SIRAJUL HAQ KHAN Vs. CUSTODIAN EVACUEE PROPERTIES LUCKNOW

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution.

(2.) The two petitioners and Mohammad) Nazim are brothers and the three owned certain tenancy plots in the district of Saharanpur. Mohammad Nazim migrated to Pakistan and his l/3rd share was declared to be evacuee property. The case was then reported to the Competent Officer appointed under Evacuee In-terest (Separation) Act of 1951. The Competent officer issued notices to the petitioners and the Custodian, and the petitioners submitted their claim. They fixed the price of these plots at Rs. 50/-per Bigha and wanted the share of the evacuee to be sold to them at that price. The Competent Officer heard the parties and he passed an order on 18-2-1955 holding that the share of the two petitioners came to 2/3rd and that of the evacuee to l/3rd and that, because none of the parties was willing to purchase the share of the other, the shares were to be separated by actual partition. As regards the valuation, he said that he would determine it at the time of the "final separation." The petitioners went up in appeal against this order and the Appellate Officer decided the appeal by his judgment dated 11-5-1955. The main argument addressed on behalf of the petitioners before him was that the petitioners were willing to purchase the evacuee's share in the land and the Competent officer was not justified in ordering a partition thereof. His attention was drawn to the proviso to S, 10 of the Act, which says that the Competent Officer is to take into account the order of preference filed by the claimant under Clause (f) of Sub-section (2) of Section 7. The Appellate Officer, however, was of the opinion that Rule 11B of the Rules framed under the Act laid it down as a condition precedent to the transfer of the evacuee's share that the Custodian should agree to the transfer of property to the claimant. The Assistant Custodian stated before him that he was not willing to transfer the evacuee's interest and wished to retain the land for the use of displaced persons. He held that, under the circumstances, it was not open to the Competent Oificer to compel he Custodian to transfer the evacuee's share to the peti-tioners. As regards the proviso to Section 10, he says that it only requires the Competent Officer to take into consideration the wishes of the claimants (the petitioners) and that the case was to be decided after taking into account this preference and also all other facts and circumstances of the case. It was then argued before him that there was a conflict between the rules and the Act, but he was of the opinion that there was no such conflict, as Section 10 of the Act lays down the various modes of separation of evacuee's interest, while the rules regulate the method in which the actual separation is to be effected. In the end, he dismissed the appeal. In the present petition, it is prayed that the orders passed by the Competent Officer as also the Appellate Officer be quashed and a writ of mandamus be issued to the Competent Officer, Meerut, to dispose of the petitioners' objections according to law.

(3.) The order passed by the Competent Officer is not verv satisfactory and he has decided issue No. 3 simply by saying that none of the parties was willing to purchase the share of the other. This is not quite accurate. The petitioners were willing to purchase the share of the evacuee on payment of the price determined by themselves, namely, Rs. 50/- per Bigha. The Appellate Oificer, however, was entitled to correct the mistakes of the Competent Officer, and the question now before me is whether this appellate judgment is in accordance with law or not. The learned counsel for the petitioners has argued that there is a mistake apparent on the face of the judgment, inasmuch as the Appellate Officer has held that, if the Custodian is not willing to transfer the evacuee's share, it is not open to the Competent Officer to direct the transfer of that share to the claimants. For a determination of this point, reference may be made to certain sections of the Evacuee Interest (Separation) Act, and to Rules framed under that Act. The relevant Section is Section 10, which begins by saying: