Allahabad High Court
Mohd.Rashid And Others vs Dy.Chief Settlement Commissioner on 10 October, 2025
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW WRIT - C No. - 1000354 of 1995 Mohd.Rashid And Others ..Petitioners(s) Versus Dy.Chief Settlement Commissioner ..Respondents(s) Counsel for Petitioners(s) : M.A.Khan, Mohammad Aslam Khan, Somesh Tripathi Counsel for Respondent(s) : C.S.C., Amal Rastogi, Anurag Srivastava, Ashish Chaturvedi, Aniveksha Shukla, D.C.Mukerjee, J.N.Mathur, Jitendra Prakash, Meenakshi Singh Parihar, P.N.Mathur, Praveen Tripathi, Pritish Kumar, Puttu Lal Mishra, R C Gupta, R.K.Sharma, R.N. Gupta, Radhika Singh, Shreya Prakash, Syed Aftab Ahmad, Vinod Kumar Neutral Citation No. - 2025:AHC-LKO:62544 Reserved on: 10.09.2025 Delivered on: 10.10.2025 Court No. - 4 HON'BLE IRSHAD ALI, J.
1. Heard Sri Mohd. Arif Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan and Sri Shadab Khan, learned counsel for the petitioners, Mrs. Radhika Singh, learned counsel for respondent No.5/5, Sri Puneet Chandra, learned counsel for respondent Nos.5/1 and 5/4 and Sri Sayyed Aftab Ahmad, learned counsel for respondent Nos.5/2 and 5/3.
2. At the very outset, Sri Puneet Chandra, learned counsel for respondent Nos.5/1 and 5/4 raised preliminary objections in regard to maintainability of the writ petition and the petitioner's locus standi on the following grounds:
a. Non-Joinder of a Necessary Party - The respondents objects to the maintainability of the writ petition due to the non-joinder of a necessary party.
b. The petitioners have filed this writ petition under Article 226 of the Constitution, challenging orders passed by the Evacuee Property Authorities / Custodian / Managing Officer.
c. The impugned order pertains to a property which, by operation of the Administration of Evacuee Property Act, 1950, vested in the Union of India or Custodian Evacuee Property. Therefore, the Union of India and the Custodian are necessary parties to any adjudication which seeks to quash or interfere with actions taken in respect of evacuee property.
d. The petition is not maintainable because the Union of India and the Custodian General of Evacuee Property, being the owner/vested authority in respect of the subject-matter evacuee property and being the public authority whose statutory functions and decisions are directly in issue, has not been made a party to the petition.
e. It is a settled principle that a Court should not adjudicate rights affecting the interests of a person who is not before the Court where such person is a necessary or indispensable party. In matters involving evacuee property, the property vests in the Union/Custodian, and the Union/Custodian must be made a party where orders affecting vesting, management, allotment, alienation, or title are challenged.
f. If the Union/Custodian is not impleaded, the writ court would be precluded from finally deciding rights which directly affect the proprietary/statutory interests of the Union/Custodian a situation which is impermissible in law. The proper course is either to dismiss/strike the petition for want of necessary party or to permit the respondent(s) to implead the Union/Custodian (or to direct impleadment in the interests of justice).
g. By virtue of Section 8 of the Administration of the Property Act, any property declared to be evacuee property under Section 7 shall be deemed to have vested in the custodian for the State.
h. The impugned order concerns allotment/declared status/management of property which, on record, was treated as evacuee property and dealt with by officers acting under the Administration of Evacuee Property Act, 1950. The statutory scheme shows vesting in the Union and confers on the Custodian/Union the duty and right to manage/declare/dispose/restore evacuee property.
i. The petitioners challenge inevitably calls into question the legality of actions taken by or on behalf of the Union/Custodian and, therefore, the Union/Custodian's interest in the subject-matter cannot be adequately represented by the present private parties. Hence, impleadment is necessary.
j. Petitioner's Lack of Title and Locus Standi - The petitioners have failed to plead or prove any independent title to the property. It is settled law that a litigant cannot succeed on the weakness of other's title. In absence of a subsisting right, the petitioners lacks locus standi to challenge the auction or corrigendum.
k. It is of paramount importance to note that the petitioners lack locus standi to maintain the present writ petition. It is a settled proposition of law that any person seeking to challenge an auction sale must first establish his own lawful title and subsisting right in the subject property. In the present case, the petitioners have consistently failed to demonstrate any such title before multiple forums, including the civil court, the appellate court and in collateral proceedings. In the absence of any independent legal right, the petitioners cannot be permitted to assail the validity of the sale certificate, the corrigendum, or the subsequent administrative actions undertaken by the competent authority.
l. The Hon'ble Supreme Court in the case of Mahendra Pratap Dubey v. Managing Officer, Evacuee Property [(2019) 11 SCC 599] and Jagdish Prasad Patel (Dead) through LRs v. Shivnath [(2019) 6 SCC 82] has unequivocally held that a litigant who fails to establish his own title has no locus to question either the auction proceedings or the title of the auction purchaser. It has further been clarified that a party cannot succeed by merely pointing out alleged infirmities in the other sides case. The petitioners claim, therefore, being devoid of locus standi, is not legally maintainable.
m. In view of the facts, circumstances, and settled principles of law discussed hereinabove, it is evident that the present writ petition is nothing but a collateral and mala fide attempt by the petitioners to unsettle rights that have already been validly crystallized through the auction, sale certificate, corrigendum, and repeated adjudications by competent courts. The petitioners have neither pleaded nor proved any subsisting title over the disputed property and has instead relied on inconsistent, contradictory, and legally untenable claims which have repeatedly been rejected by civil courts and appellate authorities.
3. On the other hand, Mrs. Radhika Singh, learned counsel for respondent No.5/5 raised preliminary objection on the maintainability of writ petition on the grond that the petitioners conduct is marked by suppression of material documents and proceedings, deliberate withholding of the valuation report, reliance on an ex parte order of 1959 while concealing the compensation already received and indulgence in parallel litigations constitutes nothing short of a fraud upon this Hon'ble Court and gross abuse of the process of law. Such a litigant, who approaches the Court with unclean hands, engages in sharp practices and seeks to mislead the judicial process cannot be permitted to invoke the extraordinary writ jurisdiction under Article 226 of the Constitution of India.
4. She submitted that it is a settled principle of law that a litigant approaching this Hon'ble Court under Article 226 must come with clean hands, full disclosure, and bona fide intent. The petitioners herein, having suppressed the pendency of civil proceedings on the very same property, and having indulged in forum shopping, disentitles themselves from any equitable relief from this Hon'ble Court. On this foundational ground itself, the writ petition is liable to be dismissed.
5. The instant writ petition has been filed for issuance of writ of certiorari quashing the impugned order dated 10.02.1995 (Annexure No.24).
6. The dispute pertains to superstructure of House No.C/18/40, Civil Lines, Barabanki, which belongs to one Ameeruddin son of Wazeeruddin. The House stands on plot No.330, Civil Lines, District Barabanki.
7. Ameeruddin migrated to Pakistan during the period of U.P. Ordinance No.1 of 1949 i.e. some time in 1949, thereby the property vested in Custodian under the law of Automatic Vesting, which was subsequently acquired under Section 12 of Displaced Persons (Compensation and Rehabilation) Act, 1954 and recorded in the property register maintained by the custodian.
8. The notification issued under section 12 of the Act is not available on record but from the evidence mentioned below, it would reveal that only superstructure of House No.C/18/40 formed part of "Compensation Pool" and was recorded in the "Property Register" maintained by the Custodian, Evacuee Property. The aforesaid house was always identified with its Municipal No.C/18/40 and was notified for auction as provided under the Act of 1954.
9. The property, namely, superstructure of House No.C/18/40 was auctioned on 14.5.1956 and was purchased by Jagjit Singh, now deceased for a sum of Rs.8,500/- (Bid Sheet -annexure No.3) and sale report (annexure no.4). Jagjit Singh, having been declared as highest bidder in the public auction, had furnished the Indemnity Bond (annexure no.5) as provided under Rule 90(8) of the Rules framed under the Act of 1954.
10. After confirmation of the auction sale, an acceptance letter was issued to the highest bidder. The Managing Officer issued a sale certificate on 4.4.1959 (Annex.6) in the specified form under Rule 90 (15).
11. A bare perusal of the sale certificate would reveal that the boundaries had been inserted later on in the column of the boundaries, which is evident from the slip dated 01.05.1959 (Annexure no.9) and in the column of particulars of property, only House No.C/18/40, Civil Lines, Nawabganj City of Sri Ameeruddin, Evacuee without land was shown. The boundaries mentioned in the sale certificate dated 04.04.1959 were, thus, inserted on the basis of a piece of paper dated 01.05.1959. Thus, by any stretch of imagination, the sale certificate could not be said to be correct/valid as in the entire records relating to the sale, there was no evidence about the boundaries and more particularly, in the Indemnity Bond dated 14.5.1956. Jagjit Singh, Auction Purchaers, had also not mentioned the boundaries. The entire act of inserting the boundaries in the sale certificate subsequently was an act of fraud as in the sale certificate dated 04.04.1959, the boundaries mentioned in the piece of paper dated 01.05.1959 could not be inserted.
12. Jagjit Singh made an application (Annexure no.7) on 29.05.1959 before the Managing Officer to the effect that in the auction held on 14.5.1956, he had purchased the said "house with land" as it was verbally informed on the spot at the time of auction and he had offered his bid for Rs.8,500/-. The said amount was deducted from his claim. He was provisionally delivered the possession of the said property on 01.11.1956. The price of the house having been adjusted from his claim and Sale Certificate had been delivered to him on 26.06.1959 but by mistake in the Sale Certificate, the "house without land" has been written, hence, house with land be endorsed in the sale certificate.
13. It would be pertinent to point out here that in the sale certificate issued on 04.04.1959, initially no boundaries were mentioned because neither the property had any boundary nor there was any evidence on record to depict the boundaries. The alleged boundaries mentioned in the sale certificate, as stated above, were subsequently inserted which is evident from the report of Sri R.S. Srivastava, Assistant Custodian (Annex.8) dated 13.07.1956.
14. The boundaries which were subsequently inserted in the Sale Certificate, as stated above, tallied with the boundaries mentioned in the Slip (Annexure no.9).
15. The aforesaid facts indicate that manipulation has been made in the official records subsequently by playing fraud, as the boundaries mentioned in the slip dated 01.05.1959 were incorporated in the sale certificate dated 04.04.1959, which is also corroborated from the facts that in the Indemnity Bond was dated 14.05.1956, the auction purchaser himself had not described the boundaries as he was well aware about the facts that in the property register, auction notice, bid sheet and sale report (annexure no.1 to 4). There was no mention about the boundaries or the land beneath the Kothi, as only superstructure of the property, namely, C/18/40, Civil Lines, Barabaki were auctioned.
16. After approval of the sale, held on 14.05.1956, acceptance letter was issued to the purchaser on 30.10.1956 by the Managing Officer and the sale certificate was not issued by the Managing Officer. Since the superstructure of House no.C/18/ 40 was sold in auction and the surrounding land of the Kothi was not auctioned as the opposite parties themselves have admitted the averments made in paras 1 to 5 of the writ petition.
17. In the meantime, Hashmat Ali & others, Ex- intermediary of village had filed objections before the Assistant Custodian, Barabanki to the effect that Ameeruddin, who had been declared as Evacuee, had no concern with the land, which were rejected as barred by limitation. Being aggrieved, Hashmat Ali & others filed appeal No.938 of 1958 (Hashmat Ali & others versus Assistant Custodian, Barabanki) before the Assistant Custodian General, which was allowed by the Additional Custodian/Assistant Custodian General, Evacuee Property, U.P., Lucknow, vide order dated 12/13.03.1959 (Annex.10), holding that evacuee was only owner of the constructions and the site belongs to the appellants, thereby site will not be treated to have vested in the custodian. The aforesaid order dated 12/13.03.1959 was not challenged and became final under Section 28 of the Administration of Evacuee Property Act, 1950.
18. Even, before the decision of the Additional Custodian/Assistant Custodian General dated 12/13.03.1959, Hashmat Ali & others (Ex- intermediaries) raised a demand for payment of the "land rent" before the Custodian, U.P. and upon an enquiry by the Custodian, Assistant Custodian, Barabanki submitted a report to the Custodian alongwith relevant records (annexure No.8). The Assistant Settlement Commissioner (M), Lucknow, ultimately took a decision and issued a letter to the Managing Officer, Gonda on 03.10.1956 (Annex.11), stating therein that Hashmat Ali & others, had already been informed through letter dated 03.08.1958 that the property had already been sold off and no action is possible from his office. Hashmat Ali & others have also been informed to seek their remedy against the purchaser, if they so choose.
19. It would be pertinent to point out here that the order dated 12/13.3.1959 passed by Assistant Settlement Commissioner (M), Lucknow was a judicial order and had attained finality.
20. Thereafter, the Managing Officer initiated proceedings on the basis of the application dated 29.5.1959 (annexure no.7) made by Jagjit Singh, stating therein that the price of the house had already been deducted from his claim and the sale certificate had been issued to him on 26.6.1959 but due to some error in the sale certificate, house without land had been mentioned, hence a prayer was made, annexing copy of the sale certificate that the house with land be mentioned in the sale certificate.
21. On the basis of the application dated 29.6.1959, proceedings were again initiated by the Managing Officer, though as stated above, after the order passed by the Assistant Settlement Commissioner (M), which was a judicial order, no proceedings could be initiated and ultimately, the Managing Officer sent a letter to the Deputy Custodian, Head Quarter, stating incorrect facts that the acquired house was publically auctioned on 14.4.1956 and was purchased by Jagjit Singh, D.P. (Displaced Person), provisionally possession was given to him and the house in question comprises of structure built over the site of the land and the purchaser purchased it with structure and land both. The purchaser has filed an application that he had offered his bid for both the building and the site. Since the site was declared to be Non-Evacuee Property, he is not ready to get full amount of bid, which is already adjusted in his claim and is, therefore, requesting that either possession of the land be delivered to him or the cost of the site which has already been adjusted, may not be deducted.
22. Ultimately, the matter came before the same authority i.e. Assistant Settlement Commissioner (M), U.P., Lucknow and this time, neither the record of the case nor the original application dated 29.6.1959 (annexure no.7) which was forwarded to him were considered and resting on the correspondence i.e. letter dated 8.3.1960, he passed an order that since the structure alongwith site has been sold as acquired property and orders for site as acquired property were passed, therefore, Non-Evacuee favour of Jagjit Singh shall be finalized in respect to both, structure and site and Hashmat Ali & others, in whose favour the site has been released, may be paid the value of the land, which is equivalent to the valuation of the site of the house. The subsequent order dated 23.3.1960 (Annex. 13) though in the form of a letter will not supersede the earlier judicial order dated 3.10.1956 (annexure no.11). Ultimately, Hashmat Ali & others, who had claimed land, rent and the value of the site, were paid a sum of Rs.3580/- on 21.12.1961 but the final settlement of their claim as regards the value of the site was never made. A copy of the "Advance Receipt" is Annex.21.
23. The application dated 29.6.1959 made by Jagjit Singh remained pending and no orders were passed thereon, whereupon he again made an application on 28.12.1981 (Annex.15), after a lapse of 22 years and taking advantage of the verdict of the order dated 7.7.1959 (annexure no.12) issued by the Managing Officer, he prayed therein that sale certificate be issued for Kothi with land or he may be paid compensation for the same (Land) as the sale certificate is required in a case pending in Civil Court.
24. It would be pertinent to point out here that Kothi stand on part of plot no.330 of Village. Obri, while rest of the surrounding land situate in Village, Banki, which belongs to the Ex- Intermediaries, namely, Hashmat Ali & others proprietors and was never sold nor can it be sold as has been held by the Additional Custodian/ Assistant Custodian General. Further the land beneath, the Kothi, which is admittedly part of plot no.330 of Village Obri belongs to other intermediaries and Hashmat Ali & others were neither the proprietors/intermediaries of the said land nor they could be paid any compensation in respect thereof.
25. The Managing Officer with malafide intention cancelled the sale certificate dated 4.4.1959 and issued a fresh sale certificate on 14.1.1982 in respect of "house with land" (Annex. 16). Although the auction purchaser, namely, Jagjit Singh had not taken any recourse, as provided under Rule 92 (4) of the Rules framed in the Act of 1954 for setting aside the sale, hence the Managing Officer (opposite party no.3) had no jurisdiction to cancel the sale certificate dated 4.4.1959 and issue a fresh sale certificate on 14.1.1982. The sale having been confirmed as well as the sale certificate having been issued on 4.4.1959 the sale was complete, hence the Managing Officer had become "functious-officio" and he could neither cancel the sale certificate dated 4.4.1959 nor he could issue a fresh sale certificate.
26. Kalyan Singh, (opposite party no.5) subsequently got a sale deed executed by putting some imposter in respect to House No.C/18/40, Civil Lines, City, Nawabganj, Barabanki. The opposite party no.5 made an application on 23.8.1982 before the Managing Officer, opposite party no.3, stating therein that he is transferee of House No.C/18/40, situate on Khasra Plot no.330 and 331, area 1-12-1 Bighas of Village Obri and plot nos. 2621 and 2619, area 1-3-8 Bighas of Village, Banki, which did not belong to Evacuee. He applied for mutation before the Tehsildar of his name in revenue records but the revenue authorities have expressed their enability, as the property shown in the sale certificate is by boundaries, hence a request was made that plot number be included in sale certificate (annexure no.17).
27. On the said application dated 23.8.1982, letter was issued by the Managing Officer to the Tehsildar, calling upon a report from him about the numbers which came within the boundaries mentioned in the sale certificate dated 14.1.1982. Tehsildar, Nawabganj, accordingly submitted a detailed report in December, 1982 (Annexure no.18) alongwith six maps and the khataunis, stating therein that amongst the plots which are included in the boundaries mentioned in the sale certificate, i.e. plot nos.330 and 331, situate in Village Obri and 2619 and 2621, situate in Village, Banki, those plots are not Evacuee Property. Plot no.330 was recorded in Non-Z.A. Part-I in Ziman IV and plot no.331, area 0-5-4 is recorded as "Bharati Sarkar Zer-E-Intzam, Ziladhish". Plot no. 2619 in the name of Mohd. Saeed and others in Ziman IV (SC) (Hereditary Tenant). Plot no.2621 is recorded in the name of Ameeruddin and plot no.2621, area 0-10-17 is Forest Department and since the plots were not Evacuee Property, the department had got no right to transfer them and the names of the transferees cannot, as such, be mutated over the said plots and it would be desirable that sale certificate be amended accordingly.
28. On receipt of the report of Tehsildar, the opposite party no.3 instead of correcting the boundaries mentioned in the sale certificate, by deleting the same, issued a letter on 18.1.1983 (Annexure no.19), directing the Tehsildar, Nawabganj to initiate proceedings for mutation of the name of Jagjit Singh over all the 4 plots.
29. It would be pertinent to mention here that Jagjit Singh had already parted away, the property through alleged sale deed dated 15.7.1982 in favour of Kalyan Singh, hence he has left no right or title to the property in dispute and could not make an application for mutation of his name. The opposite party no.3. knowing fully well, had passed an order for mutation of the name of Jagjit Singh, thereby the order passed was not only illegal but also without jurisdiction and further mutation could not be ordered over the plots, which had already been held to be Non-Evacuee and do not form part of compensation pool under section 20 of the Act and could not, even be sold/transferred by the Managing Officer through the sale deed, after cancelling the earlier sale certificate dated 4.4.1959.
30. As would appear from the letter dated 18.1.1983 issued by Sri R.K.Singh Bisen, Managing Officer (I) to the Tehsildar, he himself had admitted that the boundaries were inserted in the subsequent sale certificate issued on 14.1.1982. The said admission supports the contention of the petitioners that manipulations have been made in the official records by playing fraud and on the basis of the boundaries mentioned in the Slip dated 1.5.1959 (annexure no.9) were inserted in the sale certificate dated 1.4.1959 and the land belonging to the petitioners, Forest Department and other persons (Ex-Intermediaries) were included so as to deprive them of their valuable properties and possession.
31. As already stated above, the sale was complete and the sale certificate was issued on 4.4.1959. Since no proceedings were initiated either by Jagjit Singh or by the opposite party no.5 to get the sale set aside, the opposite party no.3, who had become functious officio, acted illegally and issued a fresh sale certificate on 14.1.1982, after cancelling the earlier sale certificate dated 4.4.1959, despite the report submitted by the Tehsildar, wherein it was clearly stated that the plots in dispute were never declared as Evacuee Property and belongs to the Forest Department, petitioners and other persons, yet the opposite party no.3 again illegally issued a corrigendum on 16.3.1983 (annexure no.20) and included plot no.330, area 1-6-17, 331, area 0-5-4, total 1-12-1 Bighas of Village Obri and plot nos.2621 and 2619, area 1-3-8 of Village, Banki in the sale certificate.
32. Being aggrieved by the orders passed by the opposite party no.3, which were not only illegal but also without jurisdiction, as he had got no jurisdiction to cancel the sale certificate dated 4.4.1959 and to issue a fresh sale certificate dated 14.1.1982 and thereafter issue a corrigendum dated 16.3.1983, the petitioners no.1, 3, 4 and Mohd.Sayed, husband of the petitioner no.2 and Raj Bahadur filed an appeal under section 22 of the Act (annexure no.21), as the petitioners were not aware about the sale certificate dated 4.4.1959 and fresh sale certificate dated 14.1.1982, they sought exemption from filing the certified copy of the order, cancelling the sale certificate dated 4.4.1959. The opposite party no.2, after condoning the delay in filing the appeal, vide order dated 28.6.1983 proceeded to decide the appeal on merits and on a consideration of entire facts and circumstances of the case, including the order dated 15.3.1959 passed by the Additional Custodian/Assistant Custodian General in Appeal no.938 of 1958 wherein it was held that Ameeruddin Kidwai (Evacuee) was only the owner of the constructions and site belongs to Hashmat Ali & others and not to the Evacuee and site will not be treated to have vested in the Custodian, thereby allowed the appeal, holding that the superstructure was Evacuee Property, which was acquired under section 12 of the Act of 1954 and the Managing Officer had got no jurisdiction to add the land in the revised sale certificate dated 14.1.1982, as he became functucus officio, after issue of sale certificate dated 4.4.1959. Any order passed by the Settlement Commissioner under section 20-B is not available on record, therefore, the sale certificate of the land could not be issued.
33. Neither the site of the building was Evacuee Property nor it could be deemed to have been acquired under section 12 of the Act, hence the order dated 14.1.1982 passed by the Managing Officer (opposite party no.3) for issuing a sale certificate of House/Kothi with land was absolutely illegal and without jurisdiction. The plots mentioned in the corrigendum were not advertised for sale and if those plots stand vested under U.P.Ordinance No.1 of 1949, there is no proper enquiry in the findings of the Assistant Custodian on records, hence the opposite party no.3 had got no jurisdiction to issue a corrigendum dated 16.3.1983, which deserves to be set aside and the appeal was accordingly allowed vide order dated 30.5.1984 (annexure no.22). However, a liberty was given to the Department to enquire whether plot nos. 330 and 331 stand vested under Custodian or not, after giving full opportunity to the interested parties, thereby the order/sale certificate dated 14.1.1982 and 16.3.1983, issuing corrigendum (annexure no.20) were set aside and the case was remanded to the Managing Officer (opposite party no.3) for making a probe as to whether, the proceedings under section 20-B of the Act were initiated and finalized or not and thereafter to take necessary action in accordance with law.
34. Being aggrieved by the order dated 30.5.1984 passed by the opposite party no.2, Jagjit Singh, father of the opposite party and Kalyan Singh, opposite party no.5, filed a revision under section 24 of the Act. During the pendency of the revision, Jagjit Singh died, leaving behind his son, opposite party no.4 and Raj Bahadur, opposite party no.6 also died, whereupon, his heirs were brought on record.
35. Before the opposite party no.1, the opposite party no.5 made an application on 26.11.1987, seeking permission to file certain documents against which objections were filed by the petitioners, whereupon, the opposite party no.5 made another application on 6.7.1990, seeking permission to file certain documents and the petitioners filed their counter affidavit but the said application was not decided.
36. The petitioners made an application before the opposite party no.1, seeking permission to file the affidavit of Kalyan Singh dated 28.7.1988 (annexure no.23), filed before the Sub Divisional Officer, Nawabganj, containing his admission about the property declared as Evacuee and purchased by Jagjit Singh. The petitioners had also raised preliminary objections about the maintainability of the revision and during the course of arguments, placed the evidence on record, showing that only superstructure was acquired and was sold. They had also relied upon the case law reported in 1980 SC 1213, 1979 Bombay 148, 1968 SC 702, 1965 SC 1994. 1969 SC 1126, 1983 SC 1301 and 1959 SC 289.
37. The opposite party no.1, even without disposing of the application for substitution, made by the opposite party no.5, on the death of Raj Bahadur and the application of the petitioners, seeking permission to file the affidavit of Kalyan Singh, ignoring the maintainability of the revision and the jurisdiction of the court to decide the revision. proceeded with the case and allowed the revision vide order dated 10.2.1995 (annexure no.24).
38. While allowing the revision, the opposite party no.1, without there being any evidence on record, to the contrary held that the order passed by the opposite party no.2 was based on imagination and held that the cancellation of the sale certificate and issuance of fresh one without boundaries and the corrigendum, mentioning the plot numbers alongwith area are ministerial act in nature, thereby set aside the judgment dated 30.5.1984 passed by the opposite party no.2 and confirmed the sale certificate dated 14.1.1982. While allowing the revision, the opposite party no.1 wrongly swayed by the fact that Hashmat Ali had not agitated the matter before the opposite party no.2 and it was only the petitioners, who were claiming ownership of the land, which had already been found belonging to Hashmat Ali for which compensation was paid and do not have any relation to the properties of the petitioners, ignoring the evidence led by the petitioners in support of their claim to the land i.e. (annexure nos.25 to 36).
39. Learned Senior Counsel for the petitioners submitted that it is now well settled in law that section 24 of the Act does not empower the Chief Settlement Commissioner (opposite party no. 1) to decide about the validity or otherwise of the property, conveyed by the sale deed/sale certificate, in as much as, the transfer of the property by the sale deed/sale certificate effected by the Managing Officer or Managing Corporation cannot, by any stretch of imagination, be construed or interpreted to mean an order passed by such authority.
40. He further submitted that since such transaction of sale cannot be amended or modified by the Managing Officer or the Chief Settlement Commissioner, it would follow that the Chief Settlement Commissioner cannot interfere with such transaction in exercise of alleged powers under Section 24 of the Act. It is also propounded by the Apex Court in the case reported in 1958 SC, 289, 1965 SC 1994 and 1968 SC 702 that the Managing Officer become functurous officio, after issue of the sale certificate and he cannot cancel or amend the sale certificate simply because the property ceases to be Evacuee Property, goes out from compensation pool and all interest of the Central Government are deemed to be alienated. It is also well settled that only the property, which was Evacuee Property could be acquired under Section 12 of the Act and form of the compensation pool, which satisfy the definition of Evacuee Property given under Section 2 (c) of the Act of 1954.
41. He next submitted that if the property was never Evacuee Property, as defined under Section 2 (c) of the Act, it does not legally form part of the compensation pool and, therefore cannot be disposed of under Section 20 or rules framed under the Statute, as has been held in 1982 P&H 100, Union of India versus Arshad, 1980 SC 1206, Dr. Rajendra Prakash Sharma & others versus Gyan Chandra & others. It is well settled that Section 20-B has already been declared as unconstitutional being ultravires of Article 19 (1) (f) of the Constitution, as such, any order made under any unconstitutional provision is illegal and invalid and no effect can be given to it, as has been propounded by the Apex Court in the case of Abu Khan versus Union of India & others reported in 1983 SC 1301.
42. Learned Senior Counsel for the petitioners submitted that the order passed by the opposite party No.2 had attained finality under Section 27 of the Act and cannot be questioned by way of appeal or revision as has been laid down in the case of Bhoor Singh versus Khesumal Aratman & others.
43. He further submitted that opposite party no.1, while allowing the revision had failed to consider that after sale certificate dated 4.4.1959 was issued by the opposite party no.3, he became functious officio and cannot issue a fresh sale certificate by cancelling earlier one or to issue a corrigendum. The opposite party no.2, on a consideration of entire facts and circumstances of the case as well as law applicable thereto, had rightly set aside the order passed by the opposite party no.3 and the opposite party no.1, while allowing the revision had omitted to consider the same and further once the sale certificate has been issued earlier by the opposite party no.3 after confirmation of the auction sale, neither Jagjit Singh - auction purchaser nor Kalyan Singh - subsequent purchaser, having not challenged the said order under Rule 92 (4), the order passed by the opposite party no.3, issuing sale certificate dated 4.4.1959 became final and the opposite party no.1 erred in law in allowing the revision, affirming subsequent sale certificate 14.1.1982, after cancelling the earlier one dated 4.4.1959 on the ground that it was a ministerial act ignoring that the sale certificate cannot be annulled or modified by the Managing Officer.
44. The opposite party no.1 has further erred in law in not considering that the opposite party no.2, on a consideration of entire facts and circumstances of the case and the law applicable thereto, after setting aside the illegal order passed by the opposite party no.3, remanded the case to him for making a probe with regard to plot nos.330 and 331 of Village Obri as to whether they were declared as Evacuee Property and were acquired under Section 12 of the Act and the opposite party no.1, even without setting aside those findings, illegally allowed the revision vide order dated 10.02.1995 thereby erred in law in restoring the illegal order passed by the opposite party no.3.
45. He further submitted that opposite party no.1 had further erred in law in not deciding the application for substitution filed by the opposite parties no.4 and 5 on the death of Raj Bahadur, thereby the order passed by the opposite party no.1 was against a dead person and is anullity in law and also erred in law in placing reliance upon the order dated 21/22.3.1960 passed under Section 20-B by the Assistant Settlement Commissioner (M), Lucknow (annexure no.13) which itself does not satisfy the compulsions of Section 20-B of the Act of 1954, thereby erred in law in setting aside the order passed by the opposite party no.2.
46. He submitted that the order dated 10.2.1995, thus, passed by the opposite party no.1 is not only illegal but also without jurisdiction and has been passed against a dead person as well as beyond jurisdiction, as he has ignored to consider that the property which has not been declared as Evacuee Property and does not form part of compensation pool, could not be transferred. Therefore, he submitted that the writ petition deserves to be allowed and the order dated 10.2.1995 (annexure no.24) passed by the opposite party no.1 is liable to be set aside. In support of his submissions, he placed reliance upon following judgments, relevant paragraphs of which are being quoted below:
a) Major Gopal Singh and others, Appellants Vs. Custodian, Evacuee Property, Punjab and others, Respondents; AIR 1961 Supreme Court 1320 (V 48 C 242):
"11. It is followed by an explanation; but that explanation has no bearing upon the point urged by Mr Achhru Ram. It is no doubt true that the Raikot lands were allotted to the appellants under the notification referred to in clause (a) of this section and, therefore, they would be entitled to the benefits conferred by this section provided they satisfied all the other requirements of this section, express or implied. It is implicit in this section that the displaced person to whom land was allotted held the land and was in possession of such property at the date of the notification. It is not disputed that the appellants ceased to hold and had lost possession of the Raikot lands before the publication of this notification. Even assuming that the order of the Custodian cancelling the allotment in their favour was erroneous there will be no difference in the result because what is essential is the facts of holding and possession of the land on the date of the notification.
12. Mr Achhru Ram then referred to the Conditions on which allotments of land may be made under the notification referred to in sub-section 10(a) and pointed out that under Condition No. 6 the Custodian or rehabilitation authority would be competent to resume or cancel an allotment only on one of the grounds set out in that condition. He said that the cancellation of the allotment in favour of the appellants was impermissible inasmuch as it was not based upon any of the grounds set out in the 6th condition. That may or may not be so. We would repeat that the appellants had lost their possession before the publication of the notification and are thus not entitled to the protection of the section. Moreover, the Custodian, by reason of the divesting of the property, as from 24-3-1955, had become functus officio with respect to it and could not rectify any error made by him in the past in the matter of cancellation of allotment. It is true that had the appellants been in possession at the critical time they would have had the right to obtain a permanent transfer in their favour of the Raikot lands and by virtue of what happened and without any fault on their part they have been deprived of that right. That is indeed unfortunate but none of the authorities created by the Administration of Evacuee Property Act could rectify the wrong that has been done by them to the appellant. The question whether it could be rectified by any of the authorities constituted by the Displaced Persons (Compensation and Rehabilitation) Act or not was not canvassed before us and, therefore, there is no occasion for us to say anything about it.
14. Finally Mr Achhru Ram referred to Section 17 of the 1954 Act and to Rule 102 of the Rules framed thereunder and said that the powers of the managing officers appointed under the Act are confined only to properties which are entrusted to them for management and not with respect to any other property. Section 17 deals with the functions and duties of managing officers and managing corporation. Sub-section (1) provides that managing officers and managing corporations will perform such functions as may be assigned to them under the Act. Sub -section (2) provides that subject to the provisions of the Act and the rules made thereunder, a managing officer or a managing corporation may, among other things, take such measures as he or it considers it necessary or expedient for the purpose of securing, administering, preserving, managing or disposing of any property in the compensation pool entrusted to him or it etc. The argument is that unless there is such entrustment the managing officer or managing corporation has no function to perform with respect to evacuee property. His contention appears to be that there is nothing to show that this property was entrusted to a managing officer. In the first place the section confers the particular powers on managing officers or managing corporations only and no one else. Therefore, even if no managing officer or managing corporation was appointed with respect to that property no one else could exercise the power of cancellation of allotment. Further, there is no ground in the special leave petition or in the statement of the case that there is no entrustment in fact of this property or this class of properties to a managing officer or managing corporation. He cannot, therefore, be permitted to make out a new case at this stage of argument. That apart, this argument assumes that the property, despite the publication of the notification under Section 12(1) of the Act continues to be evacuee property. Again, this provision is a general provision and the particular provision regarding cancellation of allotment is Section 19(1) of the Act which does not refer to entrustment at all and it is this provision which must prevail over the general provision. He then contends that the provisions of Section 19 (1) of the Act being subject to rules made under the Act must be read along with Rule 102 which deals with cancellation of allotments of leases. That rule reads thus: Cancellation of allotments and leases A managing officer or a managing corporation may sell any property in the compensation pool entrusted to him or to it, cancel an allotment or terminate a lease, or vary the terms of any such lease or allotment if the allottee or lessee, as the case may be (a) has sublet or parted with the possession of the whole or any part of the property allotted or leased to him without the permission of a competent authority, or (b) has used or is using such property for a purpose other than that for which it was allotted or leased to him without the permission of a competent authority, or has committed any act which is destructive of or permanently injurious to the property, or (d) for any other sufficient reason to be recorded in writing: Provided that no action shall be taken under this rule unless the allottee or the lessee, as the case may be, has been given a reasonable opportunity of being heard. He points out that in the first place, the rule speaks of land entrusted to the manager and, therefore, would operate only if entrustment is established. What we have said in regard to Section 17 would apply here also. He then says that this rule restricts the powers of a managing officer or a managing corporation in the matter of cancellation of allotment in the sense that it permits cancellation only on certain specified grounds and, therefore, it cannot be said that Section 19(1) of the Act is completely in conflict with Section 10 of the Administration of Evacuee Property Act insofar as the question of cancellation of allotment is concerned. We cannot accept the argument because, apart from the fact that the acquired properties have ceased to be evacuee properties, clause (d) of Rule 102 permits the managing officer or managing corporation to cancel allotment for any other sufficient reason to be recorded in writing. The only effect of Rule 102 is to permit cancellation of an allotment for reasons stated. That is all. In our opinion, therefore, this rule does not help the appellants."
b) Mushi Ram and others, Appellants Vs. Delhi Administration, Respondent; AIR 1968 Supreme Court 702 (V 5 C 141):
"9. The next question is whether PW 5, the managing officer was competent to evict Jamuna. We fail to see how he could have done it. He had no interest in the land in question on June 22, 1962. The right, title and interest of the Government in the land had long been alienated. The managing officer had already given to the vendee such possession as he could have, namely, the landlord's possession. Thereafter it went out of the compensation pool and the managing officer had no power to deal with it unless otherwise expressly provided. Our attention has not been invited to any provision in the Act authorising the managing officer to deal with a property which had ceased to be an evacuee property. Therefore we fail to see how PW 5 could have issued any warrant for the delivery of the field in question on June 22, 1962."
c) Lachhman Dass and others etc. Appellants Vs. Municipal Committee, Jalalabad and others etc, Respondents; AIR 1969 Supreme Court 1126 (V 56 C 206):
9. The objects and reasons for enacting Section 20-B were given as follows:
Instances have come to notice where some properties were wrongly declared to be evacuee property and they were also acquired. In such cases, the Custodian-General is empowered under Section 27 of the Administration of Evacuee Property Act, 1950, to restore such property to the non-evacuee owner. Similarly, a competent officer has also power under the Evacuee Interest Separation Act, 1951, to declare a share in a property to be non-evacuee after the whole of it has been declared to be evacuee property and has been acquired. It is not sometimes possible to restore the original property to the non-evacuee owner because of its transfer to a displaced person. To overcome this difficulty, it is proposed to insert a new Section 20-B on the lines of Section 20-A.
12. In our view, Section 20-B violates both these provisions of the article. There is no doubt that to provide for rehabilitation of displaced persons was a public purpose but it does not serve any public purpose to provide that if a displaced person is in occupation of somebody's property he should not be given other property because it will not be expedient or practicable to do so. A public purpose may be served if it had been provided that a displaced person may not be ousted because his business would be ruined or that he would be completely thrown on the street, but to provide in the section that if the Central Government does not think it expedient or practicable for its own convenience or for the convenience of a lessee or licensee who is not a displaced person it may not restore property serves no public purpose. In our view, under the section the Central Government is entitled not to restore property to serve a purpose other than a public purpose and consequently the section is ultra vires Article 31(2).
d) M/s. Himprastha Financiers Private Ltd. and others. Petitioners Vs. Union of India and others, Respondents; AIR 1976 Himachal Pradesh 29:
"15. According to Bombay Salt and Chemical Industries v. L.J. Johnson, (AIR 1958 SC 289) the approval of the auction bid by the Settlement Commissioner brings into existence a binding contract for the sale of the property and the issue of the sale certificate brings about a transfer of the property. Although the title of the property passes by the issue of the sale certificate, the date on which the title passes is the date of confirmation of the sale as was pointed out in Bishan Paul v. Mothu Ram, (AIR 1965 SC 1994) and the certificate relates back to the date when the sale became absolute. But the sale certificate cannot be said to pass title in respect of property which was plainly never the subject of the auction. There can be no dispute that Shri Kala Ram. When he participated in the auction proceedings, knew that he was bidding for the Central Hotel (Main Building) only and there was never any understanding that the Central Hotel Annexure was also the subject-matter of the same auction proceeding. The Central Hotel (Main Building) and the Central Hotel Annexe were regarded as two distinct lots for auction. Therefore, when Shri Kala Ram Khanna bid for the Central Hotel (Main Building) and clearly understood that his bid was in respect of that lot only and the bid was accepted subsequently in respect of that lot and was later confirmed in relation to that lot, the sale certificate was clearly void to the extent that it included the Central Hotel Annexe also. Possession transferred consequent to the sale certificate in respect of the Central Hotel Annexe would not be possession in law and would confer no rights on Shri Kala Ram Khanna. Reliance has been placed by the petitioners on Tek Chand Chitkara v. Union of India, (1968 Delhi LT 284). But that was a case where the suit was for recovery of possession of certain property on the allegation that it was part of a certain property sold to the plaintiff. A case such, as the present one, falls within the scope of Section 33 of the Act and it is not necessary that a suit should be filed for the purpose of correcting the entries in the sale certificate. All along the Central Hotel Annexe remained part of the compensation pool and the nominal inclusion in the sale certificate by reference to boundaries of the property covered by the certificate did not take it out of the compensation pool."
e) Bhoorsingh Palasingh, Petitioner Vs. Kesumal Aratmal and others, Opponents; AIR 1979 BOMBAY 149:
"11. A perusal of s. 20(1) of the Act would show that the power to transfer by sale is different from the power to transfer by allotment. Section 20(1)(a) empowers the managing officer or the managing corporation to transfer any property by sale, whether the property is sold by public auction or otherwise. Section 20(1)(b) deals with the power of the managing officer or the managing corporation to lease such property and s. 20(1)(c) deals with the power of the managing officer or the managing corporation to transfer by allotment of any such property to a displaced person or an association of displaced persons whether incorporated or not, or to any other person, on such valuation as the Settlement Commissioner may determine. In other words, s. 20 (1) of the Act makes a clear distinction between the power of transfer by sale and the power of allotment, whereas the sale could be effected in favour of the persons mentioned in s. 20(1)(a) whether the property is sold by public auction or otherwise by the managing officer or the managing corporation without reference to any higher authority, the allotment under s. 20(1)(c) can be made by the managing officer or the managing corporation only on such valuation as the Settlement Commissioner may determine. In. other words, s. 20(1) of the Act clearly contemplates that the power to transfer by sale is distinct and different from the power of the managing officer or the managing corporation to transfer by allotment. Section 19(1) which is set out above authorises the managing officer or the managing corporation only to cancel any allotment or terminate any lease or to amend the terms of any lease or allotment under which any evacuee property acquired under the Act is held or occupied by any person. In other words, the power of cancellation or termination is conferred on the managing officer or the managing corporation only in respect of an allotment made by them under s. 20(1)(c) or the cancellation of lease made under s. 20(1)(6) of the Act. So also the power of varying the terms of only the lease or allotment is conferred on the managing officer or the managing corporation under s. 19(1) of the Act. In other words, s. 20 (1) gives the power to the managing officer or the managing corporation to transfer the property. Section 19(1) deals with the power of the managing officer or the managing corporation only to cancel or vary the terms of the allotment or lease and therefore by its very nature it does not deal with the power of such managing officer or the managing corporation to cancel or vary the terms of transfer by sale inasmuch as, transactions of transfer by sale stand on a different footing than transfer by way of lease or allotment."
12. ............................................................................................................... There is no other provision of law in the Act in question which could authorise the Chief Settlement Commissioner to entertain the plea about the property being mistakenly described in the sale deed executed by the Managing Officer or the Managing Corporation."
f) Union of India and others Appellants Vs. Arshad, Respondent; AIR 1982 Punjab and Haryana 106:
"2. After hearing the counsel for the parties, I am of the view that the judgment and decree of the learned District Judge is well based in view of Dr. Rajendra Prakash Sharma v. Gyan Chandra, AIR 1980 SC 1206. The facts of the present case, as enumerated above, are much better than the facts of the Supreme Court case. The facts of that case were that although no proceedings were ever taken for declaration of the property in dispute in that case to be evacuee property nor it was ever shown the papers of the Custodian or the Rehabilitation Department till before 29th January, 1969, when the property was put to auction on that date by the Rehabilitation Department under S. 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and was purchased by the plaintiff in that case in whose favour the sale certificate was issued on 19th March, 1969, it was at that stage that a question cropped up whether the auction sale and the sale certificate really conveyed any title to the auction-purchaser. It was held as follows: Where the property which was never declared as evacuee property under Section 7 of the Administration of Evacuee Property Act, 1950, and thus never formed part of the compensation pool, was sold by the authorities under the 1954 Act, the jurisdiction of the civil court to get into the question as to the finality of the order of sale is not barred under S. 27. The sale could not be made under the 1954 Act for the reason that it was never declared evacuee property. Only that property which was evacuee property could be acquired under Section 12 and form part of the compensation pool which satisfies the definition of evacuee property given to Section 2(c) of the 1954 Act. If the property was never evacuee property, as defined in Section 2(c), it does not legally form part of the compensation pool and, therefore, cannot be disposed of under Section 20 or the Rules framed under this statute."
g) Dr. Rajendra Prakash Sharma, Appellants Vs. Gyan Chandra and others, Respondents; AIR 1980 Supreme Court 1206:
"9. The main contention of the learned Counsel for the appellant is twofold: (a) In view of Section 46 of the 1950 Act, the civil court had no jurisdiction to adjudicate upon the question whether the suit property or any right or interest therein is or is not evacuee property. (Reliance for this contention has been placed on the decision of this Court in Custodian of Evacuee Property, Punjab v. Jafran Begum [AIR 1968 SC 169 : (1967) 3 SCR 736 : (1968) 1 SCJ 782] ); (b) The sale of the suit property has been effected in favour of the appellant under Section 20 of the 1954 Act, after it had been acquired by the Central Government under Section 12 of that Act, free from all encumbrances, arid formed part of the compensation pool. It will therefore, be presumed that prior to its acquisition under Section 12 of the 1954 Act, it was evacuee property vesting in the Custodian. The orders of its acquisition passed under Section 12 and its sale under Section 20 of the 1954 Act had become final and conclusive. The respondents could not be allowed to go behind those orders and question their finality on the ground that the property has never been evacuee property vesting in the Custodian, because Section 27 of the 1954 Act bars the jurisdiction of the civil court to go into this question. The only remedy of the defendants-respondents is to claim compensation under the 1954 Act. Reference in this connection has been made to N.S. Gujral v. Custodian of Evacuee Property [AIR 1968 SC 457 : (1968) 1 SCR 497."
37. Then, there is Section 20 which confers power on the managing officer to transfer any property out of the compensation pool by sale or in any other manner indicated in clauses (b) to (e) of that section. Again, the necessary prerequisite for sale is that the property must have been declared under Section 7 of the 1950 Act to be evacuee property by the Custodian or it must be evacuee property under the deeming provisions of any law which may be applicable to the case of the evacuee. In other words, only that property which was evacuee property could be acquired under Section 12 and form part of the compensation pool which satisfies the definition of evacuee property given in Section 2(c) of the 1954 Act. If the property was never evacuee property, as defined in Section 2(c), it does not legally form part of the compensation pool and, therefore, cannot be disposed of under Section 20 or the rules framed under this statute."
h) Abu Khan and others, Appellants Vs. Union of India and others, Respondents; AIR 1983 Supreme Court 1301:
"2. Mr. B.D. Sharma, learned counsel who appeared for the appellant urged that Section 20-B of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 has been declared ultra vires by this Court in Lachhman Dass v. Municipal Committee, Jalalabad [(1969) 1 SCC 653 : AIR 1969 SC 1126 : (1969) 3 SCR 645] and therefore, the order made in exercise of the power conferred by Section 20-B would be illegal, invalid and of no effect and accordingly must be quashed and set aside by this Court. This Court in the aforementioned decision rendered on February 12, 1968 held that Section 20-B is ultra vires Article 31(2) of the Constitution. The section was accordingly struck down. Undoubtedly, it was struck down as being violative of Article 31(2) which itself has been repealed by Constitution (Forty-fourth Amendment) Act, 1978. However, once Section 20-B was struck down way back in 1968 as being violative of Article 31(2) but it was not re-enacted after the repeal and deletion of Article 31(2) and therefore, no order could have been made by the Central Government in 1964 under an unconstitutional provision when it purported to make the impugned order. Though this decision holding Section 20-B ultra vires the Constitution was rendered aback a year before the High Court pronounced the judgment under appeal, it was not brought to the notice of the High Court. Since then Section 20-B has not been re-enacted; obviously, therefore an order made under an unconstitutional provision would be illegal and invalid and no effect can be given to it. This was the only point raised in this appeal which must be accepted and therefore, the appeal must succeed."
i) Om Prakash and others, Appellants Vs. Union of India and others, Respondents; AIR 1971 Supreme Court 771:
"5. It is not denied that the appellant's father obtained the allotment on the basis of an oral verification of his claim under 3 categories Quasi-permanent, Temporary and Reserve. This oral verification is subject to correction, variation and cancellation if subsequently relevant revenue records which were called for from the Pakistan authorities justified such a course. The Section Officer-cum-Managing Officer could therefore under Section 19 of the Act cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property was allotted. The Chief Settlement Commissioner had also the powers under sub-section (1) of Section 24 of the Act to call for the records at any time of the proceedings under the Act in which an officer specified therein has passed an order, for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. Sub-section (2) further provides as follows:
Without prejudice to the generality of the foregoing power under sub-section (1), if the Chief Settlement Commissioner in satisfied that any order for payment of compensation to a displaced person or any lease or allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then, notwithstanding anything contained in this Act, the Chief- Settlement Commissioner may pass an order directing that no compensation shall be paid to such a person or reducing the amount of compensation to be paid to him, or as the case may be, cancelling the lease or allotment granted to him; and if it is found that a displaced person has been paid compensation which is not payable to him, or which is in excess of the amount payable to him, such amount or excess, as the case may be, may, on a certificate issued by the Chief Settlement Commissioner, be recovered in the same manner as an arrear of land revenue.
47. On the other hand, learned counsel for respondent Nos.5/2, 5/3 and 5/5 submitted that the present writ petition is not maintainable and is an abuse of the process of law and deserves to be dismissed with costs based on settled principles of law. They submitted that the present writ petition, filed in 1995, challenges the acquisition proceedings, the Sale certificate dated 14.01.1982 and the Corrigendum dated 16.03.1983. They submitted that the issues raised herein have been fully and finally adjudicated in connected civil suits: Original Suit No. 124/1979 (Jagjit Singh & others vs. Pratap Narayan & others): Decree passed on 30.11.2022 and appeal filed against this order is also pending before the Hon'ble High Court.
48. They further submitted that Original Suit No. 63/1982 (Mohd. Said & others vs. Jagjit Singh & others) was filed which was dismissed vide order dated 02.08.2021. The First Appeals (18/2021 and 22/2021) were dismissed on 29.03.2022 and a Second Appeal is pending but has not been admitted.
49. They further submitted that the Civil Court findings are binding and conclusive. The court specifically examined the sale certificate and corrigendum and held them to be valid. The writ petition, filed in 1995, challenging these actions without challenging the binding decrees of the civil courts which is not maintainable in law.
50. They further submitted that the civil courts established that property No. 2619 (part of Kothi C-18/40) was evacuee property and the department had duly acquired and auctioned both the land and the structure standing on it. Compensation for the land was accepted by Hashmat Ali, confirming the property vested in the Government.
51. They next submitted that the sale certificate initially issued "Without Land" was rectified and a fresh certificate "With Land" was issued on 14.01.1982 and duly registered. The Hon'ble High Court has previously clarified that once a sale certificate is issued after an auction, valid title passes to the purchaser. They submitted that Section 28 of the Act makes it clear that once a property is auctioned and vested, no third party can re-claim ownership or challenge the title of the auction purchaser.
52. They submitted that the auction purchaser obtained valid title on 14.01.1982 and the sale certificate is final and binding. The petitioner's claim that the Managing Officer became functus officio after issuing the 1982 Sale Certificate and could not issue the 1983 Corrigendum is misconceived. Section 21 of the General Clauses Act, 1897 provides that where a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes the inherent power to add, amend, vary or rescind the same. The Managing Officer was well within his authority in issuing a corrigendum to the Sale Certificate. The Managing Officer's jurisdiction to issue a corrigendum after the auction has been squarely dealt with by the Hon'ble Apex Court in the case of Jamil Ahmad v. Kumud Rajdeo Singh (1996 SCC OnLine All 555), which categorically held that the issuance of a corrigendum after the auction is well within the jurisdiction of the Managing Officer and cannot be faulted.
53. They submitted that Hon'ble Supreme Court's view on Executive Function in the case of P. Rammohan Rao v. K. Srinivas (2025) 4 SCC 127, the Hon'ble Supreme Court clarified that the doctrine of functus officio does not apply to executive authorities engaged in rule-making or executive functions. Applying this rigid doctrine would paralyze the government's ability to modify or adapt policies, which is essential for the dynamic functioning of the executive branch.
54. They further submitted that the Hon'ble Supreme Court in the case of Bishan Paul v. Mothu Ram (AIR 1965 SC 1994) has clarified that issuance of a sale certificate after an auction is an administrative act, not judicial and on the date the auction price is deposited in full and the certificate is issued, title is transferred to the purchaser. Thereafter, neither the department nor any third party can dispute the title.
55. They submitted that the writ petition must be dismissed because the petitioners have utterly failed to establish their own title to the property. A litigant must succeed on the strength of his own title and not on the weakness of the respondent's title. The petitioner cannot succeed merely by pointing out alleged infirmities in the title of the respondent, who is already fortified by a registered Sale Certificate and Civil Court orders and submitted that a person who fails to prove his own title has no locus to question the auction or the title of the purchaser.
56. They further submitted that the petition is a collateral and mala fide attempt to unsettle rights that have already been validly crystallized by the department's acts and repeated judicial adjudications. The petitioners have approached this Hon'ble Court with unclean hands, disentitling them from equitable relief under Article 226.
57. They further submitted that the petitioner instituted Civil Suit No. 63/1982 concerning the same property and filed the present writ petition in 1995 without disclosing its pendency which is a clear suppression of fact and abuse of process.
58. The petition is not maintainable for the non-joinder of the Union of India / Custodian General of Evacuee Property. The property vested in the Union of India / Custodian under the Administration of Evacuee Property Act, 1950. Any order affecting the vesting, management or title of such property directly impacts the statutory interests of the Union / Custodian making them a necessary party to the adjudication.
59. They next submitted that the petitioner's claim is barred by the finality provisions of the Evacuee Interest (Separation) Act, 1951. Section 11(1) provides that if the property was a "composite property" (as defined in Section 22(d)), the process of separating interests under \Section 10 would have resulted in the property vesting in the Custodian{free from all encumbrances, claims, demands or disputes whatsoever}. This statutory vesting extinguishes all collateral claims, including the present one.
60. In Paragraph No. 9 of the counter affidavit, it has been pleaded specifically that if the property in question was a composite property within the meaning of Section 22(d) of the Evacuee Interest (Separation) Act, 1951, the process of separation of interests was required to be undertaken by the competent authority under Section 10 of the Act. The Act provides several modes for effecting separation, including apportionment, transfer upon compensation, or other equitable means. Once the process is concluded, Section 11(1) of the Act mandates that the property shall vest in the Custodian free from all encumbrances, claims or demands. This statutory scheme ensures finality and extinguishes all collateral or subsequent claims. For ready reference, the relevant statutory provisions are reproduced herein below:
"Section 10 - Separation of Interests in Composite Property: "Where any property is composite property, the Competent Officer shall, after giving notice to the evacuee and the claimant and after such inquiry as he may think fit, separate the interests of the evacuee from those of the claimant in such manner as may be prescribed; and in particular, the Competent Officer may (a) apportion the property between the evacuee and the claimant; or (b) transfer the interest of the evacuee to the claimant on payment of compensation; or (c) transfer the interest of the claimant to the evacuee on payment of compensation; or (d) adopt such other method as may be fair and equitable for the purpose of effecting a complete separation of interests."
Section 11(1) - Vesting of Property in Custodian: "Where in respect of any composite property, the interests of the evacuee and the claimant have been separated under section 10, such property shall vest in the Custodian free from all encumbrances, claims, demands or disputes whatsoever."
Section 22(d) - Definition of Composite Property: "'Composite property' means any property in which an evacuee has an interest and in which any other person also has an interest."
61. The petitioners instituted Civil Suit No. 63/1982 regarding the same property, with issues framed in 1986. Despite its pendency, the present writ petition was filed in 1995 without disclosure which is a clear suppression of facts. The petitioner also pursued other connected suits and appeals, but concealed them. The petitioner's conduct of suppressing material documents and proceedings, withholding the valuation report, relying upon an ex-parte order of 1959 while concealing compensation already received, and indulging in parallel litigations amounts to a clear fraud upon this Hon'ble Court and constitutes gross abuse of the process of law. Such a litigant cannot be allowed to invoke the extraordinary writ jurisdiction under Article 226.
62. In light of the aforesaid settled legal propositions, it is submitted that the petitioners, having already pursued civil proceedings in respect of the same property since 1982 and suppressed these facts before this Hon'ble Court, cannot be allowed to maintain the present writ petition. The principle of clean hands, the prohibition against suppression of material facts, and the rule against forum shopping bar any relief to the petitioners.
63. That apart, the writ petition also deserves dismissal on the ground that while challenging an auction on the basis of title, it is a settled principle of law that the petitioners must first establish their own title to the property. Unless the petitioners are able to demonstrate through clear pleadings and supporting documents, that they have a lawful and subsisting right or title in the subject property, they cannot be permitted to question either the conduct of the respondent or the authority of the respondents to deal with the property. In the present writ petition, not even a single pleading has been made by the petitioners asserting their own title, nor has any document been annexed to substantiate such a claim. In absence of this foundational requirement, the challenge itself is rendered untenable in law.
64. That the Hon'ble Supreme Court in the case of Mahendra Pratap Dubey v. Managing Officer, Evacuee Property [(2019) 11 SCC 599], while dealing with an analogous situation, has categorically held that unless the appellant substantiates his own title, he cannot be heard to question the jurisdiction of the Managing Officer to deal with the subject property, including the validity of the sale certificate issued in favour of the respondent. The Hon'ble Court, in paragraph 14 of the said judgment, clearly observed that the failure of the appellant to establish his own right or title disentitled him from raising any objection to the sale. The ratio laid down squarely applies to the facts of the present case, where the petitioners having failed to assert or establish their own title, cannot maintain the present writ petition and the same is liable to be dismissed on this short ground alone. For Convenient Perusal the relevant paragraphs from the judgement are being reproduced hereunder :-
"14. Suffice it to observe that the appellant, having failed to produce the sale certificate in favour of Respondent 4 (Mohd. Sattar alias Mokhan) issued by the Custodian of Evacuee Property under the 1950 Act, he cannot be heard to raise the issue of jurisdiction of the Managing Officer to deal with the subject property, including the validity of the sale certificate issued in favour of Respondent 3. A deeper enquiry as to how the Managing Officer assumed jurisdiction to issue the sale certificate in favour of Respondent 3 would become relevant and essential only if the appellant was able to substantiate the fact, at least prima facie, that the suit property was, in fact, transferred in favour of Respondent 4 (Mohd. Sattar alias Mokhan) by the Custodian of Evacuee Property under the 1950 Act. Accordingly, this appeal must fail."
"15. In view of the above, the appeal is dismissed with costs."
65. That further, during the course of arguments, it was sought to be projected on behalf of the petitioners that even though the respondents are armed with the auction sale, corrigendum issued by the competent authority as well as civil court orders recognizing such rights, the respondents still does not have valid title over the property, and therefore the Managing Officer had no authority to issue the corrigendum without first examining the respondents locus or title. Such a submission, however, is wholly misconceived and contrary to the settled principles of law. It is trite that in a case where the title of immovable property is put in issue, the burden squarely lies upon the plaintiff or petitioner to establish his own independent title by way of cogent pleadings and documentary evidence. The petitioners cannot succeed merely by attempting to point out alleged infirmities or weaknesses in the title of the contesting respondents, particularly when the respondents are already fortified by official and judicial acts in their favour. This principle has been lucidly explained by the Hon'ble Supreme Court in the case of Jagdish Prasad Patel (Dead) through LRs and Another v. Shivnath and Others [(2019) 6 SCC 82], where Their Lordships in paragraphs 44 and 45 have held that a plaintiff cannot claim decree or relief on the weakness of the defendant's title but must succeed on the strength of his own title alone. The Court emphasized that unless the plaintiff discharges this foundational burden, no amount of alleged weakness in the defendant's case can enure to his benefit. Applying the said ratio to the facts of the present case, it becomes evident that the petitioners, having failed to set up or substantiate their own title, cannot question the legality of the corrigendum or the title of the respondents and on this ground also the writ petition is liable to be dismissed. For convenient perusal, the relevant paragraphs from the judgement are being reproduced hereinunder:-
"44. In the suit for declaration of title and possession, the respondent-plaintiffs could succeed only on the strength of their own title and not on the weakness of the case of the appellant-defendants. The burden is on the respondent-plaintiffs to establish their title to the suit properties to show that they are entitled for a decree for declaration. The respondent-plaintiffs have neither produced the title document i.e. patta-lease which the respondent-plaintiffs are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few chattans are not proof of title, but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title."
66. Learned counsel for the respondents submitted the following arguments, buttressed by evidence, Civil Court findings and settled legal principles, demonstrating the complete lack of merit in the petitioner's claim and the unmaintainability of the instant writ petition:
A) The Department's actions, including the auction, the sale certificate and the corrigendum were valid, lawful, and complete the transfer of title to the auction purchaser.
B) The property (House No. C/18/40, Civil Lines, Nawabganj) was validly auctioned on 14.05.1956 as evacuee property to Jagjeet Singh, the highest bidder. The full consideration was paid and the valuation included both the land and superstructure. This is contrary to the petitioner's claim that only the superstructure was sold.
C) The Settlement Commissioner's observation that only the superstructure was auctioned is speculative and contrary to the auction notice and other competent authority records.
D) The Department issued the Sale Certificate on 14.01.1982 in favour of the auction purchaser, which was a valid and final act of the competent authority after earlier objections had been disposed of.
E) The property, Kothi C-18/40 (which included Plot No. 2619) was fully acquired and auctioned by the Department. The compensation for the land was accepted by Hashmat Ali (who surrendered his rights) and his son Itrat Ali, which conclusively confirms that the property (both land and building) vested in the Government and was treated as evacuee property settled accordingly.
F) The original sale certificate, initially issued "Without Land," was subsequently rectified after due proceedings and a fresh certificate "With Land" was issued on 14.01.1982, which was duly registered.
G) The property records and site plan clearly demonstrate that Property No.2619 was fully acquired and auctioned. The petitioners have no documentary evidence to the contrary.
H) The Corrigendum dated 16.03.1983 was issued within the jurisdiction of the Managing Officer and duly affirmed by the Dy. Chief Settlement Commissioner.
I) Crucially, on the date the auction price is paid in full and the certificate is issued, title is transferred to the purchaser. Thereafter, neither the department nor any third party can dispute the title.
J) The same principle is confirmed by Section 28 of the Act, which provides that once a property is auctioned and vested, no third party can re-claim ownership or challenge the title of the auction purchaser.
K) The question of whether the Managing Officer had the jurisdiction to issue a corrigendum after the auction has been squarely settled by this Hon'ble Court in the case of Jamil Ahmad v. Kumud Rajdeo Singh (1996 SCC OnLine All 555), which categorically helds that the issuance of a corrigendum is well within the jurisdiction of the Managing Officer.
L) Section 21 of the General Clauses Act, 1897 expressly provides that a power to issue an order, rule, or notification includes the inherent power to add, amend, vary, or rescind the same. The Managing Officer was thus well within his inherent authority in issuing the corrigendum to correct or clarify the Sale Certificate.
M) The principle of functus officio is typically applied to judicial and quasi-judicial bodies. In Industrial Infrastructure Development Corporation (Gwalior) M.P. Ltd. Vs. Commissioner of Income Tax, Gwalior (2018) 4 SCC 494, the Hon'ble Supreme Court affirmed that an order, by applying Section 21 of the General Clauses Act, may be modified or rescinded if the order is either executive or legislative in nature. Furthermore, in the case of P. Rammohan Rao v. K. Srinivas (2025) 4 SCC 127, the Hon'ble Supreme Court clarified that the doctrine does not apply to executive rule-making authorities as it would hinder the government's ability to effectively evolve and adapt its policies. The Corrigendum, being a corrective act under the scheme of Evacuee Property laws, was a reasoned adjudication by the Dy. Chief Settlement Commissioner, not a mere mechanical or clerical exercise. The petitioner's attempt to reduce it to a "ministerial" exercise is misconceived and misleading.
N) The Civil Court's ruling in Original Suit No.63/82 categorically held that the petitioner failed to establish his own title. The petitioner relied on an alleged title from a sale deed dated 01.10.1984 executed by one Mr. Itrat Ali, who is the son of the original evacuee. This claim is unsustainable as Itrat Ali had already received compensation for the very portion of the land in dispute, rendering the foundation of the petitioners claim (the 'benama' document) defunct.
O) If the property was deemed "composite property" underSection 22(d) of the 1951 Act, the competent authority would have carried out the separation of interests under Section 10. Upon conclusion of that process, Section 11(1) mandates that the property shall vest in the Custodian free from all encumbrances, claims, demands, or disputes whatsoever. This statutory scheme ensures finality and extinguishes all collateral claims now being raised by the petitioners.
P) The extraordinary writ jurisdiction under Article 226 is not intended to adjudicate seriously disputed questions of fact or to substitute the ordinary remedies available before competent Civil Courts/Tribunals. The controversy involves hotly disputed technical and evidentiary issues regarding acquisition, title, and possession, which must be relegated to the appropriate Civil Courts. The present petition is a purely private adversarial dispute disguised to mislead the Court.
67. They lastly submitted that in light of the final and binding judicial findings, the validity of the title transfer under the statute, and the petitioner's lack of locus standi and suppression of material facts, the present writ petition is entirely without merit and is liable to be dismissed with exemplary costs. In support of their submissions, they placed reliance upon following judgments:
A) Leelawati (Dead) Thr. Lrs. Vs. State of U.P. and Ors.; 2025 SCC Online SC 612:
9. It is necessary to observe that the proceedings in the Court of law are initiated for adjudication of disputes and to provide justice to the parties, by which trust and confidence of the litigants reposed on this great institution can be maintained. In case one of the parties misuse the said process or attempt to obtain an order by trick and strategem, the Courts would be justified in imposing the costs for igniting such vexatious litigation. In our view, the cost imposed by the High Court in a sum of Rs. 20,000/- is meagre, which deserves to be increased to Rs. 50,000/-, as the petitioner has proceeded to pursue his vexatious claim even before this Court. Said costs shall be deposited before the Uttar Pradesh State Legal Services Authority, Allahabad.
B) M/s. Genius Ortho Industries Vs. Union of India and others; Writ Tax No.542 of 2023 decided on 29.02.2024:
"8. I had the occasion to deal with the aspect of suppression of material facts in Bhriguram De v. State of West Bengal and others reported in (2018) SCC OnLine Cal 8141 wherein I had examined the aspect of fraud, fraudulent concealment and doctrine of clean hands in great detail. One may delineate the relevant paragraphs of the said judgment below: 13. Fraud, according to Black's law Dictionary, 10th Edition, is a knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment; a reckless misrepresentation made without justified belief in its truth to induce another person to act; a tort arising from a knowing or reckless misrepresentation or concealment of material fact made to induce another to act to his or her detriment. 3 14. Fraudulent concealment as defined in Black's law Dictionary, 10th Edition, is the affirmative suppression or hiding, with the intent to deceive or defraud, of a material fact or circumstance that one is legally (or, sometimes, morally) bound to reveal. 15. According to the Law Lexicon, Third Edition (2012), the Latin Maxim Suppressio veri, suggestio falsi defines that the suppression of the truth is equivalent to the suggestion of falsehood. The suppression or failure to disclose what one party is bound to disclose to another, may amount to fraud. Where a person is found to be guilty of suppressio veri suggestio falsi for having concealed material information from scrutiny of the Court, he is not entitled for any equitable relief under order 39 of CPC (5 of 1908). [Arbind Kumar Pal v. Hazi Md. Faizullah Khan, AIR 2007 (NOC) 1035 (Pat) : (2006) 1 BLJR 430]. 16. The maxim that one who comes to Court must come with clean hands is based on conscience and good faith. The maxim is confined to misconduct in regard to, or at all events connected with, the matter in litigation. Clean hands means a clean record with respect to the transaction with the defendant, and not with respect to any third person. 17. As authored by Ruma Pal, J. in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar reported in (2004) 7 SCC 166 [Coram: Ruma Pal and P. Venkatarama Reddi, J.J.], suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. The relevant portion is provided below: 13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material from the consideration of the court, whatever view the court may have taken.. 18. In S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs reported in (1994) 1 SCC 1 [Coram: Kuldip Singh and P.B. Sawant, J.J.], the Supreme Court came down heavily on petitioners filing cases based on falsehood and suppression and observed as follows: 5. .The Courts of law are meant for imparting justice between the parties. One, who comes to the Court, must come 4 with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Propertygrabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the courtprocess a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of litigation. 6. . A fraud is an act of deliberate deception with the design of securing something by taking advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage of another .. A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party. 19. In a well-known Calcutta High Court case in Chittaranjan Das v. Durgapore Project Ltd. reported in 99 C.W.N. 897 [Coram: Satya Brata Sinha and Basudeva Panigrahi, J.J.], the Court observed at paragraph 64 that Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation. It is now well known that a fraud vitiates all solemn acts. 20. In Asiatic Engineering Co. v. Achhru Ram reported in AIR 1951 Allahabad 746 (Full Bench) [Coram: Malik, C.J., Sapru and V. Bhargava, J.J.], the Court observed that no relief can be granted in a writ petition under Article 226 which is based on misstatement or suppression of material facts. The Court observed in paragraph 51, at page 767 as follows: 51. In our opinion, the salutary principle laid down in the cases quoted above should appropriately be applied by Courts in our country when parties seek the aid of the extraordinary powers granted to the Court under Art. 226 of the Constitution. A person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, should insist that 5 persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts. 21. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. reported in (1996) 5 SCC 550 : J.T. 1996 (7) SC 135 [Coram: Kuldip Singh & S. Saghir Ahmad, J.J.], the Apex Court further observed as follows: 23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court, it also amounts to an abuse of the process of the Court, that the Courts have inherent power to set aside an order obtained by practising fraud upon the Court, and that where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. 22. Similar principles have been enunciated in English cases. In The King v. Williams reported in (1914) 1 K.B. 608 [Coram: Channell, Rowlatt, Atkin, J.J.], the Court observed at page 614 as follows: . In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them. 23. As seen from the various judgments discussed above, the Indian and English Courts have consistently taken the view that one who approaches the Court must come with clean hands. It is the bounden duty of the Court to keep the stream of justice absolutely clean. Anyone who approaches must give full and fair disclosure of all the materials. The Courts must not allow anyone to abuse the court process. In case the petitioner conceals anything that is known to be material such an action would lead to an inference of fraud, and even if not fraud, definitely would lead to a presumption that the petitioner has not approached the court with clean hands.
9. Article 226 of the Constitution of India is a discretionary jurisdiction which is to be exercised for petitioners who are acting in a good faith. The 6 principle of uberrima fides requires a party that comes to a Court to act in utmost good faith. The above principle is the genesis of the expectation of the Court to pass orders at the behest of the petitioner who has approached the Court with clean hands. The moment this trust is broken and it is discovered that there is suppression of material facts, the Court is bound to dismiss the said petition without granting any relief whatsoever to the petitioner.
10. In light of the same, this writ petition is dismissed on the ground of suppression of material facts. The petitioner shall be at liberty to approach any other forum for appropriate relief."
C) Jamil Ahmad and others Vs. Smt. Kumud Rajdeo Singh and others; 1996 SCC Online All 555: AIR 1997 All 374:
"2. Prior to the presentation of the appeal Sri L.P. Singh had filed a caveat on 3-7-95. The matter came up in presence of the learned counsel for both the parties on 1-9-95 when the appeal was admitted and the prayer for stay of the operation of the first appellate decree together with the hearing of the appeal was expedited by another judicial order of the same date. At the time of admission, however, no substantial question of law was framed by the Judge admitting the appeal. The memo of appeal, however, indicated that ground Nos. 3, 4, 5 and 6 involved questions of law. When the matter came up for hearing a Page: 375 preliminary objection was taken on behalf of the respondents for absence of framing of substantial questions of law as required under Section 100(4), C.P.C. Accordingly, two substantial questions of law were framed and those are as follows; First, what is the effect of the cancellation/modification/clarification of the sale certificate dated 14-8- 64 touching the suit property. Second, whether the relief sought for could have been granted by the Civil Court.
4. One Dr. Hafiz Ullah was the ancestor of the plaintiffs. The properly indicated by special mark in the plaint situated in village Narauli Tappa Harbansh School, Pargana Nizamabad, Tehsil Sadar, District Azamgarh, was known as Hafiz Manzil. This Hafiz Manzil with the house, trees and other fixtures belonged to the aforesaid Dr. Hafiz Ullah a retired Civil Suregeon. He expired in 1948 leaving behind the plaintiffs and pro forma defendants Nos. 9 to 15. The property devolved upon plaintiffs and these pro forma defendants. Of these heirs, pro forma defendants Nos. 9 to 15 and Anish Ahmad, Raish Ahmad and Hamira Bibi migrated to Pakistan while others remained in India. The share of the migrants, in the property of Dr. Hafiz Ullah was to the extent of 35/128th part as computed under the Mohamedan Law. This portion of the property was declared evacuee property under the Administration of Evacuee Property Act. This properly was subsequently acquired by the Central Government under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. The evacuee share and nonevacuee share had remained joint and so these shares were separated on 17-3-54 under the provisions of the Evacuee Interest Separation Act by the Competent Officer. An exception was taken by the Assistant Custodian of Evacuee Property and accordingly, on 23-7-54 a revised order was passed by the Competent Officer. An exception was again taken of this order also and a fresh scheme of separation was framed which was objected to by the non-evacuees. On 14-3-56 the Competent Officer passed the final order on separation of shares of evacuees and non-evacuees. In the property of Dr. Hafiz Ullah. Upon this final order, the evacuee property comprised of an area of 0.971 acre of bad quality land and 1.071 acre of good quality land, the total area being 2.042 acres. On 15-7-59 the plaintiffs were intimated to give up the management of the portion of Dr. Hafiz Ullah property which was demarcated as evacuee property as the same was to be sold under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act (Act 14 of 1954). The defendant No. 1 Dr. Raj Dev Singh, (now dead and represented through his heirs) constructed a boundary wall and then started further construction under the colour of removing of boundary wall. The plaintiffs were under impression, in good faith, that only the evacuee property was sold as that portion was only to sell. However, when on 14-8-64 the sale certificate was issued to defendant No. 1 the plaintiffs came to know that an area larger than the aforesaid 2.042 acres was shown in the sale certificate. On the basis of this sale certificate defendant No. 1 started a mutation proceeding in which an objection was raised by the aplaintiffs. On 24- 12-64 the defendant No. 1 put up a barbed wire fencing and on 9-2-64 started new constructions encroaching over some of the area of common road and on 24-2-65 defendant No. 1 took possession of the building in spite of objection of the plaintiffs. He was served with a notice but he did not pay heed to the same. The plaintiffs alleged a monetory lass incurred by them due to this wrongful possession and claimed to recover the same from defendant No. 1. There were allegations that defendant No. 1 had cut and removed trees belonging to the plaintiffs and a claim was laid for that also. In May, 1965, defendant No. 1 was asked to remove the constructions and to pay the compensation and to vacate the house 0 as also to remove the encroachments but the same was not complied with. Hence the suit.
7. The trial Court decreed the suit in favour of the plaintiffs and pro forma defendants with reference to map No. 16642. The defendant Dr. Raj Dev Singh and others preferred an appeal. The first appellate Court held that in map to 16642, the evacuee share was shown in green colour and the managing officer had auctioned only that portion shown in the green colour in the said map extending up to the line indicated by the letters G and H on the eastern boundary. He was further of the view that jurisdiction of the Civil Court was barred under the provisions of different enactments touching evacuee property. He concluded that the custodian was the owner of the property put to auction which was demarcated at the time of the auction on 26-11-59 and the sale proceedings thereof went in favour of the defendant No. 1 with payment of due consideration without notice as to any infirmity in the title of the custodian. The benefit of Section 41 of the T.P. Act was available to the defendant No. 1. It was further held that when the claim of the non-evacuees in the composite property was once determined by the custodian the same was not open to challenge, even though any share of the non-evacuee to the composite property was sold away. The proceeds of the sale, as paid by the auction purchasers can be proportional by paid to the non-evacuees and there was no wrong exercise of jurisdiction by the competent officer and the sale was free from all encumbrances. The suit was declared barred by the provisions of law and the appeal was allowed and the judgment and decree of the Court below were set aside.
9. The order dated 14-3-56 as referred to the above in Claim No. 106 of 1953 indicates that the Competent Officer, Faizabad, on 17-3-54 had passed an order proposing the separation of the evacuee interest by an actual partition scheme in accordance with the share of the evacuee and the non-evacuee which were held to be 35/128 and 93/128 respectively. In pursuance to that order the Commissioner prepared a report and a map on 15-7-54 showing in different colours different buildings and what was given to the custodian and what would remain for the non-evacuees. Under an order of the Competent Officer the scheme was directed to be changed and the Commissioner was directed to submit a fresh scheme for partition. Then a fresh report was submitted on 11-11-54. The custodian took up an objection and upon that the order dated 14-3-56 was passed. It was indicated what would be the share of the custodian and it was identified with reference to the map. The share allotted to the custodian would vest free from all encumbrances and liability. The remaining share in the property would belong to the claimants on which the evacuees will have no interest. The order was appended by a map. In this very Claim No. 106 of 1953 the Commissioner had made a report on 1-1-65 in terms of the order dated 14-6-56 where he was directed to prepare a neat map. This map was accepted and made a part of the order dated 14-3-56. It was observed in the order dated 26-2-65 that if the custodian had sold a larger share than allotted to him, the non-evacuee co-sharer should not recognise the sale and should get possession of the share allotted to them. It was further observed that the building 0 and the road passing through the portion allotted to the custodian will remain joint as determined in the order dated 14-3-56 and the parties were to take possession according to the shares allotted to them. The case was closed. The order of the Managing Officer Page: 378 on 15-9-65 indicates that an area of 3.042 acres has inadvertently been mentioned by the sale clerk in the sale certificate dated 14-8-64 and that area was to be deleted from the sale certificate and a corrigendum was to be issued accordingly with a true copy of the partition map as referred to in the judgment of the Competent Officer in Claim No. 106 of 1953 finally decided on 26-2-65. This order dated 15-9-65 stood challenged in Appeal No. 100 of 1965 and the Settlement Commissioner, by his order dated 18-2-66 set aside the impugned order of the Managing Officer as Rajdev Singh was not given an opportunity of hearing. The order of the Settlement Commissioner in Revision No. 108/UP/105 dated 25-10-68, however, indicates that the Settlement Commissioner accepted that the sale certificate for 3.042 acres issued in favour of the respondent Rajdev Singh was wrong and it was set aside. He directed the authorities to take appropriate steps to issue a fresh sale certificate to Dr. Rajdev Singh for an area of 2.042 acres only which was the evacuee share that has formed part of the compensation pool. It was directed that if the department had been instrumental in putting Rajdev Singh in possession of the excess area, the authorities would take steps to put the non-evacuee back in possession. As mentioned above a restoration application filed by Dr. Rajdev Singh against the last mentioned order was dismissed and his representation before the Government of India was also dismissed and so were his writ petition and special leave petition. 10. Three Acts are relevant in the matter of administration of evacuee property and in the matters connected thereto. Those Acts are (i) Administration of Evacuee Property Act (Act 31 of 1950). This was enacted for the administration of evacuee property and for certain matters connected therewith. The Act also defined what was an evacuee property and there has been no dispute between the parties on that point. It is not necessary to go through the definition, (ii) Evacuee Interest Separation Act (Act 64 of 1951). This act was enacted for making special provisions for separation of the interest an evacuee from other persons in a property and the matters connected therewith. At times a property was held jointly by several persons only some of whom migrated to Pakistan and it was necessary to locate what was the share of the evacuee in the joint property, (iii) Displaced Persons (Compensation and Rehabilitation Act (Act 54 of 1954). This Act was meant to provide for payment of compensation to and rehabilitation of displaced persons and for matters connected therewith. Under the scheme of these Acts the Custodian of Evacuee Property takes up a property as an evacuee property and thereafter the interest of evacuees in the property is separated from the interest of non-evacuee therein and only thereafter the evacuee interest so determined goes to the compensation pool for rehabilitation of displaced persons and for payment of compensation to them.
12. On the question of absence of jurisdiction of the Civil Court, several case laws were cited before me with reference to the legislation on that point. Section 46 of the Administration of Evacuee Property Act bars the jurisdiction of the Civil Court to proceed to entertain or to adjudicate upon any question whether any property or any right or interest in any property is or is not an evacuee property or to question the legality of any action taken by the Custodian General or a Custodian under this Act or in respect of any matters which the custodian is empowered by or under this Act to determine. The action of the custodian under the Administration of the Evacuee Properly Act is not in question in the suit. As indicated in the narration of the cases of the parties and existing the sequence of events, it is clear that the dispute had crossed the scope of the above Act and, in fact, the question before the Court is what was the property sold and which property could have been sold.
22. We may now travel to the other aspect of the case. The sequence of events as indicated earlier in this judgment clearly shows that separation of the evacuee and non-evacuee shares was made on 14-3-1956. The property was put to sale on 26-11-1959, possession was made over in 1961, but the sale certificate was signed only on 14- 8-1964. The auction sale was confimed on 26-2-1965 by the competent officer. The correctness of that order was proposed to be challenged by Jameel Ahmed who served a notice under Section 80. C.P.C. On the basis of that notice a corrigendum was issued on 15-9-1965 regarding the area shown in the sale certificate. Thereafter the suit was filed. In the parallel proceeding before the authorities under the three Acts an order was passed by the Settlement Officer on 18-2-66 allowing the appeal of Rajdev Singh against the order dated 15-9-1965 and the managing officer was directed to rehear the matter. Against this order a revision was preferred before the Settlement Commissioner by Zabitul Nisa for correction of the sale certificate to indicate the proper area. An order was made directing such correction and for putting the nonevacuee in possession of the excess area if Dr. Rajdev Singh was in possession thereof. When this order was passed the suit was still pending. The suit was decreed by the trial Court. A first appeal was preferred by Dr. Rajdev Singh. In the parallel proceedings before the authorities under the three Acts. Dr. Rajdev Singh moved an application for restoration of the revision case and for setting aside the order dated 25-10-1965. This application was dismissed. Dr. Rajdev Singh thereafter moved the Central Government which too was dismissed. There was a writ petition by Dr. Rajdev Singh which too was dismissed in limine and an S.L.P. was again dismissed by the Supreme Court. A question was raised in this appeal as to what was the effect of the cancellation/modification/clarification of the sale certificate dated 14-8-1964 touching the suit property. This cancellation etc. of the sale certificate was finally settled by the authority on 25-10-1968. The decree of the trial Court was recorded on 27-11-1968. As decided on the question of jurisdiction of the Civil Court, the trial Court had every jurisdiction to determine what was the extent of the land sold and there had been such a finding in favour of the plaintiffs. On issue No. 4 before the trial Court, if the defendant was a bona fide purchaser for value without notice and was, as such, entitled to the benefit of Section 41, T.P. Act, the trial Court gave a finding against the defendants. He relied on an admission by Dr. Rajdev Singh that no measurement of the land was ever done in his presence. The first appellate Court, however, placed reliance on a map allegedly prepared and the time of demarcation. It is already been held that not more than 2.042 acres land could have been sold in auction and this fact has been considered up to the highest level by the concerned authority and the representation to the Government of India by Dr. Rajdeo Singh on this point was disallowed, a writ application was also dismissed and so was the S.L.P. before the Supreme Court. Thus the order dated 25-10-1968 has attained a finality and both under an interpretation of the legislation and under the order of the cancellation/modification/clarification of the sale certificate dated 14-8- 1964, it could only be held that only 2.042 acres of land was sold to Dr. Rajdpv Singh and the effect of such cancellation etc. is only to reinforce the finding of the Civil Court otherwise arrived at on proper interpretation of the law.
23. In this connection also certain case laws were relied upon by the defendant-respondents. In the case reported in (1973) 3 SCC 731 : AIR 1972 Supreme Court 2533 it was held that under the Evacuee Interest (Separation) Act, Section 17 did not empower the competent officer to review this earlier order. In the case at our hands, however, it was not reviewing an order it was only correcting an error of the nature of the arithmetical errors. It is worth noting that this correction was accepted by the Chief Settlement Commissioner and it got the Page: 383 stamp of correctness as the Government, the High Court and the Supreme Court refused to interfere with it. Reliance was placed further on a decision of the Bombay High Court reported in AIR 1979 Bombay 143, wherein it was held that under the Displaced Persons (Compensation and Rehabilitation), Act, 1944, Section 24 did not empower the Chief Settlement Commissioner to decide about the validity or otherwise of the property conveyed by sale deed as it was not an order passed by such authority. This again may be distinguished on facts from the case at our hands. Here the sale is not questioned it was only the order of the issuance of the sale certificate which was challenged and that too only to the extent of the area indicated. Thus it may not be stated that the Chief Settlement Commissioner had wrongly exercised his powers. It was urged that in allowing the application of the other party to record an order for correction of the sale certificate Dr. Rajdev Singh was not heard at all and this was an illegality which could not have been supported. This point was urged, it can be presumed, in the writ petition which was dismissed in limine and the S.L.P. was dismissed. It is not open for Dr. Rajdev Singh to agitate this point over again.
24. The two points framed as substantial question of law have now been decided in favour of the appellants. The appeal must be and is allowed. The judgment of the lower appellate Court is set aside and that of the trial Court is restored. The parties are to bear their own costs."
D) Jagdish Prasad Patel (Dead) Thr. Legal Representatives and another Vs. Shivnath and others; (2019) 6 SCC 82:
"44. In the suit for declaration of title and possession, the respondent-plaintiffs could succeed only on the strength of their own title and not on the weakness of the case of the appellant-defendants. The burden is on the respondent-plaintiffs to establish their title to the suit properties to show that they are entitled for a decree for declaration. The respondent-plaintiffs have neither produced the title document i.e. patta-lease which the respondent-plaintiffs are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.
45. 45. Observing that in a suit for declaration of title, the respondent-plaintiffs are to succeed only on the strength of their own title irrespective of whether the appellant-defendants have proved their case or not, in Union of India v. Vasavi Coop. Housing Society Ltd. [Union of India v. Vasavi Coop. Housing Society Ltd., (2014) 2 SCC 269 : (2014) 2 SCC (Civ) 66] , it was held as under : (SCC p. 275, para 15)
15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
E) Mahendra Pratap Dubey Vs. Managing Officer, Evacuee property and others; (2019) 11 SCC 599:
"2. Be it noted that the statutory authorities and the High Court have concurrently found that Ram Abhilakh (through whom the appellant claims to have acquired title in the suit property), to whom notice was issued by the authority and opportunity was given to produce the official record in his possession to substantiate that he had acquired title in the suit property pursuant to a transfer by the Custodian in favour of Mohd. Sattar alias Mokhan, failed to do so. He avoided filing any document. Further, there was no record or any entry in the official register to show that any sale certificate was issued in favour of Mohd. Sattar alias Mokhan by the Department concerned.
5. In the present appeal, the appellant has contended that if an Indian citizen had left India to live in Pakistan, his property would become an evacuee property as defined in Section 2(f) of the 1950 Act; and whence the Custodian alone would have the power under Section 10 of the 1950 Act to transfer such property in the manner prescribed by the 1950 Act. Further, such evacuee property could indeed be acquired under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 by the Central Government, consequent to which the property would lose the status of an evacuee property and the Custodian would be divested of its power to deal with the same. That property would then become a part of the compensation pool as envisaged under Section 14 of the 1954 Act and only thereafter, could the Managing Officer assume control or authority over the same and dispose of it in the manner specified under Section 20 of the 1954 Act. On facts, it has been argued on behalf of the appellant that Respondent 3 admits that the property is an evacuee property and has not claimed that it is a compensation pool property. For, in the suit filed by the husband of Respondent 3 (Subrati), being Suit No. 520 of 1982, it was asserted that the evacuee property has been auctioned off to Respondent 3 by the Custodian; but in the subject application dated 30-4-1982 filed before the Managing Officer, Respondent 3 claims that the suit property was purchased in an auction and consideration amount was deposited in the office of the Managing Officer and the sale certificate dated 7-8-1965 came to be issued in her favour by the Managing Officer. Similarly, in the counter-affidavit filed before this Court, Respondent 3 had claimed that the property was transferred to her by the Managing Officer. In substance, the argument is that Respondent 3 has taken a contradictory stand before different authorities and courts, which must militate against her.
6. The contesting respondent, on the other hand, would contend that regard being had to the concurrent finding of fact recorded by the authorities concerned and also upheld by the High Court, the sole issue raised by the appellant about the jurisdiction of the Managing Officer does not merit any interference. An abstract debate bereft of any proof produced by the appellant to establish that the suit property was transferred to Respondent 4 (Mohd. Sattar alias Mokhan) by the Custodian in terms of sale certificate dated 30-11-1968, does not merit examination. The question whether such a sale certificate was issued and, in fact, exists, could certainly be examined by the Managing Officer before whom the subject application dated 30-4-1982 was filed by Respondent 3, by virtue of the enabling provision in Section 19 and the bar of jurisdiction of the civil courts in terms of Section 36 of the 1954 Act. In such an enquiry, all aspects were open including to determine as to whether the sale certificate issued in favour of Respondent 3 by the office of the Managing Officer, is valid. It is submitted that all the authorities including the High Court have concurrently found that the sale certificate issued in favour of Respondent 3 in respect of suit property dated 7-8-1965 was genuine and valid. Furthermore, it has been concurrently found against the appellant that despite sufficient opportunity, his predecessor-in-title Ram Abhilakh s/o Parmanand did not produce any document; nor did Respondent 4 (Mohd. Sattar alias Mokhan), through whom he (appellant) had claimed right, title and interest in the suit property, produce the original transfer document issued by the Custodian to prove the genuineness of the transaction and further there was no record or any entry in the official register evidencing that any sale certificate was issued in favour of Respondent 4 (Mohd. Sattar alias Mokhan) by the Department. In that view of the matter, the question of law sought to be agitated by the appellant about the authority of the Managing Officer to decide the matter in issue concerning the sale certificate issued by the Custodian of Evacuee Property under the 1950 Act would be tenuous and the Court should not enter upon that issue."
F) Rani Chander Kanta (D) Thr. Lrs. and others Vs. Union of India and another; 2024 SCC Online SC 78:
"2. In September 1954, the Rehabilitation Department through Regional Settlement Commissioner, Jullundur, invited tenders for sale of Spring Field described as Property No. 268/5. Vide the aforesaid tender, the entire evacuee property was put to sale. Raja Dhian Singh being in occupation of the said property was given first option to purchase the same vide letter dated 3-12-1954. Immediately thereafter, vide letter dated 10-12-1954, late Raja Dhian Singh gave his consent to purchase the property in question, known as Spring Field for consideration of Rs 40,000. The sale was confirmed in his favour vide letter dated 17-12-1954. Letter of allotment dated 3-2-1955 was issued in favour of late Raja Dhian Singh regarding the property in question. It was also stated that the compensation due to him will be adjusted against the sale price.
On 2-2-1957, Raja Dhian Singh expired. A fresh sale certificate was issued in favour of the legal heirs of late Raja Dhian Singh on 24-3-1976. After the aforesaid certificate, the appellants approached the revenue/municipal authorities for transfer of the property in their names. However, the municipal authorities raised objection stating that serial number and evacuee number were not in consonance with the land in their possession. The area and boundaries of the property had not been provided.
Thereafter, the appellants approached the Chief Settlement Commissioner. Letter dated 28-3-1976 was issued by the Tax Superintendent, Municipal Corporation, Shimla stating that Spring Field comprised of 10,582 sq yd. On 5-5-1976, another sale certificate was issued by the Department of Rehabilitation mentioning the area of the property as 2786 sq yd. Conveyance deed was also executed on 5-10-1977.
Immediately thereafter, the appellants made representation for correction of the area, as mentioned in the conveyance deed and the sale certificate. The Chief Settlement Commissioner, treating the representation of the appellants as revision petition, passed an order dated 25-6-1979, in exercise of powers under Section 24(1) of the 1954 Act. It was held that the area sold to the appellants was 2786 sq yd, however, at the spot it was found as 3836.06 sq yd. The appellants were directed to pay cost of the additional area of 1050.06 sq yd @ Rs 4 per square yard, according to the reserved price.
Review petition was filed by the appellants against order dated 25-6-1979. However, the appellants deposited a sum of Rs 4200.24 for the additional area without prejudice to their rights. On 21-8-1979, a fresh conveyance deed was executed in favour of the appellants with reference to the boundaries and the area mentioned in the sale certificate dated 5-5-1976 i.e. 3836.06 sq yd."
G) Bhaskar Laxman and others Vs. Karamveer Kakasasheb Wagh Education Society and others; (2013) 11 SCC 531:
"42. 42. While dealing with the conduct of the parties, we may also notice the submission of the learned counsel for Respondent 1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2-5-2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners.
47. A mere reference to the order dated 2-5-2003, en passant, in the order dated 24-7-2006 does not serve the requirement of disclosure. It is not for the court to look into every word of the pleadings, documents and annexures to fish out a fact. It is for the litigant to come upfront and clean with all material facts and then, on the basis of the submissions made by the learned counsel, leave it to the court to determine whether or not a particular fact is relevant for arriving at a decision. Unfortunately, the petitioners have not done this and must suffer the consequence thereof."
68. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law reports cited by learned counsel for the parties.
69. In view of facts and circumstances of the present case, without entering into merits of the case, the preliminary objection raised by Mrs. Radhika Singh, learned counsel for the respondent in regard to maintainability of writ petition on the ground that the petitioners' conduct is marked by suppression of material documents and proceedings, deliberate withholding of the valuation report, reliance on an ex parte order of 1959 while concealing the compensation already received and indulgence in parallel litigations constitutes nothing short of a fraud upon this Hon'ble Court and gross abuse of the process of law. Such a litigant, who approaches the Court with unclean hands, engages in sharp practices and seeks to mislead the judicial process cannot be permitted to invoke the extraordinary writ jurisdiction under Article 226 of the Constitution of India.
70. It is a settled principle of law that a litigant approaching this Hon'ble Court under Article 226 must come with clean hands, full disclosure, and bona fide intent. The petitioners herein, having suppressed the pendency of civil proceedings on the very same property, and having indulged in forum shopping, disentitles themselves from any equitable relief from this Hon'ble Court.
71. The petitioner instituted Civil Suit No.63 of 1982 concerning the same property, which was dismissed and first appeal filed against that order has also been dismissed and the second appeal is pending before the High Court. This material fact has been suppressed by the petitioners in the writ petition, which is abuse of process of the Court. Non disclosure of filing of suit and its dismissal, filing of first appeal and its dismissal and pendency of second appeal concerning the same property is concealment of material fact from this Court, therefore, they are not entitled to get relief in exercise of power under Article 226 of the Constitution of India.
72. Sri Puneet Chandra, learned counsel for the respondents has also pointed out that for maintaining the writ petition Union of India and State of U.P. are necessary party, who have not been impleaded in the array of parties of respondents, therefore, the writ petition is liable to be dismissed for non joinder of parties. Non -joinder of Union of India / Custodian General of Evacuee property, the property vested in the Union of India under the Administration of Evacuee Property Act, 1950, any order affecting the vesting, management or title of such property directly impacts the statutory interests of the Union / Custodian making them a necessary party to the adjudication.
73. No endeavour has ever been made on the preliminary objection raised by Sri Puneet Chandra, Advocate to seek time to implead Union of India and State of U.P. by learned counsel for the petitioners. The petitioners instituted Civil Suit No.63 of 1982 regarding same property with the issues framed in 1986. Despite its pendency, the present writ petition was filed in 1995 without disclosure, which is a clear suppression of facts. The petitioners have also pursued other connected suits and appeals, which have been concealed in the present writ petition.
74. While replying the preliminary objection raised by the respondents, learned Senior Counsel for the petitioners argued entire matter, which was replied by learned counsel for the respondents on merits.
75. In view of the fact that material fact was suppressed and was not disclosed in the writ petition in regard to filing of Suit No.63 of 1982 and its dismissal, filing of first appeal and its dismissal and pendency of second appeal against those orders, the petitioners have not approached to this Court with clean hands, therefore, are not entitled to get relief in exercise of power under Article 226 of Constitution of India.
76. Accordingly, without entering into merits of the case, the writ petition is dismissed on the ground of suppression of material facts from this Court and non joinder of necessary party.
(Irshad Ali,J.) September 10, 2025 Adarsh K Singh