1. Court’s decision
The Delhi High Court has dismissed a writ petition challenging the vesting of a 19th-century Old Delhi property in the Custodian of Enemy Property for India. The Court upheld two impugned orders—one issued by the Custodian in 2010 under Sections 5 and 24 of the Enemy Property Act, 1968, and another issued in 2025 by the Ministry of Home Affairs under Section 18 rejecting the petitioners’ representation. The Bench held that the petitioners failed to discharge their statutory burden of proving that the property did not qualify as enemy property. The Court also held that the 15-year delay in challenging the 2010 order was unexplained and fatal. Additional challenges to various provisions of the 1962 and 1971 Defence of India Rules were also rejected.
2. Facts
The dispute concerns property No. 481, Chatta Haji Mohd. Yusuf, Chitla Gate, Churiwalan, Delhi. The property was originally owned by Sheikh Barkatullah and sold to Haji Mohd. Muslim in 1961. Petitioners claim to have resided as tenants since the early 1960s. In 1965, following Indo-Pak hostilities, a nationwide notification under Rule 133-V(1) vested all immovable properties belonging to Pakistani nationals in the Custodian of Enemy Property. According to the government, Haji Mohd. Muslim migrated to Pakistan in 1964 and remained there until his death in 1991. In 1999, his purported son filed an affidavit from Karachi confirming his father’s Pakistani nationality and continuous residence in Pakistan. An enquiry led to a 1999 vesting order, followed by a detailed order on 22.10.2010 holding that the property had vested in the Custodian by operation of law. The petitioners challenged this order only in 2025. Their representation under Section 18 was rejected by the Central Government on 04.09.2025. They now sought to quash both orders, invalidate the 1962 and 1971 Defence Rules, and nullify the 1999 affidavit.
3. Issues
The High Court considered:
(1) Whether the subject property validly vested in the Custodian under the Enemy Property Act following the 1965 notification.
(2) Whether the petitioners or their predecessors-in-interest proved that Haji Mohd. Muslim was an Indian national at the relevant time, thereby negating the vesting.
(3) Whether the 2010 vesting order could be challenged after 15 years.
(4) Whether the petitioners’ Section 18 representation filed in 2025 complied with statutory timelines.
(5) Whether the Defence of India Rules (1962 & 1971), specifically Rules 133(I)(1), 133(R), 130 and 147, were unconstitutional.
(6) Whether the affidavit affirmed in Karachi could be treated as invalid for vesting purposes.
4. Petitioners’ arguments
The petitioners argued that the property had changed hands through valid sale deeds executed in 1968, 1994, and 1995, showing that it was not enemy property at all. They contended that they had resided in the building for decades and had been granted construction rights by later purchasers. They submitted that the 2010 vesting order relied solely on an affidavit affirmed before a Karachi Oath Commissioner by an individual claiming to be the owner’s son—an affidavit they characterised as inadmissible. They asserted that no evidence existed establishing that Haji Mohd. Muslim became a Pakistani national in 1964, and therefore any conclusion that the sale deed of 1968 was invalid was unfounded. They further argued that Rules 133(I)(1), 133(R), 130, and 147 were unconstitutional and ultra vires. They also sought to nullify the 1999 affidavit and requested that all orders of vesting be quashed.
5. Respondents’ arguments
The Union of India contended that the property automatically vested in the Custodian in 1965 after the Defence of India Rules notification. They maintained that the owner had indeed migrated to Pakistan and that the 2010 order relied not only on the Karachi affidavit but also on verification attempts regarding the owner’s alleged Indian passport. The Regional Passport Office informed the Custodian in writing that no such passport was ever issued. The State argued that the petitioners offered no evidence showing that the owner was present in India in 1968 or that he was legally capable of transferring title. They emphasised that no predecessor-in-interest ever challenged the 2010 vesting order. The petitioners’ representation was filed 15 years late, beyond the 30-day limit under Section 18, and thus legally incompetent. They submitted that the constitutional challenges to the Defence Rules were irrelevant to the factual dispute.
6. Analysis of the law
Under the Enemy Property Act, once a property is vested in the Custodian by operation of a valid statutory notification, the law presumes that the Custodian holds title unless the claimant rebuts this presumption with concrete evidence. Section 18 requires that any representation challenging vesting be filed within 30 days—not 15 years. Courts consistently hold that unexplained delay and laches are sufficient grounds to reject writ relief. Section 6 of the Act prohibits any transfer of enemy property by a person who has become an “enemy subject,” thereby rendering such transfers void. The Court examined the petitioners’ constitutional challenges to the Defence of India Rules, finding no doctrinal foundation since the rules merely define enemy subjects and govern transfers by them. A definitions clause cannot be struck down absent manifest unreasonableness or constitutional conflict.
7. Precedent analysis
The judgment does not cite prior case law, but the Court’s approach aligns with long-standing jurisprudence:
• Vesting of enemy property triggers a statutory presumption favouring the Custodian.
• The burden of proof lies entirely on the claimant seeking divestment.
• Delay in challenging vesting orders is fatal, especially when statutory remedies contain strict timelines.
• Transfers executed by enemy subjects after vesting are void, irrespective of subsequent sales or long-standing occupation.
The Court followed these principles in holding that neither possession nor subsequent sale deeds could override the 1965 notification and the 2010 vesting order.
8. Court’s reasoning
The Court found no evidence demonstrating that Haji Mohd. Muslim held Indian nationality after migrating to Pakistan in 1964. The only passport record placed before the Custodian was found not to exist, as confirmed by the Regional Passport Office. The Karachi affidavit, while not decisive alone, corroborated the government’s position that the owner had permanently relocated to Pakistan. Given this, any alleged sale deed executed by him in 1968 was invalid under Section 6 of the Act. The Court stressed that neither the petitioners nor any purported successors ever challenged the 2010 order until 2025. Section 18’s 30-day limit was breached by 15 years, and the petitioners provided no explanation. The High Court also rejected the constitutional challenges, noting that Rule 133(I)(1) merely defined “enemy subject,” and Rule 133(R) empowered the government to invalidate transfers by enemies—neither of which violated constitutional principles. The 1971 Rules were found equally inapplicable and constitutionally neutral. Consequently, the Court held the vesting lawful and the petition devoid of merit.
9. Conclusion
The Court concluded that the petitioners failed to rebut the statutory presumption of vesting and did not provide evidence to show that the original owner retained Indian nationality after 1964 or that he was capable of validly executing sale deeds in 1968. The long delay in challenging the 2010 order made the writ petition unsustainable. The constitutional challenges lacked substance. The writ petition was dismissed, and no relief was granted.
10. Implications
This ruling underscores that enemy property determinations carry a strong statutory presumption in favour of the Custodian, and long delays in seeking divestment are fatal. The Court reaffirmed that transfers made by enemy subjects after vesting are void, regardless of possession, tenancy claims, or subsequent chain-of-title transactions. It also clarifies that constitutional challenges to definitional rules in wartime legislation must meet a high threshold and cannot be used as a backdoor to undo vesting decisions. The judgment will shape future litigation concerning heritage properties in Old Delhi and other areas where pre-Independence and mid-20th century migration histories intersect with enemy property law.
CASE LAW REFERENCES
1. Statutory presumption under the Enemy Property Act
Holding: Once a property is vested, the Custodian’s title stands unless rebutted.
Use in this case: Applied to uphold vesting due to lack of contrary evidence.
2. Transfers by enemy subjects void under Section 6
Holding: Any transfer after a person becomes an enemy is invalid.
Use in this case: Rendered the alleged 1968 sale deed ineffective.
3. Doctrine of delay and laches
Holding: Unexplained delay bars writ relief.
Use in this case: Fifteen-year delay led to rejection of challenge to the 2010 order.
FAQs
1. Why did the Delhi High Court dismiss the challenge to the vesting order?
Because the petitioners failed to produce evidence showing that the original owner was an Indian national in 1968, and they challenged the vesting order after 15 years—far beyond the 30-day statutory period under Section 18.
2. Can sale deeds executed by a person who migrated to Pakistan remain valid?
No. Under Section 6 of the Enemy Property Act, any transfer by an “enemy subject” after vesting is void. The Court held that alleged transfers in 1968 could not override the statutory vesting of 1965.
3. Why were the Defence of India Rules not struck down?
Because the challenged rules were merely definitional or enabling provisions and did not infringe constitutional rights. The petitioners failed to show any constitutional inconsistency.