P L D 1969 Supreme Court 309 (PLP)

M. R. KHAN, J.--‑This appeal by special leave is from the judgment of the High Court of West Pakistan, Lahore, dismissing the appellants' Letters Patent Appeal No. 230 of 1963, against the order of a learned Single Judge in Writ Petition No. 630‑R of 1962, by which he quashed the Chief Settlement Commissioner's order, dated the 28th February 1962, and remanded the case for re‑hearing. The said writ petition was made by Sh. Anwarul Haq the first respondent herein, and its subject‑matter was stated to be an evacuee industrial concern known as `Central Technical Works' situate at 35, Katcha Ferozepur Road, Lahore. Admit tedly, a bungalow having several living rooms, 'bath‑rooms and a kitchen etc. is also there at 35, Katcha Ferozepur Road. According to the respondent, the alleged industrial concern `Central Technical Works' is one single unit and comprises both the bungalow and the factory by its side. The appellants Miss Surraya Parveen and Mst. Razia Khanum, however, consistently maintain that the bungalow and the alleged factory at 35, Katcha Ferozepur Road, though adjacent to each other, are two separate and independent properties, bearing Nos. S‑X‑I‑S‑6 (1) and S‑X‑I‑S‑6 (2), respectively and that the bungalow is a residential house having no concern whatever with the other property which is only an open space with one wooden `Chhaper' and three tin `Chhaper'. The said bungalow is in dispute between the parties. The pleadings of the parties before the Settlement Authori ties and the Courts and the various documents filed by them reveal the following facts:‑‑ On the 9th January 1948, the Director of Industries, exercising powers of Rehabilitation Commissioner (Industries), allotted to the respondent Anwarul Haq an undertaking called `Central Trading Workshop' on Ferozepur Road, Lahore (see pages 123‑26 of the paper‑book). In his writ petition to the High Court, the respondent described this undertaking as `Central Technical Works' at 35, Katcha Ferozepur Road, Lahore. However, the respondent, as an allottee, remained in possession of the said undertaking and the bungalow in dispute till the 31st July 1952 on which date the Deputy Rehabilitation Commissioner (R & R) allotted to the appel lants herein and their aunt Zubaida Khanum two bed‑rooms, one kitchen, one bath‑room and an attached verandah out of the said bungalow. The appellants who are two sisters lost their parents during riots in Patiala on the eve of the Independence. After their arrival in Pakistan they, together with their aunt Zubaida Khanum, were staying at Dar‑ul- Muhajarat, Lahore. After the closure of Dar‑ul‑Muhajarat, they were in great distress, and it was mainly on this con sideration that they were allotted a portion of the disputed bungalow as stated above which portion is marked by the letters A. I. J. K. L. M. N. O. E. on the site plan (Exh. P/ 1). The respondent's revisional application against this allot ment to the appellants was rejected by the Additional Cus todian on the 6th March 1953. Thereafter, on the 23rd July 1953, the appellants and their aunt, Zubaida Khanum were given possession of the portion of the disputed bungalow as allotted to them. The remaining portion of. the bungalo,v as also the factory adjacent to the bungalow remained in possession of the respondent. On the commencement of the Settlement Operation under the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, the appellants as claimants filed one C. H. Form in respect of the disputed bungalow describing the bungalow as property No. S‑X‑I‑S‑6 (1). The appellants' aunt Zubaida Khanum also filed a C. H. Form in respect of that bungalow. On the 15th July 1959, Naziran Begum, the mother of the respondent also filed a C. H. Form in respect of the said bungalow on the basis of the possession of her son. In her C. H. Form, Naziran Begum described the bungalow as property No: S‑X‑I‑S‑

6. On the 28th November 1959, the respondent made an application to the Additional Settlement Commissioner (Industries) for transfer to him the entire property `Central Technical Works, 35, Ferozepur Road (Central Trading Company)'. When the C. H. Forms of the appellants and their aunt and that of Naziran Begum came up for consideration, the respondent made a statement on the 30th November 1959, on solemn affirmation, stating that his mother was entitled to the entire disputed bungalow on the basis of his possession. After spot inspection, the Deputy Settlement Commissioner, by his order, dated the 5th December 1959, transferred the disputed bungalow to the appellants and Naziran Begum according to their respective possession. After the transfer of the bungalow by the Deputy Settlement Commissioner as above, the respondent himself filed a C. H. Form on the 23rd December 1959 in respect of the entire bungalow, describing it as property No. S‑X‑I‑S‑6 and prayed for transfer of the bungalow jointly to him and his mother Naziran Begum. This C. H. Form was presented after the last date for filing C. H. Forms. Against the order of the Deputy Settlement Commissioner, dated the 5th February 1959, dividing the bungalow between the appellants and Naziran Begum, the appellants preferred an appeal to the Additional Settlement Commissioner and claimed the entire bungalow. Also the respondent and his mother Naziran Begum jointly preferred an appeal against the said order of the Deputy Settlement Commissioner. The Additional Settlement Commissioner remanded the case to the Deputy Settlement Commissioner (Industries) on the 6th January 1960, to ascertain if the bungalow in dispute is a part of the factory as alleged by the respondent and to initiate a case on the factory side, but kept the appeals of the parties pending in the meantime. The Deputy Settlement Commissioner (industries) submitted a report on the 2nd March 1960 to the Additional Settlement Commissioner stating that the factory as alleged belonged to an evacuee and that its machinery was installed on the open space by the .side of the bungalow. He further reported that the factory in question was an unregis tered factory and that its allottee, namely, the respondent should get only that portion of the bungalow which is in his actual possession and not the entire bungalow. In the said report, it was also stated that the division of the bungalow as ordered by the Custodian and adhered to by the Deputy Settlement Commissioner by his order, dated the 5th December 1959, would be most beneficial to the parties. This report was approved by the Additional Settlement Com missioner by his order, dated the 2nd March 1960. After this order, Naziran Begum went out of the picture and the respondent alone appealed to the Settlement Commissioner against the said decision of the Deputy Settlement Commis sioner (Industries) as approved by the Additional Settlement Commissioner, with the prayer that the entire bungalow be treated as factory premises. This appeal by the respondent was, in fact, treated by the Settlement Commissioner as a revisional application, and he made the following order thereon:‑ "After hearing the counsel for the parties I have come to the conclusion that there are many points which have been ignored by the lower appellate Court in giving decision with regard to this property. The petitioner prayed that the whole of the property was an Industrial concern and as such should be disposed of under Settlement Scheme No.

2. No decision was given on this point. I would therefore allow this petition for revision and maintaining the transfer order with regard to the Industrial concern, setting aside the order regarding the attached building and remit the case to Lt. Col. J. D. Malik for giving a direct decision as to whether the entire property is to be the subject of operation under Settlement Scheme No. 2 or has to be partly treated as falling under Settlement Scheme No.

1. This will be done by personal inspection of the spot as also by investigation of the nature and character of the property prior to the partition." Thereafter, the Additional Settlement Commissioner made an order on the 4th August 1960, stating that the factory and the bungalow are closed together and not divisible and, as such, the entire premises should be transferred to the respondent as an industrial concern. Against this order, the appellants filed an appeal before the Settlement Commissioner, but it was dismissed on the 18th October 1960. The appellants then filed a revisional application before the Chief Settlement Commissioner. Having inspected the properties on the spot and taking into consideration the various preliminary assessment lists and assessment registers, the Chief Settlement Commissioner found as a fact that the bungalow in dispute and the alleged factory are two independent units bearing units Nos. S‑X‑I‑S‑6 (1) and S‑X‑I‑S‑6 (2), respectively. The Chief Settlement Commissioner, however, found that the C. H. Form of the respondent in respect of the bungalow was not regularly admitted by any competent officer. As regards the C. H. Form of Naziran Begum, the Chief Settlement Com missioner ignored it as she claimed the bungalow on the basis of possession of her son and gave preference to the claim of the appellants as they were direct claimants allottees. Accordingly, the Chief Settlement Commissioner made the following final order on the 28th February 1962, on the revisional application of the appellants:- "The whole bungalow bearing No. S‑X‑I‑S‑6 (1) is trans ferred to the petitioners (i.e. the appellants herein) who have a better right to its transfer. So far as Unit No. S X‑I‑S‑6 (2) (the plot where the factory stands) is concerned the case will be disposed of by the Settlement Commissioner concerned on merits. The Settlement Commissioner (Indus tries) is directed to take up the question relating to the plot alone separately and after bearing the parties to give a decision." In this order, an observation was made by the Chief Settlement Commissioner to the effect that none of the parties to the dispute applied for the transfer of any industrial concern. The validity of the above order of the Chief Settlement Commissioner was challenged by the respondent in his Writ Petition to the High Court. It was contended in the Writ Petition that the respondent had, in fact, made an applica tion to the Additional Settlement Commissioner (Industries) on the 28th November 1959, for the transfer of the entire property at 35, Ferozepur Road as an Industrial concern and as such, the Chief Settlement Commissioner erred in observing in his order that none of the parties applied for the transfer of any industrial concern. As the respondent's said appli cation, dated the 28th November 1959 escaped the notice of the Chief Settlement Commissioner, a learned Single Judge of the High Court quashed the order of the Chief Settlement Commissioner, dated the 28th February 1962 and directed him to hear and decide the revisional application of the appellants herein, keeping in view the fact that an application for the transfer of industrial concern had been made by the respondent. The appellants filed a Letters Patent Appeal against the decision of the learned Single Judge of the High Court, but this was dismissed on the short ground that no final adjudication was made by the learned Single Judge and that the matter was left to be decided by the Chief Settlement Commissioner. The present appeal is directed against the judgment of the Letters Patent Bench dismissing the appellants' Letters Patent Appeal. Leave was granted in this case to consider if the flaw found by the learned Single Judge is one which necessarily affected the direction given by the Chief Settlement Commissioner in respect of the bungalow in favour of the appellants. The facts of this case as stated hereinbefore gave rise to a question whether the disputed bungalow is a separate unit and is independent of the factory by its side or whether the industrial concern as claimed by the respondent includes both the factory and the bungalow. It appears that the Chief Settlement Commissioner formulated the following question for determination:- "The most important issue that has arisen in this case after hearing the parties is as to whether the property in dispute consists of a single unit or two." As already stated, the Chief Settlement Commissioner, after local inspection and having regard to the various assess ment registers and the preliminary assessment lists, arrived at the finding that the bungalow in dispute is a separate unit bearing No. S‑X‑I‑S‑6 (1) and that the factory is another unit bearing No. S‑X‑I‑S‑6 (2). This is a finding of fact based on authentic documents. It appears from the preliminary assessment lists for the years 1944‑1953 that the bungalow in dispute bears Unit No. S‑X‑I‑S‑6 (1), and it has several living rooms, some bath‑rooms, one kitchen, one pantry, four verandahs, servant quarters and one motor garrage. The annual rent of the bungalow was Rs. 100 p.m. and its annual valuation was Rs. 1080. The preliminary assessment list for the year 1944 shows that unit No. S‑X‑1‑S‑6 (2) was assigned to an open land belonging to the `Central Technical Works' on which there stood one wooden chhaper and three tin chhapers. The rent for this plot was Rs. 25 p.m. and its annual valuation was Rs.

270. To the same effect is the preliminary assessment list for the year 1946. The Municipal Taxation registers for the year 1946 are also in line with the assessment lists for the two units as aforesaid. The find ing of the Chief Settlement Commissioner that the disputed bungalow is a separate unit and independent of the factory is thus borne out by very good evidence. That the bungalow is a residential house and is separate from the factory was rather conceded by the respondent by his own act and conduct. The respondent made a Statement on solemn affirmation on the 30th November 1959, supporting his mother Naziran Begum's C. H. Form relating only to the bungalow. It is significant that he supported his mother's C. H. Form in spite of his own application, dated the 28th November 1959, for the transfer of the `Central Technical Works' to him as an industrial concern. This implies that the respondent himself treated his said application as one relating to the factory alone and not to the bungalow. Not only this, the respondent himself filed a belated C. H Form claiming the entire bungalow as a residential house and this form necessarily implies that he treated the bungalow as separate from the factory. In the joint memorandum of appeal of the respondent and his mother, dated the 10th December 1959, to the Additional Settlement Commissioner, they took the stand in paragraph 9 thereof that the factory being adjacent to the house (i.e. the disputed bungalow), they would be entitled to the transfer of the entire house to themselves because of this contiguity. This is yet another instance of the respon dent's treating the bungalow as separate from the factory. Although the respondent applied on the 28th November 1959, for the transfer of the `Central Technical Works', he did not state at any stage prior to the 20th April 1960, that the bungalow in dispute is a part of the said undertaking; rather he sup ported his mother's C. H. Form and filed his own C. H. Form in respect of the bungalow alone. It was only on the 20th April 1960, that the respondent, in his appeal to the Settle ment Commissioner, claimed for the first time that the bungalow should be treated as a part of the factory, such acts and conduct of the respondent rather lend strong support to the Chief Settlement Commissioner's finding that the dis puted bungalow is an independent unit and separate from the factory by its side. The position, therefore, is that the disputed bungalow, according to the finding of the Chief Settlement Commissioner is an independent evacuee residential house having no concern h with the factory by its side. This being a finding of fact by the highest Settlement authority is not liable to be disturbed in any proceeding before a Court. Mr. Mahmood Ali Kasuri, learned counsel for the respondent submitted that the disputed bungalow is a part of the industrial concern known as `Central Technical Works' and is, therefore, not liable to be transferred as a house as defined in section 2 (4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This contention, however, is of no avail inasmuch as the Chief Settlement Commissioner has found as a fact that the disputed bungalow is a separate residential unit and is inde pendent of the factory. In this context, the application of the respondent, dated the 28th November 1959, in which he prayed for transfer to him the entire property at 35 Ferozepur Road as an industrial concern, is of no consequence in so far as it relates to the disputed bungalow bearing No. S‑X‑1‑S‑6 (t). Hence, the decision of the Chief Settlement Commissioner transferring the bungalow to the appellants as a residential house would not have been affected the least even if the respondent's application, dated the 28th November 1959, had not escaped his notice. The High Court was not, therefore, right in quashing the Chief Settlement Commissioner's C order transferring the bungalow to the appellants on the ground that the respondent's application for the transfer of an industrial concern went unnoticed. As regards transfer of the bungalow, the Chief Settlement Commissioner has held that the appellants being claimants and allottees in possession, their right to transfer of the entire bungalow is superior to that of Naziran Begum who though a claimant, claims the bungalow not as an allottee in possession but on the basis of the possession of her son, the respondent. Accordingly, the Chief Settlement Commissioner passed an order transferring the entire bungalow in favour of the appellants. No legitimate exception can be taken to this order as the appellants' claim, for the reasons stated in the order, is superior to that of Naziran Begum. As regards the respondent's C. H. Form in respect of the bungalow, it may be mentioned that, prior to the filing of that form, he had given up his claim for the bungalow in favour of his mother Naziran Begum and, in fact, supported his mother's claim by making a Statement on solemn affirmation on the 30th November 1959. It was only after the division of the bungalow between the appellants and Naziran Begum by the order of the Deputy Settlement Commissioner, dated the 5th December 1959 that the respon dent presented his C. H. Form on the 24th December 1959, which was beyond the last date (10‑11‑59) fixed for sub mitting C. H. Forms. The Chief Settlement Commissioner, however, stated in his order, dated the 28th February 1962 that no competent officer accepted this C. H. Form of the respondent. Mr. Mahmood Ali Kasuri submitted that the delay in filing the C. H. Form by the respondent was condoned by the Settlement Commissioner by his order, dated the 24th December 1959, but no such order condoning the delay appeared to have been filed before the Chief Settlement Commissioner or any other Settlement authority. Even if the respondent's C. H. Form is taken to have been filed before a competent officer within time, the position would not improve at all. The respondent having given up his claim for the bungalow in favour of his mother and supported her claim before the Settlement authorities cannot turn round and lay a claim upon the bungalow on the basis of his own C. H. Form. There is yet another aspect of the matter which has an important bearing on the respondent's entitlement to the bungalow. In his appeal to the Settlement Commissioner, dated the 20th April 1960, the respondent prayed for treating the bungalow as a part of the factory, forgetting that he gave up his claim for the bungalow in favour of his mother. In his writ petition also, he claimed the bungalow as a part of the factory. Thus, the respondent clearly took an inconsistent stand with regard to the bungalow. Initially, he gave up the claim for the bungalow in favour of his mother, but, having realised that the appellants' claim for the bungalow is superior to that of his mother, he turned round and claimed the bungalow to be a part of the factory. However, when the bungalow has been found by the highest Settlement authority to be an independent residential house and separate from the factory and when the respondent gave up his claim in favour of his mother, the respondent has no entitlement to the bungalow as a residential houses. His application, dated the 28th November 1959, claiming transfer of `Central Technical Works', in the facts and circumstances of the case, appears to be indeed an application for transfer of the factory alone and not for transfer of both the factory and the bungalow as an industrial concern, The appellants' claim is confined to bungalow, and they do not claim the factory adjoining the bungalow. The respondent is the only claimant in respect of the factory. He duly made an appli cation on the 28th November 1959, for transfer of the factory. The Additional Settlement Commissioner, by his order, dated the 4th August 1960, transferred both the factory and the bungalow to the respondent. As, however, the bungalow in its entirety stands validly transferred to the appellants under the orders of the Chief Settlement Commissioner, the respondent is entitled to transfer of the factory at least. The respondent's application for transfer of the factory having escaped the notice of the Chief Settlement commissioner, an order was made by that officer annulling the transfer of the factory in favour of the respondent. Obviously, this was an erroneous order made in ignorance of the respondent's pending application for transfer of the factory. In order to do complete justice, the transfer of the factory in favour of the respondent should be maintained, and it is not necessary to remand the case to the Chief Settlement Commissioner for reconsidera tion of the respondent's claim in respect of the factory. In the result, I would allow the appeal with costs, set aside the judgment of the High Court and uphold the transfer of the entire bungalow in dispute in favour of the appellants and also the transfer of the factory adjoining the bungalow in favour of the respondent. K. B. A. Appeal accepted.