JUDGEMENT
PROTIK PRAKASH BANERJEE, J. -
(1.)This application under Article 226 of the Constitution of India impeaches the vesting of the lands stated to be that of the petitioners by a notification dated September 10, 1965. At the outset, it must be recorded that despite two opportunities the respondents did not file any affidavit-in- opposition though served. Therefore, even though I was waiting with eagerness to hear Mr. Dasgupta, learned advocate on facts on behalf of the Central Government. Unfortunately, I am restrained by procedural law from doing so. We will have to proceed on the basis of the pleadings contained in the writ petition as if they were Gospel Truth. From the writ petition it appears that the petitioner is a transferee of a citizen of property. He claims that as citizen this property would never have been recorded as an enemy property; his further submission is that his property does not figure in the schedule; his last submission is that no copy of any order under Section 7 of the Act was ever served on him nor was he given any opportunity to contest any proceeding in which the property was declared to be enemy property. He submits that he had no notice or knowledge of this so-called declaration of his property as Enemy Property before attempting to get land mutated in his name when the revenue officer concerned mentioned that it was not possible to mutate the property in his name since it was recorded as an Enemy Property. It was only then that he made a request under the provisions of the Right to Information Act, 2005 and the assistant custodian of Enemy Property by the letter dated December 8, 2018 informed him that the land had vested in the Central Government by a notification of September 10, 1965. In this petition, he has challenged the said notification.
(2.)The contention that as a citizen his property could never have been treated as an Enemy Property and/or that his transferor having been a citizen of India, the property could never have been treated to be an Enemy Property proceeds on the basis of the provisions of the Enemy Property Act, 1968 (hereafter the Act) as it stood before the amendment of 2017. Before such amendment, the definition of 'enemy' in clause 2(b) excluded a citizen of India. On that basis several judgments of the Hon'ble Supreme Court had been rendered which clearly laid down the law that the definition of 'enemy' provided under Section 2(b) excludes citizens of India as an 'enemy' or 'enemy subject' or 'enemy firm'. One of the judgments cited in this behalf is the case of 'Union of India and another Vs. Raja Mohammed Amir Mohammad Khan' reported in AIR 2005 SC 4383.
(3.)Thereafter, in 2017 Act 3 of 2017 made a sea-change to the definition of 'enemy' under Section 2(b) of the Act. With retrospective effect from January 7, 2016 Section 2(b) reads as follows:-
2(b). "enemy" or "enemy subject" or "enemy firm" means a person or country who or which was an enemy, an enemy subject including his legal heir and successor whether or not a citizen of India or a citizen of a country which is not an enemy or the enemy, enemy subject or his legal heir and successor who has changed his nationality or an enemy firm, including its succeeding firm whether or not partners or members of such succeeding firm are citizen of India or the citizen of a country which is not an enemy or such firm which has changed its nationality, as the case may be, under the Defence of India Act, 1962, and the Defence of India Rules, 1962 or the Defence of India Act, 1971 (42 of 1971) and the Defence of India Rules, 1971, but does not include a citizen of India other than those citizens of India, being the legal heir and successor of the "enemy" or "enemy subject" or "enemy firm."
Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.