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Mohammed Amir Mohammed Khan v. S.N Menon, Secretary, Commerce Ministry And Another
Factual and Procedural Background
The dispute concerns properties belonging to the late Raja Mahmudabad that were declared “enemy property” and vested in the Custodian on 11-9-1965. In a judgment dated 21-10-2005 the Supreme Court recognised Mohammed Amir Mohammed Khan as the sole heir and directed that possession of the estate be handed over to him. A clarification issued on 8-9-2006 distinguished between occupants inducted before and after 11-9-1965.
To implement these directions, the Court appointed retired judge Justice D.P. Wadhwa to identify occupants who were in possession of the five Lucknow properties on or before 11-9-1965. Justice Wadhwa submitted his report on 17-12-2009. Alleging discrepancies, Mohammed Amir Mohammed Khan filed I.A. No. 49 of 2010 seeking to set aside that report. The present order addresses that application and the future course of action.
Legal Issues Presented
- Whether the report dated 17-12-2009 by Justice D.P. Wadhwa complies with the Court’s earlier directions for identifying lawful occupants/tenants of the estate as on 11-9-1965.
- Whether the Supreme Court should accept the report or set it aside and issue fresh directions for determining the status of occupants.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. Mohammed Amir Mohammad Khan, (2005) 8 SCC 696 | Distinction between occupants inducted before 11-9-1965 (protected) and those inducted thereafter (liable to vacate). | Recalled to emphasise that Justice Wadhwa must apply this distinction when reassessing the list of occupants. |
Court's Reasoning and Analysis
The Court observed that Justice Wadhwa’s report does not disclose the evidentiary basis for concluding that the listed occupants were tenants before 11-9-1965. Without such factual foundation the Court could not evaluate the correctness of the findings or the objections raised by the applicant.
Interpreting its earlier mandate—that Justice Wadhwa was not to undertake a judicial determination of rights—the Court clarified that a minimum explanation of the factual material relied upon was nevertheless essential. Because that requirement was not met, the report was considered inadequate.
To remedy the deficiency, the Court:
- Set aside the existing report and requested Justice Wadhwa to reconsider the matter afresh.
- Directed the Custodian of Enemy Property to file, within four weeks, an affidavit detailing tenants inducted between 11-9-1965 and the present, with supporting documents.
- Allowed all parties to obtain copies of the affidavit and file written submissions within a subsequent four-week period.
- Instructed Justice Wadhwa to indicate, in his fresh report, the specific materials relied upon for each occupant and the reasons for accepting or rejecting each claim, bearing in mind the order dated 8-9-2006.
- Fixed a three-month timeline for submission of the revised report and reaffirmed the earlier arrangement for his fees and expenses.
Holding and Implications
The report dated 17-12-2009 is set aside, and Justice D.P. Wadhwa (retired) is directed to submit a fresh, reasoned report within three months.
Immediate Effect: The identification of lawful occupants remains unresolved; the Custodian must provide detailed data, and all parties may file written submissions. The matter is listed for further consideration on 9-11-2011.
Broader Impact: The order reinforces the necessity for fact-based, transparent auxiliary reports when the Court delegates fact-finding tasks, but it establishes no new substantive legal precedent.
Order
1. Let this matter not be treated as having been heard in part by the Bench comprising Altamas Kabir and Cyriac Joseph, JJ. and let it be taken up by the regular Bench.
2. IA No. 49 of 2010, has been filed by Mohammed Amir Mohammed Khan, in Mohammed Amir Mohammed Khan v. Commerce Ministry and disposed of by the order dated 6-3-2009. Since certain problems had arisen with regard to the implementation of the judgment and order dated 21-10-2005, certain clarifications were sought for and on 8-9-2006, it had been directed as follows:
“These special leave petitions are disposed of with the clarification that persons who were inducted/allotted properties by the Custodian or who came in possession after 1965 i.e on or after declaring the property of Raja Mahmudabad as enemy property and appointment of the Custodian have to vacate the properties in their possession. Persons claiming possession prior to the appointment of the Custodian declaring the property of Raja Mahmudabad, father of the respondent, as enemy property, based on duly authenticated tenancy created by the then Raja Mahmudabad or his general power of attorney shall not be covered by this Court's judgment passed in Civil Appeal No. 2501 of 2002 dated 21-10-2005, titled Union of India v. Mohammed Amir Mohammad Khan (2005) 8 SCC 696.”
3. In order to give effect to the same, a former Judge of this Court, the Hon'ble Mr Justice D.P Wadhwa, was entrusted by this Court with the task of deciding as to which of the claimants or other applicants were in actual possession of the premises under their occupation on or prior to 11-9-1965, when the estate of the late Raja came to be vested in the Custodian. Such decision was required to be taken on the basis of the materials to be made available to the Hon'ble Judge or on the strength of the affidavits and other documents, which had been made available to the Custodian or were to be made available by the parties, together with affidavits and other documents filed before Justice Goswami and such other documents, which might be supplied by the applicants of the estate of the late Raja or by the State of U.P It was made very clear that the Hon'ble Judge would not be required to embark upon a judicial determination of the rights of the claimants in arriving at his decision.
4. Pursuant to the above, Justice D.P Wadhwa (retired), took up the matter and ultimately filed his report dated 17-12-2009. The same has been made Annexure A-4 to IA No. 49 of 2010. At the very beginning of the report, His Lordship sets out the parameters within which the matter was to be decided by him. The said parameters very correctly reflect the directions which are contained in our aforesaid order. In fact, in Point 3, Justice Wadhwa has very clearly recorded that he would not be required to embark upon a judicial determination of the rights of the claimants in arriving at his decision. Thereafter, His Lordship accepted those persons as tenants of the estate of the late Raja, who were admitted to have been inducted in the premises in question by the erstwhile Raja. As far as the other occupants of the various premises are concerned, they were shown to be in occupation of the respective portions of the property in the estate of late Raja on or before 11-9-1965, when the estate of Raja came to be vested in the Custodian, presumably on the basis of the materials before His Lordship.
5. As indicated hereinbefore, IA No. 49 of 2010 has been filed by Mohammed Amir Mohammed Khan, who had succeeded before the Bombay High Court and, thereafter, before this Court and was held to be the sole heir of the late Raja to succeed to his estate, for setting aside the report submitted by Justice Wadhwa. It may not be out of place to mention that in the judgment dated 21-10-2005, this Court had directed the Custodian to hand over possession of the properties comprising the estate of the late Raja to the applicant.
6. Mr Chandra Udai Singh, learned Senior Counsel appearing in support of the application, has pointed out several discrepancies between the materials on record and the list of tenants as on 11-9-1965, prepared by Justice D.P Wadhwa.
7. Unfortunately, none of the submissions, made before us on behalf of any of the parties are reflected in the report filed by Justice D.P Wadhwa. We are not, therefore, in a position to understand what prompted Justice D.P Wadhwa to declare that the persons included in the list had been inducted into the estate of the late Raja prior to 11-9-1965. It is quite possible that Justice Wadhwa understood our direction not to embark upon a judicial determination of the rights of the claimants in arriving at His Lordship's decision to mean that no determination, even with regard to the facts, was required to be reflected in His Lordship's report. However, in the absence of such determination on facts, we are not in a position to appreciate the stand taken by any of the parties and, in particular, that of the applicant.
8. Accordingly, having heard the learned counsel for all the parties, we pass the following order:
(1) Since the report of Justice D.P Wadhwa (retired) dated 17-12- 2009, does not reflect the basis on which the list of tenants as on 11-9-1965 had been prepared, the said report cannot be accepted in the manner in which it has been presented. Accordingly, Justice D.P Wadhwa (retired), is requested to consider the matter afresh.
(2) The Custodian of Enemy Property, who is Respondent 2 herein, is directed to file an affidavit before Justice D.P Wadhwa, within a period of four weeks, disclosing the number of tenants inducted by him or his agents in the five properties concerned in Lucknow between 11-9-1965 and as on date, with supporting documents. Mr Justice D.P Wadhwa is requested to consider the matter afresh on the basis of the affidavit to be affirmed and filed by the Custodian, as also written submissions, that may be filed on behalf of the parties. The parties will be at liberty to obtain copies of the affidavit to be affirmed by the Custodian, either from him or his learned counsel, and to file their written submissions in respect thereof, within four weeks thereafter.
(3) Justice D.P Wadhwa (retired) is requested to file his fresh report in terms of the aforesaid observations within three months from the date of communication of this order.
(4) The Custodian shall arrange to send the records, which have been filed by him in this Court, to Justice D.P Wadhwa, within a week from date.
(5) In the report to be filed in terms of this order, Justice D.P Wadhwa, is also requested to indicate the materials relied on by him in respect of each occupant and to indicate the reasons for either rejecting or accepting his claim of having been inducted as a tenant of the estate of the late Raja. The various orders, which have been passed in this matter from time to time and, in particular, the order dated 8-9-2006, quoted hereinbefore, may be kept in mind when the matter is considered afresh.
(6) The arrangement regarding payment of Justice Wadhwa's fees and expenses, shall be the same, as contained in the order dated 6-3-2009.
9. Mr Justice D.P Wadhwa (retired) is requested to submit his fresh report on or before 2-11-2011.
10. Let this matter be listed again on 9-11-2011, to consider the fresh report to be submitted.
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