Mohammaed Ali vs Union Of India And Others
2022 Latest Caselaw 392 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED ON 6.10.2021
 
DELIVERED ON 4.4.2022
 
Court No. - 4
 

 
Case :- WRIT - B No. - 9235 of 2012
 

 
Petitioner :- Mohammaed Ali
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Amit Saxena,S S Sisodiya
 
Counsel for Respondent :- C.S.C.,.,A.S.G.I. (2012/2930),Anand Prakash Srivastava,Dashrath Lal Yadav,K.D. Tripathi,Nitin Raj Singh,Tripathi.B.G.Bhai,Ved Mani Tiwari
 

 
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 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 District-Bareilly. 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 sale-deed was registered on 3.4.1982. The sale-deed 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 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 sale-deed 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 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 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 well-acquainted 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 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 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 sale-deed 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 State-respondents 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 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 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 Ordinance, and shall continue to so vest.

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 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 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. 8 added by Act I of 1960 did was to save any vesting which purported to have taken place under Ordinance XXVII but it did not purport to cure any invalidity due to constitutional incompetence and that the law made without constitutional authority could not be validated. Reference was made to Saghir Ahmad v. State of U. P. 1955 1 S.C.R. 707 : (AIR 1954 SC 728) where at page 728 (of SCR) : (at p. 739 of AIR) the following statement from Cooley's Constitutional Limitations Vol. 1 page 384 (note) :-

"A statute void for unconstitutionality is dead and cannot be vitalised by subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted."

was held to be sound law.

20. The word " purport " has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable; Dicker v. Angerstein, 3 Ch D 600 at p. 603. Purporting is therefore indicative of what appears on the face of it or, is apparent even though in law it may not be so. This means that at the time when the Act purported to vest the property in dispute in the Custodian even though the power was not exercisable, S. 8(2-A) by giving a retrospective effect to S. 8(2) of the Act makes the vesting as if it was vesting under S. 8(2) of the Act and therefore the attack on the ground of invalidity cannot be sustained. By S. 5 of U. P. Ordinance 1 of 1949 the property of Khatoon Bibi who became an 'evacuee' under S. 2(c) and her property 'evacuee property' under S. 2(d) was vested in the Custodian of Evacuee Property of the province of U. P. That Ordinance was allowed to lapse. By Central Ordinance XII of 1949 as subsequently amended the vesting of evacuee property was deemed to be under that Ordinance, which in its turn was repealed under S. 55 of Ordinance XXVII of 1949 which was a valid piece of legislation. By S. 8(2) of that Ordinance the vesting under the previous Ordinance was deemed to be under that Ordinance as if it was in force on the date of the vesting. Ordinance XXVII of 1949 was repealed by the Act which contained provisions as to vesting in S. 8(2), which was similarly worded as the corresponding provision of the Ordinance and therefore by a fiction of law the original vesting was to be treated as if the Act was in force when the first vesting took place. The High Court of Allahabad in Azizunnissa's case (S) AIR 1957 All 561 held the vesting to be invalid because upto the time of Ordinance XII of 1949 and even Ordinance XX of 1949 legislative competence was lacking, and even by the deeming provisions in S. 8(2) of Ordinance XXVII of 1949 or Act XXXI of 1950 there was no valid vesting, because the original vesting was bad. We think it unnecessary to decide as to whether the deeming provisions of S. 8(2) of the Act or of Ordinance XXVII of 1949 was sufficient to give validity to the vesting. Section 8(2-A) as introduced into the Act, in our opinion, makes the vesting valid, because it gives validity to the vesting which purported to have taken place as a result of Ordinance XXVII of 1949 even though it was only apparently so and was not so in law, because that is what 'purport' implies.

21. The effect of S. 8(2-A) is that what purported to have vested under S. 8(2) of Ordinance XXVII of 1949 and which is to be deemed to be vested under S. 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting under S. 8(2) of Ordinance XXVII of 1949 or S. 8(2) of the Act which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any court in regard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the Custodian in regard to the property. Because of the retrospective effect given to the Act and the validating effect of Act 1 of 1960 Saghir Ahmad's case (1955) I SCR 707: (AIR 1954 SC 728) would have no application. In the view we have taken the other question does not survive and the share of Khatoon Bibi must be held to be evacuee property validly vested in the Custodian. Therefore the property in dispute does fall within the definition of composite property as given in S. 2(d) and cannot be held to be invalid."

(Emphasis added)

28. Subsequently, in M/s. Haji Esmail Noor Mohammad and Co. and Others Vs. Competent Officer, Lucknow and Others, AIR (1967) SC 1244, the Supreme Court held that Section 7 of the Act, 1950 applied only to properties other than those which had vested automatically in the Custodian, that no notice or declaration under Section 7(1) declaring the interest as evacuee property was required in such cases and the automatic vesting of evacuee property in the Custodian under the different Ordinances referred earlier can not be reopened either in the Central Ordinance or the Central Act for it had vested there under by a fiction. The observations of the Supreme Court in paragraph No. 7 which are relevant for the present case are reproduced below :-

7. Section 8(2) of this Act corresponds to S. 8(2) of the Central Ordinance No. 27 of 1949. This Act repeals the Ordinance and practically enacts its provisions. Under this Act also the automatic vesting of the evacuee property in the Custodian under the U.P. Ordinance No. 1 of 1949 deemed to have continued to vest under the Custodian appointed under the Central Ordinance No. 27 of 1949 is continued, by fiction, under this Act. The High Court of Allahabad in Azimunnissa's case, AIR 1957 All 561 held that there was no valid vesting under Ordinance XII of 1949 or even under Ordinance XX of 1949 for lack of legislative competence and, that, therefore, the deeming, clause in Ordinance XXVII of 1949 or Act XXXI of 1950 would not continue the vesting. This defect was cured by Act 1 of 1960 retrospectively validating the vesting under the earlier laws. This aspect of the case was considered by this Court in Azimunnissa v. The Deputy Custodian, Evacuee Properties, District-Deoria 1961-2 SCR 91 at p. 104: (AIR 1961 SC 365 at p. 371). Therein Kapur, J., speaking the Court, observed :

"The effect of s. 8(2-A) is that what purported to have vested under S. 8 (2) of Ordinance XXVII of 1949 and which is to be deemed to be vested under S. 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting under S. 8(2) of Ordinance XXVII of 1949 or S. 8(2) of Ordinance XXVII of 1949 or S. 8(2) of the Act which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any court in regard to the vesting in- effective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the Custodian in regard to the property."

In the instant case, from the narration of the facts it is clear that Abdul Latif Hajee Esmail, in view of the disturbed conditions, went away to Pakistan in the year 1948 and, therefore, he was an evacuee within the meaning of the U.P. Ordinance 1 of 1949. His property, i.e., his interest in the partnership business, automatically vested under the Ordinance in the Custodian. The Deputy Custodian of Evacuee Property, Kanpur, issued notice to the firm on September 7, 1949, informing the firm that the Kanpur property of the firm would be taken possession. The said vesting was deemed to have taken place under the Central Ordinance 27 of 1949 and the Central Act 31 of 1950. Subsequent proceedings were taken under the provisions of the said Central Ordinance and Act. As stated above, the automatic vesting of Abdul Latif Hajee Esmail's share in the firm was continued by Central Ordinance 27 of 1949 and Central Act 31 of 1950 by the deeming provisions contained therein. Therefore, no question of issuing further notice or making a declaration that the said interest was evacuee property under S. 7(1)of the Ordinance arises. Section 7 only applies to properties other than those which have been vested automatically in the Custodian. Such a vesting cannot be reopened under the Central Ordinance or the Central Act, for it has already vested thereunder by a fiction. It follows that the petitioners have no interest in the share of Abdul Latif Hajee Esmail in the firm which had vested in the Custodian."

(Emphasis added)

29. The issue of automatic vesting of evacuee property in the Custodian also came up before a Division Bench of this Court reported in Smt. Roori Devi Vs. Assistant Custodian General, AIR (1970) All 583. In the aforesaid case, it was argued on behalf of the evacuee that because no action had been taken by the Custodian under the U.P. Ordinance No. I of 1949 or Ordinance No. XII of 1949 the property belonging to the evacuee could not vest in the Custodian and the same can not be held to be an evacuee property. Repelling the contention, the Division Bench, after referring to the judgements of the Supreme Court, held that as the erstwhile owner of the disputed property was an evacuee, her interest in the property automatically vested in the Custodian under Ordinance No. I of 1949 and would be deemed to have vested in the Custodian even under the Act, 1950 and a notification notifying the property as evacuee property was not necessary for a vesting of the evacuee property in the Custodian. The relevant observations of the Division Bench in paragraph Nos. 12, 13, 15 and 16 are reproduced below :-

"12. In the present case on the finding of fact recorded by the Opposite Party No. 1 it is clear that Smt. Mahboobul Nisa who owned the property in dispute migrated to Pakistan in February, 1948. Therefore, she was an evacuee within the meaning of the U. P. Ordinance No. 1 of 1949 and her interest in the property in dispute automatically vested under the Ordinance in the Custodian. This automatic vesting was continued by Amendment Ordinance No. 20 of 1949 and Ordinance No. 27 of 1949 and finally by Act 31 of 1950. The defect that was pointed out by this Court in Azizun Nisa's case, AIR 1957 AH 561 was cured by Act 1 of 1960 retrospectively validating the vesting under the earlier laws with the result that the property in dispute would be deemed to have vested in the Custodian even under Act 31 of 1950.

13. It is contended by Sri Bashir Ahmad learned counsel for the petitioner that in the instant case no action was taken or overt act done by the Custodian in respect of the property in dispute under U. P. Ordinance No. 1 of 1949 or Ordinance No. 12 of 1949 or Ordinance No. 27 of 1949 or Act 31 of 1950 as such the property in dispute cannot be held to have vested in the Custodian. Learned counsel referred to Sections 5 and 6 of Ordinance 1 of 1949 and submitted that these two sections should be read together and unless the Custodian notified by publication about the vesting of the property or did some overt act in respect of that property the property continued to be owned and possessed by the original owner. In support of this contention of his he placed reliance on a Division Bench case of Madhya Pradesh High Court in Rubab Bai v. Asstt. Custodian of Evacuee Property, AIR 1962 Madh Pra 38 and on a Single Judge decision of this Court in Smt. Israr Fatima v. Custodian Evacuee Property, U. P., AIR 1968 All 232.

15. It is difficult to accept this view of the Madhya Pradesh High Court in face of the clear provision of Section 5 of Ordinance No. 1 of 1949 which provides for automatic vesting and also in view of the Supreme Court decision in AIR 1961 SC 365. Once it is held that there is automatic vesting it is contradiction in terms to say that there will be no vesting unless certain conditions are fulfilled. Section 6 of Ordinance No. 1 of 1949 merely speaks of the procedure to be followed after vesting. It is something subsequent to vesting. Therefore, it cannot be said that unless there is notification there is no vesting. In our opinion as soon as there is a determination of the fact that a certain person in terms of Section 2(c) of the Ordinance is an evacuee and has migrated to Pakistan before the coming into force of Ordinance No. 1 of 1949 his property will be deemed to have vested in the Custodian by virtue of Section 5 of Ordinance 1 of 1949. The Division Bench view of the Madhya Pradesh High Court referred to above was not followed by the same High Court in a later Division Bench decision in Union of India v. Ismail Abdul Shukoor, AIR 1968 Madh Pra 159. Two Muslim partners of a Firm in India were doing business at Karachi since 1946 and they continued to remain there even after the partition of India, they were treated as evacuees and the interest held by them in the partnership property in India was held to be evacuee property within the meaning of these terms as defined in Section 3 of the State Ordinance. It was held that such a property automatically vested in the Custodian and the vesting was not dependent on any notification being issued by the Custodian, This latter Division Bench case rightly held that the earlier Division Bench case was not binding on them in view of the decision of the Supreme Court in AIR 1961 SC 365.

16. In AIR 1968 All 232 it was held, that "the word 'may' used in Sub-section (1) of Section 6 of Ordinance I of 1949 has the force of 'shall' and does not make it optional for the Custodian whether to notify by publication the property that has vested in him or not. Sub-section (1) of Section 5, no doubt vests the evacuee property in the Custodian automatically without its being notified, but it must be determined as to what that property actually is and such property cannot be determined without a notification being made and objections being invited from interested persons." This authority also does not help the petitioner. It does not say that if there is no notification the property will not vest in the Custodian."

(Emphasis added)

30. The above discussion leads to the conclusion that under U.P. Ordinance No. I 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 as 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 validly vested in the Custodian and shall also be deemed to be evacuee property declared as such within the meaning of Act, 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 in the Custodian under U.P. Ordinance No. I 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 the person, who had any right or interest in the property, was an evacuee as defined in Section 2(c) of the Ordinance No. I 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 notification under Section 6 of U.P. Ordinance No. I of 1949 or under Section 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 the validity of such vesting.

31. In the present case, the respondents have not produced any order declaring the disputed plots to be evacuee property or any publication notifying that the disputed plots had vested as evacuee property in the Custodian and, therefore, it is to be presumed that no order was passed declaring the disputed plots as evacuee property and no such notification was published. But, in light of the above discussion, the absence of any such order or notification does not negate the case of the respondents that the the disputed plots were evacuee properties and had vested in the Custodian as such.

32. The disputed plots are recorded as evacuee property in the Basic Register relating to evacuee properties maintained by the Assistant Custodian, Bareilly. The extract of the said Register has been annexed in the counter affidavit of the District Magistrate, Bareilly and the original records had been produced before this Court. The Registers regarding the evacuee properties are prepared under Rule 33 of the Rules, 1950. Section 49 of the Act, 1950 provides that all records prepared or Registers maintained under this Act shall be deemed to be public documents within the meaning of the Indian Evidence Act, 1872 (hereinafter referred to as, 'Act, 1872') and shall be presumed to be genuine unless the contrary is proved. A similar provision, Section 34, existed in U.P. Ordinance No. I of 1949.

33. A perusal of the Basic Register shows that the disputed plots were also allotted to certain persons and the allotment was atleast since 1358 Fasli. On the right side of the Register a note has been made that the property was 'Declared under the Ordinance'. Section 49 of the Act, 1950 raises a presumption that the aforesaid entries in the Basic Register are genuine and correct. The presumption that the aforesaid entries are genuine and correctly reflect the nature of the disputed plots, i.e., the disputed plots were evacuee property and vested in the Custodian under the different Ordinances in force before the Act, 1950 can also be raised under Section 114 (Illustration e) of the Act, 1972. The note 'Declared under the Ordinance' indicates that the disputed plots purported to have vested in the Custodian under the Ordinances referred earlier in the judgement. In light of Section 8(2A) of the Act, 1950 the disputed plots which purport to have vested as evacuee property in the Custodian under the Ordinances shall be deemed to have validly vested in the Custodian and shall on the commencement of Act, 1950 be deemed to have been evacuee property declared as such within the meaning of Act, 1950. The note also indicates that the property had vested in the Custodian before the enactment of Act, 1950 and accordingly, an order made or other action taken by the Custodian or any other authority in relation to the disputed plots shall be deemed to have been validly and lawfully made or taken.

34. The presumption under Section 49 of the Act, 1950 regarding the entries in the Basic Register could have been rebutted by proving before the appropriate forum that Mohd. Ali Khan had not migrated to Pakistan and was in India on the relevant date, i.e., Mohd. Ali Khan was not an evacuee. It is not the case of the petitioner and there is nothing on record to show that any steps were taken by Mohd. Ali Khan or any of his heirs before any competent authority claiming that the disputed plots were not evacuee property. It has been noted previously that C.H. Form 45 prepared in 1366 Fasli recorded the disputed plots to be under the administration and management of the Custodian. No steps even after C.H. Form 45 was prepared in 1366 Fasli were taken either by Mohd. Ali Khan or any of his heirs or legal representatives for restoration of the disputed plots under Section 16 of the Act, 1950 or for correction of C.H. Form 45. No appeal under Section 24 of the Act, 1950 or revision under Section 27 of the Act, 1950 was filed before the Custodian or the Custodian General either by Mohd. Ali Khan or any of his heirs. The appeal or revision could have been filed in view of the 'deemed declaration' provided in Section 8(2-A) of the Act. Thus, the presumption in favour of the entries in the Basic Register indicating that the disputed plots were evacuee property stands unrebutted.

35. For the aforesaid reasons, it is held that the disputed plots were evacuee property and the absence of an order declaring the disputed plots to be evacuee property or a notification notifying the disputed plots to have vested in the Custodian are not relevant and have no implications on the nature of the disputed plots.

36. So far as the validity of the sale-deed executed in favour of Panna Lal Mishra is concerned, the original records were produced before this Court which showed that the sale-deed had been registered in the office of the Sub-Registrar and, therefore, there is no substance in the allegation that the sale-deed is a forged document. At this stage it is also relevant to note that in the previous order dated 5.3.2018 passed by a Co-ordinate Bench of this Court the issue regarding the validity of the act of State-authorities in giving the disputed plots in the 'Supardagi' of Panna Lal Mishra was also raised and respondent Nos. 3 and 4 were called upon to produce the order dated 18.5.1967 by which the disputed plots were given in the 'Supardagi' of Panna Lal Mishra. The order has been annexed with the affidavit of the District Magistrate, Bareilly. However, the issue regarding 'Supardagi' of the disputed plots is not relevant to adjudicate the validity of the sale-deed. The original records as well as certified copy of the sale-deed handed over to this Court indicate that a sale certificate was issued by the Managing Officer/Assistant Custodian Acquired Evacuee Property and the deed was registered before the Sub-Registrar.

37. In order to decide the competence of the Assistant Custodian Evacuee Property/Managing Officer to issue the sale certificate, the provisions of Act, 1954 have to be considered. The Act, 1954 defines evacuee property as any property which has been declared or is deemed to have been declared as evacuee property under the Act, 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 the publication of the notification in the official Gazette the right, title or interest of any evacuee in the evacuee property shall stand 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 acquired under Section 12 of the Act, 1954, and which is made a part of the compensation pool. Sections 17 and 20 of the Act, 1954 empower the Managing Officers to dispose of such property. Sections 22 and 23 of the Act, 1954 provide for Appeal to the Settlement Commissioner and the Chief Settlement Commissioner against the order of Managing Officer and the Assistant Settlement Commissioner. Relevant extracts of Sections 12, 14, 16, 17, 20, 22 and 23 of the Act, 1954 are reproduced below :-

"Section 12. Power to acquire evacuee property for rehabilitation of displaced person. (1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section.

(2) On the publication of a notification under sub- section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances.

(3) It shall be lawful for the Central Government, if it so considers necessary, to issue from time to time the notification referred to in Sub- section (1) in respect of-

(a) all evacuee property generally, or

(b) any class of evacuee property, or

(c) all evacuee property situated in a specified area

(d) any particular evacuee property.

(4) All evacuee property acquired under this section shall form part of the compensation pool.

14. Compensation pool.-(1) For the purpose of payment of compensation and rehabilitation grants to displaced persons, there shall be constituted a compensation pool which shall consist of-

(a) all evacuee property acquired under section 12, including the sale proceeds of any such property and all profits and income accruing from such property;

...

...

...

(2) The compensation pool shall vest in the Central Government free from all encumbrances and shall be utilised in accordance with the provisions of this Act and the rules made thereunder.

16. Management of compensation pool.-(1) The Central Government may take such measures as it considers necessary or expedient for the custody, management and disposal of the compensation pool in order that it may be effectively utilised in accordance with the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, the Central Government may, for the purposes referred to in sub- section (1), by notification in the Official Gazette,-

(a) appoint such officers as it may deem fit (hereinafter referred to as managing officers); or

(b) constitute such authority or corporation, as it may deem fit (hereinafter referred to as managing corporation).

...

...

...

17. Functions and duties of managing officers and managing corporations.- (1) All managing officers or managing corporations shall perform such functions as may be assigned to them by or under this Act under the general superintendence and control of the Chief Settlement Commissioner.

(2) Subject to the provisions of this Act and the rules made thereunder, a managing officer or managing corporation may take such measures as he or it considers necessary or expedient for the purpose of securing, administering, preserving, managing or disposing of any property in the compensation pool entrusted to him or it and generally for the purpose of satisfactorily discharging any of the duties imposed on him or it by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto.

...

...

...

20. Power to transfer property out of the compensation pool.-(1) Subject to any rules that may be made under this Act, the managing officer or managing corporation may transfer any property out of the compensation pool-

(a) by sale of such property to a displaced person or any association of displaced persons, whether incorporated or not, or to any other person, whether the property is sold by public auction or otherwise;

...

...

...

22. Appeals to the Settlement Commissioner.-(1) Subject to the provisions of sub- section (2), any person aggrieved by an order of the Settlement Officer or a managing officer under this Act may, within thirty days from the date of the order, prefer an appeal to the Settlement Commissioner in such form and manner as may be prescribed:

Provided that the Settlement Commissioner may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) ...

(3) The Settlement Commissioner may, after hearing the appeal, confirm, vary or reverse the order appealed from and pass such order in relation thereto as he deems fit.

23. Appeals to the Chief Settlement Commissioner. (1) Subject to the provisions of sub-section (2), any person aggrieved by an order of the Settlement Commissioner or the Additional Settlement Commissioner or an Assistant Settlement Commissioner or a managing corporation under this Act may, within thirty days from the date of the order, prefer an appeal to the Chief Settlement Commissioner in such form and manner as may be prescribed:

Provided that the Chief Settlement Commissioner may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2)No appeal shall lie from any order passed in appeal under section 22.

(3)The Chief Settlement Commissioner may, after hearing the appeal, confirm, vary or reverse the order appealed from and pass such order in relation thereto as he deems fit.

(Emphasis added)

38. The Central Government vide its notification dated 26th November, 1957 issued under Section 12(1) of the Act, 1954 acquired all tenancy rights of the evacuees which had become Sirdaris as well as Sir and Khudkasht rights of evacuees which had become Bhumidhars under U.P. Act No. 1 of 1951 and which had been retrieved under the Act, 1950 or under any other previous Acts or Ordinances and which had been allotted to displaced persons. Evacuee properties regarding which proceedings were pending under the the Act, 1950 disputing that the property was evacuee property or where the limitation period for disputing the vesting of the property in the Custodian as evacuee property had not expired or any property for which proceedings under Section 16 of the Act, 1950 for restoration of the property were pending, were exempted from acquisition. A copy of the notification has been filed alongwith the counter affidavit of respondent No. 2. The petitioner has not disputed the notification dated 26.11.1957. It is not the case of the petitioner that the disputed plots fall in any class of property exempted from acquisition by notification dated 26.11.1957. It has been observed earlier that no steps were taken either by Mohd. Ali Khan, the original tenure holder of the disputed plots, or any of his heirs to dispute before any forum the vesting of the disputed plots as evacuee property in the Custodian or for restoration of the property under Section 16 of the Act, 1950. Thus, under Section 12(2) of the Act, 1954 the right, title and interest of Mohd. Ali Khan in the disputed plots stood extinguished on 26.11.1957 and on the said date the disputed plots vested in the Central Government free from all encumbrances. The evacuee properties which had vested in the Central Government under Section 12 of the Act, 1954 were transferred for management, administration and disposal to the State Government by virtue of notification dated 23.3.1977. The hand-book of the Board of Revenue containing the different instructions and notifications regarding management and disposal of evacuee properties handed over to the Court by the Standing Counsel of the State of U.P. show that the Tehsildars were appointed as Managing Officers/Assistant Custodian in relation to evacuee properties. The aforesaid explains the fact that the sale-deed executed in favour of Panna Lal Mishra has been signed by the Managing Officer/Assistant Custodian. Under Section 20 of the Act, 1954 the Managing Officer was empowered to transfer, by sale, any evacuee property to any person other than a displaced person or association of displaced persons. It is also relevant to note that no appeal was filed by Mohd. Ali Khan or his heirs against the order dated 26.2.1970 passed by the Assistant Settlement Commissioner permitting disposal of the disputed plots in favour of Panna Lal Mishra. In light of the aforesaid, the sale certificate/sale deed can not be held to be invalid because the sale certificate was signed and issued by the Managing Officer/Assistant Custodian.

39. It was also argued by the petitioner that the sale-deed was invalid because the sale had been executed without prior approval of the Custodian General as required under Section 10(2)(o) of the Act, 1950. After the notification dated 26.11.1957 issued under Section 12 of the Act, 1954, the disputed plots vested in the Central Government free from all encumbrances and the disposal of the disputed plots was not to be by the Custodian under Section 10(2)(o) of the Act, 1950, but by the Managing Officer under Section 20 of the Act, 1954. Act, 1954 does not stipulate any permission of the Custodian General for disposal, by sale, of evacuee properties. Thus, no permission of the Custodian General was required to dispose of the disputed plots and the sale-deed is not invalid for being violative of Section 10(2)(o) of the Act, 1950. In view of the aforesaid there is no infirmity in the sale-deed dated 26.11.1981/3.4.1982.

40. In light of the findings recorded above, the issue regarding the regularity in the proceedings of the consolidation courts and the authenticity of the different records and orders passed by the consolidation courts is not relevant for deciding the rights of the parties. The petitioner and Shamim Khan claimed title to the disputed plots from Mohd. Ali Khan. The disputed plots were acquired by the Central Government under Section 12 of the Act, 1954. The acquisition under Section 12 of the Act, 1954 extinguished the rights, title and interest of the evacuee, i.e., Mohd. Ali Khan in the disputed plots. In the circumstances, the proceedings before the consolidations courts could not have been reopened at the instance of either the petitioner or Shamim Khan.

41. In light of the findings recorded above that the disputed plots were evacuee property and there is no infirmity in the sale deed executed in favour of Panna Lal Mishra, C.H. Form 45 correctly reflected the title of the disputed plots. Further, the reopening of the consolidation proceedings would invite a dispute regarding the title of the Custodian in the disputed plots which is barred by Section 48-A of the Act, 1953. The order dated 4.9.2011 was contrary to law because through the aforesaid order, the D.D.C. had directed that the proceedings regarding succession to the title of Mohd. Ali Khan in the disputed plots be started a fresh which could not have been done as the interest of Mohd. Ali Khan in the disputed plots stood extinguished after notification dated 26.11.1957 and the disputed plots had vested in the Central Government. It is difficult to comprehend as to how the D.D.C. by her order dated 4.11.2009 remanded back the matter to the C.O. for passing fresh orders even though on her own findings recorded in the order dated 4.11.2009, no case had been instituted regarding the title of the disputed plots. In case, Panna La Mishra was not entitled to be recorded as Bhumidhar of the disputed plots and the entries in C.H. Form 45 were forged, the basic year entries showing that the disputed plots were evacuee property and under the Administration of the Custodian could have been restored. The restoration of said entries would not benefit either the petitioner or Shamim Khan. Apparently, the petitioner or Shamim Khan had no locus to get the proceedings before the consolidation courts reopened. The D.D.C. vide her order dated 7.2.2011 rightly recalled her previous order dated 4.9.2011. For the same reasons as recorded above, petitioner has no locus to challenge the order dated 7.2.2011.

42. In view of the aforesaid, there is no illegality in the order dated 7.2.2011 passed by the Deputy Director of Consolidation, Bareilly so as to occasion interference under Article 226 of the Constitution of India.

43. The writ petition lacks merit, and is, accordingly dismissed.

44. Interim order, if any, stands vacated.

Order Date :- 4.4.2022

Anurag/-