Case Note & Summary
The dispute concerned certain property in Delhi claimed by the first appellant as owner. The first appellant was the wife of the second appellant. Under the Administration of Evacuee Property Act, 1950, the Assistant Custodian passed an ex-parte order dated 25 November 1953 declaring the first appellant an evacuee and the property evacuee property. On appeal, that ex-parte order was set aside and the Assistant Custodian was directed to decide the matter on merits. By an order dated 11 January 1956, the Assistant Custodian held that the first appellant was a non-evacuee owner of the property. Nearly eight years later, on 29 April 1964, the Deputy Custodian General issued a notice under Section 27 of the Act to show cause why the 1956 order should not be revised, alleging that it had been obtained by fraud and was illegal. The grounds stated that the first appellant had left for Pakistan in 1947, that it was fraudulently averred she was a non-evacuee residing at Calcutta, and that forged documents and perjured evidence had been tendered. The first appellant applied for cancellation of the notice, but by order dated 1 February 1965, the Deputy Custodian General rejected the objections and directed the authorised Deputy Custodian to expedite recording of evidence and submission of report. The appellants then filed a writ petition under Article 226 of the Constitution in the Delhi High Court seeking quashing of the two orders dated 29 April 1964 and 1 February 1965. They raised three principal contentions: that the 1956 order had become final under Section 28; that fresh proceedings were barred under Section 7A; and that proceedings under Section 27 were barred by limitation. The High Court rejected all contentions and dismissed the writ petition on 21 November 1969. On appeal by special leave, the Supreme Court affirmed the High Court. The court held that Section 28 did not bar revision under Section 27 because both sections appeared in Chapter V and the revision power was expressly provided. It held that Section 7A did not bar the notice because that section prohibited declarations of evacuee property on or after 7 May 1954, but its proviso preserved proceedings pending on that date; since the ex-parte order had been set aside and proceedings were pending on 7 May 1954, the bar did not apply. It further held that Section 27 contained no limitation period, so the delay of several years did not invalidate the revisional notice. On the additional argument that the 1964 order was not passed by the Custodian General, the court referred to Sections 2(b), 2(c) and 6(2) and concluded that the Deputy Custodian General acted under the general superintendence and control of the Custodian General and the order was validly made. Observing that the authorities had jurisdiction to call for records and satisfy themselves as to legality or propriety, and that fraud is a question of fact open to the first appellant to rebut, the court held that certiorari would not lie because there was neither excess of jurisdiction nor usurpation. Accordingly, the appeal was dismissed with each party bearing its own costs.
Headnote
A) Administration of Evacuee Property Act, 1950 - Revision and Finality - Section 27 and Section 28 - Revisional power not barred by finality - The order dated 11 January 1956 declaring the first appellant a non-evacuee owner was challenged by a notice under Section 27 on the ground of fraud and illegality. Both Sections 27 and 28 occur in Chapter V of the Act; therefore the expressly provided revisional power under Section 27 was not taken away by the finality clause of Section 28. Held that the order dated 11 January 1956 was not final and could be reopened (Para 768E). B) Administration of Evacuee Property Act, 1950 - Declaration of Evacuee Property - Section 7A - Pending proceedings exception - Section 7A bars declaration of property as evacuee on or after 7 May 1954, but the proviso excludes property in respect of which proceedings were pending on that date. The ex-parte order dated 25 November 1953 had been set aside, leaving the proceedings pending on 7 May 1954, and therefore Section 7A did not bar the notice under Section 27. Held that fresh proceedings were not barred by Section 7A (Paras 768F-G). C) Administration of Evacuee Property Act, 1950 - Revision - Section 27 - No limitation period - The notice under Section 27 was issued several years after the 11 January 1956 order, but Section 27 did not prescribe any limitation for exercising revisional power. The court held that the power under Section 27 is not curtailed by any limitation of time, so the proceedings were not time-barred (Paras 768G-769B). D) Administration of Evacuee Property Act, 1950 - Jurisdiction and Certiorari - Sections 2(b), 2(c), 6(2) and 27 - Valid exercise of revisional jurisdiction - The order dated 29 April 1964 was validly made for the Custodian General, as the Deputy Custodian General acted under the general superintendence and control of the Custodian General. The authorities had power to call for records to satisfy legality or propriety, and since the order was questioned on the ground of fraud, which is a question of fact, the first appellant could establish propriety in the revisional proceedings. Held that certiorari did not lie because the authorities had jurisdiction and there was neither excess of jurisdiction nor usurpation (Para 769D-E).
Issue of Consideration
Whether the order dated 11 January 1956 was final under Section 28 and could not be reopened; whether fresh proceedings were barred under Section 7A; whether proceedings under Section 27 were barred by limitation; whether the order dated 29 April 1964 was validly made by Custodian General
Final Decision
The Supreme Court dismissed the appeal, affirming the High Court's dismissal of the writ petition. It held that the order dated 11-1-1956 was not final and could be reopened under Section 27; Section 7A did not bar the notice because proceedings were pending on 7-5-1954; Section 27 was not subject to limitation; the order dated 29-4-1964 was validly made; and certiorari would not lie as authorities had jurisdiction. Each party was directed to pay and bear its own costs.
Law Points
- Section 28 finality does not exclude revisional power under Section 27
- Section 7A bar does not apply to proceedings pending on 7 May 1954
- Section 27 revision is not subject to any limitation
- Custodian General may act through Deputy Custodian General
- Certiorari will not lie where authority has jurisdiction
- Fraud is a question of fact
