P L D 1962 (W (PLP)

"(1) Every industrial concern or cinema house shall, subject to the provisions of the following sub-paragraphs, be sold in an unrestricted public auction. (2) if an industrial concern or a cinema house allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilitation Act, 1956 (XLII of 1956) is in the possession of a claimant who has left in India or any area occupied by India a registered industrial concern or a cinema house or whose verified claim under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, is of the value of rupees one lac or more, then the industrial concern or the cinema house in the possession of such claimant, shall in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market-value minus the Invest ment made, if any: Provided that if the claimant concerned has abandoned a share in a registered industrial concern or a cinema house the industrial concern or the cinema house in his possession shall not be transferred to him unless his verified claim in respect of such share is rupees thirty-three thousand or more. (3) If an industrial concern or a cinema house not allotted by the aforesaid Industries Rehabilitation Board, is in the possession of a displaced person or a local, then such concern or cinema house shall, in case he applies in that behalf, be transferred to him on payment of its prevailing market value minus the investment made, if any. (4) If any local or displaced person has invested in any industrial concern or cinema house, not being an industrial concern or cinema house transferred under sub-paragraph (2) or sub-paragraph (3), not less than forty per cent. of its prevailing market-value, then that concern or cinema house shall, in case such local or displaced person applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made. (5) Not more than one industrial concern or cinema house shall be transferred to any one person under sub-paragraph (2), or sub-paragraph_(3) or sub-paragragh (4). Explanation.-In this paragraph- (a) `Investment made' means an amount sanctioned by a Custodian or a competent Rehabilitation Authority or the Chief Settlement Commissioner on an application made on or before the 20th day of December 1958 ; and (b) `registered industrial concern' means a factory which stood registered under the Factories Act, 1934, on the fourteenth day of August 1947." "15-A. Notwithstanding anything contained in paragraph 15, the Central Government may make any order for the disposal of any class of industrial concerns or cinema houses in such manner as may be specified therein." The Central Government issued two notifications under para graph 15-A, one No. F. 3 (1)/59-60 (Clms.) dated 19th October 1959, and the other No. F. 3 (1)/59-60 (Clms.) dated 14th November 1959. The earlier one has not been relied upon in the present case by any of the parties. However, much of the arguments in the case have centered round the order of the Central Government dated the 14th of November 1959, which reads as follows: "In continuation of the Ministry of Rehabilitation Order No. F. 3 (1)/59-60 (Cams.) dated the 19th October 1959, and in exercise of the powers conferred upon it under paragraph 15-A of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Govern ment is pleased to make the following order for the disposal of industrial concerns and cinema houses: - (1) If a printing press allotted by the Industries Rehabilita tion Board constituted under the Pakistan Rehabilitation Act, 1956 (XLII of 1956) is in the possession of a claimant who has left in India or in any area occupied by India a printing press, then the printing press in the possession of such claimant, shall, in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market-value minus the investment made, if any. (2) If any local or displaced person has invested in any engineering concern, not being an engineering concern transferred under sub-paragraph (2) or sub-paragraph (4) of paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, not less than fifty per cent. of the prevailing market-value of the machinary installed therein, then such engineering concern shall, in case such local or displaced person applies in that behalf, be transferred to him on payment immediately of the prevailing market-value minus the investment made, if any. (3) If an industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the posses sion of a claimant whose claim in respect of a registered industrial concern or cinema house left by him in India has been verified for an amount less than rupees thirty-three thousand, then the industrial concern or cinema house in the possession of such claimant shall, subject to the rights of any other person who may otherwise be entitled to retain it, be sold in an unrestricted public auction: Provided that if the value of the industrial concern or cinema house in the possession of such claimant does not exceed three times the amount of his verified claim in respect of the registered concern or cinema house left by him in India, the Chief Settlement Commissioner may transfer the industrial concern or cinema house in the possession of such claimant to him on payment immediately of the prevailing market value. (4) 1f an industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the posses sion of claimant who has left in India a registered industrial concern or whose claim in respect of an unregistered industrial concern left by him in India has been verified under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, for an amount of rupees one lakh or more, then unless the value of the machinery installed in the registered or unregis tered industrial concern left by him in India, has been verified for a sum of rupees sixty-six thousand or constitutes at least one-third of its total value, the industrial concern or cinema house in the possession of such claimant shall, subject to the rights of any other person who may otherwise be entitled to retain it, be sold in an unrestricted public auction."

5. The learned counsel for the petitioners' first contention is that the Settlement Authorities should have first ascertained the prevailing market value of the machinery installed in the disputed industrial concern and if they had found that their investment of Rs, 27,000 already sanctioned by the department, was mare than 50% of the prevailing market value of the machinery, the petitioners were alone entitled to the transfer of the concern under paragraph 2 of the order of the Central Government dated the 14th November 1959. Since the Chief Settlement Commissioner had transferred the concern without finally deciding about the right of the petitioners under para graph 2. the order was bad and that the case should be ordered to be decided after the determination of the market value of the machinery in the concern. In case it was found that the plaintiffs were not entitled to the transfer under the above paragraph, it would only have been then possible to order the transfer to some other person. Even in that event the respondents would not be entitled to the transfer of the concern as none of them individually had a verified claim in the amount of Rs. 60,000 or to the extent of at least one-third of the total value of the concern. It has been very vehemently urged by the learned counsel that the order of the 14th November 1959 will have precedence over paragraph 15 of the Schedule. I do not agree with the contention of the learned counsel as the order issued by One Central Government on the 14th of December 1959 is supplementary to paragraph

15. Sub-paragraph (4) of para graph 15, which relates to the investment of an individual in a concern, comes into operation only if the concern is not transferred to some other claimant under sub-paragraph (2) or subpara graph (3). Consequently, paragraph 2 of the order of the Central Government will come into operation only if the concern is transferable under sub-paragraph (4) of paragraph 15 of the Schedule. Paragraph 4 of the order of the Central Government is similarly supplementary to sub-paragraph (2) of paragraph 15 of the Schedule. In paragraph 2 of the order of the Central Government, the word, "if any local or displaced person has invested in any engineering concern, not being an engineering concern, transferred under sub-paragraph (2) or sub-paragraph (4) of paragraph 15 of the Schedule to the Displaced Person, (Compensation and Rehabilitation) Act, 1958, . . . . ." clearly indicate that this sub-paragraph will come into operation at the tine when the concern is being transferred under sub-paragraph (a) of paragraph 15 of the Schedule, that is to say, if the concern has not already been transferred under sub-paragraph (2 or sub-paragraph (4) of paragraph 15 of the Schedule, it. will only then be possible to order the transfer of the concern to a claimant in accordance with paragraph (2) of the order of the Central Government. Learned counsel for the petitioners contended that the above words of paragraph 2 of the order were Intended only to protect the orders of transfer already made under paragraph 15, sub-paragraphs (2) and (4) of the Schedule, but I am afraid this construction is not possible. As these words were contained even in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, when it was first promulgated, no transfer of any concern could have been made before the promulgation of the Act in 1958. Consequently the word "transfer" has been used in sub-paragraph (4) of para graph 15 of the Schedule 'And paragraph 2 of the order of the Central Government to mean as transferable. ? The whole' scheme of paragraph 15 of the Schedule clearly indicates that preference was to be given in the matter of transfer of the concerns in accordance with the priorities laid down in the section. These priorities have not been disturbed by the later order of the Central Government and these will have to be maintained even if a transfer order is passed in accordance with the order of the Central Government dated the 14th of November 1959. I, would, therefore, hold that the order of transfer passed by the Chief Settlement Commissioner is not bad as urged by the learned counsel for the petitioners.

7. As regards the second contention raised by the learned counsel for the petitioners that the respondents could not be allowed to club together their claim, I do not find any force even in this argument. The respondents jointly owned a concern in Batala. They were joint allottees in this concern right from the very beginning. Even at the time of the transfer they jointly prayed for the transfer of the concern in their name. Foil, all intents and purposes their claim will be treated as one and they have been rightly treated as a claimant under sub-para-1 graph (2) of paragraph 15 of the Schedule. The petitioners also similarly owned a concern jointly, but the learned counsel wants to have preference in their case, because they had filed a claim jointly. I do not see any reason why the same advantage cannot be derived by the respondents. The filing of a separate claim does not, In any way, disrupt the jointness of the ownership of their concern and also their joint entitlement to have the industrial concern transferred to them.

8. Lastly, the argument of the learned counsel that as they have been ordered to be associated in the transfer of the Mill with the respondents, they should not have been dis possessed from the industrial concern has also no force. As a matter of fact this point has already been decided against the petitioners by cry order dated the 26th of November 1960. The management of an industrial concern during the interim period is entirely the province of the Chief Settlement and Rehabilitation Commissioner. I, therefore find no force in this) argument of the learned counsel as well.

9. There are two more reasons why this writ petition deserves to be dismissed. Firstly, the final order of the transfer of the Mill is yet to be made by the Chief Settlement and Rehabilitation Commissioner. He may change his previous order which up till now is only a provisional order of transfer. Secondly, the grounds that have been urged initially in this writ petition are contained in paragraph 14 (a), (b), (c), (d) and (e). It will be seen that the only contentions in these grounds are that the petitioners were entitled to the transfer of the factory under paragraph 15 (4) of the Schedule, that the order of the Chief Settlement Commissioner was bad in so far as it was passed without any notice to the petitioners that the respondents were not entitled to the transfer of the concern as their individual claim was below the prescribed limit, and that the Chief Settlement and Rehabilitation Commissioner did not wait for final adjudication by the enforcement staff as regards the validity of the claims of the respondents. These were also the grounds that were urged by the petitioners at the time of the review petition before the Chief Settlement Commissioner. The petitioners for the first time raised the contention which has been urged as contention No. 1 in their additional grounds which were filed on the 27th of October 1960 and are contained in paragraph 3 of the amended petition. It is not permissible in a writ petition to raise a contention for the first time without affording an opportunity to adjudicate upon it to the Court against the final order of which a writ petition is filed. In view of what I have said above, I would dismiss this petition with costs. A. H. Petition dismissed.