SAYED ZAHID HUSSAIN, J.- Ch. Ghulam Mustafa the predecessor-in-interest of the petitioners was transferred property No. 1V-R-154 Railway Road, Kasur as a whole considering that the same was indivisible, by the Deputy Settlement Commissioner vide order dated 5.12.1959 for the evaluation price was Rs.20,320/-, PTO was issued to him, schedule of property described therein was "shops and house No. IV-9-R-154". Being dissatisfied with the assessment of the price he agitated the matter and revised appendix-X was issued to him for Rs. 15,400/- on 14.12.1960. He is stated to have paid the price through Compensation Books and Association Deeds. Since the property belonged to the Punjab Co-operative Bank, dispute as to the status of such properties and power of Settlement Authorities to deal with the same had arisen which eventually reached the Supreme Court of Pakistan. The matter was decided vide judgment dated 29.4.1964 reported as The Punjab Co-operative Bank Ltd. v. The Republic of Pakistan and 128 others (PLD 1964 S.C. 616). It was inter alia held that the transfer orders issued for such like properties could not be maintained and must be set aside. Later on notification dated 3.9.1968 was also issued by the Central Government that the properties and assets of the Bank being enemy property shall vest in the Custodian of Enemy Property for Pakistan. It may be observed that Allah Ditta the predecessor-in-interest of respondent No. 4 and Muhammad Sardar respondent No. 5 had also applied for the transfer of shops but were unsuccessful. The transfer of the property as a. Whole in favour of late Ghulam Mustafa had remained intact. As mentioned above, since the property had vested in the Custodian of Enemy Property, for the disposal thereof a letter dated 21.3.1972 was issued by the Government and then memo, dated 8.3.1979 by the Custodian of Enemy Property. A notice dated 10.10.1983 was issued by the Assistant Custodian Intimating that the matter regarding transfer of the portion of the above property was being considered and that you should arrange payment of a sum of Rs. 14,928.66.
Similar intimations were statedly issued to the occupants of the shops. Late Ghulam Mustafa challenged the same through W.P. No. 406-R/83. The said petition was disposed of vide judgment dated 10.2.1992 remitting the matter to the Custodian of Enemy Property to decide it in accordance with law by affording opportunity of hearing to the parties. It is in this background that order dated 30.5.1998 was passed by the Additional Custodian of Enemy Property whereby he took the view that the claim of the Ghulam Mustafa qua the residential portion of the property could only be classified under category "B1 of the Memo, dated 8.3.1979 and the shops in occupation of Muhammad Siddique son of Allah Ditta, legal heirs of Fazal Ellahi and Muhammad Sardar could fall in category "C" of the said Memo. He ordered the transfer of the property in that manner. This order has been assailed through this petition.
2. It is contended by the Learned counsel that the whole of the property had been transferred to late Ghulam Mustafa treating the same as indivisible which aspect had attained finality and could not be reopened or dwelt upon by the Additional Custodian. It is contended that although in view of the judgment of the Supreme Court -in Punjab Cooperative Bank case (supra), late Ghulam Mustafa had applied for the refund of price yet the price infact had not been refunded to him. It is contended that under Memo, dated 8.3.1979 only Ghulam Mustafa was entitled to the transfer of the property and the other occupants/respondents have illegally been transferred the shops.
Relies upon Mst. Hafizan Mohsan Atta and 4 others v. Custodian of Enemy Properties and 3 others (PLD 1983 Lah. 342), which judgment was maintained by the Hon'ble Supreme Court of Pakistan i.e. Abdul Rauf and others v. Mst. Hafizan Mohsan Atta and others (1986 SCMR 1893) to support his contention.
The Learned counsel for respondents Nos. 1 to 3 and 7 supports the order passed by the Additional Custodian of Enemy Property and states that the PTO. In favour of Ghulam Mustafa had stood cancelled which transfer had become irrelevant in view of the price having been withdrawn by him.
According to him, the conduct of the petitioners disentitled them to any relief. It is further contended that clause "E" of Memo, dated 8.3.1979 was attracted in the matter and the occupants have rightly been transferred the shops.
Respondents Nos. 4 to 6 had been served , and were represented by Mr. Muhammad Sadiq Bhatti, Advocate, Kasur, who has been sent intimation by the office but none has entered appearance despite calls. The petition has thus been heard ex parte qua them.
3. As noted above the property which belonged to Punjab Co-operative Bank vested in the Custodian of Enemy Property for Pakistan in view of the judgment of the Supreme Court in Punjab Co-operative Bank' case (supra), and the notification dated 3.9.1968 issued under Rule 182 of the Defence of Pakistan Rule, 1965, its disposal was to be governed and regulated by the decision of the Government of Pakistan contained and conveyed through letter dated 21.3.1972 and Memo, dated 8.3.1979. The import and effect of the said letter and memo, was considered by the Learned Division Bench of this Court in Mst. Hafizan and others' case (supra). In the precedent case the Additional Custodian of Enemy Property for Pakistan had proceeded to transfer the portions in possession of the respective occupants which order was challenged through the writ petition. After considering the judgment of the Hon'ble Supreme Court of Pakistan in Punjab Co-operative Bank case (supra), letter dated 21.3.1972 and memo, dated 8.3.1979 it was held "likewise the fact that PTOs/PTDs are to be replaced by fresh deeds to be executed by the Custodian of Enemy Property, is also n6t without significance, the argument, that where there is no conflict of interest between a P.O.T./P.T.D. Holder and an allottee, the transfer as made by the Settlement Department is to be kept intact but in case where P.T.O/P.T.D. Was issued inclusive of the portion in occupation of an allottee, the transfer is to be restricted to the portion in actual physical possession has not impressed us. This plea cannot be supported by either the letter, dated 21.3.1972 of the Central Government or memo., dated 8.3.1979 of the Custodian". It was observed that the intention was to honour the P.T.Ds. And P.T.Os. Issued by the Settlement Department and that "this intention cannot be defeated and hence word 'allottee' really means "transferee". That was a petition filed by a PTO holder which was accepted. Abdul Rauf and others the occupants/allottees challenged that judgment before the Supreme Court of Pakistan, which was dismissed maintaining the judgment of the learned Division Bench with a modification that instead of ordering the transfer of property by the High Court itself the matter should have been remanded to the Custodian of Enemy Property for passing necessary orders. It was held "to us it appears that the word "allotment orders" were used to cover cases of transfer of properties in which the Settlement Authorities had determined the entitlement of a person and to whom, notice of transfer under Chapter V of Settlement Scheme No. 1 was issued but no P.T.O, was yet issued. Clearly, therefore, the word allotment has been used in this sense and not with reference to allotment made by the Rehabilitation Department. This interpretation of the instructions issued by the Custodian is in consonance with the policy letter issued by the Government. There is nothing in the polity letter, dated 21st March, 1972 which can bring the case of allottees from the Rehabilitation Department within the ambit of the rights conferred by the said policy letter.
The fact that orders for transfer of portions in occupation of the appellants were made contrary to the directions in the policy letter and payments were received would not confer indefeasible rights upon the appellants. An 'order in excess of legal authority even if carried into effect, unless waived, cannot furnish foundation for legal rights. It was further held that "it is, therefore, clear that the reference to the P.T.Os. 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 made by the Settlement Department. Although such orders lacked legal sanctity. The legal position, therefore as to the construction, import and legal efficacy of letter dated 21.2.1972 and memo, dated 8.3.1979 is quite clear and plain. Late Ghulam Mustafa had since been transferred the whole of the property and the PTO was also issued to him for the whole of it, that matter became final qua all concerned, In the earlier writ petition i.e. w.e.f. No. 406- R/83 in which the respondents were also parties, while referring to the transfer order dated 5.12.1959 that the property was indivisible and was transferred to late Ghulam Mustafa. It was observed that "this order attained finality as no appeal or revision against it was filed by any of the occupants". Even with this petition a certificate issued by D.S.C., Kasur has been attached that ''no appeal was filed by anybody against the order of D.S.C., Kasur dated 5.12.1959". Such is the assertion of the petitioner, in clause 'D' of paragraph No. 13 of the writ petition. Despite pendency of the writ petition since long, no reply or written statement has even been filed by any of the respondents to controvert this assertion of the petitioners. It is thus to be taken as correct that transfer order dated 5.l2.1959-passed by the Deputy Settlement Commissioner had become final. Divisibility of otherwise of the property having already been determined by the Deputy Settlement Commissioner, the Additional Custodian could not reopen that aspect of the matter.
4. The contention of the learned counsel for Custodian of Enemy Property that since the petitioner opted for the refund of the transfer price, his conduct disentitles them to the relief in writ jurisdiction, is untenable. In the facts and circumstances of the present case, It may be observed that it was due to the cancellation of transfer by operation of law that he made such ah application in the year 1971. By that time letter dated. 21.3.1972 and memo, dated 8.3.1979 had not been introduced. His application thus had to be construed in this contextual background, It is, however, stand by the learned counsel for the petitioners that the price had not indeed been refunded or adjusted anywhere. This controversy as to whether the refund was indeed made by the Settlement Authorities cannot and need not be resolved in these proceedings. The Additional Custodian of Enemy Properties was clearly misdirected in his approach. He had to give effect to the terms of letter dated 21.3.1972 and memo, dated 8.3.1979, as construed by the superior Courts in above cases. After the relevant instruments i.e. Letter dated 21.3.1972 and memo, dated 8.3.1979 had been interpreted there was no obscurity about their content and scope. The legal position stated in the above-mentioned judgments was quite clear and explicit and had to be given effect, It may be observed and need to be emphasized that the legal position stated by the Supreme Court, In view of Article 189 of Constitution of Islamic Republic of Pakistan, 1973 had the binding effect and force and even the executive authorities in terms of Article 190 of the Constitution of Islamic Republic of Pakistan, 1973 are obliged to act accordingly and follow the same. It may be observed that even the factual background obtaining in the above-mentioned precedents was almost identical to the one in hand. The rule laid down thus in the said precedents was fully attracted to the instant case.
The order of the Additional Custodian of Enemy Property, however, proceeds on altogether different promises, unwarranted by the facts and circumstances and the law applicable. He acted illegally in passing the impugned order by dividing the property and transferring the same to the respondents as well. His order is not legally sustainable.
As a result of the above the writ petition succeeds. Resultantly, it is declared that the respondents were not entitled to the benefit of the policy decisions of the Government contained in letter dated 21.3.1972 and 8.3.1979 and order impugned insofar as it concerns with the transfer of the property to the respondents is without lawful. Authority and of no legal effect. The matter is remitted to the Custodian of Enemy Property for appropriate orders who may also determine as to whether the petitioners had Obtained the refund of the price from the Settlement Authorities, In case it is found that they had received back the price, the same may be recovered from them in accordance with law. No order as to costs.