P.D. Sharma, J. - (1.) THIS writ petition under Articles 226 and 227 of the Constitution has arisen out of the following circumstances: - Property Nos. 747 to 775 -B -VII situate at Ludhiana was owned by certain Muslim evacuees. They mortgaged the same in favour of Brij Lal Manmohan Lal. Messrs Naunihal Thakar Dass Petitioners through Parshotam Singh partner purchased the above mortgagee rights. Parshotam Singh and other partners of the Petitioner firm are displaced persons from West Pakistan. The Petitioners filed a claim under the provisions of the Evacuee Interest (Separation) Act, 1951, (hereinafter referred to as the Act) before the Competent Officer, Ludhiana Respondent No. 2, who after due enquiries ordered on 25th August, 1958 (copy annexure 'A') that the mortgaged property be transferred to them on payment of Rs. 2,030/10/ - (difference between the assessed price and mortgage money) in cash. Messrs Mehar Singh Nanak Chand Respondent No. 3 filed an appeal against the order of the Competent Officer before the Appellate Officer Respondent No. 1. The appeal was dismissed on 12th January, 1959, (copy annexure 'B') but the Appellate Officer while doing so -observed that Respondent No. 3 could move the Competent Officer for review of his order. In his opinion the Petitioners not being the sitting allottees were not entitled to the transfer of the property on payment of Rs. 2,030/10/ - and as such the order of the Competent Officer was bad in law. The appeal was dismissed on the short ground that Respondent No. 3 had no locus standi to institute it. Respondent No. 3 in pursuance of the directions of the Appellate Officer applied to the Competent Officer for review of his order dated 25th August, 1958. The Competent Officer reviewed the order and held that the property could not have been transferred to the Petitioners on payment of a specified sum. Copy of his order is annexure 'C'. The Petitioners and Respondent No. 3 both felt aggrieved from this order of the Competent Officer and filed two separate appeals before the Appellate Officer which were dismissed (copy annexure 'D'). The Petitioners have prayed in this petition for quashing the order of the Appellate Officer dated 14th September, 1960, (copy annexure 'D') and of the Competent Officer Respondent No. 2 dated 8th July, 1960, (copy annexure 'C') for the reason that Respondent No. 2 was not legally justified in reviewing his predecessor's order dated 25th August, 1958, (copy annexure 'A') since it had become final and the mere fact he had been advised by the Appellate Officer Respondent No. 1 to do so did not give him any jurisdiction in the matter which was not vested under the law. They further maintained that the Competent Officer could at the most while exercising his powers under section 16 of the Act correct clerical or arithmetical mistakes in his order or errors arising therein from any accidental slip or omission either of his own motion or on an application received in this behalf from any of the parties. It was further urged that Respondent No 3 not being a party to the original proceedings before the Competent Officer had no locus standi to file the review application. The Competent Officer thus is said to have exceeded the powers so vested in him by law, therefore, the order passed by him in review was unjust, illegal, ultra vires and without any jurisdiction.
(2.) MESSRS Mehar Singh Nanak Chand Respondent No. 3 in their written statement maintained that the Petitioners were not the sitting allottees and so were not entitled to get the property in dispute on payment of Rs. 2,030/10/ - only and that the Competent Officer was justified in reviewing the order of his predecessor under the law. They also maintained that Parshotam Singh through whom the Petitioner firm had filed the present writ petition had already moved the Competent Officer for transfer of the property as a sitting allottee and the next date fixed in those proceedings was 31st May, 1961, and that suppression of this important fact in the writ petition was dishonest and disentitled them to the relief claimed therein. They finally urged that no injustice had been occasioned to the Petitioners by the review order and so they were not entitled to get any relief in the present proceedings. Parshotam Singh on behalf of the Petitioners in reply to the written statement of Respondent No. 3 admitted that he had applied to the Competent Officer for transfer of a part of the property in dispute No. 750 as a sitting allottee in his personal capacity and that in fact he had already been given the machinery installed therein by the Central Government as an acquired evacuee property. But he added that this had no concern with the Petitioner firm which had a separate legal entity. He further conceded that the Petitioner firm had been allotted industrial establishment No. 42 before he obtained on lease the property in dispute.
(3.) THE learned Counsel for Respondent No. 3 in support of his contention that the mortgaged property in dispute could in no account be transferred to the Petitioners on payment of a specified amount relied on Section 10 of the Act and Rule 11 -B(e) of the Evacuee Interest (Separation) Rules, 1951, framed under Section 23 of the Act and published in the Gazette of India, dated 7th September, 1957, the relevant parts of which run as: - 10. Notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority, the competent officer may, subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purpose of separating the interest of the evacuees from those of the claimants in any composite property, and in particular may, (a) in the case of any claim of a co -sharer or partner - (b) in the case of any claim of a mortgagor or a morgagee - (i) pay to the Custodian or the claimant the amount payable under the mortgage debt and redeem the mortgaged property ; or (ii) sell the mortgaged property for satisfaction of the mortgage debt and distribute the sale proceeds thereof ; or (iii) partition the property between the mortgagor and the mortgagee having regard to the share to which the mortgagee would be entitled in lieu of his claim ; (c) adopt a combination of all or some of the aforesaid measures ; 11 -B. A competent officer having regard to the provisions of section 10 of the Act shall adopt any of the following measures in the order of precedence set down below: (e) where the evacuee's share in the composite property is valued at Rs. 10,000/ - or less. (i) if the non -evacuee claimant is a mortgagee with or without possession, offer the property at the assessed price to the sitting allottee, if a displaced person, subject to his paying the mortgagee the amount determined by the competent officer. (ii) failing (i) above sell the property by auction and distribute the sale -proceeds thereof. A careful perusal of Clause (b) of the Section 10 of the Act and the above rules makes it abundantly clear that the Petitioners could not claim the mortgaged property on payment of the difference between the assessed price and the mortgage money simply because they were mortgagees and in possession thereof. They in addition had to be sitting allottees to claim the mortgaged property simply on payment of the aforesaid amount. Their learned Counsel, however, relied on Clause (c) of Section 10 of the Act which provides that the Competent Officer could adopt a combination of all or some of the aforesaid meausures, but this clause in my opinion was not applicable to the case of a mortgagor, a mortgagee, a co -sharer or a partner, and my reason for this is that if the Legislature had meant that the Competent Officer while disposing of the claim of a co -sharer, partner, mortgagor, or mortgagee could have a recourse to all the modes mentioned in clauses fa) and (b), then there would have been no occasion for prescribing different modes for satisfying the claim of a co -sharer or partner and mortgagor or a mortgagee. The learned Appellate Officer was correct in observing that Clause (c) of Section 10 of the Act was meant to cover the cases notified by the Central Government for inclusion in the definition of composite properties under Section 2(d) (iv) of the Act. The learned Counsel for the Petitioners further maintained that explanation (i) to the proviso under rule 11 -B enabled the Competent Officer to sell the property at the assessed price. The proviso and the explanation are in the following terms Provided that if the non -evacuee claimant or the Custodian insists upon partition or some method other than those mentioned above, the Competent Officer shall take their wishes into account before passing orders. Explanation -(i) Sale at the assessed price under Clauses (b), (c) and (e) above shall be permissible only in those cases where the property is sold either to the non -evacuee claimant or to the sitting allottee, if a displaced person. The Competent Officer shall not sell the property at the assessed price to any other person. This point was also urged by the Petitioners before the Appellate Officer but was repelled and on adequate grounds. The learned Appellate Officer observed that the explanation was framed by way of abundant precaution to impress that the composite property could be sold at the assessed price to the persons who were entitled to it under Clauses (b), (c) and (e). The composite property evidently could not have been sold in the exercise of powers given in the proviso. The Petitioners did not urge any other argument in favour of their plea that the Competent Officer was obliged to sell the composite property at assessed price to them. The fact remains that the Petitioners not being sitting allottees of the composite property were not entitled to get the same on payment of the assessed price.;