Allahabad High Court
Mashook Ahmad vs D.D.C. & Others on 3 February, 2010
Author: Rakesh Sharma
Bench: Rakesh Sharma
A.F.R. Reserved Civil Misc. Writ Petition No.226 of 1975.
Mashooq Ahmad Vs. D.D.C. & others Hon'ble Rakesh Sharma,J
Heard Sri M.A.Qadeer, learned senior advocate assisted by Sri Zuber Ahmad, Iqbal Ahmad Siddiqui and other learned counsel for the petitioner. Learned Standing Counsel represents respondents No.1 to 3. Sri M.D.Singh Shekhar, learned senior advocate, R.K.Raghubanshi, Anil Srivastava and J.P.Singh appear for respondents no.4&5.
Through the present writ petition, the petitioner an agriculturist of village Sikari, Tappa-Patana, Pargana-Bansi East, Tahsil Bansi, district Basti has assailed the three orders passed by the Deputy Director of Consolidation, Settlement Officer Consolidation and Consolidation Officer, Basti dated 25.11.74, 24.5.73 and 30.11.72. All the three consolidation courts have recorded concurrent findings of fact in holding that one Akbar Ali, son of Fateh Mohammad was a citizen of Pakistan, he held a Pakistani Pass Port and had no right to execute a registered gift deed, Hibanama in favour of petitioner Mashooq Ahamad. All the three courts have recorded the findings and conclusions to the same effect.
It emerges from the record that villages Sikari, Rajaur and Phulwaria, Tappa, Patna, Pargana Bansi East, Tehsil Bansi, district Basti came under consolidation operations some time in the year 1970. The notification under section 4 was published and objections were invited from tenure holders who were going to be affected by the consolidation operations. There were several plots of lands, Khatas No.78,150, 149,,48, 88,99,81,53,54, 52,3, 147, 95 recorded in the name of Akbar Ali and Vakil Ahmad. It has been claimed by the petitioner Mashooq Ahmad that the names of those persons were recorded in the basic year Khatauni. However, in some of these Khatas/plots, names of some other persons, i.e., respondents No.4&5 etc. were also recorded along with them. Vakil Ahmad and Akbar Ali were real brothers. The petitioner Mashooq Ahmad is the real grand son of Akbar Ali. It is claimed by 2 the petitioner Mashooq Ahmad that his grand father Akbar Ali had executed a gift deed Hibanama of his entire share in his favour (who was his grand son) on 23.6.70. This gift deed was duly registered in the office of Sub Registrar, Bansi, district Basti. Mutation application was submitted by the petitioner on the basis of said gift deed for recording his names in the revenue and consolidation records. A chak was proposed to be carved out in favour of Vakil Ahmad and Akbar Ali at the time of initiation of consolidation proceeding.
Sri Mohd. Yusuf, respondent no.4 and Bhumikeshwar, respondent no.5 had also filed their objections under section 9 A of U.P. Consolidation of Holdings Act with regard to plots situate in villages Sikari and Rajaur before the Assistant Consolidation Officer. It was pleaded that Vakil Ahmad and Akbar Ali had no concern with the disputed Khatas nor they were in possession over the same. He had claimed that he was in possession over the disputed Khatas as Sirdar. A prayer was made to consolidation authorities to expunge the names of Vakil Ahamad and Akbar Ali and sought recording of his names. Similarly Bhumikashwar , respondent no.5 had filed objections and claimed that plots in village Phulwaria were in his possession. He was a Sirdar of the said land. These objections were submitted to the Assistant Consolidation Officer and several consolidation cases , that is, consolidation cases No.145-151, 153-154, 152, 166-173 and 155-165 were registered. Notices were issued to contesting parties for putting forth their version by the first consolidation court, that is , Assistant Consolidation Officer.
Serious objection was raised before the learned consolidation officer that Sri Akbar Ali said to be grand father of petitioner Mashooq Ahmad had migrated to Pakistan in the year 1964. He was a retired Principal of King George Inter College, Utraula, district Gonda where he had worked from 8.7.1930 to 30.6.64. Much stress was laid that after migration to Pakistan in the year 1964, he became a Pakistani citizen. He had come to India during consolidation operations and stayed in India for three months. During his stay as Pakistani citizen holding a Pakistani pass port, he had executed a gift deed, Hibanama on 23.6.70 in favour of Mashooq Ahmad as a Pakistani citizen . His entry was recorded on his arrival in P.S. Uska, Gorakhpur. As per copy of the Kutumb/Parivar register there was no entry of the name of Akbar Ali in the village. The property had in fact vested in the custodian of enemy property 3 who became owner of the land. It was pleaded that the petitioner Mashooq Ahmad had got more than 12-1/2 acres of land by virtue of gift deed. In view of this, the said gift deed was against law. He had sent a telegram on 10.4.1970 from Karachi, Pakistan to one Abdul Sattar Khan, resident of village Harjanpur, district Gorakhpur that he will be arriving in India. The voter list also does not contain Akbar Ali's name as voter of the village. Other submissions were made to establish that Akbar Ali became a Pakistani citizen and he had no legal right to execute a gift deed in favour of Mashooq Ahmad, petitioner.
All the three consolidation courts have held that Akbar Ali had migrated to Pakistan some time in the year 1964 or 1965. He had acquired Pakistani citizenship, nationality. He visited India on a Pakistani passport after obtaining a visa from India. The visa is issued by the country which is being visited by a foreign national. He was not entitled to execute the gift deed as the property in dispute became an evacuee property of Akbar Ali and he had no right to manage and demonstrate the property after his denouncing the Indian citizenship and becoming a Pakistani citizen. The consolidation courts had not found the possession of Mohd. Yusuf and Bhumikashwar on the plots in dispute. These courts have consequently held that Akbar Ali had ceased to be owner of agricultural land and he had no right to execute the gift deed in favour of Mashooq Ahmad petitioner. The following 14 issues were framed by the consolidation courts in dealing with the 29 suits brought before the consolidation officer while adjudicating those disputes under section 9A of Consolidation of Holdings Act. These were dealt with in detail and findings were recorded taking into account the same:
१- कया भूिि केसर अहिद िििािदत खातो का किित िहबबेनािे के आधार पर अकबर अली के अंश का भूििधर है कबजा है`?
२- कया भूिि केसर पाणडेय िििािदत खातो के गाटो का अकबर अली के अंश का िसरदार ि कबजा है? ३- कया िो. युसफ ु िििािदत खातो को गाटो िे अकबर अली के अंश का िसरदार ि कबजा है? ४- कया िििािदत िहबबेनािा फजी है यिद हां तो उसका पभाि ?
५- कया किित िहबबेनािा फजी है यिद हां तो उसका पभाि?
६- कया इस नयायालय को इस िाद को िनणणय करने का अिधकार है?
७- कया अजीिउलाह आिद गाटा संखया १४७ गाि फुलिािरया के िसरदार ि कबजा है? ८- कया अबदल ु रजाक आिद खाता संखया ४९ गाि िसकरी के सहखातेदार है?
९- कया िो. बखश िृतक का जायज िािरस खाता संखया ४९ गाि िसकरी ि खाता संखया ५३, ५४ गाि रजऊर का कौन है?
१०- कया छोटई गाटा संखया ३७९ गाि िसकरी के िसरदार ि कबजा है?4
११- कया िकील अहिद अकबर अली गाटा संखया १९६/१ गाटा संखया १७७ के िसरदार ि कबजा है?
१२- कया उिरािं आिद गाि रजऊर के खाता संखया ४८ के सहखाते दार ि कबजा है ? १३- कया खाता संखया ५५ गाि रजऊर िे िौला बखश के नाि फजी अंिकत है?
१४- कया रजाक आिद खाता संखया ५५ गाि रजऊर िे सहखातेदार ि कबजा है ? िििािदत गािो के खातो िे फरीकैन के अंश कया है?
In the present case an amendment of the petition was sought after 24 years by the petitioner arraying custodian of enemy property, Mumbai as respondent no.6 and 11 new grounds were added.
Sri M.A.Qadeer , learned senior advocate has challenged the three judgements rendered by the above mentioned consolidation courts on various grounds. It has been contended that the consolidation authorities have absolutely no jurisdiction to determine the question whether an Indian lost his citizenship or not. Sri Akbar Ali who had executed the gift deed on 23.6.70 was an Indian citizen. He remained in India till 1964 and the issue whether he had acquired citizenship of Pakistan, could be determined by Central Government under section 9(2) of the Citizenship Act. Akbar Ali and his parents were born and brought up in India and they throughout remained in India. Under section 7(a) of Administration of Evacuee Property, no property was to be declared as evacuee property. Akbar Ali's property could not have been declared as evacuee property. No proceedings under section 7 or 8 of the Administration of Evacuee Property Act were held. Neither Gaon Sabha nor custodian of evacuee property or custodian of enemy property had filed any objection with regard to property of Akbar Ali. Moreover the case has to be seen in the light of Act No.38 of 2005 notified on 6.9.2005 . There was no pleadings nor evidence by either of the respondents before consolidation officer that the property had become an evacuee property. In the relevant notification issued on 10.9.65 nor in the notification dated 19.12.1971, the disputed land was included in the list of enemy properties. Akbar Ali, even if he had migrated to Pakistan, he did not cease or loose rights to hold property in India. He had a right to transfer the same to his natural heirs. By obtaining any other country's pass port itself does not prove that the person had voluntarily renounced the Indian citizenship. It was also submitted by the learned senior counsel for the petitioner that Sri Akbar Ali initially had gone to Bombay in connection with business. It was pleaded before the consolidation courts 5 that Sri Akbar Ali was in Bombay and had not become a Pakistani citizen.
Sri M.A.Qadeer has drawn attention of the Court to Citizenship Act and the judgments reported in Mohamad Zahir and others Vs. Union of India and others, URC 436, Civil Misc. Writ Petition No.4025 of 1980-Dr. Saeed Ahmad and another Vs. The Custodian of Enemy Property for India and others decided on 9.5.2007 and Union of India and another Vs. Raja Mohd. Amir Mohd. Khan, JT 2005(9)S.C.2005 in support of his submission that the law is settled that a person or authority claiming any property to be an enemy property is obliged to file a civil suit for declaration or approach the authorities under the Enemy Property Act, 1968. All the judgments and order rendered by all the three courts are illegal and without jurisdiction.
Sri M.D.Singh Shekhar , learned counsel for the respondent has opposed the petition and has drawn attention of the Court to the issues framed and findings recorded by the Consolidation Officer, SOC and DDC, Basti in the three judgements. He has submitted that Sri Akbar Ali after serving as Principal in Intermediate College had retired in the year 1964. He had migrated to Pakistan. He had acquired the Pakistani citizenship, which is evident from the fact that he visited India in the year 1970 on a Pakistani passport . He obtained visa. Pakistani citizens are required to make an entry in the nearest Police Station on their arrival in the country or near the place where they are residing for a temporary or longer period. If he would have been an Indian citizen, why he visited P.S. Uska, Gorakhpur to get his place of temporary residence recorded. Since he became a Pakistani national, agricultural land and property was to vest in the custodian. As has been held in the judgments cited by the learned senior counsel for the petitioner, custodian was thereafter required to proceed in accordance with law to take possession. The custodian was required to take effective steps for its preservation. Since Akbar Ali had become a Pakistani citizen, national, he had no right to execute the gift deed . Mashooq Ahmad petitioner had no right to manage and look after administration of the property situate in district Basti left behind in 1964 after his migration to Pakistan and becoming its citizen. The land had vested in the custodian after this event. The consolidation authorities had taken note of this fact. It is not a case where the custodian has dispossessed any one forcibly. After vesting of the property, as per the legal provisions taken note by the Division Benches of this Hon'ble Court, the 6 custodian would take effective steps to preserve and maintain it. If any resistance is caused by any one, then custodian may proceed in accordance with law such as by filing a suit against the person who claims that it is not such a property which vests in the custodian. In the present case it can be safely stated that Akbar Ali, a Pakistani national had no right to vest his property by writing a gift deed or will. He has come all the way during consolidation proceedings to execute the gift deed in favour of his family or said to be grand son. The object of the enemy property Act is to prevent a subject of an enemy State from carrying on business and trading in the property situated in India. It is therefore contemplated that there occurs temporary vesting of the property in the custodian. It was not a case where Akbar Ali had died or someone had claimed the property as heir on succession. It has not been brought to the notice of the Court whether who are sons or daughters of Sri Akbar Ali who had migrated to Pakistan in 1964 or 65. Why there occurred an act of executing a gift deed in favour of grand son or alleged grand son.
Sri M.D.Singh Shekhar has tried to distinguish the case of Saeed Ahmad on the ground that in the present case, the custodian of the enemy property in India was in possession of the property though in the said case there was nothing on record to show that Chaudhary Mohd Rafi had migrated to Pakistan in 1954 and therefore, the property became enemy property and the saledeed in favour of the petitioner was void. In the present case there is sufficient material on record to prove that Akbar Ali was holding a Pakistani pass port and he came to India for a short period during consolidation proceedings and executed a gift deed. He was not an Indian citizen on the date of executing a gift deed, i.e., 23.6.70. The gift deed was null and void and no mutation could have been carried out in the name of petitioner Mashooq Ahmad. He has drawn attention of the Court to Govt. of India notification dated 10.9.65 issued under sub rule(1) of rule 133-v of Defence of India Rules, 1962 by which all the immoveable property in India belong to or held by or managed on behalf of all the Pakistani nationals shall vest in custodian of enemy property for India with immediate effect. In view of this on 23.6.70 Akbar Ali ought not to have executed the gift deed. The land had already vested in the custodian of the enemy property in India with effect from 10.9.65. Another notification was issued on 18.12.71. This was also read in Court.7
I have heard learned counsel for the parties and perused the record.
In the present case all the three consolidation courts right from consolidation officer to DDC, the Apex Authority in the scheme of consolidation of Holding Act while deciding the revision under section 48 of the said Act have held that Sri Aklbar Ali being a Pakistani national was not empowered to execute the gift deed on 23.6.70. The petitioner has claimed his right over the land in dispute in respect of the disputed agricultural plot on the basis of said gift deed executed on 23.6.70. It is an admitted case of the parties that Sri Akbar Ali had worked as a teacher and later on became Principal of King George Inter College, Utraula. After working in this institution from 8.7. 1930 to 30.6.1964, he had retired from service. Initially he had gone to Mumbai and later on migrated to Pakistan. In the first consolidation court, the petitioner Mashooq Ahmad had taken a plea that Sri Akbar Ali was not a citizen of Pakistan, rather he had gone to Bombay for business purpose. Bhumidhari Sanad and certificate issued by K.G.Inter College Utraul, voter list of 1965, Khatauni etc. were produced . From the side of the respondents, the Govt. of India's gazettee notification dated 10.9.65 issued by Custodian of Enemy Property, Bombay and notification dated 18.12.71 issued by Govt. of Inda , Ministry of Foreign Trade were placed on record. In addition to this a telegram dated 10.4.70 sent by Akbar Ali from Karachi, Pakistan was produced. Ram Kumar constable no. 301 , P.S. Uska had appeared in the court and made a statement on 13.12.70. As per entries recorded in the Police Station, Sri Akbar Ali , son of Fateh Mohd. was holding pass port no.639817 issued by Govt. of Pakistan and visa no.1324 was affixed on the pass port issued for three months. Sri Akbar Ali arrived from Karachi Pakistan to vist India for a period of three months. Visa or permit was for a specified period , that is from 12.5.70 to 3.9.70. A Pakistani national on his visit to India is required to get his arrival recorded in the nearest Police Station where he is residing . On the basis of documentary evidence and oral evidence, copy of the telegram dated 10.4.70 sent from Karachi , Pakistani by Akbar Ali regarding his arrival in India etc., the consolidation courts have appreciated these facts and have recorded the finding that Akbar Ali was a Pakistani national. He had acquired the Pakistani citizenship.
He had travelled to India on a Pakistani pass port with a visa affixed for a temporary period of three months in India. The DDC has taken note of Govt. of India's above two notifications issued under the provisions contained in sub rule(1) of rule 133(v) 8 of Defence of India Rules, 1962 and notification dated 18.12.1971 issued under the provision of rule (1) of rule 151 of Defence of India Rules, 1971. The consolidation courts have recorded a categorical finding of fact that Sri Akbar Ali had visited India on a Pakistani pass port. Nothing was brought on record by the petitioner Mashooq Ahmad to demonstrate before the consolidation courts that Akbar Ali was temporarily residing in Pakistan for the purpose of business. He became a Pakistani national and obtained an India visa to visit India . Moreover, if he was an India citizen , there was no necessity of informing the Police Station regarding his arrival and residing in Basti. As a Pakistani national, he has got relevant entry recorded in the Police Station indicating his "pass port number" and "visa number" and period of visa and other details. The property by operation of law on issuance of above said notification had become enemy property. The petitioner himself was responsible for not impleading custodian of enemy property/evacuee property as a party. This has been done in the year 2009. The petitioner has tried to remove this defect by making an amendment in the year 2009 when this petition was listed for final hearing. In the present set of circumstances where on the basis of material on record, oral and documentary evidence it was proved before the consolidation courts that Akbar Ali was not an Indian citizen nor a "tenure holder" as defined under the U.P.Z.A.L.R.Act and Consolidation of Holdings Act and,therefore, he had no right to execute the gift deed on 23.6.70 in respect of an agricultural land in District Basti, U.P. in favour of the petitioner Mashooq Ahmad. The courts have also taken note that Akbar Ali's name also did not find mention in the Kutumb/Pariwar register of the concerned village where the agricultural property is situate. His name was also not found in the voter list of the aforementioned villages in Pargana Bansi, district Gorakhpur. These findings of fact in this regard were also recorded against the petitioner Mashooq Ahmad. Here was not a case where the custodian was required to file a civil suit for declaration of an agricultural land as enemy property or evacuee property. It was a case where a Pakistani national came to India during consolidation operations and had manipulated to execute a gift deed in favour of the petitioner on 23.6.70. His nationality as a Pakistani national holding a Pakistani passport was not in dispute. In Raja Amir Khan's case, son and claimant to the property had always remained in India, never became Pakistani national, while in the present case the dispute is whether Akbar Ali, a Pakistani national can execute a gift deed in favour of some one while coming on a short visit to India on a Pakistani 9 pass port after having obtained an Indian visa from Karachi, Pakistan. The consolidation courts have in fact settled a controversy while exercising their powers under the consolidation operations to settle the agricultural land chaks and to keep correct entries in the revenue and consolidation records. The cases were dealt with in the light of the provisions contained in the Consolidation of Holdings Act and U.P.Z.A.L.R.Act in respect of the ownership and title over the agricultural land in dispute. This fact cannot be ignored that by executing a gift deed, the petitioner was going to have land in excess of 12-1/2 acres beyond the permissible limit which is available to a tenure holder in U.P.. It was beyond the agricultural holding which can be retained by a tenure holder in U.P. .
In view of the above discussion, the writ petition fails and is dismissed. All the consequences shall follow It is held that the consolidation courts had rightly and validly held that the gift deed dated 23.6.70 executed by Sri Akbar Ali, a Pakistani national was null and void and no right shall accrue to the beneficiary. The revenue and consolidation authorities are directed to make correct entries in the revenue and consolidation records. All the necessary consequences shall follow. Sri Akbar Ali's name shall be scored out from the revenue and consolidation entry in respect of the agricultural land in dispute and the records be corrected after carrying out proper investigations and certificate. It is open for the consolidation and revenue authorities to call upon a representative or nominee of the custodian of enemy property, Mumbai and take into account its version while making corrections in the revenue record and hand over possession of the property to the rightful persons including State Govt., Gram Sabha etc..
VPC/ 3.2.2010