(1) This is a Writ Petition under Article 226 of the Constitution to quash the order dated' 18.5.1967 (copy of which is Annexure A), passed by the Appellate Officer Delhi dismissing the appeal of the petitioners preferred against the order of the Competent Officer dated 27.3.195T ordering the transfer of property to Respondents 2 to 5 and for some other consequential directions. Only a few facts leading to this- Writ Petition may be briefly noticed.
(2) The property bearing No. EP/AI, situated in Porbandar (Saurashtra), was owned by Habib Shakoor (evacuee) who during his life time and before he became an evacuee had mortgaged the same in favor of Kanji Morarji. Jadavji Morarji by registered deed dated 10-11-1945 for Rs. 8,000.00 with interest at 15%. per annum. After the partition of the country the property was declared as evacuee property. Jadavji Morarji, one cf the mortgagees, died' and he was survived by his son Amrit Lal and widow Radhabai (Respondents No. 3 and 5,. respectively). Thakur Kanji Morarji and the heirs of Jadavji Morarji put in a claim before the Competent Officer, Saurashtra stating that they were mortgagees of the composite property mentioned above and claimed the amount due to them as per the mortgage deed. The Competent Officer, Rajkot by his order dated 27.3.1955' upheld the claim of the mortgagees and decreed it in the sum of Rs. 9942/14.00 by calculating interest at 5% per annum; he further directed' that the property should be auctioned to meet. the claim of the mortgagees. But this direction concerning the auction was not given effect to as it is now explained by the respondents that; there had been no agency for selling the property at Rajkot after the previous agency to sell? had ceased to function.
(3) The respondents/mortgagees put in and application for transfer of the composite property (hypotheca) to them in satisfaction of their mortgage claims which was accordingly- ordered on 27-3-1957 by the Competent Officer a deed of transfer was also issued in their favor on 22-4-1957 by the Competent Officer.
(4) It is stated for the petitioners that they were not aware of these proceedings or the order which was passed behind their back. They submitted representations to the Competent Officer on 13-3-1957 and 4-4.195'' that they were ready to purchase the property as they claimed to be sitting allottees of the property since 1951 paying license free/rent to the Departmsnt of Rehabilitation and holding verified claims in respect of the properties which they had abandoned in Pakistan. It is further stated that the Competent Officer, who was new to the post, had directed the property to 'be transferred to the mortgagees for the amount mentioned by them in their application for Rs. 10,000.00, after taking wrong advice of the then Assistant Custodian (Shri H.B. Mehta), thus ignoring the claim of the petitioners as sitting allottees. The petitioners were informed by letters dated 11.11.1957 by the Assistant Custodian of Evacuee Property that the property in question had been transferred to the claimants - mortgagees.
(5) During the pendency of the petitioners' ;appeal (No. 1104/57) against order dated 27.3.1957 of the Competent Officer, the petitioners came to know that the claimants-mortagees had transferred the property to Smt. Champa Ben Jyoti (Respondent No. 2) for Rs. 11.8551.00 by registered sale deed dated 4.7.1957. The Assistant Custodian on behalf of the Custodian of Evacuee Property had insisted on the petitioners depositing some amount into Court as a proof of their bond fides in the event of their sucsess in the appeal, in furtherance of which an interim order was passed by the Competent Officer on 22.2.1958 directing the petitioner to deposit Rs. 5.000.00 within one month from the date of the order (copy of which is Annexur.2 A) on pain of their appeal ) being dismissed in default. It is stated that Rs. 5,000.00 were deposited accordingly on 20.3.1958 within the prescribed time '.but the appeal was ultimately dismissed on 18.5.1967 after asking fora finding by order dated 11.12.1958 on the question whether the petitioners were sitting allottees of the property or not. It is seen from a copy of the appellate order (copy of which is Annexure A) that there is no reference made to any finding on this question but there is an observation to the following effect : 'The primary question to be determined in this case is, thereforee, whether the appellants assuming that they are sitting allottees can claim transfer of the composite property in their favor.' There is also a reference earlier in the said order to the Competent Officer having given his finding by his order dated 23-9-1966 that the appellants (petitioners) 'were not sitting allottees.'
(6) Reliance was placed for the petitioners, among others, on the letter dated 29-1-1958 (copy of which is Annexure D) written by the then Competent Officer, Rajkot to the Appellate Officer, New Delhi conceding that in transferring the property to the mortgages claimants he had made an obvious mistake acting on the wrong advice of Shri B.H. Mehta, Assistant Custodian, Porbander.
(7) At this stage it is necessary to notice that Respondent No. 2 (transferee from the mortgagees on 4-7-57) had filed a civil suit (No. 78 of 1958) in the Court of the Civil Judge, Senior Division Porbandar on 9-9-1959 for declaration to the effect that the property had been transferred by the Competent Officer to the non-evacuee mortgagee-claimants and that the Respondent No. 2 would become the rightful owner of the property. After recording evidence the suit was dismissed on 21-11-1961. It was held that the transfer in favor of non evacuee mortgagee-claimants by the Competent Officer was illegal and void since the Competent Officer was not authorised to transfer the property to non evacues mortgagee-claimants and that the same offended section 10(b)(l) (ii)(iii) and Rule ll-B(b) (ii)of the Evacuee Interest (Separation) Act, 1957 and Rules there under, respectively. The Union of India had been imp leaded in the said suit and they had also admitted that the order of the Competent Officer was illegal since the petitioners were sitting allottees and as such should have been offered the properties at the said price. Respondent No. 2 filed an appeal against the same (being First Appeal No. 179 of 1962). This appeal was withdrawn on 137.1970. There is also a reference to the pendency of the present Writ Petition in this Court in the said order dated 13.7.1970 (copy of which is Annexure E).
(8) It is needless to be detained by certain pleas taken in the return like want of jurisdiction or even about the question of the so-called abatement by reason of the death of respondents 4 and 5 specially in view of the transfer taken by the 2nd respondent and their having no further interest in the matter, even before the writ petition was filed. The 3rd petitioner died after the writ petition and there is an application C.M. No. 238-W of 1974 for adding his legal representative, namely, his son Santumal Lok Chand as his heir. Even this is no legal ground because the provisions of the Civil Procedure Code as such do not apply ; hence order 22C. P. C. does not in terms apply to this petition (vide Raj Kishore Rastogi v. The Appellate Officer, Jaisalmer Home l.L.R.1969 (Delhi) 989.. Shri P. N. Talwar appeared for the son also who is added the supplemental 4th petitioner.
(9) Having thus cleared the ground the main question which arises for determination in this petition may he discussed. Both Mr. P. N. Talwar, learned counsel for the petitioner, and Mr. R.H. Dhebar, learned councel for the respondents, have taken me through the scheme of the Evacuee Interest (Separation) Act, 1951 and the rules framed there under which bear on this question. Composite property has been defined by section 2(d) of the Evacuee Interest (Separation) Act (hereinafter called as 'the Act' and the rules as 'the rules') as any property in which an interest, has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950, and among others, in which the interest of an evacuee is subject to mortgage in any form in favor of a person, not being an evacuee. There has been no dispute that the property in this case is composite property. Section 7 which deals with the submission of claims contains sub-section (d) which relates to a claim made by a mortgagee. The claim was made by the mortgagee in this case and the competent officer, Rajkot had decreed it in the sum of Rs. 9942/14/ under section 8 of the Act. (After reproducing S. 10(b) & (c) and Rule 11- B (d) & (e) the judgment proceeds).
(10) Rule 11-D which relates to the sale of the composite property by public auction provides, among other things, that composite property 'shall be sold by public auction'. Rule 11-D also came into effect from a date later than the impugned transfer.
(11) Shri P.N. Talwar, learned counsel for the petitioner, contended that in the case of a mortgage of composite property and the mortgagee being a non-evacuee and also not a sitting; allottee, the hypotheca, which is composite property be sold only by public auction and the proceeds should be distributed among those entitled, it should not have been the subject matter of private transfer to the mortgagee. This is seen to Ie the position now after the rules have been amended. I am unable to find anything in the language of section 10 of the Act or any rule, as it stood prior to the amendment, making it obligatory to sell the composite property by public auction. All that Mr. Talwar could do was to refer me to a few decisions which when examined happen to be cases of transfers ordered after the above said amendments to thee rules.
P.D. Sharma, J.
(12) Pointed out in M/s.. Maunihal Thakar Dass v. Appellate Officer 1963 45 PLR 1093. that a perusal of clause (b) of section 10 and the rules (as amended) made it clear that the property could not be transferred to the mortgagee on payment of the difference between' the assessed price and the mortgaged money, simply because they were mortgagees in. possession. A perusal of the facts of the case would show that the main transfer to the mortgagee had been made on 25th' August, 1958 after the amendment of the rules whereas the impugned transfer in this case had been ordered prior to the amendment of the rules. There being nothing in section 10, without anything in the rules as it stood prior to the; amendment, to prevent such a transfer it could not lead to such a result.
(13) Mr. Talwar also drew my attention to a decision of a Division Bench of the Punjab High Court in Milap Singh v. The Appellate Officer (LPA No. 207 of 1962 dated 6-11-1963- which arose from the decision of a learned Single Judge (Shamsher Bahadur, J.) in Civil Writ No. )371 of 1961). Mr Talwar placed before me the judgments of the Single Judge as well as of the Division Bench ; in that case also rule 11-B (e) fell for consideration and it was pointed out that the above said rule envisages a claimant who is a mortgagee with or without possession and a sitting allottee who is a displaced person, the expression 'sitting: allottee' even not being defined in the Act and taking its ordinary commonsense meaning. I am afraid that the amended rule does not fall for consideration in the present case for the reason, already pointed out, that the transfer 'of this particular case was before the amended rule. I am unable to see any force in the submission of Mr. Talwar that a mortgagee is not equited with a co sharer. The mere fact that at one point of time the Competent Officer had himself conceded in his letter datel 29-1-1958 (copy annsxure 'D') to the Appellate Officer that he had committed a mistake in the transfer of the property from the mortgagee to the claimant is of no consequence The question is whither having nude an order of transfer of the property to the mortgagee, as it was done in this case, the said order was legally wrong If it was not a wrong order, as the above discussion snows, then nothing turns on the Competent Officer's erroneous view concerning the order of transfer passed by him What really falls for consideration in this writ petition is whether according to the Asl and the rules as it stood at the relevant time there was anything precluding the transfer of the mortgage claim. I am unable to find any. Section 10(b)(iii) seems wide enough to include a power to make such a transfer because the expression used therein is 'sell the mortgaged property', the further words therein, namely, 'for satisfaction of the mortgage debt' are not words of limitation ; they merely descr be the purpose for which the sale is to be made which is obviously for satisfaction of the mortgage debt ; the use of the further words 'and distribute the sale proceeds thereof' again 'only discribe what should happen in the event of a sale and the question of distribution of surplus after payment of the mortgage debt 'would only arise if there is a surplus there can be no question of such distribution of any surplus, when once the property is just sufficient only for satisfying the mortgagee. No limitation having been placed in the matter of the Competent Officer selling the mortgaged property to the mortgagee in satisfaction of the mortgage debt and the rules having been amended only later, requiring the composite property to be sold by public auction, the petitioner cannot successfully challenge the impugned transfer in this case.
(14) I have only to mention that the present petition falls on the merits, not on the ground of want of locus standi as contended for the respondents. I have discussed the question of what kind of interest is sufficent for claiming judicial review under Articles 226 and 227 of the Constitution of Civil Writ No. 119 of 1972 Shri Chakravarti Malhotra v. Union of India decided by me on 18-9-1974. Since I have discussed the question of 'interest' for judicial review at great length in that case there is no need for me to repeat here what has already been discussed. I have no difficulty in holding that the petitioners who claim to be in possession of the property, whether sitting allottees or not but they fail on merits since the slid transfer to mortgagees cannot be impugned in law.