Case Note & Summary
The petitioner, a partnership firm engaged as builder and developer, filed a writ petition under Article 226 of the Constitution of India challenging the order passed by the Deputy Secretary, Ministry of Home Affairs, Government of India dated 16th May 2014 and the sealing of immovable property under a notice dated 19th May 2014 issued by the Custodian of the Enemy Property. The property, land admeasuring 2862.9 square meters at Bandra, Mumbai, was originally purchased by Mariam Yacoob Tabani and Aziz Yacoob Tabani in 1956 when both were Indian citizens. Mariam migrated to England and acquired British citizenship in 1967; Aziz migrated to Pakistan and acquired Pakistani citizenship in 1970. Facing encroachments, they decided to sell the property. In October 1980, they entered into an agreement for sale with Chandrakant Mulchand Shah or his nominees. Mariam obtained Reserve Bank of India permission in 1981. Aziz gave a declaration in 1983 consenting to sale of his share through the Custodian. The petitioner stepped in as nominee, paid consideration for Mariam’s share, but she died intestate in 1991; her heirs executed a conveyance deed in 1999 transferring her half share to the petitioner. For Aziz’s share, the Custodian granted no-objection in June 1994 and accepted consideration of Rs. 2,25,000. Aziz died intestate in 1997; his heirs executed a conveyance deed in 1999 transferring his half share to the petitioner. The petitioner thereafter removed encroachments, obtained approvals, and constructed a 10-storey building, incurring expenditure of about Rs. 10 crores and creating third-party rights. In January 2004, the Custodian objected to construction and claimed the property was enemy property. A show cause notice was issued in November 2005 citing a certificate under Section 12 of the Enemy Property Act, 1968. The petitioner replied and a personal hearing was held. However, in June 2006, the Custodian withdrew the show cause notice and certificate. Subsequently, the Deputy Secretary, Ministry of Commerce and Industry communicated that the matter had been examined with the Department of Legal Affairs and it was decided to withdraw, noting that the differential amount proposal did not stand legal scrutiny. The matter was treated as closed. Despite this, in May 2014, the Deputy Secretary, Ministry of Home Affairs passed the impugned order and the Custodian sealed the property. The petitioner challenges these actions. The extract does not contain the court’s analysis or final decision.
Issue of Consideration
Whether the property in question is enemy property under the Enemy Property Act, 1968, and whether the order dated 16/5/2014 and sealing notice dated 19/5/2014 are valid
Case Details
2015 LawText (BOM) (07) 56
Writ Petition No. 2177 of 2014
S. C. Dharmadhikari, G. S. Kulkarni
Janak Dwarkadas, Rishika Harish, Bindi Dave, Pradeep Bakhru (for Petitioner); G. R. Sharma, D. P. Singh (for Respondents 1-3); Ajay Patil (for Respondent 4)
M/s. Jay Construction Co.
The Custodian of the Enemy Property, Union of India, The Under Secretary to Govt. of India, Central Bureau of Investigation
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Nature of Litigation
Writ petition challenging order passed by Deputy Secretary, Ministry of Home Affairs and sealing of immovable property under Enemy Property Act, 1968.
Remedy Sought
Petitioner sought quashing of order dated 16/5/2014 and sealing notice dated 19/5/2014, and declaration that property is not enemy property.
Filing Reason
The property was sealed and petitioner was informed that sale/conveyance was invalid as property vested in Custodian under Enemy Property Act, despite earlier permissions and closure of matter.
Previous Decisions
Earlier, show cause notice and certificate under S.12 were withdrawn by order dated 28/6/2006 and matter closed by letter dated 13/6/2007; Central Government declined to revest property under S.6.
Issues
Whether the property is enemy property under the Enemy Property Act, 1968?
Whether the order dated 16/5/2014 and sealing notice are valid given the prior withdrawal of proceedings?
Whether the petitioner acquired valid title despite the enemy property status?
Whether the action of the respondents is barred by principles of res judicata or estoppel?
Submissions/Arguments
Petitioner contended that it acquired title through registered deeds after obtaining necessary permissions, that the Custodian had earlier withdrawn proceedings, and that the property cannot be treated as enemy property.
Respondents argued that the property vested in the Custodian under the Enemy Property Act, 1968, and that subsequent transfers were null and void.
Judgment Excerpts
This Writ Petition, under Article 226 of the Constitution of India challenges the order passed by the Deputy Secretary, Ministry of Home Affairs, Government of India, dated 16th May, 2014.
The Petitioner is also aggrieved and dissatisfied with the sealing of the immovable property under a notice dated 19th May, 2014, issued by the Custodian of the Enemy Property (Respondent No. 1).
The Petitioner then received a notice to show cause ... that the said property is vested in Respondent No. 1. It continues to vest in it as per certificate dated 17th February, 2005 issued under section 12 of the Enemy Property Act, 1968...
... the Central Government had declined to revest the said property to Respondent No. 1. It is in these circumstances that the matter was treated as closed. Annexure 'T' is the copy of the order dated 13th June, 2007.
Procedural History
Petitioner purchased property through deeds in 1999, but in 2004 Custodian objected, issued show cause notice in 2005, which was withdrawn in 2006-2007. Subsequently, in 2014, the Deputy Secretary passed order and Custodian sealed the property. Petitioner filed writ petition in 2014 challenging the 2014 order and sealing.
Acts & Sections
- Enemy Property Act, 1968: 12, 6
- Indian Partnership Act, 1932:
