Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and Others

s. K. Das J. 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 petitibner can complain of an infringement of the fundamental rights guaranteed to her under Arts. 19(l)(f) and 31 of the Constitution.

The relevant facts are these. The petitioner's hus-band 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, l' Government of India, it is averred that the petitioner's husband surreptitiously returned to India without a r96r valid passport in 1953 and was arrested for an alleged . infringement of the provisio~s of the Fo.:eigners Act. Kunh~;:;::~mma On December 7, 1953, Kunh1 Moosa HaJI transferred v. in favour of his wife his right, title and interest in Ministry of seven plots of land, details whereof are not necessary Rehabilitation for our purpose. On December 8, 1954, about a year & Othm after the transfer, a notice was issued to both the peti-tioner an d h er h us b an d to s h ow cause w h y K un h i 5. I(. Das 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 Custo-dian of Evacuee Property, Tellioherry, declared that Kunhi Moosa Haji was an evacuee under the provi-sions of s. 2(d)(i) 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 unsuccess-fully 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 peti-tioner then made an application to the Ministry of Rehabilitation for an order of restoration of the pro-perty 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 Consti-tution. This petition was, however, withdrawn by the petitioner on the ground that the Kerala High Court had held in an earlier decision reported in z96I Arthur Import & Export Company, Bombay v. Colle-Aniyoth tor of Customs, Cochin (1) that when an order of an JCunhamina Umma inferior tribunal is carried.up in appeal or revision to

v. a superior tribunal outside the court's jurisdiction and Ministry 01 the superior tribunal passes an order confirming, Rehabilitation mo d "f ymg • or reversmg · t h e or d er, the High Court can-

Others l

not issue a writ to an authority outside its territorial s. K. Das J. 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(l)(f) and 31 of the Constitution have been infringed and she is entitled to an appro-priate writ or order from this Court for the restora-tion 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 non-compliance 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 subseq1rnnt orders. \Ve 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 juri-sdiction. 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 jurisdic-tion. We need only add that no question of the con-stitutionality 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 Saiyed 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 peti-tioner. The position as we see it is this. This Court can exercise jurisdiction under Art. 32 of the Constitu-1961 tioJi only in enforcement of the fundamental rights A . h guaranteed by Part III of the Constitution. In the J(unha::;:~ umma present case, the appropriate authorities of competent v. jurisdiction under the Act have determined the two Ministry of questions which fell for their decision, namely, (1) that Rehabilitation Kunhi Moosa Haji was an evacuee within the mean- & Others ing of s. 2(d) of the Act and (2) that his property was s. I<. Das J. evacuee property. It was open to the petitioner to challenge the decision of the Custodian General, New Delhi, by moving the •ppropriate 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 ap-propriate authorities under the Act. The petitioner did not, however, choose to do so. The result, there-fore, 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 exe-cution 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 how 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 peti-tioner 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 appro-priate 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 peti-tioner cannot complain of any infringement of her r96, fundamental right under Arts. 19(l)(f) and 31 of the

Constitution.

Aniyoth It is worthy of note that the relevant provisions of I<unhamina Umma

v. the Act have not been challenged before us as uncon-Ministry of stitutional, nor can it be seriously contended before Rehabilitation us that the orders of the appropriate authorities under

Others the Act can be treated as null and void for want of s. K. Das J. 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 peti-tion 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 h,abeas 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 dis-missal of the said application, he applied to the Dis-trict 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 he moved an application under Art. 32 of the Constitution and it was 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, this Court cannot entertain a petition under Art. 32 z96z for protection of the alleged right. We are of the A-.- h opinion that the principle of this decision also applies Hunha=:;,~Umma to the present case. The circumstance that in Sahib-v. zada Saiyed Muhammed v. The State of Madhya Minisfry of Bharat (1) an application for special leave was made llehabititation and rejected makes no difference to the application of "' Othm the principle. So far as the principle is concerned, the position is the same when an application is made and S. J(. Das ]. 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 I 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 I infringement of a fundamental right, for she has no

such right.

We would, accordingly, dismiss the petition with costs.

Petition dismissed .

ORIGINAL JURISDICTION: Petition No. 32of19p9. 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