Allahabad High Court quashes 50-year-old enemy property proceedings, says authorities cannot keep inquiries pending indefinitely

The petitioners challenged proceedings initiated under the Enemy Property Act, 1968 concerning property No. J-3/34, Katehar, Ward Jaitpura, Varanasi, measuring 621 sq. ft. They claimed that the property belonged to Mohammad Iqram through his grandfather Abdul Samad and had devolved upon the petitioners after Mohammad Iqram’s death on 18 March 2014; their family asserted continuous possession for over 100 years.

The respondents contended that the property belonged to Mohammad Jauhar, a Pakistani citizen, and had vested in the Custodian of Enemy Property under the 1968 Act and the Defence of India laws. They relied upon reports submitted in 1972 and 2000 and upon Section 5(2) of the Enemy Property Act, as inserted by the 1977 Amendment.

Earlier proceedings had allegedly been initiated in 1972, to which objections were filed, but no final order was passed. A further notice was issued on 19 August 2021 by the Additional District Magistrate, Varanasi. Despite the petitioners’ objection dated 13 September 2021, no order declaring the property to be enemy property was passed for approximately five years.

The property was nevertheless entered in the records of the Nagar Nigam, Varanasi as enemy property. Pursuant to the Court’s direction, the Union of India admitted that no order had ever been passed by the competent authority formally declaring the property to be enemy property.

Whether the respondents could treat the disputed property as enemy property and enter it in municipal records without passing a formal order in accordance with the Enemy Property Act, 1968 and the Enemy Property Rules, 2015?

Whether proceedings initiated decades after the earlier inquiry, and left pending for approximately five years after the 2021 notice, could be permitted to continue in the absence of a final determination?

Whether the notice dated 19 August 2021 and the consequential municipal entry were liable to be quashed under Article 226 of the Constitution?

The Court applied Article 226 of the Constitution, under which the High Court may intervene against arbitrary, procedurally invalid, or non-est executive action.

Section 5(2) of the Enemy Property Act, 1968, inserted by the 1977 Amendment, provides for the continued vesting of enemy property in the Custodian after the expiration of the Defence of India Act and Rules.

The substituted Section 6, introduced by the Enemy Property (Amendment and Validation) Act, 2017, provides that an enemy, enemy subject, or enemy firm has no right to transfer property vested in the Custodian and that any such transfer is void.

However, the Enemy Property Rules, 2015 prescribe a procedure for identification, verification, preparation of reports, declaration, and maintenance of records concerning enemy property; properties under examination remain “Process Cases” until declaration.

The Court further applied the principle that the existence of statutory power does not authorise its arbitrary or indefinite exercise and that a formal inquiry and determination are necessary before giving the property legal effect as enemy property.

The Court found that the respondents had relied only upon notices, reports, and communications, but had not produced any competent order declaring the disputed property to be enemy property.

Although the statutory scheme permits identification and vesting of enemy property, the Rules require adherence to the prescribed process, including verification, preparation of a detailed report, and declaration. The municipal entry was therefore based on a non-existent or non-est proceeding rather than a legally concluded determination.

The Court also considered the extraordinary delay: proceedings initiated in 1972 had not culminated in an order; further proceedings in 2000 likewise produced no final determination; and the 2021 notice remained undecided for nearly five years.

In view of the petitioners’ claimed long possession, the repeated and indefinite inquiries were held to constitute an arbitrary and potentially retributive exercise of executive discretion. The Court held that such belated proceedings could not be kept alive indefinitely merely because the authorities possessed statutory power.

The consequential entry treating the property as enemy property in the records of the Nagar Nigam, Varanasi, was also quashed because no valid declaration or order supported it.

The respondents were directed not to interfere with the petitioners’ peaceful possession and to permit them to pay municipal taxes in accordance with law.