RAGHU NATH Vs. COMPETENT OFFICER DELHI

JUDGEMENT

(1.) In 1933 the appellant built a bungalow situate at 27, Curzon Road, New Delhi on a plot acquired by him under a permanent lease from the Secretary of State for India. In 1943 he mortgaged the said property with possession in favour of one K. B. Bunyad Hussain but obtained a lease thereof at the same time from the mortgagee and continued to reside therein as a tenant. In November 1949, the mortgagee left for Pakistan whereupon the Custodian of Evacuee Property under the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Administration Act) declared him to be an evacuee and his interest in the said property as the mortgagee as evacuee property. The appellant alleged that sometime in November 1949 the Custodian forcibly dispossessed him and either allotted or let out. or allowed the said premises to be occupied by certain persons. in 1954, the appellant made an application to the Competent Officer under the Evacuee Interest (Separation) Act, 1951 (hereinafter referred to as the Separation Act) for separating his interest as the mortgagor and tenant in the said property. In those proceedings a sum of Rs. 1,45,735/- was ultimately held to be due as the mortgage debt under the said mortgage. The appellant claimed that he was entitled to obtain vacant possession of the said property against payment by him of the mortgage debt. The claim was rejected on the ground that there was no' agreement between the appellant and the Custodian for getting the vacant possession and also on the ground that the Competent Officer, under the Separation Act, had no power to direct the Custodian to hand over to the appellant vacant possession. From that time onwards the appellant made diverse applications to the Competent Officer and the Appellate Officer under the Separation Act for obtaining vacant possession against payment of the mortgage debt. In one such application made in 1958 he alleged that a compromise had been arrived at between him and the Custodian under which he would pay the mortgage debt and the Custodian thereupon would simultaneously hand over to him vacant possession. By his order dated March 23, 1959, the Appellate Officer, however, held that no such compromise had been entered into by the Custodian and that the correspondence between the appellant and that authority merely indicated that what was agreed to was that upon the appellant lodging certain verified claims an open portion shown as A, B. C and D in the plan of the property would be handed over to him. On this finding the Appellate Officer dismissed the appellant's application as he had neither paid the mortgage money nor put in the verified claims as suggested in the said correspondence and confirmed the order of the Competent Officer under which the property had been ordered to be sold in the absence of any agreement with the Custodian or the payment of the mortgage debt.

(2.) The appellant then filed a writ petition in the High Court of Punjab (in the Circuit Bench at Delhi) for quashing the said order of sale and for a direction to the Competent Officer to hand over vacant possession against payment by him of the mortgage debt. A learned Single Judge dismissed the petition holding that the Competent Officer had no jurisdiction to order such vacant possession against the Custodian or against the tenants or allottees inducted on the property by the Custodian. The Letters Patent appeal against that judgment and order was also dismissed. The appellant then filed the present appeal after obtaining special leave from this Court.

(3.) It is not disputed that until the time when the Competent Officer passed his order for sale of the property and the Appellate Officer confirmed it the appellant had not paid the mortgage amount, nor was there any agreement between him and the Custodian whereunder the latter would hand over vacant possession of the property against payment of the mortgage debt. However it Is conceded by counsel for respondent 1 and 3 that the appellant has since then paid the entire mortgage debt and the Competent Officer has under Sec. 10 of the Separation Act accepted that amount. Two questions on these facts, therefore, arise for determination; (1} whether the order for sale passed by the Competent Officer and confirmed by the Appellate Officer was rightly passed although the appellant had repeatedly officer to pay the mortgage debt on condition, however, that he would be given vacant possession at the same time, and (2) assuming that the Competent Officer had no power to direct the Custodian to hand over vacant possession, what was the effect of the repayment of the mortgage debt by the appellant since then and the acceptance thereof by the Competent Officer.