- (1.) P. C. Varma, J. This writ petition has been filed by the petitioner praying for a writ in the na ture 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 respond ent 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 en acted by the Legislature of U. P. which was extended to the whole of U. P. ex cept 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. for the purpose to recog nise the rights of intermediates' hold ers. Petitioner has stated that the United Provinces Zamidari Abolition and Land Reform Bill has already been intro duced in the Legislature which provides for the Zamidari rights including the several land reforms. THE said bill pro vided 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 depos ited ten times rent and was given a Sanad by the State of U. P. the said receipt and Sanad are Annexures 1 and 2 respectively to the writ petition. On 01-07-1952 U. P. Zamidari Abolition Act was enforced in the U. P. by which he reditary 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 unrder Act of 10 of 1949 he was not re quired 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 peti tioner has further averred that Rahim Bax never left India and was continu ing to live in India till he died sometime in the year 1970 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 in creased 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 Sarifan. 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 in terest 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 per sons were mutated in the revenue records vide order dated 13-07-1998 of the Naib Tehsildar, Dehradun. Accord ingly, the petitioners are in peaceful possession of the property in question. 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 ap pointed and property was to be de clared as Evacuee Property, On decla ration 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 Per sons Act, 1954 by which compensation to the persons entitled as displaced persons could be given. After the par tition 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 mi grated 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 ob jection an order was passed on 11-11-1952 alleging that Rahim Bax is re ported 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 be fore the order dated 11-11-1952, w. e. f. 1-7-1952. The decision of the Custo dian was meaning less as it could not be proved that Rahim Bax was mi grated to Pakistan. His name was en tered in the revenue records and after his death in the year 1970 his sons dis posed 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 peti tioner is that under the mechanical al lotment order under the Provisions of 1954 Act, Dhani Ram was allotted cer tain property on quasi permanent ba sis 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 prop erty and as such refused to take pos session. 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 pos session of the said land, which was entered in his name in the revenue records. On 18-08-1998, an affidavit was filed by Bhagwan Das S/o Dhani Ram (Annexure 21 to the writ petition) stat ing that after the death of Dhani Ram he had no knowledge that his father had left any property and accordingly made a request that his name may be entered in the revenue record in the place of Gaon Sabha. The said request was rejected by the Sub-Divisional Magistrate, Dehradun vide order dated 17-07-2000. A revision no. 92 of 1999 was filed by Bhagwan Das against Gram Sabha and U. P Government for mutation of his name in the Revenue Record, in which petitioner was not a party. The said revision was allowed by the Additional District Commissioner without applicant being party to the same. On the date when the revision was allowed, the name of the petitioner was already mutated in the revenue record. The State of Uttaranchal filed a Revision against Sri Bhagwan Das be ing 2/2001- 2002 which was dismissed on 16-09-2002. In the said revision, the petitioner was not a party. The District Magistrate, Dehradun called for a report from the Sub-Divisional Magistrate, Dehradun and the Sub-Divisional Mag istrate, Dehradun after due verification and survey found that the petitioner was in occupation and his name was entered in the revenue records and the only remedy available to Sri Bhagwan Das was to establish his title before the competent Court. On creation of the State of Uttaranchal a similar complaint was made by him and another survey was made. In that survey it was found that the property in custody of the pe titioner was on the basis of valid title and accordingly on 2- 4-2003, the S. D. M. , Dehradun submitted a report to the District Magistrate and accordingly District Magistrate passed an order on 05-05-2003 directing the parties to file a suit for declaration of their title u/s 209 of the Z. A. and L. R. Act before the competent court.
(3.) ON 14-05-2003, Bhagwan Das filed a complaint before the Lokayukta. The Lok Ayukta, Uttaranchal vide his order dated 08-08-2003 passed the or der against the petitioner. The order of the Lokayukta is quoted as under: "the District Magistrate instead of appearing before me has sent Sub-Divisional Magistrate who has joined as S. D. M. Dehradun very recently. According to him, he could not lay his land on the file and after exam ining the factual controversy involved, he will submit a detailed re port to the district Magistrate, there after, matter should be thrashed out. The stand of the District Magistrate which has been taken now is that the possession cannot be given to Sri Bhagwan Das over the plot in question as in the revenue record there is an entry of the another per son as well. This stand is inconsistent with the earlier stand taken by District Magistrate. This case has a chequered history. The plot in ques tion was allotted to late Sri Dhani Ram, as tenure holders migrated to Pakistan and the property was de clared evacuee property. Late Sri Dhani Ram approached the authori ties concerned to the effect that the plots in question were not arable and hence instead of land compen sation be given to him. The Central Government did not agree to that proposal. In the meantime, the pos session of the plots in question were taken over by Gram Sabha which re sulted into litigation. Sri Bhagwan Das the son of late Sri Dhani Ram filed an appeal before the Commis sioner who upheld the contention of Sri Bhagwan Das that the plot in question belonged to him and en tries of Gram Sabha or any other person were fictitious. Thereafter, a revision was filed by the State of U. P. against the judgment of the Com missioner. It appears that the revi sion was rejected and the order of the Commissioner was upheld. As the Gram Sabha had taken over possession from Sri Bhagwan Das, it was contended that Gram. Sabha should hand over the possession of the plots in question to Sri Bhagwan Das and it is the duty of the State to deliver the possession of the land in question to Sri Bhagwan Das, without asking the complainant to file the suit under section 209 of the U. P. Land Act. The entries of per sons who claim the right of the land, from a person or his legal repre sentatives who had migrated to Pa kistan is nothing but fictitious. The Collector should advert to this ques tion and submit a report. The copy of this order should be sent to the Collector. Put up the file on 22-09-2003. " Aggrieved by the above order of the Lok Ayukta, the petitioner has filed this petition. A counter affidavit has been filed by Sri Bhagwan Das stating therein that the Additional Tehsildar in connivance with the land-mafias submitted a report on 25th March 2003 to the S. D. M. to give undue advantage and benefit to them. But, the S. D. M. based his report on totally false and fabricated facts and submitted it to the District Magistrate. The District Magistrate after summon ing the original file of evacuee property and the revenue records of 1360 Fasli was convinced on the claim of the re spondent, but may be due to the pres sure of the land-mafias declined to give any relief to the respondent and main tained that the respondent may once again file his claim for ownership and possession u/s 209 of the U. P. Zamidari Abolition Act. It is further stated in the counter affidavit that respondent hav ing no option, in spite of the fact that the highest Revenue Authority i. e. the Chief Revenue Commissioner has con firmed the order of the Additional Com missioner (Administration) regarding the ownership and possession of the re spondent, filed a complaint before the Lok Ayukta and on the basis of the facts narrated in this counter affidavit, the Lok Ayukta had passed the order under challenge in this writ petition, which is in the four-corners of law. Thus, the petition is not maintainable and is liable to be dismissed.;