The Kerala High Court ruled that working in Pakistan does not automatically classify an individual as an ‘enemy’ under Rule 130 of the Defence of India Rules, 1971. In the case of P. Ummer Koya, the court dismissed proceedings under the Enemy Property Act, 1968, pertaining to his property.
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Thiruvananthapuram: The Kerala High Court clarified that merely working in Pakistan does not render an individual an ‘enemy’ under Rule 130 of the Defence of India Rules, 1971. This pivotal decision was delivered in the case of [P. Ummer Koya v. State of Kerala and Others], where the court quashed the proceedings against P. Ummer Koya’s property initiated under the Enemy Property Act, 1968.
Background
The petitioner, P. Ummer Koya, a 74-year-old retired officer of the Kerala Police Service, challenged the classification of his property under the Enemy Property Act, 1968. The root of the dispute traced back to Koya’s father, Pulikutty Akathu Kunhikoya, who had traveled to Karachi, Pakistan, in 1953 seeking employment opportunities. Despite his brief stay and work in Pakistan, Kunhikoya returned to India and resided in his native village, Parappanangadi in the Malappuram District, until his death in 1995.
The controversy began when the 6th respondent, the Custodian of Enemy Property of India (CEPI), included 20.500 cents of Koya’s land in an investigation list, branding it as ‘enemy property’ due to Kunhikoya’s temporary stay in Pakistan. Koya sought a judicial declaration that his property could not be considered enemy property under the provisions of the Enemy Property Act, 1968.
The critical legal issue in this case revolved around the interpretation of ‘enemy’ as defined under Rule 130 of the Defence of India Rules, 1971, and the applicability of this definition in the context of the Enemy Property Act, 1968. Additionally, the case scrutinized the extent of authority of the CEPI and the procedural requirements necessary for declaring a property as enemy property.
Justice Viju Abraham presided over the case and delivered the judgment, highlighting that the definitions provided in the Defence of India Rules were specific to wartime contexts and were not applicable for the purpose of determining enemy property under peacetime legislation.
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Justice Abraham stated-
“The Defence of India Rules, 1971, were designed for wartime use and should not be used during peacetime to designate properties as enemy property.”
He further elaborated-
“Merely working in Pakistan does not automatically classify an individual as an enemy under Rule 130. This provision applies to individuals actively involved in hostilities against India during wartime.”
The court meticulously analyzed the procedural aspects followed by the CEPI and found them lacking in adherence to the principles of natural justice.
Justice Abraham noted-
“The petitioner’s property was added to the enemy property list without due process and without affording a fair opportunity for the petitioner to present his case.”
The Kerala High Court has clarified the legal definitions and applications concerning “enemy” property, providing significant relief to P. Ummer Koya, whose father’s brief tenure in Pakistan had cast a long shadow over his family’s property rights in India.
Justice Abraham of the Kerala High Court rendered a judgment that underscored the procedural flaws and misinterpretations by the Custodian of Enemy Property for India (CEPI).
He decisively stated-
“Merely because the petitioner’s father went to Pakistan in search of a job and worked there briefly does not classify him within the definition of ‘enemy’ under Rules 130 or 138 of the Defence of India Rules, 1971.”
The core of the issue stemmed from the petitioner’s father, Kunhikoya, who was temporarily employed in Pakistan. The central government had previously recognized Kunhikoya as an Indian citizen under Section 9(2) of the Citizenship Act, 1955, through an order dated May 24, 1990 (Ext.P13), clearly stating that he did not voluntarily acquire Pakistani citizenship. Therefore, applying the Enemy Property Act to Koya’s properties in the wake of his employment in Pakistan was deemed “unjustified” by Justice Abraham.
The High Court’s directive to the Revenue Authorities to accept basic tax from Koya for his properties and the quashing of the CEPT’s proceedings affecting Koya’s 20.500 cents of land marks a significant turning point, reinstating Koya’s rights over his familial land.
Justice Abraham further highlighted the-
“procedural deficiencies and the incorrect application of the law by the CEPL,”
pointing out that the ongoing investigations and resultant proceedings lacked substantial legal basis. This was grounded in the unequivocal evidence of Kunhikoya’s citizenship status and his non-association with enemy entities, emphasizing a misclassification that led to unnecessary legal challenges for Koya.
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The petitioner, P. Ummer Koya, was adeptly represented by Advocate M.A. Asif. The legal opposition included formidable representatives from the state and central authorities: the State of Kerala, represented by the Principal Secretary, Department of Revenue, and the District Collector of Malappuram, as well as the Tahsildar of Tirurangadi and the Village Officer of Parappanangadi.
The Union of India’s interests were defended by the Secretary of the Ministry of Home Affairs, and the CEPI by Advocate K.S. Prenjith Kumar and Government Pleader Deepa V.
