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PETITIONER: ANIYOTH KUNHAMINA UMMA

       Vs.

RESPONDENT: MINISTRY OF REHABILITATION ANDOTHERS

DATE OF JUDGMENT: 22/03/1961

BENCH: DAS, S.K. BENCH: DAS, S.K. SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1962 AIR 1616            1962 SCR  (1) 505  CITATOR INFO :  R          1962 SC1621  (17,38,90)  RF         1967 SC   1  (57)

ACT: Fundamental  Rights-Evacuee  Property-Declaration   becoming final-Writ    Petition   in   Supreme   Court    challenging declaration-Maintainability  of-Constitution of India,  Art. 32.

HEADNOTE: The petitioner’s husband transferred certain property to the petitioner.  A notice under s. 7, Administration of  Evacuee Property Act, 1950, was issued to the petitioner and to  her husband  and  the husband was declared an  evacuee  and  the property  was declared as evacuee property by the  Assistant Custodian.  An appeal to the Deputy Custodian and thereafter a  revision  petition  to  the  Custodian  General  by   the petitioner  were dismissed.  The petitioner applied  to  the Supreme  Court under Art. 32 of the Constitution  contending that her fundamental rights under 64 506 Arts.  19(1)(f)  and 31 were infringed by the order  of  the Assistant  Custodian and prayed for the restoration  of  the property. Held, that the petition under Art. 32 was incompetent as  no question of violation of any fundamental right arose in  the case.    The   decision  of  an   authority   of   competent jurisdiction  had  negatived  the  existence  of  the  right alleged by the petitioner and unless that decision was  held to  be  a  nullity or could be otherwise  got  rid  of,  the petitioner  could  not  complain of any  infringement  of  a fundamental  right.   The alleged fundamental right  of  the petitioner  was  dependent  on whether her  husband  was  an evacuee and whether his property was evacuee property.   The decision on that question had become final and no question of lack of jurisdiction was involved. Sahibzada  Saiyed Muhammed Amirabbas Abbasi v. The State  of Madhya Bharat, [1960] 3 S.C.R. 138, applied.

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JUDGMENT: ORIGINAL JURISDICTION: Petition No. 32 of 1959. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental Rights. V.   A. Seyid Muhamad, for the petitioner. N.   S.  Bindra,  R.  H.  Dhebar and  T.  M.  Sen,  for  the respondents. 1961.  March 22.  The Judgment of the Court was delivered by S.   K. DAS, J.-This is a writ petition under Art. 32 of the Constitution.   The  relevant  facts  lie  within  a  narrow compass, and the short point for decision is whether in  the circumstances of this case the petitioner can complain of an infringement  of  the fundamental rights guaranteed  to  her under Arts. 19(1)(f) and 31 of the Constitution. The  relevant  facts are these.   The  petitioner’s  husband Kunhi Moosa Haji, it is alleged, carried on a hotel business in Karachi which is now in Pakistan.  The petitioner  stated that  her  husband had been carrying on  the  said  business since  1936.   It is not in dispute, however,  that  in  the relevant year, that is, 1947, when the separate dominion  of Pakistan  was  set  up,  the  petitioner’s  husband  was  in Karachi.   The petitioner stated that at the end of  August, 1949, her husband returned to Malabar, in India.  On  behalf of’  respondent  no.  1,  the  Ministry  of  Rehabilitation, Government of India, it is averred that the petitioner’s 507 husband  surreptitiously returned to India without  a  valid passport   in   1953  and  was  arrested  for   an   alleged infringement  of the provisions of the Foreigners  Act.   On December 7, 1953, Kunhi Moosa Haji transferred in favour  of his  wife his right., title and interest in seven  plots  of land, details whereof are not necessary for our purpose.  On December 8, 1954, about a year after the transfer, a  notice was  issued to both the petitioner and her husband  to  show cause why Kunhi Moosa Haji should not be declared an evacuee and his property as evacuee property under the provisions of the   Administration   of  Evacuee   Property   Act,   1950, (hereinafter called the Act).  The petitioner’s husband  did not appear to contest the notice, but the petitioner entered appearance through her advocate.  By an order dated  January 29,  1955,  the  Assistant Custodian  of  Evacuee  Property, Tellicherry,  declared that Kunhi Moosa Haji was an  evacuee under the provisions of s. 2(d)(1) of the Act and the  plots in  question were evacuee property within the meaning of  s. 2(f)  of  the  Act.   From  this  decision  the   petitioner unsuccessfully carried an appeal to the Deputy Custodian  of Evacuee Property, Malabar, who affirmed the decision of  the Assistant  Custodian, Tellicherry, by his order  dated  July 11, 1955.  The petitioner then moved the Deputy Custodian of Evacuee  Property, Malabar, for a review of his order  under s.  26(2) of the Act.  This petition also failed.  Then  the petitioner moved the Custodian-General of Evacuee  Property, New  Delhi,  in  revision against the order  of  the  Deputy Custodian.   This  revision petition was  dismissed  by  the Custodian-General  by  his order dated April 9,  1956.   The petitioner  then  made  an application to  the  Ministry  of Rehabilitation  for an order of restoration of the  property in  her favour under the provisions of s. 16(1) of the  Act. This  application  was also rejected.  The  petitioner  then moved  the High Court of Kerala by means of a writ  petition under  Art.  226 of the Constitution.   This  petition  was, however, withdrawn by the petitioner on the ground that  the

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Kerala  High Court had held in an earlier decision  reported in 508 Arthur  Import  &  Export Company,  Bombay  v.  Colletor  of Customs,  Cochin  (1)  that when an  order  of  an  inferior tribunal  is carried up in appeal or revision to a  superior tribunal  outside the court’s jurisdiction and the  superior tribunal passes an order confirming, modifying or  reversing the  order,  the  High  Court cannot  issue  a  writ  to  an authority  outside its territorial jurisdiction.   Then,  on March  5,  1959,  the  petitioner  filed  the  present  writ petition  and  the  basis of her  contentions  is  that  the fundamental  rights guaranteed to her under  Arts.  19(1)(f) and  31 of the Constitution have been infringed and  she  is entitled to an appropriate writ or order from this Court for the  restoration of the property transferred to her  by  her husband. In  her petition, the petitioner has contested the  validity of  the notice issued on December 8, 1954, on the ground  of noncompliance with certain rules.  She has also contested on merits  the  correctness of the findings arrived at  by  the relevant  authorities that Kunhi Moosa Haji was  an  evacuee and the property in question was evacuee property.   Learned Counsel   for  the  petitioner  tried  to  argue  that   the invalidity  of the notice issued under s. 7 of the Act  went to the root of jurisdiction of the subsequent orders.  We do not,  however, think that any question of lack of  jurisdic- tion  is involved in this case.  The petitioner appeared  in response to the notice and raised no point of  jurisdiction. In  subsequent proceedings before the Deputy  Custodian  and the  Custodian General she contested the correctness of  the orders  passed  on merits: no question of  jurisdiction  was canvassed  at any stage and we do not think that the  notice suffered from any such defect as would attract the  question of  jurisdiction.  We need only add that no question of  the constitutionality of any law is raised by the, petitioner. In the view which we have taken, this petition is  concluded by the decision of this Court in Sahibzada Saiye-d  Muhammed Amirabbas Abbasi v. The State of Madhya Bharat (2) and it is not necessary to consider on merits the contentions urged on behalf  of  the petitioner.  The position as we  see  it  is this.  This Court (1) (1958) 18 k.L.J. 198. (2) [1960] 3 S.C. R. 138- 509 can exercise jurisdiction under Art. 32 of the  Constitution only in enforcement of the fundamental rights guaranteed  by Part  III  of the Constitution.  In  the  present,case,  the appropriate authorities of competent jurisdiction under  the Act  have determined the two questions which fell for  their decision,  namely, (1) that Kunhi Moosa Haji was an  evacuee within  the meaning of s. 2(d) of the Act and (2)  that  his property   was  evacuee  property.   It  was  open  to   the petitioner  to  challenge  the  decision  of  the  Custodian General, New Delhi, by moving the appropriate High Court  in respect thereof; it was also open to the petitioner to  move this  Court by way of special leave against the decision  of the   Custodian   General  or  of  the   other   appropriate authorities   under  the  Act.   The  petitioner  did   not, however’,  choose to do so.  The result, therefore, is  that the order of the custodian General has become final.   Under s.  28 of the Act the order cannot be called in question  in any court by way of an appeal or revision or in any original suit,  application or execution proceeding.  It is,  indeed, true  that s. 28 of the Act cannot affect the power  of  the

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High Court under Arts. 226 and 227 of the Constitution or of this  Court  under  Arts. 136 and 32  of  the  Constitution. Where,  however, on account of the decision of an  authority of  competent  jurisdiction the right alleged by  the  peti- tioner  has been found not to exist, it is difficult to  see bow any question of the infringement of that right can arise as   a  ground  for  a  petition  under  Art.  32   of   the Constitution,  unless  the  decision  of  the  authority  of competent   jurisdiction  on  the  right  alleged   by   the petitioner  is held to be a nullity or can be otherwise  got rid  of  As  long as that decision  stands,  the  petitioner cannot complain of any infringement of a fundamental  right. The  alleged fundamental right of the petitioner  is  really dependent  on  whether Kunhi Moosa Haji was an  evacuee  and whether  his property is evacuee property.  If the  decision of the appropriate authorities of competent jurisdiction  on these questions has become final and cannot be treated as  a nullity  or cannot be otherwise got rid of,  the  petitioner cannot complain of any infringement of her 510 fundamental right under Arts. 19(1)(f) and 31 of the It is worthy of note that the relevant provisions of the Act have not been challenged before us as unconstitutional,  nor can it be seriously contended      before us that the orders of the appropriate authorities under the Act can be  treated as  null  and  void  for  want  of  jurisdiction.   What  is contended  before  us is that the orders were  incorrect  on merits.   That is a point which the petitioner  should  have agitated  in an appropriate proceeding either by way  of  an appeal from the order of the Custodian General with  special leave  of this Court or by an appropriate proceeding in  the High  Court having jurisdiction over the Custodian  General. The petitioner did not take either of these steps, and we do not  think  that she can be permitted now to  challenge  the correctness  on  merits  of the orders  of  the  appropriate authorities  under the Act on a writ petition under Art.  32 of the Constitution on the basis that her fundamental  right has been infringed. In  Sahibzada Saiyed Muhammed v. The State of Madhya  Bharat (1)  the facts were these.  The petitioner who had  migrated to West Pakistan applied to the High Court of Madhya  Bharat for  a  writ  of habeas corpus  for  directions  to  produce petitioners 2 and 3, his minor children, before the court on the allegation that they were wrongfully confined and,  upon the  dismissal  of the said application, be applied  to  the District  Judge of Ratlam under the Guardian and  Wards  Act for  his appointment as guardian of the person and  property of  the  said  minors;  the  District  Judge  rejected   the application  and appointed another person as  guardian;  the petitioner then appealed to the High Court against the order of  the  District Judge and that appeal was  dismissed.   He applied  for special leave to appeal to this Court and  that application  was  also  rejected.  Thereafter  be  moved  an application  under  Art. 32 of the Constitution and  it  wag held  that  where on account of the decision of a  court  of competent jurisdiction, the right alleged by the  petitioner does  not  exist  and, therefore,  its  infringement  cannot arise, (1)  [1960] 3 S.C.R. 138. 511 this  Court  cannot entertain a petition under Art.  32  for protection of the alleged right.  We are of the opinion that the  principle of this decision also applies to the  present case.  The circumstance that in Sahibzada Saiyed Muhammed v. the  State of Madhya Bharat (1) an application  for  special

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leave  was  made  and rejected makes no  difference  to  the application  of the principle.  So far as the  principle  is concerned,  the position is the same when an application  is made and rejected and when no application is made.  The  re- sult  in both cases is that the decision becomes  final  and binding on the parties thereto.  We must make it clear  that we are not basing our decision on the circumstance that  the High  Court  of  Kerala  rejected  the  application  of  the petitioner  on  the  ground  that  it  had  no   territorial jurisdiction.  We are basing our decision on the ground that the  competent  authorities  under the Act  had  come  to  a certain  decision, which decision has now become  final  the petitioner  not  having moved against that  decision  in  an appropriate court by an appropriate proceeding.  As long  as that decision stands, the petitioner cannot complain of  the infringement of a fundamental right, for she has no ,such right. We would, accordingly, dismiss the petition with costs.                               Petition dismissed. (1) [1960] 3 S.C.R. 138. 512