1. This is an application by Gordhansingh, resident of Nagla Jiwna, Thasil Kumher, in the District of Bharatpur, under Article 226 of the Constitution of India for a writ of certiorari or any other appropriate writ to the Custodian of Evacuee Property, Rajasthan, Jodhpur, the Deputy Custodian of Evacuee Property, Bharatpur District, and the State of Rajasthan through the Chief Secretary, for restoring a certain house in the town of Bharatpur to the petitioner and payment of rent to him or in the alternative to pay the full mortgage money with interest to the petitioner in accordance with the mortgage deeds.
2. The house belonged to Abdul Latif, Abdul Hafiz, and Abdul Majid and they executed a usufructuary mortgage deed for Rs. 1600/- in respect of the said house in favour of the petitioner on 26-4-1947. This deed was registered on 30-4-1947. The mortgagors themselves took a lease of the house after the mortgage from the petitioner on a monthly rental of Rs. 12/-. Subsequent to this mortgage, the mortgagors, Abdul Latif, Abdul Hafiz and Abdul Majid left Bharatpur and their property was treated to be evacuee property. The petitioner complained that certain displaced persons occupied the house forcibly about August 1948 without executing any lease in favour of the petitioner or the Custodian. The petitioner applied to the Custodian to pay the mortgage money as well as arrears of rent. The Deputy Custodian, Bharatpur, recommended to the Custodian that the mortgage money as well as interest and arrears of rent be paid to the petitioner. This recommendation was made on 20-3-1950. The Custodian of Rajasthan on 8-3-51 made an order that as the mortgagors were tenants the Custodian was entitled to take possession of the property as tenants. It was also ordered that the petitioner should get his claim registered under R. 22 made under S. 56, Administration of Evacuee Property Act of 1950.
3. The opposite parties have filed a common reply. It has been stated therein that the occupants of the property being evacuees their occupancy rights as lessees vested in the Custodian immediately after the mortgagors had left for Pakistan. The petitioner was not deprived of security. He could ask his remedy under the Evacuee Law. The possession of the property actually never passed to the mortgagees. It has been further stated that steps were being taken for the payment of the secured amount. It has finally been stated that the Deputy Custodian has been helping the petitioner to his best so much so that he has recommended for the payment of his dues. It has further been stated that the petitioner was not debarred from taking legal steps to realise his security.
4. We have heard the learned counsel for the petitioner as well as the learned counsel for the respondents. Although the petitioner claimed a writ of certiorari or any other appropriate writ to the respondents for restoring the property to the petitioner or in the alternative to pay the full mortgage money with interest to the petitioner, yet at the time of arguments, the learned counsel directed his arguments only for the recovery of arrears of rent from the Custodian. It was argued that the Custodian, according to his own showing, stepped into the shoes of the mortgagors who were tenants and had acquiredthe tenancy rights. The Custodian was therefore bound to pay the rent as and when it accrued. He was not justified in ordering the petitioner to file a claim, under Rule 22 made under Section 56 of the Act. So far as his claim to the mortgage money is concerned, it cannot be said that Rule 22 does not apply. The Custodian cannot therefore be said to have acted illegally when he ordered that the petitioner should have a claim registered in respect of that amount.
As regards the rent accruing due from the time the property has vested in the Custodian, it is not necessary in the circumstances of this case to say whether Rule 22 applies or not. The Custodian admits himself to be the tenant of the property. So long as the property is in possession of the Custodian he is of course liable to pay rent to the petitioner. But for the recovery of such rent there lies a remedy by way of ordinary suit in civil Court. The learned counsel for the petitioner has not been able to satisfy us that a suit for arrears of rent of the house will be barred against any of the provisions of the Act. There are only two sections, Sections 46 and 47 which bar certain suits. The learned counsel for the respondents says that under none of these two sections a suit for arrears of rent against the Custodian in the circumstances of the case shall be barred.
The learned counsel for the petitioner himself concedes that Section 46 does not bar such a suit. He took shelter under Section 47 of the Act but that section only says that no suit, prosecution, or other legal proceeding shall lie against the Custodian General, or the Custodian or any person acting under the direction of the Custodian in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or orders made thereunder. Under Sub-clause (2) of the section no suit or other legal proceeding shall lie against the Central Government, the State Government, the Custodian General or the Custodian or any other person in respect of any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or of any rules or orders made thereunder.
5. The suit for arrears of rent against the Custodian or the appropriate Government cannot be barred on the language of Section 47. Such a suit will therefore be maintainable. The petitioner has thus an alternative remedy by way of a civil suit for the recovery of arrears of rent and as has been held by this Court in several cases when an adequate remedy lies by way of civil suit this court will not be inclined to exercise its extraordinary powers under Article 226 of the Constitution of India. The petitioner can, if he is not paid in the meanwhile, bring such a suit for arrears of rent but we are assured by the learned counsel for the respondents that all the rightful dues of the petitioner shall be paid and steps are being taken for that. If that is done of course the petitioner's purpose will be fully served.
6. The application is dismissed. The respondents shall get their costs, including Rs. 50/- as counsel's fee, from the petitioner.