Civil Appeal No 2329 of 1969
Appeal by Special Leave from the Judgment and Order dated 16 12 1966 of the Allahabad High Court in SCA No 34666
G N Dikshit M V Goswami and O P Rana for the Appellant
section K Mehta and P N Puri for Respondent Nos
The Judgment of the Court was delivered by SHINGHAL J
This appeal by special leave arises from a Judgment of the Allahabad High Court dated February 26 1964
It will be enough to state the admitted facts for they are quite sufficient for its disposal
893 Mohammed Salamat Ullah Khan Mohammed Sharafat Ullah Khan and Mohammed Latafat Ullah Khan were three brothers owning one third share each in their joint property
Mohammed Salamat Ullah Khan died and his sons Karamat Ullah Khan Dilawar Ullah Khan Muzaffar Ullah Khan and Tahir Khan migrated to Pakistan in 1948
The remaining two brothers of Mohammed Salamat Ullah Khan namely Mohammed Sharafat Ullah Khan and Mohammed Latafat Ullah Khan stayed in India and had a two third share in that property
Major Chandra Bhan Singh was a refugee from Pakistan and a temporary allotment of the one third evacuee share in the property was made in his favour on April 4 1955
As the property was listed as composite property notices were issued in April 1955 under section 6 of the  hereinafter referred to as the Act
They were individual notices and the Competent Officer has stated that they were served on Latafat Ullah Khan and Sharafat Ullah Khan and their acknowledgements were placed on the record
No claim was however filed by anyone and an order was made by the competent Officer on August 31 1955 under section 11 of the Act vesting the property in the Custodian
It may be mentioned that Mohammed Sharafat Ullah Khan had died earlier leaving behind his four sons Shaukat Ullah Khan Habib Ullah Khan Nasar Ullah Khan and Aman Ullah Khan
It so happened that the property was again reported to be composite property
The earlier order dated August 31 1955 was lost sight of and fresh notices were issued to the co sharers under section 6 of the Act
They were served personally on Mohammed Latafat Ullah Khan and on Mohammed Sharafat Ullah Khan through his son Shaukat Ullah Khan on February 25 1956
But again no claim was filed under section 7 of the Act by anyone claiming any interest in the composite property
An order was therefore again made on March 23 1957 under section 11 of the Act vesting the property in the Custodian
The Assistant Custodian L sent a senior Inspector to take possession of the vested property
Shaukat Ullah Khan the eldest son of Mohammed Sharafat Ullah Khan took notice of that development and undertook to file his claim within 15 days
No claim was however filed even then
Possession of Mohammed Salamat Ullah Khan s one third share in the property was delivered to Major Chandra Bhan Singh on March 7 1958 under orders of the Assistant Custodian
Thereafter an order was made on June 6 1958 giving him quasi permanent allotment along with his brother Raghubir Singh
894 In the meantime an application was made by Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan on March 12 1958 for restoration
It was stated in the accompanying affidavit of Arshad Ullah Khan son of Mohammed Latafat Ullah Khan that Mohammed Sharafat Ullah Khan had died in 1950 and no notice for separation of the evacuee interest in the property was ever served on them
It was further stated that they learnt of the vesting order only on March 6 1958 when the Manager of the evacuee property went to the village to take possession
An order was quickly made on March 15 1958 setting aside the vesting order which it will be recalled had been made as far back as August 31 1955
The case was then taken up on May 12 1958 when it was stated by Arshad Ullah Khan on oath that the only grove in the property was in plot No 1791
The Competent Officer relied on that statement and gathered the impression that the Assistant Custodian L had no objection to the transfer of the evacuee interest in the property to Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for Rs 5000 
An order was made to that effect the same day
One of the items of the property was however left out of evaluation even at that time for subsequent decision
The Assistant Custodian of Evacuee Property however made an application to the Competent Officer soon after on June 11 1958 for a review of his order dated May 12 1958 on the ground inter alia that certain grove plots were treated as agricultural plots
That was followed by another application for review dated July 10 1958 on the ground that the Competent officer made his order dated May 12 1958 under the incorrect impression that the Assistant Custodian L had no objection to the transfer of the evacuee share in the land to Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for Rs 5000 
It was also pointed out that the evacuee interest in the property had already been allotted to Major Chandra Bhan Singh who was a displaced person from Pakistan
It was therefore prayed that the order dated May 12 1958 may be reviewed and the property partitioned so as to separate the evacuee s one third interest
The Competent Officer partly disposed of the review application dated July 10 1958 the same day
He corrected the mistaken impression that the Assistant Custodian had no objection to the transfer of the evacuee share in the property for Rs 5000 and modified the earlier order dated May 12 1958 by deleting that statement from it
Mohammed Shaukat Ullah Khan however raised an objection against the maintainability of the review applications
The Competent Officer took the view that as the Appellate Officer had held in 895 appeal No 953 of 1957 that he Competent Officer could review his own order there was no force in the objection to the contrary
He examined the petition in terms of the requirements of Order 47 rule 1 of the Code of Civil Procedure and held that a new and important matter regarding the allotment of the land to the refugees Major Chandra Bhan Singh and his brother Raghubir Singh had been discovered which justified reconsideration of the earlier decision dated May 12 1958
He therefore reviewed that order and set it aside by his order dated September 8 1958
He gave his reasons for taking the view that the proper course was to partition the property and allotted the plots mentioned in that order to the Custodian in lieu of the evacuee share of Karamat Ullah Khan Dilawar Ullah Khan Muzaffar Ullah Khan and Tahir Khan sons of Mohammed Salamat Ullah Khan
The other plots were left to the Share of the non evacuee co sharers namely Mohammed Latafat Ullah Khan Shaukat Ullah Khan Aman Ullah Khan Habib Ullah Khan and Nasar Ullah Khan their two third share by way of non evacuee interest
Plot No 17911 was left out for separate decision after receipt of the report regarding its valuation
Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan felt aggrieved against that order of the Competent Officer and moved the High Court by a petition under article 226 of the Constitution
The High Court took the view in its impugned judgment dated February 26 1964 that in the absence of any provision in the Act for review it was not permissible for the Competent Officer to review his order dated May 12 1958
It therefore allowed the writ petition quashed the order of review dated September 8 1958 and directed the opposite parties not to give effect to it and not to disturb the possession of the writ petitioners on the plots in dispute
This as has been stated has given rise to the present appeal
In order to appreciate the controversy it will be desirable to examine the facts and circumstances of the case with due regard to the provisions of the Act
It has not been disputed before us and is in fact beyond challenge that the property in question was composite property within the meaning of section 2d of the Act because the one third undivided share of Mohammed Salamat Ullah Khan s sons Karamat Ullah Khan Dilawar Ullah Khan Muzaffar Ullah Khan and Tahir Khan who had migrated to Pakistan in 1940 had been declared to be evacuee property and had vested in the Custodian under the  while the remaining share belonged to the other two brothers of Mohammed Salamat Ullah Khan who were 896 non evacuees
The evacuee interest in the property was therefore confined to that one third share in the entire property being the right title and interest of the evacuees therein within the meaning of clause e of section 2
It is equally clear that it was permissible for the non evacuee shareholders having the remaining two third share in the property to make a claim in respect of it within the meaning of clause b of section 2 of the Act in their capacity as co sharers of the evacuees in the property
Section 5 of the Act gives jurisdiction to the Competent Officer to decide any claim relating to a composite property and section 6 requires that for the purpose of determining or separating the evacuee interest in a composite property the Competent Officer may issue a general and also an individual notice on every person who in his opinion may have a claim in that property to submit claims in the prescribed form and manner
It will be remembered that as the property was listed as composite property notices were issued under section 6 of the Act and the individual notices were served on Latafat Ullah Khan and Sharafat Ullah Khan and their acknowledgments were placed on the record
No claim was however filed under section 7 of the Act claiming any interest in the composite property
Section 8 of the Act provides that on receipt of a claim under section 7 the Competent Officer shall hold an inquiry into the claim and give his decision thereon while sections 9 and 10 deal with reliefs in respect of mortgaged property of evacuees and separation of the interest of evacuees from those of the claimants in a composite property
Section 11 provides for the vesting of evacuee interest in the custodian where a notice under section 6 is issued in respect of any property but no claim is filed
As no statement of claim was received by the Competent Officer the evacuee interest in the composite property vested in the Custodian and the Competent Officer accordingly took a decision to that effect on August 31 1955
It was a lawful order under section 8 read with section 11 of the Act
Section 14 provides that any person aggrieved by an order of the Competent Officer made under Section 8 may prefer an appeal to the Appellate Officer within 60 days of that order and it would then be for the Appellate Officer to confirm vary or reverse the order appealed from and to pass such orders as he deems fit
Section 15 of the Act further provides that the Appellate Officer may at any time call for the record of any proceeding in which the Competent Officer has passed an order for the purpose of satisfying himself as to the legality or propriety thereof and to pass such order in relation thereto as he thinks fit
This appellate and revisional jurisdiction was therefore available to the writ petitioners if they felt dissatisfied with the order 897 of the Competent Officer dated August 31 1955 but it is admitted before us that they did not avail of it
Section 18 of the Act therefore came into operation which provides as follows  18
Save as otherwise expressly provided in this Act every order made by any appellate officer or competent officer 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 proceedings
 So when the aggrieved persons did not invoke the appellate or revisional jurisdiction of the Appellate Officer the order of the Competent Officer dated August 31 1955 became final by virtue of section 18 and could not be called in question thereafter
It will be recalled that as has been mentioned the property was again reported to be of a composite nature and fresh notices were inadvertently issued to the non evacuee shareholders
They were personally served on Mohammed Latafat Ullah Khan and on Mohammed Shamfat Ullah Khan through his son Shaukat Ullah Khan on February 25 1956 but no claim was filed by anyone in spite of that second opportunity and a vesting order was once again made under section 11 of the Act on March 23 1957
No appeal or revision application was filed against that order also under sections 14 and 15 of the Act
In fact it was after a lapse of some 2 12 years from the order dated August 31 1955 and 1 year from March 23 1957 that Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan made an application for restoration of their claims on March 12 1958
By then the order dated August 31 1955 had become final and binding under section 18 and it was not permissible for any one to reopen it merely on the basis of a restoration application and to review the earlier order dated August 31 1955 in disregard of the statutory bar of that section
It is well settled that review is a creature of statute and cannot be entertained in the absence of a provision therefor
It will be enough to make a reference in this connection to the decision of this Court in Harbhajan Singh vs Karam Singh and others1 which approved the earlier Privy Council decision in Baijnath Ram Goenka vs Nand Kumar Singh2 the decision in Anantharaju Shetty vs Appu Hegde3 and reiterated the decision in Patel Chunibhai Dajibhai etc
vs Naravanrao Khanderao Jambekar and another4
The orders of the Competent Officer dated March 15 1958 and May 12 1958 in favour of the writ petitioners setting aside 898 the vesting order dated August 31 1955 and transferring the evacuee interest in the property to Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for Rs 5000 were therefore without jurisdiction
As has been stated the Assistant Custodian felt aggrieved against the orders of the Competent Officer dated March 15 1958 and May 12 1958 and made application soon after on June 11 1958 and July 10 1958 for review and the Competent Officer allowed them by his orders dated July 10 1958 and September 8 1958
The order dated July 10 1958 was not of much consequence
The fact therefore remains that the two sets of orders of the Competent Officer namely the first set of the two orders dated March 15 1958 and May 12 1958 and the second set consisting of the orders dated July 10 1958 and September 8 1958 suffered from the same vice of lack of jurisdiction and were equally void
This fact was specifically brought to the notice of the High Court but it ruled it out by merely saying that the fact that the petitioners had wrongly filed a review application which was allowed by the Competent Officer would not confer jurisdiction on the Competent Officer to review his orders if the statute had not made any provision for it
 That was begging the question and could not possibly meet the objection of the present appellants
If we may say so with respect what the High Court failed to appreciate was that while it was true that want of jurisdiction to review the order of August 31 1955 could not be cured by waiver it would not necessarily follow that the Court was obliged to grant certiorari at the instance of a party whose conduct was such as to disentitle it for it
The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was a matter of considerable importance
The High Court did not take due notice of the fact that the writ petitioners or their predecessors in interest had allowed the passing of the order dated August 31 1955 in spite of the individual notices which were issued under section 7 and did not deserve any relief
It did not notice the further fact that when the order dated August 31 1955 had become final because of the failure to file an appeal or an application for revision it was not permissible under the law in view of the specific bar of section 18 for the writ petitioners to move a restoration application on March 12 1958 for its review and to obtain its reversal by the Competent Officer s orders dated March 15 1958 and May 12 1958 and to obtain a wholly beneficial order for the transfer of the one third evacuee interest to them on payment of Rs 5000 
They nevertheless did so
So when the writ petitioners had themselves unlawfully invoked the review jurisdiction of the Competent Officer which did not exist to their advantage and to the disadvantage of the present appellant by 899 their application dated March 12 1958 they could not be heard to say when the Department invoked the self same jurisdiction on two important grounds to which reference has been made earlier that the review orders of the Competent Officer dated July 10 1958 and September 8 1958 were void for want of jurisdiction and must be set aside for that reason
The conduct of the writ petitioners was therefore such as to disentitle them to certiorari and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the writ petition
The appeal is allowed the impugned judgment of the High Court dated February 26 1964 is set aside and the writ petition is dismissed
There will however be no order as to costs in the facts and circumstances of the case
NVK Appeal allowed


Summary:
Practice and Procedure Conduct of parties to be taken into account while granting relief in writ petition
The property in dispute was undivided property composite property of three brothers one of whom died and his sons migrated to Pakistan
One third share of the property was declared evacuee property and vested in the Custodian under the 
It was allotted to the appellant who was a refugee
The Competent Officer issued individual notices under Section 6 of the to the two remaining brothers of the evacuee and their acknowledgments were placed on record
Since no claim was filed by anyone an order was made by the Competent Officer on 31 8 1955 vesting the property in the Custodian under Sec 11
As the property was again reported to be composite property fresh notices were inadvertently issued to the co sharers but no claim was filed by anyone and an order was again made on 23 3 1957 vesting the property in the Custodian
Possession of the evacuees one third share in the property was delivered to the appellant under order of Assistant Custodian
After a lapse of time the respondents filed an application for restoration  alleging that no notice for separation of the evacuee interest in the property was ever served on them and that they learnt of the vesting order only when the Manager of the evacuee property went to the village to take possession
The Competent Officer passed an order setting aside the vesting order dated 31 8 1955 and transferred the property to the sons of the deceased brother for Rs 5000 
The Assistant Custodian of Evacuee Property made an application to the Competent Officer for a review of his order pointing out a wrong impression
It was stated that the evacuee interest in the property had already been allotted to the appellant
The Competent Officer partly allowed the review
The respondents questioned the power of the Competent officer to review his order but the objection was rejected
The respondents filed a writ petition under article 226 of the Constitution
The High Court quashed the order of review on the ground that in the absence of any provision in the Act for review it was not permissible for the Competent Officer to review his order
Allowing the appeal to this Court 892  HELD 1 The conduct of the respondents was such as to disentitle them to a writ and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the writ petition
899B 2 Review is a creature of a statute and cannot be entertained in the absence of a provision therefor
897G Harbhajan Singh vs Karan Singh  Ors   Patel Chunibhai Dajibhai etc
vs Narayanrao Khanderao Jambekar  Anr  referred to
Baijnath Ram Goenka vs Nand Kumar Singh 40 IA 54 Ananatharaju Shetty vs Appu Hegde AIR 1919 Mad 244 approved
3 The earlier two orders of the Competent Officer setting aside the vesting order and transferring the evacuee interest in the property to the respondents were therefor without jurisdiction
897H 898A 4 But when the respondents had themselves unlawfully invoked the review jurisdiction of the Competent officer which did not exist to their advantage and to the disadvantage of the appellant they could not be heard to say when the Department invoked the self same jurisdiction on two important grounds that the review orders of the Competent Officer were void for want of jurisdiction and must be set aside for that reason
898H 899B 5 The High Court failed to appreciate that while it was true that want of jurisdiction to review the order by the Competent Officer could not be cured by waiver it would not necessarily follow that the Court was obliged to grant a writ at the instance of a party whose conduct was such as to disentitle it for it
The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was a matter of considerable importance
898E 6 The High Court did not take due notice of the fact that the respondents had allowed the passing of the impugned orders in spite of the individual notices to them
It did not notice the further fact that when that order had become final because of the failure to file an appeal or an application for revision it was not permissible in view of the specific bar of Sec 18 for the respondents to move a restoration application and to obtain its reversal by the Competent Officer
898F G