1. ANWARUL HAQ, J.-This petition for special leave to appeal has arisen out of an order made by a learned Single Judge of the Lahore High Court, on the 22nd December 1972, whereby a constitution petition filed by the present petitioner, Sh. Ala-ud-Din in respect of the transfer of property bearing No. P-208, situate in Ward No. 10, Factory Area, Lyallpur, was dismissed.
2. The relevant facts are that the property in dispute consists of 20 godowns, and has been divided by the Settlement Authorities into two portions, marked `A' and '13'. Portion `A' consists of 12 godowns, whereas portion B' comprises 8 godowns. As a result of the final order made by the learned Settlement Commissioner on the 28th February 1967, 4 godowns in portion 'A' have been transferred to the petitioner on the basis of his possession, whereas the remaining 16 godowns have been transferred to respondents Nos.4 to 9, mostly on the basis of their possession. The petitioner concedes that respondent No. 8, Allah Rakha Sajid, was entitled to the transfer of the two godowns in his possession, but he claims the remaining 14 godowns in addition to the 4 which have already been transferred to him.
3. In order to justify the petitioner's claim to the transfer of the 14 godowns, which were admittedly not in his physical occupation on the relevant date, namely, the 20th of December 1958, the learned counsel for the petitioner has presented before us a detailed history of the allotments made front time to time in favour of the petitioner and some of the respondents. The earliest order on the subject is the one dated the 24th of February 1948, by which the District Magistrate of Lyallpur, acting under powers conferred on him by section 2(1) of Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1947, allotted godowns bearing Nos. P-208, P-20y and P-210 to four persons including the petitioner, Ala-ud-din and respondent No. 8, Allah Rakha Sajid. However, this order was not fully implemented, and possession was delivered to the petitioner of only some rooms in property bearing No. P-208, in which Allah Rakha Sajid was already in possession of two rooms and a gallery. Another order was then made by the Deputy Rehabilitation Commissioner, Lyallpur on the 16th September 1950, allotting godowns bearing No. P-208 to the petitioner and his son, Zaka-ud-din. This order seems to have superseded the previous order of allotment dated the 26th of February 1948. It is submitted on behalf of the petitioner that in pursuance of the second order, he managed to get the possession of the entire property, but in the year 1949-50, a large portion thereof was taken away from him by the Provincial Government and handed over to the Food Department for the purposes of storing food-grains. The petitioner made repeated applications for the ejectment of the Food Department, as a consequence whereof his allotment was reduced by the Deputy Rehabilitation Commissioner, by his order dated the 28th September 1951 to the portion of the property already in his possession, namely 4 godowns.
4. Aggrieved by this reduction in the extent of his allotment, the petitioner filed an appeal which was accepted by the Additional Rehabilitation Commissioner by his order dated the 28th of March 1952, and the original allotment was restored. The Deputy Rehabilitation Commissioner was directed to deliver possession of the remaining godowns to the petitioner as soon as "some alternative arrangements for the storage of food--grains are made". In pursuance of this appellate order, a proposal was made by the Rehabilitation Officer on the 6th October 1952 and accepted by the Deputy Rehabilitation Commissioner, Lyallpur on the 16th October 1952, that the Food Department may be served with a show-cause notice for vacating the godowns in dispute. Similar orders were made by the Deputy Rehabilitation Commissioner on 16-11-1953 and 21-1-1955, but without success.
5. Ultimately last order was made by the Deputy Rehabilitation Commissioner on 14-4-1958, directing that the petitioner's application for delivery of possession be filed, as the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had come into force. It is conceded that the matter rested there as far as the question of ejectment of the Food Department was concerned. The petitioner remained in possession of only 4 godowns in portion 'A' of the disputed property, and did not agitate further for the continuance of the ejectment proceedings against the Food Department.
6. On the settlement side the Deputy Settlement Commissioner, by his order dated the 22nd of April 1961, held that the property consisted of two portions, 'A' and 'B', that the petitioner Ala-ud---din and respondent No. 8, Allah Rakha Sajid, had installed machinery in some portions of the godowns in their possession in portion 'A' and therefore, these premises had to be disposed of by the Additional Settlement Commissioner, as industrial concerns. The Deputy Settlement Commissioner recorded a positive finding that the block or portion 'B' was completely separate and independent from block 'A'. On this view of the matter, the Deputy Settlement Commissioner proceeded with the transfer of other godowns to the persons in possession thereof.
7. Aggrieved by these findings of the Deputy Settlement Commissioner, the petitioner filed an appeal which was disposed of by the learned Additional Settlement Commissioner, by his order dated the 17th of October 1962. This officer gave 6 godowns in portion 'A' to the petitioner and the remaining 6 to respondent No. 8 Allah Rakha Sajid, thus eliminating the other occupant.
8. Against this order, several revision petitions were taken to the learned Settlement Commissioner, the petitioner claiming the entire property, respondent No. 8, claiming the entire portion 'A' and some of the other occupants, claiming the godowns in their possession. All these revision petitions were consolidated for hearing by the learned Settlement Commissioner and disposed of by a single order dated the 28th of February 1967. As already stated, he held that portions 'A' and 'B' were separate and independent, and that the petitioner was entitled to the transfer of only 4 godowns in his possession, which he had converted into an industrial concern by installing power-looms. He observed that in view of the instructions issued by the Chief Settlement Commissioner, on the 4th of April 1960 only that portion of the property could be transferred to the petitioner, as had been converted by him into an industrial concern.
9. The High Court has held that in the first place, the petitioner has not succeeded in proving that the whole property in dispute was allotted to him after a specific order had been made by the Deputy Rehabilitation Commissioner on the 28th September 1951, reducing the petitioner's allotment to 4 godowns only, The learned Judge has observed that this being the only allotment order in the field, the subsequent orders made by the Rehabilitation Authorities for delivery of possession to the petitioner could not enlarge the extent of the allotment. He has further held that the case being one of conversion of property, the petitioner was entitled to the transfer of only that portion which had been converted into an industrial concern. Finally, the learned Judge has held that the petitioner could not take advantage of the notification of the Central Government dated the 9th of September 1960 issued under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as on the date of the notification, no ejectment proceedings were pending for the benefit of the petitioner. On these findings, the High Court has refused to interfere with the revisional order made by the Settlement Commissioner on the 28th of February 1967.
10. In support of the present petition, it is submitted by Mr. Gul Muhammad that the petitioner being the allottee of the entire property and having failed to get possession of the remaining godowns through no fault or negligence of his own, was to be deemed to be in possession, in terms of the Central Government Notification of the 9th of September 1960, enlarging the meaning of the term "possession" as defined in clause (6) of section 2 of the Act, and accordingly, he was entitled to its transfer under paragraph 15(3) of the Schedule to the Act. It is contended that the learned Settlement Commissioner, as well as the learned Single Judge in the High Court, were in error in thinking that the petitioner's case was not covered by the said notification. The learned counsel also contends that the finding recorded by the Settlement Authorities that portion 'A' and 'B' of the property are separate and independent, is not sustainable, on the record. Finally, Mr. Gul Muhammad submits that in any case, the dissection of portion 'A' into sub-portions is arbitrary and capricious, as portion 'A' has only one door opening on the road.
11. After hearing the learned counsel at some length and perusing the orders made in this case from time to time by the Rehabilitation and Settlement Authorities, we are of the view that there is no merit in this petition.
12. It is an admitted fact that the petitioner was in physical occupation of only 4 godowns on the 20th of December 1958. He could lay a claim to the rest of the property only if he could show that he could be deemed to be in possession thereof under the notification issued by the Central Government, on the 9th of September 1960, and further that the remaining portions were part and parcel of the industrial concern, established by him by conversion of the property.
13. On the first point, it is clear that the notification of the 9th of September 1960, relates only to shops and houses. The claim of the petitioner being for the transfer of an industrial concern, by conversion of godowns, the case is not covered by the said notification. The contention that for purposes of possession the property should be deemed to be a shop and for purposes of entitlement to the transfer, it should be deemed to be an industrial concern, is clearly fallacious.
14. Under the instructions issued by the Central Government in respect of converted properties, it is clear that shops or houses converted into industrial concerns have to be disposed of as industrial concerns, and to the extent that such conversion has taken place. The petitioner cannot therefore, treat the property as a shop for one purpose and as an industrial concern for the other. It is clear to us, therefore, that the notification of the 9th of September 1960, creating an entitlement in favour of allottees without possession, applies only to shops and houses and not to properties which since stand converted into industrial concerns and are to be dealt with under paragraph 15(3) of the Schedule to the Act.
15. Even otherwise, it is clear from the facts already stated that the ejectment proceedings started against the Food Department at the instance of the petitioner, were filed by the Deputy Rehabilitation Commissioner on the 14th April 1958, and the petitioner did not agitate any further in that behalf. It must therefore, be held that on the 9th of September 1960, no ejectment proceedings were pending for the benefit of the petitioner. The aforesaid notification was therefore, not attracted in this case.
16. It was submitted by Mr. Gul Muhammad, that the ejectment proceedings were dropped by the Deputy Rehabilitation Commissioner on account of the promulgation of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and therefore, this fact should not be allowed to operate to the disadvantage of the petitioner. There is no merit in this sub-- mission. A reference to section 29(1) of the Act, as originally enacted, shows that only the implementation of those orders of ejectment was barred which had been passed on or after the 13th of February 1958. In the present case the orders of ejectment against the Food Department were passed much earlier than this date. If therefore, the Deputy Rehabilitation Commissioner, refused to proceed with the matter, it was incumbent upon the petitioner to challenge the correctness of that order, but he failed to do so.
17. It has therefore, to be held that the petitioner was in possession of only 4 godowns, and could not be deemed to be in possession of the remaining portion of the property. On this finding alone, his claim to the transfer of the rest of the property stands negatived.
18. Further, there is a finding of fact recorded by the Settlement Authorities that portions 'A' and 'B' are completely separate and independent from each other. This finding is amply -supported by a reference to the plan of the property, which has been placed on the record by the petitioner. The plan shows that there is a blind wall running from one end to the other between portions 'A' and 'B', and both the portions have main gates opening on the street. The petitioner could not therefore, legitimately claim portion 'B' of the property.
19. As regards portion 'A', we find that the Settlement Authorities have again held that the different godowns are separate and independent, all of them being served by the main entrance from the street. This finding cannot be said to be arbitrary and capricious in any manner and accordingly, it was not amenable to interference in the exercise of the writ jurisdiction of the High Court.
20. For the foregoing reasons, we are of the view that the Settlement Authorities as well as the High Court were right in holding that the petitioner was entitled to the transfer of only 4 godowns in his possession, which he had converted into an industrial concern. The petition accordingly fails and is hereby dismissed.