Find a Lawyer

Writ Petition No. 1027/R of 1963, decided on 17th June 1968.

S. 12 and Notification No. F. 7(1)/55‑R‑11 dated 21‑11‑1955, read with Pakistan Rehabilitation Ordinance (XVII of 1956), S. 10 and General Clauses Act (X of 1897), S. 24‑West Pakistan Industries Rehabilitation Board setup under Notification dated 21‑11‑1955 Kept alive till subsequent Notification No. S.R.O. 27 dated 18‑7‑1959 issued under S. 10, Ordinance (XVII of 1956)‑ Allotment made by Board set‑up in 1948‑Valid till 18‑7‑1959‑ No allotment made by Board set‑up in 1959‑Entitlement of parties considered on basis of allotments made by Board" set‑up in 1948, before June, 1959‑Held, correctly considered by Settlement Authorities under Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Sched., para. l5(2).

Sched., para. 15(2) read with Registration of Claims (Displaced Persons) Act (III of 1956), Sched. III‑Transfer of cinema house‑Claimant having abandoned registered industrial' concern or cinema house in India applying for transfer of cinema house in his possession‑Entitled to transfer of such cinema house irrespective of fact whether he has verified claim under Sched. Ill or not‑Such transfer cannot be questioned under Art. 98, Constitution of Pakistan (1962).

Although, the Settlement Department is not to consider the question of transfer of properties out of the compensation pool independently of the orders passed by the Claims Organisation, a, claimant who has abandoned a registered industrial concern or a cinema house and claims transfer of an industrial concern or a cinema house in Pakistan of which he is in possession and has applied for its transfer irrespective of the fact whether be has a verified claim under Schedule III or not, is entitled to transfer of the cinema house in his possession. The Claims Organisation was concerned only with compensa tion of property abandoned and if a particular property is not found to be a running concern for want of installation of machinery etc. and has been verified as a building for such a concern, it cannot be said that the building' from its plan and potential use was not going to be a cinema house and if the conclusion arrived at by the department on the basis of evidence and orders of the Claims Commissioner is that no doubt the claimant does not have a verified claim under Schedule III, yet he has left behind a cinema house, the order transferring a cinema house to such a claimant will not be beyond the ambit of para. 15(2) and such a transfer cannot be successfully questioned under Article 98 of the Constitution.

Syed Pir Pasha Qadri v. Hakim Siraj Hussain and five others Writ Petition No. 273 of 1961 ref.

Sched., para. 15(2), proviso‑Cinema house, transfer of‑Claimants owning cinema in India jointly, obtaining joint transfer of cinema against joint verified claim‑Case covered by Sched., para. 15(2) regardless of proviso.

Messrs Chiragh Din‑Ghulam Muhammad v. Messrs Muhammad Ramzani, Muhammad Ismail, and others P L D 1962 Lah. 714 ref.

Dr. Nasim Hassan Shah with Khalil‑ur‑Rahman and Sh. Maqbool Ahmad for Petitioners.

Major Ishaque Muhammad Khan, Settlement Commissioner (Legal) for Respondent No. 1.

Amir‑ud‑Din Ansari and Sh. Salahuddin for Respondents Nos. 2 and 3.

Malik Shaukat Ali for Respondent No. 4.

Ch. Hamid ud‑Din for Respondents Nos. 5 and 6.

Dates of hearing: 20th, 21st, 22nd, 28th and 29th March 1968.

The facts leading up to this writ petition are that the following persons applied for transfer of Nishat Cinema, Rawalpindi, in the year 1959:‑--

(1) Sh. Niaz Qutab (respondent No. 5),

(2) Mst. Afzal‑un‑Nisa Begum (respondent No. 6),

(3) Mr. Muhammad Ahmad Khan (now represented by respondent No. 4),

(4) Mr H. K. Lodhi (respondent No. 2),

(5) Mr. S. K. Lodhi (respondent No. 3),

(6) Mst. Imtiaz Begum,

(7) Sh. Ahmad Sadiq (petitioner), and

(8) Legal heirs of Sh. Arshad Sadiq.

Sh. Niaz Qutab, Mst. Afzal‑un‑Nisa Begum, Mr. Muhammad Ahmad Khan, Mr. H. K. Lodhi and Mr. S. K. Lodhi were found entitled to the transfer of the cinema as allottees and it was, therefore, transferred to them by the Chief Settlement Commis sioner by his order dated the 3rd of March 1960. Mst. Imtiaz Begum, mentioned at No. 6, was excluded as having been found to be not entitled to the transfer of the cinema because her claim under Schedule III was below the prescribed limit. The petitioner's application was also rejected in the first instance but subsequently he was found entitled to the transfer of the cinema along with others by order dated the 10th of May 1960 of the Chief Settlement Commissioner. The legal heirs of Sh. Arshad Sadiq (who are not before this Court in the present proceedings) were also subsequently held entitled to the share of the deceased. The shares of the various transferees were determined in the first instance as under:

(1) Sh. Ahmad Sadiq 36%

(2) Legal heirs of Sh. Arshad Sadiq 12 %

(3) Mr. H. K. Lodhi 11 %

(4) Mr. S K. Lodhi 2 %

(5) Muhammad Ahmad Khan 2 %

(6) Sh. Niaz Qutab 14 %

(7) Mst. Afzal‑un‑Nisa Begum along with Khalid

Jahangir (minor). 20 %

This determination of shares of, H. K. Lodhi, S. K. Lodhl, Muhammad Abroad Khan, Sh. Niaz Qutab, Mst. Afzal‑un‑Nisa Begum and Khalid Jahangir was made on the basis of original verification of their claims under Schedule III of the Registration of Claims (Displaced Persons) Act (III of 1956) by the Additional Claims Commissioner on the 21st of October 1959, which order was subsequently revised and their claims were not only partly reduced but were also converted into Schedule 1, by order dated the 24th of November 1960 of the Claims Commissioner. It may be mentioned that against that order of conversion of their claim from Schedule III to Schedule I, only Mr. S. K Lodhi approached this Court by means of Writ Petition No. 29 of 1961, which writ petition has been heard along with this writ petition and dismissed, maintaining the order of the Claims Commissioner. The present writ petition was filed on the 24th of April 1963 and an order was passed by the Chief Settlement Commissioner on the 9th of November 1964 revising the respective shares of the various transferees mentioned above in the following manner:‑--

(1) Sh. Ahmad Sadiq 34.50 %

(2) Legal heirs of Sh. Arshad Sadiq 11.92%

(3) Mr. H. K. Lodhi 12.48%

(4) Mr. S. K. Lodhi 3.72%

(5) Muhammad Ahmad Khan 3.72%

(6) Sh. Niaz Qutab 14.28%

(7) Mst. Afzal‑un‑Nisa Begum along with Khalid

‑ Jahangir (minor) 19.38%

By this order shares of Mr. H. K. Lodhi and Mr. S. K. Lodhi and Muhammad Ahmad Khan have been slightly increased and there has been a consequential reduction in the shares of other transferees. After the Claims Commissioner had revised the verification of claims of Mr. H. K. Lodhi, Mr. S. K. Lodhi, Muhammad Ahmad Khan, Sh. Niaz Qutab, Mst. Afzal‑un‑Nisa Begum and Khalid Jahangir from Schedule III to Schedule I, a representation dated the 25th of August 1962 is stated to have been made by the petitioner for cancellation of the shares given to the said respondents as claimants under Schedule III. It is further submitted that as no action has been taken on this application and there being no provision for appeal, revision or review against the order passed initially in favour of the said respondents on the 12th of March 1960 giving them a share holding in Nishat Cinema, the petitioner has invoked writ jurisdiction of this Court. It will be pertinent to mention at this stage that respondent No. 2 Mr. H. K. Lodhi's interest is stated to have since been purchased by Sh. Ahmad Sadiq petitioner and the said respondent has faded out although a prayer had been made by him for being transposed as a petitioner from amongst the array of the, respondents. An order of transposition was passed by this Court on the 4th of July 1963 and same is also objected to by the respondents.

2. The main objection raised on behalf of the petitioner is That a cinema house allotted by the Industries Rehabilitation Board could be transferred only to a person, who has abandoned an industrial concern or a cinema house or who holds a claim under Schedule III of the value of not less than one lac of rupees, out of which the machinery should be worth Rs. 66,000.00 by virtue of the provisions of para. 15(2) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) read with Notification dated 14‑11‑59. It is contended that because respondents Nos. 2 to 7 had not abandoned a cinema house or a registered industrial concern in Bharat and also do not individually have a verified claim under Schedule III of the value of rupees one lac or more, they are not entitled to the transfer and the tentative order of transfer passed in their favour, based on the appellate order dated the 21st of October 1959, which order has since been set aside by the competent authority under its revisional jurisdiction on the 24th of November 1960, should be quashed and the share‑holding resumed from them and be given to the petitioner and the family of Sh. Arshad Sadiq, in accordance with their verified claim under Schedule III.

3. The relevant provisions of law falling for consideration in this case may be reproduced with advantage:‑

Paragraph IV Industrial Concerns.‑Schedule to Act XXVIII of 1958.

15-----(1) ..

(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, 1956, is of the value of Rupees one lac or more, than 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 the verified claim in respect of such share is rupees thiry‑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 mines the investment made if any."

Notification No. F 3(1)/59‑SO(Clms), dated 14th December 1959.

(1) .

(2)

(3) If an industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the possession 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) If an industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the possession 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 unregistered 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."

Learned counsel contends that the claim of the said respondents for a cinema house has been negatived in positive terms and, therefore, they cannot be said to have abandoned a cinema house, and as their claims have not been verified under Schedule III for a sum of rupees one lac each, they cannot take benefit of sub‑para. (2) of para. 15 of the Schedule. On the other hand, learned counsel for the respondents have raised a number of pleas to defeat the writ petition. It has been contended on behalf of respondents Nos. 6 and 7 (Mst. Afzal‑un‑Nisa Begum and Khalid Jahangir) that the writ petition suffers from laches in the seens ,that the order of transfer in favour of the respondents having been passed on the 12th of March 1960, the writ petition filed on the 24th of April 1963 is greatly belated and because the receipt of the alleged representation made by the petitioner on the 25th not August 1962 has been denied by the Department in its report ‑submitted to this Court, it should be presumed that no representation was ever made by the petitioner and he has, wherefore, no locus standi to challenge the transfer in favour of :the respondents. It was also contended that the writ petition suffers from vagueness and indefiniteness, as no impugned order .is attached to the writ petition. On merits it has been contended that even if respondents Nos. 6 and 7 have no claim under Schedule III, transfer can be made in their favour under para. 15(21 where under no minimum amount is essential. Alternatively it is contended that as a matter of fact the respondents case is not covered by para. 15(2) and instead it will fall under para. 15(3) of the Schedule.

4. Two documents have been placed on the record by one .of the respondents to show that Ahmad Sadiq petitioner had knowledge of the order of the Claims Commissioner much before coming to this Court and this is a case of laches. Reference has also been made to para. 7 of the written statement put in by the Chief Settlement Commissioner which shows that no representa tion was ever made. We, however, find that because the petitioner has been tenaciously fighting his battle all these years, his sworn statement in support of his assertion that he did file a representation cannot be lightly treated and the writ petition ‑should not be thrown out on this assertion and denial alone. We also do not find any substance in the objection pertaining to locus standi because this objection is based on the question of non‑representation, which in essence means a delayed approach to this Court. As we have already rejected the plea of laches we do not find any substance in this objection also. The third preliminary objection of vagueness and indefiniteness has not been pressed by learned counsel for the respondents.

5. Coming to merits, learned counsel for the Respondents contend that the word "claimant" as defined by the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) means "displaced person whose claim . . . . has been registered under the aforesaid Act of 1956 * * * *" and the requirement of sub‑para. (2) of para. 15 is merely to the extent that a claimant, who has abandoned a cinema house in India, should be in possession of a cinema house in Pakistan as allottee from the Industries Rehabilitation Board and there is no limitation placed on such a claimant that he should have a verified claim under Schedule III. According to him the various clauses of the section are to be read disjunctively and not conjunctively and if a claimant is able to show to the satisfaction of the Settlement Department that he had registered a claim under the Registration of Claims (Displaced Persons) Act, 1956, and had abandoned a cinema house in India and is in possession of a cinema house in Pakistan and applies in that behalf, he will be entitled to transfer of the cinema house in Pakistan. It is argued that the conclusions arrived at by the Claims Organization are not binding on the Settlement Department with regard to the nature of property left by a particular claimant. The Settlement Depart ment, according to him, could ignore the conclusion of the Claims Commissioner, when he said that the respondents had left a cinema building and not an industrial concern verifiable under Schedule III because for the purposes of the Settlement Department the only condition precedent was abandonment of a cinema house by such a claimant. In support of this contention we have been referred to an unreported judgment of the Karachi Bench in Writ Petition No. 273 of 1961 (Syed Per Pasha Qadri v. Hakim Siraj Hussain and five others) decided on the 6th of June 1961, which lends support to the contention of the respondents. Lengthy arguments were addressed by learned counsel for respondents Nos. 6 and 7 to show that because the cinema house' had not been allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilitation Act XLII of 1956, the cinema in question was not transferable under sub‑para. (2) but under sub‑para. (3) which deals with cinemas not allotted by the aforesaid Industries Rehabilitation Board. The objection, is ill‑founded. The West Pakistan Industries Rehabilitation, Board was set up under section 12 of the Pakistan Rehabilitation Ordinance XIX of 1948 by virtue of Notification No. F. 7(1)/55‑R‑II dated the 21^st of November 1955. This Ordinance was repealed and re‑enacted by the Pakistan Rehabilitation Ordi nance XVII of 1956. No notification appears to have been issued under Ordinance XVII of 1956 till the 20th of November 1956, by which time the new Act XLII of 1956 had been enacted and assented to by the President, although it was published is the Gazette of Pakistan on the 8th of December 1956. In the circumstances the notification issued on the 21st of November 1955 will be considered to have remained in the field till the repeal of Ordinance XVII of 1956 by virtue of section 24 of the General Clauses Act and, therefore, although the notification dated the 20th of November 1956, purports to have been issued under section 10 of Ordinance XVII of 1956, it should be deemed to have been issued under section 10 of Act XLII of 1956 because misdescription of the title of the statute in force will not render the said notification invalid. Alternatively the notification of 21st November 1955 under section 12 of Ordinance XIX of 1948 will be considered to have been saved and kept alive till the 18th of July 1959, when Notification No. S. R. O. 27 was issued under section 10 of Act XLII of 1956 by virture of section 33 of the said Act read with section 24 of the General Clauses Act. As regards the further argument that no allotment having been made by the Industries Rehabilitation and constituted in July 1959 under section 10 of Act XLII of 1956 in the instant case, the entitlement of the respondents was to be considered under para. 15(3), suffice it to say that the allotments made by the Board in 19511 were admittedly valid till the end of June 1959 and no allotments having been made at all by this newly‑constituted Board, the entitlement of the parties have been correctly considered on the basis of allotments ending June 1959 made by the West Pakistan e Industries Rehabilitation Board constituted under the earlier Ordinance. From either angle the objection is without force and " we hold accordingly. We may add that as pointed out by the Departmental Representative, and rightly so, the respondents themselves applied for transfer W the cinema under para. 15(2) and not para. 15(3) and the impugned order has been passed by the Chief Settlement Commissioner under para. 15(2) and not 15(3) and for that reason also the objection has no force.

6. It was next contended by learned counsel for the respondents that a policy decision had been taken by the Central Government to the effect that claimants under Schedule I could also get transfers of cinemas and in this regards reference was made to certain decisions taken by the Chief Settlement Commis sioner with respect to various cinema houses given to claimants who had abandoned cinemas on the other side of the border but their claims stood verified under Schedule I. The Departmental Representative has placed on record an extract from the note dated the 2nd of December 1959, which was approved of by Mr. Hashim Reza, the then Chief Settlement Commissioner, pertaining to Rattan Cinema, which shows that there was some discussion of the matter but there does not appear to have been any notification issued by the Central Government to vary the conditions laid down in para. 15, which power vested in the Central Government under the amendment brought in by para. 15‑A of the Schedule and no reliance can, therefore, be placed on such an informal decision in some meeting of the various officers of the Department.

7. Malik Shaukat Ali, Advocate, appearing on behalf of respondent No. 5, reiterated the argument of laches. He also contended that the question now raised before the High Court was never raised by the petitioner before the Department. He, however, did not agree with Mr. Hamid‑ud‑Din, Advocate, that the allotment had not been made by the Industries Rehabilitation Board and, therefore, para. 15(2) did not apply. He conceded that the case was covered by para. 15(2). He, however, contended that the Claims Organization and the Settlement Department are two limbs of the same organization. He maintained that the schemes and their orders are no doubt to be interpreted and read supplementing each other but for purposes of para. 15(2), the only conditions for a person to get a cinema house transferred in Pakistan are that the party must be in possession of a cinema in Pakistan, he must be a claimant and he must have abandoned a cinema house or he may have a verified claim under Schedule III of the value of rupees one lac or more along with the other conditions laid down in Notification No. F. 3(1)/59‑SO(Clms) dated the 14th of December 1959 promulgated under para. 15‑A of the Schedule, but a claimant, who has abandoned a cinema house in India and whose claim has been verified under Schedule I, will not be deprived of transfer under para. 15(2). His contention was that nature of property abandoned is to be determined by the Settlement Department independently of the decision of the Claims Organization. He, however, conceded that the decision of the Claims Organization on the question as to who is or is not a claimant is binding on the Settlement Authorities. He next contended that the instant case has a special feature and that is that the Claims Commissioner has nowhere said in the order dated the 24th of November 1960 that the respondents had not left any property. All that he says is that it was a cinema building and not an industrial undertaking. The Claims Commissioner has nowhere come to the conclusion that the answering‑respondents had not abandoned a cinema house and if the Settlement Organization on facts proved before it and on the basis of the verification of claims under Schedule 1, comes to a finding that the respondents are claimants and they have abandoned a cinema house on the other side of the border, the orders passed by the Settlement Department are not a case of lack of jurisdiction. On behalf of respondents Nos. 3 and 4, it was represented that transfer in their favour had been based not only on a claim with regard to Firdaus Cinema, Jullundur, but also on their verified claim under Schedule III for Taswir Mahal Cinema, Aligarh, to the tune of Rs. 45,000.00 and they have been given a share jointly as they had applied for transfer also jointly and as such they along with respondent No. 2 have been rightly given allotment in the cinema and the transfer in their favour cannot be questioned on any score. He vehemently contended that they are joint allottees, they had put in a joint application for a joint claim and their claim was verified by the same order and their application for transfer was also joint and as such the proviso to sub‑pare. (2) of pare. 15 was not to be invoked; rather their case was to be considered under sub‑pare. (2) of para. 15 as they had abandoned a cinema house in India. In support of this contention he relies on Messrs Chiragh Din‑Ghulam Muhammad v. Messrs Muhammad Ramzan, Muhammad Ismail, Muhammad Ibrahim and another (P L D 1962 Lah. 714), which is an authority directly in point.

8. Shorn of all verbosity the argument centres round the construction of para. 15(2) of the Schedule to Act XXVIII of 1958. A plain reading of this para. does lend support to the construction that although the Settlement Department is not to consider the question of transfer of properties out of the compensation pool independently of the orders passed by the Claims Organization, a claimant who has abandoned a registered industrial concern or a cinema house and claims transfer of an industrial concern or a cinema house in Pakistan of which he is C in possession and has applied for its transfer irrespective of the fact whether he has a verifies claim under Schedule III or not. is entitled to transfer of the cinema house in his possession. The Claims Organization was concerned only with compensation of property abandoned and if a particular property is not found to be a running concern for want of installation of machinery, etc. and has been verified as a building for such a concern, it cannot be said that the building from its plan and potential use was not going to be a cinema house and if the conclusion arrived at by the Department on the basis of evidence and orders of the Claims Commissioner is that no doubt the claimant does not have a verified claim under Schedule III, yet he has left behind a cinema house, the order transferring a cinema house to such a claimant will not be beyond the ambit of para. 15(2) and such a transfer cannot be successfully questioned under Article 98 of the Constitution. The departmental interpretation is also on these lines, as is evident from the report submitted, wherein it has been said:--

"Apart from this, the question whether the persons mentioned at Sr. Nos. 4 to 7, whose claims had been converted from Sch. III to Sch : I can also be deprived of their, entitle ment, was carefully examined and it was decided that applications (claims) of such persons would be maintainable as para. 15(2) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act.

Provided that a person who had left a cinema house, was eligible for transfer of the concern . . . . . . .

As the claims were in lieu of intrinsically a cinema property the plea taken by the writ petitioner about non‑eligibility of respondents Nos. 2 to 7 is untenable."

The Chief Settlement Commissioner has come to a conclusion that the property left behind by respondents Nos. 2 to 7 was intrinsically a cinema house and, therefore, the question that the claim has been verified under Schedule I or Schedule III pales into insignificance. They being claimants and having abandoned, a cinema house, they were entitled to the transfer and the order of transfer cannot be challenged on that score. As regards respondents Nos. 3 and 4, they have the added qualification of having a verified claim under Schedule III and as they held a cinema in Aligarh, got a joint allotment in Pakistan, preferred a joint claim and the same was verified as such ; they applied for a joint transfer and have also obtained a joint transfer, the provi sions of para. 15(2) would cover their case regardless of the' proviso because they had not abandoned a share in a cinema louse in India.

9. For the foregoing reasons no exception can be taken to the impugned order of the Chief Settlement Commissioner and we dismiss this writ petition. However, there will be no order as to costs.

10. Before parting with this case, we may add that the order of transposition of resp3ndent No. 2 as a petitioner in the writ petition being ex parse and conditional and the same having been objected to on quite convicting grounds, it should be deemed to have been vacated and respondent No. 2 continues to be a respondent in the case.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.