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CASE NO.: Appeal (civil)  2501 of 2002

PETITIONER: Union of India & Another                                          

RESPONDENT: Raja Mohammed Amir Mohammad Khan         

DATE OF JUDGMENT: 21/10/2005

BENCH: ASHOK BHAN & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

BHAN, J.  

       Union of India has filed this appeal by leave  of the Court against the final judgment/order dated  21.9.2001 passed by the High Court of Judicature at  Bombay in Writ Petition No.1524 of 1997 whereby the  High Court has allowed the writ petition filed by  the respondent.  High Court has further directed  the return of the property to the respondent.   

In order to appreciate the controversy arising  in this appeal the facts are required to be set in  detail.

       Raja Mohammed Amir Mohammad Khan, writ  petitioner/respondent herein is the son of Raja of  Mahmudabad  in Distt. Sitapur Uttar Pradesh.  In  December, 1957 the erstwhile Raja of Mahmudabad  (father of the respondent) migrated to Pakistan and  became a citizen of Pakistan.  However, the  respondent and his mother Rani Kaniz Abdi (since  deceased) continued to reside in India as Indian  citizen.

       The Defence of India Rules, 1962 made under  Section 3 of the Defence of India Ordinance, 1962  came into force with effect from 5.11.1962.  Rule  133-V, inter alia, provided that the Central  Government was authorised to appoint a Custodian of  Enemy Property for India to preserve enemy  property.   Defence of India Ordinance, 1962 was  repealed by Section 48 of Defence of India Act,  1962.  The 1962 Rules, however, made under the  Defence of India Ordinance, 1962 were deemed to be  the rules under the Defence of India Act.   Thereafter, the Government of India in exercise of  powers under sub-rule (1) of Rule 133-V issued the  Enemy Property (Custody & Registration) Order,  1962.  In the year 1965 hostilities between India  and Pakistan broke out and on 11.9.1965 the Enemy  Property (Custody & Registration) Order, 1965 (for  short "the Enemy Property Order, 1965") was issued  by the Government of India.  The effect of the  order was that all immovable property in India  belonging to or held by or managed on behalf of  Pakistani nationals stood vested in the Custodian  of Enemy Property in India with immediate effect.  

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Since the father of the respondent was a national  of Pakistan his property also vested in the  Custodian.  Enemy Property Ordinance, 1968 was  promulgated which was later on replaced by the  Enemy Property Act on 6.7.1968.         Enemy Property  vested in the Custodian under the Defence of India  Rules, 1962, continued to be vested in the  custodian under the said Act.   

       The erstwhile Raja of Mahmudabad died in London  on 14.10.1973.  The respondent herein is the sole  heir of late Raja by virtue of Section 22 of Oudh  Estates Act, 1869 as also by virtue of custom and  usage of the respondent family.  Respondent made  numerous representations, including the one dated  18.5.1979 requesting the Union of India as well as  the custodian to release the property as the same  could not continue to vest with the Custodian after  the death of respondent’s father and having vested  in him, as an Indian citizen.  Director Vigilance,  Ministry of Commerce wrote to the respondent on  7.3.1981 inter alia, informing him that the  question of release had been taken up by the  Cabinet and the Cabinet had decided to release 25%  of the said property in favour of the legal heirs  and successors of the respondent’s father.  Another  communication dated 24.9.1981 was received by the  respondent from the Director Vigilance, Ministry of  Commerce of Union of India informing him that they  would release 25% of the property to the legal  heirs of the father of the respondent who had  always been Indian citizens.  Respondent was  requested to contact Custodian of Enemy Property  for India and complete the necessary procedural and  legal formalities.  Thereafter, on 10.10.1981  Custodian of Enemy Property wrote a letter to the  respondent asking for legal evidence regarding the  heirs and successors of respondent’s father to  enable him to release the properties to the extent  of 25%.   

Respondent filed a suit being Suit No.365 of  1981 in the Court of Civil Judge, Lucknow on  18.11.1981 seeking a declaration that he was the  sole heir and successor of the deceased Raja of  Mahmudabad.  This suit was dismissed on 26.3.1984  for non-joinder of the Custodian of Enemy Property  (hereinafter referred to as "Appellant No.2") as a  party respondent.  In July, 1984 respondent filed a  second suit being Suit No.219 of 1984 in the Court  of Civil Judge, Lucknow,  inter alia, contending  that by virtue of taking over the property the  title of the property did not vest in the  custodian.  The vesting was limited  for the  purposes of taking over of the possession,  management and control of the enemy property till  such time the property remained the enemy property.    It was, inter alia, prayed that he be declared the  sole heir and successor of his father and thereby  entitled to 25% of the properties and to such other  percentage or the whole of the said properties.   Appellant No.2 filed the written statement  contesting the suit inter alia contending that the  suit property had vested in the Custodian free from  all encumbrances and denied that it had vested in

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the Custodian for the purpose of management only.   It was denied that the respondent was the heir of  late Raja of Mahmudabad.  Trial Court decreed the  suit on 8.7.1986.   It was declared that the  respondent was the sole heir and successor of his  father and thereby entitled to 25% or whatever  percentage it may be of the property in the suit.   The suit was decreed in the following terms:-

"The suit of the plaintiff for  declaration is decreed with costs  against the defendants and it is  hereby declared that the  plaintiff is the sole heir and  successor of his father late Raja  Mohammad Amir Ahmad Khan and  thereby he is entitled to the 25%  or whatever percentage it may be,  of the properties in suit,  described in Schedule \026 I of the  plaint, which are going to be  released in favour of the heir of  late Raja Mohammad Amir Ahmad  Khan under the decision of the  Government of India, as alleged."   

       The aforesaid judgment became final, conclusive  and binding as the appellants did not prefer an  appeal against the same.   

       Since despite protracted correspondence over  several years, the petitioner No.2 failed to hand  over the properties to the respondent, the  respondent filed Writ Petition No.1524 of 1997 in  the High Court of Judicature at Bombay praying,  inter alia, for a declaration that the properties  vested with the Custodian ceased to be enemy  property and stood divested from appellant No.2  with effect from 14.10.1973 and that the possession  of the Custodian was illegal and without authority  of law.   

       By the impugned judgment the High Court has  allowed the writ petition and held that on an  interpretation of Sections 6, 8 and 18 of the Enemy  Property Act, due to vesting of the property in the  Custodian, the owner is not divested of his right,  title and interest in the property as under the Act  title does not come to vest in the Custodian.  The  vesting is limited to the temporary taking over of  the possession, management and control over the  property only.   It was conceded before the High  Court by the counsel appearing for the appellants  that respondent who was an Indian citizen  was the  heir and successor of his late father Raja of  Mahmudabad.  It was held that the properties were  no longer enemy properties as the title of the same  now vested in an Indian citizen.  The High Court  accordingly directed appellant No.2 to handover  possession of the properties, actual or juridical,  as the case may be, to the respondent within three  months from the date of passing of the order.   Respondent’s prayer for mesne profits and  compensation in respect of the properties in

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question were rejected.   

       Counsel for the parties have been heard at  length.  

       The Enemy Property Act, 1968 was enacted for  purpose of continued vesting of enemy property,  vested in the Custodian of Enemy Property for India  under the Defence of India Rules, 1962 and the  Defence of India Rules, 1971.  Section 2(b) defines  enemy, an enemy subject or an enemy firm and the  same reads as under:-  

"2(b) \026 "enemy" or "enemy  subject" or "enemy firm" means a  person or country who or which  was an enemy, an enemy subject or  an enemy firm, as the case may  be, under Defence of India Act,  1962 and the Defence of India  Rules, 1962 [or to the Defence of  India Act, 1971 and the Defence  of India Rules, 1971], but does  not include a citizen of India;"   Section 2(c) defines the expression "enemy  property" as follows:-

"2 (c) \026 "enemy property" means  any property for the time being  belonging to or held or managed  on behalf of an enemy, an enemy  subject or an enemy firm;

Provided that where an individual  enemy subject dies in the  territories to which this Act  extends, any property which  immediately before his death,  belonged to or was held by him or  was managed on his behalf, may,  notwithstanding his death,  continue to be regarded as enemy  property for the purposes of this  Act;"

         Section 6 of the Act provides or declaring the  transfer of property by enemy subject which is  vested in the Custodian to be void by the Central  Government after giving reasonable opportunity of  being heard.  Section 6 reads as under:-

"6. Transfer of property vested  in Custodian by enemy or enemy  subject or enemy firm \026 Where any  property vested in the Custodian  under this Act has been  transferred, whether before or  after the commencement of this  Act, by an enemy, or an enemy  subject or an enemy firm and  where it appears to the Central  Government that such transfer is  injurious to the public interest

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or was made with a view to  evading or defeating the vesting  of the property in the Custodian,  then, the Central Government may,  after giving a reasonable  opportunity to the transferee to  be heard in the matter, by order,  declare such transfer to be void  and on the making of such order,  the property shall continue to  vest or be deemed to vest in the  Custodian."   

       This section provides that  if any property  vested in the Custodian has been transferred,  whether before or after the commencement of the  Enemy Property Act, by an enemy, or an enemy  subject or an enemy firm and if the Central  Government is of the opinion that such transfer is  injurious to the public interest or was made with a  view to evading or defeating the vesting of the  property in the Custodian, the Central Government  may declare such transfer to be void after hearing  the transferee in the matter.  This provision makes  it clear that there is no bar on the transfer of  the enemy property in general by an enemy subject  meaning thereby the title still remains with him.   

       Section 8 deals with power of Custodian in  respect of the enemy property vested in him.  The  same is reproduced here:-

"8. Powers of Custodian in  respect of enemy property vested  in him \026 (1) With respect to the  property vested in the Custodian  under this Act, the Custodian may  take or authorise the taking of  such measures as he considers  necessary or expedient for  preserving such property and  where such property belongs to an  individual enemy subject, may  incur such expenditure out of the  property as he considers  necessary or expedient for the  maintenance of that individual or  of his family in India. (2) Without prejudice to the  generality of the foregoing  provision, the Custodian or such  person as may be specifically  authorised by him in this behalf,  may, for the said purpose, --- (i)     carry on the business of the  enemy; (ii)    take action for recovering  any money due to the enemy; (iii)   make any contract and  execute any document in the name  and on behalf of the enemy; (iv)    institute, defend or continue  any suit or other legal  proceeding, refer any dispute to

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arbitration and compromise any  debts, claims or liabilities; (v)     raise on the security of the  property such loans as may be  necessary; (vi)    incur out of the property  any expenditure including the  payment of any taxes, duties,  cesses and rates to Government or  to any local authority and of any  wages, salaries, pensions,  provident fund contributions to,  or in respect of, any employee of  the enemy and the repayment of  any debts due by the enemy to  persons other than enemies. (vii)   transfer by way of sale,  mortgage or lease or otherwise  dispose of any of the properties; (viii)  invest any moneys held by  him on behalf of enemies for the  purchase of Treasury Bills or  such other Government securities  as may be approved by the Central  Government for the purpose. (ix)    make payments to the enemy  and his dependents; (x)     make payments on behalf of  the enemy to persons other than  those who are enemies, of dues  outstanding on the 25th October,  1962 (or on the 3rd December,  1971); and  (xi)    make such other payments out  of the funds of the enemy as may  be directed by the Central  Government.

Explanation \026 In this sub-section  and in sections 10 and 17,  "enemy" includes an enemy subject  and an enemy firm."

         Section 9 provides that all enemy property  vested in the Custodian shall be exempt from  attachment, seizure or sale in execution of decree  of a civil court or orders of any other authority.   

       Section 13 makes provision for validity of  action taken in pursuance of orders of Custodian  and reads as under:-

"13. Validity of action taken in  pursuance of orders of Custodian  \026 Where under this Act, --

(a)     any money is paid to the  Custodian; or (b)     any property is vested in the  Custodian or an order is  given to any person by the  Custodian in relation to any  property which appears to the  Custodian to be enemy

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property vested in him under  this Act, neither the  payment, vesting nor order of  the Custodian nor any  proceedings in consequence  thereof shall be invalidated  or affected by reason only  that at a material time, --

(i)     some person who was or  might have been  interested in the money  or property, and who  was an enemy or an  enemy firm, had died or  had ceased to be an  enemy or an enemy firm;  or  (ii)    some person who was so  interested and who was  believed by the  Custodian to be an  enemy or an enemy firm,  was not an enemy or an  enemy firm."   

Section 18 deals with divesting of enemy  property vested in the Custodian and reads as  under:-

"18. Divesting of enemy property  vested in the Custodian \026 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."           A reading of Section 18 makes it evident that  enemy property is not permanently vested in the  Custodian and divesting the custodian of such  property is contemplated.   

       Section 19 protects the action taken under the  Act and provides that no suit, prosecution or other  legal proceeding shall lie against the Central  Government or the Custodian or enemy property for  anything which is done in good faith or intended to  be done under the Act.   

       The High Court of Calcutta in Sudhendu Nath  Banerjee and others Vs. Bhupati Charan Chakraborty  and others, 1976 Calcutta 267, held that on a  reading of Section 6, 8, and 18 of the Act, the

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enemy, due to vesting of his property in the  Custodian is not divested of all his right, title  and interest in the property, but the vesting in  the Custodian is limited to the extent of  possession, management and control over the  property temporarily.  In Mumtaz Begum Vs. Union of  India and Others, AIR 1991 Calcutta 241 the High  Court reiterated its earlier view.  In this case  the High Court was seized of a matter in respect of  enemy property which had vested in the Custodian.   After adjudication of title in his favour the  appellant filed a writ petition in the High Court  claiming the property as it no longer belonged to  an enemy subject.  The Single Judge dismissed the  writ petition.  The Division Bench reversing the  order of the Single Judge took the view that the  appellant therein was entitled to get the property  back as it no longer belonged to an enemy subject.   That the title of the property does not vest in the  Custodian and the Custodian takes over the property  under the Act temporarily for its management and  control.  The High Court in the impugned judgment  has followed the said Rule.

The enemy, an enemy subject or enemy firm under  Section 2(b) means a person or country who or which  was an enemy, an enemy subject or enemy firm, as  the case may be under the Defence of India Act,  1962 and the Rules made thereunder or to the  Defence of India Act, 1971 and the Rules made  thereunder but does not include a citizen of India.   Enemy property under the Act means any property  belonging to or held or managed or on behalf of an  enemy, enemy subject or enemy firm for the time  being.  Proviso to Section 2(c) provides that where  an individual enemy subject dies within the  territories to which Enemy Property Act extends,  any property which immediately before his death  belonged to or held by him or managed on his behalf  may continue to be regarded as enemy property for  the purposes of Enemy Property Act notwithstanding  his death.       

A conjoint reading of Sections 6, 8 and 18 of  the Act, indicates that the enemy subject due to  the vesting of his property in custodian is not  divested of his right, title and interest in the  property.  The vesting in the Custodian is limited  to the extent of possession, management and control  over the property temporarily.   This position was  not disputed before us by the learned counsel  appearing for the appellant.  The object of the  Enemy Property Act is to prevent a subject of an  enemy state from carrying on business and trading  in the property situated in India.  It is,  therefore, contemplated that temporary vesting of  the property takes place in the Custodian so that  the property till such time as it is enemy property  cannot be used for such purpose.     

       The question that falls for determination is  whether the properties in question after its  inheritance by the respondent who is a citizen of  India can be said to be enemy property.  

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It is not in dispute that respondent was born  in India and is an Indian citizen.  His late father  migrated to Pakistan in the year 1957 and become a  citizen of Pakistan.  After the breaking of the  hostilities between India and Pakistan in the year  1965 the property of his father located in India  got vested in the Custodian.  After the coming into  force of the Enemy Property Act in the year 1968  the properties of late Raja continued to be vested  with the Custodian till he died on 14.10.1973 in  London.  After the death of his father respondent  who is a citizen of India inherited the property  being the sole heir and successor of his father.  Can he be termed as enemy or enemy subject within  the meaning of Section 2(b) or can the property of  an Indian citizen be termed as enemy property  within the meaning of Section 2 (c)?  Answer is  emphatic No.  The definition of enemy provided  under Section 2(b) excludes citizens of India as an  enemy, or enemy subject or enemy firm.  Under the  circumstances, the respondent who was born in India  and his Indian citizenship not being in question  cannot by any stretch of imagination be held to be  enemy or enemy subject under Section 2(b).   Similarly, under Section 2(c) the property  belonging to an Indian could not be termed as an  enemy property.  

After the death of his father the respondent  had filed a Suit No.219 of 1984 seeking a  declaration that he was the sole heir and successor  of his father.  The appellants were defendants in  the said suit.  The suit was decreed on 8.7.1986.   The said judgment and decree having attained  finality there remains no dispute that the  respondent is the sole legal heir and successor of  his father, the late Raja of Mahmudabad and  properties belonging to late Raja came to be owned  exclusively by him.  After the death of late Raja  of Mahmudabad the respondent became the sole owner  of the properties which had been taken over by the  Custodian of Enemy Property.  Having acquired the  title by way of succession the properties in  question could not be said to be enemy property  within the meaning of Section 2(c) because enemy  property means the property belonging to or held or  managed on behalf of the enemy or enemy subject or  enemy firm.   Since the respondent was not an enemy  within the meaning of Section 2(b), the properties  owned, held and belonging to him cannot be held to  be the enemy properties under the Enemy Property  Act.   

       As indicated above, the vesting of the  properties in the Custodian under the Enemy  Property Act is limited to the extent of  possession, management and control over the  properties only.  The right, title or interest of  the owner is not taken away.  After the ceasing of  the property to be enemy property it ceased to be  belonging to an enemy.  The Custodian cannot be  permitted to continue with the possession of such  properties.  The property which initially vested in  the Custodian under the Defence of India Rules and  thereafter under the Enemy Property Act ceased to

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be enemy property upon the death of respondent’s  father on 14.10.1973.  In the circumstances,  property which was vested in the Custodian ceased  to be enemy property upon the death of the father  of the respondent and the Custodian could not  continue with the possession of the property.

       Reliance placed by the counsel for the  appellant on Section 13 is totally misplaced.   Section 13 does not alter the aforesaid legal  position.  Section 13 only provides that the  vesting of the property of the enemy or enemy  subject in the Custodian or order of Custodian or  the proceedings in consequence thereof are not  invalidated or affected by reason that at the  material time such an enemy subject had died or  ceased to be enemy.  It only means that action of  vesting or the order passed by the Custodian of the  proceedings taken in consequence thereof is not  invalidated or affected on the ground that such  enemy subject had died or ceased to be enemy when  the vesting took place or the order came to be  passed by the Custodian or proceedings in  consequence thereof were taken.  It does not mean  that the property can be continued to be enemy  property under the Act when the property is  succeeded to by a citizen of India.  Once the  property is succeeded to by a citizen of India the  property ceases to be covered by proviso to Section  2(c).  In law, the vesting in the Custodian of the  property belonging to an Indian citizen cannot be  permitted to be continued under the Enemy Property  Act as Indian citizen is excluded from being an  enemy in terms of the provisions of Section 2(b).  

       Counsel for the appellant laying stress on the  provisions of Section 18 contended that only the  Central Government can divest the Custodian of the  enemy property by passing a general or special  order directing that any enemy property vested in  the Custodian under the Act 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  only thereupon such property shall cease to vest in  the Custodian and revest in such owner or such  other person.  Since in the present case no such  order has been passed by the Central Government  this Court cannot divest the Custodian of the  property.  We do not agree with this submission.   In the present case the respondent filed several  representations but the Central Government did not  take a decision on them for years together.  In  such a situation the power of the Court  is not  taken away to pass appropriate orders in a case  where the property which vested in the Custodian  ceases to be enemy property, the same having vested  in a citizen of India by way of succession after  the death of the enemy subject.  

       Another interesting feature which can be taken  notice of is that on a representation filed by the  respondent the appellants agreed to release 25% of  the property in favour of the respondent on  production of proof of his having succeeded to the

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property of his father.   It shows that the  appellants accepted that the property could be  released in favour of the respondent provided he  had succeeded to it after the death of enemy  subject.  It further shows that the property could  be released in favour of an Indian citizen provided  he had succeeded to the estate. It further shows  that the title of the enemy property does not vest  in the custodian and it had vested in the custodian  for the purposes of management, control and  possession of the properties only.  

In the High Court the Union of India had taken  certain points such as delay in filing the writ  petition; that properties had been retained by the  Government of India as a matter of policy and that  the writ petition was barred by the principle of  res judicata and the principles analogous thereto  were not pressed before us.   Apart from the  submission noted and dealt with by us no other  point was raised.   

On 4.9.2001 the High Court directed the  appellants to place on record copy of note put up  for release of property of the respondent’s father  and the decision taken thereon by the Cabinet.  The  respondents refused to place a copy of the note of  the Cabinet claiming privilege in regard to the  said document  as in their opinion the public  interest required that the same should not be  disclosed.  This shows the mala fide intentions of  appellants to retain the possession of huge  properties without any authority of law.     To be just and act in a just manner is writ  large in our Constitution and the laws.  The  Legislature is to act in a just manner by enacting  just laws within the frame work of the  Constitution.  The executive is enjoined with a  duty to act or apply the laws in a just manner and  if an individual or institution is dissatisfied  with the State action in enacting the laws or their  implementation he can approach the court seeking  redressal of his grievances.   

Unfortunately a dangerous attitude resulting in  doing institution damage is developing, that the  justice is required to be done only by the Courts.   This attitude is betrayal of Constitution as well  as laws.  Every and any authority working under the  statute has to discharge its duties in a just  manner otherwise people will lose faith in the  governance.

       The case in hand is a typical example of such  an attitude.  It is admitted by the counsel for the  appellants that under the Enemy Property Act the  title of the property of an enemy does not vest in  the Custodian.  The custodian takes over the enemy  property only for the purpose of possession,  control and management.  An Indian citizen is  excluded from the definition of an ’enemy’ or   ’enemy subject’ under Section 2(b).  Respondent was  declared to be the heir and successor of late Raja  of Mahmudabad.  On being so declared the property

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which came to vest in the respondent who is a  citizen of India ceased to be an enemy property.   On a representation filed by the respondent, the  appellants recognized this fact and agreed to  release 25% of the property although he was  entitled to the whole of the property.  No reasons  were given for doing so.  Still worse the  appellants did not even release 25% of the  property.  Again no reasons are forthcoming for  doing so.  When asked by the Court to  produce the  cabinet note put up before the cabinet in this  regard, the appellants refused to do so and claimed  it to be a privileged document.   When admittedly  the title of the property did not come to vest in  the custodian then as soon as the title in the  property came to vest in an Indian citizen the  property ceased to be an ’enemy property’.   The  authorities were duty bound to release the property  in favour of the true owner (respondent).  Instead  of doing it the Union of India forced the  respondent to knock at the doors of the Court.    The authorities have deprived the respondent of the  possession and enjoyment of the properties for the  last 32 years without any justification.  The  reasons for doing so as we understand is that  buildings are being occupied by the Deputy  Commissioner, Superintendent of Police and other  district officers for their residences as well as  for their offices, which they did not want to give  up.  This is highly objectionable and unjust.  It  needs to be deprecated. In the light of what we have stated, we do not  find any merit in this appeal and the same is  dismissed.   

       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  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  respondents 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 residences  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 order  and the appellants would be in contempt of this

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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.