SRIJAN INFRAREALTY PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners are aggrieved by the notice issued by the Custodian of Enemy Property for India in two newspapers The Telegraph and Anandabazar Patrika on February 16, 2023, restricting transfer/sale of enemy properties. The notice informs that eight immovable properties situated at 47, Matheswartala road, Kolkata ' 700046 are vested with the Custodian of the Enemy Property for India.

(2.) The petitioners claim to be joint lessees in respect of the property in question wherein they are developing a residential complex through petitioner no. 15. Learned counsel for the petitioners submits that the eight properties declared to be vested are not demarcated and cannot be identified for which the public notice issued by the respondents has adversely affected the petitioners' property, restraining transfer of flats and constructed space therein. Drawing the attention of the Court to annexure P-1 of the writ petition, learned counsel for the petitioners submits that the plot in question was originally owned by Indian nationals and not by any foreign national. Though undivided shares/interest in the property were leased out to the petitioners, each of the properties is well demarcated and identifiable. The petitioners' names have been mutated in respect of the plots in question upon amalgamation of three plots being 24C, 24 C/1 and 47, Matheswartala road. The property never being owned or managed on behalf of the enemy, an enemy subject or an enemy firm cannot be said to be an enemy property. The notice impugned is vague since it does not identify the eight properties described as enemy properties and also does not exclude all other properties within the same premises. The notice was issued by the respondents at the behest of the private respondent who has no nexus whatsoever with the plot in question and lodged several complaints before various authorities indicating violation of The Enemy Property Act, 1968. Since the leasehold property of the petitioners is not governed by the Act of 1968, the petitioners seek withdrawal/recalling/revocation of the public notice dated February 16, 2023. The plot in question not being vested, the question of challenging the vesting order does not arise. Besides praying for setting aside the notice, the petitioners have also prayed for identification/demarcation of the eight properties covered by the notice.

(3.) Speaking for respondent nos. 1 to 5, learned counsel has at the outset, challenged the maintainability of the writ petition on the ground that the grievance of the petitioners with regard to vesting of the property in question should be dealt with by the Central Government under Sec. 18 of The Enemy Property Act, 1968 (hereinafter referred to as the Act of 1968) and no civil Court or authority shall have jurisdiction to entertain any suit or proceedings in respect of any property which is the subject matter of this Act. Most of the petitioners are lessees in respect of the enemy property which was vested in 1963 with the Custodian of Enemy Property under the Government of India. The lessors who have granted lease for a period of 999 years are Chinese nationals who have not been made parties to the writ petition. The petitioners have acquired undivided shares in the leasehold plot and are not entitled to claim title in respect of a demarcated portion of the land, the plot being admittedly an unpartitioned property. Learned counsel has further submitted that despite several attempts made by the department to get the map and revenue/survey record of the plot from the Kolkata Municipal Corporation along with other important documents/records, such records were not made over to them.