' Sh. Abdul Haq & Sons Ltd. Which is a private limited Company having its registered office at Lahore was the lessee of the Crescent Factories Limited, Chichawatni (hereinafter referred to as the Factory) in respect of Vanaspati Ghee Mill (New Unit) as from 1-7-1973. The lease was to expire on 31-5-1974. A lease deed was duly executed. The petitioner consequently started running the mill and for that purpose purchased stocks and stores and even some machinery which he brought on the premises and which was in use.
2. The Hydrogenated Vegetable Oil Industry (Control & Development) Ordinance, 19 of 1973 was promulgated on 2-9-1973 by the Government of Pakistan with a view "to regulate the operation and future development of the Hydrogenated Vegetable Oil Industry so as to maintain at reasonable prices supplies essential to the life of the community while safeguarding the interests of the small investors in the industry and to provide for matters connected therewith or incidental thereto".
3. Section 5 of this Ordinance empowers the Federal Government to take over the Management of any establishment, to acquire the whole or a portion of the shares or the proprietary interests of such Company in such establishment. Section 6 empowers the Federal Government after making an order under section 5 to appoint a Managing Director in respect of such establishment. In the case of establishments where action has been taken under section 6, the Federal Government was further empowered by section 7 to bring into existence a Board of Management for such establishment or class of establishments.
4. The Government delegated its power under section 5 to the Provincial Government and by a notification issued on 14-9-1973 Crescent Factories Limited in relation to its Vegetable Ghee Mill Ltd.
Was declared to have been taken over by the Government. This notification was published in the Punjab Gazette of the 19th September 1973 and this concern is mentioned at Serial No,
10. Both the old and new units of the Vegetable Ghee Limited at Chichawatni were the subject of the take-over.
Consequent upon the take-over the entire effects of the Crescent Factories Limited on the premises of the Mills alongwith all the property of the petitioner lying there was taken over and a Managing Director was appointed under the orders.
5. It may be mentioned that there is nothing in the notification to show that the effects of Sh. Abdul Haq and Sons Limited, the lessees/ petitioner was to be taken over also. But the fact remains that it was so taken over.
6. The Ordinance was later on converted into an Act.
7. The petitioner-Company felt aggrieved of the action taken by the Government and filed a writ petition challenging the action by which the Mill was taken over as well as all other consequential actions affecting the interests, rights and properties of the petitioner-Company. This was Writ Petition No, 1009/74.
8. The High Court called for a report in this writ petition and the authorities submitted that the petitioner was a lessee and was entitled to be compensated. They undertook to finalize the compensation payable to the petitioner after the audit was completed. In view of- this statement the petitioner withdrew the writ petition on 9-7-1974.
9. During the parleys that were held between the representatives of the petitioner and the Government, the Government took up the position that the lease in favour of the petitioner stood automatically cancelled as a result of the take-over and that if the petitioner had any right it can be only against the Crescent Factories Limited and that the petitioner should have recourse to action against them both in respect of any rights under the lease and for compensation for the property belonging to the petitioner lying in the factory at the time of the take over by the Government. The petitioner did not agree with this position and consequently filed the present writ petition.
10. The stand of the petitioner is that the Act did not provide for the taking over of the property of Companies or Persons other than those who own the establishment where for the respondents had no right to take over the property belonging to the petitioner and whether lying in the Mills or on the way to the Mills.
It is further contended that since the notification by which the establishment was taken over relates only to "Crescent Factories Limited (Vegetable Ghee Mills) Old and New Units, Chichawatni, and there is no reference whatsoever in the notification to Sh. Abdul Haq & Sons Limited, the petitioner, according to the petitioner, therefore, their property could not have been appropriated by the respondents as the same was not the subject matter either of the take-over by the notification referred to above or the acquisition of proprietary interests which was made through an order issued by the Government of Pakistan in the Ministry of Agrarian Management on 9-10-1976 under No, DEV. V 3(1)/73. It has also been submitted that the principle upon which compensation is to be settled under the Act of 1973 is relateable only to that which belongs to the establishment which is taken over by the Government. Since the petitioner is claiming compensation for property which belongs to him and not to the taken-over establishment, the compensation payable must be in accordance with the ordinary law of the land and not the Act of 1973.
11. The question whether the petitioner was the lessee of the concern which was taken over was finally determined by this Court in Writ Petition No, 1009/74 in favour of the petitioner on the basis of a concession made by the respondents. No appeal could be or was filed against it where for respondents are now estopped from going into this question all over again and I hold accordingly.
12. Mr. M. S. Baqir, learned counsel for the respondents, submitted that this writ petition is not maintainable. He read Article 24 of the Constitution alongwith its Article 253 and submitted that the adequacy or otherwise of compensation provided for by any law in respect of property of which a person is deprived cannot because of Article 24(4) be questioned in any Court. As already stated above the notification by which the takeover and acquisition of interests took place did not find any mention of the petitioner's concern. Their property which has been appropriated by the Government has, therefore, not been taken over under the Act. Compensation is covered by the Act only in respect of properties which had been taken over by the Government under it. That not being the case here, the adequacy of the compensation in the present case has, therefore, nothing to do with the Act and the bar contained in Article 24(4) of the Constitution is consequently not attracted to the present case. Learned counsel for the respondents submitted that compensation has been assessed under section 14 of the Act which lays down a yardstick for working out the compensation and, therefore, the petitioner should have no grievance. Mr. M. S. Baqir fell back upon the definition of 'establishment' as given in the Act which runs as follows :- "Establishment means any Company, firm concern, institution or interprise the whole or any part of the undertaking of which pertains to the industry and includes a related office, shall be, a factory, godown. Yard stock and stores wherever that may be."
' Industry of course means the Hydrogenated Vegetable Oil Industry. The undertaking in the present case that is the old and new units of the Vegetable Ghee Mills are admittedly owned by the Crescent Factories Limited. It is, therefore, that Company which means the establishment in the present case. The petitioners are only the lessees and cannot by any stretch of the language used in the Act be a Company "the whole or any part of the undertaking of which pertains to the industry". The undertaking remains that of the Crescent Factories Limited and the petitioners simply lessees and are, therefore, not covered by the definition of establishment given in the Act. The submission made by the learned counsel on the score does not hold any water.
13. The Schedule to the Act may also be perused in this connection. The Schedule deals with "principles and the manner of payment of compensation in respect of shares or proprietary interests of an establishment acquired by the Federal Government." In the present case as has already been seen whatever has been acquired under the Act by the notification referred to above belongs to the Crescent Factories Limited and not to the petitioner. The opening language of the Schedule, therefore, itself makes it clear that the principles laid down therein have no applicability whatsoever to the articles or property of the petitioner which have been appropriated by the Government while taking over the property of the Crescent Mills Limited. Reliance was sought to be placed on Muhammad Ismail & Company etc. v. The Chief Cotton Inspector (1), with a view to supporting the submission made before me. The words which were the subject-matter of interpretation in the ruling were "owners" and "occupiers", It was open to the Government to have by legislating used these two terms in the Act but it was not so done. This, ruling, therefore, has no relevancy whatsoever to the present case. On the other hand one finds, that it is not only the "establishment" which has been defined by the Act and which has been dealt with above, the terms "creditor" and "debtor" have also been duly defined in section 2 of the Act. If lessees were to be included in the purview of the Act there is no reason why there would be no mention of such a clause in the definition clause or otherwise in the enactment itself. There is no such mention at all.
14. I, therefore, hold that this petition is maintainable under Article 199 and is not barred by Article 24(4) of the Constitution. I further hold that since the petitioner is a lessee, a class of persons not covered by the Act, its property could not have been taken over under the Act and the compensation, therefore, has to be adjudged and paid in accordance with the ordinary law of the land. This petition is, therefore, accepted with costs and directions are accordingly issued to the respondents as prayed in the petition.