Venkatarama Ayyar, J. - (1.) This appeal raises a question as to the powers of a Custodian of Evacuee Property to cancel a lease granted by him under section 12 of the Administration of Evacuee Property Act (XXXI of 1950), hereinafter referred to as the Act. Messrs Abdul Karim and Brothers owned, along with certain other properties which are not the subject-matter of the present appeal, three mills with bungalows and chawls at Ambernath in Thana District and the Bobbin Factory at Tardeo in Bombay. They having migrated to Pakistan, these properties were declared by a notification dated 12-9-1951 issued under S. 7 of the Act as evacuee property, and under S. 8(1) of the Act, they became vested in the respondent as the custodian for the State. The appellants are displaced persons, and on 30-8-1952 the respondent entered into an agreement with them, Exhibit A, which is, as apty characterised by learned counsel for the appellants, of a composite character, consisting of three distinct matters. There was, firstly a demise under which the mills and the factory in question were leased to the appellants for a period of five years on the terms and conditions set out therein. Secondly, there was a sale of the stock of raw materials, unsold finished goods, spare parts, cars trucks and other movables which were in the mills and the factory, with elaborate provisions for the determination and payment of the price therefor in due course. And thirdly, there was an agreement to sell the mills and the factory to the appellants in certain events and subject to certain conditions. There was also a clause for referring the disputes between the parties to arbitration.
(2.) In pursuance of this agreement, the appellants were put in possession of the mills and the factory on 31-8-1952. On 12-2-1954 the respondent issued a notice to the appellants, Exhibit C, wherein he set out that the appellants had systematically committed breaches of the various terms on which the properties had been leased to them, and called upon them to show cause why the lease should not be cancelled and why they should not be evicted. The notice then went on to state that the respondent considered it necessary to issue certain directions for the "preservation of the demised premises and the goods and stock in trade, etc., lying in the demised premises", and the appellants were accordingly required not to remove the stock or raise any money on the security thereof, and to end daily reports to the Custodian of the transactions with reference thereto. Presumably, these directions were given under S. 10 of the Act. On 13-2-1954 the appellants appeared before the respondent, and contended that he had no authority to issue the notice in question under S. 12, and that it was therefore illegal. Apprehending that the lease might be cancelled, and that they might be evicted, the appellants filed on 16-2-1954 the application out of which the present appeal arises, for a writ of "certiorari" for quashing the notice, Exhibit C, and for a writ of prohibition restraining the respondent for taking any further action pursuant thereto.
(3.) In support of the petition, appellants urged that S. 12 under which the respondent purported to the act authorised the cancellation of only leases granted by the evacuee and not by the Custodian himself, and that no directions could be given under S. 10 as it applied only to properties of the evacuee, and that by reason of the sales, the movables in question had become the property of the appellants. The petition was heard by Tendolkar J., who stated the points for determinations thus: (1) "Whether the Custodian has power under S. 12 of the Administration of Evacuee Property Act, 1950 to terminate a lease granted by himself, and (2) Whether the directions given by the Custodian are beyond the jurisdiction conferred upon him by S. 10 of the said Act - On the first question, he held that S. 12 applies only to leases granted by the evacuee and not by the Custodian, and that therefore the notice, Exhibit C, was 'ultra vires' the powers of the Custodian under that section. On the second question, he held that S. 10 applied only to properties of the evacuee, and that the moveables on respect of which irrections were given, ceased to be the property of the evacuee by reason of the sale in favour of the appellants, and that in consequence, the irrections with reference to them were unauthorised. In the result, the application was allowed.;