CHARAN DAS Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioners were tenants of certain evacuee houses situate in Mohallas Dalpatian, Talab Khatian, Jatkatian and Bawa Jewan Shah. According to the allegations made by the petitioners they had been allotted these properties as tenants as far back as 1950. The rate of rent for these properties was fixed from time to time with the mutual consent of the petitioners and the Custodian, and several rent deeds were executed by the former. There is no dispute regarding these facts.

(2.) THE Government by its order No. EP -192 of 1966 dated 2 -3 -66 issued certain directions in paragraph (4) of the order by which it ordered the Custodian to fix rent of old and newly constructed houses at the rate of 5% and 6Â 1/2% of the capital cost respectively. The relevant portion of para (4) of the order runs thus : - "It is furhter ordered that old and newly constructed houses be rented @ 5% and 6 1/2% of their capital cost respectively." This order no boubt refers to some other matters also, but the petitioners feel aggrieved only with respect to that part of the order by which the capital cost has been fixed as the standard for fixation of rent.

(3.) IN support of the rule it has been submitted by Mr. Tirath Singh that by giving a mandatory direction to the Custodian the Government has taken away a statutory discretion conferred on the Custodian both under the Evacuees (Administration of Property) Act (herein -after to be referred to as the Act) and the rules made thereunder. Repelling this contention, Mr. Amar Chand has submitted that the order is nothing but a guideline to the Custodian in order to fix or vary the terms of the lease, and in the absence of there being any materials on this question, it was always open to the Government to issue supervisory instructions. In order to understand the arguments of the parties, it may be necessary to set out certain provisions of the Act. S. 10 of the Act runs as under. - "Notwithstanding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or amend the terms of any such lease or of any agreement on which any evacuee property is held or occupied by any person, whether such allotment, lease or agreement was granted or entered into before or after the commencement of the Act; Provided that no allotment shall be cancelled except as provided for in the rules framed by the Government in this behalf." This section therefore clearly confers an absolute power on the Custodian to manage the evacuee property. It also gives him power to amend the terms of any such lease. The only condition laid down by the proviso is that allotment should not be cancelled except as provided for by the rules.