' Dispute in this case relates to an evacuee plot, bearing property No, S.XX.5.S.17, measuring 2 kanals, 16 marlas and 15 sq. Ft., situate in Canal Park, Lahore.
2. The Deputy Settlement Commissioner (Plots), Lahore vide order dated 25th June, 1966, transferred the disputed plot in favour of the petitioner, under Settlement Scheme No, VI, at a price of Rs, 33,640. Petitioner's case is that he paid a sum of Rs, 33,509 from his own source leaving thus a balance of Rs,
131. On 22nd December, 1966, he entered into an agreement of association with respondent No, 2, surrendering his rights in the plot in dispute in his favour. The agreement was filed in the office of Deputy Settlement Commissioner, Centre-V, Lahore. However, before the same could be acted upon, the petitioner vide a letter dated 30th August, 1968, addressed to the Settlement Commissioner (Urban) West Pakistan, Lahore, requested for its cancellation as respondent No, 2 failed to perform his part of the contract. This letter was sent through proper channel, to the Deputy Settlement Commissioner for necessary action. Simultaneously on the same day, the petitioner also sent a similar letter to the Deputy Settlement Commissioner (Plots), Lahore.
3. Deputy Settlement Commissioner took up the matter on 9th January, 1969. He rejected the petitioner's application for the withdrawal of the agreement of association and approved the same holding "the statement of Mr. Abdul Qayyum has been recorded in which he has presented his written reply to the effect that he has paid Rs, 34,000 to the petitioner in cash through cross cheques and Rs, 23,199 through compensation Books belonging to his wife, a friend of his and to himself. The learned counsel for the respondent has argued that no such condition as alleged in the instant application is promised in the agreement and even otherwise the deed of association being clear and elaborate, evidence of any separate oral agreement is not admissible. I have gone through the deed of association. There is of course no condition regarding the payment to the petitioner within one month. This plea cannot therefore be entertained for the cancellation of receipts executed by the petitioner for the amounts received by him. I, therefore, see no reason to treat the deed of association as cancelled. The petition for cancellation is rejected and the deed of association is hereby approved."
4. Petitioner aggrieved of this order filed an appeal before the Additional Settlement Commissioner, Lahore. The same was rejected by order of the Additional Settlement and Rehabilitation Commissioner, dated 4th June, 1969. He took the view that "an agreement once filed by the persons concerned is to be treated as final and they are not to be allowed to withdraw or modify it subsequently except under exceptional circumstances, by the Additional Settlement Commissioner concerned. No exceptional circumstances, in fact no ground whatsoever exists to allow the appellant to go back on his agreement executed as back as January, 1967, particularly after receiving above, quoted payments . ..." Petitioner's revision against the appellate order was accepted by the Settlement Commissioner vide order dated September 20, 1969, and the case remanded back to the Deputy Settlement Commissioner for holding inquiry on the lines indicated in the revisional order. Case on remand was again taken up by the Deputy Settlement Commissioner who on September 2, 1970, in his turn sent the case to the Additional Settlement and Rehabilitation Commissioner taking the view that the agreement/ deed once filed cannot be permitted to be withdrawn, except under exceptional circumstances. This perhaps was that under Memo. No, 4241-Pi-Reh-60, dated 7th March, 1960, only an -Additional Settlement commissioner could allow the withdrawal or modification in the agreement of association so filed. The Additional Settlement Commissioner, however, again sent the case back to the Deputy Settlement Commissioner for holding a detailed inquiry in terms of the remand order of the Settlement Commissioner dated 20th September, 1969. Deputy Settlement Commissioner then held a detailed enquiry and on 2nd April, 1971, again sent the case back to the Additional Settlement Commissioner. This time he came to a conclusion that amount of consideration had not been paid to the petitioner and therefore, he could justifiably ask for cancellation of the agreement of association. The Additional Settlement Commissioner, however, once again sent the case back to the Deputy Settlement Commissioner vide note dated 5th May, 1971, requiring the Deputy Settlement Commissioner to pass a "self-contained order". The Deputy Settlement Commissioner then passed a detailed order dated 11th May, 1971, cancelling the disputed agreement of association. Respondent No, 2, this time, filed an appeal against the order of the Deputy Settlement Commissioner dated 11th May, 1971. This appeal remained pending before the Additional Settlement Commissioner for quite some time and on account of the omission of section 19 by Act LV of 1973, the same was sent to the Settlement Commissioner for disposal as a revision. At the time of repeal of evacuee laws by Act XIV of 1975, the case accordingly was pending on the file of the Settlement and Rehabilitation Commissioner, Lahore. Ultimately the case was taken up by Major Muhammad Iqbal Cheema, as Notified Officer in terms of subsection (2) of section 2 of Act XIV of 1975. This Officer once again remanded the case to the Deputy Settlement Commissioner. He was of the view that in such cases only an Additional Settlement Commissioner was authorised to pass a final order and not the Deputy Settlement Commissioner and, therefore, the Deputy Settlement Commissioner would again place the case before the Additional Settlement Commissioner for his orders. This order of Major Muhammad Iqbal Cheema was questioned before this Court by the petitioner in constitutional petition (W. P. No, 1408-R-77). This Court vide judgment dated 19th June, 1978, allowed the petition and set aside the order of Settlement and Rehabilitation Commissioner, dated 28th September, 1977. View taken was that after the repeal of Evacuee Laws, a Notified Officer was to dispose of the case finally and had no jurisdiction to remand the case to any subordinate Settlement Officer as no Settlement Officer after repeal of Evacuee Laws exists as such.
The case accordingly went to the file of Mr. A. A. Wasti, as a Notified Officer. He vide his order dated 19th August, 1979, disposed of the matter finally taking the view that the petitioner after having filed the agreement of association cannot be permitted to withdraw the same. He was further of the view that payment of consideration was not condition precedent to the acceptance of agreement of association and therefore, the Settlement Authorities were not required to go into this aspect of the matter. The order dated 19th August, 1979, is called in question in this constitutional petition.
5. Learned counsel for the petitioner argued that before the acceptance of agreement of association, any of the parties to it, could annul the same. Question of permission of the Additional Settlement Commissioner in the terms of Memo. No, 4241-Pi-Reh-60, dated 7th March, 1960, to withdraw the agreement would arise only in cases where such a permission was sought after the acceptance of the agreement of association. The petitioner having conveyed his intention to withdraw the agreement of association, before it had been accepted, the Settlement Authorities had no discretion in the matter and they were bound to give effect to the will of the petitioner.
Reliance was placed on Muhammad Shaft v. Settlement Commissioner, Multan (1), Haji Ghulam Hussain v. Hamad Hassan Khan and another (2) and an unreported judgment of this Court dated 2nd February, 1980, in W. P. No, 1150-R of 1976. On the merits, he con- tended that no doubt the petitioner had utilised the compensation book of respondent No, 2 and his wife and one Mr. Abdul Haq, but he had purchased the same against cash payment. He relied on certain receipts referred to in the order of the Deputy Settlement Commissioner dated 2nd April, 1971. Respondent Abdul Qayyum, on the other hand failed to establish the payment of consideration money amounting to Rs, 34,00. He emphasised that it had been found as a fact that he drew the cheques in the name of the petitioner but the same had never been credited to his account. An amount of Rs, 131, balance left out towards the price of the plot, admittedly was paid by the respondent but such a meagre amount cannot be accepted as sufficient consideration for the agreement. The agreement, it was contended, being without consideration, is void and should not have been given effect. The impugned order therefore, cannot be sustained even on merits.
Learned Notified Officer went wrong in taking the view that according to the terms of agreement, he was not required to go into the payment or otherwise of the consideration money.
6. Learned counsel for the contesting respondent, on the other hand argued that the Notified Officer in his impugned order has taken correct view of the matter. In so far as the execution of the agreement is not denied, and the petitioner in the agreement acknowledges the payment of the consideration money, the Settlement Commissioner could, justifiably, refuse to go into the questions alien to the agreement. He then contended that Memo. No, 4241-Pi-Reh-60, dated 7th March, 1960 applies to all agreements, whether accepted or not, which submitted by the parties to the Department. It was emphasised that the Settlement Officers are like registering officer who while registering conveyance deed is not required to hold inquiry into the matters alien to the agreement. Once the identity of the vendor is established and he accepts payment of the consideration amount or the mode of payment, the Registering Officer is bound to register the document. The same way, an Association Deed once filed, a Deputy Settlement Commissioner, is bound to give effect to the same and cannot refuse to act it merely because some of the conditions which are alien to the agreement have not been fulfilled by any of the parties. Reference was made to Subedar Aziz Ahmad v. Mst. Sardar Begum and three others (3) and an unreported judgment of this Court in L. P. A. No, 1178 of 1966. He then contended that the Settlement Commissioner in his discretion having accepted the agreement of association it is hardly a case for interference by this Court.' He read out some passages from Judicial View for Administrative Actions S. A. De Smith (2nd Edn.). (1) PLD 1979 Lah. 790 (2) PLD 1969 Lah. 147 (3) 1971 SCMR 750
7. I have considered the arguments addressed at the bar, and gone through the documents referred to by the parties, and perused the orders delivered by the Settlement Courts at different levels. For reasons to follow, I am constrained to say that it would be difficult for me to accept the points of view of the learned counsel for the petitioner.
8. The facility of associating another in the transfer had been given to enable the transferee to pay the price for which purposes he could surrender his rights in part or full in the property in favour of the associate. As to the nature of the proceedings while allowing the association deed, I can do no better than to refer to a judgment of this Court in L.P.A. No, 1178 of 1966. This reads :- '... ...... The interest which the associates share is that of the transferee or the person entitled to the transfer. It can be less than that interest but it cannot ever exceed it. It is a direct transfer of interest from a person entitled to the transfer in favour of another who after observance of formalities becomes an associate. The intervention of the Settlement Authority is only for sanctifying such association and not either for placing it under any limitation not inherent in the transaction or approving it conditionally. He plays a role not very different than that of Registrar, where a transaction is required by law to take place by a registered document. He has to satisfy himself about the identity of the parties, the property to be transferred, the nature and extent of interest affected by the transaction, its bona fide, the consideration and the observance of the laws applicable to the transaction. There is, therefore, for the purposes of the application of this doctrine [no distinguishing feature in the situation."
It is thus obvious that the Settlement Authorities are obliged to accept a deed of association when its execution is not disputed or the terms of deed do not suffer from any ambiguity and identity of the persons executing the same is established. In my view, such a deed of association cannot be annulled on the whim of the Settlement Authorities or on the basis of a unilateral decision by one of the parties.
' On the Plain reading of the Memo. Dated 7th March, 1960, it cannot be accepted that the same applies only in a situation where the question of withdrawal from the association arises after its approval. To adopt this interpretation, one has to read into this Memo., which is not there. The Memo. Reads thus "In the Press note issued under -this Office No, 2705-PI-Reh-60, dated 13th February, 1960, it was laid down that the persons who went to associate with claimants for payment of the transfer price of properties, should file an agreement of association on Rs, 4 stamp paper. It has been decided that normally an agreement once filed by the persons concerned should be treated as final and they should not be allowed to withdraw or modify it subsequently. In exceptional and really deserving cases an agreement of association may be allowed to be withdrawn or modified or replaced by a new agreement with the approval of the Additional Settlement Commissioner concerned."
' It is thus evident, that the agreement deed having once been filed, the petitioner could not withdraw from the same unilaterally. The contention of the learned counsel for the petitioner therefore, that if once an intention to withdraw from the association is indicated to the parties before the acceptance of the agreement the same stands annulled automatically, cannot be accepted.
9. Cases cited in this regard to say with the profoundest respect proceed on their own facts and are distinguishable. In case of Muhammad Shafi, one of the parties did not admit the execution of agreement. 'The note of caution recorded is "the Settlement Authority was, before accepting the agreement, to first satisfy itself that execution was not in dispute". Learned Judge in this case has also referred to earlier decision given in W. P. No, 420-R of 1973, Nazar Muhammad alias Nazar Din v.
Chief Settlement Commissioner. A passage from that judgment reads thus :- "The difficulty, however, is that unless the parties admit the execution 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 7th March, 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."
' The word "otherwise" is to be read ejusdem generis with the words "false denial of execution". The rule intended to be laid down, therefore, was that in case where the execution is not admitted, the authorities are obliged to cancel the agreement. In Haji Ghulam Hussain v. Hamid Hassan Khan and another the proposition now sought to be canvassed was not directly raised. The rule laid down 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", rather can be pressed against the petitioner. The facts in the unreported judgment cited (W. P. No . 1150-R-76) similarly are quite distinguishable. In this case an agreement of association was sought to be enforced through a constitutional petition, which had been declared by Settlement Authorities to be a forged document. From some observations made while rejecting the writ petition, it cannot be said that the learned Judge intended to lay down that the Settlement Authorities cannot accept a deed of association, only because one of the parties unilaterally decides to withdraw from the same, and the execution otherwise is not disputed nor are the terms of the agreement ambiguous.
In Subedar Major Aziz Ahmad v. Mst. Sardar Begun: and 3 others judgment of this Court, giving effect to an agreement of association which had been cancelled by the Settlement authorities on 'flimsy grounds' was upheld. Some observations from the judgment of this Court in L. P. A. No, 1178 of 1966, have already been noticed above.
I am, therefore, constrained to take the view that the Settlement Authorities in their discretion, can allow an agreement of association, even though one of the parties before its acceptance communicates its intention to withdraw from the same.
' This brings me to the merits of the impugned judgment. It would be advantageous to refer to the terms of the agreement at the outset. The agreement inter alia provides :- "This deed has been entered into between Muhammad Latif Qureshi son of Abdul Khaliq Qureshi, resident of 8 Barry Villa, Canal Park, Lahore (hereafter called party No, 1) and Ch. Abdul Qayyum son of Ch. Nawab Khan, resident of Kirpa Ram Building, The Mall Lahore (hereafter called party No, 2).
They have agreed as under :- (1)
(2) That the party No, 1 has transferred to the Party No, 2 the plot through this deed of association.
The remaining price shall now be paid by the party No, 2 in cash as also the Settlement Fee. The rent has been paid. That the amount adjusted or to be adjusted as paid by the party No, I towards the price of the said plot in the manner indicated in this deed shall not be refunded to the party No, 1 and it shall be accounted for in payment of price of the plot.
(4) That the party No,11 having severed his connection whatsoever, with the plot and its ownership in the Settlement record shall be changed in the name of party No,
2. The P. T.
0. (if necessary) as also the P. T. D. Shall be issued in the name of Party No, 2.
' That neither the party No, 1 nor any of his reversionary shall lodge any claim to the said plot at any time later on and party No, 1 further declares that if at any time the transfer of the said plot is cancelled/resumed, the party No, I shall be liable personally for the refund of amount received from party No, 2."
' As already noticed, the execution of the document salient features of which have been reproduced above, is not disputed. It is clear in terms and does not admit of any ambiguity. It does not provide if any amount was still to be paid rather it can, safely, be inferred that the petitioner had acknowledged the receipt of the consideration money. Any inquiry, therefore, directed towards establishing the payment of otherwise of the consideration money was alien to this agreement.
This is precisely the view as has been taken by the learned notified officer in the impugned order dated 19th August, 1979. The notified officer in his discretion having accepted the agreement, I find merit in the contention of the learned counsel for the contesting respondent that no case for any interference by this Court, in its constitutional jurisdiction, is made out' S. A. De Smith, in his Judicial Review of Administrative Action (second! Edition), observes at page 265 :- "The crucial question, however, is : In what circumstances and to what extent will the Courts review the merits of the exercise of a statutory discretion which is neither made subject to appeal nor limited by the express provisions of the Act ? The Courts have repeatedly affirmed their incapacity to substitute their own discretion for that of an authority in which the discretion has been confided.
And in so far as they have asserted a power of review, they have tended to express themselves in cautious language."
' In Roberts Hopwood (1) Per Lord Summer, stated the proposition :- "There are many matters, which the Courts are indisposed to question. Though they are the ultimate judges of what is lawful and what is unlawful to borough councils, they often accept the decisions of the local authority simply because they are themselves ill-equipped to weigh the merits of one solution of a practical question as against another."
' For all that has been said above, finding no merits in this writ petition, I dismiss the same with costs.
(1) 1925 A C 578