Madras High Court
Don Bosco Higher Secondary School vs The Secretary on 7 September, 2023
W.P.No.28448 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.09.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.28448 of 2021 &
W.M.P.No.30041 of 2021
Don Bosco Higher Secondary School,
Rep. By its Correspondent,
No.130, Madhavaram High Road,
Perambur, Chennai – 600 011. ... Petitioner
Vs.
1.The Secretary,
Ministry of Home Affairs,
Government of India,
North Block, Central Secretariat,
New Delhi-110 001.
2.The Joint Secretary (FFR Division),
Ministry of Home Affairs,
Government of India,
NDCC-II, Palika Kendra,
Jai Singh Road, New Delhi – 110 001.
3.The Custodian,
O/o. The Custodian of Enemy Property for India,
Kaiser-I-Hind Building,
Ballard Estate, Currimbhoy Road,
P.B.No.689, Mumbai – 400 038.
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W.P.No.28448 of 2021
4.The Secretary to Government,
Revenue Department,
Govt. of Tamil Nadu,
Secretariat, Chennai – 600 009.
5.The Commissioner for Land,
Administration, Chepauk,
Chennai – 600 005.
6.The District Collector,
O/o. The District Collector,
Rajaji Salai, Chennai – 600 001.
7.The Tahsildar,
Purasawalkam-Perumbur Taluk,
Perambur, Chennai – 600 011. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus, to direct the 3rd respondent to accept the
lease amount of Rs. 96,583/- (Rupees Ninety Six Thousand Five Hundred
and Eighty Three Only) paid for the period from 01.08.2021 to 31.7.2022 and
renew the lease from 01.08.2022 in favour of the petitioner school, in respect
of the land comprised in T. S. No. 34, Block No. 11, (Old S. No. 139 and
162/2) of the Sembium Village, Purasawalkam - Perambur Taluk, Chennai
District, Madhavaram High Road, Chennai - 600 011, Tamil Nadu
admeasuring H2-A3-18 sq.m (Ground 91.0302) as per the petitioner's
representation dated 05.07.2021.
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W.P.No.28448 of 2021
For Petitioner : Mr.R.Prabhakaran
For Respondents 1 to 3 : Mr.K.Srinivasamurthy,
SPCGSC
For Respondents 4 to 7 : Mr.R.Ramanlaal,
Additional Advocate General
Assisted by
Mr.T.Arun Kumar,
Additional Government Pleader
ORDER
The writ on hand has been instituted to direct the third respondent to
accept the lease amount of Rs. 96,583/- (Rupees Ninety Six Thousand Five
Hundred and Eighty Three Only) paid for the period from 01.08.2021 to
31.7.2022 and renew the lease from 01.08.2022 in favour of the petitioner
school, in respect of the land comprised in T. S. No. 34, Block No. 11, (Old
S. No. 139 and 162/2) of the Sembium Village, Purasawalkam - Perambur
Taluk, Chennai District, Madhavaram High Road, Chennai - 600 011, Tamil
Nadu admeasuring H2-A3-18 sq.m (Ground 91.0302) as per the petitioner's
representation dated 05.07.2021.
2. The petitioner is Don Bosco Higher Secondary School. The School
was established during the year 1963 and imparting education to the children
of that locality. The school is utilising the land belonging to the enemy land
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W.P.No.28448 of 2021
property of India situated in TS.No.34, Block No.11 of Sembium Village,
Chennai District, Tamil Nadu admeasuring grounds 91.0302 barren land with
palmyra trees. The petitioner school states that they are in continuous
possession of the land for several years. They made several request to the
Commissioner of Revenue and to the District Collector to assign the said
land in favour of the petitioner school, since the subject land has been
utilised as play ground for the benefit of the children studying in the school.
3. Admittedly, the petitioner school has been in possession of the
enemy property legally by way of lease granted by the Collector of Madras
through the third respondent and the lease amount was paid from 1980's till
July 2022 and the Custodian of Enemy property through the District
Collector issued rental receipts. Admittedly, the lease period expired and not
renewed. While so, the authorities initiated action to resume the property.
Thus, the petitioner is constrained to move the present writ petition.
4. The third respondent, Custodian of Enemy Property of India filed a
counter affidavit raising preliminary objections that the petitioner School has
no right, title or interest vested in respect of the property. There is no legal
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W.P.No.28448 of 2021
right to claim further possession of the enemy land, since the lease granted by
the competent authority expired in the year 2022.
5. Admittedly, the property bearing Plot No.34, Block No.11 situated
in Sembium Village, Perambur, Chennai District admeasuring approximately
91 grounds is an Enemy Property being part of Estate of Late M.Nazir
Hussain. The entire estate of Late M.Nazir Hussain was automatically vested
in the CEPI vide Government of India notification dated 10.09.1965 as his
legal heirs viz., Abdul Rahman, Abdur Rahim and Latifa Begum had
migrated to Pakistan. Thereafter, Notification No.12/38/65-E.pty dated
17.11.1965 was issued by Ministry of Commerce, Government of India
notifying vesting of movable & immovable properties in CEPI of following
firms which devolved upon the said legal heirs of Late M.Nazir Hussain
(i) M/s.M.Nazir Hussai & Co. , Madras;
(ii) M/s.Perambur Chome Tannery, Madras
(iii) M/s.M.Kureshi, Madras.
6. The subject enemy property was being used as playground for the
petitioner school situated on the adjoining plot, which is not an enemy
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W.P.No.28448 of 2021
property. The subject land which is in occupation of the petitioner school was
leased out for their usage as playground for the benefit of the children by
accepting the occupation charges initially at the rate of Rs.20,000/- per
annum with effect from July 1985 and subsequently, the occupation charges
were enhanced to Rs.96,583/-. The petitioner school paid the last occupation
charge of Rs.96,583/- for the period from 01.08.2020 to 31.07.2021.
7. Under the provisions of the Amended Enemy Property Act, 2017,
disposal and sale of enemy property was provided for in the Rules framed
thereunder. In view of the decision of the disposal of the enemy properties
under the provisions of the Amended Enemy Property Act, a policy decision
was taken to make available to 'the Disposal Committee Enemy Property', the
enemy properties free of encumbrances. In view of the policy decision, it was
decided not to grant any license nor to renew the lease which was expired.
The decision was taken by the disposal committee to resume the enemy
property and to collect the occupation charges. Some portion of the enemy
properties were already sealed by the authorities by taking possession in that
locality. However, the subject lands now being utilised by the petitioner
School as playground is yet to be resumed by the third respondent.
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W.P.No.28448 of 2021
8. In respect of the principles to be followed on enemy property, the
learned counsel for the third respondent relied on the Judgment of the
Division Bench of this Court passed in W.A.Nos.1142 & 1146 of 2021 on
23.07.2021 and the relevant paragraphs are extracted hereunder:
10. The respondents do not have any legal
obligation to renew the lease and hence no direction to
that effect can be issued. Further due to Pandemic, all
schools are closed and classes are being conducted
through Online only. So the contention of the appellant
that the sealing of the premises had affected the students
cannot be taken as correct. Even if it is so, there is no
duty bestowed on the respondents to consider it for
renewing the lease. Instead, the Appellant who knew
about the impending expiry of lease, ought to have been
ready to shift the school somewhere or close the school
by limiting the admission.
11. The appellant has claimed that his continued
possession beyond the expiry of lease period should be
considered as that of the occupation of an 'unauthorized
occupant’ and hence the provisions of Public Premises
(Eviction and Unauthorized Occupants) Act, 1958 is
applicable to him. By so stating he claimed that he is
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W.P.No.28448 of 2021
entitled to remain in possession of the property until he
is evicted in accordance with the procedure prescribed
under the Public Premises Eviction Act. Such an
unlawful bargain made by the appellant cannot be
appreciated for the reason that no wrong doer can be
allowed to get advantage of his own wrongs. It is trite
law that a wrongdoer cannot take advantage of his own
wrong. The latin maxim ‘nullus commodum capers
potest de injuria sua propria’ would mean that no
wrongdoer can take advantage of his own wrongs. And
neither can be enabled by law to take advantage of his
own wrong. (Commodum ex injuria sua non habere
debet ).
12. The appellant has not come into contact with
the subject property by way of encroachment or through
any other unlawful means. The appellant has been an
authenticated lease holder and only in that capacity he
was inducted into the possession of the property. Even
according to Rule 14 of the Enemy Property Rules, 2015
(as amended by the Amendment Rules 2018), the
unauthorised occupant is defined as under:
"14. Unauthorized occupant: If any
occupant of the enemy property repeatedly
defaults in paying rent or refuse in pay rent, the
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W.P.No.28448 of 2021
District authority in consultation with the
Custodian, may take steps to terminate the lease
or evict the occupant forthwith in accordance
with the Public Premises (Eviction of
Unauthorised Occupants) Act 1971(40 of 1971).
Provided that before evicting a person or
terminating the lease under this Rule, a notice
shall be issued to the occupant. Provided further
that it may be open to the Custodian to initiate
criminal proceedings against such occupation
under the relevant laws for the time being in
force."
13. The above Rule is applicable to cases where
the lease has not been expired and during its
subsistence, the occupant commits default in payment of
rents. Anyone commits default in paying the rent can be
evicted even before the expiry of the lease period by
adopting the procedure contemplated under the Public
Premises (Eviction and Unauthorized Occupants) Act,
1958. It does not apply to the present case, where
admittedly, the lease is determined by the efflux of three
years time, which got expired on 08.09.2020 itself. The
act of the appellant that he allowed himself to continue
in possession would no doubt make his possession
unlawful. That will not entitle him to get a notice meant
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W.P.No.28448 of 2021
for the purpose of evicting an unauthorized occupant
under the Public Premises (Eviction and Unauthorized
Occupants) Act, 1958 and thereby extend his possession.
14. As it is stated already, the respondents have
no statutory obligation to extend the lease whenever the
lease period expires and it is upto the policy makers to
decide about the better usage of the property. When an
authority is not bestowed with the duty to do a certain
act, it is right for the learned Single Judge to deny the
relief of Writ of Mandamus as prayed by the appellant.
15. Since there was a reluctance on the part of the
appellant to handover the possession after expiry of the
lease period, the 2nd respondent, who is the custodian of
the enemy property, has sealed the property by giving a
sealing order. If the appellant is aggrieved that his
belongings still lie inside the premises, the respondents
may permit him to take them away in their presence.
16. So far as the sale of the property is concerned,
as per Clause (2) Rule 9 of the Guidelines of the
Disposal of Enemy Property Order, 2018, the Custodian
can sell the property to the existing occupier or
otherwise, as may be decided by the Central Government
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W.P.No.28448 of 2021
and at the rate as determined by the Enemy Property
Disposal Committee. A representation dated 09.11.2020
has been made by the appellant indicating his offer to
purchase the property and the same would be considered
by the Disposal Committee under Section 8(A) of the
E.P.Act and the learned Single Judge has also issued a
direction in this regard. However, it is at the discretion
of the respondents to accept the offer of the appellant or
not. If the respondents incline to take a decision to sell
the property to the appellant, the process may be
expedited. However, it is made clear that the above
suggestion is only an observation and not a direction. In
view of the above discussions, we do not find any factual
or legal infirmity in the order of the learned single
Judge.
17. In the result, the Writ Appeals in W.A.
1146/2021 and 1142/2021 are dismissed and the orders
of the learned Single Judge passed in W.P. 797/2021
and 3592/2021 are confirmed. The respondents shall
allow the appellant to take away his belongings lying in
the subject premises. While doing so, the respondents
shall take an inventory of the articles lying inside the
premises and get the acknowledgement from the
appellant after he has taken them away. No costs.
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W.P.No.28448 of 2021
Consequently, connected CMP is closed.
9. Admittedly, the lease period expired. The last occupation charges
was paid in July 2021 for a period of one year. Since the lease was not
extended by the third respondent under the provisions of the Enemy Property
Act, the petitioner is not entitled to continue in possession in respect of the
vacant land, which is an Enemy Property.
10. Thus, the relief as such sought for cannot be granted. The
respondents are directed to resume the enemy property as per the decision
already taken by the Disposal Committee Enemy Property as expeditiously as
possible. Accordingly, the writ petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
Post the matter for reporting compliance on 21.09.2023.
07.09.2023
nl
Index : Yes/No
Speaking order/Non Speaking Order
Neutral Citation : Yes/No
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W.P.No.28448 of 2021
To
1.The Secretary,
Ministry of Home Affairs,
Government of India,
North Block, Central Secretariat,
New Delhi-110 001.
2.The Joint Secretary (FFR Division),
Ministry of Home Affairs,
Government of India,
NDCC-II, Palika Kendra,
Jai Singh Road, New Delhi – 110 001.
3.The Custodian,
O/o. The Custodian of Enemy Property for India,
Kaiser-I-Hind Building,
Ballard Estate, Currimbhoy Road,
P.B.No.689, Mumbai – 400 038.
4.The Secretary to Government,
Revenue Department,
Govt. of Tamil Nadu,
Secretariat, Chennai – 600 009.
5.The Commissioner for Land,
Administration, Chepauk,
Chennai – 600 005.
6.The District Collector,
O/o. The District Collector,
Rajaji Salai, Chennai – 600 001.
7.The Tahsildar,
Purasawalkam-Perumbur Taluk,
Perambur, Chennai – 600 011.
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W.P.No.28448 of 2021
S.M.SUBRAMANIAM, J.
nl
W.P.No.28448 of 2021
07.09.2023
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