Soni Makan Kurji vs The Custodian of Evacuee Property and Another

Baxi, J.—The applicant has prayed for a writ of Mandamus or in the alternative for a writ of Prohibition restraining the opponents from evicting him from the premises in his occupation.

The applicant alleges that he is in occupation of certain premises at Vadal as the tenant of Haji Gani Adamji under a rent note dated Vaishakh Vad 13 St. 2003 (18.05.1947). This Haji Gani Adamji is an evacuee. That the Assistant Custodian of Junagadh i.e. the opponent No. 2 accepted him as a tenant and he has been paying rent to the opponent from November 1948. That by a notice dated 28.04.50 the opponent No. 2 asked the applicant to vacate the premises and hand over possession within 8 days. That he made various applications to various authorities against, the order without any result. He now applied to this Court by this application contending that the order of the opponent No. 2 terminating the tenancy and demanding surrender of the premises contained in his notice dated 28.04.1950 is ultra vires and without jurisdiction. It is the applicant''s case that before the Assistant Custodian or the custodian can terminate his tenant and evict him, it is incumbent upon them to serve a notice under Rule 14(4) of the Administration of Evacuee Property (Central) Rules 1950 asking him to show cause against the proposed eviction and giving a reasonable opportunity of being heard against the proposed order. That the opponent No. 2''s order was without jurisdiction as it did not comply with the above statutory requirement. It is not disputed by the opponents that the notice ordering him to show cause as required by Rule 14(4) was not served on the applicant, but it is contended that the Administration of Evacuee Property Rules were not enacted when the order was made and as the Administration of Evacuee Property Act by which alone the validity of the order has to be judged does not provide for any such notice, the validity of the opponent''s order could not be questioned on the ground of non-compliance with the provisions of Rule 14(4).

The authority to terminate or cancel a lease of evacuee property has been conferred upon the Custodian by Section 12 of the Administration of the Evacuee Property Act 1950. Under Sub-section (1) the Custodian is empowered to terminate a lease under which any evacuee property is held or occupied by any person where such lease has been granted after 14th August, 1947. It does not require as a condition of the exercise of the power that the lessee should be called, upon to show cause why the lease should not be terminated. The requirement of notice was introduced for the first time by the Administration of Evacuee Property Rules, 1950 which were published on 28-09-50, long after the opponents'' order was passed (28-04-50). When therefore the opponent No. 2 terminated the applicant''s tenancy and ordered him to surrender the premises, the opponent No. 2 was to be governed by the provisions of Section 12 of the Act alone, and if the opponent''s order was properly passed under that Act, it cannot be questioned because it did not comply with the provision of Rule 14(4) which was not even in existence on the date of the order. It is not suggested how the order is against the provisions of the Act and consequently the present application must fail.

The next question argued before us was whether the Administration of Evacuee Property (Central) Rules 1950 could be retrospectively applied so as to invalidate Orders already passed. This question was discussed by the learned Advocate General and we are of the opinion that the rule upon which the applicant relies cannot be given retrospective effect. The opponents had obtained a vested right after lawfully terminating the lease to demand surrender of premises u/s 12(2) of the Act and this right cannot be prejudiced by the subsequent enactment of a rule requiring that, before the power to cancel a lease is exercised, the lessee should be given an opportunity of showing cause against the order. On this point we may refer to the following observations contained in the "Interpretation of Indian Statutes" by Jagadish Swarup at page 415:

The validity or operation of any order validly passed or any act validly done by a judicial tribunal under the procedural law for the time being in force cannot be affected by any subsequent change in the said law.

The principle enunciated above applies to this case also. The Custodian is empowered to cancel leases created after 14th August 1947. Therefore, before he can exercise those powers, he has to satisfy himself that the lease is one which was granted after that date and which he can validly terminate. He is therefore exercising quasi-judicial functions when acting u/s 12(1) and his order terminating the lease is a quasi-judicial order. His order was in conformity with the law in force when it was passed and its validity cannot be affected by subsequent enactment of Rules requiring notice to be given to the lessee. These Rules can only apply to orders passed subsequent to their promulgation. We are therefore satisfied that the applicant has no case whatever under the Administration of Evacuee Rules.

We must nevertheless observe that as the Custodian exercises quasi-judicial functions when making an order u/s 12(1) of the Act, it is essential that his proceedings should be in conformity with principles of natural justice. In this case the initial order appears no doubt to have been made by the opponent No. 2 without hearing the applicant. But the latter subsequently made a representation to him. He even applied to the Custodian of Evacuee Property in revision against the opponent No. 2''s order. The order of the Custodian on this revision has been filed by the applicant (Ex. 6) and shows that the Custodian inquired into the applicant''s case. It cannot therefore be said that the applicant has not been heard at all in the matter. The applicant has produced a writing which he calls a "rent note" alleged to have been passed in his favour by the evacuee landlord. The opponent No. 2 states in his affidavit that the alleged rent note was never produced by the applicant in any of his applications and representations. It therefore, appears to us that the applicant did not produce all his evidence before the proper time and having lost his case before them in consequence, he has approached this Court for a writ and expects it to perform the functions of an appellate Court by admitting additional evidence and judging the propriety of the opponent''s orders in the light of that evidence. It is impossible that we can perform any such functions. It is obvious that this Court, in the exercise of its extraordinary jurisdiction is only concerned to see whether the authority whose order is challenged had jurisdiction to make the order. If the authority had that jurisdiction and complied with the requirements of law we have no jurisdiction to interfere with its order. We, therefore, decline to interfere and order that the application be dismissed with costs.

Shah, C.J.

I agree.