JUDGEMENT
I.K.KOTWAL,J. -
(1.)IN this writ petition, the petitioner seeks annulment of an order passed by respondent No. 1, cancelling his lease in respect of a evacuee shop.
(2.)THE petitioner's case is, that on 26-2 -1965 he acquired on lease an evacuee shop from respondent No. 1, at a monthly rent of Rs. 25/-. He having fallen in arrears, a notice was issued to him by the Custodian, Jammu calling upon him to clear up the same. According to the petitioner, he paid all the arrears of rent and even went on paying rent to the Custodian, thereafter. As, according to him, the Custodian, Jammu, had enhanced the rent, he resisted the same and a dispute arose between the parties. Thereafter, the Custodian passed the order impugned in the writ petition, terminating the lease of the petitioner on the grounds, that he had not paid the rent, and that he was not using the shop for the purpose for which it had been actually acquired. He has assailed the order passed by the Custodian on the grounds; (1) that the order has been passed without hearing the petitioner, (2) that no service of any prior notice had been effected on the petitioner, and in any case the mode of effecting service was in contravention of R.18 of the Rules made under the Evacuee's (Administration of Property) Act, 2006, (hereinafter referred to as "the Evacuee Property Act") read with Order 5 Rule XVII C.P.C. (3) that the petitioner had been paying rent to respondent No. 1 even after the initial period of lease in his favour had expired, and had therefore acquired rights of a tenant holding over; that in any case, sub-rule (3) of R.14 was not applicable to the petitioner's case, as the petitioner was not an allottee but a lessee; that the ejectment of the petitioner could not have been brought about, except on the grounds given in Section 11 of the Houses and Shops Rent Control Act; that clauses (ix) and (x) of sub-rule (3) of R.14 were not infringed by the petitioner; that the petitioner was not using the property for purposes other than the one for which it was leased out to him; and that the notice if at all served upon him ought to have been of six months duration.
The Custodian respondent No. 1 on the other hand has contended that the petitioner was in arrears in the amount of Rs. 1325/-, when an application was moved by him on 14-7-1972, agreeing to pay an enhanced rent of Rs. 55/- per month, and asking the Custodian to regularise lease on the basis of the enhanced rent. He has further contended, that out of these arrears Rs. 663/- were paid by the petitioner on the very same day, and he promised to clear up the balance soon thereafter. It has been further alleged by him, that the petitioner having failed to approach the Department for entering into a fresh lease agreement, and also having failed to pay the arrears amounting to Rs. 712/- due till 30-4-1974, a notice was served upon the petitioner on 17-5-1974 calling upon him to show cause, as to why his lease be not cancelled, and a further enhanced rent of Rs. 300/- per month charged from him with effect from 1-5-1974. The petitioner having failed to appear before the Custodian in response to the notice issued to him on 17-5-1974, his tenancy was terminated vide the impugned order, and the shop leased out to respondent No. 2, Banarasi Dass at a monthly rent of Rs. 225/-. He has further averred, that the Houses and Shops Rent Control Act (hereinafter referred to as the Rent Control Act) had no application to evacuee property. He has also denied the right of the petitioner as a tenant holding over, or that the show cause notice served upon him was not reasonable or proper.
(3.)WHILE the writ petition was pending, Act No. XXI of 1974 was passed by the Legislature, adding Sub-section (2) to Section 3 of the Evacuee Property Act. On this, the petitioner sought to amend his petition, by throwing a challenge to the constitutional validity of the amended Section 3 of the Evacuee Property Act. He has in the amended petition challenged the constitutional validity of Section 2 of Act No. XXI of 1974 on the ground, that this Section is violative of Article 14 of the Constitution of India, as it discriminates tenants in respect of evacuee property vis-a-vis tenants of other property all of whom are similarly situated. Respondent No. 1 has also filed his amended return to the amended writ petition, and has submitted, that Section 2 of Act No. XXI of 1974 is not unconstitutional nor does it result in any discrimination against tenants of evacuee property.