Mahajan, J.:— This writ petition discloses how serious bungling can occur if the matter is left to the clerical staff and the Government officers pass orders without applying their mind in the matter. The facts giving rise to this petition are not only interesting but show how the provisions of law are sometime abused in this country. A double storeyed house was taken on rent in the year 1947 by Megh Raj son of the petitioner Dewan Jhangi Ram, from its Muslim owners. The Muslim owners migrated to Pakistan during the 1947 disturbances and the house accordingly became evacuee property and vested in the Custodian of Evacuee Property. At the time when the house became evacuee property it was in the occupation of the petitioner, his son and Har Dayal Dhingra, respondent No. 5, who is the brother-in-law of the petitioner's son. The Custodian allotted this house to all the three occupants jointly at a joint rent of Rs. 22/8/- per mensem. On coming into force the Displaced Persons (Compensation and Rehabilitation) Act, 954 (Act No. 44 of 1954) this house was acquired by the Central Government and formed part of the Compensation Pool. The house was valued by the Department at Rs. 8,474/-. Petitioner as well as respondent No. 5 are displaced persons and hold verified claims. The net compensation allowable to the petitioner amounted to Rs. 9,167/- whereas respondent No. 5 had received the entire compensation payable to him and at the relevant time nothing was due to him towards compensation. In the year 1956 the petitioner made an application for payment of the compensation to him and stated the mode of compensation as follows:—
2. That the house in his possession be allotted to him on the value fixed by the Department i.e Rs. 8,474/- and after deducting this price the balance of the compensation due to him be paid in cash. In view of the petitioners application all the occupants of the house were asked to appear before the Settlement Officer. They did appear. Before the Settlement Officer respondent No. 5 stated that he has received his full compensation and therefore was not interested in the purchase of the house. So far as the petitioner's son is concerned he gave up his claim to the house in favour of his father. On 1st of August, 1957, it was decided that the house should be transferred to the petitioner. Accordingly a sale deed was executed on 28th of May, 1958, and was registered on the 2nd of June, 1958. After this on the 30th of September, 1957, respondent No. 5 applied for the horizontal division of the house. His application was rejected by the Managing Officer on the 4th of November, 1957, on the ground that no compensation was due to respondent No. 5. Against this decision an appeal was taken by him to the Chief Settlement Commissioner and that was rejected by the Chief Settlement Commissioner on the 19th of February, 1958, on the ground that the property was indivisible and that no compensation was due to respondent No. 5. Then comes the petition by respondent No. 5 under section 33 of the Act which has given rise to all this mischief. It will be proper at this stage to set out the provisions of section 33 because in my view the impugned order could not be passed under those provisions. Section 33 is in these terms:—
“33. Certain residuary powers of Central Government.— The Central Government may at any time call for the record of any proceeding under this Act and may pass such order in relation thereto as in its opinion the circumstances of the case require and as is not inconsistent with any of provisions contained in this Act or the rules made thereunder.”
3. At this stage it will be proper to set out in detail what transpired when this section 33 petition was dealt with by the Central Government. After notices to the parties had been issued and in their presence on the 21st of May, 1958, the following order was passed:—
“Diwan Jhangi Ram stated that during the course of the proceedings of the case before Shri Kalra, Settlement Officer, Khan Market, Shri Hardial Dhingra made a statement in February, 1957 that he had already received his claim money in cash and was not interested in the purchase of this house, which might be sold to Diwan Jhangi Ram.
2. Shri Hardial Dhingra denied having made such a statement and stated that if it was proved that he had made such a statement, his petition may be dismissed. The relevant file (No. D/G.M/63872.Genl./16—Compensation appn. of Diwan Jhangi Ram) may be called. Parties to appear on 29th May, 1958.”
4. After this order there is a note by a clerk dated 27th of May, 1958, which is in these terms:—
“Reference above. The relevant compensation file of Diwan Jhangi Ram is placed below. The statement of Shri Hardial Dhingra referred to will be found at flag/K in the compensation file. It is clear that Shri Dhingra had stated on solemn affirmation before the Settlement Officer on 28-2-57 that he was not interested in purchasing the house now under dispute.
Attention is, however, invited to the fresh letter of Shri Dhingra at pages 17-18/???. He has stated therein that subsequently statement was made by him before the Managing Officer on 11-7-57 that he was interested in purchasing the house. He has further stated that decision for transferring the entire house to Diwan Jhangi Ram was taken on the basis of subsequent statements made before the Managing Officer. He has therefore requested us to send for the file containing subsequent statements for examination. Although in view of para. 2 of D.S(S)'s remarks at prepage as well as his statement at flag/K. Shri Dhingra has lost his case, it is for consideration whether the file referred to by Shri Dhingra may now be called for as per D.F.A”.
5. He, however, for reasons best known to him and which are universally known and need not be specifically stated, marked the case not to the officer who had passed the order dated 21st of May, 1958, but to another officer, Deputy Secretary (C), respondent No. 2. Respondent No. 2 then passed the following order:—
“D.F.A may issue and the file in question obtained before 29th May, 1958.”
6. Again follows the note by the same clerk at page 5 of the file and that is in these terms:—
“D.S(C) may kindly see his remarks dated 27-5-58 at pre-page. The relevant file has been obtained from the R.S.C's office and is placed below at flag/X. Attention is invited to pages 13, 14, 15 and 16 of that file. In his statement dated 11-7-57 on p. 14 in file ibid, Shri Hardial Dhingra had stated that the ground floor being an independent unit may be transferred to him on cash payment payable in instalments. But on the report of Managing Officer the Addl. S.C decided to transfer the entire house to Diwan Jhangi Ram as he is a claimant and as the house being small one has been evaluated as a whole. In this connection p. 13 of the file ibid may be perused.
Submitted for orders. The remarks dated 21-5-58 of D.S.S at p. 37 ante, may also be seen before taking any decision. The parties will appear before D.S(C) at 3 p.m to-day.”
7. He again marked it to respondent No. 2. After this 4th of June, 1958, was fixed by respondent No. 2 for the purpose of satisfying himself about the point whether the petitioner can retrace his earlier statement that he is not interested in the property and if so, is there any time limitation for this. The parties then appeared on the 4th of June, 1958, and then the following order was passed:—
“2. The counsel for the petitioner read out a ruling of Shri Falshaw pointing out that in changed circumstances, the person aggrieved can resile from his earlier statement as has been done by the petitioner. The counsel for the respondent produced rulings of Allahabad High Court that once a statement is made on oath, it is binding on the person and he cannot change it subsequently.
3. The case has two sides—one the legal aspect and the other redress based on equity. So long as the legal aspect is concerned, the petitioner having made categorical statements twice foregone his right for allotment of the property in question. The appeal can be rejected on this basis straightaway. The counsel for the respondent insisted on this.
4. Looking on the other side of the case and the subject matter of the appeal as also from the point of view of the spirit of section 33 under which such appeals are made, I feel that a redress is due to the petitioner on the ground that a horizontal division of the property is possible and the petitioner is in occupation of a part of it and is willing to purchase it. It is true that the petitioner made a statement that he is not interested in the property and subsequently changed his mind. Is he to be penalized for his rash action particularly when he is not being debarred by Dty. S.C to purchase the property on this ground. Secy was of the view as would be seen from portion marked ‘X’ at page 2-N that the horizontal division of the property which is allottable may be allowed after giving notice to the other party.
5. I am of the opinion that we should not take a very legalistic view of the petition and should not penalize the petitioner when a redress can be given to him. The counsel for the respondent stated that if the petitioner's request is to be considered on the merits of the case and not the legal issue raised by them, they would like to be heard again. I do not think we should call the parties again but should take a decision now. I have heard them at length and have considered their views. I am inclined to allow the horizontal division of the property if it is physically possible. Secretary may please see for orders.”
8. Then the matter came to the Secretary and the Secretary on the 9th of June 1958, without caring to even read the papers passed the following order:—
“We should divide the property horizontally and be done with it”
as if he was getting rid of the file. Thereafter follows the letter dated 14th of June, 1958, to the petitioner witch is Exhibit ‘H’ attached to the petition informing him that the house is to be divided horizontally and this has led to the present petition by the petitioner.
9. It will be seen from what has been stated above that the authority under section 33 nowhere come to the conclusion that the house was divisible. As a matter of fact the competent authority had held that the house was indivisible and was one unit. Moreover, before ordering the division of the house it was imperative on the authority under section 33 to come to an independent finding, after hearing the parties, as to the divisibility of the house. It cannot be disputed that the authority under section 33 is acting in a quasi judicial capacity. In this connection reference may be made to Civil Writ No. 399-D of 1957, Lal Chand v. The Chief Settlement Commissioner . C.W No. 399-D of 1957., decided by Grover, J. on 10th of August, 1959. It also cannot be disputed that the Central Government has the power under rule 22(2) to allot a portion of a building which is otherwise divisible, but in the instant case this power was never exercised. As I have already stated nobody applied his mind under section 33 as to whether the building was in fact divisible or not because an order rule 22(2) could only be passed after it had been determined that the building was divisible. Reference may also be made to proviso to rule 30 which is in these terms:—
“Provided that where any swell property can suitably be partitioned the Settlement Commissioner shall partition the property and allot to each such person a portion of the property so partitioned having regard the amount of not compensation payable to him.”
10. This proviso clearly shows that only those Properties can be divided which can be so divided suitably and also that the divided properties are to be offered to those to whom compensation is payable. In the present case no compensation at all was payable to respondent No. 5 and it is beyond my comprehension how he was offered this property in preference to a person to whom compensation was payable. Moreover, the order dividing the property was passed without hearing the petitioner and this order on that ground also is liable to be set aside. There is another way of looking at the matter. The property had been absolutely sold to the petitioner on the 28th of May, 1958 and once the property had been sold it no longer formed part of the Compensation Pool. The provision for setting aside sale is contained in rule 92. No order under rule 92 was ever passed in this case. It cannot be doubted that an order under rule 92 can only be passed in a very limited circumstances and none of these circumstances existed in the present case. It has been held in the following cases that no order cancelling the sale can be passed once a sale of the evacuee property has been effected without having resort to rule 92:—
(1) Thakur Jaishi Ram v. The Chief Settlement Commissioner, New Delhi . 1958 60 P.L.R 45..
(2) Lal Devi v. Deputy Chief Settlement Commissioner, New Delhi . C.W No. 1242 of 1959., Civil Writ No. 1242 of 1959, decided by Grover, J. on 25th of August, 1960.
(3) Shri Khushabi Mal v. The Assistant Settlement Commissioner, Jullundur . C.W No. 637 of 1959. Civil Writ No. 637 of 1959, decided on 6th of October, 1960.
(4) Govind Ram v. Regional Settlement Commissioner, Rajasthan, Jaipur . A.I.R 1960 Rajasthan 177..
11. The order dividing the house is virtually an order setting aside the sale and is, therefore, without jurisdiction. For the reasons given above I allow this petition and quash the order of the Central Government Under section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act No. 44 of 1954). Before concluding I may mention that when this writ was filed and the matter was examined by the Government they realised the error they had committed and, therefore, intimated to this Court that they are not interested in defending this petition in order to save costs. I accordingly allow this petition and quash the impugned order. The petitioner will have his costs against respondent No. 5. No costs against the Central Government. The costs against respondent No. 5 are assessed at Rs. 200/-. Respondent No. 5 was represented by Mr. Bhawani Lal. The case was called yesterday and was again called this morning and I finished hearing of the matter at quarter past three sand no one has appeared for him. Therefore, I have decided the matter ex parte.
12. Petition allowed