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2022 DIGILAW 1648 (ALL)

Ahmad Aijaz v. State of U. P.

2022-10-12

CHANDRA KUMAR RAI

body2022
JUDGMENT : 1. Heard Sri Ashish Kumar Singh, learned counsel for the petitioners and Sri B.N. Pathak, learned Standing Counsel for respondent nos.1 to 4. 2. Brief facts of the case are that property in question Khewat No.1/1 and 3 Mahal Umar Daraj Ali Khan Kasba and District-Muzaffar Nagar belongs to predecessor in interest of the petitioner i.e. Great Grandfather, namely, Umar Daraj Ali Khan, the property in question is a non-Z.A. Land which after his death devloved upon his five sons, namely, Nawab Aijaz Ali Khan, Shamshed Ali Khan, Mumtaz Ali Khan, Imtiyaz Ali Khan & Irshad Ali Khan. Out of five sons, three sons and their families migrated to Pakistan and only two sons, namely, Nawab Aijaz Ali Khan and Shamshad Ali Khan remained in India. 3/5th share of entire khewat belong to Mumtaz Ali Khan and Imtiyaz Ali Khan and heirs of Irshad Ali Khan was declared as an evacuee property under the Administration of Evacuee Property Act, 1950. Shamshad Ali Khan died issue-less, as such, his 1/5th share devloved upon Aizaz Ali Khan his real brother, accordingly, Aizaz Ali Khan became owner to the extent of 2/5th share. It is relevant to point out here that Umar Daraz Ali Khan had two wives. Out of five children, three were born from first wife i.e. Shamshad Ali Khan, Irshad Ali Khan and Mumtaz Ali Khan and the remaining two were born from the second wife of Umar Daraj Ali Khan, namely Mumtaz Ali Khan and Imtiyaz Ali Khan. Irshad Ali Khan had died during the life time of Shamshad Ali Khan and Shamshad Ali Khan died issueless in the year 1947. On the death of Shamshad Ali Khan, the only heir left who could inherit under Muslim law was his real brother, namely, Aizaz Ali Khan, as such, vide order dated 30.9.1948, the share of Shamshad Ali Khan was recorded in the name of Aizaj Ali Khan. As per Muslim law, the heir of Irshad Ali Khan could not inherit the property the property of Shamshad Ali Khan, accordingly, the estate of Shamshad Ali Khan devolved on Aizaz Ali Khan. The name of Aizaj Ali Khan was recorded over 2/5th share on the date when the law of evacuee property came into force in the State of Uttar Pradesh, the name of Aizaj Ali Khan is recorded since 1948. The name of Aizaj Ali Khan was recorded over 2/5th share on the date when the law of evacuee property came into force in the State of Uttar Pradesh, the name of Aizaj Ali Khan is recorded since 1948. Petitioners' father and other heirs, who have inherited the property of Aizaz Ali Khan transferred their share vide registered sale deed dated 11.10.2001 in respect of Khasra No.1536 in favour of one Neeraj Jain and Neeraj Jain after purchase of the property filed an application to the authorities and prayed that he may be permitted to purchase remaining 3/5th share (evacuee) at the price fixed by the District Magistrate. Assistant Custodian submitted a report to the Board of Revenue and held that according to Khewat, Jamshed Ali Khan and others are shareholders to the extent of 2/5th share and property in question is composite, therefore, process of separation is required by the Competent Officer of Evacuee Property. The matter was referred to the Commissioner and Secretary, Board of Revenue for taking necessary action for separation of non evacuee interest from the evacuee, in the meantime a circular dated 17.10.2005 was issued by the Central Government whereby the proceeding under the Act were treated to be abated. The order of abatement was challenged before this Court and ultimately this Court vide order dated 24.11.2009 held that proceeding under the Act have not been abated and are by provisions contained under Section 6 of General Causes Act. Competent Officer proceeded to decide the matter vide order dated 27.110.2010 directed for separation of composite property of Khewat No.1/1 and 3 of Mahal Umar Daraj Ali Khan. The order dated 27.10.2010 has been challenged in Appeal No.36 of 2011, under Section 14 of Evacuee Interest Separation Act, 1951 which is still pending for adjudication in the Court of District Judge, Lucknow. During pendency of the proceeding in Appeal No.36 of 2011, District / Revenue Authorities suo moto initiated ex-parte proceeding for correction of revenue records by adding the name of three more co-sharers as heirs of Shamshad Ali Khan, who have already migrated to Pakistan and their share have already recorded as evacuee property and made a correction vide order dated 1.9.2010, vide order dated 1.9.2010, the earlier order passed in the year 1948 was amended resulting into reducing the share of Aizaj Ali Khan. Against the order dated 1.9.2010, petitioner filed a revision under Section 210 of the U.P. Land Revenue Act, 1901 before the Board of Revenue in which interim order dated 21.12.2010 was passed after admitting the revision. During pendency of the revision before the Board of Revenue another ex-parte order dated 1.7.2014 was passed under Section 33/39 of the U.P. Land Revenue Act, 1901. Petitioners challenged the order dated 1.7.2014 by way of Writ Petition No.56422 of 2014, which was disposed of by this Court dated 17.10.2014 directing to keep the order dated 1.7.2014 in abeyance and permitted the petitioners' father to appear before the authorities who was ordered to be directed to pass afresh order on the application of petitioners' father, accordingly, the restoration application filed by the petitioners' father was allowed vide order dated 16.6.2015 recalling the order dated 7.7.2014. Report dated 31.8.2015 was again filed in order to purchase the claim of the petitioners whereby the direction was issued to correct the revenue entry again and to lodge the first information report also. Petitioners' father challenged the order dated 6.8.2015 by means of Writ Petition No.68018 of 2015, the writ petition was disposed of by this Court with direction to the Board of Revenue to decide the pending Revision No.265 of 2010-11 on merit within two months, it was also directed that impugned order shall abide by the decision of the Board of Revenue in the pending revision. After the order dated 3.2.2016, the matter was heard by the Board of Revenue and vide order dated 8.3.2016 revision was allowed and order dated 1.9.2010 was set aside. In compliance of the order dated 8.3.2016 passed by the Board of Revenue, prayer was made at the instance of the petitioners that the proceeding of the case initiated by the Authorities be consigned to record but no order was passed till 2019. Respondent no.2 passed illegal order dated 12.2.2020 and directed to delete the entry of Jamshad Ali Khan and further enter 1/5th share of Shamshad Ali Khan as an evacuee property. Respondent no.2 passed illegal order dated 12.2.2020 and directed to delete the entry of Jamshad Ali Khan and further enter 1/5th share of Shamshad Ali Khan as an evacuee property. Petitioner challenged the order dated 4.2.2020 before this Court through Writ Petition No.6791 of 2020, writ petition was dismissed on the ground of alternative remedy vide order dated 25.2.2020, accordingly, petitioners challenged the order dated 12.2.2020 through revision before the Board of Revenue which was rejected by the Board of Revenue vide order dated 3.2.2021, hence this writ petition. 3. This writ petition was entertained on 19.2.2021 and following interim order dated 19.2.2021 was passed by this Court: “Heard Sri Ashish Kumar Singh, learned counsel for the petitioners and learned Standing Counsel for the State respondents. Present writ petition has been filed for quashing the order dated 03.02.2021 passed by respondent no.2-Board of Revenue, U.P. at Lucknow in Revision No. 592 of 2020 as well as the order dated 12.02.2020 passed by Sub Divisional Magistrate/Presiding Officer Additional Permanent Court, Muzaffar Nagar in Case No. 1455 of 2015. It is submitted by learned counsel for the petitioners that long standing entries since 1948 in the name of Aijaz Ali Khan, grandfather of the petitioners, has been disturbed by the impugned order in a proceeding under Section 33/39 of U.P. Land Revenue Act, 1901. It is next submitted by learned counsel for the petitioners that the Court has no jurisdiction to correct and determine the share of the parties in the present proceeding. Matter requires consideration. Learned Standing Counsel, who accepted the notice on behalf of all the respondents prays for and is granted six weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List immediately thereafter. In the meantime, parties are directed to maintain status quo as on date.” 4. Respondents filed their counter affidavit along with stay vacation application but petitioners do not propose to file any rejoinder affidavit in the matter. 5. Learned counsel for the petitioners submitted that respondent no.2 vide order dated 18.3.2016 has allowed the revision filed by the petitioners and the order has attained finality, as such, the order dated 12.2.2020 passed again to correct the entry is wholly illegal and cannot be sustained in the eye of law. 5. Learned counsel for the petitioners submitted that respondent no.2 vide order dated 18.3.2016 has allowed the revision filed by the petitioners and the order has attained finality, as such, the order dated 12.2.2020 passed again to correct the entry is wholly illegal and cannot be sustained in the eye of law. He further submitted that long standing entries continuing since 1948 cannot be disturbed or expunged in summary proceeding especially when proceeding in form of appeal, under Section 14 of the Evacuee Separation Act, 1951 is pending for adjudication in the Court of District Judge Lucknow. He further submitted that there is specific bar under the administration of Evacuee Property Act, 1950 and the ancillary act that none of the Courts of law have jurisdiction to look into the claim of the parties but respondent nos. 1 & 2 have committed illegality in passing impugned order. Counsel for the petitioner place reliance upon the provisions of Section 20 of Evacuee Interest Separation Act, 1951, which is as follows: “20. Jurisdiction of Civil Courts barred in certain matters- (1) Save as otherwise expressly provided in this Act, no Civil or Revenue Court shall entertain any suit or proceeding in so far as it relates to any claim to composite property which the competent officer is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the competent officer in respect of the composite property shall be granted by any Civil Court or other authority. (2) All suits and proceedings pending before a Civil or Revenue Court at the commencement of this Act shall, in so far as they relate to any claim filed before a competent officer under Section 7, be stayed during the pendency of any proceeding under this Act. (3) Nothing in sub-section (1) shall prevent any Civil or Revenue Court from entertaining any suit or proceeding relating to any right in respect of any payment made, or property transferred or delivered to a claimant under the provisions of this Act which any other claimant or other person may be entitled by due process of law to enforce against the claimant to whom the payment is made or the property is delivered or transferred.” 6. He further placed reliance upon the judgment of Supreme Court which are as follows: (i). Pavittar Singh Vs. He further placed reliance upon the judgment of Supreme Court which are as follows: (i). Pavittar Singh Vs. Niranjan Lal Malhotra (2001) 8 JT 641 (SC). (ii). Custodian, Evacuee Property, Punjab & Others Vs. Jafram Begum AIR 1968 SC 169 7. On the other hand learned Standing Counsel submitted that the order dated 27.10.2010 was passed by the Board of Revenue on the basis of void sale deed dated 11.10.2001 by which 2/5th share of the land in question was separated and against the order dated 27.10.2010, Appeal No.36 of 2011 and Appeal No.3741 of 2011 have been filed before the Court of District Judge and the same is still pending, as such, there is no illegality in passing the impugned order to correct the entry. He further submitted that the order passed by the Board of Revenue Lucknow dated 3.2.2021 and order dated 12.2.2020 passed by Sub-Divisional District Magistrate are in accordance with law. The forgery has been committed by the ancestor of the petitioners in respect to estate property, as such, petitioners are not entitled to any relief against the impugned orders. He further submitted that impugned order which was challenged by the petitioner is arising out of proceeding under Section 33/39 of the Land Revenue Act, 1901, as such, writ petition is not maintainable against the order passed in the summary proceeding and the same is liable to be dismissed. 8. I have considered the argument advanced by learned counsel for the parties and perused the record. 9. There is no dispute about the fact that against the order dated 24.11.2009 passed by the competent officer for separation of composite property of Khasra No.1536, Khasra No.1/1 & 3 of Mahal Umar Daraj Ali Khan, the Appeal No.36 of 2011, under Section 14 of Evacuee Interest Separation Act, 1951 is pending for adjudication in the Court of District Judge, Lucknow and during pendency of the above mentioned appeal the repeated proceeding under Section 33/39 of the U.P. Land Revenue Act has been initiated by the State-authorities to correct long standing entry. 10. Since the Appeal No.36 of 2011, under Section 14 of Evacuee Interest Separation Act, 1951 is pending before District Judge, Lucknow which is proved from the allegations made in Paragraph Nos.14, 15 & 16 of the writ petition as well as by the averment made in Paragraph No.16 of the counter affidavit filed by the State. 10. Since the Appeal No.36 of 2011, under Section 14 of Evacuee Interest Separation Act, 1951 is pending before District Judge, Lucknow which is proved from the allegations made in Paragraph Nos.14, 15 & 16 of the writ petition as well as by the averment made in Paragraph No.16 of the counter affidavit filed by the State. 11. Paragraph Nos.14, 15 & 16 of the writ petition are as follows: “14. That the order dated 27.10.2010 has been subjected to challenged in Appeal No.36 of 2011 under Section 14 of the Evacuee Interest Separation Act, 1951, which is pending adjudication in the court of District Judge, Lucknow. 15. That the aforesaid Appeal is pending since 2011 and all the efforts made by the petitioner’s father and his transferees to get the proceedings disposed of have failed. 16. That although the Appeal is pending in the Court of District Judge, Lucknow, and in other Courts of Law but the District Authorities in order to nullify the proceedings initiated illegal proceedings time to time.” 12. Paragraph No.16 of the counter affidavit is as follows: “16. That, the contents of paragraph nos.13 and 14 of the writ petition is relates with the order dated 27.10.2010 passed by the Hon’ble Board of Revenue, which was obtained on the base of void sale deed dated 11.10.2001, by which 2/5 shares of the land in question were separated. Against the order dated 27.10.2010, an Appeal bearing No.36 of 2011 and Appeal No.374 of 2013 has been filed before the court of the District Judge, Lucknow and the same has been pending till today.” 13. Considering the averment made in the writ petition as well as in the counter affidavit, there is no dispute that the Appeal No.36 of 2011, under Section 14 of Evacuee Interest Separation Act, 1951 is pending before District Judge, Lucknow for last more than 10 years, as such, unless aforementioned appeal under Section 14 of Evacuee Interest Separation Act, 1951 is decided, the repeated efforts made by the State-authorities to correct the long standing revenue entry is wholly illegal. 14. The State authorities repeatedly taking steps to correct the revenue entries and the higher Courts are passing the order to the effect that the steps for correcting the revenue entry is not legal even then the State-authorities are committing the same thing again and again. 14. The State authorities repeatedly taking steps to correct the revenue entries and the higher Courts are passing the order to the effect that the steps for correcting the revenue entry is not legal even then the State-authorities are committing the same thing again and again. The Board of Revenue has also allowed the Revision No.265 of 2010-11 vide order dated 18.3.2016 by which it has been held that proceeding under Section 33/39 of the Land Revenue Act, 1901 cannot be exercised to correct the entry of the khewat especially when the proceeding under the Evacuee Interest Separation Act, 1951 is pending. The case law cited by the learned counsel for the petitioners in the case of Pavittar Singh (supra) & Custodian, Evacuee Property (supra), the jurisdiction of different Courts in respect to the Evacuee Property Act, 1950 has been taken into consideration and has been held that the Civil Court or Revenue Court have no jurisdiction to entertain or adjudicate any controversy. 15. Considering the entire facts and circumstances, the ratio of law laid down in Pavittar Singh (supra) & Custodian, Evacuee Property (supra), as well as provisions contained under the Evacuee Interest Separation Act, 1951, the impugned order dated 3.2.2021 passed by respondent no.2 & impugned order dated 12.02.2020 passed by Sub-Divisional Magistrate/ Presiding Officer Additional Permanent Court, Muzaffar Nagar cannot be sustained in the eye of law and are liable to be set aside, the same are hereby set aside. 16. The writ petition stands allowed and following directions are being issued: (I) Petitioner will file certified copy of this order before the District Judge, Lucknow in Appeal No.36 of 2011 under Section Evacuee Interest Separation Act, 1951 and the District Judge, Lucknow is directed to decide the pending Appeal No.36 of 2011 expeditiously preferably within period of four months from the date of production of certified copy of this order. (ii) The State-authorities shall not ulter the entry in respect of disputed plots unless the Appeal No.36 of 2011, Evacuee Interest Separation Act, 1951 is decided by the District Judge, Lucknow. 17. No order as to costs.