Full Judgment
Mazhar Ali Shah, J.
1. By this petition, the petitioner has challenged the order passed by Respondent No. 1 on April 26, 1978 confirming the order passed by Respondent No. 2 on December 14, 1976, whereby the respondents have directed the petitioner to continue with possession of the super-structure of the allotted land to him subject to the payment of annual rent of Rs. 250/- both for land and super-structure.
2. The short ground on which the present petition arises relates to the interpretation of Section 9A of the Evacuees' (Administration of Property) Act, 2006. There is no dispute about the fact that the land measuring 4 marlas under line Khasra No. 401 situated at Raipur Satwari, Jammu, which was an Evacuee Property was allotted in favour of the petitioner by virtue of the order passed by the Custodian, Jammuunder his No. V-1771/C dated July 11, 1961, in pursuance whereof an agreement was also executed by the petitioner on the same day. It is also not disputed that the petitioner is in continuing possession of the land under the terms of the said order and the agreement entered into. One Vinod Kumar filed a revision before the Custodian, Evacuee Property against the order passed by Assistant Custodian, Jammu on November 17, 1976 against the petitioner. It was contended therein that the present petitioner constructed a room and a kitchen on the allotted land and allowed the applicant in the said revision, Vinod Kumar, to occupy the same thereby raising a plea of sub-letting. However, the Assistant Custodian in his order rejected the plea of subletting and also that Vinod Kumar has no locus standi to continue with the proceedings against the present petitioner by his order dated December 14, 1976 (Annexure C) to the petition. The Custodian while rejecting the revision of Vinod Kumar found that the petitioner Mansa Ram has raised construction upon the land without obtaining permission of the Custodian. Therefore, it is directed that the construction raised by him being unauthorised be got demolished. It was further directed that the department may fix the rent as may be assessed and if he continues to pay the rent, he may continue under his allotment.
3. Mansa Ram, the present petitioner filed the revision against the said order of Custodian before the Custodian General respondent No. 1 in this case and Vinod Kumar. Learned Custodian General partially accepted the revision to the extent that the department shall allow the petitioner to continue in possession of the super-structure, raised by him without any interruption on payment of annual rent of Rs. 250/-. The petitioner aggrieved against the above said two orders has filed this writ petition. Contending inter alia that under the specific order of allotment (Annexure A) in the agreement entered into by the petitioner vide Annexure B of July 11, 1961, the department allotted the land with a specific permission to raise structure thereon. The order as well as the agreement categorically states that on expiry of the allotment or whenever the petitioner will vacate the premises, he shall have to lift the super-structure of the building at his own expenses. The respondent cannot resile from that permission and they are estopped to saythat the construction of the superstructure was unauthorised on the plea of promissory estoppel. Learned counsel for the petitioner places his reliance cm an authority of the Supreme Court reported in AIR 1979 SC 621 Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and also on AIR 1972 SC 1311 Turner Morrison and Co. Ltd. v. Hungerford Investmen Trust Ltd. Head Note-C, on the ground that once a specific term for construction of the structure is incorporated in the agreement, the respondents have waived their right to say that the construction is unauthorised. Learned counsel for the respondents in reply places his reliance only on Section 9A of the Evacuees' (Administration of Property) Act, 2006. This provision is undoubtedly inserted vide Act No. XXVII of 1975, which came into force on August 27, 1975. Sub-section (1) of this Section creates a bar of constructing the building over the allotted land without the sanction in writing of the Custodian. Without speculating on the scope of Section 9A mentioned hereinabove, I find that in the instant case, there being a specific term laid down for raising a super structure as well as by issuing the certificate in favour of the petitioner vide Annexure E on August 16, 1976 certifying that the applicant has been allotted the land in question and issuing No Objection for grant of sanction for construction of the building to get permission from the Municipality, the department is estopped to say that the construction is unauthorised. Under the circumstances, I find no force in the argument advanced by the learned counsel for the respondents that the construction by the petitioner in the instant case is unauthorised. Moreover, it is also found that no criteria are followed by the respondents for imposition of annual rent of Rs. 250/- on the super-structure and the land allotted in the name of the petitioner. The department is no doubt competent to enhance the rent, but the same cannot be done arbitrarily without following the procedure prescribed under the rules for enhancement of the rent. In my opinion they are still at liberty to enhance the rent accoring to the procedure prescribed and on the principle as are provided therein. Thus it is held that the orders passed by Respondent No. 1 vide Annexure D and Respondent No. 2 vide Annexure C respectively holding the superstructure as unauthorised and imposingan annual rent of Rs. 250/- on the petitioner are liable to be quashed.
4. For the reasons stated above, the petition is allowed, the orders passed by Respondents 1 and 2 respectively on April 26, 1978 and December 14, 1976 are hereby quashed by a Writ of Certiorari. The respondents are hereby restrained from interfering in the possession of the petitioner on the basis of the above said orders. The petition accordingly stands disposed of.