# Mohammed Ali v. U.O.I. & Ors

- **Citation:** (2022) 4 ILRA 1263
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-04
- **Case number:** Writ B No. 9235 of 2012
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammed-ali-v-u-o-i-ors-48410
- **Pages:** 22

## Headnote

A. Civil Law - Administration of Evacuee
Property Act, 1950-Sections 7 & 8 - Under
U.P. Ordinance No.01 of 1949 any property in
which an evacuee had any right or interest
automatically vested in the custodian and any
property which purports to have vested with
evacuee property in the custodian continued to
be so vested under the subsequent ordinances
and by virtue of Sections 8(2) and 8(2-A) of the
Act 1950 shall be deemed to have been validly
vested with the custodian and shall also be
deemed to be evacuee property declared as
such within the meaning of 1950. No order
declaring the property as evacuee property and
no notice as referred in Section 7(1) of the Act,
1950 was required in relation to properties
which had vested as evacuee properties with
the custodian under U.P. Ordinance No.01 of

## Text

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4 All. Mohammed Ali Vs. U.O.I. & Ors.
1263
and the necessary consequences under
Section 167 were liable to follow.

46. The recommendation made as per
the order dated 28.03.2007 passed by the
Additional Collection for vesting of the
land in the State Government, is in accord
with the provisions contained under subclause (a) of sub-section (1) of Section 167,
and there is no infirmity in the said order.
The subsequent order dated 16.12.2021
passed by the Board of Revenue, U.P.,
Allahabad rejecting the revision of the
petitioners and affirming the order of the
Additional Collector also cannot be faulted
with for the same reason.

47. The writ petition lacks merit and
is accordingly dismissed.
----------
(2022)04ILR A1263
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2022

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ B No. 9235 of 2012

Mohammed Ali ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Saxena, Sri S.S. Sisodiya, Sri P.N.
Saxena (Sr. Advocate), Sri R.K. Saxena

Counsel for the Respondents:
C.S.C., A.S.G.I. (2012/2930), Sri Anand
Prakash Srivastava, Sri Dashrath Lal Yadav,
Sri K.D. Tripathi, Sri Nitin Raj Singh, Sri
Tripathi B.G. Bhai, Ved Mani Tiwari

A. Civil Law - Administration of Evacuee
Property Act, 1950-Sections 7 & 8 - Under
U.P. Ordinance No.01 of 1949 any property in
which an evacuee had any right or interest
automatically vested in the custodian and any
property which purports to have vested with
evacuee property in the custodian continued to
be so vested under the subsequent ordinances
and by virtue of Sections 8(2) and 8(2-A) of the
Act 1950 shall be deemed to have been validly
vested with the custodian and shall also be
deemed to be evacuee property declared as
such within the meaning of 1950. No order
declaring the property as evacuee property and
no notice as referred in Section 7(1) of the Act,
1950 was required in relation to properties
which had vested as evacuee properties with
the custodian under U.P. Ordinance No.01 of
1949. Passing an order or issuing a declaration
that the property was evacuee property was not
a condition precedent for vesting and the mere
fact that a person who had any right or interest
in the property was a evacuee as defined u/S
2© of the Ordinance No.01 of 1949 resulted in
automatic vesting of the property in the
custodian and the property is deemed to have
been declared as evacuee property for the
purposes of Act, 1950. Further, the failure of the
custodian to issue a notice u/S 6 of U.P.
Ordinance No.01 of 1949 or u/S 7(3) of the Act,
1950 notifying the property as evacuee property
by publication either in official gazette or by
other means prescribed, has no effect on
validity of such vesting.

B. Civil Law - U.P. Ordinance No.01 of
1949 - Administration of Evacuee Property
Act, 1950 - Sections 34 & 49 - Provides that
all records prepared or maintained under these
provisions shall be deemed to be public
documents within the meaning of Indian
Evidence Act and shall be presumed to be
genuine unless contrary is proved.

C. Civil Law - Displaced Persons (Compensation
and Rehabilitation) Act, 1954
-
Sections
12,14,16,17,20,22 & 23 - The Act defines
evacuee property as any property which has
been declared or deemed to have been declared
under the Act of 1950. Section 12 of the Act
1954 empowers the Central Government to
acquire any evacuee property by publishing a
Notification to the said effect in the Official
Gazette and on such publication of the
Notification the right, interest and title of any
evacuee in the evacuee property shall stand
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
extinguished and the evacuee property shall
vest absolutely in the Central Government free
from all encumbrances. Section 16 of the Act
1954 empowers the Central Government to
appoint
Managing
Officers
for
custody,
management and disposal of the property under
Section 12 of the Act, 1954 which is made a
part of compensation pool. Section 17 and 20 of
the Act empowers the Managing Officer to
dispose of such property. Sections 22 and 23 of
the Act,1954 provides for appeal to the
Settlement
Commissioner
and
the
Chief
Settlement Commissioner against the order of
Managing Officer and Assistant Settlement
Commissioner.

Writ Petition is dismissed. (E-11)

List of Cases cited:-

1. M/s. Haji Esmail Noor Mohammad & Co. &
ors. Vs Competent Officer, Lucknow & ors., AIR
(1967) SC 1244

2. Smt. Roori Devi Vs Assistant Custodian
General, AIR (1970) All 583
(Delivered by Hon'ble Salil Kumar Rai, J.)

1. Heard the counsel for the parties
and also perused the records of Writ-B No.
5199 of 2012 (Shamim Khan Vs. Deputy
Director of Consolidation, Bareilly &
Others). The original records produced by
the State-respondents in pursuance to the
order dated 5.3.2018 were also perused by
the Court.

2. The petitioner challenges the order
dated 7.2.2011 passed by the Deputy
Director
of
Consolidation,
Bareilly
(hereinafter referred to as, 'D.D.C.'), the
effect of which is to restore in C.H. Form
45, the name of Panna Lal Mishra, the
predecessor in interest of respondent Nos. 6
to 10 as tenure holder of the plots in dispute
between the petitioner and respondent Nos.
6 to 10. The name of Panna Lal Mishra was
recorded in C.H. Form 45 on the basis of a
sale-deed said to have been executed by the
Managing
Officer/Assistant
Custodian
(Evacuee Property) in his favour. The basic
year records of the disputed plots displayed
the name of one 'Mohd. Ali Khan, Pakistani
under the administration of Custodian.'
According to respondents Mohd. Ali Khan
was an evacuee as defined in the
Administration of Evacuee Property Act,
1950 (hereinafter referred to as, 'Act, 1950')
and the plots were transferred in favour
Panna Lal Mishra by the Managing Officer
aftr the same were acquired under Section
12 of the Displace Persons (Compensation
and Rehabilitation) Act, 1954 (hereinafter
referred to as, 'Act, 1954'). The contention
of the petitioner is that the original tenure
holder was not an evacuee as he had not
migrated to Pakistan, that the plots in
dispute were not evacuee property and the
sale-deed pleaded by respondent Nos. 6 to
10 is a forged document.

3. It is the admitted case of the parties
that Mohd. Ali Khan Khan, S/o Mohd.
Khan was the original tenure holder of the
plots before Independence. The agricultural
plots of which the aforesaid Mohd. Ali
Khan was the tenure holder were Plot Nos.
1076, 1082, 1083/1, 1083/3 and 1084
situated in Village-Karilay, Pargana, Tehsil
&
District-Bareilly.
During
the
first
consolidation operations in the village,
fresh chaks were carved in lieu of the
aforesaid plots and the said chaks were
numbered as Plot Nos. 510, 525, 541, 548,
554 and 555 and were part of Khata No.
269. In C.H. Form 45 prepared during the
first consolidation operations in the village
'Mohd. Ali Khan, S/o Mohd. Khan resident
of Pakistan under the Administration of
Custodian' was recorded against Plot Nos.
510, 525, 541, 548, 554 and 555. C.H.
Form 45 has been annexed as Annexure
No. 3 of the affidavit filed by the District
4 All. Mohammed Ali Vs. U.O.I. & Ors.
1265
Magistrate, Bareilly. A perusal of the
annexure shows that the C.H. 45 was
prepared in 1366 Fasli, i.e., 1959 A.D. C.H.
Form 41 annexed with the affidavit of the
District Magistrate, Bareilly as Annexure
No. 4 also indicates that the document was
prepared in 1366 Fasli. The aforesaid
documents indicate that first consolidation
operations were held in the village in 1366
Fasli.
In
the
second
consolidation
operations in the village, fresh chaks were
carved out in lieu of the aforesaid plots and
the chaks were numbered as Plot Nos.
1050, 1111, 1119, 1121, 1122, 1123, 1129,
1130, 1135 and 1136 (hereinafter referred
to as, 'disputed plots') and are part of Khata
No. 00035.

4. Plot Nos. 1076, 1082, 1083/1,
1083/3 and 1084 are recorded in Register
No. 7676, which is the Basic Record/ Basic
Register of Evacuee Properties in DistrictBareilly. The Register is kept in the custody
of Assistant Custodian, Evacuee Properties,
Bareilly. It has been certified by the
Assistant Custodian that all Evacuee
Properties in Tehsil-Bareilly have been
recorded in the said Register. The entries in
the Register show that Plot Nos. 1076,
1082, 1083/1, 1083/3 and 1084 were
allotted to Ranveer Lal Kapoor and
Kulveer Lal Kapoor and there is a recital
on the relevant page that in the list at Serial
No. 80 and File No. 123, the plots were
'Declared by Ordinance'. In the counter
affidavit filed by respondent Nos. 6 to 10
an extract of Demand & Collection
Register has been annexed as Annexure No.
CA-2 showing that rent for the said plots
was due on Ranveer Lal Kapoor and
Kulveer Lal Kapoor since 1358 Fasli. The
significance of the entry in the Basic
Register
to
the
effect
'Declared
by
Ordinance' shall be considered later on in
the judgement. It is sufficient to state here
that the records were prepared on the
premise that Mohd. Ali Khan had migrated
to Pakistan during partition. The case of the
petitioner is that Mohd. Ali Khan had not
migrated to Pakistan and was not an
evacuee and the disputed plots were not
evacuee property. It is stated by the
petitioner that no orders were passed
declaring the disputed plots as evacuee
property and there was no publication
under Section 7 of the Act, 1950 notifying
the disputed plots as evacuee property.

5. It is the case of the respondents
that, vide notification dated 26.11.1957, the
disputed plots were acquired under Section
12 of the Act, 1954 and vested in the
Central
Government
free
from
all
encumbrances and subsequently through a
notification dated 23.3.1977 the Evacuee
Properties
acquired
by
the
Central
Government under Section 12 of the Act,
1954 were transferred to the State of Uttar
Pradesh for management, administration
and disposal. Subsequently, in pursuance to
an order dated 26.2.1970 passed by the
Assistant Settlement Commissioner, U.P.,
Lucknow,
a
sale-certificate
dated
26.11.1981 was issued in favour of the
petitioner
by
the
Managing
Officer/Assistant Custodian and the saledeed was registered on 3.4.1982. The saledeed has been registered at Serial No. 1500
in Book No. 1 Volume 2206 at page Nos.
122 to 124 in the Register maintained in the
office of the Registrar. The sale-deed
recites that the property had been acquired
by the Central Government and has been
signed by the Managing Officer/Assistant
Custodian Acquired Evacuee Property,
U.P., Lucknow on behalf of the President of
India and the Government of U.P. Copy of
the sale-certificate was forwarded to the
Sub-Registrar, Bareilly for registration and
also to the Tehsildar for mutation of the
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
name of the purchaser in the land records
after expunging the name of the evacuee. It
has been stated in the supplementary
counter affidavit filed in the present
petition that the sale in pursuance to the
order dated 2.3.1970 was delayed because
of a stay order dated 4.3.1970 passed by
this Court in Writ Petition No. 1752 of
1970. The aforesaid stay order was
discharged by order dated 16.11.1981. The
order dated 16.11.1981 passed by this
Court in Writ Petition No. 1752 of 1970 has
been annexed as Annexure No. SA-5 to the
Supplementary
Affidavit
filed
by
respondent No. 4 in the present writ
petition. The case of the petitioner is that
the sale-deed is forged and further, the saledeed is invalid as the transfer in favour of
Panna Lal Mishra was made without
obtaining
the
approval
of
Custodian
General as required in Section 2(10)(o) of
the Act, 1950.

6. The Village was notified for
consolidation by notification issued under
Section
4
of
the
Uttar
Pradesh
Consolidation of Holdings Act, 1953
(hereinafter referred to as, 'Act, 1953'). In
the present writ petition, it has been stated
that the notification under Section 4 of the
Act, 1953 was issued in 1980. However, in
Writ-B No. 5199 of 2012 the date of
notification under Section 4 of the Act,
1953 has been disclosed as 1.10.1983. The
exact date of the notification is not relevant
for deciding the issues raised in the
petition. This was the second consolidation
operation in the village. It appears that the
basic year records prepared during the
second consolidation also displayed the
name of 'Mohd. Ali Khan, Pakistani under
the Administration of Custodian.' It is the
case
of
the
respondents
that
after
registration of sale-deed in his favour,
Panna Lal Mishra, instituted Case No. 379
under Section 9-A(2) of the Act, 1953 to be
recorded as Bhumidhar of the disputed
plots. It is stated by the respondents that in
the aforesaid case, the Gaon Sabha filed its
objections alleging that the sale-deed
produced by Panna Lal Mishra in support
of his case was a forged document. It also
appears from the records that in C.H. Form
No. 2A a part of Plot No. 554 was recorded
as 'Marghat' and, therefore, another case
regarding Plot No. 554/1 was also instituted
by Panna Lal Mishra contesting the
aforesaid entry in C.H. Form 2A. The
respondents state that the Consolidation
Officer (hereinafter referred to as, 'C.O.')
vide his order dated 30.11.1990 allowed
Case No. 379 relying on the sale-deed
produced by Panna Lal Mishra. The C.O.
also, after inspection of Plot No 554/1,
found that the plot was not in the form of
'Marghat' and the entry in C.H. Form 2A
was contrary to the entries in C.H. Forms
41 and 45 prepared during the previous
consolidation operations and, therefore,
passed order dated 9.6.1992 directing that
Panna
Lal
Mishra
be
recorded
as
Bhumidhar of Plot No. 554/1. The Gaon
Sabha filed Appeal Nos. 149 and 600
challenging the orders dated 30.11.1990
and 9.6.1992. The aforesaid appeals were
dismissed by the Settlement Officer of
Consolidation (hereinafter referred to as,
'S.O.C.') vide his order dated 16.2.2006.
Subsequently,
the
Gaon
Sabha
filed
Revision Nos. 265 and 266 before the
Deputy
Director
of
Consolidation
(hereinafter
referred
to
as,
'D.D.C.')
challenging the orders of the C.O. and the
S.O.C. and the said revisions were also
dismissed by the D.D.C. vide order dated
25.5.2006.
Meanwhile,
during
the
pendency of the aforesaid proceedings
Panna Lal Mishra died and respondent Nos.
6 to 10 continued with the litigation before
the consolidation courts as heirs and legal
4 All. Mohammed Ali Vs. U.O.I. & Ors.
1267
representatives of Panna Lal Mishra. It has
been stated in Writ-B No. 5199 of 2012 and
by Shri Ashok Mehta, Senior Counsel, who
represented the respondent Nos. 6 to 10,
that notification under Section 52 of the
Act,
1953
closing
the
consolidation
operations in the village was published on
6.9.1997. The said fact has not been
disputed by the counsel for the petitioner.
C.H. Form 45 prepared during the second
consolidation operations in the village
recorded the name of Panna Lal Mishra as
the chak holder/tenure holder of the
disputed plots ostensibly on the basis of the
different orders passed by the consolidation
courts. However, the petitioner denies the
proceedings before the consolidation courts
as stated by the respondents and alleges
that no order regarding the disputed plots
were passed by the consolidation courts in
favour of Panna Lal Mishra. It is the case
of the petitioner that Panna Lal Mishra
fraudulently got his name recorded in C.H.
Form 45.

7. One Shamim Khan, S/o Wale Khan
claiming himself to be the nephew of
Mohd. Ali Khan and alleging that Mohd.
Ali Khan had died issueless on 18.2.1989,
filed an application praying that C.H. Form
45 be corrected and he may be recorded as
the chak holder of the disputed plots. In his
application Shamim Khan raised the same
plea as the petitioner in the present petition
that entries in C.H. Form 45 recording
Panna Lal Mishra as the tenure holder of
the disputed plots were forged and no
orders
had
been
passed
by
the
consolidation courts in favour of Panna Lal
Mishra. On the aforesaid application of
Shamim Khan, the D.D.C. called for a
report from the C.O., who reported that
C.H. Form 23 relating to the disputed plots
contains a recital that vide his order dated
30.11.1990 the C.O. had held Panna Lal
Mishra to be the tenure holder of the
disputed plots, but the said entry in C.H.
Form 23 was blurred. It was further
reported by the C.O. that the records did
not indicate that Case No. 379 was
instituted by Panna Lal Mishra and some
other case was registered at Serial No. 379
in the 'Misilband Register'. The D.D.C.
vide her order dated 4.11.2009 allowed the
application of Shamim Khan and directed
that C.H. Form 45 be corrected and entries
in the basic year records showing 'Mohd.
Ali Khan, resident of Pakistan under the
Administration/
Management
of
the
Custodian' against the disputed plots be
recorded in C.H. Form 45. Through its
aforesaid order, the D.D.C. also remanded
the matter to the C.O. and directed that the
dispute regarding succession to Mohd. Ali
Khan
be
heard
afresh
after
proper
publication of notice and in accordance
with law.

8. Respondent Nos. 6 to 10 filed a
recall application before the D.D.C. for
recall of the order dated 4.11.2009. The
petitioner as well as Shamim Khan filed
objections
to
the
aforesaid
recall
application. The D.D.C. vide her order
dated 7.12.2011 recalled her previous order
dated 4.11.2009 and restored the entries in
C.H. Form 45 as they stood before the
order dated 4.11.2009. The order dated
7.12.2011 was passed by the D.D.C. relying
on the certified copies of the different
orders
passed
by
the
consolidation
authorities and produced by respondent
Nos. 6 to 10 and also after perusing the
sale-deed allegedly executed in favour of
Panna Lal Mishra. In her order dated
7.12.2011, the D.D.C. also took note of the
fact that the disputed plots had been
acquired and the dispute raised by Shamim
Khan was barred by Section 48-A of the
Act, 1953 and also that the application of
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
Shamim Khan was filed after consolidation
operations were closed by a notification
issued under Section 52 of the Act, 1953.

9. The order dated 7.12.2011 passed by
the D.D.C. was challenged by Shamim Khan
in Writ-B No. 5199 of 2012. Interestingly, in
the aforesaid writ petition, Shamim Khan
claimed title to the disputed plots on the basis
of a 'Hibbanama' executed by the deceased
Mohd. Ali Khan on 7.5.1988. Subsequently,
the writ petition was dismissed as withdrawn
vide order dated 22.7.2016 passed by this
Court.

10. While, Writ-B No. 5199 of 2012
was pending before this Court, the present
petition was also filed challenging the order
dated 7.2.2011. The present petitioner claims
that he is the only nephew of Mohd. Ali
Khan, that Mohd. Ali Khan died issueless in
March, 1981 and that the title of the disputed
plots devolved on the petitioner, he being the
sole nephew of Mohd. Ali Khan, as well as
by virtue of a Will dated 10.3.1965 allegedly
executed by Mohd. Ali Khan in his favour.
The other facts pleaded in the petition are that
the disputed plots were not evacuee property
and had never vested in the Custodian, that
the disputed plots were never transferred to
Panna Lal Mishra, that the sale-deed pleaded
by Panna lal Mishra is a forged document and
no
orders
had
been
passed
bythe
consolidation courts in favour of Panna Lal
Mishra. The details of the case taken up by
the petitioner have been referred earlier.

11. Respondent Nos. 6 to 10 have filed
their counter affidavits wherein they have
reiterated their case as referred earlier in the
judgement.

12. Respondent Nos. 1 and 2, i.e., the
Union of India has also filed its counter
affidavit
bringing
on
record
the
notifications dated 26.11.1957 issued under
Section 12 of the Act, 1954 and 23.3.1997
through which the properties acquired
through notification dated 26.11.1957 were
transferred to State of U.P. for management
and disposal.

13. The D.D.C. has also filed her
affidavit bringing on record a letter issued
by the Board of Revenue expressing its
inability to give a copy of the sale
certificate issued in favour of Panna Lal
Mishra on the ground that the records in the
Board of Revenue were tattered.

14. In the present writ petition the
Court passed an order dated 5.3.2018, the
relevant extract of which is reproduced
below :-

"...

The
Collector
Bareilly
is,
therefore, directed to file his affidavit
bringing on record the records being
maintained in his office regarding the
disputed
property
being
declared
as
Evacuee property, i.e. the extract of register
showing
declaration
of
the
disputed
property as Evacuee property, the order of
appointment
of
Pannalal
Mishra
as
Superdigar thereof and the records showing
the sale certificate for execution of sale
deed dated 26.11.1981 in favour of
Pannalal
Mishra.
An
officer
wellacquainted with the records from the office
of the Collector, Bareilly shall also remain
personally present in the Court along with
the original register maintained therein,
extract of which has been filed as CA-3
(Page 10) to the affidavit of respondent 5.

There is one more aspect of the
matter, the sale deed dated 26.11.1981
discloses that the Ministry of Rehablitation,
Government of India vide notification
dated 26.11.1957 issued under Section 12
4 All. Mohammed Ali Vs. U.O.I. & Ors.
1269
of the Displaced Persons (Compensation
and Rehablitation) Act had acquired the
Evacuee
property
(described
in
the
Schedule to the said sale deed) and it was
executed by the Managing Office/Assistant
Custodian (Acquired Evacuee Property),
U.P., Lucknow on behalf of the President of
India. Shri Pradeep Sisodiya, Assistant
Solicitor General of India is, therefore,
called upon to file affidavit on behalf of the
respondents 1 and 2 explaining the
averments as contained in the sale deed
dated
26.11.1981.
The
contradictions
appearing from contents of Page 55 and
Page 58 (first and last page of the sale
deed) are required to be explained by
respondents 1 and 2. The notification dated
26.11.1957 under the aforesaid Act (as
noted in the sale deed) shall also be placed
before the Court along with the affidavit to
be filed on behalf of respondents 1 and 2.
The required information shall be placed
before the Court by the next date fixed.

Let the matter be posted in the
cause list on 20.3.2018."

15. In pursuance to the order dated
5.3.2018, the Collector, Bareilly has filed
his affidavit annexing C.H. Forms 41 and
45 of 1366 Fasli, the relevant extract of the
Basic Register and copy of the order dated
5.8.1967 giving the property in the
'Supardagi' of Panna Lal Mishra. The
original records from the office of the
Collector were produced on the date of
hearing before this Court. The Court
compared the photocopies of the document
annexed with the affidavit of the District
Magistrate, Bareilly with the original.
Photocopy of the Basic Register annexed
with the affidavit of the District Magistrate,
Bareilly
identifies
with
the
original
Register produced before this Court. The
original records were also produced from
the office of the Central Record Room,
District-Bareilly and the said Register
indicates
that
the
sale-deed
dated
26.11.1981/3.4.1982 had been registered in
the office of the Registrar on a sale
certificate
issued
by
the
Managing
Officer/Assistant
Custodian
Acquired
Evacuee Property, U.P., Lucknow. Certified
copy of the extract of the Registers were
handed over to the Court, which were taken
on record. However, the order declaring the
disputed plots as Evacuee Property or any
notification notifying the disputed plots as
evacuee property have not been filed or
produced before this Court. Further, the
permission of the Custodian General
permitting sale of the disputed plots to
Panna Lal Mishra has neither been filed
with the affidavits of the respondents nor
produced before this Court. The relevance
of
the
aforesaid
omision
shall
be
considered later in the judgement.

16. It was argued by the counsel for
the petitioner that Mohd. Ali Khan, original
tenure holder of the disputed plots had not
migrated to Pakistan, that no order was
passed by the Custodian declaring the
disputed plots as evacuee property and no
notification notifying the disputed plots as
evacuee property was published either in
the Gazette or through any other mode as
required under Rule 7 of the Rules, 1954. It
was argued that there is no evidence that
the disputed plots were evacuee property
and had vested as evacuee property in the
Custodian. It was also argued that the sale
of the disputed plots in favour of Panna Lal
Mishra is in violation of Section 10(2)(o) of
the Act, 1950 as the permission of the
Custodian General was not obtained before
allegedly transferring the disputed plots to
Panna Lal Mishra. It was further argued
that the report of the C.O. submitted before
the D.D.C. stating that no Case No. 379
was registered at the instance of Panna Lal
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
Mishra regarding the disputed plots shows
that Panna Lal Mishra had fraudulently got
his name recorded in C.H. Form 45. It was
argued that in the circumstances, vide her
order dated 4.11.2009, the D.D.C. rightly
directed that C.H. Form 45 be corrected so
as to display the entries in Basic year
records and also rightly directed the C.O. to
decide succession to Mohd. Ali Khan
afresh after publication of notice. It was
argued that for the aforesaid reasons, the
order dated 7.12.2011 passed by the D.D.C.
recalling the order dated 4.11.2009 is
contrary to law and liable to be set aside.

17. Rebutting the argument of the
counsel for the petitioner, the counsel for
the respondents have argued that the entries
in the Basic Register relating to evacuee
propeties indicate that the disputed plots
were evacuee property and had vested in
the Custodian and were recorded as such in
C.H. Form 45 prepared during the first
consolidation operations in 1366 Fasli. It
was argued that after the plots were
acquired under Section 12 of the Act, 1954
by notification dated 26.11.1957, they
vested in the Central Government and were
subsequently transferred for administration
and management alongwith other plots
acquired under Section 12 of the Act, 1954
to the State Government and are managed
by the Managing Officer appointed under
the Act, 1954. It was argued that the saledeed has been executed in exercise of
powers
conferred
on
the
competent
authority under the Act, 1954. It was
argued that the recall application filed by
Shamim Khan was not maintainable
because the entries in C.H. Form 45 did not
adversely affect his title as in the Basic year
records the plots were recorded to be under
the administration of Custodian and by
virtue of Section 48-A of the Act, 1953 the
title
of
the
Custodian
can
not
be
adjudicated
by
the
consolidation
authorities. It was argued that for the same
reasons
the
present
petition
is
not
maintainable. It was further argued that the
recall application filed by Shamim Khan
was also not maintainable as it was filed
after the notification under Section 52 of
the Act, 1953. It was further argued by the
respondents that the records clearly indicate
that Panna Lal Mishra was recorded as
Bhumidhar of the disputed plots in C.H.
Form 45 by virtue of order dated
30.11.1990 which was affirmed by the
S.O.C. and the D.D.C. in the appeals and
revisions filed against the order by the
Gaon Sabha. It was argued that for the
aforesaid reasons, the D.D.C. rightly
recalled the order dated 4.9.2011 through
her impugned order dated 7.12.2011 and
the writ petition is liable to be dismissed.

18. I have considered the submissions
of the counsel for the parties.

19. The issues in the present writ
petition are whether the available records
show that the disputed plots were evacuee
properties and had vested in the Custodian,
the legal effect of the failure of the Staterespondents to produce, before this Court,
any order passed or notification issued by
the Custodian under Section 7 of the Act,
1950 declaring the disputed plots to be
evacuee property and whether the sale-deed
dated 26.11.1981/3.4.1982 is valid even
though the sale certificate was issued by the
Managing Officer and the transfer in favour
of Panna Lal Mishra was made without
obtaining the permission of the Custodian
General as required under Section 10(2)(o)
of the Act, 1950. The other issue in the
present petition relates to the proceedings
in the consolidation courts from which the
present writ petition arises and whether any
irregularity in the said proceedings can be a
4 All. Mohammed Ali Vs. U.O.I. & Ors.
1271
cause to set aside the order dated 7.2.2011
passed by the D.D.C. at the instance of the
petitioner.

20. The first legislative enactment
regarding evacuee property and relevant for
the present writ petition was U.P. Ordinance
No. I of 1949. Section 2(c)(i) of U.P.
Ordinance No. I of 1949 defined an evacuee
to mean any person who on account of setting
up of the Dominions of India and Pakistan or
on account of civil disturbances or the fear of
such disturbances, leaves or has on or after
the Ist day of March 1947, left any place in
the United Provinces for any place outside
the territories forming part of India. Section
2(d) of the Ordinance defines evacuee
property to mean any property in which an
evacuee had any right or interest. The
definition of evacuee as given in U.P.
Ordinance No. I of 1949 is similar to the
definition of 'evacuee' given in Section 2(c)(i)
of the Act, 1950. Section 2(f) of the Act, 1950
defines evacuee property to mean any
property of an evacuee, whether held by him
as owner or as a trustee or as a beneficiary or
as a tenant or in any other capacity. Section 5
of U.P. Ordinance No. I of 1949 provided
that,'Subject to the provisions of this
Ordinance, all evacuee property situated in
the United Provinces shall vest in the
Custodian.' Section 6 of U.P. Ordinance No. I
of 1949 required the Custodian to notify,
from time to time, by publication in the
official Gazette or in such other manner as
may be prescribed, evacuee properties which
had vested in him under the Ordinance.
Under U.P. Ordinance No. I of 1949, if a
person was an evacuee as defined in the
Ordinance, his property automatically
vested in the Custodian and no orders
declaring the property to be evacuee
property were required to be passed for
that purpose. The failure of the Custodian to
notify through publication the evacuee
property did not invalidate the 'vesting' as the
act of notifying was to be subsequent to
vesting. U.P. Ordinance No. I of 1949 expired
on August 23, 1949.

21. On June 13, 1949, the Governor
General promulgated Administration of
Evacuee Property (Chief Commissioner's
Provinces) Ordinance No. XII of 1949.
Section 5 of Ordinance No. XII of 1949
provided that subject to the provisions of
the Ordinance, all evacuee properties
situated in Provinces shall vest in the
Custodian for that Province. Section 5 of
Ordinance No. XII of 1949 is reproduced
below :-

"Section 5(1). Subject to the
provisions of this Ordinance, all evacuee
property situated in a Province shall vest
in the Custodian for that Province.

(2) Where, immediately before
the commencement of this Ordinance any
evacuee property in a Province had vested
in any person exercising the powers of a
Custodian under any corresponding law in
force in that Province immediately before
such commencement, the evacuee property
shall on the commencement of this
Ordinance, be deemed to have vested in
the Custodian appointed for the Province
under this Ordinance."

(Emphasis added)

22. Subsequently, by Section 4(b) of
Ordinance No. XX of 1949, Ordinance No.
XII of 1949 was extended to the United
Provinces. By Section 8 of Ordinance No.
XX of 1949 Section 41 was included in
Ordinance No. 12 of 1949. Section 41 is
reproduced below :-

"41.
Provisions
relating
to
expiry of U.P. Ordinance I of 1949-
Notwithstanding the expiry of the United
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
Provinces
Administration
of
Evacuee
Property Ordinance, 1949 (U.P. Ordinance
I of 1949), immediately before the
commencement of the Evacuee Property
(Chief
Commissioner's
Provinces)
Ordinance, 1949, anything done or any
action taken in exercise of any power
conferred by the first named Ordinance
shall be deemed to have been done or taken
in the exercise of the powers, conferred by
this Ordinance as amended by the second
named Ordinance, and any penalty incurred
or proceeding commenced under the first
named Ordinance shall be deemed to be a
penalty
incurred
or
proceeding
commenced under this Ordinance as if
the ordinance as so amended were in force
on the day on which such thing was done,
action
taken,
penalty
incurred
or
proceeding commenced."

 (Emphasis added)

23. Thus, the evacuee properties in
the United Provinces which automatically
vested in the Custodian by virtue of Section
5 of U.P. Ordinance No. I of 1949 were
deemed to have vested in the Custodian
under Section 5 of Ordinance No. XII of
1949 and by Section 41 of Ordinance No.
XX of 1949 anything done or any action
taken in exercise of any power conferred by
U.P Ordinance No. I of 1949 were deemed
to have been done or taken in exercise of
powers conferred by Ordinance No. XII of
1949.

24. Subsequently, by Ordinance No.
XXVII of 1949, Ordinance No. XII of 1949
was also repealed. Section 8 of Ordinance
No. XXVII of 1949 provided as follows :-

"8. Vesting of evacuee property in
the Custodian.-(1) Any property declared to
be evacuee property under section 7 shall
vest in the Custodian.

(2) Where immediately before
the commencement of this Ordinance
any evacuee property in a Province had
vested in any person exercising the
powers of a Custodian under any law
repealed hereby, the evacuee property
shall, on the commencement of this
Ordinance, be deemed to have vested in
the Custodian appointed or deemed to
have been appointed for the Province
under this Ordinance, and shall continue
to so vest.

(3) ...

 (Emphasis added)

25. Section 8(2) of Ordinance No.
XXVII
of
1949
was
subsequently
substituted by the following Section 8(2).
The substituted Section 8(2) of Ordinance
XXVII of 1949 is reproduced below :-

"Section8(2).
Where
immediately before the commencement of
this Ordinance, any property in a province
had vested as evacuee property in any
person
exercising
the
powers
of
a
Custodian under any law repealed hereby
the property shall on the commencement
of this Ordinance be deemed to be
evacuee property declared as such within
the meaning of this Ordinance and shall be
deemed to have vested in the Custodian
appointed or deemed to have been
appointed for the Province under this

Provided that where, at the
commencement of this Ordinance, there is
pending before the Custodian for any
province any claim preferred to him in
respect of any property under Section 8 of
the Administration of Evacuee Property,
Ordinance 1949 (XII of 1949), or under
any other corresponding law repealed
hereby, then, notwithstanding anything
contained in this Ordinance or in any other
law for the time being in force such claim
4 All. Mohammed Ali Vs. U.O.I. & Ors.
1273
shall be disposed of as if the definitions of
'evacuee property' and 'evacuee' contained
in section 2 of this Ordinance had become
applicable thereto."

 (Emphasis added)

The effect of substituted Section
8(2) of Ordinance No. XVII of 1949 was
that any property vesting in the Custodian
as evacuee property under the previous
Ordinances was deemed to have vested in
the Custodian under Ordinance No. XVII
of 1949 and on the commencement of
Ordinance No. XVII of 1949, was deemed
to be evacuee property declared as such
within the meaning of the Ordinance and
deemed to have vested in the Custodian and
shall continue to so vest.

26. By Administration of Evacuee
Property Act, 1950, Ordinance No. 27 of
1949 was also repealed. Section 8(2) of the
Act, 1950 provides that where immediately
before the commencement of the Act, 1950
'any property in a State had vested as
evacuee property in any person exercising
the powers of Custodian under any law
repealed hereby, the property shall, on the
commencement of the Act, be deemed to be
evacuee property declared as such within
the meaning of this Act and shall be
deemed to have vested in the Custodian
...... and shall continue to so vest'. Act,
1950
was
also
amended
by
the
Administration
of
Evacuee
Property
(Amendment) Act I of 1960 and Section
8(2-A) was introduced in the Act, 1950
with retrospective effect. Section 8(2-A) of
the Act, 1950 is reproduced below :-

"8(2-A). Without prejudice to the
generality of the provisions contained in
sub-section (2), all property which under
any law repealed hereby purports to
have vested as evacuee property in any
person
exercising
the
powers
of
Custodian
in
any
State
shall,
notwithstanding any defect in, or the
invalidity of, such law or any judgment,
decree or order of any court, be deemed
for all purposes to have validly vested in
that person, as if the provisions of such
law had been enacted by Parliament and
such
property
shall,
on
the
commencement of this Act, be deemed to
have been evacuee property declared as
such within the meaning of this Act and
accordingly, any order made or other
action taken by the Custodian or any
other authority in relation to such property
shall be deemed to have been validly and
lawfully made or taken."

(Emphasis added)

27. By virtue of Section 8(2-A) of the
Act, 1950 any property which purports to
have vested as evacuee property in the
Custodian under the Ordinances referred
earlier shall be deemed to have validly
vested in him and such property shall be
deemed to have been declared as evacuee
property as such within the meaning of
Act, 1950 and any order made or any action
taken by the Custodian or any authority in
relation to such property shall be deemed
to have been validly and lawfully made
or taken. The implications of the word
'purport' in Section 8(2-A) of the Act, 1950
came up for interpretation before the
Supreme Court in Azimunnissa & Others
Vs. The Deputy Custodian, Evacuee
Properties, District-Deoria & Others, AIR
(1961) S.C. 365. In the aforesaid case, the
Supreme Court after noting the different
Ordinances
issued
regarding
evacuee
properties, held that a property which was
evacuee property under Section 2(d) of
Ordinance No. I of 1949 vested in the
Custodian
under
Section
5
of
that
Ordinance and such vesting was deemed to
be under Ordinance No. XII of 1949 and
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
was also deemed to have vested in the
Custodian under Ordinance No. XVII of
1949. It was held by the Supreme Court
that such a vesting would be valid under
Act, 1950 because Section 8(2-A) of the
Act, 1950 validates a vesting which
purported to have taken place as a result of
Ordinance No. XVII of 1949. It was further
held by the Supreme Court that such
property, i.e., the property which 'purports'
to have vested in the Custodian under
Ordinance No. XVII of 1949 shall, by virue
of Section 8(2-A) of the Act, 1950, be
deemed to be evacuee property under the
Act, 1950. The observations of the
Supreme Court in paragraph Nos. 15, 20
and 21 are reproduced below :-

"15. The argument raised on
behalf of the petitioner was that U. P.
Ordinance 1 of 1949, Central Ordinance
XII of 1949 and Central Ordinance XX of
1949 were invalid as the legislative
competence of the Governor and of the
Governor-General in regard to evacuee and
evacuee property matters was wanting ; and
all that sub-section 2-A of S.