Ranawat, J.—This is an application under Art. 226 of the Constitution of India by Raghunandan Lal and three others against an order of the Custodian of Evacuee Property, Rajasthan, dated the 2nd December 1950. It is alleged by the petitioners that a shop had been mortgaged in favour of Girdnarilal, the father of the petitioners, by Mohammad Taqi, Kasim Ali, Riazul Hasan, Khurshed Ali and Amjad Ali some time before the year 1941. The mortgagors left India and went Pakistan. Under sec. 4 of the Matsya Evacuee Property Ordinance the equity of redemption which belonged to the Muslim evacuees vested in the custodian of the Evacuee Properties and under sec. 5 (2) of the Rajasthan Administration of Evacuee Property Ordinance, 1949 any evacuee property which had vested in any person exercising the powers of a Custodian under the Matsya Ordinance which had been repealed by the Rajasthan Ordinance is to be deemed to have vested in the Custodian appointed under the Rajasthan Ordinance. The equity of redemption therefore vested in the Custodian of Evacuee Property, Rajasthan, when the Rajasthan Ordinance came into force. Thereafter, the Rajasthan Ordinance was repealed by the Administration of Evacuee Property Act of 1950 which was enacted by the Parliament. By sec. 8 (2) of the Administration of Evacuee Property Act of 1950 all such property which had vested in any person under the laws repealed by the Act was to be deemed to have been vested in the Custodian appointed under the Act on its commencement. The equity of redemption of the shop in question therefore vested in the Custodian of Evacuee Property appointed under the Rajasthan Administration of Evacuee Property Act. The Deputy Custodian at Bharatpur initiated an enquiry and held that Raghunandan Lal and three others were in possession of a shop as mortgagees and the amount of mortgage money was Rs. 850/- only and that the mortgagors had left India and had gone to Pakistan. He therefore ordered payment of Rs. 850/- to the petitioners and ordered them to deliver possession to the Deputy Custodian. An appeal was filed against that order to the Custodian, Evacuee Property, Rajasthan, at Jodhpur, which was dismissed on the 2nd of December 1950. Steps were thereafter taken by the Deputy Custodian to eject the petitioners from the shop which was in their possession as mortgagees They however took three days time from the Deputy Custodian to enable them to vacate the shop and in the meantime they have come to this court under Art. 226 of the Constitution of India. The case of the petitioners is that the mortgagee rights relating to the disputed shop were not evacuee property and these rights did not vest in the Custodian under any of the Evacuee Property Act or Ordinances. The Deputy Custodian or the Custodian therefore had no jurisdiction to order their ejectment. What had vested in the Custodian was the equity of redemption only. The Custodian, if he wanted to take possession of the shop, should have proceeded by way of a regular suit rather than attempting to take forcible possession of the shop. No notice, it is said, was issued under sec. 7 of the Administration of Evacuee Property Act and there was no basis for the exercise of any jurisdiction by the Custodian. It is also stated by the petitioners that the Deputy Custodian has put a seal on the lock of the petitioners and thus the petitioners are deprived of the use of the shop. It is therefore prayed by the petitioners that a writ of certiorari, prohibition or mandamus be issued quashing the order of the Custodian and restraining the Custodian from interfering with the use of the shop by the petitioners. A reply was filed on behalf of the Custodian, Evacuee Property of Rajas-? than, and it was stated that sec. 7 of the Administration of Evacuee Property Act was not applicable to the present case, as this shop had vested in the Custodian under the Matsya Ordinance. It was said that the petitioners did not take any objection as regar

Click Here to Read the rest of this document