Sh. Om Prakash & Ors. Vs. Appellate Officer & Ors.
EmailAppeal: Civil Appeal No. 1766 of 1994
Petitioner: Sh. Om Prakash & Ors.
Respondent: Appellate Officer & Ors.
Apeal: Civil Appeal No. 1766 of 1994
Judges: V.N. KHARE & R.C. LAHOTI, JJ.
Date of Judgment: Dec 13, 2001
Head Note:
EVACUEE PRIPERTY
Evacuee Interest (Separation) Act, 1951
Rule 11-B – Non-evacuee share – Separation and sale – Appellants either in capacity of allottee or non-evacuee co-sharer, offered such share for purchase – Offer not accepted – Later valuation report received and such share sold in auction – If appellants were to be offered the share again and sale is bad in law. Held that appellants have rejected, the offer consciously. Hence, sale is not bad. (Para 2)
Evacuee Interest (Separation) Act, 1951
Rule 11-B – Non-evacuee share – Separation and sale – Appellants either in capacity of allottee or non-evacuee co-sharer, offered such share for purchase – Offer not accepted – Later valuation report received and such share sold in auction – If appellants were to be offered the share again and sale is bad in law. Held that appellants have rejected, the offer consciously. Hence, sale is not bad. (Para 2)
Cases Reffered:
1. Bal Kishan Das & Ors. v. Sewa Nand & Ors. (17 (1980)) Delhi law time 560) (Para 2)
JUDGEMENT:
ORDER
1. In this appeal, we are concerned with three thallas (i.e. open platform) in front of shops situated in Katra Allaha Dia, Delhi. The appellants herein either in the capacity of the allottees or the purchasers of non-evacuee shares claim that they are the only persons entitled to purchase the interest of non-evacuee shares in three aforesaid open platforms. Rule 11-B of the rules framed under the Evacuee Interest (Separation) Act, 1951 provides the method by which a non-evacuee share has to be separated from the evacuee share. Clause (ii) of rule 11-B (2) provides that if an evacuee share is half or more than half in any property, the custodian shall sell the non-evacuee share in the property at the assessed price to an allottee. If the allottee is not interested in the offer to purchase the share, the competent authority shall give offer to purchase the same to a non-evacuee co-sharer. On 10th April, 1964 the appellants either in a capacity of allottees or non-evacuee co-sharers declined the offer to purchase the non-evacuee share in the said three thallas. Under such circumstances, the competent authority directed for sale of the property through an open auction. In the meantime, valuation report in regard to the value of the three thallas was received by the competent authority. In the said valuation report, the three thallas were valued at Rs. 11,700/-, Rs. 10,200/- and Rs. 11,000/- respectively. After the receipt of the valuation report, the competent authority published a notice fixing date of auction sale of the aforesaid three thallas. It is at this stage the appellants moved an application before the competent authority for transfer of the said thallas in their favour being allottees of the adjoining shops. The respondents – Gandhi Cloth Market Association also filed an objection stating therein that the application moved by the appellants be rejected and the property be sold through an open auction. The competent authority accepted the application of the appellants and directed for transfer of the said property in favour of the appellants on payment of the price fixed in the valuation report. Aggrieved, the custodian evacuee property filed an appeal before the appellate authority against the order of the competent authority. Respondent, Gandhi Cloth Market Association who is the auction purchaser, deposited the price towards the purchase of the property, and also filed a revision petition against the order of the competent authority. The appellate authority allowed the appeal of the custodian evacuee property and directed that the property be sold through an open auction. Aggrieved, the appellants challenged the aforesaid order of the appellate authority by means of a writ petition under Article 226 of the Constitution of India before the Delhi High Court. A learned single judge of the High Court dismissed the writ petition. A letters patent appeal preferred by the appellants before the appellate bench was also dismissed. It is against the said judgment of the High Court, the appellant has come in appeal before us.
2. Mr. Rajender Sachar, learned senior counsel appearing for the appellants urged that under rule 11-B, an offer to purchase the non-evacuee share in a property could be made only after receipt of the valuation report. No offer of purchase having been made by the competent authority after the receipt of valuation report, the auction sale of the property is invalid and he relied upon a decision in the case of Bal Kishan Das & Ors. v. Sewa Nand & Ors. (17 (1980) Delhi Law Time 560) in support of his argument. Assuming what the learned senior counsel argues is correct, yet we find that the appellants have disentitled themselves for equitable relief under Article 226 of the Constitution. In the present case, what we find is that an offer to purchase the property was given to the appellants by the competent authority before receipt of the valuation report but they declined. It may be remembered that High Court under Article 226 of the Constitution of India amongst other, exercises equitable jurisdiction. The appellants having consciously waived their right to purchase the property when the offer was given to them, the High Court was justified in declining to exercise its equitable jurisdiction in their favour. We are in agreement with the view taken by the High Court.
3. For the aforesaid reasons, we do not find any merit in this appeal. It is accordingly dismissed. No cost.
1. In this appeal, we are concerned with three thallas (i.e. open platform) in front of shops situated in Katra Allaha Dia, Delhi. The appellants herein either in the capacity of the allottees or the purchasers of non-evacuee shares claim that they are the only persons entitled to purchase the interest of non-evacuee shares in three aforesaid open platforms. Rule 11-B of the rules framed under the Evacuee Interest (Separation) Act, 1951 provides the method by which a non-evacuee share has to be separated from the evacuee share. Clause (ii) of rule 11-B (2) provides that if an evacuee share is half or more than half in any property, the custodian shall sell the non-evacuee share in the property at the assessed price to an allottee. If the allottee is not interested in the offer to purchase the share, the competent authority shall give offer to purchase the same to a non-evacuee co-sharer. On 10th April, 1964 the appellants either in a capacity of allottees or non-evacuee co-sharers declined the offer to purchase the non-evacuee share in the said three thallas. Under such circumstances, the competent authority directed for sale of the property through an open auction. In the meantime, valuation report in regard to the value of the three thallas was received by the competent authority. In the said valuation report, the three thallas were valued at Rs. 11,700/-, Rs. 10,200/- and Rs. 11,000/- respectively. After the receipt of the valuation report, the competent authority published a notice fixing date of auction sale of the aforesaid three thallas. It is at this stage the appellants moved an application before the competent authority for transfer of the said thallas in their favour being allottees of the adjoining shops. The respondents – Gandhi Cloth Market Association also filed an objection stating therein that the application moved by the appellants be rejected and the property be sold through an open auction. The competent authority accepted the application of the appellants and directed for transfer of the said property in favour of the appellants on payment of the price fixed in the valuation report. Aggrieved, the custodian evacuee property filed an appeal before the appellate authority against the order of the competent authority. Respondent, Gandhi Cloth Market Association who is the auction purchaser, deposited the price towards the purchase of the property, and also filed a revision petition against the order of the competent authority. The appellate authority allowed the appeal of the custodian evacuee property and directed that the property be sold through an open auction. Aggrieved, the appellants challenged the aforesaid order of the appellate authority by means of a writ petition under Article 226 of the Constitution of India before the Delhi High Court. A learned single judge of the High Court dismissed the writ petition. A letters patent appeal preferred by the appellants before the appellate bench was also dismissed. It is against the said judgment of the High Court, the appellant has come in appeal before us.
2. Mr. Rajender Sachar, learned senior counsel appearing for the appellants urged that under rule 11-B, an offer to purchase the non-evacuee share in a property could be made only after receipt of the valuation report. No offer of purchase having been made by the competent authority after the receipt of valuation report, the auction sale of the property is invalid and he relied upon a decision in the case of Bal Kishan Das & Ors. v. Sewa Nand & Ors. (17 (1980) Delhi Law Time 560) in support of his argument. Assuming what the learned senior counsel argues is correct, yet we find that the appellants have disentitled themselves for equitable relief under Article 226 of the Constitution. In the present case, what we find is that an offer to purchase the property was given to the appellants by the competent authority before receipt of the valuation report but they declined. It may be remembered that High Court under Article 226 of the Constitution of India amongst other, exercises equitable jurisdiction. The appellants having consciously waived their right to purchase the property when the offer was given to them, the High Court was justified in declining to exercise its equitable jurisdiction in their favour. We are in agreement with the view taken by the High Court.
3. For the aforesaid reasons, we do not find any merit in this appeal. It is accordingly dismissed. No cost.
