Sunil Ambwani, J. - (1.) HEARD Shri M. Islam, learned counsel for the petitioner and Shri Sharad Mandhyan for respondent No. 3.
(2.) A Revision No. 5 of 1990 under Section 27 of the Administration of Evacuee Property Act, 1950, was allowed by the Assistant Custodian General (Evacuee Property) Lucknow, and the matter was remanded for deciding the matter afresh. The Writ Petitions filed by the aggrieved parties against the judgment of the revisional Court were dismissed on May 23, 2003. Smt. Wafia Khatoon-the petitioner in Writ Petition No. 6930 of 1995 filed a Civil Appeal No. 3680 of 2006, and Shri Wasi Ahmad-the petitioner in Writ Petition No. 13294 of 1995, filed Civil Appeal No. 3681 of 2006 in the Supreme Court. By a common judgment both the Civil Appeals were disposed of with following directions: "Leave granted. The question which arose for consideration in both these appeals inter alia related to the jurisdiction of the Small Causes Court as Revisonal Authority under Section 27 of the Administration of Evacuee Property Act, 1950. The appellants herein have raised several other contentious issues before the High Court including the one whether the revision application should have been entertained after a long time although no limitation period there for is specified. Unfortunately the High Court did not apply its mind to the said important issues. Having heard the learned counsel for the parties, we are of the opinion that the High Court should consider the matter afresh after giving an opportunity of hearing to the parties herein. Accordingly, we set aside the impugned judgments and remit the matters to the High Court for consideration thereof afresh. The High Court shall not only deal with the jurisdictional question but also other questions raised in these petitions. Keeping in view the fact that the auction has taken place in the year 1980, we would request the High Court to consider the desirability of disposing of the matter as expeditiously as possible. With the aforesaid observations and directions the appeals are disposed of. Sd/- S.B. Sinha, J. Sd/- Dalveer Bhandari, J." The facts giving rise to these writ petitions are that one Shri Manzoor Ahmad the Zamindar of the disputed land died in 1947. Some of his heirs migrated to Pakistan in 1947. Their shares in the property were vested in the custodian. Smt. Wafia Khatoon filed an application before the Assistant Custodian on 23.5.1981 stating that she was a co-sharer with her evacuee sisters and was in possession of their shares in plot No. 169 which may be transferred to her. By a sale certificate dated 16.4.1982 the share of the evacuees was transferred in her favour. A revision was filed after 8 years on 8.2.1990 by Shri Mahfooz Ahmad-respondent No. 3, in Writ Petition No. 6930 of 1995, under Section 27 of the Administration of Evacuee Property Act, 1950, on the ground that he was a co-sharer on the disputed plot and that the consolidation authorities have wrongly prepared a chak without including his name. No right or title could be passed on to the petitioner as he was having a preferential right. The Custodian General did not grant prior approval of the sale under Section 10 of the Act and no notice was issued to him before the transfer. The Judge, Small Causes Court, Lucknow, acting as a revisional Court, found that the revisionist Shri Mahfooz Ahmad has a prima facie case. He should have been given an opportunity to prove his case before the custodian. The Judge, Small Causes Court remanded the matter to the Assistant Custodian for giving an opportunity to both the parties to be heard before a decision is taken, giving rise to these writ petitions. Shri M. Islam, learned counsel for the petitioner would contend that the Judge, Small Causes Court did not have jurisdiction to hear the revision. By a Notification dated 3.7.1980, (R.A.-2) the powers of the Assistant Custodian General to decide revisions under Section 27 of the Act was superseded. Thereafter by a Notification dated 16.1.1986 (RA-2) these powers were vested in Secretary, Department of Revenue, Government of Uttar Pradesh. Shri Mahfooz Ahmad filed a writ petition against the sale certificate which was not pursued and was dismissed for want of prosecution. The revision filed after 8 years with full knowledge of the proceedings was barred by the law of limitation, and was as such liable to be dismissed.
(3.) SHRI Sharad Mandhyan appearing for the respondent No. 3, on the other hand, would submit that the Judge, Small Causes Court was authorised to act as Assistant Custodian to maintain and decide the revisions under Section 27 of the Act. The authorities under the Consolidation of Holdings Act did not have jurisdiction to determine the title of the evacuee property, [vide Smt. Masoom Banoo v. Hari Singh and others, AIR 1974 All 462. He would submit that the dispute was only with respect to shares between co-sharers. The order passed by the consolidation authorities will prevail over the authorities under the Act of 1950. In the present case, the question of title was an issue. The sale also required approval of the Custodian General under Section 10 of the Act which was not taken, and thus the order of consolidation authorities will not bind on the authorities under the Act of 1950. By a Notification dated 31.10.1977 the Government of India, Ministry of Civil Supplies and Rehabilitation, appointed the Judge, Small Causes Court as Assistant Custodian General under the Act of 1950. By another Notification dated 29.12.1977 under Sections 24 and 27 of the Act of 1950, the powers of the Custodian General were vested in the Judge, Small Causes Court and that further by a Notification dated 3.7.1980 issued under Sections 24, 27 and 10 (2) read with Rule 30-A these powers were also vested in the Assistant Custodian General. The preliminary objections taken by the petitioner before the Judge, Small Causes Court, Lucknow, were rejected by him by his order dated 26.5.1988 (Annexure CA-2 to the counter affidavit). The Judge, Small Causes Court found that by the Notification dated 5.4.1977 the Commissioner-cum-Secretary, Department of Revenue, Government of UP. was appointed as Deputy Custodian General and that by Notification dated 6.4.1977 he was also given powers as Custodian General. A fresh Notification was issued on 16.1.1986 which superseded the earlier Notifications dated 6.4.1977 and 3.7.1980, and under which the Secretary, Department of Revenue, Government of U.P. was delegated with the powers of Deputy Custodian General, Evacuee Property. He was also given powers under Sections 24, 27,10(2) (o) and Rule 30-A.;