P L D 1973 Lahore 827 (PLP)

The petitioner firm has, by this writ petition, called in question its liability to pay the cotton fee in respect of cotton ginning season 1960‑6I on various groun0s, but the one pressed by the learned counsel is that the petitioner/firm was not the occupier of the concerned cotton factory (teak. Punjab Cotton Factory, Toba Tel Singh) and because, under the law, only the occupier is liable to pay the cotton fee, therefore, the peti tioner was not liable.

2. As explained by the learned counsel for the petitioner, by virtue of unamended clause (b) of section 30 of West Punjab Cotton Control Act, 1949, only owners could be required to pay cotton fee but subsequently by the Punjab Cotton Control Act, 1953, clause (p) aforementioned was amended. The amend ment included substitution of the word "occupiers" for "owners" He states that the question of retrospectivity or otherwise of the amendment or any notification is not involved in this case and frankly conceded that if the petitioner falls within the definition of word "occupier" in section 2(q) of the Cotton Control Act, he would have no case. The definition relied upon reads as follows:‑- "Occupier means the person who has ultimate control of the affairs of a factory and includes the Manager or Managing Agent or other person or persons authorised to represent the occupation." Learned counsel asserted that the petitioner/firm was a lessee, therefore, it would not fall under the definition of occupier. In this behalf, he is relied on provisions of section 9 of the, Act whereby a cotton ginning factory cannot be worked without a license granted to the occupier thereof and because, according to him, the petitioner firm had not obtained the license, therefore, it cannot be treated as occupier.

3. Learned counsel for the respondents, on the other hand relied on the observations of their Lordships of the Supreme Court in Muhammad Ismad & Co. etc. v. Chief Cotton Inspec tor (P L D 1966 S C 389) to contend that occupier is a much wider term and would, in the context of the present case, include a lessee. He also contends that the view in the above ruling was reiterated in Messrs Elahi Cotton Ginning & Pressing Factory v. The Government of West Pakistan (1970 S C M R 276).

4. It needs to be noticed that in the lease deed dated 8‑8‑60, under which the petitioner worked the Cotton Factory in 1960‑61 (a copy of which has been placed on the file), it is mentioned that the petitioner was liable to pay all taxes, etc. other than the property tax. The reading of this lease deed shows that the petitioner would be responsible for the payment of the cotton fee. Moreover, in so far as the ginning season (1960‑61) 9s concerned, the petitioner was not only to act as lessee but was also to manage the factory and represent the owners/allottees. It is in pursuance of this arrangement that the petitioner made an application on 21‑10‑60 (Annex. `X') whereby the Deputy Director of Agriculture was informed that the petitioner had taken the facto on least. In the end, it was requested that permission might be accorded to the petitioner "to gin and press in the sari factory all the three varieties of kapas for the season 1960‑fit". The above facts show that the petitioner not only was authorised to represent the interest of the allottee/owner before the authorities but in fact did make such representation and even if it did not obtain a formal licence in pursuance of section 9, it did in reality seek permission without which it thought it would not be able to work the factory. In these circumstances, the contention raised by the learned counsel that the petitioner slid not represent the allottee/owner nor could be treated as an occupier simply because It did not obtain a licence, is of no help to the petitioner

5. Their Lordships of the Supreme Court were pleased to observe at page 407 of the report in the cited case that "the expression 'owners' occurring in original clause (p) is much narrower than the term `occupiers' used in the new clause. The latter term would include allottees of such factories although they may not have been transferred ownership rights or even managing agents who may be in occupation of such factories". The definition of occupier, when carefully analyzed, shows that the Legislature intended to convey the widest possible meaning of the word "occupier". The following categories of persons are, by a grading process, included in the definition of an occupier:

(i) person who has ultimate control of the affairs of a factory : (ii) Manager I (iii) Managing Agent ; (iv) any other person or persons authorised to represent the occupiers. The fourth category, it needs to be emphasized, includes all those persons also who are who are authorised only to represent an occupier. Therefore, this category might include any many sub-categories because the authority to represent is not only of the owner but also of the occupier. A lessee would stand at n much higher level than a person who is merely authorised to represent an occupier. He therefore undoubtedly would be treated as an occupier.

6. As already noted, the lease deed also shows the intention of the parties that the petitioner was not only to represent the owner but also was to pay taxes, etc. The attempt of the learned counsel to dilute the effect of the expression "taxes, etc." by raising a technical objection that taxes would not include fees, in the context of the lease deed itself is of no avail to the petitioner. The term "etc." in the context of the lease deed would, in my view, also include the cotton fee.

7. In the light of the above discussion, I hold that the petitioner was occupier within the statutory definition and, thus, was liable to pay the cotton fee for the concerned period. I, therefore, dismiss this petition with costs. Petition dismissed.