' The petitioner, a registered club under the Companies Act, 1913 is in possession of Property bearing No,SE-26-R-28 commonly known as 15-A, Abbot Road, Lahore. On 9th of January, 1961 the petitioner filed an application seeking transfer of this property. On this application the Chief Settlement Commissioner on 17th of July, 1961 directed the Deputy Rehabilitation Commissioner, Farid Kot House Lahore, to issue the P.T.O. To the Club if it was found entitled thereto under the law. It appears that as a dispute was going on between the Settlement Department and ,Mst. Ghulam Fatima, no further proceedings could be taken. That dispute was finally settled by the Supreme Court of Pakistan vide its judgment, dated 14th December, 1967. It may be also mentioned that in the meantime on 13th of October, 1966 the petitioner applied on the prescribed form for the transfer of the property under Settlement Scheme No,VIII. In that connection the petitioner was informed on 5th of July, 1968 by the Chief Settlement Commissioner that his application could not be considered as the 4 matter was sub judice in the Supreme Court. As already observed the dispute before the Supreme Court was settled on 14th of February, 1969. On 30th of September, 1969 a letter was received by the petitioner from the Deputy Settlement Commissioner-I, Faridkot House, Lahore informing it that the property has been ordered to be sold to the Education Department Government of West Pakistan and was no longer available for transfer. It appears that a memorandum dated 1st of June, 1969 was addressed by the Central Government to the Chief Settlement Commissioner conveyed its approval for the sale of the property to Education Department for establishment of a pavilion and playground, on payment of the prevailing market price. This transfer was, however, subject to two conditions firstly that the property in question was not transferable to any person under the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and secondly that the prices on the basis of the market value for the property was deposited before the transfer was effected.
2. This decision of the Federal Government was challenged by the petitioner by filing Writ Petition No,790-R of 1970 which was accepted by a learned Single Judge of this Court on 26th of June, 1975, who set aside the order and remanded the case to the Chief Settlement Commissioner for determining the entitlement of the petitioner.
3. In pursuance to the order of remand, the matter was taken up by Mr. Willayat Hussain Bokhari, Settlement and Rehabilitation Commissioner, Lahore who vide his order, dated 23rd of February, 1977, upheld the transfer in favour of the Education Department and rejected the application for transfer of the petitioner. This order has been impugned by the petitioner by filing this Constitutional petition.
4. Mr. MA. Mannan, Advocate appearing on behalf of the petitioner has contended that the order of remand passed by this Court has not been complied with. It has been explained that while remanding the case to the Chief Settlement Commissioner this Court had found that the petitioner had applied for the transfer of the property, but its application had not been disposed. Of in accordance with law by proper and competent authority. It was also observed that the transfer in favour of respondent No,3 was subject to the condition that no one else should be entitled to transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned counsel argued that as the petitioner was in possession of the property, it was entitled to its transfer under Settlement Scheme No,VIII and even if the memorandum, dated 9th of January, 1961 could not be construed as an order of transfer, yet the respondent was under obligation to have determined the entitlement of the petitioner.
5. Mr. Iftikhar Ahmad Sipra, the learned counsel appearing on behalf of Youth Hostel Association who claims to be beneficiaries from the Education Department has, however, supported the impugned order and stated that the property could be transferred by the Chief Settlement Commissioner to the Education Department under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
6. Having heard the learned counsel for the petitioner and perused the record with their assistance, it appears that the order of remand by this Court has unfortunately not been complied with by the respondent. The first thing noted in this behalf was that while accepting the writ petition on 26th of June, 1969 the case was remanded to the Chief Settlement Commissioner for determining the entitlement of the petitioner, but the matter was dealt with by the Settlement Commissioner.
7. Even on merits the impugned order is not sustainable. A perusal of order shows that the petitioner has been non-suited only on the ground that the memorandum, dated 9th of January, 1961 of the Chief Settlement Commissioner could not be construed as an order of transfer. Even if it be so, the next question which arose for consideration was as to whether the petitioner was entitled to the transfer of the property on the basis of its possession in pursuance to the application admittedly submitted by it. Unfortunately, however, there is no determination of this important question, which is indeed regrettable while remanding the case, it was clearly directed that this aspect be adverted to. The impugned order is as such unsustainable.
' For the reasons aforesaid this petition succeeds and is accepted, the impugned order of the Settlement Commissioner, dated 23rd of February, 1977 is declared to be without lawful authority and of no legal effect and the case is remanded to the Chief Settlement Commissioner for determining the entitlement of the petitioner to the transfer of the property on the application filed by it in accordance with law. There shall be no order as to costs.