DEPUTY CUSTODIAN Vs. NATHILAL

JUDGEMENT

(1.) THIS is an appeal against the order of remand passed by the learned District Judge, Bharatpur. The plaintiff Nathilal was a tenant of certain evacuee property which had vested in the Custodian Rajasthan. The Deputy Custodian, Bharatpur, issued eviction orders for the forcible eviction of the plaintiff. Thereupon, the plaintiff filed the present suit alleging that the eviction order was given without issuing notice as required under rule 14 (4) of the Administration of Evacuee's Property Central Rules, 1950, and prayed for a permanent injunction, that the Deputy Custodian, Bharatpur, should be restrained from obtaining forcible possession of the property. The Deputy Custodian, Evacuee Property, Bharatpur filed the written statement taking various objection to the maintainability of the suit. One of the objections was that the suit was not cognisable by civil court as the jurisdiction of the civil court is barred under sec. 46 of the Administration of Evacuee Property Act, 1950 (hereinafter called the Act ). The learned Civil Judge Bharatpur in whose court the suit was instituted dismissed the suit on that ground. He also held that the relief for the permanent injunction cannot be granted under sec. 17 of the Act. The plaintiff went in appeal to the court of the District Judge, Bharatpur, who held that the jurisdiction of the Civil Court was not barred and remanded the case for trial in accordance with Jaw.

(2.) THE main question in this appeal is whether the jurisdiction of the civil court is barred because of sec. 46 of the Act. Before taking up this point, it is necessary to refer to certain provisions relating to the power of the Custodian to vary and cancel the lease. Sec. 12 of the Act provides that the Custodian may cancel any allotment or terminate any lease notwithstanding anything contained in any other law. Sec. 56 of the Act provides that the Central Government may by notification in the official gazette make rules to carry out the purposes of the Act. In exercise of the power conferred by sec. 56 of the Act, the rules. Rule 14 (4) provided that before cancelling or varying the terms of the lease or before evicting any lessee the custodian shall serve the person or the persons concerned with a notice to show cause against the order proposed to be made and shall afford him the reasonable opportunity of being heard. It is admitted in this case, as has been mentioned in the judgment of the learned District Judge that no notice as required in rule 14 (4) was served on the plaintiff by the Custodian Rule 14 (4) makes it a condition precedent for cancellation or varying the terms of the lease or for evicting any lessee that a notice to show cause against the order proposed to be made, should be served on the person against whom the order is purported to be made. Service of such notice is therefore, mandatory under rule 14 (4) which is a part of the Act and it is clear in this case that the Custodian committed a breach of the mandatory provision as contained in the aforesaid rule.