Union of
India & ANR. Vs. Raja Mohammed Amir Mohammad Khan [2010] INSC 58 (19
January 2010)
Judgment
CIVIL
APPELLATE JURISDICTION I.A. NO. 47 AND 48 IN CIVIL APPEAL NO.2501 OF 2002 Union
of India ... Appellant Raja Mohammed Amir Mohammad Khan ... Respondent
ALTAMAS
KABIR, J.
1.
These two I.A. Nos.47 and 48 of 2008 have been filed on behalf of
the Respondent in connection with Contempt Petition No.87 of 2006 filed in
Civil Appeal No.2501 of 2002, inter alia, for a direction upon the Union of
India, and the Custodian of Enemy Property to release to the Respondent a sum
of Rs.1,77,38,828.11, being 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 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 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.
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.
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.
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.
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.
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.
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