Petitioners are displaced persons. They had verified claim of Rs. 22,000 in their Compensation Book.
As per procedure, they deposited their Compensation Book and purchased in open public auction plot No. 113 bearing Khasra No. 5669 measuring 15 marlas 28 sq. Ft. Situated at Fasih Road, Islamia Park, Lahore from the Settlement Department. The auction was confirmed on 11-8-1960. They were issued P.T.O. No. 744793. The petitioners raised some construction thereon, are admittedly in possession and are living in the house. According to the case of the petitioners, Mst. Rafiqa Begum, step-mother of petitioner No.1 and real mother of petitioner No. 2 was looking after them. Petitioner No. .1 being of unsound mind and the petitioner No. 2 a girl, Mst. Rafiqa Begum contacted respondent No. 2 an Advocate resident of the same Mohallah for professional assistance. The Advocate issued notices to the tenants of the petitioners. He had been getting thumb impressions of the petitioners and Mst. Rafiqa Bagum from time to time for getting documents from the Settlement Department. Nothing having been achieved, sometime in the year 1977 petitioner No. 2's husband inspected the file relating to plot No. 113 now in dispute and was struck to find an unapproved a3sociation deed dated 20-2-1968 in favour of the wife of the Advocate lying in the Settlement file.
Alongwith this agreement there was an application dated 28-6-1968 on her behalf seeking permission to pay the balance price. However, the deed of association was not approved by the Deputy Settlement Commissioner. When Mst. Rafiqa Begum came to know of this, she filed an application before the Deputy Settlement Commissioner on 11-11-1979 saying that the agreement deed was fraudulent, the Advocate be summoned, dealt with according to law and the petitioners' grievance redressed. Before the Deputy Settlement Commission, respondent No. 2 produced the association deed as Annexure `A', a stamped receipt for Rs. 12,000. Annexure `B' bearing thumb impression of Mst. Rafiqa Begum complainant, thumb impression of her husband Muhammad A.I beside the thumb impressions of Khurshid A.I and Naheed Bano, the petitioners executants of the association deed and others. Photo copy of the association deed as Annexure `C' and letter from S D O (Electricity) for electric connection in the name of the associate in the year 1974 as Annexure `D'. The learned Deputy Settlement Commissioner relied on the aforesaid documents. As regards the respondent No. 2 having been a counsel "for the petitioner, he observed that no counsel is engaged for sending notices and further held that Mst. Rafiqa Begum had no locus standi to make the complaint. He concluded as follows:-- "From the above discussion, the perusal of the file, the documents placed on the record, and the deed of association, which is in original on the file of the property it is crystal clear that Khurshid A.I and Mst. Naheed Bano executed the association deed and presented it before my predecessor in - the year 1968 in consequence of which a T.O. Is already prepared and is on the file. Mst. Rafiqa Begum (complainant) as stated above is not the transferee and being an outsider she has no locus standi to file a misconceived 11 years barred application and that too after the repeal of the Act with the result that the application fails and hereby rejected being unwarranted. The association deed stands confirmed. The office to recover the balance transfer price and issue T.O.
In the name of the legal heirs of Mst. Sakina Begum forthwith accordingly". This is vide order dated 6-5--1980. This is challenged by the petitioners through the afore-titled Constitutional petition.
2. Learned counsel for the petitioners has contended that the agreement deed Annexure `A', receipt Annexure `B' are forged and fraudulent documents. Petitioner No. 1 is of unsound mind. He had been admitted in the Mental Hospital as would appear from Annexure `A'. Annexure `C' is a copy of association deed. As regards Annexure `D', it is stated that for electricity connection anybody could apply. The petitioners have not connections for water supply and Sui gas and are paying tax of the property in which they are living, the one in dispute. It is also contended that the statements of the parties to the agreement of association were never recorded by the Deputy Settlement Commissioner, nor, the agreement of association was ever approved. Without recording of statements of the parties and approval by the Deputy Settlement Commissioner, no transfer through deed of association of property purchased from the Settlement Department can be effected. He placed reliance on Haji Abdul Aziz v. Khalil Ahmad and 4 others (PLD 1973 Note 47 P.
63), Mst. Amina Begum v. Addl. Settlement Commissioner, Lahore and others (1981 SCMR 228) and on an unreported decision in Writ Petition No. 1075-R/74 decided on 25-2-1989.
3. Learned counsel for the respondent No.2 submitted that the petitioners never challenged the agreement of association before the Settlement authorities and the application by Mst. Rafiqa Begum disposed of under the impugned order, was rightly held to be unmaintainable,. He added that the writ petition filed in 1980 about the agreement of association dated 20-3-1968 is hopelessly barred by time: He next submitted that the petitioners were guilty of bad faith having executed association deed are not entitled to discretionary relief. He placed reliance on Md. Juran Mondal alias Md. Juran A.I Mondal v. A.H. Choudhary, District Judge, Jessore and others (PLD 1969 Dacca 516). Finally he submitted that nobody can be allowed to have ill-gotten gains. He placed reliance on Wali Muhammad and others v. Sakhi Muhammad and others (PLD 1974 SC 106).
4. Learned counsel for the Settlement Department supported the impugned order.
5. I have heard the learned counsel for the parties and perused the record with their assistance.
Leaving aside the allegations and assertions there is nothing on the record to show that the statements of the parties were, recorded by the Deputy Settlement Commissioner, or, any agreement of association between the parties was approved by the Deputy Settlement Commissioner. Not a word is said about these facts in the impugned order. The petition was admitted on the contention that without recording statements of the parties in respect of the association deed and approval of the Deputy Settlement Commissioner, the property could not be transferred to an associate. Nothing has been brought on the record to show that the statements of the auction purchasers, the petitioners, alleged executants of the association deed, were ever recorded by the Deputy Settlement Commissioner or that the Deputy Settlement Commissioner ever approved the association deed. Recording of statements of the parties to the agreement of association by the Deputy Settlement Commissioner was provided for in the rules to avoid cheating of the transferees from the Settlement Department either through judicial orders or auctions, and also to see that the transferees do not become displaced persons all over again becoming burden on the society. Strict enforcement of the rules has always been the law on the subject. Rulings referred to by the learned counsel for the petitioners are apt. Moreover, it may be noticed that the associatee appears to have put in an application on 28-6-1968 for approval of the agreement of association. On this date or thereabout, the statement of one of the executants was not only not recorded but could hardly be recorded as he was admitted in the Mental Hospital. A mention is made in the impugned order that T.O. Dated 28-3-1974 was prepared in the name of the associatee but obviously and admittedly it was never issued. Nothing is being said in the order impugned that the deed of association has ever been approved by the Deputy Settlement Commissioner. Perusal of the impugned order would show that the agreement of association was being confirmed at the time of passing of the order. There would be no question of confirmation of the association deed at this stage without recording the statements of the parties accepting the execution of the agreement of association which of course was not being done as the agreement of association was being challenged as fraudulent and having never been executed. The law is very clear and of long standing that without recording the statements of the parties to an agreement of association by the Deputy Settlement Commissioner, there can be no approval of the deed by the Deputy Settlement Commissioner, nor, without the approval of the Deputy Settlement Commissioner, the property can stand transferred under the' Settlement law. The contention that the petitioners did not challenge the association deed before the Settlement authorities is not quite sound as it was being done through their mother Mst. Rafiqa Begum the petitioner No. 1 being of unsound mind and the petitioner No. 2 being a girl. Nor is there any force in the contention that the petition suffers from laches as the P.T.O. In the name of the petitioners was never cancelled, or, attempted to be cancelled. The precedents cited by the learned counsel for the contesting respondents are inapplicable to the case of the petitioners rather these would disentitle the respondents. In view of the fact that statements of the executants of the alleged association deed were not recorded by the Deputy Settlement Commissioner nor was it approved by the Deputy Settlement Commissioner, when it was allegedly presented, there is no option but to hold that the agreement of association relied upon in the impugned order is without legal effect.
6. For the foregoing reasons, this petition is accepted but, in the circumstances, the parties are left to bear their own costs.
H.B.T./K-201/L