Delhi District Court
Mohd. Akhtar vs ) Smt. Suman Jain on 19 November, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
APPELLATE OFFICER UNDER THE EVACUEE
INTEREST (SEPARATION) ACT, 1951,
ADDITIONAL DISTRICT JUDGE01 (CENTRAL) TIS HAZARI
COURTS, DELHI
RCA - 60929/2016
Mohd. Akhtar,
S/o Late Mohd. Shera @ Sheruddin,
R/o A168, Ambedkar Colony, Gali No12,
Chattarpur, New Delhi.
Also at :
Akhtar Farm House (Near Nagar Farm House)
Gadiaipur Village, New Delhi.
......Appellant
Versus
1) Smt. Suman Jain,
W/o Sh. V.K. Jain,
R/O D10, Prashant Vihar, Delhi110085.
2) Union of India,
Through its Secretary,
Ministry of Home Affairs,
(Rehabilitation Division)
Jaisalmer House, Man Singh Road,
New Delhi110011.
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3) State of NCT of Delhi,
Through its Secretary,
Department of Land & Building,
Evacuee Property Cell, CWing,
IP Estate, Vikas Bhavan, New Delhi110002.
.......Respondents
Date of institution of appeal : 28.02.2012
Date of reserving the order : 22.10.2016
Date of pronouncement of order : 19.11.2016
ORDER ON APPLICATION U/S 14 PROVISIO OF EVACUEE
INTEREST (SEPARATION) ACT, 1951 READ WITH
SECTION 14 OF THE LIMITATION ACT
1. Appellant had moved the application under Section 14
Proviso of the Evacuee Interest (Separation) Act, 1951 (hereinafter
referred as the Act) read with Section 14 of The Limitation Act alongwith
the appeal, seeking condonation of delay of 32 days in filing the appeal
on the premise that the applicant had been earlier represented by his
attorney Sh. V.K. Jain and was under the impression that the certified
copies must have been obtained by his attorney but in fact he has been
cheated by his attorney, who before revenue authorities moved application
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for mutation of entire land of applicant/appellant in favour of respondent
no1, wife of attorney. Applicant/appellant canceled the power of
attorney of Sh. V.K. Jain by virtue of notice dated 11.01.2012. Also, is
the case of the applicant/appellant that time from 11.01.2012 till
22.02.2012 was spent bonafidely in prosecuting with due diligence the
application under Section 16 of the Act before the Ld. Competent Officer
for modification and correction of the impugned judgment dated
19.11.2011. Accordingly, condonation of delay had been sought.
2. Impugned judgment is of date 19.11.2011. This appeal has
been filed on 28.02.2012 with the delay of 34 days after reducing six days
of the period for applying and obtaining of certified copies of the
impugned judgment i.e., w.e.f. 25.11.2011 to 01.12.2011.
3. Counsel for respondent no1 in reply termed the application
to be bereft of sufficient reason for condonation of delay terming the
appeal to be an abuse of process of law, both appeal and the application
to be not maintainable praying for their dismissal.
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4. Counsel for parties argued in terms of their averments in the
application and the reply.
5. The Apex Court in cases of i) Collector, Land Acquisition,
Anantnag and another Vs. Mst. Katiji and others, AIR 1987 SC 1353;
ii) N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123 and the
Delhi High Court in case of Union of India Vs. R.P. Builders, AIR 1995
Delhi 57 have held that court could adopt liberal approach in condonation
of delay and every day's delay must be explained does not mean that a
pendantic approach should be made. The doctrine must be applied in
rational common sense, pragmatic manner and when substantial justice
and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other side cannot claim
to have vested right in injustice being done because of a non deliberate
delay.
6. In the backdrop of above elicited law laid down in the
pronouncements, considering the submissions, the cause of substantial
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justice deserves to be preferred, in the fact of the matter. In the fact of the
matter, the application for condonation of delay in filing appeal is
allowed and delay in filing appeal is condoned.
ORDER ON APPEAL
7. The present appeal under Section 14 of the Evacuee Interest
(Separation) Act, 1951 read with Section 151 of the Code of Civil
Procedure, 1908 (in short CPC) is directed against the impugned
judgment of Sh. Ajay Goel, Ld. SCJCumCompetent Officer, Delhi,
dated 19.11.2011, thereby allowing the claim petition of
appellant/claimant through attorney Sh. V.K. Jain, bearing Case No.
01/2011, titled "Mohd. Akhtar Vs. Union of India & Anr.," in terms
thereof.
8. Feeling aggrieved with the order of the trial court, present
appeal was preferred by the appellant on the premise that (i) attorney had
misused his power given to him under the GPA in order to grab the land
of the appellant/claimant by concealing actual real and material facts
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before the Ld. Competent Officer, Revenue authorities and other forums
and had taken the steps prejudicial and injurious to the interests of the
appellant/claimant, giving wrongful gain to his wife Smt. Suman Jain by
making unauthorized and unwarranted pleadings and prayed for
unwarranted reliefs before Ld. Competent Officer, which were neither
warranted by law nor warranted under the facts and circumstances of the
case; (ii) Ld. Competent Officer had committed a serious error by
mentioning the words "claimant/assignee/successor" in the operative
portion of the impugned order thus giving undue and unwarranted benefit
to the respondent no1 being a third person not directly, indirectly or
remotely connected with the proceedings between the appellant under the
Administration of Evacuee Property Act, 1950 and the proceedings under
Section 5 and 10 of the Act; (iii) Ld. Competent Officer failed to
appreciate that by merely making the pleadings regarding assignment
deeds and mentioning the words "claimant/assignee/successor" in the
prayer clause of claim petition the assignee or successor did not become
decree holders when the claimant was present and on the record; (iv) Ld.
Competent Officer had failed to appreciate that the prayer made by the
attorney for mutation of the entire land in the name of respondent no1,
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his wife, who was neither party to the proceedings nor remotely
concerned with the proceedings before the Hon'ble High Court of Delhi,
before the Ld. Assistant Settlement Commissioner and before Ld.
Competent Officer; (v) there was a collusion between Ld. Competent
Officer on the one hand and respondent no1 and her husband on the
other hand; (vi) impugned order was beyond the pleadings and contrary
to the law, rules and the order dated 09.09.2010 of Hon'ble High Court of
Delhi in WP 1768789 of 2006 where admittedly it was the present
appellant/claimant who was the petitioner and in whose favour the relief
was granted by the Hon'ble High Court of Delhi and even the respondent
no1 was not even in the picture; (vii) Ld. Competent Officer had failed
to appreciate that the order dated 26.08.2011, passed by Assistant
Settlement CommissionercumAsstt. Custodian General proved to the
hilt that it was Mohd. Akhtar, who was petitioner and who had moved the
petition before Assistant Custodian General in pursuance to order dated
09.09.2010, passed by Hon'ble High Court of Delhi in WP (Civil) No.
1768789 of 2006, titled "Mr. Akhtar & Ors. Vs. Union of India & Ors."
and Smt. Suman Jain was neither a party nor had any direct or indirect
interest at that moment of time in the litigation; (viii) Ld. Competent
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Officer failed to appreciate that order dated 26.08.2011, passed by
Assistant Settlement Commissioner, Commissionercum Assistant
Custodian General clearly showed that it was only the appellant Mohd.
Akhtar, who has claimed the relief as Successor in interest of Shera @
Sheruddin, having absolute interest in the land; (ix) impugned order to
the extent of passing a decree of mutation and possession in favour of
claimant or assignee was untenable and against the spirit of law because
the Ld. Competent Officer had himself held that he had no jurisdiction to
travel beyond order dated 26.08.2011, passed by Assistant Settlement
Commissioner/Asstt. Custodian General; (x) impugned order needs
correction to the extent of elimination of the word assignee/successor in
the operative portion of the order since mere mentioning of words
Assignee/Successor in some places in the judgment did not create any
right in favour of respondent no1 for mutation; (xi) Ld. Competent
Officer had failed to appreciate that the definition of claim as per Section
2(b) of the act does not include any claim of assignee; (xii) the decree
could have been passed only in favour of appellant/claimant, hence
mentioning of the word "assignee/successor" was a misnomer against the
spirit of the act and the pleadings and the mentioning of said two words
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in the judgment and decree had caused havoc to the appellant, which
words need to be eliminated from judgment and order dated 19.11.2011 to
give effect to the spirit of law; (xiii) even the preamble of the claim
petition did not include or prayed for any relief in favour of assignee or
respondent no1; (xiv) as per para3 of the claim petition, the appellant
was in exclusive possession of the land measuring 32 bigha arising out of
Khasra No. 354 to 358 and 361, hence the decree and order was to be
passed in his name only to the exclusion of all; (xv) after considering the
facts and circumstances of the present case as well as the factum of the
possession of appellant, herein over the land Hon'ble High Court passed
the interim order dated 04.12.2006, which was made absolute vide order
dated 08.04.2009; (xvi) the decree could have been passed only in favour
of the appellant and not any assignee or successor when neither the
assignee or the successor were parties to the litigation; (xvii) the facts and
judgments passed in the present case clearly proved that Sh. Shera was
declared nonevacuee and it was his property which was claimed by the
appellant/claimant and as a matter of fact Sh.Shera during his lifetime
had not created any interest with regard to any interest with regards to any
person in the said property. Hence, there was no claim of the assignee in
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view of Section 2 (b) of the Act, before the Ld. Competent Officer, who
had no jurisdiction to determine any such issue. Appellant/claimant
prayed for setting aside of the impugned order.
9. Respondents No.1 filed objection/counter affidavit to the
appeal taking preliminary objections viz. (i) the impugned order had
attained finality as the same was affirmed on 03.12.2011 by the Appellate
Authority under the Act, in RCA No. 26/2011 and as such it was not open
for the appellant to file the present appeal as the same was hit under
Section 18 of The Evacuee Interest (Separation) Act, 1951; (ii) present
appeal was an abuse of process of law and filed without any cause of
action, however, by concealing the true and correct facts related to the
execution of the various documents including the registered assignment
deeds in favour of the respondent no1 and particularly the order passed
by the Appellate Court in RCA No. 26/2011 on 03.12.2011 in which the
appellant himself was the respondent no3 and he contested the appeal
before the Appellate Authority; (iii) the present appeal was totally
misconceived and the appellant could not be permitted even to prosecute
the same, which had been filed to drag the respondent no1 in a frivolous
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litigation; (iv) mere making allegation that fraud had been committed on
the appellant and there had been any alleged collusion between the
respondent no1 and the Ld. Competent Officer, who passed the
impugned order, would not be sufficient to maintain the present appeal,
so liable to be dismissed; (v) it was an admitted position that the
appellant had assigned all his rights pending with the land and building
department in favour of respondent no1, as mentioned in the series of the
documents, which had never been challenged by him and as such
appellant did not have any right to make any allegation that the
respondent no1 had no authority or right to approach the Executing
Court for mutation of her name or any recognition by Ld. SCJ in the
impugned order. Therefore, the appeal had been filed on mischievous
and contemptuous allegations and contrary to the true and correct facts
and by concealing the true and correct facts; (vi) appellant had turned
dishonest and tried to create cloud over the rights of respondent no1 by
making vague, unspecific and false allegations against the husband of
respondent no1; (vii) appellant had misrepresented to the respondent
no1 to purchase the land by not disclosing the true and correct facts
relating to the land, execution of documents by him in favour of some
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other persons and various litigations had been projected due to illegal acts
of the appellant and respondent no1 was dragged in those litigations, so
appellant had committed fraud against the respondent no1; (viii)
respondent no1 was assignee of decree holder and as such she stepped
into the shoe of the appellant in view of the documents executed in her
favour. Accordingly, Ld. Competent Officer had issued directions in case
no. 1/2011 for carrying out the changes in the revenue record relating to
the property/land admeasuring 31 bigha, 5 biswa comprising in Khasra
No. 355 (416), 358 (505), 354 (416), 356 (503), 357 (819) and 361 (2
6) in village Gadaipur, Mehrauli, Delhi, by mutating the name of
respondent no1 being an assignee; (ix) respondent no1 got the
possession of the land as appellant had sold the land to the respondent
no1 by virtue of various documents executed in favour of respondent
no1 against consideration, hence respondent no1 became entitled to
seek the execution of the judgment and decree passed by Ld. SCJ under
Order XXI Rule 16 CPC; (x) appellant had not approached with clean
hand before this Court; (xi) respondent no1 moved an application dated
01.12.2011 before the revenue authorities alongwith relevant documents
by mentioning the entire relevant facts alongwith the certified copy of the
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order passed by Ld. SCJ and sought the mutation of her name relating to
the land as mentioned herein above; (xii) appellant without any authority
and justification had got issued the legal notice dated 11.01.2002,
whereby attempted to revoke the power of attorney, executed in favour of
husband of respondent no1 and the said notice was replied to on behalf
of husband of respondent no1 through his advocates vide reply dated
12.01.012; (xiii) appellant did not have any right whatsoever to file the
present appeal and all the rights have been devolved and vested in the
respondent no1; and (xiv) the appeal was time barred. Respondent
denied that there had been any misrepresentation on the part of the
respondent no1 before any authority in any manner whatsoever, relating
to the mutation of the name of respondent no1. Also has been averred
that the execution petition by the Assignee was maintainable under the
provisions of Order XXI Rule 16 CPC. The contents of the afore elicited
applications were totally misconceived in view of the fact that any such
omission had taken place relating to deleting the name of respondent no1
particularly when no such relief was sought for by the appellant and
further the order dated 27.01.2012 had not been challenged and Ld. SCJ
rightly dismissed/disposed of the said applications. Appellant was in
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habit of making baseless allegations against the respondent no1. Ld.
SCJ had passed most reasonable, appropriate and correct order while
exercising the jurisdiction vested under the Act. It has been further
averred that the appellant had concealed the true and correct facts from
this Court, so appeal deserves to be dismissed with exemplary costs. The
husband of respondent no1 never misused the rights created in his
favour. Admittedly, the appellant had executed all the afore elicited
documents and as such in view of those documents it was duty of the
appellant to get all his rights assigned in favour of the respondent no1.
In view of the settled position of law, the assignment deed does not
require any recognition and the assignee had every right to get the decree
executed, there was no error in the impugned order and all the rights got
accrued in favour of respondent no1 to get the decree executed passed in
favour of the appellant. Respondent denied that there had been any kind
of wrong on the part of Mr. V.K. Jain, muchless to say his act being
criminal and malafide for grabbing the property of the appellant. The
appellant did not have any right in the land allotted to him as it passed on
to the respondent no1. There was no misappreciation on the part of Ld.
SCJ of any fact while passing the impugned order much less to say on the
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ground that the respondent no1 herein had not been any necessary party
and she had no concern with the proceedings. Also has been averred that
there was no error in the order passed by Ld. SCJ on 19.11.2011 and
21.02.2012 and those orders have been passed on the basis of facts as well
as in accordance with law. The aggrieved party had right to assail the
order passed by judicial officer, but such right does not give any
unfettered right to anybody to make allegations against the Judicial
Officer and any such act leads to the commission of contempt and
warrants the initiation of the contempt proceedings against the said
person. There was no conflict between the rights of the appellant and
respondent no1 and on declaration made by the authority on 26.08.2011
about the rights of the appellant, the entire rights got devolved upon the
respondent no1. Ld. SCJ had jurisdiction to separate and pass order as
required under the Act for segregating and separating the rights in the
land under the Act and accordingly the same had been done by the Ld.
SCJ and there had been no illegality in the order while accepting the
rights of the respondent no1 as assignee as prayed for in the petition,
based on the documents admittedly executed by the appellant and as per
the law of the land. The absolute right had been granted in favour of the
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respondent no1 relating to the land declared to be owned by the
appellant. There was no error on the part of Ld. Competent Officer in
appreciating the scope of Section 2 (b) of the Act. The petition was filed
for fulfilling the duties of the appellant to get the rights of the respondent
no1 completed. The appellant clandestinely had not quoted and
mentioned the relevant paragraphs of the petition in which the appellant
had recognized the rights of the respondent no1 and also mentioned
about the assignment deeds executed by the appellant, therefore the
incomplete quotation by the appellant would not create any right in his
favour to assail the impugned order. It has been further averred that the
appellant had become dishonest now and was committing fraud against
the respondent no1 as she came to know that the appellant had created
third party interest and had taken money from so many persons relating to
the interest in the land, which was to be determined by the L&D
Department and as such appellant cannot be permitted to plead that any
fraud had been allegedly committed against him. The appellant did not
have any right to revoke and cancel the irrevocable power of attorney
which had been executed against the consideration by executing other
documents as required in law clubbed with the possession and as such a
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reply dated 12.01.2012 was sent to the appellant and his Advocate.
However, the appellant and his Advocate willingly did not accept the
same and got it returned with wrong endorsement thereon. Rest of the
averments of the appeal have been denied by the respondent in toto.
Respondent no.1 prayed for dismissal of the appeal with costs.
10. I have heard the arguments of Sh. N. Prabhakar, Ld. counsel
for appellant; Sh. S.D. Singh and Sh. Vijay K. Gupta, Ld. counsel for
respondents no. 1; Sh. Santosh Kumar Yadav, Ld. Counsel for respondent
no. 3; perused the record of this appeal; written arguments of parties;
relied precedents and the entire record of the trial court received on
requisition and have given my thoughts to the rival contentions put forth.
11. Ld. Counsel for appellant relied upon :
(i) Kanwar Singh Saini Vs. High Court of Delhi,
MANU/SC/1111/2011; and
(ii) Pune Municipal Corporation & Anr. Vs.
Harakchand Mistrimal Solanki & Ors.,
MANU/SC/0055/2014.
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12. Ld. Counsel for respondent no1 relied upon :
i) Dhani Ram Gupta & Ors. Vs. Lala Sri Ram
& Anr. (1980) 2 SCC 162;
ii) Jagatram Ahuja Vs. Commissioner of Gift
Tax, Hyderabad (2000) 8 SCC 249;
iii) Asha M. Jain Vs. Canara Bank & Ors., 94
(2001) DLT 841 (DB) Delhi High Court;
iv) Kuldip Singh Suri Vs. Surinder Singh Kalra
& Anr., 76 (1998) DLT 232;
v) Subhash Chander Ahuja (Shri) & Ors. Vs.
Shri Ashok Kumar Ahuja & Ors., 2004 VII
AD (Delhi) 241; and
vi) Prem Raj Vs. Babu Ram, 1991, RLR 458.
13. In RCA No. 60933/2016, titled "Chelmsford Club Ltd. Vs.
Mohd. Akhtar & Ors.", the appeal preferred by the said Club against the
impugned judgment dated 19.11.2011; was allowed on 08.11.2016.
During the proceedings of aforesaid appeal, the Tehsildar and Patwari
concerned of Mehrauli District, South Delhi, had placed on record
revenue records/documents in respect of Village Gadaipur, Tehsil
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Mehrauli, District South Delhi, i.e., -
"(i) Land status report of land bearing Khasra No.
354, 355, 356, 357, 358 and 361 of Village
Gadaipur, Tehsil Mehrauli;
(ii) Jamabandi for the year 198586 in respect of
Khata No. 241 Min Khewat No. 221 Min/168
Min.;
(iii) Khasra Girdawari in respect of Khasra No. 354,
355, 356, 357, 358 and 361 for the years 2012 to
2016 and Khasra Girdawari for the years 2008 to
2012;
(iv) Certified copy of exchange of the land in
between Chelmsford Club and Central Govt. in
Case No. 2/LHC/90/1844, dated 23.09.1991 and
Intkal No. 4390 Parat Sarkar.
(v) Copy of Intkal No. 2207 Parat Sarkar and Parat
Patwar in Urdu language and Urdu to Hindi of
Parat Patwar, translated by Sh. A.A. Naiyar;
(vi) Copy of Intkal No. 2607 Parat Sarkar and Parat
Patwar in Urdu language and Urdu to Hindi of
Parat Patwar translated by Sh. A.A. Naiyar; and
(vii) Copy of Rapat Rojnamcha No. 352 for the year
197677 and Rapat Rojnamcha No. 523 for the
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year 198990 with order of Competent Authority
Delhi Land Ceiling Branch issued vide no.
1478/A/Land Ceiling/76/2285/RA/1611 dated
26.06.1990; and
(viii) Copy of Intkal No. 2653 DLF to Chemsford
Club.
The status report of land aforesaid was signed by Sh. D.S.
Verma, SDM Mehrauli, wherein it was interalia averred that :
"As per revenue record i.e., Intkal Register of Patwari,
status report of land bearing Khasra Nos. 354,355,
356, 357, 358 and 361 of Village Gadaipur, New Delhi
are as under :
1. Kh. No. 354 (416) - Kh. No. 354(416) was
mutated in the name of Central Government vide
Mutation No. 2207 dated 07.05.1960 & subsequently
transferred in the name of Chemsford Club vide
Mutation No. 2607 dated 08.07.1964. Further vide
mutation No. 4390 dated 11.06.1993 Khasra No.
354(06) stand transferred in the name of Sarkar
Daulatmadar and in possession of DEDA. Chemsford
Club is owner of Balance land 354 (410) {in
cultivatory possession (016) Ravinder Narain S/o
Rajender Narayan, (20) Gurdeep Singh S/o Hazari
Singh and (114) Self}.
2. Kh. No. 355(416) Khasra No. 355(416) was
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mutated in the name of Central Government vide
Mutation No. 2207 dated 07.05.1960 & subsequently
transferred in the name of Chemsford Club vide
Mutation No. 2607 dated 08.07.1964. Further vide
Mutation No. 4390 dated 09.06.1993 Khasra No.
355(213) was stand transferred in the name of Sarkar
Daulatmadar and in possession of DEDA. Chemsford
Club is owner of balance land 355(203) {In
cultivatory possession of Shri Gurdeep Singh S/o
Hazara Singh (09) and Shri Satpal S/o Sh. Basant
Singh (114)}
.
6. Kh. No. 361(416) Khasra No. 361(416) was
mutated in the name of Central Government vide
Mutation No. 2207 dated 07.05.1960 & subsequently
transferred in the name of Chemsford Club vide
Mutation No. 2607 dated 08.07.1964. Further vide
Mutation No. 4390 dated 09.06.1993 Khasra No.
361(019) was stand transferred in the name of Sarkar
Daulatmadar and in possession of DEDA. Chemsford
Club is owner of balance land 361(317) {In
cultivatory possession of Shri Gurdeep Singh S/o
Hazara Singh (012) Satpal S/o Basant Singh (30)
and Chemsford Club self (05)}.
The afore elicited averments in status report find support
from averments in other Revenue Records produced including Khasra
Girdawris, copies of Intakals afore elicited and Jamabandi, produced.
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The afore elicited Revenue Records in original were produced by
Tehsildar and Patwari.
14. Before proceeding further, I advert to the relevant provisions
of The Evacuee Interest (Separation) Act, 1951 mentioned as follows :
"5. Jurisdiction of competent officers. - A
competent officer shall have jurisdiction to decide any
claim relating to any composite property situate within
the limits of the local area of his jurisdiction and such
cases or classes of cases as may, by general or special
order, be transferred to him under section 19 by the
Central Government or the appellate officer.
6. Notice to submit claims. - (1) For the purpose
of determining or separating the evacuee interest in a
composite property, any competent officer having
jurisdiction over such property may, either on
information received in this behalf from the Custodian
or on an application from a claimant, issue, in such
form and manner as may be prescribed, -
(a) a general notice requiring all
persons who claim interest in such property,
and
(b) also a notice on every person who,
in the opinion of the competent officer, may
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have a claim in such property,
to submit claims, if any, in respect of that
property,
(2) An application under subsection (1) shall be
in such form and manner as may be prescribed.
(3) No application under this section shall be
entertained if filed after the expiry of one year from
the commencement of the Evacuee interest
(Separation) Amendment Act, 1960.
7. Submission of claims. - (1) Any person
claiming an interest in a composite property may,
within sixty days of the date of the issue of the general
notice or service of individual notice under section 6,
whichever is later, submit to the competent officer a
statement of his claim in writing and signed and
verified in the prescribed manner.
(2) A statement of claim under subsection (1)
shall be drawn up as far as may be, in the form of
pleadings under the Code of Civil Procedure, 1908
and shall include the following particulars, namely :
(a) the nature of the interest of the claimant in the
composite property;
(b) the estimated money value of the composite
property;
(c) where the claim is made by a cosharer or
partner, the extent of the share of the claimant and
the money value of such share;
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(d) where the claim is made by a mortgagee, -
(i) the principal money and the rate of
interest chargeable under the mortgage
deed;
(ii) payments made towards the
mortgage debt after the principal money
was advanced or deemed to have been
advanced;
(iii) the history of the mortgage debt in
so far as it is relevant to the determination
of the principal money;
(iv) particulars of the property
mortgaged and the estimated value of such
property;
(v) particulars of any property the
possession of which has been taken by the
mortgagee as security for, or in lieu of
payment of, the mortgage debt;
(vi) the total amount claimed under the
mortgage debt in accordance with the
provisions of this Act;
(e) where the claim is made by a mortgagor, the
total amount due under the mortgage debt and the
particulars necessary to determine the same;
(f) the order of preference in which the
claimant desires to have his interest separated from
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that of the evacuee under section 10;
(g) any other particulars which may be
prescribed
(3) The claimant shall, along with the submission
of claim under subsection (1), file true copies of all
documents in his possession or power on which the
claim is based and a list of any other documents
(whether in his possession or power or not) on which
he intends to rely as evidence in support of his claim;
and the claimant shall, whenever required to do so by
the competent officer, produce all the documents of
which true copies have been filed and also the
documents in his possession or power which have been
entered in the list.
(4) No document which should have been but has
not been filed in accordance with the requirements of
subsection (3), shall be received at any stage of the
proceedings without the leave of the competent officer.
8. Decision by competent officer. - (1) On
receipt of a statement of claim under section 7, the
competent officer shall, subject to the provisions of
subsections (2) and (3), hold an inquiry into the claim
in accordance with the procedure laid down in section
17 and pass an order determining the interest of the
evacuee and the claimant in the property in question
and the order shall contain all or any of the following
particulars, namely :
(a) the money value of the property;
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(b) in any case where the evacuee and the
claimant are cosharers or partners, their
respective shares in the property and the
money value of such shares;
(c) in any case where the claim is made by
a mortgagor, the amount due to the evacuee;
(d) in any case where the claim is made by
a mortgagee, the amount due under the claim
in accordance with the provisions of section 9.
(2) Where the Custodian under the Administration
of Evacuee Property Act, 1950, has determined that
the property in question or any interest therein is
evacuee property, the decision of the Custodian shall
be binding on the competent officer;
Provided that nothing contained in this subsection
shall debar the competent officer from determining the
mortgage debt in respect of such property or any
interest therein or from separating the interest of the
evacuee from that of the claimant under section 10.
(3) If there is any dispute as to whether a liability
is a mortgage debt or not or whether any claim
submitted under section 7 exists, the competent officer
shall decide such dispute.
Provided that a decree of a Civil Court (other
than an ex parte decree passed after the 14th day of
August, 1947) shall, subject to the provisions of
sections 9 and 10, be binding on the competent officer
in respect of any matter which has been finally
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decided by such decree; and where any matter was
decided by an ex parte decree passed by a Civil Court
after the 14th day of August 1947, the competent
officer may decide such matter afresh and on such
decision being made, the ex parte decree shall be
deemed to have no effect.
10. Separation of the interests of evacuees from
those of claimants in composite property. -
Notwithstanding anything to the contrary in any law
or contract or any decree or order of a Civil Court or
other authority, the competent officer may, subject to
any rules that may be made in this behalf, take all
such measures as he may consider necessary for the
purpose of separating the interests of the evacuees
from those of the claimants in any composite property,
and in particular may, -
(a) in the case of any claim of a cosharer or
partner, -
(i) direct the Custodian to pay to the
claimant the amount of money assessed in
respect of his share in the composite property or
deposit the same in a Civil Court having
jurisdiction over such property and deliver
possession of the property to the Custodian and
the claimant may withdraw the amount in
deposit in the Civil Court; or
(ii) transfer the property to the claimant on
payment by him of the amount of money
assessed in respect of the share of the evacuee in
the property, or
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(iii) sell the property and distribute the sale
proceeds thereof between the Custodian and the
claimant in proportion to the share of the
evacuee and of the claimant in the property; or
(iv) partition the property according to
shares of the evacuee and the claimant and
deliver possession of the shares allotted to the
evacuee and the claimant to the Custodian and
the claimant respectively;
(b) in the case of any claim of a mortgagor or a
mortgagee, -
(i) pay to the Custodian or the claimant the
amount payable under mortgage debt and
redeem the mortgaged property; or
(ii) sell the mortgaged property for
satisfaction of the mortgage debt and distribute
the sale proceeds thereof; or
(iii) partition the property between the
mortgagor and the mortgagee having regard to
the share to which the mortgagee would be
entitled in lieu of his claim;
(c) adopt a combination of all or some of the
aforesaid measures;
Provided that before taking any measure under this
section, the competent officer shall take into account
the order of preference filed by the claimant under
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clause (f) of subsection (2) of section 7; and in any
case where the claimant is a mortgagor and tenders
the amount due, the competent officer shall accept the
same in full satisfaction of the mortgage debt.
12. Rights of claimants inter se and by other
persons against claimants not to be affected. -
Nothing in this Chapter shall prejudice any rights in
respect of the property transferred or delivered, or
payment made, to a claimant under the provisions of
this Act which any other claimant or other persons
may be entitled by due process of law to enforce
against the claimant to whom the property is delivered
or transferred or the payment is made.
14. Appeals. - (1) Any person aggrieved by an
order of the competent officer made under section 8 or
section 10 may, within sixty days from the date of the
order prefer an appeal to the appellate officer in such
form and manner as may be prescribed.
Provided that the appellate officer may entertain the
appeal after the expiry of the said period of sixty days
if he is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time.
(2) The appellate officer may, after hearing the
appeal, confirm, vary or reverse the order appealed
from and may pass such orders as he deems fit."
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15. Vide impugned judgment, the Competent Officer had passed
a decree in favour of the claimant/assignee/successor in interest
separating his interest/share from the aforesaid composite property and
his interest/share was assessed to be 31 bigha 15 biswa. Further was
passed a decree of possession in favour of the claimant/assignee/
successor in interest only to the extent of 31 bigha 5 biswa land out of the
land comprised in Khasra No. 355 (416), 358 (505), 354 (416), 356 (5
03), 357 (819) and 361 (416) total measuring 33 bigha 15 biswa in
Village Gadaipur, Mehrauli, Delhi. The claimant/assignee/successor in
interest was also directed to handover possession of two bigha 10 biswa
land from the land comprised in Khasra No. 361 (416) in Village
Gadaipur, Mehrauli to the Custodian of Evacuee Property, Govt. of NCT
of Delhi within four weeks. Also was directed that necessary changes in
revenue/municipal records be carried out accordingly by the concerned
authorities.
16. In order dated 26.08.2011, A.S.C. had interalia held that :
"28. I am, thus, of the view that Shera @
Sher Din had never gone to Pakistan in 1947 or
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thereafter and that during the period from 1947
to 1954 he was in India at Village Mehndipur,
Distt. Bulandshahar (now in Distt.
Gautambudh Nagar), U.P. I, therefore, declare
the petitioner (Mohd. Akhtar S/o Late Shera @
Sheruddin) and his predecessors as non
evacuee and as a consequence thereof, I hold
that the land of the petitioner's predecessor,
who was a nonevacuee, could not have been
declared evacuee property.
29. The petitioner has not disputed the fact
that his father had 1/4th and 1/6th share as stated
above in the land mentioned above.
Accordingly, Shera @ Sheruddin is held
entitled to only 1/4th share in Khasra No. 195,
533, 171/2, 54/2, 28/1, 29, 30, 51/1, 61, 358,
355, 53/2, 49, 54/2, 56, 57, 58, 59, 75, 76, 77,
78, 79, 80, 81, 84, 85 & 86 while in Khasra
Nos. 662, 663, 783/1, 646/1 & 682 his share is
held to be to the extent of 1/6 th only. As
regards petitioner's entitlement, he has
succeeded to the interest of his father
alongwith other legal heirs of Shera @ Sher
Din. There seems to be some dispute between
the petitioner and other legal heirs of Shera @
Sher Din.
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30. I find that the predecessors of the
petitioner had never laid any claim in respect
of the land comprised in Khasra Nos. 354, 356,
357 and 361 in Village Gadaipur, Mehrauli,
Delhi and thus, petitioner is also not entitled to
and cannot have any claim or right in respect
thereof. I hold accordingly."
17. In para32 of the above referred order of ASC, dated
26.08.2011, it was also held that petitioner Mohd. Akhtar and his
predecessors had only partial interest to the extent of 1/4th and 1/6th share
only in the land mentioned above and since they have been found to be
nonevacuee as on the date of the partition and even thereafter, the land
subject matter of the present proceedings (except the land comprised in
Khasra Nos. 354, 356, 357 and 361) had two sets of interests, namely,
evacuee interest and nonevacuee interest making the same a Composite
Property. The land comprised in Khasra Nos. 354, 356, 357 and 361 was
not held to be composite property by the ASC in afore elicited order. Yet
the Competent Officer had dealt with the said land comprised in Khasra
Nos. 354, 356, 357 and 361 beyond his jurisdiction under Section 5 of the
Act.
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18. In the impugned judgment there is mention of the Competent
Officer of having seen the relevant revenue records produced by and on
behalf of the respondents, but no details thereof are mentioned excepting
of having seen Fard/Khatoni. In para20 of the impugned judgment there
is mention of having noted that the claimant himself admitted of fact that
land in question had been allotted to displaced persons and such allottees
were neither brought before the Competent Authority (ASC) nor before
the Competent Officer nor efforts were made by the claimant to implead
them in the present proceedings.
19. Status report of SDM Mehrauli, afore elicited, qua Khasra
Nos. 354 (416); 355 (416); and 361 (416) simplicitor reveals of the
mention of Chelmsford Club to be owner of balance land in Khasra Nos.
354 (410); 355 (203); and 361 (317) as per Intkal register of Patwari on
whose base such report was submitted by SDM Mehrauli. Had such
records were ever seen by the Competent Officer, it would have been
pointer to the necessity of issuing notices to the persons shown in
possession/ownership of parts of land in question, as deputed in the
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revenue records, in consonance with the principles of audi alteram
partem.
20. Every appeal (case) is an island into itself and may have
facets varying from each other. If an appeal is considered and disposed
of on a certain point, it cannot clog the rights of every appellant(s) on
other grounds which may be available in accordance with the law.
Therefore, the plea on this aspect and the propounded consequences
which emerge by dismissal of the appeal by the Court of Smt. Savita Rao,
Ld. Appellate Officer, bearing RCA 26/11, titled "Imran Khan @ Sukha
& Ors. Vs. UOI & Ors. on 03.12.2011; merits rejection. The said
appellants Imran Khan @ Sukha & Others claimed to be successor in
interest of said Sh. Shera and the Competent Officer had held that inter
se dispute between successors of Shera could be settled by Competent
Court of Civil jurisdiction, for which the Appellate Court had held the
ground to be valid and made it a premise for dismissal of said appeal.
Appellant put forth his case of having been cheated by his attorney, who
preferred mutation of the property of appellant in the name of wife of
attorney before the revenue authorities, whereas in terms of the
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provisions of the Act only the claimant viz., the appellant was entitled for
the laid claim. Afore elicited Section 12 of the Act embodies the
provision for the rights of claimants interse and by other persons against
claimants not to be affected by the provisions contained in ChapterII of
the Act interalia including for laying of claims before the Competent
Officer and consequent adjudication thereof.
21. The claim petition was signed by Sh. V.K. Jain as attorney of
appellant and filed before the Competent Officer with the prayer inter
alia to grant relief with assignee/successor as well. It is fact of the matter
that neither the assignee/successor in interest viz., respondent no1 Ms.
Suman Jain ever approached with claim before the Ld. Competent Officer
with regards to land in question for grant of any relief as claimed by the
appellant there in his claim through attorney nor such assignee or
successor in interest ever took any steps for her impleadment/substitution
as claimant or coclaimant in the claim petition filed before the Court of
Competent Officer. Without such assignee or successor in interest having
been impleaded/substituted as party in the claim petition, the impugned
judgment of Ld. Competent Officer was erroneous in granting relief to
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assignee/successor in interest viz., respondent no1. The said
assignee/successor in interest of appellant viz., respondent no1 never
invoked Section 12 of the Act to enforce her rights, if any.
22. In the case of Pune Municipal Corporation & Anr. Vs.
Harakchand Misirimal Solanki & Ors., MANU/SC/0055/2014, relied
upon by Ld. Counsel for appellant, the Supreme Court interalia held that
it is settled preposition of law that where a power is given to do a certain
thing in a certain way, the thing must be done in that way or not at all.
Other methods of performance are necessarily forbidden.
23. It is trite that the Competent Officer ought to have exercised
his jurisdiction in terms of Section 5 onwards of the Act on receipt of the
claim laid by the respondent no2 as attorney of respondent no1 before
him. Perusal of the Trial Court Record reveals of only issuance of notice
of the claim petition as per order dated 10.10.2011 of Competent Officer
to the opposite party i.e., (i) Union of India; and (ii) State of NCT of
Delhi and none others. The Competent Officer did not issue any general
notice requiring all persons, who claim interest in such property as well
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as notices on every person, who in opinion of Competent Officer may had
a claim in such property to submit claim, if any, in respect of property in
question for purpose of determining or separating the evacuee interest in
a composite property in terms of Section 6 of the Act. General public
including appellant, other stake holders, whose names were as
possessors/cultivators or owners of land in question, as they figured in
revenue records or were holding title documents including sale deed;
were precluded from putting forth their claims, if any, in respect of
lands/properties in question. Only after issuance of the general notice
and notices to every such person having claim in the land/property in
question; on receiving their claims, as per Section 7 of the Act, the
Competent Officer could have as per Section 8 of the Act held the inquiry
into the claim as per procedure laid in Section 17 of the Act, which
included summoning and enforcing attendance of any person and
examining him on oath; requiring the discovery and production of
documents; issuing commissions for the examination of witness; having
been vested with the powers as are vested with Civil Court under the
Code of Civil Procedure, 1908 when trying a suit. None of the sort was
done by the Competent officer, who went on to hear arguments straight
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away on appearance of the counsel for the Union of India and State of
NCT of Delhi, who did not bother to file any reply in general or specific
to the laid claim before the Competent Officer. The decision of the
Competent Officer needed to be in consonance with Section 10 of the
Act, as elicited in detail hereinabove, but even on that count the
Competent Officer did not advert to any of the modes of reliefs, as
detailed in Section 10 (a) of the Act but instead suit was decreed per
contra to provisions of the Act and the decree of possession was passed
without ascertaining, who all are relevant parties to the lis, who all were
in possession/occupation/ ownership of lands in Khasra Nos. 354 (410),
355 (203) and 361 (317). Even, in terms of Section 7 (2) (f) of the Act,
the claim laid before the Ld. Competent Officer by Sh. V.K. Jain as
attorney of appellant, was bereft of the prerequisites of the order of
preference in which the claimant desired to have his interest separated
from that of the evacuee under Section 10 of the Act.
24. In the case of Dhani Ram Gupta & Ors. (supra); the matter
was with respect to assignment of decree wherein transferee can move for
execution of decree. In the case in hand there had been no assignment of
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decree. Accordingly, the said relied precedent does not help the case of
the respondent no1.
25. In the case of Jagatram Ahuja (supra); it was interalia held
that the judicial interpretation of words and expressions of one statute can
be a guide for the interpretation of same words and expressions in the
other statute.
26. In the case in of Asha M. Jain (supra); it was held that the
power of attorneys' are for consideration within the meaning of Section
202 of the Contract Act, 1872, creating interest in the property in favour
of attorney and provisions of Section 53A of the Transfer of Property Act
would come into play and transferrer is debarred from claiming back the
property from the attorney. The claim laid before the Ld. Competent
Officer was not interse claimant and attorney/assignee. The ratio decises
of Asha M. Jain (supra); will not be of any benefit to respondent no1 in
the fact of the matter.
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27. It was held in the case of Kuldip Singh Suri (supra); that in
the absence of an express contract permitting termination of the agency,
Section 202 of the Contract Act barred such termination of agency by the
principal.
28. In the matter of Subhash Chander Ahuja (supra); interim
injunction against disposal of property was sought after 20 months of
execution of documents and it was held that it would cause bedlam and
anarchy if duly executed documents which have been granted registration
are not to be given effect to merely because a party states that fraud has
been committed not so far as execution is concerned but in their being
registered by subregistrar. No prima facie case was found in favour of
plaintiffs.
29. In the case of Prem Raj (supra); it was held that if an agent
(Power of Attorney) is appointed for consideration, then ordinarily the
Power of Attorney cannot be revoked or cancelled.
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30. In the comprehensive judgment pronounced by Supreme
Court in case Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana
& Anr., (2012) 1 SCC 656, the scope of transfer of property through sale
agreement/GPA/Wills had been considered at length. The relevant parts
of the judgment are as follows :
"Scope of power of attorney :
20. A power of attorney is not an instrument of
transfer in regard to any right, title or interest in an
immovable property. The power of attorney is creation of
an agency whereby the grantor authorises the grantee to
do the acts specified therein, on behalf of grantor, which
when executed will be binding on the grantor as if done
by him (see Section 1A and Section 2 of the Powers of
Attorney Act, 1882). It is revocable or terminable at any
time unless it is made irrevocable in a manner known to
law. Even an irrevocable attorney does not have the
effect of transferring title to the grantee.
.........................................................................................
23. Therefore, an SA/GPA/Will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain Vs. Canara Bank, that the "concept of power of attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, RCA60929/2016 Mohd. Akhtar Vs. Smt. Suman Jain & Ors. Page 41 of 44 unintendedly misleading the general public into thinking that SA/GPA/Will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/Will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/Will transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section53A of the TP Act. Such transactions cannot be relied upon or made the basis of mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/Will transactions known as GPA sales.
..........................................................................................
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26. We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/Will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/Will transactions" may also be used to obtain specific performance or to defend possession under Section 53A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/Will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision."
In view of law laid in above precedent, the legal position is now very clear that immovable properties cannot be transfered by virtue of SPA/GPA/Will and the documents executed before the date of judgment, can be used for certain purposes.
31. In view of above discussions, I find the impugned judgment to have been passed without following due procedure laid in the Act RCA60929/2016 Mohd. Akhtar Vs. Smt. Suman Jain & Ors. Page 43 of 44 necessitating it being set aside. So impugned judgment is set aside. Matter is remanded back to the Competent officer for fresh adjudication strictly in accordance with the provisions of The Evacuee Interest (Separation) Act, 1951; some of which have been elicited in detail herein above. The parties are directed to appear before the Competent Officer on 08.12.2016.
32. File of this appeal be consigned to record room and the requisitioned file of the Competent Officer be sent back against receipt. Copy of this order be also sent to the Court of Competent Officer for compliance.
Announced in open Court (GURVINDER PAL SINGH) on 19th Day of November, 2016. Addl. Distt. Judge01 (Central) Appellate Officer Under The Evacuee Interest (Separation) Act 1951.
Tis Hazari Courts, Delhi.
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