Sardara Singh vs Custodian Muslim Evacuee's Property and another

Teja Singh, C.J.—This is a petition u/s 60 of Ordinance No. 10 of 2005 and Article 226 of the Constitution of India for issue of writs of prohibition etc., to the Custodian of Muslim Evacuee Property and the Director of Rehabilitation (Urban) Patiala & East Punjab States Union. The allegations of the petitioner are that he is a refugee from Sheikhupura District, and that when he migrated to Patiala in the year 1949, the Custodian by his order dated 28-2-2006 allotted to him the vacant piece of land included in the area of the Idgah and known as Khola, for a period of three years. The rent was fixed at Rs. 20/-per mensem. The petitioner got possession of the Khola and set up therein a workshop for service and repairs of automobiles and tractors. Later on, the Custodian cancelled the petitioner''s allotment in respect of a part of the Khola and allotted it to the Standard Vacuum Oil Company of New Delhi with a view to enabling them to set up a petrol pump and service station. The petitioner''s case is that the order of the Custodian cancelling the petitioner''s allotment in so far as it related to a part of the Khola, and allotting it to the said Company is illegal and without jurisdiction, first because no notice of the Custodian''s intention to vary the terms of the original allotment was given to the petitioner, and secondly because the Custodian did not act on his own accord but was influenced by extraneous considerations. Accordingly, the petitioner prays that the Custodian''s subsequent order be quashed, and that a writ be issued to him prohibiting him from evicting the petitioner from that part of the vacant site which he later on allotted to the Standard Vacuum Oil Company.

The petition was opposed by both the respondents and it was urged on their behalf that the part of the Khola which was allotted to the Oil Company was in excess of the requirements of the petitioner and the allotment was made for public purposes. It was further urged on behalf of the respondents that the requirements of law regarding notice, etc., were duly complied with and the petitioner was given every opportunity to put forward his objections to the cancellation, of his allotment.

As I have already mentioned, the original allotment in favour of the petitioner was made by the Custodian and it was he who cancelled the allotment in respect of a part of the Khola and allotted that part to the Standard Vacuum Oil Co. The correspondence that has been produced before me was also between the petitioner and the Custodian, and the petitioner''s counsel has not been able to show what part respondent No. 2, the Director of Rehabilitation (Urban) played in the affair and whether the petitioner is entitled to any kind of relief against him. I have, therefore, no hesitation in coming to the conclusion that he was dragged in Court without any reason.

As regards the Custodian, the condition is quite different. It is not denied that the allotment of the entire Khola that he made in the petitioner''s favour was for a period of three years. It is true that Section 12 of the Administration of Evacuee Property Act, 1950 (No. XXXI of 1950) gives the Custodian power to vary or cancel leases or allotments of evacuee property, but it is conceded by his counsel that the procedure for the exercise of this power is regulated by rules framed u/s 56 of the Act and it is laid down in Sub-rule (4) of Rule 14 of the Rules that before canceling or varying the terms of a lease or before evicting any lessee the Custodian shall serve the person or the persons concerned with a notice to show cause against the order proposed to be made and shall afford him a reasonable opportunity of being heard. Shri Banwari Lal counsel for the Custodian has conceded that this rule was binding upon the Custodian and before he could cancel the petitioner''s allotment even in part, it was incumbent upon him to give a notice to the petitioner and to give him an opportunity of being heard in support of his objections, if he had any.

Before I proceed to decide whether the petitioner was given a notice in the terms of Rule 14, Sub-rule (4), I would like to dispose of the plea raised by the petitioner''s counsel that Section 12 was ''ultra virus'' of the Parliament. His argument was that when the Custodian grants a lease of a Muslim evacuee property or makes an allotment of it to another person, relationship of lesser and lessee or landlord and tenant, as the case may be comes into existence between him and the other person, and this relationship can be put an end to only under the appropriate enactments, such as the Transfer of Property Act or the Rent Restrictions Act, under which the case may fall. He further argued that the Parliament by enacting Section 12 of Act No. 31 of 1950 empowered the Custodian to ignore the provisions of all those laws and since the matter was included in Item No. 18 of List II of the Seventh Schedule of the Constitution of India, laws in respect of which could only be made by the State Legislature, under Clause (3) of Article 246 of the Constitution the Parliament exceeded the authority vested in it by the Constitution. Item 18 of List II reads as follows:

Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land, land improvement and agricultural loans; colonization.

Section 12 of the Act is no doubt very widely worded and it may sometime happen that while exercising the power to cancel or vary a previous lease or allotment, the Custodian will have to override the existing law affecting the relation of landlord and tenant, transfer and alienation of land etc., that is to say, some of the matters to which S. 12 relates might come within the ambit of Item 18 of List. II But the precise item under Which the matter dealt with in S. 12 falls in Item 41 of List III which is a Concurrent List and laws in respect of which can be made by the Parliament as well as the State Legislature. The said item relates to "custody, management and disposal of property (including agricultural land) declared by law to be evacuee property." There is no doubt that all immoveable property is included in the term land and it can, therefore, be urged that Item 18 of List II includes all the matters dealt with in Item 41 of List III, but since the former item is general. Item 41 of List III which is specific, must be preferred to it. It may be pointed out here that a mere perusal of the three lists would go to show that many of the items included therein overlap one another and when one item is wide and general and the other is narrow and specific, with a view to finding out which would apply to a particular matter, the narrow and specific item should be taken to exclude the other. This is in conformity with the well-recognised rule of construction of statutes that when there are two provisions of law, one general and the other specific, the latter excludes the operation of the former. It follows from this that notwithstanding Item 18 of List II, the Parliament had the power to pass a law ''inter alia'' for the management of the property held by law to be evacuee properly and since the management includes not only the power to make an allotment and grant a lease, but also to cancel or vary the terms of allotments and leases already effected, S. 12 was not ''ultra virus'' of the Parliament.

It was also urged by the learned counsel for the petitioner that Section 12 was void for the reason that it offended against Article 14 of the Constitution. In my opinion, there is no force in his contention either. The words of this Article are "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India," Counsel argued that when one person enters into a contract with another person, he cannot vary or alter it unilaterally, but Section 12 of the Evacuee Property Act empowers the Custodian to vary the germs of allotment and leases made by himself irrespective of the fact whether.the other side agrees to it or not. It must, however, be remembered that the power given to the Custodian is by virtue of the office that he holds and I do not think that a law which vests a public officer or even a class of public officers with powers not possessed by an ordinary citizen, can be regarded as denying to the citizen the equality before the aw. According to the vary nature of things if administration of the country is to be carried on and an ordered government is to function, persons holding public offices have to be given powers which are not possessed by ordinary citizens. According to S. 12, the Custodian has power to vary the terms of all allotments and leases granted or entered into after the 14th day of August 1947 irrespective of the fact whether the other party belongs to a particular class or community. So it cannot be said that any distinction has been made between persons who obtain allotment and leases of evacuee property. The conditions would have been quite different if the section had laid down that leases and allotments granted or entered into with one class of people should be treated as sacrosanct while those granted or entered into with others, should be liable to cancellation or variation, etc.

What has now to be decided is whether the mandatory provisions of Rule 14 (4) in respect of notice were complied with. No particular form of notice is provided by the rules, but the words of Sub-rule (4) go to show that the following conditions have to be satisfied:

(1) that intimation should be given to the person concerned that it is proposed to cancel the term of his lease or allotments;

(2) that he should be informed that he has a right to put forward his objections to the proposed cancellation or variation of the terms; and

(3) that he should be given reasonable opportunity of having a say in support of his objections.

What happened in the present case was as follows: On 15-12-1949 the Custodian addressed a letter to the petitioner (Ex. p. A.), in which he informed him that it had been found on inspection of the plot which had been allotted to the petitioner that a part of it measuring 232 x 132 1/2" was not being put to any use by the petitioner and intimating to him that the above-mentioned part of the plot might be taken back from him for use by the Department for any other useful purpose, leaving behind the other measure 167'' * 177'' for his use. To this letter the petitioner sent a reply on 18th December, 1949. Ex. D. E. is the copy of that reply. The main points raised by the petitioner in the reply were that if the object, for which the allotment had been made to him, had to be fulfilled it was necessary that the part of the plot, which the Custodian described as lying without any use, had been left vacant so that it could be used for testing the vehicles which were brought to the workshop for repairs, etc., and that, in view of the development of his workshop, which he was contemplating, even the plot which had been allotted to the petitioner would not be sufficient. On the strength of these facts he submitted that he was not in a position to spare any part of the Khola. No further action Was taken by the Custodian on the receipt of the petitioner''s reply and the matter remained where It was for about 7 months till 14-7-1950, when the Custodian addressed another letter to the petitioner saying; that it was intended to give the whole of the Khola that had been allotted to the petitioner on a temporary lease to another person and in that case the petitioner would have to regard himself as the lessee of that person. The petitioner objected to this proposal and it appears that this was also dropped. On 20th July 1950 the petitioner received the following communication from the Custodian :

You are hereby directed to relinquish you possession of 9,1300 square feet land towards the railway gate immediately for the installation of Petrol Pump and Service Station to be run by the Standard Vacuum Oil Company, Queens-way, New Delhi. I am asking the said company to commence their construction there as per Ferro Plan submitted by them. This may be treated as most urgent.

A week later, i.e., on 29th July another order under the signatures of the Custodian was received by the petitioner. This order reads as below:

You were directed vide my letter No. 3119, dated 20-7-50, marked immediate, to relinquish your possession of 9,600 sq. feet land towards the Railway Gate for the installation of Petrol Pump and service station to be run by the Standard Vacuum Oil Company of New Delhi but I am informed that you have not done so uptil now. Please see the undersigned in office on Monday morning (9-0 A.M.) without fail in this connection and treat it as most urgent.

The final order is contained in the Custodians letter No. 757 dated 25-1-51. The operative part of the order was to the effect that a plot measuring 120'' x 80'', leaving 90'' from the Railway Gate site, out of the plot allotted to the petitioner having been found to be a surplus accommodation had been allotted to the Standard Vacuum Oil Company of Queens-Road, New Delhi, as desired by the Under-Secretary-Rehablitation vide his No. SR 4211, dated 14-7-50 and the possession of the plot had been handed over to Messrs Amir Chand and Sivsaran Das, representatives of the Company cited above. The concluding words of the order are:

It is, therefore, ordered that the allotment of the above-mentioned portion viz., 120'' x 80'' out of the plot already allotted to you is hereby cancelled.

It is conceded by the respondents'' counsel that no formal notice as contemplated by Sub-rule 4 of Rule 14 was given to the petitioner before his allotment in respect of the area of 120'' x 80'' was cancelled and the same was allotted to the Oil Company. He, however, argued that the letter of 15-12-49 that the Custodian addressed to the petitioner satisfied all the requirements of a notice. In my judgment the contention is devoid of force, and my reason for coming to this conclusion is that though the letter contained an intimation that it was proposed to take the above-mentioned area out of the petitioner''s obsession he was never told that he had a right to object to the proposed order and further no opportunity was afforded to him of being heard. This means that the provisions of Sub-rule 4 of Rule 14 were not complied with. In addition, as I have already observed, the proposal was dropped and the whole thing came to an end for the time being. The same remarks apply to the Custodian''s order conveyed in his letter of 14-7-50. As regards the subsequent orders and more particularly the final order of 25-1-51 it is not even alleged by the counsel for the respondents that they were preceded by any kind of notice, formal or informal, or that the petitioner was allowed an opportunity to put forward his objections to the proposed allotment of a part of the Khola to the Oil Company. My attention was drawn by the respondents'' counsel to the last sentence of the Custodian''s order of 29-7-50 directing the petitioner to see him in his office on Monday morning at 9-0 A.M., without fail. In the first place I cannot take this as tantamount to giving the petitioner a hearing to put forward his objections, because an opportunity of this kind had to be given before the allotment was varied or cancelled while it is clear from the preceding part of the letter as also from the previous letter of 20th July 1950 that a part of the petitioner''s Khola had already been allotted to the Oil Company. Then the petitioner alleges, and this allegation is supported by an affidavit, that in compliance with his order he went to the Custodian''s office on the appointed day and at the appointed time but he did not find him there. He further alleges that he again put in written objections to the cancellation of his allotment but they were never considered. The Custodian did not care to traverse the petitioner''s allegation on this point nor did he put in a counter affidavit. This means that no hearing was given to the petitioner in fact.

The other question that calls for determination is what is the effect of the Custodian''s failure to give notice to the petitioner and to afford him an opportunity of hearing before canceling his allotment. It is well established that when a Court of Law proceeds to decide a case against party without giving him a notice and without hearing him, the order made is without jurisdiction, because giving of a notice is a condition precedent to the Court''s power to decide the case. I may refer in this connection the following observation made by Bankes, L. J. in ''King v. North (1927) 1 K B 491:

The question which we, have to consider in this, case is what is the legal position of a person, against whom an order for the payment of money has been made in a judicial proceeding, where the person had no opportunity of being heard before the order was made? The rule of law applicable to such a case is thus stated in Brooms Legal Maxims, 9th Edn., page 78. "It has long been a received rule that no one is to-be condemned, punished, or deprived of his property in any judicial proceeding unless he has had an opportunity of being heard." That is the general rule which we have to apply, and I should like to refer to two cases: (After this, his Lordship referred to the cases).

Reference may also be made to '' Valliappa Chettiar Vs. Arandi and Others, In that case a petition had been made u/s 44B" Madras Hindu Religious Endowments Act, asking, for an order directing the resumption of certain Devadayam inam lands granted to certain tem pies, in a village. The petition was made by the trustees, of the temples and the respondents were the persons who were in possession of lands as alkenes. The respondents raised the contention that the-section had no retrospective effect and this objection was allowed by the Revenue Divisional Officer and he held that the petition filed by the trustees was not maintainable. On this the-trustees appealed to the Collector who without giving any notice to the respondents directed the Revenue Divisional Officer to reopen the case and decide it on its merits. The respondents then made a petition to the High Court for issue of a writ of certiorari to quash the Collector''s order-Learned Judges while accepting the petition made the following observation:

The District Collector is there to administer the law and not to ignore it. His action in deciding the appeal made to him under S. 44B (2) (d) without notice to the respondents was most high-handed and he aggravates the situation by claiming a right to act in this manner.

I am aware that the Custodian cannot be described as a Court of Law, but, as I have held in another case, in matters of this kind his functions are ''quasi judicial'' and it is incumbent upon him to follow the provisions of law as well as the rules that have the force of law. Consequently, I hold that when he ignores a mandatory rule and cancels or varies an allotment without giving notice to the persons likely to be affected by his order he acts without jurisdiction and his order roust be quashed for this reason alone.

In the result I allow the petition in so far as it relates to the Custodian and set aside his orders of 20th July 1950, and 29th July 1950 and 25-1-1951. As I am told that the petitioner has been dispossessed of the part of the Khola was which the Custodian has allotted to the Oil Company, during the pungency of these proceedings, I further direct the Custodian to take back the possession of that plot from the Oil Company or from, the persons who may be holding it on behalf of the Company, and to restore it to the petitioner. The Ordinary rule is that a successful litigant is; entitled to his costs against his adversary but I do not propose to apply this rule in the present case, because some of the points urged by the petitioner''s counsel, which resulted in considerable loss of public time, were frivolous and without any substance and I direct that the petitioner shale bear his own costs. For the reasons already mentioned the petition as against the Director of Rehabilitation shall stand dismissed with costs.