Fardunji Navroji Dastur vs Custodian, Evacuee Property and Another

Shah, C.J.—This is a petition filed by F.N. Dastur for a writ restraining the Respondent No. 1, the Custodian of Evacuee Property, from

allotting the Diamond Talkies Theatre at Jetpur to anyone and from taking over possession of the same from the Petitioner. The Petitioner is a

tenant of the Diamond Talkies, having taken it on lease in February 1940 from its owner, one Abdulla Alimahmad Motiwalla. The original lease

was for two years and on its expiry the theatre was taken on a five years'' lease, which expired on 31st December 1947. Then a fresh lease was

made for one year with an option to extend it for one year more and together with the said extension, the lease was to expire on the 31st

December 1949. Abdulla lived all along in India and was never an evacuee. He died in December 1948, but most of his heirs had migrated to

Pakistan and it is alleged by the opponents that Abdul Satar, one of the sons of Abdulla, was the only heir left in India at the time, and that he was

an intending evacuee. The property of Abdulla, including the theatre in question, was declared evacuee property on August 11, 1949 but the

validity thereof has been disputed by the Petitioner on various grounds.

1a. The Assistant Custodian later issued a notice dated December 10, 1949 being a general notice, and not directed to the tenants of Abdulla''s

property alone, requiring the tenants of all evacuee properties to pay the rent and all arrears of rent to him, and it is admitted that the Petitioner has

paid the rent since then to the Assistant Custodian and that he is not in arrears of rent.

The Petitioner apprehended that the theatre might be given away on lease to some refugee and he therefore applied to the Custodian on December

22, 1949, stating that he was in possession of the theatre under a valid lease and was entitled to remain in possession till the expiry of the lease and

for one year thereafter, viz., till the end of 1953, and he prayed that he may not be ejected from the theatre. The lease referred to therein was a

contract evidence (sic) is now alleged that a regular document of lease had been executed by the said Abdul Satar in favour of the Petitioner on

January 2, 1950. The above-said application was transferred to the Deputy Custodian who instituted an enquiry into the same, and as it was

contended on behalf of the Petitioner that he had not been given a proper notice under the Rules for the Administration of Evacuee ""Property, a

notice dated March 1, 1950, was given to him. through his Advocate Mr. Mehta requiring him, to show cause why an order for cancelling the

lease'' and evicting him should not be made. The Deputy Custodian after a full enquiry passed an order on August 21, 1950, holding, that the

property had already vested in the Assistant Custodian, who alone was competent to renew the lease, that in the absence of a renewal by him, the

lease had determined by efflux of time on December 31, 1949, and that the Petitioner was liable to be ejected. Accordingly, he ordered the

Petitioner to vacate the premises on October 1, 1950. Against this order, the Petitioner appealed to the Custodian, who dismissed the appeal on

September 26, 1950. A revision application preferred to the Custodian General, Delhi, was also dismissed. The Petitioner has thereafter filed the

present petition.

Of the various contentions urged by Mr. Palkhiwala for the Petitioner the first is that the property of Abdulla Alimahmad Motiwalla, including the

cinema theatre, was not duly and validly declared evacuee property. One of the grounds of the contention is that the notice dated 11th August

1949, by which the property of the said Abdulla was declared to be evacuee property, has not been signed by the Assistant Custodian under

whose signature it purports to have been issued. Several other grounds have also been urged in support of the first contention, which need not be

detailed here, and the learned Advocate General has replied to each one of them maintaining in the end that the property of Abdulla had been duly

and validly declared evacuee property. The second contention urged for the Petitioner is that there has been no valid termination of the Petitioner''s

lease or interest in the property and that the Petitioner continues to be the lawful tenant of the premises. It is also urged that a statutory tenancy was

created between the Assistant Custodian and the Petitioner by reason of the Assistant Custodian having asked the Petitioner to attorn to him which

the Petitioner has done, by way of payment of the rent which has been. duly accepted and that the Petitioner could not therefore be evicted except

by a due process of law. The third contention is that in any event the Petitioner having entered on the property under a legal title., he could not be

evicted by the Assistant Custodian except by a due process of Court and that he was protected by the Bombay Rents, Hotel and Lodging House

Rates Control Act No. LVII of 1947 as adapted to Saurashtra. In the view we are taking of this case, we do not consider the first and second of

these contentions as being material for basing our decision and we do not propose to deal with them.

Now one of the provisions under which the Custodian can proceed to demand possession of the premises in question is Section 12 of the

Administration of Evacuee Property Act, 31 of 1950. Under Sub-section (1) of the Section, notwithstanding anything contained in any other law

for the time being in force, the Custodian, among other things, may determine any lease under which any evacuee property is held or occupied by a

person, where such lease has been entered into after the 14th August 1947. Under Sub-section (2) where by reason of any action taken under

sub-section. (1), any person has ceased to be entitled to possession of any evacuee property, he shall on demand by the Custodian surrender

possession of such property to the Custodian or to any person duly authorised by him in this behalf and under Sub-section (3) if any person fails to

surrender possession, the Custodian may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such

person and take possession of such property in the manner provided in Section 9.

Therefore if the Petitioner held the property in question under a lease granted in his favour prior to 14th August 1947, then obviously the Custodian

cannot terminate the lease, and it is urged that the Petitioner should, in this case, be deemed to have been holding under a lease prior to August 14,

1947. The tenancy here commenced originally in February 1940, but it was renewed from time to time by fresh leases and the last lease granted by

Abdulla Alimahmad was on January 1, 1948, for one year with an. option to extend for one year more. Therefore although the Petitioner has been

a tenant of the property since 1940, he was holding the same at the material time, viz., when the property was declared to be evacuee property,

under a lease dated January 1, 1948, that is, after August 14, 1947. Consequently, if the matter had rested on this ground the Custodian will not

be prevented from terminating the said lease u/s 12(1) of the Act and from proceeding to recover possession of the premises. However, in our

opinion, Section 12 will not apply in this case for other reasons, and we might mention that this view point was suggested to us by the learned

Advocate General himself.

One of the purposes of the Act is to inhibit all transfers of property by or on behalf of evacuee after the 14th August 1947 and this is evident from

Section 40 which says that no transfer of any right or interest in any property made in any manner whatsoever after the 14th August 1947, by or on

behalf of any person whose property is declared or notified to be evacuee property shall be effective unless it is confirmed by the Custodian.

Section 12 deals specifically with the case of a lease and empowers the Custodian to terminate a lease of evacuee property if the same was

entered into after 14th August 1947 and although it is true that Section 12(1) is widely worded so as at first sight to cover a lease granted by a

non-evacuee even, having regard to the scheme of the Act, a restrictive meaning should be placed on the language of Section 12(1) and it should

not be construed as including within its ambit leases granted by a non-evacuee; and this interpretation is borne out by Rule 14 of the Administration

of Evacuee Property Rules which imposes a restriction on the Custodian''s powers and says that he shall not ordinarily terminate the lease even

though the same may have been granted by a lessor who subsequently becomes an evacuee but not in anticipation of becoming an evacuee, so that

even if the lessor does ultimately become an evacuee, discretion has been given to the Custodian not to terminate such a lease. It follows therefore

that where a lease has been granted by a person, who was never an evacuee, the Custodian will not have the power to cancel such a lease. The

lease here was granted by the deceased Abdulla on January 1, 1948, and it was to expire, along with the period of extension, on 31st December

1949. The property left by him was declared to be evacuee property in August 1949 prior to the expiry of the lease, so that the Petitioner was

holding the property under a lease granted by a non-evacuee, and such a lease could not be terminated by the Custodian. Therefore the Custodian

is not entitled to demand the surrender of possession of the premises in question in exercise of his powers u/s 12 of the Act.

There is also Anr. objection to the Custodian demanding surrender of possession of the theatre in question. It is competent to him, to demand

surrender of possession where by reason of any action taken by him under Sub-section (1) of Section 12 any person has ceased to be entitled to

possession of any evacuee property. This presupposes that the Custodian has terminated the lease u/s 12(1), and it is only when he has done so

that he can invoke the aid of Section 12(2) and if the person fails to deliver possession he can eject him under Sub-section (3). However the

Custodian here has not exercised his powers under. Section 12(1) and has not determined the'' lease. Instead the lease has been allowed to expire

by efflux of time. As it is, it has not been formally terminated by the Assistant Custodian at any time. It is only where the Custodian takes action

under Sub-section (1) and in exercise thereof terminates the lease, that the provisions of Sub-section (2) come into play, and as this has not been

done, Sub-sections (2) and (3) of Section 12 will not assist the Assistant Custodian in demanding possession of the theatre and in ejecting the

Petitioner from the same.

The other provision of the Act under which the Custodian can demand the surrender of possession of the property is Section 8(4) which

provides that where after the vesting of any evacuee property in the Custodian any person is in possession of any such property, he shall be

deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly

authorised by him in this behalf If the person in possession of any evacuee property refuses or fails on demand to surrender possession the

Custodian will have the power to take possession of such property u/s 9 of the Act. This assumes that the Custodian is entitled to recover

possession.

In considering the scope and extent of the Custodian''s powers here, it has to be remembered that the Petitioner was holding the property at the

material time under a lease from. a non-evacuee and in the view we take of the scheme of the Act, the Act does not contemplate the dispossession

of persons who are in possession of the property from a person who was never an evacuee. Evidently again the Custodian cannot get any rights

higher than the lessor who was a non-evacuee, and the position therefore is that if the deceased Ab(sic) Assistant Custodian too cannot do so,

save by: recourse to ordinary law. This is so because the Bombay Rents, Hotel and Lodging House Rates Control Act, No. LVII of 1947 as

adapted to Saurashtra came to be applied to Jetpur on December 20, 1949, prior to the expiry of the lease and the applicant thereby came to

acquire the protection of the said Act. A tenant is defined in Section 5(11) of the Rent Act as any person by whom or on whose account rent is

payable for any premises and includes, among Ors. , any person remaining, after the determination of the lease in possession, with or without the

assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of the Act.

Therefore even if the Custodian had not assented to the Petitioner''s continuing in possession after December 31, 1949, the Petitioner would still be

entitled to claim the status of a tenant under the Rent Act, inasmuch as he has remained in possession of the premises after the determination of the

lease.

In any event therefore the Custodian is not to eject the Petitioner summarily from the theatre and he can do so only by having recourse to ordinary

law. Since the Custodian asserts that he has a right to take possession of the property in question from the Petitioner and threatens to eject him, a

declaration must be issued in favour of the Petitioner that he is entitled to remain in possession of the property called the Diamond Talkies Theatre.

Jetpur, and that the Respondent, the Custodian of the Evacuee Property, has no power to take possession of the said theatre either u/s 12 or u/s

8(4) read with Section 9 of the Act; and it is directed that a writ do issue restraining the Custodian of Evacuee Property from demanding surrender

of possession of the said property to himself or to any person duly authorised by him in this behalf and from taking possession of the same from the

Petitioner and from allotting the same ""to anybody. The Petitioner to have his costs of ""the petition from the opponents.

Chhatpar, J.

I agree.