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Writ Petition No. 460‑R of 1964, decided on 28th June 1968.
Art. 98‑Delay‑Not per se sufficient to dismiss petition under Art. 93.
Delay, per se is not sufficient to dismiss the petition under Article 98 of the Constitution. It is only when the petitioner is guilty of delay combined with some conduct on his part which acts as an estoppel against him, that the petition can be dismissed.
Mst. Noor Jehan Begum v. Ablul Majil Shaida and another Civil Review Petition No. K‑2 of 1967 fol.
------ read with Settlement Manul Old), pages 115 and 133‑‑‑Agreement of association‑ Settlement authorities have discretion not to accept a particular agreement of association.
It was argued that once the parties enter into an agreement of association, the Settlement authorities are functus officio and they have to proceed to transfer the property in terms of the association and they can not refuse to act on it subse quently:
Held, admittedly, the normal practice is that an association is not acted upon, unless it is formally accepted by the Settlement authorities. This statement is further supported by a Memo., dated 7th March 1960, published at page 122 of the told Settle ment Manual which says that the Additional Settlement Commissioner has the power in exceptional and deserving cases to allow withdrawal, modification or replacement of an associa tion agreement. This Memo. clearly shows that even after an agreement of association has been accepted, it can be allowed to be withdrawn subsequently. It is thus clear in respect of accepted agreements of association that they can: be withdrawn subsequently. If that is so, there can be no doubt about the proposition that the Settlement authorities have the discretion not to accept a particular agreement of association, at the tire that it is filed.
It is within the discretion of the Settlement authorities to permit an agreement of association and it is also within their power in proper proceedings to cancel it.
Muhammad Siddiq, etc. v. Chief Settlement and Rehabilitation Commissioner, etc. P L D 1965 S C 123 and Ch. Ghulam Yasin v. Siraj Din Civil Revision No. 132 of 1964 ref.
Syed Muhammad Saeed v. The Chief Settlement Commissioner and others Civil Petition for Special Leave to Appeal No. 47 of 1963 rel.
S. 20 read with Settlement Manual (Old), page 122‑Jurisdiction or--Settlement Commissioner in matters of association‑Order parsed by Additional Settlement Commissioner in exercise of his powers to permit withdrawal, modification or replacement of an agreement of association vested in him by Memo. Published at page 122, Settlement Manual Old Held revisable by Settlement Commissioner under S. 20.
It is true that the question of the acceptance or rejection of an association deed is primarily to be decided by the Deputy Settlement Commissioner. His order is appealable to the Addi tional Settlement Commissioner. In case the Deputy Settlement Commissioner accepts an agreement of association, the other party can go in appeal against the order of acceptance to the Addi tional Settlement Commissioner. Thus the Additional Settlement Commissioner has the appellate jurisdiction saver the question of acceptance of an agreement of association. However, if certain party was unable to appeal against such art order, the Additional Settlement Commissioner is empowered to interfere with that acceptance, by the Memo. published at page 122 of the Settlement Manual, wherein he has been allowed to permit the withdrawal, modification or replacement of an agreement of association. Evidently, if he exercises any of the above powers, it will be by nears of an order and that order will be revisable by the Settlement Commissioner under section 20 of the Act.
The revisional power givers to the Settlement Commis sioner is so vast that not only the orders passed in regular oases can be questioned, beat also the orders passed in any proceedings can be interfered, on any ground relating to their correctness, propriety car legality. The, acceptance or rejection of an agreement of association and permission or refusal for withdrawal thereof can be questioned in revision on grounds of correctness and propriety, apart from the grounds of legality. Therefore, the scope of jurisdiction, in revision, of the Settle ment Commissioner its a matter like that of acceptance, rejection, etc. of agreement is very wide, particularly when its propriety can also be gone into icy the Settlement Commissioner.
Syed Munir Hussain assisted by Pir Aslam Qureshi for Petitioner.
Malik Saeed Hasan for Respondent No.1.
Nemo for Respondent No. 2 on (29‑5‑68).
Sardar Hidayat Ullah Khan, S. C. (Legal) (on 30‑5‑68, 31‑5‑68 and 6‑6‑68) to produce the Settlement Files for perusal of the Court.
Dates of hearing : 29th, 30th and 31st May, 6th and 14th June 1968.
Haji Ghulam Hassain, resident of Karachi, claims, by means of this writ petition, the transfer of house No. 152, Chachi Mohalla, Rawalpindi, on the basis of association with Hamid Hassan Khan, respondent No. 1 (hereinafter called the respon dent) who, admittedly, was the person initially entitled to the transfer of the said house, under the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958. The respondent had tiled an N. C. H. Form for the transfer of the house. Before the house could be transferred to him, he entered into an agreement of association with the petitioner on 29th July 1960 (Annexure A'). This agreement of association, undoub tedly, mentions that the respondent agreed to transfer his rights in the said house to the petitioner. But it is absolutely silent about what was the consideration for this so‑called agreement to transfer the rights in the property.
2. It is claimed in the writ petition that on 1st August 1960, the respondent wrote a letter (Annexure B') to the Deputy Settlement Commissioner, Zone No. 2, informing that officer that the said respondent, according to a deed of association, had forfeited all his rights in the disputed house and that the value of the said house be deducted from the compensation book of the petitioner and the P. T. O. should also be issued to him. It is mentioned in this letter that there were no outstanding arrears of rent against the respondent. The compensation book was mentioned to be Ding in the office of the Deputy Settlement Commissioner, Zone No. 1, meaning thereby that the compensa tion book had not yet been filed either with the agreement of association or with this application (Annexure B'). It is pertinent to note that in this application, there is absolutely no mention of the fact that the house has already been transferred to the respondent. However, it is mentioned that he had applied for its transfer on 18th August 1959. It appears that on 1st August 1960, after this application was submitted, an order was passed by the Deputy Settlement Commissioner, transferring the house to the respondent (Annexure C'). This order does rot make any mention of either agreement of association or of the letter Annexure B') sent by the respondent, Nothing has been placed (on the record to show that the agreement of association was either placed on the record of the Deputy Settlement Commis sioner before 1st August 1960, or that it was allowed or accepted. by the Deputy Settlement Commissioner before the passing of the order of transfer in favour of the respondent. A notice of transfer and for payment of price, in the form of Appendix IX, was issued to the respondent. In this notice it was mentioned that a decision had been taken to transfer the house to the respondent and he was directed to inform the office, on or before 10th August 1960, the mode in which he wanted to make the payment of Rs. 20,976, which was the transfer price. He was also asked whether or not he wanted to associate with any claimant. This appendix appears to be dated 29th July 1960, (at the end of it) but in the heading portion thereof, the date mentioned is 1st August 1960. I take the correct date as 1st August 1960. 29th July 1960, appears to have been mentioned by some mistake, either at the time of preparation of the appendix or at the time of the preparation of its copy, which is Annexure D'. In pursuance of this notice i e. Appendix IX, the respondent is said to have intimated the Deputy Settlement Commissioner, on 10th August 1960, that he had already submitted an association deed on 1st August 1960; and that according to the said deed, the entire price was to be adjusted from the compensation book of the petitioner, who will be the sole proprietor of the house; and that, therefore, the P. T. O. may be issued in favour of the petitioner, whose compensation book, it was asserted in this intimation, was being filed on that day i.e. 10th August 1960. This intimation, in original, has been filed by the petitioner as Annexure E'. It may be mentioned here that, according to the respondent, the intimation (Annexure E') is a forgery, and that he never signed it. The P. T. O. of the property was issued in favour of the petitioner on 17th November 1950 (Annexure F'). Through this P. T. O. it is claimed, that the entire transfer price was adjusted from the compensation book of the petitioner.
3. After the issuance of the P. T. O. in favour of the peti tioner, the respondent challenged it, on the basis that the respondent had been victim of fraud and requested that the P. T. O. be cancelled; aced that he would himself pay the transfer price. This request of the respondent was turned down by the Additional Settlement Commissioner and an intimation to that effect was sent to the respondent on 23rd February 1960 (Annexure G'). The respondent then filed revision petition before the Settlement Commissioner, which was accepted on 26th November 1962, by Ch. Sultan Muhammad Khan (Annexure H'). It was held that the agreement of association was premature and without considera tion. The order of the Settlement Commissioner, according to the petitioner, was, in fact, originally that of dismissal. However, the allegation is that the office staff of the Settlement Commissioner substituted an order of acceptance i.e. Annexure I' for the original order of dismissal. In support of this allegation, letter dated 4th November 1963, from the learned counsel who conducted the case before the Settlement Commissioner, has been filed as Annexure I'. Aggrieved by the order of the Settlement Commissioner (Annexure 'H'), the petitioner filed the present writ petition on 28th November 1963, seeking the avoidance of the said order as being illegal and without lawful authority.
4. The respondent has raised two preliminary objections, namely, that the impugned order having been passed on 26th November 1962, and the petition having been finally refiled (after objection), in the High Court in 1964, late by more than a year and a half, it should be dismissed on the ground of laches; and that the respondent having paid the entire money and having obtained the transfer deed, no relief should be granted to the petitioner who, by his conduct of sleeping over the matter, was responsible for the respondent having deposited that amount. In facts, the respondent has asserted that he had agreed to transfer his rights to the petitioner only on two conditions i.e.
(i) That he was to reside in the house, without paying the rent, for a period of three years commencing from the date of the P. T. O., and
(ii) that he would receive a sum of Rs. 3,000 from the petitioner.
These terms, according to him, were to be entered in a separate agreement which was to be executed along with the agreement of association. The last date for that purpose being a Sunday; in a hurry, this separate agreement could not be drafted along with the agreement of association; and on the assurance by the petitioner in this behalf, he (the respondent) signed the agreement of association (Annexure A') which was filed on 1st August 1960. "Thereafter, according to the respondent, the petitioner, due to his fraudulent intents, failed to execute this separate agreement; and thus the respondent decided, as he put it, "to set aside the agreement of association since the considerations for which it wan given had failed'". He made an application on 12th August 1960, n to the Deputy Settlement Commissioner, praying that this agreement be cancelled (Annexure R‑1'). Thereafter, it is asserted that as application was made to the Additional Settlement Commissioner, in answer to which the respondent received a communication from the Deputy Settlement Commissioner (Annexure G') informing him that his application had beets rejected. This rejection, according to the respondent, was without giving him any opportunity of being heard. About Annexure E, it bas already been noted above, the respondents contention is that it was a forgery; and that lie never submitted this application.
5. The learned counsel for the petitioner has urged the following main points in support of the petition:‑‑
(i) that the Settlement Commissioner had no jurisdiction to nullify an agreement of association, which had already been accepted and acted upon. It was only within the jurisdiction of the Civil Courts that the respondent could be afforded a relief on the basis of the alleged fraud having been committed by the petitioner;
(ii) that even is the Settlement Commissioner had jurisdiction, his finding that the agreement was premature and without consideration, was incorrect; and
(iii) in the alternative, the learned counsel submitted, that a premature agreement without consideration could be acted upon by the Settlement authorities.
6. The learned counsel for the respondent has, on the contrary, submitted that the Settlement authorities have the exclusive jurisdiction to accept or not to accept an agreement of association; and that their findings in respect of the validity of the agreement on the basis, as in the case, of its being premature and without consideration, could not be assailed in wait jurisdiction. It is further contended on the respondent's behalf that the remedy for the petitioner, after the Settlement Commissioner's final order, dated 26th November 1962 (Annexure H'), was by way of a civil suit for damages on account of breach of contract; and that writ jurisdiction could not be availed for enforcing such contract. In the alternative, according to the learned counsel, even if the agreement of association was valid, it was revoked by the respondent by his letter, dated 12th August 1960; and this revocation having been accepted by the Settlement Commissioner, the petitioner can make no grievance in that behalf in writ Jurisdiction. On the validity of the agreement, It was vehemently asserted that the respondent was the victim of fraud; anti, in any case, the agreement was premature and without consideration and should not be given effect to in the discretionary jurisdiction under Article 98 of the Constitution.
7. There is no substance in any of the preliminary objection raised by the respondent. I have noticed that the writ petition was initially filed on 28th November 1963. The impugned order is dated 26th November 1962. It is admitted by the learned counsel for the respondent that the petitioner had challenged the existence of the order of the Settlement Commissioner (Annexure H') before the Deputy Settlement Commissioner, who passed an order 2nd April 1963 (Annexure A/A'), declining to interfere in the matter. I have also noticed that at the admission stage, this matter was pointed out to the learned counsel appearing for the petitioner, where-after an explanation was submitted in the form of an application under section 5, Limitation Act, accompanied by an affidavit and several other documents showing that the delay was not intentional. I have perused these documents and am satisfied that the petitioner was not guilty of inordinate delay in filing the writ petition. In any case, I do not think that the delay, per se is sufficient to dismiss the petition under Article 98 of the Constitution. It is only when the petitioner is guilty of delay combined with some conduct on his part which acts as an estoppel against him, that the petition can be dismissed. I am supported in this view by the judgment of the Supreme Court in Mst. Noor Jehan Begum v. Abdul Majid Shaida and another (Civil Review Petition No. K‑2 of 1967, decided on 10th April 1957).
In view of the above decision on the first preliminary objection, the second preliminary objection loses its force to a considerable extent, It is true that the respondent bas paid the price. However, it appears that it was his voluntary act, not due to any conduct on the part of the petitioner which may have led the respondent to make this payment. At least, in spite of my asking, nothing was alleged at the bar in this connection. Therefore, I hold that the present petition cannot be dismissed on the basis of either of the preliminary objections.
8. The learned counsel for the petitioner vehemently argued that the Settlement Commissioner had, in fact, passed an cider of dismissal of the revision petition of the respondent; but it was due to some maneuvering in the office that that order vas substi tuted by the present order (Annexure H). In the petition there is absolutely no attack on the conduct of the learned Settlement Commissioner. It is necessary to reproduce the allegation made, In this connection, in paragraph No. 11 (c) of the petition:‑
"That the alleged order dated 26‑11‑62 is a forged order. Really the revision petition was dismissed and the order of dismissal was announced in the presence of the counsel for the petitioner, whose letter dated 4‑I1‑63 is enclosed herewith as Annexure I'. This letter clearly states that real order was one of dismissal."
Earlier in para. 8, it is stated," . . . Respondent No. 1. . . . . managed with the lower settlement staff, so as to substitute an order of acceptance". In order to satisfy myself, I Sent for the Settlement records of this case and have seen the order of the Settlement Commissioner, dated 26th November 1962 (Annexure 'H') which is found in the file of the Settlement revision petition. This order is shown to bane been signed by Ch. Sultan Muhammad Khan. The learned counsel appearing for the petitioner saw the order himself; and after having carefully examined it said that he could not say anything about it'. Before making this statement, be showed that order to Ejaz Bani Mirza, the attorney of the petitioner. In view of this, there is no need of any further discussion on the point. The files having been produced before me by Sardar Pidayat Ullah, Settlement Commissioner (Legal), I presume that they have come from proper custody; and the order placed on the file, which appears to have been signed by the Settlement Commissioner, must have been signed by him in the normal course of his official business. The learned counsel tried to rebut this presumption by referring to a letter of Mr. M. S. Mahbub, the learned counsel who appeared and for the petitioner before the Settlement Commissioner. This letter indicates that the order of the Settlement Commissioner vas substituted subsequently. It does hot show that it was done by the Settlement Commissioner. "The allegation in the writ petition is that something was done by the staff. The reading of the order shows that conscious mind of some officer was applied in so far as the circumstances of the case are concerned Therefore, I presume that this order seas passed by the Settlement Commissioner himself. If that is so, the allegation of anything having been done lay the staff of the Settlement Commissioner, loses all force. About the letter (Annexure 'I') of Mr. M. S. Mahbub, Advocate, I do not say that what ha has said, is not true; but at the same time the circumstances as alleged in the petition do not find any support from any material not even from this left. Therefore I think that tile learned counsel may have misunderstood the Settlement Commissioner or it is possible that in the rush of work some tether dismissal order by the Settlement Commissioner may have been mis-understood by the learned counsel. My above conclusion is further supported by the circumstance that the petitioner challenged the order of the Settlement Commissioner on the basis of the fact that it was never passed against hire. An enquiry appears to have been held and the matter came up before teat Deputy Settlement Commissioner, who decked this question against the petitioner by his order, dated 2nd April 1963 (Annexure 'A/A'). This order was never challenged in appeal or revision, nor has it been specifically challenged in this writ petition. Therefore, I presume that the petitioner felt satisfied with that order. In view of the above discussion, I find no substance in the allegation that the order of the Settlement Commissioner against the petitioner was, in fact, never passed.
9. On merits, I am unable to agree with the learned counsel that the Settlement Commissioner had no jurisdiction to deal with the matter of association and that it was exclusively for the Civil Courts to have decided this question. The learned counsel referred me to a Press Note, dated 13th February 1961.1 and to w Memo dated 15th April 1960, painted at pages 115 and 133 respectively, of the Old Settlement Manual. The following sub para. in the Press Note has been particularly relied:‑
"(1) A claimant, non‑claimant, displaced person or a local to f whom any property has been transferred or who is found entitled to the transfer of any property and who is unable to pay the amount due from him in cash, may associate any claimant for payment of the transfer price and mage him a shareholder in the ownership of the property transferred to him. He may, if he so desires, surrender his rights completely in favour of the associating claimant in which case the claimant so associated will become full owner of the property."
The learned counsel also relied on the following sentence in the Memo. :‑
"In the case of N. C. H. and K. N. C. H. Forms, preference should be given to the non‑claimant displaced persons who propose to associate claimants with them."
It is contended that once the parties enter into art agreement of association, the Settlement authorities are functus officio and they have to proceed to transfer the property in terms of the association and have no power to reject the association; nor they can refuse to act oft it subsequently. On my enquiry as to what art the statutory basis for the concession of association, both the learned counsel appearing for the parties stated that there is nothing substantive, neither in the Act nor in the Settlement Scheme No. 1. However, some indirect references have, according to the petitioner's counsel, been made in paras. 29(2) and 32 of the Scheme. It is also submitted that similar indirect reference can be found in the fortes Appendix IX, Appendix X and Appendix XII. The first two forms are in respect of notice of transfer and demand of payment of price and the last‑mentioned appendix is the form of P. T. O. I do not agree with the learned counsel for the parties. I have noticed that apart from the above references, payment by association has specifically been allowed in para. 33 of the Scheme. Initially, it appears the association could not be without a share of the associating claimants in the property; but subsequently it was ordered with the approval of the Central Government, that the association could take place without any share of property going to the associates (P. 134 of Old Settlement Manual). I may also refer to para. 44 of the Scheme which empowers the Chief Settlement Commis sioner to make amendments in the Scheme. This power, I find, has been exercised by him several tinges on the subject of Association by means of issuing orders and memoranda with the approval of the Central Government. The present para. 33 of the Settlement Scheme was substituted for the original one on 13th October 1959. A detailed procedure to regulate Associations (I have used the words of Chief Settlement Commissioner) was provided by means of Press Note, dated 13th February 1960, published at page 115 (Old Settlement Manual), para. 1 of which I have already quoted. It was issued with the previous approval of the Central Government. Press Notes and memos, printed at pages 122, 126, 133, 134, 147, 157. I63 and 168 (Old Manuals were issued from time to time to further modify and regulate the procedure. I have also noticed that there are various other similar instructions issued from time to time culminating in more concrete directions in respect of association in 1966‑67 They are printed in the commentary on the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), First Edition and Supplement by M. A. Latif. My reading of the whole subject shows that the Settlement authorities have so far accepted and acted upon the practice of the transferees associating with the claimants for the purpose of making the payment of the price. I do not find any statutory bar to that practice, contained in any of the provisions of the Act. Moreover, the parties in this case themselves rely on the one or the other Press Notes or Memos. and also on the practice referred above. From this I conclude that the Settlement authorities and the Government, in order to facilitate the payment of price of transferred properties, allowed the transferees to associate with. claimants.
It does not however mean that the Settlement authorities were, in all cases, bound to accept the association. In proper cases, they could refuse to accept or act upon as association, e g. in case when the transferee is a widow, or an invalid and tine association agreement is silent or is tricky about the consideration, the Settlement authorities may refuse to accept such an association. There are many cases where the Settlement authorities refused to accept the association. Admittedly, the normal practice is that an association is riot acted upon, unless it is formally accepted by the Settlement authorities. This statement is further supported by a Memo, dated 7th March 1960, published at page 122 of the Old Settlement Manual which says that the Additional Settlement Commissioner has the power in exceptional and deserving eases to allow withdraw modifica tion or replacement of an association agreement. This Memo, has been interpreted and applied by the Supreme Court in a case which I will refer to tit tale later part of this discussion. This Memo is, is fact, art amendment to the Press Note, dated 13th February 1960 (page 115 of Old Manual relied upon by the learned counsel for the petitioner and referred by me alcove. He, however, did not point out this amendment during the arguments, nor was it mentioned by the learned counsel for the respondent. This Memo. clearly shows that even after an agreement of association has bees accepted, it can be allowed to be withdrawn subsequently. It is thus clear in respect of accepted agreements of association that they can be withdrawn subsequently. If that is so, these can be no doubt about the proposition that the Settlement authorities have the discretion not to accept particular agreement of association, at the time that it is filed.
In addition to what I have said above, one thing is to be kept in mind that in matter of transfer of the property and the realisation of its price, the Settlement authorities are very vitally interested. Therefore, they being, absolutely necessary third party, it cannot be imagined that without the concurrence or acceptance of an agreement of association by the Settlement authorities, it cats be operative in so far as the transfer of a property is concerned.
10. This leads to the question of the jurisdiction of the Settlement Commissioner in the matter of association. It is true that the question of the acceptance or rejection of an association deed is primarily to be decided by the Deputy Settlement Commissioner. His order is appealable to the Additional Settlement Commissioner. In case the Deputy Settlement Commissioner accepts an agreement of association, the other party can go in appeal against the order of acceptance to the Additional Settlement Commissioner. Thus the Additional Settlement Commissioner has the appellate jurisdiction over the question of acceptance of an agreement of association. However, if certain party was unable to appeal against such an order, the Additional Settlement Commissioner is empowered to interfere with that acceptance, by the Memo. published at page 122 of the Settlement Manual referred above; wherein he has been allowed to permit the withdrawal, modification or replacement of an agreement of association. Evidently, if he exercises any of the above powers, it will be by means of an order and that order will be revisable by the Settlement Commissioner under section 20 of the Act.
Subsection (3) of section 20 empowers the Settlement Commissioner to "call for the record of any case or proceeding under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such an order". The revisional power given to the Settlement Commissioner is so vast that not only tile orders passed in regular cases can be questioned, but also the orders passed in any proceedings can be interfered, on any ground relating to their correctness, propriety or legality. The acceptance or rejection of an agreement of association and permission or refusal for withdrawal thereof, can be questioned in revision on grounds of correctness and propriety, apart from the grounds of legality. Therefore, the scope of jurisdiction, in revision, of the Settlement Commissioner in a matter like that of acceptance, rejection, etc. of agreement is very wide, particularly when its propriety can also be gone into by the Settlement Commissioner. I, therefore, hold that the Settlement Commissioner had the jurisdiction to upset the order of acceptance of the agreement of association by the Deputy Settlement Commissioner in this case; though the case of the respondent is that the Deputy Settlement Commissioner had never accepted the agreement of association by any order. He had also the power to interfere with the order of the Additional Settlement Commissioner communicated by the Deputy Settlement Commissioner (Annexure G'), in so far as the Additional Settlement Commissioner refused to allow the withdrawal of, and failed to cancel, the agreement of association in this case. Looked at from any angle whether it is treated as a revision against the assumed acceptance by the. Deputy Settlement. Commissioner or refuel to allow the withdrawal by the Additional Settlement Commissioner of the agreement of association, the Settlement Commissioner had full power to interfere in revisional jurisdiction.
11. The learned counsel for the petitioner cited the case of Muhammad Siddiq, etc. v. Chief Settlement and Rehabilitation Commissioner, etc. (PLD 1965 SC 123), seeking an indirect support for the proposition that the Settlement authorities are bound to accept the agreements of association, because the associates have vested right to be heard in the matter of transfer of property. The following observations by their Lordships of the Supreme Court were particularly referred: ‑
"It is plain that before the impugned order was passed by the Settlement and Rehabilitation Commissioner the second and third appellants who had been associated with the first appellant, with the requisite permission of the Settlement authorities themselves, had acquired a vested right in the property in question and had been issued a P. T. O. in their favour, jointly with the first appellant. Without giving them any notice or an opportunity to be heard, the Settlement and Rehabilitation Commissioner could not have interfered with their property rights."
This Court is bound by the law laid down by the Supreme Court. Moreover I am in perfect and respectful agreement with the above observations. The law enunciated in the above observations is that the associates have right to be heard by the Settlement authorities, before they pass any order adverse to them, in respect of their rights created by the transfer of property in their favour by means of P. T. O. Apart from this rule, the Supreme Court has also assumed that the association, if entered into with requisite permission of the Settlement authorities, creates a vested right in favour of the associate, and further that the Settlement authorities can interfere with that acceptance only after giving full opportunity of hearing to the associate. What I have held in this case, is that it is within the discretion of the Settlement authorities to permit an agreement of association and it is also within their power in proper proceedings to cancel it. In the present case, there is no complaint at all that the petitioner was not heard by any Settlement authority. Therefore, the observations, quoted above, do not support the petitioner; rather they tend to support the respondent's case in so far as the discretion of, and interference by, the Settlement authorities in matter of agreement of association, is concerned. I am supported in this conclusion by the observations of their Lordships of the Supreme Court in another case Syed Muhammad Saeed v. The Chief Settlement Commissioner and others (Civil Petition for Special Leave to Appeal No. 47 of 1963, decided on 7th March 1963). Syed Muhammad Saeed (petitioner in that case) had entered into an agreement of association with Syed Ashiq Hussain (respondent in that case). The Settlement Commissioner, on a subsequent application by Ashiq Husain, allowed him to withdraw from the association, in spite of the fact that proper application for the filing of the agreement of association had been made earlier. The order of the Settlement Commissioner was challenged on the ground that there was a concluded agreement between the parties and the Settlement authorities should not have permitted the withdrawal. Their Lordships did not agree with this contention and observed as follows:‑
We are, however, unable to agree with him that the Settlement authorities could, in any way, be bounded by the agreement entered into between the petitioner and Ashiq Hussain, as there could possibly be no privity between the contracting parties and a person who is not a party to a contract.
It is clear from the Memorandum No. 4241‑PI‑Reh‑60, dated the 7th March 1960, that the Settlement authorities have the power to allow a person to withdraw or modify an agreement of association but such withdrawal should tae permitted only in exceptional and very deserving cases. In the facts and circumstances of the present case, however, it could not be said that tie withdrawal had been permitted illegally or even improperly.
The analogy sought to be drawn by the learned counsel from the provisions of sections 202 and 203 of the Contract Act is, in no way, apposite and has no bearing on the question raised in the present case.
Whatever rights the petitioner may have against Ashiq Hussain to enforce his agreement has nothing to do with the powers of the Settlement authorities in permitting withdrawal."
(The underlining of some observations of the Supreme Court in the two cases, cited above, is mine).
In view of the above clear exposition of the legal position, it is further evident that tile Settlement Commissioner had the jurisdiction to interfere in the present case.
12. The learned counsel for the petitioner invited my attention to some of the provisions of the Contract Act, the Transfer of Property Act, and the Specific Relief Act, in so far as the question of tie validity and enforcement of an agreement or a contract is concerned, and also in respect of whether or not an agreement is a, particular case is premature or without consideration. In view of my findings on the question of the jurisdiction of the Settlement Commissioner and on the question of the remedy to an aggrieved party after the decision by the Settlement authorities, as resolved by the Supreme Court in the lass‑quoted observations, I do not think it necessary to discuss those provisions. If the petitioner has any grievance on the basis of the agreement of association and is supported by those provisions, he as pointed out by the Supreme Court, may have home rights against the respondent to enforce tars agreement. But that has nothing to do with the "powers of the Settlement Authorities in permitting the withdrawal". My view on this question as expressed above, is further strengthened by the provisions of section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which is reproduced :‑
"The provisions of this Act and any rule or scheme or order made there under shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of such law."
Apparently, the decisions under the Settlement Law are pro tected, in spite of the fact that, in same cases, they may be inconsistent with other legal provisions or legal instruments. By that I should not be understood to have held that the Settlement Authorities are not to be guided by the principles contained in various laws, in so far as they do not clash with the provisions of the Settlement Laws. Therefore, on this reasoning as well, the order of the Settlement Com missioner in revision cannot be held to be without jurisdiction. The learned counsel for the petitioner also cited Ch. Ghulam Yasin v. Siraj Din, a decision in Civil Revision No. 132 of 1964, a note whereof is found in 1967 Law Notes (N. U. C.) Lahore 25. A learned Jude of this Court boas pleased to hold in a civil revision, filed against the assumption of juris diction by the Civil Court, in a case of avoidance of an agreement of association that the Civil Court laud jurisdiction in the matter. The detailed facts of the case are not stated in the report. However, the observation of the learned Judge that the jurisdiction of the Civil Courts ice not barred by section 25 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, is in line with the decision of the Supreme Court in Syed Muhammad Saeed's case, referred above. Therefore, in my view, the case cited by the learned counsel does not help him. I have held that the Settlement Commissioner had the Jurisdiction in revision to interfere with the question of acceptance art the agreement of association That however, as observed by their Lordships of the Supreme Court, does not mean that the petitioner is left with no other remedy in so far as his right to seek redress against the respondent in respect of the agreement of association, if found to be valid, is concerned.
13. In view of my finding this the Settlement Commis sioner had the jurisdiction in revision to look into and interfere in respect of correctness propriety or legality of an order or action by the Subordinate Settlement Authorities it becomes unnecessary to go into the other questions raised by the learned counsel ; that the agreement was acted upon that it was not premature ; that it was with consideration ; and that, in any case, if these qualifications were not existing still the agreement could be operative. These arguments have no force because when the Settlement Commissioner is empowered to interfere on the basis of correctness and propriety, it means that his findings on these questions are within the field of his discretion and view of the facts involved in the case, and the High Court normally does not interfere in such like decisions of the Settlement Authorities. However as the learned counsel did raise these questions, it will not be inappropriate to briefly deal with them. I do not agree with the learned counsel that the agreement of association was irrevocably acted upon by the Deputy Settlement Commissioner.
The facts, as enumerated above, clearly show that the agree ment of association was executed before the order of transfer was passed in favour of the respondent There is absolutely no mention of this agreement of association in that order. There is no everment or proof of the fact that there is any separate order of acceptance of this agreement of association by the Deputy Settlement Commissioner either before the transfer order or after the transfer order. The entries in form Appendix IX (Annexure D') are not very helpful. They only show that the property was transferred to the respondent and he was asked to state as to what will he his mode of payment of the price. This in a way, further shows that till the issue of this notice (form), the agreement of association had not been accepted. The authenticity of the application, by the respondent (Annexure E') which is dated 10th August 1960, has seen vehemently denied by the respondent and he has also disowned the signatures on this application. There is an endorsement by an Assistant Settlement Commissioner on the application which is also dated 10th August 1960. It notes that the applicant had already filed the association deed; but at the same times says : "Adjust under rules and prepare P. T. O. if Deed is in order". The learned counsel for the petitioner alas drawn my attention to a copy of the statement of the respondent, dated 7th June 1962, before the Rent Controller (Annexure E/1') which shows that the respon dent. at one time, admitted that this application was signed by him but he explained that the writing in the margin of this application was written by him and that he had kept this only for his own record; and it was subsequently stolen by the petitioner. No further indication is available whether or not this application was, in fact, handled by the Settle ment authorities or was presented before the Settlement Authorities. Moreover it is most surprising to note that the application with endorsement of an Assistant Settlement Commissioner, which should have been on the Settlement file, has been produced in original, by the petitioner, with the writ petition. May be that this application after having been drafted, was never filed or, if filed before it could be acted upon was somehow withdrawn by the parties. I, however, find a striking similarity between the signatures on this application and the specimen signatures given by the respondent in Court which I have marked is 'C/5'. As the filing, existence and genuineness of this application has been vehemently contested by the respondent, and this being a question of disputed fact, I would not give a finding one way or the other. However one fact is clear that no order of the Deputy Settlement Commissioner is found even on this application, accepting or acting upon the agreement of association. The endorsement of the Assistant Settlement Commissioner is only conditional, viz., that the agreement is to be acted upon if found in order. There is no averment or proof of the fact that there was any conscious application of mind by any Settlement Authority up to 17th November 1960, showing that this agreement was ordered to be accepted or acted upon.
However, on 17th November 1960, a P. T. O. was issued in favour of the petitioner, which fact alone and by itself is not sufficient to show that at any time the Deputy Settlement Commissioner had applied his conscious mind on the facts of this case ; because by then, admittedly, the respondent had, on 12th August 1960, challenged the agreement of association before the Deputy Settlement Commissioner by means of application (Annexure R/l'); which fact has not been con troverted by any counter‑affidavit car rejoinder. After this it appears that the respondent approached the Additional Settlement Commissioner also who declined to interfere ; because, according to him, the agreement had already been implemented. The order passed by the Additional Settlement Commissioner has not been produced by any of the parties, from which it could be seen as to whether he applied his mind to the questions raised by the respon dent and which were subsequently decided by the Settlement Commissioner. However, it appears from the communication (Annexure G'), that the Additional Settlement Commissioner's refusal to interfere was based on an untenable ground. His power to interfere either in appellate jurisdiction or by virtue of the Memo. printed at page 122 of the Old Settlement Manual, could be exercised in spite of the implementation of an agreement of association ; because as pointed out in an earlier part of this judgment, it was after the implementa tion that in exceptional and deserving cases the Additional Settlement Commissioner was empowered to allow withdrawal, modification or replacement of agreements. It appears that the Additional Settlement Commissioner did root understand the scope of his powers. Thus that order itself is of no help to the petitioner. In any case, that order has been set aside by the order of the Settlement Commissioner. The above discussion shows that the respondent had challenged the agree ment of association before the issuance of P. T. O. and before it had, in any way, been accepted or acted upon by the Settlement Authorities ; and in this view of the matter also, the order of the Settlement Commissioner is unexceptionable.
14. Next the learned counsel contended that the agreement of association was not premature. I do not agree with him. The agreement of association (Annexure A') was executed on 29th/30th July 1960, and the order of transfer is favour of the respondent was passed on 1st August 1960. Therefore, prima facie, the agreement of association was premature. Tire application, dated 1st August 1960 (Annexure B') appears, from the intrinsic evidence contained therein, to have been filed before the order of transfer was passed. Therefore, it has no value, at least not more than that of the agreement of association. The question of the application, dated 10th August 1960 (Annexure B'), I have already discussed, is controversial on factual basis. Therefore, I agree with the Settlement Commissioner that the agreement of association: was premature. However, my reading of the Press Note published at page 115 and the memo. published at page 133 of the Settlement Manual, shows that there was nothing objectionable in the parties entering into an agreement of association before actual transfer of the property. Such an agreement could not be treated as more than a proposal for tine consideration of the Settlement Authorities, as is clearly mentioned in the Memo., dated 15th April 1960. It could be accepted as an agreement of association by the Settlement Authorities only after a party to it is found entitled to the transfer" by the Settlement Authorities. This is clear from the reading of Para. 1 of the Press Note dated 13th February‑ 1960, which para. has been quoted in the earlier part of the judgment. This, however, does not mean that the Settlement Commissioner had no jurisdiction to cancel an agreement of association on the basis of its being premature, if in a particular case that circumstance strikes him to be of a consequence. It is his field of jurisdiction and the High Court will not interfere.
15. The contention of the learned counsel for the petitioner that the agreement of association was not without considera tion, is also without any force. The agreement of association (Annexure A') the application of the respondent (Annexure B') and the disputed application said to have been filed by the respondent (Annexure 'E') which, according to the learned counsel for the petitioner, constitute the whole agreement between the parties, are absolutely silent about what the respondent was to get as consideration from the petitioner for surrendering his rights in the property, which was to be transferred to him as of right. Undoubtedly, this amounted to a complete surrender and it is most unusual that nothing is said about the consideration. However, the petitioner has, in paragraph 11(b)(iii) at page 11 of the writ petition, mentioned the consideration for this agreement as only the free residence of the respondent for three years. Nothing more is alleged in the writ petition as having been offered or paid as consideration. The above consideration, it is, asserted in that paragraph, as good consideration. The case of the petitioner before the Settlement Commissioner was that tae only consideration for the agreement of association was the payment of Rs. 5,000 to the respondent which position was found by the Settlement Commissioner to be incorrect. The attorney of the petitioner in his statement recorded in this Court on 6th June 1968, stated that Rs. 5,000 was to be paid as consideration to the respon dent; but Rs. 4,000 was paid to him and the remaining Rs. 1,000 has not yet been paid, because the respondent refused to vacate the house on the issue of P. T. O. which according to him, was condition precedent for paying the remaining Rs. 1,000 to the respondent. This position runs counter to the position taken in the writ petition, wherein it is mentioned that the consideration was three years' free residence. My attention was drawn to the grounds of revision filed by the respondent in which the consideration mentioned is only three years' free residence; but in his written statement the consideration of Rs. 3,000 is also mentioned in addition to the free residence. The position which emerges from the pleadings of the parties at various stages, is that the payment of some money, whether it was Rs. 3,030 or Rs. 5,000, was to be made by the petitioner to trio; respondent in addition to three years' free residence for the respondent in the property in dispute. It is an admitted fact that soon after the issuance of the P. T. O. the petitioner started ejectment proceedings against the respondent and, in fact obtained an ejectment order against him on 23rd Mass 1962 (Annexure R/3). Therefore, admittedly, the condition of three years' free residence was flouted immediately after the issuance of the P. T. O, There is a lot of controvercy as to the factum of payment of money to the respondent as considerately. The Settle ment Commissioner has held that it was not paid. There is no sufficient material before me to give a definite findings one way or the other or hold that the finding of the Settlement Commissioner is incorrect. However, the assertion of the attorney of the petitioner is that an amount of Rs. 4,000 was paid to the respondent. I cannot accept this bare statement, particularly when it is not the case in the writ petition. Therefore, I have no option but to agree with the Settlement Commissioner that no consideration in terms of money has been proved to have been paid to the respondent, before the Settlement Commissioner interfered in this case. In view of the fact, that the consideration is not mentioned in the agreement of association and the fact that it is doubtful if any consideration was received by the respondent in lieu of the agreement of association, I am constrained to hold that the order of the Settlement Commissioner is unexceptionable on this score also. It may be mentioned heel that the Settlement Commissioner was constrained of another factor, as will, that the petitioner was a Government servant and was a disabled man. While looking into the propriety of certain proceedings or orders by the Settlement Authorities the factors which the Settlement Commissioner kept in view, are not, at all, improper. Therefore, I hold that the order of the Settlement Com missioner is neither illegal nor improper. In any case, while dealing with a matter under Article 98 of the Constitution, I am not the Judge of the propriety for which tire designated authorities under the Settlement Law are the proper forum; and when once they give a decision on the question of propriety, which decision is unexceptionable, the High Court will not interfere in its discretionary jurisdiction under Article 98 of the Constitution.
16. Before concluding this judgment, it may be mentioned that during the course of arguments, the learned counsel made a verbal application to file an affidavit of the respondent. The learned counsel for the petitioner opposed it on the ground that it was too late in these proceedings and it would not be possible for him to file a counter‑affidavit or further instructions from his client, who was in Karachi. In view of the objection of the learned counsel for the petitioner, I refused permission to the respondent's counsel to file the affidavit. Then the learned counsel for the respondent requested that the respondent be allowed to verify the written statement which inadvertently, could riot be verified at the time that was filed in the Court. No serious objection was raised against this request, which I allowed, and the respondent verified his written statement in Court on 31st May 1968, It may be mentioned here that a copy of this written state ment was received by the petitioner's counsel oat 26th October 1965, and no rejoinder to that written statement was put in.
It is also to be mentioned that the learned counsel for the respondent, with my permission, tiled certified copy, marked C/l', of older, dated 26th November 1962, which was applied on 29th November 1962, and delivered on 13th December 1962. The endorsement on this copy shows that it was prepared on 26th November 1962. Tire learned counsel explained that in those days, as soon as the Settlement Com missioner used to pass an order, copies of the order used to be prepared simultaneously. This according to him would show that the impugned order was passed on 26th November 1962, and its copies were immediately prepared, one of which was filed during the hearing and has been marked as C/1'. Whatever its worth, in my discussion of the subject, I have kept this document out of consideration, because sufficient notice thereof' was not given to the petitioner. Another copy was placed on the record which is certified and has bean marked as 'C/3'. It is the copy oaf as order of the Deputy Settlement Commissioner, dated 2nd April 1963. I have referred to this order in nay judgment. In fact, a copy of this order eras filed by the petitioner himself which has bean marked gas Annexure A/A wart the writ petition. The third document placed on the record is the copy of an application made by the petitioner on 5th February 1963, on which the order (Annexure C/3'‑ A/A') was passed on 2nd April 1963. This application is referred in the writ petition itself. Another copy, which appears to be an office copy of an application by the respondent and is dated 25th January 1961, addressed to the Additional Rehabilitation and Settlement Commissioner, (has been marked as C/4') was also placed on the file. This application shows some reasons for the request for the cancellation of the association deed. It is an uncertified copy and no reliance was placed on this application in the written statement. Therefore, I have kept it out of con sideration in my judgment.
It may also be mentioned that during the course of arguments, it came to rue notice that the special power‑of -attorney in favour of Ejaz Nabi Mirza, on the basis of which he film the writ petition on behalf of Haji Ghulam Hussain petitioner, raid not specifically empower him to file the writ petition. The learned counsel for the respondent tried to take benefit out of this circumstance. However the learn‑.d counsel for the petitioner explained:‑‑
(i) that the power‑of‑attorney could be read as giving the power to file writ petition in addition to the power for adjustment of the claim of the petitioner, by means of transfer of any property. He also argued that this was a valid power‑of‑attorney for filing the writ petition.
(ii) In the alternative, the learned counsel submitted that if the respondent had objected to this power‑of‑attorney in his written statement, the petitioner would have filed a fresh power‑of‑attorney or would have ratified the act of filing the writ petition by Ejaz Nabi Mirza. The ratification he explained, in the circumstances could not (immediately) be done on the objection being raised during the hearing of the writ petition.
The learned counsel for the petitioner offered to get a ratification or new power‑of‑attorney from the petitioner, if the case was adjourned for some time. I did not agree to the request of the learned counsel for the petitioner. However, I feel that no adverse conclusion can be drawn against the petitioner on this ground; particularly because the respondent did not raise any objection, in his written statement, to the power‑of‑attorney in favour of Ejaz Nabi Mirza.
17. In view of my discussion of all the contentions raised by the petitioner's counsel and the points involved in this case, I find no merit in this writ petition which is dismissed. There will be no order as to costs.
A. E. Petition dismissed.
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