Vijay Kumar Sharma v. Union of India

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. W.P.(C) 6461/2018 & RFA 234/2019 Page 3 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. W.P.(C) 6461/2018 & RFA 234/2019 Page 4

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. W.P.(C) 6461/2018 & RFA 234/2019 Page 5 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. W.P.(C) 6461/2018 & RFA 234/2019 Page 6 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 7 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 8 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 9 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. W.P.(C) 6461/2018 & RFA 234/2019 Page 10 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 11 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 12 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 13 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 14 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 the W.P.(C) 6461/2018 & RFA 234/2019 Page 15 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 16 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 17 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 18 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 19 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 20 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. W.P.(C) 6461/2018 & RFA 234/2019 Page 21 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. W.P.(C) 6461/2018 & RFA 234/2019 Page 22 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 23 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 24 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 25 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 26 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 27 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 28 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 29 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 30 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. W.P.(C) 6461/2018 & RFA 234/2019 Page 31

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 W.P.(C) 6461/2018 & RFA 234/2019 Page 32 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 33 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 W.P.(C) 6461/2018 & RFA 234/2019 Page 34 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.