Merely Because A Person Worked In Pakistan Doesn't Make Him An 'Enemy' Under Rule 130 Of Defence Of India Rules: Kerala High Court
The Kerala High Court has held that merely because a person had moved to Pakistan in search of a job does not make him an enemy under Rules 130 and 138 of the Defence of India Rules, 1971 unless he was trading with an enemy. Court thus quashed the proceedings initiated under the Enemy Property Act, against a property formerly held by the petitioner's father, who had worked at a hotel...
The Kerala High Court has held that merely because a person had moved to Pakistan in search of a job does not make him an enemy under Rules 130 and 138 of the Defence of India Rules, 1971 unless he was trading with an enemy.
Court thus quashed the proceedings initiated under the Enemy Property Act, against a property formerly held by the petitioner's father, who had worked at a hotel in Pakistan.
It said that Rule 130 was restricted to trading with an 'enemy' or being part of any 'enemy firm' carrying out business with India. It held that there was no evidence that the petitioner's father was involved in such activities. Justice Viju Abraham observed,
"Only for the reason that the petitioner's father had gone to Pakistan in search of a job and worked there for a short period will not bring the petitioner's father within the definition of 'enemy' under Rules 130 or 138 of the Defence of India Rules, 1971 which was provided for a totally different purpose and the reliance placed on the said Rules is totally out of context and irrelevant to the facts of the case in hand”
The Court noted that Rule 130 comes under 'Control of Trading with Enemy' and Rule 138 comes under 'Control of Enemy Firm'. These rules are intended to control trade with an enemy so as to prohibit trading with an enemy, for control of 'enemy firms' and for prohibiting trade with 'enemy firms'.
It was said that a person would not become an enemy under this rule just because he went to Pakistan in search of a job and worked there for a short period.
Background:
The petitioner, P. Ummer Koya had bought some property in Parappanangadi from his father, Kunji Koya and some nearby land from his relatives. When the petitioner went to pay Basic Tax on the said property, the villager officer refused to accept tax saying that there were orders from the Custodian of Enemy Property of India (CEPI) as proceedings were initiated under the Enemy Property Act, 1968.
It was stated that the action against the petitioner was taken as per a notification issued by the Ministry of Foreign Trade. The notification stated that all property defined as 'enemy property' under Rule 138 of the Defence of India Rules held by an enemy as defined under Rule 130 of the said Rules shall be vested in CEPI.
The petitioner stated that his father and forefathers hailed from Parappanangadi in Malapuuram and his father had worked in Karachi only for a short while.
Subsequent to that it was stated that he was constantly hunted by police saying he was a Pakistani citizen. Due to this, he then approached the Central Government to determine his national status under the Citizenship Act and the Union Government declared that the petitioner's father continue to be a citizen of India as he had not voluntarily acquired citizenship of Pakistan.
The Court examined various provisions of the Enemy Property Act and the Defence of India Act. Section 2(c) of the Enemy Property Act defines 'enemy property' as property belonging to an enemy or which belonged to him immediately before his death.
The Court said that the Enemy Property Act has been promulgated for the continued vesting of property as per the provisions of the Defence of India Act, 1962 and 1971. Therefore, the petitioner's father should come under the definition of 'enemy' under the Defence of India Act to invoke provisions of the Enemy Property Act against him.
The Court then examined the definition of the enemy in the Defence of India Act, 1962 and Defence of India Act, 1971. Both these Acts define 'enemy' as a person who belongs to a country committing external aggression against India. Petitioner's father did not fall in either of the definitions, Court said.
Moreover, Court said Central Government's order declaring petitioner's father is a citizen of India was standing and thus, he could not be considered as an 'enemy'.
The Court thus ordered to quash the proceedings initiated against the petitioner by CEPI and directed the village officer to accept the basic tax of the property from the petitioner.
Counsel for Petitioners: Adv. M. A. Asif
Counsel for Respondents: Advocates K.S. Prenjith Kumar, Deepa V.
Case No: WP(C) 9978/ 2023
Case Title: P. Ummer Koya v State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 385
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