MAHENDRA PRATAP DUBEY versus MANAGING OFFICER, EVACUEE PROPERTY & ORS. on 16 November 2018

[2018] 13 S.C.R. 791

MAHENDRA PRATAP DUBEY

v.

MANAGING OFFICER, EVACUEE PROPERTY & ORS.

(Civil Appeal No. 6384 of 2010)

NOVEMBER 16, 2018

[A.M. KHANWILKAR AND

DR. DHANANJAYA Y CHANDRACHUD, JJ.]

Displaced Persons (Compensation and Rehabilitation) Act,1954: s. 10(2)(o) – Sale certificate issued by the custodian of evacueeproperty – Validity of – Jurisdiction of the Managing Officer todetermine – On facts, application by respondent no. 3 claiming thatshe was occupying the suit property as a owner, having purchasedthe same at a public auction and in furtherance whereof salecertificate was issued in her favour and that respondent No.4,through whom the appellant claimed his right, title and interest inthe suit property, was causing obstruction to her possession in thesuit property on the basis of some fictitious sale certificate – Allowedby the Managing Officer (Evacuee Property) and thereafter, upheldby the Authorities and the High Court – On appeal, held: Applicationwas moved by respondent no.3 and not by appellant or any of hisstated predecessor-in-title, as such the enquiry into the applicationought to be limited to the fact as to whether the documents reliedupon by respondent no.3 before the authority, to claim that she hadacquired right, title and interest in the suit property as a consequenceof issuance of certificate of sale, were genuine – Furthermore, theappellant has not been able to establish any causal connection withthe suit property either on account of allotment of the suit propertyto him or his predecessors, by the competent authority or otherwise– Respondent no.4 has not claimed right in respect of the suitproperty in any other capacity and appellant has failed to producethe sale certificate in favour of respondent no.4 issued by theCustodian of Evacuee Property – In view thereof, respondent no. 4,or any person claiming through him-appellant, could not bepermitted to question the validity of the sale certificate issued bythe Managing Officer in favour of respondent No.3 and the issueof jurisdiction of the Managing Officer to deal with the subjectproperty.

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ADismissing the appeal, the Court

HELD: 1.1 The application was moved by respondent No.3and not by the appellant or any of his stated predecessor(s)-in-title. In that situation, the enquiry into the application ought tobe limited to the fact as to whether the documents relied upon byBrespondent No.3 before the authority, to claim that she hadacquired right, title and interest in the suit property as aconsequence of issuance of certificate of sale, were genuine.Neither the appellant nor his predecessor-in-title has challengedthe validity of the said official documents issued in favour ofrespondent No.3 before the concerned authority or otherwise.CIn the proceedings initiated by respondent No.3, because of thestand taken by her that respondent No.4 was also claiming right,title and interest in the suit property by virtue of a sale certificateissued in his favour by the Custodian, notices were issued by thecompetent authority to him as well as others to evoke theirDresponse. However, they failed to produce any document, muchless original documents, evidencing that the Custodian had issueda sale certificate in respect of the suit property in favour ofrespondent No.4. [Para 10][800-D-F]

1.2 The appellant as well as respondent No.4 having failedEto produce any original document and since there was no recordor entry in the official register to show that such a sale certificatewas issued in favour of respondent No.4 by the Department, asconcurrently found by the authorities, it must follow that theirclaim in respect of the suit property remained unsubstantiated.In other words, the appellant has not been able to establish anyFcausal connection with the suit property either on account ofallotment of the suit property to him or his predecessors, by thecompetent authority or otherwise. [Para 11][800-G-H; 801-A]

1.3 The finding of fact and conclusion that sale certificateissued in favour of respondent no. 3 is valid, came to be affirmedGby the Appellate Authority as well as the Revisional Authority forwhich reason the High Court declined to interfere. Once it isheld that no sale certificate issued in favour of respondent No.4by the Custodian of Evacuee Property, under the 1950 Act isforthcoming nor any entry in the official register is found in that H

regard, all persons claiming through him (including the appellant)must suffer the consequences of such a finding of fact. Notably,respondent No.4 has not claimed right in respect of the suitproperty in any other capacity, and in that view of the matter, itcannot be understood as to how respondent no. 4, or any personclaiming through him, could be permitted to question the validityof the sale certificate issued by the Managing Officer in favour ofrespondent No.3. [Para 12][802-E-G]

1.4 The appellant, having failed to produce the salecertificate in favour of respondent No.4 issued by the Custodianof Evacuee Property under the 1950 Act, he cannot be heard toraise the issue of jurisdiction of the Managing Officer to dealwith the subject property, including the validity of the salecertificate issued in favour of respondent No.3. A deeper enquiryas to how the Managing Officer assumed jurisdiction to issue thesale certificate in favour of respondent No.3 would becomerelevant and essential only if the appellant was able to substantiatethe fact, at least prima facie, that the suit property was, in fact,transferred in favour of respondent No.4 by the Custodian ofEvacuee Property under the 1950 Act. [Para 14][803-B-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6384of 2010

From the Judgment and Order dated 26.02.2007 of the High Courtof Judicature at Allahabad in Civil Misc. Writ Petition No. 30158 of1995.

Anurag Dubey, Ms. Anu Sawhney, Bhupendra Kr. Bhardwaj,Sanchit Maheshwari for Mohan Pandey, Advs. for the appellant.

Ms. Meenakshi Kalra, E. C. Agrawala, Rajesh Kumar Advs forthe Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. This appeal takes exception to the judgment and order dated26[th] February, 2007 passed by the High Court of Judicature at Allahabadin Civil Misc. Writ Petition No.30158 of 1995, whereby the writ petitionfiled by the appellant challenging the decision of the Chief Settlement A

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ACommissioner, Board of Revenue U.P. at Lucknow was rejected. TheAssistant Custodian/Managing Officer (Evacuee Property), Board ofRevenue, Lucknow had allowed the application filed by respondent No.3- Mainmum Nissa @ Kumani, W/o Subrati @ Algu, R/o VillageSingramau, Tehsil Shahganj, District Jaunpur, U.P., accepting her claimthat she was occupying the suit property as owner thereof, havingBpurchased the same at a public auction and in furtherance whereof acertificate of sale came to be issued in her favour and that respondentNo.4 - Mohd. Sattar @ Mokhan (through whom the appellant claims hisright, title and interest in the suit property) was causing obstruction toher possession in the suit property on the basis of some fictitious saleCcertificate dated 30[th] September, 1968.

2. Be it noted that the statutory authorities and the High Courthave concurrently found that Ram Abhilakh (through whom the appellantclaims to have acquired title in the suit property), to whom notice wasissued by the authority and opportunity was given to produce the officialDrecord in his possession to substantiate that he had acquired title in thesuit property pursuant to a transfer by the Custodian in favour of Md.Sattar @ Mokhan, failed to do so. He avoided filing any document.Further, there was no record or any entry in the official register to showthat any sale certificate was issued in favour of Md. Sattar @ Mokhanby the concerned department.E

3. On the other hand, it has been concurrently held that respondentNo.3 had produced a certificate of sale dated 7[th] August, 1965 in herfavour issued by the competent authority in reference to an auctionconducted on 12[th] July, 1962, at which she purchased the subject property.Further, there was nothing to discredit the documents and the testimonyFof respondent No.3 that she had acquired right, title and interest in thesuit property by virtue of a certificate of sale in her favour. Such findinghas been recorded by the first authority vide judgment and order dated4[th] May, 1985 and confirmed by the Collector, District Jaunpur, bydismissing the appeal preferred by the appellant bearing Case No.8/G1984/522 decided on 7[th] October, 1988 and further upheld by the ChiefSettlement Commissioner, Board of Revenue, Lucknow, U.P., being therevisional authority, by dismissing the revision of the appellant bearingRevision No.1(RR) No./1988-89) District Jaunpur, decided on 5[th] August,1995. The High Court, therefore, declined to interfere in exercise of its writ jurisdiction and dismissed the writ petition preferred by the appellantvide impugned judgment and order.

4. The moot question agitated by the appellant before the concernedauthorities and up till the High Court, was that the Managing Officer,appointed under the Displaced Persons (Compensation andRehabilitation) Act, 1954 had no jurisdiction to determine the validity ofa sale certificate issued by the Custodian of Evacuee Property in exerciseof the powers conferred upon him under Section 10(2)(o) of theAdministration of Evacuee Property Act, 1950. This contention, however,did not find favour with either the authorities or the High Court in viewof the findings of fact recorded against the appellant. The appellant wasneither able to assail the concurrent findings of fact recorded by theauthorities before the High Court nor did he produce the original salecertificate dated 30[th] November, 1968 purportedly issued in favour ofrespondent No.4 (Md. Sattar @ Mokhan), who had transferred theproperty to one Shri Vishwanath S/o Kukhekahar who in turn transferredthe same to Ram Abhilakh S/o Parmananad, R/o Shahganj, DistrictJaunpur, from whom the appellant claims to have acquired the same.

5. In the present appeal, the appellant has contended that if anIndian citizen had left India to live in Pakistan, his property would becomean evacuee property as defined in Section 2(f) of the 1950 Act; andwhence the Custodian alone would have the power under Section 10 ofthe 1950 Act to transfer such property in the manner prescribed by the1950 Act. Further, such evacuee property could indeed be acquired underSection 12 of the Displaced Persons (Compensation and Rehabilitation)Act, 1954 by the Central Government, consequent to which the propertywould lose the status of an evacuee property and the Custodian wouldbe divested of its power to deal with the same. That property would thenbecome a part of the compensation pool as envisaged under Section 14of the 1954 Act and only thereafter, could the Managing Officer assumecontrol or authority over the same and dispose it of in the manner specifiedunder Section 20 of the 1954 Act. On facts, it has been argued onbehalf of the appellant that respondent No.3 admits that the property isan evacuee property and has not claimed that it is a compensation poolproperty. For, in the suit filed by the husband of respondent No.3 (Subrati),being suit No.520/1982, it was asserted that the evacuee property hasbeen auctioned off to respondent No.3 by the Custodian; but in the subject A

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Aapplication dated 30[th] April, 1982 field before the Managing Officer,respondent No.3 claims that the suit property was purchased in an auctionand consideration amount was deposited in the office of the ManagingOfficer and the sale certificate dated 7[th] August, 1965 came to be issuedin her favour by the Managing Officer. Similarly, in the counter affidavitfiled before this Court, respondent No.3 had claimed that the propertyBwas transferred to her by the Managing Officer. In substance, theargument is that respondent No.3 has taken a contradictory stand beforedifferent authorities and courts, which must militate against her.

6. The contesting respondent, on the other hand, would contendthat regard being had to the concurrent finding of fact recorded by theCauthorities concerned and also upheld by the High Court, the sole issueraised by the appellant about the jurisdiction of the Managing Officerdoes not merit any interference. An abstract debate bereft of any proofproduced by the appellant to establish that the suit property wastransferred to respondent No.4 (Md. Sattar @ Mokhan) by the CustodianDin terms of sale certificate dated 30[th] November, 1968, does not meritexamination. The question whether such a sale certificate was issuedand, in fact, exists, could certainly be examined by the Managing Officerbefore whom the subject application dated 30[th] April, 1982 was filed byrespondent No.3, by virtue of the enabling provision in Section 19 andthe bar of jurisdiction of the civil courts in terms of Section 36 of 1954EAct. In such an enquiry, all aspects were open including to determine asto whether the sale certificate issued in favour of respondent No.3 bythe office of the Managing Officer, is valid. It is submitted that all theauthorities including the High Court have concurrently found that thesale certificate issued in favour of respondent No.3 in respect of suitFproperty dated 7[th] August, 1965 was genuine and valid. Furthermore, ithas been concurrently found against the appellant that despite sufficientopportunity, his predecessor-in-title Ram Abhilakh S/o Parmanand didnot produce any document; nor did respondent No.4 (Md. Sattar @Mokhan), through whom he (appellant) had claimed right, title and interest in the suit property, produce the original transfer document issued by theGCustodian to prove the genuineness of the transaction and further therewas no record or any entry in the official register evidencing that anysale certificate was issued in favour of respondent No.4 (Md. Sattar @Mokhan) by the department. In that view of the matter, the question oflaw sought to be agitated by the appellant about the authority of the H

Managing Officer to decide the matter in issue concerning the salecertificate issued by the Custodian of Evacuee Property under the 1950Act would be tenuous and the Court should not enter upon that issue.

7. We have heard Mr. Anurag Dubey, learned counsel appearingfor the appellant and Ms. Meenakshi Kalra, learned counsel appearingfor the respondents.

8. Indisputably, the respondent No.3 had filed an application beforethe Assistant Custodian/Managing Officer (Evacuee Property), Boardof Revenue, Lucknow, which highlighted two aspects. First, that it bedeclared or directed that she had acquired right, title and interest in thesuit property by virtue of the sale certificate dated 7[th] August, 1965issued by the Managing Officer. Second, the claim of respondent No.4(Md. Sattar @ Mokhan) that the suit property was transferred in hisfavour by virtue of a sale certificate dated 30[th] November, 1968, issuedby the Custodian is non-existent and not genuine.

9. Respondent No.3 in the subject application had asserted thatshe had purchased the suit property at a public auction held on 12[th] July,1962; and after payment of the sale consideration in the office of theManaging Officer, a certificate of sale was issued in her favour on 7[th]August, 1965. To buttress this submission, reliance has been placed byrespondent No.3 - Mainmum Nissa @ Kumani on (i) Receipt issued bythe Office of the Regional Settlement Commissioner, U.P., acceptingthe consideration amount paid by her, (ii) Acceptance Letter issued bythe Assistant Custodian, Government of India, dated 10[th] June, 1965,and (iii) Certificate of Sale issued under the signature of the ManagingOfficer, Varanasi. The said documents read thus:

“Annexure -R2

EVACUEE SIRAI

FORM NO.1

OFFICE OF THE REGIONAL SETTLEMENT COMMISSIONERUTTAR PRADESHSrl. No. 4209Receipt No.30

Receipt No.30Dated: 12.7.62

Received from Mst. Maimunnisha alias Kumman, 170/- (RupeesOne hundred seventy only) by cash on account of rent / licence A

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fee / licence money in respect of / as earnest money forKacchaKhander house of Evacuee Sirai in Village Sgramau, Teh.Shahganj, Jaunpur.

Previous Receipt No. Dated

Note: Where payment is made by cheque and the cheque isdishonoured by the bank, the receipt will be rendered in valid.

H/B (highest bid) 1700/-

Sd/ (illegible)12.7.62

Jr. Accountant

Subject to the approval of higher authorities”

“Annexure R-3

Form No. IX

ACCEPTANCE LETTER

GOVERNMENT OF INDIA

MINISTER OF REHABILITATION

Office of the Assistant Custodian

District VaranasiDated: 10.6.1965

Smt. Maimun Nisha alias Kumman w/o Subrati alias (illegible)Shahganj, Jaunpur.

Subject: Sale Kaccha House Khander,

Situated at: Sigramau, Shahganj, Jaunpur.

Evacuee: Sirai

You are hereby informed that you bid dated 12 July, 1962 for Rs.1700/- for the above noted property, has been accepted. You arefurther required to send by pot or to produce before theundersigned a treasury challan for the deposit of balance moneyof sale price amounting to Rs.1530/-, under Central head “S-Deposits and Advances – Part IV Suspense Accounts – P.A.O.

Suspense – Transactions Adjustable with Pay and Accounts Office,Rehabilitation Delhi – Finally Adjustable by P.A.O. under the HeadS – Deposits and Advances – Part II Deposits not bearing Interest– IVIL Deposits – Personal Deposits – Deposits on Account ofUn-acquired Evacuee Property”, within 15 days from the date ofissue of this letter.

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Sd/-(B.B. VERMA)Assistant Custodian”

“Annexure R-4

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GOVERNMENT OF INDIAMINISTRY OF REHABILITATIONOFFICE OF THE MANAGING OFFICERVARANASIAPPENDIX XXIICERTIFICATE OF SALE(Free Hold Property)Rule 90(15)

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Dated:7.8.1965

This is to certify that Smt. Maimun Nisha alias Kamman w/oSubrati resident of Sigramau, Shahganj, Jaunpur having given theEhighest bid at a sale by public auction held in pursuance of thepowers conferred upon me under Section 20 of the DisplacedPersons (Compensation and Rehabilitation) Act, 1954 (44 of 1954)on the 12[th] day of July 1962 of the properly described in theSchedule and his bid having been accepted and the valid thereofFhaving been paid by him in cash/ by adjustment of compensationdue on his and his associates claims has been declared thepurchaser of the said property with effect from 25[th] day of June1965. Given under my hand and seal of my office this 26[th] June of1965.

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SCHEDULEKaccha House KhanderEVACUEESigramau, EvacueeSirai Sale price 1700/-Shahganj, SiraiJaunpur H

[2018] 13 S.C.R.

AEast – House of Jokhu& FieldWest – House of Gaya DargaiNorth – Road South – House of Dase B

Sd/-

(B.B. Verma)Managing OfficerVaranasi”

10. From the acceptance letter, it is noticeable that it has beenCissued under the signature of one B.B. Verma, Assistant Custodian andthe same person issued a certificate of sale in his capacity as ManagingOfficer. It must be kept in mind that the application was moved byrespondent No.3 and not by the appellant or any of his statedpredecessor(s)-in-title. In that situation, the enquiry into the applicationought to be limited to the fact as to whether the documents relied uponDby respondent No.3 before the authority, to claim that she had acquiredright, title and interest in the suit property as a consequence of issuanceof certificate of sale, were genuine. Neither the appellant nor hispredecessor-in-title has challenged the validity of the said officialdocuments issued in favour of respondent No.3 before the concernedEauthority or otherwise. In the proceedings initiated by respondent No.3,because of the stand taken by her that respondent No.4 (Md. Sattar @Mokhan) was also claiming right, title and interest in the suit property byvirtue of a sale certificate issued in his favour by the Custodian, noticeswere issued by the competent authority to him as well as Vishwanath S/o Sukhi and Ram Abhilakh S/o Parmanand to evoke their response.FDespite opportunity given by the competent authority, they failed toproduce any document, much less original documents, evidencing thatthe Custodian had issued a sale certificate in respect of the suit propertyin favour of respondent No.4 (Md. Sattar @ Mokhan).

11. The appellant as well as respondent No.4 having failed toGproduce any original document and since there was no record or entry inthe official register to show that such a sale certificate was issued infavour of respondent No.4 (Md. Sattar @ Mokhan) by the Department,as concurrently found by the authorities, it must follow that their claim inrespect of the suit property remained unsubstantiated. In other words, H

the appellant has not been able to establish any causal connection withthe suit property either on account of allotment of the suit property tohim or his predecessors, by the competent authority or otherwise. TheAssistant Custodian on analysing the factual position in its judgmentobserved thus:

“I have gone through the file and found there is no such documentshave been filed by the objector whose genuineness can beexamined except the objection which has been filed on behalf ofO.P. Sri Ram Abhilakh stating that this tribunal has got nojurisdiction to examine the genuineness of sale certificate thatwhich one is correct out of these two documents.

In this regard I have to mention that this has been the consistentview of the higher tribunal under the O.P. (C & P) Act No. 44 of1954, that in a case in which the nature of each complaint is thatsome forged deeds have been reported to have been issued bythe Assistant Castodian/Managing Officer the said officer canmeet enquiries and can ask the person concerned to produced therelevant papers to examine their veracity find out if any suchdeed was at all issued. In this connection a copy of order of SriPrem Narain, Settlement Commissioner (Judicial) passed on11.10.76 in appeal No.14/SC/PN/U/70,SriMohd. Shamim Vs.Managing Officer, Lucknow was filed as an examper, in which ithas been held that the Managing Officer can certainly look intothe matter on receipt of complaint and can pass appropriate orderon that basis. Accordingly, the parties were directed to producerelevant papers, the applicant Smt. MaimunNissa filed the original& photo copy of receipt of earnest money, acceptance letter dt.10.6.65 and the sale certificate dt. 7.7.65 referred to above, andsupported her contention on affidavit. Sri Ram Abhilekh did notproduce any document and also did not produce Sri Mohd. Satar@ Mohkan the alleged original transferred from the custodian toprove the genuineness of the transaction. On the other hand theevaded to file the documentation the plea that the same cannot belooked into by the tribunal; which as stated above can always belooked in this circumstances of the case.

In the absence of any papers or evidence of Sri Ram Abilekhthe matter was examined with the available records.

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The connected file shows that first the house was put tosale on 16.3.62 when the bid of Smt. Amina was the highestfor Rs.1210/- and an amount of Rs.121/- was deposited butsubsequently for non deposit the balance money the salewas cancelled and the earnest money deposited wasforfeited.

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It further seems from the documents filed that the housewas put to sale on 12.7.82 and it was knocked down in favourof MaimunNissa, who deposited Rs.170/- as earnest moneyand on receipt of acceptance letter dt.10.6….. she depositedthe balance sale consideration money on 26.6.65 andthereafter the certificate of sale was issued in her favouron 7.7.65 by Sri B.B. Verma, Managing Officer, Varanasi. Ihave seen the original documents. There is nothing todiscredit the said documents and the testimony of Smt.MaimumNissa. There is no record in the office or any entryin the office register to show that any Sale Certificate wasissued in favour of Mohd. Sattar @ Mohkan by thisdepartment. The sale certificate issued in favour of Smt.MaimunNissa is accordingly held valid.”

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(emphasis supplied)

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12. This finding of fact and conclusion came to be affirmed by theAppellate Authority as well as the Revisional Authority for which reasonthe High Court declined to interfere. Once it is held that no sale certificateissued in favour of respondent No.4 (Md. Sattar @ Mokhan) by theCustodian of Evacuee Property, under the 1950 Act is forthcoming norFany entry in the official register is found in that regard, all persons claimingthrough him (including the appellant) must suffer the consequences ofsuch a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan)has not claimed right in respect of the suit property in any other capacity,and in that view of the matter, we fail to understand as to how Md.Sattar @ Mokhan, or any person claiming through him, could be permittedGto question the validity of the sale certificate dated 7[th] August, 1965issued by the Managing Officer in favour of respondent No.3 (MainmumNissa @ Kumani).

13. The appellant had placed emphasis on the finding rendered inthe civil suit filed by the husband of respondent No.3, for permanentH

injunction against respondent No.4 (Md. Sattar @ Mokhan). However,we agree with the concurrent view taken by the authority concernedthat the said finding will be of no avail to the appellant. For, respondentNo. 3 was not impleaded as a party in the said suit.

14. Suffice it to observe that the appellant, having failed to producethe sale certificate in favour of respondent No.4 (Md. Sattar @ Mokhan)issued by the Custodian of Evacuee Property under the 1950 Act, hecannot be heard to raise the issue of jurisdiction of the Managing Officerto deal with the subject property, including the validity of the salecertificate issued in favour of respondent No.3. A deeper enquiry as tohow the Managing Officer assumed jurisdiction to issue the sale certificatein favour of respondent No.3 would become relevant and essential onlyif the appellant was able to substantiate the fact, at least prima facie,that the suit property was, in fact, transferred in favour of respondentNo.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Propertyunder the 1950 Act. Accordingly, this appeal must fail.

15. In view of above, the appeal is dismissed with costs.

Nidhi Jain

Appeal dismissed.

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