' The admitted facts of this case as per pleadings of the contesting parties are that a Cotton Ginning Factory was owned by non-Muslim evacuees, namely, Devi Das and Hans Raj. Another property comprising of 10 shops was owned by Govind Ram evacuee. Both the properties are adjacent located at G.T. Road, Mian Channu City. The shops were allotted to some of the petitioners and to the vendors of the others. PTDs (Annexures All to A/11) were issued in the year, 1963. The said Factory was proposed to be auctioned on 23-7-1959. On the day of auction, a controversy arose as to whether the said 10 shops are to be treated as part of the Factory, the matter was referred by the Auction Committee to the Additional Settlement Commissioner, Multan, who further referred the matter to Additional Settlement Commissioner (Industries), Lahore. Vide memo., dated 19-8-1959 (Annexure B'), the said officer ordered that the shops are to be excluded and only the Factory is to be auctioned. Consequently, the auction was held on 18-9-1959. One Mst. Khair-un-Nisa made the highest bid of Rs,2,06,000. She made a deposit of Rs,1,64,677 and the possession of the factory was delivered to her on 15-10-1959. The Settlement Department demanded the payment of balance amount of Rs,41,323. The said lady did not pay the same and consequently the Factory was sealed.
Later upon an undertaking given on behalf of the said lady for the payment of the balance amount, the Factory was desealed. On 14-8-1967 an application was filed before the Advocate Supreme Court (Industries) that possession of shops be delivered. This application was dismissed on the ground that shops were never sold to the said auction purchaser. The matter then came up before a Settlement Commissioner (Industries) when an offer was made that in case the demand of Rs,41,323 is withdrawn, the lady would not demand the possession of the shops. The said Settlement Commissioner (Industries) referred the matter to the Chief Settlement Commissioner with a report that as the shops were excluded from the auction and were never sold to the auction purchaser and that since the same had been allotted to the persons in possession, the said demand be withdrawn. However, the Chief Settlement Commissioner did not agree and dismissed the application on 29-9-1970 with-the observation that the shops were not included in the auction. The auction purchaser then filed W.P. No,1022-R/70 to challenge the said order, dated 29-9-1970 of the CSC. The writ petition was dismissed by this Court on 7-10-1970 vide judgment (Annexure 'B'). The Hon'ble Supreme Court of Pakistan refused to grant leave on 27-1-1991 (Annex: `E') while review petition was dismissed on 14-4-1991 (Annex: 'F'). The allottee of shop No,4 which had a Chobara on top filed ejectment application against Khair-un-Nisa for vacation of Chobara which was allowed.
A first appeal was dismissed by learned District Judge on 20-2-1994 while SAO. No,7/94 was dismissed by this Court on 19-3-1995. At this juncture Mst. Khair-unNsia executed a surrender deed in favour of present respondent No,4 on 12-9-1995 which was approved by the Settlement Commissioner (Industries) on 29-9-1995. On 20-12-1995, he directed that transfer order be issued in favour of respondent No,4, A.T.O. Was issued on 18-1-1996. Now in this document, while describing the property subject-matter of the transfer, it was stated in the schedule that the upper portion of the shops is also included. This fact came to the knowledge of the petitioners during the proceedings before a Rent Controller whose order, dated 29-5-2000 is Annex: J/1. The copy of transfer order, dated 18-1-1996 is Annexure 'K'.
2. It has been stated that since the shops were never sold to the said auction purchaser and were transferred to the petitioners or their vendors, the addition of the roofs of the said shops in the said T.O. By the official respondents is illegal and void. The respondent No,4 in his written statement while admitting the said history of the case insists that the roofs the shops were adjacent to the factory and as such had been sold and consequently transferred by the Settlement Department.
3. Syed Muhammad Ali Gillani, learned counsel for the petitioners in the aforenoted admitted state of facts argue that settled law is that unless otherwise provided in the PTDs issued to his clients who have admittedly been transferred the shops, the transfer would mean from bottom to sky. He relies on the cases of Nazir and others v. Syed Israr Ahmad and others (1981 SCM R 829), Mushtaq Ali and others v. Noor Muhammad and others (1982 CLC 2177), Haji Faqir Ali v. Siraj Din and others (1984 CLC 1004) and Mirza Hashim Baig v. Settlement Rehabilitation Commissioner and others (1984 CLC 1587). Learned counsel for the respondent No,4 on the other hand, has cited the judgments in the cases of Sher Bahadar Khan v. Qazi Islamuddin and another (PLD 1984 SC 213), Abddul Rashid v. Settlement Commissioner and others (1983 SCM R 1285) and Salahuddin v. The Settlement Commissioner and others (1984 SCM R 1439) to urge that this Court cannot go behind the said transfer order while exercising Constitutional jurisdiction.
4. I have examined the several documents referred to me above. It stands finally concluded up to the Hon'ble Supreme Court of Pakistan that the shops were expressly excluded, as these were never put to auction along with the industrial concern and that it has been opined that when the said lady offered the highest bid she must have been aware that the shops were not part of the industrial concern and that she cannot claim that the shops should be transferred to her along with the Factory. Now the matter was finally concluded on 14-4-1991 when C.R.P. No,16-L/91 was also dismissed by the Hon'ble Supreme Court. Needless to state that the Hon'ble Supreme Court had upheld the judgment of this Court in W.P. No, 1022-R/70 which in its turn confirmed the order, dated 29-9-1970 of the Chief Settlement Commissioner declaring that only the Factory was put. To auction and sold to the said lady. I have examined the order, dated 20-12-1995 (Annex: `M'). It narrates that the respondent No,4 is present, all the dues for Devi Das Hans Raj Cotton. Factory has been deposited and it has been verified. The proceedings are complete and a T.O. Be issued in favour of respondent No,4 regarding the said Cotton Factory. Now in the said T.O. (Annexure `R/19' to the written statement of the respondent No,4) in Schedule-A against Serial No,1 (Particulars of the property), it is written Devi Das Hans Raj Cotton Factory, Mian Channu, Against the Name of evacuee owner, it is mentioned Gobind Ram Mansar Ram, Ram Krishan, Devi Das and others.
Against Serial No,3 (Extent of right/interest transferred, it is written 100%. Thereafter, in bracket, the following words are written:-- ' Land, Building, Machinery and Upper Portion of all shops."
5. Now upon an examination of the T.O. In juxtaposition to the orders consistently passed by the Additional Settlement Commissioner (industries), Chief Settlement Commissioner (Industries), this Court and the Hon'ble Supreme Court of Pakistan. I do not feel any hesitation in holding that the said words i.e, "roofs of all the shops" is an interpolation which is not supported by any order of any competent authority of the Settlement Department and, of course, the judicial orders passed by this Court or Hon'ble Supreme Court of Pakistan.
6. The said judgments cited by the learned counsel for the petitioners fully supports his contention and the PTD states that the respective shops have been transferred to the transferees and there is nothing in any of the said PTDs that the roof is not included.
7. So far as the judgments cited by the learned counsel for the respondent No,4 are concerned, these laid down that the orders passed by the Settlement Authorities determining the extent of the property transferred are not to be lightly interfered with. In the present case, there is no order passed by any Settlement Authority that the roof of the shops admittedly transferred to the petitioners is included in the said Factory sold to Khair-un-Nisa and ultimately transferred to respondent No,4. On the other hand, the orders are to the effect that the shops are not included in the Factory; these were not included in auction and these were never sold to the said-lady.
8. This writ is allowed inasmuch as the said entries in the Transfer Order No, 307/SC/Ind/96, dated 18-1-1996 whereby the "upper portion of all shops" is mentioned in Schedule-A is declared to be without lawful authority and is set aside. The official respondents are hereby directed to correct the transfer order accordingly. No orders as to costs.
9. A copy of this judgment be remitted to the respondents Nos.1 to 3.
Petitioner allowed.