Sunil Ambwani, J.@mdashHeard Shri M. Islam, learned Counsel for the petitioner and Shri Sharad Mandhyan for respondent No. 3.
2. A Revision No. 5 of 1990 u/s 27 of the Administration of Evacuee Property Act. 1950, was allowed by the Assistant Custodian General (Evacuee Property) Lucknow and the matter was remanded for deciding the matter afresh. The writ petitions filed by the aggrieved parties against the judgment of the revisional court were dismissed on May 23, 2003. Smt. Wafia Khatoon the petitioner in Writ Petition No. 6930 of 1995 filed a Civil Appeal No. 3680 of 2006 and Shri Wasi Ahmad-the petitioner in Writ Petition No. 13294 of 1995, filed Civil Appeal No. 3681 of 2006 in the Supreme Court. By a common judgment both the civil appeals were disposed of with following directions:
Leave granted.
The question which arose for consideration in both these appeals inter alia related to the jurisdiction of the Small Causes Court as revisional authority u/s 27 of the Administration of Evacuee Property Act, 1950. The appellants herein have raised several other contentious issues before the High Court including the one whether the revision application should have been entertained after a long time although no limitation period therefore is specified.
Unfortunately the High Court did not apply its mind to the said important issues.
Having heard the learned Counsel for the parties, we are of the opinion that the High Court should consider the matter afresh after giving an opportunity of hearing to the parties herein. Accordingly, we set aside the impugned judgments and remit the matters to the High Court for consideration thereof afresh. The High Court shall not only deal with the jurisdictional question but also other questions raised in these petitions. Keeping in view the fact that the auction has taken place in the year 1980, we would request the High Court to consider the desirability of disposing of the matter as expeditiously as possible.
With the aforesaid observations and directions the appeals are disposed of.
Sd. S.B. Sinha, J.
Sd. Dalveer Bhandari, J.
3. The facts giving rise to these writ petitions are that one Shri Manzoor Ahmad the Zamindar of the disputed land died in 1947. Some of* his heirs migrated to Pakistan in 1947. Their shares in the property were vested in the custodian. Smt. Wafia Khatoon filed an application before the Assistant Custodian on 23.5.1981 stating that she was a co-sharer with her evacuee sisters and was in possession of their shares in plot No. 169 which may be transferred to her. By a sale certificate dated 16.4.1982 the share of the evacuees was transferred in her favour. A revision was filed after 8 years on 8.2.1990 by Shri Mahfooz Ahmad-respondent No. 3, in Writ Petition No. 6930 of 1995, u/s 27 of the Administration of Evacuee Property Act, 1950, on the ground that he was a co-sharer on the disputed plot and that the consolidation authorities have wrongly prepared a chak without including his name. No right or title could be passed on to the petitioner as he was having a preferential right. The Custodian General did not grant prior approval of the sale u/s 10 of the Act and no notice was issued to him before the transfer. The Judge, Small Causes Court, Lucknow, acting as a revisional court, found that the revisionist Shri Mahfooz Ahmad has a prima facie case. He should have been given an opportunity to prove his case before the custodian. The Judge, Small Causes Court remanded the matter to the Assistant Custodian for giving an opportunity to both the parties to be heard before a decision is taken, giving rise to these writ petitions.
4. Shri M. Islam, learned Counsel for the petitioner would contend that the Judge, Small Causes Court did not have jurisdiction to hear the revision. By a notification dated 3.7.1980, (R.A. 2) the powers of the Assistant Custodian General to decide revisions u/s 27 of the Act was superseded. Thereafter by a notification dated 16.1.1986 (R.A. 2) these powers were vested in Secretary, Department of Revenue, Government of Uttar Pradesh. Shri Mahfooz Ahmad filed a writ petition against the sale certificate which was not pursued and was dismissed for want of prosecution. The revision filed after 8 years with full knowledge of the proceedings was barred by the law of limitation, and was as such liable to be dismissed.
5. Shri Sharad Mandhyan appearing for the respondent No. 3, on the other hand, would submit that the Judge, Small Causes Court was authorised to act as Assistant Custodian to maintain and decide the revisions u/s 27 of the Act. The authorities under the Consolidation of Holdings Act did not have jurisdiction to determine the title of the evacuee property, vide
6. By a notification dated 31.10.1977 the Government of India, Ministry of Civil Supplies and Rehabilitation, appointed the Judge, Small Causes Court as Assistant Custodian General under the Act of 1950. By another notification dated 29.12.1977 under Sections 24 and 27 of the Act of 1950, the powers of the Custodian General were vested in the Judge, Small Causes Court and that further by a notification dated 3.7.1980, issued under Sections 24, 27, 10(2) read with Rule 30A these powers were also vested in the Assistant Custodian General. The preliminary objections taken by the petitioner before the Judge, Small Causes Court, Lucknow, were rejected by him by his order dated 26.5.1988 (Annexure-C.A. 2 to the counter-affidavit). The Judge, Small Causes Court found that by the notification dated 5.4.1977 the Commissioner-cum-Secretary, Department of Revenue, Government of U.P., was appointed as Deputy Custodian General and that by notification dated 6.4.1977 he was also given powers as Custodian General. A fresh notification was issued on 16.1.1986 which superseded the earlier notifications dated 6.4.1977 and 3.7.1980 and under which the Secretary, Department of Revenue, Government of U.P., was delegated with the powers of Deputy Custodian General, Evacuee Property. He was also given powers under Sections 24, 27, 10(2)(0) and Rule 30A.
7. The Judge, Small Causes Court found that the notification dated 16.1.1986 will not supersede all the notifications and that the earlier notifications will not be treated to be cancelled. Relying upon a passage in the book of Shri V.K. Sarcar on U.P. Urban Buildings (Regulations Rent and Eviction) Act, (Third Edition) 107 Note 31, the Judge, Small Causes Court held that the previous notifications will not be cancelled or superseded on the delegation of the powers to the new Custodian General. The Secretary, Department of Revenue, Government of U.P., was given powers u/s 10(2)(0) read with Rule 30A vide notification dated 3.7.1980 but that the notification dated 31.10.1977 and 29.12.1977, are still effective and thus the Judge, Small Causes Court has the powers of the Custodian General under Sections 24 and 27 of the Act.
8. So far the delay of eight years is concerned, the Judge, Small Causes Court while deciding the revision held that the revisionist as a co-sharer was not served with a notice and that the proceedings were held ex parte by the Assistant Custodian. Thereafter, the Judge, Small Causes Court recorded a finding that the revisionist did not have a knowledge of the proceedings and that the delay in filing the revision u/s 27 of the Act is liable to be condoned.
9. Shri M. Islam would submit that on the issuance of the notification dated 15.1.1986 by the Rehabilitation Division, Department of Internal Security, Ministry of Home Affairs, Government of India, u/s 5 of the Administration of Evacuee Act, 1950, the Secretary, Government of U.P. Department of Revenue was appointed as Deputy Custodian for the purposes of discharging the duties imposed on such Deputy Custodian General by or under the Act. The notification further states that it was in supersession of erstwhile Ministry of Civil Supplies and Rehabilitation Notifications dated 1647/Spl/Cell/77-55 II dated 5.4.1977 and 31.3.1977. In a matter relating to one Smt. Raisa Begum v. Assistant Custodian General, the Deputy Secretary to Government of India, Rehabilitation Division, Department of Internal Security, Ministry of Home Affairs had sent a letter on 8.11.1988 to the Additional Judge, Small Causes Court and Assistant Custodian General, Lucknow that after the issuance of the notification dated 17.1.1986 delegating the powers of the Custodian General on the Secretary, Government of U.P., Department of Revenue, the Judge, Small Causes Court does not have jurisdiction to hear the revision u/s 27 of the Administration of Evacuee Property Act, 1950, pending before him in the capacity as Assistant Custodian General.
10. In the present case, the Revision No. 5 was filed in 1990. On that day, the Judge, Small Causes Court, Lucknow did not have jurisdiction to entertain the revision u/s 27 of the Act. He erred in exercise of his jurisdiction in rejecting the preliminary objections, and in holding that he could hear the matter as the earlier notifications were not expressly repealed.
11. The notification dated 15.1.1986 clearly provided for supersession of the notifications dated 5.4.1977 and 31.3.1977. The word ''supersession'' would clearly imply that the earlier notifications were rendered ineffective. It is not a case where the revisions were pending and that the supersession may not be taken to be applicable to the pending revisions. In the present case, the revision itself was filed on 8.2.1990, when the Judge, Small Causes Court did not have the powers of the Assistant Custodian General Evacuee Property, U.P., Lucknow u/s 27 of the Act to entertain and to hear the revision.
12. There is another aspect of the matter which would disentitle the respondent No. 3 to any relief. The petitioner had moved an application on 23.5.1981 before the Assistant Custodian General, Evacuee Property for cancellation of the sale of the evacuee interest of Masuda Khatoon and Smt. Safia Khatoon to their sister Smt. Wafia Khatoon the petitioner in this case. He had also filed a Writ Petition No. 10597 of 1984 for quashing the sale certificate dated 21.8.1981 issued in favour of the petitioner. The writ petition was dismissed on 17.4.1985. The revision u/s 27 of the Administration of Evacuee Property Act was filed by respondent No. 4 on 8.2.1990, i.e., after five years of the dismissal of the writ petition. In the revision petition annexed as Annexure-5 to the writ petition, the petitioner did not explain the delay in filing the revision. In ground Nos. (f) and (g) he had stated that he had no knowledge of these proceedings. He stated as follows:
(f) that the petitioner had no knowledge of these proceedings, but in any case u/s 27 of Act 31 of 1950 this Court has wide powers to admit the petition and condone the delay and decide the revision petition on merits.
(g) That the petitioner was advised on 20th January, 90 to file a regular revision petition in this Hon''ble Court for setting aside the certificate of sale issued in favour of Opp. party No. 3 and before the said date he was under the bona fide impression that he would get the relief from the revenue courts and, therefore, did not file the revision petition earlier.
13. The Judge, Small Causes Court has considered the question of delay in the last paragraph of his order and has found the delay to be condonable on a casual observation that the orders were passed without issuing notice to the revisionist in an ex parte proceedings which were not in accordance with the law and finding that the revisionist has no knowledge of the proceedings.
14. The respondent No. 3 did not give good and sufficient cause for condonation of delay. He had knowledge of the entire proceedings and has filed a writ petition against the sale certificate which was dismissed on 17.4.1985. The revision filed after five years was clearly barred by limitation for which there was no satisfactory explanation for condonation of delay.
15. The Judge, Small Causes Court did not have the jurisdiction to entertain and decide the revision, and further on the finding that the delay was not adequately explained, the petitioner is entitled to reliefs claimed in the writ petition.
16. Both the writ petitions are allowed. The judgment and order dated 12.1.1995, passed by 1st Additional Judge, Small Causes Court, Lucknow in Revision No. 5 of 1990 (Annexure-12 in Writ Petition No. 6930 of 1995) and the judgment and orders dated 11.11.1994 and 3.4.1995, passed by 1st Additional Judge, Small Causes Court, Lucknow in Revision No. 6 of 1990 (Annexure-14 in Writ Petition No. 13294 of 1995) are set aside. There shall be no order as to costs.
