Jagannath v. Settlement Commissioner Shahjahanpur — 1995 DIGILAW 529 (ALL)

Judgment (1.) PARITOSH K. Makherjee, J. Writ Petition has come up for admission after seven years. By the consent of learned counsel appearing for the parties, writ petition is taken up for hearing and final disposal. (2.) THIS writ petition is directed against an appellate order, dated 20-4-1988, passed by the Settlement Commissioner, Shahjahanpur, being respondent No. 1, reversing 'the original order, dated 8-1-1986, passed by the Prescribed Authority, Evacuee Property, Shahjahanpur, in Case No. 3 of 1985 and Appeal No. 1 of 1986, under Section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 from hereinafter referred to as the Act of 1954). Following facts are necessary to be stated, which are being reproduced herein below. (3.) ORIGINALLY this writ petition arises out of the proceedings of sale certificate, granted in favour of the petitioner on 26-7-1983, in connection with the proceedings admittedly under the Administration of Evacuee Property Act, 1950 (Central Act 31 of 1950) (from hereinafter referred to as the Act of 1950), by a subsequent order, dated 8-1-1986. (4.) OBJECTION having been filed on behalf of the private respondent Nos. 2 to 11, the proceedings were initiated before Prescribed Authority, Evacuee Property, and, by order, dated January 8, 1986, Annexure 3 to the writ petition, the said objection was inter alia dismissed as according to the said Pre scribed Authority, they have not been able to prove that prior to sale they were in possession in respect of land in dispute, and, even if they choose they may approach to the competent court for the said objection afresh. Against the said order, private respondent Nos. 2 to 11 preferred a misconceived appeal, not under the provision of Section 24 of 1950 Act, which deals with appeal, review and revision, but admittedly under Section 22 of 1954 Act. (5.) IT further appears from the appellate judgment that appeal No. 1 of 1986, under Section 22 of 1954 Act is not admittedly under 1950 Act. (6.) SRIRAMENDRA Asthana, learned counsel appearing of the petitioner submits following points for consideration of this Court. Allotment having been given by the Prescribed Authority on the basis of grant of sale certificate, as far back on 26-7-1983 and the petitioner having been put to possession on the disputed land, the private respondent Nos. (6.) SRIRAMENDRA Asthana, learned counsel appearing of the petitioner submits following points for consideration of this Court. Allotment having been given by the Prescribed Authority on the basis of grant of sale certificate, as far back on 26-7-1983 and the petitioner having been put to possession on the disputed land, the private respondent Nos. 2 to 11 have no locus standi to file any objection for cancellation of the said allotment, as it was done in the facts of the present case. (7.) LEARNED counsel further submitted that in view of the specific provisions under Section 31 of the Specific Relief Act, land having been sold by the competent officer in favour of the petitioner after depositing all the prescribed price and his name having been recorded in the revenue records, the objection filed by the respondent Nos. 2 to 11 are not founded and should be dismissed, which has been rightly dismissed by the Prescribed Authority, Evacuee Property, vide his judgment, dated 8-1-1896. (8.) LEARNED counsel also submitted that the appellate authority has also approached to the case of the private respondents 2 to 11 on a wrong angle and treated the appeal filed by the said respondents under Section 22 of Act, 1954 although admittedly the original proceedings were initiated under Act, 1950, referred to herein above, Lastly, learned counsel submitted that the order of remand, passed by the appellate authority, cannot be sustained in law as admittedly no appeal has been preferred before him under Section 24 of Act, 1950 which arises out of appeal from orders under Sections 7,16 and 40 of Act, 1950. (9.) AT the time of final argument, this Court raises a point that appeal itself was incompetent as it was filed under the provision of Act 1954, and, in view thereof, this Court is of considered opinion that the applicants have no locus standi to file any objection under the provision of Act, 1950, as they cannot said to be persons aggrieved at all. (10.) LEARNED counsel, appearing for the respondents submitted that since private respondent Nos. 2 to 11 are in actual physical possession of the land in dispute, they have every right to file objection, against the said settlement, which has been granted as far back on 26-7-1983 by grant of sale certificate to the petitioner. (10.) LEARNED counsel, appearing for the respondents submitted that since private respondent Nos. 2 to 11 are in actual physical possession of the land in dispute, they have every right to file objection, against the said settlement, which has been granted as far back on 26-7-1983 by grant of sale certificate to the petitioner. Learned standing counsel, however, is not in a position to express anything on the legal position about the filing of the appeal under the provision of 1954 Act. (11.) IN view of the facts narrated above, this Court has to arrive at a relevant conclusion as to whether the impugned appellate order dated 20-4-1988, passed by the Settlement Commissioner, being respondent No. 1, which was purported to have been passed under the provision of Section 22 of Act, 1954, and, not under the provision of Act, 1950, is liable to be sustained in law. (12.) HAVING heard the learned counsel for the parties at length, I am of the view that the appellate order dated 20-4-1988 cannot be justified in any manner, whatsoever, as the appeal has been filed admittedly under the provision of Section 22 of Act, 1954 and not under the provision of Section 24 of Act, 1950, which can only- be maintained if appeal is preferred under Sections 7, 16 and 40 of Act, 1950. That being the factual and legal position, the impugned order, dated 20-4-1988, passed by the respondent No. 1, filed as Annexure 5 to the writ petition is liable to be set aside, by issue of a writ, in the nature of certiorari. (13.) RESPONDENTS, and, each one of them are restrained from giving any further effect to the order dated 20-4-1988, in any manner, whatsoever. (14.) THIS will not, however, take away the rights of the contesting respondents to agitate their grievance, in any other proceedings, in accordance with law, in any manner whatsoever. With the aforesaid observations writ petition succeeds and is allowed. However, there shall be no order as to costs. Petition allowed.