EK NAWAZ KHAN Vs. COMPETENT OFFICER ALLAHABAD

JUDGEMENT

(1.) This is a special appeal against an order of a learned Judge rejecting the appellant's petition under Art. 226 of the Constitution praying for the quashing of the order of the Competent Officer, Allahabad dated 6-5-1956 and for the issue of a writ of prohibition prohibiting the Competent Officer from proceeding further with Case No. 96 of 1953 regarding house No. CK 66/3, Benia Bagh, Phatak Sheikh Salim, Varanasi.

(2.) The house in suit was sold by the Competent Officer Allahabad in exercise of his powers under Section 10 of the Evacuee Interest (Separation) Act (LXIV of 1951) -- hereinafter called the Act. The sale took place on 28-6-1955 and was in favour of respondents 2 and 3. The Competent Officer issued a notice to one Haq Newaz Khan and two others on 30-9-1956 informing them about the sale of the house to these respondents and directing them to pay the entire house rent at Rs. 60/- per mensem to the vendees with effect from 1-8-1955. This notice substantially complied with the requirements of the notice in Form 'M' to the occupant of the property sold and referred to in Sub-rule 3(a) of Rule 11-E of the Evacuee Interest (Separation) Rules, 1951. On 5-11-1958 Haji Manzoor Ahmad, respondent No. 2, made an application to the Competent Officer praying for the delivery of actual possession over the house in suit to him through a Commissioner appointed for the purpose with police aid. Possession was sought against twenty-one persons mentioned in that application. These persons included the appellant Ek Nawaz Khan. The appellant filed an objection before the Competent Officer contending that proceedings for his forcible eviction could not be taken before the Competent Officer subsequent to the Competent Officer's separating the interest of the evacuee and the delivery of symbolic possession to the vendee-respondents and that he was not a trespasser but was an occupant entitled to occupy the house in suit, he being one of the persons to whom the notice dated 30-9-1956 had been issued. He alleged that he was also called Haq Newaz Khan. Later on he asked the Competent Officer to decide the question of his competency io deliver possession against him on the allegation that he was a trespasser and not a person entitled to occupy the house in suit. The Competent Officer decided the issue about his competency to order the eviction of a trespasser on the application of the vendee and held that he had jurisdiction to do so. It is this order which the appellant desired to be quashed by his writ petition. He prayed also for a writ of prohibition prohibiting the Competent Officer from continuing the proceedings for the forcible eviction of the appellant from the house in suit.

(3.) The learned Judge held that the prayer for the quashing of the order of the Competent Officer was premature as no actual order for evicting the appellant had been issued. He further held that no writ of prohibition could be issued as, in view of the decision of the Competent Officer than he had jurisdiction to evict the appellant forcibly, that officer had jurisdiction to take further proceedings in the matter. He also held that there was nothing patently wrong with the decision given by the Competent Officer as he had the power to put the auction-purchaser in possession when he had the power to sell the house. He further took into consideration the fact that the appellant if evicted unlawfully would have a right to sue for the recovery of possession in a civil court.