Arshadullah Khan And Others vs Union Of India And Others
2022 Latest Caselaw 212 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 

 
Case :- WRIT - C No. - 1002033 of 1995
 
Petitioner :- Arshadullah Khan And Others
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Akhilesh Kalra,Shyam Mohan Pradhan
 
Counsel for Respondent :- C S C,Arvind Kr. Mishra,Dhirendra Chaturvedi,Jitendra Prakash,Km Pratima Devi,Savitra V.Singh
 

 
Hon'ble Dinesh Kumar Singh,J.

1. This writ petition was filed in the year 1995 praying for a writ of certiorari calling for records to quash judgment and orders dated 18.01.1995 and 24.02.1995 (Annexure Nos.14 and 17) passed by Additional Judge Small Cause Court-I in SMR No.21 of 1984.

2. This Court admitted the said writ petition on 27.10.1995 and stayed the operation of the orders dated 18.01.1995 and 24.02.1995. The respondents were directed not to disturb the possession of the petitioners from the land in question until further orders.

3. The order sheet of the case would show a very disturbing trend. After obtaining the interim order, the case has been dragged by the petitioners for 27 long years before this Court. Every time when the case got listed before the Court, either counsel for the petitioners was not present or adjournment was sought on one pretext or the other. Looking at the adjournments sought by the petitioners, this Court on 02.12.2015, when no-one remained present on behalf of the petitioners even in the revised call, directed the case to be listed in the next cause list peremptorily. On many dates when the case was listed peremptorily, adjournments had been sought by the counsel for the petitioners with numerous excuses. Some of the such adjournments sought by the counsels for the petitioners as mentioned in the order sheet are being given hereunder.

4. On 05.10.2016, counsel for the petitioners sought adjournment on the ground of his ill health.

5. On 13.10.2017, none was present for the petitioners to prosecute the case and, therefore, this writ petition was dismissed for non prosecution.

6. A recall application was filed to recall the order dated 13.10.2017 whereby the writ petition was dismissed for non prosecution, and this Court issued notice on the said application vide order dated 08.11.2017. Though the writ petition was not restored on 15.05.2018, counsel for the petitioners submitted that petitioner No.3 had expired and a substitution application would be required to be filed. This Court, looking at the numerous adjournments sought by the counsel for the petitioners, granted 3 days time to file substitution application and directed the case to be listed on 21.05.2018 as unlisted.

7. On 22.05.2018, learned counsel for the petitioners again sought adjournment and this Court directed the case to be listed on 24.05.2018.

8. On 24.05.2018 again a request was made for adjournment of the case, the Court directed the case to be listed on the next day i.e. 25.05.2018.

9. On 25.05.2018 again a request was made for adjournment of the case, and the case was directed to be listed on 02.07.2018.

10. On 02.07.2018 again no-one appeared on behalf of the petitioners to press this writ petition, and this Court was of the view that the writ petition had become infructuous by efflux of time, and dismissed the writ petition as infructuous. The case was consigned to record. However, it was observed that if the petitioners would think that the matter survived, they would be at liberty to move an application for recall of the order within a month.

11. An application (C.M.Application No.76960 of 2018) was filed for recalling the order dated 02.07.2018, and on 24.07.2018, this Court directed that the application to be listed with previous papers.

12. On 06.09.2018, learned counsel for the petitioners sought adjournment on the said application on the ground of his ill health, and this Court directed the case to be listed in the next cause list peremptorily.

13. Application No.76960 of 2018 for recall of the order dated 02.07.2018 was listed before the Court on 22.10.2018. No-one was present to press the application on behalf of the petitioners and, therefore, recall application was dismissed for non prosecution.

14. Another application being C.M.Application No.139716 of 2018 for recall of the order dated 22.10.2018 was filed on behalf of the petitioners. This Court vide order dated 13.12.2018 gave liberty to the respondents to file objections to the said application within 15 days.

15. This Court on 16.01.2019 allowed the application No.76960 of 2018 and recalled the order dated 22.10.2018 and the application for recall of the order dated 02.07.2018 was restored to its original number and, thereafter recalled the order dated 02.07.2018 as well and restored the petition to its original number vide order dated 16.01.2019. This Court also allowed the application for substitution.

16. After showing so much leniency by the Court, again when the case was listed on 29.01.2019, one of the counsels for the petitioners sought adjournment on the ground that he was on sanctioned leave. The Court again showed leniency and condoned the delay in filing the substitution application to bring on record the legal heirs of petitioner No.6 and allowed the applications and condoned the delay vide order dated 27.08.2019.

17. The application for bringing on record legal heirs of petitioner No.4 was also allowed by the order of same day.

18. On 14.10.2019, the Court directed for listing of this writ petition in first week of November, 2019.

19. Again on 07.11.2019, learned counsel for the petitioners sought adjournment on account of personal difficulty, and the Court directed the case to be listed within next three weeks.

20. On 04.11.2020, when the case was listed, learned counsel for the petitioners sought adjournment on the ground of his ill health, and the case was directed to be listed again on 15.12.2020.

21. On 15.12.2020, this Court directed the case to be listed within 3 weeks and when the case was listed on 20.01.2021, the counsel for the petitioners again sought adjournment, and this Court directed the case to be listed after 4 weeks.

22. On 07.07.2021, counsel for the petitioners again sought adjournment of the case, and the case was directed to be listed within a period of 3 weeks.

23. On 31.08.2021, learned counsel for the petitioners again sought adjournment, and this Court directed the case to be listed within 3 weeks peremptorily.

24. On 09.09.2021, learned counsel for the petitioners sought adjournment of the case, and the case was directed to be listed within 4 weeks peremptorily. This Court made it clear that the case would not be adjourned on the next date.

25. On 23.09.2021, the Court directed the case to be listed in the next cause list peremptorily. On 30.09.2021, learned counsel for the petitioners sought adjournment, and this Court directed the case to be listed in the next cause list peremptorily.

26. On 07.10.2021, the case was again directed to be listed peremptorily in the next cause list.

27. On 09.11.2021, this Court passed following order:-

"The matter is of the year 1995 which is listed in the cause list, peremptorily, however, none has responded on behalf of the petitioners.

List this matter again on 18.11.2021, peremptorily.

In case if none appears to press the aforesaid petition on the next date, appropriate orders will be passed."

28. The case was again listed on 18.11.2021 and this Court passed following order:-

"1. On 31.08.2021 when the case was listed, Mr. Akhilesh Kala, learned counsel for petitioner has sent an illness slip. The case was directed to be listed peremptorily after three weeks. The same was directed to be listed on 09.09.2021 and on an adjournment slip of learned counsel for the respondent as well as request made on behalf of learned counsel for petitioner, the case was again directed to be listed peremptorily within four weeks. Again on 23.09.2021, the case was directed to be listed peremptorily in the next cause list. On 30.09.2021 again, on request of Sri Akhilesh Kalra, learned counsel for the petitioner, the case was directed to be listed peremptorily in the next cause list. A similar order was passed on 07.10.2021. On 09.11.2021 the Court again directed the matter to be listed peremptorily on 18.11.2021 and provided that in case none appears on the next date to press the petition, appropriate orders shall be passed.

2. Today on 18.11.2021 an out of station slip is sent by the office of Sri Akhilesh Kalra, learned counsel for petitioner.

3. In view of the aforesaid, put up case peremptorily on 24.11.2021 in additional cause list."

29. Again when the case was listed on 24.11.2021, counsel for the petitioners sought adjournment and the case was directed to be listed in the 2nd week of January, 2022, and on 25.01.2022, when the case was listed this Court issued card notices to respondent Nos.5 to 8 and directed the case to be listed on 28.02.2022.

30. On 02.03.2022, when the case was listed, learned counsel for the petitioners sought adjournment. The Court looking at the history of uncalled for adjournments sought by the counsel for the petitioners to drag the litigation for 27 long years, directed the case to be listed on the next day i.e. 03.03.2022.

31. When the case was listed on 03.03.2022, counsel for the petitioners again sought adjournment. This Court passed following order:-

"On the request of learned counsel for the petitioners, list this petition on 8.3.2022 peremptorily.

It is made clear that the matter shall be taken up in the first round even if the counsel for the petitioners is not able to appear and the Court will proceed to decide the matter on its own."

32. On 08.03.2022 again the counsel for the petitioners sought adjournment and the case was directed to be listed on the next day i.e. 09.03.2022, and in this manner the Court could force the counsel for the petitioners to make his submissions on the writ petition.

33. Leniency shown by the Court has been thoroughly misused by the learned counsel(s) for the petitioners. This case was dismissed thrice for want of prosecution. No stone had been left unturned to see that hearing of the case should not take place before this Court for reasons which would be best known to the counsel(s) representing the petitioners.

34. This Court is at pain to note the conduct of the case of the counsels representing the petitioners. Adjournments are sought as a matter of course. The precious time of the court gets criminally wasted. Litigants suffer as there cases also get dragged on and not decided. This is the main reason for huge pendency/arrears of cases in this Court. The Bar and Bench are two wheels of the chariot of justice. If the Bar does not cooperate, it would be highly difficult and rather impossible to move the chariot of justice. Timely and effective justice to the litigants who come before this Court with a ray of hope would be impossibility. This Court hopes that Bar will rise to the occasion and counsels representing the parties in case should come to the Court fully prepared to argue the cases whenever, listed for arguments and should not seek adjournments unless so required under the compelling circumstances.

35. Be that as it may, the Court would like to proceed and decide the case on merit.

36. It is stated that Mohammad Salamat Ullah Khan, Mohammad Sharafat Ullah Khan and Mohammad Latafat Ullah Khan, three brothers were ex-proprietary tenants of Plot Nos.92, 98, 114, 1438, 1464, 1472, 1261, 1599, 1502, 1510, 1516, 1562, 1777/1, 1799, 1800, 1873, 1884, 1885, 1899, 1900, 1903, 1904, 1907 and 1908 and grove at Plot No.1791 in equal shares. Mohammad Salamat Ullah Khan died, and his four sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah Khan and Tahir Khan migrated to Pakistan in 1948. The remaining two brothers of Mohammad Salamat Ullah Khan, namely, Mohammad Sharafat Ullah Khan and Mohammad Latafat Ullah Khan, stayed in India, and had a two-third share in that property. Entire property was a composite property.

37. Major Chandra Bhan Singh was a refugee from Pakistan, and a temporary 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. Notices were served upon Latafat Ullah Khan and Sharafat Ullah Khan. No claim was, however, filed by anyone, and the Competent Officer passed an order on August 31, 1955, under Section 11 of the Evacuee Interest (Separation) Act, 1951, vesting the property in the Custodian.

38. 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 Evacuee Interest (Separation) Act, 1951. They were served personally on Mohammad Latafat Ullah Khan, and on Mohammad Sharafat Ullah Khan through his son Shaukat Ullah Khan, on February 25, 1956. But again no claim was filed under Section 7 of the Evacuee Interest (Separation) Act, 1951 by anyone, claiming any interest in the 'composite property'. An order was, therefore, again made on March 23, 1957, under Section 11 of the Evacuee Interest (Separation) Act, 1951, vesting the property in the Custodian.

39. The Assistant Custodian (L) sent a senior Inspector to take possession of the property which got vested in the Custodian as a result of the order passed by the competent officer. Shaukat Ullah Khan, the eldest son of Mohammad Sharafat Ullah Khan, took notice of that development and undertook to file his claim within 15 days. No claim was, however, filed even then. Possession of Mohammad Salamat Ullah Khan's one-third share in the property was delivered to Major Chandra Bhan Singh on March 7, 1958, under orders of the Assistant Custodian. Thereafter, an order was made on June 6, 1958 giving him quasi-permanent allotment along with his brother Raghubir Singh, father of petitioner Nos.6, 7 and 8.

40. In the meantime, an application was made by Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan on March 12, 1958, for restoration. It was stated in the accompanying affidavit of Arshad Ullah Khan, son of Mohammad Latafat Ullah Khan, that Mohammad Sharafat Ullah Khan had died in 1950, and no notice for separation of the evacuee interest in the property was ever served upon them.

41. It was further stated that they learnt of the vesting order only on March 6, 1958, when the Manager of the evacuee property went to the village to take possession. An order was quickly made on March 15, 1958, setting aside the vesting order and recalling the order made as far back as August 31, 1955. On May 12, 1958, Arshad Ullah Khan on oath stated that the only grove in the property was in plot 1791. The Competent Officer relied on that statement, and gathered the impression that the Assistant Custodian (L) had no objection to the transfer of the evacuee interest in the property to Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan for Rs. 5,000/-. An order was made to that effect on the same day. One of the items of the property (grove) was, however, left out of evaluation even at that time for subsequent decision.

42. The Assistant Custodian of Evacuee Property, however, made an application to the Competent Officer soon thereafter, on June 11, 1958, for a review of his order dated May 12, 1958, on the ground, inter alia, that certain grove plots were treated as agricultural plots. 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 Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan for Rs.5,000/-. 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 be partitioned so as to separate the evacuee's one-third interest. The Competent Officer partly disposed of the review application dated July 10, 1958 on 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 Rs.5,000/- and modified the earlier order dated May 12, 1958, by deleting that statement from it.

43. Mohammad Shaukat Ullah Khan had made objections against the maintainability of the review applications. The Competent Officer took the view that as the Appellate Officer had held in Appeal No. 953 of 1957, that the Competent Officer could review his own order, there was no force in the objection to the contrary. He examined the petition in terms of the requirements of Order 47 Rule 1 of the Code of Civil Procedure, and held that a new and important matter regarding the allotment of the land to the refugees (Major Chandra Bhan Singh and his brother Raghubir Singh) had been discovered which justified reconsideration of the earlier decision dated May 12, 1958. He, therefore, reviewed that order, and set it aside by his order dated September 8, 1958. He gave his reasons for taking the view that the proper course was to partition the property, and allotted the plots mentioned in that order to the Custodian in lieu of the evacuee share of Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah Khan and Tahir Khan sons of Mohammad Salamat Ullah Khan and other plots were left to the share of the non-evacuee co-sharers, namely, Mohammad Latafat Ullah Khan, Shaukat Ullah Khan, Aman Ullah Khan, Habib Ullah Khan and Nasar Ullah Khan as their two-third share by way of non-evacuee interest. Plot 1791/1 was left out for separate decision after receipt of the report regarding its valuation. Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan felt aggrieved against that order of the Competent Officer, and moved this Court by a petition under Article 226 of the Constitution.

44. This Court in its judgment dated February 26, 1964 took a view that in the absence of any provision in the Evacuee Interest (Separation) Act, 1951 for review, it was not permissible for the Competent Officer to review his order dated May 12, 1958. It, therefore, allowed the writ petition, quashed the order of review dated September 8, 1958, and directed the opposite parties not to give effect to it and not to disturb the possession of the writ petitioners on the plots in dispute.

45. Major Chandra Bhan Singh challenged the said judgment of this Court before the Supreme Court by filing S.L.P. which was converted as Civil Appeal No.2329 of 1969. The said Civil Appeal was decided by the Supreme Court on 19th September, 1978 in Major Chandra Bhan Singh vs Latafat Ullah Khan & Ors : (1979) 1 SCC 321.

46. The Supreme Court noted the undisputed fact that the property in question was a "composite property" within the meaning of Section 2(d) of the Evacuee Interest (Separation) Act, 1951 because the one-third undivided share of Mohammad Salamat Ullah Khan's sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah Khan and Tahir Khan, who had migrated to Pakistan in 1948, 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 Mohammad 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 was further 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 Evacuee Interest (Separation) Act, 1951 in their capacity as co-sharers of the evacuees in the property.

47. The Supreme Court noted scheme of the Evacuee Interest (Separation) Act, 1951 and said that Section 5 of the said Act gave 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 on every person who in his opinion may have a claim in that property to submit claim(s) in the prescribed form and manner. Since, the property was listed as "composite property", notices were issued under Section 6 of the Evacuee Interest (Separation) Act, 1951 and the individual notices were served on Latafat Ullah Khan and Sharafat Ullah Khan and their acknowledgments were placed on the record. No claim was, however, filed under Section 7 of the Evacuee Interest (Separation) Act, 1951 claiming any interest in the composite property. Section 8 of the Act provides that on receipt of a claim under Section 7, the Competent Officer shall hold an inquiry into the claim and give his decision thereon, while Sections 9 and 10 deal with reliefs in respect of mortgaged property of evacuees and separation of the interest of evacuees from those of the claimants in a 'composite property'. Section 11 provides for the vesting of evacuee interest in the Custodian where a notice under Section 6 was issued in respect of any property but no claim was filed. As no statement of claim was received by the Competent Officer, the evacuee interest in the "composite property" vested in the Custodian and the Competent Officer accordingly took a decision to that effect on August 31, 1955. The Supreme Court held that the order passed by the Competent Officer was a lawful order under Section 8 read with Section 11 of the Evacuee Interest (Separation) Act, 1951.

48. It was further said that Section 14 provides that any person aggrieved by an order of the Competent Officer made under Section 8 could prefer an appeal to the Appellate Officer within 60 days of that order, and it would then be for the Appellate Officer to confirm, vary or reverse the order appealed from and to pass such orders as he deems fit. Section 15 of the Evacuee Interest (Separation) Act, 1951 further provides that the Appellate Officer may at any time call for the record of any proceeding in which the Competent Officer has passed an order for the purpose of satisfying himself as to the legality or propriety thereof and to pass such order in relation thereto as he thinks fit. This appellate and revisional jurisdiction was, therefore, available to the writ petitioners if they felt dissatisfied with the order of the Competent Officer dated August 31, 1955, but they did not avail of it. Section 18 of the Act provides that every order passed by the Appellate Officer or competent officer shall 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.

49. 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.

50. The Supreme Court further noticed that after the order dated 31st August, 1955, the property in question was again reported to be a 'composite property' and four fresh notices were issued to the petitioners on 25.02.1996 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 Evacuee Interest (Separation) Act, 1951 on March 23, 1957. No appeal or revision application was filed against the order also, under Sections 14 and 15 of the Evacuee Interest (Separation) Act, 1951. After a lapse of some 2½ years from the order dated August 31, 1955 and one year from March 23, 1957, Mohammad Latafat Ullah Khan and the four sons of Mohammad Sharafat Ullah Khan made an application for restoration of their claims on March 12, 1958. By then the order dated August 31, 1955 had become final and binding under Section 18. The Supreme Court held that it was not permissible for anyone to reopen it merely on the basis of a restoration application and to review the earlier order dated August 31, 1955 in disregard of the statutory bar of section 18. The Supreme Court held that the orders of the Competent Officer dated March 15, 1958 and May 12, 1958, were not of much consequence, and they also suffered from the same vice of lack of jurisdiction, and were equally void. The Supreme Court commented upon the conduct of the writ petitioners which would disentitle to them for a writ of certiorari. The Supreme Court allowed the appeal filed by Major Chandra Bhan Singh and set aside the order dated 26th February, 1964 passed by this Court and dismissed the writ petition of the petitioners.

51. The petitioners did not thereafter sit idly. They thereafter filed a review petition before the Supreme Court stating that as a consequence of revival of the order dated 31.08.1995 by virtue of which petitioners' whole property was ordered to have been vested in the Custodian was not in consonance with the earlier decision of the Supreme Court reported in AIR 1961 SC 1319. The Supreme Court, however, dismissed the review petition inasmuch as the petitioners had not raised such a ground in the writ petition.

52. After Supreme Court allowed the appeal of Major Chandra Bhan Singh in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra), the petitioners again filed an application under the executive instructions dated 25.03.1963 wherein a non evacuee co-sharers could purchase the evacuee interest in the 'composite property', if they so desired.

53. The Assistant Custodian, it appears did not have knowledge of the order passed by the Supreme Court. He made a proposal dated 16.08.1983 to the Custodian for transfer of said evacuee interest under the provisions of Section 10(2)(o) of the Administration of Evacuee Property Act, 1950 in favour of the petitioners. The Custodian unaware of the judgment of the Supreme Court vide his order dated 11.10.1983 directed the transfer of evacuee interest in the aforesaid property in favour of the petitioners as proposed by the Assistant Custodian and accorded his approval to the proposal submitted by the Assistant Custodian.

54. In pursuance to the order dated 11.10.1983 passed by the Custodian, Assistant Custodian transferred the said evacuee interest to the extent of 1/3 share in favour of the petitioners on deposition of sale consideration and issued a sale certificate on 02.11.1983. Sale certificate also got registered before the Registrar, Meerut. Thus, the matter which was concluded up to Supreme Court, the petitioners got it reopened in their favour by misleading the Assistant Custodian and Custodian by concealing the judgment of the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra).

55. The respondents believed that in pursuance of the order dated 31.08.1955 the entire property including 1/3 evacuee interest stood vested into Custodian and, therefore, they were entitled to delivery of possession of composite property (evacuee and non evacuee), moved an application for issuance of property sanad in respect of 2/3 share also. The Settlement Commissioner under the provisions of The Displaced Persons (Compensation And Rehabilitation) Act, 1954, however, dismissed the said application for issuance of sanad for 2/3rd share vide order dated 07.03.1984.

56. The Settlement Commissioner noted that the Assistant Custodian Evacuee Property, Meerut vide order dated 17.06.1958 allotted the evacuee property in favour of Major Chandra Bhan Singh, and he had obtained bhumidhari rights over the evacuee plots enumerated to Khatauni 1383 fasli to 1391 fasli. It was further said that question of granting sanad further for the same transferred Khasra plots to the applicant Major Chandra Bhan Singh was not necessary. Settlement Commissioner, Evacuee Property held that once the applicants' names got recorded as Bhumidhar, there was no requirement for issuing any sanad.

57. It appears that a case was filed before the competent Court for cancelling sale certificate dated 02.11.1983 in favour of the petitioners by the Custodian under Section 10(2)(o) of the Administration of Evacuee Property Act, 1950. Legal heirs of Major Chandra Bhan Singh filed an application on 25.05.1988 that there was no dispute in respect of 2/3 share of land of the 'composite property', which was allotted to them and, therefore, they should be put in possession of the said land. Pargana Adhikari, Marwana issued notice on 03.06.1988 to Late Latafatullah Khan and others. They filed their objection to the notice. However, Pargana Adhikari, Meerut vide order dated 03.08.1998 in Case No.558/1958 rejected the objections filed by the petitioners on the ground that in accordance with the judgment of the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra), the applicants/respondents were entitled for possession of the land. He directed Tehsildar, Marwana that after enforcement of the entire land, the applicants/respondents be put in possession of 2/3rd land of the 'composite property' and the Tehsildar may take assistance of local police, if they so required.

58. Against the said order passed by the Pargana Adhikari, the petitioners preferred a revision under Section 33 of The Displaced Persons (Compensation And Rehabilitation) Act, 1954 before the delegatee of the Central Government at Lucknow. The said revision was allowed vide order dated 4.02.1989. The Revisional Court held that entire property mainly disputed plots had not vested in the Custodian and the Managing Officer/Pargana Adhikari had misinterpreted the decision of the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra).

59. The respondents thereafter filed a writ petition before this Court being Writ Petition No.6619 of 1989 challenging the order passed in the revision under Section 33 of The Displaced Persons (Compensation And Rehabilitation) Act, 1954.

60. It appears that after passing the order dated 11.10.1983 by the Custodian on the proposal of Assistant Custodian dated 16.08.1983, Assistant Custodian could come to know about the judgment passed by the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra) and, therefore, Assistant Custodian on 28.08.1984 made a reference to the Assistant Custodian General praying for revision of his order dated 16.08.1983. In the reference order dated 28.08.1984, it was said that entire facts were not placed before the Assistant Custodian and, therefore, proposal for sale of the land in favour of the petitioners vide order dated 16.08.1983 was without jurisdiction and against the judgment of the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra). It was also held that after the order dated 31.08.1955, Major Chandra Bhan Singh and his brother, Raghubir Singh were allotted the land on 06.06.1958 under Rule 68 of the Displaced Persons (Compensation And Rehabilitation) Act, 1954 and sanad was issued on 17.09.1962 in their favour. Bandobast of the aforesaid land had taken place and names of the allottees were also mutated in the revenue record. It was said that once the land was allotted in favour of Major Chandra Bhan Singh and his brother, Raghubir Singh, and said allotment was upheld by the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra), it could not have been sold again in favour of the petitioners, and the Assistant Custodian General (Evacuee Property) was requested to pass an appropriate order on the reference. The Assistant Custodian General vide order dated 18.1.1995 cancelled the orders dated 16.08.1983 and 03.11.1983, whereby the land was sold in favour of the petitioners on the basis of concealment of facts.

61. An application was made by the respondents for correction of the date in the order dated 18.01.1995, and it was said that instead of 03.11.1983, it should be 02.11.1983. The petitioners filed objection to the said application for correction in which it was said that on 03.11.1983, it was directed by the Assistant Custodian to the Sub Registrar, Meerut to register sale certificate dated 02.11.1983 issued in favour of the petitioners, and the registration having already taken place, order dated 02.11.1983 had already taken effect and, therefore, could not be set aside. However, the said application was rejected and, it was held that both the orders dated 03.11.1983 as well as 02.11.1983 were passed by the same officer, and the effect would be that order dated 2.11.1983 would be deemed to be set aside by implication. This order is dated 24.02.1995 which is also impugned in the present writ petition.

62. Mr. Akhilesh Kalra, learned counsel for the petitioners has submitted that reference made by the Assistant Custodian vide order dated 28.08.1984 on which impugned orders dated 18.01.1995 and 24.02.1995 were passed, was without jurisdiction. The petitioners had again tried to reopen the issue regarding the allotment of the land in favour of Major Chandra Bhan Singh and Raghuveer Singh. It was said that the sale certificate in favour of the petitioners on the basis of order dated 16.08.1993 passed by the Assistant Custodian was validly issued. The Assistant Custodian General misinterpreted the judgment of the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra), and assumed certain facts for which there was no material either on record or in the judgment of the Supreme Court.

63. On the other hand, Mr. Raj Kumar Singh, learned counsel appearing for the Union of India and official respondents has submitted that the writ petition is not only misuse of the process of the Court but relief sought by the petitioners is against the judgment of the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra), which was rendered between the parties, in which it was conclusively held that order dated 31.08.1955 vesting the property in the Custodian had attained finality under Section 8 of Evacuee Interest (Separation) Act, 1951 and the whole property vested in the Custodian under Section 11 of the Evacuee Interest (Separation) Act, 1951 free from all encumbrances and liabilities for the reasons that any evacuee co-sharers did not file any objection despite personal service of notice. The petitioners' conduct is such which dis-entitles them to any relief from this Court. They misled the Assistant Custodian for passing the order dated 16.08.1983 on which the proposal was put by the Assistant Custodian before the Custodian for sale of the 1/3 evacuee interest in favour of the petitioners despite the judgment of the Supreme Court between the parties in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra). They obtained the sale certificate dated 02/03.11.1983. The Supreme Court also held that allotment of the land in favour of the respondents was valid and no interference was called for in the allotment of the land in favour of the respondents by sanad. It has also been submitted that allotment of land in favour of Major Chandra Bhan Singh and Raghubir Singh was made on 04.04.1955. Even order dated 31.08.1955 was passed vesting the entire property in favour of the Custodian. It has been further submitted that the Competent Officer in his order dated 31.08.1955 has specifically said as under:-

" The whole property shall vest in the Custodian under Section 11 of the Evacuee Interest (Separation) Act, 1951 free from all encumbrances and liabilities."

64. In the counter affidavit filed on behalf of the respondents, certificate for filing the Review Petition No.24 of 1979 was issued by the Advocate K.C. Dua has been mentioned which is to the effect:-

"That the Review is being sought on the ground that the order passed by this Hon'ble Court in a way reviewed the order of vesting dated 31.08.1955 passed by the Competent Officer. There will be miscarriage of justice if the order of the Competent Officer dated 31.08.55 stands as the order tantamounts to vest in the custodian the property of the Non-evacuees which the custodian himself is not competent to take over under the provisions of Administration of Evacuee Property Act"

I the undersigned do hereby certify that the above mentioned matter is fit one for review on the ground mentioned above and also on the ground and circumstances mentioned in the accompanying Review Petition."

65. Said review petition was, however, dismissed vide order dated 24.08.1982 findings no merit in the review petition.

66. Thus, it is submitted that the petitioners themselves were clear that vide order dated 31.08.1955 entire property was vested in the Custodian under Section 11 of the Evacuee Interest (Separation) Act, 1951, and any other interpretation would run contrary to the judgment passed by the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra) and Review Petition No.24 of 1979. It has been submitted that a person who approaches Court with unclean hands is not entitled for any relief. The matter once got finalized up to highest Court, could not be reopened by undertaking subsequent non maintainable proceedings, and the petitioners got the matter reopened by misleading the Assistant Custodian who made a proposal for sale of the 1/3 evacuee share in favour of the petitioners vide order dated 16.08.1983 on which sale certificate was issued by the Custodian on 2/3.11.1983.

67. I have given my due consideration to the facts of the case and submissions advanced on behalf of counsels for the parties and perused the judgment in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra).

68. The Supreme Court in the said judgment has commented upon the conduct of the petitioners, which is evident from para 14 of the said judgment. This did not deter the petitioners, and they again misled the Assistant Custodian and got the order by concealing the aforesaid judgment between the parties and got the proposal in their favour for sale of 1/3 of the evacuee property on which custodian issued sale certificate dated 2/3.11.1983. I do not find any substance in the submission of learned counsel for the petitioners that the reference made by the Assistant Custodian before Assistant Custodian General was without jurisdiction or it was belated. Section 27 of the Administration of Evacuee Property Act, 1950 clothes the custodian with revisional power which reads as under:-

"27. Powers of revision of Custodian General- The Custodian-General may at any time either on his own motion or on application made to him in this behalf call for the record of any proceedings in which any Custodian has passed an order for the purspose of satisfying himself as to the legality or properiety of any such order and may pass such order in relation thereto as he thinks fit:- Provided that the Custodian-General shall not pass an order under the sub-section prejudicial to any person without giving him a reasonable opportunity or being heard.

Explanation:- The power conferred on the Custodian-General under the this section may be exercised by him in relation to any property, notwithstanding that such property has been acquired under section 12 of the Displaced Persons (Compensation and Rehabilitation) Act (44 of 1954)."

69. Section 27 of the the Administration of Evacuee Property Act, 1950 itself empowers the Custodian General to exercise the revisional jurisdiction at any time either on his own motion or on application made to him in this behalf against any order passed by the Custodian. There is no limitation provided under the said section. He may exercise on his own motion or on an application made to him in this behalf. The only rider is that Custodian General should not pass an order prejudicial to any other person without giving him reasonable opportunity of being heard. It is not the case of the petitioners that they were not given notice to be heard before passing the impugned order. The order itself discloses that they were fully heard and reasonable opportunity was given to them before passing the impugned orders. Impugned orders have been passed because of the concealment by the petitioners, who in defiance of the judgment of the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra), got the sale certificate issued in their favour in respect of 1/3rd evacuee interest by misleading and concealing the material facts.

70. Once the proceedings got concluded by judgment of the Supreme Court in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra), any subsequent proceedings on the said issue was barred by principle of res judicata. Moreover, the petitioners' conduct had been such which completely disentitles them for a writ of certiorari by this Court.

71. In view thereof, this Court has no hesitation in dismissing the writ petition.

72. This Court cannot believe that learned counsels representing the petitioners would not know the implication of the judgment in the case of Major Chandra Bhan Singh v. Latafat Ullah Khan (supra) and despite the issue having been got settled by the Supreme Court, learned counsels for the petitioners have been able to drag this writ petition for almost 27 long years before this Court. Initially, interim order was also passed. However, once the writ petition was dismissed for non prosecution, interim order was not extended when the order dismissing the writ petition was recalled. A displaced person who was allotted the land in the year 1955, has been prevented for all these years to enjoy the fruits of allotment by indulging in protracted litigation by the petitioners. Thus, this Court finds it appropriate to not only dismiss the writ petition but also impose cost on the petitioners of Rs.25,000/- to be deposited by them within 4 weeks from today in the account of "Army Battle Casualty Welfare Fund, New Delhi". If the petitioners fail to deposit the cost as directed, District Magistrate, Meerut shall proceed to recover cost as arrears of land revenue and deposit the same in the account of "Army Battle Casualty Welfare Fund, New Delhi".

73. Ordered accordingly.

(Dinesh Kumar Singh, J.)

Order Date :- 23.03.2022

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