Find a Lawyer

Constitutional Petition No.310 of 1974, decided on 27th November, 1986.

---Ss.2, 10 & Sched.--"Industrial concern"--Definition--Transfer of industrial concern--Determination of limits of an industrial concern depends upon field of actual operation of a particular industry.--[Words and phrases].

1972 S C M R 413 and Abdul Jabbar v. Settlement Commissioner, Shikarpur and others 1969 S C M' R 114 ref.

---Art.199--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.19--Appeal--Limitation--Order passed on time -barred appeal, held, was without lawful authority (even if bar of limitation not agitated before appellate authority)--Subsequent order passed in pursuance thereof also was to be deemed to have been passed without lawful authority--Petition allowed, impugned order set aside and matter remanded for re-hearing in accordance with law.

P L D 1969 S C 167 rel.

Akhtar Mahmood for Petitioners Nos.l to 3.

Anwar Jamali for Petitioner No.4.

Abdul Sattar for Respondents Nos.3 and 4.

Nemo for Respondents Nos.l and 2.

This Petition under Article 199(2) of the Constitution, 1973 was originally filed by the Petitioners No.1 to 3 on 15-2-1974. It was later amended to bring on record legal representatives of Respondent No.3, Syed Muhammad Ghufranullah. Amended memo of petition was filed on 25-3-1979. The Petitioner No.4, Muhammad Aslam, joined other Petitioners in the Petition in December, 1981, with the permission of the Court, and filed separate memo of Petition.

The Petitioners' case, briefly stated, is that they and about 600 other families are settled on a patch of land comprising S.Nos.1443, 1445, 1446 and 1447, admeasuring 26,708 Sq. Yards, at Mirpurkhas in District Tharparkar, which belonged to evacuee Hindus by names -Lilaram Ajoomal and Changomal Ajoomal and their possession thereon stands regularized by allotment orders issued by the Rehabilitation/ Settlement authorities. It is stated that the said land abuts the compound wall of a factory, known as Ajoomal Jagot Rao Cotton Ginning and Pressing Factory established on S.Nos.1437, 1438 and 1440 admeasuring 36, 778 Sq. Yards. It is also stated that both the piece of the land and the factory originally belonged to Mr. Eduljee Dinshaw and he had exchanged the land and the factory with the land and a factory of a firm M/s Ajumal Jagat Rao at Hyderabad. It is further stated that the partners of the firm six in number, were declared evacuees and, consequently, the property mentioned above became evacuee property. The Petitioners' case further is that the aforesaid factory was, therefore, allotted to displaced persons from time to time and was ultimately publicly auctioned in 1959 to the respondents No.3 and 4, Syed Muhammad Ghufranullah and Muhammad Rehanullah, exclusive of the land claimed by them, and they were given possession of only the factory premises bounded by a ten feet high boundary wall covering S.Nos.1437,1438,1439 and 1440. It is alleged that the respondents No.3 and 4 (Syed Muhammad Ghufranullah and S. Muhammad Rehanullah) laid claim that the colony land in occupation of the Petitioners & other families, as aforesaid was part and parcel of the factory premises transferred to them. The matter was contested before the Rehabilitation and settlement authorities. The Petitioners' contention is that the concerned authorities clarified that only the land bounded' by the compound wall of the factory was transferred to the said respondents No.3 & 4 and the land lying outside the compound wall was not included in the factory land auctioned to them (the respondents No.3 and 4). It is contended that the respondents No.3 and 4 got the matter reopened by preferring an appeal before the Settlement Commissioner (Industries), Lahore, who by his order dated 11-12-1968, referred the case to the Additional Settlement Commissioner (Industries) Lahore and he (the Additional Settlement Commissioner, Industries) ignored the orders passed earlier and held, by order dated 30-6-1970, that the Industrial concern auctioned to the respondents No.3 & 4 included the adjacent plots lying outside the compound wall. The Petitioners and other claimants preferred appeals. It is stated that the settlement organisation was decentralized and the appeals were to be heard by the Additional Settlement Commissioners and the Settlement Commissioners in the Province. It is further stated that during the pendency of appeals, Act No. LV of 1973 came into effect on 30-6-1973, and the right of appeal was taken away and the appeals were treated as Revision Applications and the appeals filed by the Petitioners and other claimants were dismissed by the Settlement Commissioner (Industries) Hyderabad by order dated 15-9-1973, which has been impugned in this petition. The original order dated 30-6-1970 passed by the additional Commissioner (Industries) also has been impugned in the Petition.

The learned counsel for the Petitioners No.1 to 3 has contended that the respondents No.3 and 4 were transferred the area bounded by the ten feet high compound wall and the land lying outside the bounded area was allotted to the Petitioners and others who had settled there and the claim laid by the Petitioners thereon was unfounded and was repelled by the Settlement authorities at the initial stage. He has made reference to two orders, one dated 24-10-1965 another dated 16-6-1969. He has also made reference to certain orders made in favour of the respondents No.3 and 4. Those orders are dated 11-12-1968, 30-6-1970 and 15-9-1973. He has submitted that the orders passed in favour of the respondents Nos.3 and 4 are bad in law. The learned Counsel for the Petitioner No.4 has adopted the arguments advanced by the learned counsel for the Petitioners No.1 to 3. On the other hand, the learned counsel for the respondents No.3 & 4 has urged that the impugned orders are in accordance with law and no question of violation of law is involved.

The first order relied upon by the learned counsel for the Petitioners is Annexure A to the Petition at page 77. It was passed by Additional Settlement Commissioner (Industries), West Pakistan, Lahore on 24-10-1965. By this order, the claim of the respondents No.3 & 4 over the land lying outside the compound wall of the factory was not accepted. His order was appealed against before the Settlement Commissioner (Industries) West Pakistan, Lahore, who by his order 11-12-1968, ordered further inquiry into the claim laid by the respondents No.3 & 4. This Order is annexure B to the Petition at page 81. It has been contended on behalf of the Petitioners that the appeal was time barred and therefore the order dated 11-12-1968 is bad in law. The learned counsel for the respondents No.3 & 4 has conceded that the appeal was time barred but has urged that this plea was not agitated earlier and no appeal was filed against the order and it had been given effect to and in pursuance thereof the order dated 16-6-1969 was passed and that order has been pressed into aid by the Petitioners. The order dated 16-6-1969 is at page 93 in the Petition file. It was passed by the Deputy Settlement Commissioner, Mirpurkhas, whereby he held, relying on a case reported in 1969 S C M R 114, that the area transferred to the respondents No.3 & 4 did not extend beyond the compound wall, delineating the factory premises. The learned counsel for the Petitioners have relied upon that order and cited the case reported in 1969 S C M R 114 and another case reported in 1972 S C M R 413. This order was superseded by the order dated 30-6-1970, (at page 109 in the petition file) passed by the Additional Settlement Commissioner, holding that the land appurtenant to the factory (claimed by the Petitioners and others as colony land) was part and parcel of the factory auctioned to the respondents. This order was maintained in appeal (later treated as revision by operation of law) decided by the Settlement Commissioner (Industries) Hyderabad by the impugned order dated 15-9-1973 at page 131 in the record of the Petition.

The Petitioners seem to have intercepted the respondents No.3 and 4 in their pursuit to get identified the limits of the industrial concern known as Ajumal Jagat Rao Cotton Ginning and Pressing Factory sold to them in auction by the settlement authorities in the year 1959. Transfer of the factory to them has not been challenged. But limits of the factory area are in dispute. The Respondents No.3 and 4 claim that its limits include S.Nos.1443, 1445, 1446 and 1447, whereupon a colony inhabited by the Petitioners and many other families stands established. They agitated their claim before the settlement authorities and it has been upheld by the final forum vide order dated 15-9-1973. No exception has been taken to the powers of the Settlement authorities having upheld the claim of the respondents No.3 and 4. The only objection taken to the validity of the impugned order is that they have been passed in pursuance of the order dated 11--'12-1968 on a time barred appeal. By this order, the order of Additional Settlement Commissioner dated 24-10-1965 rejecting the claim of the respondents No.3 and 4 over the colony land was impliedly set aside by the Settlement Commissioner (Industries), West Pakistan Lahore and further enquiry was ordered to be made by the Deputy Settlement Commissioner. The Deputy Settlement Commissioner examined the case as directed and submitted his report dated 16-6-1969 to the Additional Settlement Commissioner that the disputed land did not form a part of the factory area, basing his opinion on the Supreme Court decision in a case: Abdul Jabbar v. Settlement Commissioner Shikarpur & Ors, reported in 1969 S C M R 114. This report has been relied upon by the Petitioner as the order of the Deputy Settlement Commissioner rejecting the claim of the respondents No.3 and 4. Be that as it may, the view taken by the Deputy Settlement Commissioner was not accepted by the Additional Settlement Commissioner and the Settlement Commissioner in their respective orders dated 30-6-1970 and 15-9-1973 impugned in the Petition. In the aforesaid case relied upon by the Deputy Settlement Commissioner (1969 S C M R 114), it was held that the words "within the premises of an industrial concern" in the definition of "Industrial concern" contained in Section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, necessarily mean the area of the premise actually used in an industrial concern. In that case, two rooms used as shops never used for purpose of the 'chaki' operating in a separate unit of the same building were held not to have formed a part of the industrial concerning the 'chaki'. In the instant case, the Additional Settlement Commissioner and the Settlement Commissioner held on taking into consideration the attending facts and circumstances that the disputed land was meant for use of the factory. In the other case cited as 1972 S C M R 413 (K.S. Muhammad Nawaz Khan v. Mst. Nur Begum & others relied upon by the learned counsel for the Petitioners, there was a 'chaki' on the ground floor of a building comprising of three floors and there were residential tenements on the first and second floors in occupation of other persons and it was held that the flats were rightly treated falling beyond the limits of the factory. It follows that determination of limits of an industrial concern depends upon field of the actual operation of a particular industry. The Settlement authorities seem to have dealt with the matter in that perspective and passed the impugned orders. There is no challenge to their authority in passing the orders except that the orders were passed in pursuance of an order passed on a time barred appeal. In this context reference may be made to the order. It is mentioned in F the order itself (dated 11-12-1968) that the appeal disposed of thereunder was dated 19-2-1966 and it was directed against the order of the Additional Settlement Commissioner (Industry) dated 25-10-1965.

Appeal under the Displaced Persons (Compensation & Rehabilitation) Act 1958 provided for under section 19 thereof provides the period of limitation of 15 days for filing of appeal thereunder. The appeal disposed of under order dated 19-2-1966 was apparently time barred. The learned counsel for the respondents No.3 and 4 has frankly conceded that the appeal was time barred. He has, however, contended that the plea of limitation was not agitated by the Petitioner before the Additional Appellate Authority and they have even relied upon the order dated 16-6-1969 passed in persuance of the order dated 19-2-1966 and they cannot raise the question of limitation. The question of limitation having arisen in similar circumstances was considered by the Supreme Court in a case Ahsan Ali and others versus District Judge and others (P L D 1969 S C 167) and it was held that the order passed in the appeal barred by limitation was not sustainable in law even if bar. of limitation was not agitated before Appellate Authority, and the matter was remanded for rehearing of the question of limitation and other grounds as well. Accordingly, the order dated 19-2-1966 which was passed on apparently time barred appeal was without lawful authority and therefore the subsequent orders passed in pursuance thereof, which have been impugned in this judgment, also are deemed to have been passed without lawful authority.

Accordingly the Petition is allowed and the impugned orders dated 30-6-1970 and 15-9-1973 are declared to have been passed without lawful authority and the matter is remanded for rehearing of the appeal, which was disposed of by the order dated 11-12-1968 in accordance with law.

S. Q. /M-129/K Petition allowed.

Find a Lawyer Near You

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