Case: Aniyoth Kunhamina Umma Vs. Ministry Of Rehabilitation Andothers

The petitioners 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 petitioners 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 petitioners 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 ofthe Administration of Evacuee Property Act, 1950 (hereinafter called the Act). The petitioners 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 provision of S. 2 (d) (f) 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 Evancuee 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 properly 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 Arthur Import and Export Co. Bombay v. Collector of Customs, Cochin, 1958-18 Ker LJ 198 : (AIR 1958 Kerala 357), that when an order of an inferior tribunal is carried up in appeal or revision to a superior tribunal outside the courts 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 5-3-1959, 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.

Reasoning:
We 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 thethe 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 petitioner 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 fundamental right under Arts. 19 (1) (f) and 31 of theis 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 beenfar as the principle is concerned the 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.