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IN THE HIGH COURT OF ALLAHABAD
PANKAJ MITHAL, JASPREET SINGH, JJ.
Shah Rasheed Ahmad - Appellant
Versus
Custodian Of Enemy Property, Govt.Of India, New Delhi & Ors. – Respondents
Misc. Bench No.16278 of 2020
Decided on : 06-10-2020
Enemy Property Act, 1968 – Sections 8, 18 – Enemy Property – Quashment of the orders – Petitioner by means of the present petition has prayed for the reliefs to issue a writ, order or direction or writ in the nature of certiorari quashing the orders, passed by the respondent no.1 and respondent no.3 as contained in Annexure No.1 & Annexure No.2, order dated 13.02.2020 passed by the respondent no.2 as well as order, passed by the respondent no.1, contained Annexure No.3 & 4 to the writ petition respectively – Issue a writ, order or direction or writ in the nature of mandamus commanding the respondents not to proceed in pursuance of the aforesaid impugned orders .
Finding of the court:
It would indicate that there has never been any challenge to the order passed under Section 5 by which the immovable property of Jafar Hasan and Maqbool Hasan vested with the custodian. – Even in the instant petition, the petitioner has raised a feeble challenge to the authorization order dated 18th of January, 1975. – However, there is yet no challenge to the vesting order dated 10th of September, 1965. – Where the fact that neither the father of the petitioner nor the concerned person Jafar Hasan,, who was admittedly alive till 1974, never assailed the vesting order and moreover his other real brother and co-sharers also stated before the High Court that Jafar Hasan and his other real brother Maqbool Hasan were Pakistani nationals and under the aforesaid circumstances, the earlier Division Bench had passed the order – In light of the aforesaid order, which has been relied upon by the petitioner himself, while filing other writ petition fact remains that it is now not open for the petitioner to assail the aforesaid orders. – Moreover, under the Enemy Property Act, there is a complete procedure which has been provided regarding assailing the order of vesting of property in terms of Section 18 of the Act which has further been made appealable in terms of Section 18-C of the said Act. – Submission of the learned counsel for the petitioner does not merit consideration and even otherwise the orders are merely consequential orders.
Result: – Petition Dismissed
JUDGMENT :
1. Heard Shri Shyam Mohan learned counsel for the petitioner and the Additional Solicitor General of India Shri S.B. Pandey, learned Senior Advocate assisted by Shri Raman Pandey for opposite party no.1 while the notices have been received on behalf of the opposite parties no.2 to 4 by the office of the Chief Standing Counsel.
2. The petitioner by means of the present petition has prayed for the following reliefs:-
(ii) issue a writ, order or direction or writ in the nature of mandamus commanding the respondents not to proceed in pursuance of the aforesaid impugned orders.
3. It has been submitted by the learned counsel for the petitioner that the property in question which is being treated as an enemy property by the respondent no.1 actually belonged one Jafar Hasan, son of Muzaffar Ali who is the real uncle of the present petitioner. It has been submitted that Jafar Hasan alongwith other co-sharers which included the father of the present petitioner amongst other were the joint tenure holders of Khasra Nos.1106, 1130, 1268, 826, 827, 1037, 1048, 1097, 1102, 1103, 1137, 1138, 1153, 1165, 1174, 1175, 1192, 1216 and 1218. Jafar Hasan had executed a Will on 01.10.1970 in favour of the petitioner (real nephew) and upon the death of Jafar Hasan on 20.06.1974 his shares devolved on the petitioner and moreover the name of the petitioner was also mutated and he continued to remain in possession of the property in question.
4. It has been submitted that Jafar Hasan had never migrated to Pakistan and he continued to have his 1/6th share in the property in question which after his death came in the hands of the petitioner. It has further been mentioned that earlier the other co-sharers which included the father of the petitioner had instituted writ petition before a Division Bench of this Court bearing Writ Petition No.2394 of 1976 wherein by means of order and judgment dated 07.11.1979 the writ petition was partly allowed restraining the opposite parties from dispossessing the petitioners from the plots mentioned in the document of declaration issued by the custodian enemy property and which plots are in actual possession of the petitioner.
5. It has further been urged by Shri Shyam Mohan that despite the aforesaid order the respondents did not make any effort to partition or demarcate the shares and once again in the year 2001 attempted to auction the land in question which was in the possession of the present petitioner with a standing crop thereon which prompted the petitioner to institute another writ petition before this Court bearing No.1534 (M/S) of 2001.
6. It has further been submitted that in the aforesaid writ petition an interim order was passed that the crop shall not be auctioned and the aforesaid writ petition is pending till date.
7. It is in the aforesaid backdrop that the respondent no.1 has issued the impugned orders dated 17.07.2020, 14.08.2020 and 13.02.2020 and while assailing the aforesaid three orders the petitioner now challenges the authorization order passed under Section 8 of the Enemy Property Act, 1968 dated 18th of January, 1975.
8. It has been urged that the aforesaid orders are bad in the eyes of law; inasmuch as Jafar Hasan the predecessor in interest of the present petitioner had never migrated to Pakistan and as such the property could not be treated as enemy property and by passing the impugned orders the respondents are presupposing and treating the property to be enemy property despite the fact that the matter was already resolved by a Division Bench of this Court by means of judgment and order dat
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