CHANDRA BHAN SINGH versus LATAFAT ULLAH KHAN & ORS.

CHANDRA BHAN SINGH

LATAFAT ULLAH KHAN & ORS.

September 19, 1978 [S. MURTAZA FAZAL Au AND P. N. SHINGHAL, JJ.J

Evacuee· Interest (Separation) Act, 1951-S. 18-No provision in the Ac/ for review of the order passed by Competent Officer--Competent Officer-If could review his own order.

Practice and Procedure-Conduct of parties to be taken into account while granting relief in writ petition.

The property in dispute was undivided property (composite property) of three brothers, one of whom died and his sons migrated to Pakistan. One-third share of the p1operty was declared evacuee property and vested in the Custodian under the Administration of Evacuee Property Act, 1950. It was allotted to the appel-lant who was refugee.

The Competent Officer issued individual notices under Section 6 of the Evacuee Interest (Separation) Act, 1951 to the two remailling brothers of the evacuee sllld their acknowledgments were placed on record. Since no claim was filed by anyone, an order was made by the Competent Officer on 31-8-1955 vest-ing the property in the, Custodian under Sec. 11. As the property was again reported to be composite property, fresh notices. were inadvertently issued to the co-sharen1, but no claim was filed by anyone and an order was again made on 23-3-1957 vesting the property in the Custodian. Possession of the evacuees one-third share in the property was delivered to the appellant under order of Assistant Custodian.

After lapse of time, the respondents filed an application for 'restoration' alleging fuat no notice, for separation of the evacuee interest in the property was ever served on them and that they learnt of the vesting order only when" the Manager of the evacuee property went to the village to take p'1Sscssion. The Competent Officer passed an order setting aside the vesting order dated 31-8-1955 and tnms:ferred the property to the sons of the deceased brother for Rs. 5,000/-.

The Assistant Custodian of Evacuee Property made an application to the Competent Officer for review of his order, pointing out wrong impression. It was stated that the evacuee interest in t.lie property had already been allotted to the appellant. The Competent Officer partly allowed the review.

The respondents questioned the power of the Competent Officer to review his order, but the objection was rejected.

The respondents filed writ petition under Art. 226 of the Constitution. The High Court quashed the order of review on the ground that in the absence of any provision in the Act for review, it was not permissible for the Competeill: Officer w review his order.

Allowing the appeal to this Court,

HELD : ( 1) The conduct of the respondents was such as to disentitle them to writ and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the wTit petition. [899B]

(2) Reviev: is creature of statute and cannot be entertained in the abseJice of provision therefor. [897G]

Harbhajan Singh v. Karan Singh & Ors., [1966] 1 SCR 817; Patel Chunibhai Dajibhai etc. v. Narayanrao Khanderao Jambekar & Anr., [1965] 2 SCR 328 referred to.

Baijnath Ram Goenka v. Nand Kumar Singh, 40 I.A. 54; Ananatharaju Slzetty v. Appu Hegde, AIR 1919 Mad. 244, approved.

(3) The earlier two orders of the Competent Officer setting aside the vesting order and transferring the evacuee interest in the property to the respondents were therefore without jurisdiction. [897H-898A]

( 4) But when the respondents had themselves unlawfully invoked the review jurisdiction of the Competent Officer, which did not exist, to their ad vantage, and to the disadvantage of the appellan~ they could not be heard to say, when the Department invoked the self-same jurisdiction on two important grounds, that the review orders of the Competent Officer were void for want of jurisdiction and mnst be set aside for that reason. [898H-899B]

(5) The High Court failed to appreciate that while it was true that want of jurisdiction to review the order by the Competent Officer could not be cured by waiver, it would not ne'cessarily follow that the Court was obliged to grant writ at the instance of party whose conduct was snch as to disentitle it for it. The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was " matter of considerable importance. [898E]

( 6) The High Court did not take due notice of the fact that the respondents had allowed the passing of the impugned orders, in spite of the individual notices to them. It did not notice the further fact that when that order had become final because of the failure to file an appeal or an application for revision it was not permissible in view of the specific bar of Sec. 18 for the respondents to move "restoration" application and to obtain its reversal by the Competent Officer. [898F-GJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2329 of 1969.

Appeal by Special Leave from the Judgment and Order dated 16-12-1966 of the Allahabad High Court in S.C.A. No. 346/66.

G. N. Dikshit, M. V. Goswami and 0. P. Rana for the Appellant.

S. K. Mehta and P. N. Puri, for Respondent Nos. 1-5.

The Judgment of the Court was delivered by

SHINGHAL, J.-This appeal by special leave arises from 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.

Mohammad Salamat Ullah Khan, Mohammad Sharafat Ullah Khan and Mohammad Latafat Ullah Khan were three brothers owning one-thlrd share each in their joint property. Mohammad Salama! Ullah Khan died, and his sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah Khan and Tahir Khan migrated to Pakistan in 1948. The remaining two brothers of Mohammad Salama! Ullah Khan, name-ly, Mohammad Sharafat Ullah Khan and Mohammad Latafat Ullah Khan, stayed in India and had two-third share in that property. Major Chandra Bhan Singh was refugee from Pakistan, and 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 compo-site property, notices were issu~ in April, 1955, under section 6 of the Evacuee Interest ( Sepaxation) Act, 19 51, hereinafter referred to as the Act. They were "individual" notices and the Competent Offi-cer has stated that they were served on.Latafat Ullah Klian and Shara-fat Ullah Khan and their acknowledgements were pJeced on the record. No claim was however filed by anyone, and an order was made by the competent Officer on AJ!gl!Sl 31, 1955, nnder section 11 of the Act, ·vesting the pwperty in .the Custodian. It may be mentioned that Mohammad Sharafat Ullah Khan had died earlier, ieaving behind his four sons Shaukat Ullah Khan, Habib Ullah Khan, Nasar Ullah Khan and Aman Ullah Khan.

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 Mohamm_ad 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 therefore again made on March 23, 1957, under section 11 of the Act, vesting the property in the Cus-todian. •The Assistant Custodian (L) sent senior Inspector to take posses-sion of the vested property. Shaukat Ullah Khan, the eldest son of Mohammad Sharafat Ullah Khan, took notice of that development and nndertook to file his claim within 15 days. No claim was however filed even then. Possession of Mohammad Salama! Ullah Khan's 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-perma-nent allotment along with his brother Raghubir Singh.

In the meantime, an application was made by Mohammad Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan on March 12, 1958, for "restoration". It was stated in the accompany-ing affidavit of Arshad Ullah Khan, son of Mohammad Latafat Ullah Khan, that Mohammed Sharafat Ullah Khan had died in 1950, and no 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, 195~, 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 iinpression that the Assistant Custodian (L) had no ob-jection to the transfer of the evacuee interest in the property to Moham-med Latafat Ullah Khan and the four sons of Mdhammad Sharafat Ullah Khan for Rs. 5000/-. An order was made to that effect the same day. One of the items of the property was however left out of evaluation" even at that time for subsequent decision.

The Assistant Custodian of Evacuee Property however made an application to the Competent Officer soon after, on June 11, 1958, for review of his order dated May 12, 1958, on the ground, inter alia, that certain grove plots were treated as agricultural plots. That was followed by another application for review dated July 10, 1958, on the ground that the Competent Officer made his order dated May 12, 1958 under the incorrect impression that the Assistant Custodian (L) had no· objection to the transfer of the evacuee share in the land to Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan for Rs. 5000/-. It was also pointed out that the evacuee interest in the property had already been allotted to Major Chandra Bhan Singh, who wa~ displaced person from Pakistan. It was therefore prayed that the order dated May 12, 1958, may be reviewed and the property partitioned so as tl'.Y ~eparate the evacuee's one-third interest. The Competent Officer partly disposed of the re-view application dated July 10, 1958, the same day. He corrected the mistaken impression that the Assistant Custodian had no objection to the transfer of the evacuee share in the property for Rs. 5000/- and modified the earlier order dated May 12, 1958, by deleting that state-ment from it.

Mohammad Shaukat Ullah Khan however raised an objection against the maintainability of the review applications. The Comp~ tent Officer took the view that as the Appellate Officer had held Ill

appeal No. 953 of 1957, that he (Competent Officer) could review his own order, there was no force in the objection to the contrary. He examined the petition in terms of the requirements of Order 47 rule 1 of the Code of Civil Procedure and held that new and important matter regarding the allotment of the land to the refugees (Major Chandra Bhan Singh and his brother Raghubir Singh) had been discovered which justified reconsideration of the earlier decision dated May 12, 1958. He therefore reviewed that order and set it aside by his order dated September 8, 1958. He gave his reasons for taking the view that the proper course was to partition the property, and allotted the plots mentioned in that order t_o the Custodian in lieu of the evacuee share of Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah Khan and Tahir Khan sons of Mohammad Salamat Ullah Khan. The other plots were left to the Share of the non-evacuee co-sharers, namely, Mohammad Latafat Ullah Khan, Shaukat Ullah Khan, Aman Ullah Khan, Habib Ullah Khan and Nasar Ullah Khan their two-third share by way of non-evacuee interest. Plot No. 1791/1 was left out for separate decision after receipt of the report regarding its valuation. Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan felt aggrieved against that order of the Competent Officer and moved the High Court by petition under article 226 of the Omstitution.

The High Court took the view in its impugned judgment dated Feb-ruary 26, 1964, that in the absence of any provision il;t the Act for review, it was not permissible for the Competent Officer to review his 0order dated May 12, 1958. It therefore allowed the writ petition, ql!ashed the order Qf review dated September 8, 1958, and directed the "opposite parties" not to give effect to it and not to disturb the possesSion of the writ petitioners on the plots in dispute. This, as has been stated, has given rise to the present appeal.

In order to appreciate the controversy, it will be desirable to exa-mine the facts and circumstances of the case with due regard to the provisions of the Act.

It has _not been disputed before us, and is in fact beyond challenge, that the property in question was "composite property" within the meaning of section 2(d) of the Act because the one-third undivided share of Mohammad Salarnat Ullah Khan's sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah Khan and Tahir Khan, wbo0 bad migrated to Pakistan in 1940, bad been declared to be evacuee pro-perty and had vested in the Custodian under the Administration of Evacuee Property Act, 1950, while the remaining share belonged to the other two brothers of Mohammad Salarnat Ullah Khan who were

non-evacuees. The evacuee interest in the property was therefore con-fined to that one-third share in the entire property being the right, title and interest of the evacuees therein within the meaning of clause ( e) of section 2. It is equally clear that it was permissible for the non-evacuee shareholders having the remaining two-third share in the property to make claim in respect of it within the meaning of clause (b) of section 2 of the Act in their capacity as co-sharers of the evacuees in the property.Section 5 of the Act gives jurisdiction to the Competent Officer to decide any claim relating W composite property, and section 6 requires that for the purpose of determining or separating the evacuee interest in composite property, the Competent Officer may issue general, and also an individual notice on every person who in his opinion may have claim in that property to submit claims in the prescribed form and manner. It will be remembered that as the property was listed as "oomposite property", notices were issued under section 6 of the Act and the individual notices were served on Latafat Ullah Khan and Sharafat Ullah Kh~n and their acknowledgments were placed on the record. No claim was however filed under section 7 of the Act claim-ing any interest in the composite property. Section 8 of the Act provides that on receipt of claim under 'section 7, the Competent Officer shall ho1d an inquiry into the claim and give his decision there-on, while sections 9 and 10 deal with reliefs in respect of mortgaged property of evacuees and separation of the interest of evacuees from those of the claimants in composite property. Section 11 provides for the vesting of evacuee interest in the custodian where notice under section 6 is issued in respect of any property but no claim is filed. As no statement of claim was received by the Competent Officer, the eva-cuee interest in the "composite property" vested in the Custodian and the Competent Officer accordingly took decision to that effect on August 31, 1955. It was lawful order under section 8 read with section 11 of the Act. Section 14 provides that any persoii'aggrieved by an order of the Competent Officer made under Section 8 may prefer an appeal to the Appellate Officer within 60 days of that order, and it would then be for the Appellate Officer to confirm, vary or reverse the order appealed from and to pass such orders as he deelILS-fit. Section 15 of!he Act further provides that the Appellate Officer may at any time call for the record of any proceeding in which the Competent Officer has passed an order fo> the purpdSe of satisfying hims~lf as to the legality or propriety thereof and to pass such order in relation thereto as he thinks fit. This appellate and revisiomil jurisdiction was therefore available to the writ petitioners if they felt dissatisfied with the order

of the Competent Officer dated August 31, 1955, but it is admitted be-fore us that they did not avail of it. Section 18 of the Act therefore came into operation which provides as follows :-

" 18. Save as otherwise expressly provided in this Act, every order made by any appellate officer or competent officer shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, ap-plication or execution proceedings."

So when the aggrieved persons did not invoke the appellate or revi-sional jurisdiction of the Appe!late Officer, tbe order of the Competent Officer elated August 31, 195?, became final by virtue of section 18 and could no't be called in question thereafter.

It will be recalled that, as has been mentioned, the property was again repairted to be of composite nature, and fresh notices were inadvertently issued to the non-evacuee shareholders. They were personally served on Mohammad Latafat Ullah Khan, and on Moham-mad Shamfat Ullah Khan through his son Shaukat Ullah Khan, on February 25, 1956, but no claim was filed by anyone in spite of that second opportunity, and vesting order was once agaiu made under section 11 of the Act on March 23, 1957. No appeal or revision application was filed against that order also, under sections 14 and 15 of the Act. In fact it was after lapse of some 2! years from the order dated August 31, 1955, and 1 year from March 23, 1957 that Mohammad Latafat Ullah Khan and the four sons of Mohammad Shara-fat Ullah Khan made an application fof "restoration" of their claims on March 12, 1958. By th~n the order dated August 31, 1955 had become final and binding under section 18 and it was not permissible for any one to reopen it merely on the basis of "restoration" applica-tion and to review the earlier order dated August 31, 1955 in disregard of the statutory bar of that section. It is well settled that review is creature of statute and canno't be entertained in the absence of pro-vision therefor. It will be enough to make reference in this connec-tion to the decision of this Court in Harbhajan Singh v. Karam Singh and others(!) which approved the earlier Privy Council decision in Baijnath Ram Goenka v. Nand Kumar Singh(') the decision in Aliai1-tharaju Shetty v. Appu Hegde(') and reiterated the decision in Patel Chunibhai Dajibhai etc. v. Naravanrao Khanderao Jambtikar and another('). The orders of the Competent Officer dated March 15, 1958 and May 12, 1958 in favour of the writ petitioners setting aside

(1966] l s. c. R. 817.

(J) A.I.R.1919Mad.244.

40 I. A. 54.

(4) [1965] 2 S. C.R. 328.

the vesting order dated August 31, 1955, and transferring the evacuee interest in the property to Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan for Rs. 5000/- were there-fore without jurisdiction. As has been stated, the Assistant Custo-dian felt aggrieved against the orders of the Competent Officer dated March 15, 1958, and May 12, !958, and made applicatidn soon after, on June 11, 1958, and July 10, 1958, for review, and the Competent Officer allowed them by his orders dated July 10, 1958 and September 8, 1958. The order dated July 10, 1958 wc.s not of much consequence. The fact therefore remains that the two sets of orders of the Competent Officer, namely, the first set of the two orders dated March 15, 1958 and May 12, .1958, and the second set consist-ing of the orders dated July 10, 1958 and September 8, 1958 suffered from the same vice of lack of jurisdiction and were equally void.

This fact was specifically brought to the notice of the High Court, but it ruled it out by merely saying that the "fact that the petitioners had wrongly. filed review application which was allowed by the Com-petent Officer would not confer jurisdiction on the Competent Officer to review his orders if the statute had not made any provision for it." That was begging the question, and could not possibly meet the o'b-jection of the present appellants. If we may say so with respect, what the High Court failed to appreciate was that while it was true that want of jurisdiction to review the order of August 31, 1955, could not be cured by waiver, it would not necessarily follow that the Court was obliged to grant certiorari at the instance of party whose conduct was such as to disentitle it for it. The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was matte~ of considerable importance. The High Court did not take due notice of the fact that the writ petitioners (or their predecessors-in-interest) had allowed the passing of the order dated August 3 I, 1955 in spite of the individual notices which were issued under section 7, and did not deserve any relief. It did not notice the further fact that when the order dated August 31, 1955 had become final because · of the failure to file an appeal or an application for revision, it was not permissible under the law, in view of the specific bar of section 18, for the writ petitioners to move "restoration" app1ication on March 12, 1958 for its review and to obtain its reversal by the Competent Officer's orders dated March 15, 1958 and May 12, 1958, end to oo-tain wholly beneficial order for the transfer of the one-third evacuee interest to them on payment of Rs. 5000/-. They, nevertheless, did so. So when the writ petitioners had themselves unlawfully invoked the review jurisdiction of the Competent Officer, which did not exist, to their advantage, and to the disadvantage of the present appellant, by

their application dated March 12, 1958, they could not not be heard to say, when the Department invoked the self-same jurisdiction on two important grounds (to which reference has been made earlier) that the review orders of the Competent Officer dated July 10, 1958 and September 8, 1958 were void for want of jurisdiction and must be set aside for that reason. The conduct of the writ petitioners was there-fore such as to disentitle them to certiorari, and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the, dismissal of the writ petition.

The appeal is allowed, the impugned judgment of the High Court dated February 26, 1964, is set aside and the writ petition is dismissed. There will however be no order as to costs in the facts and circumstan-ces of the case.

Appeal allowed.