DINESH KUMAR AGARWAL Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner praying for a writ in the nature of certiorari quashing the order dated 08 -08 -2003 contained in Annexure 30 to the writ petition and all proceedings thereon and a writ of mandamus commanding the respondent no. 2 not to entertain any right in respect of Khasra No. 383/01 and Khasra No. 286/1 area measuring .190 and .275 hectare respectively of village Bagral Tehsil Sadar, District Dehradun.

(2.) THE case of the petitioner is that the above mentioned Khasra: nos. 283/1 and 286/1 were initially entered in the name of Rahim Bax S/o Ali Bax in 1356 Fasli (1948) as hereditary tenants. U.P. Act No. 10 of 1949 known as the United Provinces Agricultural Tenants (Acquisition of Privileges) Act was enacted. by the Legislature of U.P. which 'was extended to the whole of U.P. except the areas specified in the First Schedule of United, Provinces Tenancy ,Act, 1939 and the Pargana of Kaswar Raja in the District of Dehradun. The Area of Dehradun was not excluded for the application of the said Act. This Act was enacted for the purpose of acquisition of intermediaries rights in the area of U.P. fcirthe 'purpose to recognise the rights of intermediaries' hoiders. 'Petitioner has stated that the United Provinces Zamidari Abolition and Land Reform Bill has already been introduced in the Legislature which provides for the Zamidari rights including the several land reforms. The said bill provided for contribution by the tenants and payment of their annual rent. The rent so paid could be reduced by half and they could completely be protected on any ground. The balance was to be paid, by the Provincial Government so that the U.P. Zamidari Abolition and Land Reforms Bill could be declared. On 21 -06 -1950, Sri Rahim Bax depositecl ten times rent and was given a Sanad by the State of U.P. The said receipt and Sanacl are Annexures land 2 respectively to the writ petition. On 01 -07 -1952 U.P. Zamldari Abolition Act was enforced in the U.P. by which hereditary intermediary were given rights which were known as Bhoomidhar; Sheeshdhar and Asami. Section, 340 of the U.P. Zamidari Abolition and Land Reforms Act, 1950 provides that the, rights created under the Act No. 10 of '1949 aforesaid would deem to be right created under the Z.A. and L.R. Act. According to the petitioner, since Rahim Bax has already paid the entire rent under Act of 10 of 1949 he was not required' to pay extra amount under the Z.A. and L.R. Act being Sanad holder and his rights were recognised by the Government of U.P. and his name was mutated in,' the Revenue Records as Bhumidhar w.e.f. 1 -7 -1952. The petitioner has further, , averred that Rahim Bax never left India and was continuing to live in India till he died sometime in the year 1'970 leaving behind his wife Sarifan and three' sons, namely, Abdul Rahman, Zummadin and Mohd. Yasim of Village Bagral, where the property is situated. Before his death he kept on paying revenue rents between 1366 to 1370 Fasli. He also paid Increased rent vide order of increased rent of 1366 to 1370 Fasli (Annexure 4). After the death of Rahim Bax, names of his " three minor sons were entered in the Revenue Records through his mother Sahfan. As the property was in the name of minors, therefore, permission was obtained' from the District Judge, Dehradun for the sale of the property so that the interest of the minors could be protected. Ultimately the said property was' sold in favour of O.C. Kundan In the year 1980. In the year 1991 O.C. Kundan himself sold the property to one Sri Prem Prakash and Smt. Rashmi through two: sale, deeds dated 27 -12~1990. On 11 -09 -1991 Sri Prem Prakash and Smt. Rashmi sold the property to one Dinesh Kumar and his sons Sri Divya Agarwal and Sri Salabh Agarwal. The names of these three persons were mutated in the revenue records vide order dated 13 -07 -1998 of the Nalb Tehslldar, Dehradun. Accordingly, the petitioners are in peaceful possession of the property in question.

(3.) DUE to partition of India, assets and liabilities of the then nationals were to be governed by the Provisions of Administration of Evacuee Property Act, 1950. Under this a Custodian was appointed and property was to be declared as Evacuee Property. On declaration of being evacuee property, it would vest in the Custodian, who would take possession. The custodian with the prior approval of the Central Government could auction and sale the property and also the land could be transferred by him. The Parliament enacted an Act known as Displaced Persons Act, 1954 by which compensation to the persons entitled as displaced persons could be given. After the partition of the country, the Department of Custodian under the 1950 Act Issued notices to practically all the Muslims for the purpose of determining whether they would be entitled to declare their areas as evacuee property. Accordingly on 10 -10 -1952, a notice was issued to Rahim Bax for appearance on 11 -11 -1952 to decide whether he has migrated to Pakistan or not. It is not known to the petitioner whether Rahim Bax filed any objection or not. On the assumption that he did not file any objection an order was passed on 11 -11 -1952 alleging that Rahim Bax is reported to have migrated to Pakistan and consequently his tenancy was occupied by the Custodian, Evacuee Property. According to petitioner, Rahim Bax had already acquired rights of Bhumidhari on 11 -7 -1952 much before the order dated 11 -11 -1952, w.e.f. 1 -7 -1952. The decision of the Custodian was meaning less as it could not be proved that Rahim Bax was migrated to Pakistan. His name was entered in the revenue records and after his death in the year 1970 his sons disposed of the property by registered sale deed in favour of O.C. Kundan. They are still living In India In village Bagral and his wife is claiming widow pension and she is getting benefit of being wife of Rahim Bax. The case of the petitioner is that under the mechanical allotment order under the Provisions of 1954 Act, Dhani Ram was allotted certain property on quasi permanent basis in Dehradun in Village Bagral in the year 1955. Earlier it was Khasra no. 233 and 266, but somebody got the same changed as 283 and 286. On 09 -07 -1956, Sri Dhani Ram reported the matter to Custodian and submitted that he was not interested in the said property and as such refused to take possession. On 26 -05 -1960, the Managing Officer under the Provisions of 1954 Displaced Persons Act wrote to the Settlement Commissioner, Lucknow that Dhani Ram has refused to accept the allotment. Subsequently, the land was vested in Gaon Sabha in 1992 because it was not in occupation of anyone. According to the petitioner, the claim of Gram Sabha was untenable because the petitioner continued to be in possession of the said land, which was entered in his name in the revenue records.