P L D 1975 Supreme Court 496 (PLP)

The law governing the facts of the case is contained in Paragraphs 15(1), (2), (3) and (5) and 15‑A of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the Central Government Notification (Press Note) dated the 14th of December 1959, (for the Notification see P L D 1960 Central Statutes, page 17), and they are as follows:-- "Paragraph 15(1).‑-Every Industrial concern or a 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 is 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 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. (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) .. (5) Not more than one Industrial concern or cinema house be transferred to any one person under sub‑paragraph (2), or sub‑paragraph (3) or sub‑paragraph (4). Explanation.‑In this paragraph (a) "investment made" means an amount sanctioned by a Custodian or a competent Rehabilitation authority or the Chief Settlement Commis sioner 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." Paragraph 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." Note.‑The extended definition of possession has no application in the present case. Central Government Notification (Press Note) dated the 14th of December 1959:-- No. F. 3(1)159‑SO (Cams), 14th December 1959 (Gazette, Extraordinary 14th December 1959).‑In continuation of the Ministry of Rehabilita tion Order No. F 3(1)/59‑SO (Clms), 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 Rehabilita tion) Act, 1958 (XXVIII) of 1958), the Central Government 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 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 in any area occupied by India a 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‑part. (2) or sub‑part. (4) of Paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, not less than fifty percent of the prevailing market value of the machinery 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) (4) It is, thus, evident that the Notification issued by the Central Govern ment under Paragraph 15‑A (this paragraph was introduced on the 26th of March 1938, by Ordinance III of 1959) applies to the case. Under this Notification the following four conditions have been laid down for allotment of a press (1) The press was allotted to the claimant under the Pakistan Rehabilita tion Act, 1956; (2) The claimant is in possession of the press; (3) The claimant has left in India, etc. a printing press (Muhammad Yousaf Chaudhry left a press and 1/4th share in one press at Bombay, India); Vide page 215 of the paper‑book; and (4) The claimant has applied for transfer of the press. "Possession" has been defined thus in section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958:‑ "Possession.‑`Possession' means possession obtained in pursuance of an order passed on or before the 20th day of December 1958, by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Governments

1. Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final: Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." Muhammad Yousaf Chaudhry had fulfilled all the four conditions laid down in the aforesaid Notification. He had left a press and a 1/4th share in another press at Bombay‑(India), while Mian Muhammad Bakhsh did not fulfil conditions Nos. (1) and (2) and was therefore not eligible for transfer of the Mercanthe Press. The decision of this Court in the case of Hamidullah and others v. Rai Khurshid Ahmad Khan (P L D 1958 S C (Pak.) 516) relied on by Mian Muhammad, Bakhsh has no application to the facts of the case. In the case under report the claimant‑was actually an allottee of the cinema in question as his entitlement was paid out of the income of the cinema. In the present case as has been noticed already Mian Muhammad Bakhsh on the crucial date was neither an allottee of the Mercanthe Press nor did he receive his entitlement out of the income of the press. His own case as well as the admissions of the authorities concerned show that Mian Muhammad Bakhsh was paid from the general pool of printing presses. It is idle to contend, as has been contended, that inasmuch as he received‑his entitlement from such general pool, he must be considered as an `allottee of the Mercanthe Press', or `an allottee of all the presses' whose contributions constituted the general pool. From the order of Mr. Kh. Mahmood Sadiq, Secretary, Punjab Industries Rehabilitation Board dated the 5th of August 1955, at page 43 of the paper‑book‑it is crystal clear that Muhammad Yousaf Chaudhry was asked to first deduce his entitlement from the income of Mercanthe Press and then to pay the surplus to the other allottees to be intimated to him by the authorities. Incidentally it may be stated here that by reason of this order Muhammad Yousaf Chaudhry had become a allottee of the Mercanthe Press although he had originally applied for allotment of the Punjab National Press. After the deduction on his own account there was hardly left a sufficient amount to pay the two other allottees viz. Syed Mubarak Ali Shah ‑and Sh. Abdul Maid. No scope was thus left for accommodating any other allottee. It may be stated here that the Court asked respondent No. 1 Settlement Commissioner (Industries) to furnish information whether the persons mentioned in Appendix `B' at page 198 of the paper‑book were transferred any press or presses. Mr. Samad Mahmood, who appeared on behalf of the said respondent, has since supplied the information contained in his letter dated the 28th of June 1975. The gist of the information is that none of the persons mentioned in the said Appendix except those mentioned at Sr. Nos. 4 and 6 has been transferred any press. Sr. No. 4 is 'Mian Muhammad Bakhsh (a party in the two appeals before us) and he has been transferred a 7/10th share in the Mercanthe Press and this transfer is the subject‑matter of dispute between the parties in the two appeals before us. Sr. No. 6 is Mr. Sultan Muhammad. He has been transferred Naubabar Printing Press, Multan, on evaluation basis. Thus the view I have taken in regard to Appendix `B' finds support from the information supplied on behalf of the Settlement Commissioner (Industries) respondent No. 1 herein. The following cases which were cited before the Court on behalf of Mian Muhammad Bakhsh have no application to the facts of the present case (1) P L D 1956 S C (Pak.) 259: (2) P L D 1960 Kar. 48 ; (3) P L D 1961 Lah. 19 ; (4) P L D 1967 Lah.

419. In this case the person concerned had been given a right to share in the income of the particular evacuee property and it was, therefore, held that he could claim to be in possession of that right or interest of that property. (5) P L D 1968 Lah. 56 and

770. I would, accordingly, allow Civil Appeal No. 277 of 1969, but in view of the special circumstances of the case, without any order as to costs. I, however, feel that arrangements should be made to pay the acknowledged entitlement of Mian Muhammad Bakhsh who, too, had abandoned in India considerable properties including a printing press. Civil Appeal No. 3 of 1970 is dismissed without costs HAMOODUR RAHMAN, C. J.‑-I agree: MUHAMMAD AFZAL CHEEMA, J.‑-I agree. S. A. H. Orders accordingly.