1. SHAPTUlt RAHMAN, J.--Leave to appeal was granted to examine the judgment of the Lahore High Court, dated 12th of November, 1986 whereby while disposing of three Constitutional Petitions against the order of the Cheif Settlement Commissioner dated 31-5-1968 the proceedings were once more remanded to him to redecide the matter. The contention was that all the material necessary for arriving at a decision in the case was available and the remand order was not, on the facts and circumstances of the case, justified.
2. There was an Industrial concern in Gujranwala known as Ram Lubhaya Ahuja Metal Works. It was an unregistered Industrial concern. It was allotted for a period of three years, ending on the 31st of December, 1956 to Mistri Muhammad Din, appellant to Civil Appeal No. 430 of 1980. It bore the property No. B.XXII, 7-S- 9, Hafizabad Road, Gujranwala. Muhammad Din claimed to have left in Amritsar an Iron and Foundry Works known as Majitha Iron and Foundry Works. He held a verified claim of having abandoned the Industrial concern in India. It appears that Muhammad Din had associated unauthorizedly one Jan Muhammad in his allotment and Jan Muhammad was replaced by Muhammad Sadiq, appellant in Civil Appeal No. 431 of 1980. A dispute over the allotment and possession arose between them. It was decided by the Deputy Rehabi--litation Commissioner, Gujranwala on 21-7-1958 and the operative part of the order reads as follows :- "It may be pointed out that Muhammad Din the appellant has a claim of Rs. 2,800 only in respect of the workshop alleged to have been abandoned by him. In these circumstances-, keeping in view of the policy of the Government it will be a great hardship on Muhammad Sadiq. Respondent and his father to dislocate their business in which Sadiq has invested a large amount of money. Apart from the fact his father who is working with him has filed q claim of Rs. 30,000 and "no other commercial (evacuee) or industrial property stands allotted or occupied by any member of his family. As regards Muhammad Din appellant who is occupying only the machinery room in the factory premises and had admitted in his statement that he did not obtain the approval of the competent authority before he left the premises to others on rent in the eye of law has got no right to remain in possession of any part of the factory but in view of the fact that he is a refugee and his petty claim for Rs. 2,800 does not exceed the market value of machine and one room which allotted to him. I allow him to keep in his possession the portion which he has got in his possession together with passage before."
3. This order was appealed against and ultimately came up for revision before the Commissioner, Lahore Division who disposed of the two revision petitions by the following operative order :- "I see no merit in the exchange approved by the Additional Rehabili--tation Commissioner and now that Muhammad Din has given an affidavit that he did not agree to it, I accept this revision to the extent that status quo should continue and both Muhammad Din and Muhammad Sadiq should remain in possession of the portions at present in their possession. This order also disposes of the counter revision petition of Muhammad Sadiq."
4. When the Settlement operations started, both Muhammad Din as well as Muhammad Sadiq applied for the transfer of the Industrial concern, each claiming the property exclusively for himself.
5. By an order dated 14-10-1960 the Additional Settlement Commissioner divided the property between these two in the manner as mentioned hereinafter :- "The two parties have, as would be evident from the file, been quite actively busy in continued litigations for quite a long time. It will be, therefore, not at all in their inherent to give them joint rights. Of even the user of the premises. The passage, Muhammad Din will otherwise not be a looser as while at one place he gets more area of the property as against the one held by him, he at the other, has an easy access to this portion from the road running by. In view of these facts I order transfer of the property now in occupation of Muhammad Sadiq and that with Muhammad Din in favour of Muhammad Sadiq and the one in occupation of Faiz Muhammad local marked ABCD to Muhammad Din."
6. There was, it appears, a claim made by Faiz Muhammad a local who was also in possession of a portion of this Industrial concern. With regard to his claim, it was said that Faiz Muhammad local was not interested in the transfer of the property.
7. Against this order three revision petitions were filed ; one by Muhammad Din, the other by Muhammad Sadiq and the third by Faiz Muhammad. All the three - revisions were disposed of by the Settlement Commissioner on 7-9-1961. He rejected the claim of Faiz Muhammad by observing as follows :- "1 will first take up the case of Faiz Ahmad. His contention is that the portion in his possession is separated from the factory and was constructed by him. He has cleared off all the arrears of rent to have a little for its transfer. The record, however, indicates that the portion in his possession is not independent from the factory but included therein. He has, therefore, no claim against the dis-- placed persons who are claimants."
8. As regards the claim of the two appellants, the order was maintained in the following words :- "Between the two namely Muhammad Din and Muhammad Sadiq, they are claimants and allottees of their respective portions. Major portion, however, stands allotted in the name of Muhammad Sadiq whereas Muhammad Din is an allottee of one room. I have inspect--ed the spot and consider that the decision taken by the learned Additional Settlement Commissioner is the only appropriate solution in the circumstances of the case. By this adjustment Muhammad Sadiq will have exclusive possession over the portion which will have an independent portion transferred to him. Both are running different types of factories and the question of division of factory does not arise. The result is that all the revision petitions fail and are hereby rejected."
9. All the three claimants to the property filed second revision before the Chief Settlement Commissioner but the same was not, it is said disposed of by the Chief Settlement Commissioner in view of the promulgation of Ordinance Nos. II and XIII of 1962. Against this order, three Constitu-- tional Petitions were preferred which were disposed of on 4-4-1967 whereby it was ordered that all the three second revision petitions should be dis--posed of in accordance with law as they were awaiting disposal. The Chief Settlement Commissioner while disposing of these revisions on 31-5- 1968 maintained the order. The claim of Faiz Abmad was rejected by observing as follows :-.- "However, he has not submitted any form for the transfer of any portion of the Industrial concern in question. An admission to this effect is contained in his statement recorded on 11-4-1960 by the Assistant Settlement Commissioner, Gujranwala, which is to the following effect :-- "Besides, an Industrial concern, cannot be split up for transfer under Settlement Scheme No. VI, much less to a local like him, particularly when displaced persons, including a claimant, are allottees and have sought the transfer of the concern. In the circumstances he had no locus standi to prefer any appeal or revision petition with the prayer for the transfer of the industrial concern or any part thereof.His revision petition, therefore, does not deserve any consideration on merits either, and it is rejected accordingly."
10. As regards the competing claim of the two appellants, it was disposed of by the following operative order :-- "It is also true that the general practice has been to transfer industrial concernas one single unit to individuals, or jointly to several persons where more than one application was considered to be entitled, but the circumstances of the present case are peculiar.
11. Muhammad Din was undoubtedly the first to be allotted this concern and he has continued to be the allottee of a part of it. He had also a claim verified in Schedule 111, which is not the case with Muhammad Sadiq. It would, therefore, be iniquitous to exclude him or his successors entirely from the transfer of this industrial concern. In view of the prolonged litigation that has been going on between these two parties it would not be proper to make a joint transfer in their favour unless they wanted it. Where existing possession does not provide a suitable division in such a case, there seems to be no objection to the transfer of any portion of the same property ,other than that in the possession of such party, if this would provide a better arrangement between the parties concerned. I find that this is the position of the present case and agree with the findings and conclusions of the learned Additional Settlement Commissioner and the learned Settlement Commissioner. In parti--cular, I agree with the learned Settlement Commissioner that the decision taken by the Additional Settlement Commissioner was the only appropriate solution in the circumstances of the case."
12. Against this order of the Chief Settlement Commissioner three Con--stitutional Petitions were filed in the High Court, one by Muhammad Din (Writ Petition No. 614-R of 1968)the other by Muhammad Sadiq (Writ Petition No. 930-R-1968) and the third by Faiz Muhammad (Writ Petition No. 789-R- 1968). The claim made by all the three was summarised by the High Court in the following words :-- "The grievance of Muhammad Din, petitioner, in Writ Petition No. 614/R of 1968, is that he is an original allottee of the unregistered industrial concern and his allotment of the room at least where the Evacuee Machinery was installed had remained in tact, therefore, the portion in his possession, being industrial concern, he is entitled to the transfer of the entire industrial concern, the same being in divisible. The case of Muhammad Sadiq in Writ Petition No. 930/R of 1968, is that be is in possession of part of the industrial concern, wherein he had installed his own machinery and is carrying on business there. Therefore, he is entitled to the transfer as against the petitioner who had never been in possession of the industrial concern because he had been letting it out, and having contravened clause 10 of the Allotment Order, has rendered himself disentitled to the transfer of the property. The case of Faiz Muhammad in Writ Petition No. 789-R of 1968, is that he had been in possession of a part of the premises since before partition, and, on the area in his possession, he had installed his own machinery, carrying on the business there, and for the purposes of transfer of the area in his possession, he had filed 'H.S.' Form."
13. The learned Judge by the impugned order remanded the proceedings to the Chief Settlement Commissioner on the grounds and for the reasons that appear in the judgment as hereunder :- "Muhammad Din's own possessed portion was given to Muhammad Sadiq who was never in possession thereof. The question arises whether the learned Settlement Commissioner could, in the first instance, deprive Muhammad Din who was originally the allottee of the unregistered industrial concern, and, had remained throughout in possession of the room where the evacuee machinery was installed, in spite of the fact that he was in possession of a part of the indus--trial concern, and thus, entitled to the whole. The second question that arises is whether an industrial concern can be divided into and, if so, in how many parts, or units on the ground that on a part of it somebody had installed his own machinery and converted, even a vacant plot, into an industrial concern by installation of machinery. Thirdly, whether after division, a person in possession of the part in which the evacuee machinery was installed and which made the premises an industrial concern, can be shifted to another portion of the premises and his own portion given to a person, who was never in possession thereof. Answer to the last question appears to be simple that a person in possession of the portion where evacuee machinery was installed and which made the premises an industrial concern cannot be ousted therefrom and shifted to another part of the premises on which he had never any possession. This, being so, the order is liable to be quashed for this reason alone. In this view of the matter, the other two questions can better await the decision of the relevant authorities to whom I propose to remit the case to decide afresh to determine the respective entitlement of the three applicants. It would be for the concerned authorities to decide as to whether the entire premises are to be transferred as a single entity, being an industrial concern or would it like to exercise its power of division, if available under the law, to adjust the rights of all the three applicants. If it comes to the conclusion that an industrial concern cannot, or it would not divide it, then, it would be for the relevant authorities to decide as to who amongst the contestants is better entitled to the transfer of the industrial concern. If, on the other hand, the relevant authorities come to the conclusion that it can and would divide the premises, then after division, it may transfer the divided portions to the persons in possession thereof if they be entitled thereto."
14. Against this order of remand, Faiz Muhammad has not come up in appeal and his learned counsel Mr. Abdul Manan, contended that as the entitlement of Faiz Muhammad Has to be examined afresh by the Chief Settlement Commissioner and as he was an old tenant of the property and had raised the permanent construction on the site, he was eligible to succeed. He was satisfied, for the present, with the remand order there--fore he has-not appealed against it. The heirs of Muhammad Din, however, claimed that as Muhammad Din was the original allottee, a claimant dis--placed person having a verified claim and having abandoned industrial concern in - India, he was the most suitable person and the Industrial concern being indivisible he alone was entitled to get its transfer. The other appeal is by Muhammad Sadiq whose contention is that Muhammad Din had violated the terms of the allotment and his allotment was not renewed after December 1956 and as the substantial portion of the property was in possession of Muhammad Sadiq who had invested huge amount in establishing an industrial concern of his own he is entitled to get the whole of it to the exclusion of Muhammad Din and his heirs.
15. So far as Faiz Muhammad's claim to the portion in his possession is concerned, the Settlement authorities at every stage have held him dis--entitled to its transfer. They have given reasons for it.
16. Those reasons get support from the material on the record. There is other material also on the record not specifically reproduced in the order, which sustained the exclusion of Faiz Muhammad so far his claim to a portion of this property is concerned. For example, his own statement the portion of which has already been reproduced in the order of the Chief Settlement Commissioner.
17. This statement was recorded on 1 I-4-1960 and is as hereunder :-- In support of his contention he produced a rent note dated 19-7-1946 whereby it appears that he obtained on rent from Gokal Chand a site bounded by four walls without roof at Rs. 7 per month. He applied to the Municipal Committee on 26-7-1946 for permission to install an oil engine. The site on which he wanted to install the oil engine has been mentioned as adjacent to Hafizabad Road. The counter-foil of licence describes the premises licensed as Hafizabad Road. In the plan which he submitted for reconstruction he showed in his possession a site 29.7" x 36.3" bounded on one side by the shops of Gokal Chand and the other by the allotted property of Muhammad Din. He deposited the rent with the Rehabilitation Department for the period 1-3-1947 to 31-3-1961 vide receipt dated 30-3-1961. All these documents establish that the property which he claims to be of a .Different evacuee actually had become a part of the industrial concern and was rightly treated to be so by the Settlement authorities. He being a local could not either treat this property as building site nor could it be transferred to him under Settlement Scheme No. VI.
18. In refusing the transfer to Faiz Muhammad, the Chief Settlement Commissioner has held, and we think rightly so, that an industrial concern cannot be ordinarily divided. The same principle, however, has not been adopted while settling the competing claims of Muhammad Din and Muhammad Sadiq. What prompted this division is not the divisibility of the property and the possession because the possession of Muhammad Din has not been honoured in the division. He has been ousted from the property allotted to him and in his possession and installed on another portion' of the property in possession of Faiz Muhammad. This is not based on airy principle discernible from the Settlement Law. It is to be noted that all the Settlement authorities considered that both Muhammad Din as well as Muhammad Sadiq were entitled to the transfer of this property. The instructions of the Chief Settlement Commissioner contained in Memo No. 2177-F & M-Reh./60, dated 4-5-1960 appearing at page 545 of the revised Manual of Settlement Law and Procedure has one of the instructions which is reproduced hereunder :-- ---(7) All allottees of an industrial concern not allotted by the Industries Rehabilitation Board are entitled to its transfer to them in propor--tion to their allotted shares. If at the time of the transfer of an industrial concern it comes to notice that an allottee could not submit his application for the transfer of the property within the prescribed time, he may be given an opportunity to file the requisite application and delay be condoned where considered appropriate.
19. Ithas been noticed that in certain cases allotments have been made in terms of money and shares. The Additional Settlement Commis--sioners may assess the total income of such industrial concerns and convert money allotments into share allotments and then proceed with the transfer of the concerns to the allottees."
20. From the orders passed on the Rehabilitation side, it is clear , that the possession of both the appellants over the property was protected. It was protected not by indicating their shares.In the allotment or shares in terms of money but the shares followed their actual physical possession which was protected. It could have been possible to allocate to them the shares by reference to their possession over the property. To their exclusive possession should have been added the half portion of the passage which was jointly shared by each and the share so worked out should have been extended in the same proportion to the area in occupation of Faiz Muhammad. This would be in conformity with the principles of joint allotment and sharing between allottees. The only reason given by the Chief Settlement Commissioner for not honouring the integrity of the industrial concern and the actual possession of the allottees for working out shares was that "in view of the prolonged litigation that has been going on between the two parties it would not beproper to make a joint transfer in their favour unless they wanted it"
21. The competing claims of the two, when both had to be accommodated and none to be ousted, made it obligatory that the industrial concern should have been jointly transferred to the two and that would be in accord with the law Mst. Ghafoeran Nisa v. The Chief Settlement Commissioner (1), Para. 16-B of the S.Ihedule to Act and the instructions referred to. Such a joint transfer indicating the specific shares would leave the parties to adjust their possession according to their entitlement and if they cannot .Pull on together, to get it reasonably and sensibly partitioned. The admitted facts are that Muhammad Din was the allottee, that he alone was the purchaser of the evacuee machinery installed in the Industrial concern. He had parted with the possession arid the possession of Muhammad Sadiq was maintained, in fact keeping the passage common to both. It should have been possible for the Settlement authorities to work out the share of each according to the possession which was sanctified by the Rehabilitation authorities antecedent to the Settlement operations. In the circumstances and for the foregoing reasons, these appeals are accepted, the order of the remand is set aside and the property is jointly transferred to Muhammad Din (now his heirs on the record) and Muhammad Sadiq. The actual shares will be worked out by the Chief Settlement Commissioner/Notified Authority on the principles indicated in this judgment and revaluation of the property will follow. The Constitutional Petition of Faiz Muhammad will stand dismissed and of the other two disposed of in these terms. No order as to costs.
(1) PLD 1975 Lah. 89