Gopi Nath, J. - (1.) THESE two Spe cial Appeals have been filed against an order of a learned Single Judge, dated 12-11- 1965, allowing a Writ Petition. The Assistant Custodian General, Eva cuee Property and the Assistant Custo dian are the appellants in Special Ap peal No. 419 of 1966 and Prasadi Singh and others are the appellants in Special Appeal 725 of 1965. These appellants were respondents in the Writ Petition. The Writ Petn. was filed by Ali Abbas and four others- They challenged an auction sale held by the Assistant Cus todian, Evacuee Property- The auction was held in respect of the one half share interest of one Mohammed Zaki in the plots auctioned.
(2.) MOHAMMAD Razi and Moham mad Zaki were brothers. Mohammad Zaki migrated to Pakistan. His inter est in the plots in dispute was declar ed evacuee property and vested in the Custodian. The Custodian decided to dis pose of the property. Mohammad Zaki's interest in the property, i. e. his half share in a number of plots, was ac cordingly auctioned and sold to Pra sadi Singh and others for a sum of Rs. 9,500/- on 30-11-1959. Ali Abbas and four others who were the sons of Mo hammad Razi filed an objection to the auction sale. Their case was that the plots in dispute were waqf property and were not the personal property of Mohammad Razi and Mohammad Zaki that hence the property did not become evacuee property and could not be sold by the Custodian. The objection was dismissed by the Assistant Custodian on 11-8-1959. A revision filed against that order was dismissed by the Assistant Custodian General on 6-11-1959. The petitioners prayed for the quashing of the auction sale held on 30-11-1958 and the two orders passed by the Custodian authorities dated 11-8-1959 and 16-11-1959 by means of the Writ Petition. Two points were raised before the learned Single Judge: viz., (1) that the property in dispute was waqf property and did not be come an evacuee property by the mi gration of Mohammad Zaki to Pakis tan; and (2) that the auction sale was in valid as it was held in violation of the provisions of Section 10 (2) (o) of the Administration of Evacuee Property Act (hereinafter referred to as the Act). Section 10 (2) (o) of the Act reads: "........................... (2) the Custodian may, for any of the pur pose aforesaid, (a) (o) transfer in any manner what soever any evacuee property notwith standing anything to the contrary con tained in any law or agreement relat ing thereto; Provided that the Custodian shall not sell any immovable property or any business or other undertaking of the evacuee except with the previous approval of the Custodian General." The contention was that the auc tion sale in the instant case was held without the previous approval of the Custodian General and it was accord ingly bad in law. The learned Single Judge ne gatived the first contention regarding the property in dispute being waqf pro perty. He upheld the second conten tion that the auction sale was held in contravention of the provisions of Sec tion 10 (2) (o) of the Act He according ly allowed the petition.
(3.) THE challenge to the auction sale on the ground of the violation of Section 10 (2) (o) of the Act was never raised by the petitioner-respondents be fore the authorities below. But since it arose out of admitted facts of the case the learned Single Judge gave effect to it.;