Haji Abdul Majid Haji Abdul Gani vs Custodian Of Enemy Property, ...
2002 Latest Caselaw 1297 Bom

JUDGMENT

V.M. Kanade, J.

1. The petitioner has filed this petition under Article 226 of the Constitution of India and is seeking the allotment of part of the enemy property as defined under the Enemy Property Act, 1968 in favor of respondent no.4 by the respondent nos.2 and 3 i.e. by the Custodian of enemy property and Collector, Nagpur District, Nagpur.

2. Brief facts are as under :

The disputed property is known as Bombay Soda Factory and is situated at Ganjakhet, Nagpur. The said building was initially owned by Halimabi wd/o Abdulbhai Khimani, who subsequently bequeathed the property to one Abdul Sattar Adamji and Usuf and Usman s/o Mohmad Umar. One Haji Sattar Haji Latif became a tenant of the entire second floor of the building in 1986. The petitioner Haji Abdul was inducted as tenant of two rooms at the first floor in the year 1966 by Halimabi.

3. Abdul Sattar Adamji opted to be a Pakistani National and his share in Bombay Soda Factory was declared as an Enemy Property, vide order dated April 25, 1973. This enemy property consisted of portion of the first floor and second floor where petitioner was the tenant. It is an admitted position that the petitioner was a tenant.

4. The petitioner applied on March 19, 1979 to the Collector for the allotment of one vacant shop on ground floor and three small rooms and a Hall admeasuring about 802 sq. ft. The Collector called the petitioner and four others to attend his office on 22.7.1980. On 28.7.1980, the petitioner offered rent of first floor vacant portion at the rate of Rs.225/- per month and ground floor plus vacant portion of first floor for Rs.625/- per month. In the mean time, the agreements were executed by the Usuf and Usman and respondent no.4 in respect of the ground floor property. A registered sale deed was also executed in respect of the area of ground floor admeasuring 23 x 15 sq. ft. The grievance of the petitioner is that the petitioner was not allotted these premises by the respondent nos.1 and 2 and that the respondent no.4 has illegally occupied these premises.

5. The Enemy Property Act (hereinafter referred to as Act) lays down that once the property is declared as enemy property, a Custodian is appointed for the purpose of preservation and maintenance of the said property and under Section 8 of the said Act, the Custodian has various powers for the purpose of preservation and maintenance of the said property. The Custodian is entitled to transfer part of the property by sale or grant it on lease etc. as envisaged in Clause 7 of Section 8 of the said Act. Section 8 reads as under :

Sec.8 : Powers of Custodian in respect of enemy property vested in him : (1)With respect to the property vested in the Custodian under this Act, the Custodian may taken or authorise the taking of such measures as he considers necessary or expedient for preserving such property and where such property belongs to an individual enemy subject, may incur such expenditure out of the property as he considers necessary or expedient for the maintenance of that individual or of his family in India.

(2)Without prejudice to the generality of the foregoing provision, the Custodian or such person as may be specifically authorised by him in this behalf, may, for the said purpose -

(i)carry on the business of the enemy;

(ii)take action for recovering any money due to the enemy;

(iii) make any contract and execute any document in the name and on behalf of the enemy;

(iv)institute, defend or continue any suit or other legal proceeding, refer any dispute to arbitration and compromise any debts, claims or liabilities;

(v)raise on the security of the property such loans as may be necessary;

(vi)incur out of the property any expenditure including the payment of any taxes, duties, cesses and rates to Government or to any local authority and of any wages, salaries, pensions, provident fund contributions to, or in respect of, any employee of the enemy and the repayment of any debts due by the enemy to persons other than enemies;

(vii)transfer by way of sale, mortgage or lease or otherwise dispose of any of the properties;

(viii)invest any moneys held by him on behalf of enemies for the purchase of Treasury Bills or such other Government securities as may be approved by the Central Government for the purpose;

(ix)make payments to the enemy and his dependants;

(x)make payments on behalf of the enemy to persons other than those who are enemies, of dues outstanding on the 25th October, 1962 (or on the 3rd December, 1971) and,

(xi)make such other payments out of the funds of the enemy as may be directed by the Central Government.

6. From perusal of the said Act, it is clear that the Custodian has a right to administer the said property for the purpose of preserving the said property and maintaining it in proper condition. However, the custodian is only a caretaker of the property as the property vest in the Central Government.

7. Section 18 of the said Act reads as follows :

Section 18 : Divesting of enemy property vested in the Custodian :The Central Government may, by general or special order, direct that any enemy property vested in the Custodian under this Act and remaining with him shall be divested from him and be returned, in such manner as may be prescribed, to the owner thereof or to such other person as may be specified in the direction and thereupon such property shall cease to vest in the Custodian and shall revest in such owner or other person."

8. From the said provision, it is clear that the property where it is declared as a enemy property, it vests in the Central Government and it is ultimate authority which decides as to how the property has to be utilised. The custodian or the Collector are merely care takers on behalf of the government.

9. In the instant case, the Central Government has taken a decision that the premises should be allotted to the Government or Semi-Government undertaking. This fact is communicated by the Ministry of Commerce, Government of India, to the Collector, Nagpur by its letter dated 15.6.1987. In view of this, the claim of the petitioner for allotment of enemy property to him does not survive. Once the Central Government has taken a decision that the property should be allotted to the Government or Semi-Government undertaking, the petitioner cannot claim any right of allotment in respect of the said enemy property. The Central Government would also have a right to recover the possession in respect of the property which is allotted to respondent no.4 either by respondent nos.1 and 2 or by the third party. The tenancy right of the petitioner in respect of two rooms, admeasuring 30 x 15 sq. ft. on the first floor would be protected by the relevant provisions under the Tenancy Act. In this view of the matter, we are of the view that there is no merit in this writ petition filed by the petitioner and the writ petition is liable to be dismissed. Rule is discharged. Under the circumstances, there shall be no order as to costs.