KAILAS COOPERATIVE HOUSING SOCIETY LIMITED vs UNION OF INDIA
- Court
- Gujarat High Court
C/SCA/9811/2023 JUDGMENT DATED: 23/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.9811 of 2023
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2024
In R/SPECIAL CIVIL APPLICATION NO.9811 of 2023
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2025
In R/SPECIAL CIVIL APPLICATION NO.9811 of 2023
With
R/SPECIAL CIVIL APPLICATION NO.9812 of 2023
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2024
In R/SPECIAL CIVIL APPLICATION NO.9812 of 2023
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2025
In R/SPECIAL CIVIL APPLICATION NO.9812 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
=========================================
Approved for Reporting Yes No
YES
=========================================
KAILAS COOPERATIVE HOUSING SOCIETY LIMITED & ANR.
Versus
UNION OF INDIA & ORS.
=========================================
Appearance :
MR MIHIR JOSHI, SENIOR COUNSEL ASSISTED BY MR ARJUN M JOSHI for
the Petitioners.
MR HARSHEEL D SHUKLA for the Respondent Nos.1,2
NOTICE SERVED BY DS for the Respondent No.3.
=========================================
CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 23/06/2026
COMMON JUDGMENT
1. As the issue involved in both the matters are common
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C/SCA/9811/2023 JUDGMENT DATED: 23/06/2026
and the only point that is canvassed today by reserving liberty to
canvass all other points, if required, learned Senior Advocate Mr.
Mihir Joshi submitted that these petitions can be disposed of on the
ground of non-adherence to the principles of natural justice and
hence, with the consent of learned advocates appearing for the
respective parties, the matters are taken up for final disposal today
itself.
2. Rule . Mr. Harsheel Shukla, learned Central
Government Standing Counsel waive service of rule on behalf of
respondent Nos.1 and 2.
3. For the purpose of deciding these two matters, Special
Civil Application No.9811 of 2023 was considered to be lead matter
which contains the following prayer :-
“(A) That this Hon'ble Court be pleased to issue an
appropriate writ, order or direction to quash and
aside all proceedings initiated under the Enemy
Property Act, 1968 and Rules made thereunder as
regards the subject property and be pleased to
declare that the subject property of the Petitioner
No.1 is not an enemy property;
(B) That this Hon'ble Court be pleased to issue an
appropriate writ, order or direction to quash and
set aside Respondent No.2's communication dated
04.05.2023 with File No.11-01-03/233 and be
pleased to declare that the subject property of the
Petitioner No. 1 is not an enemy property; [Annx-A]
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(C) That this Hon'ble Court be pleased to issue an
appropriate writ, order or direction, directing the
Respondent No. 2 to produce the certificate dated
11.10.2013 issued under Section 12 of the Enemy
Property Act, 1968 and be pleased to quash and set
aside the said certificate dated 11.10.2013;
(D) That this Hon'ble Court be pleased to issue an
appropriate writ, order or direction, to quash and
set aside the impugned decision passed by
Respondent No.3 dated 29.03,2023 and be pleased
to direct Respondent No.3 to post the necessary
mutation entries in the record of land rights as per
Petitioner No.2's application dated 23.03.2023;
[Annx. B Colly.]
(E) Pending hearing and final disposal of this
petition, this Hon'ble Court be pleased to stay all
further proceedings under the Enemy Property Act,
1968 and its Rules inter alia pursuant to
communication dated 04.05.2023, with File No.11-
01-03/233, issued by Respondent No.2;
(F) Pending hearing and final disposal of this
petition, this Hon'ble Court be pleased to direct
Respondent No.3 to accept applications and post
mutation entries in respect of legal heirs of the
members of Petitioner No. 1 in the respective
Property Cards maintained by Respondent No.3;”
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4. Mr. Mihir Joshi, learned Senior Counsel assisted by
learned advocate Mr. Arjun M. Joshi submitted that the
respondents had issued a notice to the petitioners on 28.4.2006
under Section 11(1) of the Enemy Property Act, 1968. The
petitioners’ responded to the aforesaid notice by stating that the
land in question was permanently leased to the petitioners for a
period of 999 years with a subsequent clause to renew it for a
further period of 999 years as back as in the year 1955 when the
aforesaid Act was not even in existence.
5. Learned Senior Advocate Mr. Mihir Joshi further
submitted that though the aforesaid show-cause notice was replied
by the present petitioners, the respondents without considering the
reply filed by the petitioners or without giving any opportunity of
being heard in gross violation of the principles of natural justice,
issued a Certificate dated 11.10.2013 under the Enemy Property
Act, 1968 declaring the Enemy Property vested in the Government
and the said Certificate dated 11.10.2013 also was not
communicated to the petitioners.
6. Learned Senior Advocate Mr. Mihir Joshi further
submitted that thereafter, vide notice dated 11.1.2022 issued to the
petitioners under Section 5 of Enemy Property Act, 1968, the
petitioners were threatened of eviction notice unless they execute a
Leave and License Agreement with the respondent authority. All
these actions are under challenge. The main submission of
learned Senior Advocate Mr. Mihir Joshi is that all the aforesaid
orders after issuance of the show-cause notice are passed without
hearing the petitioners and without affording any personal hearing
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to the petitioners and, therefore, the same would amount to
violation of the principles of natural justice.
7. Learned Senior Counsel Mr. Mihir Joshi has also
appraised the Court that order dated 4.5.2023 passed by the
respondent is also under challenge whereby the petitioners were
called upon to produce certain documents and 2/5th share of the
land in question was determined to be Enemy property and,
therefore, the said order also being consequential order after the
Certificate dated 11.10.2013 was issued and, therefore, all the
proceedings are required to be quashed and set aside on the
ground of violation of the principles of natural justice.
8. Learned Senior Advocate Mr. Mihir Joshi submitted
that keeping all the rights and contentions of all the parties open,
the matters are required to be remanded back to the respondent
authority from the stage of show-cause notice itself and the
respondent authorities may be directed to consider all the material
that the petitioners have already supplied and may supply in future
and also to give personal hearing to the petitioners before passing
any further order in respect of the proceedings initiated against the
petitioners under Section 11 of the Enemy Property Act, 1968.
9. During the course of hearing, on earlier occasion, this
Court has orally directed learned Central Government Standing
Counsel Mr. Harsheel Shukla to verify from the record as to
whether the petitioners were heard or any notice of personal
hearing was ever given to the petitioners which could be said to
have been served upon the petitioners or not and whether before
passing the impugned orders, the documents submitted by the
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petitioners in their defence were considered by the respondent
authorities or not. Learned Central Government Standing Counsel
Mr. Harsheel Shukla, upon examination of all the documents which
were presented to him by the respondents, submitted that looking
to the documents presented to him, he could not come across any
document which can be said to have been served upon the
petitioners before passing the impugned orders whereby the
property was vested in Government by declaring the property in
question to be an enemy property and even the defence submitted
by the petitioners also do not seem to have been considered by the
respondent authorities.
10. In view of the above submission made by learned
Central Government Standing Counsel Mr. Harsheel Shukla, upon
instructions of this Court to examine the documents which were
presented before him by the respondents, it seems that the
respondents before passing the order declaring the property to be
enemy property and by passing the consequential orders have
violated the principles of natural justice and even the reply
submitted by the petitioners also have not been considered
whereby lease for the period of 999 years was executed in favour of
the petitioners and it is also noteworthy that the present
petitioners who are the Indian citizens are occupying the land in
question since years together and today, the land is in possession
of the Indian citizens even contrary to introduction of the Act.
11. In view of the above, the impugned order dated
4.5.2023, Certificate dated 11.10.2013 as well as impugned order
dated 29.3.2023 are quashed and set aside and the matters are
remanded back to the respondents for fresh consideration from the
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stage of show-cause notice dated 28.4.2006. The petitioners are
directed to file their detailed fresh reply to the respondents within
a period of 8 weeks from today along with all necessary documents
and thereafter, the respondent authority is directed that if they are
not satisfied with the reply submitted by the petitioners, in that
case, the respondents are directed to give opportunity of personal
hearing to the petitioners and thereafter pass an appropriate order
taking into consideration the reply as well as the oral submissions
made by the petitioners or their counsel in respect of the
proceedings in question.
12. With the above direction, the present petitions stand
allowed. It is clarified that the impugned orders as well as
Certificate are quashed only on the ground of violation of principle
of natural justice and the matters are not examined about the
merits of the matters. All the rights and contentions of all the
parties are kept open. Rule is made absolute to the above extent.
In view of disposal of main petition, connected civil
applications also stand disposed of.
(NIRZAR S. DESAI,J)
SAVARIYA
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