1. WAHEEDUDDIN AHMAD, J.---This appeal by special leave is directed against the judgment of the High Court of West Pakistan, Peshawar Bench, in Writ Petition No. 248 of 1962, dated the 30th October 1962. By this judgment, a Division Bench of the High Court allowed the petition with costs.
2. The dispute between the parties is in respect of House No. 535/946-55/1691-92, Mohallah Ander Shehr, Peshawar city. The appellant was found entitled to the transfer of this house and appendix was issued to him on the 23rd November 1959, to obtain the transfer of the house on payment of Rs.
3. 1,05,600. As he was unable to pay this amount, he entered into an agree--ment of association on the 5th January 1960, with Mst. Sardar Begum, respondent No. 1. Under the terms of the agreement, respondent No. 1's share was 70 % and the appellant's share was 30 %. The parties agreed to obtain the transfer of the said house on payment of price in proportion to their shares. The agreement of association was accepted by the Settlement Department and on the 9th May 1960, a P. T. O. Was issued to both the parties according to the above-mentioned shares.
4. It appears that the price of the houses was reduced by 40 % by the Settlement Department in respect of the properties situated in Peshawar city. On the 26th May 1960, the appellant moved an application before the Settlement Commissioner. Peshawar for withdrawing the agreement of association and for permitting him to pay the price of the house from his own Compensation Book.
5. No action was taken on this application. 0nth e 25th April 1962, the appellant moved another application for cancellation of the agreement of association between him and respondent No. 1. On the 12th May 1962, the Additional Settlement Commissioner, Peshawar. Forwarded this application to the Deputy Settlement Commissioner, Peshawar, for examination and disposal on merits. The matter was taken up by the Deputy Settlement Commissioner and on the same day, he recommended that the agreement of association between the appellant and respondent No. 1 be cancelled on the following grounds :-
(1) That the association deed on the file of the Department was an attested copy and was not entertainable.
(2) That the association deed is not written on a non judicial stamp of Rs. 4 as required by the Rules.
(3) That no preliminary scrutiny has been made on the presentation of the agreement of association.
(4) That the appellant has informed the Department that the claim of respondent No. 1 is under investigation of the Enforce--ment Staff.
(5) That tile dispute has arisen between the parties and the same has been reported to the police authorities.
6. On the 18th May 1962, the Additional Settlement Commis--sioner, Peshawar, agreed with the recommendation of the Deputy Settlement Commissioner and directed that further action be taken in the matter. Respondent No. 1 challenged this order in appeal before the Settlement Commissioner, Peshawar, which was dismissed on the 2nd July 1962. This order was challenged in Writ Petition No. 248 of 1962, and a Division Bench of the High Court of West Pakistan, Peshawar Bench, accepted it on the 30th October 1967. In this connection, the High Court observed as under :- "The bare reading of this Memorandum would show that is exceptional and really deserving cases, the parties concerned, with the approval of the Additional Settlement Commissioner, were allowed to withdraw, modify or replace the agreement of association previously filed by them. This is amply clear from the direction in the Memorandum itself 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." There is nothing in this Memorandum which entitled a party to an agreement of association to unilaterally withdraw from it, with the approval of the Additional Settle--ment Commissioner, nor is any power given to the Additional Settlement Commissioner to cancel an agreement of association at the instance of only one party."
7. This judgment is being challenged in this appeal before us.
8. Special leave was granted in this case to consider the conten--tion of the appellant that the Additional Settlement Commissioner was competent in law to cancel the agreement of association in view of the Memorandum No. 4241-P-Reh-60, dated the 7th March 1960.
9. In support of the appeal Malik Amjad Hussain, learned counsel for the appellant has contended that the learned Judges of the High Court have committed an error in holding that the appellant was not entitled to go back and withdraw from the contract unilaterally. The learned counsel contended that any party to the contract can seek the approval of the Additional Settlement Commissioner for the withdrawal of agreement of association. He further contended that the only requirement of law was that there should exist exceptional and really deserving circumstances and the Additional Settlement Commissioner was competent in such cases to approve the withdrawal or modifica--tion or replacement of a new agreement. He also contended that Additional Settlement Commissioner had exclusive jurisdiction in the matter and any finding by him on this point is not open to question in writ jurisdiction. It will be noticed that under Para. 33 of the Settlement Scheme No, 1, claimants and non---claimants displaced persons are entitled to associate with the claimants for payment of the transfer price. It reads as under :- "The proposed transferee may for the purpose of making payment of the transfer price associate with any other claimant in such a case the property shall be transferred to the associates in such shares as are agreed upon in writing between them,"
10. It is under this paragraph that the appellant entered into an agreement of association with respondent No. 1. On the 7th March 1960, the Chief Settlement Commissioner issued the following Memorandum No. 4241-PI-Reh-60, on this topic, which appears at page 122 of the old Settlement Manual :- "In the press-note under this office No. 2706-PI-Reh-60, dated the 13th February 1960, it was laid down that the persons who want to associate with claimants for payment of the transfer price of properties, should file an agreement of associa--tion 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."
11. The learned counsel for the appellant has argued that it was under this instruction that the Additional Settlement Commissioner has approved the withdrawal of the agreement of association between the parties.
12. As we have come to the conclusion that the grounds on which the agreement of association was cancelled by the Additional Settlement Commissioner are not of an exceptional and deserving character, it is unnecessary to decide the question whether a party can unilaterally withdraw itself from the agreement of association or not: The Deputy Settlement Commissioner recom--mended the cancellation of the agreement on five grounds which is that the original agreement of association was not on the record. The other ground is that the agreement of association bears the stamp of Rs. 1-4-0, though it should have been stamped with Rs. 4 non-judicial stamp, and the third was that no t preliminary scrutiny was held of the agreement of association. These are very minor defects and could be easily remedied by ask--ing the parties to produce the original documents and to pay the deficient stamp. Mr. Jamil Hussain Rizvi, learned counsel for the respondent No. 1 has brought it to our notice that .The deficiency in the stamp has been made up.
13. He further contended that the stamp of Rs. 4 was required to be put by a subsequent press-note and at the time when the agreement of association was filed no such Rule existed. Similarly, the objection that no preliminary scrutiny had taken place also appears to be of a flimsy character.
14. The other two grounds which weighed with the Additional Settlement Commissioner are also not of an exceptional and deserving nature. The investigation by the Enforcement Depart--ment about the claim of respondent No. 1 was at the instance of the appellant who is her close relative. Merely because a complaint was lodged by the appellant with the Enforcement Department would not show that the claim proved by the respon--dent No. 1 was a bogus one. Mr. Rizvi has pointed out that nothing has come out of this complaint. Similarly, the criminal dispute between the parties came into existence after the filing of the application for cancellation of the agreement. It is not known what was the result of the criminal complaint filed at the instance of one Nizamuddin, a relative of the appellant. Such quarrels can be easily picked up but it cannot be considered to be a ground of exceptional and deserving character. In our opinion, the Deputy Settlement Commissioner recommended the cancellation of the agreement of association on very flimsy grounds and the Additional Settlement Commissioner was not competent to approve the withdrawal of the agreement of association on such grounds.
15. The learned counsel for the respondent is quite right that respondent No. 1 has acquired vested right and the Settlement authorities failed to notice that the real reason behind the applica--tion moved by the appellant was the reduction in the price of the houses at Peshawar announced by the Settlement Department. His grievance that it was not an exceptional and deserving case is well founded. We would, therefore, hold that the Settlement authorities had acted contrary to law and in excess of the jurisdic--tion vested in them under the terms of the above press-note. In these circumstances, the learned Judges of the High Court were perfectly justified in setting aside the orders of the Settlement authorities about the cancellation of agreement of association between appellant and respondent No. 1.
16. In this view of the matter there is no force in the appeal which is dismissed with costs.