RASHID KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The order of Shri H.R. Nair seems to be vitiated by an error, apparent on the face of the record, because he observed that there was nothing on record to suggest that the notice under section 6 was ever served on the petitioner (respondent No. 4). It seems that: Shri Nair had not scrutinised the file carefully. The necessary facts which appear from the said file have been set out above and they show that the above-said view of Shri Nair is patently erroneous. He was probably under the impression, erroneously, the actual service on the present 4th respondent (petitioner before him) had to be proved. On the other hand, what the section and the Rules contemplate is that the notice should be "issued" and service was to be according to any one of the modes prescribed in Rule 11 in this case by ordinary post under Certificate of Posting. It is worth repeating that the Rule does not require actual service of the notice to be proved as a fact. $(8.)$ Shri Nair also committed another error ; this was also apparent on the face of the record because he thought that the non-evacuee interest also had been vested in the Custodian. He also relied on the decision of the Supreme Court in Abdul Hakim Khan v. Regional Settlement Commissioner AIR 1961 SC 1391 which held that the non-evacuee interest does not so vest in the Custodian. The proposition of law is not disputed but, as it is seesn from Annexures A and C, set out above., only 3/4th share, that of the evacuee alone, had been vested in the Custodian. This again has a bearing on the want of sufficient application of mind by Shri Nair to the questions which he had to consider, of the order of Shri Nair is quashed it would follow from that very premise that the further transfer of the property would also automatically fall to the ground even as when the order for sale of the property (passed by the Competent Officer) was set aside, the sale (by public auction) in favour of the petitioners also was held to automatically fall, by Shri Nair.

(2.) V.S. Deshpande, J. in Sewa Nand-v. Appellate Officer 1973. PLR 106-1973 RLR 124 had an occasion to consider the question whether the Competent Officer was obliged of make an express offer of sale of the property to the non-evacuee incase of composite property under Rule 11 B (b) (i) and (ii) and held that it was for the Competent Officer to determine whether the non-evacuee co-sharer was not interested in purchasing the property. He could find this in various ways ; even lack of interest shown by non-evacuee would be enough. In such case the Competent Officer need not make any formal offer to the non-evacuee co-sharer and wait for his refusal because this was not the only manner in which the Competent Officer could find out such lack of interest by the non-evacuee co-sharer. What applies to the instant case would be however Rule 11 B(e) (i) but the language of both the provisions is nearly identical.

(3.) Recently I had occasion to consider the question whether there was any compulsion on the part of the Competent Officer to determine the value of the property in all circumstances, even in those cases where the concerned non-evacuee was nut interested in purchasing the property (vide Smt. Feroze Begum & Ors v. Appellate Officer C.W. No. 3 of 1971, decided on 25.4.75). The above case was argued before me by the same set of learned counsels, Shri P.N. Talwar and Shri M. Ahmed, though their roles were reversed in that case. It is needless for me to repeat here what I have stated therein regarding the scheme of the Act and the Rules in the matter of the Competent Officer selling composite property vis-a-vis the requirement of offering the same to the concerned non-evacuees.