# Sri Salim Ahmad Khan v. XIIth A.D.J., Agra

- **Citation:** (2004) 1 ILRA 36
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-26
- **Case number:** Civil Misc. Writ Petition No. 20611 of 1988
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-salim-ahmad-khan-v-xiith-a-d-j-agra-40267
- **Pages:** 3

## Headnote

S.C.

U.P.
Urban
Building
(Regulation
of
letting, rent and eviction) Act 1972,
Section 21-Enamy Property Act 1968,
Section 9-whether house in dispute
vested in Custodian Emery Property Act-
Tehsildar had no authority to determine
this question.

Held- Para 3

There is no evidence that the property
was ever declared to be enemy property
or that it ever vested in custodian enemy
property. If one party asserts that the
property is enemy property and the
other party disputes the said fact then
naturally it must be decided by some
authority under Enemy Property Act
1968
that
the
property
vested
in
Custodian Enemy Property. The only
thing
brought
on
record
by
tenant/petitioner was a notice and a
report of the Tehsildar dated 27.6.1983.
In that notice Tehsildar stated that
Rahim Baksha was a Pakistani National.
Neither under Enemy Property Act nor
under
any
other
Provision
of
law
Tehsildar is authorized to decide the
nationality of a person and the fact that
a particular property belongs to that
person. In the notice Tehsildar did not
mention that any authority under Enemy
Property Act had declared the said facts.
Case laws discussed:
AIR 1982 Cal. 542
AIR 1989 Cal. 139

## Text

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36
foundation and no legal rights accrued to
the petitioners in view of the (State of
Punjab Vs. Jagdip Singh) AIR 1964 SC
521 para-8.

17. I have heard learned counsel for
the parties. I find that in absence of the
vacancies and posts, the petitioners
appointment were made despite the
restrictions imposed by the D.I.O.S. and
the appointments and said selection were
made without observing the provisions of
the reservation policy as indicated above
and the issuance of the appointment
orders and allowing the petitioners to join
the post without any valid appointments
and approval of competent authorities are
redundant, as such the petitioners are not
entitled to any relief, therefore, I do not
find any impropriety and illegality in the
said impugned order dated 31.12.98 and
15.5.94 of the D.I.O.S., therefore, these
writ petitions are dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.9.2003

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 20611 of 1988

Sri Salim Ahmad Khan
...Petitioner
Versus
XIIth A.D.J., Agra
 ...Respondents

Counsel for the Petitioner:
Sri S.O.P. Agarwal

Counsel for the Respondents:
S.C.

U.P.
Urban
Building
(Regulation
of
letting, rent and eviction) Act 1972,
Section 21-Enamy Property Act 1968,
Section 9-whether house in dispute
vested in Custodian Emery Property Act-
Tehsildar had no authority to determine
this question.

Held- Para 3

There is no evidence that the property
was ever declared to be enemy property
or that it ever vested in custodian enemy
property. If one party asserts that the
property is enemy property and the
other party disputes the said fact then
naturally it must be decided by some
authority under Enemy Property Act
1968
that
the
property
vested
in
Custodian Enemy Property. The only
thing
brought
on
record
by
tenant/petitioner was a notice and a
report of the Tehsildar dated 27.6.1983.
In that notice Tehsildar stated that
Rahim Baksha was a Pakistani National.
Neither under Enemy Property Act nor
under
any
other
Provision
of
law
Tehsildar is authorized to decide the
nationality of a person and the fact that
a particular property belongs to that
person. In the notice Tehsildar did not
mention that any authority under Enemy
Property Act had declared the said facts.
Case laws discussed:
AIR 1982 Cal. 542
AIR 1989 Cal. 139

(Delivered by Hon'ble S.U. Khan, J.)

1. This writ petition has been filed
by the tenant against whom release
application (P.A. Case No. 41 of 1984 on
the
file
of
Prescribed
Authority/
Additional Civil Judge-I, Agra) filed by
landlord/ respondent No. 3 under section
21 of U.P. Act No. 13 of 1972 is pending.
Before filing written statement/ reply to
the release application tenant/ petitioner
filed application numbered as 24-Ga. In
the said application tenant stated that
house in dispute initially belonged to Sri
Rahim Baksha whose entire family
migrated to Pakistan in 1948-49 and
obtained the citizenship of Pakistan. Only
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1 All] Sri Salim Ahmad Khan V. XIIth A.D.J., Agra and others
37
Rahim Baksha remained in India and died
in the year 1952 and that after the death of
Rahim Baksha, his father continued to
receive rent from the tenant till 1967 and
that in 1967 father of Rahim Baksha
intimated the tenant that he had purchased
the house in dispute on 28.11.1962 from
the legal representative of Rahim Baksha.
It was further stated that the sale deed was
sham as it was not executed by legal
representative of Rahim Baksha and that
after the death of Rahim Baksha his
property i.e. the house in dispute vested in
Union of India as it became enemy
property. It was also stated in the said
application that Tehsildar wrote a letter to
him to deposit the rent in the name of
Union of India. In the application it was
pleaded that in view of section 9 of
Enemy Property Act, 1968 U.P. Act No.
13 of 1972 was not applicable to the
house in dispute and custodian enemy
property
was
necessary
party.
The
Prescribed Authority by order dated
30.1.1986 rejected the application of the
tenant /petitioner against which he filed
appeal being Misc. Appeal No. 27 of
1986. The appeal has been dismissed by
XII-Addl.
District
Judge,
Agra
by
judgment and order dated 20.9.1988. This
writ petition is directed against the
aforesaid judgment and order.

2. Learned counsel for the petitioner
has cited two authorities of the Calcutta
High Court reported in AIR 1982 Calcutta
542 and AIR 1989 Calcutta 139. As far as
the authority of 1982 is concerned, it was
reversed partly in 1984 (1) Calcutta law
journal 359. As far as 1989 authority is
concerned it has been held in para 23
thereof that unless it is decided that a
particular property is an enemy property
and it vested in the custodian, the
custodian of the Enemy Property can not
take over the possession. Para 23 is
quoted below;

"Let it be made clear that without
deciding whether a particular property is
an enemy property or not or whether that
property vested in the custodian under
the Enemy Property Act has been
transferred
before
or
after
the
commencement of the Act to evade or
defeat the vesting of the property, the
Custodian of the Enemy Property can
not take over the possession of the
property arbitrarily, and the possession
of the property if taken over as such
shall
be
unlawful,
and
legal
consequences will follow."

3. In the instant case there is no
evidence that the property was ever
declared to be enemy property or that it
ever vested in custodian enemy property.
If one party asserts that the property is
enemy property and the other party
disputes the said fact then naturally it
must be decided by some authority under
Enemy Property Act 1968 that the
property vested in Custodian Enemy
Property. The only thing brought on
record by tenant/petitioner was a notice
and a report of the Tehsildar dated
27.6.1983. In that notice Tehsildar stated
that Rahim Baksha was a Pakistani
National. Neither under Enemy Property
Act nor under any other Provision of law
Tehsildar is authorized to decide the
nationality of a person and the fact that a
particular property belongs to that person.
In the notice Tehsildar did not mention
that any authority under Enemy Property
Act
had
declared
the
said
facts.
Annexure-2 is report by Naib Tehsildar to
Tehsildar dated 18.4.1984. If Tehsildar
has no authority to determine the said fact
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
38
the Naib Tehsildar can also not determine
the same.

4. Accordingly both the orders
passed by Prescribed Authority as well as
District Judge are upheld even though on
different grounds and writ petition is
dismissed.

5. As release application is pending
since 1984 hence it is directed that
Prescribed Authority must decide the said
case within six months from production of
certified copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2003

BEFORE
THE HON'BLE S.K. AGARWAL, J.
THE HON'BLE GHANSHYAM DASS, J.

Habeas Corpus Petition No. 20304 of 2003

Mohd. Anees alias Guddu
...Petitioner
 (In Jail)
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.K. Bajpai
Sri U.N. Sharma

Counsel for the Respondents:
Sri B.N. Singh, S.S.C.
Sri J. Lal, A.S.C.
Sri K.S. Yadav
Sri A.K. Tripathi, A.G.A.

Constitution
of
India-Article
226National Security Act-Section 8 & 14Detention
order
state
government
forwarded the representation to Central
Govt.-Central
Government
returned
without considering the same-Directed
to
State
Government
for
its
determination under Section 8 of the
Act-Contention raised-whether central
Govt. failed to discharge its obligation
under Section 14 of the Act.

Held: conduct of Central Government
resulted into miscarriage of Justice-it
was in cumbent upon the Government of
India to consider the representation and
to decide under section 14 of the ActPetition
Allowed-Detention
order
quashed.

(Delivered by Hon'ble S.K. Agarwal, J.)

1. We have heard Sri Anil Kumar
Bajpai, learned counsel for the petitioner,
on behalf of the State Sri A.K. Tripathi,
learned A.G.A. and Sri K.S. Yadav,
learned counsel for the Union of India.

2. The sole question that was raised
before us by the petitioner in this petition
for
our
consideration
is
that
the
representation, duly forwarded by the
Government of Uttar Pradesh with a
covering letter, was returned by the
Central Government without considering
the same to the State Government for its
determination under Section 8 of National
Security Act (hereinafter referred to as
'Act'). The representation was also sent to
the Central Government by the District
Magistrate, Allahabad. The contention,
therefore, is that the central government
had failed to discharge its obligation as
enjoined upon it by Section 14 of the Act.
We have applied ourselves appropriately
to the issue at hand. In our opinion the
contention has sufficient force. The
detenue had supplied 7 copies of his
representation to the Superintendent of
Jail as accepted by him in his counter
affidavit in paragraph 6. A copy of the
representation is annexed alongwith the
petition
as
annexure-2.
The
representation was handed over to the
Superintendent on 12.9.2002. According