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Civil Appeals Nos. 703, 704, and 705 of 1984, decided on 25th August, 1986.

(On appeal from the judgment of Lahore High Court, dated 25‑1‑1983, in W.Ps. 636/R of 1981, 91/R of 1982 and 636‑R of 1981).

‑‑‑Ss. 6(3) & 18‑‑Pakistan (Administration of Evacuee Property Act (XII of 1957), S. 7(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act, (XXVIII of 1958), S. 3(2)‑‑Settlement Scheme No.I, Chap. V‑‑Central Government Policy Letter No. 3(27) CBP/II/68, dated 21‑3‑1972‑‑West Punjab Protection of Evacuee Property Ordinance (VII of 1947)‑‑Defence of Pakistan Ordinance (XXI of 1965), S. 3(4)‑‑Defence of Pakistan Rules, 1965, Rr. 169 & 182‑‑Defence of Pakistan Rules, 1971, 8.185‑‑Enemy Property (Custody and Registration) Order, 1965), Art. 4(2)‑‑Enemy Property (Continuance of Emergency Provisions) Ordinance (I of 1969) , S . 2 , Sched . ‑‑Word "allottees" used in Policy letter of Government, dated 21‑3‑1972‑‑Interpretation‑‑Properties of Punjab Cooperative Bank Ltd. enemy property, vesting in Custodian of Enemy Property under S.182 (1)(b), Defence of Pakistan Rules, 1965‑‑Mode of disposal of such properties‑‑Allotments issued under Rehabilitation Laws, held, would not fall within purview of Policy letter of 21‑3‑1972‑ Order of Additional Custodian of Enemy Property transferring portions of property in favour of allotment‑holders from Rehabilitation Settlement Authorities would therefore be without lawful authority and of no legal effect.‑‑[Words and phrases].

The subject property in this case was admittedly enemy property within the meaning of sub‑rule (4) of Rule 169 of the Defence of Pakistan Rules, 1565. This property was vested in the Custodian of Enemy Property by the Central Government under clause (b) of sub‑rule (1) of Rule 182 of the Defence of Pakistan Rules, 1965, vide Notification dated 3rd September, 1968. Therefore, under Rule 182 of the Defence of Pakistan Rules, 1965, or Rule 185 of the Defence of Pakistan Rules 1971, the Central Government exercised control and regulatory authority to provide for any incidental and supplementary provision as appeared to it to be necessary or expedient for the purpose of such vesting order. The overriding legal effect of the Policy letter issued by the Central Government is beyond dispute. In this context the moot question for determination in this case is whether the properties of the Punjab Co‑operative Bank Limited were required to be disposed of by transfer in favour of transferees from the Settlement Department or also in favour of allottees from the Rehabilitation Department in whose favour neither P.T.O. nor P.T.D. was issued. The difficulty has arisen because of the use of the words "existing, allottees" in the policy letter. In the order of the Additional Custodian Enemy Property, dated 2nd January, 1981, the names of seven persons were mentioned for the purpose of transferring to them the portions in their occupations. In this order the proposed transferees were divided into 'two groups. Group (a) related to P.T.O.‑holders falling under category "B" and the names of the appellants were mentioned in Group (b) as allottees falling under category 'C'. The categories "B" and "C" apparently related to the Custodian's instructions contained in his letter, dated 8th March, 1979, (reproduced at page 9 above). A bare perusal of the aforesaid letter shows that these two categories related to P.T.O.‑holders and bona fide allottees from the "defunct Settlement Department". Therefore, on the language of the instructions no reference was made to allottees who had obtained their allotments from the Rehabilitation Department but had further not secured any order of transfer from the Settlement Department. Besides in the aforesaid letter in paragraph 1, clause (a) (c) unambiguously referred to P.T.Os ./P.T.Ds. issued by the defunct Settlement Department. Also in paragraph 2 in clauses (i) and (ii), the formal sale‑deeds were to be issued on receipt of the transfer price recovered from the Settlement Department or on the evaluation made by the Settlement Department. It is no doubt true that in the said clause (Il) the words "P. T. Os. /allotment orders" are used. However, the High Court had assigned cogent reasons that the words ",allotment orders" do not refer to allotments issued by the Rehabilitation Department. If the intention was as contended for by the appellants, necessary machinery provisions for exclusion of portions covered by such allotments from those parts of the properties which were included in the P.T.Os./ P.T.Ds. would have been included in the letter of the Custodian. In absence of such provisions it is difficult to hold that the intention was to exclude such portions from the transfer documents of P.T.O. and P.T.D.‑holders. The words "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 policy 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 in defeasible rights upon the appellants. An order in excess of legal authority even if carried into effect, unless waived, cannot furnish foundation for legal rights. As already observed the order of the Deputy Custodian Enemy Property even if passed after the application of conscious mind, being in excess of powers vesting in him is void and of no legal effect. The order of the Deputy Custodian impugned in the constitutional petitions cannot by any stretch be considered as a departmental construction of the policy letter. There is nothing in that order which indicates that any attempt was made by the officer concerned to interpret the provisions of the policy letter. It is only an exercise of power assumed by the officer. Therefore, the principle that departmental construction can be resorted to as an aid to interpretation is not attracted in this case. At any rate the construction is contrary to the manifest intention of the policy maker as incorporated in the letter. The High Court, was therefore, right in holding that the allotments issued under the Rehabilitation laws did not fall within the purview of the policy letter in question.

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 21st March, 1972, and, therefore, the order of the Additional Custodian of Enemy Property, dated 2nd January, 1981, transferring portions of the property 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 to the Custodian Enemy Property for passing the necessary orders.

The Punjab Co‑operative Bank Limited v. The Republic of Pakistan and others P L D 1964 S C 616 ref.

Maqbool Ellahi Malik, Advocate Supreme Court for Appellants (in Civil Appeal No. 703 of 1984).

Maulvi Ihsanul Haq, Syed Asad Hussain Zaidi and Sh. Ziaullah, Advocates Supreme Court for Respondents (in Civil Appeal No. 703 of 1984).

Muhammad Arif, Senior Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Appellant (in C.A. No. 704 of 1984).

Zainul Abidin, Advocate Supreme Court, Syed Asad Hussain Zaidi, Advocate Supreme Court and Sh. Ziaullah, Advocate Supreme Court and Syed Inayat Hussain, Advocate‑on‑Record for Respondents (in C.A. No. 704 of 1984).

A.R. Shaukat Senior Advocate Supreme Court for Appellants (in C.A. No. 705 of 1984).

Syed Asad Hussain Zaidi, Advocate Supreme Court, Sh. Ziaullah, Advocate Supreme Court, Rashid Masud, Advocate Supreme Court and Mian Munawar Hussain, Advocate Supreme Court for Respondent (in C.A. No. 705 of 1984).

Dates of hearing: 9th, 16th and 23rd October, 1985.

These three civil appeals by leave of this Court arise out of a common judgment of a Division Bench of the Lahore High Court, disposing of two writ petitions bearing Nos. 636‑R of 1981 and 91‑R of 1982. As common questions of law and fact have arisen for determination in these appeals, this judgment will dispose of all the three appeals.

2. The facts as stated in the impugned judgment are that the dispute in this case relates to Property No. S‑73‑R‑7, commonly known as 6‑A, Begum Road, Lahore. This property was originally owned by the Punjab Co‑operative Bank Ltd., which bank had its registered office at Amritsar, India. Abdul Rauf, appellant in Civil Appeal No. 703 of 1984, Aziz Ahmad Khan, the husband of Mst. Khurshid Jahan Begum, the appellant in Civil Appeal No. 704 of 1984, and Mahmood Hassan Khan and Ahmad Ali Khan, appellants in Civil Appeal No. 705 of 1984, are in occupation of various portions of the aforesaid property on the basis of allotment orders issued in their favour by the Rehabilitation Authorities.

3. This property was treated as evacuee property under the West Punjab Protection of Evacuee Property Ordinance VII of 1947. However, the Bank moved the then Custodian of Evacuee Property, under section 18 of Ordinance XV of 1949, for declaration that the property in dispute along with other properties of the Bank were not evacuee properties. The Deputy Custodian, Evacuee Property, Lahore, vide his order, dated 18th June, 1952 and 11th November, 1954, granted the declaration prayed for, which was subsequently, confirmed by the Additional Custodian (General) Evacuee Property, Lahore, subject, however, to the direction that the Custodian will not be dispossessed of the properties until the Central Government passed orders, contemplated by subsection (3) of section 6 of Ordinance XV of 1949. The Pakistan (Administration of Evacuee Property) Act, 1957, which repealed and replaced the said Ordinance of 1949, also provided that the properties of Joint Stock Companies having registered offices at a place situated in India since partition, to continue to vest in the Custodian until the Central Government divests him and dispossesses him of such properties, by virtue of section 7(3) of the said Act.

4. Being faced with this legal position the bank moved the Central Government to pass orders divesting and dispossessing the Custodian of Evacuee Property of its properties but did not succeed in obtaining such orders. In the meantime the Displaced Persons (Compensation and Rehabilitation) Act, 1958, came in force, under the provisions whereof the bank continued its efforts to have its properties excluded from the purview of the said Act, but their plea was turned down, on the ground that no orders of divestiture were passed by the Central Government.

5. Having thus failed in its attempts to have their properties released, the bank filed a constitutional petition in the Lahore High Court, for a direction to the Government of Pakistan to issue necessary orders of divestiture and also to prohibit the Settlement Authorities from dealing with the properties under the Act of 1958. As some orders were passed for transfer of portions of the properties to various persons, an alternative prayer for quashing the orders of transfer was also made in the said petition. In the meantime the occupants of the properties in dispute submitted forms for transfer of various portions under the Settlement Scheme No. I framed under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958.

6. At this stage it will be convenient to refer to the Scheme adopted by the Deputy Settlement Commissioner for the purpose of disposal of various portions of the property. By his order, dated 22nd September, 1960, he divided the property into three portions marked A, B and V. Portion 'A' was transferred to Mst. Hafizan Mosan Atta and Muhammad Abdullah her father‑in‑law. Muhammad Abdullah subsequently died and has been succeeded by his heirs who are respondents in Appeal No. 703 of 1984. Portion 'B' was transferred to Mst. Aysha Begum and Mst. Aziz B gum are respondents in Civil Appeal No. 704 of 1985. Portion 'C' was transferred to Mst. Amtual Hajra who is not a party to any of these appeals. Abdul Rauf, appellant in Civil Appeal No. 703 of 1984 also filed a N . C . H . form for transfer of a portion of the property marked as 'A' but the Deputy Settlement Commissioner finding him not to be a displaced person but a local rejected his form. He did not pursue any further remedy to challenge the said order of the Deputy Settlement Commissioner. Mahmood Hussain, Hamid Ali Khan and Aziz Ahmad Khan (husband of Mst. Khurshid Jahan Begum appellant Civil Appeal No. 704 of 1984) were in occupation of certain rooms of portion marked 'B' which was transferred to Mst. Aysha Begum an another. It was stated in the order that Mst. Aysha Begum and Mst Noor Begum were regular allottees while Mahmood Hussain, Hamid A: Khan and Aziz Ahmad, husband of Mst. Khurshid Jahan Begum, were non‑allotees. The said persons or their predecessors, however, claimed that they had occupied their respective portions of the property in pursuance of valid allotment orders. Mst. Hafizan Mosan Atta an respondents Nos. 2 to 5, who are parties to Civil Appeal No. 703 c 1984, were also issued P.T.O. but admittedly they were not issued an P.T.D. It is also admitted that the order of transfer, dated 22^nd September, 1960, passed by the Deputy Settlement Commissioner was withdrawn by him as per his order, dated 15th November, 1960, b way of review after obtaining permission from the Additional Settlement Commissioner. The reason for the same was that the question of title in the properties was sub judice before the Supreme Court.

7. The constitutional petition filed by the bank was dismissed by Division Bench of the High Court of West Pakistan. Being aggrieve by this decision the bank came up to this Court with an appeal by special leave, which was decided by judgment, dated 29th April, 1964 reported as the Punjab Co‑operative Bank Limited v. The Republic o Pakistan and others P L D 1964 S C 616. The appeal was allowed b; this Court and the conclusions of the Court were stated in the following portion as under:‑‑

"Neither the Settlement Authorities nor the Rehabilitation Authorities have appeared before us to oppose this appeal. But some of the allottees of these properties have appeared any filed objections. They have not been able to advance any cogent argument in support of their contention that these properties should be treated as evacuee properties and brought on to the compensation pool and transferred. Permanent transfer deed; have not been issued to any of the said respondents as yet Only some provisional transfer orders have been issued after the announcement of the High Court judgment. These clearly cannot be maintained and must be set aside. But so far as the allotments of the properties are concerned, learned counsel appearing for the appellant does not himself press for the cancellation thereof, for until the order of the Central Government has been made divesting the Custodian, he is not legally entitled to ask for the cancellation of the allotment. The Rehabilitation authorities had the power to make such allotments even under the Ordinance of 1947. Neither their possession nor the Custodian's possession can, therefore. be disturbed for the present. In the circumstances this appeal will be allowed and writs of prohibition and certiorari shall issue upon the Settlement Authorities directing them to refrain from taking any steps it respect of the properties of the appellant under the Act of 1951 and quashing the orders, if any made for bringing them on to the compensation pool or transferring them to any one. It if also declared that the Notification or Notifications issued under section 3(2) of the Act of 1958 for acquiring evacuee properties shall have no application to the properties of the appellant and shall not affect them in any way. There will, however, be no order as to costs as there has been no effective contest in this matter."

8. Subsequently on 3rd September, 1968, the Government of Pakistan issued an order under subsection (4) of section 3 of the Defence of Pakistan Ordinance, 1965, directing that the properties and assets of the bank being enemy property shall 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 the re appeal of the Defence of Pakistan Ordinance, the enemy properties continued to be administered under the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969. Accordingly a Scheme was issued by the Government of Pakistan by its order, dated 21st March, 1972. that the properties of the bank transferred provisionally /permanently to any person‑ by the Settlement Department which may come to the notice of the Custodian at any time in future as Enemy Property may be disposed of in the manner laid down therein. The relevant part of the Scheme may with advantage be reproduced as under:‑‑

"I am directed to refer to the correspondence resting with your Letter No. EMMB/CMMR/53/68‑71(2), dated 16‑6‑1971, on the subject mentioned above and to state that it has since been decided by Government that the properties of Punjab Cooperative Bank Ltd., Luxmi Commercial Bank Ltd. and Punjab National Bank Ltd, detailed in the enclosed list, and other properties of identical nature i.e. non‑evacuee buildings transferred provisionally /permanently to any person by the Settlement Department, which may come to the notice of the Custodian at any time in future as any enemy property may be disposed of in the following manner:‑‑

(1) Existing allottees and/or their successors may be allowed to purchase their respective portions of property at the evaluation made by the Settlement Department to transfer to the Enemy Property Management Board the amounts received by it from the transferees so that P.T.Ds./P.T.Os. may be replaced by fresh transfer deeds to be executed by the Custodian of Enemy Property.

9. The Custodian of Enemy Property, vide, memo, dated 8th March, 1979, issued instructions and approved the following categories of occupants for the purpose of transfer of enemy property comprising bank buildings:‑‑

"The occupants of the Enemy Bank Properties shall be categorised as under:‑‑

(a) Those who are holding P.T.Os. / P.T.Ds. from Settlement Department and have made payment of sale consideration to the defunct Settlement Department;

(b) those who are holding P.T.Os from defunct Settlement Department but did not make payment of the sale consideration to the Department;

(c) those who are bona fide allottees of the defunct Settlement Department;

(d) the tenants of the Enemy Banks;

(e) unauthorised occupants.

In the light of policy in 1973, as contained in the Ministry of Communications Letter No. 3(27)C.B.P./II/68, dated 21‑3‑1972, it has been decided that:

(i) The sale price etc. paid by the occupants falling under category (a) to the Settlement Department may be recovered from that department and the existing P.T.Ds. be replaced by formal sale‑deeds.

(ii) As regards categories (b) and (c) the P.T.Os /allotment orders be replaced by a formal sale‑deed on receipt of transfer price as evaluated by the Settlement Department.

(iii) As regards the remaining categories who are not covered by our aforesaid policy and fall under categories (d) and (e) above the properties under their possession will be disposed of through sealed tenders against the reserve price to be fixed on the basis of the market value of the property. The occupants may however, take part in the tendering when it takes place and they would be given preference if they offer the price equal to the highest bids.

3. The Custodian of Enemy Property has further ordered as under: ‑‑

(i) The individual cases falling under categories (a), (b) and (c) whose properties have been survived may. be scrutinised and your definite recommendation on each individual claim may be furnished to this office finalisation. Efforts may simultaneously be made for recovery of dues from Settlement Department.

(ii) The evaluation of the properties/ portion occupied by the occupants not falling under categories (a), (b) and (c) may be got measured and referred to this office for fixation of reserve price in each individual case so that further action towards their disposal may be taken.

(iii) The pace of survey of remaining bank properties may be accelerated so that the action stipulated above may also be taken at the earliest."

10. The Deputy Director, (F h A), Office of the Custodian of Enemy Property for Pakistan, addressed a letter, dated 2nd January. 1981, to the Deputy Custodian (Banks), State Bank of Pakistan, Central Directorate, Karachi, in respect of property in dispute, conveying the decision of the Additional Custodian of Enemy Property in regard to the occupants of the said property, relevant portion of which reads as under:‑

"The Additional Custodian of Enemy Property has been pleased to decide that all the following seven occupants may be treated equal and allowed transfer of the portion of the property on the basis of their cancelled documents after recovery of outstanding rents and transfer price and subject to fulfilment of usual formalities viz. succession ship certificates, power of attorney etc.

(a) P. T.O.‑holders falling under Category 'B'

(1) Mst. Amtual Hajira,

(2) Aysha Begum, Noor Begum

(3) Ch. Muhammad Abdullah and Mst. Hafeeza Mohsin Ata

(b) Allottees falling under Category 'C'

(1) Mr. Abdul Rauf

(2) Mr. Mahmud Hussain

(3) Mr. Aziz Ahmad

(4) Mr. Hamid Ali Khan

3. The portion occupied by Mst. Farkhanda Afzal, a tenant of the bank, falling under Category 'D' may be disposed of through sealed tenders as per normal policy."

11. Thus, purporting to act in pursuance of the policy decision of the Government for disposal of enemy bank property, portions of the disputed property in occupation of appellants herein or their predecessors‑in‑interest were transferred to them by the Additional Custodian Enemy Property. Being aggrieved by this decision respondents 1 to 5 in Civil Appeal No. 703 of 1984 filed a Constitutional Petition No. 636‑R of 1981 and similarly respondents 1 and 2 in Civil Appeal No. 704 of 1984 filed a Constitutional Petition No. 91‑R of 1982 to call in question the legality of the said decision, claiming a preferential right to the transfer by sale of the properties on the basis of P.T.Os. and P.T.Ds issued in their .favour by the Settlement Department. It may be stated that the appellants in Civil Appeal No.. 705 of 1984 were impleaded as respondents in Constitutional Petition No. 91‑R of 1982 before the High Court. It was contended by the petitioners in the Constitutional petition before the High Court that the Central Government by its policy decision contained in their memo, dated 21st March, 1972, had directed the Custodian Enemy Property to honour the P.T.Os./ P.T.Ds. which were otherwise held to be ineffective in that the property to which they related was non‑evacuee property and to replace the same by executing sale‑deeds in favour of these transferees by obtaining transfer price paid by them from the Settlement Department or on receiving the same from them directly. In other words their contention was that the expression "existing allottees" used in the Policy letter means transferees from the Settlement Department and not allottees from the Rehabilitation Authorities.

12. On the other hand the contesting respondents (appellants herein) placed reliance on the decision of the Additional Custodian of Enemy Property contained in the aforesaid order, dated 2nd January, 1981, and argued that according to the Government policy decision properties were to be transferred on the basis of possession /occupation. They defended the transfer orders made in their favour on the ground that the words "existing allottees" were used in order to accommodate the decision of the Supreme Court referred to above in which all the allotments issued by the Rehabilitation Authorities were held to be still subsisting and effective. Custodian of Enemy Property also supported the position taken by the contesting respondents (appellants).

13. The two constitutional petitions were disposed of by a Division Bench of the Lahore High Court vide judgment, dated 25th January, 1983, whereby the said constitutional petitions were accepted and it was declared that the contesting respondents were "entitled to the transfer of their respective portions marked ' A' and B' exclusively at the evaluation made by the Settlement Department and to the exclusion of the respondents (appellants herein and that the sale‑deeds, executed by respondent No.1 in favour of any of the contesting respondents (appellants herein) are illegal, void, and ineffective as against the rights of the petitioners." The learned Division Bench held that the word "allottees", in the aforesaid policy letter meant transferees and there was no category of allottees different from the transferees. Proceeding on that interpretation the entitlement of the parties was determined and the P.T.Os. which had been recalled soon after they were issued were made the basis for determining the transferable rights of the parties in these appeals.

14. Being aggrieved the appellants in these three appeals challenged the judgment by means of three separate‑ petitions for leave to appeal and this Court granted leave in order to examine the correctness of the construction placed by the High Court on the policy letters issued by the Government relating to the entitlement of the occupants.

15. Before examining the contentions of the respective parties it will be convenient to summarise the reasons that prevailed with the High Court to hold that the word "allottees" used in the memo, dated 21st March, 1972 cannot be understood to mean allottees of the Rehabilitation Department. These reasons are as under:‑

(i) In the opening part of the memo, it was stated in unequivocal terms that it has been decided by the Government that properties of identical nature i.e. non‑evacuee buildings transferred provisionally /permanently to any person by Settlement Department which may come to the notice as enemy property may be disposed of in the given manner.

(ii) The respective portions were to be purchased at the evaluation made by the Settlement Department in the past, which necessarily referred to the proceedings under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and was not referable to anything done by the Rehabilitation Authorities.

(iii) Mention of the amount received as transfer price from the transferees by the Settlement Department to be transferred to the Enemy Property Management Board, excluded allotments under the Rehabilitation Laws as no transfer price is obtained in respect of such allotments.

(iv) The provision of replacement of P. T. Os. /P. T. Ds. by fresh deeds to be executed by the Custodian Enemy Property was also significant.

(v) If portion in actual physical possession of the allottees from the Rehabilitation Department is excluded from the transfer, to be made on the basis of orders of the Settlement Department, there would be practical complications in giving effect to the directions in the Government memo.

The High Court repelled the contention that since the order, dated 22nd September, 1960, was withdrawn by the Deputy Settlement Commissioner vide his order, dated 15th November, 1960, the P.T.O. holders could not base their claim on the first mentioned order. It was held that the Supreme Court in The Punjab Co‑operative Bank Limited v. The Republic of Pakistan and others P L D 1964 S C 616 had saved the effect of the P.T.Os. for the purposes of transferring the portions and for replacing those invalid P.T.Os. with properly executed sale deeds. Therefore, reference to the P.T.O.‑holders was for the purpose of description and consequently the invalidity of the P.T.Os. was immaterial.

16. It was submitted on behalf of the appellants that after the apportionment of properties according to the categories prescribed in the memo. payments were actually made by the appellants. The argument was that the Deputy Custodian of Enemy Property, in exercise of powers vested in him under the law, consciously applied his mind and by order, dated 2nd January, 1981, directed the transfer in favour of the appellants of the‑ portions of the properties in their occupation by placing them in category "C". It was stated that the Deputy Custodian Enemy Property was the best Judge as to the real intendment underlying the policy letter issued by the Government and, therefore, his interpretation that the word "allottee' did not mean "transferee" was to prevail. Learned counsel submitted that in any case, the impugned order passed by the Deputy Custodian within the ambit of his jurisdiction, was not open to interference by the High Court. The rule that departmental construction is an aid to interpretation of statutory instruments, was pressed in support of the argument. Also the argument that P.T.Os./P.T.Ds. issued in favour of the contesting respondents were actually cancelled and could not, therefore, furnish basis for transferring portions of the properties in dispute in their favour in terms of the policy letter, was reiterated.

17. On the other hand on behalf of the contesting respondents reference was made to Rule 185(1) of the Defence of Pakistan Rules, 1971, and it was submitted that the policy letter issued by the Government had effect as a statutory instrument, which circumscribed the powers of the Deputy Custodian in his dealings with the enemy property, so that the latter could not frame any scheme for the transfer of such properties beyond the scope of the said Policy letter. In the premises the instructions contained in the Custodian's letter, dated 8th March, 1979, in so far the same are in conflict with the policy letter, would yield to the latter and would be ultra vires the powers of the Custodian. The word "allottee" according to the respondents must be given the ordinary dictionary meaning i.e. assignee in lots. Also on behalf of the respondents the validity of the order cancelling the P.T.Os./P.T.Ds. by review was challenged. It was argued that no notice of the review proceedings was given to the contesting respondents and, therefore, the order cancelling the transfer by the Settlement Authorities was void ab initio.

18. Learned counsel appearing for the Custodian and Deputy Custodian of Enemy Property supported the case of the appellants. He submitted that the categories mentioned in the policy letter for the purpose of transfer of portions of the property in dispute did not create legal right and in any case the orders passed by the Settlement Department were without jurisdiction and void ab initio, furnishing no legal basis for the right claimed by the contesting respondents. Viewed in this context according to the learned counsel the order of the Deputy Custodian was in furtherance of substantial justice and was therefore, not liable to be interfered with by the High Court in its constitutional jurisdiction. According to his submission in view of Article 4(2) (vii) of the Enemy Property (Custody and Registration) Order, 1965 the Custodian enjoyed vast powers for the purpose of transfer of enemy property. Proceeding further he submitted that the Central Government, in the policy letter in question, dealt with a specific property and directions given therein did not constitute a complete code for the disposal of enemy banks properties. In any case besides categories "A", "B" and "C"; there were other categories of occupants mentioned therein like unauthorised occupants.

19. It may at once be stated that the subject property in this case was admittedly enemy property within the meaning of sub‑Rule (4) of Rule 169 of the Defence of Pakistan Rules, 1965. This property was vested in the Custodian of Enemy Property by the Central Government under clause (b) of sub‑Rule (1) of Rule 182 of the Defence of Pakistan Rules, 1965, vide Notification, dated 3rd September, 1968. Therefore, under Rule 182 of the Defence of Pakistan Rules, 1965, or Rule 185 of the Defence of Pakistan Rules, 1971, the Central Government exercised control and regulatory authority to provide for any incidental and supplementary provision as appeared to it to be necessary or expedient for the purpose of such vesting order. The over riding legal effect of the policy letter issued by the Central Government is beyond dispute. In this context the moot question for determination in this case is whether the properties of the Punjab Co‑operative Bank Limited were required to be disposed of by transfer in favour of transferees from the Settlement Department or also in favour of allottees from the Rehabilitation Department in whose favour neither P.T.O. nor P.T.D. was issued. The difficulty has arisen because of the use of the words "existing allottees" in the Policy letter. In the order of the Additional Custodian Enemy Property, dated 2nd January, 1981, the names of seven persons were mentioned for the purpose of transferring to them the portions in their occupations. In this order the proposed transferees were divided into two groups. Group (a) related to P.T.O.‑holders falling under category "B" and the names of the appellants were mentioned A in group (b) as allottees falling under category 'C'. The categories "B" and "C" apparently related to the Custodian's instructions contained in his letter, dated 8th March, 1979, (reproduced at page 9 above). A bare perusal of the aforesaid letter shows that these two categories related to P.T.O.‑holders and bona fide allottees from the "defunct Settlement Department". Therefore, on the language of the instructions no reference was made to allottees who had obtained their allotments from the Rehabilitation Department but had further not secured any order of transfer from the Settlement Department. Besides in the aforesaid letter in paragraph 1 clauses (a) to (c) unambiguously referred to P. T. Os. /P. T. Ds. issued by the defunct Settlement Department. Also in paragraph 2 in clauses (i) and (ii), the formal sale‑deeds were to be issued on receipt of the transfer price recovered from the Settlement Department or on the evaluation made by the Settlement Department. It is no doubt true that in the said clause (ii) the words "P. T. Os./allotment orders" are used. However, the High Court had assigned cogent reasons that the words "allotment orders" do not refer to allotments issued by the Rehabilitation Department. If the intention was as contended by the appellants, necessary machinery provisions for exclusion of portions covered by such allotments from those parts of the properties which were included in the P. T.Os. /P. T. Ds. would have been included in, the letter of the Custodian. In absence of such provisions it is difficult to hold that the intention was to exclude such portions from the transfer documents of P.T.O. and P.T.D.‑holders. To us it appears that the words "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.I 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 Policy 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.

20. The fact that orders or 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. As already observed the order of the Deputy Custodian Enemy Property even if passed after the application of conscious mind, being in excess of powers vesting in him is void and of no legal effect. The order of .the Deputy Custodian impugned in the Constitutional petitions cannot by any stretch be considered as a departmental construction of the policy letter. There is nothing in that order which indicates that any attempt was made by the officer concerned to interpret the provisions of the policy letter. It is only an exercise of power assumed by the officer. Therefore, the principle that departmental construction can be resorted to as an aid to interpretation is not attracted in this case. At any rate the construction is contrary to the manifest intention of the policy maker as incorporated in the letter. For all these reasons I am of the view that the High Court was right in holding that the allotments issued under the Rehabilitation Laws did not fall within the purview of the Policy letter in question.

21. It remains to consider the effect of cancellation of P.T.Os. and P.T.Ds. of the contesting respondents by the Deputy Settlement Commissioner in exercise of his review powers. In the appeal filed by the Punjab Co‑operative Bank Limited, this Court held that the properties of the bank were not evacuee property and did not form part of the compensation pool. The Punjab Co‑operative Bank Limited v. The Republic of Pakistan and others P L D 1964 S C 616. But no direction was issued, as indeed such relief was not pressed, for the Government of Pakistan to issue a divestiture order which was within the discretion of the Government. As regards the P.T.Os. issued in favour of some persons after the judgment of the High Court in that case, it was held that these cannot be maintained and must be set aside. As regards allotment orders issued by the Rehabilitation Authorities this court observed that such authorities had power to make such allotments until the order of the Central Government had been made divesting the Custodian. Accordingly the possession of such allottees was allowed to remain undisturbed for the time being. The effect of the said judgment clearly, therefore, was that the transfer orders made by the Settlement Authorities in respect of the property stood cancelled. The review order passed by the Deputy Settlement Commissioner on 15th November, 1960, has been placed on the record and it shows that the same was passed in view of the fact that the case of title to this property was sub judice in the Supreme Court in the above‑mentioned appeal and, therefore, the learned officer thought that the Settlement authorities were not competent to have transferred any part of this property till the final decision of the case by this Court. Although the contesting respondents have contended that this review order was passed without notice to them, it seems that the validity or otherwise of this order is immaterial, for, in any case the property having been held to be non‑evacuee in nature any dealing with it by the Settlement Department was rendered null and void on the decision of this Court. The very basis for taking over the property under the Defence of Pakistan Rules was that the property under the Defence of Pakistan Rules was that the property was not evacuee property _ but was owned by an enemy firm within the meaning of Rule 169. Therefore, it can safely be presumed that the Government was aware of the fact that there could be no subsisting and valid P.T.Os./P.T.Ds. in respect of this property. 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 under made by the Settlement Department although such orders lacked legal sanctity. Besides the review order does not proceed on the basis of any defect in the entitlement of the persons concerned. Therefore, there is no substance in this contention.

22. The arguments advanced by the learned counsel for the Custodian and Deputy Custodian of Enemy Property have partly been dealt with above. The argument that the Policy letter issued by the Government created no right is irrelevant. As already pointed out the power of the Custodian to transfer enemy, property was subject to any direction given by the Government and therefore, the appellants had a right to remedy by invoking the constitutional jurisdiction of the High Court. No other argument advanced by the learned counsel has a material bearing on the controversy in this case.

23. In view of the foregoing discussion. I have come to the conclusion that the allotment orders who had secured allotment from the Rehabilitation Authorities were not entitled to the benefit of the Policy letter of the Government, dated 21st March, 1972 and, therefore, the order of the Additional Custodian of Enemy Property, dated 2nd January, 1981, transferring portions of the property 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 to the Custodian Enemy Property for passing the necessary orders. While, therefore, dismissing these appeals, it is ordered that 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 respondents.

S. Q. Case remanded.

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