The dispute in this case concerns Property No. 15 situate in Khalid Street, Brandreth Road, Lahore.
From the plan submitted by the petitioners as well as from the description given in the various orders passed by the Settlement authorities it appears to consist of three shops on the ground floor opening in the main street, two residential houses on the first-floor and one open courtyard now being used for an industrial purpose, namely, the manufacture of cement tiles. The open ihata or the courtyard was allotted to one Mistri Khair Din on the 14th of January 1948 by the Director of Industries, and an inventory of the articles found therein was prepared on the 21st of January 1948.
The petitioners, claiming to the partners in the industrial business with Mistri Khair Din, applied for the allotment of the premises in their own name after the death of Mistri Khair Din. This request was accepted and the premises were allotted to them by a Deputy Settlement Commissioner on the 8th of January 1956. Subsequently, the petitioners goes" their industrial concern registered under the name and style of Amritsar Tile Factory.
2. When the Settlement operations started under the provisions of the Displaced Persons (Compensation and Rehabili--tation) Act, 1958 (hereinafter referred to as the Act), the petitioners applied for the transfer of the entire property including the shops and the residential portion, but by an order made on the 19th of February 1960 the learned Additional Settlement and Rehabilitation Commissioner held that the residential portion and the shops could not be transferred to the petitioners for the expension of their industrial business, as Brandreth Road area was so centrally and thickly populated that it was not advisable for any business enterprise to plan to instal or run a registered concern in the area. This was the opinion actually expressed by the Deputy Settlement Commissioner in his note dated the 1st of February 1960 after spot inspection and it was endorsed by the learned Additional Settlement Commissioner. As a result, only the premises in possession of the petitioners and being actually used for industrial purposes were transferred to them.
3. In the meantime, the shops and the residential portions were transferred to their respective occupants by a Deputy Settlement Commissioner by his order dated the 21st of July 1960. The petitioners moved a miscellaneous application for the transfer of these other portions and the same was accepted by the learned Settlement Commissioner (Industries) by his order dated the 26th of Sep'ember 1960. This officer expressed the view that on going through the office note he had found that at the time of Partition the property in question was an unregistered factory, and that the important point was that the premises constituted an industrial concern at the time of Partition. He went on to add that as such the houses and shops located within the premises of the unregistered factory belonging to Lala Bansi Lal must of necessity go to the allottee of the factory premises. On this view of the matter, he held that Mistri Muhammad Abdullah, one of the petitioners, was entitled to the transfer of the entire premises. Aggrieved by this order of the learned Settlement Commissioner (Industries), the transferees of the shops and the residential units, namely, the respondents, filed Writ Petition No. 662/R of 1960 in this Court. In the report submitted to the High Court in that connection on the 4th of March 1961 the Chief Settlement Commissioner stated as under in paragraph 5 :- "That the order of the Settlement Commissioner (industries) is not final. The petitioners should have agitated the case before the Chief Settlement and Rehabilitation Commissioner, Pakistan. On receipt of the writ petition and after giving due consideration to the objections raised therein the Chief Settlement and Rehabilitation Commissioner has decided to look into the case suo motu under section 20, subsection (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as amended, to rectify the errors, if any, committed by the Court below."
4. When the writ petition was placed before Bashir Ahmad, J. On the 20th of March 1961, the learned Judge observed that "let this case stand over till the Chief Settlement Commis--sioner has taken a decision. He may be asked to intimate the result to this Court". The respondents' writ petition accordingly remained pending in this Court until it was dismissed as with--drawn on the 16th of September 1568 on the ground that the matter had since been decided in favour of the respondents by an officer exercising the powers of the Chief Settlement Com--missioner. The relevant order in revision was made on the 5th of June 1962 by Sheikh Muhammad Rafiq, Settlement Commis--sioner, holding that the shops and the residential portions did not form part of the industrial premises allotted and transferred to the petitioners, and that in fact the industrial part of the premises was an open ihata or twela (meaning a stable) at the time of its allotment to Mistri Khair Din and it was not an industrial concern at the time of Partition. As a result of the order passed by Sheikh Muhammad Rafiq, the transfers as ordered previously in favour of the respondents stood restored.
5. In the present proceedings the legality and correctness of the order made by Sheikh Muhammad Rafiq exercising the powers of the Chief Settlement Commissioner has been challenged on several grounds :-
(a) That the records of the case not having been called before the 13th of January 1962, as required by amending Ordinance 11 of 1962, Sheikh Muhammad Rafiq hid no jurisdiction to act in revision under subsection (2) of section 20 of the Act which stood omitted by the said Ordinance.
(b) that the shops and the residential units being situate within the premises of an industrial concern stood expressly excluded from the definition of these two terms in view of the provisions contained in clauses (4) and (12) of section 2 of 1 the Act and were, therefore, not available for transfer to the respondents under any of the provisions of the Act or the Schedule thereto, and
(c) that, in any case, the learned Assistant Settlement Commissioner, who ordered the transfer of these portions in favour of the respondents, had no jurisdiction to do so, as the powers of transfer have been delegated only to the Deputy Settlement Commissioners.
6. On behalf of the respondents it is submitted that the property is a composite property consisting of shops, godowns and residential units and that only the vacant courtyard was allotted to Mistri Khair Din in the first instance, with the result that this is not a case where the shops and residential units could be said to be located within the premises of an industrial concern. It is further submitted that the order passed by the learned Settlement Commissioner (Industries) on the 26th of September 1960 was in the nature of a review of the previous order of the Additional Settlement Commissioner dated the 9th of February 1960 and, therefore, it was incumbent upon the learned Settlement Commissioner to obtain previous sanction of the Chief Settlement Commissioner before reviewing the matter ; and that, in any case, that order was vitiated on account of the fact that the respondents-transferees were not heard by the learned Settlement Commissioner (industries). As regards the question of jurisdiction of Sheikh Muhammad Rafiq, the position taken up on behalf of the respondents is that the matter having been taken cognizance of by the Chief Settlement Commissioner as early as March 1961, it must be held, in the circumstances of the case, that the records had already been summoned and examined by the Chief Settlement Commissioner much before the 13th of January 1962.
7. After hearing the learned counsel for the parties at quite some length, I have come to the conclusion that there is no merit in this petition. Taking first the question of the revisional jurisdiction of the learned Settlement Commissioner exercising the powers of the Chief Settlement Commissioner under sub--section (2) of section 20 of the Act. I find myself in agreement with the position canvassed on behalf of the respondents, namely, that this is a case where the Chief Settlement Commissioner had decided as long ago as the 4th of March 1961 to undertake a suo motu revision of the orders passed by the learned Settlement Commissioner (Industries) on the 26th of September 1960. Paragraph 5 of the report submitted by the Chief Settlement Commissioner in the respondents' previous writ petition, to which reference has been made earlier in this judgment, clearly shows that the Chief Settlement Commissioner had already applied his mind to the facts of the case and had decided that the order passed by the learned Settlement Commissioner (Industries) needed revision in view of the contentions raised by the res--pondents in their writ petition before the High Court. The view of the matter taken by the learned Chief Settlement Commissioner could not have been formed without an examination of the records of the case. In these circumstances, I must hold that the records of the case already stood summoned much before March 1961 before the learned Chief Settlement Commissioner for the purpose of exercising his revisional jurisdiction under sub-- section (2) of section 20 of the Act. This is, therefore, not a case hit by the provisions of the amending Ordinance II of 1962.
8. As regards the petitioners' contention that the officer who transferred the shops and the residential units to the respondents was not authorised to do so, suffice it to say that the officer has described himself as one exercising the powers of the Deputy Settlement Commissioner, and that this point was not agitated by the petitioners before the learned Chief Settlement Commis--sioner.
In any case, the petitioners have to succeed or fail on the essential point regarding the character of the property. If the shops and the residential units in dispute are not found to be located within the premises of an industrial concern, then the petitioners would have no locus standi to claim their transfer or to challenge the legality of their transfer to the respondents.
9. Turning now to the question of the character of the property, I find that, in the first place, it is primarily a question of fact, namely, whether the residential and the commercial units in dispute are situate within or without the premises of the industrial concern which now stands transferred to the petitioners. The learned Chief Settlement Commissioner has recorded his finding in this behalf after filly considering the documentary evidence on the record and carrying out a personal inspection of the spot. In order to enable the High Court to interfere with such a finding of fact the petitioners have to show that some material evidence has either been ignored or misread.
10. It is strenuously contended by Mr. Mahmood A.I Kasuri that the premises were allotted to the late Mistri Khair Din for the purpose of his industrial rehabilitation as is clear from the order of allotment dated the 14th of January 1948, and that the inventory prepared on the 21st of January 1948 also shows that some items of machinery were found to be laying in the premises, thus giving rise to at least a presumption that some industrial concern was being run in this property even before Partition. The learned counsel has further pointed out that since 1956 the industrial concern run by the petitioners has been registered and, in any case, the property now stands converted into an industrial unit, with the result that the same consequences will ensue as if the property had been an industrial concern right from the beginning.
11. To my mind there is a distinction between the two positions, namely, between property being an industrial concern right from the beginning or it having been converted into an industrial concern after the 14th of August 1947. I shall first take up the question whether any justification is made out for interference with the finding recorded by the Chief Settlement Commissioner to the effect that the property was not an industrial concern at the time of Partition. It is true that the premises were allotted to Mistri Khair Din for his industrial rehabilitation, but the learned Chief Settlement Commissioner has pointed out that in his application for the allotment of this property Mistri Khair Din himself described it as a twela or a stable, and that the order of allotment also shows that vacant premises were being allotted to Mistri Khair Din. The municipal record relating to the year 1946 shows that in that year there was no industrial concern located in this property which consisted of three shops, several residential rooms and godowns. It seems to me that the random items of machinery and scrap-iron found in the premises and mentioned in the inventory prepared on the 21st of January 1948 are easily explained by the fact that the non-Muslim owner was using the place as a godown. On the basis of these facts and documents, I find that the conclusions reached by the learned Settlement Commissioner regarding the original character of the property at the time of Partition are clearly sustainable on the record. On this view of the matter, it is clear that the shops and the residential units could not be held to be located within the premises of an industrial concern.
12. Coming now to the alternative argument that, in any case, the property now stands converted into an industrial concern and for that reason as well the shops and residential units cannot be disposed of separately, I find that the relevant provision is contained in paragraph 20 of Settlement Scheme No. I which provides that "if a building which was a house or a shop on 14th August 1947 has been converted to some other use, the Chief Settlement Commissioner shall determine whether it is a house or a shop or any other type of property". In pursuance of this paragraph the Chief Settlement Commissioner has issued detailed instructions which are to be found on page 139 of the Old Manual of Settlement Law and Procedure. Clause (iv) of paragraph 3 appearing on page 140 is relevant for our present purpose : "a house or a shop converted into an industrial concern, which has not been allotted by the Industrial Rehabilitation Board, may be disposed of as an industrial concern under sub-para. (3) of paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958". This clause apparently refers to the conversion of the entire house or shop, but the two following clauses give some clue as to how a property partly converted is to be disposed of. Clause (v) prescribes that "if a house is indivisible and the complete house or a major portion thereof has been converted into a shop, it may be disposed of as a shop"
Clause (vi) similarly provides that "if a shop is indivisible and the complete shop or a major portion thereof has been converted into a house, it may be disposed of as a house". Clause (vii) has also some relevance as it lays down that "if an industrial concern or any other premises which were not used as a house or a shop before 14th August 1947, but have been converted into houses or shops as the case may be, then they may be disposed of as houses and shops if it is not necessary in the public interest to restore them to their original use". Reading all these provisions together, no doubt is left in my mind that in so far as the disposal of converted properties is concerned, the conversion has obviously` reference to only that portion of the property which stands actually so converted, and the implications or consequences of such conversion could not be extended to those portions of the property which have retained their original character. In other words, if a composite property has been converted only in a part thereof into an industrial concern, then it is only the converted portion which shall have to be disposed of as such, and the other unconverted portions could not be treated to be houses and shops located within the premises of an industrial concern. The position is indeed simple, as those other portions would remain located outside the converted industrial portion.
13. From the foregoing discussion it follows that in the present case the property not being originally an industrial concern at the time of Partition, the consequences attaching to the conversion of a portion thereof into an industrial concern would not extend to those portions of the property which have retained their original character of shops and houses. By no t process of reasoning could they be said to be located within the premises of an industrial concern. It is, therefore, clear that the petitioners as the allottees of only a part of the property cannot claim the transfer of the remaining portions which have not been converted into an industrial concern at any time since the Partition.
14. The view taken by me finds support from two cases cited by the learned counsel for the respondents, namely Miss Surraya Parveen and another v. Sh. Anwarul Tlaq and another (PLD 1969 SC 309) and Abdul Jabbar v. Settlement Commissioner, Sheikhupura and others (1969 SCMR 114).
Mr. Mahmood A.I Kasuri drew my attention to Mst. Shanuma Khatoon v. Settlement and Rehabilita-- petition Commissioner, Karachi and another (PLD 1967 Kar. 315) and Abdul Majid Khan v. The Chief Settlement Commissioner (PLD 1968 SC 154) in an effort to show that an industrial or residential unit must be a self-contained unit as otherwise the intention of the law would be frustrated. These authorities have no direct relevance in the present context, for it is not the case of the petitioners that the industrial premises as allotted to them or as transferred to them are not a self-contained unit for the industrial purpose in question. It has already been stated that the portion which now stands transferred to the petitioners was allotted to Mistri Khair Din as long ago as 1948 and even the two petitioners have been running their industrial concern in this very portion since 1952. In these circumstances, it can hardly be said that the unit transferred to them is not a self-contained industrial unit.
15. For the foregoing reasons, I see no justification what--soever to interfere with the order made in revision by Sheikh Muhammad Rafiq exercising the powers of the Chief Settlement Commissioner.
The petition, therefore, fails and is hereby dismissed with costs.