1. MUHAMMAD GUL, J.-This appeal by leave raises a question of general public importance as to the correct connotation of term "cinema house" in paragraph 15, section 4, in the Schedule to the Displaced Persons (Compen--sation and Rehabilitation) Act, 1958 (Act XXVIII of 1958) (hereinafter called the 1958 Act), so as to provide a valid basis for the transfer of a cinema house, or as the case may be, an industrial concern, under that paragraph. Another related question requiring examination is that as between the Claims Commissioner and the Chief Settlement Commissioner, who is the final arbiter of the nature of a claim for the purpose of its classification or categorization under the Registration of Claims (Displaced Persons) Rules, 1955 (hereinafter called the 1955 Rules), for furnishing a basis for the transfer of property under the 1958 Act? The rules originally framed under Ordinance II of 1955 but preserved under the Registration of Claims (Displaced Persons) Act, 1956 (hereinafter called the 1956 Act) provide for six Schedules. Each Schedule relates to a particular category of property abandoned by a displaced person in India at the time of his migration to Pakistan.
2. These two questions have arisen in relation to the transfer of Nishat Cinema, situate in Rawalpindi, in the circumstances set out below: "Shaikh Ahmad Sadiq, appellant herein, is a claimant displaced person with a verified claim of Rs.
3. 3,94.052, under Schedule III of the 1955 Rules. Respondents 2 to 7 herein had also verified claims for various sums in the same Schedule. Schedule III relates to claims in respect of "Industrial Undertakings including buildings and lands comprising therein". As claimants with verified claims under Schedule 111, the appellant and respondents 2 to 7 (along with certain other persons) were allotted Nishat Cinema, at Rawalpindi, in different fractional shares. The appellant being the holder of the largest claim under Schedule III was designated as the "managing allottee".
4. Paragraph 15 in section 4 of the Schedule to the 1958 Act provides for the transfer of an "industrial concern or a "cinema house" to a claimant subject to a number of conditions laid down therein and any order that may be made by the Central Government under paragraph 15-A ibid. It would be advantageous to set out at this stage paragraphs 15 and 15-A and the order issued by the Central Government under the latter provision: "(1) Every industrial concern or cinema house shall, subject to the provisions of the following sub- paragraphs, be `sold' in an unrestricted public auction.
(2) If an industrial concern or a cinema house allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilita--petition Board constituted under the Pakistan Rehabilitation Act, 1956 (XLII of 1956), is in the possession of a claimant who has left in India or any area occupied by India a registered industrial concern or a cinema house or whose verified claim under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, is of the value of Rs.
5. One lac or more than the industrial concern or the cinema house in the possession of such claimant `shall', in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any: Provided that if the claimant concerned has abandoned a share in a registered industrial concern or a cinema house the industrial concern or the cinema house in his possession shall not be transferred to him unless his verified claim in respect of such share is rupees thirty-three thousand or more.
(3) If an industrial concern or a cinema house not allotted by the aforesaid Industries Rehabilitation Board, is in the possession of a displaced person, or a local, then such concern or cinema house shall, in case he applies in that behalf, be transferred to him on payment of its prevailing market value minus the investment made, if any.
(4) If any local or displaced person has invested in any industrial concern or cinema house, not being an industrial concern or cinema house transferred under sub-paragraph (2) or sub- paragraph (3) not less than forty per cent. Of its prevailing market value, then that concern or cinema house shall, in case such local or displaced person applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made.
(5) Not more than one industrial concern or cinema house shall be transferred to any one person under sub-paragraph (2), or sub--paragraph (3) or sub-paragraph (4).
6. Explanation. ---------------------------..
7. "15-A. Notwithstanding anything contained in paragraph 15 the Central Government may make an order for the disposal of any class of industrial concerns or cinema houses in such manner as may be specified therein."
8. "In continuation of the Ministry of Rehabilitation Order No. F. 3(1)/59 SO (Clms.), dated the 19th October 1959, and in exercise of the powers conferred upon it under paragraph 15-A of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), the Central Government is pleased to make the following order for the disposal of industrial concerns and cinema houses:-
(1) If a Printing Press allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilitation Act, 1956 (XLII of 1956) is in the possession of a claimant who has left in India or in any area occupied by India a Printing Press, then the Printing Press in the possession of such claimant shall, in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any.
(2) If any local or displaced person has invested in any Engineering concern, not being an Engineering concern transferred under sub--paragraph (2) of sub-paragraph (4) of paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, not less than fifty per cent. Of the prevailing market value of the machinery installed therein, such Engineering concern shall, in case such local or displaced person applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any.
(3) If an industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the possession of a claimant whose claim in respect of a registered industrial concern or cinema house left by him in India has been verified for an amount less than rupees thirty-three thousand, then the industrial concern or cinema house in the possession of such claimant shall, subject to the rights of any other person who may otherwise be entitled to retain it, be sold in an unrestricted public auction: Provided that if the value of the industrial concern or cinema house in the possession of such claimant does not exceed three times the amount of his verified claim in respect of the registered concern or cinema house left by him in India, the Chief Settlement Commissioner may transfer the industrial concern or Cinema House in the possession of such claimant to him on payment immediately of the prevailing market value.
(4) If an industrial concern or a Cinema House allotted by the aforesaid industries Rehabilitation Board is in the possession of claimant who has left in India a registered industrial concern or whose claim in respect of an unregistered industrial concern left by him in India has been verified under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, for an amount of rupees one lac or more then unless the value of the machinery installed in the registered or unregistered industrial concern left by him in India. Has been verified for a sum of rupees sixty-six thousand or constitutes at least one-third of its total value, the industrial concern or Cinema House in the possession of such claimant shall subject to the rights of any other person who may otherwise be entitled to retain it be sold in an unrestricted public auction."
9. With the commencement of the settlement operations under the 1958 Act, the appellant and respondents 2 to 7 were transferred Nishat Cinema in specified shares, but the appellant has, for the reason mentioned above been designated as managing transferee of the cinema.
10. Respondents 2 to 7 can broadly be divided into two categories. Respon--dents 5 to 7 are heirs and legal representatives of Shaikh Ghulam Dastgir since deceased, who had a verified claim of the value of Rs. 4,66,000, in respect of Firdaus Cinema, which he had built at Jullundur, before he migrated to Pakistan. This claim was initially verified under Schedule III to the 1955 Rules.
11. Respondents 2 and 3, and one Muhammad Ahmad Khan, predecessor-in-interest of respondent No. 4, filed claims as mortgagee---lessees of Firdaus Cinema, under - an agreement dated 15-6- 1945 with Shaikh Ghulam Dastgir. Their claims were also verified under Schedule III for an aggregate sum of Rs. 1,25,000, as mortgagee-lessees of Firdaus Cinema.
12. On the basis of the above verification of claims the appellant and respondents 2 to 7, by order dated 16-10-1964, made by the Additional Settlement Commissioner (Industries), exercising the powers of the Chief Settlement Commissioner, were transferred following shares in Nishat Cinema.
13. Sh. Ahmad Sadiq, appellant .34.96% H. K. Lodhi, respondent No. 2.12.64% S. K. Lodhi, respondent No. 3.3.77% Mst. Zamani Begum, respondent No. 4, widow of Muhammad Ahmad Khan .2.44% Respondents 5 to 7 .19.62% (Note: Certain other persons were also given the remainder shares, but they are not parties to this appeal).
14. "It is the case of both the parties now that the building was nearly complete though it had not been furnished. The question is whether a mere building can be described as an industrial concern? I have given my best consideration to the matter. In my opinion, a mere cinema building cannot be described as industrial concern unless it is fitted with necessary machinery and other equipment and starts running actually. It has also been the practice of this Court to assess cinema and factory buildings which have not been fitted and equipped with machinery as urban properties under Schedule I. In my opinion, therefore, the method of assessment adopted by the Deputy Claims Commissioner was correct. The Additional Claims Commissioner, however, treated the cinema building as, an industrial concern and assessed its value on the basis of the cost of construction formula prescribed for the assessment of properties under Schedule III. The cost of construction formula as well as the rental formula are based on sound economical principles and are used for assessm ent of properties all over the world. Given correct data, the two methods should not lead to widely divergent results. I would prefer to assess this property as a unit under Schedule I and assess its value by reference to the rental formula."
15. The above order was upheld by a Bench of the late High Court of West Pakistan at Lahore in Writ Petition No. 29 of 1961, filed by respondent No. 3 herein to which the appellant and respondents 5 to 7 herein were party respondents. Of them, the appellant herein opposed but respon--dents 5 to 7 herein supported the writ petition.
16. As a sequel to the above order of the Claims Commissioner, transferring the claims of respondents 2 to 7 herein from Schedule III to Schedule I, the appellant herein, moved the Chief Settlement Commissioner for the cancella--petition of the transfer of their fractional shares in the Nishat Cinema, because they had ceased to be eligible for the transfer of the same under para--graph 15 and the Central Government's order under paragraph 15-A, in the Schedule to the 1958 Act. A prayer for a pro rata increase in his share in the cinema was also made by the appellant. The Chief Settlement Com--missioner by order dated 3-4-1963, rejected the appellant's application and maintained the earlier order of the transfer of Nishat Cinema in favour of the appellant and respondents 2 to 7.
17. Aggrieved by the above order of the Chief Settlement Commissioner, the appellant filed Writ Petition No. 1027/R of 1963, which was also dismissed by order dated 17-6-1968, by the same Bench which had dismissed Writ Petition No. 29 of 1961, moved by respondent No. 3 herein.
18. The main ground taken by the appellant in his writ petition was that Firdaus Cinema in respect of which the claim filed by respondents No. 2 to 7 had not been verified under Schedule III, and was found by the Claims Commissioner not to be a cinema house, or an industrial undertaking but was treated as mere "Urban immovable property" covered by Schedule I of the 1955 Rules. Therefore, respondents 2 to 7 had ceased to be eligible for the transfer of any share in Nishat Cinema under paragraphs 15 and 15-A and the Central Government notification set out above. The learned Judges negatived the plea on the ground that a claimant who had abandoned "a registered industrial concern or a cinema house" in lieu whereof he claims transfer of an industrial undertaking in Pakistan presently in his possession as its allottee, is entitled to its transfer regardless of the fact whether or not his claim is verified under Schedule III, and that such a transfer was not "beyond the scope of paragraph 15(2)". The learned Judges also took the view that the Claims Organization was concerned with "the verification of the property abandoned and if a particular property is not found to be a running cinema for want of installation of machinery etc., and has been verified as a building for such a concern it cannot be said that the building for its "planned or potential use was not going to be a cinema house." In reaching that conclusion, the learned Judges also based themselves on the departmental interpretation that Firdaus Cinema though "not complete in every respect was intrinsically and potentially a cinema house."
19. It would be convenient to first deal with the second question on which leave to appeal was granted. For one thing, it will help demarcate the frontiers of the respective jurisdictions of the Claims Commissioner and the Chief Settlement Commissioner and also to determine whether any order made by the former would be binding upon the latter, and if so to what extent. This question has arisen because of the apparent differential treat--ment of Firdaus Cinema by the Claims Commissioner and the Chief Settlement Commissioner. But as I will presently show, on the facts of the present case, there hardly arises any question of the latter overriding any order made by the former or vice versa.
20. The Claims Commissioner and the Chief Settlement Commissioner derived their respective authority and jurisdiction from the 1956 and the 1958 Acts. The two Acts are concerned with two different stages or phases in the process of permanent settlement of displaced persons by transferring to them, the available evacuee properties as far as possible pro rata in relation to the properties they had been obliged to abandon, in what is now India. In A that sense these jurisdictions are complementary to each other, but their respective purview is clearly defined so that there is no overlapping. The 1956 Act according to its preamble is designed "to provide for the registra--petition and verification of claims of displaced persons in respect of property in India and areas occupied by India". The expression "property" has been defined in subsection (2), which sets out with great particularity different kinds of property with reference both to its intrinsic character and location. The important thing to notice is that the term is limited to immovable property of various kinds or any right accruing in relation thereto, as distinguished from movable property or mere choses in action. The Act creates machinery for the verification of "claims" in respect of such property and classification of such "claims" in different categories. It also creates a hierarchy of officers with Claims Commissioner at the apex, making provisions for investigation etc. Of such claims and for appeals and revisions. Section 18 of the Act empowers the Central Government to frame rules to carry out the purposes of the Act, particularly with regard "to the manner" in which claims may be registered. Pursuant to this provision, the 1955 Rules framed under Ordinance II of 1955 were preserved. These rules among other things prescribe five Schedules in which claims of different categories are to be registered. Schedules I and III noticed already are material to this case. In nutshell the purpose of the 1956 Act is to create machinery to evaluate, and classify the "claim" of each claimant under the appropriate Schedule prescribed under the 1955 Rules.
21. That concludes the first phase in the process of the settlement of dis--placed persons. Up to that stage the Chief Settlement Commissioner who is a creature of a separate statute, namely, the 1958 Act, is not concerned. That Act on the other hand, concerns the second phase in the process of settlement of displaced persons. According to its preamble, the Act is designed to provide "for the payment of compensation to certain displaced persons and the rehabilitation of certain others and for matters incidental thereto or connected therewith". Briefly, the Act establishes what is com- -monly known as the Settlement Organization with a hierachy of officers under the Chief Settlement Commissioner at the apex. It also creates various pools of evacuee property of different kinds other than agricultural land and provides for the "grant" of compensation in cash or in kind, out of the appropriate pool in accordance with the provisions of the Act, Schedule thereto and various schemes framed thereunder.
22. Two things are, however, noteworthy. First, as respect a claimant, the grant of compensation is to be determined with reference to his claim as verified under the 1956 Act, other than his claim for the agricultural land. This is implicit in the definition of "claim" in subsection (1) of section 2 of the 1958 Act. Secondly, there is nothing whatever, in the 1956 Act to empower the Claims Commissioner to predicate a particular evacuee property or even a class of evacuee property for the satisfaction of a claim verified by him. This is germane entirely to the second phase of the settlement opera-- tions, which is the exclusive domain of the Settlement Organization with which the Claims Organization is not concerned.
23. On the above analysis, therefore, it entirely rests with the Claims Commissioner to classify a "claim" with reference to the Schedules in the 1955 Rules, and the Chief Settlement Commissioner is to proceed on that basis and decide consistently with the provisions of the 1958 Act, how, in what manner and out of which particular pool a displaced person's verified claim is to be satisfied. The two phases in the process of J settlement and rehabilitation are clearly delineated under the two statutes, though they are complementary to each other. In other words, the verification of claim and its classification falls squarely within the exclusive jurisdiction of the Claims Commissioner, which both as a matter of law and practice forms a basis for the grant of compensation to the claimant.
24. Incidentally another point which, in my opinion, necessarily arises in the case is, whether the Chief Settlement Commissioner, by transferring fractional shares in Nishat Cinema to respondents 2 to 7, despite a re-classification of their claims under Schedule I, has, in any manner acted in derogation of the revisional order of the learned Claims Commissioner dated 24-11-1960. This begs the further question as to what precisely was decided by the learned Claims Commissioner?
25. From the excerpt of the revisional order of the learned Claims Com--missioner set out above, it appears that the Deputy Claims Commissioner, originally verified the claim of respondents 2 to 7 under Schedule I; which on appeal, the Additional Claims Commissioner registered under Schedule III relating to "Industrial undertakings including buildings and lands comprised therein". The learned Claims Commissioner by order dated 24-11-1960 H agreed with the Deputy Claims Commissioner and transposed the claims to Schedule I relating to "Immovable property other than industrial under--takings". It is, however, important to point out, that there is no separate Schedule in the 1955 Rules for "Cinema Houses" as such. Nor is the expression "Industrial Undertaking" in Schedule III defined anywhere in the two Acts. Further all that the learned Claims Commissioner said in his revisional order was, that Firdaus Cinema was not an "Industrial Under--taking" for the purpose of Schedule III. His finding did not go so far as to say that it was not a "Cinema House" nor for the relevant purpose he was required to record any such finding. Reference in the order to the absence of furniture and electrical and projection equipment was a reason in support of his order and in no sense a definitive finding that Firdaus Cinema was not a "cinema house". It is also important to point out that this expression was used for the first time in paragraph 15 of the Schedule to the 1958 Act as a basis for the transfer of certain kinds of property to claimants, with which as pointed out already, the Claims Commissioner was no more concerned.
26. On the above analysis therefore there is no question in this case, of the Chief Settlement Commissioner countermanding or over-riding any order of the Claims Commissioner by transferring the fractional shares in Nishat Cinema to respondents Nos. 2 to 7.
27. As to the connotation of the term "Cinema House" as pointed out earlier, it is not used in the 1956 Act. For the purpose of classification of Evacuee Property under that Act, the broad division of immovable property was "Buildings and Sites in Urban Areas other than Industrial Undertakings" under Schedule I, "Buildings of the value of not less than Rs. 10,000 in rural areas" under Schedule II and "Industrial Undertakings" (without any distinc--petition of being registered by unregistered) in Schedule III. It appears that the term "Cinema House" was used for the first time in juxtaposition with "Industrial Undertaking", in paragraph 15, Section 1V in the Schedule to the 1958 Act, set out above.
28. This clearly postulates that the intention was to treat "Cinema House" as belonging to a class of property different from "Indus--trial Undertaking" or else, the draftsman should not have used these two expressions one after the other in the same provision. And indeed that was the intention, is supported not only by the context, but also by the commer--cial usage and practice as will be seen presently.
29. It was recently observed in the majority judgment in Rafi-ud-din v. Chief Settlement Commissioner (PLD 1971 SC 252) that evacuee and rehabilitation legislations are of an extremely special character which are, from the very nature of things, to be construed not so much; on considerations that would weigh with Courts of law, but also on considerations of policy. It was also pointed out in that judgment that this special legislation is designed for meeting an c extraordinary situation of a complex and confusing nature created by influx of a large number of refugees, who had to be settled, and therefore, the legislation should not be construed upon strict legal principles and certainly' not in such a manner as to defeat the very object for which such special) legislation is designed. It can scarcely be controverted that all evacuee and rehabilitation legislation is remedial in character. Therefore, according to well established principle of interpretation, when the language of any such statute is equivocal or ambiguous then the Courts always lean in favour of an interpretation that would advance the remedy consistently with the object of the statute. In Crawford Statutory Construction, 1940 Edition, at p. 291, it is observed: "Closely related to the rule which permits the Court to consider the effect of the statute, is the rule which allows consideration of the spirit and reason of the law. . . Actually, there seems to be but little distinction between the spirit and reason of the law and the law's purpose, or scope. While the purpose of a statute is the reason for its enactment, the spirit or reason of the law is, perhaps strictly speaking, more closely connected to the legislative intention.
30. Since the intention of the Legislature constitutes the law of its enactments, it is the intention rather than the literal meaning of the statute which controls; or, as is generally said, the spirit of the statute will prevail over the strict letter. Consequently, cases which do not come within the strict letter of the statute, if within the spirit, will fall within the scope of the statute. But this principle is not applicable if the statute is clear and unambiguous, so that there is no doubt concerning the legislative intent . . . . . . . ."
31. Following the dictum in the majority judgment noticed above and the principle reproduced above, I have no doubt in my mind that consistently with the spirit of the law, the expression "Cinema House" as used in para-graph 15 in the absence of a statutory definition, will bear liberal construction, so as to advance the remedy in as large a measure as reasonably possible without any violence to the express language of the statute. To restrict its meaning to a running Cinema House fully equipped and licensed under the Cinematograph Act, 1918 (Act II of 1918), would be to exclude some case from the beneficial provisions of paragraph 15, which would be nugatory t the spirit underlying the statute.
32. Mian Mahmood A.I Kasuri, learned counsel for the appellant strongly relied upon the Press Note issued by the Chief Settlement Commissioner on 30-5-1960 under paragraph 16-B of the Schedule to the 1958 Act and argued that both under paragraph (d) of the Press Note and paragraph 15,2) in the Schedule to the 1958 Act, registration of claims under Schedule III in the 1955 Rules is a sine qua non for the transfer of a cinema house in favour of an evacuee claimant. Paragraph 15(2) of the Schedule in the 1958 Act has been set out in an earlier part of this judgment. Paragraph 16 ibid reads :- "Where any property is transferred to two or more persons jointly, the share of each transferee in such property shall be determined in accordance with such instructions as may be issued by the Chief Settle--ment Commissioner."
33. The Press Note dated 30-5-1960 issued by the Chief Settlement Commissioner under this paragraph for the purpose of this case reads :- "Press Note.
34. Subject.-Determination of the shares of joint transfers of properties.
35. The Chief Settlement Commissioner has issued the following instructions under para. 16-B of the Schedule to the Displaced Persons (Compen--sation and Rehabilitation) Act, 1958 for the determination of the share of each transferee where any property is transferred to two or more persons jointly . . . . , . . . . . . . ----------------------------------------------------------------.
(d) Industrial concerns . And . Cinema .Houses allotted by .The industries Rehabilitation Board and transferred under sub-para. (2) of paragraph IS of the Schedule.
36. The share of each transferee will be fixed in proportion to the amount of his claim under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955.
37. 30-5-1960 (Sd.)
38. Chief Settlement Commissioner, Pakistan."
39. The argument is that the Press Note having been issued under statutory powers has the compulsive force of a statutory instrument and it clearly envisages the registration of claim under Schedule III of the 1955 Rules as an essential condition precedent for the transfer of a cinema house to a claimant. On their plain reading, paragraph 16-B and the excerpt from the E Press Note make it perfectly clear that they are merely regulatory of the individual shares in a cinema house or an industrial concern in the event of its joint transfer to more than one claimant. In such an event, the measure of individual share of each transferee is "the amount of his claim under Schedule III". It is wrong to read the Press Note as prohibiting the transfer of a cinema house or an industrial concern to claimant, unless he has his claim verified under Schedule III. Power to prohibit, does not stem from paragraph 16-B, which is the source of authority for the issuance of Press Note by the Chief Settlement Commissioner. And it is not possible to point to any other provision as the source of authority to enable the Chief Settlement Commissioner to prohibit the transfer to a displaced person other than a claimant under Schedule III.
40. As regards paragraph 15 (2), it permits transfer of an industrial concern or a cinema house to a claimant- "(i) who is in possession of an Industrial Concern or a Cinema House under an allotment by the Industries Rehabilitation Board; and
(ii) who has left in India or any area occupied by India a registered Industrial concern or a cinema house or whose verified claim under Schedule III is of the value of rupees one lac or more . . . . . ."
41. It is not disputed that condition (f) above is satisfied in the case of respon--dents 2 to 7. As to condition (ii), it is not the case of respondents Nos. 2 to 7, that they left any registered industrial concern in India, and because of the order in revision by the claims Commissioner, it is no more open to them to contend that they are holders of verified claims under Schedule III of the 1955 Rules. Nevertheless, as they had left in India, Firdaus Cinema, which has been treated by the Chief Settlement Commis--sioner as "cinema house" for the relevant purpose, they became eligible for the transfer of Nishat Cinema. The three subsidiary conditions under con--dition (ii) above on the plain language of the statute, are in the alternative, so that fulfilment of any one of them will be sufficient fulfilment of the main condition (ii). In other words, holding of verified claim of the requisite value under Schedule III per se will be one of the alternative grounds under (ii) above. The word "or" which separates each subsidiary condition is plainly disjunctive and not conjunctive.
42. On the above interpretation of paragraph 15(2) in the Schedule, respon--dents Nos. 2 to 7 are amply qualified for the transfer of Nishat Cinema and the order of the Chief Settlement Commissioner transferring a share in Nishat Cinema to them has sufficient authority in law.
43. The revisional order of the learned Claims Commissioner refers to departmental practice under which claim in respect of an industrial under--taking is verified under Schedule III of the 1955 Rules, if it has been fitted with machinery and under Schedule I if it is not so fitted. The impression gained from this observation is that the Claims Organization has been treating "cinema house" and "industrial undertaking" on a par with each other, as if cinema house is also in the nature of industrial undertaking. As pointed-- out already, Schedule III in the 1955 Rules relates to Industrial undertaking only and there is no separate Schedule for "cinema house". The later expression was used for the first time in juxtaposition with industrial under--taking in paragraph 15 in the Schedule to the 1958 Act.
44. The question therefore, arises whether a "cinema house" is an "industrial undertaking" regarding which the claim should be registered under Schedule III? In the absence of a statutory definition we will have to fall back upon what is ordinarily understood by "industrial undertaking". Sometimes, the expressions "business" and "industry" are loosely used interchangeably. But there appears to be a clear distinction between the two. The basic concept of "industry" or its derivative "industrial under- -taking" is that there must be joint economic endeavour of the employer and the employee, to produce wealth or render services. In other words, what comes out of an "industry" must be the result of combined effort of t both the capital and the workmen and must be distinguished from what is commonly known as business or trade. In the case of industry, the relationship of employer and employee is not that of a mere master and servant. With reference to the Employment of Women, Young Persons and Children Act, 1920 (10 and 11 Geo. 5 C. 65), monograph 256 of the Halsbury's Laws of England, Third Edition, Volume 17, sets by way of illustration, that "industrial undertaking" includes particularly (1) mines, quarries and other works for the extraction of minerals from the earth; (2) industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed, including ship-building, and the generation, transformation and transmission of electricity or motive power of any kind; (3) construction, re-construction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour; (4) transport of passengers or goods by road or rail, including the handling of goods at docks, quays wharves and warehouses, but excluding transport by hand.
45. On the other hand, in the absence of an artificial definition of "Industrial Undertaking" if we were to extend its meaning to cover ordinary business or trade, then it would lead to some astounding results. The business of a hawker who employs a labourer to carry his basket or that of a petty shopkeeper who employs a servant to sweep his shop or to help him in maintaining the accounts, will have to be held to be an industry.
46. Bearing in mind the clear distinction between an "industrial undertaking" and a "business undertaking" in my opinion, running a cinema house will pre-eminantly be a "business undertaking" and not an industrial undertak--ing. What really happens in case of a running cinema is that the cinema-goer hires a seat in the auditorium during particular hours for viewing the exhibition of a film. In essence, this is comparable to the sale of wares from any business premises. Therefore, a "cinema house" is essentially a business undertaking and not an industrial undertaking. Incidentally this also explains, why the draftsman had used the expression "cinema house" in juxta-position with "industrial undertaking" in paragraph 15 in the Schedule to the 1958 Act.
47. Finally, it is not denied that the learned Chief Settlement Commissioner in proper exercise of his jurisdiction and after fully applying his mind, came to a definite conclusion that Firdaus Cinema was "intrinsically and potentially a cinema house" within the meaning of clause 15. One may, or may not. Quite agree with that conclusion. And merely because a contrary view is also possible would not make the order without lawful authority within the meaning of Article 98(1)(a)(ii) of the 1962 Constitution. Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139) is amongst the recent authorities on the point. There--fore, the learned Judges of the Division Bench were quite right to maintain the order of the learned Settlement Commissioner allowing respondents 2 to 7, various specified shares in Nishat Cinema.
48. For the foregoing reasons, I would dismiss the appeal, but in view of the difficulty of the law points involved, leave the parties to bear their own costs.
49. HAMOODUR REHMAN, C. J.-I agree.
50. SALAHUDDIN AHMED, J.-I agree.