Munshi Ram vs Union of India and others

Mahajan, J.—This is a petition under Article 226 of the Constitution of India and is directed against the order of Mr. M.L. Vijh, Appellate Officer, passed under the Evacuee Interest (Separation) Act, 1951-hereinafter known as the Act-allowing co-sharer''s appeal against the order of the Competent Officer allowing the sitting allottee to purchase the property for Rs. 18,000/-

The property in dispute is house No. 2/1884, situate in Lohiya Bazar, Lashkar (Gwalior). In this property the evacuee-mortgagor''s interest was -/7/- annas and the same is the interest of the non-evacuee mortgagee. The other co-shares of the value of -/4/91/2 pies sold their interest to one Babu by a deed of sale dated the 19th July, 1948. This sale was confirmed by the Custodian Department on the 21st March, 19-55. The remaining -/4/21/2 pies interest, is evacuee interest and vests in the Custodian Evacuee Property. It would be apparent from this that the property in dispute is a composite property and it is common ground that neither the non-evacuee co-sharers nor the mortgagee are interested in it. Their interest is only that the property be put to auction. The only person who is interested in purchasing the property u/s 10 of the Act was the sitting allottee. He maintained that the value of the property was less than Rs. 10,000/, In the first instance the department fixed the price as Rs. 10,500/- but that price was later on, at the instance of Babu, raised to Rs. 18,000/ because Babu stated that he was prepared to pay Rs. 18,000/ for the property and that the property be put to auction with Rs. 18,000/- as his initial bid. It is no doubt true that at no point of time the department assessed the market value of the property but they took the offer of Babu as the basic price of the property, because it was at this price that the sitting allottee was given the option to purchase the same. The sitting allottee refused to purchase the property at Rs. 18,000/-. In this connection reference may be made to the order of the Competent Officer, Exhibit P. 2, wherein in paragraph 3 it is stated as under:

The sitting allottee''s application will, therefore, remain suspended and it will be revived only when if at all the property does not fetch Rs. 18,000/- or more because he is not prepared to buy at Rs. 18.000/-.

Against this order an appeal was taken by the sitting allottee. His contention in appeal was that the department should have assessed the market value of the property. The appellate authority was of the view that no useful purpose would be served in fixing the market value as the sitting allottee was not prepared to take the property at Rs. 18,000/-. Reference in this connection may be made to Exhibit P-5. However, sometime later the sitting allottee seems to have changed bis mind and made an application to Competent Officer to sell the property to him for Rs. 18,000/-. On this application an ex-parte order was passed by the Competent Officer granting the application. However, Babu co-sharer moved an application for revision of that order. When the matter was to be heard he was absent and the order selling the property to the Petitioner at Rs. 18,000/- was passed. Soon after the order was passed, Babu appeared but his objections were rejected on the ground that they had become belated. Against this order Babu went up in appeal and the impugned order was passed. The impugned order is to the effect that the property be auctioned. It is against this order that the present petition has been directed.

Mr. Narula, learned Counsel for the Petitioner, has raised the following contentions:

that before the Petitioner could exercise his option it was incumbent on the department to determine the market value of the property ;

the order of the Competent Officer was not appealable ;

that he had the right to exercise the option at any time before the auction took place ; and

that the order of Mr. Vijh was based on two grounds, one of which was positively erroneous.

So far as the first contention is concerned, I have already, in the earlier part of the judgment, more or less disposed of the same. The Petitioner was offered the property for Rs. 18,000/-, and there was the firm offer of Babu at that price. If the Petitioner was not prepared to buy the property at Rs. 18,000/-it could hardly be said that he would be willing to buy it at a higher figure because in view of Babu''s offer the market value could not be fixed below Rs. 18,000/-. Therefore, the first contention has no merit and is rejected.

With regard to the second contention, the provisions of Section 14 of the Act are clear. Any order u/s 8 or Section 10 of the Act is appealable and the order offering the property to the Petitioner at Rs. 18,000/- is an order u/s 10 and, therefore, appealable. Therefore, the second contention also fails.

With regard to the third contention, the argument is based on Rule 1 l-B(b) (iii) of the Evacuee Interest (Separation) Rules. In short the argument is that before the property was put to auction the Petitioner could have exercised the option. This may have been correct to some extent provided there was no final order passed by the Competent Officer under the Act. We have here initially the order of the Competent Officer to the effect that the property be put to auction. That order was passed in the presence of the Petitioner and he went up in appeal against that order and the appellate authority affirmed that order, with the result that that order became final and could not be called in question in view of the provisions of Section 18 of the Act. Therefore, this argument has no force.

The last contention is that the order of Mr. Vijh was based on two grounds, one of which is positively erroneous It is no doubt true that one of the grounds which prevaileo with Mr. Vijh has no force but the order can still he maintained on the second ground and I have already dealt with that ground in the earlier part of my judgment.

That being so, I dismiss this petition, but will make no order as to costs.