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Civil Petition for Special Leave to Appeal No. 201 of 1972, dated on 26th October 1972.

(On appeal from the judgment of the Lahore High Court at Lahore, dated the 23rd December 1971, passed in L. P. A. No. 506 of 1966).

Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958),

Sched. 1, Part IV, para. 14 read with S. 2(4)‑Industrial concern located only on ground floor of building‑Residential rooms on first and second floors independent of portion occupied by industrial‑ concern‑Industrial concern apart from a common entrance having an independent entrance of its own on main road‑Tenement occupied by industrial concern, held, may be transferred as an industrial concern and other tenements to be disposed of as independent units.

Muhammad Asaf, Senior Advocate instructed by Gulzar Hasan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 26th October 1972.

This petition for, special leave to appeal seeks to call in question an order made by a Division Bench of the Lahore High Court on the 23rd December 1971, whereby the appeal filed by the, respondent, Mst. Nur Begum, under clause 10 of the Letters Patent was accepted, and an ‑‑ order made by a learned Single Judge of that Court on the 10th March 1966, in Writ Petition No. 1832‑R of 1963, was set aside.

The facts relevant 'for our present purpose ate that the property in' dispute, bearing No. B‑1975, situate in Chowk Jhanda, Inside Mori Gate, Lahore, is a composite property com prising one flour chakki on the ground floor, and residential rooms on the first and the second floors. The chakki stands transferred to the present petitioner, Khan Sahib Muhammad Nawaz Khan, whereas the residential rooms have gone to the respondent, Mst. Nur Begum. The Settlement Authorities have held that the two units were distinct and separate from each other.

Aggrieved by the division of the property, as carried out by the Settlement Authorities, the petitioner invoked the writ jurisdiction of the High Court, contending that the residential rooms were a part of the industrial concern transferred to him and they could not, therefore, be separated from the flour chakki and transferred to Mst. Nur Begum on the basis of her possession. This contention found favour with the learned Single Judge, who held, by his order dated the 10th March 1966, that the definition of the term house a given in clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter called the Act), specifically... exclude a residential building situated within the premises of an industrial concern, and therefore, the residential rooms in dispute could not be treated as a separate house. He took exception to the device adopted by the Settlement Authorities of leaving the entrance verandah of the industrial concern as a common passage for the petitioner and the respondent. In this view of the matter, he accepted the petitioner's claim to the transfer of the entire building, to the exclusion of the respondent, Mst. Nur Begum. Acting in appeal, under clause 10 of the Letters Patent, the learned fudges of the Division Bench have observed that un doubtedly a residential portion situated within the ,premises of an industrial concern is not to be regarded as a house under section 2(4) of the Act, but in this case the industrial concern was located in a separate tenement of the building and‑ the residential rooms on the‑ first and the second floors had nothing to do with it. They have also taken note of the fact that according .to the site inspection carried out by the Settlement Authorities, as well as by a Member of the Bar, deputed by the Letters Patent Bench, the industrial concern had, besides the‑ door opening in the common verandah, an independent entrance from the main road, and therefore, the residential rooms remained a separate entity.

The only point raised in support of this petition is that the Letters Patent Bench of the High Court has erred in thinking that the residential room,,5, in dispute were not situated within the premises of the industrial concern transferred to the petitioner. It is submitted that before Partition these rooms were occupied by the proprietor of the flout chakki on the ground floor.

There is no substance in these submissions. In the first place, there is no finding on the record to the effect that the rooms in dispute were occupied; before Partition, by the proprietor of the chakki. Secondly, even if they were so occupied, the essential 4uestion would still remain whether they were situated within the premises of the industrial concern. From the description of the property as appearing in the orders of the Settlement Authorities, and the report made by a Member of the Bar, deputed by the Bench to carry out a local inspection, it becomes clear that the industrial concern transferred to the petitioner is located only on the ground floor of the building, and the residential rooms on the first and the second flours are independent of it:‑ Even though there is a common entrance in the verandah for the two units, yet the industrial concern has an additional independent entrance on the main road.

We also find that the learned Judges of the Division Bench have rightly taken note of the instructions issued in this behalf by the Chief Settlement Commissioner to the effect that if a industrial concern is located only in one tenement of a building then that portion only, may be transferred as an industrial unit and the other tenements are to be disposed of as independent units in accordance with the relevant provisions of the Act and the Schemes framed thereunder. These instructions are in conformity with the definition contained in section 2(4) of the Act.

Before parting with this case we may also mention the fact that the petitioner had applied only for the transfer of the industrial concern in his possession, and had accepted this position by not agitating against the order made in this behalf by the Additional Settlement Commissioner on the 29th December 1959. He laid a claim to the residential rooms much later when they were transferred independently to the respondent. Of course, he was never in possession of these rooms.

For all these reasons, the petition is found to be without merit and is hereby dismissed.

Petition dismissed.

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