Bombay High Court Quashes Mutation Of Wakf Properties As Enemy Property, Says Due Process Is Mandatory

The Bombay High Court has quashed communications directing mutation of certain Wakf properties as "enemy property" in the name of the Custodian, holding that such action cannot be taken without first determining the jurisdictional facts through an inquiry and affording the affected parties an opportunity of hearing. The Court further held that Section 22A of the Enemy Property Act, 1968 cannot be construed to nullify or override judicial orders passed by a High Court in exercise of its powers under Article 226 of the Constitution.A Division Bench of Justice Suman Shyam and Justice Shyam C. Chandak was hearing three connected writ petitions challenging communications issued by the Custodian of Enemy Property directing mutation of certain Wakf properties in the Custodian's name by deleting the names of the existing owners. The petitioners contended that the properties had never been declared enemy property under the Defence of India Rules, that the Wakf had earlier obtained a consent order from the Bombay High Court in 2007 resulting in withdrawal of the earlier proceedings initiated by the Custodian, and that the impugned communications and mutation entries were made without notice or inquiry.Examining the statutory framework, the Court held that the Enemy Property Act contemplates two modes of vesting: first, by a notification or order issued under the Defence of India Rules; and second, through statutory vesting where the Custodian, after necessary inquiry, determines that the property satisfies the requirements of Sections 2(b) and 2(c) of the Act. While agreeing that statutory vesting can occur even without a prior notification, the Court emphasised that such vesting is contingent upon fulfilment of jurisdictional facts and cannot be presumed. It observed:“… the requirement of adherence to the principles of natural justice by the Custodian before declaring or treating any property as enemy property upon the custodian must be treated to be an inbuilt requirement of the provisions of the Act of 1968 since, such action of the Custodian will have adverse Civil consequences on the owner/possessor of the property,” the Court observed. The Court noted that in the absence of any Notification issued by the Central Government specifically vesting the property on the Custodian by declaring the same as Enemy Property, property held by any person or institution cannot be encumbered by treating the same as Enemy Property based on mere ipse dixit (assertion without proof) of the Custodian, that too, by issuing ex-parte orders/directions.The Bench also held that Section 22A cannot be interpreted to invalidate or override binding judicial orders passed by constitutional courts under Article 226, including the earlier consent order recorded by the Bombay High Court. Since the impugned communications and mutation entries had been issued without determining the jurisdictional facts or affording the affected parties an opportunity of hearing, they could not be sustained in law.Accordingly, the High Court allowed the writ petitions, and quashed the impugned communications and consequential mutation entries.Case Title: Mehta Impex Private Limited v. State of Maharashtra (With Connected Matters) [Writ Petition No. 1080 of 2024]Click Here To Read/Download Order

Bombay High Court Quashes Mutation Of Wakf Properties As Enemy Property, Says Due Process Is Mandatory

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Bombay High Court Quashes Mutation Of Wakf Properties As Enemy Property, Says Due Process Is Mandatory

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