FATIMA BI & ANR. v.

DEPUTY CUSTODIAN GENERAL EVACUEE PROPERTY.

NEW DELHI March 27, 1973

[A. N. RAY, D. G. PALEKAR AND M. H. BEG, JJ.]

Ad111inistra1iorl of Evacuee Property Act, 1950, Sections 2(b), 2(c), 6(2), 7A. 27 and 28-0rder of Assistant Cust.odian declaring appellant 11on-evact1e<·-Rel'1°sion of order by Dy. Custodian General on ground of fraud and illea/it}'-Ortler.r ,\ought to be revised whetler final under Section 28-Fresh Proceedi11J(s whether barred under section 1A or under Section 21-0rder of Dy.

Custodic .. n General held valiJly 1nade- Ccrtiorari wi!I not lie.

The first appellant (the wife of the second appellant) alleged that she \Vas the owner of certain property at Delhi.

By an ex .. parte order LlatcJ 25-11~1953, th!! Asstt. Custodian declared her as an evacuee and her property to be evacuee property.

On appea1, 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 I J.1-1956 the Asst!. 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 'sho\v cause \vhy the order dated ll-1·56 should not be revised. The grounds 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-ev.acuee 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 cancellatiort of the show cause notice.

On t-2-1965, the Dy. Custodian General rejected the objections of the first appellant and authorised

th~ Dy. Custodian to expedite recording of evidence and submiion of report.

The appellant filed .a \Vrit petition in the High Court for quashing the two orders dated 29-4-1964 and 1-2-1965 contending (i) that the order dated ll 1-56 had become final by virtue of Sec. 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 proc;!Cdings u/s. 27 of the Act v.'cre barred by limitation. The High Court rejected these contentions n.rrd 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. 2s of the Act.

[768E]

(ii) Sec. 7 A 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 cvac?ee property n or afte~ 7-5-54. The proviso to Sec. ,7A is that not!'mg contaied m the secon shall apply to any property in respect of which proceedJJlgs are pending on 7-5-54.

When the •xparle order

lated 25-11-53 was set aside. the High Court held that. the proceedings m respect of the P.roperty 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-GJ

(iii) The power u/s. 27 of the Act is not curtailed by any limitation of time. l768G-H]

(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 s9tisfying as to the legality or propriety of such an order. Sine.: the order has n questioned by the authorities on the $f0Und tht the. first appellant obtained the order fau<lulently, _and fraud 1s a qesuon ol fact it is open to the first appellant to establish that she obta1ne<l the

ordr properly.

Certiorari will not He as the authorities have jurisdiction to issue the notice. (7690-E]

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. Qamr11ddi11, for the appellants.

P. Parameshwara Rao and S. P. Nayar for Respondent No.

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 judgment dated 21 November, 1969 of the Delhi High Court disinissing 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 am application for cancelling the notice requiring her to show cause.

On I February, 1965 the Deputy Custodian General passed arr order rejecting the objections of the appellant Fatima Bi. By thesd order dated 1 February, 1965 the authorised Deputy Custodian was asked to expedite recording of evidence and submissiorr of repoi:.t.

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

an~ her property to be evacuee property. She filed an appeal agamst the ex-parte order.

The ex-parte order was set aside. The Assistant Custodian was required to decide on merits the appellant

SUPREME COURT REPORTS [1973] 3 s.c.R.

Fatima }3i's case. By an order dated 11 Janul!ry, 1956 the A .Assistant Custodian held that the appellant Fatima Bi was a non- evacuee owner of the property. On ~9 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 gtounds for the notice were that the appellant Fatima Bi had left B 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 Ar.sistant Cus c todian.

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 D 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 ofthe Act was held by the High Court not to be a bar to the powers of revi- sion under section 27 of the Act. Section 28 makes orders final save as otherwise expressly provided in Chapter V. Sec.lions E '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 l' 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 ht respect of the property were pending on 7 May, 1954 and that is how an order was G 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 H which had been advanced in the High Court. The High Court rightly rejected the appellants' contentions.

An_additional contention .was advanced, viz., that the order dated 29 April, 1964 was not passed by the Cuodian 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 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 pur- D , pose of satisfying as to the legality or propriety of such order. In the present case the order h<\S 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 properlv, Certiorari will not lie for the ohlvious reason that the E 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.

SRW.

Appeal dismissed,