# FATIMA BI & ANR v. DEPUTY CUSTODIAN GENERAL EVACUEE PROPERTY. NEW DELHI

- **Citation:** [1973] 3 S.C.R. 766
- **Court:** Supreme Court of India
- **Decided:** 1973-03-27
- **Case number:** Civil Appeal No. 1279 of 1970
- **Bench:** A. N. Ray, D. G. Palekar, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fatima-bi-anr-v-deputy-custodian-general-evacuee-property-new-delhi-5937
- **Pages:** 4

## Headnote

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 ille~a/it}'-Ortler.r ,\·ought to be revised whetl~er
final under
Section 28-Fresh Proceedi11J(s whether barred under section 1A or under
Section 21-0rder of Dy.
Custodic .. n
General
held
valiJly 1nadeCcrtiorari 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 submi~ion 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 contai~ed m the sec~on shall apply to any property in respect of
which proceedJJlgs are pending on 7-5-54.
When the
•x·parle
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
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FATIMA Bl v. DY, CUSTODIAN GENERAL (Ray,/.)·
767
(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 th~t the.
first appellant obtained the order f~au<lulently, _and fraud 1s a q~esuon ol
fact it is open to the first appellant to establish that she obta1ne<l
the
ord~r properly.
Certiorari will not He as the authorities have jurisdiction
to issue the notice. (7690-E]

## Text

766
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 ille~a/it}'-Ortler.r ,\·ought to be revised whetl~er
final under
Section 28-Fresh Proceedi11J(s whether barred under section 1A or under
Section 21-0rder of Dy.
Custodic .. n
General
held
valiJly 1nadeCcrtiorari 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 submi~ion 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 contai~ed m the sec~on shall apply to any property in respect of
which proceedJJlgs are pending on 7-5-54.
When the
•x·parle
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
,\
B
c
[)
E
F
G
H
A
B
c
'
0
E
F
G
H
FATIMA Bl v. DY, CUSTODIAN GENERAL (Ray,/.)·
767
(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 th~t the.
first appellant obtained the order f~au<lulently, _and fraud 1s a q~esuon ol
fact it is open to the first appellant to establish that she obta1ne<l
the
ord~r 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 thes~d 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
768
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.
A
B
c
FATIMA Bl v. DY, CUSTODIAN GENERAL (Ray, J.)
76Q
An_additional contention .was advanced, viz., that the order
dated 29 April, 1964 was not passed by the Cu~odian 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 purD , 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.
F
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,