Kerala HC: Going to Pakistan for a Job Doesn’t Qualify Someone as an ‘Enemy’

In a landmark ruling, the Kerala High Court has determined that an individual who traveled to Pakistan seeking employment does not automatically qualify as an enemy under the Defence of India Rules 1971, specifically Rules 150 and 138, unless they engaged in trade with an enemy. This decision came as the court quashed proceedings initiated against a petitioner under the Enemy Property Act, regarding a property once owned by the petitioner’s father, who briefly worked in Karachi.

A retired police officer approached the High Court after land belonging to his father was considered “enemy” property because his father briefly worked in Pakistan in 1953 at a hotel.

The court, in its recent ruling in the case of *P Ummer Koya v. State of Kerala & Ors*, observed that an Indian cannot be termed an “enemy” under the Defence of India Act or its rules merely for having worked briefly in Pakistan.

The 74-year-old petitioner, a retired police officer, was barred from paying basic tax on this property because of proceedings initiated against it under the Enemy Property Act. He was informed that his father, who passed away in 1995, had been viewed as an “enemy” for seeking employment in Pakistan in 1953.

Aggrieved, the petitioner sought relief from the High Court.

In a ruling on June 24, Justice Viju Abraham stated that moving to Pakistan for employment does not make one an “enemy” under the Defence of India Rules.

“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 were provided for a totally different purpose. The reliance placed on these Rules is totally out of context and irrelevant to the facts of this case,” the Court said.

The Court was addressing a petition filed by P Ummer Koya after learning that the Custodian of Enemy Property for India (CEPI) had initiated proceedings against his father under the Enemy Property Act, 1968, based on a 1971 notification issued by the Union Ministry of Foreign Trade. This notification stated that all property defined as enemy property under Rule 138 of the Defence of India Rules, 1971, held by an enemy as defined under Rule 130, would be vested in the CEPI.

Rule 130 deals with the ‘Control of Trading with Enemy,’ and Rule 138 pertains to the ‘Control of Enemy Firm.’ These rules aim to prohibit trade with an enemy or enemy firms.

Koya contested the decision to declare his father’s property as “enemy property” under these provisions. He stated that he and his family have lived in Malappuram, Kerala, for generations. His father, who died in 1995 at the age of 93, was buried in India.

He explained that his father briefly worked in Karachi, Pakistan, as a hotel helper around 1953. As a result, police authorities often branded his father as a Pakistani citizen. However, his father approached the Central government, and in 1990, his Indian citizenship was confirmed. Authorities concluded that Koya’s father never voluntarily acquired Pakistani citizenship and remained an Indian citizen.

The Court found merit in these arguments and noted that the 1971 notification aimed only to prevent trading with an “enemy” and “enemy firms” to avoid external aggression against India.

The Court found no evidence that the petitioner’s father engaged in trading with an enemy or was under the control of an enemy firm during his stay in Pakistan.

“The petitioner’s father does not come under the definition of ‘enemy,’ nor can the property held by him by any stretch of imagination be held as ‘enemy property.’ The 6th respondent (CEPI) has absolutely no case that the petitioner’s father was trading with an ‘enemy’ or part of any ‘enemy firm’ carrying out business with India,” the Court found.

The Court, therefore, quashed the proceedings initiated by CEPI and instructed the village officer to accept the basic tax payment from the petitioner.

Advocate MA Asif represented the petitioner, while Central government standing counsel KS Prenjith Kumar represented the Union of India and the CEPI. Government Pleader Deepa V appeared for the Kerala government and local authorities.