S. Karam Singh vs The Custodian of Evacuee Property

This is a petition by Karam Singh Sobti under Article 226, Constitution of India, for the issue of a writ of certiorari or a writ of prohibition against the Custodian of Evacuee Property, Delhi.

2 The Petitioner is in occupation of a portion of a house No. 10 Curzon Road, New Delhi. The Respondent, namely, the Custodian, is taking steps to eject him from this house and the prayer in the petition is that the Respondent be prohibited from evicting him.

The circumstance which have given rise to this petition are briefly as follows: Sometime in October 1947 (the exact date has not been stated and, in any event, is not relevant) the Petitioner occupied a portion of the bungalow described as 10 Curzon Road, New Delhi. It appears that his possession was recognised by the Custodian of Evacuee Property although no formal order allotting these promises to the Petitioner appears to have been passed. There were two other persons in occupation of portions of the same house. In August 1948 an allotment of a portion of this house was made in favor of Dr. Dewan Chand Aggarwal, a Physician and Radiologist, who belonged to Lahore and had applied for residential accommodation in New Delhi Dr. Dewan Chand Aggarwal was a well known Radiologist and his claim was supported not only by the Director General of Health Services of India but also by some Ministers of the Central Government. It may be mentioned here that there was nothing irregular or undesirable about the support secured by Dr. Dewan Chand Aggarwal as allotment in New Delhi was to be made according to certain rules and considerations and one of these considerations was that preference was to be given to eminent doctors, professional gentlemen and technicians. On 17.11.1947 the various occupants of 10-Curzon Road were called by the Custodian so that the accommodation allotted to Dr. Dewan Chand Aggarwal might be made available. According to the orders of the Custodian, Dr. Dewan Chand Aggarwal was to have six rooms in this house. He succeeded in getting possession of four rooms. Three of these rooms were originally in possession of one Mr. Vasudeva and one room was taken from the Petitioner. Therefore, the position now is that Dr. Dewan Chand Aggarwal has four rooms, the Petitioner two and the remaining three rooms are in possession of a their occupant. In order to provide the remaining two rooms to Dr. Dewan Chand Aggarwal the Custodian proposed giving alternative accommodation to the Petitioner elsewhere The Petitioner however, did not agree and refused to move out of the house. He declined to accept the other accommodation offered by the Custodian presumably on the ground that this accommodation was not suitable

The Petitioner brought a suit against the Custodian after serving him with a notice u/s 80, CPC This suit was, however dismissed on 9-3-1850 on the ground that civil Courts had no jurisdiction to deal with the matters which came within the competence of the Custodian. The Custodian had in the meantime posted a surrender notice on the premises occupied by the Petitioner on 20-12-1949. The execution of this notice was stayed by the civil Court, but as soon as the suit was dismissed the Custodian was at liberty to event the Petitioner and take possession of the premises. After the dismissal of the suit the Petitioner put in the present petition on 3-4-1950. The Petitioner''s case is that the Custodian has not complied with the requirements of the Administration of Evacuee Property Ordinance, 1949 (Ordinance No. XXVII(27) of 1949), and inasmuch as the functions of the Custodian are of a judicial or at any rate quasi judicial nature this Court has power to interfere under the provisions of Article 226, Constitution of India.

It is scarcely necessary to discuss the nature of a writ of certiorari or a writ of prohibition or to state in detail the circumstance in which such a writ can be issued by this Court, as the matter has arisen several times in this country and has been considered in a number of reported cases. It will, therefore, be sufficient it I make a brief reference to one or two cases in order to indicate how and in what circumstances such a writ can properly issue.

Chagla C.J. observed in. P.V. Rao Vs. Khushaldas S. Advani,

A writ of certiorari can only be issued against an inferior Court or against a person or persons who are required by law to act judicially or quasi judicially. It is a high prerogative writ and its purpose is to prevent a judicial or quasi-judicial body from acting in excess of the jurisdiction conferred upon it by law or to see that in exercising its jurisdiction the body acts in conformity with principles of natural justice. Such a writ can never lie to correct executive or administrative acts. An executive or an administrative act may be illegal or ultra vires and a subject may challenge it in. a Court of law, but he cannot challenge it by a writ of certiorari. The very basis and foundation of the writ is that the act complained of must be a judicial or a quasi-judicial act.

Wherever any person or tribunal has to perform judicial or quasi judicial act and the authority conferred upon it by law is exceeded the High Court can interfere by issuing a writ of certiorari or a writ of prohibition Atkin L.J., in Rex v. Electricity Commissioners,. London Electricity Joint Committee Co., (1920), Ex parte, (1924) 1 K.B. 171 : 93 L.J.K.B 390 observed:

Wherever any body of persons have legal authority to determine questions affecting the rights of others and have the duty to act judicially, and act in excess of the legal authority, they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs.

Therefore, what is necessary is that there must be a duty cast by law upon a parson to deter, mine the rights of others in a judicial or quasi-judicial manner. This implies that before any order with regard to these rights is passed by such a person, there must be a dispute between the various persons, there must be two sides of the question, there must be a claim on one side and a counter-claim or opposition on the other, and the person vested with legal authority must be obliged to consider both the sides of the question and decide it fairly and judicially. If in such a case he exceeds the powers conferred upon him by law his order will be subject to interference by the issued of a writ of certiorari for a writ of prohibition. A purely executive act cannot be corrected or interfered with in this manner.

We find that the powers of the Custodian are defined by Ordinance No. 27 of 1949. These powers can only be exercised in a certain manner "described in the provisions of the Ordinance. Section 53 provides for the framing of certain rules, and rules have in fact been framed. These rules were published in the Gazette of India on 6-12-1949 in Notifn. No. 14 (102) Cus/49. Section 3(4) of the Ordinance empowers a Custodian to demand possession of evacuee premises from any person in possession. u/s 12, the Custodian can vary or cancel leases or allotments of evacuee property, that is, if he has allotted certain premises to a certain person ho can cancel this allotment and put somebody else in possession. Under the rules framed by the Government of India certain restrictions, how-over, have been placed on the powers of the Custodian. An occupier of evacuee property can only be ejected if the conditions under which a tenant under ordinary law may be ejected are fulfilled. Section 9(l)(f), Delhi-Ajmer Merwara Rent Control Act provides that a tenant can be ejected if he has been allotted a suitable residence. It was argued before us that an occupier of evacuee property can be ejected only if other suitable residence has been allotted to him, and unless this is done the Custodian of Evacuee Property cannot take Steps to eject him. Counsel for the Custodian contended that the Custodian had on several occasions offered other accommodation to the Petitioner but the Petitioner bad leach time refused it without good cause, The offer of accommodation, however, is not; enough. Under law, suitable accommodation must actually be allotted to an occupier or person in possession of evacuee property before he can be ejected. It is, therefore, clear that in this case the Custodian did not comply with the requirements of law and as his functions are of a quasi-judicial nature the Petitioner is entitled to a writ of prohibition against the Custodian. I would accordingly issue a writ of prohibition directing the Custodian not to eject the Petitioner from the premises occupied by him. The issue of this writ does not preclude the Custodian from passing a proper order after complying with the necessary provisions of law. In the circumstances of the cage I would leave the parties to bear their own costs.