Tilak Raj vs Custodian and Another

I.K. Kotwal, J.—In this writ petition, the petitioner seeks annulment of an order passed by respondent No. 1, cancelling his lease in respect

of a evacuee shop.

The petitioner's case is, that on 26-2-1965 he acquired on lease an evacuee shop from respondent No. 1, at a monthly rent of Rs. 25/-. He

having fallen in arrears, a notice was issued to him by the Custodian, Jammu calling upon him to clear up the same. According to the petitioner, he

paid all the arrears of rent and even went on paying rent to the Custodian, there-after. As, according to him, the Custodian, Jammu, had enhanced

the rent, he resisted the same and a dispute arose between the parties. Thereafter, the Custodian passed the order impugned in the writ petition,

terminating the lease of the petitioner on the grounds, that he had not paid the rent, and that he was not using the shop for the purpose for which it

had been actually acquired. He has assailed the order passed by the Custodian on the grounds; (1) that the order has been passed without hearing

the petitioner (2) that no service of any prior notice had been effected on the petitioner, and in any case the mode of effecting service was in

contravention of Rule 18 of the Rules made under the Evacuee's (Administration of Property) Act, 2006, (hereinafter referred to as ""the Evacuee

Property Act"") read with Order 3 Rule XVII C.P.C. (3) that the petitioner had been paying rent to respondent No. 1 even after the initial period of

lease in his favour had expired, and had therefore acquired lights of a tenant holding over; that in any case, sub-rule (3) of Rule 14 was not

applicable to the petitioner's case, as the petitioner was not an allottee but a lessee; that the ejectment of the petitioner could not have been brought

about, except on the grounds given in Section 11 of the Houses and Shops Rent Control Act; that clauses (ix) and (x) of Sub-rule (3) of Rule 14

were not infringed by the petitioner; that the petitioner was not using the property for purposes other than the one for which it was leased out to

him; and that the notice if at all served upon him ought to have been of six months duration.

The Custodian respondent No. 1 on the other hand has contended, that the petitioner was in arrears in the amount of Rs. 1325/-, when an

application was moved by him on 14-7-1972, agreeing to pay an enhanced rent of Rs. 55/- per month, and asking the Custodian to regularise

lease on the basis of the enhanced rent. He has further contended, that out of these arrears Rs. 663/- were paid by the petitioner on the very same

day, and he promised to clear up the balance soon thereafter. It has been further alleged by him, that the petitioner having failed to approach the

Department for entering into a fresh lease agreement, and also having failed to pay the arrears amounting to Rs. 712/- due till 30-4-1974, a notice

was served upon the petitioner on 17-5-1974 calling upon him to show cause, as to why his lease be not cancelled, and a further enhanced rent of

Rs. 300/- per month charged from him with effect from 1-5-1974. The petitioner having failed to appear before the Custodian in response to the

notice issued to him on 17-5-1974, his tenancy was terminated vide the impugned order, and the shop leased out to respondent No. 2, Banarasi

Dass at a monthly rent of Rs. 225/-. He has further averred, that the Houses and Shops Rent Control Act (hereinafter referred to as the Rent

Control Act) had no application to evacuee property. He has also denied the right of the petitioner as a tenant holding over, or that the show cause

notice served upon him was not reasonable or proper.

While the writ petition was pending, Act No. XXI of 1974 was passed by the Legislature, adding sub-Section (2) to Section 3 of the Evacuee

Property Act. On this, the petitioner sought to amend his petition, by throwing a challenge to the constitutional validity of the amended Section 3 of

the Evacuee Property Act. He has in the amended petition challenged the constitutional validity of Section 2 of Act No. XXI of 1974 on the

ground, that this section is violative of Article 14 of the Constitution of India, as it discriminates tenants in respect of evacuee property vis-a-vis

tenants, of other property all of whom are similarly situated. Respondent No. 1 has also filed his amended return to the amended writ petition, and

has submitted, that Section 2 of Act No. XXI of 1974 is not unconstitutional nor does it result in any discrimination against tenants of evacuee

property.

Mr. J.P. Singh, appearing for the petitioner, has pressed only the following points before me :â€" (1) Section 2 of Act No. XXI of 1974 is

violative of Article 14 of the Constitution of India: (2) no notice under Rule 14 was at all served upon the petitioner, before the impugned order

came to be passed against him; (3) even if service of such a notice was proved, yet the same was against clause (9) of the agreement, which

provided minimum one month's period for the same; (4) the service alleged to have been effected on the petitioner was against the spirit of Rule 18

of the Rules made ' under the Evacuee Property Act; and (5) the Custodian could not have passed a composite order of cancelling the lease of the

petitioner, as well as conferring lessee's rights on Bodh Raj, respondent No. 2.

Section 3 of the Act as it stood before it was amended in the year 1974 read thus:

Act to override other laws.â€" The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything

inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.

A plain reading of this section would show, that the provisions of the Evacuee Property Act had overriding effect notwithstanding anything

inconsistent contained in any law for the time being in force, or in any instrument having effect by virtue of any such law. The argument of Mr. Singh

is, that the Evacuee Property Act came into force in 2006, whereas the Rent Control Act was a later legislation. The Legislature could not have

possibly contemplated any protection to evacuee property against the rigours of the Rent Control Act, while enacting Section 3 of the Evacuee

Property Act. Therefore, argues the learned Counsel, Section 3 would apply to only those laws which existed prior to the coming into force of the

Evacuee Property Act. If any law subsequently came into existence, or, in other words, if some rights were conferred upon some persons by virtue

of a subsequent legislation, which came into conflict with the provisions of the Evacuee Property Act, the Evacuee Property Act was bound to give

way. Elaborating his argument, Mr. Singh has submitted, that under the Rent Control Act, tenants in respect of evacuee property acquired certain

rights, and their ejectment was not permissible, except on the grounds contained in Section 11 of the Rent Control Act. The grounds, upon which

the lease of the petitioner was cancelled by the Custodian, not being any one or more of the grounds mentioned in Section 11, the order impugned

in the writ petition was liable to be quashed. In my opinion, the argument advanced by Mr. Singh cannot prevail, even though attractive. To with, there was a law protecting the rights of the tenants, which had come into force as far back as the year 2000 Samvat. This was styled as the

Houses Rent Control Order 2000. This was followed by another Order called Shops Rent Control Order 2002 Samvat. It cannot be therefore

denied, that the Legislature had in mind, the object of guarding against the mischief of these Laws, property belonging to evacuees at the time of

enacting the Evacuee Property Act. The law, relating to eviction of tenants and fixation of rent, consistently underwent changes, till Act No:

XXXIV of 1966 came into force. What the Legislature in fact did, by amending Section 3 of the Evacuee Property Act in the year 1974 was that

it once again gave a manifestation to its intention of keeping outside the purview of laws relating to eviction of tenants and fixation of rent, property

belonging to evacuee, which it had declared earlier in the year 2006 Samvat. This would be amply borne out from the phraseology of Section 2 of

Act No. XXI of 1974 which reads thus:

Amendment of Section 3 Act VI of 2006.â€" The existing Section 3 of the Jammu and Kashmir State Evacuees (Administration of Property)

Act. Svt. 2006 shall be numbered as Sub-section (1) thereof and after Sub-section (1) as so renumbered, the following sub-section shall be

inserted, namely:

(2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from, any property shall apply

or be deemed ever to have applied to evacuee property.

Secondly, even if these laws had conferred certain rights on tenants of evacuee property subsequent to the coming into force of the Evacuee

Property Act assuming that the legislature did not intend providing protection to evacuee property against them in the year 2006 the Legislature

was still competent, to take away those rights retrospectively, by making a legislalation to that effect. The principle is now well established that a

law having prospective operation cannot take away vested rights but the Legislature it fully competent to divest a person of his vested rights by

amending the law retrospectively Tirath Ram Rajindra Nath, Lucknow Vs. State of U.P. and Another, .

I am also not impressed by the argument of the learned Counsel that Section 2 of Act No. XXI of 1974 ii violative of Art. 14 of the Constitution

of India. The Evacuee Property Act was enacted with the object of preserving, managing and administering property belonging to evacuees, who

themselves were incapable of looking after their own property due to there absence. The position of the Custodian Evacuee Property is more or

less that of a trustee, who has to hold the property in trust for the real owner with an implied obligation to restore it to him, or, to his heirs, as far a*

possible, in the same condition, as subject to the same rights and obligations, which existed at the time the property was taken possession of by

him. ft- was with this object in view, that the Legislature enacted Section 3 of the Evaquee Property Act, which later on it had to amend vide Act

No. XXI of 1974, in order to cope with the changed circumstances. That the evacuees are a class by themselves, and this classification is a real

and reasonable one, as such, cannot be open to challenge. On the parity of reasoning, tenants in respect of property belonging to evacuees, are

also a class in themselves. The nexus between this classification and the object of enacting Section 3 of the Evacuee Property Act is thus as real as

apparent. I am therefore, clearly of the opinion, that Act No. XXI of 1974 does not suffer from any constitutional infirmity, and the argument of

hostile discrimination of the benefits of evacuee property is not available to the petitioner. The Rent Control Act has no application to evacuee

property. The first point argued by Mr. Singh is therefore overruled.

Turning now to his other point, that the notice should have been of six months' duration, I may only say, that the same is misconceived. Six

months' notice under Rule 14 is necessary, only when a lease or allotment is to be cancelled under clause (iv) of sub-rule (3) of Rule 14. The case

of the petitioner does not fall under this clause. In all other cases, only a reasonable notice is to be given. As far as clause 9 of the lease agreement

dated 26-2-1965 is concerned, I may point out, that this clause too has no application to the facts of this case. One month's notice under this

clause would be required, only when possession of the property is to be delivered to its owner, or, when the department needs the property for its

own use. Ejectment in the present case has not been ordered on any of these grounds. On the other hand, the lease of the petitioner has been

terminated, because he had failed to clear up three months' arrears of rent. Notice of one month's duration has not been contemplated in the lease

agreement for such a contingency.

It is true, that there is some contradiction in the date of the notice and its service on the petitioner. I have gone through the affidavit swron by

one Bodh Raj Rent Collector of the Department. The notice is dated 17-5-1974 which according to Bodh Raj was affixed on the petitioner's

shop, as the same was closed. The date put below his signatures by the said Bodh Raj is no doubt 25th April, 1974. Mr. Singh has argued that this

would only show, that no notice had been in fact served upon the petitioner and this was all fabrication made by the Department. On reading the

affidavit as a whole, I am inclined to believe that some mistake has crept in while putting the figure ""4"" which in fact should have been ""5"". In para 1

of his affidavit, the said Bodh Raj has made a pointed reference to show cause Notice No. 36/RB/C/RS dated 13-5-1974. and in para 2 of the

same affidavit, he has stated that it was this notice which had been affixed by him on the shop of the petitioner. Obviously, therefore, the said notice

could not have been affixed on a date earlier than the date of its issuance. Mr. Amar. Chand has also invited my attention to the original notice on

the Custodian's file. The notice has been diarised before it was handed over to Bodh Raj for service under No. 25 dated 25-5-1974. The

apparent contradiction between the date of the notice and the date of service, cannot be explained on any hypothesis other than that of a bona fide

error. I am, therefore, satisfied that the notice was affixed by Bodh Raj on the petitioner's shop on 25-5-1974. I am further of the opinion, that the

period of the notice was also reasonable. The petitioner had agreed to pay enhanced rent of Rs. 55/- per month with effect from July 1972. This is

borne out from the reply affidavit of respondent No. 1 of which there is no rebuttal from the other side. The petitioner in his petition has not denied

the factum of enhancement of rent as alleged by the Custodian. What he has in fact denied, is, the right of the Custodian to enhance the rent. It is

also in the writ petition, that the petitioner continued paying rent even after July 1972. It was his duty to pay the agreed rent regularly. Notice was

served upon him four days prior to the passing of the impugned order, which was in the circumstances of the case a reasonable period. The second

and third points taken by the learned Counsel also fail.

As for interpretation of Rule 18, I am not inclined to agree with Mr. Singh, that the different modes of effecting service as provided in the rule

could be followed only in the order in which they were placed. On a plain reading of the rule, the different modes provided therein are not inter-

dependent but are independent of each other. The fourth point raised by Mr. Singh also fails,

Turning now to his last point, I do not find any merit in it either. The Custodian was competent to pass a composite order pertaining to the

cancellation of the lease of the petitioner, concomitantly granting the same in favour of another person. The petitioner was in arrears of rent for

more than three months, as such, the Custodian was perfectly justified in cancelling his lease under clause (ix) of sub-rule (3) of Rule 14. In view of

sub-rule (3-A) of 14, it was immaterial whether he held the shop as a lessee or as an allottee. With this all the contentions raised by Mr. Singh fail.

For the foregoing reasons, I find no merit in this petition, which is hereby dismissed with costs. The costs are assessed at Rs. 300/- which shall

be shared equally by the respondents.