P L D 1962 (W (PLP)

ANWARUL HAQ, J.‑Writ Petition No. 987 of 1960, by Subedar Muhammad Afzal Khan and Writ Petition No. 25/R. of 1961, by Mistri Muhammad Sharif relate to parts of property bearing No. S: 31/R. 137 situated at 15‑Mcleod Road, Lahore, and, therefore, they were heard together and will be disposed of by this judgment.

2. The case set up before us by Subedar Muhammad Afzal is that the site belongs to an evacuee named, Anant Ram, and on it four distinct concerns were being run before Independence, namely (1) A. C. Engineering Works, a registered industrial concern managed by an evacuee named Gurbakhsh Singh. (2) a shop owned by Sundar Lal ; (3) a firm styled as Seth Brothers dealing in furniture etc., (4) a concern called Butt Brothers, functioning as Government contractors. The concern known as "A. C. Engineering Works" was allotted to one Abdur Rahman who took the petitioner Muhammad Afzal as a partner on the 18th of March 1958. The petitioner was already in possession of that portion of the premises on which the evacuee, Sundar Lal, was running his shop. In the petition no details are given as to how Subedar Muhammad Afzal came to acquire possession of Sundar Lal's shop, but at the Bar it was stated by him as well as by his learned counsel, Mr. Mahmud Ahmad Qureshi, that the petitioner took this shop from another person bearing more or less the same name, namely, Muhammad Afzal Khan. Anyhow, the position taken up Is that In March 1958, Subedar Muhammad Afzal came to be in possession of the shop previously run by Sundar Lal as well as that part of the premises which was under the concern "A. C. Engineering Works", and had been allotted to Abdur Rahman after Independence. In the portions so acquired by him, the petitioner started the business of spray painting, repair of motor‑cars and loud speakers under the name "Trade Centre" in March 1958. A few months after the partnership was entered into between the petitioner and Abdur Rahman, the latter severed his connection with the "Trade Centre", with the result that the petitioner alone carried on the business in question. On the strength of his possession on the relevant date, namely, the 20th of December 1958, the petitioner submitted a C. S. Form for the transfer of those portions of the property on which he was running his concern "Trade Centre."

3. However, on the 27th of November 1959, an advertise ment appeared for the auction of the registered industrial concern, A. C. Engineering Works. The petitioner represented against the auction and succeeded in securing from the then Settlement Commissioner, Mr. Riaz‑ud‑Din Ahmad, an order that the auction may be held on the due date but it shall not be confirmed. The auction was accordingly held and the highest bidder for Rs. 82,000 was Sayyed Nafees Ahmad, who associated with him another person named Sayyed Nazir Ahmad. These two persons are now respondents Nos. 1 and 2 in this petition.

4. Simultaneously with agitating the matter before the Chief Settlement Commissioner in respect of auction of the A. C. Engineering Works, Subedar Muhammad Afzal presented a Writ Petition (No. 292 of 1960), in this Court praying that a writ of mandamus be issued `declaring the auction dated the 27th of November 1959, to be void and excluding the property from the list of registered industrial concerns and directing the disposal of the property as a shop." This petition came up for hearing on the 19th of April 1960, before a Division Bench of this Court comprising B. Z Kaikaus and Muhammad Yaqub Ali, JJ. and was dismissed with the following order :‑ "The petitioner has no `possession' within meaning of the Displaced Persons Act, there being no allotment order in his favour. Dismissed."

5. The petitioner's representation was finally rejected by the Chief Settlement Commissioner on the 28th of November 1960, and a copy of that order is annexure `E'. The learned Chief Settle ment Commissioner came to tee conclusion, after inspection of the spot, that the shops in the possession of the petitioner Muhammad Afzal and others were a part and parcel of the registered industrial concern, A. C. Engineering Works, and accordingly the entire property was rightly auctioned, and the auction confirmed in favour of Sayyed Nafees Ahmad and his associate Sayyed Nazir Ahmad. He directed that the auction purchaser may be put in possession of the property. This is the order which is now impugned before us,

6. The relief prayed for in the petition is "that the auction held on the 27th of November 1959, in respect of property No. S. 31/R. 137, 15‑Mcleod Road, Lahore, be quashed by the issue of a writ of certiorari and respondent No. 3. (The Chief Settlement Commissioner, Lahore) be directed by the issue of a writ of mandamus to dispose of the said property as shop under the law and procedure laid down for the disposal of a shop." At the preliminary hearing on the 21st of December 1960, the petitioner gave up his prayer for relief in respect of the auction of A. C. Engineering `works and confined his petition only to the shop which before Independence was in possession of Sundar Lal. The main contention raised on his behalf is that the records of the Corporation clearly show, that the shops existing on this site were distinct from A. C. Engineering Works and, therefore, the Chief Settlement Commissioner had no jurisdiction to treat Sundar Lal's shop as an industrial concern and to dispose it of by auction instead of transferring it to the petitioner against him C. S. Form.

7. It has already been mentioned that the site at 15‑Mcleod Road, Lahore, belonged to an evacuee, Anant Ram. Subedar Muhammad Afzal has mentioned in his petition that the structures on his site had been put up by one Muhammad Sharif. This Muhammad Sharif is the petitioner in the connected Writ Petition No. 25/R. of 1961. His case is that he acquired about eleven marlas of land from Lala Anant Ram, Advocate, in the year 1931‑32, and built permanent structures over this land, and the various concerns mentioned by Subedar Muhammad Afzal as having been set up on this property were his tenants before Independence. On the 31st of March 1949, Mistri Muhammad Sharif made an application under section 3 of Act No. XVIII of 1949, for a declaration that the premises were not evacuee property. The application was heard by Mr. Muhammad Aslam, Deputy Custodian of Evacuee Property, who (vide his order dated the 28th of March 1951, copy at annexure `A' to the petition), granted to the petitioner a dec laration to the effect that "he 9s old tenant of the plot ABCD shown in the plan Exh. P. 7 and that all the structures now in existence on the said plot are not evacuee property as he is exclusive and sole owner of the same. The claim of the petitioner that he is sole owner of the plot marked BJKL on the plan Exh. P. '7 is hereby rejected."

8. When the A. C. Engineering Works was advertised for sale by auction Mistri Muhammad Sharif objected to it, but no order was passed in his favour and, as already stated the auction was held on the 27th of November 1959. Thereupon Mistri Muhammad Sharif filed Writ Petition No. 639 of 1959, praying that "a writ of mandamus or any other appropriate writ or direction may kindly be issued directing the respondent (i.e., the Rehabilitation Industrial Board) to treat the auction held on the 27th of November 1959, as illegal and not to confirm the same". This petition came up for hearing before a Division Bench of this Court on the 19th of July 1960, and the following order was passed thereon "Mr. Ishaq Muhammad Khan says that the superstructure on the evacuee land has not been sold and Mr. Muhammad Yahya, Advocate, states that his client has not bought this superstructure. In view of these statements no relief can be granted to the petitioner by Court. The petition is dismissed but there will be no order as to costs."

9. On the 25th of December 1960, however, Mistri Muhammad Sharif received a notice from the Chief Settlement Commissioner asking him to remove his machinery etc., within ten days and to vacate the premises failing which he would be ejected through police aid, as the possession of the A. C. Engineering Works had to be delivered to the auction‑purchaser. (A copy of the notice is annexure 'E' to the petition). Mistri Muhammad Sharif is now aggrieved by this notice of ejectment and the contentions raised on his behalf are twofold: ‑ (a) "That his case does not fall within the mischief of section 29 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 ;,and (b) that, in any case he is protected by section 30 of the same Act as he has been declared to be an old tenant by the Deputy Custodian of Evacuee Property." A final point is made that there is no mention of any payment of compensation to the petitioner for his superstructures etc.

10. I shall first take up the case of Mistri Muhammad Sharif, who holds a declaration from the Deputy Custodian of Evacuee Property that he is an old tenant of the site and an owner of the structures thereon. Although an appeal and revision were filed against this declaration and during their pendency an inquiry was also held by Mr. Aziz Ahmad, Deputy Custodian of Evacuee Property, who made a report, damaging to Mistri Muhammad Sharif, on the 12th of June 1956, yet the declaration granted by Mr. Muhammad Aslam, Deputy Custodian, Evacuee Property, on the 28th of March 1951, was not set aside, with the result that it still holds the field. The first question, however, which arises for consideration is the effect of acquisi tion of the property under section 3 of the Displaced Persons (Compensation and Rehabilitation Act), 1958, hereinafter referred to as the Act) on the tenancy rights of Mistri Muhammad Sharif in this land. By Notification No. U.‑8‑79/3113, dated the 21st of August 1959, all evacuee property mentioned in that notification vested wholly and absolutely in the Central Gov ernment free from all encumbrances. If the term "encumbrance" includes rights of tenancy, then it is clear that Mistri Muhammad Sharif's right was extinguished by this notification and he would no longer be entitled to remain on the property. The meaning of the term "encumbrance" employed in section 3 of the Act was considered at some length in Abdul Karim v. Chief Settle ment Commissioner (P L D 1961 Lah. 394) by a Division Bench of this Court, of which my learned brother Shabir Ahmad, J., was a member and wrote the judgment. The following observations made in that judgment are directly relevant here and may be reproduced with advantage: ‑ "Now by Notification No. U.‑8‑79/3113, dated 21st August 1959, issued under section 3 of the Act, all immovable property in West Pakistan to which the Act is applicable was acquired by the Government of West Pakistan for the Central Government under subsection (2) of section 3 of the Act. Subsection (3) of section 3 of the Act says that when notification about acquisition is published under subsection (2) the property mentioned in notification shall vest wholly and absolutely in the Central Government free from all encumbrances, and the interest of the evacuee in the property shall be extinguished. On a plain reading of this provision of the Act, it would become clear that whatever rights any person had in the property which was evacuee property, be that person an evacuee or anybody else, shall cease to exist on the issue of the notification about acquisition. The learned counsel for the petitioner urged that encumbrances mentioned in subsection (3) of section 3 of the Act would mean only mortgages, charges and liens and not the rights of tenants, and in support of this contention he relied on section 57 of the Transfer of Property Act. It appears to me that it is not permissible to hold that the word "encumbrances" occurring in subsection (3) of section 3 of the Act has the same meaning as in section 57 of the Transfer of Property Act. No defini tion of the word "encumbrances" is given either .in the Act or in the General Clauses Act and one has, therefore, to turn to the dictionary meaning of the expression which would clearly include the right which a tenant has in the property of another, because such a right is clearly an encumbrance on the property. It follows, therefore, that as soon as the notification under subsection (2) of section 3 of the Act was published, the property vested in the Central Government free from all kind of right that anybody may have bad in It before the publication of the notification. It would follow that when the Central Government transfers the property which it has acquired under section 3 of the Act, the vendee would get the property free from all encumbrances because that was the nature of the title of the v: odor and this would have been so in all cases of transfer under the Act, but for the provisions of section 30 of the Act with regard to properties dealt with in the Act."

11. The arguments advanced by the learned counsel for Mistri Muhammad Sharif have not persuaded me to depart from the view taken in the case just cited. On the contrary, I find that this view is strengthened by the interpretation which has con sistently been placed by the authorities on section 16 of the Land Acquisition Act of 1894, which is worded more or less fn the same language, namely, that when the Collector has made an award under section 11, he may take possession of the land which shall thereupon "vest absolutely in the Crown free from all encum brances". It has been held that the phrase "free from all encumbrances" means that tree aggregate of nights in the property has been acquired with the result that all easements, tenancy rights and customary rights disappear. One may refer in this connection to Bombay Municipality and others v. M. Damodar Bros. (A I R 1921 Bom. 214) and Mitra v. Municipal Committee, Lahore (A I R 1925 Lah. 329) among a host of authorities on the subject. I am of the view that the acquisition contemplated by section 3 of the Di3placed Persons (Compensation and Rehabilitation) Act, 1958, is clearly comparable G in content and substance to the one contemplated under section 16 of the Land Acquisition Act, 1894, and the two Acts being pari materia in this respect, the same interpretation can safely be placed on section 3 of the Act as has been applied to section 16 of the Land Acquisition Act. The result is that once the land has been acquired under section 3 of the Act, all rights, including the rights of tenancy of the kind enjoyed by Mistri Muhammad Sharif, stand extinguished. That being the case, the possession of Mistri Muhammad Sharif of the site In question will no longer be authorised and he would be liable to ejectment under section 29 of the Act, unless, of course he is protected under section 30 of the Act.

12. Section 30 of the Act extends protection to a person who is "in possession of any evacuee house or shop or has been declared on or before the 20th day of December 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August 1947, in any industrial concern, evacuee house or printing press, which is transfer to any other person under the provisions of this Act . . . ." The case of Mistri Muhammad Sharih does not fall under any of the categories mentioned in section 30, as his tenancy rights are in respect of the site alone. He is not a tenant of the industrial concern known as the A. C. Engineering Works. It is clear, therefore, that Mistri Muhammad Sharif is not protected by section 30 of the Act.

13. It was contended that even if Mistri Muhammad Sharif be not protected under section 30 of the Act, and even if he be other wise liable to ejectment the Chief Settlement Commissioner, has no power to deal with the property under section 29 of the Act for the reason that the property has already been transferred to the auction‑purchaser and, therefore, the matter is one between Mistri Muhammad Sharif and the auction‑purchaser, who will have to settle it without the intervention of the Chief Settlement Com missioner. For this proposition, reliance was placed on the case of Haji Abdul Karim v. The Chief Settlement Commissioner and others from which I have already quoted in extenso. The observa tions relied upon in this behalf are to the following effect: ‑ "The plain meaning of sections 29 and 30 of the Act is that, while in the circumstances mentioned in section 29, the Chief Settlement Commissioner can, till such time as it has passed into the ownership of a transferee, issue an order of ejectment with regard to any property dealt with by the Act, the person in possession of the property under a valid order mentioned in section 30 of the Act, cannot be ejected therefrom for three years after the sale of the property under the Act at the instance of the person to whom the property has been transferred under the provisions of the Act, unless the conditions mentioned in that section exist." (page 403 of P L D 1961 Lahore).

14. There is no doubt that the power of ejectment conferred) on the Chief Settlement Commissioner by section 29 of the Act is exercisable in respect of evacuee property or property acquired under section 3 of the Act and does not extend to property which has passed into the ownership of the transferee, but in the present case the property‑ has not yet passed into the ownership of the auction‑purchase for the reasons that he has not yet paid the full auction price, the provisional transfer order has not been issued in his favour and possession of the entire area has not been delivered to him. The property, therefore, remains property which has been acquired under section 3 of the Act but not yet passed on to the transferee. The power of the Chief Settlement Commissioner to order ejectment, therefore, subsists in this case.

15. The position which emerges, therefore, is that although Mistri Muhammad Sharif has been declared to be an old tenant of the site from which he is being ejected, his rights of tenancy having been extinguished by the acquisition of the property under section 3 of the Act, and his case not being covered by section 30 of the Act, he can be legally ejected. I, therefore, see no reason to interfere with the order passed by the Chief Settlement Com missioner directing the ejectment of Mistri Muhammad Sharif. Accordingly I would dismiss Writ Petition No. 25/R of 1961, but in view of the circumstances of the case pass no order as to costs. 1 would, however, like to express the hope that the authorities would consider the question of the payment of due compensation to Mistri Muhammad Sharif for the structures of which he has been declared to be the exclusive owner.

16. I now take up the case of Subedar Muhammad Afzal. A preliminary objection taken on behalf of the respondents in his case is that the present petition is barred by the principle of see judicata in view of the dismissal of Subedar Muhammad Afzal's previous Writ Petition No. 292 of 1960 on the 19th of April 1960, by a Division Bench of this Court. It cannot be seriously dis puted that the principle of res judicata applies in the case of writ petitions and successive applications on the same cause of action in respect of the same subject‑matter cannot be permitted. P The rule on this point as contained in paragraph 156 of Halsbury's Laws of England, Third Edition, Volume 11, page '83, may be usefully referred to here :‑ "When an application for an order of certiorari, prohibition or mandmaus have been made, argued, and refused on the ground of defects in the case as disclosed in the affidavits sup porting the application, it is not competent for the applicant, to make a second application for the same order on amended affidavits containing fresh materials. The rule applies even in cases where the defects in the case which caused the refusal of his first application are remedied in the second, and it makes no difference whether the motion is made in a private capacity or by a law officer on public grounds. Where, however, there was a mere formal defect, such as that the affidavits were wrongly entitled in the first place, there may be a second application upon affidavits amended in this respect."

17. In Writ Petition No. 292 of 1960, the case put forward by Subedar Muhammad Afzal was that the premises known as A. C. Engineering Works were allotted to one Abdur Rahman in the year 1948 and the petitioner entered into an agreement with him to carry on business under the name and style of Messrs Trade Centre, that the portion in his possession consisted of a small room and a vacant plot attached thereto, and that he applied for the transfer of this portion on Form C. S. He went on to say that his C. S. Form was rejected by the Deputy Settlement Commissioner on the ground that the property was a big mansion, and subsequently there was an advertisement for the sale of A. C. Engineering Works by open auctition. The petition ended by challenging: ‑ (a) The correctness of the finding of the Deputy Settlement Commissioner that the property was a big mansion, and (b) the legality of the auction held on the 27th November 1959, on the grounds that the machinery of the A. C. Engineering Works had already disappeared when the auction was conducted and that the entire premises were not in occupation of Messrs. A. C. Engineering Works, but on the other hand, portions were occupied by Butt Brothers, Sundar Lal, Seth Brothers and Mistri Muhammad Sharif. It is correct that at that time the Chief Settlement Commissioner had not passed his order dated the 28th of November 1960, but it is obvious that the action by which Subedar Muhammad Afzal was aggrieved was the action of the Settlement Authorities in putting the entire property to sale by auction on the assumption that it was one unit, namely, a registered industrial concern known as A. C. Engineering Works. The relief asked for by Subedar Muhammad Afzal was sub stantially the same as prayed for in the present writ petition, namely, that the auction be declared void, the property be excluded from the list of industrial concerns and transferred to him as a shop. The fact that the Subedar has now confined his relief to that part of the property which vas previously in the occupation of Sundar Lal, does not materially alter the position because it is apparent from the previous writ petition that the part of the property which is now described as Sundar Lai's shop was included in the subject‑matter of that petition. He did not make a direct and clear mention of Sundar Lal's shop in the opening paragraph of the previous petition, but as the posses sion alleged by him was prior to the 20th of December, 1958, I can legitimately assume that the property mentioned by him in his previous petition presented on the 15th of April 1960, obviously comprised Sundar Lal's shop as well, because by that time he was in possession of the entire property to which he laid claim. It thus becomes clear that the subject‑matter and the cause of action which gave rise to the previous writ petition were exactly the same as those which are now agitated.

18. As already mentioned, the previous writ petition was dismissed on the ground that the petitioner was not in possession of the property within the meaning of the Displaced Persons Act, as there was no allotment order in his favour. It is contend ed by Mr. Mahmood Ahmad Qureshi that the order of the learned Judges passed on the previous occasion is clearly erroneous inas much as the possession of a valid allotment order was not necessary for creating entitlement for the transfer of a shop, in view of the amplified definition of "possession" introduced by a notification of the Central Government on the 30th of October 1959, by which undisputed occupation of a house or shop was recognised for the purpose of transfer. That may be so, but the order passed on the 19th of April 1960, would still stand in the way of Subedar Muhammad Afzal, as he did not get that order set aside by appeal to the Supreme Court. It may be that the learned Judges treated the entire property as an industrial concern, for which kind of property the existence of a valid allotment order continued to be necessary for creating an entitlement to transfer of the property, but whatever the reasons which influenced their Lordships on that occasion, the order still holds the field. In view of the rejection of the previous writ petition of Subedar Muhammad Afzal, in which the; relief asked for was substantially the same as in the present one and the subject‑matter comprised the property which is now in dispute, I am of the view that he cannot be permitted to re‑agitate the matter, and the present writ petition is liable to dismissal on that ground alone.

19. Even on merits, as already indicated by me the main question is whether the entire premises comprise one industrial concern or whether they consist of the industrial concern in question plus some shops. This is a question of fact, depending fox its decision on the appreciation of evidence produced before the learned Chief Settlement Commissioner. The evidence on which reliance is now placed on behalf of the‑petitioner, namely, entries in the Corporation register relating to the year 1946 was before the Chief Settlement Commissioner but he declined to place reliance on these entries and came to the conclusion that the entire property must be treated as part and parcel of the registered industrial concern, called the A. C. Engineering Works. This refusal to place reliance on the Corporation record was not altogether arbitrary, as in the first place the Chief Settlement Com missioner inspected the spot to ascertain the nature of the property and the size and extent of the shops alleged to have existed on the premises. In the second place, Major Ishaq Muhammad Khan has drawn our attention to a statement on the record made by one Humayun Butt, who is admittedly one of the proprietors of Butt Brothers, during the course of the inquiry conducted by Mr. Aziz Ahmad, the Deputy Custodian, Evacuee Property, in which Humayun Butt described the shop of Sundar Lal as only a khokha for the sale of Pans and cigarettes etc. From this state ment, an impression is created that the shop of Sundar Lal was situated in the industrial premises of A. C. Engineering Works and was subsidiary thereto. If that be the correct position, then this khokha of Sundar Lal could not be treated to be a shop within the definition of that term in clause 12 of section 2 of the Act, as a shop as defined in that section does not include a building situated in the premises of an industrial concern. It seems to me, therefore, that there exists some evidence to justify the conclusion reached by the learned Chief Settlement Commissioner. I should not be understood as endorsing that decision, but I have referred to the material on the record to show that the decision cannot be described as being arbitrary or capricious, or as being erroneous on the face of the record. The fact that the Chief Settlement Commissioner has excluded from the purview of the auction the portion of the property alleged to have been occupied by Seth Brothers before Independence and now by one Muhammad Kamal, does not necessarily prove the contention of the petitioner, because it is admitted that a lane intervenes between the other portion of the property and the portion known as Seth Brothers.

20. For all these reasons, I have come to the conclusion that no justification is made out for any interference with the findings of fact recorded by the Chief Settlement Commissioner. On this ground as well as on the conclusion recorded earlier, namely, that the present writ petition is not competent in view of the rejection of the previous Writ Petition No. 292 of 1960, I would dismiss Writ Petition No. 987 of 1960, but there will be no order as to costs. SHABIR AHMAD, J.‑I agree. K. B. A. Petition dismissed.