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A.S Bhasin v. The Custodian Of Evacuee Property, Punjab, And Others
Structured Summary of the Opinion (Kapur, J.)
Factual and Procedural Background
This is a rule petition filed by Attar Singh Bhasin against the Custodian Evacuee Property, Simla, and two others seeking:
- an order quashing the Custodian's decision to lease the premises (set No. 23, Elysium Hotel, Simla) to Lajwanti (respondent No. 3); and
- an order quashing the Custodian's order ejecting the petitioner from that premises.
Procedural history and key factual points drawn from the opinion:
- Elysium Hotel, Simla, was evacuee property allotted to one Shiv Nath (son of respondent No. 3, Lajwanti).
- The petitioner alleges he had occupied set No. 23 as a tenant since February 1950, paying rent directly to the Assistant Custodian, and that he was not given an opportunity to execute a tenancy agreement with Lajwanti after she was allotted the premises.
- A Bench of this Court issued the rule on 21 July 1953; the Custodian and Lajwanti showed cause.
- A District Rent Officer order dated 21 May 1953 directed that Elysium Hotel had been allotted to Lajwanti and that persons residing there should settle sub-tenancy terms with her and pay future rents to her from 21 May 1953.
- The Custodian admits that the petitioner's allotment was cancelled on 14 March 1953 and that eviction had been ordered (if necessary with police assistance); the petitioner then paid arrears and was allowed to continue occupying set No. 23 for a period.
- The petitioner earlier filed Civil Miscellaneous Application No. 307 of 1953 (filed and dismissed on 2 June 1953 by a Bench comprising the Chief Justice and Dulat, J.), which challenged cancellation and notice; that petition was dismissed.
- The Deputy Commissioner (Authorised Deputy Custodian) received a complaint from Lajwanti about the petitioner's conduct, appointed the Treasury Officer to inquire, and the Treasury Officer reported against the petitioner; based on that report the Deputy Commissioner cancelled the petitioner's allotment.
- The present petition was heard by Kapur, J., who dismissed it and discharged the rule with costs (petition dismissed). Counsel's fee awarded Rs. 100 and two sets of costs.
Legal Issues Presented
- Whether the Custodian's order leasing the premises to Lajwanti and the order ejecting the petitioner (Attar Singh Bhasin) could be quashed by this Court.
- Whether the petitioner was entitled to notice before the cancellation of his allotment and before ejectment, particularly in light of rule 14 of the Administration of Evacuee Property rules and section 12 of the Act.
- Whether the petitioner could re-agitate the question of notice and cancellation having had a prior petition (Civil Miscellaneous Application No. 307 of 1953) dismissed by a Bench of this Court.
- Whether the petitioner's remedy lay under Article 226 of the Constitution or whether an alternative statutory remedy (revision under section 26 of the Administration of Evacuee Property Act) precluded resort to writ jurisdiction.
Arguments of the Parties
Petitioner's (Attar Singh Bhasin) Allegations
- He claimed to have been a tenant of set No. 23 since February 1950 and in direct tenancy under the Assistant Custodian, paying rent directly.
- He alleged he was not given an opportunity to be heard before the premises were leased to Lajwanti on 21 May 1953 and that no notice was provided of the application for his ejectment.
- He alleged that the Custodian's orders were mala fide, that the Custodian had usurped functions of a civil court, and that the actions amounted to defrauding the Government of large arrears due from Shiv Nath (previous allottee).
- He contended that the cancellation of the son's allotment and leasing to the mother (Lajwanti) circumvented legal and moral positions and suggested ministerial influence ("ministerial circles").
- He asserted that cancellation could not be effected without notice as required by rule 14(4) of the Administration of Evacuee Property Act (he referred to this in his earlier petition dated 28 May 1953).
Custodian's and Respondents' Position
- The Custodian denied the petitioner's allegations in paragraph 14 of the petition and the other charged malpractices.
- The Custodian admitted cancellation of the petitioner's allotment (14 March 1953) and that eviction had been ordered; it was only after the threat of eviction that the petitioner paid arrears and was allowed to continue occupying the set.
- The Custodian pleaded that the petitioner had refused to execute the deed of lease in favour of respondent No. 3 and that his behaviour was a source of nuisance to her; an inquiry by the Treasury Officer reported adversely against the petitioner.
- Lajwanti complained to the Deputy Commissioner about the petitioner's conduct; the Deputy Commissioner appointed a Treasury Officer to inquire and acted on that report by cancelling the petitioner's allotment.
- The Custodian raised an objection that the petitioner had a statutory remedy by way of revision under section 26 of the Administration of Evacuee Property Act and therefore could not invoke writ jurisdiction under Article 226.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Thakar Das v. The Custodian, A.I.R. 1951 Punjab 327 | Held that the Custodian has power to cancel leases or allotments granted by him; an allottee in such circumstances is no more than a licensee whose rights can be revoked. | The Court relied on this authority to support the proposition that once the Custodian cancelled an allotment the allottee could not challenge the cancellation in this Court and that the allottee's position was akin to a revocable licensee. |
| Karam Singh Sobti v. The Custodian of Evacuee Property, 53 P.L.R. 11 (Short Notes) | Supports the principle that where a statutory remedy (such as revision under section 26 of the Administration of Evacuee Property Act) is available, extraordinary writ jurisdiction under Article 226 may not be appropriate. | The Court relied on this authority to underline that the petitioner had a remedy in revision under section 26 and therefore could not invoke this Court's extraordinary jurisdiction under Article 226 to challenge the Custodian's orders. |
Court's Reasoning and Analysis
The Court's reasoning proceeds in a series of legal and factual findings, strictly based on the contents of the opinion:
- Preclusion by earlier decision: The Court observed that the petitioner's earlier application (Civil Miscellaneous Application No. 307 of 1953) had been dismissed by a Bench on 2 June 1953. That dismissal, the Court held, meant that the petitioner's contention that cancellation could not occur without notice had already been decided and could not be re-agitated before the present Bench.
- Statutory power to cancel allotments and leases: The Court referred to section 12 of the Administration of Evacuee Property Act and to rule 14 (and specifically paragraph (5) of rule 14) to emphasize that the Custodian has express power to cancel or vary leases or allotments of evacuee property where he is of the opinion (to be recorded in writing) that such action is necessary or expedient for preservation, proper administration or other objects of the Act. The Court observed that rule 14 cannot go beyond the Act and, insofar as it preserves existing lease terms, that provision was not applicable to the facts of this case.
- Existence of inquiry and basis for cancellation: The Court recited the affidavit of the Deputy Commissioner that Lajwanti complained about the petitioner's conduct, whereupon the Treasury Officer was appointed to inquire and reported against the petitioner. The Court examined the Treasury Officer's report, noted that the petitioner had been heard (though not in formal legal terms), and that witnesses had deposed to facts adverse to the petitioner. On that basis the Deputy Commissioner cancelled the allotment. The Court concluded that an enquiry had been held and therefore it could not be said that no inquiry took place.
- Legal consequences of cancellation: The Court reasoned that if the allotment was cancelled (the opinion refers to cancellation on 21 May 1953 and earlier cancellation on 14 March 1953 in differing passages), the petitioner's position became no more than that of a trespasser. The Court invoked sections 8(5) read with section 9 of the Administration of Evacuee Property Act to show that the Custodian has power to take possession of evacuee property where a person refused to surrender possession.
- Reliance on precedent: The Court relied on Thakar Das v. The Custodian to support the conclusion that the Custodian's power to cancel allotments or leases is broad and that, once cancelled by the Custodian, the allottee has limited remedies; the Court viewed the allottee as a revocable licensee.
- Availability of statutory remedy: The Custodian argued, and the Court accepted, that the petitioner had a statutory remedy by way of revision under section 26 of the Administration of Evacuee Property Act. The Court cited Karam Singh Sobti to the effect that where such a statutory remedy exists, resort to extraordinary writ jurisdiction under Article 226 is not appropriate. The Court therefore treated the availability of section 26 as a reason why the petitioner should not invoke Article 226.
- Assessment of petitioner's conduct and pleadings: The Court criticized the language of the petition as "couched in most reckless language" and noted the petitioner's unproven allegations regarding ministerial influence. The Court found no case made out on the material before it.
- Ultimate conclusion: For the combined reasons of (a) the earlier dismissal of the petitioner's previous application on the question of notice, (b) the findings on inquiry and the Custodian's statutory powers, and (c) the availability of a statutory remedy under section 26, the Court concluded that the petitioner was not entitled to relief and dismissed the petition.
Holding and Implications
Final Disposition: The petition is DISMISSED and the rule is discharged.
Consequences and immediate effects explicitly stated in the opinion:
- The petition was dismissed by Kapur, J.; costs were awarded against the petitioner (counsel's fee Rs. 100 and two sets of costs).
- The Court found no grounds on the material before it to quash the Custodian's cancellation of the allotment or the Custodian's actions in leasing the premises to respondent No. 3 (Lajwanti) and ordering ejectment.
The opinion does not discuss any broader doctrinal development or new precedent created by this decision; the Court's reasoning rests on existing statutory powers and earlier authorities.
Kapur, J.:— This is a rule obtained by Attar Singh Bhasin against the Custodian Evacuee Property, Simla, and two others praying that an order should issue against the respondent (No. 1) quashing the order passed by him leasing out the premises to Lajwanti respondent No. 3 and quashing the order passed by him ejecting the petitioner. Rule was issued by a Bench of this Court on the 21st July, 1953 and the Custodian and Lajwanti have shown cause.
2. Elysium Hotel, Simla, is evacuee property and had been allotted to one Shiv Nath who is son of respondent No. 3 Lajwainti. The petitioner alleges that he was in occupation of set No. 23 of this hotel as a tenant since February 1950 and that he remained in occupation as a tenant directly under the Assistant Custodian Evacuee Property, Simla, to whom he was paying rent directly. On the 21st May, 1953 an order was passed by the District Rent Officer, Simla, to the effect that the Custedian Punjab with the approval of the Punjab Government had allotted Elysium Hotel to Lajwanti and all persons who were residing in that hotel were directed to “settle their sub-tenancy terms with the lessee directly and they should pay their future rents to her with effect from 21st May, 1953. The lessee has the right to keep tenants of her own choice and previous rent should be paid to this office.” It is further alleged in this petition that the petitioner Attar Singh Bhasin “approached Lajwanti for executing the agree-meat of tenancy but she put him off,” that he informed the Custodian's Department of all these facts but they kept silent, that Lajwanti made an application to the Authorised Deputy Custodian (the Deputy Commissioner) for ejectment of the petitioner from the premises, that no notice was given of this application to him, nor were the allegations disclosed to him, but an officer did go to the spot to hold enquiries and the petitioner was not given any opportunity to meet the allegations. He goes on to bay that on 8th July, 1953 be was informed by an Inspector of the Custodian's Department that the petitioner was to be ejected from the premises within three days and that he was offered an alternative accommodation in Sanjauli, a place which is unsuitable for his residence. The petitioner's complaint is contained in paragraph 14 where he states that he was not given an opportunity before or after the 21st May, 1953 when premises were leased out to respondent No. 3 Lajwanti, that, respondent No. 2 cannot order his ejectment, that this amounts to usurping the functions of a Civil Court and that the orders of the Custodian are malafide and have the effect of defrauding the Government of huge amounts of arrears due from Diwan Shiv Nath, the previous allottee, that the cancellation of allotment of the son on account of certain defaults and leasing out the premises to the mother is clearly a circumventing of the legal and moral position,” that “the family is said to be connected with ministerial circles and that is why so much indulgence is being shown to them at Government expense.”
3. These various allegations are denied by the Custodian. It is admitted that the petitioner's allotment was cancelled on the 14th March, 1953 and his eviction was ordered, if necessary with the help of the Police and it was only then that the petitioner made payment of the arrears due from him and the Custodian thereupon allowed him to continue to occupy set, No. 23. In paragraph 6 it is pleaded that the petitioner refused to execute the deed of lease in favour of respondent No. 3 and his behaviour was a source of nuisance to her and when she made a complaint to the Custodian an enquiry was made by the Treasury Officer who reported against the petitioner. It is denied that the petitioner is entitled to any notice and the allegations of paragraph 14 of the petition were specifically denied.
4. In his petition which the petitioner made on the 28th May, 1933 he objected to the allotment of the premises to Lajwanti and also to the cancellation of the allotment in his favour. In paragraph 10(ii) of that petition he stated—
“The allotment of the petitioner cannot be cancelled unless he is given an opportunity to show cause against such an order under rule 14(4) of the Administration of Evacuee Property Act, 1950.
5. He made other allegations which are not necessary for the purpose of this judgment. This petition was dismissed by a Bench consisting of the Hon'ble the Chief Justice and Dulat J. on the 2nd June, 1953 and therefore all allegations made in that petition, including his complaint that allotment in his favour could not be cancelled without notice to him, must be taken to have been then decided.
6. The petitioner's allegation now is that he was an allottee direct from the Custodian and his allotment could not be cancelled and he could not be ordered to vacate without notice having been given to him. As I have said above, the question of notice has already been decided by the rejection of his previous petition which is Civil Miscellaneous Application No. 307 of 1953 and that question cannot be reagitated before me, but even if it could be I am of opinion that the Custodian has acted within his jurisdiction and therefore the petitioner is not entitled to any relief on that ground.
7. Under section 12 of the Administration of Evacuee Property Act the Custodian has been given the power to cancel leases or allotments of evacuee property and even under rule 14 which in my opinion cannot go beyond the Act all that is provided is that the Custodian shall not ordinarily vary the terms of a lease subsisting at the time he takes possession, which is not applicable to the facts of this case. In the case of a lease or allotment granted by the Custodian himself a person can be evicted on any ground justifying eviction of a tenant under any law relating to the control of rents for the time being in force in the State concerned or for any violation of the conditions of the lease or the allotment. Paragraph (5) of this rule is important and reads as under—
“Nothing in this rule shall be deemed to abridge or limit the power of the Custodian to cancel, or vary the terms of a lease relating to evacuee property, or to evict a lessee of such property where he is of the opinion that, for reasons to be recorded in writing it is necessary or expedient to do not for the preservation, or the proper administration of the management of such property or for carrying out any other object of the Act.”
8. The affidavit of Mr. Chand Narain Raina, the Deputy Commissioner, is that a complaint was made to him by Lajwanti in regard to the conduct of the petitioner. He thereupon appointed the Treasury Officer to make enquiries and the report was against the petitioner and it Was on the report of this report that he cancelled the allotment of the petitioner. I have seen the report of the Treasury Officer. It appears that the petitioner was heard by him, although there was no enquiry in the sense as lawyers would know it. Certain witnesses were examined who deposed as to the facts which held taken plane and a Professor who was a tenant in the place did state that the petitioner had used habit words and had insulted the lady by saying, among other things, “whether she was the chachi of the hotel” a fact which was denied by Bhasin. The Inquiry Officer also found that the petitioner was the head of the tenants who were trying to coarce Lajwanti and that Bhasin was responsible for creating trouble for her. In the affidavit before me Bhasin denies all these facts. But I am not sitting here to enquire into the truth or otherwise of these allegations. The fact remaius that Lajwanti did make complaints to the Deputy Commissioner. He sent an inquiry Officer who made inquiries at the spot and came to the conclusion that Bhasin should leave the place. It cannot, therefore, be said that no enquiry was made.
9. But even on the allegations which have been made in that the allotment of Bhasin was cancelled on the 21st May, 1953 which has been upheld by this Court the petitioner cannot be said to have made out any case before me. Under section 12 the Custodian has the power to vary or cancel leases and I have quoted rule 145 which gives to the Custodian the power where he is of the opinion that it is necessary or expedient for the proper management of the property to cancel the lease or the allotment, and if the allotment was cancelled on the 21st May, 1953 the position of Bhasin was nothing more than that of a trespasser and under section 8(5) read with section 9 the Custodian has the power to take possession of the property which is vested in him where any person who is holding it refuses to surrender possession. As was held by a Division Bench of this Court in Thakar Das v. The Custodian . A.I.R 1951 Punjab 327, the Custodian has been given the power to cancel leases or allotments and if he does cancel any allotment, the allottee has no remedy and besides the allottee is a mere licensee which can be revoked at any time. I am therefore of opinion that both because of the previous order of this Court in Civil Miscellaneous Application No. 307 of 1953 and because of the conduct of the petitioner and because of the powers given to the Custodian by sections 8(5), 9 and 12 of the Administration of Evacuee Property Act the cancellation cannot be challenged in this Court.
10. An objection was raised by the Custodian that no remedy under Article 226 of the Constitution of India is open to the petitioner because he had the right to go in revision under section 26 of the Administration of Evacuee Property Act, a remedy which he has not availed himself of and if another remedy was open to the petitioner he cannot come to this Court to invoke the extraordinary powers of the Court. He has relied on a judgment of this Court in Karam Singh Sobti v. The Custodian of Evacuee Property . 53 P.L.R 11 Short Notes., Civil (Writ) Miscellaneous No. 741 of 1950, which is reported in the Short Notes of Cases p. 11 in 53 P.L.R
11. I may also add that the petition has been couched in most reckless language. The petitioner has not hesitated to bring all kinds of allegations against the Custodian and he has even accused the Ministers to be interested in the matter. The words used are ‘ministerial circles’ and when I asked counsel what he meant, he said it related to Ministers. In my view there is no case made out in favour of the petitioner. I would therefore dismiss this petition and discharge the rule with costs. Counsel's fee Rs. 100 two sets of costs.
12. Petition dismissed.
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