Summary of Judgement

The Judgement

1) Applicant has invoked the revisionary jurisdiction of this Court under Section 297 of the Code of Criminal Procedure, 1973 (the Code) challenging the order dated 28 July 2023 passed by the Special Court for CBI rejecting the application filed by him seeking discharge under Section 227 of the Code.

2) Brief facts leading to the filing of the present Revision Application are that, property bearing Survey No. 276, Hissa No.4 (Part), H-Ward No. 1068(2) Street No.760 CTS No.B/973/4 Chapel Road, Bandra (West), Mumbai was purchased jointly by Ms. Mariam Yacoob Tabani and Mr. Aziz Yacoob Tabani, each of whom owned 1½ share in the said property. While Ms. Mariam Yacoob Tabani migrated to England and obtained British citizenship in the year 1967, Mr. Aziz Yacoob Tabani migrated to Pakistan in the year 1969 and obtained Pakistan citizenship in the year 1970. It appears that on account of migration of Mr. Aziz Yacoob Tabani, his ½ share in the property got governed by the provisions of Enemy Property Act, 1968. It appears that Mr. Chandrakant Shah, partner of M/s. Jay Construction Co. entered into Agreement for Sale in resepect of of the said property with Ms. Mariam Yacoob Tabani and Mr. Aziz Yacoob Tabani in October, 1980. M/s. Jay Construction Co. approached the then Custodian of Enemy Properties, Mr. D.S. Kolamkar (Accused No.1) for sale of ½ undivided share of Mr. Aziz Yacoob Tabani. When the owners approached RBI for seeking permission for sale of their shares, permission was granted to Ms. Mariam Yacoob Tabani but the application for permission of Mr. Aziz Yacoob Tabani was referred to Custodian of Enemy Properties (CEP) since he was a Pakistan National. Accordingly, Mr. Aziz Yacoob Tabani also moved an application before the Custodian seeking permission for sale of the property. The then Custodian, Mr. D.S. Kolamkar (Accused No.1) granted his No-Objection on certain conditions including deposit of sale proceed with CEP office for transfer of share of Mr. Aziz Yacoob Tabani in favour of M/s. Jay Construction Co. Accordingly, Conveyance Deed dated 8 April 1999 was executed to which the Custodian was a confirming party.

3) It appears that the then Custodian, Mr. S.S. Sandhu issued a show cause notice dated 2 January 2004 to M/s. Jay Construction Co. informing that the conveyance would be cancelled by the Government of India under Section 6 of the Enemy Property Act, 1968. On 17 February 2005, Ms. Ruby Srivastava, the then Custodian issued a Certificate under Section 12 of the Enemy Property Act certifying that the said property is an enemy property vested in the Custodian and that the same shall continue to vest with the Custodian under the provisions of the Act.

4) In the above background, Applicant, who is a member of Indian Revenue Services, 1994 Batch of Group-A Officers came to be appointed as Custodian of Enemy Property on 14 November 2005 by the Government of India, Ministry of Commerce & Industries, Department of Commerce and Industries. He continued to serve in that capacity till 25 October 2011. Upon noticing that some construction had commenced at the site, the Applicant issued show cause notice dated 29 November 2005 to M/s. Jay Construction Co. stating that the said property vested with the Custodian of Enemy Property and that all transactions in respect of the property were null and void and directing that the construction be stopped.

5) It appears that the Applicant, on his own accord, initiated a proposal seeking opinion from the Joint Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India raising queries as to (i) whether the proportionate right of Mr. Aziz Yacoob Tabani could be termed as enemy property in the light of execution of conveyance of his share by agreement executed in the year 1980? (ii) Whether the transaction of sale of his share with the consent of the Custodian could be held to be null and void under the provisions of Section 6 of the Enemy Property Act? (iii) Whether the transferred property could be revested by the CEP or by the Central Government? (iv) Whether the Certificate issued under Section 12 of the Enemy Property Act by the Custodian on 17 February 2005 was legally sustainable?

6) It appears that some correspondence took place about supply of documents for opinion of the Law Ministry. On 17 May 2006, the Assistant Government Counsel opined that the transaction of sale of ½ property of Mr. Aziz Yacoob Tabani with the consent of Custodian was redundant as the Custodian could not have given his No-Objection for such sale. It was further opined that the Certificate issued under Section 12 of the E.P. Act on 17 February 2005 is legally sustainable. The Applicant apparently did not stop his curiosity after receipt of clear opinion from Ministry of Law and Justice and once again made correspondence on 29 May 2006 once again seeking opinion about validity of Certificate dated 17 February 2005. The Assistant Government Counsel gave opinion on 21 June 2006 about second part about revesting in the Certificate dated 17 May 2005. The Applicant thereafter withdrew the show cause notice dated 29 November 2005, stay order on the construction as well as certificate dated 17 February 2005 by passing order dated 28 June 2006. According to the Applicant, simultaneously with the dropping of the show cause notice, he also sent a detailed proposal to the Ministry of Commerce and Industries on 6 July 2006 for taking steps under Section 6 of the E.P. Act. The Ministry, however felt that no separate action under Section 6 of the Act was necessary.

7) It appears that on 28 June 2007, the subject of ‘Enemy Properties’ came to be transferred to the Ministry of Home Affairs from the Ministry of Commerce and Industries on account of amendment to the Government of India (Allocation of Business) Rules, 1961. The Ministry of Home Affairs issued show cause notice dated 20 December 2013 and 31 December 2013 to M/s. Jay Construction Co. stating that the property is vested with the Custodian who could not have issued a No-objection Certificate for sale of the same. On 16 May 2014, an order was passed revesting his property with the Custodian. The said order dated 16 May 2014 became subject matter of challenge in Writ Petition No. 2177 of 2014 filed by M/s. Jay Construction Co. before the Division Bench of this Court. The petition came to be dismissed by the Division Bench by judgment and order dated 31 July 2015. It appears that certain observations were made by the Division Bench against the Applicant in the said judgment and order dated 8 March 2016 passed. In the Special Leave Petition filed by the Applicant, the Supreme Court has clarified that the observations made in the judgment against the Applicant without hearing him shall not be taken into consideration either in the departmental proceedings or in the criminal case.

8) An FIR bearing No. RC BA1/2016/A0006 came to be registered against the Applicant and others under Sections 120B, 420, 409 of the Indian Penal Code and Section 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act, 1988. So far as the Applicant is concerned, it is alleged in the FIR that he has conspired with the partners of M/s. Jay Construction Co. and vacated the stay order earlier given by him. It is further alleged that he withdrew the vesting certificate issued by the then CEP, Ms. Ruby Srivastav. It is further alleged that while seeking legal opinion, he did not bring out all the facts and necessary documents before the Competent Officer of Ministry of Law and Justice and secured vague opinion with malafide intention despite the fact that on earlier two occasions, a positive opinion was already on record.

9) Applicant filed Criminal Writ Petition No. 4328 of 2016 before this Court for quashing of FIR. The said Writ Petition came to be disposed of by this Court by order dated 15 June 2023 observing that after filing of the chargesheet, the Applicant had filed application for discharge at Exhibit-20 before the learned Special Judge and the same was pending for final adjudication. Applicant was accordingly granted liberty to pursue the said application while disposing off Criminal Writ Petition No. 4328 of 2016. In the discharge application at Exhibit-20, the learned Special Judge has passed order dated 28 July 2023 and has rejected the same. Aggrieved by the order dated 28 July 2023, the Applicant has filed the present Revision Application.

10) I have heard Mr. Nangre, the learned counsel appearing for the Revision Applicant. He would submit that the Applicant has been falsely implicated in the case as there is no incriminating material recovered or discovered so as to connect Applicant to the crime in question. That the role of the Applicant in the entire case is extremely limited where the Applicant initiated a show cause notice to the Purchaser for stoppage of construction and after securing legal opinion from the Ministry of Law and Justice, he withdrew the said show cause notice. Mr. Nangre would further submit that simultaneously with withdrawal of the show cause notice, the Applicant sent specific proposal dated 6 July 2006 to the Ministry for taking appropriate action under Section 6 of the E.P. Act. That thus the Applicant has acted bonafide as per the opinion received from the Ministry of Law and Justice. Inviting my attention to the legal opinion dated 21 June 2006, Mr. Nangre would submit that once the sale of the property was concluded, issuance of subsequent Certificate dated 17 May 2005 would not constitute revesting order as contemplated under Section 6 of the E.P. Act. This is the reason why the Applicant had sent a proposal for initiation of proceedings for revesting of the property by the Central Government under Section 6 of the E.P. Act. That the intention of the Applicant was never to recognise title of the purchaser in the property and all that he wanted was to safeguard the interest of the Government of India by taking appropriate action for revesting of the property, which already stood transferred and was required to be brought back by taking appropriate legal recourse.

11) Mr. Nangre, would then rely upon the provisions of the amended Section 22A of the E.P. Act under which any transfer of enemy property vesting in the Custodian is deemed to be null and void. He would submit that the amended Section 22A came to be introduced in the Enemy Property Act (Management and Validation) Act, 2017 w.e.f. 14 March 2017. That till 14 March 2017, there was no automatic invalidation of transfer of enemy property and in the event of such transfer, it was necessary to take appropriate steps for revesting of the property under Section 6 of the Act.

12) Mr. Nangre would submit that the Special Judge has erroneously relied upon the observations made by the Division Bench of this Court when the Apex Court has already clarified that the said observations cannot be relied upon against Applicant as the same are made without hearing him. Mr. Nangre would further submit that though the discharge application was filed under the provisions of Section 227 of the Code, the learned Special Judge has erroneously considered the same under the provisions of Section 239 thereby indicating complete non application of mind. He would take me through various observations of the learned Special Judge to demonstrate the errors therein. He would pray for setting aside the order of the learned Special Judge and for discharge of the Applicant from Special Case No. 1642 of 2021 pending on the file of the Special Court for CBI.

13) Per-contra, Mr. Shirsat the learned counsel appearing for Respondent-CBI would oppose the petition and support the order passed by the Learned Special Judge. He would submit that there is incriminating material available for prosecution of the applicant who appears to have connived with M/s. Jay Construction Co. for illegal withdrawal of the show cause notice. Mr. Shirsat would highlight the role played by the Applicant from various observations made by the Division Bench of this Court while dismissing Writ Petition No. 2177 of 2014. He would submit that no case is made out for discharge of the Applicant and would pray for dismissal of the Revision Application.

14) I have considered the submissions advanced by the learned counsel appearing for the rival parties and have gone through the impugned order passed by the learned Special Judge as well as the records of the cased produced alongwith the petition.

15) In the FIR, the overt acts and role played by the Applicant is described as under:

(i) He also conspired criminally with partners of M/s. Jay Construction Company and issued a Show Cause Notice dated 29/11/2005 to show cause as to how the construction work has been under taken in violation of the provisions of Enemy Property Act 1968. After receiving the reply to the show cause he also vacated the stay given by the earlier custodian in the year 2004. This SCN was issued under Sec.6 EP Act for which the Competent Authority is the Central Govt. and not the CEP.

(ii) He withdrew the vesting certificate issued by the then CEP Mrs. Ruby Srivastav. He passed an order dated 28/06/2006 mentioning the transfer of the property is in accordance with the law and the vesting certificate dated 17/02/2005 shall have no effect. This resulted into alienation of property.

(iii) While seeking legal opinion he has not brought out all the facts and all the documents before the competent officer of Ministry of Law and Justice. Thereby a vague opinion was taken despite the fact that on earlier 2 occasions a positive opinion was already on record. There was no need to seek another opinion. With malafide intention he sought legal opinion The actions of Shri Dinesh Singh indicate his malafide intention in alienating the property. Instead of correcting the mistakes, if any, in the process of issuing re-vesting order, he dishonestly facilitated the handing over of property to the private party. For this purpose he had tried his best to get the legal opinion to support his claim of divestment.

16) The Applicant took over as Custodian of Enemy Property of India on 14 November 2005. By the time he took over the said position, his predecessor, Ms. Ruby Srivastava had already issued a Certificate under Section 12 of the E.P. Act on 17 February 2005 certifying the said enemy property vested in the Custodian and that the same shall continue to vest in the Custodian under the provisions of the Act. After the Applicant took over the post of Custodian on 14 November 2005, within 15 days, he issued a show cause notice to M/s. Jay Construction Co. referring to the notice published in the newspapers on 17 January 2005 declaring any transaction in respect of the said property to the extent of share of Mr. Aziz Yacoob Tabani was null and void. The Applicant thereafter directed M/s. Jay Construction Co. to stop the development and construction work till further orders. It appears that M/s. Jay Construction Co. submitted its reply/objections to the show cause notice. At this juncture, the Applicant felt it necessary to seek opinion of Ministry of Law and Justice by observing that ‘However, it is now being felt that there are certain facts which seem to have been overlooked when the matter was referred to the Ministry of Law in 2004 and therefore a fresh review needs to be made in the matter so as to avoid unfortunate litigation in which Govt. stand may not be tenable as per the provisions of the E.P. Act, 1968 and judicial provisions referred above.’ It must be noted here that the Applicant thought of seeking legal opinion from the Ministry of Law and Justice on 22 March 2006, when opinion on the subject was already obtained from the Ministry of Law and Justice on 9 November 2004 in which it was opined that the transaction of sale was null and void and that M/s. Jay Construction Co. had acquired no right, title and interest in the said property. It appears that the Certificate dated 17 February 2005 by the Custodian, Mrs. Ruby Srivastava under Section 12 of the Act was issued consequent to securing the legal opinion dated 9 November 2004. Despite such a clear opinion, which was acted upon by his predecessor by issuing Certificate dated 17 February 2005 and in absence of any challenge to the said Certificate by the purchaser, the Applicant appears to have taken upon himself, the task of invalidating the Page No. 13 of 18 18 June 2024 ::: Uploaded on - 20/06/2024 ::: Downloaded on - 22/06/2024 17:06:35 ::: Neeta Sawant 24-CRA-323-2023-Criminal-FC said Certificate by seeking fresh legal opinion on 22 March 2006 in which he raised following queries : (i) Whether the proportionate right of Shri Aziz Yacoob Tabani in estate of Ms.Mariain Tabani can be termed as "Enemy Property" after her death in 1991, as he executed the deed of conveyarice for her share of transferred property vide agreement made in 1980. The crucial vesting period for being Enemy Property is from 10.09.1965 to 26.09.1977. (ii) Whether the transaction of Sale of his half share of property by Shri Aziz Yacoob Tabani with the consent of Custodian can be held "Null and Void" in view of provisions of Section 6 of the EP Act, 1968 and decisions of Hon'ble Bombay High Court and Hon'ble Supreme Court in the cases referred above. (iii) Whether the transferred property, can be revested by the Custodian of Enemy Property or by the Central Government ? Whether certificate issued u/s 12 of E.P.Act, 1968 by the Custodian on 17.02.2005 Is legally sustainable.

17) The Ministry of Law and Justice opined on 17 March 2006 as under :

In view of the discussion made above and after taking into consideration a congent reading of section 6, 8, 18 and other relevant provisions of Custodian of Enemy Property Act 1968 and in the changed circumstances we are of the view that the transaction of sale in question so far as ½ share of property of Shri Ajiz Yakub Tawani is concerned consent of Custodian was redundant. The Custodian should not have given its no objection to the said sale as the Act does not empower the CEP to give or not to give no objection to any such sale or to become a confirming party to such a transaction. The Act empowers the Central Govt. only to declare such a sale as void if the conditions mentioned u/s.6 are attracted. It appears that the CEP has issued a certificate u/s.12 of EP Act 1968 on 17/2/2005 certifying that the above mentioned property is enemy property and vested in CEP and continued to so vest under the provisions of the said Act. This certificate has the reference of letter dated 4/4/1981 declaring the property as Enemy property. The said certificate dt.17/2/2005 appears to have been issued only for the purpose of record because it is stated that the earlier letter dated 4/4/1981 is not available with the CEP. Therefore, in our view the certificate issued u/s.12 dated 17/2/2005 is legally sustainable as the vesting is not a new one but it is in continuation of the earller certificate issued on dated 4/4/1981.

18) Atleast at this stage, the Applicant ought to have stopped his efforts to invalidate the Certificate dated 17 February 2005. However, the Applicant persisted his efforts and sent one more proposal dated 29 May 2006 once again seeking opinion from the Ministry of Law and Justice on following points :

(i) whether it can be concluded that if the sale of the property by the enemy national was in accordance with the law, and that certificate dated 17.05.2005 is not a new one but is in continuation the earlier certificate issued on 04.04.1981 and that it was issued only for the record, then the property under consideration was never revested with the Custodian ? i.e. the Certificate dated 17.05.2005 cannot be considered a revesting order as contemplated u/s 6 of the E.P. Act, 1968 since it was issued by the Custodian.

(ii) the Certificate dated 17.05.2005 will have no effect of vesting the property in Custodian, as the same was issued after the Sale of the property was concluded by the enemy.

19) Thus the opinion dated 29 May 2006 was sought by the Applicant as he felt that the previous opinion based on Certificate dated 17 February 2005 was without taking into consideration the fact that the said Certificate was issued after the sale transaction which is why he stated in his proposal dated 29 May 2006 “Since it is issued after the sale by the enemy, if sale is legal and binding on Custodian, how can C.E.P. issue a Certificate for vesting ?’. On account of persistent efforts by the Applicant, one of the Government Counsels was persuaded to give opinion dated 21 June 1996 opining that the transfer of property was in accordance with law and that the property was not revested in CEP and hence second part of the Certificate dated 17 February 2005 appears to have no legal effect for continuation of vesting of the property. Armed with the opinion dated 21 June 2006 secured after persistent efforts, the Applicant proceeded to pass order within seven days on 28 June 2006 withdrawing the Certificate dated 17 February 2005, stay order dated 2 January 2004 and show cause notice dated 29 November 2005.

20) Prima-facie, therefore it appears that the Applicant has showed zeal and enthusiasm in withdrawal of the Certificate dated 17 February 2005. Therefore, the allegations in the FIR that the said actions are taken by him by entering into criminal conspiracy with the partners of M/s. Jay Construction Co. need to be tested by taking the trial to its logical end. This Court has subsequently held that the illegal acts of Custodian in granting No-objection Certificate for sale transactions cannot bind the Central Government and has upheld the order dated 16 May 2014 passed by the Central Government.

21) Reliance by Mr. Nangre on the provisions of Section 22A(d) of the E.P. Act, does not cut ice. The said provision is essentially relied upon by him to demonstrate that after the Amending Act of 2017, all previously executed transactions automatically become void and that before the said amendment to the Act, steps were required to be taken for invalidation of such transaction under Section 6 of the Act. In my view, the issue relevant in the present case is not about validity of the transaction in question. The issue is whether the enthusiasm and zeal shown by the Applicant in withdrawing the Certificate dated 17 February 2005 issued by his predecessor and permitting construction at the plot are bonafide or whether the said acts re committed by him by entering into criminal conspiracy with the purchasers. What needs to be examined is not the effect of the transaction in question but the role played by the Applicant while passing the order of withdrawal of Certificate and show cause notice.

22) In my view, there is prima-facie material against the applicant to take the allegations made against him to trial. This is not a case where no sufficient ground is made out for proceeding against the Applicant for directing his discharge under Section 227 of the Code. The learned Special Judge has rightly appreciated the material available against the Applicant on record while rejecting the discharge application. No serious flaw can be traced in the approach of the learned Judge for CBI Court to exercise revisional jurisdiction under Section 297 of the Code.

23) Criminal Revision Application, being devoid of merits, is accordingly dismissed without any orders as to costs. It is however clarified that the observations made by this Court while rejecting the Revision Application shall not influence the learned Special Judge while passing final judgment and order in the Special Case.