Case Note & Summary
The High Court of Bombay at Goa addressed a writ petition filed by an Indian national challenging the deletion of his grandfather's name from survey records and its substitution by the Custodian of Enemy Property for India under the Enemy Property Act, 1968. The petitioner claimed that the property, Survey No.23/3 at Camurlim, Salcete, Goa, originally belonged to his grandfather, late Natividade Luis Manoel Dias, who was always an Indian national. When the petitioner applied for mutation in January 2018, he discovered that his grandfather's name had been replaced in the records by the Custodian without any notice. He filed the writ petition seeking restoration and later amended it to directly challenge the Custodian's underlying order dated October 8, 2010. The respondents, Union of India and the Custodian, defended the action by asserting that Natividade Dias was a resident of Pakistan during the vesting period from September 10, 1965 to September 26, 1977, thus qualifying as an 'enemy' under Section 2(b) of the Act, and that the property automatically vested in the Custodian under Sections 5 and 24. They also raised a plea of delay and laches. However, the court found that the order was made against a dead person, as Natividade Dias died on March 5, 1989, rendering it a nullity. Further, the order was never served on the petitioner or the persons named in it, and the respondents could not produce any proof of service despite initial false claims. The court held that an uncommunicated order cannot be acted upon and that an order against a dead person is void ab initio. Consequently, the petition was allowed, the impugned order was quashed, and the survey records were directed to be restored by removing the Custodian's entry.
Headnote
A) Administrative Law - Natural Justice - Communication of Order - Enemy Property Act, 1968, Sections 5, 24 - The Custodian's order dated 08.10.2010 was never served upon the petitioner or the persons named; the court held that an uncommunicated order cannot be acted upon to affect rights, and any changes made in survey records based on it were unjustified. (Paras 14-16)
B) Administrative Law - Validity of Orders - Order Against Dead Person is Nullity - Enemy Property Act, 1968 - The order was made against late Natividade Dias, who had died in 1989; an order against a deceased person is a nullity and cannot be enforced or used to alter legal records. (Para 14)
C) Administrative Law - Service of Order - Onus of Proof - Enemy Property Act, 1968 - The respondents asserted service through the Mamlatdar but failed to produce any proof; the court found that the petitioner was not guilty of delay because the order was never served, and the respondents' claims of service were unsubstantiated. (Paras 12, 15-16)
Issue of Consideration
Whether the order dated 08.10.2010 under the Enemy Property Act, 1968 made against a dead person and without service is valid and enforceable.
Final Decision
Writ petition allowed; impugned order dated 08.10.2010 quashed as a nullity; respondents directed to restore survey records by removing the entry of the Custodian of Enemy Property; held that order against a dead person is void and uncommunicated order cannot be acted upon.
Law Points
- Legal points not extracted
- order against dead person is nullity
- uncommunicated order cannot be acted upon
- natural justice requires service of order
- failure to prove service negates delay plea
Case Details
2026 LawText (BOM) (06) 183
Writ Petition No.245/2018 (lead) and Writ Petition No.1187/2018
Citation not available, 2019:BHC-GOA:3389-DB
Mr. J.A. Lobo for Petitioner; Mr. Mahesh Amonkar, Central Government Standing Counsel for Respondent No.1; Mr. A.P. Wachasundar, Special Counsel for Respondent No.2; Mr. Deep Shirodkar, Additional Government Advocate for Respondents No.3 and 4
Union of India, through Ministry of Home Affairs, New Delhi; Custodian of Enemy Property; Collector of South Goa District Collectorate; Mamlatdar of Salcete
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Nature of Litigation
Writ petition under Article 226 challenging the deletion of the petitioner's grandfather's name from survey records and its substitution with the Custodian of Enemy Property; subsequently amended to quash the custodian's order dated 08.10.2010.
Remedy Sought
Petitioner sought a writ of certiorari to quash the order dated 08.10.2010 and restore the survey records to their original position by removing the entry of the Custodian of Enemy Property.
Filing Reason
Petitioner discovered that his grandfather's name was replaced by Custodian of Enemy Property in survey records without any notice; the foundation order was made against a dead person and never served.
Previous Decisions
No prior judicial decisions; the matter came directly before the High Court.
Issues
Whether the order dated 08.10.2010 made by the Custodian under Sections 5 and 24 of the Enemy Property Act, 1968 is valid having been made against a dead person.
Whether the respondents could act upon an uncommunicated order to alter survey records without service on affected parties.
Whether the petition is barred by delay and laches when the order was never served on the petitioner.
Submissions/Arguments
Petitioner contended that his grandfather was always an Indian national, the order was made without notice, never served, and was void as it was against a dead person.
Respondents argued that the property vested in the Custodian because the grandfather was a resident of Pakistan during the vesting period, the order was justified under the Enemy Property Act, and the petition was barred by delay.
Court noted that respondents' claim of service was false and unsupported by any evidence; respondents eventually admitted no proof of service existed.
Ratio Decidendi
An order made against a dead person is a nullity and cannot be enforced or acted upon. An administrative order that is not communicated to the parties whose rights it affects cannot be given legal effect. Failure to serve the order violates principles of natural justice and prevents any claim of delay or laches by the party relying on the order.
Judgment Excerpts
the impugned Order dated 8th October, 2010 is a nullity and the same could not have been acted upon.
the Respondents could have never acted on the basis of the impugned order dated 8th October,2010 without communicating such an order to the parties to whom it was intended to affect.
there is absolutely no material produced on record by any of the Respondents to indicate that the impugned order dated 8th October, 2010 was even served upon these persons.
Procedural History
Petitioner filed Writ Petition No.245/2018 in 2018 after discovering the mutation in survey records. Respondents filed a return justifying the substitution based on the custodian's order dated 08.10.2010. On 28.01.2019, the court directed proof of service of that order. The custodian's officer initially claimed proof existed but subsequently retracted and apologized; no proof was ever produced. Respondents No.3 and 4 (Collector and Mamlatdar) candidly admitted no records of service. Petitioner amended the petition to directly challenge the order. The court heard arguments and reserved judgment on 19.11.2019.
Acts & Sections
- Enemy Property Act, 1968: 2(b), 5, 24
