Prakash Narain, J.
(1) The appellants in the Letters Patent Appeal along with one Shri Bir Sain Jain were the non-evacuee co-owners having 2/ 3rd share in house property No. VJI/3033/5998-5610(New), G.B. Road, Delhi. The balance 1/3rd share of the said property was declared evacuee property and the property became 'composite property' within the meaning of clause (d) of Section 2 of the Evacuee Interest (Separation) Act, 64 of 1951 (hereinafter called 'the Act').
(2) Steps were taken to separate the evacuee interest and the appellants along with Shri Bir Sain Jain filed claims before the Competent Officer claiming their respective shares in the property. The valuation report received' by the Competent Officer fixed the value of the property at Rs. 44,160.00 . The claimants took time to file objections to the valuation report. Despite a number of opportunities having been granted, no objections were filed with the result that the Competent Officer by his order dated 5.5.1970 adopted - the price of Rs. 44,160.00 as the assessed price having come to the conclusion that the claimants had no objections to file. It appears from the record that on 5th Maz, 1970 itself Shri K.K. Mittal, counsel for appellants Nos. 14 to 29 and Shri Bir Sain Jain made a prayer that the property be partitioned. The Competent Officer directed the appellants to file a partition scheme within 15 days but the same was not filed. On 7th July, 1970 the Competent Officer noted that no partition scheme had been filed in spite of several opportunities having been granted and he, accordingly, ordered that the property be sold by auction.
(3) The property was auctioned on 7th November, 1970 and one Sewa Nand (respondent No. 1 ) gave his highest bid of Rs. 44,000.00 . Before the bid could be confirmed, appellants 1 to 13 on 13th November, 1970 filed an application for the purchase of the said property and also another property No. Ill-1884-B/3924-45 (New) situate on G. B. Road, Delhi, (Old). On the same day, they also filed a revision petition against the order of sale dated 7th July, 1970. The said revision petition, No. 128 of 1970, which had been signed by appellant No. 18 only, was allowed on 16th December, 1970 against which order a review application was filed by Sewa Nand and the same was allowed on 19th August 1971 on the ground that the order dated 19.12.70 had been passed ex-parte. The said revision was then heard in presence of both the parties and was dismissed on the ground that the said petition had been signed by only one of the claimants i.e. K.G. Jain, and not by all of them.
(4) After the rejection of the aforesaid revision petition the appellants along with Shri Bir Sain Jain filed another revision petition No 93 of 1971 against the order dated 7th July, 1970. The said petition was allowed by the Appellate Officer by his order dated 20th October, 1971 who directed that the evacuee interest in the property in dispute be transferred to the appellants on the payment of the assessed price of the evacuee share therein.
(5) The respondent Sewa Nand thereafter filed a writ Petition being Civil Writ No. 221 of 1972 challenging the order dated 20th October, 1971. The said writ petition was allowed by V.S. Deshpande J. (as his Lordship then was). It was held by the learned Single Judge that on a correct construction of Rule 11B of the Evacuee Interest (Separation) Rules, 1951 the Appellate Officer was not justified in construing the said rule to mean that an offer must be made by the Competent Officer to the non-evacuee co-sharers and must be rejected by them before the property could be sold and he further held that the Competent Officer was right in holding that the non- evacuee co-sharers, namely the appellants herein, were not interested in buying the property.
(6) In this appeal the. appellants have challenged the correctness of the judgment of the learned Single Judge and before us Bawa Shiv Charan Singh, the learned counsel for the appellants, raised four principal contentions in support of the appeal.
(7) The appellants have firstly contended that on a correct construction of Rule 11 B it was incumbent on the Competent Officer to offer to sell the evacuee share to the appellants at the assessed price and he had no jurisdiction to direct the sale of the property unless there was refusal to purchase by the non-evacuee co-owners. This contention is refuted by Mr. Talwar on behalf of the respondent SewaNand. He submits that the reading of the order dated 5th May, 1970 and the statement made by Shri K.K. Mittal clearly shows that the appellants were not interested in purchasing the evacuee share as the counsel for some of the appellants had requested that the property may be partitioned and further the request for evacuee shares to be sold was made only in the letter dated 13th November, 19 70 written to the Competent Officer that the claimants were interested in purchasing the evacuee share. It is contended by Mr. Talwar that the said letter shows that the claimants did not have the money with them prior to that date and that is why they were not interested in the purchase of the said evacuee share. Mr. Talwar also relies on an unreported Division Bench decision of this court in Smt. Feroza Begum and others v. Appellate Officer and others, L. P. A. No. 63 of 1975 decided on 26th May, 1978.
(8) In our opinion the contention of Bawa Shiv Gharan Singh, learned counsel for the appellants, is well founded. The mode and manner in which the evacuee interest can be separated is provided by Rule 11B of the Act. It is an admitted case that the value of the evacuee interest is less than Rs. 15,000.00 and as such the said separation of the share could take place only in accordance with the method and manner prescribed by Sub-rule (b) of the said Rule. The relevant portion of the said rule is as follows :
'(B)Where the evacuee's share is valued at Rs. 50,000.00 or less in the case of an industrial undertaking, or Rs. 15,000.00 or less in the case of any other immovable property excluding agricultural lands in the Union territory of Delhi and suburban lands in all States and Union territories to which clause (a) above applies; and also excluding agricultural lands in rural area to which clause (e) below will apply. (i) if the evacuee share is less than half, sell that share to nonevacuee co-sharer at the price assessed by the Competent Officer and the non-evacuee shall be entitled to pay the entire price of such evacuee share, either in case or by associating claimants or partly in case and partly by associating claimants. (iii) if neither the non-evacuee co-share nor the displaced allottee is interested in purchasing the property, sell it by auction and distribute the sale proceeds in accordance with the shares determined by the Competent Officer.'
(9) The reading of this Rule shows that the first mode of separation provided therein is by way of sale of the evacuee share to the non-evacuee claimant. The share can only be sold, and the non-evacuee can only exercise his option to buy, if the Competent Officer makes an offer of the same. This offer and the subsequent sale, if any, can only be after the property has been valued and the value of the evacuee share determined. The process of determination of the value has to be completed before the said share can be sold under Rule 113(b)(i). In other words the two proceedings are clearly distinct from each other. First the value of the property has to be determined by the Competent Officer after hearing objections, if any. He is then required to take up the question of sale of the evacuee share under Sub-rule (i). We are clearly of the opinion that having arrived at the value of the evacuee share it was incumbent on the Competent Officer to offer to sell the same to the non-evacuee co-shares and this has admittedly not been done in this case. A non-evacuee co-sharers is not required by the Rule to find out on his own as to whether the property has been valued or not and then to ask the Competent Officer to sell the evacuee share to him. Under the rule the duty to take steps to sell the said share is on the Competent Officer and the sale is initiated by his offering to sell the same to the non-evacuee co-sharer. It is only if the non-evacuee co-sharer expresses his willingness to purchase the evacuee share or by his own conduct, express or implied, shows his disinterestedness in the purchase of the said evacuee share) can the Competent Officer take recourse to sell the property by auction.
(10) The decision of this Court in the case of Feroza Begum (supra) is clearly distinguishable and has no application to the facts of this case. In the said case the Competent Officer had found that the petitioner therein had chosen to purchase the property in auction at a much lower price than the assessed value as on all the five times when the said property was auctioned either she or her late husband (who was the original non-evacuee claimant) had bid at the auctions but the said bids had not been accepted because they were at prices lower than the assessed va.lue. In the said case the non evacuee co-sharer had made an express statement before the Competent Officer on 30th December) 1964 which was as follows :
'Iam a co-sharer in this property. The market value of this property is not less than Rs. 9000.00 . The present bid is too low. The property be put to sale again with my initial bid of Rs. 8000.00 .'
On the aforesaid facts this Court held that the non-evacuee claimaint had agreed to the sale of the property by auction and thereby indicated that he was not interested in purchasing the property by paying the assessed value. The inevitable inference which flowed from the facts on the record was that the property was rightly sold by auction. In the present case none of the claimants ever agreed to the property being sold by auction. On the contrary it appears that they had been trying to marshall their resources in order to purchase the evacuee share. The appellants no doubt time and again sought time from the Competent Officer to file objections to the valuation but obtaining time in the way cannot lead to the conclusion that they were not interested in purchasing the evacuee share. The record does not show that at any point of time the Competent Officer ever even suggested that the appellants could buy the evacuee share.
(11) The fact that the counsel for one set of appellants had asked that the property be partitioned and that he had undertaken to furnish a partition scheme also does not lead to the conclusion that the appellants were not interested in purchasing the property. It will be seen that Section 10 of the Act enables the Competent Officer to take such measures as he may consider necessary for the purposes of separating the evacuee interest. The said section in particular sets out four different ways in which the separation of interest can be effected. These are as follows :
(1)Purchase of the non-evacuee share by the Custodian, (2) Transfer of the whole property to the non-evacuee sharers, (3) Sale of the whole property and distribution of the sale proceeds between the Custodian on the one hand and the nonevacuee co-sharers on the other hand, (4) Partition of the property according to the shares of the evacuees and the non-evacuee sharers.
(12) The manner in which the power under Section 10 is to be exercised is provided by Rule 11 B. Sub-rule (a) is inter alias applicable where the value of the evacuee's share is more than Rs. 15,OCO.00 , if the property is non-industrial. In the present case the value of the evacuee's share is less than Rs. 15,000.00 and the provisions of Sub-rule (b) are applicable. Under Sub-rule (b) the Competent Officer is not empowered to separate the evacuee interest by the partition of the property. In the case of properties where the evacuee share is less than half, the Competent Officer can separate the evacuee interest only by (a) selling to non evacuee the evacuee share, or (b) if the non-evacuee is not interested in purchasing the property then to sell the property by auction and distribute the sale proceeds in accordance with the shares determined by the Competent Officer. It is obvious from the reading of the said provision that the request for partition of the evacuee share could not be made and nor could it be granted. As already stated, Section 10 of the Act merely provides the different ways in which the interests can be separated but the manner in which this is to be achieved is prescribed in rule I IB. The Competent Officer could not choose a manner not provided by Sub-rule (b) of Rule 11 B merely because it was one of the permissible methods set out in Section 10 of the Act. In any event, the making of the said request on behalf of one set of claimants did not mean that all the appellants had expressed their disinclination in the purchase of the evacuee share. We are, thereforee, of the opinion that it was incumbent on the Competent Officer to offer to sell the evacuee share to the non-evacuee co-sharers before the property could be put to action. As this was admittedly not done, the Appellate Officer was right when in his order dated 20th October, 1971 he directed that the evacuee interest in the property in dispute be transferred to the appellants on the payment of the assessed price of the evacuee share therein.
(13) The learned counsel for the appellants has also contended that the writ petition should have been dismissed because Bir Sain Jain who was one of the co-sharers had died prior to the filing of the writ petition and his legal representatives had not been in-pleaded. In fact Bir Sain Jain had been shown as respondent No. 22. It is contended by Mr. Talwar that the fact of the death of Bir Sain Jain was not known earlier and it is only when the Letters Patent Appeal was filed that it was for the first time brought on record that Bir Sain Jain had died on 3rd February, 1972. It is contended by the learned counsel for the respondent that if it was known that Bir Sain Jain had died, steps would have been taken to implead his legal representatives on record for even if Bir Sain Jain was a necessary party the writ petition ought not to be dismissed merely because one of the necessary parties had not been imp leaded. The learned counsel for the respondent has cited a number of decisions but it is not necessary for us to go into this matter because this appeal is being allowed on merits and even if we come to the conclusion that legal representatives of Bir Sain Jain were necessary party, the proper course would be not to dismiss the writ petition but to give an opportunity to the petitioner to implead the said legal representatives as parties to the petition.
(14) One other contention which has been raised on behalf of the appellants was that as the bid of Sewa Nand had not been accepted or confirmed he had no right to file the writ petition as he had no title to the property. Reliance was placed by the learned counsel for the appellants on the decision of the Supreme Court in Bishan Paul v. Mothu Ram, : AIR1965SC1994 , wherein it was held that under the provisions of the Displaced Persons (Compensation and Rehabilitation) Rules, the title to the property passes on the date of confirmation of the sale. It is contended by the learned counsel for the appellants that till the title in the property had passed, Sewa Nand had no locus standi to file the writ petition. This question of locus standi does not appear to have been argued before the learned Single Judge and nor has this point been raised in the grounds of appeal. In the circumstances it would not be proper to permit the appellants to raise this ground at this stage.
(15) It has also been contended that the order dated 20th October, 1971 of the Appellate Officer was not an order without jurisdiction and the learned Single Judge ought not to have interferred with the said order in exercise of his extraordinary jurisdiction under Article 226 of the Constitution. This contention of the appellants is well founded. The Appellate Officer had come to the conclusion that the provisions of Rule 11B had not been complied with keeping in view the facts and circumstances of this case. This is essentially a question of fact and assuming that the Appellate Officer had made a mistake the said order could at worst be called an erroneous order. There was no want of jurisdiction in passing the said order and nor was there any error apparent on the face of the order which could possibly have justified the learned single Judge in exercising his discretion under Article 226 of the Constituison. This is more so when we find from the record that the appellants had deposited the full amount of the assessed value of evacuee interest and the respondent Sewa Nand, had not paid the full amount of the auction price and his bid had not been confirmed. The equities were clearly in favor of the appellants and the learned single Judge ought not to have interfered with the order of the Appellate Officer.
(16) We accordingly allow the appeal, set-aside the judgment of the learned single Judge and restore the order dated 20th October, 1971 ofthe Appellate Officer. In the peculiar circumstances of the case, the parties to bear their own costs.