- (1.) The writ petition is a challenge to the order made by the 3rd respondent Deputy Secretary (Rehabilitation), rejecting a petition filed under Section 15 of the Evacuee Interest (Separation) Act, 1951. The petitioners were claiming a right to the property which had been purported to be sold under the Act of 1951 in an auction held on 2.9.1960. The auction was said to have followed by a publication effected for the purpose on 26.8.1960. The confirmation letter of the sale was on 12.12.1960. The proceedings under the Act came to be taken by the authorities treating the property as evacuee property which had been subject of mortgage under two documents both dated 28.3.1946, under two transactions one in respect of 28/30th share and another in respect of 2/30th share. The mortgagee of the major share was said to be a Mohammedan who had migrated to a place now in Pakistan.
(2.) The petitioners' claim was that they had purchased the equity of redemption from the original mortgagor who had secured a pre-emption decree dated 1.3.1946. In the matter of narration of the petitioners case, it divulges details of prior proceedings that an attempt had been made by the petitioners to state that the property did not involve any evacuee interest but was repulsed by the authorities and that became final. The fact that this was a property that was declared evacuee property and that it required a separation of interest itself is not in challenge presently. The case of the petitioners is built on an edifice that the property had been mortgaged to persons who had left India at the time of partition and it took the character of evacuee property for administration in the hands of custodian of evacuee property.
(3.) The challenge in the petition was that when the petitioners applied before the 3rd respondent to contend that the purported sale was not valid, they did so pointing out to the fact that the relevant rules providing for sale of composite property by public auction mandated under Rule 11 (B) sub clause (3) that notice of intended sale was to be given at least 15 days before to the proposed sale. Rule 5 refers to when a sale could take place after the date of publication. The verbatim re-production of the subrule would require to be done and therefore, the same is re-produced as under:- "11-B. Mode of separation of interest of evacuee. A competent officer having regard to the provisions of Sec. 10 of the Act shall adopt any of the following measures in the order of precedence set down below: xx xx xx xx xx xx (3) Notice of the intended sale be given at least 15 days before the proposed sale and every such notice shall state the date, time and place of the proposed sale, the description of the property to be sold, its location and boundaries where possible, the terms and conditions of the sale the date on which the competent officer will examine the report of the officer conducting the auction and any other particulars which competent officer or the officer authorized by him considers material. One copy of the notice shall be affixed on a conspicuous part of the property to be sold. It shall be within the discretion of the competent officer or the officer authorized by him to advertise the sale in the newspaper and in such other manner as he may deem fit. [Explanation. The date from which 15 days notice for auction shall be computed will be the date on which a copy of the notice is posted on the notice board of the competent officer] xx xx xx (5) No sale shall take place until after the expiry of a period of 10 days from the date of publication of the notice.";