P L D 1978 Karachi 328 (PLP)

9. We have heard Mr. Ismail Munshi for the first appellant, Mr. Nasim Fasooqui for the secon4 appellant and Mr. A. A. Fazeel for respondent No. 2.

10. Mr. Ismail Munshi has firstly contended that the transfer documents issued and subsequently confirmed by the Settlement Commissioner here not in accordance with the particulars of the property published in the auction and in accordance with the bid sheet. Consequently, it was urged that incorporation of the entire area of the plot in the property is without juris diction and a nullity in law. In support of his submission the learned counsel has referred us to several documents on the departmental files. He first referred to the Auction Notice published in daily 'Dawn' of 8‑4‑61 which disclosed the list of "Evacuee Industrial Concerns which will be sold by public auction at the premises of each concern at the date and time noted against each." In Part No. Il at Serial No. 1 the property in question was mentioned as "Patel Engineering Works, Karachi (Building & Plot)." Counsel pointed out that the area of the plot was not mentioned in this Auction Notice. He next referred to the pro forma which was prepared at tree time of the auction. The survey number of the property was shown as L B 8/8‑P and the total area was shown as 2588 square yards approximately. In the column relating to the extent of evacuee interest in the property the following particulars were mentioned :‑ (i) Land ‑ (ii) Building (iii) Machinery : Claim to be property of Mr. Hakimaddin Mullan Munawar Ali, Managing Director, Decore Limited, Karachi. (iv) Shed : 100 % evacuee This document in the column relating to General Remarks says that the survey was completed on the spot just before the auction of the concern and that the it‑formation was collected partly on the spot and partly from the Head Clerk, Office of Additional Settlement Commissioner, Karachi who was present. The next document referred to by the learned counsel was the Amalgamation Report by the C. D. C., Karachi. In this document the total area of the amalgamated Surveys No 8 and 10‑2‑1 was shown to be 2773 square yards. On the basis of these documents it was contended that the Assistant Settlement Commissioner (Industries), Lahore was justified in holding in his order dated 27‑10‑1965 that what was advertised for auction was the concern as Patel Engineering Works which had reference to an area of 1433 square yards surrounded by a boundary wall and not the entire area covering all the three Sub‑numbers mentioned above.

11. In reply to these submissions, it was submitted by Mr. A. A. Fazeel, learned counsel for respondent No. 2 that the entire plot and two buildings were set up was originally given survey No L. R. 8/8. After excluding multi‑storey building consisting of shops and flats which were transferred under Settlement Scheme No. 1, the remaining portion of the property was described as 'L. R. 8/8‑P, which included building No.

11. This is supported by admission made by the appellants in the Memo of Appeal filed on their behalf under section 19 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958 before the Additional Settlement Commissioner, Karachi. It was further pointed out by the learned counsel that the Chief Assessor and Collector, K. M. C. ha,' certified vide his Certificate dated I1‑12‑65 that building No. II consists of a single‑storey building having three tenements as under ;‑ (i) Maston Company .................................. G‑1. (ii) Karachi Industrial & Textile Mills . . . . G‑1/1. (iii) Sheikh Allahdin ..................................... G‑

2. It was further stated in the said certificate that in 1947‑48, this part of the property was occupied by Patel Engineering Works as owner and by one tenant, and that portion previously occupied by Patel Engineering Works is now occupied by Maston and Karachi Textile as tenants. it was next pointed out that in the noting file of the Department it has been clearly mentioned on 22‑2‑61 that "all the three units are for auction vide the Settlement & Rehabilitation Board decision." In connection with the auction advertisement, it was urged that the property in dispute was not the only property of which the area was not mentioned, but same was tae case In relation to all the properties included in the list advertised. Counsel also pointed out that the bid sheet on which bids were recorded a1 the time of the auction described the property at the top as "Building No. L. R. 8/8‑P, Lawrence Road, Karachi". Referring to yet another document which is the list of Evacuee Industrial concerns in Karachi prepared by the Depart ment, counsel pointed out that at Serial No. 3, Patel Engineering Works has been shown and the name of the Evacuee Owner mentioned against the concern is shown as Messrs Hansraj lodhanji, who were the owners of the property and not the concern. which as haws been observed earlier belonged to Messrs Keshoraj Hansraj Brothers. From this it was contended that even the list of evacuee concerns prepared by the Department clearly referred to the immovable property in which formerly the concern Patel Engineering Works was housed.

12. Mr. Fazeel, however, contended that the question as to what cons tituted the subject‑matter of the auction and as to what was included in theauction sale, is a pure question of fact and, therefore, cannot be enquired into, in the constitutional jurisdiction. Reliance in this behalf was placed on Mohammad Nazir v. Chief Settlement Commissioner (1968 S C M R 1376) where their Lord ships declined to interfere with the finding of the Settlement Authority that Chaubara was a part of the shop transferred under the Settlement Laws o z the ground that such a finding being one of fact. was not amenable to reveal in writ jurisdiction. In reply it was urged by Mr. Muushi that the question was not a pure question of fact but was a mixed question of law and fact. Learned counsel referred us, in this connection, to pare. 5 of Settlement Scheme No. II, Part A relating to transfer of evacuee industrial concerns which prescribes that the Chief Settlement Commissioner while publishing the auction programme shall mention the particulars of the property and therefore it was urged, the failure to mention the area of the plot in the advertisement vitiated the auction. We find no force in this contention as, the perusal of para. 5 does not indicate that it was necessary to disclose the area of the plot included in the property put to suction. All that was: required was to disclose name. location and brief particulars of the property, We are therefore, unable to agree with the learned counsel that mere failure to mention the area of the property in question would render the proceeding of the auction void or illegal. It was agreed by the counsel appearing fed the parties that letter "P" in Survey No. L. R. 8/8‑P indicated that the property was a part of the main Survey No. L. R. 8/6 and therefore as admitted by the appellants in their own appeal before the Additional Settle ment Commissioner, referred to above, L. R. 8/8‑P comprised the remaining part of the original plot after so excluding the area covered by building No. I comprising 404 square yards. It has been established on the record that appellant No. 2 was present at the time of the auction and therefore he or others who participated in the auction must have had no doubt about the identity of the property to be disposed of by the auction. The Settlement Commissioner in the impugned order after examining the relevant record was satisfied that the premises purchased by the respondent No. 2 in auction included all the three portions bearing Sub Nos. G/1, G/1/1 and G/2. This is clearly a finding of fact and therefore following the rule laid down by their Lordships in the cited case, we are of the opinion that this question cannot be reopened in these proceedings. At any rate, the circumstances appearing on the record, as pointed out above could sustain this finding and therefor, even if it is erroneous, it cannot be termed as perverse.

13. Mr. Fazeel brought to out notice that the occupant of the other sab-divisions bearing Nos. G/1 and G/2 had also agitated the question of transfer of their portions to the respondent, but their Constitutional petitions were dismissed. In Writ Petition No. 214 of 1963 the High Court of West Pakistan, Karachi Bench, Karachi dismissed the plea of Shaikh Allahdin that the portion in his occupation was a separate tenement and referring to the order of the Additional Settlement and Rehabilitation Commissioner dated. 1‑3‑52 held that the said property was a part and parcel of the premises of Patel Engineering Works. Similarly the petition filed by Messrs Maston Company (Petition No. 41 of 1968) the same Court dismissed the petition on a statement by the petitioner that the claim for transfer of immovable property was not pressed in view of the clarifications regarding their rights made by the respondent. We therefore find no substance in the first contention advanced by the counsel.

14. It was neat contended on behalf of the appellants that the property in question could not be disposed of under Settlement Scheme No. II as it does not fall within the definition of the "Industrial concern". The expression "Industrial concern" has been defined in part. 1 (3) as under t‑ "'Industrial concern' includes any factory, registered under the Factories, Act, 1934, printing press and cinema house." The submission was that in the facts of the present case since the concern known as the Patel Engineering Works was purchased by Messrs Decora Limited through a sale which was confirmed by the Custodian, the concern ceased to be evacuee property and therefore, the immovable property wherein it was housed bereft of the concern could not be treated as an industrial concern within the meaning of the aforesaid Scheme. Such remaining property can only legitimately be treated as a building site In this con nection, the learned counsel referred to Memo No. 2177‑F & M‑Reh. 6m dated 4‑5‑60 through which the decisions taken by the Industries Rehabilita tion Board on certain points raised in regard to the disposal of Industrial concerns, were published for information. Learned counsel relied upon para. 2 of this Memo which is in the following terms : "In case where a building is an evacuee property and machinery installed therein is owned by a non‑evacuee car rice versa, only evacuee interest may be transferred to the person in possession." However, we find that all these decisions as the preamble of this Memo clearly reveals pertain to the disposal of industrial concerns not already allotted by the Industries Rehabilitation Board. It therefore follows that para. 2 on which reliance was placed also relates to an industrial concern and the evacuee interest in the property would obviously be disposable as, an evacuee industrial concern. The other decisions incorporated in this Memo. tend to go against the submission of the counsel as even a house or a shop which was subsequently converted into an industrial concern was required to be disposed of as an industrial concern. Learned counsel then referred us to para. 6 of the Memo which stipulates that where an industrial concern is located only in one tenement of a building, that portion only may be transferred as an industrial concern and the remaining tenements gray be 6isposea of as independent units in accordance with the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 and the relevant schemes framed thereunder. Even this para. is not attracted in the present case as it speaks o: different tenements of a building. In the present case, the concern in question was located in the entire building on the plot in dispute and the appellants claimed right not in regard to a tenement of the building but on the basin of a portion of the open plot. The reliance on this Memo:' is therefore inapt. We are in agreement with the learned Single Judge that the definition of the expression 'industrial concern' is not exhaustive as is dear by the use of the word 'includes'. It will therefore be a question of fact in each case for the Settlement Authorities to determine whether al particular property was or was not an industrial concern. The attended meaning of the term 'industrial concern' obviously includes inter alia a factory registered under the Factories Act, 1934. But that does not mean that industrial concerns consisting of factories which were not registered under the Factories Act, cannot fall within the purview of the term 'industrial concern'. We therefore agree with the learned Single Judge that in absence of the exhaustive definition of the term, the question whether the disputed property could or could not be treated as an industrial concern cannot be agitated or examined in writ Jurisdiction.

15. Mr. Naseem Farooqui. learned counsel appearing for appellant No. 2 made a submission in this connection which may also be considered at this stage. He submitted that the term "factory" as defined in sections 2(i) of the Factories Act means any premises, whereon ten or more workers are working or were working on any day of the preceding 12 months, and in any part of which manufacturing process is being carried on. Counsel therefore urged that carrying on of manufacturing process is defined in the said Act and Via requisite number of workers employed on the promises are pre‑conditions for bringing the premises within the ambit of the definition of the term 'factory'. Since both these conditions were missing, via‑a‑via the property under auction, in view of the confirmation of sale of the concern by the Cu9todian, the property could not be deemed to be an industrial concern. However, in the view that we have taken that the definition of industrial concern is not exhaustive, but is merely inclusive, it is idle to pursue this question further. Even a cinema house and a printing pr are included within the definition of the term where obviously no manufacturing process as defined by the aforesaid Act is carried on. We therefore also find no force, in the second contention advanced in support of the appeal.

16. This would be sufficient to dispose of this appeal but Mr. Fazeel has urged before us a contention which cuts at tile root of the appellants' case and therefore we consider it proper to examine the same. It was argued that the appellants were not entitled to invoke the Constitutional Jurisdiction to assail the Impugned auction, for they did not invoice the statutory remedies available to them under the law. In this connection the material facts are that the notice for auction of the disputed property was published in the Press on 8‑4‑61 and the auction was actually held on 24‑4‑61 at site. It a on the record that appellant No.2 was admittedly present at the time of tae auction. It was submitted that after the auction was confirmed by the Chief Settlement Commissioner on 21‑5‑61 followed by a P. T. O. dated 15‑6‑61 the respondent No. 2 filed ejectment proceedings against the appellants in October, 1962, in which written statement was filed by appellants on 8‑3‑

63. Consequently the appellants had the knowledge about the relevant facts at least by the date they find the written statement (8‑3‑63). Yet the appeal was filed on 19‑9‑64 before the Additional Settle ment Commissioner, Karachi which teas dismissed on the ground of lack of jurisdiction on 5‑10

64. Thereafter a fresh appeal was flied before tat Additional Settlement Commissioner (Industries), Lahore on 28‑7‑65 which was decided in favour of the appellants. Now the period prescribed for appeal under section 19(2) of the Displaced Persona (Compensation and Rehabi litation) Act, 1958 is 15 days froth the date of the order appealed against. I was contended that in view of the foregoing facts the appeal was barred by time and could not therefore be entertained without condoning the delay in presenting the same. There is nothing in the order of the Addition Settlement Commissioner which indicates that he applied his mind to the question of condonation of the delay. Therefore, the order was palpably passed without jurisdiction, It was hold in El4tlli Alt v. District Judge (P L D 1969 S C 167) that there must be something in the order or judgment itself to show that Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with tike proceeding on merits. In reply it was urged that there was no occasion to file an appeal as there was no order complained of. But it has been held in Bahar Mohammad v. Chief Settlement and Rehabilitation Commissioner (P L D 1962 Lah. 209) that the Chief Settlement Commissioner can upset an order of subordinate Settlement Authority only in revisional powers under section 20 and not by miscellaneous petition. In the present case the auction was held by the Additional Settlement Commissioner and confirmed by the Chief Settlement Commissioner. No appeal or revision could therefore be filed before an Officer of co‑ordinate jurisdiction. The Additional Settlement Commissioner. Lahore had therefore no jurisdiction to entertain an appeal or representation. the powers of review were taken away and were trot available after the amendment of section 21 in 1962 (P L D 1972 Kar. 46). Looking at the question from any angle, therefore, the order passed in favour of the appellants is not sustainable in law and no rights can therefore be founded thereon.

17. In view of the foregoing reasons, we find no substance in this appeal and therefore dismiss the same with no order so to costs. I. MAHHUD, J. ‑I agree. S. A. H. Appeal dismissed.