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SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND P.N. SHINGHAL, JJ.
Major Chandra Bhan Singh, Appellant
Versus
Latafat Ullah Khan and others, Respondents.
Civil Appeal No. 2329 of 1969
Decided on 19-9-1978.
Advocates Appeared
Mr. G.N. Dikshit, Sr. Advocate (Mr. M. V. Goswami, Advocate for Mr. O. P. Rama, Advocate with him), for Appellant; Mr. S. K. Mehta and P.N. Puri, Advocates, for Respondents Nos. 1-5.
Evacuee Interest (Separation) Act, 1951- Section 6 - Composite property - Share in property - As property was listed as composite property notices were issued in April Section of Evacuee Interest Act hereinafter referred to as Act - They were individual notices and Competent Officer has stated that they were served on their acknowledgments were placed on record - No claim was however filed by anyone and an order was made by Competent Officer Section of Act vesting property in Custodian - It may be mentioned that had died earlier leaving behind his four sons – Held, Fact was specifically brought to notice High Court but it ruled it out by merely saying that fact that petitioners had wrongly filed review application which was allowed by Competent Officer would not confer jurisdiction on Competent Officer to review his orders if statute had not made any provision for it - That was begging question and could not possibly meet objection of present appellants - If court may say so with respect what High Court failed to appreciate was while it was true that want of jurisdiction to review order could not be cured by waiver it would not necessarily follow that Court was obliged to grant certiorari at instance of party whose conduct was such as disentitle it for it - High Court was exercising its extraordinary jurisdiction conduct of petitioners was matter of considerable importance - High Court did not take due notice of fact that writ petitioners had allowed passing of order in spite individual notices which were issued under Section and did not deserve any relief - It did not notice further fact that when order had become final because of failure to file an appeal or an application for revision it was not permissible under law in view of specific bar of Section for writ petitioners to move restoration application on for its review and to obtain its reversal by Competent Officers orders to obtain a wholly beneficial order for transfer of one-third evacuee interest to them on payment - Appeal allowed
JUDGMENT
SHINGHAL, J.:— This appeal by special arises from a judgment of the Allahabad High Court dated February 26, 1964. It will be enough to state the admitted facts for they are quite sufficient for its disposal.
2. Mohammad Salamat Ullah Khan, Mohammad Sharafat Ullah Khan and Mohammad Latafar Ullah Khan were three brothers owing one-third share each in their joint property. Mohammad Salamat Ullah Khan died, and his sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah and Tahir Khan migrated to Pakistan in 1948. The remaining two brothers of Mohammad Salamat Ullah Khan, namely, Mohammad Sharafat Ullah Khan and Mohammad Latafat Ullah Khan, stayed in India and had a two-third share in that property. Major Chandra Bhan Singh was a refugee from Pakistan, and a temporary allotment of the one-third evacuee share in the property was made in his favour on April 4, 1955. As the property was listed as composite property, notices were issued in April 1955, under Section 6 of the Evacuee Interest (Separation) Act, 1951, hereinafter referred to as the Act. They were individual notices and the Competent Officer has stated that they were served on Latafat Ullah Khan and Sharafat Ullah Khan and their acknowledgments were placed on the record. No claim was however filed by anyone, and an order was made by the Competent Officer on August 31, 1955, under Section 11 of the Act, vesting the property in the Custodian. It may be mentioned that Mohammad Sharafat Ullah Khan had died earlier, leaving behind his four sons Shaukat Ullah Khan, Habib Ullah Khan, Nasar Ullah Khan and Aman Ullah Khan.
3. It so happened that the property was again reported to be composite property. The earlier order dated August 31, 1955, was lost sight of, and fresh notices were issued to the co-sharers under Section 6 of the Act. They were served personally on Mohammad Latafat Ullah Khan, and on Mohammad Sharafat Ullah Khan through his son Shaukat Ullah Khan, on February 25, 1956. But again no claim was filed under Section 7 of the Act by anyone, claiming any interest in the composite property. An order was therefor again made on March 23, 1957, under Section 11 of the Act vesting the property in the Custodian.
4. The Assistant Custodian (L) sent a senior Inspector to take possession of the vested property. Shaukat Ullah Khan, the eldest son of Mohammad Sharafat Ullah Khan, took notice of that development and undertook to file his claim within 15 days. No claim was however filed even then. Possession of Mohammad Salamat Ullah Khans one-third share in the property was delivered to Major Chandra Bhan Singh on March 7, 1958, under orders of the Assistant Custodian. Thereafter an order was made on June 6, 1958 giving him quasi permanent allotment along with his brother Raghubir Singh.
5. In the meantime, an application was made by Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah on March 12, 1958, for "restoration". It was stated in the accompanying affidavit of Arshad Ullah Khan, son of Mohammad Latafatt Ullah Khan, that Mohammad Sharafat Khan had died in 1950, and so notice for separation of the evacuee interest in the property was ever served on them. It was further stated that they learnt of the vesting order only on March 6, 1958, when the Manager of the evacuee property went to the village to take possession. An order was quickly made on March 15, 1958 setting aside the vesting order which, it will be recalled, had been made as far back as August 31, 1955. The case was then taken up on May 12, 1958, when it was stated by Arshad Ullah Khan on oath that the only grove in the property was in plot No. 1791. The Competent Officer relied on that statement, and gathered the impression that the Assistant Custodian (L) had no objection to the transfer of the evacuee interest in the property to Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan for Rs. 5,000. An order was made to that effect the same day. One of the items of
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