IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

I.A. NO. 47 AND 48  IN  

CIVIL APPEAL NO.2501   OF 2002

Union of India ... Appellant  Vs.

Raja Mohammed Amir Mohammad Khan  ... Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. These two I.A. Nos.47 and 48 of 2008 have been  

filed on behalf of the Respondent in connection  

with Contempt Petition No.87 of 2006 filed in  

Civil Appeal No.2501 of 2002, inter alia, for a  

direction  upon  the  Union  of  India,  and  the  

Custodian of Enemy Property to release to the  

Respondent  a  sum  of  Rs.1,77,38,828.11,  being

held by the said Custodian on account of the  

Estate of the Raja of Mahmudabad.  

2. It  may  be  recalled  that  in  Writ  Petition  

No.1524 of 1977 filed by the applicant herein,  

Raja  Mohammed  Amir  Mohammad  Khan,  (Raja  MAM  

Khan for short), the Bombay High Court, while  

allowing the writ petition, had directed the  

return  of  the  properties  of  the  Raja  of  

Mahmudabad to the applicant. The decision of  

the Bombay High Court was challenged by the  

Union of India in this Court in Civil Appeal  

No.2501  of  2002,  which  was  disposed  of  on  

21.10.2005,  inter  alia,  with  the  following  

directions :

“The  High Court  had refused  to grant  the  mesne  profits  to  the  respondents,  against  the  aforesaid  finding  no  appeal  has  been  filed by the respondent. Since no appeal has  been filed, the appellants are not entitled  to the mesne profits till the passing of the  interim orders of status quo by this Court  

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on  5.4.2002.  The  respondent  would  be  entitled  to  the  actual  mesne  profits  by  filing  a  suit,  if  so  advised  for  this  period. However, whatever moneys have been  collected by the appellants by way of rent  or  lease  etc.  after  5.4.2002,  till  the  handing  over  of  the  possession  of  these  properties  to  the  respondent  be  deposited/disbursed to the respondent within  8 weeks.

The appellants are directed to get the  buildings  (residence  or  offices)  vacated  from  such  officers  and  handover  the  possession  to  the  respondent  within  eight  weeks. Similarly, appellants are directed to  handover the possession of other properties  as well. The officers who are in occupation  of the buildings for their residence or for  their  offices  are  also  directed  to  immediately  vacate  and  handover  the  buildings  or  the  properties   to  the  Custodian  to  enable  him  to  handover  the  possession to the respondent in terms of the  directions given. Failure to comply with the  directions to handover the possession within  8 weeks will constitute disobedience of this  

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order  and  the  appellants  would  be  in  contempt of  this order. Respondent would be  

at liberty to move an application in this  Court  if  the  above  directions  are  not  complied with for taking appropriate action  against  the  appellants  or  their  agents.  Since  the  appellants  have  retained  the  possession of the properties illegally and  in a high handed manner for 32 years the  appeal  is  dismissed  with  costs  which  are  assessed at Rs. 5 lacs.”

3. In I.A. No. 47 it has been stated that when the  

properties were taken over by the Custodian,  

the  amounts  due  and  payable  by  the  various  

occupants were collected by the office of the  

Custodian and credited to the account of the  

Estate  of  Mahmudabad  in  the  Ledger  of  the  

Custodian maintained in his office at Mumbai.  

In view of the judgments of the Bombay High  

Court and this Court, holding the applicant to  

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be the sole legal heir and successor of the  

Late Raja of Mahmudabad, he had succeeded to  

the properties belonging to the late Raja which  

had been taken over by the Custodian of Enemy  

Property  under  the  provisions  of  the  Enemy  

Property  Act,  1968.  It  has  further  been  

contended  that  it  could  not,  therefore,  be  

disputed that the applicant is entitled to the  

moneys standing to the credit of the Estate of  

Mahmudabad in the Ledger Account maintained by  

the Custodian of Enemy Property.

4. According  to  the  applicant,  after  continuous  

efforts,  a  copy  of  the  Ledger  Account  was  

supplied to him in the month of December, 2007,  

by  the  office  of  the  Custodian  of  Enemy  

Property  and  on  perusal  of  the  same  it  was  

discovered  that  a  sum  of  Rs.1,77,38,828.11  

stood credited to the account of the applicant  

as on 27.3.2002.  On coming to know of the  

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above, the applicant requested the Custodian by  

his  letter  dated  27.12.2007,  to  remit  the  

amount which stood to his credit in the Ledger  

maintained by the office of the Custodian.

5. As no response was received to the said letter,  

another letter was issued to the Custodian on  

6.2.2008, and in his reply the said Custodian  

replied  that  there  was  no  provision  in  the  

Enemy Property Act, 1968, to refund any amount  

received from Enemy Property. In response it  

was also indicated clearly that no amount was  

admissible to the applicant by way of refund.

6. It  is  on  account  of  such  response  from  the  

Custodian of Enemy Property that I.A.No.47 of  

2008  was  filed  for  the  reliefs  which  are  

indicated in the prayer.

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7. Appearing for the applicant, Mr. P.V. Kapur,  

learned Senior Advocate, submitted that after  

the clear and unambiguous directions given by  

this Court in its judgment dated 21.10.2005 in  

Civil Appeal No.2501 of 2002, there could be no  

justification   for  the  Custodian  of  Enemy  

Property to object to making over of the moneys  

collected  by  him  on  account  of  rents  and  

profits to the applicant. Mr. Kapur submitted  

that the intent of the order of this Court was  

very clear that on being found to be the sole  

legal  heir  of  the  Raja  of  Mahmudabad,  the  

applicant was entitled to his entire estate,  

which  included  all  amounts  which  had  been  

collected from the properties of the Estate and  

credited to the account of the Estate in the  

Ledger  maintained  by  the  office  of  the  

Custodian of Enemy Property.

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8. As an alternate submission Mr. Kapur urged that  

in  addition  to  the  directions  contained  

regarding disbursement to the applicant of the  

amount collected by the appellant by way of  

rent or lease after 5.4.2002 till the handing  

over of the possession of the properties to the  

applicant  this  Court  had  also  directed  the  

appellants to get the immovable properties of  

the  Estate  vacated  and  to  hand  over  the  

possession  of  the  same  to  the  

respondent/applicant  within  8  weeks.  The  appellants were also directed to handover the  possession  of  the  other  properties  as  well.  (Emphasis supplied)

9. Mr.  Kapur  submitted  that  under  the  general  

directions given by this Court in respect of  

properties  belonging  to  the  Estate  of  

Mahmudabad, which included the amount held by  

the  Custodian  on  account  of  rents  collected  

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from the Estate of the Raja of Mahmudabad prior  

to 5.4.2002, the said Custodian and the Union  

of  India  were  bound  to  make  over  the  said  

amount  collected  by  the  Custodian  to  the  

applicant.

10. Resisting the application filed on behalf of  

the  respondent  Mr.  MAM  Khan,  the  learned  

Additional  Solicitor  General,  Ms.  Indira  Jai  

Singh submitted that in view of the categorical  

direction  given  in  the  order  of  21.10.2005  

passed by this Court, the question of making  

payment  of  the  amount  in  question  to  the  

respondent  did  not  arise.  Ms.  Jai  Singh  

submitted that this Court had recorded the fact  

that the High Court had refused to grant mesne  

profits  to  the  appellant  and  against  that  

decision  no  appeal  had  been  filed  by  him.  

Consequently, the applicant was not entitled to  

the  mesne  profits  till  the  passing  of  the  

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interim order of status quo by this Court on  

5.4.2002.  In the said order this Court went on  

to say that the applicant would be entitled to  

the actual mesne profits for the period prior  

to the passing of the interim order of status  

quo by filing a suit.  However, whatever moneys  

that had been collected by the appellant by way  

of rents after 5.4.2002 till the handing over  

of  the  possession  of  the  properties  to  the  

applicant, should be deposited/disbursed to the  

respondent  within  8  weeks.  Ms.  Jai  Singh  

submitted  that  the  rents  collected  from  the  

said properties after 5.4.2002 till the handing  

over of the possession of the properties to the  

applicant, had already been disbursed to him as  

directed.   However,  since  other  than  the  

directions for recovery of mesne profits for  

the period prior to 5.4.2002 no other direction  

had been given by this Court for disbursement  

of the rents and profits from the said Estate  

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prior to 5.4.2002, the claim of the applicant  

was misconcieved.  Ms. Jai Singh contended that  

if it had been the intention of this Court that  

the applicant would be entitled even to the  

rents and profits prior to 5.4.2002, then it  

would have given a clear direction for payment  

of the entire amount to the applicant.

11. As to the alternate submission of Mr. Kapur,  

the learned ASG urged that in view of what has  

been stated hereinabove, it could not have been  

the  intention  of  this  Court  to  release  the  

entire  sum  of  Rs.1,77,38,828.11  being  the  

amount of the rents and profits collected from  

the Estate of the Raja prior to 5.4.2002. Ms.  

Jai  Singh  submitted  that  the  claim  of  the  

applicant  was  misconceived  in  view  of  the  

directions contained in the Judgment of this  

Court dated 21.10.2005.

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12. In addition to her aforesaid submissions, Ms.  

Jai Singh also urged that neither of the two  

applications were maintainable since the appeal  

and the contempt petition in which they have  

been  filed  have  already  been  disposed  of  

earlier. Ms. Jai Singh submitted that having  

disposed  of  the  appeal  and  the  contempt  

petition, this Court had become functus officio  

and  was  bereft  of  jurisdiction  for  passing  

orders on the said two applications which are  

not  in  the  nature  of  consequential  reliefs  

being claimed from the disposed of matters but  

substantive  applications  raising  substantial  

claims, de hors the reliefs prayed for in the  

appeal and the contempt petition. Ms. Jai Singh  

referred to various decisions on the question  

of the maintainability of applications filed in  

concluded proceedings, which we may refer to if  

it becomes necessary to do so.

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13. Replying to Ms. Jai Singh’s submissions, Mr.  

Kapur submitted that the answer to the question  

as to what is to be done in regard to the rents  

and  profits  collected  prior  to  5.4.2002,  is  

clearly provided in Section 18 of the Enemy  

Property  Act,  1968,  which  provides  that  the  

Central Government may by general or special  

order, direct that any enemy property vested in  

the Custodian under this Act and remaining with  

him shall be divested from him and be returned,  

in such manner as may be prescribed, to the  

owner thereof or to such other person as may be  

specified in the direction and thereupon such  

property shall cease to vest in the Custodian  

and shall revest in such owner or other person.  

It was submitted that there was neither any  

legal nor moral justification for the Custodian  

to hold on the said amount lying to the credit  

of the Estate of the Raja of Mahmudabad which  

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had devolved upon the applicant as held by the  

Bombay High Court and confirmed by this Court.  

14. On a careful consideration of the submissions  

made on behalf of the respective parties, we are of  

the view that a conscious distinction with regard  

to the rents and profits collected from the Estate  

of  Raja  of  Mahmudabad  prior  to  5.4.2002  and  

thereafter,  had  been  made  by  this  Court  while  

disposing of Civil Appeal No.2501 of 2002 on 21st  

October, 2005.  It was clearly the intention of the  

Court  that  in  respect  of  rents  and  profits  

collected after the order of status-quo passed on  

5th April, 2002, the same were to be made over by  

the Custodian to the applicant, but as far as the  

rents and profits collected prior to that date were  

concerned, the applicant would be required to file  

a suit to recover the same.   We have been informed  

that, in fact, such a suit has been filed by the  

applicant and the same is pending decision.

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15. Notwithstanding  the  use  of  the  expression  

“mesne profits” in the first pat of the directions  

given by this Court, what was intended was that all  

rents  and  profits  collected  in  respect  of  the  

Estate of Raja of Mahmudabad prior to the order of  

status-quo passed on 5th April, 2002, would have to  

be  treated  separately  and  not  with  the  other  

collections made from the estate.  The use of the  

expression  “mesne  profits”,  in  our  view,  would  

cover all the monies received by the Custodian for  

the  period  prior  to  5th April,  2002,  and  would,  

thereafter, be covered by the aforesaid order of  

this Court directing the appellant to release to  

the respondent the sum of Rs.1,77,38,828.11 held by  

the Custodian to the credit of the Estate of Raja  

of  Mahmudabad.   The  interpretation  sought  to  be  

given  to  the  second  part  of  this  Court’s  order  

extracted above, will not include handing over of  

possession  of  the  rents  and  profits  prior  to  

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5.4.2002, which had been excluded in the previous  

paragraph of the judgment of this Court.  In our  

view,  the  directions  given  to  the  appellants  to  

hand  over  the  possession  of  other  properties,  

mentioned in the second part of the order extracted  

hereinabove, relates to the immovable properties of  

the  estate  and  not  to  the  rents  and  profits  

collected by the Custodian from the estate prior to  

5.4.2002.  The two sets of properties are dealt  

with separately and are on two different settings.  

Mr. Kapur’s attempt to include both the movable and  

immovable  properties  of  the  Estate  of  Raja  of  

Mahmudabad is misconceived and is not acceptable.  

Since the amount recorded in the Custodian’s ledger  

as  being  credited  to  the  Estate  of  Raja  of  

Mahmudabad represents the collections made from the  

estate prior to the order of status-quo passed on  

5th April, 2002, the Respondent has been given leave  

to recover the same by filing a suit.  In view of  

the said order passed by this Court, it can no  

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longer be argued that the directions to make over  

the possession of other properties to the applicant  

also included the rents and profits collected from  

the estate prior to 5.4.2002.   

16. We are not, therefore, inclined to allow I.A.  

Nos.47 and 48, which are, accordingly, dismissed.  

The applicant will be free to pursue his claim for  

the  said  amount  of  Rs.1,77,38,828.11  before  the  

Civil Court.  

17. There will, however, be no order as to costs.  

________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 19.01.2010.   

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