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IN THE HIGH COURT OF BOMBAY
Sunil B.Shukre, Rajesh S.Patil, JJ.
Neelkamal Realtors Suburban Private Limited - Appellant
Versus
Office of The Custodian of Enemy Property of India - Respondent
Writ Petition No. 5122 of 2022
Decided On : 23-10-2023
ENEMY PROPERTY - Custodian Authority and Powers - Enemy Property Act, 1968 - Sections 5, 5A, 8, 11 - The court analyzed the powers conferred upon the Custodian of Enemy Property under the Enemy Property Act, 1968, particularly focusing on Sections 5, 5A, and 8. It concluded that the Assistant Custodian lacked the authority to issue prohibitory orders regarding property not yet vested in him, as the property in question had not been declared as enemy property. The court emphasized that the powers of the custodian are limited to properties already vested and do not extend to issuing interim directions or stopping construction on properties under inquiry.
Fact of the Case:
The petitioners, a company and its shareholder, challenged notices and communications from the Assistant Custodian of Enemy Property regarding their property, which was alleged to involve enemy interest. The Assistant Custodian had issued a notice under Section 11 of the Enemy Property Act, 1968, and requested local authorities to stop construction and prohibit transfers related to the property.
Finding of the Court:
The court found that the Assistant Custodian did not have the power to issue the first impugned communication, which requested local authorities to stop construction and prohibit transfers. The court held that the property had not been vested in the custodian, and thus, the actions taken were without jurisdiction.
Issues: The primary issue was whether the Assistant Custodian had the authority to issue communications that effectively prohibited construction and transfers of property that had not been declared as enemy property.
Ratio Decidendi: The court determined that the powers of the custodian under the Enemy Property Act, 1968, are confined to properties that have been vested in him. Since the property in question had not been declared as enemy property, the Assistant Custodian's actions were deemed illegal and without jurisdiction.
Final Decision: The court allowed the petition, set aside the impugned communications, and directed the deletion of the related entries in the revenue records, ruling that the Assistant Custodian's actions were without legal authority.
JUDGMENT/ORDER
SUNIL B.SHUKRE, J. - RULE. Rule made returnable forthwith. Heard finally by consent of learned counsel for the respective parties.
2. Petitioner No.1 is a Company registered under the Companies Act, 1956, of which Petitioner No.2 is a shareholder and authorized representative of Petitioner No.1. The petitioners claim that Petitioner No.1 has developed much of larger property and is in process of developing the remaining larger property comprising various buildings constructed/to be constructed on the larger property as described in details in Paragraph 2 of the petition.
3. The Petitioners state that their effort to complete the development of remaining buildings on the larger property has come to a stand still on account of the impugned notice and impugned communications received by the petitioners.
4. The petitioners submit that they were issued a notice dtd. 17/12/2021 by the Assistant Custodian of Enemy Property stating that there was an enemy interest involved in the larger property developed/ being developed by the petitioners, and therefore, they were called upon to inform the Assistant Custodian if there were any objections to the proceedings initiated under Sec. 11 of the Enemy Property Act, 1968 (hereinafter referred to as 'The EP Act, 1968') and if so, they were further called upon to produce before the Assistant Custodian all documents and other evidence in support of their objections. The show-cause notice was in effect called upon the petitioners as to why the said properties should not be taken over as Enemy Properties and dealt with under the provisions of The EP Act, 1968.
5. The petitioners submit that the Assistant Custodian of Enemy Property also sent a letter to the District Collector, Thane and concerned Tahsildar dtd. 17/12/2021 ('the first impugned communication'), whereby he requested them to issue directions to all concerned officials for sending necessary information and also to ensure that no transfers, approvals and orders were issued in respect of the survey numbers mentioned in the notice. Further request was made to direct and ensure stopping of work in case any construction or redevelopment activity had commenced.
6. The petitioners further submit that following the request letter dtd. 17/12/2021 of Assistant Custodian, Additional Tahsildar, Mira Bhayander by his communication dtd. 7/1/2022 addressed to the Talathi Saja Mire and Talathi Saja Ghodbunder directed them to take an entry in the revenue records that the subject property be not transferred without prior permission of the Assistant Custodian of Enemy Property. The petitioners submit that by further communication dtd. 10/1/2022 addressed to the Town Planner of Mira Bhayander Municipal Corporation, the Assistant Tahasildar and the Corporation directed to issue stop work notice in respect of the ongoing construction in the larger property.
7. Being aggrieved by the action so taken, the petitioners have filed this petition challenging the aforestated notice and the said communications. The petitioners have also challenged the Mutation Entry No.518 in Form No.6 of Village Mahajanwadi, Taluka and District : Thane. and District: Thane and the consequent entry taken in 7/12 extract relating to the larger property.
8. Mr. Godbole, learned Senior Advocate for the petitioners submits that there is no power conferred upon the Assistant Custodian (Respondent No.2) or office of Custodian of Enemy Property (Respondent No.1) to issue the first impugned communication requesting the Collector and concerned Tahasildar to issue directions as referred to earlier in respect of the parties of the larger property ('subject property'). In support of his contentions, he has taken us to various provisions of The EP Act, 1968 and Rules made therein and also the notifications issued by the Central Government.
9. He further submits that there is nothing brought on record by Respondent Nos.1 and 2 showing that the subject property is already vested in
The Assistant Custodian of Enemy Property lacks the authority to issue prohibitory orders regarding properties that have not been vested in him under the Enemy Property Act, 1968.
Sealing of property and ouster of owner from enemy property – Although Custodian can take steps for affixation of a notice at a property deemed be enemy property for the purpose of vesting the same i....
The court emphasized the necessity of adhering to natural justice principles in administrative procedures, particularly the right to a personal hearing in matters involving property claims under the ....
The discretionary jurisdiction under Article 226 of the Constitution of India should not be exercised to protect and promote an illegality, and the Court would not pass orders to protect or advance a....
The court emphasizes the importance of clear identification and demarcation of properties declared as enemy properties in any notice or order issued under the Enemy Property Act, 1968.
The central legal point established in the judgment is that a person's status as an 'enemy' under the Enemy Property Act must be determined based on the definitions provided in the Act and the Citize....
Enemy property vested in the Custodian does not transfer ownership to the Union, thus remains liable for local taxation under Article 285 of the Constitution.
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