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PETITIONER: CHANDRA BHAN SINGH

       Vs.

RESPONDENT: LATAFAT ULLAH KHAN & ORS.

DATE OF JUDGMENT19/09/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. FAZALALI, SYED MURTAZA

CITATION:  1978 AIR 1814            1979 SCR  (1) 891  1979 SCC  (1) 321

ACT:      Evacuee  Interest   (Separation)  Act,   1951-S.  18-No provision in  the Act  for review  of the  order  passed  by Competent Officer-Competent  Officer-If could review his own order.

HEADNOTE:      Practice and  Procedure-Conduct of  parties to be taken into account while granting relief in writ petition.      The  property   in  dispute   was  undivided   property (composite property) of three brothers, one of whom died and his sons  migrated  to  Pakistan.  One-third  share  of  the property was  declared evacuee  property and  vested in  the Custodian under  the Administration of Evacuee Property Act, 1950. It was allotted to the appellant who was a refugee.      The Competent  Officer issued  individual notices under Section 6  of the Evacuee Interest (Separation) Act, 1951 to the  two   remaining  brothers  of  the  evacuee  and  their acknowledgments were  placed on  record. Since  no claim was filed by  anyone, an order was made by the Competent Officer on 31-8-1955  vesting the  property in  the Custodian  under Sec. 11.  As the property was again reported to be composite property, fresh notices were inadvertently issued to the co- sharers, but  no claim  was filed by anyone and an order was again  made   on  23-3-1957  vesting  the  property  in  the Custodian. Possession of the evacuees one-third share in the property was  delivered to  the  appellant  under  order  of Assistant Custodian.      After  a  lapse  of  time,  the  respondents  filed  an application for  ’restoration’ alleging  that no  notice for separation of  the evacuee interest in the property was ever served on  them and  that they  learnt of  the vesting order only when  the Manager  of the  evacuee property went to the village to  take possession. The Competent Officer passed an order setting  aside the  vesting order  dated 31-8-1955 and transferred the property to the sons of the deceased brother for Rs. 5,000/-.      The Assistant  Custodian of  Evacuee Property  made  an application to  the Competent  Officer for  a review  of his order, pointing  out a  wrong impression. It was stated that the evacuee  interest  in  the  property  had  already  been allotted to  the appellant.  The  Competent  Officer  partly

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allowed the review.      The respondents  questioned the  power of the Competent officer to review his order, but the objection was rejected.      The respondents filed a writ petition under Art. 226 of the Constitution. The High Court quashed the order of review on the  ground that  in the  absence of any provision in the Act for  review, it  was not  permissible for  the Competent Officer to review his order.      Allowing the appeal to this Court, 892 ^      HELD: (1) The conduct of the respondents was such as to disentitle them  to a  writ and  the  High  Court  erred  in ignoring that  important aspect of the matter even though it was sufficient  for the  dismissal  of  the  writ  petition. [899B]      (2) Review  is a  creature of  a statute  and cannot be entertained in the absence of a provision therefor. [897G]      Harbhajan Singh  v. Karan  Singh &  Ors., [1966]  1 SCR 817; Patel  Chunibhai Dajibhai  etc. v. Narayanrao Khanderao Jambekar & Anr., [1965] 2 SCR 328 referred to.      Baijnath Ram  Goenka v.  Nand Kumar  Singh, 40 I.A. 54; Ananatharaju Shetty  v.  Appu  Hegde,  AIR  1919  Mad.  244, approved.      (3) The  earlier two  orders of  the Competent  Officer setting aside the vesting order and transferring the evacuee interest in  the property  to the  respondents were therefor without jurisdiction. [897H-898A]      (4) But  when the respondents had themselves unlawfully invoked the  review jurisdiction  of the  Competent officer, which  did  not  exist,  to  their  advantage,  and  to  the disadvantage of  the appellant,  they could  not be heard to say, when  the Department invoked the self-same jurisdiction on two  important grounds,  that the  review orders  of  the Competent Officer  were void  for want  of jurisdiction  and must be set aside for that reason. [898H-899B]      (5) The  High Court  failed to appreciate that while it was true  that want  of jurisdiction  to review the order by the Competent Officer could not be cured by waiver, it would not necessarily follow that the Court was obliged to grant a writ at the instance of a party whose conduct was such as to disentitle it  for it.  The High  Court was  exercising  its extraordinary  jurisdiction   and   the   conduct   of   the petitioners was a matter of considerable importance. [898E]      (6) The  High Court did not take due notice of the fact that the respondents had allowed the passing of the impugned orders, in  spite of  the individual notices to them. It did not notice  the further fact that when that order had become final because  of the  failure  to  file  an  appeal  or  an application for  revision it  was not permissible in view of the specific  bar of  Sec. 18  for the respondents to move a "restoration" application  and to obtain its reversal by the Competent Officer. [898F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2329 of 1969.      Appeal by  Special Leave  from the  Judgment and  Order dated 16-12-1966  of the  Allahabad High Court in S.C.A. No. 346/66.      G. N.  Dikshit, M.  V. Goswami  and O.  P. Rana for the Appellant.      S. K. Mehta and P. N. Puri, for Respondent Nos. 1-5.

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    The Judgment of the Court was delivered by      SHINGHAL, J.-This appeal by special leave arises from a Judgment of  the Allahabad  High Court  dated  February  26, 1964. It will be enough to state the admitted facts for they are quite sufficient for its disposal. 893      Mohammed Salamat  Ullah Khan,  Mohammed Sharafat  Ullah Khan and  Mohammed Latafat  Ullah Khan  were three  brothers owning  one  third  share  each  in  their  joint  property. Mohammed Salamat Ullah Khan died, and his sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar Ullah Khan and Tahir Khan migrated to  Pakistan in 1948. The remaining two brothers of Mohammed Salamat Ullah Khan, namely, Mohammed Sharafat Ullah Khan and  Mohammed Latafat  Ullah Khan,  stayed in India and had a  two-third share  in that property. 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,  hereinafter   referred  to  as  the  Act.  They  were "individual" notices  and the  Competent Officer  has stated that they  were served  on Latafat  Ullah Khan  and Sharafat Ullah Khan  and their  acknowledgements were  placed on  the record. No  claim was  however filed by anyone, and an order was made  by the competent Officer on August 31, 1955, under section  11   of  the  Act,  vesting  the  property  in  the Custodian. It  may be mentioned that Mohammed Sharafat Ullah Khan had  died earlier, leaving behind his four sons Shaukat Ullah Khan,  Habib Ullah  Khan, Nasar  Ullah Khan  and  Aman Ullah Khan.      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 Act. They were served personally on  Mohammed Latafat  Ullah Khan, and on Mohammed Sharafat Ullah  Khan through  his son Shaukat Ullah Khan, on February 25,  1956. But  again  no  claim  was  filed  under section 7 of the Act by anyone, claiming any interest in the composite property.  An order  was therefore  again made  on March 23,  1957, under  section 11  of the  Act, vesting the property in the Custodian.      The Assistant  Custodian (L) sent a senior Inspector to take possession  of the vested property. Shaukat Ullah Khan, the eldest  son of Mohammed 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 Mohammed  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. 894      In the  meantime, an  application was  made by Mohammed Latafat Ullah  Khan and  the four  sons of Mohammed Sharafat Ullah Khan  on March  12, 1958,  for "restoration".  It  was stated in  the accompanying  affidavit of Arshad Ullah Khan, son of  Mohammed Latafat  Ullah Khan, that Mohammed Sharafat Ullah Khan had died in 1950, and no notice for separation of the evacuee  interest in  the property  was ever  served  on them. 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  which, it  will be recalled, had been made as

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far back  as August  31, 1955. The case was then taken up on May 12,  1958, when  it was  stated by  Arshad Ullah Khan on oath that  the only  grove in  the property  was in plot No. 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 Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat  Ullah Khan  for Rs.  5000/-. An order was made to  that effect  the same  day. One of the items of the property was  however left  out of  evaluation even  at that time for subsequent decision.      The Assistant  Custodian of  Evacuee  Property  however made an  application to the Competent Officer soon after, 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 Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat  Ullah Khan  for Rs.  5000/-. 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 partitioned  so as  to separate  the evacuee’s one- third interest. The Competent Officer partly disposed of the review application  dated July  10, 1958,  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.  5000/-  and  modified  the earlier order dated May 12, 1958, by deleting that statement from it.      Mohammed Shaukat Ullah Khan however raised an objection against the  maintainability of the review applications. The Competent Officer  took  the  view  that  as  the  Appellate Officer had held in 895 appeal No.  953 of  1957, that  he (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 Mohammed Salamat Ullah Khan.  The other  plots were  left to the Share of the non-evacuee co-sharers, namely, Mohammed Latafat Ullah Khan, Shaukat Ullah  Khan, Aman  Ullah Khan,  Habib Ullah Khan and Nasar Ullah Khan their two-third share by way of non-evacuee interest. Plot No. 1791/1 was left out for separate decision after  receipt   of  the  report  regarding  its  valuation. Mohammed Latafat  Ullah Khan  and the  four sons of Mohammed Sharafat Ullah Khan felt aggrieved against that order of the Competent Officer  and moved  the High  Court by  a petition under article 226 of the Constitution.      The High  Court took  the view in its impugned judgment

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dated  February  26,  1964,  that  in  the  absence  of  any provision in  the Act 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.  This, as has been stated, has given rise to the present appeal.      In order  to appreciate  the controversy,  it  will  be desirable to examine the facts and circumstances of the case with due regard to the provisions of the Act.      It has  not been  disputed before  us, and  is in  fact beyond  challenge,   that  the   property  in  question  was "composite property"  within the  meaning of section 2(d) of the Act  because the  one-third undivided  share of Mohammed Salamat Ullah  Khan’s sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaffar  Ullah Khan  and Tahir Khan, who had migrated to Pakistan  in  1940,  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 Mohammed Salamat Ullah Khan who were 896 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 is equally clear  that it  was 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 Act in their capacity as co-sharers of the evacuees in the property.      Section  5   of  the  Act  gives  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 claims in  the  prescribed  form  and  manner.  It  will  be remembered that  as the  property was  listed as  "composite property", notices  were issued  under section  6 of the Act 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 Act 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 is issued in  respect of any property but no claim is 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. It was a lawful order under section 8 read with section 11 of the Act.      Section 14  provides that  any person  aggrieved by  an order of  the Competent  Officer made  under Section  8  may prefer an  appeal to the Appellate Officer within 60 days of that order,  and it  would then be for the Appellate Officer

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to confirm,  vary or  reverse the order appealed from and to pass such  orders as  he deems  fit. Section  15 of  the Act 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 897 of the  Competent Officer  dated August  31, 1955, but it is admitted before us that they did not avail of it. Section 18 of the  Act therefore  came into operation which provides as follows :-           "18. Save  as otherwise expressly provided in this      Act, every  order made  by  any  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."      So 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.      It will  be recalled  that, as  has been mentioned, the property was again reported to be of a composite nature, and fresh notices  were inadvertently  issued to the non-evacuee shareholders.  They   were  personally  served  on  Mohammed Latafat Ullah  Khan, and  on  Mohammed  Shamfat  Ullah  Khan through his  son Shaukat  Ullah Khan,  on February 25, 1956, 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  Act on  March 23,  1957.  No  appeal  or revision application  was filed  against  that  order  also, under sections  14 and 15 of the Act. In fact it was after a lapse of  some 2  1/2 years  from the order dated August 31, 1955, and  1 year  from March 23, 1957 that Mohammed Latafat Ullah Khan and the four sons of Mohammed 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 and  it was not permissible for  any one 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 that section.  It is  well settled that review is a creature of statute  and cannot  be entertained  in the  absence of a provision therefor. It will be enough to make a reference in this connection  to the  decision of this Court in Harbhajan Singh v.  Karam  Singh  and  others(1)  which  approved  the earlier Privy  Council decision  in Baijnath  Ram Goenka  v. Nand Kumar  Singh(2) the  decision in  Anantharaju Shetty v. Appu Hegde(3) and reiterated the decision in Patel Chunibhai Dajibhai  etc.   v.  Naravanrao   Khanderao   Jambekar   and another(4). The  orders of the Competent Officer dated March 15, 1958  and May 12, 1958 in favour of the writ petitioners setting aside 898 the vesting  order dated  August 31,  1955, and transferring the evacuee  interest in  the property  to Mohammed  Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for Rs.  5000/- were  therefore without jurisdiction. As has been stated,  the Assistant Custodian felt aggrieved against the orders  of the  Competent Officer  dated March 15, 1958,

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and May  12, 1958,  and made application soon after, on June 11, 1958,  and July  10, 1958, for review, and the Competent Officer allowed  them by  his orders dated July 10, 1958 and September 8,  1958. The order dated July 10, 1958 was not of much consequence.  The fact  therefore remains  that the two sets of  orders of  the Competent Officer, namely, the first set of the two orders dated March 15, 1958 and May 12, 1958, and the  second set  consisting of the orders dated July 10, 1958 and  September 8,  1958 suffered  from the same vice of lack of jurisdiction and were equally void.      This fact was specifically brought to the notice of the High Court,  but it  ruled it  out by merely saying that the "fact that  the  petitioners  had  wrongly  filed  a  review application which was allowed by the Competent Officer would not confer  jurisdiction on  the Competent Officer to review his orders  if the  statute had  not made  any provision for it." That  was begging  the question, and could not possibly meet the  objection of the present appellants. If we may say so with  respect, what  the High  Court failed to appreciate was that  while it  was true  that want  of jurisdiction  to review the  order of  August 31, 1955, could not be cured by waiver, it  would not  necessarily follow that the Court was obliged to grant certiorari at the instance of a party whose conduct was  such as to disentitle it for it. The High Court was  exercising   its  extraordinary  jurisdiction  and  the conduct of  the petitioners  was a  matter  of  considerable importance. The  High Court  did not  take due notice of the fact that  the writ  petitioners (or  their predecessors-in- interest) had  allowed the passing of the order dated August 31, 1955  in spite  of the  individual  notices  which  were issued under  section 7,  and did not deserve any relief. It did not  notice the  further fact  that when the order dated August 31,  1955 had  become final because of the failure to file an  appeal or  an application  for revision, it was not permissible under  the law,  in view  of the specific bar of section 18, for the writ petitioners to move a "restoration" application on  March 12,  1958 for its review and to obtain its reversal  by the  Competent Officer’s orders dated March 15, 1958 and May 12, 1958, and to obtain a wholly beneficial order for  the transfer of the one-third evacuee interest to them on  payment of  Rs. 5000/-. They, nevertheless, did so. So when  the  writ  petitioners  had  themselves  unlawfully invoked the  review jurisdiction  of the  Competent Officer, which  did  not  exist,  to  their  advantage,  and  to  the disadvantage of the present appellant, by 899 their application  dated March  12, 1958, they could not  be heard to  say, when  the Department  invoked  the  self-same jurisdiction on  two important  grounds (to  which reference has been  made  earlier)  that  the  review  orders  of  the Competent Officer  dated July 10, 1958 and September 8, 1958 were void for want of jurisdiction and must be set aside for that  reason.  The  conduct  of  the  writ  petitioners  was therefore such  as to disentitle them to certiorari, and the High Court  erred in  ignoring that  important aspect of the matter even  though it  was sufficient  for the dismissal of the writ petition.      The appeal  is allowed,  the impugned  judgment of  the High Court  dated February  26, 1964,  is set  aside and the writ petition  is dismissed.  There will however be no order as to costs in the facts and circumstances of the case. N.V.K.                                       Appeal allowed. 900

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