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IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
Shamim Ahmed Alias Rafique Ahmed - Appellant
Versus
Custodian Of Enemy Property Of India And Others - Respondent
WPO No. 1214 of 2022
Decided On : 05-07-2022
Enemy Property Act - Property Dispute - Enemy Property Act, 1968, Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Section 8, Section 4(1)(b)(ii), Section 4(2), Rule 5(1), Rule 2(1)(h), Rule 14 - The court discussed the provisions of the Enemy Property Act, 1968, and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, highlighting the specific procedures to be followed before declaring an immovable property as an enemy property and before taking possession. The court emphasized the need for due process of law, including issuance of notice and giving an opportunity of hearing to the occupants and all interested persons as well as owners, before taking any eviction action.
Fact of the Case:
The petitioner alleged to be a co-owner of a premises in Kolkata and challenged notices declaring the property as an enemy property and claiming unauthorized occupation.
Finding of the Court:
The court found that the petitioner was in possession of the disputed premises and that the respondents had not obtained physical possession in accordance with due process of law.
Issues: The primary challenge in the writ petition was against the notices declaring the property as an enemy property and alleging unauthorized occupation.
Ratio Decidendi: The court emphasized the need for due process of law, including issuance of notice and giving an opportunity of hearing to the occupants and all interested persons as well as owners, before taking any eviction action.
Final Decision: The court set aside the fictitious and unlawful notice, allowed the petitioner to challenge the other notice, declared the petitioner's possession of the premises, and restrained the respondents from disturbing the petitioner's possession until eviction is obtained in due process of law.
JUDGMENT
The Court:
1. The writ petitioner alleges to be a co-owner of the premises no.21, Ganesh Chandra Avenue, Kolkata - 700 013.
2. The petitioner alleges that he resides with his family on a portion of the fifth floor of the premises. The rest of the premises, according to him, is occupied by his tenants.
3. Due to accidental fire and consequential damages, repair work was going on at the said premises. The petitioner had been residing elsewhere with his family due to the renovation and repair work going on at the premises no.21, Ganesh Chandra Avenue, Kolkata - 700 013.
4. On November 27, 2021, the petitioner discovered a noticed issued by one Avishek Agarwal, Assistant Custodian of Enemy Property/Estate Officer, which declared that the property is an enemy property as per the provisions of the Enemy Property Act. It further stated that, in compliance of Order dated November 24, 2021 issued by CEPI under Section 8 of the Act, the vacant possession of property bearing no.21, Ganesh Chandra Avenue, Kolkata - 700 001 was thereby taken over and the property had been sealed by the CEPI and that any trespasser shall be prosecuted in accordance with law.
5. The petitioner replied to the said notice, informing that he is an Indian citizen and the premises cannot be declared as an enemy property.
6. On December 03, 2021, a purported show-cause notice issued by the said Avishek Agarwal was hung at the entrance of the premises indicating that a personal hearing had to be attended on December 07, 2021 at 11 a.m. at the Office of the Custodian.
7. On February 2, 2022, the petitioner came to know that certain persons had entered the premises and had sealed the petitioner's flat situated on the fifth floor at the said property by sealing the padlock on the front-door and pasting a notice on the door. The notice purported to be issued by the same Avishek Agarwal, Assistant Custodian of Enemy Property/Estate Officer claiming that the property was an enemy property under the provisions of the Enemy Property Act (as amended).
8. On February 2, 2022, the petitioner received a notice dated February 1, 2022 addressed by name to the petitioner asking the petitioner to show cause. The notice was apparently issued under Section 4(1)(b)(ii) and Section 4(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 'the 1971 Act').
9. It was alleged that the petitioner was in unauthorized occupation of the disputed premises, which was allegedly a public premises.
10. A General Diary entry was lodged by the petitioner on February 2, 2022 with the Officer-in-Charge, Boubazar Police Station to bring the said incident of February 1, 2022 to the notice of the police. The petitioner allegedly went to the Office of the Custodian of Enemy Property at Kolkata to make enquiries about such sudden action and found that Avishek Agarwal does not sit in the Kolkata Office but operates from Delhi.
11. However, the said Avishek Agarwal denied having given any notice to the petitioner. Thereafter the representative of the petitioner, on February 7 2022 went to the Office of the Custodian and requested them to take steps and asked the police personnel to unlock the premises where vital belongings of the petitioner and his family were lying.
12. On February 10, 2022, the petitioner visited the Officer-in-Charge of the Boubazar Police Station (respondent no.5) and requested the said respondent to start an investigation. However, after repeated visits to the Office of the Custodian and the Police Station, no fruitful result came about, for which the present writ petition has been filed. The primary challenge in the writ petition is against the notices dated November 7, 2021 and February 1, 2022.
13. Prayers have also been made in the writ petition for a direction on the respondent no.5 to proceed in accordance with law, register a first information report on the basis of complaints of the petitioner dated February 2, and February 4, 2022 as we
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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.
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