D P SHARMA Vs. CUSTODIAN GENERAL, EVACUEE PROPERTY

JUDGEMENT

(1.) EVACUEE property house belonging to Hayi Karim Din situate in Mohalla Ustad, Jammu was allotted to the petitioner since many years back. It is alleged that respondent No. 2, the Custodian Evacuee Property, Jammu has vide his order dated 26 -3 -1974 asked the petitioner to vacate the house and hand over the possession of the same to him. It is alleged in the petition that the impugned order was passed in violation of the Rules framed under the Evacuees (Administration of Property) Act, 2006 (hereinafter referred to as the Act for short) and therefore, it has been prayed that a writ of certiorari a quashing the same be issued and also a writ of prohibition be ordered restraining the respondents from evicting the petitioner from the said house. The impugned order of respondent No 2 came to be passed under the following circumstances:

(2.) RESPONDENT No. 9 having been informed that, the petitioner has built a house of her own in Gandhinagar Jammu, issued a notice to her directing her to vacate the house in question and hand over its possession to an officer of his department. The petitioner appeared before the Custodian and while admitting that she has in fact constructed a house in Gandhinagar submitted that the same was not in her possession as she had created a usufructuary mortgage on the house in favour of one Kirpa Ram who had taken over the possession of the said house. She pleaded before the Custodian, respondent No. 2, that the Evacuee Property house which was allotted to her may be allowed to remain in her possession. The Custodian however did not accede to her request and by his order dated 20 -7 -1971 required the petitioner to vacate the said house and fixed a time limit for the same. The petitioner took the matter in revision to the Custodian General who vide his order dated 5 -1 -1972 dismissed the revision and upheld the order of eviction passed by the Custodian against the petitioner. It appears thereafter the petitioner approached the Revenue Minister and in pursuance of this approach a letter came to be written by the Additional Secretary to Government, Revenue and Rehabilitation Department to the Custodian Evacuee Property, Jammu, in the following terms: "On the application of Smt. D. P. Sharma against whom you have issued an ejectment order, the Revenue Minister has made following observations: - "The applicant may be allowed to continue till her own house is vacated. Please take action accordingly". (Sd.) ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦.. Additional Secretary to Government, Revenue and Rehabilitation Department," The Custodian, it appears, took no action against the petitioner for evicting her from the said house. But then vide order dated 26 -3 -1974, the Custodian issued a notice to the petitioner that she being in unauthorised possession of the Evacuee Property House concerned, should surrender its possession to the Inspector of the department by or before 15th April. 1974. It is against this order that the present petition has been filed on the following grounds: (i) That the impugned order was without jurisdiction; (ii) That the respondents are under a statutory obligation to carry out the order dated 28 -4 -1972 of the Jammu and Kashmir Government, which has over -all control, authority and power over the respondents; (iii) That the order dated 28 -4 -1972 is binding on the Respondents; (iv) That by force of the said order, the petitioner became a fresh and new lessee of the respondents as the order under question had been implemented by both the respondents ; (v) That the petitioner is not holding the possession of the house unauthorisedly; (vi) That the petitioner being a tenant of the respondents, the latter were bound to issue a show cause notice which has not been done and therefore, the order is bad and without jurisdiction; and (vii) As the order of the Government was clear, the earlier orders passed by the respondents dated 20 -7 -1971 and 5 -1 -1972 respectively stand repealed.

(3.) THE respondents have controverted this position of the petitioner and have submitted in the reply affidavit that the orders passed by the respondents with regard to the eviction of the house were passed by them in their quasi -judicial capacity and under no circumstances could be held to have merged in the so -called observations of the Revenue Minister on which the petitioner relied. It was urged that the so -called observations by the Revenue Minister were neither binding on the respondents nor they were obliged to carry out the intention behind the observations as the Revenue Minister was holding the charge of the department only in the Cabinet but had no appellant, revisional or review jurisdiction with regard to the orders passed by the Custodian or the Custodian General under the Act. It has been denied in the reply affidavit that the observations made by the Revenue Minister in effect were tantamount to create a new lease in favour of the petitioner. It has been further averred that the petitioner has not come to the court with clean hands inasmuch as even after four years of the observations made by the Revenue Minister she had not vacated the house. Under the circumstances it has been averred that no fresh notice for eviction and dispossession of the petitioner from the house was required to be issued under the provisions of the Act and the Rules.