The dispute in this case relates to an unregistered Evacuee Industrial Concern known as Budh Singh Oil Mills, Gujar Khan, District Rawalpindi bearing property No. B-II/54. In late 1947, this property was allotted to Sheikh Abdul Ghani, a displaced person, respondent No. 1 (hereinafter referred to as the respondent). Perhaps on account of shortage of funds in July 1951, the respondent joined the petitioner as a partner in the business with the approval of the then Deputy Rehabilitation Commissioner, which was obtained on 28-11=1951. The petitioner as per terms of the partnership deed (Annexure 'A' in Writ Petition No. 1094-R of 1965), installed a new engine in the mill.
2. Soon thereafter some dispute arose between the two partners and the respondent applied before the D.R.C. For the rescission of the approval. The D.R.C. Vide his order, dated 1-4-1952, rescinded the approval and ordered ejectment of the petitioner. He also directed that the petitioner could remove his engine which he had installed in the premises. The petitioner went in appeal before the Additional Rehabilitation Commissioner, who vide his order, dated 3-1-1953, set aside the order of ejectment passed by the D.R.C. And directed that if the respondent paid a sum of Rs.6,298.3 as price of the engine then he could obtain the possession and ownership of the mill. The respondent. Feeling dissatisfied filed a revision before the Custodian but the same was dismissed.
A few years later he again moved the Rehabilitation Commissioner asking for the ejectment of the petitioner. The Rehabilitation Commissioner passed an order on 14-9-1959, requiring the assessm ent of the cost of engine to be made after taking into consideration the depreciation which occurred in the meanwhile. He further ordered that if the respondent paid the value so assessed, he would be given possession of the premises as well as the machinery failing which he would suffer. The Assistant Director (Industries) assessed the depreciated value of the engine as Rs.3,122.5. This, amount was not received by the petitioner.
3. In the meantime the petitioner as well as the respondent filed their respective application forms seeking transfer of the disputed premises in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). Vide order, dated 3-8-1960, the Additional Settlement, Commissioner (Industries) transferred the disputed property in favour of the respondent. The petitioner filed an appeal which was accepted by the Settlement Commissioner on 10-9-1960, who remanded the case for fresh decision.
4. After the remand, the Additional Settlement Commissioner transferred the mill in favour of the petitioner taking into consideration this aspect of the matter that the petitioner was a claimant whereas the respondent was a non-claimant, who had not cleared the arrears of rent nor had paid the price of the engine assessed by the Assistant Director (Industries). The respondent preferred an appeal but the same was dismissed on 16-6-1961 by the Settlement Commissioner. Thereafter, the respondent challenged the orders of transfer of the disputed mill in favour of the petitioner by way of Writ Petition No. 1094-R of 1965, before this Court.
5. Vide judgment, dated 23-8-1973, the writ petition was allowed and the case was remanded to the Settlement Commissioner, Rawalpindi Division, Rawalpindi, for deciding the same afresh in accordance with and in the light of the observations made in the judgment passed by this Court. In the judgment it was observed that the Settlement Commissioner had failed to determine the real questions involved in the case. On account of non-payment of dues the respondent could not be deprived of the right to obtain the transfer of the mill which was in his possession and was duly allotted to him as a displaced person.
6. The petitioner challenged the judgment of this Court before the Supreme Court of Pakistan through C.R.S.L.A. No. 405 of 1973. The petition was, however, dismissed on 10-6-1974, with the following observations: -- "In any event, nothing has been decided by the learned Judge. The observations made by him are only tentative. The respective entitlement of the parties will, therefore, be determined by the Settlement Commissioner de novo, uninfluenced by any observation of the learned Judge in the High Court."
The Settlement Commissioner, Rawalpindi Division, Rawalpindi, dealt with the case and vide his judgment, dated 16-4-1975, be transferred the disputed property in favour of Sh. Abdul Ghani respondent. (copy of the order is Annexure 'B' with the present petition).
7. Thd aforementioned order dated 16-4-1975, passed by the Settlement Commissioner, Rawalpindi Division, Rawalpindi, has been assailed through the present constitutional petition.
8.It has been urged on behalf of the petitioner that:- (1)the allotment in favour of the respondent was not renewed and, therefore, it was not subsisting at the time of transfer made under the provisions of the Act. He could not, therefore, avail of the contention that as an allottee he was to be preferred; (2)the respondent was a non-claimant whereas the petitioner happened to be a claimant displaced person and, therefore, he deserves to be preferred for the purpose of transfer of Evacuee Industrial Concern; (3)the respondent failed to clear the arrears and dues whereas the petitioner cleared up-to-date, arrears and dues; (4)at the time of transfer the petitioner was in actual possession of the Industrial Concern on the basis of partnership which was duly approved- by the Rehabilitation Authorities: and (5)the respondent had failed to pay the cost of engine as ordered by the Rehabilitation Commissioner and, therefore, he was to suffer as per said order.
9. In reply to the aforementioned contentions, it has been submitted on bahalf of the respondent that the allotment in favour of the respondent was subsisting at the time of decision of transfer forms submitted by the petitioner and the respondent. The allotment in favour of the respondent never came to an end. For non-payment of dues the respondent could not be deprived of his right of transfer. The Settlement Organization could recover the dues even after the transfer was made in his favour. It has also been urged that in law the respondent has to be deemed to be in possession as an allottee and no such right vested in the petitioner and that an allottee displaced person who may not be a claimant has to be preferred as against the non-allottee claimant displaced person.
10. In the circumstances of the present case, there is sufficient documentary evidence on the records to suggest that the Industrial Concern in question was duly allotted in favour of the respondent in 1947 and this allotment still subsisted when the orders regarding the transfer of this concern under the provisions of the Act were passed. There is nothing on the records to suggest that the allotment was cancelled or otherwise came to an end on any occasion. The most cordinal point for determining the entitlement for transfer of the premises in question is as to who was in actual possession of the premises as an allottee at the time the impugned order was made. The petitioner has claimed that he was in actual possession. It has been contended on his behalf that in 1951, the respondent lost the possession. He obtained the ejectment order from the D.R.C. Against the petitioner but that order was set aside by the Additional Rehabilitation Commissioner.
Thereafter, on two occasions orders were passed to the effect that the respondent could regain the possession if he paid the cost of the engine as assessed on the said two occasions. A finding of fact has been recorded in this regard in the impugned order by the learned Settlement Commissioner, Rawalpindi Division, Rawalpindi, that the price assessed by the Assistant Director (Industries) was offered for payment by the respondent to the petitioner, but the petitioner refused to receive that payment, as in the meantime he had applied under the provisions of the Act for the transfer of the property. This finding of fact cannot be interfered with in exercise of writ jurisdiction.
11. It has been urged that after the amendment of section 2(6) of the Act, actual possession has to be taken into consideration and not the possession as contemplated by subsection (6) of section 2 of the Act inasmuch as subsection (6) aforesaid was deleted on 23-7-1973. In support of this contention reliance has been placed on Muhammad Ayyub and another v. Muhammad Yaqoob and another PLD 1975 Lah. 445, wherein it has been held that the appellate Court was competent to take into account legislative changes since the decision in appeal was given and its powers were not confined only to see whether the lower Court's decision was correct according to law as it stood at the time when its decision was given. Even if we take out of consideration the provisions of subsection (6) of section 2 of the Act, we have to see as to who out of the parties is to be deemed to be legally in possession of the premises at the time of transfer. It is a common ground between the parties that the respondent was an allottee in possession of the premises when he joined the petitioner as a partner in the business through partnership deed, Annexure 'A' to Writ Petition No. 1094-R of 1965. This partnership was, of course, approved by the Rehabilitation Authorities, but as per terms of the partnership deed the petitioner did not become partner in allotment. He became a partner only in the business. Partnership was for the tenure of two days less than three years.
During the subsistence of partnership the petitioner was entitled to receive the profit of the business or to bear the loss, if incurred. He was to run the business while the respondent was to act as a working partner and was to receive a sum of Rs.240 per mensem as his share whether the business yielded profit or culminated into loss. It was also agreed between the parties that for the period when the business would remain stopped, the petitioner would be liable to pay Rs.120 per mensem to the respondent.
12. In the light of these terms of the partnership deed, the position of the petitioner was that of a lessee. He was not associated in the allotment. He was merely a partner in the business and in law the respondent was to be deemed to be in possession of the premises through the petitioner. In this view of the matter, the petitioner is not entitled to make any capital out of the contention that actually he was in possession of the premises as his possession was permissive and on behalf of the respondent. In Shams-ud-Din and another v. Haji Khuda Bakhsh and others 1976 SCMR 478, it was observed. "The petitioners derived their possession or occupation from the respondent and did not, therefore, have an independent locus standi for the transfer of the property as against the respondent".
13. As already held the respondent is to be deemed in law to be in possession of the disputed concern through the petitioner, his partner in the business. Therefore, the status of the respondent is that of an allottee in possession, as a displaced person of the premises. He has, therefore, rightly been preferred for the transfer of the premises as against the petitioner who is a non-allottee, even though the respondent is a non-claimant and the petitioner is a claimant. Non-payment of dues does not legally operate as a bar against the right of the respondent who claimed transfer of the premises. Dues can otherwise be recovered from him even after the transfer as has already been decided by this Court while deciding the earlier writ petition. The petitioner as a partner in the business can enforce his rights accruing from the partnership deed against the respondent or his succesors by an independent action before a Court of plenary jurisdiction. He can also seek refund of the price and the dues allegedly paid by him to the Settlement Authorities.
14. In the light of the above conclusions, there is no merit in this writ petition, which must fail and is accordingly dismissed, but there shall be no order as to costs.