Hon'ble Tarun Agarwala, J.
The Registry has placed an order of the Supreme Court dated 10th April, 2012 wherein the Supreme Court has requested this Court to ensure that the pending writ proceedings, which is fixed for hearing on 12 April, 2012, be disposed of on the said date.
The matter was taken up on 1st March, 2012 wherein the Court allowed the impleadment application of the State of U.P and the State of U.P was impleaded as respondent No. 3. The State of U.P was directed to file the counter affidavit. It was made clear that the hearing of the writ petition would continue and no further time would be granted to the State of U.P to file the counter affidavit. The record indicates that the State of U.P has filed the counter affidavit and the petitioner has filed the rejoinder affidavit to it.
The matter would have been heard today but an Impleadment Application No. 3192 of 2012 has been filed by the Kisan Sahkari Chini Mills Ltd. Mahmudabad (Oudh) Sitapur (U.P) through its General Manager which has come up today for orders.
At the outset, the learned senior counsel for the petitioner has vehemently opposed this application contending that if this application is allowed, it would lead to a chain reaction and similar situated persons claiming title or possession would file such impleadment applications with a view to scuttle the hearing of the petition.
The learned counsel for the applicant Kisan Sahakari Chini Mills Ltd. contended that they are a necessary party, inasmuch as, as per the prayer ‘a’ to the writ petition, certain properties mentioned in Annexure P-3 of the writ petition was being sought to be returned back to the petitioner from the Custodian, whereas, one such property mentioned in the list Annexure P-3 has been acquired and possession has been taken under the Land Acquisition Act in the year 2007 for the purpose of a sugar mill. The application further contends that possession has also been given. During the course of the argument, the learned Senior Counsel for the petitioner clarified that the prayer ‘a’ to the writ petition is only confined to the return of such properties which the Custodian had taken from the petitioner pursuant to the Enemy Property (Amendment and Validation) Ordinance, 2010 and, consequently, sought leave of the Court to make the necessary amendment in the relief clause. The hearing was adjourned for post lunch session to enable the learned counsel for the petitioner to file the necessary amendment application.
The amendment application was filed after lunch which has been duly served to all the parties and which has been taken on record. The petitioner has sought amendment in the prayer clause, namely:
“(A) In prayer (a) delete the words “(as mentioned in Annexure P-3)”.
(B) In prayer (a) substitute the word “Act” by “Ordinance”.
(C) In prayer (d) delete the words “(as mentioned in Annexure P-3).”
The said amendment according to the petitioner is not only innocuous but also claries the extent of properties sought to be returned to the petitioner, so as to remove the confusion that is lingering in the mind of the respondents. The Addl. Solicitor General for respondent Nos. 1 and 2 has opposed the amendment application contending that deletion of the words in the prayer clause would not make much difference to the relief claimed by the petitioner, inasmuch as, the relief claimed has to be considered in the light of the averments made in various paragraphs of the writ petition which conclusively refers to the properties mentioned in Annexure P-3 to the writ petition. Consequently, the learned Senior Counsel submitted that the amendment application is misconceived and should be rejected at the threshold itself. The learned counsel for the State of U.P as well as the learned counsel for the proposed respondents Kisan Sahakari Chini Mills Ltd. have made similar submissions.
Having heard the learned counsel for the parties and considering the direction of the Supreme Court to the Custodian to handover possession of the properties to the petitioner, it is not clear at the moment as to which property was actually returned by the custodian to the petitioner. It is not clear as to what properties were taken again by the custodian pursuant to the issuance of the Ordinance of 2010.
The petitioner being the “dominus litis” not only has a right to choose his opponent but also has a right to claim such relief as he likes. The amendment sought, in the opinion of the Court, does not change the relief already claimed by the petitioner nor does it changes the nature of the case. Consequently, in the larger interest of justice and further the Court finds that there is an element of public interest involved in the petition, the amendment application is allowed. Let the necessary amendment be carried out by the petitioner within three days.
In so far as the impleadment application is concerned, the fact remains that no relief has been sought by the petitioner against the Kisan Sahakari Chini Mills Ltd. Consequently, the Court is of the opinion that the said Kisan Sahakari Chini Mills Ltd. is not a necessary party. However, the Court finds that certain land acquisition proceedings has taken place in the year 2007-08 under the Land Acquisition Act, pursuant to which, the proposed respondents are claiming that they have been given the possession of the land. It is not known as to whether the possession was taken from the Custodian or not. However, in the discretion of the Court, the Court finds that it would be just and proper that this Kisan Sahkari Chini Mills, being a proper party, should be impleaded as a respondent.
Consequently, the impleadement application No. 3192 of 2012 is allowed. The Kisan Sahkari Chini Mills Ltd. is impleaded as respondent No. 4. Necessary correction in the array of parties or amended memo of the parties be filed by the petitioner within three days.
A request has been issued by the Supreme Court to decide the matter finally today since similar and other pending applications are pending before the Supreme Court. However, this matter could not be decided today since pleadings were incomplete. However, considering the request of the Supreme Court, the Court grants one week and no more time to the newly impleaded respondent No. 4 to file the counter affidavit. Rejoinder affidavit may be filed within three days thereafter. The newly impleaded respondent No. 4 while filing the counter affidavit will ensure that copy of the counter affidavit is also served to the learned counsel for the respondent Nos. 1, 2 and 3.
The Court further directs respondent Nos. 1 and 2 to file a supplementary counter affidavit on or before the next date of hearing annexing the list of properties which were handed over to the petitioner pursuant to the orders of the Supreme Court as well as the list of properties of which the possession was taken over by the Custodian pursuant to the Ordinance of 2010.
As agreed between the parties, list this matter for hearing on 23rd April, 2012.