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2018 DIGILAW 648 (JK)

Mushtaq Ahmed v. J&K Special Tribunal

2018-08-24

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : 1. Petitioner seeks issuance of a writ of certiorari for quashing order dated 26.5.2010 passed by the Jammu and Kashmir Special Tribunal, Jammu whereby the petitioner’s revision petition, challenging the cancellation of the order of allotment by the Custodian Evacuee Property, Jammu has been dismissed. 2. During the pendency of the petition, petitioner-Abdul Karim passed away and his legal representatives were brought on record vide order dated 20.11.2017. 3. Briefly stated the material facts are as under: 4. House No. 493, which was an evacuee property, came to be allotted to the petitioner by the Custodian Evacuee Property, Jammu on a monthly rent of Rs. 9 per month w.e.f., 16.4.1958. The lease initially was for a period of one year. Subsequently, the lease period was renewed in the year 1962 @ 10 per month for another year. The rent came to be revised subsequently at Rs. 15 per month. 5. It appears that the petitioner applied to the official respondents for permission to use the property for commercial purposes, which was granted vide order dated 19.8.1999. A lease agreement was executed in this regard and the monthly rent was fixed at Rs. 500 per month. 6. It appears that the allottee paid the rent for a couple of months but stopped thereafter. The allottee also claims to have applied to the respondent for re-conversion of the property from commercial to residential and for charging the nominal rates of rent based thereupon. 7. It appears that an amount of Rs. 46,000/- became outstanding as arrears of rent against the allottee. The Custodian Evacuee Property, Jammu after service of notice on the allottee finally cancelled the allotment by virtue of order dated 1.1.2008. This order was challenged in revision before the Jammu and Kashmir Special Tribunal, Jammu, which, by virtue of order impugned dated 26.5.2010, dismissed the same. It is against this order that the present writ petition has been filed. 8. Learned counsel for the petitioner urged that the order of cancellation issued by the Custodian Evacuee Property, Jammu was without jurisdiction inasmuch as prior permission of the Custodian General, Evacuee Property had not been taken in terms of Section 10 of the Jammu and Kashmir State Evacuees’ (Administration of Property) Act, 2006 (for short, Act of 2006). 9. 8. Learned counsel for the petitioner urged that the order of cancellation issued by the Custodian Evacuee Property, Jammu was without jurisdiction inasmuch as prior permission of the Custodian General, Evacuee Property had not been taken in terms of Section 10 of the Jammu and Kashmir State Evacuees’ (Administration of Property) Act, 2006 (for short, Act of 2006). 9. It was also urged that the petitioner had never been served by the Custodian Evacuee Property, Jammu before issuance of the order impugned. Lastly, it was urged that the respondent No. 2- Custodian Evacuee Property, Jammu could not have cancelled the allotment without taking a decision on the request of the petitioner for re-conversion of the use of the property from commercial to residential. 10. Heard learned counsel for the parties. 11. Section 10 of the Act of 2006 deals with the power of the Custodian to cancel any allotment or terminate any lease or amend the terms thereof. Second proviso to Section 10 of the Act of 2006, however, envisages that the Custodian shall not amend, vary or alter any of the terms of an allotment or lease or agreement involving financial implications except with the previous approval of the Custodian General. 12. On a reading of the aforesaid proviso to Section 10 of the Act of 2006, it is, thus, clear that the previous approval of the Custodian General is to be obtained only in a case where the Custodian wishes to amend, vary or alter any of the terms of an allotment or lease or agreement, which involves ‘financial implications’. 13. On a reading of Section 10 of the Act of 2006, it is also clear that for purposes of cancelling the allotment or terminating any lease, no prior approval of the Custodian General is required. Even otherwise, clause 15 of the Lease Agreement executed between the petitioner and the respondent No. 2, thus envisages that failure or default on the part of lessee in complying with the terms and conditions of this deed or non-payment of the rent in accordance with the provisions thereof, would result in termination of the lease after service of thirty days’ notice along with forfeiture of security deposit. Thus, on a combined reading of the Lease Agreement as also the provisions of Section 10 of the Act of 2006, it is, thus, clear that no prior approval is required from the Custodian General before terminating the lease. The plea of the learned counsel for the petitioner in this regard is, therefore, without any legal basis and is accordingly rejected. 14. The second ground urged by learned counsel for the petitioner was that the cancellation of the allotment was even otherwise bad inasmuch as without deciding the application of the petitioner for re-conversion of the use of the property from commercial to residential, the petitioner could not be forced to pay the commercial rate of rent and, therefore, the cancellation per se was bad. This argument is, however, does not hold good in view of the fact that the petitioner in those circumstances ought to have paid the commercial rate of rent in accordance with the terms and conditions of the Lease Agreement may be under protest and then proceeded to follow his case for re-conversion of the use of the property from commercial to residential. The petitioner could not have been permitted to enjoy the possession of the property in question without payment of the agreed rent strictly in accordance with the terms and conditions of the Lease Agreement. The plea urged is without any legal basis and is thus rejected. 15. Lastly, it was urged that the official respondents had not served the notice in terms of sub-rule 4 of Rule 14 of the Jammu and Kashmir State Evacuees’ (Administration of Property) Rules, Svt. 2008. 16. Having gone through the records, which were produced by the official respondents, it can be said that the petitioner stood served and had noticed of the impending action. 17. Having gone through the order impugned, I find no reason to disagree with the view taken by the Jammu and Kashmir Special Tribunal, Jammu. The petition, therefore, in my opinion, lacks merit and is accordingly dismissed.