Aniyoth Kunhamina Umma vs Ministry Of Rehabilitation And others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 32 of 1959

Decision Date: 22 March 1961

Coram: S.K. Das, Bhuvneshwar P. Sinha, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar

The case Aniyoth Kunhamina Umma versus Ministry of Rehabilitation and others was decided on 22 March 1961 by the Supreme Court of India. The judgment was authored by Justice S.K. Das and the bench comprised Justices S.K. Das, Bhuvneshwar P. Sinha, A.K. Sarkar, N. Rajagopala Ayyangar and J.R. Mudholkar. The official citation of the decision is reported in 1962 AIR 1616 and in the Supreme Court Reporter as 1962 SCR (1) 505. The petition was filed under Article 32 of the Constitution, seeking enforcement of fundamental rights alleged under Articles 19(1)(f) and 31, which the petitioner claimed were infringed by the actions of the Assistant Custodian under the Administration of Evacuee Property Act, 1950. The petitioner, Aniyoth Kunhamina Umma, contended that her husband had transferred certain property to her, and that a notice issued under Section 7 of the Act had declared her husband an evacuee and the property as evacuee property. Subsequent appeals to the Deputy Custodian and a revision petition to the Custodian General were dismissed. The petitioner then approached the Supreme Court, asserting that the declaration violated her constitutional rights and requesting restoration of the property.

The Court examined whether the petitioner could maintain a writ under Article 32 on the ground that her fundamental rights under Articles 19(1)(f) and 31 had been infringed. The factual backdrop revealed that the petitioner’s husband, Kunhi Moosa Haji, had operated a hotel business in Karachi and, after returning to India, transferred his title in seven plots of land to his wife on 7 December 1953. A notice issued on 8 December 1954 required both spouses to show cause why the husband should not be declared an evacuee and why the property should be deemed evacuee property. The Court held that the petition was incompetent because no violation of a fundamental right arose. It observed that the decision of a competent authority had already determined the status of the husband as an evacuee and the nature of the property, thereby negating the existence of any right that the petitioner claimed. Unless that decision was declared a nullity or could be set aside, the petitioner could not allege an infringement of her constitutional rights. Consequently, the Court concluded that the petition under Article 32 could not proceed, applying the principle set forth in Sahibzada Saiyed Muhammed Amirabbas Abbasi v. State of Madhya Bharat, (1960) 3 SCR 138.

The petitioner’s husband, Kunhi Moosa Haji, had been engaged in a hotel business in Karachi since 1936. It was not contested that in 1947, the year when Pakistan became a separate dominion, the husband was residing in Karachi. The petitioner asserted that at the end of August 1949, her husband returned to Malabar, situated in India. The Ministry of Rehabilitation, representing respondent No 1, claimed that the husband had secretly re‑entered India in 1953 without possessing a valid passport and that he had been arrested for an alleged violation of the Foreigners Act. On 7 December 1953, Kunhi Moosa Haji is recorded to have transferred his right, title and interest in seven plots of land to his wife; the specific details of those plots were deemed unnecessary for the present consideration. The following year, on 8 December 1954, a notice was issued to both the petitioner and her husband directing them to show cause why Kunhi Moosa Haji should not be declared an evacuee and why the aforementioned plots should not be treated as evacuee property under the Administration of Evacuee Property Act, 1950 (hereinafter “the Act”). The husband did not appear to contest the notice, whereas the petitioner appeared through her counsel. By an order dated 29 January 1955, the Assistant Custodian of Evacuee Property at Tellicherry declared that Kunhi Moosa Haji was an evacuee within the meaning of section 2(d)(1) of the Act and that the seven plots constituted evacuee property pursuant to section 2(f) of the Act. The petitioner subsequently filed an appeal to the Deputy Custodian of Evacuee Property in Malabar; that appeal was dismissed by an order dated 11 July 1955, which affirmed the Assistant Custodian’s decision. Thereafter, the petitioner sought a review of the Deputy Custodian’s order under section 26(2) of the Act, but the review petition was also rejected. The petitioner then filed a revision petition before the Custodian‑General of Evacuee Property in New Delhi, challenging the Deputy Custodian’s order; this revision was dismissed by the Custodian‑General on 9 April 1956. Following that, the petitioner applied to the Ministry of Rehabilitation for an order of restoration of the property in her favour under section 16(1) of the Act, and that application was denied. The petitioner next approached the High Court of Kerala by filing a writ petition under article 226 of the Constitution; however, she withdrew that petition after learning that the Kerala High Court had, in the earlier decision of Arthur Import & Export Company, Bombay v. Collector of Customs, Cochin, held that when an order of an inferior tribunal is taken up in appeal or revision before a superior tribunal outside the court’s territorial jurisdiction, the High Court cannot issue a writ to an authority beyond its own territorial limits. Finally, on 5 March 1959, the petitioner filed the present writ petition.

The petitioner based her claim on the allegation that the fundamental rights guaranteed to her by Articles 19(1)(f) and 31 of the Constitution had been violated, and she therefore sought from this Court an appropriate writ or order that would restore to her the property that had been transferred to her by her husband. In the petition she challenged the legality of a notice dated 8 December 1954, contending that the notice did not comply with certain prescribed rules. She also disputed, on the merits, the correctness of the findings made by the relevant authorities that the late Kunhi Moosa Haji was an evacuee and that the subject property constituted evacuee property. Counsel for the petitioner argued that the defect, if any, in the notice issued under section 7 of the Act went to the very root of the jurisdiction of the subsequent orders. The Court, however, found that no issue of lack of jurisdiction arose in the present case. The petitioner had answered the notice and had not raised any jurisdictional objection at that stage. In the later proceedings before the Deputy Custodian and the Custodian General, she contested the correctness of the orders on their merits, and at no time did she canvass a jurisdictional question. Accordingly, the Court concluded that the notice did not suffer from a jurisdictional flaw that would invalidate the later orders. It was further noted that the petitioner did not raise any question concerning the constitutionality of any statute.

Having considered the foregoing, the Court observed that the petition fell within the precedent set by Sahibzada Saiyed Muhammed Amirabbas Abbasi v. State of Madhya Bharat, reported in 1958 (18 K.L.J. 198) and in 1960 [3 S.C.R. 138]. The Court reiterated that its jurisdiction under Article 32 of the Constitution is confined to the enforcement of fundamental rights enshrined in Part III. In the present matter, the competent authorities under the Act had already determined the two pivotal questions that were before them: first, that Kunhi Moosa Haji qualified as an evacuee within the meaning of section 2(d) of the Act, and second, that his property was evacuee property. The petitioner could have challenged the decision of the Custodian General in New Delhi by approaching the appropriate High Court, or she could have sought special leave to approach this Court against the decision of the Custodian General or other authorities under the Act. She chose not to pursue either avenue. Consequently, the order of the Custodian General became final. Section 28 of the Act bars any court from questioning that order through an appeal, revision, or any original suit, application, or execution proceeding. While it is true that section 28 does not affect the power of the High Court under Articles 226 and 227 of the Constitution or the power of this Court under Articles 136 and 32, the finality of the authority’s decision means that the petitioner cannot claim a violation of her fundamental rights unless the decision is a nullity or can otherwise be set aside.

The Court observed that the High Court possesses authority under Articles 226 and 227 of the Constitution, while this Court itself holds jurisdiction under Articles 136 and 32 of the Constitution. However, when a competent authority has decided that the right claimed by the petitioner does not exist, the Court found it difficult to conceive how a claim of infringement of that right could serve as a basis for a petition under Article 32, unless the decision of the competent authority were declared a nullity or could otherwise be set aside. The Court explained that as long as the authority’s decision remains in force, the petitioner is unable to allege any violation of a fundamental right. The petitioner’s alleged fundamental right, the Court noted, hinges on whether Kunhi Moosa Haji qualifies as an evacuee and whether his property is classified as evacuee property. If the determinations of the appropriate authorities on these questions have become final and cannot be treated as void or otherwise nullified, the petitioner cannot assert infringement of her fundamental rights under Articles 19(1)(f) and 31. The Court also pointed out that the relevant provisions of the Act have not been challenged before it as unconstitutional, and it would be untenable to argue that the orders issued by the authorities under the Act are null and void for lack of jurisdiction. What is before the Court, the Court said, is the contention that those orders are erroneous on their merits. The Court stressed that such a merit‑based objection should have been raised in a proper proceeding, either by filing an appeal against the order of the Custodian General with special leave of this Court or by initiating suitable proceedings in the High Court that has jurisdiction over the Custodian General. Since the petitioner did not pursue either of these avenues, the Court concluded that she cannot now be allowed to challenge the substantive correctness of the authorities’ orders under the Act through a writ petition under Article 32 on the ground that her fundamental right has been violated.

The Court then referred to the precedent set in Sahibzada Saiyed Muhammed v. State of Madhya Bharat (1). In that case, the petitioner, who had migrated to West Pakistan, applied to the High Court of Madhya Bharat for a writ of habeas corpus seeking an order that his two minor children be produced before the court on the claim that they were being wrongfully confined. After the dismissal of that application, the petitioner approached the District Judge of Ratlam under the Guardian and Wards Act for appointment as guardian of the persons and property of the minors. The District Judge rejected the petition and appointed another individual as guardian. The petitioner then appealed the District Judge’s order to the High Court, and that appeal was dismissed. Subsequently, the petitioner sought special leave to appeal to this Court, an application that was also rejected. The Court highlighted that, in that precedent, the principle was articulated that when a decision of a competent jurisdiction determines that the right alleged by a petitioner does not exist, the question of infringement of that right cannot arise, and therefore a petition under Article 32 for protection of the alleged right is not maintainable. The Court emphasized that the same principle applies regardless of whether a special leave application was filed and rejected or no application was made at all; in either circumstance the decision of the competent authority becomes final and binding on the parties. The Court clarified that its reasoning is not predicated on the existence or non‑existence of a special leave application, but on the finality of the authority’s decision.

The Court observed that the petitioner’s earlier application to this Court had been rejected, and after that rejection the petitioner filed a new application invoking Article 32 of the Constitution. In doing so, the Court referred to a previous decision reported in [1960] 3 S.C.R. 138, in which it was held that where a court of competent jurisdiction has determined that the right claimed by a petitioner does not exist, there can be no infringement of such a right, and consequently the Supreme Court cannot entertain a petition under Article 32 for protection of a right that does not exist.

The Court expressed the view that the same principle governs the present case. It noted that the fact that, in Sahibzada Saiyed Muhammed v. State of Madhya Bharat, an application for special leave was filed and subsequently rejected does not affect the operation of the principle. Whether an application is made and rejected or no application is made at all, the result is identical: the decision of the competent authority becomes final and binding on the parties to that decision.

The Court clarified that its reasoning was not based on the High Court of Kerala’s refusal to entertain the petitioner’s earlier application on the ground that the court lacked territorial jurisdiction. Instead, the Court based its decision on the fact that the authorities empowered under the Act had taken a specific decision, and that decision had become final because the petitioner did not challenge it in the appropriate court by pursuing the appropriate proceeding.

The Court further explained that as long as that decision remains in force, the petitioner cannot complain of an infringement of any fundamental right, because no such right exists for her to assert. Accordingly, the Court ordered that the petition be dismissed with costs and recorded that the petition was dismissed. The citation to the earlier authority [1960] 3 S.C.R. 138 was reiterated.