# Arshadullah & Ors v. U.O.I. & Ors

- **Citation:** (2022) 3 ILRA 700
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** Writ C No. 1002033 of 1995
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arshadullah-ors-v-u-o-i-ors-48229
- **Pages:** 15

## Headnote

C.S.C.,
Arvind
Kr.
Mishra,
Dhirendra
Chaturvedi, Jitendra Prakash, Km. Pratima
Devi, Savitra V. Singh

Administration of Evacuee Property Act,
1950 - Section 27 - Evacuee Interest
(Separation) Act, 1951 - Powers of
revision of Custodian General - Section
27 empowers the Custodian General to
exercise the revisional jurisdiction at
any time either on his own motion or on
application made to him in this behalf
against
any
order
passed
by
the
Custodian - Limitation - There is no
limitation
provided
under
the
said
section - He may exercise on his own
motion or on an application made to him
in this behalf - Rider - Custodian General
should not pass an order prejudicial to
any other person without giving him
reasonable opportunity of being heard
(Para 29)

Property in question was a "composite
property" - one-third undivided share of one
Mohammad
Salamat
Ullah
Khan

who
migrated to Pakistan was declared evacuee
property while remaining 2/3rd share belonged
to the other two brothers who were nonevacuees - Competent Officer passed an order
on August 31, 1955, u/s 11 of the Evacuee
Interest (Separation) Act, 1951, vesting the
property in the Custodian - Possession of
Mohammad Salamat Ullah Khan's one-third
share in the property was delivered to
refugee Major Chandra Bhan Singh & he was
given
quasi-permanent
allotment
on
06.06.1958 - Assistant Custodian made a
proposal dated 16.08.1983 to the Custodian
for transfer of evacuee interest in favour of
the petitioners - Custodian vide his order
dated 11.10.1983 directed the transfer of
evacuee interest in favour of the petitioners -
Assistant Custodian on 28.08.1984 made a
reference to the Assistant Custodian General
praying for revision of his order on the ground
that entire facts were not placed before him,
therefore, proposal for sale of the land in
favour
of
the
petitioners
was
without
jurisdiction and against the judgment of the
Supreme Court in the case of Major Chandra
Bhan Singh v. Latafat Ullah Khan - Assistant
Custodian
General
vide
order
dated
18.1.1995
cancelled
the
orders
dated
16.08.1983 and 03.11.1983, whereby the
land was sold in favour of the petitioners on
the basis of concealment of facts - Held - By
concealment of facts petitioners in defiance
of the judgment of the Supreme Court got
the sale certificate issued in their favour in
respect of 1/3rd evacuee interest - Once the
proceedings got concluded by judgment of
the
Supreme
Court
any
subsequent
proceedings on the said issue was barred by
principle
of
res
judicata
-
petitioners'
conduct had been such which completely
disentitles them for a writ of certiorari (Para
69)
3 All. Arshadullah & Ors. Vs. U.O.I. & Ors.
701
Dismissed. (E-5)

## Text

_Characters 0–39,949 of 50,354. This is a partial read: ask again with offset=39949 for what follows._

700 INDIAN LAW REPORTS ALLAHABAD SERIES
considering
the
relevant
factors
as
mentioned above in the said judgement of
Smt. Pushpa Sareen (supra).

30. Considering the aforesaid facts, I
do not find that either the Collector (Stamp)
or the Commissioner erred in determining
the true market value of the property and
accordingly the stamp duty payable on the
instrument.

31. In view thereof, the present writ
petition has no force and is hereby
dismissed. Interim order, if any, stands
vacated.
----------
(2022)03ILR A700
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.03.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ C No. 1002033 of 1995

Arshadullah & Ors. ...Petitioners
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Akhilesh Kalra, Shyam Mohan Pradhan

Counsel for the Respondents:
C.S.C.,
Arvind
Kr.
Mishra,
Dhirendra
Chaturvedi, Jitendra Prakash, Km. Pratima
Devi, Savitra V. Singh

Administration of Evacuee Property Act,
1950 - Section 27 - Evacuee Interest
(Separation) Act, 1951 - Powers of
revision of Custodian General - Section
27 empowers the Custodian General to
exercise the revisional jurisdiction at
any time either on his own motion or on
application made to him in this behalf
against
any
order
passed
by
the
Custodian - Limitation - There is no
limitation
provided
under
the
said
section - He may exercise on his own
motion or on an application made to him
in this behalf - Rider - Custodian General
should not pass an order prejudicial to
any other person without giving him
reasonable opportunity of being heard
(Para 29)

Property in question was a "composite
property" - one-third undivided share of one
Mohammad
Salamat
Ullah
Khan

who
migrated to Pakistan was declared evacuee
property while remaining 2/3rd share belonged
to the other two brothers who were nonevacuees - Competent Officer passed an order
on August 31, 1955, u/s 11 of the Evacuee
Interest (Separation) Act, 1951, vesting the
property in the Custodian - Possession of
Mohammad Salamat Ullah Khan's one-third
share in the property was delivered to
refugee Major Chandra Bhan Singh & he was
given
quasi-permanent
allotment
on
06.06.1958 - Assistant Custodian made a
proposal dated 16.08.1983 to the Custodian
for transfer of evacuee interest in favour of
the petitioners - Custodian vide his order
dated 11.10.1983 directed the transfer of
evacuee interest in favour of the petitioners -
Assistant Custodian on 28.08.1984 made a
reference to the Assistant Custodian General
praying for revision of his order on the ground
that entire facts were not placed before him,
therefore, proposal for sale of the land in
favour
of
the
petitioners
was
without
jurisdiction and against the judgment of the
Supreme Court in the case of Major Chandra
Bhan Singh v. Latafat Ullah Khan - Assistant
Custodian
General
vide
order
dated
18.1.1995
cancelled
the
orders
dated
16.08.1983 and 03.11.1983, whereby the
land was sold in favour of the petitioners on
the basis of concealment of facts - Held - By
concealment of facts petitioners in defiance
of the judgment of the Supreme Court got
the sale certificate issued in their favour in
respect of 1/3rd evacuee interest - Once the
proceedings got concluded by judgment of
the
Supreme
Court
any
subsequent
proceedings on the said issue was barred by
principle
of
res
judicata
-
petitioners'
conduct had been such which completely
disentitles them for a writ of certiorari (Para
69)
3 All. Arshadullah & Ors. Vs. U.O.I. & Ors.
701
Dismissed. (E-5)

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. This writ petition was filed in the
year 1995 praying for a writ of certiorari
calling for records to quash judgment and
orders dated 18.01.1995 and 24.02.1995
(Annexure Nos.14 and 17) passed by
Additional Judge Small Cause Court-I in
SMR No.21 of 1984.

2. This Court admitted the said writ
petition on 27.10.1995 and stayed the
operation of the orders dated 18.01.1995 and
24.02.1995. The respondents were directed
not to disturb the possession of the
petitioners from the land in question until
further orders.

3. The order sheet of the case would
show a very disturbing trend. After obtaining
the interim order, the case has been dragged
by the petitioners for 27 long years before
this Court. Every time when the case got
listed before the Court, either counsel for the
petitioners was not present or adjournment
was sought on one pretext or the other.
Looking at the adjournments sought by the
petitioners, this Court on 02.12.2015, when
no-one remained present on behalf of the
petitioners even in the revised call, directed
the case to be listed in the next cause list
peremptorily. On many dates when the case
was listed peremptorily, adjournments had
been sought by the counsel for the petitioners
with numerous excuses. Some of the such
adjournments sought by the counsels for the
petitioners as mentioned in the order sheet are
being given hereunder.

4. On 05.10.2016, counsel for the
petitioners sought adjournment on the
ground of his ill health.

5. On 13.10.2017, none was present
for the petitioners to prosecute the case
and, therefore, this writ petition was
dismissed for non prosecution.

6. A recall application was filed to
recall the order dated 13.10.2017 whereby
the writ petition was dismissed for non
prosecution, and this Court issued notice on
the said application vide order dated
08.11.2017. Though the writ petition was
not restored on 15.05.2018, counsel for the
petitioners submitted that petitioner No.3
had expired and a substitution application
would be required to be filed. This Court,
looking at the numerous adjournments
sought by the counsel for the petitioners,
granted 3 days time to file substitution
application and directed the case to be
listed on 21.05.2018 as unlisted.

7. On 22.05.2018, learned counsel for
the petitioners again sought adjournment
and this Court directed the case to be listed
on 24.05.2018.

8. On 24.05.2018 again a request was
made for adjournment of the case, the
Court directed the case to be listed on the
next day i.e. 25.05.2018.

9. On 25.05.2018 again a request was
made for adjournment of the case, and the
case was directed to be listed on
02.07.2018.

10. On 02.07.2018 again no-one
appeared on behalf of the petitioners to
press this writ petition, and this Court was
of the view that the writ petition had
become infructuous by efflux of time, and
dismissed the writ petition as infructuous.
The case was consigned to record.
However, it was observed that if the
petitioners would think that the matter
702 INDIAN LAW REPORTS ALLAHABAD SERIES
survived, they would be at liberty to move
an application for recall of the order within
a month.

11. An application (C.M.Application
No.76960 of 2018) was filed for recalling
the order dated 02.07.2018, and on
24.07.2018, this Court directed that the
application to be listed with previous
papers.

12. On 06.09.2018, learned counsel
for the petitioners sought adjournment on
the said application on the ground of his ill
health, and this Court directed the case to
be listed in the next cause list peremptorily.

13. Application No.76960 of 2018 for
recall of the order dated 02.07.2018 was
listed before the Court on 22.10.2018. Noone was present to press the application on
behalf of the petitioners and, therefore,
recall application was dismissed for non
prosecution.

14.

Another
application
being
C.M.Application No.139716 of 2018 for
recall of the order dated 22.10.2018 was
filed on behalf of the petitioners. This
Court vide order dated 13.12.2018 gave
liberty to the respondents to file objections
to the said application within 15 days.

15. This Court on 16.01.2019 allowed
the application No.76960 of 2018 and
recalled the order dated 22.10.2018 and the
application for recall of the order dated
02.07.2018 was restored to its original
number and, thereafter recalled the order
dated 02.07.2018 as well and restored the
petition to its original number vide order
dated 16.01.2019. This Court also allowed
the application for substitution.

16. After showing so much leniency
by the Court, again when the case was
listed on 29.01.2019, one of the counsels
for the petitioners sought adjournment on
the ground that he was on sanctioned leave.
The Court again showed leniency and
condoned
the
delay
in
filing
the
substitution application to bring on record
the legal heirs of petitioner No.6 and
allowed the applications and condoned the
delay vide order dated 27.08.2019.

17. The application for bringing on
record legal heirs of petitioner No.4 was
also allowed by the order of same day.

18. On 14.10.2019, the Court directed
for listing of this writ petition in first week
of November, 2019.

19. Again on 07.11.2019, learned
counsel
for
the
petitioners
sought
adjournment on
account of
personal
difficulty, and the Court directed the case
to be listed within next three weeks.

20. On 04.11.2020, when the case was
listed, learned counsel for the petitioners
sought adjournment on the ground of his ill
health, and the case was directed to be
listed again on 15.12.2020.

21. On 15.12.2020, this Court
directed the case to be listed within 3
weeks and when the case was listed on
20.01.2021, the counsel for the petitioners
again sought adjournment, and this Court
directed the case to be listed after 4 weeks.

22. On 07.07.2021, counsel for the
petitioners again sought adjournment of the
case, and the case was directed to be listed
within a period of 3 weeks.
3 All. Arshadullah & Ors. Vs. U.O.I. & Ors.
703

23. On 31.08.2021, learned counsel for
the petitioners again sought adjournment, and
this Court directed the case to be listed within
3 weeks peremptorily.

24. On 09.09.2021, learned counsel for
the petitioners sought adjournment of the
case, and the case was directed to be listed
within 4 weeks peremptorily. This Court
made it clear that the case would not be
adjourned on the next date.

25. On 23.09.2021, the Court directed
the case to be listed in the next cause list
peremptorily. On 30.09.2021, learned counsel
for the petitioners sought adjournment, and
this Court directed the case to be listed in the
next cause list peremptorily.

26. On 07.10.2021, the case was again
directed to be listed peremptorily in the next
cause list.

27. On 09.11.2021, this Court passed
following order:-

"The matter is of the year 1995
which is listed in the cause list, peremptorily,
however, none has responded on behalf of the
petitioners.

List
this
matter
again
on
18.11.2021, peremptorily.

In case if none appears to press the
aforesaid
petition
on
the
next
date,
appropriate orders will be passed."

28. The case was again listed on
18.11.2021 and this Court passed following
order:-

"1. On 31.08.2021 when the case
was listed, Mr. Akhilesh Kala, learned
counsel for petitioner has sent an illness
slip. The case was directed to be listed
peremptorily after three weeks. The same
was directed to be listed on 09.09.2021 and
on an adjournment slip of learned counsel
for the respondent as well as request made
on behalf of learned counsel for petitioner,
the case was again directed to be listed
peremptorily within four weeks. Again on
23.09.2021, the case was directed to be
listed peremptorily in the next cause list.
On 30.09.2021 again, on request of Sri
Akhilesh Kalra, learned counsel for the
petitioner, the case was directed to be listed
peremptorily in the next cause list. A
similar order was passed on 07.10.2021. On
09.11.2021 the Court again directed the
matter to be listed peremptorily on
18.11.2021 and provided that in case none
appears on the next date to press the
petition, appropriate orders shall be passed.

2. Today on 18.11.2021 an out of
station slip is sent by the office of Sri
Akhilesh
Kalra,
learned
counsel
for
petitioner.

3. In view of the aforesaid, put up
case
peremptorily
on
24.11.2021
in
additional cause list."

29. Again when the case was listed on
24.11.2021, counsel for the petitioners
sought adjournment and the case was
directed to be listed in the 2nd week of
January, 2022, and on 25.01.2022, when
the case was listed this Court issued card
notices to respondent Nos.5 to 8 and
directed the case to be listed on 28.02.2022.

30. On 02.03.2022, when the case was
listed, learned counsel for the petitioners
sought adjournment. The Court looking at
the history of uncalled for adjournments
sought by the counsel for the petitioners to
drag the litigation for 27 long years,
704 INDIAN LAW REPORTS ALLAHABAD SERIES
directed the case to be listed on the next
day i.e. 03.03.2022.

31. When the case was listed on
03.03.2022, counsel for the petitioners
again sought adjournment. This Court
passed following order:-

"On the request of learned
counsel for the petitioners, list this petition
on 8.3.2022 peremptorily.

It is made clear that the matter
shall be taken up in the first round even if
the counsel for the petitioners is not able to
appear and the Court will proceed to decide
the matter on its own."

32. On 08.03.2022 again the counsel
for the petitioners sought adjournment and
the case was directed to be listed on the
next day i.e. 09.03.2022, and in this manner
the Court could force the counsel for the
petitioners to make his submissions on the
writ petition.

33. Leniency shown by the Court has
been thoroughly misused by the learned
counsel(s) for the petitioners. This case was
dismissed thrice for want of prosecution.
No stone had been left unturned to see that
hearing of the case should not take place
before this Court for reasons which would
be
best
known
to
the
counsel(s)
representing the petitioners.

34. This Court is at pain to note the
conduct of the case of the counsels
representing the petitioners. Adjournments
are sought as a matter of course. The
precious time of the court gets criminally
wasted. Litigants suffer as there cases also
get dragged on and not decided. This is the
main reason for huge pendency/arrears of
cases in this Court. The Bar and Bench are
two wheels of the chariot of justice. If the
Bar does not cooperate, it would be highly
difficult and rather impossible to move the
chariot of justice. Timely and effective
justice to the litigants who come before this
Court with a ray of hope would be
impossibility. This Court hopes that Bar
will rise to the occasion and counsels
representing the parties in case should
come to the Court fully prepared to argue
the cases whenever, listed for arguments
and should not seek adjournments unless so
required
under
the
compelling
circumstances.

35. Be that as it may, the Court would
like to proceed and decide the case on
merit.

36. It is stated that Mohammad
Salamat Ullah Khan, Mohammad Sharafat
Ullah Khan and Mohammad Latafat Ullah
Khan, three brothers were ex-proprietary
tenants of Plot Nos.92, 98, 114, 1438,
1464, 1472, 1261, 1599, 1502, 1510, 1516,
1562, 1777/1, 1799, 1800, 1873, 1884,
1885, 1899, 1900, 1903, 1904, 1907 and
1908 and grove at Plot No.1791 in equal
shares. Mohammad Salamat Ullah Khan
died, and his four sons Karamat Ullah
Khan, Dilawar Ullah Khan, Muzaffar Ullah
Khan 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. Entire property was a composite
property.

37. 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
3 All. Arshadullah & Ors. Vs. U.O.I. & Ors.
705
April 1955, under Section 6 of the Evacuee
Interest (Separation) Act, 1951. Notices
were served upon Latafat Ullah Khan and
Sharafat Ullah Khan. No claim was,
however,
filed
by
anyone,
and
the
Competent Officer passed an order on
August 31, 1955, under Section 11 of the
Evacuee Interest (Separation) Act, 1951,
vesting the property in the Custodian.

38. 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
Evacuee
Interest
(Separation) Act, 1951. 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 Evacuee
Interest (Separation) Act, 1951 by anyone,
claiming any interest in the 'composite
property'. An order was, therefore, again
made on March 23, 1957, under Section 11
of the Evacuee Interest (Separation) Act,
1951, vesting the property in the Custodian.

39. The Assistant Custodian (L) sent a
senior Inspector to take possession of the
property which got vested in the Custodian
as a result of the order passed by the
competent officer. 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
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-permanent allotment along with his
brother Raghubir Singh, father of petitioner
Nos.6, 7 and 8.

40. In the meantime, an application
was made by Mohammad Latafat Ullah
Khan and the four sons of Mohammad
Sharafat Ullah Khan on March 12, 1958,
for restoration. It was stated in the
accompanying affidavit of Arshad Ullah
Khan, son of Mohammad Latafat Ullah
Khan, that Mohammad Sharafat Ullah
Khan had died in 1950, and no notice for
separation of the evacuee interest in the
property was ever served upon them.

41. 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 and recalling the order made as far
back as August 31, 1955. On May 12,
1958, Arshad Ullah Khan on oath stated
that the only grove in the property was in
plot 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
on the same day. One of the items of the
property (grove) was, however, left out of
evaluation even at that time for subsequent
decision.

42. The Assistant Custodian of
Evacuee Property, however, made an
application to the Competent Officer soon
thereafter, on June 11, 1958, for a review of
his order dated May 12, 1958, on the
ground, inter alia, that certain grove plots
were treated as agricultural plots. That was
706 INDIAN LAW REPORTS ALLAHABAD SERIES
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.5,000/-. It was also pointed out that the
evacuee interest in the property had already
been allotted to Major Chandra Bhan
Singh, who was a displaced person from
Pakistan. It was, therefore, prayed that the
order dated May 12, 1958, may be
reviewed and the property be partitioned so
as to separate the evacuee's one-third
interest. The Competent Officer partly
disposed of the review application dated
July 10, 1958 on 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.5,000/- and modified the earlier
order dated May 12, 1958, by deleting that
statement from it.

43. Mohammad Shaukat Ullah Khan
had
made
objections
against
the
maintainability of the review applications. The
Competent Officer took the view that as the
Appellate Officer had held in Appeal No. 953
of 1957, that the 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 a 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 to 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 and 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 as
their two-third share by way of non-evacuee
interest. Plot 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 this Court by a
petition under Article 226 of the Constitution.

44. This Court in its judgment dated
February 26, 1964 took a view that in the
absence of any provision in the Evacuee
Interest (Separation) Act, 1951 for review, it
was not permissible for the Competent Officer
to review his order dated May 12, 1958. It,
therefore, allowed the writ petition, quashed
the order of 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.

45. Major Chandra Bhan Singh
challenged the said judgment of this Court
before the Supreme Court by filing S.L.P.
which was converted as Civil Appeal
No.2329 of 1969. The said Civil Appeal
was decided by the Supreme Court on 19th
September, 1978 in Major Chandra Bhan
Singh vs Latafat Ullah Khan & Ors :
(1979) 1 SCC 321.

46. The Supreme Court noted the
undisputed fact that the property in
question was a "composite property" within
3 All. Arshadullah & Ors. Vs. U.O.I. & Ors.
707
the meaning of Section 2(d) of the Evacuee
Interest (Separation) Act, 1951 because the
one-third undivided share of Mohammad
Salamat Ullah Khan's sons Karamat Ullah
Khan, Dilawar Ullah Khan, Muzaffar Ullah
Khan and Tahir Khan, who had migrated to
Pakistan in 1948, had been declared to be
evacuee property 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 Salamat Ullah
Khan who were non-evacuees. The evacuee
interest in the property was, therefore,
confined 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 was further
permissible
for
the
non-evacuee
shareholders having the remaining twothird share in the property to make a claim
in respect of it within the meaning of clause
(b) of Section 2 of the Evacuee Interest
(Separation) Act, 1951 in their capacity as
co-sharers of the evacuees in the property.

47. The Supreme Court noted scheme
of the Evacuee Interest (Separation) Act,
1951 and said that Section 5 of the said Act
gave jurisdiction to the Competent Officer
to decide any claim relating to a composite
property, and Section 6 requires that for the
purpose of determining or separating the
evacuee interest in a composite property,
the Competent Officer may issue a general,
and also an individual notice on every
person who in his opinion may have a
claim in that property to submit claim(s) in
the prescribed form and manner. Since, the
property
was
listed
as
"composite
property", notices were issued under
Section
6
of
the
Evacuee
Interest
(Separation) Act, 1951 and the individual
notices were served on Latafat Ullah Khan
and Sharafat Ullah Khan and their
acknowledgments were placed on the
record. No claim was, however, filed under
Section
7
of
the
Evacuee
Interest
(Separation) Act, 1951 claiming any
interest in the composite property. Section
8 of the Act provides that on receipt of a
claim under Section 7, the Competent
Officer shall hold an inquiry into the claim
and give his decision thereon, 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 a 'composite
property'. Section 11 provides for the
vesting of evacuee interest in the Custodian
where a notice under Section 6 was issued
in respect of any property but no claim was
filed. As no statement of claim was
received by the Competent Officer, the
evacuee
interest
in
the
"composite
property" vested in the Custodian and the
Competent Officer accordingly took a
decision to that effect on August 31, 1955.
The Supreme Court held that the order
passed by the Competent Officer was a
lawful order under Section 8 read with
Section 11 of the Evacuee Interest
(Separation) Act, 1951.

48. It was further said that Section 14
provides that any person aggrieved by an
order of the Competent Officer made under
Section 8 could 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 deems fit. Section 15 of
the Evacuee Interest (Separation) Act, 1951
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 for the purpose of
satisfying himself as to the legality or
propriety thereof and to pass such order in
708 INDIAN LAW REPORTS ALLAHABAD SERIES
relation thereto as he thinks fit. This
appellate and revisional jurisdiction was,
therefore, available to the writ petitioners if
they felt dissatisfied with the order of the
Competent Officer dated August 31, 1955,
but they did not avail of it. Section 18 of
the Act provides that every order passed by
the 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,
application or execution proceedings.

49. When the aggrieved persons did
not invoke the appellate or revisional
jurisdiction of the Appellate Officer, the
order of the Competent Officer dated
August 31, 1955, became final by virtue of
Section 18 and could not be called in
question thereafter.

50. The Supreme Court further
noticed that after the order dated 31st
August, 1955, the property in question was
again reported to be a 'composite property'
and four fresh notices were issued to the
petitioners on 25.02.1996 but no claim was
filed by anyone in spite of that second
opportunity and a vesting order was once
again made under Section 11 of the
Evacuee Interest (Separation) Act, 1951 on
March 23, 1957. No appeal or revision
application was filed against the order also,
under Sections 14 and 15 of the Evacuee
Interest (Separation) Act, 1951. After a
lapse of some 21⁄2 years from the order
dated August 31, 1955 and one year from
March 23, 1957, Mohammad Latafat Ullah
Khan and the four sons of Mohammad
Sharafat Ullah Khan made an application
for restoration of their claims on March 12,
1958. By then the order dated August 31,
1955 had become final and binding under
Section 18. The Supreme Court held that it
was not permissible for anyone to reopen it
merely on the basis of a restoration
application and to review the earlier order
dated August 31, 1955 in disregard of the
statutory bar of section 18. The Supreme
Court held that the orders of the Competent
Officer dated March 15, 1958 and May 12,
1958, were not of much consequence, and
they also suffered from the same vice of
lack of jurisdiction, and were equally void.
The Supreme Court commented upon the
conduct of the writ petitioners which would
disentitle to them for a writ of certiorari.
The Supreme Court allowed the appeal
filed by Major Chandra Bhan Singh and set
aside the order dated 26th February, 1964
passed by this Court and dismissed the writ
petition of the petitioners.

51. The petitioners did not thereafter
sit idly. They thereafter filed a review
petition before the Supreme Court stating
that as a consequence of revival of the
order dated 31.08.1995 by virtue of which
petitioners' whole property was ordered to
have been vested in the Custodian was not
in consonance with the earlier decision of
the Supreme Court reported in AIR 1961
SC 1319. The Supreme Court, however,
dismissed the review petition inasmuch as
the petitioners had not raised such a ground
in the writ petition.

52. After Supreme Court allowed the
appeal of Major Chandra Bhan Singh in the
case of Major Chandra Bhan Singh v.
Latafat Ullah Khan (supra), the petitioners
again filed an application under the
executive instructions dated 25.03.1963
wherein a non evacuee co-sharers could
purchase the evacuee interest in the
'composite property', if they so desired.

53. The Assistant Custodian, it
appears did not have knowledge of the
order passed by the Supreme Court. He
3 All. Arshadullah & Ors. Vs. U.O.I. & Ors.
709
made a proposal dated 16.08.1983 to the
Custodian for transfer of said evacuee
interest under the provisions of Section
10(2)(o) of the Administration of Evacuee
Property Act, 1950 in favour of the
petitioners. The Custodian unaware of the
judgment of the Supreme Court vide his
order dated 11.10.1983 directed the transfer
of evacuee interest in the aforesaid property
in favour of the petitioners as proposed by
the Assistant Custodian and accorded his
approval to the proposal submitted by the
Assistant Custodian.

54. In pursuance to the order dated
11.10.1983
passed
by
the
Custodian,
Assistant Custodian transferred the said
evacuee interest to the extent of 1/3 share in
favour of the petitioners on deposition of sale
consideration and issued a sale certificate on
02.11.1983.
Sale
certificate
also
got
registered before the Registrar, Meerut. Thus,
the matter which was concluded up to
Supreme Court, the petitioners got it
reopened in their favour by misleading the
Assistant Custodian and Custodian by
concealing the judgment of the Supreme
Court in the case of Major Chandra Bhan
Singh v. Latafat Ullah Khan (supra).

55. The respondents believed that in
pursuance of the order dated 31.08.1955
the entire property including 1/3 evacuee
interest stood vested into Custodian and,
therefore, they were entitled to delivery of
possession of composite property (evacuee
and non evacuee), moved an application for
issuance of property sanad in respect of 2/3
share also. The Settlement Commissioner
under the provisions of The Displaced
Persons
(Compensation
And
Rehabilitation)
Act,
1954,
however,
dismissed the said application for issuance
of sanad for 2/3rd share vide order dated
07.03.1984.

56. The Settlement Commissioner
noted that the Assistant Custodian Evacuee
Property,
Meerut
vide
order
dated
17.06.1958 allotted the evacuee property in
favour of Major Chandra Bhan Singh, and
he had obtained bhumidhari rights over the
evacuee plots enumerated to Khatauni 1383
fasli to 1391 fasli. It was further said that
question of granting sanad further for the
same transferred Khasra plots to the
applicant Major Chandra Bhan Singh was
not necessary. Settlement Commissioner,
Evacuee Property held that once the
applicants'
names
got
recorded
as
Bhumidhar, there was no requirement for
issuing any sanad.

57. It appears that a case was filed
before the competent Court for cancelling
sale certificate dated 02.11.1983 in favour
of the petitioners by the Custodian under
Section 10(2)(o) of the Administration of
Evacuee Property Act, 1950. Legal heirs of
Major Chandra Bhan Singh filed an
application on 25.05.1988 that there was no
dispute in respect of 2/3 share of land of the
'composite property', which was allotted to
them and, therefore, they should be put in
possession of the said land. Pargana
Adhikari, Marwana issued notice on
03.06.1988 to Late Latafatullah Khan and
others. They filed their objection to the
notice. However, Pargana Adhikari, Meerut
vide order dated 03.08.1998 in Case
No.558/1958 rejected the objections filed
by the petitioners on the ground that in
accordance with the judgment of the
Supreme Court in the case of Major
Chandra Bhan Singh v. Latafat Ullah Khan
(supra), the applicants/respondents were
entitled for possession of the land. He
directed Tehsildar, Marwana that after
enforcement of the entire land, the
applicants/respondents be put in possession
of 2/3rd land of the 'composite property'
710 INDIAN LAW REPORTS ALLAHABAD SERIES
and the Tehsildar may take assistance of
local police, if they so required.

58. Against the said order passed by
the Pargana Adhikari, the petitioners
preferred a revision under Section 33 of
The Displaced Persons (Compensation And
Rehabilitation) Act, 1954 before the
delegatee of the Central Government at
Lucknow. The said revision was allowed
vide order dated 4.02.1989. The Revisional
Court held that entire property mainly
disputed plots had not vested in the
Custodian
and
the
Managing
Officer/Pargana
Adhikari
had
misinterpreted the decision of the Supreme
Court in the case of Major Chandra Bhan
Singh v. Latafat Ullah Khan (supra).

59. The respondents thereafter filed a
writ petition before this Court being Writ
Petition No.6619 of 1989 challenging the
order passed in the revision under Section
33
of
The
Displaced
Persons
(Compensation And Rehabilitation) Act,
1954.

60. It appears that after passing the
order dated 11.10.1983 by the Custodian on
the proposal of Assistant Custodian dated
16.08.1983, Assistant Custodian could
come to know about the judgment passed
by the Supreme Court in the case of Major
Chandra Bhan Singh v. Latafat Ullah Khan
(supra) and, therefore, Assistant Custodian
on 28.08.1984 made a reference to the
Assistant Custodian General praying for
revision of his order dated 16.08.1983. In
the reference order dated 28.08.1984, it was
said that entire facts were not placed before
the Assistant Custodian and, therefore,
proposal for sale of the land in favour of
the petitioners vide order dated 16.08.1983
was without jurisdiction and against the
judgment of the Supreme Court in the case
of Major Chandra Bhan Singh v. Latafat
Ullah Khan (supra). It was also held that
after the order dated 31.08.1955, Major
Chandra Bhan Singh and his brother,
Raghubir Singh were allotted the land on
06.06.1958 under Rule 68 of the Displaced
Persons
(Compensation
And
Rehabilitation) Act, 1954 and sanad was
issued on 17.09.1962 in their favour.
Bandobast of the aforesaid land had taken
place and names of the allottees were also
mutated in the revenue record. It was said
that once the land was allotted in favour of
Major Chandra Bhan Singh and his brother,
Raghubir Singh, and said allotment was
upheld by the Supreme Court in the case of
Major Chandra Bhan Singh v. Latafat Ullah
Khan (supra), it could not have been sold
again in favour of the petitioners, and the
Assistant Custodian General (Evacuee
Property) was requested to pass an
appropriate order on the reference. The
Assistant Custodian General vide order
dated 18.1.1995 cancelled the orders dated
16.08.1983 and 03.11.1983, whereby the
land was sold in favour of the petitioners
on the basis of concealment of facts.

61. An application was made by the
respondents for correction of the date in the
order dated 18.01.1995, and it was said that
instead of 03.11.1983, it should be
02.11.1983. The petitioners filed objection
to the said application for correction in
which it was said that on 03.11.1983, it was
directed by the Assistant Custodian to the
Sub Registrar, Meerut to register sale
certificate dated 02.11.1983 issued in
favour
of
the
petitioners,
and
the
registration having already taken place,
order dated 02.11.1983 had already taken
effect and, therefore, could not be set aside.
However, the said application was rejected
and, it was held that both the orders dated
03.11.1983 as well as 02.11.1983 were
3 All. Arshadullah & Ors. Vs. U.O.I. & Ors.
711
passed by the same officer, and the effect
would be that order dated 2.11.1983 would
be deemed to be set aside by implication.
This order is dated 24.02.1995 which is
also impugned in the present writ petition.

62. Mr. Akhilesh Kalra, learned
counsel for the petitioners has submitted
that reference made by the Assistant
Custodian vide order dated 28.08.1984 on
which impugned orders dated 18.01.1995
and 24.02.1995 were passed, was without
jurisdiction. The petitioners had again tried
to reopen the issue regarding the allotment
of the land in favour of Major Chandra
Bhan Singh and Raghuveer Singh. It was
said that the sale certificate in favour of the
petitioners on the basis of order dated
16.08.1993
passed
by
the
Assistant
Custodian
was
validly
issued.
The
Assistant Custodian General misinterpreted
the judgment of the Supreme Court in the
case of Major Chandra Bhan Singh v.
Latafat Ullah Khan (supra), and assumed
certain facts for which there was no
material either on record or in the judgment
of the Supreme Court.

63. On the other hand, Mr. Raj Kumar
Singh, learned counsel appearing for the
Union of India and official respondents has
submitted that the writ petition is not only
misuse of the process of the Court but relief
sought by the petitioners is against the
judgment of the Supreme Court in the case
of Major Chandra Bhan Singh v. Latafat
Ullah Khan (supra), which was rendered
between the parties, in which it was
conclusively
held
that
order
dated
31.08.1955 vesting the property in the
Custodian had attained finality under
Section 8 of Evacuee Interest (Separation)
Act, 1951 and the whole property vested in
the Custodian under Section 11 of the
Evacuee Interest (Separation) Act, 1951
free from all encumbrances and liabilities
for the reasons that any evacuee co-sharers
did not file any objection despite personal
service of notice. The petitioners' conduct
is such which dis-entitles them to any relief
from this Court. They misled the Assistant
Custodian for passing the order dated
16.08.1983 on which the proposal was put
by the Assistant Custodian before the
Custodian for sale of the 1/3 evacuee
interest in favour of the petitioners despite
the judgment of the Supreme Court
between the parties in the case of Major
Chandra Bhan Singh v. Latafat Ullah Khan
(supra). They obtained the sale certificate
dated 02/03.11.1983. The Supreme Court
also held that allotment of the land in
favour of the respondents was valid and no
interference was called for in the allotment
of the land in favour of the respondents by
sanad. It has also been submitted that
allotment of land in favour of Major
Chandra Bhan Singh and Raghubir Singh
was made on 04.04.1955. Even order dated
31.08.1955 was passed vesting the entire
property in favour of the Custodian.