' This Letters Patent Appeal is directed against the judgment dated the 29th September, 1966, whereby Constitutional Petition (Writ Petition No,31/R of 1963) filed by the petitioner claiming the transfer of the superstructure and machinery of Parkash Chand Dahwan Mall Rice Mills, Wazirabad, was dismissed. The facts necessary for the disposal of this appeal are that the aforestated mill was installed by an evacuee over the land taken by him on lease in the year 1932 for a period of twenty years from the Muslim owners. The mills, an industrial concern was allotted to the appellants in 1950. In 1952 after expiry of lease period the land under the .Mill was purchased by the present respondents. The allotment of the Mill was then cancelled by the Additional Rehabilitation Commissioner, Gujranwala vide his order dated 14-2-1955. This order was challenged in a revision which was accepted and matter was remanded to the Deputy Rehabilitation Commissioner for further scrutiny and fresh decision vide order dated 6-4-1957 of the Rehabilitation Commissioner, Gujranwala.
2. The question of character/nature of the property was also taken before the Custodian authorities and the Deputy Custodian held that the interest of the lessee as well as allottee had terminated in the land in dispute. The Additional Custodian vide his order dated 19-12-1959 granted the declaration that evacuee had no interest in the land and proceeded to give gratuitous advice to the Rehabilitation Department to hand over the vacant possession of the land to the respondents after removing the evacuee interest i,e. Machinery and the superstructure. It appears that there was some other land as well in which the evacuee had some interest and with regard to that the learned Additional Custodian observed that the share of the evacuee be got separated through partition. The order of the Additional Custodian was assailed by filing a revision petition before the Custodian Evacuee Property who vide his order dated 8th of March, 1960 upheld the finding respecting the status of land underneath the Mill. However, instead of directing the removal of the superstructure he observed as under:- "As the dismantling of the factory would be injurious to the rights of the petitioners and as the respondents cannot gain any advantage by having the factory removed and dismantled, in my opinion, it would be in the interest of all concerned if the land underneath the factory is acquired by the Rehabilitation Department, so that the factory may be sold or disposed of in its present form."
' The review petition was also dismissed by the learned Custodian on 11-5-1960. It also appears from the record that a Notification under section 4 of the Land Acquisition Act, 1894 for acquiring the land underneath the Mill was issued, but the same was cancelled subsequently on 22-12-1954.
' By the time the learned Custodian passed the above order settlement operations had already commenced with the result that the appellant as well as the Muslim owners i,e. The respondents, applied to the Settlement Authorities for the transfer of the evacuee interest. The case of the appellant was that he being allottee in possession of the industrial concern was entitled to its transfer under Para 15 (3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 while the respondents claimed that they being owners of the property, the interest of the Settlement Authorities would be well protected by transferring the evacuee interest to them. The learned Additional Settlement Commissioner, Gujrat, vide his order dated 31-10-1960 transferred the superstructure and the machinery to the respondents. This order of transfer was maintained throughout as first the review petition was rejected on 18-10-1960 and the revision was dismissed by learned Settlement Commissioner on 20th September, 1962. This led to the filing of the Constitutional petition, which was dismissed vide the impugned judgment dated 29th of September, 1966. Hence the present Letters Patent Appeal.
4. We have heard the learned counsel for the parties. Mr. Abid Hassan Minto, learned counsel, has submitted that the superstructure and the machinery were evacuee property and as such these formed part of the Compensation Pool constituted under the Displaced Persons (Compensation and Rehabilitation) Act 1958. He added that the Evacuee interest having gone to the Compensation pool, the said property is to be treated as "Industrial Concern" within the meaning of Paragraph 15 of the Schedule to the Act and as such the appellant is entitled to claim its transfer under Paragraph 15 (3) of the Schedule. This very plea was raised before the learned Judge in Chambers and was rejected by him with the observation that Paragraph 15 (3) of the Schedule visualises an industrial concern which consists not only of machinery but of land and superstructure, all three of which are part of Compensation pool, but in the present case the substratum i,e. The land is not part of the Compensation Pool and Paragraph 15 (3) of the Schedule is, therefore, not attracted and the appellant/petitioner as such would not be entitled to its transfer. No doubt, the term "Industrial Concern" has not been defined in the Act but the term 'registered industrial concern' has been defined in the explanation to Paragraph 15 as under:- "Registered Industrial Concern means a factory which stood registered under the Factories Act, 1934 on the fourteenth day of August, 1947."
' Paragraph 15-A of the Schedule further provides that "Notwithstanding anything contained in paragraph 15, the Central Government may make any order for the disposal of any class of Industrial Concern or Cinema House in such manner as may be specified therein". Further to this, Memo. No,2177-F&M-Reh/60, dated 4th May, 1960 was issued describing the manner of disposal of Industrial concerns and Cinema houses not allotted by the Industrial Rehabilitation Board. Para 2 of these instructions also contemplates the transferring of evacuee interest to the persons in possession. The question now arises is that whether in the circumstances of this case the appellant can be considered to be in possession. The appellants cannot claim to be in legal possession of the Mills as the allotment once made in the name of the appellants was cancelled and by efflux of time the evacuee interest in the land came to an end in the year 1952. The Additional Custodian, in his order dated 19th of December, 1959 had also directed the removal of the superstructure and the machinery and the legality of this direction was not held to be illegal by the Custodian in his order dated 8-3-1960. Though he observed that the removal of the superstructure would not serve the interest of any of the parties and for that reason he advised that the interest of all concerned would be served if the land underneath the factory is acquired by the Rehabilitation Department and then is disposed of. Be that as it may the claim of the appellant at best is that they were entitled to seek transfer of the machinery even if the superstructure was liable to be removed. Even if this plea is accepted it would not be of any benefit to the appellant at this belated stage as the machinery which was installed by the evacuee had already run out its normal life span when the settlement operations commenced and in any case the said machinery cannot be traced now. Moreover, at the time of commencement of the settlement operations, the basic component and the most important component of the Mill i,e. Land being not evacuee property did not form part of the Compensation Pool and today when this appeal has come up, the machinery is not available with the result that the entire substratum have been lost. The appellant in the circumstances is obviously not interested in paying for the junk only as well as for the superstructure which he will have to remove. The appellant is no more interested in prosecuting the matter of transfer. Even otherwise the order passed by Settlement authorities being eminently just was not rightly interfered with by the learned Single Judge. For all these reasons the appeal fails and is dismissed with no order as to cost.