MALIK MUHAMMAD QAYYUM, J.-This Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order dated 22.4.1990 (Annexure 'H') passed by a Notified Officer/Settlement Commissioner (Industries), Lahore.
2. The dispute in this case relates to evacuee unregistered industrial concern known as Ram Labhaya, Ahuja Metal Works, Gujranwala which was originally allotted by the Rehabilitation Authorities to Muhammad Din, the predecessor of respondents Nos.2 to 10. Later on, Muhammad Sadiq petitioner was inducted into possession of a part of the property. The question of further allotment was examined by the Deputy Rehabilitation Commissioner, Gujranwala who on 21st of July, 1958 observed that:- The facts of the case are that Machinery installed by Haji Jan Muhammad was sold to Muhammad Sadiq for Rs. 5000/- (five thousand) in 1956 and this machinery remained installed in the factory on the terms which ... Upon between Jan Muhammad and Muhammad Din and since then Muhammad Sadiq respondent who is a refugee from Amritsar and his father remained in possession of this part of the factory. Muhammad Sadiq also built up the pucca rooms in the compund at own cost for stocking wooden logs. This Muhammad Sadiq has installed one Ara Machine, one counter shop and twelve Kharad machines whereas Muhammad Din the appellant in this case is running there some old evacuee small P. Machines in one room only. The DRO in his order dated 6.12.1956 said that since Muhammad Din had been subletting the factory, he was hot a fit person to hold that allotment because condition No.10 had been violated by him and consequently his allotment was cancelled.
It was further held that:- As regards Muhammad Din appellant who is occupying only the machinery room in the factory premises and had admitted in his statement that he did not obtain the approval of the competent authority before he let the premises to others on rent in the eye of law has got no right to remain in possession of any part of the factory but in view of the fact that he is a refugee and his petty claim for Rs. 2800/- does not exceed the market value of machine and one room which allotted to him. I allow him to keep in his possession the portion which he has got in his possession together with passage before."
Both the parlies filed separate appeals against this order which were accepted' by the Additional Rehabilitation Commissioner, on 8.12.1958 who proceeded to modify the order of the Deputy Rehabilitation Commissioner. Two revisions, one by the petitioner and the other by the predecessor-in-interest of respondents Nos.2 to 10 were filed which were accepted by the Rehabilitation Commissioner on 20th September, 1959, who restored the order of the Deputy Rehabilitation Commissioner.
3. On the advent of settlement operations, the Addl. Settlement Commissioner on 14th October, 1960 transferred to Muhammad Sadiq petitioner those portions of the property which were in his occupation as well the portion in possession of Muhammad Din deceased while that part of the property which was in possession of. Faiz Muhammad, a local, was transferred to Muhammad Din.
This order was challenged by all the three contestants namely, Muhammad Sadiq petitioner, Muhammad Din, the predecessor-in-interest of respondent No.2 to 10 as well as Faiz Muhammad by filing revisions which were dismissed on 7th September, 1961. The matter was then taken to the Chief Settlement Commissioner by all of them by filing 3 separate petitions for second revision who dismissed the same in view of the promulgation of Ordinances II and XXII of 1962. Against this order three constitutional petitions were preferred which were accepted by this Court on 4.4.1967 and it was ordered that all the three second revision petitions should be disposed of on merits in accordance with law.
4. In the post remand proceedings the Chief Settlement Commissioner on 31.5.1968 heard the respective parties and dismissed the revision petitions. Against this order of the Chief Settlement Commissioner, three constitutional petitions were filed by the petitioner, the predecessor of respondents Nos.2 to 10 and Faiz Muhammad. These petitions were accepted by a learned single Judge of this Court vide order dated 12.11.1974; and the order of the Chief Settlement was set aside and the cases were remanded for decision afresh. Against the order of this Court, two appeals, one by the petitioner and the other by Muhammad Din deceased, the predecessor of respondents Nos.2 to 10 were filed before the Supreme Court which were accepted on 18.11.1986. Both, the petitioner and Muhammad Din were held to be joint transferees of the property in question and the matter was remanded to the Notified Officer for working out the actual shares of the parties on the principle indicated by the Supreme Court in its judgment.
In the post remand proceedings, the Notified Officer on 24.4.1990 passed the order allocating specific shares to the parties. This order has been impugned by Muhammad Sadiq petitioner by filing this constitutional petition.
5. Mr. M. Maqbool Sadiq, learned counsel for the petitioner contended that the Notified Officer (respondent No.1) has not only misread and misinterpreted the judgment of the Supreme Court and has also flagarantly disregarded the finding recorded by that august Court. It was argued that on no principle, could 70 per cent of the property be transferred to Muhammad Din and only 30 per cent to the petitioner.
Sh. Abdul Aziz, learned counsel for the respondents on the other hand, submitted that the order passed by the Notified Officer was in accord with the judgment of the Supreme Court and is not reliable to be interfered with by this Court.
6. The question which falls for determination in the present proceedings is as to whether the impugned order of the Notified Officer conforms to the direction of the Supreme Court in its judgment dated 18.11.1986 passed in Civil Appeals Nos. 430/90 and 431/90. For proper appreciation of the controversy, it would be advantageous to reproduce the relevant portions of the judgment of the Supreme Court which are as under:- ". . .From the orders passed on the rehabilitation side, it is clear that the possession of both the appellants over the property was protected. It was protected not by indicating their shares in the allotment or shares in terms of money but the shares followed their actual physical possession which was protected. It could have been possible to allocate to them the shares by reference- to their possession over the property. To their exclusive possession should have been added the half portion of the passage which was jointly shared by each and the share so worked out should have been extended in the same proportion to the area in occupation of Faiz Muhammad. This would be in the conformity with the principles of joint allotment and sharing between allottees." (Page 17 of the judgment)
Again at page 19 of the judgment, it was observed that:-. . .The admitted facts are that Muhammad Din was the allottee, that he alone was the purchaser of the evacuee machinery installed in the industrial concern. He had parted with the possession and the possession of Muhammad Sadiq was maintained, in fact keeping the passage common to both. It should have been possible for the Settlement Authorities to work out the share of each according to the possession which was .Sanctified by the Rehabilitation authorities antecedent to the Settlement operations. In the circumstances and for the foregoing reasons, these appeals are accepted, the order of remand is set aside and the property is jointly transferred to Muhammad Din (now his heir on the record) and Muhammad Sadiq. The actual shares will be worked out by the Chief Settlement Commissioner/Notified Authority on the principles indicated in this judgment and revaluation of the property will follow..."
7. From the above, it is clear that both the parties were held to be joint transferees of the property and their actual shares were to be worked out on the basis of their possession as sanctified by the Rehabilitation Authorities antecedent to the settlement operations. A perusal of the impugned order shows that, the Notified Officer has dis-regarded this principle .And proceeded to allocate the shares to the parties more on conjecture rather than on the material on the record. The Supreme Court of Pakistan had directed that to the exclusive possession of the parties should be added half portion of the passage and the shares worked out in that way should be extended to the area in occupation of Faiz Muhammad. Unfortunately, however, the Notified Officer in his impugned order has proceeded to grant the entire area occupied by Faiz Muhammad to respondents Nos.2 to 10 which is clearly violative of the direction issued by the Supreme Court. The Deputy Settlement Commissioner himself observed that the possession at the time of his inspection was not relevant in the context of controversy between the parties but strangely still proceeded to determine the shares on this basis. The findings in the impugned order that the violation of subletting by Muhammad Din stood condone by the transfer of the property to both the parties and that after the departure of Muhammad Din the property occupied by him has to go to respondents Nos.2 to 10 is also not supported by the record. While arriving on this conclusion, a reference has been made to the orders of the Settlement Authorities which in view of the directions of the Supreme Court that the determinitive factor was the respective possession of parties as sanctified by the Rehabilitation Authorities prior to the advent of settlement operation, could not be taken into consideration at all.
7. The grievance of the learned counsel for the petitioner that on no principle could the respondents be transferred 70 per cent of the property and the petitioner 30 per cent, appears to be well based and finds ample support from the various orders passed by the Rehabilitation Authorities. In the order dated 21st of July, 1958 passed by the Deputy Rehabilitation Commissioner, it was observed that Muhammad Din occupied a machinery room in the property which was allowed to be retained by him. Similarly while deciding revision petitions, the Rehabilitation Commissioner on 22nd September, 1959 observed that:- ". . .The facts briefly are that factory known as Ram Labhaya Metal Works, Gujranwala, stands allotted in the names of Muhammad Din (petitioner) and Muhammad Sadiq, Muhammad Din is in possession of only one room, whereas Muhammad Sadiq is in possession of whole of the factory building. Muhammad Sadiq has installed there a number of machines whereas Muhammad Din, petitioner is running the old evacuee machine in the room in his possession..
Unfortunately, the orders passed by the Rehabilitation Authorities were not given due consideration by the Notified Officer despite a direction to this effect having been given to him by the Supreme Court. The order passed by him is, therefore, without any lawful authority.
For the foregoing reasons, this constitutional petition is accepted, the impugned order is declared to be without any lawful authority and of no legal effect with the result that the case is remanded to the Notified Officer for decision afresh in strict compliance with the directions by the Supreme Court of Pakistan in its judgment dated 18.11.1986. There shall be no order as to costs.