Dharam Vir vs Custodian General and others

Ali, J.

This is a petition in order to quash an order of the Custodian Jammu dated 1561964 by which he has directed possession of the shop in question

to be handed over to respondent No. 3 Ghulam Fatima

The petition arises in the following circumstances :

It appears that the Custodian Evacuee Property Jammu had alloted the shop in question to Ghulam Mohmmad Darugir in Assuj 2006 at a monthly

rental of Rs. 6 Some time after, as Ghulam Mohamad Darugir left for Pakistan, the shop in question came into possession of his wife Ghulam

Fatima. It is alleged by the petitioner that Ghulam Fatima had sublet the shop to some body else and defaulted in payment of rent to the Custodian.

As a result of this default, a report was made to the Custodian, who without issuing any notice to Ghulam Fatima cancelled the allotment to the

husband of respondent No. 3 and allotted the same to the petitioner. At the time when the order was passed the Deputy Commissioner was

holding the charge of the office of the Custodian because the permanent Custodian had been suspended by the Government pending an enquiry

into his conduct. Mst Ghulam Fatima went up against this order in revision to the Custodian General, who by his order dated 2241964 remanded

the case to the Custodian with a direction that he should examine the case and pass orders according to law The Custodian General, set aside the

order of the Custodian Jammu because the Custodian had passed the order against respondent No. 3 without hearing her. There after the

Custodian feeling himself bound by the order of the Custodian General to deliver possession to respondent No. 3 cancelled the allotment in favour

of the petitioner and allotted the property to respondent No. 3 by his order dated 1561961 It is against this order that the present petition is

directed.

The case was heard in the first instance by a Single Judge but in view of a substantial question of law involved in it, it was referred to a larger

bench. Appearing for the petitioner, Mr Inder Dass submitted that the order of the Custodian General was bad in law in as much as it was passed

without any notice to the petitioner. Secondly, it was contended that even if the order of the Custodian General was valid, the order of the

Custodian was legally erroneous as it was passed in contravention of the clear directions by the Custodian General. During the course of

arguments, however, the learned counsel for the petitioner confined his arguments only to impugning the validity of the order of the Custodian dated

1561964 and did not press his prayer with respect to the validity of the order of the Custodian General. It was submitted before us that while the

Custodian General had remanded the entire case to the Custodian for a fresh decision, the Custodian without applying his mind to the facts of the

case ordered possession of the shop in question to be delivered to respondent No. 3 as he felt himself bound by the order of the Custodian

General. The Custodian thus committed a clear error of law apparent on the face of the record and the order passed by the Custodian was against

the tenor and spirit of the order of the Custodian General. In our opinion, the contention is well founded and must prevail. The order of the

Custodian General clearly indicates that it had directed the Custodian to hear the entire case afresh and pass order according to law. There is no

direction contained in the order of the Custodian General that possession of the shop in question should be handed over to Mst Ghulam Fatim

without considering the merits of her case. The operative portion of the order of the Custodian General runs thus :

This case should be sent back to the Custodian with the direction that he should examine this case again and pass order under Law.

It is true that in the body of the order the Custodian General had indicated the grievances of the respondent No. 3 but that does not mean that the

Custodian General had given any final decision on the merits of the case of respondent No. 3. The order of the Custodian dated 1561965,

proceeds on the footing that possession should be delivered to Mst. Ghulam Fatirca as directed by the Custodian General. There can be, no

doubt, that the Custodian completely misunderstood the purport and effect of the order of the Custodian General and thus committed a serious

error of law apparent on the face of the record in passing the order that he did without considering the cases of both the parties on its merits.

Mr. Sharma, however appearing for respondent No 3 submitted that the Custodian had issued notice to both the parties and it should, therefore,

be presumed that he had considered the case of the parties. We are, however, unable to agree with this contention because the order of the

Custodian does not show that the Custodian had applied his mind to the facts of the case or even to the grounds on the basis of which the claim of

respondent No. 3 was resisted by the petitioner. We might mention here that one of the serious allegations against Mst Ghulam Fatima was that

she had sublet the shop in question and had not paid arrears of rent for a long time. The Custodian did not give any finding at all on any of these

questions.

Secondly, it was contended by Mr Sharma that the petitioner had no locus standi to maintain this petition in as much as the order of the Custodian

by which the shop was allotted to the petitioner, was passed by a person who was not legally authorised to do so. In other words, the contention is

that the Deputy Commissioner who was merely holding the charge of the Custodian was not duly appointed by the Government as Custodian and

hence any allotment made by him would give no right or title to the petitioner. A similar point was raised in writ petition No. 69 of 1964, Ved

Prakash Grover v/s The Custodian General and anr. and dealing with this contention, the following observations were made by me :

Mr Karim appearing for the respondents has resisted this petition on two grounds. In the first place he submitted that the Deputy Commr. was not

formally appointed as a Custodian of the Evacuee property under the provisions of the section 4 of the Act, and therefore any allotment made by

him was per se void and would not confer any right on the petitioner. In my opinion, this contention is without substance. The order of the

Government by which the Deputy Commissioner was asked to hold the charge of the Custodian runs thus :

In pursuance of subsection 5 of section 12 of the J & K Government Servant's Prevention of Corruption Act 1962, the Government hereby place

Shri Agha Syed Altaf, Custodian Evacuee Property Jammu under suspension with immediate effect. Shri Altaf will hand over charge of his office to

the Deputy Commissioner Jammu.

It is not disputed that this order was published in the Government Gazette nor is it disputed that Mr. Altaf who has been suspended was a duly

appointed Custodian. The last part of the order which clearly mentions that Shri Altaf will hand over charge of his office to the Deputy

Commissioner Jammu unmistakably shows that the Deputy Commissioner Jammu was appointed as Custodian under the Evacuee's Property

Administration Act 2006, otherwise the question of handing over charge of the office of the Custodian would not arise. Moreover it will be

pertinent to note that the words in the Cabinet order are not merely that Mr Altaf will hand over to the Deputy Commissioner but that he will hand

over charge of his office to the Deputy Commissioner Jammu which clearly shows that the intention of the Government was to appoint the Deputy

Commissioner as Custodian until some other arrangements were made. All that section 4 of the Act requires is that there should be a formal

appointment by the Government which should be published by a notification in the Government Gazette. All these conditions have been fulfilled in

the instant case.

Apart from the reasons given by me in that judgment there are three more circumstances in the present case which negative the contention of the

learned counsel for respondent No. 3. In the first place, section 4 of the Act, does not lay down any particular mode for the appointment of a

Custodian nor does it lay down or prescribe any qualifications for the appointment of a Custodian. Secondly, there is no inhibition contained in the

section which bars a Deputy Commissioner from being appointed as a Custodian. Finally, the order of the Government clearly says that the

previous Custodian shall hand over charge of his office to the Deputy Commissioner Jammu. This clearly shows that the intention of the

Government was to appoint the Deputy Commissioner as Custodian Jammu in place of Shri Aga Altaf who was placed under suspension. Indeed,

if the intention of the Government was not to appoint the Deputy Commissioner as an acting Custodian, it could have clearly mentioned in the

Notification that the Deputy Commissioner would attend to the routine work of the Custodian. The words ''hand over charge of his office

unmistakably denote that the Government had actually appointed the Deputy Commissioner to hold the office of the Custodian and to perform his

functions as long as some other arrangements were not made. For these reasons, therefore, we are unable to agree with the contention of Mr.

Sharma that there was no valid order passed by the Government appointing the Deputy Commissioner as the Custodian. We find ourselves in

complete agreement with the view expressed in writ petition No. 69 of 1964, Ved Prakash v The Custodian General on this point.

In view of our finding that the order of the Custodian dated 1561964, suffers from a serious error of law apparent on the face of the record we

would allow this petition and quash the order of the Custodian Jammu dated 1561964 by a writ of certiorari.

It will, however, be open to the Custodian to rehear the entire case on merits as directed by Custodian General and pass orders in accordance

with law.

In the circumstances, we make no order as to costs. I agree. (Sd) J. N. Wazir.