Tara Singh vs Minister of Rehabilitation and others

Teja Singh, C.J.—This is a petition by one Tara Singh for writs of certiorari and prohibition against the Minister of Rehabilitation, Patiala and East Punjab States Union the Custodian of Muslim Evacuees Property Patiala and Narain Singh son of Hira Singh, a resident of Patiala. In order to be able to understand the points involved in the petition it is necessary to refer briefly to the facts.

S. Harbans Singh Chhima, who had been appointed Custodian of Muslim Evacuees Property leased Shop No. 22 to the petitioner on 14-10-1947 and on 11-12-1947, he leased to him House No. 147. Both the house and the shop are admittedly Muslim Evacuees Property and the leases were originally for a period of one year each. Later on someone applied to the Department of the Custodian protesting against the leases granted to the petitioner on the ground that the petitioner was not a refugee from the West Punjab and that he had no right to be given any Muslim Evacuees Property. The Deputy Custodian forwarded the application to his Supervisor for inquiry and report. On 25-3-1948, the Supervisor reported that Tara Singh was in fact a refugee and that he possessed no residential house of his own at Patiala. Evidently on the strength of this report the Custodian passed order confirming Tara Singh''s leases and wrote a letter to the Deputy Custodian stating that Tara Singh being a refugee was entitled to the shop and the house that had been leased to him and directing that he should not be ejected. A copy of this letter was sent to the petitioner for information. It appears that inspite of this the petitioner''s troubles did not end and the Custodian''s Department continued to be pestered with applications challenging Tara Singh''s claim and praying for his ejectment from the shop and the house. Tara Singh then went and saw the Minister for Rehabilitation with an application setting forth the facts on the strength of which he bases his claim as a refugee and requesting that he be permitted to remain in occupation of the shop and the house in question. The Minister forwarded the application to the Custodian with the following endorsement dated 2-5-1949:

The applicant is known to S. Tirath Singh, Advocate, who certify (certifies) that he is a refugee. He has shown me some other documents also. In view of above his case may be considered and needful be done.

On 25-1-2006, which corresponds to 7-5-1949, the office submitted the file to the Custodian with a report, the concluding words of which are as follows:

... In other words, Tara Singh is entitled to the house and shop he is occupying and he should not be ejected. The case be filed.

By his order dated 27th Besakh, i.e., 9-5-1949 the Custodian accepted the recommendation of the office. The exact words of his order are: "As proposed." On 16-12-1949, Narain Singh respondent No. 3 appeared on the scene for the first time. He made an application to the Custodian in which he contested the right of Tara Singh to the Muslim Evacuees Property as he was not a refugee. He also prayed that the shop that was in Tara Singh''s possession should be taken from him and be allotted to him. The Deputy Custodian forwarded Narain Singh''s application to the Sub-Inspector of the ward in which the shop was situate for report. The Sub-Inspector''s report which was against Tara Singh came up before the Assistant Custodian who issued a notice to Tara Singh to appear before him and show that he was a refugee. Tara Singh appeared before the Assistant Custodian on 20-1-1950 and that officer recorded certain statements. Before, however, he could deal with the matter finally the Deputy Custodian sent for the record of the case and passed an order on 15-3-1950 holding that Tara Singh not being a refugee had no right to retain the shop. The last words of the order were:

I cancel the allotment made in his (Tara Singh''s) favour and sanction the same in the name of Narain Singh son of Hira Singh.

Against this order Tara Singh appealed to the Custodian on 3-4-50. The appeal was dismissed on 10-8-1950. It may here be mentioned that on 12-5-1950, when Tara Singh''s appeal was still pending before the Custodian. Narain Singh made an application to the Hon''ble Minister of Rehabilitation repeating his allegation that Tara Singh was not a refugee and that the shop and the house in question which were Muslim evacuees property could not be given to him. It was also mentioned in the application that S. Tirath Singh counsel for Tara Singh had misrepresented the facts to the previous Minister of Rehabilitation and had got illegal orders from him. The application concluded with the prayer that the Rehabilitation Minister "should pass orders to the Custodian Patiala to go into the relevant facts of the case and decide the case on merits." The Hon''ble the Minister sent for the record of the case which was submitted to him by the Custodian on 26-5-1950 and the same was returned to the Custodian on 20th June 1950 with the following note by the Secretary to the Government:

Reference your U.O. No. 713 dated 26-5-1950 on the above subject, the Hon''ble Minister Rehabilitation has ordered that if you are satisfied that Tara Singh is not a refugee shop No. 22 Ward No. 4 may be allotted to Narain Singh. This office may please be informed of the action taken in this behalf. Your office file on the subject is returned herewith. Its receipt may kindly be acknowledged.

On this note being placed before the Custodian he ordered the papers to be put up for orders on 8-7-1950. Tara Singh''s appeal as I have already mentioned, was dismissed on 10-8-1950 and the order of the Deputy Custodian cancelling the allotment of shop to Tara Singh and sanctioning the same in the name of Narain Singh was confirmed.

Two things are urged before us on behalf of the petitioner. One, that the Custodian did not apply his mind to the facts of the case and merely obeyed the orders of the Hon''ble Minister, and secondly that the Deputy Custodian had no authority to cancel the allotment in the petitioners favour, that his order was ultra vires and as such it could not be confirmed by the Custodian. There does not appear to me to be much force in the first point. The petitioner has not been able to prove that the Minister of Rehabilitation tried to influence the decision of the Custodian or that the order that the latter passed on Tara Singh''s appeal was the result of that influence. On the other hand, counsel for the Custodian has placed on record his client''s affidavit categorically denying the receipt of any direction, oral or written from the Hon''ble Minister of Rehabilitation to oust Tara Singh and refuting the allegation that he was influenced by any extraneous consideration or by a letter addressed to him by the Secretary to the Government on behalf of the Minister. I find no good reason to discard this.

Different, however, is the condition with the second point. The law regarding the administration of Muslim Evacuees Property has been changing from time to time. At the time S. Harbans Singh Chimma was appointed Custodian, there existed no law at all, at least none has been produced before us. The earliest enactment was the Patiala Evacuees (Administration of Property) Ordinance (No. IX of 2004) published in His Highness''s Government Gazette dated Chet 9, 2004 (21-3-1948). Section 1(3) of it laid down that it should be deemed to have come into force on 5th September, 1947. Evidently, therefore, the orders by which the shop and the house were leased to Tara Singh should be taken to have been made under this Ordinance. The powers of the Custodian were defined in S. 9 which included, inter alia, to take all proper measures necessary for or relating to his duties and to grant the lease in the prescribed form for any period not exceeding one year at a time of any immovable property of which he had taken possession. Section 12 laid down the procedure regarding claims against Evacuees or their property which were to be decided by a Claims Officer to be appointed for the purpose of the Ijlas-i-Khas. It was also laid down that appeals against the decision of the Claims Officer lay to the Custodian "who shall enjoy the powers of a Judge of the High Court under the Patiala Judicature Firman, 1999 for the purpose of this Ordinance." No appeal or revision against the original or appellate order of the Custodian was provided for. This Ordinance was superseded by the Patiala & East Punjab States Union Evacuees (Administration of Properly) Ordinance No. 13 of 2006 which came into force on the date of its publication in the official Gazette which was 8th Mar,2006 (21-6-1949). Since Tara Singh''s counsel based some of his arguments on S. 14 of this Ordinance and a notification issued by the Custodian under the said section, it is as well that the relevant parts of both the section and the notification be reproduced here.

(1) All leases granted or any other orders passed by the Rehabilitation Authority before the date of coming into force of this Ordinance shall be deemed to have been duly made by or on behalf of the Custodian under this Ordinance.

(2) Notwithstanding anything contained in any enactment for the time being in force the Custodian or the Rehabilitation Authority, or any other person duly authorised by the Custodian in this behalf, may cancel any allotment or terminate or amend the conditions on which any evacuee property is held or occupied by any persons whether or not such lease or agreement was entered into before or after the coming into force of this Ordinance.

(3) In particular and without prejudice to the generality of the foregoing provisions the Custodian, or the Rehabilitation Authority or any other person duly authorised by the Custodian in this behalf shall cancel any allotment of evacuee property, terminate any lease given in favour of any person other than a displaced person or a member of any Essential Government service and shall proceed to get the premises vacated after given (giving?) a reasonable notice to such allottee or lessee.

(4)...

(5) On the expiry of the lease or the earlier cancellation or termination under sub-s. (2) or (3) of any allotment or any lease the tenant and the person who is treated as a trespasser under sub-s. (4) shall on demand by the Custodian or the Rehabilitation Authority, surrender possession of such property to such Custodian or Rehabilitation Authority, or any other person duly authorised by the Custodian in this behalf, and if the possession is not surrendered on demand as aforesaid, the Custodian, Rehabilitation Authority or any other person may, notwithstanding anything contained in the Punjab Tenancy Act, 1887, or any other law in force for the time being in the Union, eject such person or secure possession of such property from him in the manner provided in sub-s. (2) of S. 9.

Notification No. 1 dated 5-7-1949, reads as follows:

In exercise of the powers conferred on me under S. 14, sub-s. (2) of the Patiala and East Punjab States Union Evacuees (Administration of Property) Ordinance No. 13 of 2006, and as enjoined by the imperative provisions of sub-s. (3) of the same section, I hereby cancel all allotments made and terminate all leases of Evacuees Property of every description sanctioned by the Custodian or any Rehabilitation Authority in favour of persons Other than displaced persons or members of essential Government service after 15th August 1947 and authorise the Deputy Commissioner and the Assistant Custodians of the District... to get the premises vacated after giving reasonable notice to such allottee or lessee and when the same are required for Rehabilitation of displaced persons.

Any person refusing to surrender possession on demand by any of the officers authorised above shall be liable to be ejected by the use of all force necessary for securing compliance with such order regarding delivery of possession as provided in S. 9, Cl. (II) of the Ordinance and shall also render himself liable to be prosecuted for an offence under S. 21 sub-s. 2, which is punishable with imprisonment of either description for a term which may extend to five years or with fine or with both.

3....

It was contended on behalf of respondents No. 2 and No. 3 that sub-s. (2) of S. 14 of Ordinance No. 13 of 2006 empowered the Custodian or a person duly authorised by him to cancel the allotment in favour of the petitioner and since by virtue of that power the Custodian issued the notification of 5-7-1949 and the petitioner was not a displaced person, the Deputy Custodian''s order of 15-3-1950 was perfectly legal. The term "displaced person" was defined by S. 2(c) of the said Ordinance as meaning a person who being displaced from the territories comprising Pakistan and states acceding thereto on account of civil disturbances or fear of such disturbances, has settled or is engaged or intends to engage in any business, etc. in the Patiala and East Punjab States Union, or a person in the Patiala and East Punjab States Union, who having his business, industry or property wholly or partially, in the territories comprising Pakistan and States acceding thereto, has lost wholly or partially, such business, etc. on account of civil disturbances, or the fear of such disturbances and who is engaged or intends to engage in any business in the said Union.

Counsel argued that with a view to find out whether the petitioner was or was not a displaced person the Deputy Custodian was competent to go into the matter and after having come to the conclusion that the petitioner was not a displaced person he had every power to apply the notification of 5-7-1949 to him. The contentions, in my opinion are devoid of force. In the first place, the Deputy Custodian had no power to take any action under sub-s. (2) or sub-s. (3) of S. 14 unless he had been authorised by the Custodian in this behalf" and no such authority is proved to have been given to him. Some authority was given to Deputy Commissioners and Assistant Custodians by the Notification of 5-7-1949 but that could not be regarded as an authority "in this behalf" as contemplated by sub-s. (2). On the other hand, it was an authority merely to get the premises vacated by the allottees or lessees whose allotments or leases stood cancelled by virtue of the notification and it was definitely mentioned in the notification that this authority was being given under sub-s. (3). It may also be mentioned that the authority given under the notification was confined to the Deputy Commissioners and Assistant Custodians and no authority whatsoever was given to the Deputy Custodian. Secondly, the allotments and leases in favour of persons other than displaced persons or members of essential Government services only were cancelled by the notification. This means that displaced persons or members of essential Government services were not affected thereby and allotments and leases that had been properly made in their favour, either by the Custodian or any Rehabilitation authority were to remain intact.

It is not contended that the original lease granted in favour of the petitioner by the Custodian was vitiated by any kind of defect. Though to start with the lease was for a year the term of it should be taken to have been extended by virtue of the subsequent order of the Custodian, particularly so by his order of 9-5-1949. As I have already mentioned the recommendation of the office which the Custodian had accepted was to the effect that the petitioner was entitled to the house and the shop that he was occupying and that he should not be ejected. This means that the Custodian had not only recognised the petitioner to be a displaced person and hence entitled to the continued occupation of the house and the shop either as an allottee or a lessee, but had also extended the period of the allotment or the lease indefinitely. Accordingly the petitioner''s case did not come within the purview of the notification and he could not be asked to vacate the shop or the house.

It was argued before us that sub-s. (5) of S. 10 of Ordinance 13 of 2006 empowered the Custodian, of his own motion or on an application made to him, to call for records of any proceedings under the section pending before or disposed of by an Assistant Deputy Custodian for the purpose of satisfying himself as to the legality or propriety of any order passed in the aforesaid proceedings and to pass any order in relation thereto as he thought fit, and since according to the definition contained in Cl. (b) of S. 2 Custodian includes, inter alia, a Deputy Custodian, the Deputy Custodian in the present case was entitled to go into the question whether the petitioner was a displaced person.

Now, it will be remembered that the final order of the Custodian whereby Tara Singh was held to be a displaced person was made before the Ordinance came into force. Accordingly, it is doubtful whether it could be set aside by virtue of the powers given to the Custodian by the Ordinance. Then as the very words of sub-s. (5) of S. 10 show the power given thereby was for a limited purpose and could only be used in respect of the proceedings under the section. Apart from this that power could only be used by the Custodian and not by any of his Assistants. As regards the definition of the Custodian referred to by the counsel that has no applicability to the sub-section. The opening words of sub-s. (2) lay down that the definitions given in the various clauses are to apply "unless there is anything repugnant in the subject or context" and I have no hesitation in holding that to read the word "Custodian" as including the Assistant Custodian, or the Deputy Custodian whose orders he is to revise would defeat the very object of the sub-section, that is to say, such a construction would be altogether repugnant to the context.

For all these reasons I hold that there is no force in the objections of respondents Nos. 2 and 3 and that the order of the Deputy Custodian of 15-3-1950 was made without jurisdiction. As regards the order of the Custodian made on appeal whereby he confirmed the Deputy Custodian''s order it could not improve matters in any way. The entire proceedings taken by the Deputy Custodian being without jurisdiction, and therefore void, it was not within the powers of the Custodian to validate them: nor do I think that the Custodian''s order could be regarded as if it had been made by him as an original authority. Not only he did not act or purport to act in that capacity but he did not even observe the procedure that he would have observed had he acted in that capacity.

At this stage I consider it necessary to dispose of the two objections taken by the respondent''s counsel regarding the maintainability of the petition. They first urged that under S. 27 of the Administration of Evacuees property Act of 1950 which was now in force in the whole of India, including our State, a remedy by way of a petition for revision of the Deputy Custodian''s order to the Custodian General was open to the petitioner and accordingly this petition did not lie. It has no doubt been held in several cases that when another remedy is open to a petitioner the Court may refuse to entertain an application for grant of a writ of mandamus or for any other kind of prerogative writ but this rule is applied only where the alternative remedy is speedy as well as efficacious. I, however, think that the right to move the Custodian General under S. 27 cannot be regarded a remedy of that nature because unlike the case of an appeal even it the petitioner succeeds in establishing that the proceedings resulting in the order of the Deputy Custodian were without jurisdiction and illegal the Custodian General is not bound to interfere and grant him the proper relief. Secondly they urged even if the petition is accepted and a writ be issued to the Custodian that he should not give effect to the Deputy Custodian''s order and dispossess the petitioner it will serve any useful purpose because under the law, as it stands at present, it is within the powers of the Custodian to start new proceedings for cancelling or terminating the petitioner''s allotment or lease. I agree that such, powers are vested in the Custodian, but it is admitted that before they can be exercised he will have to issue a notice to the petitioner which means that he must hear his objections and decide the points that he might raise. This being the case even if we assume that the Custodian is bound to start fresh proceedings against the petitioner it cannot be said that they will necessarily be decided against the petitioner and no substantial good will be done to him by issue of any kind of writ.

In the result I would accept the petition in so far as it relates to the Custodian (respondent No. 2) and issue a writ to him prohibiting him from giving effect to the orders of the Deputy Custodian dated 15-3-1950 and dispossessing him from the house and the shop in dispute by virtue of that order.

As regards the Minister of Rehabilitation (respondent No. 1) the petitioner has not been able to make out any case against him. The allegation that the decision of the Custodian was influenced by the Minister has not been proved. Nor do I think that any writ can be issued against Narain Singh (respondent No. 3) notwithstanding the fact that the proceedings which culminated in the Deputy Custodian''s order were initiated by him. Since the Custodian who alone can implement that order is being prohibited from giving effect to it, there appears to be no necessity to pass any order against Narain Singh. The petition is, therefore, dismissed with regard to these respondents.

In the peculiar circumstances of the case there will be no order as to costs.

Chopra, J.

I agree.