Enemy Property – The Custodian for Enemy Property in India, in whom the enemy properties vest including the subject property, does not acquire ownership of the said properties. The enemy properties vest in the Custodian as a trustee only for the management and administration of such properties -The Central Government may, on a reference or complaint or on its own motion initiate a process of divestment of enemy property vested in the Custodian to the owner thereof or to such other person vide Rule 15 of the Rules. Hence, the vesting of the enemy property in the Custodian is only as a temporary measure and he acts as a trustee of the said properties – Union of India cannot assume ownership of the enemy properties once the said property is vested in the Custodian. This is because, there is no transfer of ownership from the owner of the enemy property to the Custodian and consequently, there is no ownership rights transferred to the Union of India. Therefore, the enemy properties which vest in the Custodian are not Union properties.
Constitution of India, 1950; Article 285- As the enemy properties are not Union properties, clause (1) of Article 285 does not apply to enemy properties. Clause (2) of Article 285 is an exception to clause (1) and would apply only if the enemy properties are Union properties and not otherwise.
Constitution of India, 1950; Article 300A – No person shall be deprived of his property save by authority of law. The word “law” is with reference to an Act of Parliament or of a State Legislature, a rule or a statutory order having the force of law. Although, to hold property is not a fundamental right, yet it is a constitutional right. The expression person in Article 300-A covers not only a legal or juristic person but also a person who is not a citizen of India. The expression property is also of a wide scope and includes not only tangible or intangible property but also all rights, title and interest in a property. Deprivation of property may take place in various ways, but where there is only control of property short of deprivation would not entail payment of compensation . However, deprivation of property is to be distinguished from restriction of the rights following from ownership, which falls short of dispossession of the owner from those rights. Deprivation also takes within its nomenclature acquisition in accordance with law and not without any sanction of law. Before a person can be deprived of his right to property, the law must expressly and Civil Appeal explicitly state so. Thus, the expression by authority of law means by or under a law made by the competent Legislature – Referred to vide Indian Handicrafts Emporium vs. Union of India, (2003) 7 SCC 589 and Chandigarh Housing Board vs. Major-General Devinder Singh (Retd.), (2007) 9 SCC 67. (Para 18)
Possession and Ownership -Possession is the objective realisation of ownership”. It is in fact what ownership is in right. Ownership is the guarantee of the law, while the possession is the guarantee of the fact. Normally, ownership and possession co-exist but not always. (14.16)