New Delhi: The Supreme Court on Tuesday
directed the Justice D P Wadhwa Commission to examine afresh
the allegations of several claimants that the custodian of the
42 "Enemy Properties" in Lucknow city was conniving with the
occupants to deny them their rights.
A three-judge bench of justices Altamas Kabir, Cyriac
Joseph and S S Nijjar passed the order while disposing off a
contempt petition alleging that the custodian was "conniving"
with the occupants and refusing to restore their properties
despite an earlier ruling of the apex court.
It was alleged by the petitioners that even the
Wadhawa panel failed to fairly determine the occupancy rights
of the claimants despite the fact that several of the
occupants had filed sworn affidavits that they they were in
possession of the property post 1965, 1979 and even 1989.
Under the Enemy Property Act of 1968, the government-
appointed custodian was empowered to take over and manage the
properties of those who fled the country to Pakistan after the
partition and the cut-off date for such property to be seized
However, the apex court asked Justice (retd) Wadhawa
to examine the claim of the petitioners and similarly placed
persons and said it would examine later the report of the
On October 21, 2005, the apex court had quashed the
government`s decision to take over thousands of acres of
property belonging to those who fled to Pakistan.
After the apex court`s decision, the government had
come out with an ordinance in July, 2010, and also introduced
a Bill in Parliament for reversing the judgement and vesting
the properties under the control of the custodian.
The apex court had directed restoration of the properties
to one of the claimants Mohammed Amir Mohammed Khan, heir of
the Raja of Mahabubad who had left the country. The order had
a cascading effect on 2,000-odd other propertes spread across
The apex court had ruled that Mohammed Amir Mohammed
Khan could not be termed an ?enemy? for the purposes of the
1968 Act, or otherwise, having been an Indian citizen all his
Enemy properties are those left behind by people who
went to Pakistan after the Partition. Currently, there are
over 2000`enemy properties` across the country.
Among the enemy properties, 1468 are in Uttar Pradesh,
351 in West Bengal, 66 in Delhi, 63 in Gujarat, 40 in Bihar,
35 in Goa, 25 Maharashtra, 24 in Kerala, 21 in Andhra Pradesh
and 93 in other states.
The apex court took the view that it has the power to
direct divesting of the property held by the custodian
although the 1968 Act conferred only the central government
with such a power.
In July 2010, the President had promulgated an
ordinance, which formed the basis of the Bill introduced in
Parliament, and sought to restore the position that existed
prior to the Supreme Court judgment.
The ordinance reversed any divesting of enemy
property by any means and sought to take away the power of
any court to order any divesting of enemy property from the
The proposed Bill is aimed at preventing Indian family
members of those who migrated to Pakistan at the time of the
Partition from going to court to regain possession of the
property of their forefathers, seized as enemy property, and
vesting it in a custodian.
After the Partition of India, Raja of Mehmoodabad went to
Pakistan in 1957 but his wife Kaneez Abidi and son Mohammad
Amir Mohammad Khan stayed back in India.
The government declared the properties of the migrated
people vacant in 1962. When Raja Mehmoodabad died in 1973, his
son Mohammad Amir Mohammad Khan claimed rights to the property
and later in 1985 knocked the door of apex court for justice.
After the court?s interference in 2005, the occupants were
asked to leave the properties.
The apex court had ordered setting up of Wadhawa
Commission for determining the possessionary rights of
original claimants as at present most of them are under the
possession of government officers, public sector undertakings
besides private individuals.