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2023 DIGILAW 1933 (ALL)

Raza Hussain @ Raja Miyan v. Addl. Commissioner

2023-08-10

SAURABH LAVANIA

body2023
JUDGMENT : SAURABH LAVANIA, J. 1. Supplementary affidavit filed by the learned counsel for the petitioner in the Court today is taken on record. 2. Heard Sri Mahendra Pratap Singh, learned counsel appearing for the petitioner, Sri Hemant Kumar Pandey, learned State counsel appearing for the respondent Nos. 1 & 2 and Sri Dilip Kumar Pandey, learned counsel appearing for the respondent No. 3/Gram Sabha concerned. 3. By means of this petition, the petitioner has challenged the order dated 12.01.2023 passed by the respondent No. 1/Additional Commissioner, Lucknow Mandal, Lucknow in a revision filed under Section 333 Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (in short “Act of 1950”) registered as Case No. 1319 of 2016, Computerized Case No. C20161000001319 (Raza Hussain @ Raja Miyan vs. State of U.P.) whereby, the respondent No. 1 dismissed the revision preferred by the petitioner and affirmed the order dated 08.06.2016, which is also in issue in this petition, passed by the respondent No. 2/Assistant Collector First, Additional Court, Sitapur in Case No. D2013106400123 (Raza Hussain @ Raja Miyan vs. State of U.P.) filed under Section 229-B of the Act of 1950. 4. By the order dated 08.06.2016, the respondent No. 2 dismissed the suit/case preferred by the petitioner for declaration of rights under Section 229-B of the Act of 1950. 5. The suit/case, indicated above, was filed in relation to Khata No. 123, Gata Nos. 87/3, 428, 193/1.250, 835/0.304, 891/0.170, 892/0.174, 893/0.174, 905Ka/0.158, 907/0.235, 908Ka/0.089, 910/0.113, 911/0.166, 913/0.166, 1002/0.231, 1003/0.275, 1004/0.214, 1008/0.138, 1009/0.304, 1012/0.267, 1053/0.300, 1056/0.235, 1057/0.255, 1059/0.352, 1063/0.300, 1148/0.275, 1208/0.138, 1209/0.437, 1210Ka/0.295, 1212/0.223, 1213/0.368, 1214/0.251, 1215/0.375, 1218/1.41, 1260/0.016, 1383/0.089, 1410/0.328, 1412/0.267, 1491/0.336, 1011/1497/0.206. 6. It would be apt to notice that it is an admitted case of the petitioner that the entry in revenue record (Khatauni) of the property in dispute of the Fasli Year 1360 (revenue record of 1950th year of the Common Era) indicates that the property is being managed by Custodian (Jere Intijam Custodian Sahab Bahadur Zila Sitapur). 7. 6. It would be apt to notice that it is an admitted case of the petitioner that the entry in revenue record (Khatauni) of the property in dispute of the Fasli Year 1360 (revenue record of 1950th year of the Common Era) indicates that the property is being managed by Custodian (Jere Intijam Custodian Sahab Bahadur Zila Sitapur). 7. The land, in issue in suit was recorded as ‘enemy property’ in the revenue records and taking note of the said entry in revenue records, the suit/case was dismissed on the ground that in view of Section 18-B of Enemy Property Act, 1968 (in short “Act of 1968”), the same is not maintainable, as would appear from the operative portion of the order dated 08.06.2016, which on reproduction reads as under: 8. The Revisional Authority/respondent No. 1 also affirmed the order dated 08.06.2016 passed by the respondent No. 2 vide order impugned dated 12.01.2023. 9. In the aforesaid background of the case, the present petition has been filed before this Court under Article 226 of the Constitution of India. 10. Assailing the impugned orders dated 08.06.2016 and 12.01.2023, learned counsel for the petitioner says that in the instant case, Section 18-B of the Act of 1968 is not attracted, as such, the suit/case, in issue, was maintainable and being so, the same ought to have been decided on merits and in dismissing the same vide order dated 08.06.2016 on the ground of maintainability taking note of Section 18-B of the Act of 1968, the Court/Authority concerned committed error in law and fact both and the order of affirmation passed by the Revisional Authority/respondent No. 1 dated 12.01.2023, without deciding the issue of maintainability of suit in its true spirit, is also unsustainable in the eye of law. 11. He further submitted that the entry made in revenue record appears to be without there being any order by the competent Authority in this regard. In fact, there is no order of any Authority under the Act of 1968 in compliance of which, entry was made in revenue records and before the Custodian, only an ‘order’ can be challenged, as such also, the orders impugned are unsustainable in the eye of law. 12. In fact, there is no order of any Authority under the Act of 1968 in compliance of which, entry was made in revenue records and before the Custodian, only an ‘order’ can be challenged, as such also, the orders impugned are unsustainable in the eye of law. 12. In addition, he submitted that earlier the suit, in issue, was dismissed vide order dated 12.01.1997 and thereafter the case was remanded back vide order passed in the appeal dated 26.04.1999. Second time again, the suit, in issue, was dismissed vide order dated 30.05.2003 and thereafter, the Appellate Authority passed the order dated 19.07.2004 and remanded the matter back before the Court concerned for deciding the same afresh. The order dated 19.07.2004 was modified vide order dated 21.12.2004, wherein, it has been observed that if any order passed under the Act of 1968 or record of the said case is produced then the same shall also be considered while taking decision in terms of the order of remand. However, neither any order passed under the Act of 1968 was produced nor the record of any case under the Act of 1968 was produced and despite this, the impugned orders have been passed. In these circumstances of the case, indulgence of this Court is required in the matter. The prayer is to allow this petition with cost. 13. Opposing the present petition, Sri Hemant Kumar Pandey, learned State counsel says that so far as the remand order is concerned, a perusal of record including the order dated 19.07.2004 modified vide order dated 21.12.2004 would show that the Appellate Authority remanded the matter back only on the ground that the trial Court, while dismissing the case, failed to take note of documentary evidence placed by the petitioner and in modification order dated 21.12.2004, the competent Authority has been directed to consider the record or order related to the Act of 1968, if placed before him, but at this time as also on earlier occasion when the matter was remanded back, the Act of 1968 was not amended. The Act of 1968 was amended vide Act No. 3 of 2017 namely Enemy Property (Amendment and Validation) Act, 2017. The Act of 1968 was amended vide Act No. 3 of 2017 namely Enemy Property (Amendment and Validation) Act, 2017. In this case, relevant provisions of the Act of 1968 are Section 18-B and Section 22-A. As per Section 22-A, Section 18-B would have a retrospective effect i.e. it would be applicable from the date from which the Act of 1968 was promulgated and came into force. As such, the trial Court was under obligation, before entering into the merits of the case, to consider the issue pertaining to Section 18-B of the Act of 1968 and upon due consideration, the trial Court dismissed the suit and thereafter, the Revisional Authority/respondent No. 1 affirmed the order of trial Court/respondent No. 2 dated 08.06.2016 vide order impugned dated 12.01.2023. As such, the submission of petitioner’s counsel based upon the order(s) of remand has no force. 14. It is further stated that the language couched under Section 18-B does not say that the Custodian has to approach only against an ‘order’ passed. It says that otherwise provided in this Act, no civil court or authority shall have jurisdiction to entertain any suit or proceedings in respect of any property, subject matter of this Act, as amended by the Enemy Property (Amendment and Validation) Act, 2017, or any action taken by the Central Government or the Custodian in this regard. Thus, an ‘order’ is not required for approaching the Custodian related to dispute of the property recorded as ‘enemy property’ including the declaration of rights or expunging the said entry from the revenue records. 15. At this stage, learned counsel for the petitioner based upon Section 18-C of the Act of 1968, which provides appeal to High Court, says that in this Section, expression “order” has been indicated, as such, only an ‘order’ can be challenged before Custodian. 16. The aforesaid submission based upon Section 18-C of the learned counsel for the petitioner is completely fallacious because this Section relates to approaching this Court by means of appeal, if any person is aggrieved by any order passed by the Custodian and in this regard, expression “order” has been indicated in Section 18-C. At this stage, petitioner’s counsel, for the purposes of interfering in the impugned orders also referred Section 3 of the Act of 1968, which relates to appointment of Custodian. This aspect is not liable to be considered by this Court, as in this petition based upon Section 3 of the Act of 1968, no ground has been taken. Moreover, in view of Section 18-B of the Act of 1968, the Civil Court or Authority is not empowered to enter into the merits of the case on the fact pertaining to appointment of Custodian and record a finding. 17. Considered the submissions advanced by the learned counsel for the parties and perused the record. 18. The issue before this Court relates to jurisdiction of Revenue Court and being so, this Court is not taking note of factual aspects of the case, as any observation on the facts/merits of the case would affect the rights of the parties before appropriate forum/court. 19. In order to examine the issue of maintainability of the suit filed by the petitioner for declaration of rights over the property, indicated above, under Section 229-B of the Act of 1950, it would be appropriate to reproduce Sections 18, 18B, 18C and 22A of the Act of 1968: “18. Transfer of property vested as enemy property in certain cases - 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. 18B. Exclusion of jurisdiction of civil courts - Save as otherwise provided in this Act, no civil court or authority shall have jurisdiction to entertain any suit or proceedings in respect of any property, subject matter of this Act, as amended by the Enemy Property (Amendment and Validation) Act, 2017, or any action taken by the Central Government or the Custodian in this regard. 18C. 18C. Appeal to High Court - Any person aggrieved by an order of the Central Government under section 18 of this Act, may, within a period of sixty days from the date of communication or receipt of the order, file an appeal to the High Court on any question of fact or law arising out of such orders, and upon such appeal the High Court may, after hearing the parties, pass such orders thereon as it thinks proper: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation: In this section, “High Court” means the High Court of a State or Union territory in which the property referred to in section 18 is situated. 22A. Validation - Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority: (a) the provisions of this Act, as amended by the Enemy Property (Amendment and Validation) Act, 2017, shall have and shall always be deemed to have effect for all purposes as if the provisions of this Act, as amended by the said Act, had been in force at all material times. (b) any enemy property divested from the Custodian to any person under the provisions of this Act, as it stood immediately before the commencement of the Enemy Property (Amendment and Validation) Act, 2017, shall stand transferred to and vest or continue to vest, free from all encumbrances, in the Custodian in the same manner as it was vested in the Custodian before such divesting of enemy property under the provisions of this Act, as if the provisions of this Act, as amended by the aforesaid Act, were in force at all material times. (c) no suit or other proceedings shall, without prejudice to the generality of the foregoing provisions, be maintained or continued in any court or tribunal or authority for the enforcement of any decree or order or direction given by such court or tribunal or authority directing divestment of enemy property from the Custodian vested in him under section 5 of this Act, as it stood before the commencement of the Enemy Property (Amendment and Validation) Act, 2017 and such enemy property shall continue to vest in the Custodian under section 5 of this Act, as amended by the aforesaid Act, as the said section, as amended by the aforesaid Act was in force at all material times. (d) any transfer of any enemy property, vested in the Custodian, by virtue of any order of attachment, seizure or sale in execution of decree of a civil court or orders of any tribunal or other authority in respect of enemy property vested in the Custodian which is contrary to the provisions of this Act, as amended by the Enemy Property (Amendment and Validation) Act, 2017, shall be deemed to be null and void and notwithstanding such transfer, continue to vest in the Custodian under this Act.” 20. As per Section 18B, no Civil Court or Authority shall have jurisdiction to entertain any suit or proceedings in respect of any property recorded as ‘enemy property’. 21. Section 22A, provides retrospective effect and accordingly Section 18B inserted vide Act No. 3 of 2017 would be applicable to the suit, in issue, instituted by the petitioner. 22. Needless to say that Act of 1968 is an special Act and being so, the same would have an overriding effect on any other statute or provision including Section 229-B of the Act of 1950, which provides remedy to an aggrieved person for instituting a suit for declaration of rights over an agricultural land. 23. 22. Needless to say that Act of 1968 is an special Act and being so, the same would have an overriding effect on any other statute or provision including Section 229-B of the Act of 1950, which provides remedy to an aggrieved person for instituting a suit for declaration of rights over an agricultural land. 23. After considering the remedy of Appeal before the High Court, as provided under Section 18C and the scheme of the Act of 1968, which was enacted to provide for the continued vesting of enemy property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 and for the matter connected therewith and came into force w.e.f. 10.07.1968, as also that it is an admitted case of the petitioner that the entry in revenue record (Khatauni) of the property in dispute of the Fasli Year 1360 (revenue record of 1950th year of the Common Era) indicates that the property is being managed by Custodian (Jere Intijam Custodian Sahab Bahadur Zila Sitapur) and also the provisions of unamended/original Act of 1968, including Section 2(b), 2(c) and Section 18, this Court is of the opinion that in the instant case the expression(s) ‘an order vesting a property as enemy property in the Custodian’ and ‘receipt of such order’ or ‘from the date of publication in the Official Gazette’ mentioned in Section 18 as also the word ‘order’ mentioned in other sections of the Act of 1968 in-served vide Act No. 3 of 2017, would not empower the Civil Court or Authority to adjudicate the issue related to the revenue entry in favour of the Custodian in view of Section 18B, as this section specifically excludes the jurisdiction of the Civil Court or Authority. 24. Accordingly, in the view of this Court, the question related to validity of the entry in revenue records including the question as to whether the entry in revenue record is based upon the order vesting a property as enemy property in favour of Custodian has to be decided by the Authority under the Act of 1968. 25. For the foregoing reasons, this Court finds that the petition has no force. It is misconceived and dismissed accordingly.