' In this writ petition the petitioner challenges the order dated 27-7-1976 of Commissioner, Sargodha Division, validating a certificate already issued in favour of respondents Nos. 3 to 5.
2. The petitioner is an owner of land in village Chitta Watta Dakhali Ghundi in Tehsil Mianwali. On 11- 1-1971 respondents Nos. 3 to 5 who apparently were non-owners purchased 491 kanals and 6 marlas of land in the said village. The petitioner filed a civil suit to pre-empt the sale. The said suit is still pending in the Court of the Senior Civil Judge, Mianwali.
3. In the civil suit one of the defences taken by respondents Nos. 3 to 5 was that they were displaced persons on account of the construction of Chashma Barrage and as such the sale was exempt from pre-emption by virtue of a notification issued by the Board of Revenue under section 8 of the Punjab Pre-emption Act. In support of their defence they produced a certificate issued on 25-4-1974 by the Commissioner of Sz,rgodha Division.
4. To challenge the validity of their certificate the petitioner initiated proceedings before the Commissioner as well as filed a writ petition in this Court. The Commissioner forwarded the application of the petitioner to the Deputy Commissioner and asked him to re-examine the case and to recall and withhold the certificate till he was satisfied that respondents Nos. 3 to 5 had inherited the land of their grandfather. Respondents Nos. 3 to 5 challenged the order of the Commissioner before the Board of Revenue. The Board dismissed their revision petition with the observations that the Commissioner should examine the full facts after holding an inquiry. With the withdrawal of the certificate the writ petition became infructuous, consequently, it was dismissed on the ground that it was premature as the departmental authorities were still seized of the matter.
5. The Deputy Commissioner entrusted the inquiry to the Additional Deputy Commissioner. Both parties led their evidence during the course of the inquiry but subsequently the petitioner withdrew from the proceedings on the ground that he wanted the inquiry to be held by another officer.
Nevertheless, the Additional Deputy Commissioner continued with the inquiry and held that respondents Nos. 3 to 5 were owners of ten marlas of land in the abadi of village Bullokhel which had acquired for the purpose of construction of the Chashma Barrage.
6. After receipt of the report of the Additional Deputy Commissioner, the Commissioner heard all the parties and then made the impugned order. The relevant extract from the said order reads as follows : "I have accordingly considered the arguments present on behalf of both the parties and have also gone through the relevant record. I have been told that Mueens take Mst. Saidan have been treated as displaced persons in all villages affected by Chashma Barrage. Since the certificates have been issued to Mueens as displaced persons the issuance of certificate to Mst. Kishwar Sultana etc. That is, respondents Nos. 3 to 5) was perfectly in order."
7. In support of this petition it is submitted that the order made by the Commissioner was invalid for the reason that respondents Nos. 3 to 5 were neither affected by the construction of the Chashma Barrage nor were they displaced persons within the meaning of notification of exemption issued by the Board of Revenue under section 8 of the Pre-emption Act.
8. It is not disputed before me that the claims of respondents Nos. 3 to 5 as "affected" and "displaced persons" is based upon acquisition by WAPDA of ten marlas of their land situate in village Bullokhel which was required for setting up a pond area for the Chashma Barrage. This land was initially in the possession of one Mst. Said Khatoon who was a Mueen in the said village. In 1959 she sold it to one Sultan Mahmood who, in turn, on 30-11-1970, alienated it in favour of respondents Nos. 3 to 5. The petitioner contended that Mst. Said Khatoon was not the owner of the said land but that she merely occupied it in her capacity as a Mueen of the village without enjoying any proprietary rights therein further, the sale allegedly made by Sultan Mahmood in favour of respondents Nos. 3 to .5 was a mere sham transaction and that it had been fabricated just in order to create a defence in the pre-emption suit. I am afraid I cannot go into these matters as they relate to evidence. There are findings by the Additional Deputy Commissioner based on the evidence before him that the land measuring 10 marlas was in fact purchased by respondents Nos.
3 to 5, that they enjoyed ownership rights in it and that it was acquired for the construction of the Chashma Barrage. These findings rested as they did on appreciation of evidence were well within his competence and I can see no justification for interfering! With them.
9. The next contention on behalf of the petitioner is that even if it be assumed that some land of respondents Nos. 3 to 5 had been acquired by the WAPDA the Commissioner could still not grant certificate to them unless he also found that they had been displaced from Mianwal District by the construction of the Chashma Barrage ; in this case he had recorded no such finding but had chosen to validate the certificate on the analogy of the mueen of the District who had been treated as displaced person. It was further submitted that the analogy of the mueen was irrelevant in the context of respondents Nos. 3 to 5 who never resided in Bullokhel, did not own any agricultural land of their own in that village and had purchased 10 marlas in the abadi area long after the notification under section 6 of the Land Acquisition Act for its acquisition had been issued and only before the whole village became submerged under water.
10. To appreciate the contention of the petitioner it will be of advantage to reproduce the notification of exemption issued by the Board of Revenue under section 8 of the Punjab Pre- emption Act. It reads as follows "In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913 (Punjab Act I of 1913), the Board of Revenue, Punjab, is pleased to declare that for a period of three years commencing from the date of issue of this notification, no right of pre-emption shall exist with respect to-
(a) agricultural land, not exceeding fifty acres in canal irrigated area, or one hundred acres in an area other than canal irrigated area ; or
(b) other immovable property the market value of which does not exceed Rs, 10,000 situated in Mianwali District or Khushab Tehsil of Sargodha District, in favour of a person displaced from the Mianwali District by the construction of Chashma Barrage, and certified to be so affected by the Commissioner, Sargodha Division.
(2) Nothing in this notification shall be deemed to affect decrees obtained by the pre-emptors prior to the date of its issue."
' The operation of this notification is regulated by the provisions of the Punjab Pre-eruption (Removal of Doubts) Ordinance, 1972. Section 2 of this Ordinance states that the notification shall not apply to any sale of agricultural land or other immovable property unless,-
(a) such sale is in respect of the agricultural land or other immovable property described in the Schedule to the Ordinance and is in favour of a person displaced from Mianwali District by the construction of Chashma Barrage ; and
(b) it is certified by the Commissioner of Sargodha Division that such person has been so affected by the construction of the said Barrage.
' The land described in the Schedule is the same as has been mentioned in the notification.
11. A perusal of the notification and section 2 of the Ordinance shows that the benefits of the exemption does not extend to every person whose land has been acquired for the construction of the Chashma Barrage. In fact neither the notification nor section 2, ibid. Refers to the acquisition of land at all ; on the other hand it appears that the only class of persons whose sales have been protected from the exercise of the right of pre-emption is that which has been displaced from the Mianwali District by the construction of the said Barrage. The word 'displaced' has not been defined either in the notification or in the Ordinance. It is therefore to be understood in its ordinary sense.
The dictionary meanings of this word are to be put out of or dislodged from the usual or proper place. I should therefore think that the immunity from the exercise of the right of pre-emption has been created only in respect of those persons who have been put out of or dislodged from the usual or proper place by the construction of the Chashma Barrage irrespective of the fact whether their land had been acquired or not for the said project.
12. Both the notification and section 2, ibid., create a precondition for the enjoyment of the exemption. The precondition is that the person claiming the exemption must have been issued a certificate by the Commissioner of Sargodha Division in his favour. Now, what is the Commissioner to certify. In this regard the words 'to be so affected' as occurring in the notification and 'such person' and 'so affected' as appearing in section 2, furnish the clue. Reading these words in their own context it seems that the certification is to the effect that the person in respect of whom it is being made is one who has been displaced by the construction of the Barrage. Quite obviously, the Commissioner cannot issue the certificate unless, there is material before him which is capable of supporting the declaration he is required to make therein.
13. Neither the Commissioner nor the Additional Deputy Commissioner who held the inquiry found as a matter of fact that respondents Nos. 3 to 5 were actually displaced by the acquisition of their land. The relevant portion of the order of the Additional Deputy Commissioner reads "The petitioners (that is, respondents Nos. 3 to 5) owned residential plots in the village and not agricultural land. Since the law does not restrict the scope of displaced persons, any person whose property has been acquired for the construction of Chashma Barrage, should be 'deemed' to be an affected person."
It is apparent that the Additional Deputy Commissioner misconstrued the notification as well as the provisions of the Ordinance. If the intention had been to extend the benefit of exemption to all persons those land had been acquired the notification and the Ordinance would have clearly stated so but here, as explained above, the benefit of exemption has been granted only to those persons who have been displaced by the construction of the Chashma Barrage. Although acquisition of land is a piece of evidence for determining whether a person has been 'displaced or not but this by itself is entirely insufficient to give him the status of a displaced person. As ' already stated a displaced person is one' who has been pill out of or dislodged from his usual or proper place on account of certain external compelling circumstances. However that may be, the question whether a particular person has been displaced or not is one of fact and there is hardly any justification for extending the meaning of the said expression by creating legal fiction as the Additional Deputy Commissioner has done in this case.
14. The order of the Commissioner has been reproduced above. It is clear from this order that he, too, did not inquire whether respondents Nos. 3 to 5 were in fact displaced by the acquisition of 10 marlas of their land but chose to validate the certificate by merely equating them with the mueen in his District who had been treated as displaced persons. On the other hand, as rightly pointed out by the learned counsel for the petitioner, he failed to take into consideration some material and important factors which prima facie indicated that the case of respondents Nos. 3 to 5 could not be assimilated to that of the mueens. For instance he omitted to notice that respondents Nos. 3 to 5 had never lived in Bullokhel and had chosen to purchase 10 marlas of land in the village abadi many years after the notification for its acquisition had been issued under section 6 of the Land Acquisition Act and a mere six months before the water was diverted to the village. Thus, prima facie what they had in substance purchased was not the land but the right to receive compensations. These circumstances had an important bearing on the accuracy of the declaration which the Commissioner was required to make in the certificate and I should think that his failure to take them into account furnishes a proper ground for interference by this Court.
15. The learned counsel appearing for respondents Nos. 3 to 5 contended that in view of the prohibition created by section 2 of the Ordinance they could not take advantage of the notification in the civil suit unless, independent of the declaration made by the Commissioner in the certificate, they also proved by evidence aliunde that they fulfilled the qualifications laid down in the clause
(a) of that section, that is, that they were persons displaced from Mianwali District by the construction of the Chashma Barrage. He pointed out that the trial Court had already struck an issue to that effect and that the petitioner would have ample opportunity to question the status of respondents Nos. 3 to 5 during the proceedings of the civil suit. Consequently, he submitted, this writ petition raising the came issue which was to be decided by the civil Court was an exercise in futility.
16. The construction which the learned counsel has placed on the provisions of section 2, ibid, no doubts appears to be correct. However, that does not mean that the petitioner should not be permitted to question the validity of the certificate which has been issued by the Commissioner without taking into account all the relevant facts just because the status of respondents Nos. 3 to 5 will again come up for consideration before the civil Court. It is also to be noticed that the petitioner would be in a better position to defeat the plea of exemption taken by respondents Nos. 3 to 5 in the civil suit if he can show that the certificate issued by the Commissioner was illegal or did not exist in the eye of law. I should therefore think that the petitioner cannot be denied relief in this writ petition just because in the civil suit an identical issue will arise for decision.
17. For the reasons stated above I quash the order of the Commissioner dated 27-7-1976. It will be open to Commissioner to le-examine the question of issuing a certificate after examining all the relevant facts.