The dispute giving rise to this writ petition relates to shop No. 4-C, Block-I, situate at Jahania, District Multan. The shop had been transferred on 28-11-1960 in favour of Muhammad Shafi, the present petitioner, against his N. C. S. Form No. 228. He entered into an agreement of association with Muhammad Din (respondent No. 2) on 30-11-1960, which agreement was filed with the Settlement authorities and was allowed on 26-3-1961 by the Assistant Accounts Officer. As no payment was made, the matter came up before the Deputy Settlement Commissioner on 30-4- 1970, who not considering the approval by the Assistant Accounts Officer to be sufficient, passed on the matter to the Additional Settlement Commissioner and the latter approved the agreement the same day. The Deputy Settlement Commissioner, however, without waiting for the order of Additional Commissioner, himself attended to the matter the same day and cancelled the agreement for the reason that it neither recorded the particulars of the compensation book in its body nor did it contain the reference of the amount involved. Ha, ordered that the transferee be asked to pay the amount in cash. Muhammad Din at this stage entered the scene by moving an application on 25-5-1970 for withdrawal of the notice issued to Muhammad Shafi and for permission to adjust the amount from his compensation book already deposited in 1965. The Deputy Settlement Commissioner, however, rejected his application on 18-6-1970. Muhammad Din agitated the matter in appeal, where upon it was remanded on 29-3-1971 with the direction that the Deputy Settlement Commissioner should pass an order for approving or rejecting the agreement with reasons as the period of 10 years had already elapsed.
2. The case of Muhammad Shag before the Deputy Settlement Commissioner was that mere submission of the deed of association would not amount to its acceptance, that there was no acceptance of the deed by a competent authority, that there was no entry recorded by a Deputy Settlement Commissioner that the deed had been admitted by him (Muhammad Shah) and that as such the Settlement Authority could not enforce the agreement on him. The Deputy Settlement Commissioner accepted the plea and by his order dated 25-7-1973, rejected the agreement.
Muhammad Din again appealed before the Settlement Commissioner which appeal was accepted by the impugned order dated 18-4-1974 for the reason that Muhammad Shafi had nowhere denied the execution of the agreement, that mere technicality in the matter of acceptance was not at all material at such a belated stage and that the acceptance of the deed by the Additional Settlement Commissioner on 30-4-1970, had not been properly noticed by the Deputy Settlement Commissioner. The learned Settlement Commissioner, therefore, directed that the deed be given effect to and necessary adjustments carried out as under the rules.
3. Aggrieved, Muhammad Shafi has invoked the Constitutional jurisdiction of this Court. His grounds are that the execution of the agreement deed by him is not proved, that its acceptance by the Assistant Accounts Officer was incompetent, that he had never appeared before a Deputy Settlement Commissioner to support the agreement, that the acceptance by the Additional Settlement Commissioner having been made behind his back, was not a Judicial order and that, in any case, it was not the Additional Settlement Commissioner but the Deputy Settlement Commissioner who was competent to accord an acceptance.
4. Learned counsel for the petitioner submitted that the competent authority for accepting a deed of association is a Deputy Settlement Commissioner, that it was incumbent upon the Deputy Settlement Commissioner to have recorded the admission of the parties to the agreement before accepting the same, that the petitioner, when he appeared for the first time before the Deputy Settlement Commissioner in 1973, denied the execution of the deed and that as such the deed could not be acted upon. On the other hand, it was contended by learned counsel for the respondent that the conduct of the petitioner did not entitle him to invoke the discretionary jurisdiction. He pointed out that Appendix IX for payment of the price had been issued in 1960, yet he never paid the money, nor did he even appear before the Settlement authority until 1973. He submitted that upon cancellation of the deed by the Deputy Settlement Commissioner on 30-4- 1970, a notice was issued to the petitioner to make the payment in cash but he did not appear or agitate the matter and only informed Muhammad Din respondent, whereupon the latter moved the application dated 25-5-1970 for adjustment of the price from the compensation book already deposited by him. He stressed the fact that the agreement filed in 1960, had never been withdrawn by the petitioner in spite of the lapse of so many years and urged that in the circumstance, the acceptance recorded by the Assistant Accounts Officer should not be negatived on technicalities.
5. The agreement (Annexure `A') shows that the same had been executed on 30-11-1960. The date of its filing with the Settlement Department is not shown but the acceptance is recorded in the following words : "Association allowed and place on file.
(Sd.) 25-3-1961.
A.A. O. for D. S. & R. C." "there is nothing to show on the document that Muhammad Shafi had been present and had admitted the agreement or that the Settlement authority bad satisfied itself about the genuineness of the agreement before accepting the same. Mere filing of an agreement is not sufficient. An agreement filed can later be withdrawn. The Deputy Settlement Commissioner could accept the agreement only if he found it "in order". See Press Note dated 26th March 1962, at page 402 of the new Settlement Manual. In the circumstance, the Settlement Authority was, before accepting the agreement, to first satisfy itself that its execution was not in dispute. No such step was taken and when the petitioner for the first time, appeared A before the authority, he disowned the agreement.
I am therefore, of the view that the Settlement Authority could not enforce the agreement against Muhammad Shafi. In Mst. Fatima Bibl etc. v. Settlement Commissioner, Lahore, etc. (PLD 1973 Note 23 at p. 34), it had been observed : "The Deputy Settlement Commissioner at the time when the deed of association is submitted before him, has to see whether its executionis admitted by the parties concerned or not. If it is admitted then he can pass a formal order in accepting the same. The questionof taking action according to the terms and conditions of the deed of association will arise after the acceptance of the same. According to law mere submission of the deed of association will not amount to its acceptance.
A person basing his claim on the deed of association does not acquire any vested right in the property unless he is permitted to associate with the transferee of the property. The permission of the Settlement Authority for association contemplates some procedure which has to be followed before granting the permission. The permission for association will be subject to scrutiny of the deed of association by examining the parties by the Settlement Authority concerned. In the absence of that, it cannot be said that permission to associate had been granted ipso facto by mere submission of the deed of association."
6. In Nazar Mohammad alias Nazar Din v. Chief Settlement Commissioner etc. (Writ Petition No. 423-R/1973) where a question had arisen whether the Settlement Authority could not act upon a surrendered filed deed with it, I had held:- "The difficulty, however. Is that unless the parties admit theexecution of an agreement the same cannot be enforced by the Settlement Department. In fact, as held by the Supreme Court in Syed Muhammad Saeed v. Chief Settlement Commissioner etc. (C. P. S. L. A. 47 of 1963,decided on 7-3- 1963! The Settlement Authorities are not even bound by an agreement of association which is entered into by parties as there could possibly be no privity between the contracting parties and the Settlement authorities. In case one of the parties to the agreement tries to avoid it by a false denial of execution or otherwise, then the remedy of the other party is not before the Settlement Authorities. He may go to a civil Court which has jurisdiction in such matters, vide Ch. Ghulam Yasin v. Siraj Din 1967 Law Notes N. U. C., (Lah.) 25."
I see no reason to deviate from the above views. I am, therefore, satisfied that in the circumstance 5f the case, the agreement deed could not be acted upon by the Department.
7. The petition is accordingly allowed and the impugned order of the learned Settlement Commissioner dated 18-4-1974 is declared to be without lawful authority and of no legal effect. The result would be that the order dated 26-7-1973, passed by the Deputy Settlement Commissioner will hold the field. There shall be no order as to costs.
S. A. H.