Allahabad High Court
Shah Junaid Ahmad (Minor) And 3 ... vs Smt. Shaman Hasan on 11 May, 2018
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
RESERVED : 26.04.2018
DELIVERED : 11.05.2018
Case:-HABEAS CORPUS WRIT PETITION No.- 40749 of 2017
Petitioner :- Shah Junaid Ahmad (Minor) And 3 Ors.
Respondent :- Smt. Shaman Hasan
Counsel for Petitioner :- S.M. Iqbal Hasan
Counsel for Respondent :- G.A.,Syed Ahmed Faizan,Syed Farman Ahmad Naqvi
Hon'ble Harsh Kumar,J.
Heard Shri S.M. Iqbal Hasan learned counsel for the petitioners and Shri Syed Farman Ahmad Naqvi learned counsel for the respondent at length
The petition for Habeas Corpus has been filed for petitioner nos.1, 2 and 3, the three minor children of petitioner no.4 with the following prayer :-
"(A) Issue a writ, order or direction in the nature of Habeas Corpus commanding and directing the respondent to produce the petitioner no.1, 2 and 3 before this Hon'ble court and set at liberty and handed over the custody of petitioner no.1 to the petitioner no.4 who is the father and natural guardian. And further be please to grant the right of visitation in respect of petitioner no.2 and 3 to the petitioner no.4 who is the father and natural guardian of their daughters.
(B) Issue any other writ, order or directions which this Hon'ble Court may deem fit and proper under the fact and circumstances of the case.
(C) Award the cost of this writ petition in favour of the petitioners."
Counter and rejoinder affidavits have been exchanged. The learned counsel for respondent party has raised a preliminary law point of non-maintainability of the petition for Habeas Corpus.
It was contended by the learned counsel for respondent that the petition is malafide and misconceived which has been drafted to have been filed by the petitioner no.4 Shah Hassan Ahmad for his minor children, petitioner nos.1, 2 and 3 who are in custody of respondent, but in fact neither the petition has been signed or verified by petitioner no.4 Shah Hassan Ahmad nor affidavit has been filed by him in support of the allegations made in petition, rather one Shah Adnan Ahmad the brother of petitioner no.4 has signed the petition without any right or authority and has also filed his affidavit without there any averment in the petition that the petition is being signed and instituted by Shah Adnan Ahmad the brother of petitioner no.4; that since the petition has not been signed and verified by the petitioner no.4 rather has been signed by his brother who is not petitioner, the petition is bogus misconceived and is legally not maintainable, that the petition is liable to be dismissed with costs only on this ground of maintainability. He pointed out that the Vakalatnama at page 41 of the petition, which appears to have been signed by petitioner no.4, in fact does not bear his signatures and are totally different from his admitted signatures on rejoinder affidavit dated 18.1.2018, filed on 12.4.2018.
In reply to above the learned counsel for petitioners submits that the respondent has raised baseless objection of maintainability of petition just to delay the disposal of petition; that Shah Adnan Ahmad is real brother of petitioner no.4 and was duly authorized by respondent no.4 to institute the present petition and submit the affidavit in support of petition on his behalf as he was living out of India; that the petitioner no.4 himself has submitted rejoinder affidavit in reply to the counter affidavit filed by respondent, which shows that petition has been filed upon his instructions.
Paying reliance on the Full Bench judgement in the case of Syed Wasif Husain Rizvi vs. Hasan Raza Khan and others reported in AIR 2011 Alld 52, holding that "the power of attorney holder can institute a writ petition", and the learned counsel for petitioners contended that the preliminary objection as to maintainability of petition raised by the respondent has no force and is liable to be rejected."
Upon hearing parties counsel and perusal of records I find it proper to firstly decide the preliminary legal point which relate to the maintainability of petition itself.
The perusal of record shows that in the petition there are four petitioners out of which petitioner no.1 Shah Junaid Ahmad aged about 9 years is minor son of petitioner no.4 and respondent, while petitioners no.2 and 3 are about 4 years old minor daughters of petitioner no.4 and respondent, and in the array of petitioners, after the names of petitioner nos.1 to 3 words "through his father Shah Hasan Ahmad son of Irfan Ahmad has been mentioned" and name and address of petitioner no.4 has been mentioned as under :-
"Shah Hassan Ahmad
Son of Irfan Ahmad,
Native of D-93 FF3 G.T. B. Nagar,
Post and Police Station Kareli,
District Allahabad.
Permanently settled as Professor
King Abdul Aziz University,
P.O. Box 80283 Jeddah 21589
Saudi Arabia." and
Paragraph 20 of the writ petition is as under :-
"20. That it is stated here that the present Habeas Corpus petition is filed before this Hon'ble Court through father, who is natural guardian and his best protector to the interest of their children especially under the circumstances when the respondent has apathy and neglecting the children. The petitioner no.1, 2 and 3 are illegally detained by the respondent against the settle principle of law. The custody are illegal custody."
From above mentioned allegations made in paragraph 20 of the writ petition for Habeas Corpus, it is clear that the present Habeas Corpus petition is alleged and shown to have been filed by petitioner no.4 for and on behalf of 3 minor children (Corpus).
Undisputedly neither the petition has been signed by petitioner no.4 Shah Hassan Ahmad nor any affidavit of petitioner no.4 has been filed in support of the petition, rather it has been signed by Shah Adnan Ahmad who has also filed affidavit in support of petition at page no.39 of the petition. It is pertinent to mention that admittedly there is no whisper in the entire petition or even in the affidavit of Shah Adnan Ahmad, that he has been authorized by his brother Shah Hasan Ahmad, petitioner no.4 to sign, verify and institute the petition on his behalf or petitioner no.4 has executed any general or special power of attorney in favour of his brother Shah Adnan Ahmad appointing him his general or special power of attorney holder and even no such deed of power of attorney has been filed either with petition or with the rejoinder affidavit.
It is also pertinent to mention that the rejoinder affidavit consisting of as many as 20 paragraphs has been filed by petitioner no.4 himself, but even in rejoinder affidavit there is no whisper about any such authorization or execution of any power of attorney in favour of his brother authorizing him to sign, verify and institute the petition for and on behalf of petitioner no.4.
In the case law relied by learned counsel for the petitioner in Syed Wasif Husain Rizvi vs. Hasan Raza Khan and others reported in AIR 2011 All 52, following question was referred to Full Bench for consideration "whether the writ petition under Article 226 of the Constitution can be filed by a power of attorney holder"
and the Full Bench of this court answering in affirmative, observed adequate safeguards and held that :-
"Having held so, we must, at the same time, emphasize the necessity of observing adequate safeguards where a writ petition is filed through the holder of a power of attorney. These safeguards should necessarily include the following:
(1) The power of attorney by which the donor authorises the donee, must be brought on the record and must be filed together with the petition/ application;
(2) The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and
(3) The donee must be confined to those acts which he is authorised by the power of attorney to discharge."
Upon hearing parties counsel, I find that to meet the preliminary objection of maintainability of petition, the petitioner who has taken shelter under the Full Bench judgment of this court in the case of Syed Wasif Husain Rizvi vs. Hasan Raza Khan and others reported in AIR 2011 All 53 has not acted in accordance with the principle of law laid down by the Full Bench of this court which holds that writ petition under Article 226 of the Constitution of India can be filed by a power of attorney holder.
I am of the considered view that since (i) neither there is any averments in the petition about any authorization by petitioner no.4 in favour of his brother Shah Adnan Ahmad (ii) nor about execution of any deed of power of attorney by petitioner no.4 in favour of his brother Shah Adnan Ahmad (iii) nor there is any such deed of power of attorney on record, Shri Shah Adnan Ahmad the brother of petitioner no.4 had no right or authority to sign, verify or institute the present petition of Habeas Corpus and may not be considered to have been duly authorised by petitioner no.4 to sign, verify or institute the petition for Habeas Corpus for or on behalf of petitioner nos.1 to 4.
In view of the discussions made above, since Shri Shah Adnan Ahmad has no right or authority to sign, verify and institute the petition of Habeas Corpus under Article 226 of the Constitution of India for and on behalf of petitioner nos.1, 2, 3 and 4 the same is legally not maintainable and is liable to be dismissed as such.
Accordingly, without commenting on merits, the writ petition is dismissed as not maintainable.
Order Date :- 11.05.2018
vs
