JUDGMENT R.H. Zaidi, J.
1. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 26.2.1976 passed by the Additional Commissioner, respondent No. 2, and the order dated 6.6.1984 passed by the Board of Revenue, U. P., at Allahabad in the proceedings under Section 198 (4) of the U. P. Zamindari Abolition and Land Reforms Act (for short 'the Act') against the petitioner.
2. The relevant facts of the case giving rise to the present petition, in brief, are that plot Nos. 38/2. 2, 55, 56 and 201/168 of village Birbhan alias Malikan Gaon, Paragana Bahariabad. District Ghazipur, (for short 'the land in dispute') are the subject matter of dispute in the present case. The land in dispute was originally owned by Mohammad Tariq, Smt. Abdl Bibi and Kamal Ahmad who migrated to Pakistan in the year 1947 or thereafter. On their migration from India to Pakistan, the land in dispute was declared as evacuee property under the Administration of Evacuee Property Act. The land in dispute was thereafter acquired by the Government of India vide Government of India, Ministry of Rehabilitation Notification No. 1/3/1157-B-111, November 26, 1957 under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short 'the 1954 Act'), as it is evident from Annexure-1 to the writ petition and Annexure-RA-1 to the rejoinder-affidavit after following the procedure prescribed under the law. The land in dispute was ultimately sold in favour of the petitioner and sale certificate was issued in his favour by the Managing Officer/Assistant Custodian, Lucknow, on 5.8.1970. After purchase of the land In dispute, the petitioner came to know that the said land, without following the procedure prescribed under the law and In contravention of the provision of the 1954 Act was allotted in favour of the contesting respondent Nos. 4 to 9. The petitioner, therefore, immediately thereafter applied for cancellation of the allotment under Section 198(4) of the Act. The application for cancellation was filed mainly on the grounds that the evacuee property could not be allotted and the allotment was made without following the procedure prescribed for the same in contravention of the provisions of the Act as well as the rules framed thereunder. On the application filed by the petitioner, the Collector issued notices to the contesting respondents who contested the application claiming that the allotment was made in their favour In accordance with the law. Parties produced evidence in support of their cases. The statement of Lekhpal Shri Sheo Poojan Chaubey was also recorded. The Additional Collector from the material on the record, recorded findings on the material issues against the contesting respondents. It was held that the allotment was made without following the procedure prescribed under the Act. No list of landless persons was prepared and allotment was made in favour of kith and kin of the Pradhan and also in favour of the Up Pradhan of the village in contravention of the provisions of Section 28 of the U. P. Panchayat Raj Act. Having recorded the said findings, the allotment was cancelled by the Additional Collector and damages were also imposed upon the contesting respondents by its judgment and order dated 26.7.1975. Challenging the validity of the order passed by the Additional Collector, the contesting respondents filed a revision before the respondent No. 2. The respondent No. 2 took the view that the Additional Collector has held that the allotment was made in contravention of the provisions of the rules framed under the Act, it should have also decided the other issues involved in the case. He, therefore, by his judgment and order dated 26.2.1976 made a reference to the respondent No. 1 recommending it to set aside the order of the Additional Collector and to remand the case to the Additional Collector for decision afresh. The respondent No. 1 neither accepted nor rejected the reference but the said respondent itself proceeded to decide the case on merit and ultimately by judgment and order dated 6.6.1984 allowed the revision. Paragraphs 8 and 9 of the said judgment (operative portion) are quoted below :
"8. In view of the above, the revision application is allowed. The impugned order passed by the learned Additional Collector dated 26.7.1975 is set aside and the proceeding is dropped and the patta of the applicants is held valid.
9. Let the trial court's record be sent to it at once for necessary action."
As stated above, the present petition has been filed challenging the validity of the orders passed by respondent Nos. 1 and 2.
3. Learned counsel for the petitioner vehemently urged that the land in dispute was admittedly evacuee property. From the documentary evidence on the record, it is conclusively proved that the said land was acquired by the Central Government under Section 12 of the 1954 Act and thereafter the same was sold in favour of the petitioner. Therefore, the land in question could not, in any view of the matter, be allotted to the contesting respondents. The entire proceedings of allotment were void ab initto. It was also urged that the allotment was made in favour of the contesting respondents in contravention of the provisions of the Act and the rules framed thereunder, the same was illegal and was rightly set aside by the trial court after recording the findings on the preliminary issues which were sufficient to dispose of the case finally. It was also contended that the respondent No. 2 has acted illegally in making a reference for remanding the case for decision of other issues involved in the case particularly when the decision on the preliminary issues was sufficient to decide the case finally and that the respondent No. 1 has acted illegally and in excess of Its jurisdiction in neither accepting nor rejecting the reference but allowing the revision himself that too completely ignoring the statutory provisions of the Act, rules framed thereunder and of the 1954 Act. The writ petition, according to him was liable to be allowed.
4. On the other hand, learned counsel appearing for the contesting respondents supported the validity of the orders passed by the respondent Nos. 1 and 2. It was urged that allotment of the land in dispute in favour of the contesting respondents was made after following the procedure prescribed under the law and that the order passed by the courts below were quite valid and legal. The writ petition, therefore, deserves to be dismissed.
5. I have considered the submissions made by the learned counsel for the parties and also perused the record.
6. From the material on the record, it is evident that the land in dispute was the evacuee property before the same was transferred in favour of the petitioner. It was so recorded in the revenue papers. It is also evident that the land in dispute was acquired under Section 12 of the 1954 Act by the Central Government. It is also apparent that after acquisition, the land in dispute was sold in favour of the petitioner. Section 12(2)(3)(d). Sections 27 and 36 of the 1954 Act and Section 46 of the Administration of Evacuee Property Act are relevant for the purposes of the present case, which are quoted below :
"12. Power to acquire evacuee property for rehabilitation of displaced persons.--(1) ..........................................
(2) On the publication of a notification under sub-section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances.
(3) It shall be lawful for the Central Government, if it so considers necessary, to issue from time to time the notification referred to in sub-section (1) in respect of :
(a) ....................................
(b) ..........................................................
(c) ........................................................
(d) any particular evacuee property.
"27. Finality of orders.--Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act, including a managing corporation, shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceeding."
"36. Bar of Jurisdiction.--Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
"46. Jurisdiction of civil courts barred in certain matters.--Save as otherwise expressly provided in this Act, no civil or revenue Court shall have jurisdiction :
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property ; or
(b) ............................................
(c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act ; or
(d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine.
7. A reading of the above noted statutory provisions shows that Section 12 of the 1954 Act confers power upon the Central Government to acquire the evacuee property which was, as stated above, acquired by means of a notification issued by the Central Government. Section 27 of the said Act provides that every order made by any officer or authority under the said Act Including a managing corporation shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceeding. Thus, the orders passed acquiring the land in dispute became final. Section 36 of the said Act specifically provides that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Similarly. Section 46 of the Administration of Evacuee Property Act, bars the jurisdiction of the civil and revenue courts to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property to question the legality of any action taken by the Custodian-General or Custodian under the said Act to determine.
8. Thus, in the present case, the property in dispute admittedly being the evacuee property, the same could not be subject matter of allotment under the Act nor the respondent Nos. 1 and 2 could pass any order against the order passed by the authorities under the aforesaid Acts. Further, Section 195 of the Act provides as under :
"195. Admission to land.--The Land Management Committee, with the previous approval of the Assistant Collector in-charge of the sub-devision, shall have the right to admit any person as Bhumidhar with non-transferable rights to any land (other than land being in any of the classes mentioned in Section 132) where :
(a) the land is vacant land,
(b) the land Is vested in the Gaon Sabha under Section 117 ; or
(c) the land has come into the possession of Land Management Committee under Section 194 or under any other provision of this Act."
9. The land in dispute is not covered by any one of the aforesaid clauses of Section 195. Therefore, the same could not be subject matter of allotment under any provision of the Act. The allotment of the land in dispute in favour of the contesting respondents was, thus, made wholly without jurisdiction and on the basis of the same, the contesting respondents cannot get any right in the land in dispute. Further, according to the findings recorded by the Additional Collector, the provisions of Rules 173 and 174 of the rules framed under the Act were not followed and the provisions of Section 28 of the U. P. Panchayat Raj Act were violated. Neither there was announcement by beat of drum in the circle of the Gaon Sabha in which the land is situate at least seven days before the date of meeting of the Land Management Committee for admission of the land regarding number of plots, their areas, the date on which admission/allotment was to be made nor the list of landless persons was prepared nor other provisions contained under Rules 174, 175 and 176 were followed and allotment was made in violation of the provisions of Section 28 of the U. P. Panchayat Raj Act, as stated above. Thus, the allotment was totally illegal and without jurisdiction. It may also be noted that the respondent No. 2 made a reference to the respondent No. 1 to accept the reference and to remand the case. The respondent No. 1 could either accept or reject the reference but it had no jurisdiction to decide the case himself and allow the revision finally. The orders passed by the respondent Nos. 1 and 2 are illegal and without jurisdiction, therefore, they are liable to be set aside. Normally, after setting aside the two orders, I should have remanded the case to the trial court but in view of the above noted discussion and in view of the fact that the land in dispute is admittedly evacuee property, which was acquired by the Ministry of Rehabilitation vide notification dated 26.11.1957 and thereafter sold to the petitioner, no useful purpose will be served by remanding the case to the Court below as the Court below cannot go against the orders passed by the authorities constituted under the 1954 Act and under the Administration of Evacuee Property Act. It is, however, observed that it will be open to the contesting respondents to approach the competent authority under the 1954 Act for ventilation of their grievance, if any, if they are so advised and if it is legally permissible within one month from today.
10. Subject to what has been stated above, this petition succeeds and is allowed with costs. The orders dated 6.6.1984 (Annexure-IV) and 26.2.1976 (Annexure-III) are hereby quashed.