Om Parkash Kapur vs The Competent Officer etc.

R.S. Pathak, C.J.—This Letters Patent Appeal is directed against the judgment and order of Hardyal Hardy, J., dismissing the petition filed by the Appellant under Articles 226 and 227 of the Constitution.

When disposing of the writ petition, the learned single Judge relied not on the documents on the record of the Court but also upon the official Government record. During the hearing of this appeal, learned Counsel for the parties freely relied upon both records without objection by the one party to the other doing so. And for the greater convenience of this Court, they filed copies of documents taken from the official Government record and have prayed that they are taken as supplementary material on the Courts record. The facts set out below are taken from the entire record before us. It is necessary to set them out in some detail in view of the contentions raised before us.

The "Exchange" is a building situated on The Mall, Simla. It consists of some shops and flats for business and residential purposes. A half-share in the building belonged to one Khan Bhadur Inayatullah, who later migrated to Pakistan. Accordingly that half-share was treated as evacuee property and therefore vested in the Custodian of Evacuee Property. The other half-share in the building is Muslim wakf property and belongs to the "Kashmiri Mosque" administered by the Respondent No. 3, the Trustees of the Muslim Trust Properties or, as they are commonly described, the Muslim Trust Committee.

In 1947 the Appellant''s father was allotted a shop in the building, and in 1947 this was transferred to the Krishna Furnishing Company, of which the Appellant is a partner. An adjoining shop in the same building was allotted to the Appellant separately.

On April 28, 1959, the Respondent No. 3, on behalf of the Kashmiri Mosque, made an application u/s 7 of the Evacuee Interest (Separation) Act, 1951, pointing out that the building was composite property and praying that the evacuee interest should be separated by metes and bounds. The Sub-Inspector, Evacuee Property, expressed the view that partition by metes and bounds would be a difficult task and take much time. On April 28, 1959, the Competent Officer made an order deciding that it would be more convenient if the evacuee''s share in the property was sold by public auction and thereafter the auction purchaser could have the property partitioned through a civil court. In case, he noted, an adequate price was not fetched at the auction then partition by metes and bounds could be resorted to for separating the evacuee from the non-evacuee interest. Accordingly, the auction was fixed for June 12, 1959. Both the Appellant and Respondent No. 3 bid at the auction. While the highest bid of the Respondent was Rs. 45,000/-, that of the Appellant was Rs. 45,100/-. The Appellant was declared the highest bidder and he deposited 10% of the bid-money on the same date. For more than two years the Appellant did not hear from the authorities in the matter, and on August 23, 1961, he wrote to the State Government Officer, Patiala, setting out the facts and praying for possession of the building. On March 2, 1962, the Competent Officer, Patiala, advised the Appellant that the bid offered by him for the half-share in the building had not been accepted because it was less than the minimum reserved price fixed, and that now the whole building would be sold. On May 14, 1962, the entire building was put to auction. The Respondent No. 3 did not bid. The Appellant offered the highest bid of Rs. 61,500/- and deposited 10% there of. It appears that the Government Auctioneer, Messrs Bhardwaj and Company, made a report that the property could fetch more if re-auctioned. On July 9, 1962, the Competent Officer, Patiala, wrote to the Appellant that the bid had been rejected as being below the reserved price, and that in case the Appellant proposed to make a higher offer for the property he should appear before the Competent Officer on July 25, 1962. It appears that meanwhile the Respondent No. 3 made representations claiming that the evacuee interest should be transferred to it at the market value, and that if auction was to be effected for the purpose of separating the evacuee interest, only the evacuee interest should be sold. In the meeting of July 25, 1962, both the Appellant and the President of the Respondent No. 3 were present before the Competent Officer. The Competent Officer made an order on that date noting that the whole building had been valued at Rs. 1,20,000/- and that the evacuee interest could therefore be valued at Rs. 60,000/-. He observed that under Rule 11-B of the Evacuee Interest (Separation) Rules the evacuee interest could be transferred to a non-evacuee co-sharer if it was of value less than Rs. 10,000/-. He explained that the auction of the whole building was ordered because it was considered that the reserved price would not be fetched in case a half-share only was auctioned, but he went on to observe that in view of the statement of the President of the Respondent No. 3 that the Trust could bid Rs. 60,000/- for the evacuee interest he ordered the auction of the evacuee interest only on the Respondent No. 3 depositing Rs. 6,000/- failing which the entire property would be put to auction. The Respondent No. 3 deposited Rs. 6,000/- and on August 2, 1962, the Competent Officer made an order directing the auction sale of the evacuee interest in the building, and further that the bid should commence from Rs. 60,000/-. The auction sale was fixed for September 17, 1962, and the Appellant was informed accordingly.

However, the record shows, that meanwhile Shri Hafiz Mohammad Ibrahim, the then Minister for Irrigation and Power in the Government of India, had interested himself in the matter on behalf of the Respondent No. 3, and he wrote to Shri Dharam Vira, Secretary, Rehabilitation Department, Ministry of Works, Housing and Supply, Government of India, recommending that the property should not be auctioned but that the evacuee interest should be sold to the Muslim Trust Committee. The Settlement Commissioner conveyed a copy of the Minister''s letter to the Custodian, Evacuee Property, Punjab, and on August 17, 1962, the Additional Custodian wrote to the Settlement Commissioner that:

In view of the suggestion made by the Minister of Irrigation and Power in his D.O. under reference, the Competent Officer has been requested to stay the auction on the ground that the evacuee portion of the Exchange building is to be transferred to the Muslim Trust Committee, Simla, on the basis of negotiation. A case u/s 10(2)(o) of the Administration of Evacuee Property Act to transfer the evacuee portion on its reserved price to the Trust is being sent separately for approval of the Custodian-General.

On the same date the Additional Custodian wrote to the Competent Officer intimating that it was proposed to transfer the evacuee property to the Respondent No. 3 and the case was being referred to the Custodian-General for his concurrence u/s 10(2)(o) of the Administration of Evacuee Property Act. The Additional Custodian requested the Competent Officer to stay the auction proceedings and intimate the reserved price of the evacuee share so that reference could be made to the Custodian-General. The auction of the property was accordingly stayed by the Competent Officer.

On September 14, 1962, the Custodian of Evacuee Property enquired from the Competent Officer whether any party was willing to offer more than Rs. 60,000/-for the evacuee interest in the building. On September 25, 1962, the Competent Officer replied that no definite offer of more than Rs. 60,000/-had been received but it could be expected that the Appellant, who was the highest bidder in the previous sale, would offer a higher price because on July 25, 1962 when the offer of Rs. 60,000/- was made by the Respondent No. 3 and it was decided to auction the property, the Appellant had indicated his desire to participate in the auction.

Meanwhile, it appears, the Appellant wrote to the Custodian-General in the matter and he was informed by the Custodian-General on September 29, 1962, that "since half-share in the property in question has been dedicated to a mosque at Simla known as ''Kashmiri Mosque'' the property is being transferred to the Muslim Trust Committee.". The Appellant protested against that decision.

On November 17, 1962, the Competent Officer noted that although three months had expired, no information had been received from the Additional Custodian in regard to the property, and as the organisation of the Competent Officer was expected to be wound up in February 1963 the case could not be kept pending any longer and it was necessary for him to proceed in the matter. Accordingly, by an order of that date he directed that sale warrants be issued with a note that the bidding would start from Rs. 60,000/- as the bid of the Respondent No. 3. The auction was fixed for January 1, 1963, and the Appellant as well as the Respondent No. 3 were informed accordingly.

It appears that the Respondent No. 3 approached the Minister for Irrigation and Power again. On December 29, 1962, the Deputy Settlement Commissioner wrote to the Additional Custodian of Evacuee Property referring to the communication received from the Minister for Irrigation and Power that the property had been fixed for auction on January 1, 1963, and he requested the Additional Custodian to ask the Competent Officer to stay the auction. In reply, the Additional Custodian wrote on December 29, 1962, pointing out that the Respondent No. 3 had already agreed to participate in the auction and had deposited 10% of the reserved price and therefore the action to transfer the evacuee interest to the Respondent No. 3 u/s 10(2)(o) of the Administration of Evacuee Property Act should be deferred. He stated that the Competent Officer had intimated that a large number of people had come forward to offer higher bids and it was expected that the Custodian would get a good price at the re-auction. But on December 31, 1962, the Deputy Settlement Commissioner wrote to the Assistant Custodian that: "We have already committed ourselves to transfer the evacuee''s share in the above property to the Muslim Trust Committee on the basis of the proposal made by Shri Adya in his D.O. letter dated the 17th August, 1962. In view of this it would not be desirable to put the property to auction". He directed that the sale of the property should be stayed and a proposal for transfer of the evacuee''s share to the Respondent No. 3 u/s 10(2)(o) of the Administration of Evacuee Property Act should be submitted. The Settlement Commissioner sent a telegram to the Competent Officer ordering that the sale be stayed. Simultaneously, the Respondent No. 3 informed the Competent Officer that a telegram from the Rehabilitation Ministry was on its way to him for cancelling the auction. Upon that, the auction fixed for January 1, 1963, did not take place.

On January 24, 1963, the Custodian of Evacuee Property wrote to the Custodian-General for permission to sell the evacuee share at the reserved price of Rs. 60,000 to the Respondent No. 3 u/s 10(2)(o). The approval of the Chief Settlement Commissioner-cum-Custodian-General to the proposal was conveyed to the Custodian by a letter dated February 16, 1963. On February 27, 1963, the Custodian informed the Respondent No. 3 that sanction had been accorded and they should deposit Rs. 60,000. The Competent Officer was also informed accordingly by a letter dated April 24, 1963. Thereafter the Custodian wrote to the competent Officer that the Respondent No. 3 had deposited Rs, 54,000 and the entire" amount now deposited by them should be transferred from the Competent Officer''s account to the Custodian''s account.

On August 13, 1963, the Competent Officer made an order dropping the proceedings pending before him on the original claim made by the Respondent No. 3 and he directed that the amount of Rs. 60,000 be transferred to the Custodian as requested.

It appears that thereafter, in December 1963, the evacuee interest in the Exchange building was sold by the Custodian of Evacuee Property to the Respondent No. 3.

It seems that the Appellant and other occupants of the building were unaware of the aforesaid developments, and they offered to purchase the property on the basis that they were entitled as refugee-tenants to the property. On December 13, 1963, they were informed that their proposal could not be considered because it was composite property.

On September 18, 1964, the Respondent No. 3 applied u/s 13 of the East Punjab Urban Rent Restriction Act, 1949, for possession of the building. The occupant was described in the application as "Shri Jagdish Lal son of Shri Ram Dutta, Proprietor, Krishna Furnishing House, Shops Nos. 2 and 3, Exchange Building, The Mall, Simla". According to the Appellant, this was a deliberate misdescription of the tenant and no attempt was made to serve notice of the application at the Appellant''s address, and that instead notice was sent to an address at Chandigarh. The Appellant says that it was only on April 20, 1965, that it came to be known that an ex-parte order of eviction had been made. The Respondent No. 3, in its return, states that several attempts were made to effect service of notice on "Shri Jagdish Lal". No concrete facts, however, have been averred in support of that allegation. So far as the eviction proceedings are concerned, it appears from the return of Respondent No. 3 that the dispute has been amicably settled.

In May, 1965, the Appellant filed a writ petition, out of which the present appeal arises, praying for the quashing of the proceedings culminating in the transfer of the property to the Respondent No. 3 and praying for an order directing the auction of the property.

The writ petition was dismissed by Hardyal Hardy, J. On examining the official Government record he found that the Minister, Shri Hafiz Mohammad Ibrahim, had, in fact, been persuaded to interest himself in the case but he observed that the correspondence on the file did not show any attempt at influencing the decision of the Custodian-General or the Competent Officer, and in any event there was no evidence of "direct approach by the Central Government Minister" to the Competent Officer. He did find, however, that the letters written by Shri Hafiz Mohammad Ibrahim had actually influenced the eventual action taken by the Custodian Department in transferring the property to the Respondent No. 3. But he took the view that the ultimte action taken by the authorities was substantially in conformity with the Act and the rules, and no right of the Petitioner had been infringed.

And now this Letters Patent Appeal is before us. The appeal was heard sometime ago, but in view of the issues raised in the case learned Counsel were heard again to enable them to make fuller submissions.

It may be pointed out that arguments have been addressed before us by counsel appearing for the Appellant and the Respondent No. 3 only.

The first contention of the Appellant is that when the Competent Officer had ordered the auction sale for January 1, 1963, in the exercise of his functions entrusted exclusively to him u/s 10 of the Evacuee Interest (Separation) Act, 1951 (hereinafter more briefly described as "the Separation Act"), the Custodian, who was an authority constituted under the Administration of Evacuee Property Act, 1950 (referred to hereinafter as "the Administration Act") had no power to intervene in the proceedings taken by the Competent Officer. It is said that the Custodian has no jurisdiction to deal with composite property so long as the evacuee interest has not been separated by the Competent Officer from the non-evacuee interest therein. We are referred to the proviso to Section 8(2) of the Separation Act and reliance is also placed on Azimunissa and Others Vs. The Deputy Custodian, Evacuee Properties, District Deoria and Others, and Bhanwarlal and Anr. v. Regional Settlement Commissioner, Jaipur-cum-Custodian, Evacuee Property AIR 1965 S.C. 1885 . It is conceded that the Custodian has power to transfer the evacuee property u/s 10(2)(o) of the Administration Act. But it is urged that if his powers in that regard can be said to extend to composite property and be taken to be co-extensive with the powers of the Competent Officer in that behalf under the Separation Act, it should be held that the provisions of the Separation Act have abrogated the relevant provisions of the Administration Act, which is an earlier statute. We are referred to Section 3 of the Separation Act and Shri Ram Narain Vs. The Simla Banking and Industrial Co. Limited, V. Islar Singh v. Narain Singh AIR 1960 Pun(.) 111.

The relationship between the Administration Act ''and the Separation Act has been discussed by the Supreme Court in Dr. Raghu Nath v. Competent Officer, Delhi A.I.R, 19 7S.C. 131. The Supreme Court expressed the view that the Administration Act is a self-contained Code and that the Custodian constituted by it is not subject to the power or control of the Competent Officer exercising powers under the Separation Act. The two acts have different objects and schemes and the authorities established under them are independent of each other. The powers conferred on the Competent Officer had to be so provided that they can be exercised in harmony and consistently with the provisions of the Administration Act and the duties and functions of the Custodian thereunder. It was for that reason, it was observed, that the Legislature laid down in Section 10 of the Separation Act that the power conferred thereunder on the Competent Officer were to be subject to the rules made in that Act. Had it not been so, it was pointed out, they would have resulted in conflict in the exercise of the respective powers given to the Custodian and the Competent Officer by the two Acts, and consequently a failure in the smooth working out of the provisions of the two Acts. It was laid down that he Custodian could exercise the power to transfer the property vested in him and he was not subject to the power or control of the Competent Officer. In this view of the matter, the reliance placed by the Appellant on the principle mentioned in Shri Ram Narain (supra) and Hind Iran Bank Ltd. (supra) appears to be misplaced.

I am unable to agree that the Custodian has no jurisdiction in respect of a composite property. The expression ''Composite property'' has been defined by Section 2(d) of the Separation Act to mean "any property which, or any property in which an interest, has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 and-

(i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co-sharer or partner of any other person, not being an evacuee;.....

Section 2(e) of the Act defines "evacuee interest" in relation to a composite property as "the right, title and interest of an evacuee in that property". The right, title and interest of an evacuee in a property may be declared by the Custodian u/s 7 of the Administration Act to be evacuee property, and by Section 8 it vests in the Custodian or State. In Haji Suleman Yusuf Bhai v. Custodian of Evacuee Property A.I.R 1954 M. B. 173 the Madhya Bharat High Court held that property in which an evacuee has a share or interest, however small it may be, can be described as evacuee property for the purposes of the Administration Act. And in Mohd. Fazlur Rahman v. Custodian of Evacuee Property (sic), the Hyderabad High Court declared that Section 10 of the Administration Act empowered the Custodian to use the powers conferred therein even in the case of property in which non-evacuees had joint interest. There is nothing in the Separation Act which precludes the Custodian from exercising his powers under the Administration Act. He has the power to deal with an evacuee interest in a composite property in the discharge of his functions under the Administration Act. The Supreme Court did not lay down a contrary proposition of law in Bhanwarlal (supra). That was a case of composite property in which the evacuee interest was subject to a mortgage in favour of a non-evacuee. The Supreme Court held that u/s 10 of the Separation Act the Competent Officer could take all necessary measures for the purpose of separating the interests of the evacuees from those of the claimants, and that it was only after such separation that the evacuee interest got vested in the Custodian free from all encumbrances. The Supreme Court had Section 11 of the Separation Act in mind. The section frees an evacuee interest from encumbrances and liabilities. An evacuee interest which has already been declared as such u/s 7 of the Administration Act and has vested in the Custodian u/s 8 of that Act does not become vested again in the Custodian u/s 11 of the Separation Act. What Section 11 provides is that upon the Separation by the Competent Officer of the evacuee interest u/s 10 of that Act the whole property or, as the case may be, the evacuee interest in the property thus separated vests in the Custodian free from all encumbrances and liabilities. As a result of Section 11, the Custodian becomes empowered to take possession of such property by evicting the claimant asserting an interest in the composite property and other persons who may be in occupation thereof. The Supreme Court observed in Bhanwarlal (supra) that so long as proper action under the Separation Act was not taken to separate the evacuee interest the Custodian could take no action against those claiming to be mortgagees or their tenants who were said to be in possession of the property.

The Appellant relies upon the proviso to Section 8(2) of the Separation Act. That proviso does no more than declare that although the determination by the Custodian under the Administration Act that the property in question or any interest therein is evacuee property is binding on the Competent Officer, the Competent Officer is not debarred from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimants u/s 10. The proviso cannot be construed to exclude the powers of the Custodian in respect of the evacuee property under the Administration Act.

It must be remembered that the Separation Act has limited scope only. It was enacted, as the Statement of Objects and Reasons indicates, to provide an expeditious method for the assessment and separation of evacuee and non-evacuee interests in composite property, in order that the exact property or value thereof which vests in the Custodian may be ascertained, and besides this, where the property was in the exclusive possession of non-evacuee co-sharers or mortgagees, to enable partition of such property or settlement of non-evacuee claims, thus releasing further property for the benefit of the evacuee property pool. The Separation Act was also intended to cover cases where the property was in the possession of the Custodian and the non-evacuees holding interest therein were unable to obtain any benefit therefrom or satisfaction of their claims because of Section 17 of the Administration Act. The powers of the Custodian u/s 10 of the Administration Act remained undisturbed

In my opinion, the first contention of the Appellant must fail.

The second contention of the Appellant is that the transfer of the evacuee interest in the composite property by the Custodian in favour of the Respondent No. 3 is void because the Custodian did not exercise his independent judgment in the matter but was influenced entirely by the intervention of Shri Hafiz Mohammad Ibrahim, Minister for Irrigation and Power. The submission in substance is that the Custodian did not apply his mind to the requirements of the statute but surrendered his judgment to the influence of the Minister.

The impugned transfer purports to have been effected u/s 10(2)(o) of the Administration Act. Section 10 declares the powers and duties of the Custodian. It provides:

Powers and duties of the Custodian generally,-

(1) Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto.

(2) Without prejudice to the generality of the provisions contained in sub-section (1), the Custodian may, for any of the purposes aforesaid,-

....

(o) transfer in any manner whatsoever any evacuee property, notwithstanding anything to the contrary contained in any law or agreement relating thereto:

provided that the Custodian shall not sell any immovable property or any business or other undertaking of the evacuee, except with the previous approval of the Custodian-General.

....

It is clear from a reading of the aforesaid provisions that the Custodian can transfer evacuee property provided he conforms to the conditions set out in Section 10(1). He must consider it necessary or expedient to do so "for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act". And when he considers it necessary or expedient to do so, it is implied that he must exercise his own judgment in the matter. When making an order u/s 10(2)(o) he cannot surrender his judgment to any influence not contemplated by the Administration Act. He may take into consideration all proper and relevant information for the purpose of making an order, and when he does make the order the judgment exercised must be his. The statute has entrusted the function to him, and he cannot abdicate that function and yield to the influence or persuasion of another. What are the matters which he should take into consideration when exercising the powers u/s 10 must be gathered from the contents of Section 10(1) as well as the provisions of Section 10(2), which are merely illustrative of what can be done u/s 10(1). As is clear from Section 10(1) the scope of those powers must be spelt out from the object and policy of the Administration Act and also from such rules related to Section 10(2) as may be available.

This aspect of the case was apparently not present to the mind of the learned single Judge when he dismissed the writ petition. The learned single Judge has observed that the letters written by the Minister did influence the action eventually taken by the Custodian Department in transferring the property to Respondent No. 3. He should have proceeded further to determine whether the influence so brought to bear on the Custodian Department adversely affected the validity of the transfer having regard to the requirements of Section 10. He should have determined whether in the presence of that influence the Custodian when acting u/s 10 kept in mind the limitations on the exercise of his power postulated by Section 10(1). He should also have determined whether the decision to transfer the property was taken by the Settlement Commissioner or other authority and the Custodian merely adopted it, and if the answer was in the affirmative he should have gone on to the further question whether the discretion conferred by Section 10(1) could be exercised by the Custodian only or also by some other authority. Likewise, it was also a matter for examination whether the Custodian-General, while endorsing his approval under the proviso to Section 10(2)(o), had acted within the limitations implied by the statute. These considerations do not appear to have been placed before the learned single Judge and it seems, with respect, that the learned single Judge omitted to apply his mind to them. The need to consider this aspect of the case necessarily arose because of the grounds (iii) and (iv) taken by the Appellant in the writ petition that the action of the Custodian amounted to a breach of the statutory obligations conferred on that authority and that the transfer was decided upon under extraneous pressure. Indeed, during the hearing of the appeal by us it was pointed out by Shri Sushil Malhotra, learned Counsel for the Respondent No. 3, that the learned single Judge had not gone into the merits of the case and that his opinion on the merits was not before us. The error in the approach adopted by the learned single Judge arose apparently because he came to the conclusion that the Appellant had no right to maintain the writ petition, that the action complained of by the Appellant did not infringe any right belonging to him and that although the procedure adopted by the Custodian was irregular the Appellant was not concerned with it and no injustice had been occasioned to him. As in my opinion, on the considerations which will be set out presently, the approach adopted by the learned single Judge to the case before him was vitiated by material error, an enquiry which necessarily called for decision in this case was thus shut out. It is not a question of mere irregularity in the procedure adopted by the Custodian, it is a question whether the power exercised in effecting the transfer in favour of Respondent No. 3 was founded within the limitations of Section 10 of the Administration Act. If it was not, the transfer would be void, and thereupon the order of the Competent Officer dropping the proceedings would also be vitiated.

As this aspect of the case was not considered by the learned single Judge, we did not have the benefit of submissions thereon by learned Counsel for the parties.

At this stage, it may be appropriate to refer to certain observations of the learned single Judge. He has held that the case fell within Rule 11-B(a)(ii) of the Evacuee Interest (Separation) Rules and that as the Competent Officer was proceeding in error the intervention of the Custodian Department was justified. Now, if the intention of the Custodian Department was to point out to the Competent Officer the error which they saw in his procedure and the case had to be proceeded with under Rule 11-B (a)(ii), the power under that rule nevertheless fell to be exercised by the Competent Officer. And if the Custodian Department felt that the action should really proceed from them in regard to the evacuee interest, they could act only in accordance with law. The validity of their action plainly calls for judicial scrutiny in the light of the provisions of Section 10.

The learned single Judge has observed that in deciding to take action the Custodian Department saved valuable property from being transferred to the Appellant at a comparatively low price. It is a matter for consideration whether that comment is justified in the light of the material on the record, which includes the information supplied by the Competent Officer to the Custodian on September 25, 1962, that a higher bid than Rs. 60,000 offered by the Respondent No. 3 could be expected.

And now the question may be considered whether the Appellant is not affected by the impugned'' transfer and has no locus standi to maintain this proceeding. It is apparent that the Appellant was anxious to acquire the property for himself and this objective was pursued by him with single-minded devotion. He was an occupant of commercial accommodation in the building, and he had been in occupation ever since about the year 1947. He participated in each auction held by the Competent Officer and was the highest bidder in each and deposited 10%of the bid money promptly. He was engaged in continuous correspondence with the Custodian Department and the Competent Officer and made repeated requests to the former for purchasing the property. He was present before the Competent Office1" on July 25, 1962, when the President of the Respondent No. 3 also attended, and expressed his desire to bid at the auction for which the starting bid of Rs. 60,000 was offered by the Respondent No. 3 at its bid. Had the Minister not intervened, it is probable that the auction fixed for January 1, 1963, would have been held. All these circumstances indicate that the Appellant would have bid at the auction. That right was denied to him by the action taken by the Custodian Department consequent upon the intervention of the Minister. It is clear that the Appellant was no mere by-stander or stranger to the proceedings which culminated in the impugned transfer of the property. He was intimately involved in those proceedings. He had a real interest in them, and was affected by them, and he was therefore entitled to maintain the writ petition and therefore the present appeal.

It is urged by the Respondent No. 3 that the Appellant was no party to the proceeding under the Separation Act, and a his subsisted between the Respondent No. 3 as claimant and the Competent Officer only. It is said that as the bid of the Appellant had not been accepted at any of the auctions he had acquired no right or interest in the property and was therefore not an "aggrieved'' person. In my opinion, it is not necessary that a person who has participated in an auction should have acquired any title to the property before being entitled to maintain a writ petition. If, as was observed in Cooverjee B. Bharucha Vs. The Excise Commissioner and the Chief Commissioner, Ajmer and Others, , by Mahajan C.J., the officers concerned have conducted themselves in breach of the statute or if they have acted in excess of their jurisdiction it is open to a person bidding at the auction to apply for relief under Article 226 of the Constitution. A case in point is K.N. Guruswamy v. Mysore Government and Ors. AIR 1951 S.C. 592, the Appellant Guruswamy had bid at an excise auction but his bid was not confirmed by the Deputy Commissioner. One Thimmappa made an offer directly to the Excise Commissioner behind the Appellant''s back, and that offer was accepted. Guruswamy filed a writ petition in the Mysore High Court against the acceptance of Thimmappa''s tender by the Deputy Commissioner who had done so on a communication from the Excise Commissioner. The Mysore High Court dismissed the writ petition, but on appeal the Supreme Court, although it held that Guruswamy had obtained no right to the excise licence, nevertheless proceeded to observe:

The next question is whether the Appellant can complain of this by way of a writ. In our opinion, he could have done so in an ordinary case. The Appellant is interested in these contracts and has a right under the laws of the State to receive the same treatment and be given the same chance as anybody else. Here we have Thimmappa, who was present at the auction and who did not did not that it would make any difference if he had, for the fact remains that he made no attempt to out bid the Appellant. If he had done so it is evident that the Appellant would have raised his own bid. The procedure of tender was not open here because there was no notification and the furtive method adopted of settling a matter of this moment behind the backs of those interested and anxious to compete is unjustified. Apart from all else, that in itself would in this case have resulted in a loss to the State because, as we have said, the mere fact that the Appellant has pursued this writ with such vigour shows that he would have bid higher. But deeper considerations are also at stake, namely the elimination of favouritism and nepotism and corruption: not that we suggest that that occurred here, but to permit what has occurred in this case would leave the door wide open to the very evils which the legislature in its wisdom has endeavoured to avoid. All that is part and parcel of the policy of the legislature. None of it can be ignored.

In Sohan Lal v. Central Government 1972 P.L.R. 749 , the Appellants filed a writ petition in the Punjab and Haryana High Court challenging an order granting time to the Respondent to pay the balance of the auction price in respect of an auction of the property held in August, 1959. The writ petition was rejected inter alia on the ground that the Appellants had no locus standi. In appeal a Division Bench of the High Court reversed the finding, holding that the Appellants were in occupation of the property for a very long time and had applied for its transfer in their favour, that they had given the highest bid at a subsequent auction and deposited 1/5th of the amount, that they were greatly interested in acquiring the property and wanted the auction sale in favour of the Respondent set aside, and therefore they must be considered to be interested in the proceedings for extension of time to the Respondent and should have been made a party. It was not necessary, it was pointed out, that the Appellants'' bid in the subsequent auction should have been accepted and that they should have acquired title in the property. Reference may also be made to Rambharosa Singh Vs. The Govt. of the State of Bihar and Others, Sundarlal Baijnath Jaiswal v. State of Madhay Bharat AIR 1955 M.B. 161, Bhiru Mal alias Bhoju Mal v. The Financial Commissioner 1967 C. L.J. 518 . Ruttonjee and Company Vs. State of West Bengal and Others, and K.C. Pazhanimala and Others Vs. State of Kerala and Others,

On the other side, reliance has been placed on Bombay Salt and Chemical Industries Vs. L.J. Johnson and Others, but it seems to me that no proposition of law has been laid down there in contrary to the view taken in the above cases.

Learned Counsel for the Respondent No. 3 also relies on Baij Nath Prasad Vs. The State of U.P. and Others, but in that case Section 8 of the North India Ferries Act, 1878, was held to confer no right on the Petitioner to apply for the lease, and it was found that when the Commissioner accepted the tenders for the ferries and sanctioned the lease he did so because the law permitted it. Reference was also made to V. Punnen Thomas Vs. State of Kerala, where the Kerala High Court laid down that no citizen had a right to insist upon the Government to enter into business with him, and the Government like any private individual was entitled to enter or not to enter into a contract with any person, and that when the Government in doing so acted in accordance with law, no one could complain of an invasion of his civil rights. Both cases are distinguishable on their facts from the one before us.

The last objection of the Respondent No. 3 is founded on the doctrine of laches. It is contended that the Appellant has been guilty of laches inasmuch as, although the transfer was effected towards the end of 1963, the writ petition was not filed by him until May 26, 1965. It is pointed out that the refusal of the Custodian Department to transfer the property to the Appellant was communicated to him on July 30, 1963, and the Appellant took no further interest in the proceeding thereafter. It is said that it was only after he was in danger of eviction in the proceedings taken by the Respondent No. 3 that he decided upon coming to this Court for relief. To my mind, it is not possible to hold that the Appellant abandoned interest in the property after he was informed that it would not be sold to him. It is difficult to conceive that he would have done so having regard to the successive attempts made by him for the purpose of acquiring the property. It may be pointed out that although the eviction proceedings had been dropped and the parties had come to an amicable settlement in the matter the Appellant has continued to press the present appeal. It is evident from the facts disclosed by the record that the Appellant was unaware of what had transpired in respect of the property ever since July 1963. I am not satisfied that having regard to the facts and circumstances of this case the Appellant can be said to be guilty of laches. The objection raised on that ground is rejected.

The appeal is allowed. The judgment and the order of the learned single Judge are setaide. The case is remanded to a learned single Judge for fresh decision in the light of the observations made above.

The costs in this appeal will abide by the decision in the writ petition.

D.B. Lal, J.

I agree.