Aniyoth Kunhamina Umma Vs. Ministry of
Rehabilitation & Ors  INSC 112 (22 March 1961)
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)
Property-Declaration becoming final-Writ Petition in Supreme Court challenging
declaration-Maintainability of-Constitution of India, Art. 32.
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,  3 S.C.R. 138, applied.
ORIGINAL JURISDICTION: Petition No. 32 of
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
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 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.
(2)  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 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)  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 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
(1)  3 S.C.R. 138.