Case Note & Summary
The Bombay High Court allowed three writ petitions challenging the communications and mutation entries by which the Custodian of Enemy Property sought to vest certain Wakf properties as enemy property. The Wakf 'Khan Bahadur Haji Shaikh Meherbaksh' was created in 1926 for the benefit of family members, with some beneficiaries later becoming Pakistani nationals. In 1984, a beneficiary filed a suit for her share, and a compromise was reached under which Pakistani beneficiaries received a sum in full settlement. Subsequently, the Custodian of Enemy Property issued a notice and certificate under Section 12 of the Enemy Property Act, 1968, vesting the Wakf properties. This was challenged in Writ Petition No. 1296 of 2004, where a consent order was passed on 14.12.2007 recording the withdrawal of the notice and certificate, and the matter was disposed of. Despite that, the Deputy Custodian issued fresh communications in 2012 and 2021 claiming the properties had vested in him, and mutation entries were made in 2023 deleting the names of the purchasers and Wakf from revenue records. The petitioners argued that the earlier consent order was binding and operated as res judicata, and that mutation entries do not affect title. The respondents contended that the earlier order only covered the share of Pakistani nationals and that the matter was pending before the Central Government under Section 18 of the Act. The Court, after examining the scheme of the Enemy Property Act, held that once a consent order is passed by the High Court setting aside the vesting certificate, the Custodian cannot re-examine the issue. The principle of res judicata applies to writ proceedings, barring re-agitation of the same issue. Mutation entries being fiscal in character cannot override judicial orders. The communications were issued without notice and in violation of natural justice. The pendency of Section 18 proceedings does not bar writ jurisdiction when the action is without jurisdiction. Consequently, the impugned communications and mutation entries were quashed, and the respondents were directed to restore the petitioners' names in the revenue records.
Headnote
A) Enemy Property - Vesting - Section 12 Enemy Property Act, 1968 - Consent Order by High Court operational as final adjudication - The earlier Writ Petition No. 1296 of 2004 ended with a consent order setting aside the notice and certificate of vesting, which was not kept pending any further review - Held that the Custodian cannot subsequently issue fresh communications or seek vesting of the same property as the matter attained finality (Paras 13-30). B) Civil Procedure - Res Judicata - Section 11 CPC - Principles apply to writ proceedings - The consent order in the earlier writ petition constitutes a judgment on merits and operates as res judicata or issue estoppel, barring the Custodian from re-agitating the same issue - Held that the subsequent actions of the Custodian are hit by res judicata (Paras 24-25). C) Revenue Law - Mutation Entry - Maharashtra Land Revenue Code, 1966 - Mutation entries are fiscal in nature and do not create or extinguish title - Once a property is established as non-enemy property by court order, revenue authorities cannot make entries to the contrary without any adjudication - Held that the impugned mutation entries made without notice and in disregard of the court order are illegal and liable to be quashed (Paras 26-27). D) Administrative Law - Exercise of Power - Enemy Property Act, 1968 - Custodian must act within legal bounds and follow natural justice - The impugned communications were issued without giving the petitioners an opportunity of hearing and in violation of principles of natural justice - Held that the communications and subsequent mutation entries are void ab initio (Paras 28-29). E) Constitutional Law - Writ Jurisdiction - Article 226 Constitution of India - Alternative remedy not absolute bar - Despite pendency of an application under Section 18 of the Enemy Property Act before the Central Government, the High Court can exercise writ jurisdiction when the impugned action is without jurisdiction or violates fundamental rights - Held that the writ petitions are maintainable (Para 29).
Issue of Consideration
Whether the communications dated 16.12.2012 and 28.12.2021 and the mutation entries inserting the name of the Custodian of Enemy Property in the revenue records were legal and valid, and whether the properties had vested in the Custodian under the Enemy Property Act, 1968
Final Decision
The writ petitions are allowed. The impugned communications dated 16.12.2012 and 28.12.2021 and the mutation entries made on 17.05.2023 and 30.05.2023 are quashed and set aside. The respondents are directed to restore the names of the petitioners in the revenue records, including property cards, within eight weeks.
Law Points
- Legal points not extracted
- Enemy property can only vest in custodian as per Section 12 Enemy Property Act
- 1968
- Consent order by High Court accepting withdrawal of vesting certificate is binding and operates as res judicata
- Mutation entries do not confer title and cannot override judicial orders
- Custodian cannot re-examine issues already settled by court order
- Wakf property is not automatically enemy property merely because some beneficiaries were Pakistani nationals
