Custodian Evacuees Property vs Pushpa Wati

Khan, J.—The main point involved in this appeal is whether the Custodian could have enhanced the rent of the allotted premises unilaterally

and without notice to respondent. Learned Single Judge has held against the Custodian and hence this appeal.

Respondent is the occupant of an evacuee Property house situated at Rajinder Bazar, Jammu. The house was allotted to her husband who is no

more. It appears that Custodian passed order dated Sept. 6. 1974 requiring renewal of lease of the premises at the revised rent of Rs. 160/ PM.

Respondent challenged this order in writ petition No : 147 of 1974 which was allowed by impugned order under appeal. The Ld Single Judge

quashed the order of Custodian and while disposing of the petition observed that respondent was not a trespasser and was entitled to step into the

shoes of her deceases husband as the right of the lease is heritable. He, however, did not decide the plea regarding the applicability of the

provisions of J&K Houses and shops Rent Control Act to the evacuee property.

Appellant is aggrieved of the judgment impugned on a number of counts. His case is that Custodian possesses the power to revise the rent under

subsection (2) of Section 10A of the Act without not c: to the effected party and that Ld Judge had fallen in error by observing that the right of

respondent's deceases husband was heritable. It is also argued that respondent's writ petition was not entertainable as the Act provided an

alternate remedy of appeal against the order impugned. LC for appellant placed reliance upon AIR 1956 J&K : 33, 1979 JKLR : 179 and AIR

1954 Punjab : 327 in support of his case.

Mr. Kotwal, on the other hand argued that Custodian could not have unilaterally revised the rent at the back of respondent, more so in the face

of section 10A of the Act. He also submitted that availability of alternate remedy could not operate as a bar in the present as the writ petition stood

admitted and finally heard.

Before coming to grips with the main issue, it would be appropriate to deal with and dispose of two ancillary contentions raised by Mr. Tak.

According to him, Ld Single Judge has erred by enter training the writ petition in the face of available alternative remedy and by observing that the

right of lessee was heritable. He sought to project that husband of respondent was a mere allottee and not a lessee and relying upon the definition

of 'allotment' contained in Section 2 (a) of J&FC State Evacuees (Administration of Property) Act argued that an allottee is a licensee whose

license could be revoked at any time.

There can be no two opinions about the proposition enunciated by Mr. Tak which is fortified by a full Bench judgment of this court in Gian Kour

vs Provincial Rehabilitation Officer (AIR 1956 J&K : 33), But we are unable to pronounce on the issue for the reason that there is nothing before

us to indicate the exact nature of transaction between the parties. Going by the terms of order dated 6.9.1974 passed by the Custodian, it appears

to be a lease though Mr. Tak describes it as an allotment. Therefore, it is not possible for us to hold whither the transaction was a lease an 1

whether the right of respondent's husband was heritable or not. The issue also seems extraneous to the controversy and need not detain us any

further. All the same it requires to be made clear that the observation made by Ld Single Judge should net be construed as law laid down in the

facts and circumstances of the case.

We also find no force in the other contention for the simple reason that existence of an alternate remedy, in our opinion, is no bar where the writ

petition is ultimately decided on merits.

Now coming to the crux, it all turns on the interpretation of Section 10A of the Act which reads thus :

10A: Revision of Rent (1) 'f at any time the Government is of the opinion that it is necessary to revise the rates of rent of evacuee property so as

to make the rent reasonable, it may by rules provide guidelines and specific norms in that behalf and the Custodian shall there upon revise the rent

of the evacuee property generally or specifically as he deems of after providing to the occupant an opportunity of being heard,

2) Without prejudice to the generally of the foregoing provision the rent of any evacuee property shall be assessed and fixed in each case on the

basis of capital cost prevalent in the year of construction of such property in accordance with the rent norms of the public works Department so far

as may by practicable;

Both sides have relied upon the provision in support of their respective submissions. While Mr. Tak interprets Sub Clause (2) to mean that

Custodian had powers to revise the rent without notice to the effected party. Mr. Kotwal relies upon subclause (1) to demonstrate 'hat the

Custodian cannot revise the rent without affording to the effected party of reasonable opportunity of being heard.

We see no ambiguity in the provision and in our view it does not admit of two interpretations. Therefore, there is hardly any scope for doubt or

confusion. SubClause (1) makes it abundantly clear that where Custodian wants to revise the rent of the evacuee property he shall do so after

providing a reasonable opportunity of being heard SubClause (2), on the contrary, provides for a mode for assessment of fixation of rent. The two

clause are complementary to each other and it cannot be said that the second controls the first one or the one militates against the other.

Mr. Tak's interpretation of subclause (2) is fanciful negated by the contest of provision itself. Nor is it supported by any of the judgments cited

by him.

As a result, we feel no difficulty in holding that Custodian is required to observe principles of natural justice and provide an opportunity of

being heard to an effected party in case fee proposes to revise the rent of an evacuee property. We uphold the judgment of Ld Single Judge to that

extent. We accordingly dismiss this appeal with the observations made and direct the Custodian to hear the respondent before revising rent of the

premises. He shall pass appropriate orders in the matter within four months from today.