B.C. Misra, J.
(1) Ram Parshad petitioner has filed this writ petition against the order of the Appellate Officer dated 21st April, 1964 by which he has reversed the order of the Competent Officer under the Evacuee Interest (Separation) Act 64 of 1951 (hereinafter referred to as the Act) dated 29th February, 1964 and the Appellate Officer has finally ordered the transfer of the property in dispute to the displaced allottees, namely, Rup Narain and Ram Dass who are respectively respondents 4 and 5 in this petition.
(2) The dispute between the parties relates to a two storeyed house bearing No. VII/1447 (old) and 1987 (new) Gali Mirdan Lal Kuan. Delhi. It was owned by Muslims, some of whom migrated to Pakistan, and 731/21/1 pies in a rupee was the evacuee's share while the remaining 1181/20/1 pies in a rupee belonged to the non-evacuees who are respondents or legal representatives of respondents Nos. 6, 7, 8 and 9 in the present writ petition. It appears that the petitioner Ram Parshad was a tenant in the ground-floor of the said property and respondents Nos. 4 and 5 were tenants in respect of the first floor of the said property under the Muslim evacuees. However, in the year 1949-50, the Custodian recognised their tenancy and made allotments of the respective premises in their favor. The petitioner is not a displaced person while respondents 4 and 5 are displaced persons and they claimed that the property in dispute should have been transferred to them under the Act.
(3) On 30th November, 1962, the interest of the evacuees and non-evacuees was determined by the Competent Officer and the value of the property was fixed at Rs, 12,849.00. On 3rd April, 1963, the property was offered to the non-evacuee co-sharers for purchase in accordance with the rules, but they did nut purchase the same and so on 17th April, 1963 (vide Annexure R-5) it was ordered to be sold by public auction. On 17th July, 1963, the Competent Officer also rejected an application of Rup Narain, Respondent No. 4, the sitting allottee, for transfer of the property to him. Eventually on 21st August, 1963, the property was put to auction and sold to Gopal Das for Rs. 12,500.00 but on the application of the petitioner before me and on his offering a higher price, of Rs. 14000.00 the said sale was cancelled on 9th September, 1963 and the property was directed to be re-sold. Aggrieved by aforesaid orders dated 27th April, 1963 and 17th July, 1963, Rup Narain and Ram Dass filed appeals before the Appellate Officer. These appeals were allowed by Shri Parshotam Sarup, Appellate Officer by order dated 11th November, 1963 (Annexure 'A') and he held that the property could not be put to auction and must be transferred to the sitting allottees at the assessed price and he remanded the case to the Competent Officer for further action to offer it to the sitting allottees. In pursuance of the said order, the matter was considered again by the same Competent Officer and he by order dated 29th February, 1964 held that the petitioner was not a displaced person and that respondents 4 and 5, although displaced persons, were not sitting allottees and so were not entitled to the transfer of the property in their favor. He found that a part of the first floor in the occupation of Ram Dass had become uninhabitable and was pulled down by the Municipal Committee and that Ram Dass temporarily shifted to another house, but came back to live in a portion of Rup Narain, respondent No. 4 and that Rup Narain had been allotted a railway quarter to which he had shifted but he contended that he was still in possession of the premises in dispute. Aggrieved by this order, resondents Nos. 4 and 5 herein filed an appeal. The Appellate Officer by order dated 21st April, 1964 held that in his previous order dated llth November, 1963, he had directed the transfer of the property to respondents 4 and 5 and the Competent Officer ought to have complied with the said direction rather than sit in judgment over his order and arrive at a different finding. On the merits of the case, he has reversed the finding of the Competent Officer and held that respondents 4 and 5 were sitting allottees and their allotments had not been cancelled or terminated according to any provision of law and they were entitled to have transfer of the property.
(4) This is the order which has been challenged by the petitioner. After reciting the material facts which have been mentioned above, the petitioner has not challenged the finding that he was not a displaced person, but has contended that Ram Dass, respondent No. 5 has ceased to be a sitting allottee since the premises in his occupation had been demolished by the Municipal Committee and he had shifted to another premises. With regard to respondent No.4, he has contended that a Govt. railway quarter had been allotted to him in 1956 an so he had ceased to be a sitting allottee. In substance the petitioner supports the order of the Competent Officer on the grounds given by him and submits that the appellate order reversing the same is illegal and erroneous.
(5) The Department has not contested the writ petition. The non-evacuee Mulsim owners have, however, supported the petitioner in the writ petition and claimed that the order for transfer of the property to respondents 4 and 6 must be quashed. The main contest to the petition has been made by the aforesaid allottees (respondents 4 and 5) who have filed a counter-affidavit and a few documents in support of their case found by the Appellate officer.
(6) Bawa Shiv Charan Singh, in support of the writ petition, has raised the following contentions, namely, (1) respondents Nos. 4 and 5 were not sitting allottees since the premises in occupation of Ram Dass, respondent No.5, had ceased to exist and respondent No.4 had shifted to a Government quarter and (2) the petitioner's offer of Rs. 14,000.00 for the property had been accepted on 9th September, 1963 and the property was ordered to be re-sold.
(7) Mr. M. Ahmed, representing the non- evacuee owners, has contended that the allotment of the property only constitutes a license which stood revoked on the destruction of the property or its abandonment by the licensee. Mr. Talwar representing the contesting respondents 4 and 5 has argued that the petitioner does not have a locus standi to file the petition as he has not suffered infringement of any legal right by the impugned order. He has also contended that the Competent Officer had no jurisdiction to determine that respondents 4 and 5 were not sitting allottees, since this is a fact which had to be determined and was determined by the Custodian of Evacuee Property and it bound the Competent Officer. Mr. Talwar has supported the legality and validity of the order of the Appellate Officer.
(8) The relevant statutory provision is contained in rule 11 (B) of the Rules framed under section 23 of the Evacuee Interest (Separation) Act of 1951. The material portion is :
115'11 B. Mode of Separation of interest of evacuee.- Where the evacuee's share is valued at more than 'Rs. 50,000.00 in the case of an industrial undertaking or Rs. 15,000.00 in the case of any other property, or where the composite property comprises agricultural lands in the Union territory of Delhi and suburban lands in all states and Union territories- (b) where the evacuee's share is valued at Rs. 50,000.00 or less in the case of an industrial undertaking or Rs. 15,000.00 or less in the case of any other immovable property (excluding agricultural lands in the Union territory of Delhi and suburban lands in all States and Union territories to which clause (a) above applies ; and also excluding agricultural lands in rural area to which clause (c) below will apply) - (i) if the evacuee share is less than half, sell that share to the non-evacuee co-sharer at the price assessed by the competent officer and sh non-evacuee co-sharer shall be entitled to pay the entire price of such evacuee share either in cash or by associating claimants or partly in cash and partly by associating claimants ; and if he is not interested, offer it to the allottee, if a displaced person; (iii) if neither the non-evacuee co-sharer nor the displaced allottee is interested in purchasing the property, sell it by auction and distribute the sale proceeds in accordance with the shares determined by the competent officer.'
(9) At this stage it may be pertinent to notice that sub-clause (i) of clause (b) as given in the book published by Ram Narain Lal Beni Madho, 4th Edition, is not correct and the last clause beginning with' 'and if he is up to a displaced person' is missing from the said publication and my attention has been invited to the correct rule as given in the General Statutory Rules and Orders published by the Government, Vol. Vii, page 285, and I have, thereforee, reproduced the above correct clause. The value of the property was less than Rs. 15,000.00 and the share of the evacuees, as shown above, was less than half. The mandate of the rule, thereforee, is that it should be sold to the non- evacuee co-sharer at the assessed price. This had been done in the present case and the non-evacuee co-sharers did not pay the pries of the evacuees' share. Under the last clause of the relevant rule, the non-evacuees were, thereforee, not interested and so the property had to be offered to the allottees, if displaced persons. Only upon failure of this position, the property could be sold by auction in accordance with clause (iii). The question for determination, thereforee, is whether respondents 4 and 5 are allottees or they have ceased to be so by any act of the parties or provision of law. The counsel for the parties have stressed the expression 'sitting allottee' but that occurs only in clause (ii) and not clause (i) and so really I am not called upon to construe the expression 'sitting allottee', but only allottee.
(10) So far allotment is concerned, the fact that it was initially allotted to the contesting respondents is not denied. It is also supported by a report of the Assistant Custodian (Composite) dated 3rd April, 1973 (Annexurc R-1) wherein reply to the orders of the Competent Officer dated 20th March, 1963, it is submitted on behalf of the Custodian that the property was in occupation of Ram Parshad, Ram Dass and Rup Narain and that they were authorised occupants as per record of the office. What has really been contended is that they had ceased to be allottees by operation of law because in the case of Ram Dass, the property had been damaged and then pulled down by the Municipal Committee. Under clause (e) of section 108 of the Transfer of Property Act, a provision is made for a situation that if by fire, tempest or flood, or violence of any army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void. This rule of law shows that in such a situation, the lease or allotment can be avoided at the option and instance of the lessee and not at the instance of the Lesser, nor does it become void automatically by operation of law. thereforee, it cannot be contended that merely by damage to the property or its demolition by the Municipal Committee, the property had been rendered permanently unfit for occupation or by operation of law, the tenancy in its respect had ceased to be operative, this is a rule of equity, justice and good conscience and would be applicable to the facts and circumstances of the case The reason is that the contesting respondents had been occupying the property since a long time under the Muslim owners and the Custodian recognised their tenancy and gave them allotment. To keep the property in good and tenantable repairs is ordinarily the responsibility and liability of the Lesser. If for any reason the property has fallen down or has been found damaged and as such demolished by the Municipal Committee in public interest, a further penalty can certainly not be imposed upon the lessee to deprive him of the benefits of the lease itself and put an end to the tenancy without his option. Surely, the law does not permit a further punishment to be imposed upon the allottees if some misfortune has fallen upon them without their fault.
(11) Bawa Shiv Charan Singh has relied upon clause (c) of section 111 of the Transfer of Property Act to show that the allotment had ceased to be operative by the force of law. The said clause reads as follows : -
'111. A lease of immovable property determines- (c) where the interest of the Lesser in the property terminates on, or his power to dispose of the same extends only to, the happening of any event by the happening of such event.'
(12) The said clause in my opinion, has absolutely no application to the facts of the case and the argument of the learned counsel does not require any serious consideration and is rejected.
(13) Mr. M. Ahmed in support of the writ petition has strongly relied upon section 62 of the Indian Easement Act and some authorities under the said Act, namely, Suraj Baksh Singh Vs . Bhugga and another , Bhaga and others Vs Girwar and others, : AIR1953All439 , and Chevalier I. I. Ivayappan and another vs . The Dharmodavam Company. : 1SCR85 in support of his contention. Section 62 of the Easement Act states that a license is 'deemed to be revoked -
(D) where the properly affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right; and (f) Where the license is granted for a specified purpose and the purpose is attained, or abandoned, or becomes impracticable.'
(14) This section occurs in the sequence of sections 59, 60 and 61 of the Act. Section 59 provides that when the grantor of the license transfers property affected thereby, the transferee is not as such bound by the license. Section 60 provides that a license may be revoked by the grantor unless it is coupled with a transfer of property and such transfer is in force. Section 61 provides that the revocation of a license may be expressed or implied. To illustrate the power of the grantor to revoke the license, the provisions are contained in the various clauses of section 62. It is, however, contended that in the first instance the Indian Easement Act does not apply to Delhi which is not one of the territories mentioned in section 1 of the Act. Under the Delhi Laws Act of 1915, this Act (vide Schedule III) applies to those territories which had been taken from the United Provinces (now known as Uttar Pradesh) and added to Delhi. This area happens to fall on the west of the Jamuna round about Delhi Shahdara and other villages specified in Schedule I of the 1915 Act. However, the Act does not apply to that portion of the Union territory of Delhi which was constituted of the old Delhi Tehsil of Delhi or was taken from the Punjab. The property in dispute in this writ petitionis not situated in the area where the Easement Act applies. As held in Karam Illahi vs. Ghulam Mastafa A. I. R. 1927 Lahore 492 and Muni Lal vs. Maha Dev A.I.R. 1965 P&H; 299, the Easement Act in terms does not apply, but it has, however, applied as a rule of equity, justice and good conscience in appropriate situations.
(15) The Administration of Evacuee Property Act 31 of 1'950, however, does not leave any scope for application of the principles of the Easement Act to the allotments made by the Custodian under the said Act. Under Section 10 of the Administration of Evacuee Property Act, power is conferred upon the Custodian to manage the property and to transfer the same subject to the provisions of law. Section 12 of the Act empowers him to vary or cancel any allotment or terminate any lease of evacuee property. The word 'allotment' is denned by Section 2(a) of the Act as the grant by a person duly authorised in this behalf of a right of use or occupation of any immovable evacuee property to any other person, but does not include a grant by way of lease. Rule 14 of the Administration of Evacuee Property Rules framed under the said Act makes a provision for cancellation or variation of leases as well as allotments. Sub- Rule (2) of Rule 14 provides that in the case of a lease or allotment granted by the Custodian himself, the Custodian may evict a person on any ground justifying eviction of a tenant under any law relating to the Control of Rents for the time being in force or for any violation of the conditions of lease or the allotment. Sub-Rule (3) further empowers the Custodian to cancel the allotments on the grounds like having secured the allotment by misrepresentation or fraud or the allottee being in possession of more than one evacuee property and etc. This shows that although. the Rent Act in terms is excluded from application in view of Section 4 of the Evacuee Property Act, the principles underlying the Rent Control Act have been attracted to the allotments made by the Custodian, but the provisions for revocation of the license, as provided by Section 60 or 62 of the Easement Act, are not at all envisaged by the Evacuee Property Act; otherwise this would have found a mention in Rule 14 or in case Section 60 had applied. Rule 14 would have been absolutely redundant. Faced with the situation that the provisions have to be applied to the circumstances of the present case as rules of equity, justice and good conscience, I would prefer to apply the rules contained in the Transfer of Property act which in terms, have been extended to Delhi with effect from 1st December, 1962 and which ordinarily govern the relationship between a landlord and tenant and which are fully in consonance with law and justice. According to these provisions, there is no justification for holding that the allotments made by the Custodian had become ineffective either at the instance of the allottee or on account of demolition or destruction of the premises. Again the Custodian who had the power to cancel the allotment in accordance with law, had not done so and so, in my opinion, the allotment remains valid and effective. The finding of the Appellate Officer on this point is, in my view, legally correct. I, thereforee, repel the contention of the petitioner as well as of Mr. Ahmed.
(16) So far as respondent No. 4 is concerned, his claim is assailed only on the ground that he had acquired a Government quarter. This again is not a sufficient ground by itself to make the allotment void. On the said facts, if proved, it was open to the Custodian to exercise the power to cancel the allotment, but it is common ground that he has not cancelled the same. On the other hand, he has admitted the fact that the contesting respondents are still in authorised occupation of the premises. The allotment of this respondent thereforee, also remains legally valid and effective Judged from any point of view I do not find any substance in the submission that respondents 4 & 5 had ceased to be allottees or for that matter sitting allottees of the Custodian. Moreover, I entirely agree with the observations of the Appellate Officer made in the impugned order that in his previous order he had directed transfer of the premises to the said allottees, namely, respondents 4 and 5. The Competent Officer had, after this direction, only to carry out the order and there is ample justification for the grievance that the Competent Officer had no justification to sit in judgment over the order passed by the Appellate Officer and arrive at a different finding.
(17) Mr. Ahmed has next contended that the property should have been transferred to the non-evacuees and the finding of the Appellate Officer that they had refused to accept the offer is not correct. The non-evacuee owners have, however, not filed any writ petition, nor did they ever challenge the order of the Competent Officer by which he had ordered the property to be sold. As a matter of fact, they acquiesced in the said order and actually made a bid at the auction. They again never challenged the subsequent order of the Competent Officer cancelling the previous sale and ordering the property to be sold again. Needless to say that even the order of the Competent Officer refusing to transfer the property to the non-evacuees and ordering its sale was not agitated before the Appellate Officer. Under the circumstances, it is not possible to either consider or accept the contention of the non-evacuee owners that the property ought to have been sold to them instead of the allottees. Petition Dismissed.