ZAFFAR HUSSAIN MIRZA. J.-This Letters Patent Appeal arises out of the Judgment dated 15-4-1971 of a learned Single Judge of the Sind & Baluchistan High Court (Mr. Mohammad A.I Sayeed, J. (as he then was), dismissing the Constitutional Petition No. 683 of 1966 filed by the present appellants.
2. The dispute in this appeal relates to a portion of the property bearing Survey L. R. 8/8 situated in the Lawrence Quarters of Karachi, which was evacuees property originally owned by Messrs Hansraj Arjun & Company who subsequently became evacuees. The property bearing Survey No. L.
R. n/8 consisted of two buildings over a plot of land comprised in the aforesaid survey Number having originally an area of 1466 square yards. In 1936 another plot of land bearing Survey No. 10/2 was amalgamated with the aforesaid Survey Number so that the entire area of the amalgamated plot came to 2773 square yards.
3. In 1947-48 there were two buildings upon this plot. Building No. 1 consisting of a ground floor and three floors over it contained shops and residential flats. Building No. 2 comprising a ground floor only was the remaining construction which was mainly occupied along with the remaining open plot by an industrial concern known a3 the Patel Engineering Works which was owned by another evacuee concern known as Messrs Keshoraj Hansraj Brothers. There were two other small tenements which were occupied by the owner and another tenant respectively.
4. After the Independence, in February, 1948 Messrs Keshoraj Hansraj Brothers sold the said Patel Engineering Works to Messrs Decora Limited, a Pakistani firm who took over possession of the workshop along with the plot of land on which the sheds were constructed to cover the machinery.
Messers Decora Limited subsequently got the sale of the said concern confirm--ed by the Additional Custodian (Judicial) by his order dated 17-8-59. Messrs Decora Limited in turn sold the concern to Messrs Maston Company who are presently running the same under their name. It appears that the Rehabilitation Department bifurcated the property and converted it into three different units for the purpose of allotment. The portion occupied by the Patel Engineering Works was assigned Sub-No. G/1. Out of the remaining portion, some area was allotted to one Allahditta which was assigned Sub-No. C3/2. The remaining portion of vacant land was allotted to one Mr. Sarfaraz who formed a partnership with appellant No. 2 and other, installed looms therein which were run in the name of Karachi Textile Mills, Karachi. The last-mentioned portion was given Sub No. G/1/1 and forms the foundation of the claim of the present appellants.
5. The portion of the property described as Survey No. L. R. 8/8 covered by building No. 1 comprising 4C4 Square yards consisting of shops and fiats was transferred to the respective occupants under Settlement Scheme No. 1. It is the appellants' case that an application for transfer of portion bearing Sub-No. G/1/1 under occupation of Karachi Textile Mills as a building site under Settlement Scheme No. II was submitted by the appellants on 21-12-59 and was pending disposal, when the sale by public auction of Patel Engineering Works, Karachi (Building and Plot) was notified through Press. The auction was subsequently held and respondent No. 2 Mohammad Shaft purchased the property by giving the highest bid. Pursuant to the aforesaid auction a P. T. O. Was issued in favour of the said respondent after the approval of the auction by the Chief Settlement Commissioner on 25-5-61. It is the plea of the appellants that they had no reason to suspect that the property put up for question also included the portion in their occupation bearing Sub-No. G/1/t. But subsequently it was found that an area of 2588 square yards including the portion bearing G/1/1 was included in the auction sale. On 19-9-64 the appellants, therefore filed an appeal before the learned Additional Settlement Commissioner, Karachi questioning the inclusion of the area in their possession in the property transferred to the second respondent. The learned Officer, however, by his order dated 5- 10-64 declined to interfere since the subject property bad been transferred as an industrial concern which was outside his jurisdiction and the appellants were directed to approach the competent authorities. Accordingly the appellants presented an appeal to the Additional Settlement Commissioner (Industries) at Lahore. The latter by his order dated 27-10-65 after examining the relevant record came to the conclusion that the property advertised for auction was bounded by boundary wall and the total area of the same is 1433 square yards and not 2588 square yards. As a result be directed that the P. T. 0. Issued in favour of respondent No. 2 be withdrawn. The effect of this decision was that the area in occupation of the appellant was excluded from the property transferred by auction.
6. The second respondent then challenged the aforesaid order before the Settlement Commissioner, who' by his order dated 6-8-66 allowed tae appeal and held that the property purchased by the said respondent included all the three portions bearing 'Sub Nos. C3/1, G/1/1 and G/2.
7. Aggrieved by the aforesaid order the appellants filed Constitutional Petition No. 683 of 1966, out of which the present Letters Patent Appeal has arisen.
8. The impugned order was assailed on various grounds. Then learned Single Judge, however, upon the evidence on the record found that the property housing the Patel Engineering Works was originally a single plot bearing Survey No. L. R. 8/8 and the portion which came in the occupation of the appellants fell within the boundaries to the compound of the main property. On this finding the learned Single Judge, has taken the view that the readjustment made by the Custodian.
Department with a view to facilitate recovery of rents, did not alter the basic character of the property as an industrial concern and as such the appellants could not claim entitlement to transfer of the portion of the property in their occupation as a building site. As to the question whether the property put to auction, could validly be treated as an 'industrial concern', the learned Judge hold that this is a question of fact and cannot therefore be enquired into, in the Constitutional Jurisdiction. Finally the learned Single Judge was of the view that the appellants were guilty of laches and negligence in not pursuing appropriate legal remedies against the auction proceedings. On these grounds the learned Single Judge dismiss--ed the petition of the appellants.
9. We have heard Mr. Ismail Munshi for the first appellant, Mr. Nasim Fasooqui for the secon4 appellant and Mr. A. A. Fazeel for respondent No. 2.
10. Mr. Ismail Munshi has firstly contended that the transfer documents issued and subsequently confirmed by the Settlement Commissioner here not in accordance with the particulars of the property published in the auction and in accordance with the bid sheet. Consequently, it was urged that incorporation of the entire area of the plot in the property is without juris--diction and a nullity in law.
(i) Land
(ii) Building
(iii) Machinery : Claim to be property of Mr. Hakimaddin Mullan Munawar A.I, Managing Director, Decore Limited, Karachi.
(iv) Shed :100 % evacuee This document in the column relating to General Remarks says that the survey was completed on the spot just before the auction of the concern and that the it-formation was collected partly on the spot and partly from the Head Clerk, Office of Additional Settlement Commissioner, Karachi who was present. The next document referred to by the learned counsel was the Amalgamation Report by the C. D. C., Karachi. In this document the total area of the amalgamated Surveys No 8 and 10-2-1 was shown to be 2773 square yards. On the basis of these documents it was contended that the Assistant Settlement Commissioner (Industries), Lahore was justified in holding in his order dated 27-10-1965 that what was advertised for auction was the concern as Patel Engineering Works which had reference to an area of 1433 square yards surrounded by a boundary wall and not the entire area covering all the three Sub-numbers mentioned above.
11. In reply to these submissions, it was submitted by Mr. A. A. Fazeel, learned counsel for respondent No. 2 that the entire plot and two buildings were set up was originally given survey No L. R. 8/8. After excluding multi-storey building consisting of shops and flats which were transferred under Settlement Scheme No. 1, the remaining portion of the property was described as 'L. R. 8/8-P, which included building No. 11. This is supported by admission made by the appellants in the Memo of Appeal filed on their behalf under section 19 of the Displaced Persons (Compensation and Rehabili- -tation) Act, 1958 before the Additional Settlement Commissioner, Karachi. It was further pointed out by the learned counsel that the Chief Assessor and Collector, K. M. C. Ha,' certified vide his Certificate dated I1-12-65 that building No. II consists of a single-storey building having three tenements as under ;-
(i) Maston Company G-1.
(ii) Karachi Industrial & Textile Mills . . . . G-1/1.
(iii) Sheikh Allahdin .G-2.
It was further stated in the said certificate that in 1947-48, this part of the property was occupied by Patel Engineering Works as owner and by one tenant, and that portion previously occupied by Patel Engineering Works is now occupied by Maston and Karachi Textile as tenants. It was next pointed out that in the noting file of the Department it has been clearly mentioned on 22-2-61 that "all the three units are for auction vide the Settlement & Rehabilitation Board decision." In connection with the auction advertisement, it was urged that the property in dispute was not the only property of which the area was not mentioned, but same was tae case. In relation to all the properties included in the list advertised. Counsel also pointed out that the bid sheet on which bids were recorded a1 the time of the auction described the property at the top as "Building No. L. R. 8/8-P, Lawrence Road, Karachi". Referring to yet another document which is the list of Evacuee Industrial concerns in Karachi prepared by the Depart--ment, counsel pointed out that at Serial No. 3, Patel Engineering Works has been shown and the name of the Evacuee Owner mentioned against the concern is shown as Messrs Hansraj lodhanji, who were the owners of the property and not the concern. Which as haws been observed earlier belonged to Messrs Keshoraj Hansraj Brothers. From this it was contended that even the list of evacuee concerns prepared by the Department clearly referred to the immovable property in which formerly the concern Patel Engineering Works was housed.
12. Mr. Fazeel, however, contended that the question as to what cons--tituted the subject-matter of the auction and as to what was included in theauction sale, is a pure question of fact and, therefore, cannot be enquired into, in the constitutional jurisdiction. Reliance in this behalf was placed on Mohammad Nazir v. Chief Settlement Commissioner (1968 SCMR 1376) where their Lord--ships declined to interfere with the finding of the Settlement Authority that Chaubara was a part of the shop transferred under the Settlement Laws o z the ground that such a finding being one of fact. Was not amenable to reveal in writ jurisdiction. In reply it was urged by Mr. Muushi that the question was not a pure question of fact but was a mixed question of law and fact. Learned counsel referred us, in this connection, to pare. 5 of Settlement Scheme No. II, Part A relating to transfer of evacuee industrial concerns which prescribes that the Chief Settlement Commissioner while publishing the auction programme shall mention the particulars of the property and therefore it was urged, the failure to mention the area of the plot in the advertisement vitiated the auction. We find no force in this contention as, the perusal of para. 5 does not indicate that it was necessary to disclose the area of the plot included in the property put to suction. All that was: required was to disclose name. Location and brief particulars of the property, We are therefore, unable to agree with the learned counsel that mere failure to mention the area of the property in question would render the proceeding of the auction void or illegal. It was agreed by the counsel appearing fed the parties that letter "P" in Survey No. L. R. 8/8-P indicated that the property was a part of the main Survey No. L. R. 8/6 and therefore as admitted by the appellants in their own appeal before the Additional Settle--ment Commissioner, referred to above, L. R. 8/8-P comprised the remaining part of the original plot after so excluding the area covered by building No. I comprising 404 square yards. It has been established on the record that appellant No. 2 was present at the time of the auction and therefore he or others who participated in the auction must have had no doubt about the identity of the property to be disposed of by the auction. The Settlement Commissioner in the impugned order after examining the relevant record was satisfied that the premises purchased by the respondent No. 2 in auction included all the three portions bearing Sub Nos. G/1, G/1/1 and G/2. This is clearly a finding of fact and therefore following the rule laid down by their Lordships in the cited case, we are of the opinion that this question cannot be reopened in these proceedings. At any rate, the circumstances appearing on the record, as pointed out above could sustain this finding and therefor, even if it is erroneous, it cannot be termed as perverse.
13. Mr. Fazeel brought to out notice that the occupant of the other sab-divisions bearing Nos. G/1 and G/2 had also agitated the question of transfer of their portions to the respondent, but their Constitutional petitions were dismissed. In Writ Petition No. 214 of 1963 the High Court of West Pakistan, Karachi Bench, Karachi dismissed the plea of Shaikh Allahdin that the portion in his occupation was a separate tenement and referring to the order of the Additional Settlement and Rehabilitation Commissioner dated. 1-3-52 held that the said property was a part and parcel of the premises of Patel Engineering Works. Similarly the petition filed by Messrs Maston Company (Petition No. 41 of 1968) the same Court dismissed the petition on a statement by the petitioner that the claim for transfer of immovable property was not pressed in view of the clarifications regarding their rights made by the respondent. We therefore find no substance in the first contention advanced by the counsel.
14. It was neat contended on behalf of the appellants that the property in question could not be disposed of under Settlement Scheme No. II as it does not fall within the definition of the "Industrial concern". The expression "Industrial concern" has been defined in part. 1 (3) as under t- "'Industrial concern' includes any factory, registered under the Factories, Act, 1934, printing press and cinema house."
The submission was that in the facts of the present case since the concern known as the Patel Engineering Works was purchased by Messrs Decora Limited through a sale which was confirmed by the Custodian, the concern ceased to be evacuee property and therefore, the immovable property wherein it was housed bereft of the concern could not be treated as an industrial concern within the meaning of the aforesaid Scheme. Such remaining property can only legitimately be treated as a building site In this con--nection, the learned counsel referred to Memo No. 2177-F & M-Reh. 6m dated 4-5-60 through which the decisions taken by the Industries Rehabilita--petition Board on certain points raised in regard to the disposal of Industrial concerns, were published for information. Learned counsel relied upon para. 2 of this Memo which is in the following terms : "In case where a building is an evacuee property and machinery installed therein is owned by a non-evacuee car rice versa, only evacuee interest may be transferred to the person in possession."
However, we find that all these decisions as the preamble of this Memo clearly reveals pertain to the disposal of industrial concerns not already allotted by the Industries Rehabilitation Board. It therefore follows that para. 2 on which reliance was placed also relates to an industrial concern and the evacuee interest in the property would obviously be disposable as, an evacuee industrial concern. The other decisions incorporated in this Memo. Tend to go against the submission of the counsel as even a house or a shop which was subsequently converted into an industrial concern was required to be disposed of as an industrial concern. Learned counsel then referred us to para. 6 of the Memo which stipulates that where an industrial concern is located only in one tenement of a building, that portion only may be transferred as an industrial concern and the remaining tenements gray be 6isposea of as independent units in accordance with the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 and the relevant schemes framed thereunder. Even this para. Is not attracted in the present case as it speaks o: different tenements of a building. In the present case, the concern in question was located in the entire building on the plot in dispute and the appellants claimed right not in regard to a tenement of the building but on the basin of a portion of the open plot. The reliance on this Memo:' is therefore inapt. We are in agreement with the learned Single Judge that the definition of the expression 'industrial concern' is not exhaustive as is dear by the use of the word 'includes'. It will therefore be a question of fact in each case for the Settlement Authorities to determine whether al particular property was or was not an industrial concern. The attended meaning of the term 'industrial concern' obviously includes inter alia a factory registered under the Factories Act, 1934. But that does not mean that industrial concerns consisting of factories which were not registered under the Factories Act, cannot fall within the purview of the term 'industrial concern'. We therefore agree with the learned Single Judge that in absence of the exhaustive definition of the term, the question whether the disputed property could or could not be treated as an industrial concern cannot be agitated or examined in writ Jurisdiction.
15. Mr. Naseem Farooqui. Learned counsel appearing for appellant No. 2 made a submission in this connection which may also be considered at this stage. He submitted that the term "factory" as defined in sections 2(i) of the Factories Act means any premises, whereon ten or more workers are working or were working on any day of the preceding 12 months, and in any part of which manufacturing process is being carried on. Counsel therefore urged that carrying on of manufacturing process is defined in the said Act and Via requisite number of workers employed on the promises are pre-conditions for bringing the premises within the ambit of the definition of the term 'factory'. Since both these conditions were missing, via-a-via the property under auction, in view of the confirmation of sale of the concern by the Cu9todian, the property could not be deemed to be an industrial concern. However, in the view that we have taken that the definition of industrial concern is not exhaustive, but is merely inclusive, it is idle to pursue this question further.
Even a cinema house and a printing pr are included within the definition of the term where obviously no manufacturing process as defined by the aforesaid Act is carried on. We therefore also find no force, in the second contention advanced in support of the appeal.
16. This would be sufficient to dispose of this appeal but Mr. Fazeel has urged before us a contention which cuts at tile root of the appellants' case and therefore we consider it proper to examine the same. It was argued that the appellants were not entitled to invoke the Constitutional Jurisdiction to assail the Impugned auction, for they did not invoice the statutory remedies available to them under the law. In this connection the material facts are that the notice for auction of the disputed property was published in the Press on 8-4-61 and the auction was actually held on 24-4-61 at site.
It a on the record that appellant No.2 was admittedly present at the time of tae auction. It was submitted that after the auction was confirmed by the Chief Settlement Commissioner on 21-5-61 followed by a P. T. O. Dated 15-6-61 the respondent No. 2 filed ejectment proceedings against the appellants in October, 1962, in which written statement was filed by appellants on 8-3-63.
Consequently the appellants had the knowledge about the relevant facts at least by the date they find the written statement (8-3-63). Yet the appeal was filed on 19-9-64 before the Additional Settle--ment Commissioner, Karachi which teas dismissed on the ground of lack of jurisdiction on 5-10 64. Thereafter a fresh appeal was flied before tat Additional Settlement Commissioner (Industries), Lahore on 28-7-65 which was decided in favour of the appellants. Now the period prescribed for appeal under section 19(2) of the Displaced Persona (Compensation and Rehabi-- litation) Act, 1958 is 15 days froth the date of the order appealed against. I was contended that in view of the foregoing facts the appeal was barred by time and could not therefore be entertained without condoning the delay in presenting the same. There is nothing in the order of the Addition Settlement Commissioner which indicates that he applied his mind to the question of condonation of the delay. Therefore, the order was palpably passed without jurisdiction, It was hold in El4tlli Alt v.
District Judge (PLD 1969 SC 167) that there must be something in the order or judgment itself to show that Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with tike proceeding on merits. In reply it was urged that there was no occasion to file an appeal as there was no order complained of. But it has been held in Bahar Mohammad v. Chief Settlement and Rehabilitation Commissioner (PLD 1962 Lah. 209) that the Chief Settlement Commissioner can upset an order of subordinate Settlement Authority only in revisional powers under section 20 and not by miscellaneous petition.
In the present case the auction was held by the Additional Settlement Commissioner and confirmed by the Chief Settlement Commissioner. No appeal or revision could therefore be filed before an Officer of co-ordinate jurisdiction. The Additional Settlement Commissioner. Lahore had therefore no jurisdiction to entertain an appeal or representation. The powers of review were taken away and were trot available after the amendment of section 21 in 1962 (PLD 1972 Kar. 46). Looking at the question from any angle, therefore, the order passed in favour of the appellants is not sustainable in law and no rights can therefore be founded thereon.
17. In view of the foregoing reasons, we find no substance in this appeal and therefore dismiss the same with no order so to costs.
I. MAHHUD, J. -I agree.