High Court
Case Details
Court No. - 40 Case :- WRIT - C No. - 16057 of 2022 Petitioner :- Mukhtar Ahmad Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Manish Tandon,Sr. Advocate Counsel for Respondent :- A.S.G.I.,C.S.C. Hon'ble Vivek Kumar Birla,J. Hon'ble Vikas Budhwar,J.
Legal Reasoning
Heard Sri Atul Dayal, learned Senior Counsel assisted by Sri Manish Tandon, learned counsel for the petitioner as well as Sri S.K. Om, learned counsel who appears for respondent nos. 1 and 2 and Sri Nand Lal Maurya, learned Standing Counsel who appears for respondent 3 to 6. This petition under Article 226 of the Constitution of India seeking following reliefs:- "(a) issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 18.04.2022 issued by respondent no. 2 petition) to (Annexure writ No. this 1 (b) issue a writ, order or direction in the nature of mandamus, directing the respondents not interfering over the property in dispute i.e. House No. 88/21A Nala Road (Darul Maula) Chamanganj, Kanpur Nagar and also House No. 99/14A Ramjanki Mandir situated at Dr. Beri Chauraha Beconganj Kanpur Nagar. (c) issue a writ, order or direction in the nature of mandamus, Directing the respondent no. 2 to provide an opportunity of haring before passing any order while deciding the objection dated 25.05.2022 and may be further be pleased to provide the breathing time for challenging the same if so decided against the petitioner, so that justice may be done to the parties. (d) And/Or may pass such other and further order, which this Hon'ble Court may deem fit and proper under the fact and circumstances of the case." Perusal of the reliefs as sought in the present writ petition reveals that the petitioner has challenged the notice purported to be under Section 3 & 4 of the Enemy Property Rules, 2015 so issued by respondent no. 2/Assistant Custodian Enemy Property, Lucknow on 18.04.2022 whereby the petitioner was required to submit his objection/reply to the said notice. Learned counsel for the petitioner on the strength of the pleadings so made in the writ petition has sought to argue that the petitioner is in the legal possession of the premises in question being property nos. 88/21A Nala Road (Darul Maula) Chamanganj, Kanpur Nagar and 99/14A Ramjanki Mandir situated at Dr. Beri Chauraha Beconganj, Kanpur Nagar. Learned counsel for the petitioner has argued that even in the past, inquiry was sought to be conducted by the State Authorities whereby nothing objectionable was found against the petitioner. Learned counsel for the petitioner has argued that he has received the notice dated 18.04.2022 which is annexed at page no. 50 of the paper book which is under challenge and he has already tendered his reply on 25.05.2022, a copy whereof has been annexed at page no. 54 of the paper book. Learned Senior Counsel has thus sought to argue that once he has preferred his objections against the notice and until and unless it is decided, no adverse action can be taken against him either by mode of demolition or by dispossession. Learned counsel for the petitioner has also drawn the attention of the Court towards page no. 239 of page 234 which happens to be a document purported to be a notice issued by the respondent no. 4 whereby the petitioner has been required to furnish certain documents and put forward his stand. According to learned Senior Counsel, the collateral proceedings so sought to be initiated at the instance of the State Officials, is not permissible particularly when the respondent no. 2 has itself issued a notice and he has tendered his reply. Sri S.K. Om, at the very outset, has raised a preliminary objection regarding the incorporation of the prayer clause no. 1 as on one hand, according to Sri Om a challenge is being sought to be raised to the show cause notice dated 18.04.2022 however on the other hand, the petitioner seeks to make an oral submission that his representation/objection may be decided. To the said objection, Sri Atul Dayal, learned Senior Counsel assisted by Sri Manish Tandon, learned counsel for the petitioner have made a submission at bar that they are possessed with the instructions that the petitioner does not want to press the relief clause (a) so far as it pertains the challenge being made to the notice dated 18.04.2022 issued by the respondent no. 2/Assistant Custodian Enemy Property, Lucknow and thus the present writ petition be confined with a direction to the respondent no. 2/Assistant Custodian Enemy Property, Lucknow to decide the objection/reply so submitted by them on 25.05.2022. Sri S.K. Om who appears for respondent nos. 1 and 2 has made a submission at bar that once the petitioner, as per his own saying, has submitted his reply to the notice dated 18.04.2022 on 22.05.2022 and the same according to the learned Senior Counsel remains pending then a suitable direction be issue to the respondent no. 2/Assistant Custodian Enemy Property, Lucknow to decide the same by giving a logical end and in the interregnum period, they will not proceed further. Sri Nand Lal Maurya, learned Standing Counsel who appears for respondent nos. 3 to 6 has adopted the submission so made by Sri S.K. Om and has further argued that they have just by virtue of the notice, required the petitioner to submit certain documents so as to determine the actual status in that regard.
Decision
Nonetheless, the Hon'ble Apex Court in the case of Mool Chand Yadav And Another vs. Raza Buland Sugar Company Limited Rampur And Others reported in 1982 (3) SCC 484 had clearly observed in the matter emanating from an appeal in Order 41 Rule 5 C.P.C. 1908 that once an appeal is being preferred and substantial rights are being affected entailing serious civil consequences then interim protection is to be accorded. Applying the said principal of law so propounded by the Hon'ble Apex Court as well as looking into the facts of the case and considering the submissions of the rival parties and without seeking any response from the other and with the consent of the parties, the writ petition is being disposed of on the following terms:- (a) Respondent no. 2/Assistant Custodian Enemy Property, Lucknow is directed to decide the objection/representation so stated to be preferred by petitioner on 25.05.2022 which is also stated to be pending within a period of one month from today. (b) Petitioner shall at liberty to place before the respondent no. 2/Assistant Custodian Enemy Property, Lucknow all the documents to which he seeks to rely upon. (c) Respondent no. 2/Assistant Custodian Enemy Property, Lucknow is further directed to accord personal hearing to the petitioner since, the issue involves property rights of the petitioner entailing civil consequences. (d) Petitioner shall by means of a written communication marked to respondent no. 2/Assistant Custodian Enemy Property, Lucknow communicate a date on which he seeks to participate for submitting his submission while being personally heard. (e) No unnecessary adjournment shall be accorded to the petitioner as in case, the petitioner himself is unable to participate in the proceedings emanating for personal hearing then he shall nominate some other person to be heard on his behalf. (f) Till the disposal of the objection as stated to be preferred by the petitioner on 25.05.2022 to the notice dated 18.04.2022 or for a period of one month, whichever is earlier, no coercive action be taken against the petitioner. (g) The final order so proposed to be passed by respondent no. 2/Assistant Custodian Enemy Property, Lucknow, shall be communicated in writing to the petitioner on the address so mentioned in the notice dated 18.04.2022. In case of any default of the condition so directed to be made by petitioner the interim order shall stand vacated without reference to the Bench. Needless to point out that this Court has not adjudicated the lis however, it is always open for the respondent no. 2/Assistant Custodian Enemy Property, Lucknow to consider the claim of the petitioner without being obsessed or influenced by any of the observation made hereinabove. Since all the concerned parties are represented through their counsel hence they shall communicate the order so pass today for its compliance. Order Date :- 31.5.2022 Nisha Digitally signed by NISHA KUMARI Date: 2022.05.31 16:43:38 IST Reason: Location: High Court of Judicature at Allahabad