KHALIL-UR-REHMAN, J - The dispute in this petition pertains to property bearing No. 8-90-R-38 Mohan Lai Road, now Known as Urdu Bazar, Lahore. This double storey building was allotted to M/S Al-Hilal Ltd. . Which statedly established, after Partition, the business of printing therein. One shop out of this building, was in possession of M/S M.R. Brothers, the Concern owned by S.M. Latif, respondent No. 1. It is claimed that Maulvi Muhammad Ahmad, father of the petitioners, was the Managing Director of M/S Al-Hilal Ltd. And he purchased all the shares of the Concern and thus became its full owner. It is also asserted that some incomplete portion of the upper floor was also completed by him. It may be noted that the Additional Rehabilitation Commissioner, after spot inspection recorded the note dated 23.7.1955 to the effect that "the premises in possession of M/S Al-Hilal Ltd. Are more than their requirements but he was not in favour of disturbing their possession at this stage and that both the parties, M/S Al-Hilal Ltd. And M/S M.R. Brothers, can remain where they are". On the commencement of settlement operations, father of the petitioners filed C.S. Form, while respondent No. 1 filed N.C.S. Form and Muhammad Amal, respondent No. 8, filed N.C.H From for the transfer of the premises. The Deputy Settlement Commissioner vide order dated 28.1.1960, transferred the entire building to Maulvi Muhammad Ahmad, the father of the petitioners, except one shop in possession of respondent No. 1 as the same was ordered to be transferred to respondent No. 1. The P.T.O, dated 30.1.1960 was issued to the petitioners' father followed by Appendix XI dated 27.2.1960. It is asserted that the transfer price was also adjusted from the Compensation Book of the father of the petitioners. This order was challenged by filing two appeals by the a forenoted two respondents. The impugned order of transfer dated 28.1.1960 was set aside vide order dated 20.5.1960 of the Additional Settlement Commissioner who further directed that the i.e be sent to the Settlement Commissioner(Factories) as the property being a factory is to be dealt with by the Industries Wing of the Settlement Department. He further opined that the property be treated as one unit. This order was then challenged by filing three revision petitions one by Maulvi Muhammad Ahmad, the other by S.M. Latif, and the third by Muhammad Amal, respondent No.8. These three petitions were disposed of by the then Settlement Commissioner vide order dated 1.8.1960 with the direction that the property be disposed of by public auction. This order was then challenged by filing three second revision petitions which were, however, rejected vide order dated 10.6.1961 of the then Chief Settlement Commissioner with the direction that the building be put to unrestricted public auction. This led to the filing of two consition petitions, one (WP.541-R/61) by father of the petitioners and the other (w.P.625/R/61) by respondent No. 1 in this Court. Both these constitution petitions were dismissed by this Court vide judgment dated 18.1.1966. Thereafter two appeals (LPA .770/66 and 281/66) were filed by the petitioners' father and and S.M. Latif. Both these appeals were allowed vide judgment dated 11.12.1973 and the order Of the Chief Settlement Commissioner was set aside and the matter was remanded to the Chief Settlement Commissioner for fresh decision in accordance with law after giving notice to the parties concerned. The remand matter remained pending for yeats. At this stage, respondents No. 2, to 10 also entered the arena by filing the Forms under Scheme No. VIII claiming transfer of the respective portions in their possession. The case of the petitioners is that 12 rooms were rented out by them to respondents No.2 to 10 in the year 1964-65 and that these respondents had been paying rent to them until 1968 and as such they did not have the right to claim transfer of these rooms in their favour. The remand matter was ultimately taken up by the Settlement Commissioner and vide order dated 28.1.1982, one shop and portion on the Ist-floor in possession of S.M. Latif was ordered to be transferred to him and the rooms in possession of respondents No.2 to 10 were ordered to be transferred to these respondents respectively. The rest of the portion of the building was ordered to be transferred to the petitioners.
2. S.M. Latif, respondent No. 1, filed a constitution petition (W.P.319- R/82) in this Court but the same was dismissed in limine, vide order dated 10.10.1982. S.M. Latif filed petition for special leave to appeal (C.P.S.A.No.975/82) before the Supreme Court but the same was also dismissed by the honourable Judges of the Supreme Court with the observations that the petitioners' claim has already been amply satisfied. The petitioners also challenged the order dated 28.1.1982 of the learned Settlement Commissioner by filing the present constitution petition.
3. The grounds taken in the petition are that the learned Settlement Commissioner illegally associated respondent No.2 to 10 excepting respondent No.8 in the proceedings as after remand from the High Court, the proceedings were to be taken in accordance with Settlement Scheme No. 1 and were to be limited to the petitioners, respondents No. 1 & , they being the only applicants for the transfer of the property under the sais Schemed that respondent No.2 to 7, 9 & 10 were not eligible to be considered as applicants for the transfer as the property was not "available property" to be disposed of under Settlement Scheme Nos. S & 9 after the repeal of Evacuee Laws; that respondents No.2 to 10 came into possession of the premises as tenants of the deceased father of the petitioners and the said possession does not make them eligible for seeking transfer of the property in competition with the father of the petitioners who was allottee of the entire building and only claimant/ applicant for the transfer of the building under Settlement Scheme No. 1; and that the learned Settlement Commissioner has wrongly considered the building to be divisible. It was added that the Settlement Commissioner previously held that the property is one unit and has been used as a printing press by the deceased father of the petitioners and as such any subsequent change in the structure made by the occupants cannot affect the status of the property.
4. Learned counsel for the petitioners during arguments preferred to raise as against the above noted pleas, the following contentions:-
(i) That the property is transferable to the petitioners as unregistered industrial concern under para 15(3) of the Schedule as at the time of Independence, the building was being used as a Printing Press by the evacuee though the said evacuee had removed the machinery before Partition and as again after Partition, a Printing Press was installed by M/S Al-Hilal Ltd. And such a press has been functioning till 1966-67 ;
(ii) That the building was incomplete and the same was completed and constructed by the father of the petitioners and as such the petitioners are entitled to seek transfer of the building in view of the construction made;
(iii) That the front portion of the property was converted into shop by the father of the petitioners and was rented out to respondent No.2 to 7,9 and 10 the years 1965-66 Muhammad Amal respondent was also accommodated by father of the petitioners. He though submitted the Form but the said Form was rejected and even the Chief Settlement Commissioner vide order dated 10.6.1961 had refused his request to transfer the portion in his possession to him. This order was not challenged and as such neither the said respondent nor the other respondents except S.M. Latif have the right to seek transfer under Scheme No. VHI and get their respective portions transferred on the basis of Forms filed by them.
5. It may be Mentioned at this stage that during the hearing of arguments, the petitioners filed an application seeking permission to bring on record additional documents. These documents include the counter-foil of the rent receipts allegedly issued by the petitioners to the respondents; copies of the Excise and Taxation record wherein the petitioners have been recorded as owners of the property and the respondents as tenants. The production of these documents as additional evidence was opposed by the respondents on the ground that at this late stage such documents cannot be produced and relied upon as these documents were not produced during all this time that the litigation has remained pending before various Settlement Officers as well as during the hearing of the writ petitions filed in this Court. Even otherwise the counter-foils of the rent receipts at best reflect admission in one's own favour as these counter-foils do not bear signatures of any of the responsents. Moreover, the question whether the respondent No.2 to 10 are tenants or that respondent NO.8 was a licensee of the petitioners is a question of fact. It was argued that these questions of fact having not been agitated or raised before the Settlement Commissioner cannot be allowed to be raised in this Court. It is true that none of the Settlement authorities have recorded any. Such finding during all these years that the litigation remained pending before them and in these circumstances when the documents are not of conclusive nature, it cannot be held by this Court that respondents NO.2 to 7,9 and 10 are tenants or respondent No.8 is a licensee of the petitioners.
6. The plea T^it the property in question is transferable as an unregistered industrial concern under Para 15(3) of the Schedule to the Displaced Persons(Compensation & Rehabilitation) Act, 1958, was not pressed further when it was pointed out, (a) that the evacuee machinery having admittedly been removed before Partition, the evacuee property was the building only and as such Para 15 of the Schedule does not apply.
(b) that on the basis of the press, if any, installed, the rooms where the machinery was installed could at best be claimed under the relevant Press Note and these rooms where the machinery was once installed stand admittedly transferred to the petitioners and (c) that the transfer of the building was not claimed as an industrial concern. This plea in any case is not available to the petitioners as before the Settlement authorities as well as in the writ petition, the case made out was that the property is transferable under Settlement Scheme No. I. The same is the position as regards the plea of transfer on the ground of reconstruction.
7. The question, where the deceased father of the petitioners id entitled to the transfer of the entire building under Settlement Scheme No. 1, may now be attended to. The first thing to be notes is that the shop on the ground-floor and portion of first-floor has been transferred to respondent No. 1 and transfer of this portion cannot be assailed by the petitioners in view of the consenting statement made by their deceased father on 7.12.1959 before the Deputy Settlement Commissioner whereby he agreed to transfer of the said portion to M/s M .R .Brothers. Learned counsel when confronted which the said position, had nothing to urge further in respect of the transfer made to S.M. Latif, respondent No. 1.
8. As regars the remaining property, it is to be noted that the property is a composite property consisting of six, shops three godowns and residential portions, This is apparent from the report dated 223.1978 available at page 115 of the i.e. The Settlement Commissioner in para 8 of the impugned order observed that on his spot inspection, he found that there were six shops including the shop of S.M. Latif and that there are also residential portions in the building. The case of the petitioners throughout is that the property is transferable under Settlement Scheme No 1 if that is so , then they are entitled to the transfer of one shop only. It may be noted that they have already been transferred evacuee residential bungalow No. 81-j, Model Town, Lahore. The portion in which they had installed at some point of time a press has admittedly been transferred to them. The petitioners, as such, cannot extend their claim over other shops and as such, they cannot object to the transfer of other business units to the respondents. The transfer to the respondents under Settlement Scheme No. IX in the circumstances cannot be objecter to by the petitioners.
9. There is also no merit in the plea that the learned Settlement Commissioner has wrongly held the property to be divisible. The parties are admittedly in possession of their respective units since decades. The Settlement Commissioner has recorded the finding that the property is easily transferable to the occupants. The finding of fact as 10 1h divisibility of the building in question cannot be substituted by this Court in exercise of its extraordinary jurisdiction.
10. For the reasons given above, there is no merit in this petition and the same is hereby dismissed with no order as to cost.