B.S.Chauhan, J. - (1.) -This writ petition has been filed for quashing the letters of opposite party Nos. 1 and 2 (contained in Annexures 1 and 3), and for restraining the respondents to dispossess the petitioners from the house in dispute or demand the rent for the same.
(2.) THE facts giving rise to this writ petition are that originally the property in dispute belonged to one Choudhari Mohd. Rafi who executed a registered sale deed in favour of the petitioners for a consideration of a sum of Rs. 9,000 on 15.7.1969 and the said sale-deed was registered on 11.7.1970. THE notice issued by the Tehsildar was served upon the petitioners to the effect that as the property in dispute belonged to Choudhari Mohd. Rafi who had gone to Pakistan, it was a property of enemy under the Enemy Property Act, 1968 (hereinafter called the Act). Petitioners were directed to show cause why they be dispossessed from the premises in dispute as the land vested in the custodian of the enemy properties. THE petitioners submitted the reply to the said show-cause. However, they received the letter dated 1.6.1971 issued by the custodian that the property had rightly been treated as an enemy property and, therefore, petitioners had no right to retain the property. Hence the present writ petition. Shri M. A. Qadeer, learned counsel appearing for the petitioners, has submitted that there is no adjudication upon the issue as to whether the land in dispute was an enemy property and neither the Tehsildar nor the Custodian had the competence to adjudicate upon such issue. The purpose of the Defence of India Rules or the Act had been only for taking the property in custody for the purposes of its management and maintenance and to prevent the enemy having any income from the said property by having any kind of business or trade from it, but the property does not vest in him. Therefore, the custodian of enemy property cannot claim any title over it. Morso, Choudhari Mohd. Rafi had himself executed the same in favour of the petitioners then without adjudicating the issue as to whether he could be enemy within the provisions of the Act, the order impugned could not be passed. Hence the order and the notice impugned in this regard are liable to be quashed. The case remained on board for three consequent days and it had been adjourned for want of appearance of the counsel on behalf of the Union of India. Even today none turned up.
(3.) WE have considered the submission made by Shri Qadeer and perused the record. The issue involved herein is no more res integra. The issue has been adjudicated upon by Courts time and again. The Division Bench of this Court in the case of Rameshwar Dayal v. Custodian Enemy Property of India, 1986 (2) ARC 376, considered the scope of sub-rule (1) of Rule 133-V of the Defence of India Rules, 1962 (hereinafter called the Rules, 1962) with Government of India notification dated 10.9.1965 and the Act as amended in 1977 and observed as under : "The Act further empowers the Custodian to deal with the property vested in him in the manner laid down by sections. We however do not find any provision in the Act or the Defence of India Rules which empower the custodian of enemy properties to, in a case where someone disputes that a particular property to be enemy property adjudicate or to give a determinative finding on the point in controversy. Likewise we do not find any provision in the Act or the rules which empowers the Custodian to take forcible possession of any property which he claims to have vested in him as enemy property. In our opinion whenever such controversy is raised it has to be resolved by raising the issue in appropriate civil proceedings." ;