UNION OF INDIA & ANR.versusRAJA MOHAMMED AMIR MOHAMMAD KHAN

                        [2010] 1 S.C.R. 774

A                   UNION OF INDIA & ANR.
                                 v.
          RAJA MOHAMMED AMIR MOHAMMAD KHAN
                        I.A. No. 47 and 48
                                 In
8               (Civil Appeal No. 2501 of 2002)
                        JANUARY 19, 2010
         [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

C      Mesne Profit - Claim for - Supreme Court by final order
  declaring the claimant to be successor of the estate of
  predecessor-Raja - Direction issued to the Custodian of
  Enemy Property to release the rents and profit collected after
  5.4.2002 to the claimant - Also held that mesne profit prior
D to that date to be claimed by resorting to the remedy of suit -
  Interlocutory applications filed before Supreme Court claiming
  the amount credited in the account of predecessor-Raja on
  27.3.2002 - Held: Since the claim was for the period prior to
  5.4.2002, claimant entitled to recover it by filing a suit- Enemy
E Property Act, 1968.
        In the present appeal, Supreme Court held that the
  respondent was sole legal heir and successor to the
  properties of the Late Raja of Mahmudabad, which had
  been taken over by the Custodian of Enemy Property
F under the provisions of the Enemy Property Act, 1968.
  The court held that he could get mesne profit for the
  period i.e. till the passing of interim order on 5.4.2002 by
  filing a suit. Money received as rent or lease aft~r_5.4.2002
  was directed to be handed over to the respondent.
G Appellant was also directed to handover possession of
  other properties to the respondent.

      From the records of the Custodian of Enemy
  Property, respondent came to know that an amount was
H                          774
 UNION OF INDIA & ANR. v. RAJA MOHAMMED AMIR 775
               MOHAMMAD KHAN
credited to the account of the Late Raja on 27 .3.2002.       A
Respondent claimed remission of the amount to his
credit. The same was refused. Hence the present
applications were filed by the respondent for a direction
to the appellant and the Custodian of Enemy Property,
to release the amount to his credit.                          B
     Dismissing the applications, the Court
      HELD: 1. A conscious distinction with regard to the
rents and profits collected from the estate prior to
5.4.2002 and thereafter, had been made by this Court
while disposing of the appeal. It was clearly the intention   C
of the Court that in respect of rents and profits collected
after the order of status-quo passed on 5.4.2002, 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       D
file a suit to recover the same. [Para 14) [781-F-H; 782-A]
    2. The directions given to the appellants to hand over
the possession of other properties, mentioned in the
second part of the order relates to the immovable             E
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. [Para 15)
[782-E-F]
                                                              F
     3. 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 5.4.2002,
the respondent has been given leave to recover the same       G
by filing a suit. In view of the said order passed by this
Court, it cannot be said 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. [Para 15) [782-G-H; 783-A]
                                                              H
    776      SUPREME COURT REPORTS               [2010] 1 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2501 of 2002.
                             I.A Nos. 47 & 48

                                  In
B
          Civil Appeal No. (s) 2501 of 2002.

        From the Judgment & Order dated 21.09.2001 of the High
    Court of Judicature at Bombay in Writ Petition No. 1524 of
    1997.
c
          Indira Singh, ASG, Naresh Kaushik, Subhash Kaushik,
    AK. Sharma, Aditi Gupta, Lalitha Kaushik, Shreekant N. Terdal
    for the Appellants.

       P.V. Kapur, S.K. Dwivedi, Anjali K. Varma, Meera Mathur,
D Niraj Gupta, Chetna Gulati, Shail Kumar Dwivedi, Subhash
  Chandra Jain, Shrish Kumar Misra, Gunnam Venkateswara
  Rao, R.K. Gupta, Manoj Kumar Dwivedi, G.V. Rao for the
  Respondent.

E         The Judgment of the Court was delivered by

          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
F 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.
G      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
H applicant. The decision of the Bombay High Court was
UNION OF INDIA & ANR. v. RAJA MOHAMMED AMIR 777
    MOHAMMAD KHAN [ALTAMAS KABIR. J.)

challenged by the Union of India in this Court in Civil Appeal     A
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
                                                                   8
    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, whatc er r- neys have        C
    been collected by the appellants by way of 1ent 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.
                                                                   D
          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       E
   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
                                                                   F
   within 8 weeks will constitute disobedience of this 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       G
   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."
                                                                   H
    778      SUPREME COURT REPORTS                   [2010] 1 S.C.R.

A         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
s   office at Mumbai. In view of the judgments of the Bombay High
    Court and this Court, holding the applicant to 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
c   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.
D      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
E applicant as on 27.3.2002. On coming to know of the 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
F 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.
G
       6. It is on account of such response from the Custodian of
  Enemy Property that l.A.No.47 of 2008 was filed for the reliefs
  which are indicated in the prayer.
     7. Appearing for the applicant, Mr. P.V. Kapur, learned
H Senior Advocate, submitted that after the r.lear and
 UNION OF INDIA & ANR. v. RAJA MOHAMMED AMIR 779
     MOHAMMAD KHAN [ALTAMAS KABIR, J.]

unambiguous directions given by this Court in its judgment          A
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      B
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.        c
     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   D
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)                             E

     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 from the Estate of the      F
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           G
General, Ms. Indira Jai Singh submitted that in view of the
categorical direction giv' n the order of 21.10.2005 passed
by this Court, the questic.. , of making payment of the amount in
question to the respondent did not arise. Ms. Jai Singh
submitted that th!:: ;urt had recorded the fact that the High       H
    780     SUPREME COURT REPORTS                  [201 O] 1 S.C.R.


A 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 interim order of status quo by this
  Court on 5.4.2002. In the said order this Court went on to say
B 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
C 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
0
  to 5.4.2002 no other direction had been given by this Court for
  disbursement of the rents and profits from the said Estate 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 prof~s
E 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,
F 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
G Judgment of this Court dated 21.10.2005.

        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
H
 UNION OF INDIA & ANR. v. RAJA MOHAMMED AMIR 781
     MOHAMMAD KHAN [ALTAMAS KABIR, J.]
earlier. Ms. Jai Singh submitted that having disposed of the          A
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,      B
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.                                                             c
     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        D
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              E
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 had devolved upon the applicant <1s held          F
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 G
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 lj• the Court that in respect of
rents and profits collected after th1;. order of status-quo passed H'
    782      SUPREME COURT REPORTS                    [2010] 1 S.C.R.


A 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
B and the same is pending decision.

          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
C   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
D   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
E   above, will not include handing over of possession of the rents
    and profits prior to 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
F   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
G   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
H   April, 2002, the Respondent has been given leave to recover
UNION OF INDIA & ANR. v. RAJA MOHAMMED AMIR 783
    MOHAMMAD KHAN [ALTAMAS KABIR, J.]
the same by filing a suit. In view of the said order passed by       A
this Court, it can no 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.
                                                                     B
     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.               C

K.K.T.                                 Applications dismissed.