- (1.)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 petitioner can complain of an infringement of the fundamental rights guaranteed to her under Arts. 19 (1) (f) and 31 of the Constitution.
(2.)The relevant facts are these. The petitioner's husband 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, Government of India, it is averred that the petitioner's husband surreptitiously returned to India without a valid passport in 1953 and was arrested for an alleged infringement of the provisions of the Foreigners Act. On December 7, 1953, Kunhi Moosa Haji transferred in favour of his wife his right, title and interest in seven plots of land, details whereof are not necessary for our purpose. On December 8, 1954, about a year after the transfer, a notice was issued to both the petitioner and her husband to show cause why Kunhi 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, Tellicherry, declared that Kunhi Moosa Haji was an evacuee under the provision of S. 2 (d) (f) 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 Evancuee 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 Custodian-General 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 properly 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 Arthur Import and Export Co. Bombay v. Collector of Customs, Cochin, 1958-18 Ker LJ 198 : (AIR 1958 Kerala 357), that when an order of an inferior tribunal is carried up in appeal or revision to a superior tribunal outside the court's jurisdiction and the superior tribunal passes an order confirming, modifying or reversing the order, the High Court cannot issue a writ to an authority outside its territorial jurisdiction. Then, on 5-3-1959, the petitioner filed the present writ petition and the basis of her contentions is that the fundamental rights guaranteed to her under Arts. 19 (1) (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.
(3.)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 properly, 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 subsequent orders. We do not, however think that any question of lack of jurisdication is invloved 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.