Title: M/s. Neelkamal Realtors & anr. v. Office of the Custodian of Enemy Property of India & Ors.
Citation: WRIT PETITION NO.5122 OF 2022
Decided on: 23.10.2023
Coram: Justice Sunil B. Shukre and Justice Rajesh S. Patil
Introduction
The High Court of Bombay in this matter adjudicated upon the powers vested with the Assistant Custodian of Enemy property. Justice Sunil B. Shukre and Justice Rajesh S. Patil, while deciding the matter took upon the view that there are no provisions in the Enemy Property Act, that confer any power upon the custodian to pass any interim order or make a request to the concerned authorities to issue directions for not transferring certain properties without approval of the custodian or stopping the construction work, which has been commenced after seeking due development permission from the Planning Authority.
Facts of the case
The petitioners in this case, Neelkamal Realtors are involved in the business of construction. They were working on the development of some remaining property on a larger property developed by them. However, there efforts came to a standstill on account of the impugned notice and impugned communications received by the petitioners. They were issued a notice by the Assistant Custodian of Enemy Property regarding the proceedings to be initiated under Section 11 of the Enemy Property Act, 1968 as there was an enemy interest involved in the larger property developed/ being developed by the petitioners. The Assistant Custodian of Enemy also sent a letter to the District Collector, Thane, wherein the collector was asked to issue communications to petitioners prohibiting any transfer, approval of the property and also ensuring that no work is to be continued, in case any construction or redevelopment activity had commenced.
Aggrieved by the action taken by the Assistant Custodian of Enemy, the petitioners have approached this court challenging the above notice and communications.
Court’s observation and analysis
The High Court of Bombay in this case majorly focused on the issue of extent of power vested with the Assistant Custodian of Enemy and whether he has the power to direct the District Collector to issue the communications, prohibiting transfers and stopping work of construction to the petitioner. The court made a reference to Section 5, Section 5A and Section 8 of the EP Act, 1968.
5A would show that they provide for continued vesting in the custodian of enemy properties which were vested before expiration of the Defence of India Act, 1962 and the Defence of India Rules, 1971. They further provide for continued vesting in custodian of enemy properties, which are vested in him before expiration of Defence of India Act, 1971 and the Defence of India Rules, 1972. Further, the custodian has the power to make inquiry in case in case he finds it necessaryfor the purpose of declaring that the enemy property described in the order vests with him and issue a certificate in this regard. Once, it is established that the enemy property vests in the custodian, that property cannot be further transferred or tampered with.
Section 8 states that extent of measures that can be taken by the custodian with a view to preserve that property, till it is disposed of in accordance with the provisions of the Act. By relying on the above mentioned provisions, the High court held that, these provisions do not confer any power upon the custodian to pass any interim order or make a request to the concerned authorities to issue directions for not transferring certain properties without approval of the custodian or stopping the construction work, which has been commenced after seeking due development permission from the Planning Authority. He can only take such measures with respected to the enemy property vested in him or the enemy property about which a declaration has been made and not otherwise.
Hence, the impugned notice and communications were found to be illegal and the present petition was allowed.
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Written by- Amrita Rout
