1. WAHEEDUDDIN AHMAD, J.-This judgment will dispose of Civil Appeals Nos. 17 and 18 of 1969, in which common question of law is involved.
2. Civil Appeal No. 17 of 1969, arises out of the judgment of the former High Court of West Pakistan, Lahore in Writ Petition No. 153/R of 1961, dated the 2nd June 1964, dismissing the writ petition with costs. This petition relates to a dispute about 40 kanals 5 marlas and 195 sq. Ft. of land which, according to the appellant, formed part of Shorey Studio on Multan Road, Lahore. It is the case of both the parties that Mr. R. K. Shorey, a famous film industrialist of Lahore decided to set up a well- equipped modern studio. For this purpose, he needed a large piece of land. He entered into an agreement with Kh. Abdur Rahim, Kh. Ghulam Muhammad and Mian Abdul Haq to purchase agricultural land measuring 136 kanals 12 marlas and 86 sq. Ft. Situated on Multan Road, Lahore.
3. Since the alienors belonged to an agricultural tribe, they could not sell the land to a non- agriculturist under the Punjab Alienation of Land Act of 1900, without the sanction of the Deputy Commissioner. An application was made on the 2nd March 1945 to the Deputy Commissioner, Lahore in this behalf. It was stated in that apple--cation that the purchaser required the land for the purpose of constructing a film studio which was an industrial purpose and sanction for it was permis--sible under paragraph 37 of the Punjab Land Administration Manual. Mr. A. A. Williams, the then Deputy Commissioner, by order dated the 15th March 1945, gave the required sanction and observed in his order that the land was required for the construction of film studio. The vendors accordingly sold the land in question by sale-deed dated the 28th February 1946.
4. After the purchase of the land, Mr. R. K. Shorey submitted a lay out plan covering the entire area to the Corporation authorities for sanctioning the plan to construct the said Shorey Studio. The sanction was duly given by the Town Planner and the Chief Officer of the Corporation. According to the sanctioned lay out plan, four studios, laboratories with projection theatres, workshops, one lake, a swimming pool, six bungalows, tennis Courts, one club, big lawns and private pacca roads, were provided in it. It may be mentioned that the land which was purchased was covered by the lair out plan of the studio sanctioned by the Municipal authorities. The purchaser constructed a boundary wall along this land and started construction of the film studio. A portion of the studio was completed when the communal disturbances started in 1947 and the non-Muslim owners had to migrate to India. During the disturbances, the studio was burnt and damaged.
5. The appellant is a displaced person and film industrialist of India, who has settled down in Lahore and applied to the Punjab Industries Rehabilita--petition Board for the allotment of some studio.
6. The Industrial Rehabilitation Board in July 1949, allotted Shorey Studio to the appellant.
7. A portion of the land purchased for the purpose of the Studio, was allotted to deceased respondent No. 1 Dr. Yar Muhammad in April 1941 Another piece of land which is the subject-matter of Appeal No. 18 of 1969. Was allotted to another person Mr. Niaz Muhammad.
8. Since the entire Shorey Studio comprising of 136 kanals 12 marlas and 86 sq. Ft. Was allotted to the appellant, he applied to the Rehabilitation Board to get the possession of the remaining land which was allotted to Dr. Yar Muhammad and Mr. Niaz Muhammad. A lengthy correspondence took place between the Rehabilitation Board and the Rehabilitation authorities. The stand of the Rehabilitation Board was that the land allotted to Dr. Yar Muhammad and Niaz Muhammad was part and parcel of Shorey Studio, therefore, it should be restored to the appellant after cancelling the same from the allottees. The Additional Deputy Commis--sioner (R) by Memo. No. 4328, dated the 14th June 1951, informed the appellant and the Director of Industries that he was not competent to allot the land for the purposes of Studio which was an industrial concern and directed and advised the appellant to approach the Rehabilitation Commis--sioner (General) for this purpose. The appellant challenged this order in appeal before the Additional Rehabilitation Commissioner (Lands), which was dismissed by order dated the 2nd October 1951. The appellant filed a revision petition before the Rehabilitation Commissioner who by order dated the 24th April 1952, maintained the orders of the subordinate authorities and observed that the order of the Deputy Rehabilitation Commissioner (L) referring the appellant to Rehabilitation Commissioner (G) was correct. In this connection he also made a reference to Government Memo. No. 5520-R(L) dated the 5th November 1949. The appellant, thereafter, approached the Additional Deputy Commissioner (R), who, by his order dated the 30th January 1958, held that the agricultural land attached to the Shorey Studio was exempted from allotment for refugees for agricultural purposes and direct--ed that the temporary allotment made to respondents Dr. Yar Muhammad and Niaz Muhammad should be cancelled and given effect to in the revenue record. Against this order, Dr. Yar Muhammad respondent No. 1 filed an appeal which was accepted by the Additional Rehabilitation Commissioner, Lahore, on the 19th May 1958. He held that the Shorey Studio and not the Shorey Pictures as stated by the learned DRC(L) in his order dated the 24th January 1958, was allotted to the appellant a few months after the allotment of the land made in favour of the respondents. He further observed that it is not stated in the order of the Industrial Rehabilitation Board that the agricultural land in dispute was also allotted to the appellant. The appellant challenged this order before the Rehabilitation Commissioner, Lahore Division, Lahore, which was heard by Mr. Muhammad Yar Khan, Additional Rehabilitation Commissioner, exercising the powers of the Rehabilitation Commissioner. He dismissed the revision petition on 27-5-1959 and upheld the order of the Additional Rehabilitation Commissioner on the following observations "I have heard both the parties, inspected the revenue records and also inspected the spot in the presence of the parties. The Khasra Nos. Marked `X' are allotted to Dr. Yar Muhammad and are in dispute in this revision petition. Khasra Nos. Tick marked are in unauthorised possession of Syed Shaukat Hussain Rizvi. Khasra Nos. With red circles are within the built up area of the Studio and is either enclosed by a Chardiwari or has got a fencing. Questions for consideration in the case are :-
(i) Whether the land in possession of Dr. Yar Muhammad is part of the Studio or is an independent unit ?
(ii) Whether the order of the Industrial Rehabilitation Board covered the allotment of the agricultural land ?
(iii) Which of the two parties should be given preference for retaining agricultural land in dispute ?
(iv) When the allotment of the Studio is temporary, why Syed Shaukat Hussain Rizvi should insist on the allotment to him of the land in dispute.
9. I have carefully considered all tire aspects of this case. With regard to (i) above, the Revenue Records prove that those two are absolutely separate units although the owner was one Firm. The area 79 kanals 9 marlas included in the Studio is sufficient for its require--ment. The Studio is in possession of Syed Shaukat Hussain Rizvi for many years and has been properly functioning.
10. With regard to No. (ii) above the Board was competent to allot the Studio and not the attached land. The order conveyed in the Director of Industries Memo. No. 199, dated the 30th July 1949 clearly shows the allotment of the Shorey Studio and not of the Shorey Pictures. Recommendation of the Director of Industries for the allotment of the land in dispute to Mr. Rizvi was made in February 1950. This recommendation was turned down by the D. R. C. In June 1951. The following reply was given to Mr. Shaukat Hussain Rizvi by the D. R. C.- "As you require agricultural land for the extension of your Studio, I am afraid, I am not competent to allot land for the purpose. However, the land in question is already under the cultivating possession of refugee allottees who held land in Urban area in the prescribed territory.
11. The D. R. C. Was quite right in giving the above reply as he treated the land a separate unit and that this land was in fact required for the proposed extension of the Studio.
12. As regards (iii) above, both the parties are claimants for allotment of urban land under the Scheme for the temporary allotment of urban land to claimants under Schedule IV to the Registration of Claims (Displaced Persons) Act, 1956. Dr. Yar Muhammad.Is in possession of this land since 1949. Syed Shaukat Hussain has been carrying on his business and the former has been cultivating the land in dispute since many years. I see no reason to cancel the allotment made to Dr. Yar Muhammad after such a long time merely to give this land to Syed Shaukat Hussain Rizvi either for extension at this stage to the Studio or in satisfaction of his claim for land.
13. With regard to (iv) above, I do not understand why Syed Shaukat Hussain Rizvi should carry out improvements in the Studio now when the question of the permanent disposal of the Studio under the Displaced Persons (Compensation and Rehabilitation) Act, 1.958, is soon to be taken up."
14. The appellant filed further revision petition against the said order before the Settlement and Rehabilitation Commissioner, Mr. Hasham Raza, which was accepted by order dated the 24th May 1960, on the following observation :- "From the record and the lay-out plan of the Lahore Municipal Corporation, I find that the entire area comprising the Studio and the agricultural land purchased in the year 1946 was acquired by the Shori Pictures for the purpose of building a well-equipped Studio. As a result of Independence, only a part of the land was developed as a studio whereas the land under dispute continued to be agricultural land. This land was allotted to Dr. Yar Muhammad by a Settlement Officer on a temporary basis, in lieu of his claim for urban agricultural land left by him in India. Since the land in question was the property of the Shori Pictures purchased for the development of the Studio, I feel that its utilization for any other purpose will hamper further extension of the Studio. As Dr. Yar Muhammad has already been allotted urban agricultural land in Lahore in satisfaction of his claim for urban agricultural land, I exclude the land under dispute from allotment as urban agricultural land and amalgamate it with the Shori Studio. The current market value of the land should be assessed by the Secretary (Urban). This amount should be recovered in lump sum from Syed Shaukat Hussain .Rizvi either in cash or against his compensation before the land is transferred tonhim." .
15. A review petition was filed against this order before Mr. Ahsanuddin, who was successor of Mr. Hasham Raza. The learned Chief Settlement Commissioner, by order dated the 31st October 1960, accepted the review petition and set aside the order of Mr. Hasan Raza on the following observation :- "After perusal of the record and the lay-out plan approved by the Municipal Corporation, I am satisfied that initially the entire area covering the Studio together with the agricultural land was acquired by the Shori Pictures for the purpose of building a studio. The land was purchased in the year 1946, but the present studio has been built only on a part of that extensive land. Since 1946, according to the revenue records, the land under dispute has throughout continued to retain its agricultural character. It was, therefore, allotted by the Settlement Officer to Dr. Yar Muhammad Khan temporarily in lieu of the urban agricultural land abandoned by him in India. After studying the relevant revenue records I find that the field numbers comprising the land allotted to Dr. Yar Muhammad Khan have been described as agricultural land belonging to the Shori Pictures.
16. Whereas the field numbers comprising the Studio have been described as the Shori Studio. The office record and the correspondence on the subject of allotment shows that what was allotted by the Board to Mr. Rizvi was only the Studio and not the concern named the Shori Pictures. Thus, although the land comprising the disputed field numbers was the property of the Shori Pictures at the time of its allotment it was distinct from the Shori Studio. The allotment of the Studio, therefore, cannot be construed to have included the disputed land."
17. "My predecessor appears to have passed his order of 24th May 1960, not in the capacity of the Rehabilitation Commissioner, but in his capacity as the Chef Settlement Commissioner, acting under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Industries Branch acts under the said Act. Could the Chief Settlement Commissioner in the Industries Branch cancel the allotment made by the Rehabilitation Commissioner (Land)? There is no scope for doing so under Act XXVIII of 1958. For this reason also the order of my learned predecessor is exposed to challenge."
18. It was further observed ,in paragraph 9 as under "The last question that requires mention here concerns the rights that have accrued to the respondent. Initially it was but a temporary .Allotment. Do the two orders of the Rehabilitation Commissioner (Land) .Referred to above convert the temporary allotment into a ;permanent allotment ? The answer is in the negative. The orders ,merely reject the claim of Mr. Rizvi vis-a-vis the temporary allottees. Confirmation of their allotments will, therefore, be subject to the conditions and the scales prescribed in the respective Schemes for allotment of land according to which the rural Rehabilitation/ `Settlement authorities may pass orders if such orders have not already been passed. I, therefore, accept the revision petition and set aside -the order of my learned predecessor dated the 24th May 1960 and direct that the rural Rehabilitation/Settlement authorities may pass orders in accordance with law regarding the confirmation of the allotment of the land in dispute keeping in view the scale prescribed for such allotments."
19. The appellant challenged this order in Writ Petition No. 153/R of 1961,1 in the former High Court of West Pakistan, Lahore, which was dismissed by a Division Bench on the 2nd June 1964, amongst others, on the following observation :- "From the above discussion, it- is abundantly clear that Syed Hasbam Raza had no power to set aside the order of Mr. Khand. The order passed by him was thus without jurisdiction and Pir Ahsan- ud-Din was competent to review it, there being a mistake apparent on the face of the record, namely, absence of jurisdiction. For the foregoing discussion we find no force in this writ petition and dismiss it with costs."
20. The appellant challenged this order in Civil Petition for Special Leave to Appeal No. 240 of 1964, which was granted on the 15th October 1964.
21. Leave was granted in these cases to consider the following contentions :-
(i) That the Settlement and Rehabilitation Authorities acted illegally and beyond their powers in allotting lands which farmed part of Shorey Studio to the respondents ;
(ii) that the Chief Settlement Commissioner was not competent to review the order of his predecessor which was in favour of the appellant ; and
(iii) that after allotment of the said Studio to the appellant by the Punjab Industries Rehabilitation Board, the Settlement and Rehabilitation Authorities were not competent to allot the land forming part of that Studio to any one else.
22. At the hearing of the appeal, it was brought to the notice of this Court by Mr. Hidayat Ullah Khan Mocal, learned representative of the Depart--ment that by Notifications No. 1301/AQN/LIAR/71 dated the 25th May 1971, No. 1697-73/1567-R(L) dated the 16th May 1973, and Press-note No. 1243- AQN/LHR/GEN dated the 26th May 1973, the Chief Settlement Commissioner under section 2, subsection (3), clause (b) of the Displaced Persons (Land Settlement) Act, 1958, has declared the land in dispute as a building site and, therefore, both the appeals have become infructuous. The learned counsel for the parties took time to consider their position in the light of these notifications and Press-note.
23. Mr. Abdul Haq, learned counsel for the respondents stated that the land in dispute was confirmed in favour of his clients on the 22nd December 1961 and, therefore, these notifications do not apply to the land in dispute. Mr. Manzoor Qadir, learned counsel for the appellant pointed out that the land in dispute is an industrial area and, therefore, the above provision of law has no application to his case. Both the learned counsel contended that the appeals have not become infructuous. Without expressing any opinion on this question, I will proceed to deal with the dispute between the parties on merits.
24. The allotment in favour of the appellant which is at page 236 of the record, shows that the West Punjab Industries Rehabilitation Board, allotted the Shorey Studio, Multan Road, Lahore, to the appellant. In the letter dated the 23rd May, 1953, which is at page 37 of the record, the appellant amongst others, stated as under :- "Now the following are the whole Khasras numbers which are within the boundary wall of Shahnoor Studios and I want to acquire on suitable price for the extension of buildings and other Film Industry purposes. I, therefore, request you that necessary action in this respect may very kindly be taken at an early date :- Khasras Nos. 370 to 392, 321 to 334, 349/1, 350, 351 and 354."
25. This letter was addressed to the Director of Industries, Government of Punjab, Lahore.
26. From the facts narrated above, it is clear that the Rehabilitation authorities and the Chief Settlement Commissioner have arrived at the finding that Shorey Studio and Shorey Pictures are two separate entities, It is true that the entire area comprising the studio and the agricultural, land was acquired by the Shori Pictures for the purposes of building a well-equipped studio. It, however, appears that as a result of Partition, only a part of the land was developed as a studio and the land under dispute continued to be agricultural land. This land was allotted m Dr. Yar Muhammad and Niaz Muhammad. The plan, Aks Shajra, Mauza Pakki Thathi, Tehsil and District Lahore, also shows that the land on which the studio was built, was described as studio and the land on which the studio was not constructed has been shown in possession of Dr. Yar Muhammad and the appellant is an unauthorised occupant. The land which is constructed as studio is separated by road marked Khasra No. 354. It is further quite clear from the revenue record that the land at the time of Partition was used as agricultural land and continued to be used as such till today.
27. Mr. Manzoor Qadir, learned counsel for the appellant, has contended that it is the intention and the purpose for which the property was kept that would determine the nature of the property. In my opinion this con--tention is not well founded. I agree with the learned counsel for the respondents that in 1946 this land was agricultural land. Out of the entire land, a major portion of the land was actively diverted to industrial use and the remaining continued to be agricultural land. The land which continued to be agricultural land is the land in dispute which has been allotted to the respondents in these two cases.
28. Abdul Jabbar v. Settlement Commissioner, Sheikhupura and others (1969 SCMR 114It was held in that case as under :- "In the present case, the evidence was that these three rooms were from before Partition being used as separate shop rooms not for any of the purposes .Of the flour mill. Hence it cannot be said that the finding of the Settlement authorities that these rooms did not fall within the industrial concern transferred to the petitioner was in any way wrong."
29. Nafeesa Bano and others v. Chief Settlement Commissioner, West Pakistan, Lahore and another (PLD 1969 Lah. 480it was held as under "The test laid down in section 2(3) of the Displaced Persons (Land Settlement) Act, 1958, and in Part I, Chapter I, Para. 1(i) of the West Pakistan Rehabilitation Settlement Scheme, 1956, is the use to which the land was being put at the time on the 15th August, 1947."
30. I am in agreement with these views. In my opinion, the land in dispute was being put to use at the time of Partition as agricultural land and, therefore, Pir Ahsan-ud-Din, the Chief Settlement Commissioner was perfectly justified in holding that Mr. Hasham Raza was not competent to exclude it from the agricultural land and to transfer it to the appellant.
31. After carefully considering the arguments of learned counsel for the parties, I am satisfied that the Settlement authorities have rightly held that the appellant has nothing to do with the land in dispute and it has been rightly transferred to the respondents. No other point was urged by the learned counsel for the appellant.
32. HAMOODUR RAHMAN, C. J.-I agree.
33. MUHAMMAD GUL, J.-I agree.