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2023 DIGILAW 2786 (ALL)

Tasleem Hasan Khan v. Board of Revenue

2023-12-11

SHREE PRAKASH SINGH

body2023
JUDGMENT Shree Prakash Singh, J. Short rejoinder affidavit filed today in the Court is taken on record. 2. Heard Shri Pradeep Kumar Tiwari, learned counsel for the petitioner, Shri Shailendera Kumar Singh, learned Chief Standing Counsel assisted by Shri Hemant Pandey, learned Standing Counsel, Sri Praful Kumar Yadav, Additional Chief Standing Counsel and Sri Dhirendra Singh, Standing Counsel for the State, Shri Farhan Habib, learned counsel for respondent No.5 and Shri Pankaj Gupta, learned counsel for the Gaon Sabha. 3. By means of the instant petition, the petitioner has assailed the order dated 5th February, 2020 passed by the Additional Commissioner in Case No.02328 of 2018 (Gaon Sabha v. Waqf Abdul Razzak and others) under Section 219 of the U.P. Land Revenue Act, 1901 (herein-after referred to as the 'Act, 1901') and further the order dated 27th September, 2023 passed by the Board of Revenue in Revision No.501 of 2020 under Section 219 of the Act, 1901. 4. Submission of learned counsel for the petitioner is that Waqf Abdul Razzak was having the property in question since 1890 as the Waqf itself was created in 1890 and the land in question was recorded in the name of Waqf Abdul Razzak up till 1951. He added in 1952 the land was vested with the State Government, though the petitioner was never given any opportunity to be heard and as soon this fact came into knowledge of the petitioner in the year 2010, then an application under Section 33/39 was moved by the petitioner, which was entertained and decided by the Sub-Divisional Officer, Sadar, Philibhit vide order dated 13th August, 2010, wherein the entries with respect to the Gata No.52 bearing area 3.554 hectare was directed to be entered/corrected in the name of the petitioner. He submits that a detailed order was passed by the Sub-Divisional Officer considering the report of the then District Government Advocate (Revenue), Philibhit. 5. Further contention is that the Court of Additional Commissioner as well as Board of Revenue have ignored the fact that once the land in question was with Waqf Abdul Razzak, then the same cannot be struck off while invoking the provisions of Section 4/6/117 of U.P. Z.A. & L.R. Act, 1950(hereinafter referred to as Act,1950). 6. 5. Further contention is that the Court of Additional Commissioner as well as Board of Revenue have ignored the fact that once the land in question was with Waqf Abdul Razzak, then the same cannot be struck off while invoking the provisions of Section 4/6/117 of U.P. Z.A. & L.R. Act, 1950(hereinafter referred to as Act,1950). 6. He next added that the impugned orders have been passed ignoring the settled provisions of law that once a land in question is recorded in the name of the Waqf, for the charitable purposes, that cannot be amended or corrected by way of the provisions of 'Act, 1950'. He further submits that the entries up till the Fasali year 1356, the name of the Waqf was recorded in the revenue record and, therefore, the orders impugned passed by the respondents are erroneous and perverse and the same is liable to be set aside. 7. Per contra, learned counsel appearing for the State as well as Gaon Sabha including learned counsel for the Sunni Central Waqf Board have vehemently opposed the contention aforesaid. 8. Learned Chief Standing appearing for the State submitted that invoking the provisions of Section 4/6/117 of 'Act, 1950' while providing the compensation, the land in question is recorded in the name of State. He further added that it is undisputed fact that compensation was given to the petitioner as is also evident from the record of Sunni Central Waqf Board annexed with the counter affidavit. He next submits that that the Sub-Divisional Officer has passed the order on 13th August, 2010, while taking the shelter of the opinion of District Government counsel (Revenue) and there is no independent application of mind and since the procedure, which is prescribed under Section 33/39 is as per the paragraph 911 of the Revenue Court Manual, are the judicial proceedings and, therefore, on the basis of an opinion accorded by the District Government counsel, the order dated 13.08.2010 could not have been passed. 9. Further contention of the Chief Standing Counsel is that the Waqf has received the compensation as per the provisions prescribed under the 'Act, 1950' and, therefore, after passing of about 55 years, he cannot claim the reverse position without any provision prescribed under law. 9. Further contention of the Chief Standing Counsel is that the Waqf has received the compensation as per the provisions prescribed under the 'Act, 1950' and, therefore, after passing of about 55 years, he cannot claim the reverse position without any provision prescribed under law. He also added that though the present petitioner has annexed a list at page No.60, which starts from serial No.19 to 29, which shows that there are other certain properties of such nature of the State Government, which are being claimed by the petitioner by way of making certain fraud in the records and thus, the matter requires profound enquiry. 10. Learned counsel appearing for the Sunni Central Waqf Board submitted that the compensation has been paid to the Waqf and during the course of his argument, he has pointed out paragraph 4 to 6 of the counter affidavit and submits that as per the certified copy of the compensation roll, the compensation was paid to the Waqf under the provisions of Rule 40 of the U.P. Z.A. & L.R. Rules, 1952. 11. On the other hand, learned counsel appearing for the Gaon Sabha on the basis of the instructions submitted that the compensation was paid to the petitioner on different dates and therefore, the petitioner cannot claim the land in question. 12. After the aforesaid arguments are advanced, the startling facts are borne out that the land in question is being claimed by the petitioner after passing of 55 years from the date, it is vested with state government. More so, the compensation has already been taken by the petitioner as per the Rule 40 of the Zamindari Abolition and Land Reforms Rules, 1952. 13. This Court has noticed the fact that the Sub-Divisional Officer only on the basis of the report of District Government counsel (Revenue) has passed the order under Section 33/39 and has directed for correction in the records, though the proceedings under Section 33/39 is the judicial proceedings and, therefore, an independent mind is to be applied by the adjudicating authority. 14. 14. Since a list of 11 properties are mentioned, wherein the several acres of lands of the State is involved, therefore, the ACS, department of Revenue is hereby directed to constitute a high level inquiry committee to inquire into the matter regarding the fact that except apart the land questioned in this petition, how many other lands are in the District- Philibhit or any other Districts of Uttar Pradesh, which are recorded in the name of waqf, contrary to the law. 15. It is further directed that the high level committee shall be constituted within a period of 15 days from the date of this order and the committee shall submit its report to the state government within further period of 30 days and thereafter this report shall also be submitted before this court, in a sealed cover. 16. Further, after such inquiry, the responsibility of erring revenue authorities/officials if any, be fixed and necessary action be taken, in time bound manner. 17. 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