' The facts as appearing on record are that Dr. Niaz Muhammad respondent No. 1 purchased some land in village Sathiana, District Hoshiarpur, from one Sardar Ahmed. The petitioner, who was a joint owner with Sardar Ahmed, filed a suit for pre-emption of the sale in favour of Dr. Niaz Muhammad and was successful in obtaining a decree in his favour on 10th April, 1946. He then paid the decretal amount on 21st May, 1946, anti thus became the owner of the property in question. No claim was submitted by the petitioner in pursuance to the Punjab Refugees (Registration of Land Claims) Act, 1949. As no mutation had been attested in favour of the petitioner his name would not be found in the special jamabandi. The special jamabandi, therefore, showed the respondent as the owner who got the said land verified in his name.
2. It was on 10th September, 1951 that through an endorsement No. 7195-R (L), the claims of persons like mehe petitioner were allowed to be dealt with by the Additional Rehabilitation Commissioner
(Land) and Additional Secretary, Resettlement and Colonies Department. The petitioner did not avail of this opportunity in time. It was in 1958 that he submitted an application under the above- said provisions of the Rehabilitation and Settlement Scheme praying that his claim of the land in question may be verified on the basis of the decree dated 10th April, 1946. The Additional Settlement and Rehabilitation commissioner did take up the matter but the filo of the case was lost during the proceedings and later allowed to he reconstructed. Finally the case came up before Mr. Aslam Hayat, Additional Settlement Commissioner (L), who, vide his order dated 11th June, 1962, accepted the application and directed that the decree be implemented by verifying the claim.
Respondent No. 1 challenged that order in a revision petition which was accepted by the Settlement Commissioner by his order dated 17th December, 1965, and the order of the Additional Settlement Commissioner in favour of the present petitioner was set aside.
3. A preliminary objection raised by the learned counsel for the respondent was that Para. e2 of the Rehabiiitation Settlement Scheme had been deleted in the year 1969 and, therefore no power was left with the Claims or the Settlement Authorities to verify the claim subsequent thereto. In support of this contention reliance was placed on Allah Ditta v. Haji Jan Muhammad etc. (1) the relevant portion of which reads as under:- "Both the contentions raised by Mien Fazie Mahmood in support of the appeal viz., that a vested right had accrued to the appellant before deletion of clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act and that the Chief Settlement Comissioner was right in rejecting the belated C. H. Form filed by the, respondent for transfer of the house, are thus found to be without any substance."
' The facts of the above case show that the Central Government under a power vesting in it under section 10 (b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had empowered the Chief Settlement Commissioner to transfer a property to an informer whose information about an illegal or fraudulent transfer to another was found correct. After the deletion of section 10 (b), the question was not of the vested right but of the existence of power to transfer. It is well settled that if a power to grant a relief is not
(1) PLD 1974 SC 113 there the right may remain umedressed. Precisely that was of the situation in that case where the competent authority had been denuded of its power to grant relief. The distinguishing feature in the case in hand is that the power to invite claim and decide the same had been given under the Penis Refugees (Registration of Land Claims) Act V of 1949. This Act had no been repealed. The provisions in Para. 52 was made only to verify claims of a different type which could not be verified from the revenue record. It is to be noted here that the only method of verification of claims from the 'agreed area? Was by comparing it with the special jamabandis receive from India. This, however, did not cater for such cases where mutations could not A be attested Of certain transactions due to the disturbances. It was for this reason that Para. 52 was incorporated in the Rehabilitation Settlement Scheme. It only enables an authority to receive and verify a claim which was not covered by the special jamabandis. Therefore, once the claim had been submitted before the deletion of Para. 52, the claim authorities are bound to consider and decide the same even after the deletion of Para. 52 in accordance with law. This provision was made on 10th September, 1951.And it remained included in the Scheme till tae year 1959. It is conceivable that out of the inhume! Able applications made in the meanwhile some of them remained undecided. As the power to verify had not been taken away specifically and retrospectively it cannot be said that the officer competent to verify a claim lost his power conferred under this paragraph to deal with a claim of that matter. The contention of the petitioner I also hit by the provisions of section 6 of the General Clauses Act. These were the pending proceedings and could not have been struck down just because; a particular provision in the subordinate legislation had been omitted.
4. In order to appreciate the order of the Settlement, Commissioner, his observations are summarised below:-
(a) The civil Court judgment had not been produced along with the first. Application in 1958, which may have been dismissed.
(b) Original case was lost and the file was reconstructed under the orders of the Additional Rehabilitation Commissioner.
(c) That the area as claimed in the application did not taLy with the decree and that the plea of consolidation raised by the petitioner could not justify a difference of 16 kanals and 11 marlas.
(d) That the decree had not been executed and the possession not delivered with the result that the petitioner had never been seized of any right in the property in question,
(e) That there is no proof if the sale price had been received by the respondent.
(1) The counsel for the petitioner could not meet the objection of the respondents about the admissibility of the decree in evidence without a proper endorsement from the High Commission of Pakistan in India.
5. I will now deal with each and every finding separately. It will be noted that the Settlement Commissioner had not given any finding with regard to the elect of his observations given at (a) a ad (b) above. He should have considered the effect of the failure of the petitioner to produce the civil Court judgment at the relevant time and non-availability of any orders on recap that might have been there. Similarly there is nothing on the record to show as to which of the original documents, if so had been lost and what is their effect on the merits of the case in question. As regards his observation at serial No. (c) above, the Settlement Commissioner ran in error if he ignored the claim of the petitioners on that ground. According to paragraph 52 of the Rehabilitation Settlement Scheme, the Settlement Commissioner is obliged to verify the claim in accordance with the decree and the judgment if the same are found to his satisfaction. In such a situation all other evidence would have to be shut out, unless some change had been brought about by subsequent events, as the alleged consolidation of holdings in the present case.
6. The finding of the Settlement Commissioner at Serial No. (d) above is also illegal. Ownership under a pre-emption decree is conferred immediately on pre-emptor's depositing the decretal amount in Court within the period specified in the judgment. The contents of Order XX, rule 14 (1), C. P. C. Which are conclusive on the point read as under:- "14.-(1) Where the Court decrees a claim to pre-emption in respect of a particular sate of property and the purchase-money has not been paid into Court, the decree shall- (a)specify a day on or before which the purchase-money shall be so paid, and (b)direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that if the purchase-money and the costs (if any) are not so paid the suit shall be dismissed with costs."
' The same question was also considered in Kisan Dewaloo Mall v. Ganga Bat and others (1) and held that the execution of the pre-emption decree is only to secure possession and not to complete the title. Therefore, in case, the Settlement Commissioner came to the conclusion that the petitioner had paid the entire decretal amount, in accordance with the judgment, he should not have rejected the petitioners' claim on the reasons given by him.
7. Similarly, non-receipt of the decretal amount by the respondent would be of no consequence at all so far as the title of the petitioner is concerned 33is finding at serial No. (e) is, therefore, contrary to law. As regards his finding at Serial No. (f) above, I suffice it to say that the Settlement Commissioner did not attach due importance to the question involved therein and dealt with it cursorily. It is correct that the aimisliblity of such dozu mats, could be judged in light of section 78
(6) of the Evidence Act, but section 86 of that Act also provides another alternative mode of proof.
Further, the quasi-judicial Tribunals, as in the case in hand, are not bound to follow the Evidence Act exclusively. It was satisfaction of the Settlement Commissioner that matters as held in Afst.
Bhano and another v. Mlan .4. Al. Saeed and others (2) by their Lordships of the Supreme Court. The relevant portion at page 301 is reproduced below for reference:- "The last question urged is that the finding of fraud is vitiated by the admission of inadmissible evidence namely, an Electoral Roll produced from India. The Settlement authorities who are making enquiries or hearing appeals under the Act, are civil Courts under the Code of Civil Procedure for several purposes but it does not follow that all the
(1) A R 1939 Nag. 279 (2) 19S9 SCMR 249 provisions of the Evidence Act also necessarily apply to proceedings before them. Under section 10 of the Displaced Persons (Land Settlement) Act, 1958, in particular, it is the Wei Settlement Commissioner who has to be satisfied that the allotment was obtained by fraud or by misrepresentation. It is nowhere provided that such satisfaction must be based upon evidence which is strictly admissible under the Evidence Act."
8. The above discussion would show that the Settlement Commissioner did not apply his mind to the ease before him. The impugned order is therefore, declared to be without lawful authority and of no legal effect. This case shall now go back to him or to any other officer authorised under the law to consider and decide such cases who shall decide the same afresh after hearing the parties and providing them with an adequate opportunity to lay their case before him.
9. In view of the fact that the case involved a difficult question of law there shall be no order as to costs.