MUHAMMAD ASLAM BHUTTA Versus MEMBER, BOARD OF REVENUE CHIEF SETTLEMENT COMMISSIONER
ORDER
Through these two Writ Petitions Nos. 136/R of 1987 filed by Messrs Hazir h Company Sialkot and. Writ Petition No.331/R of 1986 filed by Muhammad Aslam Bhutta and two others, the petitioners therein want this Court to declare the order dated 3‑7‑1986 of the Member (Revenue)/Chief Settlement Commissioner, Board of Revenue, Punjab, respondent No.4 to be without lawful authority and of no legal effect. I propose to dispose of them through single judgment.
2. The dispute between Messrs Hazir and Company petitioner in Writ Petition No.136‑R/87 and Muhammad .4slam Bhutta and three others respondents (Petitioners in Writ Petition No. 331‑R/86) relates to area underneath the shops in occupation of respondents Nos.l to 3, The petitioners claim that total area of Pioneer Sports Factory Ltd., an industrial concern, transferred to them was 16 Kanals and 16 Marlas. They constructed the shops on disputed area and gave the same on rent to respondents Nos.l to 3 whereas the case of the respondents is that this area is not part and parcel of the industrial concern and has got separate entity and since they are in possession thereof, so they are entitled to its transfer under the new Scheme.
3. The facts leading to this petition briefly are that industrial concern known as Pioneer Sports Factory Ltd. (hereinafter referred to as the factory) was originally owned by Karpal Sigh and others. It was on lease with Messrs Hazir and Company Ltd. petitioners (hereinafter referred to as the Company). In the year 1962, the Factory was transferred to the Company under section 10 (B) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 for Rs.2,94,300. In the year 1977, Muhammad Aslam Bhutta, Major Bashir Ahmad (Retd), Major Muhammad Yousaf (Retd) respondents and one Anwar Zia filed forms under new scheme of Management and Disposal of Residual Properties for the transfer of shops constructed on the disputed area in the Office of Deputy Administrator (Residual) Properties, Sialkot, which were despatched to the Deputy Administrator (Available Properties) Punjab, Lahore, for appropriate action. On 11‑1‑1978 Anwar Zia one of the applicants gave up his claim and his form was rejected as having been withdrawn.
4. After hearing Muhammad Aslam Bhutta and others, respondents 1 to 3 and the Settlement Authorities, Punjab, the Deputy Administrator (Available Properties) Punjab, Lahore found that property i.e. shops sought to be transferred on forms of respondents Nos .l to 3 being industrial concern could not be transferred on any form and the only mode of disposal thereof was by way of open auction. Resultantly the forms of respondents Nos.l to 3 were rejected on 31‑1‑1978. Feeling aggrieved thereby, the respondents filed revision before the Administrator (Residual Properties), Punjab, Lahore who dismissed the same on 28‑3‑1979 with the observation:‑
"I have, as already stated, carefully gone through the order of Mr. Muhammad Azam Deputy Administrator (Residual Properties) Punjab, Lahore and am of the view that he was right in holding that the disputed portion is an industrial area and it cannot be transferred under the Residual Property Scheme and in any circumstances it cannot go with the Pioneer Sports Co. Ltd, Sialkot as part and parcel of the same because it is abundantly clear from the record that the property known as Pioneer Sports Factory Ltd. Sialkot existed on an area of 15 kanals. The area more than 15 kanals which now exists on the spot will be disposed of through auction by the Addl. Settlement Commissioner (Industries) Punjab, Lahore. The result of the above discussion is that neither the transferees of the Pioneer Sports Factory Ltd. Sialkot are entitled to the retention of the area of one kanal and 17 marlas nor it can be transferred to the petitioners."
5. It may be noted here that the Company was neither before the Deputy Administrator (Available Property) Punjab, Lahore nor was impleaded as a party in the revision filed before the Administrator (Residual Properties), Punjab Lahore. Feeling aggrieved of the observations made in the order dated 28‑3‑1979, the Company filed Writ Petition No.744‑R/79. Muhammad Aslam Bhutta, Major (Retd.) Bashir Ahmad and Major (Retd) Kh. Yousaf respondents also questioned the aforesaid order of the Administrator (Residual Properties) Punjab, Lahore through W.P. Nos.672/R of 1979, W.P. No.739/R of 1979 and W.P. No.740/R of 1979. All the four writ petitions were accepted and the matter was remitted back to the Member (Revenue) /Chief Settlement Commissioner Member Board of Revenue, Punjab, respondent No.4 on 9‑12‑1982 by the High Court with the observations that:‑
"In view of what has been stated above and in the circumstances of the case, the appropriate thing to do is to find out what vested in the industrial concern Pioneer Sports Factory Ltd. Sialkot at the time of Partition. That shall remain transferred to Messrs Hazir a Co. Ltd. Sialkot. Beyond and besides that, if there is any area in possession of the petitioners in the three petitions and they are entitled to the transfer under the relevant Settlement Scheme No.IX, the area shall be transferred to them in accordance with law."
On remand, the learned respondent No.4 afforded opportunity of being heard to the parties. He came to the conclusion that Messrs Hazir & Company Ltd. were transferred the property known as Pioneer Sports Factory Ltd. with land which measured 15 kanals. The remaining property of one kanal 17 marlas which vested in Messrs Karpal Singh and others, never formed part of the Pioneer Sports Factory Ltd. and as such, was not transferred in their favour. This much was the claim of Messrs Hazir & Co. As regards the residuary property over 1 Kanal and 17 Marlas, I have to hold that the petitioners Major Muhammad Yousaf etc. have no claim for its transfer under Scheme VIII. This Property would therefore be disposed of by open auction. The petitioners Messrs Major Muhammad Yousaf etc. would, however, have the right of first option at the highest bid since presently in possession of the property, hence these Writ Petitions.
6. Learned counsel for the petitioners mainly submitted that the High Court had remanded the case to the respondent No.4 to find out, what vested in the industrial concern Pioneer Sports Co. Ltd. Sialkot but that has not been done. Learned counsel for the Settlement Authorities supported the impugned order. The learned counsel for the respondents (Petitioners in W.P. No.331/R of 1986) while supporting the impugned order to the extent it goes against the petitioners has challenged its correctness as far it relates to the rejection of the Forms and disposal of property in possession of respondents through open auction. He maintained that the disputed area on which the shops in occupation of the respondents are constructed was not part and parcel of the factory; that it was not part of the industrial concern; and that since the respondents were in possession of the same, therefore, they were entitled to its transfer and cannot be forced to pay the price of highest bid in auction; that in the Scheme they are entitled to a price which may be determined in accordance with Para No.l (i) (ii) of the Scheme for Management and Disposal of the Available Urban Properties.
7. I have carefully attended to the arguments of the learned counsel for the parties. I feel persuaded to agree with the learned counsel for the petitioners. I find that the order of the High Court dated 9‑12‑1982 whereby respondent No.4 was directed to find out what vested in the industrial concern Pioneer Sports Factory Ltd. Sialkot has not properly been complied with. The dispute between the parties relates to the area whereon the shops in occupation of the respondents Nos.l to 3 have been raised. The petitioners' case was/is that the area whereon these shops have been constructed, being a part and parcel of the Pioneer Sports Factory Ltd. Sialkot, was transferred to them and after having constructed shops thereon, they, had put respondents Nos.l to 3 in possession thereof as tenants. Whereas the respondents' plea was/is that the area on which the shops in their possession have been raised was not part and parcel of the Pioneer Sports Factory Ltd. and has got separate entity and since they were/are in possession thereof so they are entitled to its transfer under the relevant Scheme on the strength of their possession. So, the appropriate thing to be done under the orders of the High Court was to find out whether the area underneath the shops in occupation of respondents Nos. 1 to 3 did vest in the Pioneer Sports Factory Ltd., Sialkot or not. This has not been done by the learned Member (Revenue), Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore, respondent No.4 instead he concentrated on the measurement of the factory and gave a vague finding that:‑
"Messrs Hazir & Company Ltd. was transferred the property known as Pioneer Sports Factory Ltd. with land measuring 15 kanals and the remaining property of one Kanal 17 Marlas which vested in Messrs Karpal Singh and others never formed part of the Pioneer Sports Factory Ltd."
In the circumstances of the case, I am convinced that the purpose of the remand order of the High Court dated 9‑12‑1982 has not been achieved and the aforesaid order has not been followed in its true sense. That being the position, there is no option but to declare the impugned order to be illegal and without lawful authority. Resultantly the case is sent back to the learned Member (Revenue)/ Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore, for fresh decision in the light of the observation made in this order and order, dated 9‑12‑1982 of this Court, within four months. Since the impugned order has been quashed and case remanded back for fresh decision, so 1 need not discuss the objections raised by the learned counsel for petitioners in Writ Petition No. 331/R of 1986. The parties are left to bear their own costs.
H.B.T./M‑687/L Order accordingly.