TMI Blog1978 (9) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... rary allotment of the one-third evacuee share in the property was made in his favour on April 4, 1955. As the property was listed as composite property, notices were issued in April, 1955, under section 6 of the Evacuee Interest (Separation) Act, 1951, hereinafter referred to as the Act. They were individual notices and the Competent Officer has stated that they were served on Latafat Ullah Khan and Sharafat Ullah Khan and their acknowledgements were placed on the record. No claim was however filed by anyone, and an order was made by the competent Officer on August 31, 1955, under section 11 of the Act, vesting the property in the Custodian. It may be mentioned that Mohammed Sharafat Ullah Khan had died earlier, leaving 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 Mohammed Latafat Ullah Khan, and on Mohammed Sharafat Ullah Khan through his son Shaukat Ullah Khan, on February 25, 1956. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. 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 Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for ₹ 5000/-. 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 partitioned so as to separate the evacuee's one- third interest. The Competent Officer partly disposed of the review 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 ₹ 5000/- and modified the earlier order dated May 12, 1958, by deleting that statement from it. Mohammed Shaukat Ullah Khan however raised an objection against the maintainability of the review applications. The Competent Officer took the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khan's sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah Khan and Tahir Khan, who had migrated to Pakistan in 1940, 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 Mohammed 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 is equally clear that it was permissible for the non-evacuee shareholders having the remaining two-third share in the property to make a 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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. So 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. It will be recalled that, as has been mentioned, the property was again reported to be of a composite nature, and fresh notices were inadvertently issued to the non-evacuee shareholders. They were personally served on Mohammed Latafat Ullah Khan, and on Mohammed 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 a vesting order was once again 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 a lapse of some 2 1/2 years from the order dated August 31, 1955, and 1 year from March 23, 1957 that Mohammed Latafat Ullah Khan and the four sons of Mohamm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a 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 a matter 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 31, 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 a restoration application on March 12, 1958 for its review and to obtain its reversal by the Competent Officer's orders dated March 15, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
