HC reprieve for DB Realty, allows its subsidiary to resume work at DB Ozone

The Bombay High Court has struck down orders issued by the Custodian of Enemy Properties that had halted work at DB Ozone, a major development by DB Realty's subsidiary Neelkamal Realtors Suburban. The court ruled that the custodian had no power to issue such orders.

Mumbai: In a major reprieve for DB Realty, the Bombay high court on Monday struck down orders issued by the Custodian of Enemy Properties that had resulted in bringing to a halt the work at DB Ozone, one of the major developments undertaken by its subsidiary Neelkamal Realtors Suburban Pvt Ltd at Dahisar. The court held that the custodian has no power to issue any communication requesting state authorities to issue prohibitory or injunctive orders.

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Neelkamal Realtors Suburban had moved high court last year stating that they are developing four plots aggregating to 64,600 square metres, as DB Ozone project – part of which falls within the Brihanmumbai Municipal Corporation (BMC) and part in Mira Bhayander Municipal Corporation (MBMC).

The firm said while the project, which started way back in 2008, was halfway through, in September 2019, the Assistant Custodian of Enemy Properties issued a notice and called upon them to furnish documents pertaining to the land. Accordingly, the firm and the original landowners submitted documents to the Assistant Custodian.

On December 17, 2021, the Assistant Custodian issued a communication to the District Collector, Thane and the Tehsildar, Padmavati Nagar, and instructed them to stop the construction work at the site, as some Pakistani nationals had interests in 3,390 sq metre land included in the project. Based on the instructions issued by the Tehsildar, MBMC had issued a stop work notice for the project, bringing the work at the site to a standstill.

The firm contended that the Assistant Custodian had no authority under the Enemy Properties Act, 1968 to issue any such communications to the revenue officials to stop recording mutation entries regarding the land and to stop work at their site.

Advocate Advait Sethna for the Assistant Custodian submitted that the communication was sent as part of his duty to protect and preserve the Enemy Property, and therefore, even though there was no express power conferred upon him under the EP Act, 1968, such power can be impliedly read into the enactment, and therefore, it cannot be said that the communication was without jurisdiction and authority.

Advocate NR Bubna, for the MBMC, submitted that the civic body had acted on the instructions issued by the Tehsildar.

The division bench of justice Sunil Shukre and justice Rajesh Patil struck down the communication issued by the Assistant Custodian did not have the authority to issue such a communication to the revenue authorities.

The bench said under the provisions of the Enemy Property Act, 1968, the power of the custodian is divided into two parts – the first part relates to the continued vesting of the enemy property and measures to be taken by him for its preservation till it is disposed of, and the second part relating to holding an enquiry and declaring that particular property of the enemy vested in him.

“These provisions do not confer any power upon the custodian to pass any interim order or make a request to the concerned authorities to issue directions for not transferring certain properties without the approval of the custodian or stopping the construction work, which has been commenced after seeking due development permission from the Planning Authority,” said the bench.

The court struck down the communication issued by the assistant custodian, holding it to be illegal and without jurisdiction. The bench has, however, stayed the operation of the order for two weeks at the request of advocate Sethna.