* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 18.02.2009
+ LPA No.370 of 2006
SMT. HASINA KHATOON thr. LRs. & ORS. ...APPELLANTS
Through: Mr. Hameed S. Shaikh &
Mr. Amit Kumar, Advocates.
Versus
THE COMPETENT OFFICER, DELHI & ORS. ...RESPONDENTS
Through: Ms. Jyoti Singh &
Mr. Ankur Chhibber, Advocates
for the UOI.
Mr. S.P. Jha & Mr. B.K. Jha,
Advocates for Respondents 4 to 10.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
SANJAY KISHAN KAUL, J. (Oral)
CM No.16173/2006 (u/S 151 CPC)
The application has been filed praying for exemption from
substituting the legal representatives of respondent No.12 as the
legal representatives are already on record and have been
transposed as the appellants.
The application is accordingly allowed.
LPA No.370/2006
1. The property bearing municipal No.XIV/6533 (old number),
XIV/5105 (new number), Gali Qudratullah, Quresh Nagar,
LPA No.370 of 2006 Page 1 of 9
Sadar Bazar, Delhi was co-owned by various persons pre-
partition. Some of the co-owners migrated to Pakistan and
to the extent of share of such persons the property became
an evacuee property. The evacuee interest is 17/48th share
while that of the appellants is 7/48th share. The private
respondents 4 to 10 own 24/48th share. The property, thus,
became a composite property within the meaning of
Section 2(d) of the Evacuee Interest (Separation) Act, 1951
(hereinafter referred to as the Separation Act). It became
necessary to separate the interest of evacuees in terms of
Section 10 of the Separation Act, the relevant portion of
which reads as under:
“10. Separation of the interest 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 co-sharer 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(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 theLPA No.370 of 2006 Page 2 of 9
evacuee and the claimant to the Custodian
and the claimant respectively;”(emphasis supplied)
2. The separation of interest of evacuees and non-evacuees
was not found feasible and thus the property was put to
sale in terms of Section 10(a)(iii) of the Separation Act
providing for sale of such property and distribution of sale
proceeds between the custodian and the claimants in
proportion to their respective shares. The public auctions
proved fruitless on two occasions but finally in the third
auction held on 10.2.1960 respondent No.4 was the highest
bidder. This sale was objected to by one Shri Abdul Majid
who claimed that he was willing to pay a higher price and
made a request to the Competent Officer, which request
was accepted by the Competent Officer. The appeal filed
by respondent No.4 was rejected on 21.6.1962.
Respondent No.4 consequently challenged the proceedings
in a writ petition which was disposed of on 29.3.1965 with
the direction that if the said respondent No.4 deposited a
sum of Rs.5,000.00 as security for the initial bid of
Rs.24,000.00 within a month, the property would be re-
auctioned by bids.
3. The matter dragged on for a number of years till finally on
13.12.1978 the Competent Officer issued a Sale Certificate
qua the entire property in favour of respondent No.4 as the
highest bidder. It may be noticed that Smt. Hasina
Khatoon, the appellant herein was aggrieved by the actions
of the Competent Officer as she wanted to deposit some
amounts and claim rights but the writ petition filed by her,
LPA No.370 of 2006 Page 3 of 9
being CWP No.449/1967 was dismissed for non-prosecution
on 20.1.1975 and the efforts to restore the same proved to
be unsuccessful.
4. The appellant Smt. Hasina Khatoon thereafter filed CWP
No.670/1979 seeking to challenge the Sale Certificate
issued by the Competent Officer in favour of respondent
No.4 primarily on the ground that she was willing to give a
higher bid. This writ petition was dismissed on 15.10.1979
and that order was never challenged further. The result of
the aforesaid was that the Sale Certificate issued in favour
of respondent No.4 for the whole property became final and
he consequently became the absolute owner of the
property.
5. The travails of respondent No.4 did not end as he still did
not get the possession of the property. It has already been
mentioned hereinabove that he was already owner of the
property to the extent of 24/48th share and through the
auction purchased the evacuee interest of 17/48th and the
interest of the appellants of 7/48th share. Smt. Hasina
Khatoon resisted endeavours to dispossess her on the
ground that the Competent Officer could not do so. She
also pleaded that she had carried out improvements in the
property and that there was some tacit understanding
between her and respondents 4 to 10 that she would not be
evicted from the property. Objection was also sought to be
taken by one Shri Noor Mohammad, who is a legal heir/son
of Smt. Hasina Khatoon (who is also now deceased) who
has since been transposed as an appellant. Shri Noor
LPA No.370 of 2006 Page 4 of 9
Mohammad claimed to be residing on the second floor
which he had constructed.
6. The Competent Officer, however, rejected the objections
vide order dated 26.8.1991 and held that a reading of
Section 10 of the Separation Act along with Rules 11-E
(3)(a) and 11-E(5) of the Evacuee Interest Separation Rules,
1951 (hereinafter referred to as the Evacuee Rules)
empowered the Competent Officer to do the needful.
These sub-rules have been reproduced in para 16 of the
impugned order and the same read as under:
“11-E. Sale certificate and possession.-
(1) ………………………
(2) ………………………
(3) (a) Where the property sold or transferred on partition
or otherwise is in the occupancy of a tenant, allottee or
other person entitled to occupy the same, the competent
officer shall, on the application of the purchaser or
transferee, order symbolical possession of the property to
be delivered with immediate effect, by affixing a copy of
the certificate of sale or order of transfer in some
conspicuous place on the property and by serving a notice
in Form “M” on the occupant of the property, or by
publication thereof in a newspaper having circulation in
the locality and the expenses incurred in this connection
shall be paid by the applicant.
(3) (b) ………………………………..
(4) ………………………………..
(5) Where the property is in the occupancy of a non-
evacuee claimant whose interest in the property has been
sold, and he refuses to vacate the property; in spite of the
order of the competent officer, the competent officer shall
order delivery to be made, by putting the auction-
purchaser or any person whom he may appoint to receive
delivery on his behalf, in possession of the property, and,
if need be, by removing the non-evacuee claimant.”
(emphasis supplied)
7. A reading of the aforesaid Rules show that Rule 11-E(3)(a)
of the Evacuee Rules provides for a protection to a tenant,
allottee or other person entitled to occupy the property pre-
LPA No.370 of 2006 Page 5 of 9
sale from being forcibly evicted as in such a case only
symbolic possession is to be delivered. However,
simultaneously Rule 11-E(5) of the Separation Rules clearly
provides that once interest of a non-evacuee has been sold
and he refuses to vacate the property, the Competent
Officer can order delivery to be made by putting the auction
purchaser in possession of the property by removing the
non-evacuee claimants.
8. The Competent Officer relying on the aforesaid provision
has held that he was fully empowered to put respondent
No.4 in possession. The claim of Shri Noor Mohammad was
also rejected after considering the objections and it was
concluded that if he or the other appellants had carried out
any construction without having the right or title to do so,
they could not claim any entitlement of occupation on such
construction.
9. The appeal filed by the appellant against the order dated
26.8.1991 also met the same fate on 31.10.1991 and it was
thereafter that a writ petition, being WP (C) No.3498/1991
was filed. The writ petition has been dismissed by the
impugned order dated 20.10.2005 with costs, which has
given rise to the present Letters Patent Appeal, which is the
forth tier of scrutiny as the appellants have lost in three
forums below. Not only that this is the third round of
litigation by the appellants to somehow claim rights in the
property.
10. A perusal of the impugned order shows that the only issue
urged was that the Competent Officer could not evict the
LPA No.370 of 2006 Page 6 of 9
appellants under the Separation Rules and the issues
relating to the alleged construction, etc. were not even
pleaded. It was argued on behalf of the appellants that
Section 10 of the Separation Act was the only statutory
provision.
11. The aforesaid contention has been rejected, in our
considered view, rightly so, as the powers vested under
Section 10 of the Separation Act in the Competent Officer
are subject to any Rules to be made in that behalf. No
doubt the Rules cannot be in conflict with the provisions of
the Separation Act and only in furtherance thereof. It is
clearly provided in Section 10 of the Separation Act that
where a partition is effected or where the custodian buys
out the non-evacuee co-shares or vice-versa, possession of
the property has to be delivered. The plea that only a
symbolic possession could be delivered has been negated.
12. We find that the learned single Judge in the impugned order
has succinctly analysed the scheme of the Act and the
Rules. The Rules have a statutory force and are made
under the Act. A distinction has been made as to where a
symbolic possession has to be given or not. As discussed
above symbolic possession is to be delivered where a
person in occupation has rights as a tenant, allottee or
person entitled to occupy. The reason is obvious that any
person having a legal authority or protection in that
capacity should not be dispossessed merely by sale of the
evacuee interest or otherwise. However, as a consequence
of sale non-evacuee claimant can be evicted in terms of
LPA No.370 of 2006 Page 7 of 9
Rule 11-E(5) of the Separation Rules. The appellants
contention, which is the same as before the learned single
Judge seems to obsificate the whole issue by not
recognizing the distinction in the nature of occupation in
respect of cases where symbolic possession is to be
delivered, i.e. tenant, allottee or person entitled to occupy
as against the actual possession is to be given where a non-
evacuee loses interest for consideration. The provisions of
Section 10 of the Separation Act authorize the Competent
Officer subject to the Rules made in that behalf to take all
such measures as he may consider necessary for purposes
of separating the interest of the evacuees from those of
claimant in any composite property and thus the Rules are
not ultravires or beyond the authority of the provisions of
the Separation Act. There is, in fact, no conflict either
between the sub-rules or with the Act.
13. The learned single Judge has also taken note of certain
judgements cited at the bar by the appellants including Ek
Nawaz Khan Vs. Competent Officer AIR 1960 Allahabad 626
where a trespasser was occupying a composite property. It
has rightly been observed that the said judgement does not
deal with the issue raised in the writ petition, i.e. the right
of a non-evacuee co-sharer once composite property is
sold. It has rightly been noticed that the status of the
appellants were of owners in possession whose interests
were purchased in auction and thus the possession must go
with the transfer of ownership.
LPA No.370 of 2006 Page 8 of 9
14. Learned counsel sought to rely upon the Constitution Bench
judgement of the Supreme Court in Azimunnissa & Ors. Vs.
The Deputy Custodian, Evacuee Properties, District Deoria
& Ors. AIR 1961 SC 365. However, learned counsel is not
really able to point out the relevance of that judgement
other than the fact that it deals with an evacuee property.
15. We, thus, find no merit in the appeal. We wish to add that
the present case is a classic one where the appellants have
been frustrating the perfection of title and occupation in
favour of respondent No.4 by initiating proceedings after
proceedings before different forums causing wastage of
judicial time despite settled legal principles. The appellants
have even appropriated the amounts and want to continue
to occupy the property illegally having lost the interest in
the property and are trying to stop respondent No.4 from
perfecting the title. The appellants must be burdened with
costs.
16. The appeal is accordingly dismissed with costs of
Rs.20,000.00 to respondents 4 to 10 to be paid within four
(4) weeks.
CM No.2786/2006
Dismissed.
SANJAY KISHAN KAUL, J.
FEBRUARY 18, 2009 SUDERSHAN KUMAR MISRA, J.
b’nesh
LPA No.370 of 2006 Page 9 of 9