Uttarakhand High Court
WPMS/2508/2021 on 2 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 2ND DAY OF DECEMBER, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) No. 2508 of 2021
BETWEEN:
Asha Joshi. ..........Petitioner
(By Mr. Dushyant Mainali, Advocate)
AND:
Union of India & others. ......Respondents
(By Mr. V.K. Kaparuwan, Standing Counsel for Union of India
and Mr. G.S. Negi, Additional C.S.C. for the State of
Uttarakhand)
JUDGMENT
There is a Property known as 'Bright End
Corner' in Almora Town of Uttarakhand State, which
has been developed as Eco Park by the District
Administration of Almora. The District Adventure
Sports Management Committee of Almora invited bids
in the month of October, 2020 from persons, who are
interested in running a restaurant/cafe in the said Eco
Park. As petitioner's bid was found to be the highest,
therefore, she was granted lease for running the
restaurant/cafe for a period of 11 months. The lease
agreement dated 01.01.2021 executed between
petitioner and Secretary, District Adventure Sports
Management Committee is on record as Annexure No.
3 to the writ petition.
2. According to the petitioner, upon grant of
lease, she invested huge amount in
lvelling/developing the land and also erecting
prefabricated structure over the leased property.
Petitioner further contends that she is running a
restaurant in the name & style of 'Almora Fort' in the
said property for the facility of tourists visiting hill
town of Almora.
3. Petitioner is aggrieved by the order dated
22.11.2021 passed by Secretary, District Adventure
Sports Management Committee, whereby she was
asked to vacate the premises on 30.11.2021. The
reason assigned for doing so is that District
Magistrate, Almora had granted temporary approval
to Tourism Department for grant of lease in respect of
part of the Property for running a restaurant, in
anticipation of approval from Custodian, Enemy
Property and such approval has not been received,
therefore, it is not possible to extend term of the
lease.
4. Section 3 of the Enemy Property Act, 1968
deals with appointment of Custodian of Enemy
Property for India. Section 8 (2) (ia) of the said Act
provides that Custodian shall have the power to fix
and collect the rent, standard rent, lease rent, license
fee or usage charges, as the case may be, in respect
of enemy property. Rule 5 of the Enemy Property
Rules, 2015 also enables the Custodian to enter into
an agreement with person/persons, who are in
occupation over enemy property. Thus, under the
Enemy Property Act, 1968, there is no embargo on
leasing out the enemy property on rent.
5. The only objection against extension of
lease to the petitioner is that necessary approval of
the Custodian of the Enemy Property is not received.
Learned Standing Counsel for Union of India submits
that if the matter is brought to the notice of the
Custodian, then he shall look into the matter and take
decision regarding approval to lease of the property in
question
6. Accordingly, the writ petition is disposed of
with liberty to petitioner to make representation to
Custodian of the Enemy Property, on or before
04.12.2021. It shall be open to the petitioner to
submit representation also through e-mail. If
petitioner makes representation within the stipulated
period, the Custodian of the Enemy Property shall
look into the matter and pass appropriate order, in
accordance with law, within four weeks thereafter.
7. For a period of six weeks or till decision on
petitioner's representation, whichever is earlier,
status quo, qua petitioner's possession over the land
in question, shall be maintained. This however will be
subject to petitioner depositing the agreed rent as per
the rent deed dated 01.01.2021.
8. Let a certified copy of this order be issued
within 24 hours.
(MANOJ KUMAR TIWARI, J.)
Arpan
