The discretionary jurisdiction under Article 226 of the Constitution of India should not be exercised to protect and promote an illegality, and the Court would not pass orders to protect or advance an illegality.

JUDGMENT :

Vipin Sanghi, J.

Nine individual petitioners have preferred the present Writ Petition to seek the quashing of the Eviction Notices dated 04.05.2023 issued by respondent no. 5 – Sub Divisional Magistrate (SDM)/ Assistant Custodian of Enemy Property for India, Nainital, District Nainital. They also assail the order dated 24.06.2023 passed by respondent no. 5, disposing of the aforesaid notices after considering the replies of the petitioners, and directing the eviction of the petitioners from the property known as Metropole Hotel, Mallital, Nainital. The petitioners also seek directions to the respondents, not to evict the petitioners in pursuance of the Eviction Notice dated 04.05.2023, and the order dated 24.06.2023, aforesaid. The petitioners also seek a direction to the Government of India, and the State of Uttarakhand to provide alternative places for their residence, or their rehabilitation, in nearby places of Nainital city.

2. The case of the petitioners is that all of them, since the time of their forefathers, have been residing in the outhouses of the property known as “Metropole Hotel”, Mallital, Nainital. The petitioners, inter alia, state that Metropole Hotel at Nainital vested in the custodian of the Enemy property, eventually, with amendment of the Enemy Property Act in 2017.

3. The petitioners state that on 04.05.2023, respondent no. 5 – the SDM, Nainital issued individual eviction notices to the petitioners, stating therein that the petitioners are in unauthorized occupation of enemy property, and directed them to appear before him within one week, and produce documents in their favour to show that their possession of the said property is legal, or else to remove their encroachment, failing which they shall be removed as per law, and at their own expense. The petitioners filed their replies to the notices issued to them by the SDM. However, on 24.06.2023, the impugned order was passed by the SDM, rejecting the petitioners’ defenses, and directing their eviction. Since the petitioners now apprehend their dispossession, they have approached this Court by filing this Writ Petition.

4. At the outset, we may note that learned Senior Counsel for the petitioners – Mr. B.P. Nautiyal submitted that the property in question, i.e. the Metropole Hotel, is an enemy property, under the Enemy Property Act, 1968. The petitioners also admit the fact that they have absolutely no title to any portion of the said property, and the petitioners also do not dispute the fact - as is also recorded in the impugned order dated 24.06.2023, that the possession of the property in question was taken over – upon vesting of the same in the Custodian of enemy property, on 05.08.2010, by the Pargana Magistrate, Nainital.

5. In this regard, we may notice that Mr. Babulkar, the learned Advocate General - who has appeared on advance notice on behalf of the State of Uttarakhand, has tendered the communication dated 05.08.2010 issued by the District Magistrate, Nainital, along with the on-the-spot proceedings, recording the taking over of the possession of the property in question by the Pargana Magistrate, Nainital on 05.08.2010 for, and on behalf of, the Custodian of enemy property.

6. The submission of Mr. Nautiyal, learned Senior Counsel for the petitioners is that, under the Enemy Property Act, 1968, the Enemy Property Rules, 2015 have been framed, which were amended in the year 2018. He submits that Rule 5 of the said Rules states that, where any vested immovable property, in respect of which no income is received by the Custodian, is under occupation of a person, or persons, or a company, the Custodian may serve a notice directing them to enter into an agreement with the Custodian, and such occupant shall pay all arrears, as may be determined by the District Authority, with effect from the date of occupation of the property, or the date of vesting, whichever is earlier. The proviso to Rule 5 states that, where the occupant is unwilling to e