B. L. Yadav, J. - (1.) BY this petition under Article 226 of the Constitution of India the orders dated 21-9-74, 24-8-71 and 26-3-68 passed by the Deputy Director of Consolidation, Assistant Settlement Officer (Consolidation) and the Consolidation Officer respectively, are sought to be quashed.
(2.) THE facts of the case are few and simple. Plot No. 574-A was recorded as Sir of one Kazi Abdul Salam and Plot No. 574-B and 575 were recorded as Sir of Smt. Hiyatunnisa. But in the basic year these plots were entered as Bhumidhari of one Suraj Bali, respondent no. 4. THE petitioner filed an objection under Section 9-A (2) of the U. P. Consolidation of Holdings Act claiming sirdari rights on the basis of possession since 1357 Fasli, i. e. prior to the enforcement of UP ZA and LR Act. THEse plots were, in fact entered in the name of one Deo Saran on the basis of a sale deed executed in his favour in 1942. THE basic year entries in the name of respondent no. 4 were sought to be expunged. Respondent No. 4 Suraj Bali denied the objection of the petitioner alleging that Custodian declared the land in dispute as evacuee under the proceedings under Section 7 of the Administration of Evacuee Properties Act, 1950 (for short the Act), and he has purchased the land from the Custodian on the basis of a sale certificate and he became Bhumidhar. The petitioner has got no right or title nor Deo Saran has any right or title. As a consequence of the land in dispute having vested in the Custodian the same was put to auction and respondent no. 4 purchased it and consequently a sale certificate was issued in his name and since then he is in possession as Bhumidhar and was correctly recorded in the basic year. In case the petitioner was feeling aggrieved by the sale certificate in the name of respondent no. 4 he should have preferred an appeal under Section 24 of the Act or a revision to the Custodian General under Section 27. But he did not do so and those orders passed by the Custodian became final. The jurisdiction of any Civil or Revenue Court was barred by Section 46 of the Act and jurisdiction of consolidation authorities was barred by Section 48-A of the U. P. Consolidation of Holdings Act, 1953. All the consolidation authorities have decided the case against the petitioner and in favour of respondent no. 4. Learned counsel for the petitioner urged that in 1942 Deo Saran had obtained a sale deed from the proprietors of the plots in dispute and the petitioner came in possession since 1357 Fasli and matured rights under Section 210 of the UP ZA and LR Act. It was further urged that one Smt. Hiyatunnisa, who was recorded over plot nos. 574-B and 575, did not leave India, hence there was no question of her land being declared evacuee. The name of respondent no. 4 was illegally entered in revenue papers consequent upon the order of Assistant Custodian dated 29-2-60. It was further urged that the orders passed under the Act were illegal and could be challenged before the consolidation authorities. But latter failed to decide the same stating that they have no jurisdiction in view of Section 48-A of the U. P. Consolidation of Holdings Act. Reliance was placed on Abdul Majid Haji Mohammad v. P. R. Nayak, AIR 1951 Bom. 440 and on Bai Mariyam Haji Ali Mohammad v. The Asstt. Custodian, AIR 1952 Sau. 1.
(3.) LEARNED counsel for respondent no. 4, on the other hand urged that the order passed by the Custodian became final and in case the petitioner was feeling aggrieved either with the order of Custodian or with the sale certificate in favour of respondent no. 4, he should have preferred an appeal under Section 24 or a revision under section 27 of the Act. But he did not do so and the said order cannot be challenged. Any civil or revenue suit to challenge the order of the Custodian was barred by Section 46 of the Act. Further under Section 48-A of the U. P. Consolidation of Holdings Act it has been clearly provided that the orders passed by the Custodian cannot be challenged before the consolidation authorities. One of the factum of presence or absence of Smt. Hiyatunnisa on the relevant date must have been challenged by the petitioner when the proceedings under the Act were in progress. Having heard the learned counsellor the parties I am of the view that the submissions made on behalf of the petitioner have got no substance. The first point for determination is as to whether the order passed by the Custodian declaring the land as evacuee property can be challenged before the consolidation authorities. Suffice it to say that under Section 7 of the Act a notification is made about certain land being declared as evacuee property and notices are issued to the concerned tenure holders that in case they dispute, they should file objections. The petitioner did not file objection. In any case, the petitioner should have filed an appeal or revision under Section 24 or 27 of the Act. But that was also not done. The land in dispute being declared as evacuee property became final in all respects. The sale certificate was issued in favour of the respondent no. 4. That was also not challenged by the petitioner. As regards the cases relied upon on behalf of the petitioner, Abdul Majid Haji Mohammad v. P. R. Nayak (Supra) and Bai Mariyam Haji Ali Mohammad v. The Asstt. Custodian (Supra), are the cases on different facts and principles. In those cases the Court has ruled that if orders of the Custodian are without jurisdiction, they can be challenged by filing a suit in civil or revenue Court and Section 46 (Forty six) of the Act would not operate as a bar. But in the instant case the order of the Custodian was not without jurisdiction, hence the bar of Section 46 (Forty six) would be operative. Hence the sale certificate issued in the name of respondent no. 4 and the order of the Custodian became final and the same cannot be challenged either by filing a civil or revenue suit.;