The High Court of Delhi has upheld the vesting of a property situated in Old Delhi in the Custodian of Enemy Property for India (CEPI), dismissing a writ petition that challenged the vesting orders after a delay of 15 years.
The Division Bench, comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela, ruled that the petitioners failed to provide evidence that the original owner of the property remained an Indian national after 1964. The Court further held that the challenge suffered from “unexplained delay and latches.”
Background of the Case
The dispute concerned a property bearing no. 481 situated at Chatta Haji Mohd. Yusuf, Chitla Gate, Churiwalan, Delhi. The property was originally owned by Mr. Sheikh Barkatullah, who sold it to Mr. Haji Mohd. Muslim via a registered Sale Deed on December 13, 1961.
According to the respondents, Mr. Haji Mohd. Muslim migrated to Pakistan in 1964 and became a Pakistani national. Consequently, following a notification issued by the Government of India on September 10, 1965, under Rule 133-V(1) of the Defence of India Rules, 1962, all immovable properties held by Pakistani nationals stood vested in the Custodian.
The petitioners, who claimed to have resided in the property as tenants since the early 1960s, asserted that Mr. Haji Mohd. Muslim executed a Sale Deed on June 20, 1968, in favour of Mrs. Kausar Jamal. They argued that the property subsequently changed hands multiple times, eventually being sold to one Mr. Salah Uddin in 1995, with whom the petitioners entered into an agreement for construction rights.
In 1999, the Custodian received an affidavit from Karachi, Pakistan, sworn by Mr. Mohd. Manzar, claiming to be the son of Mr. Haji Mohd. Muslim. The affidavit stated that his father had lived in Pakistan from 1964 until his death in 1991 and had never visited India. Based on this information and a complaint, the Custodian issued a Vesting Order on July 1, 1999.
Subsequently, on October 22, 2010, the Custodian passed an order under Section 5 read with Section 24 of the Enemy Property Act, 1968, declaring that the property remained vested in the Custodian. The petitioners challenged this order and the subsequent rejection of their representation by the Ministry of Home Affairs on September 4, 2025.
Arguments of the Parties
The petitioners contended that they had perfected their rights over the property through long-standing possession. They argued that the Custodian and the Government of India wrongly ignored the Sale Deed executed in 1968 and subsequent deeds, relying solely on an inadmissible affidavit from Pakistan.
The petitioners also challenged the constitutional validity of Rules 133 (I)(1) and 133 (R) of the Defence of India Rules, 1962 and Rules 130 and 147 of the Defence of India Rules, 1971.
Conversely, the respondents argued that the property vested in the Custodian by operation of law in 1965 due to the owner’s migration. They emphasized that the petitioners failed to challenge the 2010 order for 15 years. The respondents submitted that inquiries with the Regional Passport Office revealed no record of an Indian passport being issued to Mr. Haji Mohd. Muslim.
Court’s Analysis
The Court rejected the petitioners’ claim that the property had validly changed hands through successive sale deeds. The Bench observed that the Custodian had based the 2010 order on relevant material, including the verification from the Regional Passport Office.
On the Evidence of Nationality
The Court noted:
“The Custodian has clearly recorded a finding that there was no material on record to establish that Mr. Haji Mohd. Muslim, after migrating to Pakistan, ever held an Indian Passport.”
The Bench affirmed the reliance on the communication from the Regional Passport Office, Delhi, which stated that no passport was found to have been issued to Mr. Haji Mohd. Muslim.
On Delay and Latches
The Court took strong objection to the delay in filing the petition. The judgment stated:
“This long and inordinate delay remains unexplained as no plausible reason comes forth for invoking the remedy under Section 18 of the Enemy Property Act, 1968 after such a long gap of 15 years.”
On Burden of Proof
Upholding the Government’s rejection of the petitioners’ representation, the Court held that the burden of proof lies on the claimant to dislodge the presumption of vesting. The Court observed:
“The petitioners have utterly failed to discharge their burden of establishing that the subject property did not vest in the Custodian.”
On Validity of Rules
Regarding the challenge to the Defence of India Rules, the Court held that Rule 133 (I)(1) merely defines “enemy subject” and does not infringe upon any Constitutional provisions. Similarly, the Court found the challenge to Rule 133 (R), which relates to void transfers, to be “completely irrelevant” as no specific declaration under that rule was made in this case.
Decision
The High Court dismissed the writ petition, affirming the order dated October 22, 2010, passed by the Custodian and the order dated September 4, 2025, passed by the Ministry of Home Affairs.
The Court concluded:
“We do not find any force in the writ petition, which is hereby dismissed.”
