1979 PLP 85 (CLC)

3. Aggrieved, Muhammad Shafi has invoked the constitutional juris diction 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 Addi tional 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 Com missioner that it was incumbent upon the Deputy Settlement Commis sioner 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 discre tionary 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 instead 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 He stressed the fact that the agreement filed in 1960, had never been withdrawn by the petitioner.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 record ed by the Assistant Accounts Officer should not be negatived on technica lities.

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 & place on file" (Sd.) AAO 25-3-61. for DS & RC. " There is nothing to show on the document that Muhammad Shafi had been present and had admitted the agreement or that the Settlement authority had 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 Commis sioner 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 tune, appeared 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 Bibi etc. v. Settlement Commissioner, Lahore, etc. (P L D 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 execution is admitted by the parties concerned or not. If it is admitted then he can pass a formal order in accepting the same. The question of 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 Settle ment 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 Com missioner-etc. Writ Petition No. 423-R/1973 where a question had arisen whether the Settlement authority could not act upon a surrender deed filed with it, I had held "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 Muham mad Saeed v. Chief Settlement Commissioner, etc. (C. P. S. L. A. No. 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 Law Notes 1967 (N. U. C.) Lah. 25)." I see no reason to deviate from the above views. I am, therefore, satisfied that in the circumstance of 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. Petition accepted.