(1) The order of Shri H.R. Nair seems to be vitiated by an error, apparent on the face of the record, because he observed that there was nothing on record to suggest that the notice under section 6 was ever served on the petitioner (respondent No. 4). It seems that: Shri Nair had not scrutinised the file carefully. The necessary facts which appear from the said file have been set out above and they show that the above-said view of Shri Nair is patently erroneous. He was probably under the impression, erroneously, the actual service on the present 4th respondent (petitioner before him) had to be proved. On the other hand, what the section and the Rules contemplate is that the notice should be 'issued' and service was to be according to any one of the modes prescribed in Rule 11 in this case by ordinary post under Certificate of Posting. It is worth repeating that the Rule does not require actual service of the notice to be proved as a fact. $(8.)$ Shri Nair also committed another error ; this was also apparent on the face of the record because he thought that the non-evacuee interest also had been vested in the Custodian. He also relied on the decision of the Supreme Court in Abdul Hakim Khan v. Regional Settlement Commissioner : 1SCR531 which held that the non-evacuee interest does not so vest in the Custodian. The proposition of law is not disputed but, as it is seesn from Annexures A and C, set out above., only 3/4th share, that of the evacuee alone, had been vested in the Custodian. This again has a bearing on the want of sufficient application of mind by Shri Nair to the questions which he had to consider, of the order of Shri Nair is quashed it would follow from that very premise that the further transfer of the property would also automatically fall to the ground even as when the order for sale of the property (passed by the Competent Officer) was set aside, the sale (by public auction) in favor of the petitioners also was held to automatically fall, by Shri Nair.
(2) V.S. Deshpande, J. in Sewa Nand-v. Appellate Officer 1973. Plr 106-1973 Rlr 124 had an occasion to consider the question whether the Competent Officer was obliged of make an express offer of sale of the property to the non-evacuee incase of composite property under Rule 11 B (b) (i) and (ii) and held that it was for the Competent Officer to determine whether the non-evacuee co-sharer was not interested in purchasing the property. He could find this in various ways ; even lack of interest shown by non-evacuee would be enough. In such case the Competent Officer need not make any formal offer to the non-evacuee co-sharer and wait for his refusal because this was not the only manner in which the Competent Officer could find out such lack of interest by the non-evacuee co-sharer. What applies to the instant case would be however Rule 11 B(e) (i) but the language of both the provisions is nearly identical.
(3) Recently I had occasion to consider the question whether there was any compulsion on the part of the Competent Officer to determine the value of the property in all circumstances, even in those cases where the concerned non-evacuee was nut interested in purchasing the property (vide Smt. Feroze Begum & Ors v. Appellate Officer C.W. No. 3 of 1971, decided on 25.4.75). The above case was argued before me by the same set of learned counsels, Shri P.N. Talwar and Shri M. Ahmed, though their roles were reversed in that case. It is needless for me to repeat here what I have stated therein regarding the scheme of the Act and the Rules in the matter of the Competent Officer selling composite property vis-a-vis the requirement of offering the same to the concerned non-evacuees.
(4) In the present case the crucial question is whether notice had been sent to the non- evacuees concerned, specially 4th respondent in the present case. Once this question is answered in favor of the petitioners, as discussed above, the lack of interest on the part of the 4th respondent would be manifest from his omission to make a claim within sixty days as required by section 7 for a period of two years thereafter until the Competent Officer mace an order for the sale of the composite property by public auction. This order was no doubt passed by the Competent Officer on 7.2.63 when none of the claiments including the 4th respondent appeared before him. All that he: had to do was to wait for a period of sixty days to expire from the date of publication which, as noticed already, the Competent Officer had in fact directed. More, he was not required to do.
(5) It is seen from the file even on 10-9-62 the Competent Officer had noticed that no claim had been filed and he had directed a notice to be issued to A.C. (L) directing him to prove the share of the evacuees in respect of the plots in question on 6-10-1962 at Luck now. An order was subsequently passed only on 7-2-1963 (Annexure B) directing sale of the property. If notice had been issued in the mode prescribed by section 6 read with Rule 11 and no claim had been received from any of those persons to whom notice had been issued the mere assertion of the 4th respondent that he had come to know about the order for sale only in the year 1965 could not help him, materially. The date of the application of the 4th respondent to set aside the order of sale passed by the Competent Officer was 16-6-1965 as it can be seen from the order of the Competent Officer, U.P., Lucknow (Shri K.L. Wason) dated 26-5-1966 (copy of which is Annexure D to the petition) by which he dismissed the said application on the ground that he had no power to set aside any order of his predecessor. It was thereafter that he moved the Appellate Officer by means of a revision application. It is seen from the said order, dated 26-5-1966, of Shri Wason that not only was the application filed by the 4th respondent on 16-6-1965 but that the contention of the 4th respondent then was that no notice had been served on him. Shri Was on had himself pointed out (in addition to Annexures A and C) that only 3/4th of the properties had vested in the Custodian. and that the remaining l/4th was stated to belong to the non-evacuee co-sharers. inspire of this positive statement and the other records (copies of which are Annexures A and B to the petition) I am unable to comprehend how Shri Nair made the mistake of thinking that there was any illegality in the proceedings by reason of the non-evacuee share also vesting in the Custodian.
(6) Concerning the question of the knowledge of the petitioner (respondent No. 4) about the order dated 7-2-1963 passed by the Competent Officer directing sale of these properties sufficient details have not even been mentioned by Sh. Nair in his order to show bow the delay in filing the revision petition could be condoned ; the need for mentioning such details was evivently not felt because of the erroneous impression that the legal requirement was that actual service of notice on the 4th respondent had to be proved. The facts, which have been set out from the order-sheet of the Competent Officer, completely belie the assumption made by Shri Nair in this regard and show that notices had been issued as required by section 6.
(7) Shri Nair's order is seen to be vitiated by the above errors, both of fact and of law, which are patent on the face of the record. $(15.)$ Shri Ahmed finally contended that since there could be no review under section 17 of the Act of the order passed by either the Competent Officer or the Appellate Officer the Writ Petition should have been filed soon after Shri Nair passed the impugned order dated 29-5-1967 and that the petitioners could not ask for any relief in this petition because of the subsequent delay of nearly two years in filing this Writ Petition. It is no doubt true as explained in M/s Mehar Singh Nanak Chand v. Mis Naunihal Thakar Dais : AIR1972SC2533 that there is no power to review, under section 17 of the Act, the order of a Competent Officer or of the Appellate Officer. But this decision, it may be noted, had been rendered long subsequent to the filing of the review petition in this case which was kept pending for nearly two years before it was finally dismissed as not maintainable. The present Writ Petition itself having been filed within a month of the order dismissing the review petition the present petition cannot be dismissed on the ground of either laches or delay.
(7) The fact that the concerned properties had been transferred to the 4th respondent on 15-10-1968 during the pendency of the review petition filed by the petitioners could not be of any assistance to the 4th respondent when once it is seen that the impugned order passed by Shri Nair (copy of which is Annexure E) has to be quashed the transfer also would then automatically fall to the ground.
(8) In the result, the impugned order dated 29-5-1967, passed by Shri H.R. Nair (copy of which is Annexure E to the petition) is quashed ; the transfer of the properties to the 4th respondent which had been purchased already by the petitioners in public auction in 1963, is also quashed.