FATIMA BI & ANR. versus DEPUTY CUSTODIAN GENERAL EVACUEE PROPERTY, NEW DELHI

Citation: [1973] 3 S.C.R. 766 · Decided: 27-03-1973 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed

Judgment (excerpt)

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 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 Pakis-
tan 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. Custo-
dian 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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B 
c 
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E 
F 
G 
H 
A 
B 
c 
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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 pur-
poses 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. Qamr11d-
di11, 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 b

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