OM PRAKASH KAPUR Vs. THE COMPETENT OFFICER AND ORS.

JUDGEMENT

(1.) THE facts as given below have been taken from the judgment of the Division Bench because the same are given in detail on the basis of the petition as also the record placed before it.

(2.) THERE is a building known as "Exchange Building" situate on the Mall, Simla, which was a Muslim evacuee property. It contained several shops and flats for business and residential purposes. A 1/2 share in the building belonged to one Khan Bahadur Inayatullah, who later migrated to Pakistan. This one -half share was treated as evacuee property and, therefore, vested in the Custodian of Evacuee Property. The other half share in the building is Musilm Wakf property and belongs to the "Kashmiri Mosque" administered by the trustees of the Muslim Trust Properties which has now been substituted by the Punjab Wakf Board.

(3.) ON April 28, 1959 the trustees of the Muslim Trust Properties on behalf of the Kashmiri Mosque made an application under Section 7 of the Evacuee Interest (Separation) Act, 1951 pointing out that the building was composite property and praying that the evacuee interest should be separated by metes and bounds. The Sub -inspector, Evacuee Property , expressed the view that partition by metes and bounds would be a difficult task and take much time. On April 28, 1959 the Competent Officer made an order deciding that it would be more convenient if the evacuee's share in the property was sold by public auction and thereafter the auction purchaser could have the property partitioned through a civil Court. In case, he noted, an adequate price was not fetched at the auction then partition by metes and bounds cold be resorted to for separating the evacuee from the non -evacuee property . Accordingly, the auction was fixed for June 12, 1959. The Petitioner and the trustees of the Muslim Trust Properties bid at the auction. The highest bid of he Petitioner of Muslim trust Properties was Rs. 45,300/ - whereas the bid of the Petitioner was Rs. 45,100/ - The petitioners was declared the highest bidder and he deposited 10% of the bid -money on the same date. For more than two years the Petitioner did not hear form the authorities in the matter, and on August, 23, 1961 he wrote to the Settlement Officer, Patiala, setting out the facts and praying poote to thf the building. On March 2, 1962 the Competent Officer, Patialas session othe Petitioner that the bid offered by him for the half share in the building had not been accepted because it was less than the minimum reserved price fixed, and that now the whole building would be sold. Om may 12, 1962, the entire building was put to auction. The trustees, i.e. Respondent No. 3 did not bid. The Petitioner offered the highest bid of Rs. 61,500/ - and deposited 10% thereof. It appears that the Government Auctioneer, Messrs Bhardwaj and Co. made a report that the property could fetch more if re -auctioned. On July 9, 1962, the Competent Officer, Patiala, wrote to the Petitioner that the bid had been rejected as being, below the reserved price, and that in case the Petitioner proposed to make a higher offer for the property he should appear before Competent Officer on July 25, 1962. It appears that meanwhile the Respondent No. 3, i.e. the trustees of the Muslim Trust Properties, made representations claiming that the evacuee interest should be transferred to it at the market value, and that if auction was to be effected for the purpose of separating the evacuee interest, only the evacuee interest should be sold. In the meeting of July 25, 1962, both the Petitioner and the President of the trust were present before the Competent Officer. The Competent Officer mae an order on that date noting that the whole building had been valued at Rs. 1,20,000/ - and that the evacuee interest could therefore be valued at Rs. 60,000/ - He observed that "under Rule 11 -B of the Evacuee Interest (Separation) Rules the evacuee interest could be transferred to a non -evacuee co sharer if it was of value less than Rs. 10,000/ -". He explained that the auction of the whole building was ordered because it was considered that the reserve price would not be fetched in case a half -share only was auctioned but he went on to observe that in view of the statement of the President of the Trust that the Trust could bid Rs. 60,000/ - for the evacuee interest, he ordered the auction of the evacuee interest only on the Respondent No. 3 depositing Rs. 6,000/ -, failing which the entire property would be put to auction. The Trustees of the Muslim Trust Properties deposited Rs. 6,000/ - and on August 2, 1962, the Competent Officer made an order directing the auction sale of the evacuee interest in the building, and further that the bid should commence from Rs. 60,000/ -. The auction sale was fixed for September 17, 1962, and the Petitioner was informed accordingly.