to occupants by
defendant No. 1 to 3 under Enemy Property Act are
declared null and void and defendant No. l to 3 are
restrained from controlling, managing or supervening theSignature Not Verified
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BHATIA
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suit property as Enemy Property. It is also declared that
the suit property do not vest in Defendant No. l to
Defendant No. 3 being enemy property under unamended
Enemy Property Act, 1968.
28. Decree sheet be drawn accordingly.
29. However, it is made clear that defendant No.1 to 3 in
view of the recent amendment of 2017 in various provision
of Enemy Property Act, including amendment in
definitions may reconsider the matter in light of said
amendments only and issue fresh notification etc, if
necessary.
30. However, in order to protect the rights of the parties,
the parties are directed to maintain status quo till next date
of hearing, so that in case any party wants to challenge this
order, it may do so.
3.11 CEPI despite the order dated 26.02.2018, issued notice bearing
file no. 08-00-68/CC/1792 dated 01.05.2018 to Vijay Kumar and
Chaman Lal under section 11 of the Act in respect of the suit
properties to show-cause as to why Certificate dated 10.04.2006
issued under section 12 of the Act should not be given effect. The
said notice had the effect of setting aside the order dated 26.02.2018
and order and decree dated 28.03.2018. Vijay Kumar and Chaman
Lal submitted a short reply dated 11.05.2018 to the said notice.
However, CEPI vested the suit properties with itself vide the
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BHATIA
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impugned notice dated 01.05.2018 without giving any opportunity of
being heard to Vijay Kumar and Chaman Lal.
4. Vijay Kumar and Chaman Lal being aggrieved, filed the
present writ petition bearing no. W.P.(C) 6461/2018 to challenge the
impugned notice on the grounds that all the previous owners of the
suit properties were Indian nationals. Vijay Kumar and Chaman Lal
and the previous owners were not enemy/enemy subject/legal heirs of
an enemy national. The impugned notice issued by CEPI is bad in
law and arbitrary. The impugned notice has been issued by CEPI
despite the binding order and decree dated 28.03.2018 passed by the
trial court. CEPI has accorded its own interpretation to the order and
decree dated 28.03.2018 for overriding and overreaching the said
order and decree. The act of CEPI undermines the credibility of the
judicial system and CEPI does not have the authority to override/set
aside the order. The act of CEPI amounts to criminal contempt. The
impugned notice is illegal, arbitrary and mala fide. The trial court,
while considering the application seeking dismissal of suit on the
ground that the trial court did not have jurisdiction in view of the
amendment to the Act, observed that the amended provisions of the
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BHATIA
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Act would not be applicable to the suit as it had been filed prior to the
amendment. The trial court dismissed the said application vide order
dated 26.02.2018 which has not been challenged and has attained
finality. The Act or any of its amended provisions are not applicable
to the suit properties belonging to Vijay Kumar and Chaman Lal who
are Indian nationals. Union of India and CEPI have admitted that as
per the investigation conducted by ADM, the suit properties were not
owned by Pakistani nationals during the vesting period i.e.
10.09.1965 to 26.09.1977. The impugned notice dated 01.05.2018
issued by CEPI is in gross abuse and blatant violation of the orders
dated 26.02.2018 and 28.03.2018 passed by the trial court and is
therefore, liable to be set aside/quashed. The petitioners prayed that
the impugned notice dated 01.05.2018 be quashed and the
respondents be restrained from causing any interference in respect of
the suit properties
5. Union of India and CEPI filed counter-affidavit in W.P.(C)
6461/2018 wherein they denied all the allegations and contentions
raised by Vijay Kumar and Chaman Lal. It is stated that Vijay Kumar
and Chaman Lal have relied upon the order dated 28.03.2018 passed
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BHATIA
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by the trial court which was bad in law as the trial court could not
assume jurisdiction which was expressly barred under section 18B of
the Act read with section 9 of the Code. The impugned notice is valid
and legal in accordance with the Act and was issued to give effect to
the provisions of the Act. Vijay Kumar and Chaman Lal have not
come to Court with clean hands and have concealed material facts.
The Act provides for the entire machinery for redressal of issues
concerning enemy property. Vijay Kumar and Chaman Lal were
granted an opportunity to present their case along with evidence and
they participated in the hearing on 14.05.2018. However, without
awaiting the outcome, they have hurriedly approached this Court,
therefore, the present petition is premature and not maintainable. The
Union of India and CEPI also gave a detailed background of the
enemy property law in India.
5.1 Vijay Kumar and Chaman Lal have placed reliance on an
inter-office note dated 02.12.2015 written by CEPI to Union of India
which was obtained by Vijay Kumar and Chaman Lal under the RTI
Act whereby CEPI proposed to the Ministry of Home Affairs that the
suit properties are liable to be divested in view of the report of the
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ADM dated 28.10.2015. However, ADM in report dated 28.10.2015,
has misconstrued the provisions of the Act and the said report is of no
value. The said inter-office note was not a final decision in the matter
and further examination was required to be done as per the directions
of the Ministry of Home Affairs, Union of India issued on
10.12.2015. Vijay Kumar and Chaman Lal have conveniently ignored
the remarks of the Ministry of Home Affairs who is the superior
authority.
5.2 It is also stated that under Mohammedan Law, a bequest to an
heir exceeding one-third share in the property is invalid unless
consented by other heirs and it is for the person who claims under
Will to establish that other heirs have consented to the bequest in
excess of one-third share of the estate of the testator. The bequest to
Abdul Hamid by oral Will could not take effect unless the other legal
heirs consented thereto. Even though the suit properties were
bequeathed to Abdul Hamid, the rent in respect of the suit properties
was collected by one Azizuddin on behalf of the legal heirs of Haji
Abdul Aziz. After execution of RD in 1964, the rent receipts were
issued in the name of „Shaikh Abdul Hameed‟ and after the death of
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BHATIA
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Abdul Hamid, the rent receipts were issued till 1974 in the name of
Mst. Hajra Bi (widow of Abdul Hamid) and Mst. Rukhsana Begum
(daughter of Abdul Hamid). After 1974, when Mst. Hajra Bi
migrated to Pakistan, neither the rent was collected from the tenants
nor was the property tax paid for the suit properties. The suit
properties were going to be attached by MCD due to non-payment of
property tax, so the tenants paid the property tax to MCD themselves
and continued to do so till Vijay Kumar and Chaman Lal initiated
legal proceedings against them stating that Vijay Kumar and Chaman
Lal had purchased the suit properties from Mohd. Naqi to whom the
suit properties were bequeathed by Abdul Hamid by way of oral Will
and the bequest was supported by RDs executed in 1992 in Pakistan
by the legal representatives of Abdul Hamid who were residents of
Pakistan. A Declaration Deed was also registered in 1997 at New
Delhi by Mohd. Ishaq, son-in-law of Haji Abdul Aziz and Suhail
Akbar, grandson of Haji Abdul Aziz declaring that Haji Abdul Aziz
bequeathed the suit properties to Abdul Hamid who bequeathed the
suit properties to Mohd. Naqi.
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BHATIA
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5.3 The first bequest itself cannot take effect in the absence of
consent of the other legal heirs as Haji Abdul Aziz bequeathed more
than one-third share of his estate to only one legal heir. Even if the
suit properties devolved upon Abdul Hamid, the suit properties
became enemy properties after his death on 02.09.1968 as all legal
heirs of Abdul Hamid were residents of Pakistan and therefore, all
the properties of Abdul Hamid including the suit properties vested in
CEPI by virtue of the Act and Government of India Notification
dated 18.12.1971. The alleged beneficiary of Abdul Hamid‟s oral
Will i.e. Mohd. Naqi neither informed the tenants that he is the new
landlord nor collected rent from the tenants nor took any action for
mutation of the suit properties in his name. Mohd. Naqi was not even
remotely connected to the suit properties from 1968 when the suit
properties allegedly devolved upon him till 1996 when he allegedly
sold the suit properties to the petitioners. The RDs were executed by
the legal representatives of Abdul Hamid in 1992 after a gap of more
than 24 years only to circumvent the provisions of the Act. Vijay
Kumar and Chaman Lal claimed to be the owners of the suit
properties for the first time around the year 2000.
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BHATIA
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5.4 MCD informed the SDM (Central) vide letter dated 03.11.2003
that Haji Abdul Aziz was the taxpayer during the crucial vesting
period i.e. from 10.09.1965 to 26.09.1977. The inspection team from
CEPI who inspected the suit properties reported that the suit
properties were owned by an Indian national namely Haji Abdul Aziz
but upon his death, the suit properties devolved upon his legal heirs
who were all Pakistani nationals except one Abdul Hamid. Abdul
Hamid later claimed that he is the owner of the suit properties by
virtue of oral Will of Haji Abdul Aziz and the RDs executed in his
favour by the other legal heirs of Haji Abdul Aziz in 1964. Upon the
death of Abdul Hamid on 02.09.1968, the suit properties devolved
upon his legal heirs who were in Pakistan except his widow namely
Hajra Bi who subsequently migrated to Pakistan in 1974. Thus, as the
properties devolved upon Pakistani nationals, the suit properties
would come under the definition of enemy property under section
2(c) of the Act. The suit properties were enemy properties vested in
CEPI, thus the Pakistani nationals could not have dealt with the suit
properties in any manner including by way of RDs. Therefore, the
vendor of Vijay Kumar and Chaman Lal was not having any
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right/title/interest in the suit properties and could not have sold the
suit properties to Vijay Kumar and Chaman Lal who are not the
owners of the suit properties.
5.5 CEPI issued the certificate dated 10.04.2006 under section 12
of the Act declaring the suit properties to be enemy properties in
view of the facts on record. Vijay Kumar and Chaman Lal challenged
the said certificate dated 10.04.2006 and they were heard by CEPI on
13.07.2006. Vijay Kumar and Chaman Lal were asked to provide
certain clarifications by CEPI including migration details of Hajra Bi
(widow of Abdul Hamid) which have not been provided by them
rather they filed civil suit bearing no. CS(OS) 751/2009 before this
Court seeking declaration over the suit properties and the said suit
was transferred to the trial court. Vijay Kumar and Chaman Lal
submitted a representation dated 12.05.2014 to the Ministry of Home
Affairs for divestment of the suit properties and meetings were held
in this regard on 30.04.2015 and 27.05.2015 wherein Vijay Kumar
and Chaman Lal and CEPI were heard at length and certain
clarifications were sought. Vijay Kumar and Chaman Lal could not
produce any evidence to show that the suit properties were
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transferred in their names despite being given sufficient and adequate
opportunities. Vijay Kumar and Chaman Lal could also not produce
any explanation for the huge gap of more than 24 years from 1968
onwards for non-mutation of their names in the revenue records.
5.6 The oral Will of Abdul Hamid is also doubtful and suspicious
as it was allegedly made in the first week of August 1968 by Abdul
Hamid who was hospitalized for a month before his death on
02.09.1968 which was caused due to „portal cirrhosis with heptic
coma‟. The alleged oral Will made by Abdul Hamid few days prior to
his death is affected by gross disorientation and impaired cognitive
ability because of his illness. Vijay Kumar himself stated in his
cross-examination before the Rent Controller, Delhi that “I know
Abdul Hamid was mentally sick in September 1968”. The rent
receipts were issued to the tenants on pre-printed stationery in the
names of Mst. Hajra Bi (Widow of Abdul Hamid) & Mst. Rukhsana
Begum (Daughter of Abdul Hamid). Mst. Hajra Bi executed RD in
1992 in Pakistan in favour of Mohd. Naqi after a gap of about 24
years. Mohd. Naqi did not take any step to show that the suit
properties belonged to him like informing the tenants, collecting rent
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or mutating the suit properties in his name. As per the Muslim law,
Abdul Hamid could not have made the alleged oral Will as he was of
unsound mind and he bequeathed more than one-third share of his
estate.
5.7 There was no provision for recognizing oral Wills in respect of
enemy properties in the unamended Act. In the amended Act, the said
aspect has been expressly included by insertion of section 5B which
provides that the law of succession would not apply to enemy
properties and the said provision has retrospective effect, hence the
suit properties are enemy properties vested in CEPI.
5.8 After the enactment of the Enemy Property (Amendment and
Validation) Act, 2017, Vijay Kumar and Chaman Lal submitted an
application under section 18 of the Act dated 17.04.2017 to the
Ministry of Home Affairs for divestment of suit properties. The
Ministry of Home Affairs, by interim reply dated 13.07.2017,
informed them that rules and guidelines were being framed and on
finalization, their application would be considered. They were
informed vide letter dated 28.05.2018 that hearing has been
scheduled on 19.07.2018, however before the scheduled date, the
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Ministry of Home Affairs received a letter from Vijay Kumar
informing that the letter dated 28.05.2018 is liable to be withdrawn as
the matter is subjudice in view of the present writ petition pending
before this Court. The matter has been pending in litigation since
2009 but still Vijay Kumar and Chaman Lal submitted the
application dated 17.04.2017 before the Ministry of Home Affairs,
thus the plea of the matter being subjudice is being taken by them as
per their convenience.
5.9 Vijay Kumar and Chaman Lal did not participate in the hearing
granted on 19.07.2018 to evict the tenants from the suit properties
which were allotted by CEPI vide letter dated 10.04.2006 issued
under section 8 of the Act. Vijay Kumar and Chaman Lal could not
have carried out the execution proceedings as the proceedings in suit
bearing no. 19994/2016 were yet to be completed. CEPI had also
undertaken to reinvestigate the matter and notices under section 11 of
the Act were issued, instead of co-operating with CEPI, Vijay Kumar
and Chaman Lal filed the present writ petition and got the said notice
stayed on false pretenses. Vijay Kumar and Chaman Lal carried out
execution proceedings without disclosing before the executing court
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that they have instituted a writ petition before this Court and neither
did Vijay Kumar and Chaman Lal inform this Court that they have
filed execution proceedings in respect of some of the suit properties.
5.10 The suit properties have been declared as enemy properties as
per procedure and can only be divested by orders of Central
Government or this Court and the jurisdiction of subordinate courts is
exclusively barred under section 18B of the Act having retrospective
effect. It was prayed that the present writ petition be dismissed and
cost be imposed upon the petitioners.
6. The Union of India and CEPI/the appellants challenged the
impugned order and decree passed in RFA 234/2019 on the grounds
that the law does not permit to decree a declaration suit on the basis
of admission. The trial court has ignored the principle provided under
Order XXII Rule 6 of the Code that the decree has to be passed upon
unequivocal and unambiguous admission by the defendants. The trial
court has erred in assuming jurisdiction in the suit although it was
brought to its notice vide notice dated 04.12.2017 that the properties
are enemy properties and therefore, as per section 18B of the Act and
section 9 of the Code, the trial court could not continue the suit
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proceedings. The provisions of the Act have been given retrospective
effect, hence the bar would commence from the date of enactment of
the parent Act i.e. from August 1968. The trial court has erroneously
held that the suit was filed in 2009, therefore, the bar of section 18B,
which was inserted in 2017, would not be applicable to the present
case. The trial court has committed a serious error in interpreting the
Act though it had no jurisdiction to do so. The impugned order
suffers from error of jurisdiction and therefore calls for interference.
The purpose of section 18B read with section 22A of the Act was to
exclude the subordinate judiciary from having jurisdiction in matters
dealing with the Act as it touches upon international relations and
therefore, has to be dealt with by the Courts of Record. The suit
properties having been declared as enemy properties could only be
divested by orders of the Central Government or this Court. The
impugned order was not based on any admitted document within the
meaning of Orders XXI and XXII of the Code, therefore, the trial
court could not have passed decree under Order XII Rule 6 (2) of the
Code. The appellants raised several other grounds and prayed that the
impugned order passed by the trial court be set aside and the trial
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court be directed to conduct the complete trial in the suit bearing
CS no. 19994/2016.
7. Sh. Rajat Aneja, Advocate for Vijay Kumar and Chaman Lal
advanced oral arguments and also filed written submissions wherein
besides mentioning the factual position, stated that the trial court has
rightly decreed the suit under Order XII Rule 6 of the Code on the
basis of interrogatories answered by Union of India and CEPI/the
appellants and ADM wherein it is stated that the suit properties are
liable to be divested in favour of Vijay Kumar and Chaman Lal. The
trial court vide order dated 26.02.2018 interpreted the provisions of
the Act and observed that the amended provisions of the Act would
not be applicable to the subject suit as it had been filed prior to the
insertion of the amended provisions. Virindra Kapoor i.e. the
respondent no. 4 in RFA 234/2019 challenged the order dated
26.02.2018 before this Court in CM (M) 887/2018 titled as Virindra
Kapoor V Vijay Kumar Sharma and others which was dismissed
by this Court vide judgment 18.12.2023. Section 18B of the Act was
inserted with effect from 07.01.2016 and a suit filed prior to the said
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date cannot be rejected or dismissed because of insertion of section
18B.
7.1 The suit properties cannot be vested in CEPI as all previous
owners of the suit properties were Indian nationals and the properties
changed hands from one Indian national to another. Union of India
and CEPI/the appellants have categorically admitted the fact that as
per investigation conducted by ADM, the suit properties were not
owned by Pakistani nationals during the vesting period of 10.09.1965
to 26.09.1977. The counsel for the petitioners cited the judgments
titled as Kausar Iram V Govt. of India and others, 2018 SCC
OnLine Del 6431; Iqbal Amiri V The State and others, 2016 SCC
Online Del 2176; Asma Beevi V M. Ameer Ali, A.S. nos. 247 and
371 of 1996; Joshi Thomas V Union of India, 2012 SCC OnLine
Ker 4836; Karam Kapil and others V Lal Chand Public
Charitable Trust and others, (2010) 4 SCC 753 and Raveesh
Chand Jain V Raj Rani Jain, (2015) 8 SCC 428 and prayed that the
impugned order dated 28.03.2018 passed by the trial court be
affirmed.
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8. Sh. Chetan Sharma, the learned Additional Solicitor General
advanced oral arguments and written submissions were also filed on
behalf of Union of India and CEPI/the appellants wherein besides
mentioning the factual position of the case, stated that Vijay Kumar
and Chaman Lal have referred to various internal communications
between the then CEPI and ADM and Ministry of Home Affairs. The
then CEPI namely Utpal Chakrabothy proposed for divestment of suit
properties on the basis of report dated 28.10.2015 of the ADM stating
that the suit properties were not owned by Pakistani nationals and
such internal communications cannot be treated as specific, clear and
categorical admission made by the parties. The internal
communications between the then CEPI, ADM and other authorities,
who are not the Competent Authority for divestment, have not
attained finality.
8.1 It was further argued that there are several errors on the face of
the impugned order. Section 18B of the Act is deemed to have been
inserted from the date of commencement of the Act and the exclusion
of jurisdiction of civil courts would also be effective from the date of
commencement of the Act i.e. 10.07.1968. The ADM did not
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consider material facts while issuing the report dated 28.10.2015. The
report of CEPI dated 02.12.2015, stating that the suit properties were
not owned by Pakistani nationals and are liable to be divested, was
just a proposal to the Competent Authority. Sections 18B and 22A of
the Act provide for retrospective effect of the amendments to the
provisions of the Act and retrospective vesting of properties if
divested by CEPI. The trial court relied upon the internal noting of
the department. The Supreme Court in Pimpri Chinchwad New
Township Development Authority V Vishnudev Cooperative
Housing Society and others, 2018 (8) SCC 215 has held that “a
noting recorded in the file is merely a noting simpliciter and nothing
more”. The Competent Authority marked his comments to further
examine the matter and did not take any final decision.
8.2 The learned Additional Solicitor General further argued that
section 5B of the Act bars the applicability of laws of succession,
customs and usages to enemy property and as such, the oral Will of
Abdul Hamid cannot take effect in law as the suit properties already
stood vested in the CEPI by virtue of Government of India
Notification dated 18.12.1971. The Act has an overriding effect over
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all other laws inconsistent with its provisions. The claim of Vijay
Kumar and Chaman Lal of being the owners of the suit properties by
virtue of registered Sale Deeds executed in their favour by Mohd.
Naqi is disputable as Mohd. Naqi himself did not acquire any legally
valid title over the suit properties, thus the sale transactions of the suit
properties are null and void ab-initio. It was further stated that on the
death of Abdul Hamid on 02.09.1968, the suit properties were
succeeded by the legal heirs of Haji Abdul Aziz who were all enemy
nationals as per section 2 (b) of the Act. Abdul Hamid was
hospitalized for a month before his death and was suffering from
mental illness, thus the alleged oral Will, if at all made, is affected by
impaired cognitive ability.
8.3 There is no evidence of the suit properties being bequeathed to
Mohd. Naqi, therefore, the claim that Mohd. Naqi acquired absolute
ownership rights over the suit properties does not stand legal
scrutiny. The RDs were executed after a gap of more than 24 years
after the death of Abdul Hamid and during this period, there is no
evidence of Mohd. Naqi was exercising ownership rights. The
Declaration Deeds executed by the surviving legal heirs of Haji
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Abdul Aziz are fraudulent and an afterthought and only an attempt to
evade vesting of the property with CEPI. As per section 31 of the
Foreign Exchange Regulation Act, 1973, no person who is not a
citizen of India can acquire, hold etc. any immovable property in
India except with previous permission of the Reserve Bank of India
and no such permission has been taken by any of the legal heirs of
Abdul Hamid who continued to hold the suit properties until RDs
were executed in 1992. Reliance was placed on order dated
01.04.1998 passed by the Supreme Court in C.A. no 2746/1980 titled
as Sewaram and others V Union of India and others; judgment
passed by Division Bench of the High Court of Bombay in W.P. no.
2177/2014 titled as Jay Construction & Company V UOI and
others and Shanti Sports Club and another V Union of India and
others, (2009) 15 SCC 705.
9. The learned Senior Counsel assisted by the briefing counsel
advanced arguments on behalf of Virindra Kapoor who is the
respondent no. 4 in RFA 234/2019 and written submissions were also
filed on behalf of Virinda Kapoor. It is stated that Vijay Kumar and
Chaman Lal were served with notice dated 10.04.2006 by Union of
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India and CEPI/the appellants that the suit properties are vested in
CEPI but instead of filing representation before the Competent
Authority, they chose to file civil suit for declaration which was
partially decreed vide the impugned order. Union of India and
CEPI/the appellants filed the present appeal to challenge the
impugned order on the ground that the admissions as held by the trial
court are based on inter-se correspondence of government
departments i.e. ADM, CEPI and Ministry of Home Affairs which
cannot be said to be admission as per Order XXII Rule 6 of the Code.
Virindra Kapoor filed an application before the trial court challenging
the jurisdiction of civil court in view of section 18B and 22 of the Act
which was dismissed vide order dated 28.02.2018. Virindra Kapoor
also filed CM(M) 887/2018 to challenge the order dated 28.02.2018
which was dismissed vide order dated 18.12.2023. Virindra Kapoor
took the plea that the suit properties had been vested in CEPI by
notification dated 10.09.1965 besides other notifications issued by
Ministry of Commerce from time to time. Section 5B of the Act bars
applicability of laws of succession, customs and usages to enemy
properties. Section 18B of the Act provides that no civil court shall
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have jurisdiction to entertain any suit or proceedings in respect of
enemy property. Section 22 (A) (a) of the Act provides retrospective
effect to the amendments to the provisions of the Act. The fact that
oral Wills have come to light only in 1996 raises grave suspicion.
The alleged admissions are in the form of internal communications
between ADM and CEPI or any other authority which cannot be
termed as admissions. Any communication between ADM and CEPI
regarding divesting of the suit properties shall have no force. A
noting in the file is a noting simpliciter which merely represents an
opinion and not an admission. The petitioners have failed to produce
any document which states that a decision was taken by the
Competent Authority divesting the suit properties. Vijay Kumar and
Chaman Lal procured certain RDs in 1977 executed in Pakistan by
Pakistani nationals after execution of sale deeds to fill up the lacunae.
Vijay Kumar and Chaman Lal did not produce any LR of Haji Abdul
Aziz, Abdul Hamid or Mohd. Naqi. The representation filed by Vijay
Kumar and Chaman Lal for divestment of the suit properties is still
pending before the concerned authority and Vijay Kumar and
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Chaman Lal cannot file civil suit as per section 18 of the Act. It was
prayed that the impugned order and decree be set aside.
10. It is the case of the Vijay Kumar and Chaman Lal/the
petitioners that the suit properties were originally owned by Haji
Abdul Aziz who was an Indian national throughout his life. Haji
Abdul Aziz died as an Indian national on 28.01.1959 during his visit
to Karachi, Pakistan and was survived by a number of legal heirs
including his son Abdul Hamid, who was also an Indian national.
Haji Abdul Aziz bequeathed the suit properties during his lifetime in
favour of Abdul Hamid by an oral Will which was accepted by all his
legal heirs, who executed no-objections in the form of RDs in favour
of Abdul Hamid. Abdul Hamid became the sole and absolute owner
of the suit properties and got the suit properties mutated in his name
in the records of MCD and DDA. Abdul Hamid remained an Indian
national throughout his lifetime and died on 02.09.1968 leaving
behind his widow Mst. Hajra Bi and an adopted daughter namely
Mst. Rukhsana Begum. Abdul Hamid during his lifetime bequeathed
the suit properties in favour of his close relative namely Mohd. Naqi
by oral Will dated 01.08.1968 and immediately upon the death of
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Abdul Hamid, Mohd. Naqi became the sole and absolute owner of
the suit properties and the legal heirs of Abdul Hamid claimed no
right in the suit properties and executed RDs in favour of Mohd. Naqi
who was an Indian national and permanent resident of Calcutta, West
Bengal. Mohd. Naqi sold the suit properties to the petitioners vide
four registered Sale Deeds dated 13.03.1996 and 18.03.1996. Vijay
Kumar and Chaman Lal/the petitioners, who are also Indian
nationals, after purchasing the suit properties, got them mutated in
their names in the records of MCD.
10.1 It is reflecting that there is no evidence of the oral Will dated
01.08.1968 alleged to have been made by Abdul Hamid bequeathing
the suit properties in favour of Mohd. Naqi, therefore, upon the death
of Abdul Hamid, the suit properties devolved upon his legal heirs
who were in Pakistan except his widow namely Hajra Bi who
subsequently migrated to Pakistan in 1974. Thus, the suit properties
devolved upon Pakistani nationals who were declared enemy
nationals and the suit properties came under the definition of „enemy
property‟ under section 2 (c) of the Act. It is admitted that Abdul
Hamid was suffering from mental illness, due to which he was
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hospitalized for a month prior to his death on 02.09.1968. The
alleged oral Will dated 01.08.1968 made by Abdul Hamid is
affected by impaired cognitive ability because of his mental illness
and as per the Mohammedan law, Abdul Hamid could not have made
the alleged Will being of unsound mind and also because he
bequeathed more than one-third share of his estate by the said Will in
favour of Mohd. Naqi without the consent of the other legal heirs.
Hajra Bi executed RD in favour of Mohd. Naqi in Pakistan in the
year 1992 i.e. after an unexplained delay of about 24 years from the
death of Abdul Hamid on 02.09.1968. Mohd. Naqi did not exercise
his ownership rights in respect of the suit properties in any manner
including informing the tenants, collection of rent or mutation of suit
properties in his name during the said period of 24 years.
11. Union of India and CEPI/the appellants and Virindra Kapoor
argued that section 5B of the Act bars the applicability of laws of
succession, customs and usages to enemy properties, therefore the
oral Will of Abdul Hamid could not take effect in law as the suit
properties, being enemy properties, stood vested in CEPI. It was also
argued that section 18B of the Act which was inserted by the Enemy
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Property (Amendment and Validation) Act, 2017 excludes the
jurisdiction of civil courts to entertain any suit or proceedings in
respect of any enemy property and section 22A of the Act gives
retrospective effect to the amendments made in the Act. Section 18B
of the Act is deemed to have been inserted from the date of
commencement of the Act, hence the exclusion of jurisdiction of civil
courts would also be effective from the date of commencement of the
Act. Therefore, the trial court has erroneously held that since the suit
was filed in 2009 i.e. prior to the insertion of section 18B in the Act
in 2017, the bar of section 18B would not be applicable to the present
case.
11.1 Section 5B of the Act reads as under:-
5B. Law of succession or any custom or usage not to apply
to enemy property.–Nothing contained in any law for the
time being in force relating to succession or any custom or
usage governing succession of property shall apply in
relation to the enemy property under this Act and no
person (including his legal heir and successor) shall have
any right and shall be deemed not to have any right
(including all rights, titles and interests or any benefit
arising out of such property) in relation to such enemy
property.
Explanation.–For the purposes of this section, the
expressions “custom” and “usage” signify any rule which,
having been continuously and uniformly observed for aSignature Not Verified
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long time, has obtained the force of law in the matters of
succession of property.
11.2 Section 18B of the Act reads as under :-
18B. Exclusion of jurisdiction of civil courts.–Save as
otherwise provided in this Act, no civil court or authority
shall have jurisdiction to entertain any suit or proceedings
in respect of any property, subject matter of this Act, as
amended by the Enemy Property (Amendment and
Validation) Act, 2017, or any action taken by the Central
Government or the Custodian in this regard.
11.3 Section 22A of the Act reads as under:-
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
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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 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.
11.4 A conjoint reading of sections 18B and 22A depicts that the
intention of the Legislature was to exclude the jurisdiction of the
subordinate civil courts to entertain any suit or proceedings in respect
of enemy properties from the date of commencement of the Act.
Therefore, the trial court‟s observation that the bar of section 18B
would not be applicable to the present case as the suit was filed in
2009 prior to the insertion of section 18B in 2017 cannot sustain in
law.
12. The petitioners have relied upon internal departmental noting
written by the then CEPI to the Ministry of Home Affairs, Union of
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India whereby the CEPI proposed that the suit properties are liable to
be divested in view of the report of ADM dated 28.10.2015. The
appellants stated that the ADM in his report dated 28.10.2015, has
misconstrued the provisions of the Act and hence the said report does
not hold any value. The said internal noting was just a proposal and
not a final decision and the matter was to be further examined as per
the direction issued by Ministry of Home Affairs. The learned
Additional Solicitor General argued that the trial court erroneously
placed reliance upon the internal departmental noting and held the
same to be an admission by the appellants, on the basis of which, the
trial court passed the impugned order and decree.
12.1 The Supreme Court in Pimpri Chinchwad (supra) held as
under :-
36. …It is for the reasons that : first, a mere noting in the
official files of the Government while dealing with any
matter pertaining to any person is essentially an internal
matter of the Government and carries with it no legal
sanctity; second, once the decision on such issue is taken
and approved by the competent authority empowered by
the Government in that behalf, it is required to be
communicated to the person concerned by the State
Government. In other words, so long as the decision based
on such internal deliberation is not approved and
communicated by the competent authority as per the
procedure prescribed in that behalf to the personSignature Not Verified
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concerned, such noting does not create any right in favour
of the person concerned nor it partake the nature of any
legal order so as to enable the person concerned to claim
any benefit of any such internal deliberation. Such noting(s)
or/and deliberation(s) are always capable of being changed
or/and amended or/and withdrawn by the competent
authority.
12.2 The Supreme Court in Shanti Sports Club (supra) held as
under :-
43. A noting recorded in the file is merely a noting
simpliciter and nothing more. It merely represents
expression of opinion by the particular individual. By no
stretch of imagination, such noting can be treated as a
decision of the Government. Even if the competent
authority records its opinion in the file on the merits of the
matter under consideration, the same cannot be termed as
a decision of the Government unless it is sanctified and
acted upon by issuing an order in accordance with Articles
77(1) and (2) or Articles 166(1) and (2). The noting in the
file or even a decision gets culminated into an order
affecting right of the parties only when it is expressed in the
name of the President or the Governor, as the case may be,
and authenticated in the manner provided in Article 77(2)
or Article 166(2). A noting or even a decision recorded in
the file can always be reviewed/reversed/overruled or
overturned and the court cannot take cognizance of the
earlier noting or decision for exercise of the power of
judicial review.
12.3 The Supreme Court in Karan Kapoor V Madhuri Kumar,
(2022) 10 SCC 496 held as under:-
23. Order 12 Rule 6 confers discretionary power to a court
who “may” at any stage of the suit or suits on theSignature Not Verified
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BHATIA
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application of any party or in its own motion and without
waiting for determination of any other question between
the parties makes such order or gives such judgment as it
may think fit having regard to such admission.
24. Thus, legislative intent is clear by using the word “may”
and “as it may think fit” to the nature of admission. The
said power is discretionary which should be only exercised
when specific, clear and categorical admission of facts and
documents are on record, otherwise the court can refuse to
invoke the power of Order 12 Rule 6.
12.4 There is legal force in the arguments advanced by the learned
Additional Solicitor General and the trial court ought not to have
relied upon the internal departmental noting made by the then CEPI
to the Ministry of Home Affairs. The internal departmental noting
cannot be said to be a specific, clear and categorical admission on
part of the appellants, hence the trial court ought not to have
exercised the discretionary power conferred by Order XII Rule 6 of
the Code. The trial court wrongly held that the said internal noting
was an admission on part of the appellants and consequently,
wrongly passed the impugned order and decree.
13. The appellants have raised various factual and legal issues as
mentioned hereinabove which require deeper judicial consideration.
It is for Vijay Kumar and Chaman Lal to prove before the trial court
that they are lawful owners of the suit properties and the suit
Signature Not Verified
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BHATIA
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properties are not enemy properties and they are entitled to
divestment of the suit properties in their favour. The civil suit
preferred by Vijay Kumar and Chaman Lal involves disputed
questions of facts and law which cannot be decided without trial. As
mentioned hereinabove, the proposal of CEPI namely Utpal
Chakrabothy for divestment of suit properties on the basis of report
dated 28.10.2015 of the ADM stating that the suit properties were not
owned by Pakistani nationals, cannot be treated as a specific, clear
and categorical admission made by the parties being an internal
communication and not affirmed and confirmed by the
superior/higher authority. The impugned order and decree cannot be
sustained and are accordingly set aside.
14. Vijay Kumar and Chaman Lal/the petitioners in
W.P.(C) 6461/2018 challenged the impugned notice dated
01.05.2018 bearing File No. 08-00-68/CC/1792 issued by CEPI
under section 11 of the Enemy Property Act, 1968 with respect to the
suit properties. The trial court is already seized of adjudication of
various issues raised between the parties who shall be proving their
respective cases in accordance with law. It shall be in interest of
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BHATIA
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justice that the impugned notice remains stayed till disposal of civil
suit bearing no. 19994/2016 and it is ordered accordingly. The trial
court is directed to conclude judicial proceedings in civil suit bearing
no. 19994/2016 titled as Vijay Kumar Sharma and another V
Union of India and others. It is made clear that the trial court shall
proceed with the trial without being influenced by any observation
made in this judgment and nothing in this judgment shall be taken as
an opinion of this Court on the merit of the case.
15. Accordingly, W.P.(C) 6461/2018 and RFA 234/2019, along
with pending applications, stand disposed of in the above terms.
DR. SUDHIR KUMAR JAIN
(JUDGE)
NOVEMBER 5, 2024
AM
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BHATIA
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