IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO. 47 AND 48
IN
CIVIL APPEAL NO.2501 OF 2002
Union of India ... Appellant
Vs.
Raja Mohammed Amir Mohammad Khan ... Respondent
J U D G M E N T
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
2
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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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.
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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.
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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
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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.
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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
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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
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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.