1976 PLP 132 (SCMR)

ANWARUL HAQ, J.‑ ON 28‑12‑60, the petitioner Nabi Ahmad Shah entered into an agreement of association with the respondent Mirwaiz Mohammad Abdullah in anticipation of the transfer of an evacuee plot, situate in Lalamusa in the Gujrat district, to the respondent. Unfortunately, however, the transfer of the plot was refused to the, respondent and instead it was put to auction on 17‑12‑

60. The petitioner as well as the respondent fled an appeal, but the same was dismissed. Thereafter, they filed a revision petition, but it also met the same fate. At this stage; the petitioner dropped out of the picture. The respondent persevered by filing a second revision petition, upon which the case was remanded by the Chief Settlement Commissioner for a fresh consideration of the respondent's application for the transfer of the plot. The Deputy Settlement Commissioner again refused the respondent's request, but the case was again remanded on an appeal by the respondent. The Deputy Settlement Commissioner refused the respondent's application for the third time, but once again the case was remanded on appeal to the Additional Settlement Commissioner. At last, on the fourth occasion the Deputy Settlement Commissioner transferred the plot to the respondent. under the reservation ,scheme, by his order dated 21‑10‑

66. Through out the several rounds of litigation the present petitioner kept quiet, but on 26‑10‑66 he made an application to the Deputy Settlement Commissioner to give effect to the agreement of association which the respondent hart executed in his favour six years earlier. The Deputy Settlement Commis sioner accepted the petitioner's application by his order dated the 19th of August 1967, without giving notice to the respondent. The respondent thereupon filed an appeal which was dismissed by the Additional Settlement Commissioner by his order dated 11‑4‑

68. His revision petition was also dismissed by the Settlement Commissioner by his order dated 26‑4‑

69. Aggrieved by this ex parte acceptance of the agreement of association, the respondent invoked the writ jurisdiction of the High Court. The petition was accepted by a learned Judge of the Lahore High Court bar his order dated the 26th of Malay 1975 holding that at the time the agreement of association was entered into between the parties, the respondent was not a transferee of the property, and that in any case the Deputy Settlement Commissioner had acted illegally in passing an ex parse order against the transferee. As a result, the learned Judge declared ‑ the order of the Deputy Settlement Commissioner dated the 19th of August 1967 to N', without lawful authority. The petitioner now seeks leave to appeal against this order, mainly on the ground that even though the respondent lead not been heard by the Deputy Settlement Commissioner rat the time of the passing of 0.4 order of the 19th of August 1967, yet a hearing had been given tea hiss lay the appellate and the revisional authorities and that in any case the petitioner had a right to remain on the property in terms of, section 43 the Transfer of Property Act. In support of these submissions the learned counsel has placed reliance on Mst: Hafizan Begum v. Deputy Settlement Commissioner, Lahore (P L D 1974 Note 17 at p. 51 .). The provision for allowing agreements of association is contained in Paragraph 33 of Settlement Scheme No. 1 and wording to the instructions issued by the Chief Settlement Commissioner on the subject the normal procedure for accepting such agreements is that the parties should be heard by the Deputy Settlement Commissioner, and only thereafter order should be made to implement such agreements. In the present case, the Deputy Settlement Commissioner did not accord any such hearing to the transferee of the property, which was all the more necessary in this case for the reason that the agreement of association had been entered into six years before the actual transfer was ordered. In these circumstances, the High Court was right in taking objection to the order made by the Deputy Settlement Commissioner in the absence of the respondent. It is true that in appropriate cases, such a defect can be cured if a proper hearing is given by the appellate or the revisional authorities, but in the present case there was an infringement of a positive instruction issued by the Chief Settlement Commissioner, and not merely of a rule of natural justice. As, regards the petitioner's reliance ors section 43 of the Transfer of Property Act, we find that the same is not attracted to the facts of this case. This section comes into play where a son fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration then such transfer shall, at the option of the transferee, operate on any interest which the transferor way acquire in such property at any time during, which tire contract of transfer subsists. Now, it' will be seen that they respondent hail not made airy fraudulent or erroneous representation the present petitioner ; an the contrary in first round of litigation the present petitioner was fully associated with the respondent but tire petitioner then gave up and the respondent was left to pursue the litigation alone. There way no proof on the record that the petitioner had paid any consi deration to the respondent, and on this around also section 43 could out he invoked. For the foregoing reasons, we do not regard this as a fit case for the grant of leave to appeal. The petition accordingly fails and is hereby dismissed. Leave refused.