Samsudin Jhaver Khoja vs Assistant Custodian, Evacuee Property

Shah, C.J.—This is a petition filed by Sarnsudin Jhaver Khoja for a writ restraining and prohibiting the opponent, the Assistant Custodian from interfering with the applicant''s possession of the premises and from dispossessing the applicant of the same, and for declaring as invalid the order of the Assistant Custodian dated 12-2-1951 demanding possession of the premises from the applicant. The premises consist of a portion of a residential house situated at Rajkot, belonging to one Bahadur khan Sultankhan. The said Bahadurkhan having migrated to Pakistan, he was declared, an evacuee and all his property, including the house in question, was declared evacuee property. The applicant was thereafter served with a notice, dated 12-2-1951 requiring him to surrender possession of the premises by 28-2-1951. After the service of the notice and on 27th February, viz., a day prior to the expiry of the notice, he represented to the opponent that he was in possession of the premises as a tenant of Bahadurkhan on a monthly rent of Rs. 20/ - and he offered to pay the arrears of rent and paid Rs. 160/ - on the same day and Rs. 200/ - on 7th March 1951. Since the applicant claimed to be in possession of the premises as a tenant of Bahadurkhan, the opponent served him with a notice dated 5-3-1951 to produce the rent note, if any, but the applicant failed to produce the same, and apprehending that the opponent would eject him from the premises, he filed the present petition in this Court on 26-3-1951.

The first contention urged by Mr. Baxi is that no notice u/s 7, Administration of Evacuee Property Act, 31 of 1950 was served on the applicant, and that the property was therefore act duly declared to be evacuee property. Under Rule 6 of the Administration of Evacuee Property Rules 1950, the notice u/s 7 is to be served on the person claiming title to the property or interest or any other person or persons, whom the Custodian considers to be interested in the property. The applicant had no title to the property nor any interest therein, and a notice to the applicant personally was therefore not at all necessary. As for the notice to be issued to any other person, whom the custodian considered to be interested in the property, that was in the custodian''s discretion, and in this case there was no material whatever before the custodian, to induce him to consider that a notice to the applicant was necessary. It is not denied that the Custodian (here the Assistant Custodian) had made the necessary enquiry u/s 7 before declaring the property as evacuee property, and it must be taken therefore that the property was duly declared evacuee property. On such declaration the property vests in the Custodian and u/s 8(4) of the Act where the property is vested in the Custodian, any person who is in possession thereof, is deemed to be holding it on behalf of the Custodian and he is liable to surrender possession thereof to the Custodian or to any other person duly authorised by him in that behalf.

Accordingly the Assistant Custodian had served the applicant with a notice dated 12th February 1951 requiring him to surrender possession of the premises by the 28-2-1951, failing which he would be ejected from the premises with such force as may be necessary for the purpose. On the day previous to the expiry of the notice, he approached the Assistant Custodian and stated that he was a tenant of Bahadurkhan and offered to pay the arrears of rent and the payment was received by the Assistant Custodian on the faith of that representation. Evidently the payment was not made bona fide but was made with the ulterior object of setting up a plea of tenancy against the Custodian but with this point I will have occasion to deal later. It was perfectly open to and in fact it was proper for the Assistant Custodian to issue the notice of 5-3-1951 asking the applicant to produce the rent note, if any, under which he claimed to be Bahadurkhan''s amount of the premises if no such lease was produced it was competent to him to consider whether and if so, what action he should take u/s 12 of the Act.

Under the said section, the Assistant Custodian could not cancel or terminate the lease if it was, prior to 14-8-1947, and the applicant would have been entitled to continue in possession subject to the terras of the lease. But if the lease was subsequent to 14-8-1947, then the Custodian had the power to cancel the lease u/s 12(1), and under Sub-section (2) thereof to demand surrender of possession of the property to himself or to any person duly authorised by him in that behalf and under Sub-section (3) if the applicant failed to surrender possession of the premises on demand, the Custodian had powers, notwithstanding anything to the contrary contained in any other law for the time being in force, to eject the applicant and take possession of the property in the manner provided in Section 9. By coming to this Court the applicant has forestalled the further action to be taken by the Assistant Custodian and he has in fact prevented further enquiry into his alleged rights as a tenant. The Assistant Custodian had the power to cancel the lease if it was subsequent to 14-8-1947 and to eject the applicant, summarily from the premises u/s 12(3) if after a demand the applicant failed to surrender possession. The Assistant Custodian was acting within the ambit of his own authority and he cannot be prevented from taking necessary action which he was competent to take in exercise of the powers vested in him under the Act. The present application is therefore not maintainable at all.

The applicant has even now not produced any lease and excepting for his bare statement, there is nothing to show that he was in possession of the property as a tenant of Bahadurkhan. It is now admitted that the tenancy was subsequent to 14-8-1947, and even if the tenancy was proved, the Assistant Custodian could terminate the same and eject the applicant. Mr. Baxi. has urged, in the alternative, that even if the tenancy was not established, the applicant was in possession as a licensee from Bahadurkhan and that as a licensee he had a right to continue in possession of the properly and was not liable to be ejected summarily and without recourse to law. This plea has not been made in she application and it is nowhere suggested that he was holding as a licensee. The plea cannot therefore be permitted to be taken; but even if it was permitted a licensee has no more rights than a lessee and a licence could be revoked at any time, much more so here since, if at all, it came into existence after 14-8-1947. The applicant is thus in unauthorised possession and he is liable to be ejected summarily from the premises.

Mr. Baxi has next contended that by reason of the payment of the arrears of rent which were received by the Assistant Custodian, the Assistant Custodian recognised him as his tenant and that a tenancy was created between him and the Assistant Custodian in consequence of which he cannot be evicted excepting by recourse to the Civil Court and on grounds which might justify the eviction of the tenant under the Rent Control Act. The receipts, Exhibits 4 and 5, for the payment are on printed forms and they no doubt mention, in the usual course, that the sum was received as for rent of the premises which the applicant had taken on lease from Bahadurkhan, but the receipts cannot be read literally and must be viewed in the light of the circumstances in which the payment was made. The payment appears to have been made by misrepresentation that the applicant was a tenant of Bahadurkhan and was paying the arrears of rent. The acceptance of the moneys does not in our judgment mean that the Assistant Custodian either admitted the applicant as a tenant of Bahadurkhan or accepted him as his own tenant. u/s 105, T.P. Act, a lease of Immovable property is a transfer of a right enjoyed in the property in consideration of a price and the requirement of a consideration for a lease shows that it can only be the outcome of a contract and where there is no contract there can be no lease. The mere fact of one person paying and Anr. person receiving the rent will not necessarily create the relationship of landlord and tenant between them. Such relationship can only arise on the basis of a contract between the parties, and it is also necessary that there should be an intention to transfer an interest in the property. The payment was here received by the Assistant Custodian on the representation (which now turns out to be false) that the applicant was a tenant of the property, and by no stretch of reasoning can it be construed as an intention on the part of the Assistant Custodian to create a tenancy. The fact that the applicant was served with a notice dated 5-3-1951 to produce the rent note, if any, for the purpose of ascertaining whether the applicant was holding as a tenant, itself indicates that the Assistant Custodian had never intended to accept the applicant as a tenant of his own. This contention has therefore no substance and it must be rejected.

It was next argued that Sections 8 to 12 of the Administration of Evacuee Property Act were ultra vires as being inconsistent with the fundamental rights guaranteed under Articles 19 and 31 of the Constitution of India. This contention has been the subject of a decision of the Bombay High Court in -Abdul Majid v. P.R. Nayak 58 Bom LR 621 at p. 640 to 647 and it was there held that the Administration of Evacuee Property Act 31 of 1950 as also the Administration or Evacuee Property Ordinance No. 27 of 1949 did not in any way violate any of the fundamental rights guaranteed to the citizens under the Constitution. We agree with this view and reject the contention urged by Mr. Baxi. Mr. Baxi has urged that the Administration of Evacuee Property Act also offended against the fundamental right of equality before the law given by Article 14 of the Constitution. It is difficult to see how any question as to the equality before the law can arise and we cannot accept this contention.

A similar contention was rejected by Justice Shah of the Bombay High Court in -- Akhtar-ul-Imam v. R.V. Deshmukh Misc. Appln. No. 198 of 1950 (Bom), for the following reasons:

That Article provides that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. The Article applies to all persons, whether citizens or not of India and it only guarantees equality before the law and provides for equal protection of laws to all persons within the territory of India. But the Article does not mean that by enacting that provision the Constituent Assembly of India sought to incapacitate the legislatures from enacting laws which may be applicable only to certain classes of persons or to meet certain contingencies or eventualities. Article 14 was enacted in order to provide that in the application or administration of any law no discrimination shall be made between different persons governed by the same law. The legislature in enacting laws is however entitled to make classification of citizens, properties or activities dependent upon certain common or general characteristics, and to pass laws which may govern one or more classes of citizens, properties or activities and not Ors. . The effect of such classification and the enactment of laws on the basis of such classifications may ultimately be that an inequality may result. But Article 14 does not prohibit legislation which may operate against some classes and not against law. In my judgment the article enables all persons who may be governed by any law, to claim equality in the administration of that law and that if any law provided for any protection that protection must be available to all persons governed thereby.

We agree that the Administration of Evacuee Property Act does not contravene Article 14 of the Constitution.

Mr, Baxi finally contended that the Administration of Evacuee Property Act was beyond the legislative competence of Parliament in as much as it included certain provisions relacting to the relations of the landlord and tenant, as for instance u/s 12 of that Act which according to him fell within the purview of Item No. 14 of List II the State List, which includes inter alia land, i.e. rights in or over land, land tenures including relation of landlord and tenant and the collection of rent. We have considered the question carefully and we are unable to accept the contention because Administration of Evacuee Property has been recognised as a special class of legislation and it has been treated as such both in the Constitution, viz., under Article 31(5)(B)(iii), and in item No. 41 of List II, the Concurrent List, which latter relates to Custody, Management and Disposal of Property (including agricultural land) declared by law to be evacuee property. We are of opinion that ''management'' includes all ancillary questions of taking possession of evacuee property etc., and therefore the legislative competence of Parliament to enact the Administration of Evacuee Property Act No. 28 of 1950 cannot be disputed. This contention must therefore be rejected. In the result therefore this application fails and is dismissed with costs.

Chhatpar, J.

I agree.