(1) This is an application for quashing an order of the Custodian General dated 16-8-66 directing eviction of the petitioner and arises in the following circumstances.
(2) The shop in question being shop No. 11 situate in Rajindra Bazar Jammu was leased out to the petitioner initially for a period of one year with effect from 14-9-56. The lease was renewed for another year with effect from 19-12-1958 Thereafter the petitioner remained in possession of the shop as a tenant holding over as the rent fixed was accepted by the Custodian. Thereafter there is no dispute at all between the parties. On 15-4-66 the Custodian gave a notice to the petitioner to show Cause why he should not be ejected from the shop. After hearing the petitioner an order for eviction of the petitioner was made by the Custodian and was upheld by the Custodian General.
(3) The main grounds on which the petitioner was ejected from the shop were that the petitioner had misused the shop by converting it into a godown. The Custodian General was of the view that as the shop was not permanently used by the petitioner but only casually therefore the petitioner was liable to be evicted under Rule 14 (3) (x) of the Rules under the Evacuee's (Administration of Property) Act.
(4) The learned counsel for the petitioner submitted that the orders of the Custodian and the Custodian General suffer from a clear error of law apparent on the face of the record in as much as the petitioner could not be evicted under the provisions of Rule 14 (3) (x) (Supra) because these provisions relate only to allotment and not to leases. In my opinion the contention is sound and must prevail. s. 2 (a) of the j&k evacuee's (administration of property) act clearly defines allotment and brings out a clear distinction between an allotment and a lease by providing that an allotment of property is something which is quite different from a lease. The definition runs thus : -
"Allotment means the grant by the Government or the Custodian or any other person duly authorized by the Custodian in this behalf of a temporary right of use and occupation of any immovable property of an evacuee to any person otherwise than by way of lease."
(5) S. 10 of the Act empowers the Custodian to cancel allotment or terminate leases in accordance with the rules framed by the Act, Rules for cancellation of allotments and termination of leases were framed by the Government in the year 2006 (Bikrami) and were sanctioned by the Cabinet on 7th January 1952. Rule 14 (1) deals with the grounds on which the termination of a lease or allotment can be varied. Sub-cl (2) of this rule lays down the grounds on which a tenant can be evicted or a lease terminated. Sub-cl (3) which was substituted some time in 1963 provides the mode in which an allotment can be cancelled and eviction ordered.
(6) In the instant case both the Custodian and the Custodian General were under an erroneous impression of law that the petitioner was an allottee and therefore his case fell within the mischief of sub cl. (x) of rule 14 (3) Sub cl. (x) runs thus : -
"The allottee is using the property for a purpose other than the one for which it was allotted, or leased or keeping the property in disuse."
(7) The Custodian as also the Custodian General were under the impression that as the petitioner had used the property for a purpose other than allotment, therefore, his allotment could be cancelled. These Authorities however completely overlooked the fact that the petitioner was an allottee but a lessee as admitted by the Custodian himself in para 1 of his counter-affidavit filed in his court. This position is not disputed by the learned Addl. Advocate General appearing for the Custodian. It would thus appear that notice for eviction and the final order directing eviction of the petitioner were passed under sub-cl. (x) of rule 14 (3) (Supra). As, however, the petitioner was a lessee and not an allottee, the aforesaid provisions did not apply and the Authorities mentioned above had no jurisdiction to evict the petitioner under Rule 14 (3) (x). The proper provision under which the petitioner could be evicted would be sub-clauses (1) and (2) of Rule 14. Since I am not called upon in this case to decide the question as to the applicability of these two sub-clauses. I would refrain from observing on what grounds the lease of the petitioner can be terminated. The respondents, however, can take such action against the petitioner as they may think advisable under law. The order of eviction of the petitioner, however, treating him to be an allottee is completely without jurisdiction and is not warranted by the provisions of the rules mentioned above.
(8) For the reasons given above, the petition is allowed and by a writ of certiorari the order of the Custodian General and of the Custodian directing eviction of the petitioner is hereby quashed.
In the circumstances there will be no order as to costs.