# K. S. Nanji if Company v. Jatashankar Dossa &- Others

- **Citation:** [1962] 1 S.C.R. 505
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-s-nanji-if-company-v-jatashankar-dossa-others-2141
- **Pages:** 7

## Headnote

Fund~ment~l. Rig_hts-Evacuee Property-Declaration becoming
final-Writ Petition in Supreme Court challenging declarationMaintainability of-Constitution of India, Art. 32.
/
. The petitioner's husband transferred certain property to the
petitioner. A notice under s. 7, Administration of Evacuee Property 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
K. S. Nanji
if.. Company
v.
Jatashankar
Dossa &- Others
Subba Rao ].
r96r
MaYch 22.
506
SUPREME COURT REPORTS
[1962]
r96r
Arts. l9(1)(f) and 31 were infringed by the orderof the Assistant
Custodian and prayed for the restoration of the property.
Aniyoth
Held, that the petition under Art. 32 was incompetent ~s no
Kunhamina Umma question of violation of any fundamental right arose in the qase .
. . v.
The decision of an authority of competent jurisdiction bad negaMim_si:y 0!
tived the existence of the right alleged by the petitioner and
Rehabilitation
unless that decision was held to be a nullity or could be other-
& Others
wise got rid of, the petitioner could not;complain of any infringement of a fundamental right. The alleged fundamental right
of lhe 1petitioner was dependent on whether her husband was an
evacuee and whether his property was evacuee property. The
decision on that question had become final and no question of
1ack of jurisdiction was involved.
Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of
Madhya Bharat, [196o]:il S.C.R. 138, applied.
ORIGINAL JURISDICTION:
Petition No. 32of19p9.
Petition under Art. 32 of the Constitution of India
for enforcement of Fundamental Rights.
V. A. Seyid Muhamad, for the petitioner.
N. S. Bindra, R. H. Dhebar and T. M. Sen, for the
respondents.
1961. March 22.
The Judgment of the Court was
delivered by
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.
The relevant facts are these. The petitioner's hus-
<
band 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,
l'
Government of India, it is averred that the petitioner's
•
•
1 S.C.R. SUPREME COURT REPORTS
507
husband surreptitiously returned to India without a
r96r
valid passport in 1953 and was arrested for an alleged
.
infringement of the provisio~s 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 petid h
h b
d
h
h
K
h
5. I(. Das ].
tioner an
er
us an
to s ow cause w y
un 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

## Text

•
'
'
I S.C.R.
SUPREME COURT REPORTS
505
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.
No other point was raised. The appeal fails and
is dismissed with costs .
Appeal dismissed.
ANIYOTH KUNHAMIN A UMMA
v.
MINISTRY OF REHABILITATION AND
OTHERS
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Fund~ment~l. Rig_hts-Evacuee Property-Declaration becoming
final-Writ Petition in Supreme Court challenging declarationMaintainability of-Constitution of India, Art. 32.
/
. The petitioner's husband transferred certain property to the
petitioner. A notice under s. 7, Administration of Evacuee Property 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
K. S. Nanji
if.. Company
v.
Jatashankar
Dossa &- Others
Subba Rao ].
r96r
MaYch 22.
506
SUPREME COURT REPORTS
[1962]
r96r
Arts. l9(1)(f) and 31 were infringed by the orderof the Assistant
Custodian and prayed for the restoration of the property.
Aniyoth
Held, that the petition under Art. 32 was incompetent ~s no
Kunhamina Umma question of violation of any fundamental right arose in the qase .
. . v.
The decision of an authority of competent jurisdiction bad negaMim_si:y 0!
tived the existence of the right alleged by the petitioner and
Rehabilitation
unless that decision was held to be a nullity or could be other-
& Others
wise got rid of, the petitioner could not;complain of any infringement of a fundamental right. The alleged fundamental right
of lhe 1petitioner was dependent on whether her husband was an
evacuee and whether his property was evacuee property. The
decision on that question had become final and no question of
1ack of jurisdiction was involved.
Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of
Madhya Bharat, [196o]:il S.C.R. 138, applied.
ORIGINAL JURISDICTION:
Petition No. 32of19p9.
Petition under Art. 32 of the Constitution of India
for enforcement of Fundamental Rights.
V. A. Seyid Muhamad, for the petitioner.
N. S. Bindra, R. H. Dhebar and T. M. Sen, for the
respondents.
1961. March 22.
The Judgment of the Court was
delivered by
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.
The relevant facts are these. The petitioner's hus-
<
band 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,
l'
Government of India, it is averred that the petitioner's
•
•
1 S.C.R. SUPREME COURT REPORTS
507
husband surreptitiously returned to India without a
r96r
valid passport in 1953 and was arrested for an alleged
.
infringement of the provisio~s 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 petid h
h b
d
h
h
K
h
5. I(. Das ].
tioner an
er
us an
to s ow cause w y
un 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
508
SUPREME COURT REPORTS
[1962)
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
Ministry 01
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.
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.
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.
•
•
1 S.C.R. SUPREME COURT REPORTS
509
can exercise jurisdiction under Art. 32 of the Constitu1961
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
510
SUPREME COURT REPORTS
[1962]
r96,
fundamental right under Arts. 19(l)(f) and 31 of the
Constitution.
Aniyoth
I<unhamina Umma
It is worthy of note that the relevant provisions of
v.
the Act have not been challenged before us as unconMinistry of
stitutional, nor can it be seriously contended before
Rehabilitation us that the orders of the appropriate authorities under
& Others
the Act can be treated as null and void for want of
s. K. Das J.
jurisdiction. What is contended before us is that the
orders were incorrect on merits. That is 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 been infringed.
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.
•
' •
I
I
•
1 S.C.R. SUPREME COURT REPORTS
511
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 Sahibv.
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
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.
We would, accordingly, dismiss the petition with
costs.
Petition dismissed .
(1) [1960] 3 S.C.R. 138.
S. J(. Das ].