Allahabad High Court
Manish Kumar vs State Of U.P. Thru Secy. Finance And ... on 11 November, 2019
Bench: Ramesh Sinha, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 1 Case :- WRIT - C No. - 54312 of 2008 Petitioner :- Manish Kumar Respondent :- State Of U.P. Thru Secy. Finance And Revenue And Others Counsel for Petitioner :- Rajesh Kuamr Singh Counsel for Respondent :- C.S.C.,Manoj Kumar,Subodh Kumar with Case :- WRIT - C No. - 52994 of 2008 Petitioner :- Satish Kumar Goel Respondent :- State Of U.P. Thru Secy. Finance And Revenue And Others Counsel for Petitioner :- Rajesh Kumar Singh Counsel for Respondent :- C.S.C.,Subodh Kumar with Case :- WRIT - C No. - 51053 of 2008 Petitioner :- Rakesh Kumar Respondent :- State of U.P. and Others Counsel for Petitioner :- Rajesh Kumar Singh,B.N. Asthana,Manoj Nigam Counsel for Respondent :- C.S.C.,Subodh Kumar with Case :- WRIT - C No. - 51056 of 2008 Petitioner :- Jaipal Singh Respondent :- State Of U.P. Thru Secy. Finance And Others Counsel for Petitioner :- Rajesh Kumar Singh,B.N. Ashthana Counsel for Respondent :- C.S.C.,A.S.G.I.,Dr. A.K. Nigam,Subodh Kumar with Case :- WRIT - C No. - 52993 of 2008 Petitioner :- Smt. Kailasho Devi Respondent :- State Of U.P. Thru Secy. Finance And Revenue And Others Counsel for Petitioner :- Rajesh Kumar Singh Counsel for Respondent :- C.S.C.,Subodh Kumar Hon'ble Ramesh Sinha,J.
Hon'ble Ajit Kumar,J.
(Per Sinha 'J' for the Bench)
1. Heard Sri Rajesh Kumar Singh, learned counsel for the petitioner and Sri Udit Chandra, holding brief of Sri Subodh Kumar learned counsel appearing for Respondent Nos. 5 and 6 and learned Standing Counsel appearing for the State-Respondent and perused the record.
2. All these petitions raise common question of law and, therefore, are decided by this common order and the Writ Petition 54312 of 2008 (Manish Kumar Vs. State of U.P. through Secretary, Finance and Revenue and others) is taken as a leading case. The facts narrated in the said writ petition are referred hereunder.
3. By means of this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 6th September, 2008 passed by Respondent No.2, namely, the District Magistrate, Muzaffar Nagar by which the name of the recorded original tenure holder over the land in question has been directed to be struck off holding the property to be an enemy property.
4. Briefly stated facts of the case are that the original tenure holder Smt. Shafiya Khatoon, widow of late Zaki Mohammad, left for Pakistan in the year December, 1974 and acquired citizenship of that country on 6.5.1976. However, since she was owning the property in India, she came here back on 17.12.2007 and executed a sale deed on 17.12.2007 in favour of the petitioner, copy whereof has been annexed as Annexure-5 to the writ petition. Her name came to be struck off from the revenue records of the land by the order of the Collector on 9.9.2008 treating the property to be enemy property, vested in the custodian of the enemy property by operation of law.
5. Assailing the order impugned the argument advanced by learned counsel for petitioner is that he is a bona fide purchaser of the property in question and that the original tenure holder had every right to execute sale deed in respect of the land in question. He submits that she was recorded tenure holder in the capacity of Bhumidhar with transferable rights and, therefore, she had every right to execute sale deed in respect of the said land and the Collector while passing the order, ought to have issued notices to the original tenure holder but from the order impugned it does not transpire that any such notice was ever issued to the petitioner or published for that matter.
6. Per contra the argument advanced by learned counsel appearing for the Respondent No.6 is that the property in question has stood vested in the Custodian of Enemy Property by virtue of provision as contained under the Enemy Property Act, 1968 (for short 'Act of 1968') enacted on 20th August, 1968 and he submits that as a consequence to the aggression by Pakistan in 1971 the proclamation of emergency took place w.e.f. 3rd December, 1971 under the Defence of India Act, 1971 and the Rules framed thereunder. He submits that all the immovable and specified immovable property characterised as Pakistani property in India were vested in the Custodian of Enemy Property. Taking recourse provisions of Indian Rules 1971 and the orders made thereunder, he submits proclamation of emergency though was revoked on 20th September, 1977 but the question arose of the validation of Enemy Property Act, 1968 which could have continued beyond the period of six months from the date of revocation of emergency and accordingly the Enemy Property (Amendment) Ordinance 1977 was promulgated under the signature of the Vice-President of India issued on 23rd September, 1977. The said Ordinance came to be replaced by the Act called the Custodian of Enemy Property Amendment Act, 1977 (for short Amendment Act, 1977). Thus according to the petitioner the Defence of India Rules remained in force beyond 27.9.1977 hence he submits that since the original tenure holder had left Pakistan in 1974 and obtained its nationality in 1977 during proclamation of emergency that land stood automatically vested by fiction of law in the Custodian of Enemy Property. For convenience to appreciate the argument advanced by learned counsel for the Respondent, Sub-section 2 of Section 5 as came to be inserted vide the Amendment Act of 1977, in the Enemy Property Act, 1968 is reproduced as under:
[2] Notwithstanding the expiration of the Defence of India Act, 1971 and the Defence of India Rules, 1971, all enemy property vested before such expiration in the Custodian of Enemy Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of the Enemy Property (Amendment) Act, 1977 shall, as from such commencement, vest in the custodian].
7. A bare reading of the aforesaid provision make it quite explicit that while the Defence of Indian Rules, 1971 and the Defence of India Act, 1971 were in force, if the properties of the Pakistani National in India continued to be vested in Custodian of Enemy Property and the status as such has continued on the date of coming into force Enemy Property Amendment Act, 1977, shall from such commencement after Act, 1977 vest in the custodian. As referred to hereinabove that Defence of Indian Rules and the Act of 1971 proclaimed on 4th December, 1971 were to continue during proclamation of emergency and, however, beyond period of six months from the date of revocation of emergency, the Original Tenure Holder of Smt. Shafiya Khatoon we find her to have left for Pakistan in 1974 and acquired nationality of that country in 1977 while the emergency was in force and, therefore, the property in question stood vested in the custodian of Enemy Property.
8. Learned counsel for the respondent has further placed reliance upon the newly substituted Section 6 of the Act of 1968 by virtue of Section 6 of the Enemy Property (Amendment and Validation) Act, 2017 and submits that property once vested under the Act of 1968 and the Amendment Act, 1977, if has continued to vest with the Custodian of Enemy Property on the date of commencement of the Validation Act, 2017, any transfer of such property shall be void and shall always be deemed to have been void.
9. Section 6 of the Validation Act, 2017 runs as under:
6. On and from the date of commencement of the principal Act, for section 6 of the principal Act, the following section shall be substituted and shall always be deemed to have been substituted, namely:-
"6.(1) No enemy or enemy subject or enemy firm shall have any right and shall never be deemed to have any right to transfer any property vested in the Custodian under this Act, whether before or after the commencement of this Act and any transfer of such property shall be void and shall always be deemed to have been void.
(2) Where any property vested in the Custodian under this Act had been transferred, before the commencement of the Enemy Property (Amendment and Validation) Act, 2017, by an enemy or enemy or enemy subject or enemy firm and such transfer has been declared, by an order, made by the Central Government, to be void, and the property had been vested or deemed to have been vested in the Custodian [by virtue of the said order made under section 6, as it stood before its substitution by section 6 of the Enemy Property (Amendment and Validation) Act, 2017] such property shall, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, continue to vest or be deemed to have been vested in the Custodian and no person (including an enemy or enemy subject or enemy firm) shall have any right or deemed to have any right (including all rights, titles and interests or any benefit arising out of such property) over the said property vested or deemed to have been vested in the Custodian."
10. Thus the legislative intent, it is argued, is that since 1968 the Act continued in its operation with its validation from time to time; first in the year 1977 and then in the year 2017, the property left by person who migrated to Pakistan and then acquired its citizenship before 1977, the property of such Pakistani national left behind in India, stood vested in Custodian of the Enemy Property in 1977 itself with the commencement of 1977 Amendment Act in respect of Act of 1968.
11. In the above view of the matter it is urged by learned counsel for the Respondent that no sale of such property would have taken place after 1977 under any circumstance.
12. At this stage learned counsel for the petitioner submits that on the date of sale deed in the year 2007, the name of the original tenure holder was continuing in the revenue records and so the petitioner has been a bona fide purchaser and the respondent, therefore, before changing the entry at least should have caused public notice issued. A tenure holder who continues to be recorded and has executed a sale deed, the purchaser has a genuine legitimate expectation that if revenue entry is sought to be changed, a notice to concerned and if a recorded tenure holder not traceable, issuance of notice to public at large is a must. He submits that he may, at least be permitted to raise his grievance under the Enemy Property (Amendment and Validation) Act, 2017 as the competent authority is provided thereunder and so his grievance can be addressed to by the Central Government under the newly substituted section 18 of the Act of 1968 by virtue of Section 12 of the Validation Act, 2017. Section 12 of the Act, 2017 runs as under:
"12. For section 18 of the principal Act, the following section shall be substituted, namely:-
"18. The Central Government may, on receipt of a representation from a person, aggrieved by an order vesting a property as enemy property in the Custodian within a period of thirty days from the date of receipt of such order or from the date of its publication in the Official Gazette, whichever is earlier and after giving a reasonable opportunity of being heard, if it is of the opinion that any enemy property vested in the Custodian under this Act and remaining with him was not an enemy property, it may by general or special order, direct the Custodian that such property vested as enemy property in the Custodian may be transferred to the person from whom such property was acquired and vested in the Custodian."
13. Learned counsel appearing for the Respondent No.6 submits that he has no objection in case the petitioner moves an appropriate representation before the Central Government for consideration of his claim regarding rights and tile qua the land in question.
14. Accordingly, we deem it appropriate to dispose of this petition at this stage granting liberty to the petitioner to move an appropriate representation before the Central Government within a period of eight weeks from today and we further direct that in the event any such representation is made, the competent authority of the Central Government shall look into the grievance of the petitioner raised in the representation and shall dispose of the same as expeditiously as possible within a further period of eight weeks.
15. We may further clarify that any order shall be passed only in accordance with law addressing the grievance of the petitioner and the order shall be reasoned and speaking one and with due consideration of relevant laws discussed hereinabove.
Order Date :- 11.11.2019 Manish Tripathi (Ajit Kumar,J.) (Ramesh Sinha,J.)