AHMAD AIJAZ Vs. STATE OF U.P.

JUDGEMENT

(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 Nos. 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 and 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 lifetime of Shamshad Ali Khan and Shamshad Ali Khan died issue-less 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 dtd. 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. Petitioners' father and other heirs, who have inherited the property of Aizaz Ali Khan transferred their share vide registered sale-deed dtd. 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 dtd. 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 dtd. 24/11/2009 held that proceeding under the Act have not been abated and are by provisions contained under Sec. 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 Nos. 1/1 and 3 of Mahal Umar Daraj Ali Khan. The order dtd. 27/10/2010 has been challenged in Appeal No. 36 of 2011, under Sec. 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 dtd. 1/9/2010, vide order dtd. 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 dtd. 1/9/2010, petitioner filed a revision under Sec. 210 of the U.P. Land Revenue Act, 1901 before the Board of Revenue in which interim order dtd. 21/12/2010 was passed after admitting the revision. During pendency of the revision before the Board of Revenue another ex parte order dtd. 1/7/2014 was passed under Sec. 33/39 of the U.P. Land Revenue Act, 1901. Petitioners challenged the order dtd. 1/7/2014 by way of Writ Petition No. 56422 of 2014, which was disposed of by this Court dtd. 17/10/2014 directing to keep the order dtd. 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 dtd. 16/6/2015 recalling the order dtd. 7/7/2014. Report dtd. 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 dtd. 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 dtd. 3/2/2016, the matter was heard by the Board of Revenue and vide order dtd. 8/3/2016 revision was allowed and order dtd. 1/9/2010 was set aside. In compliance of the order dtd. 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 dtd. 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 dtd. 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 dtd. 25/2/2020, accordingly, petitioners challenged the order dtd. 12/2/2020 through revision before the Board of Revenue which was rejected by the Board of Revenue vide order dtd. 3/2/2021, hence this writ petition.

(3.) This writ petition was entertained on 19/2/2021 and following interim order dtd. 19/2/2021 was passed by this Court: