' SHAFI-UR-REHMAN. J.---The petitioner, an informer, seeks leave to appeal against the judgment of the Lahore High Court dated 1441-1979, whereby the order of the delegate of the Chief Settlement Commissioner declaring the allotment of the respondents as fraudulent has been set aside and the mistake in the percentage in the verified claim of Abdur Rashid respondent has been declared by the High Court to be clerical.
2. The respondent Abdur Rashid submitted his claim for verification. He disclosed his parentage as Mehr Ali. The verified claim received showed the parentage as Amir Ali. He received the allotment of land. The petitioner moved an application as an informer that the allotment made was bogus and fraudulent this Abdur Rashid was not the son of Amir Ali. The matter was considered by the Deputy Commissioner as delegate of the Chief Settlement Commissioner. He adopted an unusual course to repel the defence of Abdur Rashid respondent, who had taken the plea that the claim was his, that there was a clerical mistake inasmuch as the name of his father in the verified claim had been entered as Amir Ali while it should have been Mehr Ali. The delegate of the Chief Settlement Commissioner authorised one of his Extra Assistant Commissioners Revenue who was incidentally going to Lahore to go to the Central Record Office and ascertain this fact of clerical mistake. It is said that the Extra-Assistant Commissioner made a report that the name as entered in the record kept in the Central Record-Office was of Amir Ali and not Mehr Ali. On this the delegate of the Chief Settlement Commissioner declared the adjustment of the claim in favour of Abdur Rashid respondent to be fraudulent and ordered the resumption of the property. A revision petition was filed in the Lahore High Court which ultimately came up for decision before the Addl. Settlement Commissioner enjoying the powers of the Chief Settlement Commissioner who upheld that order of the delegate of the Chief Settlement Commissioner. The matter was agitated by Abdur Rashid respondent by a Constitutional Petition. It transpired that immediately after the first delegate of the Chief Settlement Commissioner had declared the allotment as fraudulent, respondent No, 1 had applied to the Central Record Office for correction of the mistake in recording the parentage in their records and an inquiry was held in the Central Record-Office and the verified and settled claim of respondent No, 1 had been requisitioned to the Central Record Office for rectification.
Notwithstanding this and instead of getting the claim rectified the revision petition was entertained and disposed of while such a requisition was pending. The learned Judge in the High Court considered the adjudication by the first delegate of the Chief Settlement Commissioner as without lawful authority on two grounds as ascertainable from the order. Firstly that the delegate of the Chief Settlement Commissioner could not authorise one of his own officers to go to the Central Record Office and ascertain the entry with regard to the parentage of respondent No, 1 there. An enquiry of this sort should have been made personally or from the custodian of the record.
Secondly, it was found that when a plea had been taken that the records in the Central Record Office contained a clerical mistake in the parentage it could not be decided without reference to the primary record which was kept in the Central Record Office. Additionally, as there was an adjudication of the Central Record Office in field the learned Judge examined an official of that office with a view to ascertain what sort of inquiry had been made and what findings had been recorded before requisitioning the varified and settled claim form for rectification. After satisfying himself he declared the order of the delegate of the Chief Settlement Commissioner as without lawful authority and upheld the adjudication of the Central Record Office treating it to be a mere clerical mistake.
3. The learned counsel for the petitioner has contended that in the first instance the determination by the delegate of the Chief Settlement Commissioner, that the allotment obtained by respondent No, 1 was fraudulent could not be said to be one without jurisdiction or lacking in lawful authority. At the most, it could be said that it was erroneous but that was hardly the ground, sufficient in Constitutional jurisdiction for interfering with it. Another ground taken up by the learned counsel for the petitioner is that the High Court was not at all competent in exercising its Constitutional jurisdiction to substitute a finding of fact and in any case, the procedure of recording evidence and calling an official from the Central Record Office should not have been resorted to. In this manner the petitioner has been deprived of a valuable right of contesting the adjudication and challenging the same in appropriate forms.
4. If the delegate of the Chief Settlement Commissioner in exercise of his powers under sections 10 and 11 of the Displaced Persons (Compensation and Rehabilition) Act ; makes his adjudication entirely dependent on the finding of a third authority without applying his own mind, without deter mining the matter in issue himself then it will be a case of abdication of jurisdiction, surrender of discretion and a failure to exercise jurisdiction possessed by him. The duty that was entrusted to the Extra-Assistant Commissioner was one of inspection of records and on the basis of his inspection and report without adverting to the primary record himself or referring to the custodian of that record an adjudication was given. This did not meet the requirements of Jaw and it had to be set aside. In revising this order the revising authority did not advert at all to this aspect of the case and did not pay heed to the requisition from the Central Record Office calling for the verified and settled claim for rectification.
5. The learned counsel for the petitioner has stated that even if the conduct of the petitioner in submitting a claim form with correct parentage be not fraudulent his continuing to enjoy the claim in the name of son Amir Ali would certainly be fraudulent. As soon as the respondent No, 1 came to know that the mistake in parentage was being treated as something more than a clerical mistake, he immediately moved the appropriate authority seeking its rectification. His claim was allowed by the appropriate authority and while such rectification was to take place he was prematurely condem and as having committed fraud. The learned Judge was justified in examining the nature of the inquiry held in the Central Record Office before recalling the verified claim because this was a case where the lawful authority of two orders was to be examined in juxtaposition. It may have been that the Central Record Office itself had not conducted the proceedings in a manner to justify the recall of the verified claim for rectification. For this reason the learned Judge in the High Court proceeded to satisfy himself that while upsettiog the order tend thereby indirectly upholding the proceedings in the Central Record Office he was not blessing an illegality. There is, therefore, no merit in this petition which is dismissed.