Pakistani Beneficiaries’ ₹1.25 Lakh Interest Was Settled and Custodian Gave NOC in 2007; Bombay High Court Rejects Fresh Enemy Property Claim
Facts
Khan Bahadur Haji Shaikh Meherbaksh created a Wakf-al-aulad on 19 January 1926 for the benefit of his family and descendants. The Wakf Deed authorised its Muttawallis to sell and transfer Wakf properties.
Mehta Impex Private Limited purchased approximately 2,949.10 square metres of Wakf land at Juhu, Vile Parle, Mumbai, through a registered instrument dated 14 September 1988. At the time of purchase, there was no notification, mutation entry or revenue record showing that the property had vested in the Custodian of Enemy Property. Mehta Impex’s name was entered in the property card in January 1990.
One Wakf beneficiary, Nabilla Begum, and some members of her family were Pakistani nationals. Their beneficial interest was settled for ₹1.25 lakh under consent terms recorded by the Bombay High Court.
In 2004, the Custodian issued a notice and certificate treating the Wakf properties as enemy properties. The Wakf challenged them before the Bombay High Court.
In 2007, after consulting the Ministry of Law and Justice, the Custodian concluded that vesting of the Meherbaksh Wakf properties might not survive legal scrutiny. The Custodian issued a no-objection communication and agreed that:
- The 2004 notice and certificate would be withdrawn;
- The Wakf properties were not enemy properties;
- The Custodian had no right, title or interest in them; and
- Adverse endorsements in the revenue records would be deleted.
These terms were incorporated into the Bombay High Court’s consent order dated 14 December 2007.
Despite this, the Custodian initiated another inquiry in 2019 and, through a communication dated 28 December 2021, again claimed that the properties were enemy properties. In May 2023, revenue authorities inserted the Custodian’s name in the property cards and deleted the names of the recorded owners.
Mehta Impex, the Wakf and other purchasers filed three connected writ petitions challenging these communications and mutation entries. The detailed chronology appears in the published judgment.
Issues
- Whether the Wakf properties had ever validly vested in the Custodian of Enemy Property.
- Whether the presence of some Pakistani beneficiaries automatically converted the entire Wakf property into enemy property.
- Whether vesting could take place without a specific Central Government notification or a declaration and certificate under Section 5A.
- Whether the Custodian could direct mutation of revenue records without issuing notice and giving the owners an opportunity of hearing.
- Whether the 2017 amendments to the Enemy Property Act revived or continued vesting when no valid vesting had previously taken place.
- Whether Section 22A could nullify the Bombay High Court’s 2007 consent order recording the Custodian’s abandonment of its claim.
- Whether non-registration of the Wakf-al-aulad invalidated the Wakf.
- Whether the writ petitions were barred because an alternative remedy was available under Section 18 of the Enemy Property Act.
Petitioners’ Arguments
- The properties were never notified as enemy properties under Rule 133-V of the Defence of India Rules, 1962, or the corresponding 1971 Rules.
- No Central Government order had ever vested the properties in the Custodian.
- The properties were purchased through registered instruments long before the impugned communications and mutation entries.
- Except for Nabilla Begum and some members of her family, whose beneficial interests had already been settled, the Wakif, Muttawallis and other owners were not Pakistani nationals.
- The Custodian had expressly withdrawn its 2004 notice and certificate and had acknowledged through the 2007 consent terms that the Wakf properties were not enemy properties.
- The 2007 consent order was never reviewed, modified or set aside.
- No fresh inquiry, show-cause notice, hearing, declaration or Section 5A certificate preceded the 2021 and 2023 actions.
- The 2017 amendments could continue only a valid and existing vesting. They could not create vesting retrospectively where the property had never validly vested.
- The Wakf-al-aulad was validly created under the Mussalman Wakf Validating Act, 1913. Registration was not necessary at the time of its creation.
- The Custodian’s actions were without jurisdiction and violated natural justice.
Respondents’ Arguments
- The property automatically vested in the Custodian because members of the Wakif’s family, including Nabilla Begum, had migrated to Pakistan or were Pakistani nationals.
- Sections 5, 6 and 22A of the Enemy Property Act, as amended in 2017, continued the vesting despite any subsequent change in nationality, succession or transfer.
- The 2007 consent order could not defeat the retrospective and overriding effect of Section 22A.
- Since the property had vested in the Custodian, the Muttawallis could not have lawfully sold it, and the purchasers could not claim protection as bona fide purchasers.
- A fresh notice was unnecessary because vesting took place automatically by operation of law.
- The 1971 notification vested all properties belonging to or managed on behalf of enemy subjects in the Custodian.
- The Wakf was allegedly unregistered under the Muslim Wakf Act, 1954, and therefore lacked legal validity.
- The writ petitions should not be entertained because Section 18 provided an alternative statutory remedy before the Central Government.
Analysis of the Law
Validity of the family Wakf
The Court held that the Wakf-al-aulad was created under the Mussalman Wakf Validating Act, 1913. That legislation recognised family Wakfs created for the maintenance of the Wakif’s family and descendants, provided the ultimate benefit was reserved for religious, pious or charitable purposes.
Although the 1954 Act required registration of Wakfs, the prescribed consequence of non-registration did not include invalidation of the Wakf itself. Therefore, even if the Wakf was unregistered, its legitimacy was not automatically destroyed.
The Court did not finally adjudicate the validity of the purchasers’ title but observed that there was nothing on record showing that they had failed to acquire valid title for valuable consideration.
Two legally recognised modes of vesting
The Court identified two modes through which property could vest in the Custodian:
- By a specific notification or order issued by the Central Government under the Defence of India Rules, 1962 or 1971; or
- By a declaration issued by the Custodian after establishing the necessary jurisdictional facts, conducting an inquiry and issuing a certificate under Section 5A of the Enemy Property Act.
Neither mode was followed in the present case.
Notice and inquiry were mandatory
Under the Enemy Property Rules, 2015, the Custodian must:
- Identify and verify the property;
- Serve notice upon persons claiming title or interest;
- Give them an opportunity to show cause;
- Conduct the required inquiry;
- Declare the property as enemy property; and
- Issue a certificate under Section 5A.
Only after completing this procedure could the Custodian direct the Collector to insert its name in the revenue records. The 2021 communication and 2023 mutation entries were made without following this mandatory procedure.
Effect of the 2007 consent order
The Custodian had unconditionally withdrawn the 2004 notice and certificate. It had expressly acknowledged that the Wakf properties were not enemy properties and that it had no right, title or interest in them.
The 2007 consent order was based on a considered governmental decision taken after consultation with the Ministry of Law and Justice. It was never challenged, reviewed or modified.
The Court held that the subsequent attempt to reassert the same claim violated the binding consent order.
Effect of the 2017 amendment
Section 22A protects and continues the vesting of property that had already validly vested in the Custodian.
The Court held that the provision did not apply because the Wakf properties had never validly vested in the Custodian. Consequently, there was no earlier vesting or subsequent divesting that Section 22A could revive.
The Court further held that the 2007 order was passed in exercise of the High Court’s constitutional jurisdiction under Article 226. A statutory provision could not be interpreted as retrospectively nullifying or restricting that constitutional jurisdiction.
Alternative remedy
The rule requiring exhaustion of an alternative remedy is a rule of judicial prudence and not an absolute bar.
Section 18 contemplated an appeal against an order vesting property in the Custodian. Here, there was no valid vesting order, no Gazette publication and no Section 5A certificate.
Since the Custodian acted without jurisdiction, the High Court entertained the writ petitions despite the alleged alternative remedy.
Precedent Analysis
- Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdry, 1894 SCC OnLine PC 24
The Privy Council had questioned the validity of private family Wakfs where the charitable object appeared merely nominal.
The Mussalman Wakf Validating Act, 1913 was enacted to remove the uncertainty created by this decision and validate family Wakfs created for the Wakif’s family and descendants.
The Bombay High Court referred to this historical background while recognising the legitimacy of the Meherbaksh Wakf-al-aulad.
- Union of India v. Raja Mohammed Amir Mohammad Khan, (2005) 8 SCC 696
Under the pre-amendment Enemy Property Act, the Supreme Court held that the Custodian primarily took possession, control and management of enemy property and did not necessarily acquire title.
The Bombay High Court observed that the statutory basis of this ruling was altered by the 2017 amendments. It therefore did not directly apply the earlier ratio to the present dispute.
However, the case did not assist the Custodian because the fundamental requirement of valid vesting was itself absent.
- Lotus Classique Housing Society v. Union of India, Writ Petition No. 903 of 2025, Bombay High Court at Goa, decided on 22 September 2025
This decision held that the Enemy Property Rules, 2015 require identification, verification, notice, opportunity of hearing, inquiry and a declaration before property can be treated as enemy property.
The Court applied this precedent and held that the Custodian could not bypass the prescribed procedure and directly order mutation of the revenue records.
- Neelkamal Realtors Suburban Pvt. Ltd. v. Office of CEPI, 2023 SCC OnLine Bom 2314
The Division Bench held that the Custodian cannot restrain transfer or construction concerning a property unless it has already vested in the Custodian and has been declared as enemy property under Section 5A.
This supported the petitioners because there was no valid declaration or Section 5A certificate concerning the Wakf properties.
- Kerala High Court, W.P.(C) No. 25261 of 2009, decided on 9 November 2021
In that case, the original owner was proved to be a Pakistani national holding a Pakistani passport, and a specific 1965 notification included the property in question.
The Bombay High Court distinguished the decision because there was no comparable notification or evidence showing that the Meherbaksh Wakf property belonged to or was managed by an enemy subject.
- Maharashtra Chess Association v. Union of India, (2020) 13 SCC 285
The Supreme Court held that the constitutional jurisdiction of the High Court under Article 226 cannot be excluded or circumscribed by ordinary legislation.
Relying on this principle, the Bombay High Court held that Section 22A could not be interpreted as retrospectively wiping out the 2007 consent order passed in exercise of writ jurisdiction.
- Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1
The Supreme Court held that availability of an alternative remedy does not bar a writ petition where the authority has acted without jurisdiction or attempted to exercise a power without legal foundation.
Since no valid vesting order existed, the Custodian lacked jurisdiction to direct mutation. The petitioners were therefore not required to pursue the remedy under Section 18.
Court’s Reasoning
- The family Wakf was validly created, and non-registration did not automatically invalidate it.
- The presence of some Pakistani beneficiaries did not convert the entire Wakf property into enemy property.
- The interests of those Pakistani beneficiaries had already been settled and taken over by the Custodian.
- There was no evidence that the Wakif, Muttawallis, owners or managers of the property were Pakistani nationals or enemy subjects.
- No Central Government notification had vested the property under the 1962 or 1971 Rules.
- The 2004 notice and certificate had been unconditionally withdrawn by the Custodian.
- No fresh declaration or certificate under Section 5A was subsequently issued.
- The 2007 consent order conclusively recorded the Custodian’s abandonment of its claim and remained binding.
- Section 22A could continue only a property that had validly vested earlier; it could not create an original vesting where none existed.
- The 2021 communication and 2023 mutation entries were issued without notice, hearing, inquiry or jurisdiction.
- Since there was no appealable vesting order, the alternative remedy under Section 18 was not efficacious.
Conclusion
The Bombay High Court declared that the Meherbaksh Wakf properties, including the properties purchased by Mehta Impex and the connected petitioners, had never validly vested in the Custodian of Enemy Property.
The Custodian therefore had no jurisdiction to direct revenue authorities to insert its name in the property cards or delete the names of the recorded owners.
The Court consequently:
- Set aside the communication dated 28 December 2021;
- Set aside the communications issued in the connected petitions;
- Quashed the mutation entries made in May 2023;
- Allowed all three writ petitions; and
- Directed the parties to bear their own costs. The operative directions are recorded in paragraphs 70–72.
Case Details
Lead Case: Mehta Impex Private Limited & Anr. v. State of Maharashtra & Ors.
Connected Cases: Khan Bahadur Haji Shaikh Meherbaksh First Wakf v. State of Maharashtra & Ors. and Mantri Brothers & Ors. v. State of Maharashtra & Ors.
Court: High Court of Judicature at Bombay, Ordinary Original Civil Jurisdiction
Case Numbers: Writ Petition Nos. 1080 of 2024, 1233 of 2024 and 3746 of 2023
CNR Number: HCBM020173342023
Judges: Justice Suman Shyam and Justice Shyam C. Chandak
Judgment authored by: Justice Suman Shyam
Reserved on: 29 April 2026
Pronounced on: 22 July 2026
Result: All three writ petitions allowed. Enemy-property communications and mutation entries set aside; parties directed to bear their own costs
