The Custodian of Evacuee Property has no jurisdiction to pass an order for payment of money for property that has not been found or to order a person to pay the price of property that has no existence.

WANCHOO, C. J.

( 1 ) THIS is an application by Gangadhar under Article 226 of the Constitution of india for a writ of certiorari and prohibition against an order of the Custodian of evacuee Property, Rajasthan, and has arisen in the following circumstances.

( 2 ) ON the basis of an anonymous petition dated the 7th October, 1948, two bullocks were seized by the Sub Inspector of Police at a mela at Bharatpur. Enquiries started in connection with these bullocks, and it was said that they belonged to certain Muslims of village Sonoti, who had left for Pakistan. During the course of these enquiries, allegations were made that Gangadhar applicant and Prabhu, one of the opposite parties, who were the persons in, whose possession the two bullocks had been found, had looted the houses of Muslims of Sonoti along with others after these Muslims had run away. On these allegations, the Deputy Custodian of Evacuee Property started an enquiry about the alleged looting. Eventually, on the 22nd of September, 1950, the Deputy custodian, Bharatpur, decided the matter. He ordered that the two bullocks should remain in the custody of the Supurddar, presumably with the idea that they would be sold up, and the proceeds credited to the Evacuee Property Fund. He further ordered that Gangadhar and Prabhu should pay Rs. 3946/-, which he assessed as the value of the property that had been looted by them. It may be mentioned that except for these two bullocks, no property of any kind was ever found in the possession of Gangadhar or Prabhu.

( 3 ) AGGRIEVED by this order, the applicant went in appeal to the Custodian, who decided it on the 16th of March, 1951. So far as the payment of Rs. 3946/- was concerned, the Custodian came to the conclusion that there was not sufficient evidence to warrant the making of that order, and that further enquiries should be made in the matter. So far as the two bullocks were concerned, the order of the Deputy Custodian was upheld, but though there was no such request before the Custodian, he varied it and ordered that Rs. 1200/- should be recovered from the applicant. The present application was made in November, 1951, when the Deputy Custodian started realising the sum of Rs. 1200 as arrears of land revenue in September, 1951.

( 4 ) A preliminary objection has been raised on behalf of the Custodian that as it was open to the applicant to go in revision to the Custodian. General, and as he did not do so, we should not grant him any relief, as he did not avail himself of the alternative remedy open to him. There is no doubt that generally speaking when there is an alternative remedy open to a party, this court will not interfere under its extraordinary jurisdiction. But the case of a writ of prohibition stands on a somewhat different footing from other writs. It has been held in a number of cases that where the superior court comes to the conclusion that an inferior tribunal is exercising jurisdiction which is not vested in it, the superior court will issue a writ of prohibition, even though there may be an alternative remedy. Reference may be made to Halsburys Laws of England, Second Edition, Volume ix, paragraph 1397, where the following passage occurs: "the court, in deciding whether or not to grant a writ of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction, or an appeal lies against such absence or excess". Reference may also be made to -- madan Gopal Kabra v. The Union of India, 1951 R. L. W. 56, --jeewan Ram v. The State of Rajasthan, 1952 R. L. W. 71 and -- rangraj v. Gram Panchayat Khinwel, 1952 R. L. W. 184. We therefore, overrule the preliminary objection.

( 5 ) THE case may be divided into two parts. The first part is about the order of the Deputy Custodian, by which Rs. 3946/- were to be realised from the applicant. That order has been set aside by the Custodian, but he has ordered further enquiry to be made into the matt