P L D 1971 Lahore 1 (PLP)

7. Against the above background of the facts we have heard counsel for the parties on three days. Mr. Munir Ahmad, counsel for the appellant, has advanced five arguments in support of this appeal:‑ (1) That the factory and the double‑storeyed residential building bear different Municipal Numbers and that they belonged to different owners; therefore, they could not constitute one unit. (2) That the proper authorities for deciding whether they constituted one unit or more were the officers of the Settlement Department; therefore, unless their decision was illegal or so erroneous as to be unacceptable to a rational mind, the High Court should not substitute its views for the views of the officers of the Department. (3) That the appellant is a refugee from Jammu & Kashmir and enjoys special protection against ejectment from the evacuee premises occupied by him. (4) That in terms of paragraph 3(vii) of the Press Note dated 3rd of May 1960 issued by the Chief Settlement Commissioner, an industrial concern which was not used as a house or shop before the 14th of August 1947, but was converted into a house or shop, could be disposed of as such if it was not necessary in the public interest to restore it to its original use. (6) That respondent No. 1, who is the only contesting respondent, had no locus standi to move this Court by filing Constitutional Petition No. 1858/R of 1962 to raise the contention that the double‑storeyed residential house and the factory were one unit.

8. In support of the first contention counsel has referred to several documents. To prove that the double‑storeyed house and the factory bear different Municipal numbers, he has relied on Annexure `J' which is an order of the Deputy Settlement Commis sioner and Chairman of the Auction Committee dated the 26th of January 1960; the order of the Additional Settlement Commis sioner (Industries) dated the 26th of October 1960 (Annexure `L' of the petition) and the departmental note prepared by the Deputy Settlement Commissioner which is in the Department's File No. II as page

137. In support of his contention that their owners were different persons, he has relied on column 4 of the copy of "Assessment of House‑tax Municipality Register" in which Ch. Ganga Ram is shown to be the proprietor of the premises bearing No. 1/906 to 1/910, and Kuchreja Factory Ltd., is shown to be the proprietor of the premises bearing No. 1/911 to 1 /914. This copy is attached to the report of the Deputy Settlement Commissioner. See page 150 of File No. II of the Department pertaining to the property.

9. Malik Shaukat Ali has replied to the above argument by saying that the true criterion for determining whether the double‑storeyed building and the factory constituted one unit or not, is to be found in the definition of "House" which is contained in clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. It is as follows:‑ "House' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and outhouses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or outhouse is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 16 of the Schedule to be a big mansion or hotel." The words written by us in italics may be noted.

10. Counsel emphasised the italicised words and argued that use of the premises was not relevant for deciding whether a house is a factory or not. What needs to be seen therefore is whether a building, about whose residential character there is no doubt, is situated within the premises of an industrial concern or not. If it is, then it is not a `house' by definition. In order to decide whether a residential building is situated within the premises of an industrial concern, it is necessary to determine the limits of the premises. This can be done by examining the structural character of the building, the functional relationship of its parts to the purpose for which it exists and the limits of the area on or in which it is situated. After the identity of the premises is so established in this case, it will be important to see whether the residential building is situated within such premises, away from it or adjacent to it. A confusion may sometimes, be created with respect to the situation of a building within a premises and adjacent to it. While examining this aspect, it will be necessary to keep in mind that the use of the residential building, which is or was being made, is irrelevant, because the building is admittedly a residential building. If it were not, then the whole argument will be useless because the exception to the definition of `house' itself will be inapplicable. There will be no question of dealing with the building under that definition.

11. From the above point of view, according to counsel, the most important document is the plan which will show whether the double‑storeyed building is situated within the premises of the factory or not. In support of his contention that it is situated within the premises of the factory, he referred to the plan which is Annexure `B' to the Constitutional Petition. A better version of the same plan is to be found at page 32 of the Auction File No. I. According to it, the double‑storeyed building is situated on the Northern side of the factory. There are two gates on the front side of the double‑storeyed building; one is meant for the house and the other to serve as an outer entrance which leads to the gate of the factory. As you go into it, you enter the factory by a gate which is an opening in the wall which stands between the double‑storeyed building and the factory. In this wall there are three windows which provide light and air from the factory side to the rooms of the house. The argument of Malik Shaukat Ali is that the double‑storeyed building and the factory are bounded by the same boundary wall and since the wall going around the double‑storeyed building and the factory is the same, the double‑storeyed building is situated within the premises of the industrial concern.

12. Factually this is not correct. It is not one boundary wall. The confusion arises from a disregard of the distinction between the situation of a building `within' a premises and `by the side' of a premises. The house is obviously situated on one side of the factory. Nothing has been indicated to conclude that structurally and functionally the building of the factory is incomplete without the house. The mere fact that a part of the residential building was used as a show‑room and a store‑room, neither changes its residential character nor makes it an integral part of the factory. If any part of the factory was situated beyond or around the residential building then the residential building could perhaps be taken to be situated within the premises of the factory. But in this case the factory comes to an end before the residential building begins, which means that the two are situated adjacent to one another. They are no doubt in a row, and the consequence of this situation is that the Western and Eastern walls of the two premises are in straight lines. If we look at another plan which is at page No. 149 of Departmental File No. II, we see that more houses belonging to Ganga Ram are also situated in the same row. The Eastern wall of all of those houses and the factory are in straight line and can be said to be one wall; therefore, the argument of Malik Shaukat Ali would lead to the view that all of those buildings are situated in one premises, but this is obviously erroneous.

13. Confronted with this situation Malik Shaukat Ali took the stand that the double‑storeyed residential building, which is in dispute, does not bear Municipal No. 1/910, but bears No 1/910. This contention is inconsistent with the documents to which reference has been made above in paragraph 8 and on which Mr. Munir Ahmad has relied. But Malik Shaukat Ali has in the last resort produced a piece of paper, which we have marked as "Z", and initialled it for its identification. It purports to be a copy of certain entries in the assessment register of house tax for the year 1942, issued by the Municipal Committee. According to it, the number of the factory is 1/911 and 1/912 and number of the residential house is 1/913 and 1/914. There is no other such document on the record of this Court and counsel has not been able to draw our attention to any such document from the record of the Department. It is remarkable that counsel thought of producing this document so late. There is no explanation as to why it was not produced during the departmental proceedings or before the learned Single Judge. We are not prepared to attach any importance to this document nor are we prepared to accept it as genuine. We may however, add that if the numbers of the residential houses which are mentioned in the document "Z" are 1/913 and 1/914 then the document has nothing to do with the double‑storeyed building which is under discussion because references to this building have been consistently made in several documents as bearing No. 1/910.

14. Let us not omit to mention that Malik Shaukat Ali has repeatedly referred to Annexure `J', which is an order of the Deputy Settlement Commissioner dated the 26th of January 1960, and has drawn our attention in particular to the following sentence:‑ "It is an admitted fact that the factory and residential portion in dispute belong to one and the same evacuee owner, and probably this is the reason for declaring the residential portion as a part of the factory." Without going into the question as to whose admission is mentioned in the above sentence, we may reproduce the following observations which appear in the same order, after the above sentence: "According to the house tax record the factory premises bear Nos. 1/911 to 1/914 including shops and godowns, whereas residential portion bears property No. 1/910. The name of the evacuee owner of all these units of property is Ganga Ram son of Guro Das. It is further pointed out that units Nos. 1/906 to 1/909 adjacent to the residential portion in dispute also belong to the same evacuee owner (Ganga Ram). The factory premises bears No. 1/911 known as Kuchreja Ltd. Sports factory and is separately assessed at page No. 143, serial No. 987 of the Municipal assessment register pertaining to Ward No. 1, part 1st, whereas residential portion bears No. 1/906 at serial No. 986 at the same page. In columns Nos. 6 and 7 the entry is assessed at No. 1/906 at page 142, serial No.

982. I have also requisitioned property tax register pertaining to the ward. The residential portion bears No. BI‑28/12/Bungalow, owned by Kuchreja Ltd., whereas the factory premises bears No. BI‑25‑12‑A/factory and shop vide property tax register No. A, Block 1, part I, streets Nos. 1 to 5, Kutchery Road, Sialkot, pages Nos. 19 and 20, serial Nos. 78 and

79. These two important documents crystalise the position and come to the rescue of the petitioner. For the reasons discussed above, I hold that the residential portion ABCD including rooms X & X‑1 is an independent portion and is not a part of the factory premises:" Let us add to the above considerations that the residential building and the factory did not belong to one owner. A mis conception in this respect appears to have arisen from the fact that the factory belonged to a private limited company of which Ganga Ram was perhaps the main share‑holder, but in law the owners of the two units were different persons.

15. The rooms bearing Nos. X & X‑1 to which reference is made in the above quotation are a part of the double‑storeyed building and were not allotted to the Pakistan Sports Co‑operative Industrial Society nor was possession given of those rooms to the society initially. On a subsequent application, use only of these two rooms was allowed to it with permission to open doors towards the factory. It is accordingly significant that in the above order, on which reliance has been placed by Malik Shaukat Ali, even those rooms have been specifically mentioned to be not parts of the factory.

16. Before parting with this discussion we may mention in fairness to Malik Shaukat Ali that he has referred several times to the fact that certain portions of the double‑storeyed building were used as a show‑room and a store‑room of the factory and that after Partition too, goods belonging to the factory were found in them. On the basis of these facts, he has contended that the double‑storeyed building should be treated as a part of the factory, but as explained above, use of a premises is not the criterion for determining whether it is a part of an industrial concern or not. The deciding factor is whether the double- storeyed building is situated within the premises of the factory or not and we have no reason to disagree with the view taken by the I Deputy Settlement Commissioner that the double‑storeyed building is not a part of the factory. We have already held that they were not owned by one proprietor and are not situated within one boundary wall.

17. The learned Single Judge has taken a different view. He has held that: "The plan to which reference has been made was sent to the D. R. C. under the letter Annexure 'A' to the petition which was issued by the Director of Industries and Secretary, Punjab Industries Rehabilitation Board to the present petitioner when conveying the orders regarding the allotment of this abandoned industrial concern. No doubt, in this letter it was made clear that the allotment to the petitioner excluded the double- storeyed building, marked 'A' but the letter as well as the plan leave no doubt that the building was situated within the premises of the industrial concern and that it was excluded because the rooms were lying sealed for the reason that manufactured goods were lying therein." The learned Judge has also observed as follows:‑ "This plan clearly shows that the residential portion now in dispute is situated within the premises of the industrial concern and the rooms on its ground floor were being used for purposes of the industrial Concern. Three rooms served as office, one was being used as show‑room and a fourth room was being used as goods inspecting and packing room and the rest of the accommodation towards the rear of the house was being used as storage for rejected material etc." The above observations indicate that the argument which was addressed before the learned Judge was that the residential house should be taken to be situated within the premises of the factory, because several portions of the house were used as subservient to the factory. This angle of view does not take into account the situation of the house on one side of the factory. On the contrary, it lays emphasis on the use of the premises. There is an inherent inconsistency in this argument because it has never been denied that the double‑storeyed building is a residential premises. If it was at any time used as subservient to the factory, then that could neither change the admitted character of the building nor make it a building "situated within the premises of an industrial concern". A house which is situated adjacent to an industrial concern and is accessible from the side of such a concern may be used as subservient to it when the industry expands, but there is nothing to indicate that the premises of the industrial concern was incomplete without the house or even that the house was situated within the boundaries which actually enclosed the premises of the factory. It was apparently not brought to the notice of the learned Single Judge that there was another plan on the record which included some more residential houses of Ganga Ram.

18. Mr. Malik Shaukat Ali insisted that decisive weight should be given to the opinion directly or indirectly expressed by the officers of the Department in Annexure 'C'; a telegram from the Secretary, Rehabilitation Board addressed to the Deputy Rehabilitation Commissioner, Sialkot, dated September 1950; Annexure 'E', a letter from the Secretary Rehabilitation Board addressed to the Deputy Rehabilitation Commissioner, Sialkot, in April 1951; Annexure F' a letter from the Secretary, Rehabilita tion Board addressed to the Deputy Rehabilitation Commissioner, Sialkot, in February 1959; Annexure 'K', the auction report by A. S. C. III of early 1960; and Annexure 'L' an order of the Additional Settlement Commissioner, Industries dated the 26th of October 1960, on an application of the society, to the effect that the double‑storeyed building is a part of the factory and, that, therefore, the view of the High Court should not be substituted for it. This brings us to the second of the five contentions set out in paragraph 7 above. That contention was raised by Mr. Munir Ahmad in order to attack the decision of the learned Single Judge as contrary to the departmental view expressed in Annexure 'J' discussed above, and Annexure 'O', the order of the Settlement Commissioner Industries, dated the 6th of December 1960, which is the last order of the department on merits of the case. Mr. Munir Ahmad cited Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (P L D 1964 S C 260) and Miss Surrayya Parveen and another v. Sh. Anwarul Huq and another (P L D 1969 S C 309). Counsel could also refer to Tanbir Ahmad Siddiky v. The Province of East Pakistan (P L D 1968 S C 185). The correctness of the proposition of law was not questioned; therefore, what remained for the opposing Advocates was simply to apply it to this case.

19. Let us accordingly examine the weight and value of all of the above‑mentioned documents. Annexures 'C', `E', 'F' and 'K' are of little value as expressions of well considered opinion, because they are merely a telegram, two letters and a report. Annexure 'L' is an order but it is mainly founded on Annexures 'C' and 'E', a certain report dated the 31st of August 1950, a certain letter dated the 26th of April 1951 and the fact that the use of two rooms of the residential building was allowed to the society. It is significant that in spite of some opinions to the contrary the Department has not treated the residential building as a part of the factory and has allotted them separately, so much so, that the residential building was excluded from the auction of the factory. If there was a disagreement between those Settlement authorities who dealt with industrial concerns and those who did not, then it was apparently on internal dispute about the exercise of the powers of the two sections of the Department and not about allotting or transferring the residential building as a part of the factory. The last and final order on the merits of the case is Annexure 'O' by the Settlement Commissioner, Industries, and supersedes all previous expres sions of opinion by the officers of the Department. Thus, the second contention supports the appellant and not the society.

20. The learned Single Judge has held that the last order is in favour of the society inasmuch as the‑ "Settlement Commissioner had to concede that the voluminous evidence produced before him clearly established that the residential portion was situated within the premises of the industrial concern." With utmost respect we find no such concession in that officer's order. The relevant parts have been reproduced in paragraph 5 above. We have given above our own reasons for holding the view that the residential building is neither structurally nor functionally a part of the factory., nor is it situated within the limits of the factory.

21. The third contention does not help Mr. Munir Ahmad, because paragraph 5 of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, has been repealed by Ordinance XIII of 1965 and paragraph 19 of Settlement Scheme No. IV affords protection in respect of houses and shops only and not in respect of industrial concerns. If the double- storeyed building was a part of the factory, its possession by the appellant would not be protected. If on the other hand, it is a residential building situated outside the factory premises, the appellant would automatically be entitled to its transfer as allottee in possession. The basic consideration, there fore, is whether the double‑storeyed building is situated within the premises of the factory or not. We have already held that it is not situated within the premises of the industrial concern.

22. The fourth contention is not relevant, because it relates to the conversion of an industrial concern into a house or a shop; but in the case now before us the question is neither of the conversion of a factory nor even of the residential character of the double‑storeyed building. The question is whether the residential building should, according to the definition, be treated as a house or not.

23. The fifth contention appears to be conclusive, because the residential building was expressly excluded from the auction of the factory which the society has bought. The society can have no grievance on this score about the subject‑matter of the sale as an auction‑purchaser. Even if it is conceded for the sake of argument that the Department auctioned only a part of the factory after expressly excluding the other part of it from the auction, the auction‑purchaser can have no legitimate grievance, because he has been given what he bid for and purchased. This legal aspect has been disregarded by the society with the result that it has, in pursuance of the order of the learned Single Judge, acquired the double‑storeyed building as if it was also auctioned to it. The relevant order of the Additional Settlement Commis sioner, Industries, dated the 5th of August 1966 is as follows:‑ "The Chief Settlement Commissioner, Pakistan, has accepted your bid amounting to Rs. 2,55,000.00 offered on 27th January 1960, for the Kuchreja Sports Ltd., Sialkot, excluding the residential portion, and has determined the average auction price of the residential portion, which has been found a part of the industrial concern referred to above by the High Court of West Pakistan, vide their orders dated 8th October 1965 in Writ No. 1858/R of 1962, at Rs. 25,429.00 (twenty‑five thousand four hundred and twenty‑nine only). The total auction price comes to Rs. 2,80,422.00." The last words which have been underlined by us should be noted. The Department had to resort to this position because admittedly no industrial concern could be transferred except by unrestricted public auction. This is what the Settlement Commissioner, Industries, had pointed out in his order Annexure 'O'‑See para graph 5 above. Malik Shaukat Ali has conceded before us that the double‑storeyed building could not be transferred to the society without re‑auctioning it and in fact asked us to order re auction, but this was not the stand of his client before the learned Single Judge and thus new contention cannot be allowed to be raised now, particularly because in our view the double‑storeyed building is a 'house' and not a part of the factory. We accordingly uphold the fifth contention of Mr. Munir Ahmad.

24. In conclusion, we accept this appeal with costs, set aside the order of the learned Single Judge dated the 8th of October 1965, and dismiss the Constitutional Petition bearing No. 1858/R of 1962 of the society. K. B. A. Appeal accepted.