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PETITIONER: FATIMA BI & ANR.

       Vs.

RESPONDENT: DEPUTY CUSTODIAN GENERAL EVACUEE PROPERTY, NEW DELHI

DATE OF JUDGMENT27/03/1973

BENCH: RAY, A.N. BENCH: RAY, A.N. PALEKAR, D.G. BEG, M. HAMEEDULLAH

CITATION:  1973 AIR 1304            1973 SCR  (3) 766  1973 SCC  (1) 742

ACT: Administration, of Evacuee Property Act, 1950, Section 2(b), (2)(c),  6(2), 7A, 27 and 28--Order of  Assistant  Custodian declaring  appellant  non-evacuee-Revision of order  by  Dy. Custodian General on ground of fraud and  illegality--Orders sought  to be revised whether final under Section  28--Fresh Proceedings whether barred under section 7A or under Section 27-Order   of   Dy.    Custodian   General   held    validly made--Certiorari will not lie.

HEADNOTE: The  first  appellant  (the wife of  the  second  appellant) alleged that she was the owner of certain property at Delhi. By an ex-parte order dated 25-11-1953, the Asstt.  Custodian declared  her as an evacuee and her property to  be  evacuee property.   On appeal, the ex-parte order was set aside  and the  Asstt.  Custodian was directed to decide on merits  the appellant’s  case.  By an order dated 11-1-1956  the  Asstt. Custodian  held  that the first  appellant  was  non-evacuee owner  of the property.  On 29-4-1964, a notice u/s.  27  of the Act was issued to the first appellant to show cause  why the order dated 11-1-56 should not be revised.  The  .rounds for  the notice were (i) that the first appellant  had  left for  Pakistan in 1947, and it was fraudulently averred  that she was a non-evacuee and was residing at Calcutta with  the second  appellant; and (ii) that in order to  establish  the first  appellant’s non-evacuee status, as well as to  secure the  release of the property, forged documents and  perjured evidence  were tendered before the Asstt.   Custodian.   The first  appellant applied for cancellation of the show  cause notice.   On 1-2-1965, the Dy.  Custodian  General  rejected the objections of the first appellant and authorised the Dy. Custodian  to expedite recording of evidence and  submission of report, The  appellant filed a writ petition in the High  Court  for quashing  the  two  orders  dated  29-4-1964  and   1-2-1965 contending (i) that the order dated 11-1-56 had become final by  virtue  of See. 28 of the Act and it could  not  be  re- opened;  (ii)  that  fresh  proceedings  were  barred  under section 7A of the Act;. and (iii) that the proceedings  u/s. 27  of  the Act were barred by limitation.  The  High  Court

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rejected these contention.and dismissed the writ petition. on  appeal  by special leave to this Court,  dismissing  the appeal. HELD  :  (i) The order dated 11-1-56 was not  final  and  it could  be re-opened.  The power of revision u/s. 27 was  not taken away by s. 28 of the Act. [768E] (ii)  Sec.  7A of the Act did not constitute a  bar  to  the issue  of  notice u/’s. 27.  The bar in Sec. 7A is  that  no property  shall  be declared to be evacuee  property  on  or after  7-5-54.   The proviso to Sec. 7A  is  that  nothing contained  in  the section shall apply to  any  property  in respect  of which Proceedings are pending on  7-5-54.   When the  ex-parte order dated 25-11-53 was set aside,  the  High Court  held that the proceedings in respect of the  property were  pending on 7-5-54 and that is how an order was  passed on 11-1-56 in favour of the first appellant. [768F-G] 767 (iii)  The power u/s. 27 of the Act is not curtailed by  any limitation of time. [768G-B] (iv)  The  order  dated 29-4-1964 was validly  made  by  the Custodian  General.  The relevant authorities have power  to call  for  the  record  of  any  proceedings  in  which  any Custodian has passed an order for the purposes of satisfying as to the legality or propriety of such an order.  Since the order  has been questioned by the authorities on the  ground that  the first appellant obtained the  order  fraudulently, and  fraud  is a question of fact, it is open to  the  first appellant to establish that she Obtained the order property. Certiorari will not lie as the authorities have jurisdiction to issue the notice. [769D-E]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1279  of 1970. Appeal  by special leave from the judgment and  order  dated November  21, 1969 of the Delhi High Court at New Delhi,  in L.P.A. No. 101-D/66. S. K. Mehta, A. N. Aurora, K. R. Nagaraja and M.  Qamruddin, for the appellants. P. Parameshwara Rao and S. P. Nayar for Respondent No. 1 N. C. Sikri, for Respondent No. 2. The Judgment of the Court was delivered by RAY, J. This is an appeal by special leave against the judg- ment dated 21 November, 1969 of the Delhi High Court dismis- sing the writ petition of the appellants. The appellants made an application under Article 226 of  the Constitution in the Delhi High Court.  The appellants  asked for quashing two orders dated 29 April, 1964 and 1 February, 1965, On 29 April, 1964 the Deputy Custodian General  issued a  notice to the appellant Fatima Bi to show cause  why  the order  dated 11 January, 1956 should not be revised  as  the same  was obtained by fraud and was illegal.  The  appellant Fatima  Bi  made an application for  cancelling  the  notice requiring her to show cause.. On 1 February, 1965 the Deputy Custodian  General passed an order rejecting the  objections of  the  appellant  Fatima Bi.  By the said  order  dated  1 February, 1965 the authorised Deputy Custodian was asked  to expedite recording’ of evidence and submission of report. The  appellant Fatima Bi is the wife of the appellant  Mohd. Sayeed.  The appellant Fatima Bi’s case is that she, is  the owner  of certain property at Delhi.  By an  ex-parte  order dated 25 November, 1953 the Assistant Custodian declared her as  evacuee  and her property to be  evacuee  property.  she

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filed  an appeal against the ex-parte  order.  The  ex-parte order was set aside. The Assistant Custodian was required to decide on merits the appellant. 768 Fatima  Bi’s case.  By an order dated 1 1 January, 1956  the Assistant Custodian held that the appellant Fatima Bi was  a non,evacuee  owner  of the property.  On 29  April,  1964  a notice  under ’section 27 of the Administration  of  evacuee Property Act, 1950 (hereinafter referred to as the Act)  was issued  to show cause why the order dated 11  January,  1956 should  not  be revised.  The ’grounds for the  notice  were that the appellant Fatima Bi had left for Pakistan in  1947, and  it was fraudulently averred that she was a  non-evacuee and  was  residing  at Calcutta  with  the  appellant  Mohd. Sayeed.  The other ground alleged in the notice was that  in order  to  establish the appellant Fatima  Bi’s  non-evacuee status  as  well as to secure the release  of  the  property forged  documents and perjured evidence was tendered  before the Assistant Custodian. The  appellants raised three contentions in the High  Court. First,  that  the order dated 11 January,  1956  had  become final and could not be re-opened, by virtue of section 28 of the  Act.   Second,  fresh  proceedings  were  barred  under section  7-A  of  the Act.   Third,  the  proceedings  under section 27 of the Act were barred by limitation. The  High Court held that the order dated 11  January,  1956 was not final and it could be re-opened.  Section 28 of  the Act was held by the High Court not to be a bar to the powers of revision under section 27 of. the Act.  Section 28  makes orders final save as otherwise expressly provided in Chapter V.  Sections 27 and 28 both occur in Chapter  V.  Therefore, the High Court rightly held that the power of revision under section 27 was not taken away by section 28 of the Act. The High Court also held that section 7-A of the Act did not constitute  a bar to the issue of notice under  section  27. The bar in section 7-A is that no property shall be declared to be evacuee property on or after 7 May, 1954.  The proviso to  section  7-A is that nothing contained  in  the  section shall apply to any property in respect of which  proceedings are  pending on 7 May, 1954.  When the ex-parte order  dated 25 November, 1953 was set aside the High Court held that the proceedings  in  respect of the property were pending  on  7 May, 1954 and that is how an order was passed on 11  January 1956 in favour of the appellant Fatima Bi. The High Court also held that the notice under section 27 of the  Act  was issued several years after  11  January,  1956 order had been passed but the power under section 27 of  the Act was not curtailed by any limitation of time. Counsel on behalf of the appellants repeated the contentions ’which had been advanced in the High Court.  The High  Court rightly rejected the appellants’ contentions. 769  An  additional  contention  was advanced,  viz.,  that  the order. dated 29 April, 1964 was not passed by the  Custodian General.   The Custodian General is defined in section  2(b) of  the  Act  to  mean  the  Custodian  General  of  Evacuee Property in India appointed by the Central Government  under section  5 of the Act.  Section 2(c) defines ’Custodian’  to mean   the  Custodian  for’  the,.State  and  includes   any Additional,  Deputy  or  Assistant  Custodian-,  of  evacuee property  appointed  in that State.  Section 6(2)  of  the,. Act  states  that subject to the provisions of the  Act  all Custodians,  Additional, Deputy and Assistant  Custodian  of evacuee property. shall discharge the duties imposed on them by  or under this Act under the general superintendence  and

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control  of  the Custodian., General.  ’The  order-dated  29 April, 1964 was validly made for-Custodian General. The  petition  of the appellants was  utterly  misconceived. The.relevant  authorities have power to call for the  record of any proceeding in which any Custodian has passed an order for  the  purpose  of  satisfying  as  to  the  legality  or propriety of such order.  In, the present case the order has been  questioned by the authorities on the ground  that  the appellant Fatima Bi obtained the order. fraudulently.  Fraud is  a question of fact.  It is open to the appellant  Fatima Bi  to  establish  that she  obtained  the  order  properly. Certicrari  will  not lie for the obvious reason  that  the, authorities have jurisdiction to issue the notice.  There is neither. excess of jurisdiction ’nor usurpation.’ It  was said on behalf of the appellants that the  order  of 1956  was  called in question in 1964.  Several  years  have passed.   The,.  relevant  authorities will  take  steps  to expedite the hearing in the. matter. For these reasons, the appeal is dismissed.  Each party will pay and bear their own costs. S.B.W.                      Appeal dismissed 770