SURYA PRAKASH KESARWANI,J. - (1.) IN this writ petition the petitioner has challenged the validity of Section 171(2) Clause (n) of the U.P.Zamindari Abolition and land Reform Act 1951 (U.P. Act No. 1 of 1951) as amended by U.P. Act No. 27 of 2004. The grievance of the petitioner is that by Amendment Act No. 27 of 2004, Clause (r) - father's father's son was omitted and a new entry as Clause (n) - mother's mother's son has been substituted. Thus, for the first time, the devolution of interest in the holding of the deceased male Bhumidhar or Asami has been provided in the maternal side to maternal uncle and the paternal uncle i.e. father's father's son has been excluded. It is alleged that the amendment is unreasonable, senseless and in contravention of paternal structure of rural agricultural society.
(2.) BRIEFLY stated the facts of the present case are that one Swatantra Veer Singh, S/ o - Virendra Singh, resident of Village Aslatpur Jarai, P.O. Jarai, Tehsil Chandauli, District Moradabad was bhumidhar of Plot No. 1073 area 2.898 h. and four tenure holders of Plot Nos. 1703 area 0.348 h., Plot No. 840 area 1.145 h., Plot No. 836 area 2.902 h. and Plot No. 852 area 0.243 h. It is alleged in paragraphs 5 and 6 of the writ petition that Swatantra Veer Singh was a person of unsound mind. His mother was murdered on 11/12.09.2007. Swatantra Veer Singh died on 2.1.2009 in the house of his maternal uncle under mysterious circumstances. On the same day, FIR was lodged against the maternal uncle by his paternal aunt who earlier filed an application to appoint her as guardian. In paragraphs 8 and 9, it is alleged that in view of Clause(n) of Section 171 (2) of the U.P. Zamindari Abolition and Land Reform Act 1950(hereinafter referred as the Act) the maternal uncle of the deceased i.e. respondent nos.3 and 4 got their names recorded in revenue records over the bhumidhari land of the deceased Swatantra Veer Singh. On the very next day without actual entry of possession, they sold the whole of the bhumidhari land to third person pocketing the price. However, on 15.1.2009, the Tehsildar ordered that no succession shall be recorded over the property of the deceased. A mutation case no. 454 of 2009 under Section 34 of the Land Revenue Act was filed which is pending. In these circumstances, the instant writ petition has been filed by the petitioners challenging the constitutional validity of Clause (n) of Section 171(2) of the Act as substituted by U.P.Act No. 27 of 2004. Counter affidavit has been filed on behalf of respondent no.1 and in paragraph -8 thereof, it has been stated as under : "8. That in reply to the contents of paragraph No.7 of the writ petition, it is submitted that the amendment has been made on account of change in the social culture and atmosphere developed in the society and as such, the amendment is just and legal, which has been made in order to correlate the same to the welfare of the public at large."
(3.) THE respondent no.2 i.e. Tehsildar has filed a counter affidavit and in paragraph -7 thereof, it is submitted that the deceased Swatantra Veer Singh was recorded as tenure holder of Khatauni Khata Nos. 817, 819, 822, 823 and 870. Copies of Khatauni thereof have been filed as Annexure No. A -1.;