V.S. Deshpande, J.
(1) House property bearing municipal No. VII/3033/5598-5610, G B. Road, Delhi was acomposite evacuee property in which one-third share was vested in the Custodian Evacuee property and two-thirds share in the various nonevacuee co-owners. Under section 10 of the Evacuee Interest (Separation) Act, 1951, the separation of the interest of evacuees from those of claimants in composite properly, namely, the co-owners of the twothirds share in the property, could be made in four different ways, namely:-
(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 non-evacuee sharers on the other hand; (4) Partition of the peoperty according to the shares of the evacuee and the non-evacuee sharers ;
and lastly, by combination of all or some of the above methods. Rule 11B of the Evacuee Interest (Separation) Rules, 1951 provide for the procedure in giving effect to these methods of separation of evacuee share from the non-evacuee co-sharers. Proceedings were, thereforee, started before the Competent Officer on 27th September, 1969 when a report of the valuation of the whole property was received by him. He ordered that the non evacuee claimants may be invited to file objections against the same. The non-evacuee claimants were represented in two sets, one by Shri O.P. Choudhry and the other by Shri K. K. Mittal Some of the claimants also personally attended. By the valuation report itself the valuation of the whole property was assessed at Rs. 44,160. Underrule 11B(b)(i) this valuation required the Competent Officer to sell the evacuee share to the non-evacuee co-sharers at the price assessed by the Competent Officer inasmuch as the value of the evacuee share was less than Rs. 15.000.00. Right from the inception, thereforee, the nonevacuee co-sharers knew that they had the right io buy the whole of the property if they did not object to the valuation. The Competent Officer would confirm the valuation if the non-evacuee co-sharers did not object to it. The opportunity to purchase the whloe property was, thereforee, available clearly to the non-evacuee co-sharers right from the time they came to know that the valuation has been made below Rs. 45,000.00 with the result the non-evacuee eo-sharers had the right to buy the whole of the property. The non-evacuee co-sharers, however, went on delaying the filing of objections against the valuation report, They could have simply informed the Competent Officer that they did not want to object to the valuation and on the other hand wanted the Competent Officer to confirm the valuation so that they could straightaway buy the property. Alter several hearing the Competent Officer ultimately passed an order on 12th February, 1970 that it the claimants did not file objections by the next date of hearing, the valuation shall be adopted by him. On the next date of hearing again the claimants pr yed for some more time and the case was fixed for 9th April, 1970 On 9th April, 1970 also they again requested for more time and the case was fixed for 5th May, 1970. On that dale, the Competent Officer held that since the claimants did not file objections after several hearings, 'this only shows that they have no objections to file. Hence the value reported by the Custodian viz. Rs. 44,160.00 is adopted as assessed price. Reserve price shall be 10% less'. The counsel for one side of the claimants Shri K. K. Mittal then made a statement that the claimants did not wish to file objections against the estimated value of Rs. 44,160.00 and stated that the value may be adopted and the property may be partitioned. The Competent Officer, thereforee, directed the claimants to file a partition scheme. The partition scheme was not filed on 9th June, 1970 and also on 7th July, 1970. The Competent Officer, thereforee, ordered that as no partition scheme had been filed by the parties in spite of several opportunities, the property may be sold by auction The case was fixed for sale report on 4th August 1970. The non-evacuee claimants thus knew on that date that on failing the partition, that next mode of separation of evacuee property adopted by the Competent Officer was sale of the property. The Custodian obviously not interested in buying the non-evacuee share in the property, the last mode of separation of evacuee share which remained was, thereforee, transfer of the whole property to the non-evacuee sharers on payment by them of the amount of valuation. Under rule 11B(b((i) the claimants also knew that they had a right to buy the whole property and the Compelent Officer was bound to sell the same to them. If they were interested In buying the property they would have told the Competent Officer not to pass the order for sale. The order for sale was passed in the presence of their counsel without any objection on 7th July 1970. The sale was held on 7th November 1970 Even till then the claimants did not inform the Competent Officer that they wanted to buy the property. Ultimately an application was made by some of the claimants, namely, Messrs. Panna Lal Girdbar Lal Lachhman Das Musaddi Lal on 13th November 1970 to the Competent Officer to the following effect :-
'CLAIMANTSare interested to purchase the evacuee share and pay of the price to the Custodian as early fixed, That your humble claimants could not opt to purchase the properties above referred to as they were short of funds and since they have now arranged the amount to be deposited regarding the Custodian share, it is humbly requested that necessary order be passed and that money be accepted and order for sale in respect of both the properties be cancelled'.
On the same day, revision against the said order dated 7th July, 1970 of the Competent Officer was filed by the claimants. In this revision No. 128 of 1970 the Appellate Officer passed an order on 16th December, 1970 setting aside the order for sale on the ground that it was obligatory on the Competent Officer to have offered the evacuee interest to the non-evacuee co-sharers who had more than half share in the properly. Only after they had declined to purhase the evacuee interest, he could order for the auction of the property. This order of 16th December, 1970 was passed without notice to the petitioner who had purchased the. properly in the auction. It was, thereforee, an ex-parte order so far as the petitioner was concerned. On the petitioner's application, thereforee, the Appellate Officer set aside the said order on 19th August, 1971 as it was ex parte. The Appellate Officer then proceeded to hear the revision petition No. 128 of 1970 in the presence of all the parties but he dismissed the said revision petition on the short ground that it was not signed by all the claimants but by only one of them, i.e. , Shri K C Jain. The matter was thus disposed of without any finding as to the merits of the claim made by the respondents to this petition that they were entitled to parchase the property. thereforee, another revision petition was filed by the claimants before the Appellate Officer. The Appellate officer took the same view, namely, that it was obligatory on the Competent Officer to offer the evacuee share to the non-evacuee claimants and on their refusal to purchase, the property could be legally auctioned. He further observed that 'the learned counsel for the respondents has not been able to show from the record that the Competent Officer had offered the evacuee share to the petitioners at any stage or they had refused to purchase the same. In my opinion, the Competent Officer wrongly directed for the auction of the property'. For these reasons, he set aside the order for sale dated 7th July, 1970.
(2) The auction purchaser petitioner has challenged this order of 20th October, 1971 of the Appellate Officer setting aside the order for sale dated 7th July, 1970.
(3) The decision of the case turns on the proper construction of rule 11B(b) clauses (i) and (iii) but the whole of rule 11B(b) including clause (ii) is reproduced below so that its meaning be properly understood :
'R.11B(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 (c) below will apply- (i) if the evacuee shore 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 cash or by associating claimants or partly in cash and partly by associating claimants, (ii) if the evacuee share is half or more than half, sell the properly at the assessed price to the sitting allottee, if a displaced person, and if he is not interested, offer it to the non evacuee co-sharer who shall be entitled to pay the entire price of such evacuee share either in cash or by associating claimants or partly in cash and partly by associating claimants ; (iii) if neither the non-evacuee co-sharer 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.'
It will be seen that clause (i) of rule 11B (b) requires the Competent Officer to sell the property to the non-evecuee sharer at the assessed price. The pre-supposes the willingness of the non-evacuee co-sharer to buy it. For, a sale is a bilateral transaction. Just as the Competent Officer has to sell the property, the non-evacuee co-sharer has to buy it and pay the assessed price for the same. The learned Appellate Officer was of the view that it was obligatory on the Competent Officer to make an offer of the sale of the property to the nonevacuee co-sharers and he could not put the property to sale unless and until they had refused the offer. It may be pointed out, however, that the language of clause (i) is in this respect in contrast with the language of clause (ii). While such an express offer is required in clause (ii). it is not required in clause (i). Secondly, clause (iii) sheds some light on the meaning of both clause (i) and (ii). It enables the Competent Officer to sell the property 'if neither the non-evacuee co-sharer nor the displaced allottee is interested in purchasing the property '. It is for the Competent Officer, thereforee, to determine whether the non-evacuee co sharer is not interested in purchasing the property. He can find this out in various ways. One way may be to make a formal offer to the non-evacuee co-sharer and a wait for his refusal. But on the language of clause (i) of rule 11B (b) it cannot be said that this is the only way in which the Competent 0fficer can find out whether the non-evacuee co-sharer is interested in buying the property. The lack of interest shown by the non-evacuee co-sharer may be apparant to the Competent Officer in different ways according to the circumstances of each case. In the present case it must have become apparent to the Competent Officer by the following circumstances, namely:-
(1)Right from the inception the claimants knew that the valuation of the property was below Rs.45,000/ and, thereforee, they had the right to purchase it under rule IIB(b)(i). This was known to them from October 1969 onwards. They could have shown their interest in purchasing the property to the Competent Officer at any time thereafter. They did not do so. (2) If they were interested in buying the property they would not have taken adjournments after adjournments without filing any objections to the valuation of the property. (3) If they were interested in buying the property, some of them represented by Shri K. K.. Mittal would not have suggested that the property be partitioned. If the rest of the claimants were interested in buying it they would have opposed the suggestion for partition and would have said that they wanted to buy the property. (4) On 7th July, 1970 when the Competent Officer was tired of waiting and found that no partition scheme was submitted, the claimants could still have told him that they wanted to buy the property. It is because the Competent Officer did not find any interest in the claimants in the property that he ordered it to be sold by auction. After knowing the order of sale at any rate the claimants should have said that no steps should be taken for conducting the sale by auction because they wanted to exercise their right to parchase the property. They did not do so. (5) On 13tb November 1970 the claimants Messrs Panna Lal Girdhar Lal Lachhman Das Mussaddi Lal made an express admission before the Competent Officer that they could not opt to purchase the property till then as they were short of funds and that they had arranged the amount to be deposited now (then) If the claimants were short of funds till 13th November 1970 they could not have been interested in buying the properly.
The inference drawn by the Competent Officer, thereforee, that they were not interested in buying the property was correct. thereforee, even without a formal offer by the Competent Officer and its rejection by the claimants, in the particular circumstances of this case, the Competent Officer was right in presuming that the non-evacuee co-sharers were not interested in buying the properly.
(4) The right of the non-evacuee co-sharers to buy the property under rule 11B (b) (i) was defeasible under rule 11B(b) (iii) if they were not interested in buying the property. Once the right was so defeated, it could not be asserted again. It was only because the Competent Officer found, and rightly so. that they were not interested in buying the property that he put the property for sale. The order of sale was correct because it was passed after concluding that the non-evacuee co-sharers were not interested in buying the property The learned Appellate Officer was not justified in construing rule 11B (b) (i) 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. The learned Appellate Officer did not consider rule Iib (b) (iii) and, thereforee, erred in thinking that such an offer and rejection was necessary. On the contrary, the true lest was whether the non-evacuee co sharers were interested in buying the property or not. As this test was not applied by the Appellate Officer and the circumstances of this case was not considered by him, he did not envisage what was the true question for decision before him. He went wrong in deciding the matter on a wrong construction of clause (i) of rule 11B (b) and by totally ignoring to consider clause (iii) thereof.
(5) The writ petition is, thereforee, allowed and the impugned order is set aside but without any order as to costs.