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2023 DIGILAW 657 (JK)

Ishtiaq Ahmad Mir v. Custodian General

2023-10-21

RAJNESH OSWAL

body2023
JUDGMENT : 1. Initially the predecessor-in-interest of the petitioners, namely, Haji Mohammad Jamal, was leased out one double storeyed building with compound, two sheds with carpet looms, one shed. godowns and storeroom belonging to one Sheikh Sadiq Hussain, in the year 1952. The lease period was extended from time to time and the last extension of lease was made in favour of predecessor-in-interest of the petitioners vide order of Custodian General dated 03.01.1977 and an agreement in respect of the property mentioned above was executed, thereby providing the tenure of lease period for 60 years with effect from 01.10.1978. The annual rent was fixed @ Rs.24,000/-. The rent was payable on or before the 15th day every month. 2. During the currency of the lease, Haji Mohammad Jamal i.e. the predecessor-in-interest of the petitioners expired and the petitioners continued to remain in occupation of the property mentioned above after his demise. As the rent was not paid, therefore, the respondent No.2 issued a show cause notice dated 21.10.2003 to the legal representatives of the deceased lessee i.e. the petitioners herein thereby stating that an amount of Rs.86,000/- was outstanding against them on account of unpaid rent upto December, 2003. The petitioners were asked to show cause as to why the lease in respect of the evacuee property be not terminated. The petitioners, thereafter, paid an amount of Rs.50,000 (cash), Rs.20,000 (cash), Rs.45,000 (Bank Draft) and Rs.35,000 (Bank Draft) on 13.11.2003, 22.03.2004, 19.04.2006 and 20.07.2006 respectively. Thereafter, another show cause notice dated 21.07.2006 was issued to the petitioners stating therein that an amount of Rs.97,000/- (subject to reconciliation) was due as outstanding rent upto March, 2006 and accordingly, the petitioners were asked to show cause by or before 29.07.2006 as to why lease in respect of the above said property be not terminated and possession be resumed by the Department. It was also stated in the notice that the lessee has expired and thus the lease has ceased to exist and further the factory was not functional and the property in question was not maintained properly. It was also stated in the notice that the lessee has expired and thus the lease has ceased to exist and further the factory was not functional and the property in question was not maintained properly. The petitioners in response to the said notice vide reply dated 27.07.2006 stated that they had applied for the transfer of lease in their favour but the department did not take any action and with the change in law and order situation, necessary steps had been taken to revive the commercial activities and they had spent more than Rs.4.00 lacs for the maintenance of the property. Besides, it was also stated by the petitioners that there was only a balance of sum of Rs.35,000/- and the petitioners had approached the department with a demand draft but the same was not acknowledged. Thereafter vide order dated 04.08.2006, the respondent No.2, taking into consideration the reply submitted by the petitioners, held the possession of the petitioners as unauthorized and that an amount of Rs.97,000/- was outstanding, consequently, in exercise of powers vested in him under Section 7 of the Evacuee Property Act, 2006, directed the petitioners to surrender the possession of the property to the Deputy Custodian. 3. The order dated 04.08.2006 was impugned by the petitioners before the respondent No.1 and the respondent No.1 vide order dated 31.08.2006 set aside the order and directed for de-novo proceedings to be completed within a period of 21 days after providing an opportunity of being heard to the petitioners. The said order was passed on the premise that though in the subject of the order impugned it was mentioned “cancellation of allotment” but in the order it was nowhere indicated that the lease granted to late Haji Mohammad Jamal had been cancelled in exercise of the powers conferred upon the Custodian under Section 10 of the Act. After the matter was remanded to respondent No.2, the respondent No.2 vide notice dated 09.09.2006 asked the petitioners to show cause as to why the lease granted in favour of their deceased father be not cancelled and the possession be resumed by the department and the arrears of the rent along with interest be recovered as arrears of land revenue. After the matter was remanded to respondent No.2, the respondent No.2 vide notice dated 09.09.2006 asked the petitioners to show cause as to why the lease granted in favour of their deceased father be not cancelled and the possession be resumed by the department and the arrears of the rent along with interest be recovered as arrears of land revenue. The said notice was issued on the premise that the father of the petitioners had expired and he ceased to be the lessee of the property and the leased property was in disuse and the petitioners were in occupation of the said property unauthorizedly, besides an amount of Rs.97,000/- (subject to reconciliation) till March 2006 was outstanding in the name of their father. 4. In response to the notice dated 09.09.2006, the petitioners vide reply dated 16.09.2006 stated that the arrears of rent amounting to Rs.35,000/- were sent by the registered post on 07.09.2006 before issuance of show cause notice and further they intended to lead evidence for which they sought two weeks’ time. The petitioners thereafter vide another communication dated 20.09.2006 stated that they had paid the entire rent and denied the disuse of the property as stated in the notice dated 09.09.2006. 5. The record depicts that during the proceedings pending before the respondent No.2, the petitioners examined one witness, namely, Ali Mohammad R/o Khanyar as a witness in support of their claim and the respondent No.2 vide order dated 28.09.2006 arrived at the conclusion that the petitioners had kept the arrears outstanding and the property had been in disuse, therefore, the lease deserved to be cancelled. Accordingly, the respondent No.2 cancelled the lease of Haji Mohammad Jamal i.e. the predecessor-in-interest of the petitioners. 6. The petitioners in terms of a revision petition assailed the order dated 28.09.2006 before the respondent No.1, who vide order dated 08.12.2008 dismissed the revision petition filed by the petitioners. This is how the petitioners have approached this Court for quashing the order dated 08.12.2008 (hereinafter referred to as “the impugned order”) on the following grounds : (I) That the petitioners were not in arrears of rent. The respondent No.1 has calculated rent with effect from 01.10.1978 to 30.09.2006 as Rs.6,72,000/- and has observed that the petitioners have paid Rs.5,10,000/- thereby leaving an outstanding amount of Rs.1,62,000/- as on 30.09.2006. The respondent No.1 has calculated rent with effect from 01.10.1978 to 30.09.2006 as Rs.6,72,000/- and has observed that the petitioners have paid Rs.5,10,000/- thereby leaving an outstanding amount of Rs.1,62,000/- as on 30.09.2006. The respondent No.1 while determining the amount payable by the petitioners has completely ignored the show cause notice dated 21.10.2003, whereby an amount of Rs.86,000/- was shown as outstanding till 12/2003. Once the amount payable by the petitioners as per the notice of respondent No.2 was Rs.86,000/- till 12/2003 and as the petitioners had paid an amount of Rs.50,000/- Rs.20,000/-, Rs.45,000/- and Rs.35,000/- on 13.11.2003, 22.03.2004, 19.04.2006 and 26.07.2006 respectively, the respondent No.1 could not have held the petitioners to be in arrears to the tune of Rs.1.62 lacs, rather the petitioners had deposited an amount of Rs.1.50 lacs as against Rs.1.52 lacs, if the notice dated 21.10.2003 is taken in to consideration. It is further stated that the respondent No.2 had not determined the amount payable by the petitioners finally but that was subject to reconciliation. (II) That the respondent No.1 has also relied on Rule 14 of the J&K State Evacuees (Administration of Property) Rules, Svt. 2006, whereas the power of the Custodian to cancel a lease is not absolute but is controlled by the law in force relating to control of rents. The law does not envisage a position that if a lessee is in arrears for three months, he cannot pay the arrears subsequent thereto. (III) That the respondent No.1 has passed the impugned order on the basis that the property in question is not being used by the petitioners. While recording the said finding, the respondent No.1 has stated that he had made his own enquiries to satisfy himself with regard to correctness or otherwise of the report submitted by the Field Inspector and further it has also been observed by the Custodian General in respect of the visit of the Custodian Evacuee Property to the subject matter of the property and the spot inspection conducted by him. It is stated that the petitioners have no knowledge about the visit of the Custodian having been recorded by the respondent No.1 in the order impugned and even no intimation of the visit was given to them. It is stated that the petitioners have no knowledge about the visit of the Custodian having been recorded by the respondent No.1 in the order impugned and even no intimation of the visit was given to them. (IV) That the respondent No.1 has relied upon the material provided to him by the Commercial Taxes Department and the petitioners have no information or knowledge about any material having been collected by the respondent No.1. So far as Jamal Carpet Industries and Kashmir Shalimar Carpet Factory are concerned, the petitioners have nothing to do with the said concerns, who are not lessees of the property in question. It is also stated that the nature of the business of the petitioner was tourist oriented and because of turmoil in the Valley, the business which M/S INDO Kashmir Carpet Factory was doing, got adversely affected and whenever any business was done, that was reported. It is further averred that because of the intervening circumstances, the contract between the parties was incapable of performance and as and when the intervening circumstances (i.e. law and order situation) permits, the petitioners would continue with their business. (V) That the respondent No.1 has also relied upon the report of Commercial Taxes Officer, Circle “O”, but the petitioners do not have any knowledge in respect of the said report and it was collected by the respondent No.1 at the back of the petitioners. (VI) That according to the respondent No.1, the property was leased out to M/S INDO Carpet Factory, Kashmir, on 16.01.1952 and when the lease was originally granted, there was no requirement of paying any premium because Section 10-A has been inserted in the Act only in the year 1977. Rule 13-C was also not applicable because the property was not being leased out for the first time in 1978. 7. The respondents have not filed their response but the objections have been filed by respondent No.2 in IA No.388/2009, wherein it has been stated that an amount of Rs.1.62 lacs is in arrears and in this regard the respondent No.2 has placed on record the rent statement with effect from 01.10.1978 till 31.09.2006 and as per the rent statement, an amount of Rs.1.62 lacs is outstanding as rent arrears. 8. 8. Learned senior counsel for the petitioners has submitted that the petitioners were not in arrears of rent and as per the show cause notices issued by the respondent No.2, the arrears of rent were not final but were subject to reconciliation. He further submitted that the respondent No.1 conducted enquiry at the back of the petitioners in order to return a finding that the leased property was not put to any use and was in occupation of others. The respondent No.1conducted some enquiry from the Commercial Taxes officer also at the back of the petitioners and the petitioners were never associated with it, therefore, the finding returned by the respondent No.1 on the basis of the material which was neither shared with the petitioners nor the petitioners were made aware of, is not sustainable. 9. Per contra, learned counsel for the respondents has argued that the finding of fact has been returned by the respondents in respect of arrears of rent payable by the predecessor-in-interest of the petitioners, which cannot be assailed in a writ petition under Article 226 of the Constitution of India. He further submitted that the leased property was not put to use which is duly substantiated by the finding recorded not only by the respondent No.2 but also by the respondent No.1, who in turn, to ascertain the veracity of the finding in respect of non-use of the premises, himself conducted further enquiry in the matter, as such, there is nothing wrong with the order impugned passed by the respondent No.1. He further argued that the lease hold rights are not heritable and, as such, the petitioners cannot claim the benefit of the allotment of evacuee property in favour of their predecessor-in-interest and the consequent lease deed. 10. Heard and perused the record. 11. Before proceeding ahead to appreciate the rival contentions of the parties, this Court deems it proper to examine the scope of Writ of Certiorari. The Hon’ble Supreme Court while examining the scope of Writ of Certiorari in “Central Council for Research in Ayurvedic Sciences v. Bikartan Das”, 2023 SCC OnLine SC 996 has held as under : Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari. 51. 51. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking. 52. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not. 78. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Raman and Raman Ltd. Kumbakonam, Tanjore District, (1952) 1 SCC 334 observed: “26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.” (emphasis added) 12. Further in “General Manager, Electrical, Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695 ”, after taking note of its various earlier pronouncements the Hon’ble Supreme Court of India has held as under : 28. On the conspectus of the decisions and material, we would hold as follows: the jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of certiorari will not don the cap of an appellate court. It will not reappreciate evidence. The writ of certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body amenable to certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. It will not reappreciate evidence. The writ of certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body amenable to certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such a finding of fact is not immune from being interfered with by a writ of certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter “off bounds” for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly. It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes vulnerable to judicial scrutiny by way of certiorari must also be one which is apparent on the face of the record. As held by this Court in Hari Vishnu Kamath [Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 ], as to what constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amenable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down (see Parry & Co. Ltd.). (emphasis added) 13. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amenable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down (see Parry & Co. Ltd.). (emphasis added) 13. In terms of the judgments (supra), Hon’ble Supreme Court of India has culled out the following principles for exercise jurisdiction under Article 226 of the Constitution of India for issuance of Writ of Certiorari : (I) The jurisdiction to issue a Writ of Certiorari is supervisory and not appellate. (II) The Writ of Certiorari is intended to correct the jurisdictional error when the same is clearly established. (III) The jurisdictional error may be from failure to observe the limits of jurisdiction and the procedure adopted by the body after validly assuming the jurisdiction when there is a violation of principles of natural justice. (IV) So far as the finding of fact is concerned, it is ordinarily not to be interfered by the writ court as the error would be a mere error of fact, however, gross it may be, it does not amount to error of law. (V) A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. If the overwhelming weight of the evidence does not support the finding, it would render the decision liable to be interfered with by exercising certiorari jurisdiction. 14. Now taking the above principles in mind, this Court would examine the contentions raised by the petitioners. 15. Issue No: 1 : Whether the finding returned by respondent No.1 that the petitioners are in arrears to the extent of Rs.1.62 lacs is perverse? (a) It was contended by learned senior counsel for the petitioners that in the notice dated 21.10.2003, an amount of Rs.86,000/- was shown outstanding till 12/2003 and in show cause notice dated 09.09.2006, upto 03/2006, an amount of Rs.97,000/- was shown as outstanding (subject to reconciliation) and if the show cause notice dated 21.10.2003 is relied upon, then the petitioners had made a payment of Rs.1.50 lacs to the respondents in terms of four payments as mentioned above from 13.11.2003 onwards and, as such, the petitioners were not in arrears at all. (b) The perusal of the show cause notice dated 21.07.2006, reveals that an amount of Rs.97,000/- was outstanding as arrears of rent till 03/2006 (subject to reconciliation) and in the subsequent show cause notice dated 09.09.2006 issued after the initial order dated 04.08.2006 passed by respondent No.2 was set aside by respondent No.1, the same amount of Rs.97,000/- was shown as outstanding till 03/2006 (subject to reconciliation). In both these show-cause notices, the amount in arrears was subject to reconciliation. The petitioners, in reply to the notice dated 21.07.2007 vide their reply dated 27.07.2006 stated that there was balance of Rs.35,000/- only. Thereafter in reply to the show cause notice dated 09.09.2006, the petitioners vide their reply dated 16.09.2006 stated that an amount of Rs.35,000/- was outstanding, which as per the petitioners was sent to the respondents in the form of demand draft by the registered post on 07.09.2006. The petitioners vide another communication dated 20.09.2006 addressed to the respondent No.2 stated that they were not in arrears. The respondent Custodian General has placed reliance upon the rent statement submitted before him, which has also been placed on record before this Court. The same is reproduced as under : S. No. Period from Rate of Rent Rent payable Rent paid 1. 01-10-78 to 30-09-79 2000/- PM Rs.24000/- 24000/- 2. 01-10-79 to 30-09-80 2000/- PM Rs.24000/- 24000/- 3. 01-10-80 to 30-09-8 2000/- PM Rs.24000/- 26000/- 4. 01-10-81 to 30-09-82 2000/- PM Rs.24000/- 20,000/- 5. 01-10-82 to 30-09-83 2000/- PM Rs.24000/- 30,000/- 6. 01-10-83 to 30-09-84 2000/- PM Rs.24000/- 8000/- 7. 01-10-84 to 30-09-85 2000/- PM Rs.24000/- 42,000/- 8. 01-10-85 to 30-09-86 2000/- PM Rs.24000/- 18,000/- 9. 01-10-86 to 30-09-87 2000/- PM Rs.24000/- 12,000/-Chq+12000, Chq-24000/- 10. 01-10-87 to 30-09-88 2000/- PM Rs.24000/- 12,000/-Chqe 11. 01-10-88 to 30-09-89 2000/- PM Rs.24000/- 12,000/-Chqe 12. 01-10-89 to 30-09-90 2000/- PM Rs.24000/- 6,000/-Chq 13. 01-10-90 to 30-09-91 2000/- PM Rs.24000/- 6,000/-Chq 14. 01-10-91 to 30-09-92 2000/- PM Rs.24000/- 12,000/-Chq 15. 01-10-92 to 30-09-93 2000/- PM Rs.24000/- 12,000/-Chq 16. 01-10-93 to 30-09-94 2000/- PM Rs.24000/- 24,000/-Chq 17. 01-10-94 to 30-09-95 2000/- PM Rs.24000/- 24,000/-Chq 18. 01-10-95 to 30-09-96 2000/- PM Rs.24000/- 24,000/-Chq 19. 01-10-96 to 30-09-97 2000/- PM Rs.24000/- 24000/-(88/4371) 20. 01-10-97 to 30-09-98 2000/- PM Rs.24000/- 50,000/-(29/2849 21. 01-10-98 to 30-09-99 2000/- PM Rs.24000/- 20000/- 125/6244 22. 01-10-99 to 30-09-00 2000/- PM Rs.24000/- 45,000/-(B.D) 23. 01-10-00 to 30-09-01 2000/- PM Rs.24000/- 35000/-(B.D) 24. 01-10-94 to 30-09-95 2000/- PM Rs.24000/- 24,000/-Chq 18. 01-10-95 to 30-09-96 2000/- PM Rs.24000/- 24,000/-Chq 19. 01-10-96 to 30-09-97 2000/- PM Rs.24000/- 24000/-(88/4371) 20. 01-10-97 to 30-09-98 2000/- PM Rs.24000/- 50,000/-(29/2849 21. 01-10-98 to 30-09-99 2000/- PM Rs.24000/- 20000/- 125/6244 22. 01-10-99 to 30-09-00 2000/- PM Rs.24000/- 45,000/-(B.D) 23. 01-10-00 to 30-09-01 2000/- PM Rs.24000/- 35000/-(B.D) 24. 01-10-01 to 30-09-02 2000/- PM Rs.24000/- 25. 01-10-02 to 30-09-03 2000/- PM Rs.24000/- 26. 01-10-03 to 30-09-04 2000/- PM Rs.24000/- 27. 01-10-04 to 30-09-05 2000/- PM Rs.24000/- 28. 01-10-05 to 30-09-06 2000/- PM Rs.24000/- (c) The perusal of rent statement reveals that the amount of Rs.50,000/-, Rs.20,000/-. Rs.45,000/- and Rs.35,000/- paid by the petitioners on 13.11.2003, 22.03.2004, 19.04.2006 and 26.07.2006 has been adjusted by the respondents against the rent payable with effect from 01.10.1997 to 30.09.2001, meaning thereby that no rent was paid by the petitioners with effect from 01.10.1997 till 13.11.2003 when pursuant to show cause notice dated 21.10. 2003, the petitioners paid a rent of Rs.50,000. Even if the communication dated 21.10.2003 is taken into consideration, still an amount of Rs.36,000/- was outstanding in the name of the petitioners. (d) Be that as it may, the subsequent notice dated 21.07.2006 reflected an amount of Rs.97,000/- as outstanding on account of arrears of rent (subject to reconciliation). The petitioners themselves vide communication dated 27.07.2006, admitted that an amount of Rs.35,000/- was payable by them as arrears of rent and not Rs.97,000/-. The petitioners have miserably failed to demonstrate before the respondents in respect of the payment of whole arrears of rent and the respondent No.1 after considering the payments made by the petitioners arrived at the conclusion that the petitioners were in arrears of rent. Mere the fact that in the show-cause notices the amount referred was subject to realization would not come to the rescue of the petitioners as it would simply mean that if some amount was not reflected in the records of the custodian department, though paid by the petitioners could be adjusted. The petitioners have neither been able to demonstrate before the respondent No.1 nor before this court that they were not in arrears in respect of arrears of rent to the extent of Rs.1,62,000/- till 30.09.2006. The petitioners cannot derive any benefit in respect of the earlier notice dated 21.10.2003. The petitioners have neither been able to demonstrate before the respondent No.1 nor before this court that they were not in arrears in respect of arrears of rent to the extent of Rs.1,62,000/- till 30.09.2006. The petitioners cannot derive any benefit in respect of the earlier notice dated 21.10.2003. All the amounts paid by the petitioners either by cash or bank drafts have been duly acknowledged and reflected by the respondents in their records and the petitioners have failed to establish even before this court that they paid some amount, which was not reflected by the respondents. The respondent No.1 has returned a finding of fact after appreciating the record and it can neither be termed as perverse nor against the weight of evidence. (e) The perusal of clause (18) of the rent agreement reveals that the lessor may terminate the lease and evict the lessee, if the lessee has kept rent of any three months unpaid. Once there was a stipulation not to keep the rent of any three months unpaid, it was obligatory on the part of the lessee to comply with the terms and conditions of the agreement. The lessee kept the rent pending for a considerable period of time and deposited the part rent only after the show cause notices were issued to them and still they were in arrears of Rs.1.62 lacs till 30.09.2006. It needs to be noted that the purpose of J&K State Evacuees (Administration of Property Act), 2006 is to administer the evacuee property and not to create a relationship of ‘landlord and tenant’ between the custodian department and the allottee to be governed by the rent laws and because of this reason only, the section 3(2) of the Act (supra) provides 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. In Tilak Raj Versus Custodian, Jammu, 1979 KLJ, it was held by the Division Bench of this court that the Rent Control Act is not applicable in respect of the evacuee property covered under the Act. The issue raised in the writ petition in respect of applicability of provisions of Rent Control Act is, as such, mis-conceived. In Tilak Raj Versus Custodian, Jammu, 1979 KLJ, it was held by the Division Bench of this court that the Rent Control Act is not applicable in respect of the evacuee property covered under the Act. The issue raised in the writ petition in respect of applicability of provisions of Rent Control Act is, as such, mis-conceived. Under Rule 14(2) of the Rules of 2008, the custodian may cancel allotment and evict the allottee if he is satisfied that the allottee has kept arrears of rent of any three months unpaid. The respondent No.1 has considered the matter very meticulously and in accordance with law, therefore this court does not find any jurisdictional error on the part of the respondent No.1 16. Issue No. 2 : Whether the finding returned by the respondent No.1 that the leased out property had not been in use for the last many years has been returned without following the principles of natural justice? a. The respondent No.2 in its order dated 28.09.2006 has observed that one witness, namely, Ali Mohammad R/o Khanyar, accountant of the petitioners, has stated that Haji Jamal (the predecessor-in-interest of the petitioners) died 16 years ago and due to turmoil in the Valley, the factory could not work in proper order when prior to that, factory was functioning normally. The respondent No.2 has observed that the arrears of rent are outstanding and the property is in disuse, therefore the lease granted in favour of deceased Haji Mohd. Jamal is cancelled. b. In the impugned order dated 08.12.2008, the respondent No.1 had framed one question for its determination which is reproduced as under : “Whether the Custodian was right in cancelling the lease/allotment on the ground that the Evacuee Property was kept in dis-use.” c. The respondent No.1 has observed that he made enquiries on his own to satisfy himself with regard to the correctness of the report of the Field Inspector. The Custodian Evacuee Property re-visited the evacuee property and reported that he conducted spot verification along with Mushtaq Ahmad Bhat, Senior Steno. Further the respondent No.1 sought additional information from Commercial Taxes Department, Kashmir Division and after examining the same, observed that the allottee/assessee has not only violated Rule 14(3)(ix) but also violated Rule 14(3)(vi) of the J&K Evacuees (Administration of Property) Rules, Svt. 2008 by allowing other persons to occupy the allotted property. Further the respondent No.1 sought additional information from Commercial Taxes Department, Kashmir Division and after examining the same, observed that the allottee/assessee has not only violated Rule 14(3)(ix) but also violated Rule 14(3)(vi) of the J&K Evacuees (Administration of Property) Rules, Svt. 2008 by allowing other persons to occupy the allotted property. d. Section 30(4) of the J&K State Evacuees (Administration of Property) Act, Svt. 2006 vests the suo-moto power of revision with the Custodian General. Sub-rule (9) of Rule 27 of the J&K State Evacuee (Administration of Property) Rules, Svt. 2008, provides that any authority hearing any appeal or revision may admit additional evidence before its final disposal or may remand the case for admission of additional evidence and report or for a fresh decision, as such authority may deem fit. Further proviso appended to sub-section (4) of Section 30 of the Act (supra) provides that the Custodian General or the Custodian shall not under this sub-section pass an order revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard. e. A conjoint reading of sub-section (4) of Section 30 and sub-rule (9) of Rule 27 (supra), would reveal that the Custodian General is well within his powers to admit additional evidence before final disposal but the order affecting any person cannot be passed without giving such person a reasonable opportunity of being heard. The perusal of impugned order reveals that the respondent No.1 had sought information from the Commercial Taxes Department vide communication dated 27.11.2008 and the same information was provided to him by the Commercial Taxes Department vide communication dated 29.11.2008. It is not forthcoming from the order impugned that the petitioners were associated or put to any notice by the respondent No.1 before returning any finding by placing reliance upon the information obtained from the Commercial Taxes Department on 29.11.2008. Since the original record of the respondent No.1 in respect of the revision petition is not traceable, as such, this Court is not in a position to return any finding on the basis of the minutes of the proceedings conducted by the respondent No.1 in respect of affording any opportunity of being heard to the petitioners before admitting the information obtained by respondent No.1 from the Commercial Taxes Department for returning a finding that the leased out property has been allowed to be occupied by other persons. More so, the respondent No.1 has relief upon the re-visit conducted by the Custodian, Evacuee Property, along with Mushtaq Ahmad, Senior Steno. The respondent No.1 by returning a finding in respect of disuse of the evacuee property has relied on his own enquiries and also the revisit without associating the petitioners. The respondent No.1 was, no doubt, within his powers to admit additional evidence but, as already mentioned above, the petitioners were required to be put to notice in respect of the additional evidence. In view of the above, this Court is of the considered view that the finding returned by the respondent No.1 in respect of the disuse of evacuee property and allowing the other persons to occupy the allotted premises, has been returned without affording an opportunity of hearing to the petitioners. Accordingly, the same is not sustainable as the respondent No.1 has exceeded the jurisdiction vested in him by Section 30(4) of the Act read with sub-rule (9) of Rule 27 of the Rules (supra). 17. Though this Court could have remanded the matter back to the respondent No.1 for deciding afresh the issue in respect of disuse of the property mentioned above but as this Court has come to the conclusion that the finding returned by the respondent No.1 in respect of unpaid arrears of the rent is in accordance with law and not perverse, therefore, this Court does not find any reason to quash the order impugned and remand the matter back. Moreover, this court did not find any difficulty in examining the validity of the finding returned by the respondent No.1 in respect of arrears of rent for want of record of the respondent No.1, as the same was matter of record of the respondent No.2, made available by the learned counsel for the respondents. 18. This court as such does not find any reason to show indulgence but the order impugned dated 08.12.2008 reveals that the respondent No.1 had suggested the petitioners that if they were really interested to use or utilize the property for industrial/manufacturing purposes, they should come forward with proper application for allotment under the provisions of J&K Evacuees (Administration of Property) Act, Svt. 2006 and Rules made thereunder and pay premium for the said property as envisaged under Rule 13-C of the Rules. 2006 and Rules made thereunder and pay premium for the said property as envisaged under Rule 13-C of the Rules. It was simultaneously observed by the respondent No.1 that though the learned counsel for the petitioners therein had sought time to respond to the suggestion but no response was submitted. 19. Be that as it may, taking into consideration the suggestion made by the respondent No.1 and that the predecessor-in-interest of the petitioners had been in possession of the property under reference for long duration, this Court deems it proper to grant one opportunity to the petitioners to resort to the course as suggested by the respondent No.1. Accordingly, though the impugned order is upheld, the petitioners are granted thirty days’ time to approach the respondent No.1 with application for allotment, as suggested by the respondent No.1 and in the event the petitioners approach the respondent No.1, the respondent No.1 shall proceed in accordance with law, failing which the respondents shall be at liberty to proceed in accordance with law. The arrears of rent which are deposited before this Court be released in favour of the department concerned and if the arrears of rent are still outstanding, the same may be recovered in accordance with law. It is made clear that any observation made by this Court shall not be construed as mandate for the purpose of making any allotment in favour of the petitioners. The respondent No.1 shall be free to take any decision in the matter in accordance with law. 20. The record be returned to the learned counsel for the respondent.