This writ petition assails the order dated 28-9-1987, passed by the Settlement Commissioner (Industries), Board of Revenue, Punjab, Lahore, in regard to property Nos. S-19-R-61 & 65, Chopra Building, Lahore. The aforesaid property consists of 16 shops and many residential flats. This property, of course, is the evacuee property. It was originally owned jointly by Kanwar Sardari Lal and Haveli Shah Chopra, the evacuees. The petitioner, Mr. MA. Shore, who contends to be a claimant displaced person is in occupation of one of the aforementioned 16 shops, wherein he is running the business m the name and style of "Eclips Dry Cleaner". He claimed that this shop was allotted to him in May, 1948 as unregistered factory and that he filed a form for its transfer as industrial concern on 14-7-1959.
2. The entire Chopra Building having been treated as big mansion was sold through public auction on 13-8-1959 to respondents Nos.3 to 11. The auction was confirmed on 20-11-1959. The petitioner, in the meantime, submitted an application purporting to be dated 21-9-1959 for transfer of this shop to-him as industrial concern and requested that sale of this shop by auction be not confirmed. The confirmation as stated earlier had, however, taken place on 20-11-1959. The petitioner has urged that this confirmation has been done unlawfully as his application for transfer of the shop in question to him as claimant displaced person was not disposed of before the auction was confirmed and that even the impugned order has been made by the Settlement Commissioner (Industries) without properly disposing of his application. It has also been urged by the petitioner that as a matter of fact, Mr. M.A. Lone, the learned Settlement Commissioner (Industries) who passed the impugned order on 28-9-1987 had already ceased to be a notified officer as Settlement Commissioner because his orders of transfer with immediate effect from the post of Secretary (Settlement), Board of Revenue and Settlement Commissioner (Industries) were passed on 22nd September, 1987 and he was posted as O.S.D. In the Services, General Administration and Information Department, Government of the Punjab, Lahore.
3. It transpires from the record that earlier the petitioner and others filed Writ Petition No.54-R-1965 before this Court and in that writ petition the validity of the transfer of the property in question through auction in favour of respondents Nos. 3 to 11, the auction-purchasers, was challenged. The said writ petition abated and an order in that behalf was passed on 8-10-73. The order of the High Court was challenged before the Supreme Court of Pakistan through Civil Appeal No.103 of 1974.
The august-Supreme Court of Pakistan dismissed the appeal on 27th October, 1984. The judgment of the Supreme Court has been reported as 1985 S.C.M.R. 1359.
4. Through the present writ petition again the petitioner has challenged the transfer of the property in dispute in favour of the aforementioned respondents through auction. Seemingly a second writ petition is not competent but the learned counsel for the petitioner maintains that in the earlier writ petition, he claimed the transfer of the shop in question as a shop but through the present writ petition, he is claiming the transfer of the shop as an industrial concern for which he had already filed a form as claimant displaced person and had also submitted an application on plain paper on 21-9-1959 that auction could not be confirmed without disposing of his claim. It has also been averred on behalf of the petitioner that P.T.D. Once issued in favour of the auction-purchaser was cancelled. All concerned were informed accordingly including the petitioner and, therefore, after the cancellation of the P.T.D., he was all the more entitled that his claim for transfer of the shop in question as industrial concern be considered and disposed of. The contentions raised on behalf of the petitioner have been thoroughly considered and fully analysed.
5. It has been noticed that as a matter of fact another property viz. S-19-R--55/A (4) stands transferred to the petitioner as un-registered industrial concern. This property is at the back of part of Property No.S-19-R-65 out of which a shop known as Eclips Dry Cleaners is in occupation of the petitioner. A street intervenes between the two properties. Besides street another property viz. S-19- -R-55/A-3 known as Sunny Brothers also intervenes Eclips Dry Cleaners and the property transferred to the petitioner as unregistered industrial concern. For the transfer of this property, the petitioner submitted a form on 30-11-1959. The property was transferred to the petitioner, as unregistered factory. Price charged, from him was that of a plot. It so transpires from the contents of Annexs. R1 to R6. The petitioner even challenged the order of the Settlement Authorities charging the price from him as that of plot through Writ Petition No.952-R-1976 but that writ petition was dismissed on 1-2-1978. As the petitioner had already been transferred a plot as unregistered industrial concern, he could not claim another property i.e. The shop in his possession as Eclips Dry Cleaners in regard to which the present writ petition has been filed. It is so provided in para 15(5) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The petitioner's claim that he filed a form for the transfer of the shop in question as unregistered factory on 14-7-1959 is also not borne out from the records. An unattested photocopy of the form claimed to have been filed has been added with the present writ petition as Annex.`C'. The department has denied the receipt of such a form and no such form is forthcoming from the record of the Settlement Department. A better copy of the photostat copy has also been added which has been attested to be true copy by the learned counsel for the petitioner. There is shadow of seal on the left corner at the top of Annex. `C' the contents of the shadow indicate that this form was filed on 9- 7-1984, vide diary No.4474. In this manner the petitioner's claim that -he filed the form for the transfer of the shop known as Eclips Dry Cleaners as an unregistered factory on 14-7-1959 is falsified. The learned counsel has, however, urged that even if the form be taken out of consideration, he did file application on a plain paper on 21--9-1959 requesting that the auction of the plot in favour of respondents Nos. 3 to 11 be declared to be void and the property be transferred to him in adjustment of his claim. He further urged that this application was still undisposed of when the confirmation of auction in favour of the said respondents took place. The petitioner, of course, has added certified copy of the application dated 21-9-1959 as Annex. `D'. 1t, however, is not forthcoming from the contents of Annex. `D' as to when actually the application was filed.
6. As already observed, the petitioner challenged the auction of the property in question in favour of respondents Nos. 3 to 11 through writ petition No.54-R-1965 which was dismissed having been abated. Appeal before the Supreme Court also failed through judgment reported in PLD 1985 SCM R 1359. Even a review application filed by the petitioner was dismissed. In previous litigation, the petitioner did not claim the transfer of the shop in question as industrial concern. He has throughout been claiming the transfer of the property as a shop. He perhaps did not claim the transfer as the industrial concern because he was already transferred another property viz. Property No.S-19-R-55/A-4, as an unregistered industrial concern. The plea that the shop in his occupation as Eclips Dry Cleaners falls within the definition of industrial concern ought to have been raised in the earlier round of litigation in which the petitioner remained unsuccessful upto the level of Supreme Court. In the present writ petition, however, he has taken up a different stand that he claimed the transfer of the shop as an Industrial concern. This course of action is not admissible.
In case of Mirza Muhammad Yaqub v. The Chief Settlement Commissioner and another (PLD 1965 S.C. 254), it has been held: "A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea the proper course would be to file a petition for review if such a petition be maintainable. The general principle of res judicata is applicable to writ petitions also. In the present case as already stated review application filed by the petitioner before the Supreme Court has been dismissed. In Naimuddin Biswas and others v.
Maniruddin Lashkar and others (AIR 1928 Calcutta 184), it has been held that an order of abatement by virtue of the death of the party is virtually a decree as it disposes of the plaintiff's claim as completely as if the suit had been dismissed. It has further been held in this case that the order of abatement operates as the judgment as between him and the respondents to the same extent as the judgment on merits. It has also been argued on behalf of the petitioner that the plot transferred to him as unregistered factory is at the back of the shop in question and, therefore, the entire premises ought to be treated as one and the same as the unregistered industrial concern. This plea is without any substance because as already stated the plot bearing Property No. S-19-R- 55/A(4) transferred to the petitioner as unregistered factory is not contiguous to the shop in question but in fact the other property transferred to another occupant has also a street intervening the shop m question and the plot transferred to the petitioner as unregistered factory.
In Abdul Jabbar v. Settlement Commissioner, Sheikhupura and others (1969 S.C.M.R. 114), it has been observed that the words "within the premises of an industrial concern" necessarily mean within the area of the premises actually being used as industrial concern. It was further observed that rooms from pre-partition time used as separate shops and never used for the purpose of industrial concern did not form part of the industrial concern. Authorities reported as NLR 1984 Civil 61, 1981 SCM R 548, NLR 1985 Civil 376, 1987 SCMR 1636, 1985 Pakistan SC. Cases 78, 1985SCMR464,1987SCMR1119,1988SCMR1001,1988SCMR613, PLD 1967 S.C. 506 and PLD 1961 S.C. 89, have been cited on behalf of the petitioner but all these cases are distinguishable on merits and have thus no bearing on the merits of this case. The petitioner's plea that on 28th September, 1987 when the impugned order was passed by the Settlement Commissioner (Industries), the said functionary in fact had ceased to be notified officer as Settlement Commissioner (Industries), because his orders of transfer with immediate effect were already made on 22nd September, 1987.
This contention has no merit whatsoever. No doubt orders of transfer of Mr. Muhammad Aslam Lone, the then Secretary (Settlement), Board of Revenue and Settlement Commissioner (Industries) as OSD in the Services, General Administration and Information Department, Government of Punjab were made on 22nd September, 1987 vide Notification No.SI.2-2/87, but admittedly he had not yet relinquished the charge of the office of Secretary Settlement, BOR, Lahore and Settlement Commissioner (Industries), pursuant to the aforementioned notification by 28-9--198'7, the date on which he passed the impugned order. It cannot, therefore, be said that he had ceased to be the Settlement Commissioner (Industries) when he passed the impugned order.
7. In the light of the foregoing discussion, it is concluded that there is no merit in the present writ petition which is also barred by virtue of principle of res--judicata on account of the decision of the previous litigation between the parties up to the level of Supreme Court. This writ petition is, therefore, dismissed in limine.
M-1321/L