Mumbai: The Bombay High Court, on Monday, held that the Department of Custodian of Enemy Property does not have any power to issue prohibitory and injunctive orders against any “enemy property” which has not been vested with it.
An enemy property refers to property owned by a Pakistani national in India, which was acquired before partition.
A division bench of Justices Sunil Shukre and Rajesh Patil quashed a notice/communication issued by the assistant custodian in December 2021 to the Tehsildar and Collector of Mira-Bhayander asking them to issue a stop work notice to a development project undertaken by M/s Neelkamal Realtors over a large property.
HC hears petition challenging communication notice
The HC was hearing a petition filed by Neelkamal and its director Ishaq Balwa challenging the communication issued on behalf of the Office of the Custodian of Enemy Property of India asking them to show cause why the properties should not be taken over as enemy properties and dealt with under the provisions of The Enemy Property Act, 1968 (EP Act) stating that there was an “enemy interest involved”.
It also asked the Tehlsildar and Collector of Mira Bhayander to issue a stop work notice and not to make mutation entries for the properties. Accordingly, respective offices issued notices and communications to Neelkamal.
This was challenged before the HC contending that the realtor has already developed much of the larger property and is in the process of developing the remaining larger property comprising various buildings. It contended that its effort to complete the development of remaining buildings on the larger property has come to a standstill on account of the impugned notice and communication.
Senior advocate Girish Godbole for the petitioners submitted that the Custodian of Enemy Property does not have any power to issue directions to authorities asking to stop work for properties which have not been vested with it as per the provisions of the Defence of India Act and its Rules.
He clarified that the object of the EP Act is to provide for the “continued vesting” of enemy property already vested in the Custodian.
Advait Sethna, advocate for the Custodian, opposed the plea saying that even though there is no express power conferred upon the Custodian under the EP Act to issue a communication regarding stopping of work or prohibiting transfers without prior approval, such power can be impliedly read into the provisions of the EP Act.
Petitioners can file objection to the notice
The bench observed that the petitioners have only received notice and hence they “can always file their objections in respect to the notice and can also appear before Respondent No. 2 (Assistant Custodian) to explain their stand”.
The court clarified that it has only decided on the issue of whether the Custodian has the power to issue such a notice and communications.
The bench then quashed the notice and communications issued by the Custodian saying that the same were “illegal and without jurisdiction”. Following a request from Sethna, the HC has stayed its order for two weeks.
