Patna High Court - Orders
Noorul Hoda & Anr vs The Union Of India & Ors on 24 September, 2014
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CWJC No.17160 of 2010 (21) 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17160 of 2010
======================================================
1. Noorul Hoda S/O Late Haji Sheikh Rayazul Hassan
2. Dr. Parwez Akhtar S/O Noorul Hoda
Both resident of Mohalla- Mahesh Babu Chowk, P.O.
& P.S.- Brahampura, Distt.- Muzaffarpur, Bihar
.... .... Petitioner/s
Versus
1. Union of India through Its Secretary, Ministry of Home Affairs,
New Delhi-110001
2. The Joint Secretary, FFR, Ministry of Home Affairs, Govt. of India,
Lok Nayak Bhawan, New Delhi-110003
3. Custodian of Enemy Property for India Kaiser Hind
Building, Currimbhoy Road, Ballard Estate, Mumbai-400001
4. The State of Bihar through Its Principal Secretary-cum
Commissioner Revenue and Land Reforms Department, Bihar, Patna
5. The Commissioner, Tirhut Division, Muzaffarpur, Bihar
6. The District Magistrate-cum-Collector, Muzaffarpur, Bihar
7. The Additional Collector, Muzaffarpur
8. The Deputy Collector, Land Reforms, East Muzaffarpur
9. Zafar Masood S/O Late Hazi Zainul Haq President Sharif
Building, Maripur, Power House Chowk, Muzaffarpur-8420012
10. Abu Manzar Siddiqui S/O Late Motiar Rehman R/O
Sharif Building, Maripur, Power House Chowk, Muzaffarpur-842001
.... .... Respondent/s
======================================================
Appearance:
For the Petitioner/s : M/s. Shashi Shekhar Dvivedi, Sr. Advocate
Sangeeta Sharma, Ramayan Kr. Dubey,
Rakesh Chandra, Advocates
For the Respondent I Mr. Rakesh Kr. Singh, Central Government Counsel
For the State: Mr Kumar Alok, Advocate SC 8
Mr. Raj Kumar Singh AC to SC 8
For Intervener : Mr. K.K. Singh, Advocate
Respondent nos. 9 and 10 Mr. Vikash Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
CAV ORDER
21/ 24 -09-20141. Petitioners have prayed for quashing the order passed under sections 5 and 24 of the Enemy Property Act, 1968 on 18.06.2010 by the custodian of Enemy Property for India in respect of plot nos. 71, 71/342, 72/342, 139 and 148 situated in village Chapra Lodi alias Maripur. Petitioners further prayed for issuance of an appropriate writ against the respondents Patna High Court CWJC No.17160 of 2010 (21) 2 restraining them from initiating false and frivolous cases against them.
2. Office of the Custodian of Enemy Property for India received letter no. 101 dated 24.11.1975/27.11.1975 from Anchal Adhikari stating therein that the above stated property belonged to Md. Sarif Punjabi who left the country and went to Pakistan in the year 1962 and never returned to India. Thereafter, one Noorul Hoda got an agreement for sale executed from one Md. Ishaque in respect of property of Md. Sarif Punjabi and similarly, petitioner no.1 got executed registered sale deed in the year 1964 by someone styling as Md. Sarif Punjabi. The above stated letter dated 24.11.1975/27.11.1975 was sent to the Addl. Collector, Muzaffarpur and in response to the aforesaid letter, office of the Custodian of Enemy Property for India received a letter no. 1416/ Muzaffarpur dated 28.06.1977 from Addl. Collector, Muzaffarpur to this effect that the above stated property was an evacue property. Again, office of Custodian of Enemy Property for India received a representation filed by the petitioners on 26.11.2008 stating therein that the above stated property is owned and possessed by them by virtue of sale deed dated 14.07.1964 executed by Md. Sarif Punjabi and accordingly, they claimed that the property in question was not an Enemy Property. One Zafar Masood also filed representation seeking permission to raise his point in respect of suit property. Again, on 05.10.2009 letter no. 2136/ Mu/Su/ Revenue was received in which it was stated that suit property is Enemy Property in the light of Enemy Property Act, 1968. In view of the aforesaid letters as well as representation, the Custodian of Enemy Property for India, considered the matter and having heard the connected persons, passed the impugned order dated 18.06.2010 against which this writ petition has been filed.
Patna High Court CWJC No.17160 of 2010 (21) 3
3. The case of the petitioners is that originally suit property belonged to one Md. Sarif Punjabi who transferred the suit property to petitioner no.1 by executing registered sale deed dated 14.07.1964 and put petitioner no.1 in possession of the suit property. The above stated Md. Sarif Punjabi had purchased the suit property through registered sale deed dated 18.10.1938 and at the time of execution of sale deed dated 14.07.1964, Md. Sarif Punjabi had handed over original sale deed dated 18.10.1938 to petitioner no.1. Petitioner no.1 got mutated his name in revenue record on the basis of sale deed dated 14.07.1964 and accordingly, his name was entered in continuous khatiyan and he started paying rent and rent receipts were also issued in the name of petitioner no.1. Further case of the petitioners is that the suit property was never declared as Enemy Property prior to execution of sale deed dated 14.07.1964 and after execution of sale deed dated 14.07.1964, original owner Md. Sarif Punjabi ceased to have any concern with the suit property. Further case of the petitioners is that during the course of revisional survey, the State of Bihar filed an application before Assistant Superintendent of Survey which was numbered as Objection case no. 72/1977 in which the State of Bihar claimed that the suit property was an evacuee property and prayed for opening khata in respect of suit property in the name of the State of Bihar but the aforesaid objection of the State of Bihar was rejected vide order dated 12.12.1977 against which the State of Bihar preferred Appeal no. 1112/1977 but that, too, was dismissed. Subsequently, revisional survey in respect of suit property was finally published in the name of petitioner no.1.
4. It is not out of place to mention here that one Sri Najmul Hoda filed Title suit no. 117/1964 in the civil court on the basis of so-called agreement for sale said to be executed by one Md. Ishaque, manager of Md. Patna High Court CWJC No.17160 of 2010 (21) 4 Sarif Punjabi in favour of the above stated Najmul Hoda. Similarly, petitioner no.1 also filed Title eviction suit no. 107/1965 in respect of suit property before civil court and both the above stated suits were heard analogously by the then learned Sub Judge V, Muzaffarpur and vide judgment dated 26.09.1975 learned Sub Judge V, Muzaffarpur dismissed Title eviction suit no. 107/1965 observing that sale deed dated 14.07.1964 was illegal, inoperative and fictitious document whereas Title suit no. 117/1964 was decreed in favour of the above stated Najmul Hoda. Against the judgment and decree dated 26.09.1975 passed in Title suit no. 117/1964/107/1965 petitioner no.1 preferred Title Appeal no. 41/1995 and Title Appeal no. 42/1995 but during pendency of the aforesaid title appeals, the parties to the aforesaid title appeals agreed to set at rest their dispute in respect of suit property and accordingly, they entered into compromise and compromise petition was filed in Title Appeal no. 42/1995 whereas a withdrawal petition was filed in Title Appeal no. 41/1995. The then learned Addl. District Judge FTC No. III, Muzaffarpur vide order dated 29.01.2009 permitted the appellant of Title Appeal no. 41/1995 to withdraw the aforesaid appeal and accordingly, Title Appeal no. 41/1995 was dismissed as withdrawn whereas Title Appeal no. 42/1995 was disposed of in the light of compromise petition. It is an admitted position that in compromise petition, it was averred that no agreement for sale had been executed in favour of Najmul Hoda, plaintiff of Title suit no. 117/1964.
5. Further case of petitioners is that one Abu Manzar Siddique (respondent no.10) and one Zafar Masood (respondent no.9) attempted to get themselves impleaded in Title Appeal no. 41/1995 as respondents on the ground that the suit property was an Enemy Property but prayer of both the Patna High Court CWJC No.17160 of 2010 (21) 5 above stated respondents was rejected by the then learned Addl. District Judge FTC No. III, Muzaffarpur in whose court the aforesaid appeals were pending.
6. Further case of the petitioners is that Municipal Corporation, Muzaffarpur issued demand notice in respect of dues of holding tax of the property against the petitioners and petitioner no.1 deposited holding tax of the suit property with Municipal Corporation, Muzaffarpur but on 19.08.2008 Deputy Collector Land Reforms, Muzaffarpur ( East ) issued show cause notice to the petitioners under the provision of Enemy Property Act, 1968 to submit their show cause and in response thereto, show cause was submitted on behalf of the petitioners but Deputy Collector Land Reforms, Muzaffarpur ( East ) did not inform about his decision and thereafter, petitioner no.1 filed an application under Right To Information Act and then the enquiry report of the above stated Deputy Collector Land Reforms, Muzaffarpur ( East ) was supplied to petitioner no.1. Thereafter, petitioner no.1 received notice no. 06/08/45 dated 18.01.2010 from the office of respondent no.3 seeking show cause/explanation of petitioner no.1 in respect of suit property. Petitioner no.1 properly replied on 04.02.2010 and also submitted his written statement and thereafter, on 18.06.2010 the Custodian of Enemy Property for India passed order dated 18.06.2010 holding that the suit property had already been vested in the custodian under the provision of Enemy Property Act, 1968 and thereafter, petitioners have come before this court by filing this writ petition.
7. Respondents have filed their separate counter affidavits but the gist of case of the respondents is that Md. Sarif Punjabi had left India some time in the year 1962 and thereafter, his property became Enemy Property after commencement of Enemy Property Act, 1968. It is also case of Patna High Court CWJC No.17160 of 2010 (21) 6 respondents that so far as sale deed dated 14.07.1964 said to be executed by Md. Sarif Punjabi is concerned, the same had already been declared illegal, void and inoperative and admittedly, Md. Sarif Punjabi had not left his any legal heir in India nor he returned to India after his migration to Pakistan. It is also case of respondents that after enactment of Enemy Property Act, 1968, there was no legal heir of Md. Sarif Punjabi in India and, therefore, after enactment of Enemy Property Act, 1968, property of Md. Sarif Punjabi became Enemy Property.
8. Learned counsel appearing for the petitioners submits that property in question belonged to Md. Sarif Punjabi who went to Pakistan some time in the year 1962-1963 and, therefore, till the year 1963 property of Md. Sarif Punjabi was neither evacuee property nor Enemy Property and, as a matter of fact, Md. Sarif Punjabi returned to India in the year 1964 and executed registered sale deed on 14.07.1964 in favour of petitioner no.1 who after execution of registered sale deed dated 14.07.1964 became owner of the above stated property. He further submits that admittedly, during survey operation, State Government raised objection stating that the suit property was evacuee property but the aforesaid objection of the State Government was rejected up to the appellate court and, therefore, it is apparent that suit property was not an evacuee property. He further submits that in the year 1962, Defence of India Act, 1962 and the Defence of India Rules, 1962 came into force and in exercise of power vested under Rule -133V (1) (b) of the Defence of India Rules, 1962, Central Government issued notification on 10.09.1965 by which all immovable properties in India belonging to or held by or managed on behalf of all Pakistani nationals were vested in the custodian of Enemy Property for India with immediate effect but before Patna High Court CWJC No.17160 of 2010 (21) 7 coming into existence of above stated notification, the petitioners had already purchased the suit property from its original owner Md. Sarif Punjabi and therefore, after execution of sale deed dated 14.07.1964, petitioner no.1 became owner of the suit property and admittedly, petitioner no.1 was citizen of India at the time of above stated notification, therefore, Enemy Property Act, 1968 was not applicable in respect of suit property. He further submits that competent civil court had already considered all the matters and came to the conclusion that the suit property was neither evacuee property nor Enemy Property and, therefore, finding of the civil court can not be nullified by issuance of administrative order or quasi judicial order. He further submits that there were sufficient materials before the custodian of Enemy Property for India at the time of passing order dated 18.06.2010 to show that the petitioners have been coming in possession of the suit property since 14.07.1964 and the private respondents and others including the State of Bihar fought several rounds of litigation against the petitioners in respect of suit property but in almost all the litigations petitioners proved to be winner and their right and title in respect of suit property was never doubted by any competent court and, therefore, the order dated 18.06.2010 passed by the custodian of Enemy Property for India under sections 5 and 24 of the Enemy Property Act, 1968 can not stand in the eye of law.
9. On the other hand, learned counsel appearing for the respondents submits that, no doubt, suit property originally, belonged to Md. Sarif Punjabi who left India some time in the year 1962 or prior to that leaving behind him the suit property and after that one Najmul Hoda filed Title suit no. 117/1964 for specific performance of contract against Md. Sarif Punjabi on the basis of so-called agreement for sale said to be executed by Patna High Court CWJC No.17160 of 2010 (21) 8 one Md. Ishaque on behalf of Md. Sarif Punjabi in favour of Najmul Hoda in respect of suit property. Similarly, petitioner no.1 claimed his ownership over the suit property on the basis of registered sale deed dated 17.06.1964 and he, too, filed Title Eviction suit no. 107/1965 in civil court against Najmul Hoda and others. He further submits that title suit filed on behalf of Najmul Hoda was decreed whereas eviction title suit filed on behalf of petitioner no.1 was dismissed by common judgment and decree. The petitioner no.1 preferred Title Appeal no. 41/1995 and Title Appeal no. 42/1995 against the common judgment and decree passed in Title Eviction suit no. 107/1965 and Title suit no. 117/1964 respectively but during pendency of the aforesaid title appeals, a compromise petition was filed in Title Appeal no. 42/1995 and in the said compromise petition Najmul Hoda admitted that agreement for sale said to be executed by Md. Ishaque on behalf of Md. Sarif Punjabi was imaginary and fictitious document. Similarly, petitioner no.1 also expressed his willingness to withdraw Title Appeal no. 41/1995 and thereafter, petitioner no.1 withdrew Title Appeal no. 41/1995 and relinquished his claim in respect of suit property and judgment passed in Title suit no. 107/1965 attained its finality.
10. Admittedly, originally, suit property belonged to Md. Sarif Punjabi and he left India some time in the year 1962 and went to Pakistan. It is claim of the petitioners that they purchased suit property from Md. Sarif Punjabi on 14.07.1964. Furthermore, it is an admitted position that petitioner no.1 had filed Title Eviction suit no. 107/1965 for eviction of said Najmul Hoda from the portion of the suit property and similarly, said Najmul Hoda filed Title suit no. 117/1964 in respect of suit property for specific performance on the basis of agreement for sale and both the above stated suits were heard and decided together by the learned Sub Judge V, Muzaffarpur on Patna High Court CWJC No.17160 of 2010 (21) 9 26.06.1995 holding that the sale deed dated 14.07.1964 was forged, inoperative and illegal and dismissed Title suit no. 107/1965 whereas decreed Title suit no. 117/1964 directing the aforesaid Najmul Hoda to deposit balance consideration amount for execution of absolute sale deed. Furthermore, it is an admitted position that petitioner no.1 had filed title appeals bearing Title Appeal no. 41/1995 and Title Appeal no. 42/1995 against the judgment and decree pronounced in Title suit nos. 107/1965 and 117/1964 respectively.
11. Annexure J of the counter affidavit filed on behalf of the respondent nos. 1 to 3 is photostat copy of judgment and decree passed in Title suit no. 117/1964 and Title suit no. 107/1965. From perusal of the aforesaid documents, it would appear that both the above stated suits were tried and disposed of analogously by the common judgment and decree dated 26.06.1995. In the aforesaid judgment, the learned Sub Judge V, Muzaffarpur while dealing with genuiness and validity of sale deed dated 14.07.1964 came to the conclusion that sale deed dated 14.07.1964 was not a valid document rather the aforesaid sale deed dated 14.07.1964 was forged and fabricated document. The learned Sub Judge also came to the conclusion that agreement for sale executed in favour of Najmul Hoda was a valid document and he, accordingly, decreed Title suit no. 117/1964 whereas dismissed Title suit no. 107/1965. Petitioner no.1 admittedly, preferred Title Appeal no. 41/1995 in respect of Title suit no. 107/1965 whereas preferred Title Appeal no. 42/1995 in respect of Title suit no. 117/1964. It is also an admitted position that both the above stated title appeals were heard together and the learned Addl. Sessions Judge FTC no. III, Muzaffarpur vide judgment dated 05.12.2006 framed certain issues and referred newly framed issues to be decided by the Patna High Court CWJC No.17160 of 2010 (21) 10 learned Sub Judge V, Muzaffarpur and till receipt of the finding of the court below on those issues, judgment was deferred and the appeals were kept in abeyance. The learned Sub Judge V, Muzaffarpur decided the concerned issues and thereafter sent his findings to the appellate court but during the pendency of the aforesaid appeals, appellant and respondent Ist party of Title Appeal no. 42/1995 filed compromise petition mentioning therein that the sale deed dated 14.07.1964 executed by Md. Sarif Punjabi in favour of appellant of the aforesaid appeal with respect to the disputed property was genuine, legal and for valid consideration and it was also mentioned in the compromise petition that appellant of the aforesaid appeal acquired right and title in respect of suit property on the basis of the above stated registered sale deed dated 14.07.1964 and accordingly, respondents relinquished their claim over the disputed property. Learned appellate court on 29.01.2009 passed order on the above stated compromise petition filed in Title Appeal no. 42/1995 and disposed of Title Appeal no. 42/1995 in the light of compromise petition directing that compromise petition shall be part of the decree. The order dated 29.01.2009 has been brought on record before this court by the respondent nos. 9 and 10 annexing with their counter affidavit as annexure F. From, perusal of order dated 29.01.2009 passed in Title Appeal nos. 41/1995/42/1995, it would appear that Title Appeal no. 42/1995 was disposed of in the terms of compromise petition filed on behalf of the parties of the above stated Title Appeal no. 42/1995 whereas in Title Appeal no. 41/1995 withdrawal petition was filed on behalf of the appellant and accordingly, the aforesaid Title Appeal no. 41/1995 was dismissed as withdrawn. It is an admitted position that order dated 29.01.2009 passed in Title Appeal nos. 41/1995/42/1995 was never challenged before any court by the parties of the Patna High Court CWJC No.17160 of 2010 (21) 11 aforesaid appeals and the aforesaid order dated 29.01.2009 attained its finality. It is not out of place to mention here that Title Appeal no. 41/1995 had been filed by petitioner no.1 against the common judgment and decree passed in Title suit no. 107/1965 in which learned Sub Judge V, Muzaffarpur declared sale deed dated 14.07.1964 illegal, forged and fabricated document. Therefore, it is apparent from the aforesaid facts that after withdrawal of Title Appeal no. 41/1995, findings recorded by the learned Sub Judge V, Muzaffarpur in respect of sale deed dated 14.07.1964 attained its finality and now, petitioners can not say that sale deed dated 14.07.1964 is a legal document and furthermore, petitioners can not claim any right title and possession in respect of suit property on the basis of sale deed dated 14.07.1964. Therefore, it is obvious from the aforesaid facts that the petitioners had already lost their battle in respect of suit property. It is an admitted position that Md. Sarif Punjabi went to Pakistan in the year 1962 and after some time, he became Pakistani national.
12. It is not out of place to mention here that consequent on aggression by Pakistan in 1965 immoveable and some specified moveable properties in India were vested in the custodian of Enemy Property for India and the above stated vestments were made under the power derived from the Defence of India Rules, 1962 and the above stated properties were being administered by the custodian of Enemy Property for India in accordance with the provision of the Defence of India Rules, 1962 and orders made thereunder. Furthermore, the proclamation of the emergency was revoked with effect from 10.01.1968 and consequently, the power under the Defence of India Act, 1962 and the rules made thereunder were to remain in force only for a period of six months thereafter up to 10th July, 1968 and, thereafter, the Patna High Court CWJC No.17160 of 2010 (21) 12 Enemy property Act, 1968 came on 20.08.1968 to provide mainly for the continued vesting of enemy property vested in the Custodian of Enemy property for India under the Defence of India Rules, 1962.
Here, I would like to refer Section 5 of the aforesaid Enemy Property Act, 1968 which runs as follows:-
Property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 to continue to vest in Custodian---
(1) Notwithstanding the expiration of the Defence of India Act, 1962 and the Defence of India Rules, 1962, 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 this Act, shall, as from such commencement, vest in the Custodian. (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 of 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.
13. From bare perusal of the above stated provision, it would appear that vesting of Enemy Property was a continuous process and all such properties whether detected during the vesting period between 10.09.1965 to 26.09.1977, when the amendment Act came into force or any time, thereafter continued to remain vested in the Custodian of Enemy Property for India. Therefore, it is obvious from the above stated provisions as well as facts of the present case that the property left by Md. Sarif Punjabi in the year 1962 who became Pakistani national vested in the custodian of Enemy Property for India after issuance of notification dated 10.09.1965 by Central Government Patna High Court CWJC No.17160 of 2010 (21) 13 in exercise of power vested under Rule 133 V (1) (b) of the Defence of India Rules, 1962 as after Md. Sarif Punjabi, there was no claimant of the aforesaid property in India and being enemy property, property of Md. Sarif Punjabi was vested in the custodian of Enemy Property for India.
14. No doubt, petitioners paid rent of the property of Md. Sarif Punjabi to Municipal Corporation but mere paying rent does not give any right and title to the petitioners in respect of the aforesaid property of Md. Sarif Punjabi because the Defence of India Act, 1962 was to remain in force during the period of operation of the proclamation of emergency and for a period of six months thereafter.
15. Admittedly, on 10.01.1968 the proclamation of emergency was revoked and six months thereafter i.e. 10.07.1968 the Defence of India Act, 1962 ceased to remain in force but prior to that on 10.09.1965 the Union of India already issued a notification according to which all immovable property in India belonging to or held by or managed by all Pakistani nationals vested in the Custodian of Enemy Property for India with immediate effect.
16. Admittedly, Defence of India Rules, 1962 was framed under the power given in the Defence of India Act, 1962 and the sub Rule (1) of Rules 133-V of the Defence of India Rules, 1962 does not require any notification or order specifying Enemy Properties which were in the Custodian of Enemy Property and therefore, in view of the aforesaid provisions, it would appear that that after coming into force of the Defence of India Act, 1962 as well as the Defence of India Rules, 1962 coupled with the above stated notification dated 10.09.1965, the property of Md. Sarif Punjabi vested in the Custodian of Enemy Property for India as Md. Sarif Punjabi had already left India and became Pakistani national.
Patna High Court CWJC No.17160 of 2010 (21) 14
17. Therefore, on the basis of the aforesaid discussions, I am of the opinion that this writ petition does not have any merit and is liable to be dismissed. Accordingly, this writ petition stands dismissed.
(Hemant Kumar Srivastava, J) shahid U