# Manish Kumar v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-11
- **Case number:** WRIT - C No. 54312 of 2008
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-kumar-v-state-of-u-p-ors-45112
- **Pages:** 5

## Headnote

(A) Civil Law - Enemy Property Act, 1968 -
Section 18 - Defence of India Act, 1971 -
Indian Rules 1971 , Custodian of Enemy
Property Amendment Act, 1977 - Defence
of Indian Rules, 1971 - Enemy Property
(Amendment and Validation) Act, 2017 -
Section 6 , Section12 - 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 - if a recorded tenure
holder not traceable, issuance of notice to
public at large is a must - permitted to
raise his grievance under the Enemy
Property (Amendment and Validation) Act,
2017 as the competent authority is
provided thereunder - 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.
(Para-12)

Petitioner (original tenure holder) - left for
Pakistan in the year December, 1974 - acquired
citizenship of that country on 6.5.1976 - owning
the property in India - she came here back on
17.12.2007
- executed a sale deed
on
17.12.2007 - 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. (Para - 4)

HELD: - Petitioner granted liberty to move an
appropriate representation before the Central
Government for consideration of his claim regarding
rights and tile qua the land in question within a
period of eight weeks from today, 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. (Para-13,14)

Petition disposed of. (E-7)

## Text

9 All. Manish Kumar Vs. State of U.P. & Ors.
769
(2020)09ILR A769
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

WRIT - C No. 54312 of 2008
with
WRIT - C No. 52994 of 2008
with
WRIT - C No. 51053 of 2008
with
WRIT - C No. 51056 of 2008
with
WRIT - C No. 52993 of 2008

Manish Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Manoj Kumar, Sri Subodh Kumar

(A) Civil Law - Enemy Property Act, 1968 -
Section 18 - Defence of India Act, 1971 -
Indian Rules 1971 , Custodian of Enemy
Property Amendment Act, 1977 - Defence
of Indian Rules, 1971 - Enemy Property
(Amendment and Validation) Act, 2017 -
Section 6 , Section12 - 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 - if a recorded tenure
holder not traceable, issuance of notice to
public at large is a must - permitted to
raise his grievance under the Enemy
Property (Amendment and Validation) Act,
2017 as the competent authority is
provided thereunder - 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.
(Para-12)

Petitioner (original tenure holder) - left for
Pakistan in the year December, 1974 - acquired
citizenship of that country on 6.5.1976 - owning
the property in India - she came here back on
17.12.2007
- executed a sale deed
on
17.12.2007 - 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. (Para - 4)

HELD: - Petitioner granted liberty to move an
appropriate representation before the Central
Government for consideration of his claim regarding
rights and tile qua the land in question within a
period of eight weeks from today, 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. (Para-13,14)

Petition disposed of. (E-7)

(Delivered by Hon'ble Ramesh Sinha, J.)

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 StateRespondent 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
770 INDIAN LAW REPORTS ALLAHABAD SERIES
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, Subsection 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:
9 All. Manish Kumar Vs. State of U.P. & Ors.
771

[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
772 INDIAN LAW REPORTS ALLAHABAD SERIES
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
9 All. Shyam Narayan Yadav Vs. State of U.P. & Anr.
773
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.
----------
(2020)09ILR A773
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

WRIT - C No. 62727 of 2017

Shyam Narayan Yadav ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Nand Kishore Singh, Sri Kunal Shah, Sri
Rahul Agarwal

Counsel for the Respondents:
C.S.C.

(A) Civil Law - Legal Remembrancer
Manual - clause 7.06 - Engangement and
renewal , clause 7.07 - Political Activity ,
clause
7.08
-
Renewal
of
duration-
appointment
of
Government
Law
Officers/Counsel/Pleader - it is the duty
of the Government to act in a fair,
reasonable, objective and in a nondiscriminative manner -action of the State
Government
in
the
matter
of
such
contractual appointments can be tested by
way of judicial review - no lawyer has any
vested right to be reappointed or to get
his
term
renewed
as
a
District
Government Counsel/Additional District
Government Counsel as a matter of right
even though his integrity and work may
be reported to be good and that the
opinion of the District Judge will have
supremacy - Arbitrariness shall vitiate the
administrative order.(Para - 14,15,19)

Petitioner initially appointed on the post of
Assistant District Government Counsel (Criminal)
- post of District Government Counsel (Criminal)
fell vacant - petitioner duly applied for the post -
term was going to expire - applied for renewal -
respondent no.1(District magistrate ) refused to
renewal the term of the petitioner on the post of
District Government Counsel (Criminal) without
assigning
any
reasons
as
to
why
the
recommendations made by the District Judge
was not accepted - impugned order does not
record any such satisfaction and the entitlement
of the petitioner does not appear to have been
considered in the light of the provisions of Legal
Remembrancer's Manual as also the decisions
referred to herein-above. (Para-3,6,32)

HELD:- Impugned order dated 27.10.2017
passed by the respondent no.1 is set aside and
the
consequential
communication
dated
1.11.2017 is also set aside. However, this order
would not amount to re-engagement of the
petitioner or his continuance. Matter shall be
decided afresh keeping in view the observations
made as well as the provisions of Legal
Remembrancer's Manual within a period of four
months. (Para-32,33)

Petition allowed. (E-7)

List of Cases cited: -

1. Kumari Shrilekha Vidyarthi Vs St. of U.P. &
ors. , AIR 1991 SC 537

2. Virendra Pal Singh Rana Vs St. of U.P. & ors.,
(2003) 52 ALR 302

3. St. of U.P. & ors. Vs Ashok Kumar Nigam,
(2013) 3 SCC 372