JOSHI THOMAS Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner challenges Ext.P5 order passed by the Custodian of Enemy Property for India under Section 8 and 12 of the Enemy Property Act 1968 (hereinafter referred to as the Act). Ext.P5 is in different parts. The first part contains a certificate dated 21.7.2008 issued under S. 12 of the Act, which inter alia states that 1/3rd share of immovable property in R.S.No.18/2 of Kolathumala Desom, Paduvilayil Amsom, Tellichery Taluk, Cannanore District having a measurement of 1.22 acres belonging to or held by Sri.Kaliadath Pathakkalan Umer, is enemy property vested in the Custodian of Enemy Property for India, since the aforesaid person was a Pakistani national. The second part of Ext.P5 is an authorisation order under S.8 of the Act which again is dated 21.7.2008 authorising the District Collector, Kannur District to take over the control and to manage the said property for the preservation and management of the said enemy property. Another part of Ext.P5 is a communication issued by the Custodian to the District Collector on 21.7.2008 stating that as per the report dated 19.06.2008 of the Principal Secretary, Thiruvananthapuram, it was ascertained that one of the owners of the above property having 1/3rd share was a Pakistani National during the date of vesting till his death about 6 years back and the said property is liable to be taken over as an enemy property by virtue of Government of India Notification dated 10.09.1965. It is further stated that in regard to another 1/3 share in the name of K.P.Kunjammed, enquiry should be expedited to find out whether he was a Pakistani National. The said letter directs the District Collector to take over the management of the 1/3 share of K.P.Umer and to expedite the enquiry in regard to the 1/3 share of K.P. Kunjammed.It is, inter alia, contended by the petitioner that a portion of the aforesaid property having an extent of 35 cents was purchased by the petitioner by way of registered assignment deed No. 1867AM. The said property was purchased from 17 persons who were co-owners of the property. Ext.Pl is the sale deed and Ext.P2 is the tax receipt. The petitioner has also constructed a multi-storied building in the property by investing huge amounts. Some rooms were already sold. At this stage it was noticed that the revenue authorities failed to accept property tax and on enquiry it was understood that tax was not received by the revenue authorities in view of the proceedings by way of Ext.P5. The petitioner submits that the late K.P. Kunjammed was not a Pakistani National as he was holding an Election Identity card Ext.P6 and his death certificate is produced as Ext.P7. On these facts, the petitioner contends that the authority has no right to invoke the proceedings under the Act as the vesting of property on the Government have to take place during the period when Defence of India Rules 1962 was in force. The Act being enacted only for management of the property so vested by the Custodian, the provisions of the Act cannot be invoked as the vesting had not taken place during the relevant time. It is also the contention of the petitioner that if there is a vesting of property necessarily, the owners of the property namely the Pakistani National ought to have been informed about such vesting and the same should be borne out by revenue records. Having not taken any action for intimating the vesting during the relevant time, and having not heard them before such vesting, when the property has already been transferred and subsequent interest had been created in the property, the action of the respondents in issuing Ext.P5 after several years is arbitrary, unreasonable and in gross violation of Art. 14 of the Constitution of India.

(2.) Hence the petitioner seeks to quash Ext.P5 and to direct the 3rd respondent to release the property of the petitioner from the proceedings under the Act and to direct respondents 5 and 7 to accept land tax and building tax.

(3.) Counter affidavit is filed by respondents 2 and 3.2nd respondent the Custodian of Enemy Property For India contends that property of Pakistani national has been vested during the period 10.09.1965 and 26.09.1977 and there after it continued to remain vested under the Act. It is further contended that since the property has been automatically vested with the Government any subsequent transfer is bad in law and it is open for the Custodian to take possession of the property at any time. The contention that late K.P.Kunjammed was not a Pakistani national is denied. It is stated on the basis of Ext.R2(e) that K.P.Kunjammed was a relative of K.P.Umer.