1976 PLP 57 (SCMR)

G. A. Memon, Advocate‑on‑Record for Respondents (in Civil Petition No. 9‑R of 1975). Date of hearing : 13th August 1975. HAMOODUR RAHMAN, C.J.‑‑The dispute in this case relates to the transfer of an evacuee property consisting of 27 acres in the vicinity of Quetta Town. In these 27 acres, comprised in Khasra Nos. 153, (154 anti 155, there was also situated a brick‑kiln and a well. This kiln was allotted to one, Taj Mohammad, the predecessor‑in interest of the petitioners in Petition No. K‑252 of 1974, and respondents Nos. 1 to 5 in Petition No. 9‑R of 1975, in the year 1950. Along with the said Taj Mohammad, there were three other co‑partners, who were also beneficiaries of this allotment. Thereafter, on the 30th September, 1958, the, Assistant Rehabilitation Commissioner, Quetta, allotted 59 acres of agricultural land to one, Abdul Hakim Patel, the petitioner in Petition No. 9‑R of 175 and respondent in Petition No. K‑252 of 1974. This land included the disputed 27 acres in Khasra'Nos..153, 154 and

155. On 11th November, 1959, when Settlement :rations started, Taj Muhammad was given a Pa T. O. in respect of the brick‑kiln as an Industrial concern together with the 27 acres of land. Thereafter, on 31st August, 1961, Taj Muhammad applied to the Additional Settlement Commissioner for excluding this area from the category of agricultural laud liable to be disposed of under the Land Settlement Act and an order to that effect was passed in his favour on the 4th July 1962. Abdul Hakim Patel went in revision to the Settlement Commissioner against this order. He set aside the Order and remanded the case bark to the Additional Settlement Commissioner for fresh decision. On this occasion the Additional Settlement Commissioner dismissed the application of Tai Muhammad and held that the disputed property was 'land' as defined in the Land Settlement Act and could riot, therefore, be transferred as an 'industrial concern'. In the meantime, Taj Muhammad died, but his heirs and legal repre sentatives challenged the above order by a second revision application and got the original order of transfer restored in their favour. Abdul Hakim Patel came to the High Court in the writ jurisdiction against this order. A learned Single Judge of the then West Pakistan High Court took the view: that the entire land could not be regarded as an industrial concern, as, according to the relevant records, the area of the brick‑kiln was only 31 acres. He, therefore, allowed the heirs of Taj Muhammad to retain only 31 acres as a brick‑kiln and upheld the transfer of the rest of the area as "land" in favour of Abdul Hakim Patel. Aggrieved by this order, both parties preferred Letters Patent Appeals. The Letters Patent Bench has affirmed the decision of the learned Single Judge and dismissed both the appeals. Both parties have now come up for special leave to appeal. Learned counsel for the heirs of Taj Muhammad contends that since the area adjoining the brick‑kiln was being used for extracting earth there from for the purpose of making bricks, the whole area was being utilized for the purposes of the brick‑kiln and should have been treated as an industrial concern. In support of this contention, he has relied on two decisions of this Court in the cases of Syed Shaukat Hassain Rizvi v. K. B. Dr. Yar Muhammad Khan (P L D 1974 S C 276) and Ghulam Hussain and others v. Khan Mukarab Khan and others (1974 S C M R. 365). These decisions do not assist learned counsel. Earth for manu facturing bricks can be extracted from any land anywhere, but the mere fact that the earth is being extracted for the purposes of manufacturing bricks will not convert the land into an industrial concern or a brick‑kiln. Learned counsel for Abdul Hakim Patel, on the other hand, contends that even the 3 acres, treated as a brick‑kiln, are not really a brick‑kiln, but, according to the Revenue records, are only Ghair Mumkin Godi' or 'Khushk Abad' land. The Fard jamabandi, which gives further details, however, shows that in Khasra Nos. 154 and 155, there is a 'Bhatta' or brick -kiln standing on 3 acres. In the circumstances, it cannot be said that the entire area is 'land'. Learned counsel has also referred us to a notification No. 2177, issued on the 4th May 1960, (vide New Settlement Manual, page 545). This clearly says that brick‑kilns may be transferred as industrial concerns. Learned counsel; however, contends that this notification cannot be taken advantage of, as it carne after the allotment was made. We are unable to agree with this contention, because, the first allotment was only of a temporary nature. The notification certainly carne in before evacuee pro perties were acquired and went into the compensation pool. Hence the notification was fully applicable. It is next contended that the land was to be disposed of in accordance with the rise to which it was being put on the 15th August 1947. This has been done and it seems to us that the High Court was right in taking the view that the land described as 'Ghair Mumkin Godi' is not land which can never be cultivated. The report of the Deputy Rehabilitation Commissioner (Exh. C/1) actually shows hat in khasra No. 155, wheat was shown in Rabi 1958-59. The patwari of the view that the land was such that it could well be brought under cultivation. In the circumstances, the land adjoining the kiln has been rightly treated as 'land' within the meaning of the Land Settlement Act and allotted as such. Similarly, the 3 acres, in which the brick‑kiln was situated, has also been rightly treated as an industrial concern. We see no reason, therefore, to interfere the High Court s order which is eminently just and proper. Both these petitions are, accordingly, dismissed. Leave refused.