Introduction:

In a significant ruling, the Kerala High Court has clarified that merely moving to Pakistan for employment does not render an individual an “enemy” under the Defence of India Rules, 1971, unless the person was engaged in trading with an enemy. This judgment came as a relief to petitioner P. Ummer Koya, whose father’s property was subjected to proceedings under the Enemy Property Act, 1968, based on his brief employment in Pakistan. The court quashed the proceedings, emphasizing that the application of the term “enemy” in this context was misplaced.

Arguments of Both Sides:

Advocate M. A. Asif, representing the petitioner, argued that the application of the Enemy Property Act to his client’s property was unjust and based on an incorrect interpretation of the law. The petitioner’s father, Kunji Koya, had only worked in Pakistan for a short period and had no involvement in any trading activities with an enemy. The petitioner’s father and forefathers were residents of Parappanangadi in Malappuram, Kerala. The petitioner pointed out that after his father worked briefly in Karachi, he was wrongly accused of being a Pakistani citizen and was harassed by the police.

The petitioner further contended that his father had approached the Central Government, which had affirmed his status as an Indian citizen under the Citizenship Act. Therefore, his father’s brief employment in Pakistan did not and should not qualify him as an enemy. The petitioner also highlighted that the property in question was acquired lawfully from his father and relatives and should not be subjected to proceedings under the Enemy Property Act.

Advocates K. S. Prenjith Kumar and Deepa V., representing the respondents, argued that the property in question was subject to proceedings under the Enemy Property Act based on a notification by the Ministry of Foreign Trade. The notification dictated that properties defined as enemy property under Rule 138 of the Defence of India Rules, held by an enemy as defined under Rule 130, would be vested in the Custodian of Enemy Property of India (CEPI). They maintained that the petitioner’s father had lived and worked in Pakistan, which under the prevailing policies could categorize him as an enemy.

The respondents held that under the policy, any property held by a person who had connections with Pakistan, irrespective of the duration or nature of the connection, should be treated as enemy property. The respondents emphasized that the procedural steps taken were in compliance with the relevant regulations and notifications.

Court’s Judgement:

Justice Viju Abraham, delivering the judgment, meticulously dissected the relevant provisions of the Enemy Property Act and the Defence of India Rules. He stated that the core issue was whether the petitioner’s father fell under the definition of an “enemy” as per the rules. The court noted that Rule 130 pertains to trading with an enemy, and Rule 138 deals with the control of enemy firms. Both rules are intended to prevent economic interactions with an enemy during conflicts.

Justice Abraham observed that the petitioner’s father did not engage in any trading activities with an enemy or an enemy firm. His brief stint of employment in a hotel in Pakistan could not be construed as trading with an enemy. The court highlighted that the rules under which the term “enemy” was applied were designed for entirely different purposes and were irrelevant to the petitioner’s case.

The judgment also pointed out that the petitioner’s father had been recognized as an Indian citizen by the Central Government, a fact that negated the respondents’ argument. The court underscored that the petitioner’s father’s employment in Pakistan was not sufficient to categorize him as an enemy under the Defence of India Rules. The mere fact of seeking employment in Pakistan without engaging in any prohibited trading activities did not satisfy the criteria for being deemed an enemy.

Justice Abraham further criticized the administrative decision to deny the petitioner’s ability to pay taxes on the property. He declared that the reliance on the Defence of India Rules was out of context and unjustified. Consequently, the court quashed the proceedings initiated by the Custodian of Enemy Property of India against the petitioner’s property.

The court directed the village officer to accept the basic tax payments for the property from the petitioner, thus restoring the petitioner’s rightful status as the property owner without any encumbrances from the Enemy Property Act.