Custodian Of Enemy Property Cannot Halt Project On Land Not Vested In Him: Bombay High Court

The Custodian of Enemy Properties doesn’t have the power to issue prohibitory orders against any land parcel suspected to be an ‘enemy property’ until the Custodian is vested with the property under the Enemy Properties Act, 1968 the Bombay High Court held.

Properties owned by Pakistani Nationals and acquired by the Indian government are known as ‘enemy properties.’

A division bench comprising Justices Sunil Shukre and Rajesh Patil quashed all communications issued by the Assistant Custodian of Enemy Property directing the Tehsildar and Collector to Mira- Bhayander Municipal Corporation, to issue stop work notices to a development project undertaken by Neelkamal Realtors.

“Whatever powers the custodian of enemy property has under the aforestated provisions, are available in respect of taking certain measures in relation to enemy property already vested in him or the enemy property about which a declaration has been made that it has vested in him…”

Case

The HighC was seized with a petition filed by Neelkamal Realtors against orders issued by the Assistant Custodian of Enemy Properties to the Collector and Tehsildar not to issue any approvals for the project.

Just before this the Custodian issued a show-notice to Neelkamal on December 17, 2022 claiming that there was an enemy interest in property and why the property should not be taken over as an enemy property under Section 11 of the Enemy Property Act, 1968. It also sought more details about the property.

Senior Advocate Girish Godbole for the petitioner argued that the Custodian did not have the powers to issue the communications referring to various provisions of the EP Act, 1968 and Rules made therein and also the notifications issued by the Central Government.

He further argued that there was nothing to show the property was vesting in the Custodian under provisions of the Defence of India Act, 1962 that he was required to take measures to preserve the property.

Advocate Advait Sethna however submitted it was for the petitioner to prove title in the property. The power to issue communications to protect the property was implied under the EP Act.

Observations

At the outset the court refused to intervene in the proceedings initiated against the petitioner under section 11 of the Act as it was only a preliminary inquiry. “Petitioners can always file their objections in respect to the notice and … also explain their stand and as that has not happened so far, this Court would not interfere with the proceedings.”

The provisions of the EP Act made it clear that the Custodian could deal with property and take all measures for its preservation, including sale and disposal, only after making an enquiry and declaring that the property of the enemy vests in him.

“They further show that once the enemy property vests in the custodian, no enemy or enemy subject or enemy firm shall have any right to transfer any such vested property and if any transfer of such vested property is made, it shall be void and shall otherwise be deemed to have been void.”

Finally, the court quashed all comminutions issued to Neelkamal to stop work.

“In the present case, there is not a single document, which would show that the subject property was vested in the custodian either under the Defence of India Act, 1962 and the Rules framed thereunder or under the Defence of India Act, 1971 or Rules framed thereunder or the aforestated notifications.”

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