' This dispute relates to property No. B.1.3.R.24/Okara bearing Khasra No.3633, which measured about 1 Marla and 3 Sarsahis. This property was treated as plot in the year 1961. Khasra No.3633, in all, measured 4 Marals. One Marla and 3 Sarsahis was in unauthorised possession of Khushi Muhammad son of Sharif Din, a refugee. Another one Marla and 3 Sarsahis was in possession of Faqir Muhammad, the petitioner herein. The remaining one Marla and 3 Sarsahis was in possession of Habibullah son of Ismail.
2. The Deputy Settlement Commissioner, Montgomery (new renamed as Sahiwal), vide his order date 26-1-1961, on the report of the Settlement Inspector, directed transfer of one Marla and 3 Sarsahis each in favour of Khushi Muhammad and Faqir Muhammad petitioner. Consequently, P.T.O. dated 2-2-1961, bearing No.794553 (Annexure 'C') was issued in favour of the petitioner and Khushi Muhammad to the extent of one Marla and 3 Sarsahis of the aforementioned plot.
3. Subsequently, however, on 28-8-1965, the Deputy Settlement Commissioner reported to the Additional Settlement Commissioner that transfer in favour of Faqir Muhammad and Khushi Muhammad was not regular as they were in illegal possession of the portions in their respective possession and no form filed by them was traceable. The Additional Settlement Commissioner, vide his order dated 29-9-1965 observed that transfers had already taken place and there was no objection to the duplicate form being placed on record. Thus, the transfer should be regularized if they were otherwise proper. In this manner, the property in dispute, to the extent of one Marla and 3 Sarsahis stood transferred in favour of the petitioner, as a plot.
4. An adjacent property viz. a shop, bearing No. B.1.3.R. 26, was in possession of Abdul Ghaffar and the petitioner inasmuch as 1/2 portion of the shop was in occupation of Abdul Ghaffar and the other 1/2 in possession of the petitioner. The Deputy Settlement Commissioner, Okara, transferred the entire shop in favour of Abdul Ghaffar in 1959. Faqir Muhammad petitioner filed an appeal before the Additional Settlement Commissioner, but the same was dismissed by him vide his order dated 10-4-1962 as being time-barred. The petitioner, thereafter, went in revision before the Settlement Commissioner, who vide his order dated 16-6-1962 directed that the petitioner as also Abdul Ghaffar could be transferred one shop whereas property No.B.1.3-R-26 consists of two shops.
Abdul Ghaffar could, therefore, be transferred only one shop in his possession while the other shop was transferable to the petitioner provided he was not in possession of any other shop, as Abdul Ghaffar had alleged that the petitioner was in possession of shop No.24.
5. The order of the learned Settlement Commissioner, dated 16-6-1962 was assailed before this Court through Writ Petition No. 2292-R-1962.
A report was obtained from the Settlement Authorities. The said authorities reported that property No.24 was not a shop but a commercial plot. It was transferred to the petitioner as a plot, according to the Settlement Instructions, as he was in possession of that plot. This Court, after perusal of the report submitted by the Settlement Authorities, found that the Settlement Commissioner competently found that property No.26 comprised of two shops and that Abdul Ghaffar could lawfully be transferred only one shop. Thus, it was concluded that the order of the Settlement Commissioner was with lawful authority. Consequently, Writ Petition, filed by Abdul Ghaffar, was dismissed.
6. Subsequently, the Deputy Settlement Commissioner, Sahiwal, vide his order, dated 28-8-1967, transferred one shop, forming part of property No.26, in favour of Abdul Ghaffar, and the other shop in favour of the petitioner. As regards property No.24 in possession of the petitioner, it was held that the same was being treated as a shop and, therefore, the petitioner was not entitled to the transfer of two shops. It was accordingly ordered that property No.24 be placed in evacuee pool for public auction.
7. In compliance with the order dated 28-8-1967, passed by the Deputy Settlement Commissioner, Sahiwal, property No. 24, in possession of the petitioner, was put to auction. In the auction list, it was shown as a plot. Its reserve price was indicated as Rs.1,600. The petitioner participated in the bid.
His was the highest bid of Rs.1,80Q. Before the auction could be confirmed, Abdul Ghaffar filed an appeal before the Additional Settlement Commissioner contending that in the auction list, ,property No.24 was wrongly shown as plot instead of shop and that no public notice was given for its auction. The Additional Settlement Commissioner, vide his order dated 20-5-1970, accepted the appeal of Abdul Chaffer. He observed that the propery had not been included in the auction list by given the proper description and was not disposed of after due publicity.
8. The petitioner went in revision before the Settlement Commissioner against the order dated 20- 5-1970 of the Additional, Settlement Commissioner. His revision was, however, dismissed on 10-12- 1970.
9. The petitioner, through the instant Constitutional petition, has assailed the orders dated 28-8- 1967 passed by the Deputy Settlement Commissioner, Sahiwal, dated 6-2-1968 passed by the Additional Settlement Commissioner, dated 20-5-1970 also passed by the Additional Settlement Commissioner and dated 10-12-1970 passed by the Settlement Commissioner.
10. It transpires from the above resume of the facts of the case that the sole question for determination is as to whether property No. 24, at the time of independence, happened to be a commercial plot or a shop. If it were merely a plot, it could lawfully be transferred, as per Settlement Instructions, in favour of the petitioner who happened to be in its possession. In case it happened to be a shop, it could not be transferred in his favour because he was entitled to the transfer of one shop only and he had already obtained transfer of shop bearing No.26. The Settlement Authorities, originally, treated property No.29 as a plot. It was transferred in favour of the petitioner as a plot. He was duly issued P.T.O. in his favour evidencing the transfer of the disputed plot in his favour. Even before the High Court when Abdul Chaffer respondent had challenged the order of the Settlement Commissioner, whereby one shop forming part of property No. 26 was transferred to the petitioner, it was reported by the Settlement Authorities that property No. 24 was not a shop but a commercial plot. Subsequently, however, the Deputy Settlement Commissioner, Sahiwal, vide his impugned order dated 28-8-1967, passed orders; "the property bearing Khasra No. 3633 (taxation No. B.l.3.R. 24/Okara) measuring 1 Marla 3 Sarsahis in possession of Faqir Muhammad transferred to him as a plot is hereby treated as shop and he will not be entitled for its transfer." This order has, of course, subsequently, been confirmed in appeal and revision by the Additional Settlement Commissioner and the Settlement Commissioner vide their respective orders dated 6-2-1968 and 10-12-1970. The Deputy Settlement Commissioner could not treat a plot as a shop at his whims and caprices. His finding in this behalf could only be based on spot inspection and the relevant record. The Settlement Authorities, by treating property No. 24 as a shop instead of plot, have countered their earlier stand taken in the report submitted before this Court wherein they positively maintained that property No. 24 was a commercial plot. The Additional Settlement Commissioner, vide his order dated 6-2-1968 has treated the property in question as a shop merely by observing that Faqir Muhammad had admitted before him that the evacuee used to run a wood-stall in this property. Obviously, wood-stall could be run at a commercial plot and for running a wood-stall, there was hardly any necessity of constructing a shop. In the original report, on the basis of which this property has been transferred in favour of the petitioner, it has been clearly mentioned that the property was a plot at the time of independence and the petitioner was in its unauthorized possession and had constructed a shop thereon. Even on 21-3-1968, Settlement Inspector has reported (Annexure T-1) that the other portions of Khasra No. 3633 have been transferred as plots to other transferees. A report to the same effect (Annexure T- 2) has been made by the block incharge on 2-6-1970.
11. In the light of above factual state of affairs, it stands established that the Settlement Authorities originally treated property No.24 as a commercial plot. Subsequently, however, they took a somersault and treated this property as shop through the impugned orders. Their subsequent contradictory stand is, however, not based on the relevant records. The orders in this behalf are just arbitrary and whimsical. Legally, this property, once having been transferred in favour of the petitioner by the co ipetent authority, could not be placed in the auction pool.
12. It has been argued on behalf of the respondent that the petitioner was estopped to raise this plea because he himself participated in the auction. There can, obviously, be no estoppel against law. In Patraco Ltd. v. Deputy Commissioner and Assistant Custodian of Enemy Property and 3 others 1981 CLC 1433, it was observed. "There is abundant evidence on the record that the appellants/plaintiffs had protested subsequent auction and have set up a case that they took part only to protect their interest and to avoid complications. In any case, the bid at the second auction was only for Rs.5,000 and the same was not accepted. We are of the view that it was only be force of circumstances and under compulsions that they had taken part in the subsequent auction and such circumstances by itself cannot operate as an estoppel. In Muhammad Hanif Khan v. Ch. Muzaffar Hussain and others PLD 1983 SC 96. It was held that the respondent who recognized the appellant as landlord for the time being, was not estopped to challenge the transfer in favour of the landlord in appropriate forum and claim transfer in his own favour." In Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue, Islamabad and others PLD 1981 Kar. 357, it was held that any admission or consent on the part of a party, if not in consonance/conformity with the relevant provisions of law, not constitute estoppel against such party. It is thus found that mere participation of the petitioner in the auction proceedings, whereby property in question was put to auction as a plot but the auction was not ultimately confirmed, cannot estop the petitioner to raise the plea that the property could not be put to auction as it already validly stood transferred in his favour.
13. In the light of the above conclusions, this Writ Petition is allowed and the impugned orders are held to be without lawful authority and of no legal effect. There shall be no order as to costs.
Writ issued.