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Smt. Hubraji Vs. the Authorised Chief Settlement Commissioner, U.P. Bihar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 123 of 1970
Judge
Reported inAIR1980All231
ActsAdministration of Evacuee Property Act, 1950 - Sections 7(1) and 40; Constitution of India - Articles 31 and 226; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 12(2), 24 and 36; Displaced Persons (Compensation and Rehabilitation) Rules, 1955 - Rule 92
AppellantSmt. Hubraji
RespondentThe Authorised Chief Settlement Commissioner, U.P. Bihar
Appellant AdvocateRamesh Kumar Varma, Adv.
Respondent AdvocateS.D. Misra, ;T.N. Misra and ;T.N. Shukla, Advs.
DispositionPetition dismissed
Excerpt:
property - right of transferee over evacuee property - sections 7(1) and 40 of administration of evacuee property act, 1950 and section 24 of displaced persons (compensation and rehabilitation act), 1954 - sale deed in favour of transferee - can claim right under it after confirmation of order - vesting of property with custodian automatically nullified - no application is required by transferee - unless confirmation order is set aside property in dispute could not be treated as evacuee property - acquirer of interest later on cannot challenge the order - property cannot be dealt by managing officer under the provisions of compensation act - held, subsequent sale is without jurisdiction. - - for the sake of better appreciation, we are reproducing below relevant portions of the said.....s.c. mathur, j.1. this petition is directed against an order passed by the assistant custodian general cum authorised chief settlement commissioner, u. p. and bihar passed in two revisions, one filed under section 24 of the displaced persons (compensation & rehabilitation) act (act no. 44 of 1954) and the other filed under section 27 of the administration of evacuee property act, 1950 (act no. 31 of 1950). the petition has arisen in the circumstances hereinafter indicated.the dispute in the petition relates to certain plots which admittedly originally belonged to khurshed hasan and syed mohd. mujtaba. these two persons executed sale deeds on 31-10-1947, 12-4-1948 and 15-7-1948 in favour of beni ram. father of opposite parties 3 and 4 and ganga ram, opposite party no. 2. after execution of.....
Judgment:

S.C. Mathur, J.

1. This petition is directed against an order passed by the Assistant Custodian General Cum Authorised Chief Settlement Commissioner, U. P. and Bihar passed in two revisions, one filed under Section 24 of the Displaced Persons (Compensation & Rehabilitation) Act (Act No. 44 of 1954) and the other filed under Section 27 of the Administration of Evacuee Property Act, 1950 (Act No. 31 of 1950). The petition has arisen in the circumstances hereinafter indicated.

The dispute in the petition relates to certain plots which admittedly originally belonged to Khurshed Hasan and Syed Mohd. Mujtaba. These two persons executed sale deeds on 31-10-1947, 12-4-1948 and 15-7-1948 in favour of Beni Ram. father of opposite parties 3 and 4 and Ganga Ram, opposite party No. 2. After execution of these sale deeds the said transferors migrated to Pakistan. On 16-2-1953 the Assistant Custodian issued notice under Section 7 of the Administration of Evacuee Property Act (hereinafter referred to as the Evacuee Property Act) to Khurshed Hasan and Syed Mohammed Mujtaba requiring them to show cause why they should not be declared evacuees under Clauses (i) and (ii) of Section 2(d) of the said Act and the plots in dispute be not declared their property. This notice was contested by Beni Ram who pleaded title to the said plots in dispute on the basis of the sale deeds hereinbefore mentioned. Beni Ram did not dispute the migration of Khurshed Hasan and Syed Mohammad Mujtaba. On 24-4-1053 Assistant Custodian (Judicial) Faizabad passed order declaring Khurshed Hasan and Syed Mohammad Mujtaba (hereinafter referred to as evacuees) evacuees and the plots in dispute were declared as their property. A copy of this order is Annexure-A to the counter-affidavit filed by Ganga Ram on behalf of opposite parties 2 to 4. After passing of this order an application was made by Beni Ram and Ganga Ram under Section 40 of the Act for confirmation of the sale deeds executed by the evacuees. This application was allowed by order dated 24-9-1953. A copy of the order is Annexure-B to the said counter-affidavit. While allowing the application the Assistant Custodian (Judicial) held that the sale deeds were for adequate consideration and were, normal inasmuch as the evacuees migrated to Pakistan after almost five years from the date of the execution of the deeds.

2. Thereafter the plots in dispute were dealt with by the Managing Officer under the provisions of Displaced Persons (Compensation & Rehabilitation) Act (hereinafter referred to as the Rehabilitation Act) and he put the same to public auction on 2-11-1968. At this public auction the petitioner's bid was accepted and accordingly the auction, was knocked down in her favour. Sale certificate was issued to the petitioner on 15-11-1968. In May 1969 Ganga Ram and the heirs of Beni Ram filed the revisions hereinbefore referred to. A copy of the revision petition is Annexure-I to writ petition. Through this revision petition opposite parties 2 to 4 asserted that in view of the order of confirmation passed on 24-9-1950 the property ceased to be evacuee property and it could not be sold by the Managing Officer. The auction in favour of the petitioner was alleged to be collusive. On this Basis opposite parties 2 to 4 asserted their own title to the plots in dispute. It was prayed that the property may be released as non-evacuee property. By his order dated 3-1-1970 opposite party No. 1 disposed of both the revisions preferred by opposits parties 2 to 4. A copy of the order passed by opposite party No. 1 is Annexure-4 to the writ petition. It appears that before the opposite party No. 1 it was pleaded on behalf of the petitioner that sale deeds executed in favour of Beni Ram and Ganga Ram were contrary to the provision of U. P. Tenancy Act and were, therefore, invalid and they conveyed no title to them and, therefore, they were fit to be ignored. On this plea of the petitioner opposite party No. 1 directed the departmental counsel to examine the matter and if he found that the plea could be taken up in suo motu revision he should fake up the matter. This is how opposite party No. 1 disposed of the revision filed under Section 27 of the Administration of Evacuee Property Act.

3. Taking up the revision under Section 24 of the Displaced Persons (Compensation & Rehabilitation) Act, opposite party No. 1 observed that till the order dated 24-9-1953 confirming the sale deeds executed in favour of Beni Ram and Ganga Ram were set aside the property could not be treated as evacuee property and, therefore, the sale in favour of the petitioner was illegal. It was also observed that the transfer of the plots in dispute in favour of the petitioner was done in violation of Rule 90 of the Displaced Persons (Compensation & Rehabilitation) Rules. The petitioner has challenged the above order on the following grounds :--

(1) A revision under Section 24 of the Displaced persons (Compensation & Rehabilitation) Act could be filed only against an order but the revision preferred by opposite parties 2 to 4 was not directed against any order and the same was, therefore incompetent and as such opposite party No. 1 acquired no jurisdiction to decide the same.

(2) Against the auction held in favour of the petitioner opposite parties 2 to 4 approached the Authorised Settlement Commissioner and this proved that the said opposite parties themselves treated the property in dispute to be pool property and they were, therefore, estopped from saying that it was not so. It was amplified by the learned counsel for the petitioner that the forum under the Displaced Persons (Compensation & Rehabilitation) Act was available only to such persons as accepted the property in dispute to be pool property.

(3) The Petitioner had raised the plea that the sale deed in favour of opposite parties 2 to 4 was hit by the provisions of U, P. Tenancy Act and was, therefore, invalid and this question had to be decided by opposite party No. 1 himself and he could not delegate this function to the departmental counsel. It was amplified by the learned counsel for the petitioner that this delegation amounted to abdication of jurisdiction by opposite party No. 1.

(4) There was no violation of Rule 90 of the Displaced Persons (Compensation & Rehabilitation) Rules and the finding recorded by opposite party No. 1 is patently incorrect.

(5) In case opposite parties 2 to 4 challenged the auction held in favour of the petitioner they could do so only by taking recourse to the procedure pre-scribed under Rule 92 of the Displaced Persons Rules, for cancellation of the sale, and the procedure of revision adopted by opposite parties 2 to 4 was incompetent.

(6) Mere passing of order under Section 40 of the Administration of Evacuee Property Act did not divest the property of the character of evacuee property which it acquired under the vesting order passed under Section 7 of the said Act. It was amplified by the learned counsel for the petitioner that until the order passed under Section 7 was cancelled the property remained evacuee property and could be sold under the provisions of Displaced Persons (Compensation & Rehabilitation) Act.

4. The writ petition has been contested by opposite parties 2 to 4. Their learned counsel Sri S. D. Misra urged that the effect of the order passed under-Section 40 of the Administration of Evacuee Property Act was that the property in dispute ceased to be evacuee property and could not thereafter become pool property so as to be available for transfer under the provisions of Displaced Persons (Compensation & Rehabilitation) Act. The impugned order was revisable by the Central Government under Section 33 of the Displaced Persons Act. It was also urged that since the order impugned in the writ petition was pre-eminently just and fair, this Court may not interferen with the same even if any irregularity was found in passing the same.

5. The main question that arises for consideration in his case is whether the property in dispute was evacuee property which could be acquired under Section 12 of the Displaced Persons Act and transferred under Section 20 thereof. Section 20 of the Act provides that subject to the rules made under the Act the Managing Officer or Managing Corporation may transfer any property out of the compensation pool. Section 14 prescribed the properties comprised in the compensation pool. A perusal of this section shows that compensation pool comprises of evacuee property acquired under Section 12 of the Act, Section 12 confers power upon the Central Government to acquire evacuee property. The term 'evacuee property' has been defined in Clause (c) of Section 2. It provides that evacuee property means any property which has been declared or is deemed to have been declared as evacuee property under the Administration of Evacuee Property Act, 1950.

6. We have referred in the preceding para to certain provisions of the Displaced Persons Act. For the sake of better appreciation, we are reproducing below relevant portions of the said provisions :--

2 (c). ' 'evacuee property' means any property which has been declared or is deemed to have been declared as evacuee property under the Administration of Evacuee Property Act, 1950 (XXXI of 1950'.

12. 'Power to acquire evacuee property for rehabilitation of displaced persons.

(1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government had decided to acquire such evacuee property in pursuance of this section.

(2) On the publication of a notification under Sub-section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances'.

14. 'Compensation Pool -- (1) For the purpose of payment of compensation and rehabilitation grants to displaced persons, there shall be constituted a compensation pool which shall consist of --

(a) all evacuee property acquired under Section 12 including the sale proceeds of any such property and all profits and income accruing from such property :

(b) such cash balance lying with the Custodian as may by order of the Central Government, be transferred to the compensation pool,

(c) such contributions, in any form whatsoever, as may be made to the compensation pool by the Central Government or any State Government

(d) such other assets as may be prescribed'.

20. 'Power to transfer property out of the compensation pool -- (1) Subject to any rules that may be made under this Act, the managing officer or managing corporation may transfer any property out of the compensation pool--

(a) by sale of such property to a displaced person or any association of displaced persons whether incorporated or not, or to any other person, whether the property is sold by public auction or otherwise'.

7. From the above provisions of the Displaced Persons Act it is apparent that before a property can be acquired under Section 12 and sold under Section 20 it has to be a property which has been declared or is deemed to have bee declared evacuee property under the Administration of Evacuee Property Act. Once it is found that the property is not such an evacuee property, it cannot either be acquired under Section 12 or sold under Section 20. We have therefore, to see whether at the time property was auctioned in favour of the petitioner it was an evacuee property within the meaning of Section 2(c) of the Displaced Persons Act. We have already indicated hereinabove that by order dated 24-4-1953 Khurshed Hasan and Syed Mohammad Mujtaba were declared evacuees and the property in dispute was declared to be their property. This declaration amounted to declaring the property in dispute as evacuee property. Thereafter by order dated 24-9-1953 the sale deeds executed in favour of Beni Ram and Ganga Ram were confirmed. This order of confirmation, as indicated above, was passed in exercise of the power conferred under Section 40 of the Administration of Evacuee Property Act. According to the learned Counsel for the opposite parties the effect of this confirmation is that the property ceases to be evacuee property and the sale deeds remain effective from the date they were executed. In other words the order takes effect retrospectively. It was also the case of the opposite parties that once an order is passed under Section 40, the order under Section 7 is automatically nullified. On the other hand the learned counsel for the petitioner argued that by mere passing of the order under Section 40 the declaration made under Section 7 was not nullified and that it was obligatory upon the opposite parties to obtain a specific order regarding release of the property from the category of evacuee property. In order to decide the controversy it is necessary to examine certain provisions of the Administration of Evacuee Property Act.

8. Sub-section (1) of Section 7 confers power upon the Custodian to declare a property as evacuee property. On such declaration being made the evacuee property under Section 8 of the Act vests in the Custodian for the State. No separate order is contemplated for this vesting It is automatic on the declaration under Section 7 being made. When the property has so vested in the Custodian, the Custodian is competent under Section P to take possession of the evacuee property. Under Section 16 right has been reserved in favour of the evacuee or his heirs to obtain restoration of the property. Section 24 prescribes for appeal to the Custodian where the original order has been passed by a Deputy or Assistant Custodian and to Custodian-General where the original order has been passed by the Custodian and Additional Custodian or an Authorised Deputy Custodian. Under Section 27 a revision lies to the Custodian-general. By Section 28 finality is given to the orders passed under the Act and the jurisdiction of the courts is ousted. Section 40 under which the sale deed was confirmed in favour of Ganga Ram and Beni Ram deals with the rights of transferees who obtained sale deeds from the evacuee between 14-8-1947 and 7-5-1954.

9. From the above provisions of the Administration of Evacuee Property Act it would be seen that after a property has been declared to be evacuee property and the same has vested in the Custodian right is reserved for claiming interest therein under two provisions, one is Section 16 under which right can be claimed either by the evacuee or by his heirs and the other is Section 40 under which right can be claimed by a transferor or transferee of the category specified therein.

10. Section 16 of the Act so far as is material for the purposes of this writ petition is as follows :--

'16. Restoration of evacuee property :-- (1) Subject to such rules as may be made in this behalf, any evacuee or any person claiming to be an heir of an evacuee may apply to the Central Government or to any person authorised by the Central Government in this behalf (hereinafter in this section referred to as the authorised person) that any evacuee property which has vested in the Custodian and to which the applicant would have been entitled if this Act were not in force, may be restored to him.

(2) On receipt of an application under Sub-section (1), the Central Government or the authorised Persons, as the case may be, shall cause public notice thereof to be given in the prescribed manner, and after causing an inquiry into the claim to be held in such manner as may be prescribed shall --

(a) if satisfied--

(iii) that it is just or proper that the evacuee property should be restored to him; make an order restoring the property to the applicant,.....'

10A. From the above it would be seen that Section 16 does not make specific provision for divesting the property which has vested in the Custodian under Section 8. Under Clause (a) of Sub-section (2) the property is restored to the 'evacuee or his heir'. The result of this restoration is indicated in Sub-section (3). Under Sub-section (3) the Custodian, on restoring the property to the evacuee or his heir, stands absolved of all the responsibilities in respect of the property restored. The absolution from responsibility has to be considered in the light of the purpose for which the Act was enacted. The preamble of the Act says thus :--

'An Act to provide for the administration of evacuee property and for certain matters connected therewith.' The purpose of the Act, therefore, is not to acquire property belonging to the evacuee but to administer the same. The procedure for acquisition was prescribed by Displaced Persons (Compensation & Rehabilitation) Act 1954. In this view of the matter the effect of the order of the restoration was that the Custodian withdrew himself from the administration of the property. In view of the fact that the property under Section 8 vests in the Custodian for the limited purpose of administration thereof, the consequence of the order of restoration of the property to the evacuee or his heir is that the vesting of the property under Section 8 is nullified and the property ceases to vest in the Custodian.

11. Section 40 of the Act. so far as is material for the purpose of deciding this writ petition is as follows :--

'40 Validity of transfers respecing property subsequently declared to be evacuee property. -- (1) No transfer made after the 14th Aug. 1947, but before the 7th May, 1954, by or on behalf of any person in any manner whatsoever of any property belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them, if at any time after the transfer, the transferor becomes an evacuee within the meaning of Section 2 or the property of the transferor is declared or notified to be evacuee property within - the meaning of the Act unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act.

(2) .....

(3) An application under Sub-section (1) for the confirmation of any transfer may be made by the transferor or the transferee or any person claiming under, or lawfully authorised by, either of them to the Custodian within two months from the date of the transfer or within two months from the date of the declaration or notification referred to in Sub-section (1) whichever is later, and provisions of Section 5 of the Indian Limitation Act, 1908 (IX of 1908) shall apply to any such application.

(4) Where an application under Sub-section (1) has been made to the Custodian for confirmation he shall hold an enquiry in respect thereof in the prescribed manner and may reject the application if he is of opinion that--

(a) The transaction has not been entered into in good faith or for valuable consideration; or

(b) the transaction is prohibited under any law for the time being in force; or

(c) the transaction ought not to be confirmed for any other reason.

(5) where in respect of any transfer made before the commencement of the Administration of Evacuee Property (Amendment) Act, 1953, any application for confirmation thereof has been rejected solely on the ground--

(a) that although the transaction was entered into in good faith, consideration paid was not adequate, or

(b) that the application was barred by limitation, then notwithstanding anything to the contrary contained in any law or contract or decree or order of a Civil Court or other authority, but subject to any rules that may be made by the Central Government in this behalf, the Custodian may and shall, where the application for confirmation was rejected by the Custodian-General, if the Custodian-General so directs exercise any of the following powers in respect of the transfer, namely.

(i) confirm the transfer, if the consideration paid for the transfer is adequate,

(ii) Confirm the transfer, if a transferee agrees to pay to the Custodian the difference in value between the value of the property as assessed by the Custodian and the amount actually paid by the transferee to the transferor;

(iii) If the transferee agrees, take possession of such part of the property as, after dividing it by metes and bounds, is equivalent in value to the difference between the value of the property as assessed by Custodian and the amount actually paid by the transferee to the transferor;

(iv) If the transferee agrees, take possession of the entire property by paying off to the transferee the amount which Custodian finds as having been actually paid by the transferee to the transferor as consideration for the transfer; or

(v) If the transferee does not agree to any of the courses referred to in Clauses (i) to (iv) (inclusive), auction the property and if the sale proceeds exceed the amount actually paid by the transferee, pay to the transferee the amount paid by him and take over the balance; if the sale proceeds are equivalent to, or fall short of, the amount actually paid by the transferee, pay the entire sale proceeds to the transferee :

Provided that where any application for confirmation of a transfer is rejected on the ground specified in Clause (b) of the Sub-section (4), the power conferred on the Custodian by this section shall not be exercised unless the Custodian finds that the transaction has been entered into in good faith,

(6) If the application is not rejected under Sub-section (4) the Custodian may confirm the transfer either unconditionally or on such terms and conditions as he may think fit to impose.' Since the sale deeds in question had been executed on 31-10-1947, 12-4-1948 and 15-7-1948, they did fall within the period prescribed in Sub-section (1) of the above section, namely between 14-8-1947 and 7-5-1954. As such the sale deeds in question were governed by the provisions of Section 40. These sale deeds could remain effective only if they had been confirmed by the Custodian as provided in Sub-section (1) of Section 40. Sub-section (3) of Section 40 prescribes the limitation for moving the application. Under this provision the application for confirmstion has to be made within two months from the date of transfer or within two months from the date of the declaration or notification under Sub-section (1) of Section 7. The matters in respect of which the Custodian is required to make enquiry when an application is made for confirmation are prescribed under Sub-section (4). Under this sub-section the Custodian will refuse to confirm the sale if the transaction of sale was not a bone fide one or was for inadequate consideration. He will also reject the application if the transaction is prohibited by any law for the time being in force. Under Clause (c) of Sub-section (4) a wider jurisdiction is given to refuse confirmation. Under Sub-section (6) power is conferred to confirm the sale unconditionally or subject to terms which the Custodian may think fit to impose. The effect of an order of confirmation is not specifically provided in prositive terms under Section 40. It only says that the sale deeds executed between 14-8-1947 and 7-5-1954 would not be effective unless they have been confirmed. In other words the said sale deeds would be effective if they are confirmed under the provisions of Section 40. Sub-section (1) of Section 40 also uses the words 'So as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them'. Thus unless the sale deed is confirmed the transferee is not entitled to claim any rights under the sale deeds. Speaking positively the transferee would be entitled to claim rights under the sale deeds if they are confirmed. Section 40 also does not say specifically that on an order of confirmation being passed the property will cease to remain vested in the Custodian but the effect of an order passed under Section 40 is that the sale deed becomes effective and once the effectiveness of the sale deed is recognized, the vesting, which is only for the purpose of administration is automatically nullified. The learned counsel for the petitioner vehemently argued that unless the vesting was set aside the opposite parties could not claim any title in the property in dispute. We do not find any provision in the Act making specific provision for passing an order of divesting. In view of the interpretation that we have placed on Section 16 and Section 40 the effect of the orders passed under the said provisions is that the Custodian stands divested of the property which vested in him for the purpose of administration. We do not agree with the submission of the learned counsel for the petitioner that an application was required to be made by or on behalf of opposite parties 2 to 4 for cancelling the order passed under Sub-section (1) of Section 7 which resulted in the vesting of the property in dispute in the Custodian under Section 8. In taking this view we are supported by a decision rendered by their Lordships of the Nagpur High Court in Dr. G. R. Chopra Naraindas Chopra v. Mahajan Narayanprasad (AIR 1956 Nag-100). In para. 7 of the judgment appearing at page 101 their Lordships have observed as follows :--

'The term 'vested' in Section 8 of the Administration of Evacuee Property Act, 1950, has to be read in relation to the purpose and scope of the Act. This Act is intended not to affect ownership in property but to provide for its administration. The expression 'shall be deemed to have vested in the Custodian for the State' in Section 8, therefore only means that the property becomes vested for purposes of management.'

Judged on this basis, Section 40 of the Act does not displace any title and only suspends the operation of a transfer for the time being. The term 'unless' in the section is singnificant in this connection and if the confirmation was intended to be operative only from the date of the Custodian's order the word 'until' would have been appropriate.

12. We are in respectful agreement with the view taken in the above case. We endorse that Section 40 does not displace any title but only suspends the operation of the transfer for the time being. We are accordingly of the view that on the date the auction was held in respect of the property in dispute by the Managing Officer under the provisions of Displaced Persons (Compensation & Rehabilitation) Act, the property in dispute was not evacuee property. Accordingly the Managing Officer did not acquire any right to auction the same and the auction in favour of the petitioner was therefore absolutely without jurisdiction. The sale certificate issued in favour of the petitioner as a consequence of the auction knocked down in his favour is also consequently invalid and without jurisdiction. Under Sub-section (1) of Section 24 under which power was exercised by the Chief Settlement Commissioner no period has been prescribed within which the power may be exercised. The sale certificate was issued in favour of the petitioners on 15-11-1968 and in May 1969, opposite parties 2 to 4 preferred revision under Section 24 of the Rehabilitation Act before opposite party No. 1. the Settlement Commissioner took the view that unless the order of confirmation under Section 40 was set aside, the property could not be deemed to be evacuee property and, therefore, the auction held in favour of the petitioner was invalid. We are of the opinion that the view taken by opposite party No. 1 is correct and does not call for any interference.

13. The learned counsel for the petitioner had vehemently argued that the revision filed by opposite parties 2 to 4 before the Authorised Chief Settlement Commissioner, opposite party .No. I, was incompetent inasmuch as the same was not preferred against any order. A copy of the revision petition has been filed as Annexure-1 to the writ petition, In the memorandum of revision it has been mentioned as follows :--

'Revision against the order of Shri P. P. Jauhari A. C./M. O. varanasi, the copy of which has not been supplied to the petitioner transferring plots Nos. 2026, 2027, 2028, 2029, 2040 to opposite party No. 2 valued at Rs. 2500 but which came to be known to petitioner on 5-5-1969 through the mutation letter of M. O. dated 15-11-1960 is on the following amongst other grounds :'

The prayer contained in the memorandum of revision is in following terms :--

'The petitioners, therefore, pray that the Court be pleased to set aside the impugned sale certificate in respect of plots No. 2026 etc. situate in qasba Ghiswa, Tahsil Machhli Shahar, District Jaunpur, by summoning the records of sale file, file of objection case No. 386 of 1953 and file of confirmation case No. 36/1953 District Jaunpur, and release the disputed plots as non-evacuee property of the petitioners, so that justice be done'.

It is true that along with memorandum of revision no order was filed by opposite parties 2 to 4 but they stated that the revision was directed against the order by which the plots in dispute were transferred by the Managing officer in favour of the present petitioner. Copy of the order was not filed because according to the averments contained in the memorandum of revision the same had not been supplied to opposite parties 2 to 4. It is true that no specific prayer was made for setting aside the order by which the bid of the petitioner was accepted and the prayer made was for setting aside the impugned sale certificate. In support of the petitioner's case that unless the revision was directed against some order the same was not maintainable, the learned counsel for the petitioner relied upon a Division Bench decision of this Court in re Zahid Husain v. Sri Gulab L. Ajwani (Writ Petition No. 1127 of 1972 decided on 15-10-1979). This judgment does lend support to the contention of the learned counsel. There is however, another Division Bench decision of this court reported in AIR 1953 All 718 (Smt. Dulari v. Addl. Custodian, Evacuee Property). This was a case in which the learned Judges of this Court were interpreting the word 'order' used in Section 26(2) of the Administration of Evacuee Property Act which conferred the power of review upon the Custodian, Additional Custodian or Authorised Deputy Custodian. Under this provision also the power of review had been conferred against an order. Interpreting the word 'order' used in this provision the learned Judges observed as follows in para 5 of the judgment:--

'.....Mr. Ram Bharosey Lal's contention was that an act of confirmation of a sale was not an 'Order' inasmuch as, there was no opposite party contending against such a confirmation and, therefore, there could be no review possible of an order of confirmation even it there was an order. We are unable to agree with this contention, because in our judgment the word 'Order' in Section 28(2) is used in its widest connotation'.

14. In this case it is not necessary for us to decide the controversy whether the revision preferred by opposite parties 2 to 4 is competent or not, because we are of the opinion that by the order impugned in the present petition opposite party No. 1 has done justice in the matter. The order of opposite party No. 1 is pre-eminently just and correct and we, therefore, decline to exercise our jurisdiction under Article 226 of the Constitution.

15. In view of our above findings it is not necessary to go into various other points which were urged by the learned counsel for the petitioner. However, in deference to the learned counsel we record our findings on the said points also.

16. Before opposite party No. 1 it was contended on behalf of petitioner that the evacuees were not competent to execute sale deeds and, therefore, the sale deeds were absolutely invalid and conferred no title upon Beni Ram and Ganga Ram and, therefore, the revision preferred by opposite parties 2 to 4 should have been rejected. The question of invalidity of the sale deeds was not determined by opposite party No. 1. He dealt with the matter by observing as follows:

'Counsel for the respondent contends that transfer in favour of the petitioner by the original, tenure holder was void under Section 33 of the U. P. Tenancy Act and the sale deeds could not be confirmed. So far as this aspect is concerned the Departmental counsel is required to examine this and if he finds it so, he should take up the matter in suo motu revision for setting aside the order dated 24-9-1953 passed by the assistant custodian (J)'.

The contention of the learned counsel was that the plea of invalidity of the sale deeds had to be considered by opposite party No. 1 himself and he could not delegate this jurisdiction to the counsel for the Custodian Department and in making the above observation opposite Party No. 1 abdicated his jurisdiction. This contention of the learned counsel is justified. The jurisdiction to decide the revision has been conferred under the Act upon opposite party No. 1. He has to decide all the points which arise in the revision. There is no occasion for him to require the counsel for the Custodian Department to consider a point and then move for suo motu revision. We are, however, of the opinion that this error in the order of opposite party No. 1 does not vitiate the final order passed by him. The sale deeds in favour of Beni Ram and Ganga Ram had been executed much before the petitioner came on the scene, At the time the order of confirmation was passed under Section 40 the petitioner not being on the scene she had no right to challenge the same. She would, therefore, have no right to challenge the odrer of confirmation at this stage also. While passing an order of confirmation under Section 40 the Custodian, under Clause (b) of Section 4 is required to consider also the question whether the transaction is prohibibted under any law for the time being in force. Orders passed under the Administration of Evacuee Property Act are final and conclusive under Section 28 of the Act and the jurisdiction of the Civil Court has been barred under Section 46 of the Act. In this view of the matter opposite party No. 1 was justified in saying that unless the order of confirmation under Section 40 was set aside the property in dispute could not be treated as evacuee property. No step appears to have been taken by anyone to have that order set aside. The petitioner, who acquired interest, although illegally, in the property in dispute, came on the scene much later and obviously she would have no locus standi to challenge the said order. We are therefore, of the opinion that the petitioner cannot succeed on the ground hereinbefore mentioned.

17. It was next, urged by the learned counsel for the petitioner that opposite parties approached the authorities constituted under the Displaced Persons (Compensation & Rehabilitation) Act for getting relief and this action of theirs stops them from saying that the property in dispute was not pool property. The argument was that the forum of revision prescribed under the Act is available only to that person who accepts the property to be pool property and, therefore, when opposite parties 2 to 4 availed of the forum of revision prescribed under the Act they will be deemed to have accepted the property in dispute to be pool property. We are unable to agree with the submission. Under Section 36 of the Displaced Persons (Compensation & Rehabilitation Act the jurisdication of the Civil Court is barred and orders passed under the Act have to be challenged before the authorities constituted under the Act. In order, therefore, to obtain relief it was incumbent upon the opposite parties to take recourse : to the procedure prescribed under the Rehabilitation Act itself. In view of Section 36 they could not agitate the matter in the Civil court or before any other authority. In our opinion, therefore, the approach made by opposite parties 2 to 4 to the Chief Settlement Commissioner was justified and this approach does not operate as estoppel as pleaded on behalf of the petitioner. The learned counsel further urged that there was no violation of Rule 90 of the Rules framed under the Rehabilitation Act and the finding recorded by opposite party No. 1 that there was such a violation is incorrect. We have held above that the Managing Officer had no jurisdiction at all in respect of the property. Therefore, even if there was no violation of Rule 90 the auction in favour of the petitioner would not become valid. It is, therefore unnecessary to consider whether the finding recorded by opposite party No. 1 in respect of violation of Rule 90 is correct or incorrect.

18. It was then urged by the learned counsel for the petitioner tbat in order to get the sale set aside it was incumbent on opposite parties 2 to 4 to take recourse under Rule 92 of the Displaced Persons (Compensation & Rehabilitation) Rules 1955. Sub-rule (1) of this Rule provides as follows :--

'92. PROCEDURE FOR SETTINGASIDE A SALE.-- (1) Where a persondesires that the sale of any propertymade under Rule 90 or 91 should be setaside because of any alleged irregularity or fraud in the conduct of the sale(including in the case of a sale by public auction in the notice of the sale) hemay make an application to that effectto the Settlement Commissioner or anyofficer authorised by him in this behalf todisapprove the acceptance of the bid ortender as the case may be.'

19. From the above it is apparent that a sale under Rule 92 can be set aside only on the ground of irregularity or fraud in the conduct of sale. In the ore-sent case the objection of opposite parties 2 to 4 was with regard to the jurisdiction of the Managing Officer to sell the property. It was, therefore, not necessary for opposite parties 2 to 4 to make any application under Rule 92.

20. It was next urged by the learned counsel for the petitioner that the impugned order of opposite party No. 1 violates Article 31 of the Constitution inasmuch as the petitioner is deprived of her property without the authority of law. We are unable to agree with the contention of the learned counsel. The order has been passed in proceedings which have been prescribed under an Act of the Legislature. In those proceedings it was held that the sale in favour of the petitioner was invalid. This finding was recorded after giving opportunity of hearing to the petitioner. It cannot, therefore, be said that the petitioner is being deprived of property without the authority of law.

21. We would now make our comments with regard to the authorities which were cited by the learned counsel for the petitioner.

22. AIR 1957 Bom 119 (Shree Ambarnath Mills Corporation, Bom. v. D. B. Godbole, was relied upon for saying that under Section 8 of the Administration of Evacuee Property Act the property vests in the Custodian as evacuee property by a legal fiction and that there was no provision by which the property so vested could he divested. We have already held above that although there was no specific provision for divesting but the consequence of an order passed under Section 16 or Section 40 was that the Custodian became divested of the property which vested in him only for the limited purpose of administration. This authority is, therefore, of no assistance to the petitioner.

23. AIR 1952 All 962 (Shukrulla v. State) was relied upon for the proposition that the immediate effect of declaration under Sub-section (1) of Section 7 of the Administration of Evacuee Property Act was to vest the property in the Custodian under Section 8. We have no dispute with the proposition that the result of the declaration under Section 7(1) is to vest the property in the Custodian under Section 8, but as held above this vesting is subject to an order of restoration passed under Section 16 and of an order of confirmation passed under Section 40. We have already held above that the effect of such orders is that the Custodian is divested of the property.

24. AIR 1961 SC 1312 (Md. Sharfuddin v. R. P. Singh) was relied upon for the argument that non-prosecution of the remedy prescribed under the Evacuee Property Act deprived opposite parties 2 to 4 of the right to challenge the order passed under Section 7(1) inasmuch as finality was attached to such an order under Section 28 of the Act. We have already indicated hereinabove that Ganga Ram and Beni Ram moved an application under Section 40 for confirmation after order under Section 7(1) had been passed. They cannot, therefore, be said to have not prosecuted the remedy which was prescribed under the Act. They availed of the remedy prescribed under Act and got an order in their favour under Section 40. The effect of the order has already been indicated by us hereinabove.

25. AIR 1961 SC 1320 (Gopal Singh v. Custodian, Evacuee Property, Punjab) and AIR 1962 SC 994 (Basant Ram v. Union of India) were relied upon for the proposition that the effect of the notification under Section 12 was to vest the property in the Central Government free from all encumbrances and, therefore, even if any title was acquired by opposite parties 2 to 4 under the order passed on the application under Section 40 the same was extinguished under Sub-section (2) of Section 12. Under Sub-section (2) of Section 12 the person whose interest is extinguished is mentioned as the evacuee. Since the property in dispute had ceased to be evacuee property and opposite parties 2 to 4 were not evacuees, their interest could not extinguish on account of the notification under Sub-section (1) of Section 12 being made. In any case the said notification was subject to the orders passed in proceedings under Chap. IV of the Act. Under Section 24 which was under this Chapter it was competent for the Chief Settlement Commissioner, as we have held above, to set aside the sale made in favour of the petitioner. Therefore these authorities are also of no assistance to the petitioner. In these authorities it has further been held that after notification under Sub-section (1) of Section 12 of the Compensation Act has been made, the Custodian appointed under the provisions of the Administration of Evacuee Property Act loses jurisdiction and the property thereafter has to be governed under the provisions of Displaced Persons (Compensation and Rehabilitation) Act. The only effect of these authorities would be that opposite parties' revision under Section 27 of the Administration of Evacuee Property Act would be incompetent. The opposite party No. 1, however, still had jurisdiction to release the property in favour of opposite parties 2 to 4 in exercise of the power conferred under Section 24 of the Compensation Act. He exercised power as Chief Settlement Commissioner under Section 24 and passed the impugned order in favour of the opposite parties.

26. AIR 1951 Hyd 137 (Kaluluddin v. The State of Hyderabad, para 6); AIR 1951 Bom 440 (Abdul Majid v. P. R. Nayak, para 4) and AIR 1959 Punj 222 (Punjab State v. Mehr Chand, para 10) were relied upon for the proposition that it is the duty of the Court to safeguard the right of the parties, We do not dispute the proposition that it is the duty of the Court to safeguard the rights of the parties before it. We have decided the case keeping in view this principle. We have found that the property had been validly acquired by Ganga Ram and Beni Ram from the persons who were admittedly owners of the property and according to the finding recorded by the Assistant Custodian in proceedings under Section 40 the said sale deed was a bona fide one and was for adequate consideration. We have held above that in view of the order passed under Section 40 the property in dispute ceased to be evacuee property and could not be dealt with by the Managing Officer under the provisions of the Compensation Act and the sale in favour of the petitioner was without jurisdiction. The party which is, therefore, entitled to the safeguard pressed on behalf of the petitioners is opposite parties 2 to 4. So far as the petitioner is concerned her interest has been sufficiently safeguarded by providing that the sale consideration deposited by her shall be refunded.

27. In view of the above the writ petition is dismissed but there shall be no order as to costs.


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