JUDGMENTKHALIL-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 other seeking implementation of the judgment of the Supreme Court in the case of Abdul Rauf V. Mst.Hafi/an Mosan Alta clc.(1986 PSC 1450)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 poperty in question.
2. The grievance disclosed in the petition is that despite the dept^ ' of the amount demanded bv the respondents towards the transfer price and arrears of the rent, the documents of title in respect of portion 'B' of properly 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 'oeing allowed thereby depriving the petitioners to Know' the fate of the case, lt 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 patitioners 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 Supcrmc Court in its judgment being relied upon by the petitioners, had directed the respondents to determine the entitlement of the parlies and in compliance of the said direction, 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.Lt 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 petitioners and that the answering respondent is willing to transfer part of protion '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 (1) 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 disjwsable 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. Ln view of the aforenoted stand of the respondents, Mst. Farkhanda Af/al Cheema was also impleaded as parly, lt is conceded by the olficials-rcspondenls as well as by the learned counsel for Mst. Farkhanda Afzal Cheema that portion 'D' in possession of Mst.Farkhanda Afzal Cheema form part of the portion 'B' which was transferred to the petitioners by the Settlement Authorities and respecting which PTO had also been issued to them.Lt is also not disputed that Mst. Farkhanda Afzal Cheema has at best l he right to purchase t he portion, if otherwise available, by offering to pay the amount of the highest bid offered in the public auction, ln 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 dcmorcatcd by the Settlement Authorities.
4. We have considerd the respective submissions of the parties and have also gone through the history of the litigation conccring the properly 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 Mohsan Atta and others V. Custodian Enemy Properties and others PLD 19S3 Lahore 342)and than in the judgment of the Supreme Court (Abdul Rauf V.Mst. Hafizan Mosan Atta etc. 1986 PSC 1450). Lt may be noted that the property bearing No.5-A Begum Rpad, Lahore, was divided by the Deputy Settlement Commissioner into three portions; portion 'A'portion 'B' and prolion 'C. Portion 'A' was transferred to Mst. Hafizan Mosan 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.
Amtul Hajra. 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 dcclartion 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 1949. This order was not passed by the Central Government and ultimately the Supreme Court in the case reported as The Punjab Cooperative Bank Limited V. The Republic of Pakistan and others (PLD 1964S.C. 616) held that the properly did not form part of the Compensation Pool and as such the P.T.O could not be issued but so far as the allotments arc concerned, they are to remain intact as the Rehabiliatation authorities had the power to make such allotments and the Custodian's possession cannot be disturbed for the prcsent.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 Emergeancy 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 as 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: - "ll is,therefore, clear that the referee to the PTOs and PTDs in the policy letter did not require that the same should be valid and sussisting. The intention appears to have been to adopt the principles applicable under the Settlement Scheme to determine entitlement and given effect to the transfer orders by the Settlement Department although such orders lacked legal sanctity".
Para 23 may also be reproduced:- "ln view of the foregoing discussion 1 have come to the conclusion that the allotment holders who had secured allotment from the Rehabilitation Authorities were not entitled to the benefit of the policy letter of the Government dated 21 March,1972 and therefore, the order of the Additional Custodian of Enemy Property dated 2nd Januray, 1981 transferring Portions of the properly in favour of the appellants was without lawful authority and of no legal effect.However, it has been rightly contended that the High Court ought not to have ordered transfer of the property in favour of the contesting respondents but should have remanded the case Iii the Custodian Enemy Property for passing the necessary order, while therefore, dismissing these appeals, it is ordercd.Lhal the case shall be remitted to the Custodian Enemy Property for Pakistan for determining the entitlement and passing necessary orders in the light of this judgment. The appellants shall bear the costs of the respondent".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 sanctity. The other observations and the finding to the effect that the allotment holders who had secured allotments from Rehabilition authorities were not entitled to the benefit of policy letter of the Government dated 21 st March, 1972, also lead one to the aforenoted conclusion, lt 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 aurthority 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 culled out for transfer to an ailottee of Rehabilitation Department or to tenant of the Custodian, Enemy Property or even to an unauthorized 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 Settlement 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, lt 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. Conseqently, 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 declared to be unwarranted in law and unauthorized.
5. The petitioners in view of the illegel 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 objectioh as to the non-maintainability of the petition is misconceived.
6. For the reasons given above, we hold that under the judgment of the 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 demarcted and transferred vide P.T.O.By the Deputy Settlement Commissioner for disposal separtely and that the respondents are bound to give effect to the transfer order passed by the Settlement Authorities. The petition is accepted in the term indcated above. THe respondents No. 1 and 2 shall also pay the cost of the petitioners.