Union Of India & Anr vs Raja Mohammed Amir Mohammad Khan

Respondent a sum of Rs.1,77,38,828.11, being 2

held by the said Custodian on account of the

Estate of the Raja of Mahmudabad.

2. It may be recalled that in Writ Petition

No.1524 of 1977 filed by the applicant herein,

Raja Mohammed Amir Mohammad Khan, (Raja MAM

Khan for short), the Bombay High Court, while

allowing the writ petition, had directed the

return of the properties of the Raja of

Mahmudabad to the applicant. The decision of

the Bombay High Court was challenged by the

Union of India in this Court in Civil Appeal

No.2501 of 2002, which was disposed of on

21.10.2005, inter alia, with the following

directions :

"The High Court had refused to grant the mesne profits to the respondents, against the aforesaid finding no appeal has been filed by the respondent. Since no appeal has been filed, the appellants are not entitled to the mesne profits till the passing of the interim orders of status quo by this Court 3

on 5.4.2002. The respondent would be entitled to the actual mesne profits by filing a suit, if so advised for this period. However, whatever moneys have been collected by the appellants by way of rent or lease etc. after 5.4.2002, till the handing over of the possession of these properties to the respondent be deposited/disbursed to the respondent within 8 weeks.

The appellants are directed to get the buildings (residence or offices) vacated from such officers and handover the possession to the respondent within eight weeks. Similarly, appellants are directed to handover the possession of other properties as well. The officers who are in occupation of the buildings for their residence or for their offices are also directed to immediately vacate and handover the buildings or the properties to the Custodian to enable him to handover the possession to the respondent in terms of the directions given. Failure to comply with the directions to handover the possession within 8 weeks will constitute disobedience of this 4

order and the appellants would be in contempt of this order. Respondent would be

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

3. In I.A. No. 47 it has been stated that when the

properties were taken over by the Custodian,

the amounts due and payable by the various

occupants were collected by the office of the

Custodian and credited to the account of the

Estate of Mahmudabad in the Ledger of the

Custodian maintained in his office at Mumbai.

In view of the judgments of the Bombay High

Court and this Court, holding the applicant to 5

be the sole legal heir and successor of the

Late Raja of Mahmudabad, he had succeeded to

the properties belonging to the late Raja which

had been taken over by the Custodian of Enemy

Property under the provisions of the Enemy

Property Act, 1968. It has further been

contended that it could not, therefore, be

disputed that the applicant is entitled to the

moneys standing to the credit of the Estate of

Mahmudabad in the Ledger Account maintained by

the Custodian of Enemy Property.

4. According to the applicant, after continuous

efforts, a copy of the Ledger Account was

supplied to him in the month of December, 2007,

by the office of the Custodian of Enemy

Property and on perusal of the same it was

discovered that a sum of Rs.1,77,38,828.11

stood credited to the account of the applicant

as on 27.3.2002. On coming to know of the 6

above, the applicant requested the Custodian by

his letter dated 27.12.2007, to remit the

amount which stood to his credit in the Ledger

maintained by the office of the Custodian.

5. As no response was received to the said letter,

another letter was issued to the Custodian on

6.2.2008, and in his reply the said Custodian

replied that there was no provision in the

Enemy Property Act, 1968, to refund any amount

received from Enemy Property. In response it

was also indicated clearly that no amount was

admissible to the applicant by way of refund.

6. It is on account of such response from the

Custodian of Enemy Property that I.A.No.47 of

2008 was filed for the reliefs which are

indicated in the prayer.

7

7. Appearing for the applicant, Mr. P.V. Kapur,

learned Senior Advocate, submitted that after

the clear and unambiguous directions given by

this Court in its judgment dated 21.10.2005 in

Civil Appeal No.2501 of 2002, there could be no

justification for the Custodian of Enemy

Property to object to making over of the moneys

collected by him on account of rents and

profits to the applicant. Mr. Kapur submitted

that the intent of the order of this Court was

very clear that on being found to be the sole

legal heir of the Raja of Mahmudabad, the

applicant was entitled to his entire estate,

which included all amounts which had been

collected from the properties of the Estate and

credited to the account of the Estate in the

Ledger maintained by the office of the

Custodian of Enemy Property.

8

8. As an alternate submission Mr. Kapur urged that

in addition to the directions contained

regarding disbursement to the applicant of the

amount collected by the appellant by way of

rent or lease after 5.4.2002 till the handing

over of the possession of the properties to the

applicant this Court had also directed the

appellants to get the immovable properties of

the Estate vacated and to hand over the

possession of the same to the

respondent/applicant within 8 weeks. The

appellants were also directed to handover the

possession of the other properties as well.

(Emphasis supplied)

9. Mr. Kapur submitted that under the general

directions given by this Court in respect of

properties belonging to the Estate of

Mahmudabad, which included the amount held by

the Custodian on account of rents collected 9

from the Estate of the Raja of Mahmudabad prior

to 5.4.2002, the said Custodian and the Union

of India were bound to make over the said

amount collected by the Custodian to the

applicant.

10. Resisting the application filed on behalf of

the respondent Mr. MAM Khan, the learned

Additional Solicitor General, Ms. Indira Jai

Singh submitted that in view of the categorical

direction given in the order of 21.10.2005

passed by this Court, the question of making

payment of the amount in question to the

respondent did not arise. Ms. Jai Singh

submitted that this Court had recorded the fact

that the High Court had refused to grant mesne

profits to the appellant and against that

decision no appeal had been filed by him.

Consequently, the applicant was not entitled to

the mesne profits till the passing of the 10

interim order of status quo by this Court on

5.4.2002. In the said order this Court went on

to say that the applicant would be entitled to

the actual mesne profits for the period prior

to the passing of the interim order of status

quo by filing a suit. However, whatever moneys

that had been collected by the appellant by way

of rents after 5.4.2002 till the handing over

of the possession of the properties to the

applicant, should be deposited/disbursed to the

respondent within 8 weeks. Ms. Jai Singh

submitted that the rents collected from the

said properties after 5.4.2002 till the handing

over of the possession of the properties to the

applicant, had already been disbursed to him as

directed. However, since other than the

directions for recovery of mesne profits for

the period prior to 5.4.2002 no other direction

had been given by this Court for disbursement

of the rents and profits from the said Estate 11

prior to 5.4.2002, the claim of the applicant

was misconcieved. Ms. Jai Singh contended that

if it had been the intention of this Court that

the applicant would be entitled even to the

rents and profits prior to 5.4.2002, then it

would have given a clear direction for payment

of the entire amount to the applicant.

11. As to the alternate submission of Mr. Kapur,

the learned ASG urged that in view of what has

been stated hereinabove, it could not have been

the intention of this Court to release the

entire sum of Rs.1,77,38,828.11 being the

amount of the rents and profits collected from

the Estate of the Raja prior to 5.4.2002. Ms.

Jai Singh submitted that the claim of the

applicant was misconceived in view of the

directions contained in the Judgment of this

Court dated 21.10.2005.

12

12. In addition to her aforesaid submissions, Ms.

Jai Singh also urged that neither of the two

applications were maintainable since the appeal

and the contempt petition in which they have

been filed have already been disposed of

earlier. Ms. Jai Singh submitted that having

disposed of the appeal and the contempt

petition, this Court had become functus officio

and was bereft of jurisdiction for passing

orders on the said two applications which are

not in the nature of consequential reliefs

being claimed from the disposed of matters but

substantive applications raising substantial

claims, de hors the reliefs prayed for in the

appeal and the contempt petition. Ms. Jai Singh

referred to various decisions on the question

of the maintainability of applications filed in

concluded proceedings, which we may refer to if

it becomes necessary to do so.

13

13. Replying to Ms. Jai Singh's submissions, Mr.

Kapur submitted that the answer to the question

as to what is to be done in regard to the rents

and profits collected prior to 5.4.2002, is

clearly provided in Section 18 of the Enemy

Property Act, 1968, which provides that the

Central Government may by general or special

order, direct that any enemy property vested in

the Custodian under this Act and remaining with

him shall be divested from him and be returned,

in such manner as may be prescribed, to the

owner thereof or to such other person as may be

specified in the direction and thereupon such

property shall cease to vest in the Custodian

and shall revest in such owner or other person.

It was submitted that there was neither any

legal nor moral justification for the Custodian

to hold on the said amount lying to the credit

of the Estate of the Raja of Mahmudabad which 14

had devolved upon the applicant as held by the

Bombay High Court and confirmed by this Court.

14. On a careful consideration of the submissions

made on behalf of the respective parties, we are of

the view that a conscious distinction with regard

to the rents and profits collected from the Estate

of Raja of Mahmudabad prior to 5.4.2002 and

thereafter, had been made by this Court while

disposing of Civil Appeal No.2501 of 2002 on 21st

October, 2005. It was clearly the intention of the

Court that in respect of rents and profits

collected after the order of status-quo passed on

5th April, 2002, the same were to be made over by

the Custodian to the applicant, but as far as the

rents and profits collected prior to that date were

concerned, the applicant would be required to file

a suit to recover the same. We have been informed

that, in fact, such a suit has been filed by the

applicant and the same is pending decision. 15

15. Notwithstanding the use of the expression

"mesne profits" in the first pat of the directions

given by this Court, what was intended was that all

rents and profits collected in respect of the

Estate of Raja of Mahmudabad prior to the order of

status-quo passed on 5th April, 2002, would have to

be treated separately and not with the other

collections made from the estate. The use of the

expression "mesne profits", in our view, would

cover all the monies received by the Custodian for

the period prior to 5th April, 2002, and would,

thereafter, be covered by the aforesaid order of

this Court directing the appellant to release to

the respondent the sum of Rs.1,77,38,828.11 held by

the Custodian to the credit of the Estate of Raja

of Mahmudabad. The interpretation sought to be

given to the second part of this Court's order

extracted above, will not include handing over of

possession of the rents and profits prior to 16

5.4.2002, which had been excluded in the previous

paragraph of the judgment of this Court. In our

view, the directions given to the appellants to

hand over the possession of other properties,

mentioned in the second part of the order extracted

hereinabove, relates to the immovable properties of

the estate and not to the rents and profits

collected by the Custodian from the estate prior to

5.4.2002. The two sets of properties are dealt

with separately and are on two different settings.

Mr. Kapur's attempt to include both the movable and

immovable properties of the Estate of Raja of

Mahmudabad is misconceived and is not acceptable.

Since the amount recorded in the Custodian's ledger

as being credited to the Estate of Raja of

Mahmudabad represents the collections made from the

estate prior to the order of status-quo passed on

5th April, 2002, the Respondent has been given leave

to recover the same by filing a suit. In view of

the said order passed by this Court, it can no 17

longer be argued that the directions to make over

the possession of other properties to the applicant

also included the rents and profits collected from

the estate prior to 5.4.2002.

16. We are not, therefore, inclined to allow I.A.

Nos.47 and 48, which are, accordingly, dismissed.

The applicant will be free to pursue his claim for

the said amount of Rs.1,77,38,828.11 before the

Civil Court.

17. There will, however, be no order as to costs.

________________J.

(ALTAMAS KABIR)

________________J.

(CYRIAC JOSEPH) New Delhi Dated: 19.01.2010.