Delhi District Court
Chelmsford Club Ltd vs ) Mohd. Akhtar on 8 November, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
APPELLATE OFFICER UNDER THE EVACUEE
INTEREST (SEPARATION) ACT 1951
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
RCA - 60933/2016
Chelmsford Club Ltd.,
Through its Chief Administrative Officer,
1, Raisina Road, New Delhi110001.
......Appellant
Versus
1) Mohd. Akhtar,
S/o Late Mohd. Shera @ Sheruddin,
R/o Ambedkar Colony, Village Chattarpur,
Behind Chattarpur Temple, New Delhi.
2) Sh. V.K. Jain,
R/O D10, Prashant Vihar,
Delhi110085.
3) Smt. Suman Jain,
Assignee of Mohd. Akhtar,
W/o Sh. V.K. Jain,
RCA60933/2016
Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 1 of 37
R/O D10, Prashant Vihar, Delhi110085.
4) Union of India,
Through its Secretary,
Ministry of Home Affairs,
(Rehabilitation Division)
Jaisalmer House, Man Singh Road,
New Delhi.
5) State of NCT of Delhi,
Through its Secretary,
Department of Land & Building,
Evacuee Property Cell, CWing,
IP Estate, Vikas Bhavan, New Delhi.
6) The Sub Divisional Magistrate,
Tehsil Mehrauli,
Mehrauli, New Delhi.
7) Naib Tehsildar, Tehsil Mehrauli,
District Hauz Khas, New Delhi.
.......Respondents
Date of institution of appeal : 21.04.2012 Date of reserving the judgment : 22.10.2016 Date of pronouncement of judgment : 08.11.2016 RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 2 of 37 J U D G M E N T
1. The present appeal under Section 14 of The Evacuee Interest (Separation) Act, 1951 (hereinafter referred as the Act) is directed against the impugned judgment of Sh. Ajay Goel, Ld. Senior Civil JudgeCum Competent Officer, Delhi, dated 19.11.2011, thereby allowing the claim petition of respondent no1/claimant through attorney respondent no2 bearing Case No. 01/2011, titled "Mohd. Akhtar Vs. Union of India & Anr" in terms thereof.
2. I have heard the counsel for parties and perused the material on record including the appeal, replies, written arguments and relied precedents and given my thoughtful consideration to rival contentions put forth.
3. It is the case of the appellant that vide registered sale/conveyance deed dated 06.07.1962, executed by and between the President of India and the appellant, 137 Bigha 17 Biswas of the land part RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 3 of 37 of which was comprised in Khasra Nos. 355 (416), 354 (416), 356 (5
03), 357 (819) and 361 (416) were purchased by appellant. Subsequent to aforesaid sale deed, mutation was done and due changes in the revenue records were carried out. Despite exchange of some khasras with the Government subsequently, admittedly the appellant had ownership of atleast 10 Bigha 10 Biswa of land in Khasra Nos. 354 (410), 355 (203) and 361 (317) till date. As per appellant, nobody in the last 50 years has challenged the title or ownership of the appellant over the aforesaid land in the khasras. Appellant was shocked and surprised when on 25.01.2012 was served a notice, issued by Naib Tehsildar for appearing on 09.02.2012 in relation to application for mutation filed by one Ms. Suman Jain. Applicant filed its response dated 10.02.2012 but did not receive any reply or response from office of Naib Tehsildar nor copy of application for mutation filed by Ms. Suman Jain was supplied to appellant. Despite its best efforts, appellant could only gather the information that one Ms. Suman Jain was seeking mutation in her name with respect to Khasra Nos. 354, 355, 356, 357, 358 and 361. As an abundant caution and with the sole purpose of conveying the factual RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 4 of 37 position of Khasra Nos. 354, 355, 356, 357, 358 and 361, appellant filed its preliminary response dated 22.02.2012 before the SDM Mehrauli and Niab Tehsildar, Mehrauli. On and around 15.04.2012, the appellant came to know that Ms. Suman Jain had filed the application for mutation on the basis of a judgment/decree passed at Tis Hazari Courts. On enquiries, appellant came to know about the impugned judgment as well as order dated 21.02.2012 in execution case no. 1/12. Certified copies were applied by appellant on 18.04.2012 and appellant also submitted a letter dated 18.04.2012 to SDM Mehrauli and Naib Tehsildar, requesting to provide a copy of application for mutation filed by Ms. Suman Jain. Only on perusal of impugned judgment, the appellant came to know of the order dated 26.08.2011, passed by the Assistant Settlement CommissionerCumAssistant Custodian General ( in short ASC).
4. Appellant claims impugned order to be illegal for want of jurisdiction submitting the properties held to be not composite properties were dealt with and so the Competent Officer transgressed his jurisdiction while under Section 5 of the Act empowered Competent RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 5 of 37 Officer only to decide any claim relating to composite properties and not otherwise. It was held so despite clear findings of ASC in order dated 26.08.2011 when the properties in Khasra Nos. 354, 356, 357 and 361 were not composite properties. It is also the case of appellant that the relief provided in impugned judgment did not fall under any of the heads stipulated under Section 10 of the Act for separation of the interest of the claimants from the composite property. Appellant claimed that the matter involved valuable lands of the appellant but the Competent Officer neither issued any general notice nor any specific notice to appellant in accordance with Section 6 of the Act and thus the impugned judgment is inviolation of principles of natural justice of audi alteram partem (no man shall be condemned unheard) and is liable to be set aside. Besides that the Competent Officer did not consider as to who had the ownership and title of the said Khasra Nos. 354, 356, 357 and 361 nor did he examine the facet from the revenue records. Ld. Counsel for appellant has relied upon :
1) Ebrahim Aboobkar and Hawabai Aboobkar of Bombay Vs. Custodian General of Evacuee Property, New Delhi, 1952 SCR 696 : AIR RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 6 of 37 1952 SC 319;
2) Gordon Woodroffe Agencies (P) Ltd. Vs. Presiding Officer, Principal Labour Court & Ors. (2004) 8 SCC 90;
3) Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr. (2011) 9 SCC 541;
4) Super Cassettes Industries Ltd. Vs. Music Broadcast Pvt. Ltd. (2012) 5 SCC 448;
5) Union of India Vs. Budh Singh & Ors. (1995) 6 SCC 233;
6) Vijay Narayan Thatte & Ors. Vs. State of Maharashtra & Ors. (2009) 9 SCC 92;
7) Hardevinder Singh Vs. Paramjit Singh & Ors.
(2013) 9 SCC 261;
8) Union of India Vs. Customs Excise & Gold (Control) Appellate Tribunal & Ors.
MANU/DE/0657/1990; and
9) Jatan Kumar Golcha Vs. Golcha Properties Pvt. Ltd. 1970 (3) SCC 573 ~ AIR 1971 SC 374. RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 7 of 37
5. Besides concurring with the part averments of appellants, respondent no1 in addition laid his case in reply and arguments that the order of preference in which claimant desired to have his interest separated from that of the evacuee under Section 10 of the Act in terms of Section 7 (2) (f) of the Act was not laid in the claim petition under adjudication of the Competent Officer and it was not permissible for Competent Officer to pass a decree of specific performance in favour of alleged assignee. Also was contended that the Competent Officer could grant relief only in favour of claimant and not in favour of any one else claiming interest in the claimant's property segregated from the composite property. So it was contended that relief can be granted only to claimant and not to alleged assignee or anyone else claiming interest in the property. Also was contended that since alleged sale deed of date 06.07.1962 of appellant was neither duly stamped nor registered, it did not convey any title and revenue entries neither extinguished nor created any right but are only fiscal entries. However, respondent no1 has prayed for setting aside of the impugned judgment, decree and for remand back of RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 8 of 37 the case for fresh adjudication in terms of the provisions of the Act.
6. Respondents no. 2 and 3 in their reply and arguments vehemently contended that (i) appellant was not having any locus standi to file the present appeal and relied upon :
1) M/s Mehar Singh Nanak Chand Vs. Shri Naunihal Thakar Das & Ors. (1973) 3 SCC 731;
2) Major Chandra Bhan Singh Vs. Latafat Ullah Khan & Ors. (1979) 1 SCC 321;
3) Sant Lal Gupta & Ors. Vs. Modern Cooperative Group Housing Society Ltd. & Ors., 2010 (11) SCALE 27;
4) Safiya Bee Vs. Mohd. Vajahath Hussain @ Fasi (2011) 2 SCC 94;
(ii) the impugned judgment/decree has been upheld vide order dated 03.12.2011, passed by the Appellate Authority and co ordinate bench is to follow the decision of another coordinate bench and RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 9 of 37 accordingly appeal deserves dismissal; (iii) the appellant has not approached with clean hands as in the appeal nowhere appellant stated of having exchanged the land and presently even according to them the appellant has interest in three khasra numbers partially of land admeasuring 10 Bighas and 10 Biswas, whereas the appellant made claim to the extent that they were owners of the entire land till filing of the appeal. Reliance has been placed upon :
1) Satish Khosla Vs. M/s Eli Lilly Ranbaxy Ltd.
& Anr., 1998 I AD (Delhi) 927; and
2) S.P. Chengalvaraya Naidu (dead) by LRs. vs. Jagannath (dead) by LRs & Ors., JT 1993 (6) SC 331;
(iv) there is no prohibition in the Act for grant of relief of allotment of alternate land. The alternate land can be allotted by the Competent Officer as per the law laid down in the following cases :
1) Tasemul Haq Vs. Union of India & Anr., 141 (2007) DLT 647;
RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 10 of 37
2) UOI Vs. Qayyum Khan & Ors., 158 (2009) DLT 649 (DB);
3) State of Haryana Vs. Rulha & Ors., CWP No. 17309 of 2006, decided on 09.02.2012 by High Court of Punjab & Haryana;
4) State of Haryana Vs. Rulha & Ors., CM 5792CWP of 2015 in CWP No. 17309 of 2006, decided on 14.05.2015 by High Court of Punjab & Haryana;
5) State of Haryana Vs. Rulha & Ors., LPA No. 326 of 2013 (O&M), decided on 13.03.2013 by High Court of Punjab & Haryana;
6) Nawabzada Khursheed Mohammed Khan (deceased) through LRs & Ors. Vs. The Secretary to Govt. & Anr., WP No. 859 of 2014, decided on 16.02.2016 by High Court of Madras; and
7) Suresh Kumar Through POA V.K. Jain Vs. GNCT of Delhi & Ors., LPA 13/2012, decided on 21.02.2012 by High Court of Delhi;
RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 11 of 37 Accordingly, answering respondents no. 2 and 3 have prayed for dismissal of appeal.
7. Ld. Counsel for respondent no. 5 argued that Competent Officer exceeded its jurisdiction by dealing with the lands, which were not composite property and per contra to provisions of the Act, as submitted herein before by Ld. Counsel for appellant and respondent no1. Besides that the Competent Officer had also dealt with the land comprised in Khasra Nos. 354, 356, 357 and 361 of Village Gadaipur, Mehrauli, which was not a composite property and had even directed respondents no. 4 and 5 for delivery of possession of land, which was not in possession of respondents no. 4 and 5.
8. Respondents No. 6 and 7 had placed on record revenue records/documents in respect of Village Gadaipur, Tehsil Mehrauli, District South Delhi, i.e., -
"(i) Land status report of land bearing Khasra No. 354, 355, 356, 357, 358 and 361 of Village Gadaipur, Tehsil Mehrauli;
RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 12 of 37
(ii) Jamabandi for the year 198586 in respect of Khata No. 241 Min Khewat No. 221 Min/168 Min.;
(iii) Khasra Girdawari in respect of Khasra No. 354, 355, 356, 357, 358 and 361 for the years 2012 to 2016 and Khasra Girdawari for the years 2008 to 2012;
(iv) Certified copy of exchange of the land in between Chelmsford Club and Central Govt. in Case No. 2/LHC/90/1844, dated 23.09.1991 and Intkal No. 4390 Parat Sarkar.
(v) Copy of Intkal No. 2207 Parat Sarkar and Parat Patwar in Urdu language and Urdu to Hindi of Parat Patwar, translated by Sh. A.A. Naiyar;
(vi) Copy of Intkal No. 2607 Parat Sarkar and Parat Patwar in Urdu language and Urdu to Hindi of Parat Patwar translated by Sh. A.A. Naiyar; and
(vii) Copy of Rapat Rojnamcha No. 352 for the year 197677 and Rapat Rojnamcha No. 523 for the year 198990 with order of Competent Authority Delhi Land Ceiling Branch issued vide no. 1478/A/Land Ceiling/76/2285/RA/1611 dated 26.06.1990; and RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 13 of 37
(viii) Copy of Intkal No. 2653 DLF to Chemsford Club.
The status report of land aforesaid was signed by Sh. D.S. Verma, SDM Mehrauli, wherein it was interalia averred that : "As per revenue record i.e., Intkal Register of Patwari, status report of land bearing Khasra Nos. 354,355, 356, 357, 358 and 361 of Village Gadaipur, New Delhi are as under :
1. Kh. No. 354 (416) - Kh. No. 354(416) was mutated in the name of Central Government vide Mutation No. 2207 dated 07.05.1960 & subsequently transferred in the name of Chemsford Club vide Mutation No. 2607 dated 08.07.1964. Further vide mutation No. 4390 dated 11.06.1993 Khasra No. 354(06) stand transferred in the name of Sarkar Daulatmadar and in possession of DEDA. Chemsford Club is owner of Balance land 354 (410) {in cultivatory possession (016) Ravinder Narain S/o Rajender Narayan, (20) Gurdeep Singh S/o Hazari Singh and (114) Self}.
2. Kh. No. 355(416) Khasra No. 355(416) was mutated in the name of Central Government vide Mutation No. 2207 dated 07.05.1960 & subsequently transferred in the name of Chemsford Club vide RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 14 of 37 Mutation No. 2607 dated 08.07.1964. Further vide Mutation No. 4390 dated 09.06.1993 Khasra No. 355(213) was stand transferred in the name of Sarkar Daulatmadar and in possession of DEDA. Chemsford Club is owner of balance land 355(203) {In cultivatory possession of Shri Gurdeep Singh S/o Hazara Singh (09) and Shri Satpal S/o Sh. Basant Singh (114)} .
6. Kh. No. 361(416) Khasra No. 361(416) was mutated in the name of Central Government vide Mutation No. 2207 dated 07.05.1960 & subsequently transferred in the name of Chemsford Club vide Mutation No. 2607 dated 08.07.1964. Further vide Mutation No. 4390 dated 09.06.1993 Khasra No. 361(019) was stand transferred in the name of Sarkar Daulatmadar and in possession of DEDA. Chemsford Club is owner of balance land 361(317) {In cultivatory possession of Shri Gurdeep Singh S/o Hazara Singh (012) Satpal S/o Basant Singh (30) and Chemsford Club self (05)}.
The afore elicited averments in status report find support from averments in other Revenue Records produced including Khasra Girdawris, copies of Intakals afore elicited and Jamabandi, produced. The afore elicited Revenue Reocrds in original were produced by RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 15 of 37 respondents no. 6 and 7 and it were seen by the parties/counsel interested to see them, in court proceeding.
9. Before proceeding further, I advert to the relevant provisions of The Evacuee Interest (Separation) Act, 1951 mentioned as follows : "5. Jurisdiction of competent officers. - A competent officer shall have jurisdiction to decide any claim relating to any composite property situate within the limits of the local area of his jurisdiction and such cases or classes of cases as may, by general or special order, be transferred to him under section 19 by the Central Government or the appellate officer.
6. Notice to submit claims. - (1) For the purpose of determining or separating the evacuee interest in a composite property, any competent officer having jurisdiction over such property may, either on information received in this behalf from the Custodian or on an application from a claimant, issue, in such form and manner as may be prescribed, -
(a) a general notice requiring all persons who claim interest in such property, and RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 16 of 37
(b) also a notice on every person who, in the opinion of the competent officer, may have a claim in such property, to submit claims, if any, in respect of that property, (2) An application under subsection (1) shall be in such form and manner as may be prescribed.
(3) No application under this section shall be entertained if filed after the expiry of one year from the commencement of the Evacuee interest (Separation) Amendment Act, 1960.
7. Submission of claims. - (1) Any person claiming an interest in a composite property may, within sixty days of the date of the issue of the general notice or service of individual notice under section 6, whichever is later, submit to the competent officer a statement of his claim in writing and signed and verified in the prescribed manner.
(2) A statement of claim under subsection (1) shall be drawn up as far as may be, in the form of pleadings under the Code of Civil Procedure, 1908 and shall include the following particulars, namely :
(a) the nature of the interest of the claimant in the composite property;
(b) the estimated money value of the composite property;
RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 17 of 37
(c) where the claim is made by a cosharer or partner, the extent of the share of the claimant and the money value of such share;
(d) where the claim is made by a mortgagee, -
(i) the principal money and the rate of interest chargeable under the mortgage deed;
(ii) payments made towards the mortgage debt after the principal money was advanced or deemed to have been advanced;
(iii) the history of the mortgage debt in so far as it is relevant to the determination of the principal money;
(iv) particulars of the property mortgaged and the estimated value of such property;
(v) particulars of any property the possession of which has been taken by the mortgagee as security for, or in lieu of payment of, the mortgage debt;
(vi) the total amount claimed under the mortgage debt in accordance with the provisions of this Act;
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(e) where the claim is made by a mortgagor, the total amount due under the mortgage debt and the particulars necessary to determine the same;
(f) the order of preference in which the claimant desires to have his interest separated from that of the evacuee under section 10;
(g) any other particulars which may be
prescribed
(3) The claimant shall, along with the submission
of claim under subsection (1), file true copies of all documents in his possession or power on which the claim is based and a list of any other documents (whether in his possession or power or not) on which he intends to rely as evidence in support of his claim; and the claimant shall, whenever required to do so by the competent officer, produce all the documents of which true copies have been filed and also the documents in his possession or power which have been entered in the list.
(4) No document which should have been but has not been filed in accordance with the requirements of subsection (3), shall be received at any stage of the proceedings without the leave of the competent officer.
8. Decision by competent officer. - (1) On receipt of a statement of claim under section 7, the competent officer shall, subject to the provisions of RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 19 of 37 subsections (2) and (3), hold an inquiry into the claim in accordance with the procedure laid down in section 17 and pass an order determining the interest of the evacuee and the claimant in the property in question and the order shall contain all or any of the following particulars, namely :
(a) the money value of the property;
(b) in any case where the evacuee and the claimant are cosharers or partners, their respective shares in the property and the money value of such shares;
(c) in any case where the claim is made by a mortgagor, the amount due to the evacuee;
(d) in any case where the claim is made by a mortgagee, the amount due under the claim in accordance with the provisions of section 9.
(2) Where the Custodian under the Administration of Evacuee Property Act, 1950, has determined that the property in question or any interest therein is evacuee property, the decision of the Custodian shall be binding on the competent officer;
Provided that nothing contained in this subsection shall debar the competent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under section 10.
RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 20 of 37 (3) If there is any dispute as to whether a liability is a mortgage debt or not or whether any claim submitted under section 7 exists, the competent officer shall decide such dispute.
Provided that a decree of a Civil Court (other than an ex parte decree passed after the 14th day of August, 1947) shall, subject to the provisions of sections 9 and 10, be binding on the competent officer in respect of any matter which has been finally decided by such decree; and where any matter was decided by an ex parte decree passed by a Civil Court after the 14th day of August 1947, the competent officer may decide such matter afresh and on such decision being made, the ex parte decree shall be deemed to have no effect.
10. Separation of the interests of evacuees from those of claimants in composite property. - Notwithstanding anything to the contrary in any law or contract or any decree or order of a Civil Court or other authority, the competent officer may, subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purpose of separating the interests of the evacuees from those of the claimants in any composite property, and in particular may, -
(a) in the case of any claim of a cosharer or partner, -
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(i) direct the Custodian to pay to the
claimant the amount of money assessed in
respect of his share in the composite property or deposit the same in a Civil Court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the Civil Court; or
(ii) transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property, or
(iii) sell the property and distribute the sale proceeds thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property; or
(iv) partition the property according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respectively;
(b) in the case of any claim of a mortgagor or a mortgagee, -
(i) pay to the Custodian or the claimant the amount payable under mortgage debt and redeem the mortgaged property; or RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 22 of 37
(ii) sell the mortgaged property for satisfaction of the mortgage debt and distribute the sale proceeds thereof; or
(iii) partition the property between the mortgagor and the mortgagee having regard to the share to which the mortgagee would be entitled in lieu of his claim;
(c) adopt a combination of all or some of the aforesaid measures;
Provided that before taking any measure under this section, the competent officer shall take into account the order of preference filed by the claimant under clause (f) of subsection (2) of section 7; and in any case where the claimant is a mortgagor and tenders the amount due, the competent officer shall accept the same in full satisfaction of the mortgage debt.
14. Appeals. - (1) Any person aggrieved by an order of the competent officer made under section 8 or section 10 may, within sixty days from the date of the order prefer an appeal to the appellate officer in such form and manner as may be prescribed.
Provided that the appellate officer may entertain the appeal after the expiry of the said period of sixty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 23 of 37 (2) The appellate officer may, after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such orders as he deems fit."
10. Vide impugned judgment, the Competent Officer had passed a decree in favour of the claimant/assignee/successor in interest separating his interest/share from the aforesaid composite property and his interest/share was assessed to be 31 bigha 15 biswa. Further was passed a decree of possession in favour of the claimant/assignee/ successor in interest only to the extent of 31 bigha 5 biswa land out of the land comprised in Khasra No. 355 (416), 358 (505), 354 (416), 356 (5
03), 357 (819) and 361 (416) total measuring 33 bigha 15 biswa in Village Gadaipur, Mehrauli, Delhi. The claimant/assignee/successor in interest was also directed to handover possession of two bigha 10 biswa land from the land comprised in Khasra No. 361 (416) in Village Gadaipur, Mehrauli to the Custodian of Evacuee Property, Govt. of NCT of Delhi within four weeks. Also was directed that necessary changes in revenue/municipal records be carried out accordingly by the concerned authorities.
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11. In order dated 26.08.2011, A.S.C. had interalia held that : "28. I am, thus, of the view that Shera @ Sher Din had never gone to Pakistan in 1947 or thereafter and that during the period from 1947 to 1954 he was in India at Village Mehndipur, Distt. Bulandshahar (now in Distt.
Gautambudh Nagar), U.P. I, therefore, declare the petitioner (Mohd. Akhtar S/o Late Shera @ Sheruddin) and his predecessors as non evacuee and as a consequence thereof, I hold that the land of the petitioner's predecessor, who was a nonevacuee, could not have been declared evacuee property.
29. The petitioner has not disputed the fact that his father had 1/4th and 1/6th share as stated above in the land mentioned above.
Accordingly, Shera @ Sheruddin is held entitled to only 1/4th share in Khasra No. 195, 533, 171/2, 54/2, 28/1, 29, 30, 51/1, 61, 358, 355, 53/2, 49, 54/2, 56, 57, 58, 59, 75, 76, 77, 78, 79, 80, 81, 84, 85 & 86 while in Khasra Nos. 662, 663, 783/1, 646/1 & 682 his share is RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 25 of 37 held to be to the extent of 1/6 th only. As regards petitioner's entitlement, he has succeeded to the interest of his father alongwith other legal heirs of Shera @ Sher Din. There seems to be some dispute between the petitioner and other legal heirs of Shera @ Sher Din.
30. I find that the predecessors of the petitioner had never laid any claim in respect of the land comprised in Khasra Nos. 354, 356, 357 and 361 in Village Gadaipur, Mehrauli, Delhi and thus, petitioner is also not entitled to and cannot have any claim or right in respect thereof. I hold accordingly."
12. In para32 of the above referred order of ASC, dated 26.08.2011, it was also held that petitioner Mohd. Akhtar and his predecessors had only partial interest to the extent of 1/4th and 1/6th share only in the land mentioned above and since they have been found to be nonevacuee as on the date of the partition and even thereafter, the land subject matter of the present proceedings (except the land comprised in Khasra Nos. 354, 356, 357 and 361) had two sets of interests, namely, RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 26 of 37 evacuee interest and nonevacuee interest making the same a Composite Property. The land comprised in Khasra Nos. 354, 356, 357 and 361 was not held to be composite property by the ASC in afore elicited order. Yet the Competent Officer had dealt with the said land comprised in Khasra Nos. 354, 356, 357 and 361 beyond his jurisdiction under Section 5 of the Act.
13. In the impugned judgment there is mention of the Competent Officer of having seen the relevant revenue records produced by and on behalf of the respondents, but no details thereof are mentioned excepting of having seen Fard/Khatoni. In para20 of the impugned judgment there is mention of having noted that the claimant himself admitted of fact that land in question had been allotted to displaced persons and such allottees were neither brought before the Competent Authority (ASC) nor before the Competent Officer nor efforts were made by the claimant to implead them in the present proceedings.
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14. Status report of SDM Mehrauli, afore elicited, qua Khasra Nos. 354 (416); 355 (416); and 361 (416) simplicitor reveals of the mention of present appellant to be owner of balance land in Khasra Nos. 354 (410); 355 (203); and 361 (317) as per Intkal register of Patwari on whose base such report was submitted by SDM Mehrauli. Had such records were ever seen by the Competent Officer, it would have been pointer to the necessity of issuing notice to the said alleged owner/appellant in consonance of the principles of audi alteram partem.
15. Afore elicited Section 14(1) of the Act embodies that "any person aggrieved" by order of the Competent Officer made under section 8 or 10 may prefer an appeal within prescribed period to the Appellate Officer. Vide detailed order dated 22.12.2012 my Ld. Predecessor had condoned the delay in filing this appeal. The appellant contended that in its favour was a registered sale deed, dated 06.07.1962, whose certified copy has been placed on record during the course of arguments as initially photocopy of the same was placed on file; by virtue of which it became the owner of the lands described therein and later on RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 28 of 37 the name of appellant was mutated in the revenue records. Ld. Counsel for appellant submitted that in terms of Rule 118 of The Displaced Persons (Compensation & Rehabilitation) Rules, 1955, the stamp duty payable in respect of any document relating to the transfer of any property under these rules is to be payable by the Government. Also was submitted by Ld. Counsel for appellant that respondent no2 admitted of appellant having ownership of at least 10 Bighas 10 Biswas of land in the Khasras, which land was decreed in favour of respondents no. 1 and 2 depriving appellant its valuable property without even giving it notice of the proceedings and at its back, so appellant being aggrieved was a necessary party. In the case of Ebrahim Aboobkar (supra); Hardevinder Singh (supra); and Jatan Kumar Golcha (supra), it was interalia held that a person who is not a party to the suit may prefer an appeal, if he is prejudicially affected by the judgment. It is pertinent to note that afore elicited Section 14 (1) of the Act gives the right to appeal "to any person aggrieved" and not only to "any party to the suit/lis". In the fact of the matter accordingly the reliance of Ld. Counsel for respondents nos2 and 3 on cases M/s Mehar Singh Nanak Chand RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 29 of 37 (supra); Major Chandra Bhan Singh (supra); Santlal Gupta & Ors. (supra); and Safiya Bee (supra) is misplaced. In the case of M/s Mehar Singh Nanak Chand (supra) it was interalia held that the Competent Officer had no power to review his orders or orders of his predecessor in terms of the Act. In the case of Major Chandra Bhan Singh (supra) it was interalia held that any person aggrieved by the order of Competent Officer can prefer an appeal to the Appellate Officer in terms of Section 14 of the Act. It was also held therein that on failure to file an appeal or an application for revision, it was not permissible under the law for writ petitioners to move restoration application for review/reversal of order of the Competent Officer in view of the specific bar of Section 18 of the Act. In the case of Santlal Gupta & Ors. (supra) the pronouncement was on the appeal filed against judgment and order of the High Court in Civil Writ Petition, wherein judgment and order of Financial Commissioner was set aside and various provisions of Delhi Cooperative Societies Act, 1972 were considered. In the case of Safiya Bee (supra) it was held that pronouncement by a Division Bench would be binding on Coordinate Division Bench of the Supreme Court.
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16. Every appeal (case) is an island into itself and may have facets varying from each other. If an appeal is considered and disposed of on a certain point, it cannot clog the rights of every appellant(s) on other grounds which may be available in accordance with the law. Therefore, the plea on this aspect and the propounded consequences which emerge by dismissal of the appeal by the Court of Smt. Savita Rao, Ld. Appellate Officer, bearing RCA 26/11, titled "Imran Khan @ Sukha & Ors. Vs. UOI & Ors. on 03.12.2011; merits rejection. The said appellants Imran Khan @ Sukha & Others claimed to be successor in interest of said Sh. Shera and the Competent Officer had held that inter se dispute between successors of Shera could be settled by Competent Court of Civil jurisdiction, for which the Appellate Court had held the ground to be valid and made it a premise for dismissal of said appeal. Appellant put forth its case of providing various recreational, leisure and sporting facilities to its members and to meet the requirement of land, it purchased and acquired lands from the Government and various individuals since its establishment. Since, some of the lands of appellant were considered and adjudicated upon in the proceedings before the RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 31 of 37 Competent Officer, appellant had a stake in the subject matter of the lis.
17. In the course of arguments it was contended by counsel for appellant that later to January, 2012 when the appellant received the notice of Naib Tehsildar, Mehrauli and consequent events, as elicited herein before in detail, the appeal was filed in haste but after receiving the reply of respondents no. 2 and 3, in the rejoinder it was so mentioned that ownership of at least 10 Bighas 10 Biswas of land of appellant in Khasras in question were admitted by respondent no2 in litigation before the High of Delhi. Even, the SDM concerned, the Revenue Authority, in the execution proceedings before the Competent Officer in Execution No. 01/12, titled "Suman Jain & Anr. Vs. UOI & Ors;" had placed on record on date 02.02.2012, status of land in AnnexureI of submissions of SDM Hauz Khas, wherein the ownership of appellant in Khasra No. 354, 355 and 361 had been made vivid and clear and the appellant having interest and right to property in the lands in question with regard to which the impugned judgment was passed, is not to be shown the door of the Court simply by terming the appellant to be guilty of concealment of facts. The RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 32 of 37 precedents of Satish Khosla (supra); and S.P. Chengalvaraya Naidu (dead) by LRs. (supra); relied upon by counsel for respondents no. 2 and 3 embody facts and circumstances entirely different and distinguishable to the case in hand and are not applicable in the fact of the matter.
18. In the case of Pune Municipal Corporation & Anr. Vs. Harakchand Misirimal Solanki & Ors., MANU/SC/0055/2014, relied upon by Ld. Counsel for respondent no1, the Supreme Court interalia held that it is settled preposition of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
19. It is trite that the Competent Officer ought to have exercised his jurisdiction in terms of Section 5 onwards of the Act on receipt of the claim laid by the respondent no2 as attorney of respondent no1 before him. Perusal of the Trial Court Record reveals of only issuance of notice of the claim petition as per order dated 10.10.2011 of Competent Officer to the opposite party i.e., (i) Union of India; and (ii) State of NCT of RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 33 of 37 Delhi and none others. The Competent Officer did not issue any general notice requiring all persons, who claim interest in such property as well as notices on every person, who in opinion of Competent Officer may had a claim in such property to submit claim, if any, in respect of property in question for purpose of determining or separating the evacuee interest in a composite property in terms of Section 6 of the Act. General public including appellant, other stake holders, whose names were as possessors/cultivators or owners of land in question, as they figured in revenue records or were holding title documents including sale deed; were precluded from putting forth their claims, if any, in respect of lands/properties in question. Only after issuance of the general notice and notices to every such person having claim in the land/property in question; on receiving their claims, as per Section 7 of the Act, the Competent Officer could have as per Section 8 of the Act held the inquiry into the claim as per procedure laid in Section 17 of the Act, which included summoning and enforcing attendance of any person and examining him on oath; requiring the discovery and production of documents; issuing commissions for the examination of witness; having RCA60933/2016 Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors. Page 34 of 37 been vested with the powers as are vested with Civil Court under the Code of Civil Procedure, 1908 when trying a suit. None of the sort was done by the Competent officer, who went on to hear arguments straight away on appearance of the counsel for the Union of India and State of NCT of Delhi, who did not bother to file any reply in general or specific to the laid claim before the Competent Officer. The decision of the Competent Officer needed to be in consonance with Section 10 of the Act, as elicited in detail hereinabove, but even on that count the Competent Officer did not advert to any of the modes of reliefs, as detailed in Section 10 (a) of the Act but instead suit was decreed per contra to provisions of the Act and the decree of possession was passed without ascertaining, who all are relevant parties to the lis, who all were in possession/occupation/ ownership of lands in Khasra Nos. 354 (410), 355 (203) and 361 (317). Even, in terms of Section 7 (2) (f) of the Act, the claim laid by respondent no2 as attorney of respondent no1 before the Competent Officer was bereft of the prerequisites of the order of preference in which the claimant desired to have his interest separated from that of the evacuee under Section 10 of the Act.
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20. By impugned judgment, appellant was deprived of its alleged lands/property in judicial proceedings without any opportunity of being heard, which is against the basic tenets of law enshrined in the legal maxim of 'AUDI ALTERAM PARTEM' (no man should be condemned unheard or deprived of his property in judicial proceedings, unless he had an opportunity of being heard.)
21. In view of above discussions, I find the impugned judgment to have been passed without following due procedure laid in the Act necessitating it being set aside. So impugned judgment is set aside. Matter is remanded back to the Competent officer for fresh adjudication strictly in accordance with the provisions of The Evacuee Interest (Separation) Act, 1951; some of which have been elicited in detail herein above. The parties are directed to appear before the Competent Officer on 08.12.2016.
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22. File of this appeal be consigned to record room and the requisitioned file of the Competent Officer be sent back against receipt. Copy of this judgment be also sent to the Court of Competent Officer for compliance.
Announced in open Court (GURVINDER PAL SINGH) th on 8 Day of November, 2016. Addl. Distt. Judge01 (Central) Appellate Officer Under The Evacuee Interest (Separation) Act 1951.
Tis Hazari Courts, Delhi.
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