KHALIL-UR-REHMAN KHAN, J.---This petition under Article 187 (2) of the Constitution of the Islamic Republic of Pakistan was filed by Mst,, Ayesha Begum and others against the Custodian, Enemy Property and others seeking impelementation of the judgment of the Supreme Court m the case of Abdul Rauf v. Mst. Hafizan Mohsan Atta, and others 1986 SCMR 1893 in relation to the petitioner by issuing the documents of title and for inspection of the record of the case maintained by the Department pertaining to the property in question.
2. The grievance disclosed in the petition is that despite the deposit of the amount demanded by the respondents towards the transfer price and arrears of the rent, the documents of title in respect of portion B' of property No.61-A Begum Road, Lahore, are not being issued in implementation of the judgment of the Supreme Court. It was asserted that the inspection of the file pertaining to the property in question is not being allowed thereby depriving the petitioners to know the fate of the case. It was added that the respondents are bound to issue the documents of title to the petitioners in respect of the portion 'B' of the aforesaid property as the entitlement of the petitioners stand already determined by the Settlement Department by issuing P.T.O. In their favour and the right to receive these documents stand further confirmed by the judgment of the High Court and Supreme Court. The report was called for by this Court from the respondents, who in the report took the position that the Supreme Court in its judgment being relied upon by the petitioners, had directed the respondents to determine the entitlement of the parties and in compliance of the said directions, portion 'D' of the property in question which is in possession of one; Mst. Farkhanda Afzal Cheema being an independent portion, is to be disposed of by calling tenders It was added that there is no direction in the judgment of the Supreme Court that the said portion is also to be transferred to the petitionersi and that the answering respondent is willing to transfer part of portion `B' which is in physical possession of the petitioners in accordance with the policy laid down in the memo dated 8-3-1979, referred to in the judgment of the Supreme Court. The respondents also took the preliminary objections to the effect that (i) no relief can be granted as petitioner has not challenged the order of the respondent treating the portion `D' as an independent portion and as such disposable separately from the rest of the portion 'B' and (ii) the petition is not maintainable under Article 187 of the Constitution as the directions under the said Article can only be passed in a pending matter and not in respect of the matter which stands decided and concluded.
3. In view of the afore stated stand of the respondents, Mst. Farkhanda Afzal Cheema was also impleaded as party. It is conceded by the officials--respondents as well as by the learned counsel for Mst. Farkhanda Afzal Cheema that portion `D' in possession of Mst. Farkhanda Afzal Cheema forms part of the portion `B' which was transferred to the petitioners by the Settlement Authorities and respecting which P.T.O. Had also been issued to them. It is also not disputed that Mst.
Farkhanda Afzal Cheema has at best the right to purchase the portion, if otherwise available, by offering to pay the amount of the highest bid offered in the public auction. In other words she has the first right to purchase on payment of the highest price offered in the public auction if the said portion `D' can otherwise be carved out of portion 'B' of property No.6-A Begum Road, Lahore as divided and demarcated by the Settlement Authorities.
4. We have considered the respective submissions of the parties and have also gone through the history of the litigation concerning the property in question but this history need not be repeated here as the same has been given firstly, in the judgment of the High Court Hafizan Moshan Atta and others v. Custodian of Enemy Properties and others PLD 1983 Lah. 342 and then in the judgment of the Supreme Court Abdul Rauf v. Mst. Hafizan Mohsan Atta and others 1986 SCMR 1893. It may be noted that the property bearing No.6-A. Begum Road, Lahore, was divided by the Deputy Settlement Commissioner into three portions; portion `A', portion `B' and portion `C'. Portion `A' was transferred to Mst. Hafizan Mohsan Atta and Muhammad Abdullah, portion `B' was transferred to Mst. Ayesha Begum and Mst. Aziz Begum, the petitioners, and portion 'C' was transferred to Mst.
Amtui Hajan. These transferees were also issued P.T.Os., in respect of their respective portions. This property originally belonged to the Punjab Cooperative Bank Limited which obtained a declaration, that the property in question is not evacuee property but the Additional Custodian (General)
Evacuee Property Lahore, subjected this declaration to the condition that the Custodian will not be dispossessed of the property until the Central Government passes order as contemplated by subsection (3) of section 6 of Ordinance XV of 1949. This order was not passed by the Central Government and ultimately the Supreme Court in the case reported as The Punjab Co-operative Bank Limited v. The Republic of Pakistan and others PLD 1964 SC 616 held that the property did not form part of the Compensation Pool and as such the PTO could not be issued but so far as the allotments are concerned, they are to remain intact as the Rehabilitation Authorities had the power to make such allotments and the Custodian's possession cannot be disturbed for the present.
Subsequently, on account of an order passed under the Defence of Pakistan Ordinance, 1954 the properties of the Bank being Enemy Properties came to vest in the Custodian of Enemy Property, for Pakistan. The result was that the disputed property was to be dealt with under the Enemy Property (Custody and Registration) Order 1965. On repeal of the Defence of Pakistan Ordinance, the enemy properties continued to be administered under the Enemy Property (Continuance of Emergency Provision) Ordinance, 1969. Accordingly, a scheme was issued by the Government of Pakistan by its order dated 21-3-1972 to the effect that the properties of the bank transferred provisionally/permanently to any person by the Settlement Department which came to the notice of the Custodian in future and Enemy Properties may be disposed of in the manner laid down therein. The entitlement of the petitioners to receive the transfer of portion 'B; was examined by the High Court and finally by the Supreme Court. The Supreme Court in para 21 of the judgment observed as under:- "It is, therefore, clear that the reference to the PTOs.And P.T.Ds. In the policy letter did not require that the same should be valid and subsisting. The intention appears to have been to adopt the principles applicable under the Settlement Scheme to determine entitlement and give effect to the transfer orders by the Settlement Department although such orders lacked legal sanctity."
Para. 23 may also be reproduced:- The forequoted direction when read in line with the observations made in para 21 clearly indicates that the Custodian of Enemy Property is to adopt the principle applicable under the Settlement Scheme to determine the entitlement and to give effect to the transfer order made by the Settlement Authorities though for the reasons indicated in the judgment itself, such orders lack legal B sanctity. The other observations and the finding to the effect that the allotment holders who had secured allotments from Rehabilitation authorities were not entitled to the benefit of policy letter of the Government, dated 21st March, 1972, also lead one to the aforenoted conclusion. It will be noted that the order of the Additional Custodian Enemy Property transferring a portion of the property in favour of the allottees of Rehabilitation Department in preference to P.T.O. Holders was declared illegal and without lawful authority as otherwise the transfer orders passed by the Settlement Authorities cannot be given effect to. If this position is accepted then how a part out of the portion demarcated by the Settlement Authorities by applying the principle of the Settlement Scheme could be called out for transfer to an allottee of Rehabilitation Department or to tenant of the Custodian, Enemy Property or even to an unauthorised occupant. The carving out of a portion out of portion `B' would be negation of the principles for determining entitlement under Settlement Scheme as then transfer order passed by the Department cannot be given effect to. The apparent intention of the policy letter is to grant valid transfer documents to the PTO holders as due to determination of the true status and character of the property, the PTOs or PTDs issued by the Settlement Department stood deprived of their legal validity and sanctity. It is, therefore, apparent that the Custodian of Enemy Property cannot refuse to transfer a part of portion `B' of house No.6-A, Begum Road, Lahore to the petitioners on the assumption that the same can be separated therefrom and treated as an independent portion. Consequently, the said part marked as portion, 'D' cannot legally be disposed of through auction. The action of the respondents in treating portion 'D' as an independent portion and disposable as such being contrary to the observations, findings and intent of the judgment of the Supreme Court, is hereby declare to be unwarranted in law and unauthorized.
5. The petitioners in view of the illegal and unauthorized act of the respondents were justified in approaching this Court under Article 187 (2) of the Constitution of Islamic Republic of Pakistan for having the judgment of the Supreme Court implemented in letter and spirit. The objection as to the non-I maintainability of the petition is misconceived.
6.For the reasons given above, we hold that under the judgment of the D Supreme Court dated 25- 8-1986, the respondents cannot legally carve out the portion `D' out of portion `B' of property No.6-A, Begum Road, Lahore as I demarcated and transferred vide P.T.O. By the Deputy Settlement Commissioner for disposal separately and that the respondents are bound to give effect to the transfer order passed by the Settlement Authorities. The petition is accepted in the terms indicated above. The respondents Nos. 1 and 2 shall also pay the costs; of the petitioners.