Dismissed

Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and Others

Fundamental Rights – Evacuee property

Supreme Court22 Mar 19611961 INSC 107 · [1962] 1 S.C.R. 5051961 INSC 107

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What is this about?

Writ petition under Article 32 challenging declaration of property as evacuee property after all statutory remedies were exhausted and the Custodian General's order became final. The Court held no question of infringement of Articles 19(1)(f) or 31 arose while the competent authority's decision stood, and dismissed the petition with costs.

What did the court decide?

Petition dismissed with costs.

What the court decided

Aniyoth Kunhamina Umma versus Ministry of… — Property and Title | Supreme Court (1962)

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I S.C.R. SUPREME COURT REPORTS 505

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Learned counsel for the appellant contends that under the Rules the respondents could request the mining authorities to exempt them from the operation of rule 76 of the Indian Coal Mines Regulation, 1946, and if exemption was granted, they could remove the coal left by the appellant in the encroached area. This possibility of the respondents getting an exemption from the operation of the rule was not raised either before the learned Subordinate Judge or before the High Court. Nor can we hold in favour of the appellant on the basis of such a possibility. We, therefore, accept the concurrent finding of fact arrived at by the courts below in respect to this issue.

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K. S. Nanji if.. Company v. Jatashankar Dossa &- Others Subba Rao ].

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No other point was raised. The appeal fails and is dismissed with costs .

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Appeal dismissed.

ANIYOTH KUNHAMIN A UMMA

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MINISTRY OF REHABILITATION AND

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r96r MaYch 22.

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OTHERS

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(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,

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N. RAJAGOPALA AYYANGAR and

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J. R. MUDHOLKAR, JJ.)

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Fundmentl. Rig_hts-Evacuee Property-Declaration becoming final-Writ Petition in Supreme Court challenging declarationMaintainability of-Constitution of India, Art. 32.

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/ . The petitioner's husband transferred certain property to the petitioner. A notice under s. 7, Administration of Evacuee Pro- perty 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 there.after a revision petition to the Custodian General by th~ petitioner were dismissed. The petitioner applied to the Supreme Court under Art. 32 of the Constitution contending that her fundamental rights under 64

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506 SUPREME COURT REPORTS [1962]

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r96r	Arts. l9(1)(f) and31were infringedbythe orderoftheAssistant Custodianandprayed for the restorationoftheproperty.
Aniyoth Kunhamina Umm . .v. Mim_si:y⁰! Rehabilitation &Others	_Held,_thatthe petition under Art.32was incompetent~sno _a_questionofviolationofany fundamental right arose intheqase . The decisionofanauthorityofcompetent jurisdiction bad nega- tivedtheexistence of the right alleged bythepetitionerand unlessthatdecision was held to be a nullity or couldbeother- wise got rid of,thepetitioner could not;complainofany infringe- mentofa fundamental right. The alleged fundamentalright oflhe1petitioner was dependent on whetherherhusband wasan evacuee and whether his property was evacuee property.The decision onthatquestion had become final and no questionof 1ackofjurisdiction was involved.
	_SahibzadaSaiyedMuhammedAmirabbasAbbasi_v.TheState of MadhyaBharat,[196o]:il S.C.R. 138, applied.
	ORIGINALJURISDICTION: Petition No.32of19p9.
	PetitionunderArt. 32oftheConstitutionofIndia for enforcementofFundamental Rights.
	_V.A.Seyid Muhamad,_for the petitioner.
	_N. S. Bindra, R. H.Dhebar_and_T. M. Sen,_forthe respondents.
	1961. March22. TheJudgmentoftheCourt was deliveredby

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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.

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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

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507

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1 S.C.R. SUPREME COURT REPORTS

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husband surreptitiously returned to India without a r96r valid passport in 1953 and was arrested for an alleged . infringement of the provisios 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- 5. I(. Das ]. tioner an d h er h b us an d to s h ow cause w y h K un h i 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, Tellioherry, declared that Kunhi Moosa Haji was an evacuee under the provisions 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 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 CustodianGeneral 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

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508 SUPREME COURT REPORTS [1962)

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z96I Arthur Import & Export Company, Bombay v. ColleAniyoth 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 Ministry⁰ 1 the superior tribunal passes an order confirming, Rehabilitation d "f • · h d & Others mo l ymg or reversmg t e or er, the High Court cannot 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 appropriate writ or order from this Court for the restoration of the property transferred to her by her husband.

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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 jurisdiction 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.

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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 petitioner. The position as we see it is this. This Court (1) (1958) 18 K.L.J. 198. (2) [1g60] 3 S.C.R. 138.

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1 S.C.R. SUPREME COURT REPORTS 509

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1 9 61 A . h J(unha::;:~ umma v. Ministry of Rehabilitation & Others

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can exercise jurisdiction under Art. 32 of the Constitu- 1 9 61 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 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 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 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

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510 SUPREME COURT REPORTS [1962]

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r96, Aniyoth	fundamentalrightunderArts. 19(l)(f)and31ofthe Constitution.
I<unhamina Umma	Itis worthyofnotethattherelevant provisionsof
v.	theAct havenotbeen challenged before us as uncon-
Ministryof	stitutional, nor canitbe seriously contended before
Rehabilitation &Others	usthattheordersofthe appropriate authorities under theAct can be treated as nullandvoid forwantof
s.K.DasJ.	jurisdiction.Whatis contended before usisthatthe orders were incorrect on merits.Thatis a point which thepetitioner should have agitatedinanappropriate proceeding eitherbywayofan appeal fromtheorder oftheCustodian General with special leaveofthis Court orbyanappropriate proceedingintheHigh Court having jurisdiction overtheCustodian General. The petitioner did nottakeeitherofthese steps,and wedo notthinkthatshe can be permitted now to challenge the correctness on meritsoftheordersofthe appropriate authorities undertheAct on a writ peti- tion under Art.32oftheConstitution onthebasis thatherfundamentalrighthas been infringed.

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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 dismissal of the said application, he 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 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, (r) [1960) 3 S.C.R, q8.

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1 S.C.R. SUPREME COURT REPORTS

511

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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 S. J(. Das ]. position is the same when an application is made and rejected and when no application is made. The result 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.

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We would, accordingly, dismiss the petition with costs.

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Petition dismissed .

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(1) [1960] 3 S.C.R. 138.

Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and Others

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Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and Others

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