P L D 1970 Lahore 581 (PLP)

"In this connection the first allottee claims that‑ (a) he replaced the entire building of the Cinema, the previous one having been completely burnt. (b) he installed all the Cinema machinery. I would like to get some confirmation of these two conten tions. In that case, it would not be a case of repair but something much more than that. Was the amount of 58 thousand sanctioned for the first allottee the compensation for the entire building and the machinery? Please let me have clear and definite answers to these points." This matter, apparently, remained under discussion. But the remaining file on the subject was not produced before me. However before me, Major Ishaq Muhammad Khan, frankly conceded that some of the notings are susceptible of the inter pretation that the sum of Rs. 54,281 sanctioned by the Central Government was only on account of the investment made by the petitioners on the partial construction of the Cinema, and that the rest of their claim for the machinery, furniture and equipment was still pending for verification. In spite of my asking, from the record, he was not able to give me any details of sum of Rs. 54,281 verified In favour of the petitioners. But it is evident that the Chief Settlement Commissioner, on the 13th of February 1960, in rejecting the entitlement of the petitioner, in his order (Annexure 14) has observed that:‑ "The Central Government have approved Mushtaq Ahmad's investment to the extent of Rs. 54,281. . . . . . . . . . . . . . . His request for the adjustment of another sum of Rs. 70,027, cannot be granted at this stage. This matter is under scrutiny." Admittedly, therefore, according to the Chief Settlement Commissioner, the final scrutiny of the claim of the petitioner for his investment have to be made. The claim of the petitioners in this behalf was pending since before 20‑12‑1958. In these circumstances, the Chief Settlement Commissioner, was not at all justified in rejecting their entitlement to the Cinema, especially as according to his own showing a substantial portion of their claim for the investment made by them on this Cinema was still pend ing scrutiny. It was the bounden duty of the Rehabilitation and Settlement Authorities to have finally scrutinised their claim for total investment made by them on this Cinema. The petitioners could not be penalized for this delay in the full and final verification of the claim duly submitted by them, by the authorities. It is, therefore, necessary that before any final order is passed, A under sub‑paragraph (4) of para. 15 of the Schedule to the Act, for the transfer of this Cinema, that their claim should be finally scrutinised and not left undeterminated by the competent authorities.

11. But with a view to defeat this objection, the learned counsel for the respondents have advanced another argument. According to them, respondents Nos. 5 and 6 have a preferential right to the transfer of this property to them under sub paragraph (2) and that therefore this Cinema was not at all available for the transfer to the petitioners under sub‑paragraph (4) of para. 15 of the Schedule to the Act. It is no doubt true that the petitioners can hope to successfully lay their claim to the transfer of the Cinema under sub‑paragraph (4), only in case the respondents are not found to be eligible for its transfer under sub‑paragraph (2) of para. 15 of the Schedule to the Act. It is, therefore, necessary to minutely examine the entitlement of respondents Nos. 5 and 6 for the transfer of this Cinema to them under sub‑paragraph (2) of Para. 15 of the Schedule to the Act. The two respondents Nos. 5 and 6 are displaced persons from India and they jointly filed their claim Registration No. ROQ‑1307/55/56 under the Displaced Persons (Registration of Claims) Act, 1957. This was duly verified by S. Tasnim‑ul Hassan, Deputy Settlement Commissioner, Sukkur, on the 22nd of February 1959, inter alia under Schedule III, in respect of two industrial units abandoned by them in Ranchi and Namkun, Bihar (India), for Rs. 40,000.00 only. The two respondents were equally entitled to this verified amount. This order does not show that any of the abandoned factories was registered in India at the time. However, on the 13th of February 1960, the learned Chief Settlement Commissioner, rejected the application of the respondents for the transfer of this Cinema to them (vide Annexure 14) on the ground that there was no direct evidence to establish that they had left a registered industrial concern in India. In this connection he has remarked as under "The applicants have relied on a certificate granted by Lt: Col. W. O. Callaghan, Deputy Chief Engineer and Secretary, P. W. D. in Baluchistan who was Assistant Comman der, Royal Engineers, MES, in Ranchi area from where these gentlemen have migrated to Pakistan. I have invariably insisted upon the certificate of the Chief Inspector of Factories or any other officer authorised on behalf of the Government to issue such certificate to hold where a concern left in India was registered or not. I cannot accept any other type of evidence for this purpose. These two brothers have not left a registered industrial concern nor there is any mention in the claim certificate of the fact that they have left a registered factory. Even if one could assume that they have left a registered factory, the petitioners do not become entitled to the transfer of this Cinema as they have left a share of Rs. 20,000 each in two different factories while the law provides 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. In this case the share left is in two concerns; not in one. Also the amount of verified claim in the case of each share is less than Rs. 33,

000. In view of these facts I hold them ineligible for the transfer of the Cinema." But afterwards on the 29th of February 1960, respondents Nos. 5 and 6 applied for review to the Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore, under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act on the ground that they have since obtained the required certificate from the Chief Inspector of Factories, Ranchi, Bihar, from India to the effect that the saw mill on Harmu Road, Ranchi, belonging to them, was borne on the register of the Factories under the Factories Act. But the Chief Settlement and Rehabilitation Commissioner rejected this petition on the 25th of February 1960, in limine. He was of the opinion that this additional evidence, showing that the abandoned factory in India was registered should be produced before the Claims Officer for his decision in the matter. He observed that:‑ "The petitioners have appeared before me and produced a letter alleged to have been sent by the Chief Inspector, Factories, Bihar, Ranchi (India). I have informed the petitioners that the evidence that the Factory abandoned by them was a registered one should be produced before the Claims Officer, concerned. If we get copy of the order of the Claims Officer or Claims Authorities then alone we can take official note of the fact that they left a registered industrial Factory. I cannot review my order merely on the basis of the letter produced before me. They can come up to me again after the Claims Officer has verified their claim for a registered factory." In these circumstances, the respondents were obliged to apply to the Deputy Claims Commissioner, Sukkur, for a clarification of his previous order dated the 22nd of February 1959. In that connection, on the 31st of March 1960, Mr. Mushtaq Hussain Zaidi, Deputy Claims Commissioner, Sukkur, passed a supple mentary order to the effect that a factory belonging to the respondents for which their claim was verified, was registered in India. After this verification the two respondents made a fresh representation to the Chief Settlement Commissioner who by his Memo. No. 3874‑R. B dated the 8th of June 1961, directed the transfer of this Cinema to them on the prevailing market value.

12. Before me the learned counsel for the petitioners has vehemently argued that the original order dated the 22nd of February 1959, passed by S. Tasnim‑ul‑Hassan Deputy Claims Commissioner, Sukkur on the claim form submitted by respondents Nos. 5 and 6 was final and conclusively against them. Afterwards neither he nor his successor‑in‑office had any jurisdiction to review that order under subsection (4) of section 7 of the Registration of Claims (Displaced Persons) Act, 1956, especially after a lapse of more than a year. Consequently the further order dated the 31st of March 1960, concerning the verification of their claim passed by Mr. Mushtaq Hussain Zaidi, Deputy Claims Commissioner, Sukkur was wholly without any lawful authority. However, in this connection the learned counsel for the respondents has contended that this subsequent order was passed by Mr. Mushtaq Hussain Zaidi, Deputy Claims Commissioner, Sukkur, in clarification of the earlier order, with a view to supply the necessary omissions and it did not tantamount to a review. In support of his contention the learned counsel has relied on Zuhair Siddiqi v. M. H. Sufi and others (P L D 1964 Lah. 453) to the effect that there :always was a residuary and inherent powers vested in a Court or an authority whose duty it is to act judicially, to supply .accidental slips and omissions and to pass supplementary orders in the interest of justice.

13. But I need not go into this moot question. I find that the order of the Chief Settlement Commissioner eventually transferring this property to respondents Nos. 5 and 6 suffers from another legal infirmity. Under the Registration of Claims (Displaced Persons) Act III of 1956 it was altogether immaterial as to whether an industrial concern under Schedule III, abandoned in India, was a registered factory or not. It was unnecessary for the purposes of that Act to differentiate between a registered or unregistered concern. Under Schedule III, in column 14, the particulars about the registration of a factory, abandoned in India, had to be supplied, in order to be helpful in the verification of the amount of the compensation to be assessed. In fact this distinction in favour of a registered industrial concern was not there even in Displaced Persons (Com pensation and Rehabilitation) Act XXVIII of 1958, as originally promulgated on the 28th of March 1958. This distinction gained significance and became important for the first time with the promulgation of the Displaced Persons (Compensation and Re habilitation) (Second Amendment) Ordinance, LIII of 1959 when the existing paragraph 15 in the Schedule was substituted for the old one. It would appear from this that the finding in this behalf as to whether a claimant displaced person had abandoned a registered industrial concern in India and was eligible for the transfer of the Cinema rested with the Settlement Authorities. It did not, in law devolve upon the claims authorities to verify that industrial concern or the factory abandoned in India was registered or not. In this connection, I find the Chief Settlement c and Rehabilitation Commissioner, in his first order dated the 13th of February 1960 (Annexure 14), has himself gone into this question and refused to rely on the certificate produced by the respondents Nos. 5 and 6 from Lt. Col. W. O. Challaghan, Deputy Chief Engineer and Secretary, P. W. D. in Baluchistanl who was at one time the Assistant Commander MES, Royal Engineer at Ranchi in India. Even Mr. Mushtaq Hussain Zaidi, Deputy Claims Commissioner, Sukkur was also conscious of this position under the law and in his supplementary order dated the 31st of March 1960, he has observed that such an order was not absolutely necessary "for the purposes of the Claims Act." But In deference to the directive issued by the Chief Settlement and Rehabilitation Commissioner, he was constrained to hold that one of the factories abandoned by the respondents in India was registered. For these reasons, in my opinion, his order was Incompetent and without lawful authority. The Chief Settlement Commissioner did not exercise his own judicial mind in this respect and for this reason his impugned order transferring the Cinema to respondents Nos. 5 and 6 was not warranted under the law. In this connection, on 13‑2‑1960, the Chief Settlement Commissioner, in rejecting the entitlement of respondents Nos. 5 and 6, has also observed that: "Even if one could assume that they left a registered factory, the petitioners do not become entitled to the transfer of this cinema as they have left a share of Rs. 20,000 each in two different factories while the law provides 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. In this case the share left is in two concerns; not in one. Also the amount of verified claim in the case of each share in less than Rs. 33,

000. In view of these facts I hold them ineligible for the transfer of this Cinema." Afterwards on the 25th of June 1960, the Chief Settlement and Rehabilitation Commissioner, has again observed that:‑ "It is a fact that two brothers had abandoned the registered industrial concern in India. It has been certified by the Chief Inspector of Factories Behar (India) that the concerns were registered ones. The contention of the applicants is that they were running these concerns jointly and not individually, that they have been recognised as joint claimants and that they had been allotted the Delite Cinema by the Industries Rehabilitation; Board jointly and, therefore, they are entitled to the transfer of the Cinema. I am afraid under the Rules it is not possible to recognise them as joint claimants although they are joint allottees of the Cinema." However, eventually, the Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore, in his Memorandum No. 3874/RB dated the 8th of June 1961 addressed to respondents Nos. 5 and 6 has informed them that they were found entitled to the transfer of this cinema on prevailing market value under the provisions of the Displaced Persons (Compensation and Rehabili tation) Act, 1958 (As amended). But what led him to this charge in his opinion, it is difficult to say, at least he did not adduce any reasons to support his conclusions. But in fairness to him it must be stated that his preceding two orders reproduced above were not tenable under the law. In this connection considerable arguments were advanced before me by the learned counsel for the parties on the true interpretation of sub‑paragraph (2) of para. 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, which is reproduced below:‑ "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 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 investment 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."

15. Admittedly, on the 23rd of July 1955, the Industrial Rehabilitation Board had jointly allotted this Cinema to respondents Nos. 5 and 6 who continued to remain in possession thereof till after the material date (28th of December 1958). It is not denied before me that they are claimants displaced Persons from India. Their claim Registration No. ROQ‑1307/55/56 was jointly verified under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, for Rs. 40,000.00, in equal shares, in respect of the two factories abandoned in Ranchi and Namkun, Bihar (India), by S. Tasnim‑ul‑Hassan, Deputy Claims Commissioner, Sukkur, on the 22nd of February 1959. Between them they were the exclusive owners of the two factories belonging to them in equal shares in India. The learned Chief Settlement and Rehabilitation Commissioner was of the opinion, in the two orders reproduced above, that even assuming that these factories were registered, yet respondents Nos. 5 and 6 were not entitled to the transfer of this Cinema to them, under the proviso to para. 15(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as their claim was of the verified value of Rs. 20,000 only due to each of them. But on a careful consideration I find that this view was not tenable. In my opinion assuming (though not conceding) that the respondents had left a registered industrial concern in India, then in my opinion their case shall be covered by the operative part of sub‑paragraph (2) of paragraph 15 of the Schedule and not by the proviso. This lays down that a Cinema house allotted by the Industrial Rehabilitation Board and in possession of "a claimant", who has left in India a registered industrial concern, the Cinema house shall be transferred to him on payment of the prevailing market value. It is an accepted principle, and section 13(2) of the General Clauses Act, 1897 lays down that in interpreting all' Central Acts, unless there is anything repugnant in the subject or context "words in singular shall include the plural, and Vice versa". Reading this section together with the above provisions E the two joint claimants of a registered industrial concern abandoned in India shall be entitled to the transfer jointly provided they have fulfilled the other requirements of this sub‑paragraph in the Schedule to the Displaced Persons (Com pensation and Rehabilitation) Act. In this case the two claimants are said to be exclusive owners of the registered industrial concern abandoned in India, their claim for it was jointly verified in their name under Schedule III to the Registration of Claims (Displace Persons) Rules, 1955, they were also in the joint possession o this Cinema allotted to them by the Industrial Rehabilitation Board and had jointly applied for its transfer to them. They were, therefore, eligible for the transfer of the cinema house to them provided that it is proved that one or both the industrial concerns jointly belonging to them in India was registered. I am fortified in this view of the matter by Muhammad Chiragh Din, Ghulam Muhammad v. Messrs Muhammad Ramzan, Muhammad Ismail and others (P L D 1962 Lah. 714). The respondents in that case jointly owned a concern in India, they were joint allottees in an evacuee concern in Pakistan, they jointly prayed for the transfer of the concern to them. In these circumstances the Court held that for all intents and purposes their claim would be treated as one and they were rightly treated as "a claimant" within the meanings of sub paragraph (2) of paragraph 15 of the Schedule. Therefore, so far as respondents Nos. 5 and 6 are concerned the only question that remains to be seen by the Chief Settlement Commissioner is as to whether the industrial concern abandoned by them in India was in fact a registered one.

16. However, as a last resort, before me on behalf of the petitioners a half‑hearted attempt was made to contend that the transfer of this cinema already made in favour of petitioner No. 1, through the auction for Rs. 8,60,000.00 on the 5th of December 1959 must be allowed to stand. Indeed this auction in his favour was also confirmed by the Chief Settlement and Rehabilitation Commissioner in his order passed on the 13th of February 1960 (Annexure 14). But the petitioner did not deposit any instalment towards the price of the Cinema in spite of a copy of this order endorsed to him by Memo. No. 1885 R. B. dated the 5th of March 1960, (Annexure 16). 1n these circumstances, on the 15th of March 1960, the Deputy Settlement Commis sioner recommended to the Chief Settlement Commissioner for the cancellation of the auction from his name. However, in the meanwhile, on a representation made by the respondent No. 5, the Secretary, West Pakistan, Industries Rehabilitation Board, Lahore, wrote to the Deputy Settlement Commissioner, Quetta, by his Memo. No. 3672/R. B. dated the 30th of April 1960, that the auction purchaser may not be allowed to pay the first instalment till further order by the Chief Settlement and Rehabilitation Commissioner. But notwithstanding this directive, the Chief Settlement and Rehabilitation Commis sioner, on the 25th of June 1960, cancelled the auction for the failure of the petitioners to deposit the first instalment. Prima facie, the petitioner could not have been held responsible for the default in the payment of the instalment. However, I find that in this respect the petitioner has for the first time built up an altogether new case before me during the course of the arguments. He has not set up his writ petition and specifically prayed for the restoration of the auction in his name indeed, I find from his own application dated the 25th of August 1960, addressed to the Secretary, West Pakistan, Industrial Rehabilitation Board, Lahore, that after the cancellation of the auction, he had himself requested for the return of his own compensation book to him. He seems to have acquiesced in the order. Even otherwise this writ petition challenging the validity of the cancellation order passed by the Chief Settlement Commissioner on the 25th of June 1960, is much too belated.

17. Here I must take notice of another objection raised before me. The impugned order transferring this Cinema to respondents was passed by the Chief Settlement Commissioner on the 8th of June 1961. But this writ petition was filed only on the 24th of September 1962. It appears that in the meanwhile the petitioners have been making repeated representations. Indeed, I find that their case for the final verification of the P investment made by them was still pending scrutiny and they cannot, therefore, be blamed for this delay in the writ petition.

18. But, before parting with this case, I have to dispose of yet another objection raised before me. In clause (b) of the last paragraph of the amended writ petition the petitioners have prayed for the transfer of this cinema to petitioner "petitioner No. 2". It was, however, pointed out on behalf of the respondents, that he was not at all entitled to the transfer. But it appears to me that it was due to an inadvertent mistake in typing that this prayer was made. In the corresponding part of the original writ petition, filed on the 24th of September 1962, both the petitioners have prayed for the transfer of the Cinema to them. During the course of the arguments before me, the petitioners have formally applied for the necessary amendment in this behalf which must be allowed.

19. I find from Memorandum N. 4549/R. B. dated the 15th of August 1961, from the Chief Settlement Commissioner, Lahore, addressed to petitioner No. 1, that he has since utilized the entire amount of the deferred payment due to him in his compensation book against the price of the Nand Match Factory, Baghbanpura, Lahore, transferred to him by negotiation. But this circumstance cannot vitiate against the transfer of this Cinema to the petitioners if otherwise, on the merits, they are found to be eligible for it.

20. In conclusion I find that the learned Chief Settlement Commissioner has failed to dispose of the case of the two rival groups before me in accordance with the law. In the first instance, on the 13th of February 1960, he rejected the entitlement of respondents Nos. 5 and 6 under para. 15(2) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, inter alia on the ground that they were not proved to have left a registered industrial concern in India and in this connection he was not satisfied with the nature of the evidence produced before him. Afterwards, as discussed above, presumably on review, on the 8th of June 1961, he transferred this Cinema to them. In doing this he had presumably relied on a supplementary order dated the 31st of March 1960 issued by Mushtaq Hussain Zaidi, Deputy Claims Commissioner, Sukkur to the effect that the Industrial Concern abandoned by them in India was registered. He does not seem to have exercised his own judicial mind and judgment in review in arriving at an independent finding of his own in this behalf under para. 15(2) of the Schedule to the Act. Likewise in the case of the petitioners, it was very necessary for him to finally determine the amount of the total investment made by them on this Cinema before rejecting their entitlement under para. 15(4) of the Schedule to the Act. There is, therefore, no alternative but to remand this case to him for a fresh decision after notices to all the interested parties.

21. For the foregoing reasons I accept this writ petition, set aside the impugned order passed by the Chief Settlement Commissioner and remand this case to him for a decision on the merits in the light of the above discussion. But the parties are left to bear their own costs under the circumstances of this case. A. E./K. B. A. Petition accepted. Case remanded.