Mohammad Amir Mohammad Khan v. Union of India & Anr

SANJIV KHANNA, J. MARCH 18, 2011 dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on : 17th February, 2010 Date of decision: 18th March, 2011 + W.P.(C) No.5288/2010 Mohammad Amir Mohammad Khan … Petitioner Through: Mr.V. Giri, Sr. Advocate with Mrs.Anjali K. Varma, Mr.Niraj Gupta, Mr. Sushant Sharma and Mr.Mohd. Sadiq, Advocates. Versus Union of India & Anr. … Respondents Through: Mr.G.E. Vahanvati, Attorney General, Mr. A.S. Chandhiok, ASG with Mr.Atul Nanda, Sr. Advocate, Mr. Jatan Singh, standing counsel, Ms. Rameeza Hakeem, Advocate for the UOI. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ By this writ petition preferred under Article 226 of the Constitution of India the petitioner has prayed for declaring the Enemy Property (Amendment and Validation) Ordinance, 2010 (for short "the Ordinance") by which sub- section 3 of Section 5 of the Enemy Property Act, 1968 (for brevity "the Act") and Sections 18A, 18B and 26 of the Act were inserted as unconstitutional, void and inoperative. 2. At the very inception, we are obliged to state that this Court while issuing notice had passed the following order: "As an ad-interim measure it is directed that any action taken in pursuance to the ordinance shall be subject to result of this writ petition and that apart the respondent shall not create any third party interest even remotely so that while ultimately disposing of the writ petitioner no impediment is created and the problems beyond control do not crop up. It is further clarified if any possession is taken pursuant to the ordinance the inventory of the same shall be done in presence of the petitioner or his representative which shall be signed by both the parties. Dasti." 3. Thereafter, the counter affidavits were filed and the writ petition was amended. In the meantime, with efflux of time the ordinance lapsed and no fresh ordinance was issued. This Court heard learned counsel for the parties for some time with regard to the consequence and the sequitur and on a lapse of an ordinance in a case of this nature. When the matter was listed on 8.2.2011, Mr.G.E. Vahanvati, learned Attorney General for Union of India raised a preliminary objection on the foundation that this Court should not entertain and hear the writ petition regard being had to the reliefs sought, pleadings put forth and the stand taken on the ground that the petitioner is a resident of Lucknow and the properties which have been described vide Annexure P-3 (collectively) are situate in Lucknow. It is urged by him that the sole challenge is to the constitutional validity of the Ordinance 4 of 2010 by which sub-section 3 of Section 5 of the Enemy Properties Act, 1968 has been amended. To bolster his submission, he has commended us to the decision in Kusum Ingots and Alloys Ltd. Vs. Union of India and Another (2004) 6 SCC 254. 4. Thereafter, the matter was heard on the question of preliminary objection and Mr. V. Giri, learned senior counsel appearing for the petitioner and the learned Attorney General fairly conceded that this Court may pronounce the judgment on the territorial jurisdiction first and thereafter other aspects / spectrums may be debated. Hence, we proceed to deal with the factum of jurisdiction. 5. After we reserved the order, a written note of submissions was filed as undertaken by the learned counsel for the petitioner. In the written note of submissions, after referring to the factual matrix, learned counsel for the petitioner has relied upon the decision rendered in Ltd. Col. Khajoor Singh v. The Union of India & Another, AIR 1961 SC 532. 6. Reliance has also been placed on the decisions rendered in Navinchandra N. Majithia v. State of Maharashtra and others, (2000) 7 SCC 640, Alchemist Ltd. and Anr. v. State Bank of Sikkim and ors., (2007) 11 SCC 335 and a F