Sharf Uddin v. State of U. P. — 1956 DIGILAW 316 (ALL)

JUDGMENT Mehrotra, J. - This is a petition under Article 226 of the Constitution praying that a writ of certiorari quashing the orders of the Assistant Custodian, Agra dated 13-10-1955 fixing the rent of the premises at Rs. 21/ - per month and the notice of demand directing the Petitioner to pay Rs. 2047/8/0 by 10-11-1955. 2. The facts set out in the affidavit filed in support of the petition are as follows: 3. The dispute relates to a house No. 2429 Firdos Manzil situate in Sabon Katra in the district of Agra. The house was purchased in the name of Smt. Sarfarazi Begum for a consideration of Rs. 6700/ - in the year 1945 from Rahim Bux, the father-in-law of the Petitioner. According to the Petitioner this purchase was benami in the name of the Petitioner's wife. The Petitioner was the real owner of the house and exercised all the rights of ownership since purchase. He was residing in the house. After the purchase the Petitioner claims to have reconstructed the premises and spent about Rs. 20,000/ - over its reconstruction. Srimati Sarfarazi Begum wife of the Petitioner went to Pakistan in July 1948 for the treatment of her daughter and due to some difficulties she could not come back to India. The Evacuee Property Ordinance came into force in the year 1949. It was followed by an Evacuee Property Act 1950 which came into force on 18-4-1951. The Petitioner received no notice under the Act declaring the house in question as the evacuee property and for the first time he states that a notice was served on him on 18-4-1951 asking him to pay rent and to appear to show cause before the Assistant Custodian Evacuee Property Agra on 24-4-1951. On 4-5-1951 the Petitioner sent a notice to the Custodian Evacuee Property claiming exclusive ownership of the house in dispute and praying for the cancellation of the notice. The Petitioner was asked in reply to that notice to file his objection in the pending case Objections were then filed by him on 29-5-1951 claiming ownership of the property and asserting that the sale was bemani in the name of this wife. 4. The case was transferred to the Assistant Custodian (Judicial) Agra Circle. After evidence the case was finally disposed of in November 1952 and according to the Petitioner his objection was allowed and the property was released. 4. The case was transferred to the Assistant Custodian (Judicial) Agra Circle. After evidence the case was finally disposed of in November 1952 and according to the Petitioner his objection was allowed and the property was released. The Petitioner applied for the copy of the order which was not given to him. After 1952 the Petitioner heard nothing about the matter but suddenly on 9-10-1955 the Petitioner was served with another notice directing him to appear before the Assistant Custodian, Agra on 13-10-1955 in connection with the fixation of rent of house No. 2429. The Petitioner appeared before the Assistant Custodian and asserted his title to the property. The Assistant Custodian, however, fixed the rent at Rs. 21/ - per month payable from 15-8-1947. Thereafter a notice of demand dated 13-10-1955 u/s 12 Evacuee Property Act was served on the Petitioner on 16-10-1955 directing him to appear before the Assistant Custodian on 10-11-1955 and to pay arrears of Rs. 2047/8/0 failing which the amount was to be realised as arrears of land revenue. The Petitioner 0:1 these facts claimed the relief which I have already referred to. The contention of the Petitioner is that after the property had been released in his favour in November 1952 it was not open to the Assistant Custodian to fix the rent and to issue notice of demand. A counter affidavit has been filed on behalf of the Custodian in which is was denied that the Petitioner is the owner of the house and it is asserted that the house belonged to his wife. She has gone over to Pakistan and the property is an evacuee property. It is alleged in the counter affidavit that a notice u/s 7 of the Administration of Evacuee Property Act was issued both against Srimati Sarfarazi Begum and the Petitioner Sri Shad Uddin. On 28-8-53 a true copy of the notice was issued u/s 7 of the Act read with Rule 6(i) of the Evacuee Property rules. The notice was taken by the process server to the house where the Petitioner was living. But it was reported that he refused to accept the notice. 5. On 1-10-1953 the Assistant Custodian of Evacuee Property Agra passed an order declaring Srimati Sarfarazi Begum as evacuee and her property house No. 2429 and house No. 2572 as evacuee property. The notice was taken by the process server to the house where the Petitioner was living. But it was reported that he refused to accept the notice. 5. On 1-10-1953 the Assistant Custodian of Evacuee Property Agra passed an order declaring Srimati Sarfarazi Begum as evacuee and her property house No. 2429 and house No. 2572 as evacuee property. On 7-10-1953 the Assistant Custodian of evacuee property Agra issued a notification u/s 7(3) of the Administration of Evacuee Property Act notifying for general information that house Nos. 2429 and 2472 had vested in the Custodian of Evacuee Property. Neither the Petitioner nor Srimati Sarfarazi Begum ever filed an appeal against the order of the Assistant Custodian declaring the property in dispute as evacuee property. It is denied by the opposite party that: any notice was issued on 18-4-1951 nor any objection was filed by the Petitioner to that notice. The proceedings referred to by the Petitioner in his affidavit are denied. It is asserted that the rent was properly and legally fixed by the Assistant Custodian and after due notice to the Petitioner the notice of demand has been rightly issued against the Petitioner. Rejoinder affidavit has been filed in which it has been re-asserted that the proceedings did take place in the year 1951 in which finally the order was passed releasing the property in favour of the Petitioner and that the documents are purposely suppressed by the Custodian. 6. The first contention raised by the Petitioner is that the proceedings started in the year 1951 determined the question whether the property belonged to the Petitioner or to his wife. In the order of the Custodian (Judicial) releasing the property in favour of the Petitioner he conclusively determined that question. It is not now open to the opposite parties to reagitate the matter and treating the property as evacuee property fix any rent. In my opinion there is no force in this contention of the Petitioner. Assuming that any such order was passed by the Assistant Custodian (Judicial) the order will not have the force of res-judicata and will not be conclusive. In my opinion there is no force in this contention of the Petitioner. Assuming that any such order was passed by the Assistant Custodian (Judicial) the order will not have the force of res-judicata and will not be conclusive. Moreover, from the perusal of the notice filed by the Petitioner along with his affidavit dated 18-4-1951 on which the proceedings are said to have started ii will appear that it was a notice calling upon the Petitioner to show cause why the Petitioner should not be evicted from the premises as he has failed to pay rent in respect of the disputed house. It was not a notice contemplated u/s 7 of the Administration of the Evacuee Property Act and in such a proceeding the Assistant Custodian (judicial had no right to determine the question whether the property belonged to Srimati Sarfarazi Begum and was an evacuee property or it belonged to the Petitioner. 7. The prayer in the objection filed by the Petitioner to this notice reads as follows: It is therefore prayed that the notice be discharged and the objection be allowed. This is however without prejudice to the rights of the objector to get a declaration about his title from the competent Civil Court. 8. This also suggests that the Petitioner was claiming in those proceedings a right to remain in possession and no liability to pay rent and has expressly prayed for reservation of his right to file a suit for declaration. In these circumstances even if an order had been passed by the Assistant Custodian (Judicial) releasing the property in favour of the Petitioner it could only be an order dealing with the possession of the house as he had no jurisdiction to pass any order regarding the nature and ownership of the disputed property. There is, however, a controversy between the parties as to whether any such proceedings were taken against the Petitioner and it is not necessary for this Court to go into that matter and decide that question of fact because as I have already stated even if it is accepted that such proceedings did take place from the very nature of the proceedings any order passed by the Custodian cannot be treated to be an order u/s 7 of the Act and could not have related to the ownership of the property. It was then contended by the opposite parties that Srimati Sarfarazi Begum went to Pakistan in the year 1947 and under the Ordnance of 1949 the evacuee property automatically vested in the Custodian. No notice was necessary and no declaration as required u/s 7 of the Act was necessary under the Ordinance to vest the property in the Custodian. The argument urged by the opposite parties is that the property automatically vested in the Custodian where the Ordinance came into force and it was not necessary after the coming in force of the Act to make any declaration of the property. Reliance was placed by the opposite parties on Section 8(2) of the Administration of Evacuee Property Act 1950 which provides that "Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest". 9. Section 8(1) of the Act provides that "Any property declared to be evacuee property u/s 7 shall be deemed to have vested in the Custodian for the State". 10. The effect of Sub-section 2 of Section 8 therefore is that all the properties which automatically vested in the Custodian under the Ordinance have been put on a par with the properties which after the coming in force of the Act have been declared as evacuee property u/s 7 of the Act. 11. As an additional ground it was urged by the opposite parties that due notice was given to the applicant and a declaration was made in the year 1953 that the disputed property was an evaluee property and consequently the property vested in the Custodian and the Petitioner cannot say that he had no valid notice as required u/s 7. As I have already state i that there is dispute between the parties as to whether any notice was issued to the Petitioner in the year 1953, I do not think it is necessary for me to go into that question. As I have already state i that there is dispute between the parties as to whether any notice was issued to the Petitioner in the year 1953, I do not think it is necessary for me to go into that question. In either case whether the property automatically vested in the Custodian under the Ordinance of 1949 or it was declared an evacuee property in the year 1953 and thus vested in the Custodian u/s 8, the result is that the opposite parties claim that the property vested in the Custodian as an evacuee property while the Petitioner is claiming ownership in the property and a right or title adverse to the evacuee herself. 12. The main question which has got to be considered in the case is if even assuming that the property according to the opposite parties vests in the Custodian and that the Petitioner was assorting his title to the property it was open to the Custodian to treat the occupation of the Petitioner as that of a tenant and to fix rent and to issue a notice of demand on the Petitioner treating the amounts as the arrears of rent or as the dues of the Custodian recoverable as land revenue. 13. Section 8(4) of the Administration of Evacuee Property Act provides that Where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf." 14. Section 9 of the Act provides that "If any person in possession of any evacuee property refuses or fails on demand to surrender possession thereof to the Custodian or to any person duly authorised by him in this behalf, the Custodian may use or cause to be used such force as may be necessary for taking possession of such property and may, for this purpose, after giving reasonable warning and facility to any woman not appealing in public to withdraw, remove or break open any lock, bolt or any door or do any other act necessary for the said purpose". 15. Section 10 then enumerates the general powers of the Custodian. 16. Section 10 does not authorise the Custodian to fix rent of any property in possession of a trespasser. 15. Section 10 then enumerates the general powers of the Custodian. 16. Section 10 does not authorise the Custodian to fix rent of any property in possession of a trespasser. Section 8(4) and Section 9 read together give power to the Custodian to treat the possession of any person over the evacuee property which has vested in him as one on his behalf and further to demand surrender of possession from him. In the event of his failure to comply with the demand power has been given to the Custodian to enter into possession of the property, but it also to my mind does not give any power to the Custodian to treat a person who is in occupation of an evacuee property and sets up a title adverse to the evacuee as a tenant and to fix rent. It was urged by the opposite-parties that as u/s 8(4) any person in possession of an evacuee property is in the eyes of law deemed to be holding it on behalf of the Custodian, it is open to the Custodian to claim some amount from him for its use and occupation and to fix that amount. 17. Section 8(4) and Section 9 in my opinion have got to be read together and even the demand to surrender possession could not have been justified unless the possession of a trespasser in the eyes of law could be regarded as that of a licensee and it was for that purpose that the legislature enacted that the possession of any person over the evacuee property which had vested in the Custodian will be deemed to be on his behalf. No section has been pointed out to me under which the Custodian has got power to fix the rent treating a trespasser to be a tenant of the evacuee property. It is necessary to refer to the notice which has been issued by the Custodian and which is being challenged by the Petitioner. The first notice which was issued calling upon the Petitioner to appear on 13-10-1955 was in connection with the rent fixation of house No. 2429. It does not specify under which section of the Act this notice was issued. The first notice which was issued calling upon the Petitioner to appear on 13-10-1955 was in connection with the rent fixation of house No. 2429. It does not specify under which section of the Act this notice was issued. The other notice of demand which is dated 13-10-1955 and which has been filed as Annexure G to the affidavit filed in support of the petition is headed as "Final Demand Cum show Cause Notice u/s 12 of the Evacuee property Act XXXI of 1950". In the body of the notice it is thus stated "Whereas a sum of Rs. 2047-8-0 is due on you as arrears of Rent/License money at the rate of Rs. 21 p.m. for the period 15-8-1947 to 30-9-1955. 18. You are hereby called upon to appear before me on 10-11-1955 and pay the above amount or otherwise show cause why your tenancy house No. 2429 situated at Sabon Katra be not terminated forthwith and amount be not realised as arrears of land revenue as provided u/s 48 of the Evacuee Property Act of XXXI, 1950". 19. Section 12 of the Act provides as follows: Notwithstanding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or amend the terms of any lease or agreement under which any evacuee property is held or occupied by a person, whether such allotment, lease or agreement was granted or entered into before or after the commencement of this Act.". Sub-section 2 of Section 12 provides that "Where by reason of any action taken under Sub-section (1), any person has ceased to be entitled to possession of any evacuee property, he shall on demand by the Custodian surrender possession of such property to the Custodian or to any person duly authorised by him in this behalf. 20. Sub-section 3 of Section 12 provides that "If any person fails to surrender possession of any property on demand under Sub-section (2), the Custodian may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property in the manner provided in Section 9". 21. 20. Sub-section 3 of Section 12 provides that "If any person fails to surrender possession of any property on demand under Sub-section (2), the Custodian may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property in the manner provided in Section 9". 21. Section 12 no doubt gives powers to the Custodian to cancel any allotment or terminate any lease or amend the terms of any lease or agreement, but that to my mind presupposes the existence of a lease, allotment or an agreement. It does not give power to create any tenancy and then terminate it by a notice u/s 12. To my mind Section 12 had no application to the present circumstances. It neither gives power to fix rent and then terminate the tenancy on the ground that arrears have not been paid. Admittedly there was no lease nor any allotment in favour of the Petitioner by the Custodian nor was there any agreement entered into between the Petitioner and the Custodian. Reliance was then placed by the counsel for the Custodian on amended Section 48 of the new Act, which reads as follows: Any sum due to the State Government or to the Custodian under the provisions of this Act may be recovered as if it were an arrear of land revenue. 22. Sub-section 2 of the section reads as follows: For the purposes of Sub-section (1) the decision of the Custodian as to the sum due to the State Government or to the Custodian shall be final. 23. To my mind Section 48 does not deal with the substantive provisions of the Act. It only provides for the recovery of the arrears. Sub-section 2 only provides that for the purposes of Sub-section (1) namely for the recovery of the arrears the decision of the Custodian as to sum due shall be final. This to my mind does not confer any power on the Custodian to determine the amount due from the third party who claims title adverse to the evacuee. It does not confer any power to fix the rent treating the possession of a trespasser as that of the a tenant. This to my mind does not confer any power on the Custodian to determine the amount due from the third party who claims title adverse to the evacuee. It does not confer any power to fix the rent treating the possession of a trespasser as that of the a tenant. The finality under Clause 2 attaches to the decision of the Custodian as to the sum due only for the purposes of Clause 1 of Section 48 and Clause 1 refers to any sum due to the State Government under the provisions of this Act. The liability therefore, is to be traced under some other substantive provisions of the Act. Section 48 itself does not give any right to the Custodian to treat the trespasser as a tenant, fix the amount and then treat the amount of rent as the amount due to the State Government or to the Custodian under the provisions of this Act. 24. In the case D.B. Godbole Vs. Kunwar Rajnath, AIR 1956 Bom 652 , it was held that. It is a condition precedent to the exercise of the power of the Custodian u/s 48(2) of the Administration of Evacuee property Act, 1950, that the sum with regard to which he gives his decision or determination must be a sum due under the provisions of the Act. It is not sufficient for the Custodian to say that in his opinion a certain sum is due under the provision is of the Act. That opinion is subject to the scrutiny of the Court to which he is subordinate and, therefore, under Article 227 of the Constitution of India, the High Court has the power to examine the decision of the Custodian from the point of view of deciding whether he has acted within jurisdiction". 25. In that case certain properties were declared evacuee properties under the Administration of Evacuee Property Act, 1950, and the Respondent was appointed manager by the Custodian to manage these properties. Subsequently the Custodian took back possession of the properties and called upon the Respondent to submit a statement of accounts with regard to his management of the properties. 26. After considering the statement submitted by the Respondent, Custodian decided that certain amount was due to him and he issued a notice against the Respondent to show cause why this amount should not be recovered from him u/s 48 of the Act. 26. After considering the statement submitted by the Respondent, Custodian decided that certain amount was due to him and he issued a notice against the Respondent to show cause why this amount should not be recovered from him u/s 48 of the Act. An objection was raised by the Respondent that the Custodian had no jurisdiction to determine the amount payable by him. In these circumstances it was held by the Bombay High Court that the sum was really due under the arrangement arrived at between the Custodian and the Respondent, and the Custodian had under the Act neither the authority to determine the liability of the Respondent whom he had appointed as manager or to call upon him to pay any amount which he determined as due from him and that the sum was not therefore, due by the Respondent under any provision of the Act and that the Respondent had no jurisdiction to determine the liability of the Respondent to call upon him to pay the sum u/s 48 of the Act. 27. The object of the Administration of Evacuee Property Act, 1950 is to administer evacuee property, to manage, look after and preserve evacuee property and not strictly to decide rights and liabilities of third parties who have dealings with the Custodian or with evacuee property. 28. In my judgment there is therefore no provision in the Act which empowers the Custodian to treat a person in possession of evacuee property claiming rights adverse to the evacuee as tenant and to fix rent. There being no such express provision any amount fixed by him as a rent cannot be regarded as a sum due to the Custodian under the provisions of the Act and consequently the notice issued for payment and for realisation of the amount as arrears of land revenue under the provisions of Section 48 Sub-section (1) is without jurisdiction. The condition precedent for the issue of such a notice does not exist in this case. Further in ray opinion the new added Sub-section 2 of Section 48 gives no power to the Custodian to determine the liability of the third party to the Custodian. The condition precedent for the issue of such a notice does not exist in this case. Further in ray opinion the new added Sub-section 2 of Section 48 gives no power to the Custodian to determine the liability of the third party to the Custodian. It has not been contended that on the finding that the Custodian had no power to determine the amount of arrears of rent or to fix the rent still the notice is legal and that con not be set aside by this Court in the exercise of its powers under Article 226 of the Constitution. The condition precedent for the issue of the notice is that there must be a sum due under the Act to the Custodian. It does not give power to the Custodian himself to treat any amount as due to him and thereby assume jurisdiction to issue notice u/s 48 for realisation of the amount as arrears of land revenue. Such an assumption on the part of the Custodian can be examined by this Court and if it is found that there is no power under the Act to determine that amount, to quash the notice of demand. Lastly it was contended by the opposite-parties that so far only a notice has been issued to the Petitioner to pay up the amount and in the event of his noncompliance with the notice to show cause why the amount should not be realised as arrears of rent, no step so far has been taken for the realisation of the amount as arrears of rent. The Petitioner therefore, cannot come to this Court at this stage and ask for any relief of mandamus." I do not think that there is any force in this contention either. If the opposite parties have no right to realise as arrears of land revenue by giving notice to him dated 13th October he is proposing to act without any authority of law and it is open to this Court to issue a writ of mandamus directing him not to act against the law and under a notice which was issued without jurisdiction. It was then urged by the opposite parties that if the Petitioner had appeared in response to the notice and had shown cause any determination by the Custodian would have been subject to appeal and revision to the proper authorities. It was then urged by the opposite parties that if the Petitioner had appeared in response to the notice and had shown cause any determination by the Custodian would have been subject to appeal and revision to the proper authorities. The Petitioner has an alternative remedy available to him and this Court will not exercise its discretion under Article 226 of the Constitution when such remedy is available to him. In my opinion this has no substance. The fact that the Petitioner may have a remedy by way of appeal or revision against the order deciding the objection if any filed by the Petitioner cannot be regarded as an equally adequate remedy so as to disentitle him to a relief under Article 226 of the Constitution. Moreover, it has not been shown to me under which provision of the Act he will have a right of appeal against any such decision by the Custodian in case he appeared to show cause in pursuance of the notice. 29. In the result I, therefore, allow this petition, quash the notice dated 13-10-1955 and issue a writ of mandamus directing the opposite parties not to realise the amount mentioned in the notice as arrears of land revenue. As the Petitioner had not raised this point specifically in his grounds of application he is not entitled to costs. I, therefore, make no order as to costs.