FATIMA BI Vs. DEPUTI CUSTODIAN

JUDGEMENT

(1.) This is an appeal under clause 10 of Letters Patent by Mrs. Fatima Bi and her husband Mohd. Sayeed against the order dated May 27, 1966, of the learned single Judge who dismissed the appellant's petition 'under Articles 226 and 227 of the Constitution of India. It came up for hearing before the Division Bench consisting of my Lord the Chief Justice (I.D. Dua, CJ. as he then was) and my learned brother S. Rangarajan, J. As it was considered desirable to re-examine two bench decisions of the Punjab High Court viz, Jagatjit Distilling & Allied Industries Ltd. V. Deputy Custodian General India, and others. (A.I.R. 1963 Punjab 494) (1) and Custodian of Evacuee Property V. Jamil-ur-Rehman (L.P.A. No. 92- D of 1961 decided on January 13, 1965) (2), the appeal was directed to be placed for hearing before a larger bench. It was under these circumstances that this bench was constituted.

(2.) Briefly stated the facts of the case are that the appellant Mrs. Fatima Bi, the owner of Property No. 105312283, Ward No. 111 situate in Gali Hinga Beg, Phatak Habash Khan, Delhi, claims to have been residing in India after the Partition of the country in the year 1947. Sometime before November 25, 1963, a notice under Section 7(1) of the Administration of Evacuee Property Act, 1950, hereinafter referred to as "the Act", was issued to her. As personal service was not affected, service by affixation was considered sufficient. It was stated that she had migrated to Pakistan. By an ex-parte order dated November 25, 1953, the Assistant Custodian (Judicial) declared her evacuee and the aboveproperty evacuee property. On May 25, 1955, she filed an appeal against the said ex-parte order, which was accepted and the ex-parte order was set aside, by the Authorised Deputy Custodian, who by his order dated June 28, 1955, remanded the case to the Assistant Custodian (Judicial) to decide on merits after hearing the appellant. By an order dated January 11, 1956, the Assistant Custodian (Judicial) held that as the appellant, Mrs. Fatima Bi was a non-evacuee owner of the said property, the notice issued earlier under Section 7 was discharged.

(3.) It appears that on some complaint being made. the local police investigated her case and moved the Custodian General for the grant of sanction under Section 195 Criminal Procedure Code . for prosecuting Mrs. Fatima Bi and others for having played fraud and deceit on the Department and for having obtained release orders or her property by suppressing real facts of her migration to Pakistan in 1947. A photostat copy of her application dated August 14, 1959, for the grant of visa on the basis of a Pakistani Passport, purporting to have been signed by her. with her photograph pasted thereon, another photostat copy of which has been placed on this record also, was filed before the Custodian General, wherein Mrs. Fatima Bi had declared that she had migrated to Pakistan on or about November 10, 1947, On April 29, 1964, a notice was issued to the appellant, Fatima Bi, by the Custodian General of Evacuee Property informing her that he intended to suo moto revise under Section 27 of the Act, the order dated January II, 1956, passed by the Assistant Custodian (Judicial) with a view to examine the propriety and legality of the said order. She was asked to show cause as to why the said order should not be revised and proper orders passed on the following amongst other grounds : -