MAZHAR HUSSAIN Vs. SPECIAL LAND ACQUISITION OFFICER

JUDGEMENT

(1.) -The petitioner is aggrieved by the order of the Special Land Acquisition Officer, Lucknow dated 19-10-1987. Thereby the petitioner's request for reference of the matter to the District Judge under section 30 of the Land Acquisition Act was rejected. The petitioner through this writ petition under Article 226 of the Constitution of India seeks to have the said order dated 19-10-1987, contained in Annexure 1, quashed and prays for issue of a writ of mandamus directing, the Land Acquisition Officer to make reference of the dispute of title to the District Judge under section 30 of the Land Acquisition Act.

(2.) IT appears that plots Nos. 636, 682, 685, 787, 703, 704, 705, 706 and 2001 situate in village Ujaryawan were acquired by the State Government under Gomti Nagar Yojna, the controversy relates to payment of compensation in respect of these plots, namely, plots nos. 682, 685, 687, 705 and 706, area 14 Bighas, seven Biswas. Opposite parties 3 to 7 claimed compensation in respect of these plots as Bhumidhars having purchased Bhumidhari rights from the petitioner and his sisters also raised claims for payment of compensation. The petitioner who is an Advocate practising at Lucknow and who argued the writ petition himself submitted that the Sunni Waqf Board also raised claim for payment of compensation. The basis of the claim raised by the petitioner has been that these plots alongwith certain other plots total area about 30 Bighas is a Waqf property, the Waqf having been created through a registered Waqf deed dated 14-4-1944 by late Shri Dabir Hasan, father of the petitioner. A copy of the registered Waqf deed has been filed as Annexure 2 which shows that a Waqf Alalaulad was created in respect of the plots in question and some other plots as aforesaid. According to the terms of the Waqf, the creator was to be the Mutawalli of the Waqf and after his death, his wife was to become the Mutawalli. The income from the Waqf property after payment of revenue was to be utilized by way of distribution in the specified manner. Rs. 11/- per year were required to be given for Milad Sharif Rs. 11/- per year for Gyarhwin Sharif Rs. 11/- per year for Moharram Rs. 11/- per year for Fateha Haji Syed Waris Ali of Dewan Sharif Rs. 11/- per year Fateha Sheikh Amir Hasan, father of the creator of the Waqf, and of Shrimati Hasinun Nisa Saheba the mother of the creator of the Waqf, and Rs. 11/- per year for Fateha of the creator of the Waqf.

(3.) THE petitioner, a practising Advocate, has argued the writ petition himself. THE principal argument raised by him is that once a property is declared to be Waqf property, its character cannot be changed at any stage and the same shall continue to be Waqf property in respect of any act of an interested person. THE argument may be correct as a broad proposition of law. Whether this is enough and all to entitle the petitioner to the relief claimed is the question. THE factual position in the case indicates that this is a case in which the Waqf deed does not appear to have been acted upon at least from the year 19S2 onwards. THE Waqf deed was executed in the year 1944. Entries in the Revenue record continued in respect of this property as being Waqf property, extracts of Khatauni for the years 1356 and 1359 Fasli have been filed by the petitioner. As stated already the situation, however, had undergone a change in the year 1952 when the Zamindari came to an end in the State and the U. P. Zamindari Abolition and Land Reforms Act, 1951 (U. P. Act I of 1951) came into force. That was the material year and from that year the land in question came to be recorded as grove land of Babir Hasan father of the petitioner and creator of the Waqf. It is to be noted that about 30 Bighas of land was the subject-matter of the Waqf property and the land in respect of which the petitioner now claims relief is only about 14 Bighas which was recorded as grove land of Dabir Hasan. THE rest of the land, it appears, was under cultivation of other persons. As per the counter-affidavit filed on behalf of the opposite parties, vide paragraph 28 thereof, that land was recorded Sirdari of the persons named therein and that father of the petitioner had received compensation for his propriety rights in that land. THEre is no assertion to the effect that the father of the petitioner purchased any other property out of the compensation received as a result of abolition of Zamindari as he was required to do under the terms and conditions of the Waqf deed. As regards the grove land, the name of the petitioner's father continued as Bhumidhar till his life time. Accordingly, it is quite clear that so far as the creator of the Waqf who was also the Mutawalli thereof, is concerned, he failed to carry out the terms and objects of the Waqf deed and allowed it to lapse and become a dead letter. On his death in the year 1960, the grove land was got mutated by the petitioner and his two brothers in their names and, admittedly they filed a partition suit under section 176 of U. P. Act I of 1951 and got their shares separated. Not . only that, they also transferred the land in their respective shares in favour of opposite parties 3 to 5 and appropriated the proceeds received by them to themselves. If the terms of the deed were and are even now intended to be complied with the petitioner and his brothers should have purchased some other property from the sale proceeds to form as Waqf property for carrying out the objects of the Waqf. This was also not done and the property was treated to be personal property. In this way, even the petitioner and his brothers allowed the Waqf to lapse and to become inoperative. It is difficult to imagine that they had no knowledge of the existence of the Waqf and assuming that the petitioner came to know of the existence of the Waqf as claimed by him even then he had and has no justification to keep the proceeds of the Waqf property in the form of sale price as personal property. He came forward to claim compensation when the grove land in the hands of purchaser, opposite parties was acquired by the Government under Gomti Nagar Yojna without parting with what he had received.