Tilak Raj vs Custodian, Jammu

(1) This appeal under Cl. 12 of the Letters Patent is directed against the judgment of a learned Single Judge of this Court (Kotwal J) in writ petition

No. 59 of 1974 dismissing the petition of the appellants against the order of eviction of respondent No. 1.

(2) Briefly speaking the facts of the case are : The appellant was leased out evacuee shop No 35 situated in Rajinder Bazar Jammu by respondent

No. 1 (the Custodian) on a monthly rent of Rs. 25/. The appellant fell in arrears. A notice was issued to him by respondent No. 1 to pay the

amount of arrears of rent. According to the appellant, the arrears were paid by him but even then the Custodian, enhanced the rent which was not

accepted by the appellant. As a result of the controversy between the appellant and the Custodian, the latter passed an order of eviction of the

appellant from the premises in question. The order of termination of lease proceeded on the ground that the appellant was in arrears and that he

was not using the shop for the purpose for which it had actually been let out to him. Challenging this order, of the Custodian the appellant filed a

writ petition which was heard by the learned Single Judge. Before him it was debated that the impugned order was passed without affording an

opportunity to the petitioner to be heard in the matter, that no service of any prior notice was effected on the petitioner, even the mode of service

of the notice was defective and was violative of rule 14 of the Rules made under the Evacuee Administration of Property Act, 2006 (hereinafter

referred to as ""The Evacuee Act""), that the petitioner has been paying rent regularly to respondent No. 1 even after the period fixed in the rent note

had expired and by virtue of operation of Section 116 of the T. P. Act he had become a tenant holding over. The appellant could not be ejected

from the premises except on one of the grounds mentioned in section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act.

(hereinafter called as ""The Rent Control Act""), the petitioner did not infringe any rule of the Evacuee Act as he had done nothing contrary to the

terms of the lease deed.

(3) The petition was resisted on a number of grounds, namely, that the petitioner had fallen in arrears and had failed to clear these, that a notice

was issued to the petitioner on 1751974, calling upon him to show cause as to why his lease should not be cancelled and further enhanced rent at

the rate of Rs. 300/ per month be not charged from him with effect from 151974; that the petitioner did not appear before the Custodian in

response to the notice issued to him on 1741974; and his tenancy was, therefore, terminated. It was affirmed that the Rent Control Act did not

apply to the evacuee property governed by the Evacuee Act. It was also denied that the appellant had acquired the status of a tenant holding over.

It was not admitted that the show cause notice served upon the appellant was not reasonable or proper.

(4) It appears that during the pendency of the writ petition, Legislature added subsection (2) to Section 3 of the Evacuee Act No. 21 of 1974 to

the following effect:

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

deemed ever to have applied to evacuee property.

(5) The appellant, thereafter, challenged the vires of this amended provision of law on the ground that subsection (2) of Section 3 violated Article

14 of the Constitution of India as it discriminated tenants in respect of Evacuee property visavis other tenants all of whom were similarly situate.

Amendment of the writ petition was allowed and the appellant was allowed to raise the question regarding the constitutional validity of the

amended law.

(6) The learned Single Judge on a consideration of the matter, however, did not accept any of the arguments of the appellant As regards the

constitutional validity of subsection (2) of section 3 he expressed the view that what the Legislature by inserting that subsection meant was to give a

manifestation of its intention of keeping outside the purview of laws all matters relating to eviction of tenants from property belonging to the

evacuees. The learned Single Judge further observed that subsection (2) did not violate Article 14 of the Constitution of India, inasmuch as the

Evacuee Act was enacted with the object of preserving, managing and administering the property belonging to evacuees who themselves were

incapable of looking after their property in their absence, position of the Custodian of Evacuee Property is more or less that of a trustee with the

implied obligation to restore it to the owner or to his heirs in the same condition and subject to the same rights and obligations which existed at the

time the property was taken possession of by him. Moreover, evacuees are a class by themselves and this classification is real and reasonable and

cannot be open to challenge. On a parity of reasoning tenants in respect of property belonging to evacuees are also a class by themselves and the

nexus between this classification and the object of enacting Section 3 of the Evacuee Act is, therefore, real and apparent. There was therefore, no

question of hostile discrimination against the tenants of evacuee property. The learned Judge also repelled the contention of the appellant that the

notice issued by the Custodian was bad in law or that the terms of tenancy required one month's notice to be given to the appellant before calling

upon him to vacate He also did not agree with the appellant that there was some illegality in the mode of service of the notice or that the notice did

not fix reasonable time. Consequently the writ petition was dismissed. Aggrieved by this judgment, the petitioner has come up in appeal before this

Court.

(7) In the course of the appeal one Shri Banarsi Dass moved an application seeking leave of the court to intervene in the appeal. He sought

intervention on the ground that after the termination of the tenancy of the appellant the shop in question has been allotted to him and he has

executed the rent note in favour of the Custodian department, and. therefore, he was vitally interested in the decision of the appeal. The appellant

did not object to his being heard in the matter and the court accordingly allowed Shri Banarsi Dass to appear as an intervener. Along side one

more application was made on behalf of the appellant for leave to raise an additional ground in the appeal. In the application the appellant averred

that the Evacuee Act was not an Act of legislature but was passed by a person who had no authority in law to enact such a law and it was,

therefore, ultravires. He, therefore, prayed for leave to raise the following as additional ground in the appeal:

That the Jammu and Kashmir Evacuee Administration of Property Act, 2006, being Act No. VI of 2006, Samvat, is nonexistent on account of

not having been passed or enacted by a competent authority.

(8) It was submitted that the plea did not require the examination of any factual aspect but was purely a question of law, and, therefore, without

allowing the appellant to amend the writ petition or the memorandum of appeal, he could be heard in the matter. The respondent agreed to this.

Accordingly the counsel for the appellant was allowed to argue also on the constitutional validity of the Evacuee Act. Over and above the

aforementioned proposition of law, counsel for the appellant reiterated all other factual and legal pleas whish were taken by the appellant before

the learned Single Judge.

(9) It was argued that no notice as required by Rule 14 of the Evacuee Property Rules was served upon the appellant in accordance with law. The

impugned order was made against the principles of natural justice inasmuch as the appellant was not afforded any opportunity of being heard in the

matter. The record was fabricated and the notice allegedly issued on 1351974 was reported to have been served on the appellant on 2541974 as

is evident from the report of the Rent Collector. It is a fact that no notice issued on 1351974. could have been served upon the appellant on

2541974. Shri Bodh Raj Rent Collector has affirmed in his affidavit that in compliance with the directions of the Custodian he went to the shop on

2541974. He has not stated in the affidavit that the month of April was mentioned through oversight It could not, therefore, be said as observed by

the learned Single Judge that the mistake was bonafide. Even Rule 14 of the Rule was complied with as regards the mode of service of notice No

sufficient and reasonable opportunity was afforded to the appellant to answer the notice. Only notice of four days was issued, which could not be

said to be a reasonable notice. Again the Rent Control Act, it is submitted applied to the present case and, therefore, proceedings for recovery of

the shop had to be inititiated on any of the grounds mentioned in proviso to Section 11 of the Rent Control Act. Sub Section 2 of Section 3 which

has been added is not a piece of legislation but is only a declaration. The amended law made a hostile discrimination against other tenants and thus

violated Article 14 of the Constitution. There was no reason why the tenants of evacuee property could not seek protection of the Rent Control

Act. At any rate, the amendment cannot operate retrospectively so as to effect the substantive rights of the appellant. Again, it is urged that there

was nothing on the record to show that the appellant had violated the terms of the rent agreement and was, therefore, liable to be ejected. The

appellant had paid rent after the expiry of the period of tenancy fixed in the rent note and thus became a tenant holding over within the meaning of

Section 116 of the T. P. Act. There was no reason as to why the Custodian should have sought the eviction of the appellant.

(10) As regards the Constitutional validity of the Evacuee Act, it is submitted that the Act was promulgated in 2006, by Yuvraj Karan Singh, as he

then was. Under Section 4 of the Constitution of Jammu and Kashmir Act of 1996, the Maharaja was the Rule of the State and he being the

absolute monarch was the authority to legislate. He was the fountain head of all the powers, executive, legislative, and judicial. After his exit from

the State there was no authority to legislate and the Yuvraj could not take upon himself the duty of legislating for the state. The powers could not

be delegated to him as these were personal to the Ruler and were inherent in him. As the Evacuee Act was not enacted by the Ruler nor did it

come into existence by legislation by the chosen representatives of the people, therefore, the Act having been passed by a person who had no

authority to make laws for the State, cannot be said to be a valid piece of legislation. It was nonexistent.

(11) Shri Raizada Amar Chand has controverted all the propositions enunciated by Shri Sethi.

He has submitted that the House Rent Control Order ezisted as early as 2000 (Sarnvat). When the Jammu and Kashmir Defence Rules were in

force. The Government in exercise of its power conferred by C. (bb) of sub rule 2 of Rule 65 of the Jammu and Kashmir Defence Rules made an

order which was called ''House Control Order of 2000"" and it extended to all the urban areas in the State. The Jammu and Kashmir Defence

Rules gave the govt. power to make an order for regulating, letting or subletting for any area of residential accommodation for controlling the rents

for such accommodation for preventing unreasonable eviction of tenants or sub tenants from such accommodation. This order remained in force up

to the year 2009 when it was replaced by Jammu and Kashmir Houses and Shops Rent Control Act, 2009, which extended to the municipalities

of Jammu and Srinagar and to such other urban areas to which the House Rent Control Order of 2000, extended from time to time. From this it is

clear that the law relating to Houses and Shops Rent Control Act did exist from the year 2000, much before the Evacuee Act came into forse. The

Evcuee Act applied to the whole of the State. It dealt with the management of evacuee properties, whereas Rent Cont. Act dealt with matters

arising out of Rent Cent. Act and eviction and applied only to specified areas as mentioned in the Act and did not apply to the whole of the State

as did the Evacuee/ Act apply. Therefore, in view of the field of application of the two Acts and their scope the two are quite different and it

cannot be said that passing of one Act had the effect of repealing the other Act. Moreover, the tenants who occupy the evacuee property are a

class by themselves and they cannot* be said to be similarly situated with other tenants. Article 14 of the Constitution is not violated. There is no

discrimination between persons of the same class. It is further submitted that the insertion of SubClause (2) in Section 2 has made the legal position

clear and more explicit.

(12) As regards the arguments challenging the powers of Yuvraj to have promulgated the Evacuee Act, it is submitted that after the exit of the

Maharaj from the State, the latter delegated his powers to Yuvraj and he assumed the same powers and functions as vested in the Ruler. There

was nothing in law which could prevent the Maharaja from delegating his powers to Yuvraj as he was the absolute monarch and reserved all

powers to himself. Reliance is placed on the judgment of the Supreme Court in Premnath Koul Versus State of Jammu and Kashmir reported as

A. I. R 1959 S. C. 749, which has clinched the issue. On the question of notice, it is submitted that the notices were issued on 1751974 but as the

appellant could not be found so notices were pasted on his shop on 2551974 as the shop was locked. Shri Amar Chand has in this connection

filed two supplementary affidavits by way of further elucidation of certain facts. According to the learned counsel the notices gave reasonable time

to the appellant. Cl. 9 of the Rent Note did not apply as the appellant was sought to be evicted because of nonpayment of rent and did not for any

other extraneous reason It is urged that even on 2951978, when the order of eviction was made, the appellant did not appear and did not seek

time to vacate the shop. He did not even demand some more time for this purpose. In the circumstances of the case the time of four days was

reasonable having regard to the proximity of place where the custodian's office is located and the appellant s shop is situate. There was no question

of holding over by the appellant as he had fallen in arrears and had not paid the rent. The Custodian never assented to his continuing in possession.

(13) Before I deal with the merits of the case, I should first of all like to dispose of the argument relating to the power of Yuvraj Karan Singh to

have promulgated the Evacuee Act and the constitutional validity of the Act and the constitutionality of the amended provision of law inserted by

the Amending Act of XXI of 1974.

(14) The contention that the Yuvraj Karan Singh had no power to promulgate .the Evacuee Act is based on misconception of legal and

constitutional position, and is, therefore, devoid of any force. The Maharaja, being the ruler was repository of all powers; but that does not mean

that he could not delegate his powers to his son when he left the State True that the Maharaja was the sovereign authority and his powers were not

fettered as he was an absolute monarch and all powers legislative, judicial and executive vested in him. It is, however, to be borne in mind and

there can be no gainsaying the fact that inspite of the Constitution Act of 1996 all the powers of the Ruler were preserved and that he exercised all

powers with no fetters or limitations. He being the repository of all powers could also delegate these to his son. There is, therefore, no warrant for

the view that after the Maharaja's exit from the State he could not delegate his powers to his son Yuvraj Karan Singh as he did by means of

proclamation on 20th of June, 1949. According to this proclamation he authorised Yuvraj Karan Singh to exercise all his powers. In fact, he made

him his successor in so far as the exercise of the powers and discharge of functions of the State were concerned. In that view of the matter, when

Yuvraj Karan Singh promulgated the Evacuee Act of 2006, it cannot be said that he had no authority to make such a law for the State and,

therefore, the Act is nonexistent. This very question came up in the year 1959 before the Supreme Court in relation to the Constitutional validity of

the Jammu and Kashmir Big Landed Estates Abolition Act, 2C07. After examining the constitutional position, their lordships of the Supreme Court

(A. I. R. 1959 S. C. 749) observed:

Since the Maharaja was himself an absolute monarch, there was no fetter or limitation on his power to appoint somebody else to exercise all or

any of his powers. There was no authority or tribunal in the State which could question his right or power to adopt such a course. The

proclamation issued by Maharaja Hari Singh on June 20, 1949, authorising Yuvraj Karan Singh to exercise all his powers would clothe him with all

such powers and he would be in the same position as his father so long as the proclamation stood.

by way of obiter the Court observed:

Though the proclamation entrusting the administration to the Yuvraj purported to have been issued on the ground that Maharaja Hari Singh was

leaving the State for a temporary period for reasons of health, the proclamation really amounted to his abdication and installation by him of Yuvraj

Karan Singh as the Ruler of the State.

Their Lordships further proceeded to observe:

Consequently it cannot be argued that the Maharaja's proclamation of June 20, 1949, did not confer powers on the Yuvraj Karan Singh to

promulgate the Big Landed Estates Abolition Act (17 of 2007) ............ At the same time when the Jammu and Kashmir Big Landed Estates

Abolition Act was passed the plenary legislative powers of Yuvraj had not been affected in any manner by the Constitution Application of Jammu

and Kashmir Order of 1950.

(15) Again, in Rehman Shagoo and ors Versus State of Jammu and Kashmir, reported as A.I.R. 1960 J and K 1, Wanchoo J speaking for the

court upheld the constitutional validity of the Jammu and Kashmir Enemy Agents Ordinance, (Samvat) 2005, observing that the said ordinance did

not come to an end on the repeal of Section 5 of the Jammu and Kashmir Constitution Act S. 1996 and remained a valid piece of legislation on the

Statute book.

(16) On a parity of reasoning, it must, therefore, be held that Yuvraj Karan Singh had full powers and authority to enact the Evacuee Property Act

and the same is, therefore, constitutionally valid and enforceable.

(17) The objection raised by Mr Sethi is, therefore, hereby overruled.

(18) Another aspect of the matter to be considered is whether the Rent Control Act, as argued on behalf of the appellant, applies also to the

properties governed by the Evacuee Act. In other words whether the tenants under the Evacuee Act can claim protection in the same way as

statutory tenants under the Rent Control Act? Also whether the Evacuee Act makes a hostile discrimination against other tenants in the State

governed by the ordinary law and, therefore, is liable to be struck down on that ground under Article 14 of the Constitution.

(19) In order to examine the merit of this argument, it is necessary to .trace the history of the Rent Control Legislation as also the Evacuee Act and

examine their extent and scope

(20) The Rent Control Order came into force from the year 2000 (Svt) by virtue of the Defence of India Rules. In fact the Control Order of 2000

(Svt) known as the Rent Control Order of 2000 (Svt) was promulgated in the year 2000 (Svt). It had statutory force as it was passed pursuant to

Defence of India Rules. It remained in force with necessary modifications upto the year 2009 (Svt) when it was replaced by the Jammu and

Kashmir Houses and Shops Rent Control Act. It is significant to mention here that the field covered by this legislation extended to certain urban

areas as mentioned in the Act and did not apply to the whole of the State in the same way as the Evacuee Act applied. The Evacuees Act came

into force in 2006 (Svt) that is much after the Rent Control order came into force. It cannot, therefore, be said that the Rent Control Order is a

subsequent piece of legislation which overrides the Evacuee Act. Further discussion of this proposition will follow at the relevant place.

(21) The second argument centres round the applicability of the Rent Control Act to the Evacuee Property and the constitutional validity of Section

2 of Act No. XXI of 1974, as according to the learned counsel for the appellant, this provision of law is violative of Article 14 of the Constitution.

The law as embodied in Section 3 before Ace No. XXI of 1974 was promulgated is as follows:

Section 3. Act to override other laws : 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.

(22) This Section 3 was amended by Amending Act No. XXI of 1974 which reads thus:

Amendment of Section 3. Act VI of 2006. The existing section 3 of the Jammu and Kashmir State Evacuee (Administration of Property) Act

Svt, 2006, shall be numbered as subsection (1) thereof and after subsection (1) as so renumbered, the following subsection 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.

(23) It is clear that the law as it stood before the amendment clearly stated that the Evacuee Act shall have overriding effect on all the laws and

rules made under the other Acts. This intention of the legislature was made manifest by the Amending Act of 1974 which clearly lays down that

nothing in any other law controlling the rents of or any eviction from any property shall apply or deemed to have applied to the evacuee property.

The Legislature in the clearest possible words expressed its intention to exempt properties under the Evacuee Act from the operation of other laws

relating to the control of rents and eviction of such property. As already held, the Rent Control Act does not supersede or repeal the Evacuee Act

in matters relating to the procedure of recovery of the tenanted premises. Firstly, as already observed above, the Rent Control Act is not a

subsequent piece of legislation as it stood even before 2002 (Svt). Secondly the field of operation, of the Rent Control order 2000 and 2002 as

also of the Houses and Shops Rent Control Act of 2009 was limited to certain areas as specified in the said orders. It did not apply to the whole

of the State in the same way as does the Evacuee Act. The scope and the filed of operation and its areas of jurisdiction being altogether different, it

cannot be said that one has the effect of repealing the other. It was always in the mind of the Legislature to exempt the Evacuee Act from the

operation of the Rent Control Act and this intention finds expression from the words used in Section 3 of the Act No. 6 of 2006 (Svt) and

thereafter in Section 3 (2) of the Amending Act No. XXI of 3974, by which the Legislature made its intention more pronounced by removing all

doubts, if any

(24) I also do not agree with the argument that subcl. 2 of Section 3 of the Act of 1974 is only a declaration and not legislation. It is undoubtedly a

piece of legislation aimed at spelling out unequivocally the clear intention of the legislature in this behalf and to make this declaration retrospectively

effective. That the Legislature is competent to pass legislation giving it retrospective effect and thus affect the substantive rights cannot be gainsaid

as it is a settled proposition of law. I would like to quote the following observations of the Supreme Court in Ahmedbad Manufacturing Calico

printing Co Ltd Versus S. C. Mehta Income Tax Officer and Anr. (A. I. R. 1963 S. C. 1436).

Under ordinary Circumstances, an Act does not have retrospective operation on substantial rights which have become fixed before the dace of

the commencement of the Act. But this rule is not unalterable. The Legislature may affect substantial rights by enacting laws which are expressly

retrospective or by using language which has that necessary result. And this language may give an enactment more retrospectivity than what the

commencement clause gives to any of its provisions. When this happens the provisions thus made retrospective, expressly or by necessary

intendment, operate, from a date earlier than the date of commencement and affect rights which but for such operation would have continued

undisturbed.

(25) The same view has been enunciated in the latter decisions of the Supreme Court. I, therefore, agree with the learned Single Judge that Section

3 (2) of the Evacuee Act is constitutionally valid and that it retrospectively operates and that the said Act has overriding effect on other Acts

including the Rent Control Act. In other words the Rent Control Act does not apply to the Property covered by the Evacuee Act.

(26) This brings us to the question as or whether the Evacuee Act or any of its provisions violate Article 14 of the Constitution on the ground that

the Act makes hostile discrimination against the tenants governed by the ordinary law or by the Rent Control Act In my opinion it was not, the

reason being that the Evacuee Act has been enacted with the object and for the purpose of preserving, managing, and administering the properties

of the evacuees who left State and were not, therefore, in a position to look after their own properties. The duty of managing and administering

their property is assigned to the Custodian who holds the property as trustee on their behalf. The Act is a complete code in itself and provides

machinery for its implementation. The Act, interalia provides for eviction of tenants to whom the property has been leased out and also lays down

the procedure for making order of restoration in favour of the real owner. In this background, the Act treats the evacuees as a class by themselves.

This classification is reasonable and is founded on an intelligible differentia which distinguishes these persons from those left out of this class. No

doubt Article 14 forbids class legislation but it does not forbid reasonable classification for the purpose of legislation. The classification of evacuees

governed by the Evacuee Act has a rational nexus with the object sought to be achieved by the Act. On parity of reasoning tenants holding the

evacuee property under the Evacuee Act are also a class by themselves and, therefore, their case is distinguishable on rational basis from those of

the other tenants governed by the ordinary law or by the Rent Control Act. The Evacuee Act and the rules made thereunder give necessary

guidelines as to how to act in cases of leases relating to the evacuee property and also in regard to eviction of the persons in occupation of such

property. The Custodian is not given arbitrary powers in the matter. In that view of the matter, it cannot be said that the Evacuee Act makes a

hostile discrimination against the other classes of tenants governed by the ordinary law or Rent Control Act or that the Act suffers from the vice of

not affording equal protection of laws. The point is not res integra. A similar question once arose before the Patna High Court in Jadunadan Yadav

versus R P. Singh and anr, reported as A. I. R. 1958 Patna. 43. The decision of the Court proceeded on the view that the Administration of

Evacuee property Act did not violate Article 14 of the Constitution. Their Lordships observed:

The argument that there is no reason why the tenancy under the Custodian should be treated on a different basis from the, other tenancies in the

State of Bihar and, therefore, there was no rational basis for classification has no merit. The object and the scheme of Central Act XXXI of 1950

is mainly to provide for the administration and protection of evacuee property and the property has ultimately to be used for compensating the

refugees who had lost their property in Pakistan. . Act XXXI of 1950 was promulgated by Parliament in exercise of the powers conferred by

items 27 and 41 of the Concurrent List.

Keeping in view the object and the scheme of the Act, it is obvious that there is a rational basis for the differential treatment of the tenancies under

the Custodian. Therefore, the argument that there is no rational basis for classification or that there has been a violation of the guarantee of equal

protection under Article 14 of the Constitution and hence S. 12 of the Administration of Evacuee Property Act should be held to be void must be

rejected.

Standards have been fixed and principles have been laid down and it is, therefore, difficult to accept the argument that there is a violation of the

guarantee of equal protection of the laws under Art, 14. The procedure prescribed by Rule 14 (4) is also reasonable. It is true that S. 12 does not

prescribe the procedure to be followed by the Custodian in varying or cancelling the lease or allotment of evacuee property, but R 14 (4) stares

that the Custodian shall serve upon the persons concerned a notice to show cause before any order of cancellation of a lease or variation of a lease

is made.

There is also another safeguard provided by the statute against any arbitrary action taken by the Custodian. It is open to the aggrieved party to

apply in revision to the Custodian under S. 26 or to the Custodian General under S. 27 against any arbitrary order made by the Assistant

Custodian under S. 12 of the Act either varying or cancelling a lease or allotment.

(27) For the forgoing reasons. I, therefore, find that the view taken by the learned Single Judge is correct and need not be interfered with.

(28) Coming to the merits, I find that the argument that the notice should have been of six month's duration is not well founded. Six month's notice

under Rule 14 is required to be given only when the case falls under cl. (iv) of subrule 3 of that Rules. In my opinion, as also observed by the

learned Single Judge, the case does not fall under cl. (iv) of subrule 3. Nor does the lease require giving of one month's notice to the appellant in

the present case inasmuch as notice of one month under cl. 9 is required to be given for ""those leases where possession of the property is to be

delivered to its real owner or when the department needs the property for its own use. The clause in Rent Note does ""not apply as eviction in the

instant case is sought on the ground that the appellant has failed to pay arrears of rent of over three months and also that the appellant was not

using the shop for the purpose it was leased out to him. Also that the appellant has locked the shop since long and had kept the shop in disuse. In

that view of the matter, the appellant was entitled only to reasonable notice as contemplated by 3rd proviso to Rule 14 (x) of the Rules. In order to

find out whether notice of four days in the instant case can be said to be reasonable it will be of advantage to trace the background of the case

leading to the eviction of the appellant as it will help us in forming opinion in the matter.

(29) Record of the case discloses that the shop in question was leased out to the appellant in the year 1955 on a monthly rent of Rs. 25/ for one

year only. That term expired. Thereafter no fresh deed was executed. The allotment was cancelled on 2491971. This order was, however, set

aside on review by the Custodian on 23101971 and he fixed instalments for repayment of arrears of rent. Again the appellant fell in arrears

amounting to Rs. 1325/. Thereafter, the allotment was cancelled under cl. 9 subrule 3 of Rule 14 of the Evacuee Rule. Later on, on the application

of the appellant that he was prepared to pay one half of the arrears and also pay the remaining arrear of rent and that he would pay the rent at the

enhanced rate of Rs 55/ per month, the Custodian by his order dated 1471972 allowed the shop to be occupied by the appellant and fixed Rs. 55/

as rent per month. He directed the lessee to execute a fresh deed with the department Thereafter neither the fresh deed of lease was executed at

the agreed rate Rs. 55/ nor were the arrears paid as promised. As the order of regularisation of allotment was conditional, which condition was not

fulfilled by the appellant by not paying the arrears of rent and by not executing rent deed so a final notice dated 1751974 i.e. after nearly two years

waiting was issued to the appellant asking him to show cause as to why he be not evicted on the grounds namely:

(1) Non payment of arrears of rent for more than three months.

(2) For not executing fresh lease deed by the lessee.

(3) The lessee having locked up the shop and having put it to disuse.

(4) For not using the shop for the purpose it was leased out to the lessee.

(30) Notice was sent to him requiring him to attend the office of the Custodian But no body appeared on behalf of the lessee. Viewed in this

background, it cannot be said that notice issued on 1751975 requiring the lessee to show cause on 2951974 was unreasonable. The point now

raised that the notice was not reasonable has not even been raised in the writ petition.

(31) Now an attempt has been made to show that three is a fatal mistake in the notice. The notice is dated 1751974 but the date below the

signature of the process server is 2541974. Capital is sought to be made out of this mistake. Learned counsel has argued that when the notice was

issued in the month of ' May"" it could not be served a month earlier i. e. in the month of ''April"". The same mistake has crept in while putting figure

4"" instead of ""5"" in the affidavit filed by the respondent.

(32) The learned Judge has not been influenced, in his decision by this mistake. He has observed that the apparent contradiction between the date

of notice and the date of service cannot be explained on any hypothesis other than that of bonafide error. The learned Judge was satisfied that the

notice was pasted by Bodh Raj the process server, on the appellant's shop on 2551974 and not on 2541974. It was through oversight that the

figure ""4"" was recorded instead of ""5"". That the notice was issued by the Custodian on 1751974, is found to be correct as the notice has been

diarised before it was handed over to Bodh Raj for service under No. 25 dated 2551974. In this connection we have also two affidavits on the

record of the appellate file, one of Bodh Raj and the other of Meela Ram. Rent Collectors of the office of the Custodian. According to these two

affidavits the date 25/4 was written under bonafide mistake through oversight which should have been 25/5 and not 25/4. I am satisfied that it is a

case of bonafide mistake and there is no deliberate error made in the date of the notice or in the date of the report of the process server. When

these two affidavits were filed Copies thereof were given to the appellant's counsel but no objections were filed by the appellant against their being

brought on the record.

(33) Again, the report of the Rent Collector serving the notice is that he went to the shop of the appellant but it was found locked and a copy of

the notice was pasted on the shop. In these circumstances, when the shop was locked and in fact when one of the grounds of eviction is that the

shop had been kept locked and had fallen into disuse there could be no other better mode of service than that of pasting the notice on the shop. As

the appellant had failed to appear before the Custodian to fulfil the conditions as accepted by him i. e. to renew the lease agreement and to pay the

arrears of rent and fulfil other conditions in spite of the Custodian's waiting long, the notice, in this background was valid and as observed above

also reasonable. Considering the fact that the shop is situate in proximity with the office of the Custodian and that the appellant had not to travel

long distance for appearing himself of the notice and for filing the objections, it cannot be said that he had suffered injustice in, any way To me it

appears that he deliberately avoided to take notice as he had failed to fulfil the conditions accepted by him.

(34) The mode of service of the notice is also found not to be defective. The appellant has not denied in the petition or by filing any rejoinder that

the shop was not locked When the shop was locked as is established from the report of the process server, pasting of the notice was the only

course left open. As regards the interpretation of Rule is, my view is that different modes provided in the Rule are independent of each other.

Therefore, no flaw can be found in regard to the mode of service effected.

(35) Again the question of violation of the principles of natural justice does not arise in the case because the order of eviction was not passed

without notice to the appellant. When the notice was pasted on the shop and it remained struck up there for four days and the appellant did not

care to go to the office of the Custodian to file his objections, he had not; even cared to fulfil the conditions accepted by him since 1972 it cannot

be said, that the impugned order was passed without hearing him. In fact, the record of the case shows that the appellant has been adopting

dilatory tactics with the department and has been delaying the matter. It is also to be noticed that after the termination of the lease a new agreement

has been entered into by the Department with Banarasi Dass. A lease deed has also been executed by this Banarasi Dass. He is a third party. The

decision in the writ petition is bound to affect the rights of the third party who has been inducted by the department and has acted in a bonafide

manner. Under the bonafide belief he has executed the rent deed with the department little knowing that the order of termination of lease of the

appellant was in any way illegal. The Supreme Court has enunciated the principle in A. I. R. 1957 S. C. 529, that a writ of Mandamus cannot be

issued against a third party who has been put in possession of the disputed premises and who has not acted in collusion with the State or has no

knowledge that the order challenged by the petitioner by writ was illegal, on the same principle the court may decline to issue a writ of certiorari by

refusing to exercise the extraordinary jurisdiction under Article 226 of the Constitution where circumstances exist to indicate that the granting of

such a writ is bound to affect the rights of a third party in the case. Here Banarasi Dass acted in good faith little knowing that the order of the

termination of lease might be illegal He has not acted in a malafide way in collusion with the respondent. In view of this strong circumstance in

favour of the third party (Banarasi Dass) whose rights are bound to be affected by the decision in the appeal coupled with the fact that the

appellant has failed to pay the arrears and by his conduct has shown that he never took seriously the direction of the department for two long years

from the year 1972 and did not fulfil the requisite conditions, the court for all this cannot accede to the prayer of the petitioner to issue writ in his

favour. This will be an additional ground which will justify the court to refuse to exercise the discretion of granting of the writ.

(36) I also do not see any force in the argument of the learned counsel for the appellant that the composite order made by the Custodian in

termination the lease of the petitioner and for granting the same in favour of Banarasi Dass, is in any way illegal. Nothing has been shown to me as

to how on principle such an order can be challenged as being ultra vires or illegal.

(37) For the foregoing reasons. I see no force in this appeal which is hereby dismissed.