P L D 1965 Supreme Court 254 (PLP)

B. Z. KAIKAUS, J.‑This is an appeal by special leave against the order of the High Court of West Pakistan dated 28‑6‑1961 dismissing a second review petition against the order passed in a writ petition filed by Mirza Muhammad Yaqub appellant praying that the Sudershan Re‑Rolling Mill, Amloknagar, Sargodha, be ordered to be transferred to him. For an appreciation of the matter in dispute it is necessary to state a few facts. The Sudershan Re‑Rolling Mill which was evacuee property was allotted to Mirza Muhammad Siddique father of the present appellant in 1947. At the same time the movable raw material lying in the Mill was sold to Mirza Muhammad Siddique for about Rs.34,

000. On 13‑12‑1956 the Mill was sealed as Mirza Muhammad Siddique had failed to pay the sum of Rs. 34,000 which he owed in respect of raw material as well as some other Government dues. On 23‑2‑1957 the Industrial Rehabilitation Board gave the Mill on lease to the present appellant for a period not exceeding one year on a monthly rent of Rs.1,

000. In accordance with paras. 4 and 5 of the lease deed the appellant was bound to effect all repairs and to replace at his own cost any machine or building which may have been damaged or injured. On the 3rd October 1957, the premises were sealed on the ground that it was an uneconomic unit. The appellant made a representation to the Central Government and the Government made an order on the 2nd January 1958, saying that they were not prepared to treat Sudershan Re‑Rolling Mill as uneconomic property. There was in the letter of the Government also a request that the Mill may be desealed and allotted to Mirza Muhammad Yaqub. The Settlement Authorities, however, made no order of allotment and instead extended the original lease up to 30‑6‑1959. However, in the letter by which this extension was granted again it was said that the appellant "shall carry out all necessary repairs required to the Mill at his own cost" and "that no benefit will be allowed in this behalf." The appellant continued in possession even after 30‑6‑1959 and on 31‑8‑1959 submitted an application for transfer of the Mill. The appellant it may be stated is a refugee. The claim to a transfer was based on two grounds. The first ground was that the appellant was an allottee having been allotted the Mill on 2‑2‑1958. The second ground was that he had abandoned Flour Mills and a sugarcane machine in Jagadhri, District Ambala. There was no submission in this application that the appellant had invested any money in the Sudershan Re‑Rolling Mill although there was a column in the application form specifically relating to this subject. On the 3rd December 1959, the application for transfer was rejected on the ground that the appellant did not fulfill the conditions which entitled displaced persons to a transfer. The appellant then made a representation to the Chief Settlement Commissioner setting up the plea for the first time that he had spent Rs.40,000 for repairs of the Mill. On this representation the appellant was examined by a Settlement Commissioner in order that his right to transfer may be fully disclosed. The Settlement Commissioner found that the claim of the appellant had been verified for a sum of Rs. 15,000 only and that there was no allegation as to the appellant having left a registered factory in India. He was not therefore according to the report of the Settlement Commissioner entitled to a transfer on the ground of his having abandoned any industrial concern in India. So far as the plea relating to investment is concerned the report said that it was an after‑thought intended to delay the disposal of the factory end no application with respect to investment having been made before the 20th December 1958, as was required by the relevant provisions, the representation should be rejected. The Chief Settlement Commissioner agreed with the report and directed that the Sudershan Re‑Rolling Mill be auctioned. On the 7th April 1960, the appellant filed a writ petition in the High Court of West Pakistan alleging that he was an allottee of the Mill and that he had also spent a sum of Rs.40,000 in respect of repairs and praying that the auction be stopped and the Mill be transferred to him. This petition was dismissed on the 30th June 1960. The only point at that time pressed before the High Court was that the petitioner had spent more than forty, per cent. of the market value of the property on repairs. The order expressly says "this is the only point pressed." The , petition was dismissed on the ground that the expense was incurred without permission of the Rehabilitation or Settlement Authorities. The petitioner then filed a review petition. In the review petition it was urged that although the expense had not as yet been sanctioned it was open to the Chief Settlement Commissioner to sanction it even now. The review petition was dismissed on the ground that the matter lay, entirely. in the hands of the Chief Settlement Commissioner who could grant or withhold sanction. The appellant filed no appeal against this order, but filed another Writ Petition No. 507‑R of 1960 on the 5th October 1960, praying that the Chief Settlement Commissioner be ordered to transfer the Mill to the appellant. It was stated in this writ petition that the appellant had applied for sanction of the expenses incurred and the Engineer‑in‑charge had made a report in his favour, but still the Chief Settlement Commissioner was not transferring the property to him. This petition too was dismissed on 16‑12‑1959 on the ground that according to the admission of learned counsel for the appellant no application for sanction had been submitted before 20th day of December 1958, as is required by the relevant provision. A Letters Patent appeal was filed against this order. The Letters Patent Bench dismissed it in limine on the ground that sanction of the Rehabilitation Authority for incurring expenditure had not been obtained. It was also stated in the order that under the terms of the lease the appellant was to effect repairs at his own cost and therefore the order of the Chief Settlement Commissioner refusing transfer was unexceptionable. A review application was filed against this order, which was dismissed on 19‑1‑1961 as there was no ground for review. A second review application was filed along with which some documents were produced to show that the admission of counsel as to there having been no application for sanction before 20‑12‑1958 was erroneous. The Letters Patent Bench issued notice, but ultimately dismissed the review application on the 1st December 1961, on the ground that "investment made" within the meaning of paragraph 15(4) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act meant only expenditure which had been sanctioned and in this case there was no such sanction. It is against this order that a petition for leave to appeal was filed in this Court. Even the petition for leave to appeal was dismissed in the first instance, but on review it was held that the appellant may have a case under paragraph 15(3) as well as under paragraph 15(4). Leave was therefore granted. In the argument before us the right to a transfer has been canvassed mainly with reference to paragraph 15(3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act though the claim under paragraph 15(4) has not been entirely given up. It would be convenient before proceeding further to reproduce the relevant portion of para.

15. It runs: "15(1) Every industrial concern or cinema house shall, subject to the provisions of the following sub‑paragraphs, be sold in an unrestricted public auction. (2) If an industrial concern or a cinema house allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilitation Act, 1956 (XLII of 1956), is in the possession of a claimant who has left in India or any area occupied by India a registered industrial concern or a cinema house or whose verified claim under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, is of the value of rupees one lac or more, then the industrial concern or the cinema house in the possession of such claimant shall, in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any: Provided that if the claimant concerned has abandoned a share in a registered industrial concern or a cinema house the industrial concern or the cinema house in his possession shall not be transferred to him unless his verified claim in respect of such share is rupees thirty‑three thousand or more. (3) If an industrial concern or a cinema house not allotted by the aforesaid Industries Rehabilitation Board, is in the possession of a displaced person or a local, then such concern or cinema house shall, in case he applies in that behalf, be transferred to him on payment of its prevailing market value minus the investment made, if any. (4) If any local or displaced person has invested in any industrial concern or cinema house, not being an industrial concern or cinema house transferred under sub‑paragraph (2) or sub‑paragraph (3), not less than forty per cent of its prevailing market value, then that concern or cinema house shall, in case such local or displaced person applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made. (a) "Investment made" means an amount sanctioned by a Custodian or a competent Rehabilitation Authority or the Chief Settlement Commissioner on an application made on or before the 20th day of December 1958;" Para. 15(2) applies to a case where there has been an allotment by the Industrial Rehabilitation Board. In such a case the condition for transfer is that the applicant should have abandoned in India a registered industrial concern of the value of rupees one lac or if he had a share in a registered industrial concern or a cinema house which has been abandoned his share should come to not less than Rs. 33,

000. Sub‑para. (3) applies to a case where the applicant for transfer is in possession, but not as an allottee from the Industrial Rehabilitation Board. According to its definition in the Displaced Persons (Compensation and Rehabilitation) Act "possession" means possession obtained in pursuance of an order passed on or before the 20th December 1958, by a Rehabilitation Authority or a Custodian or any officer authorised or permitted by the Central or Provincial Government." Sub‑para. (4) is applicable to a case where an industrial concern is not transferred under sub‑paras. (2) and (3) and an investment has been made in the concern by some person of an amount which is not less than forty per cent. of its market value. In the application which the appellant submitted to the Chief Settlement Commissioner for transfer of the Sudershan Re‑Rolling Mill he had based his claim only on the ground that he was an allottee from the Industrial Rehabilitation Board and he had left an industrial concern in India. In order to show that the appellant deliberately avoided mention of any investment in the application for transfer it would be proper to reproduce the relevant portion of the application form. It runs: "(1) The following particulars are to be furnished by an applicant who desires to retain an industrial concern or unregistered t" under sub‑para. (4) of paragraph 15. (i) Amount sanctioned by a Custodian or a competent Rehabilitation Authority as investment on or before the 20th December 1958. (ii) Amount of investment so far adjusted against rent/lease money. (iii) Arrears of rent and bid‑money payable by the applicant in respect of the said concern." It will be observed that there is a specific reference to sub para. (4) and information is required from an applicant under that sub‑para. The appellant, however, left all these columns blank in his application. The claim of the appellant was only under para. 15(2) and as such it was apparently untenable for his verified claim was less than rupees one lac and in fact there was no allegation at all by him that he had left any "registered industrial concern" in India. The Chief Settlement Commissioner was, therefore, fully justified in disallowing the application for transfer.. In the representation made to the Chief Settlement Commissioner an allegation was made that the appellant had spent Rs. 40,000, but the Chief Settlement Commissioner was entitled to disregard the new plea which had deliberately not been taken in the application for transfer. So far as para. 15(4) is concerned (even apart from the objection that in accordance with the lease deed the appellant was bound to effect repairs) it being admitted that there has been no sanction of any expenditure alleged to have been made by the appellant, there is little to be urged in favour of the appellant. In fact now as already stated his main point is that the claim should have been allowed under para. 15(3), but the claim under para. 15(3) was not made either in the application for transfer or in the representation to the Chief Settlement Commissioner nor was it put forward at any stage during the numerous proceedings that the appellant filed in the High Court. It was not in either of the two writ petitions and was not in any of the applications for review submitted to the High Court. Even in the petition for leave to appeal before us the only plea taken was one under paragraph 15(4). It was at the stage of the application for review of the order refusing to grant leave that for the first time counsel for the appellant referred to para. 15(3). While basing his claim on para. 15(3) learned counsel for the appellant does not contend that we can order a transfer of Sudershan Re‑Rolling Mill to the appellant. What he wants is that the case be sent back to the Chief Settlement Commissioner in order that he may now consider a further ground of claim to transfer. Learned counsel contends that as a matter of fact by virtue of an order made before the 20th December 1958, he was in possession as lessee of the property in dispute. According to him possession as a lessee, for however short a period, is quite sufficient to bring the case of the appellant within paragraph 15(3). The rights to a transfer which are granted by the Displaced Persons (Compensation and Rehabilitation) Act are not rights which can be enforced through the ordinary civil Courts. They can only be enforced by an application to the Settlement Authorities. It is only if the Settlement, Authorities while disposing of the application do not act in accordance with law that the writ jurisdiction of the High Court can be invoked. The only question before the High Court when its writ jurisdiction is invoked in respect of an order of a Settlement Authority refusing transfer is to consider whether the act of the Settlement Authority was justified in law. If a claim for transfer be made before the Settlement Authorities on a particular ground which was not tenable and the claim be rejected the order is not liable to attack because of the omission of the Settlement Authorities to make a suo motu investigation which may have disclosed another ground for transfer. There is no obligation on the Settlement Authorities to make inquiries as to facts not pleaded before them or to take up suo motu factual grounds of transfer not urged before them by an applicant. This is the first hurdle in the way of the appellant. The order of the Settlement Authorities can be set aside only if it was not justified in law. The appellant is asking us to send back the case to the Settlement Authorities in order that he may rely on a fresh ground. He is unable to say that the order already passed is illegal. The further difficulty is that in a writ petition the petitioner has to put forward a case which will entitle him to the relief sought. He has to state all the facts and even to adduce proof by affidavit or otherwise of the facts alleged and if in a writ petition a case be not made out before the High Court then in the absence of exceptional circumstances this Court would not interfere with the order of the High Court. There is still further difficulty. Even at the time when the first writ petition was file' the appellant could have relied on sub‑par'. 15(3). That petition. was dismissed and no appeal was filed against the order of the High Court dismissing it. Nothing occurred subsequently which, could entitle the appellant to file a fresh petition. A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea the proper course would be to file a petition for review 11 such a petition be maintainable. The general principle of res judicata is applicable to writ petitions also. There is thus no force in this appeal which is being dismissed. We want to make it clear, however, that we should not be understood to be conceding the existence of a case on the merits so far as sub‑par'. 15(3) is concerned. Learned counsel for the appellant contends that possession as a lessee is possession within the meaning of the Displaced Persons (Compensation and Rehabilitation) Act. There is a possible argument that possession as a lessee is not possession by virtue of any order, but on account of an interest in the property. The lessee has possession of property because at that time a part of the rights of ownership of property vests in him. The question as to whether it is possible to recognise the lessee as a person in possession under the Displaced Persons Act will have to be decided in a proper case. This appeal is dismissed, but there is no order as to costs. A. H. Appeal dismissed.