1. MUHAMMAD HALEEM, C.J.-- This appeal, by leave, arises from the judgment of the Lahore High Court, Lahore, dated 18-2-1980 by which Writ Petition No.542-R of 1973 was accepted, and the auction of the entire shop in favour of the contesting respondent was upheld.
2. Leave to appeal was granted to consider whether the finding of the Settlement Commissioner in his order dated 26-3-1973 that the property in question consisted of two shops could not be interfered with by the High Court in the exercise of its constitutional jurisdiction.
3. The dispute in this case relates to the shop bearing No.182/5 situate at Pind Dadan Khan, District Jhelum. It was owned by Dhanpat R.I, an evacuee, and had two distinct portions. One Hakim Isher Datt was in possession of one portion while the other portion was allotted to Muhammad Hussain on 1-1-1958. The shop was auctioned on 25-11-1960, and as it was unattractive property, the highest bid of Rs.600/- given by respondent No.2 as against its reserve price of Rs.1,440/-was accepted.
4. The Additional Settlement Commissioner by his order dated 31-12-1960 confirmed the bid and a Permanent Transfer Deed (PTD) was issued in favour of respondent No.2 on 23-6-1962. On 23-7- 1962, he filed an application seeking to eject Muhammad Hussain from the portion in his occupation. On receipt of summons, Muhammad Hussain filed an appeal against the confirmation of auction, but it was dismissed by the Settlement and Rehabilitation Commissioner on 16-11-1963 on the ground that as he had not filed any form for its transfer, he cannot lay a claim to it. He challenged this order in the High Court through Writ Petition No.138-R of 1964. However, during the pendency of this writ petition, the Rent Controller by order dated 21-5-1964 rejected the application of respondent No.2 holding that the portion in occupation of Muhammad Hussain was not auctioned. An appeal against that order was also dismissed on 25th of April, 1966. Muhammad Hussain did not press his writ petition and withdraw it on 5-12-1966.
5. It seems that on 17-6-1970, the portion in occupation of Muhammad Hussain was advertised for auction and he was shown to be its occupant. Muhammad Hussain thereupon submitted a belated KNCH form after getting the delay condoned under the Revised Settlement Scheme No. VIII on 13-10-1971. The Deputy Settlement Commissioner by his order dated 22-2-1972 transferred to him the portion in his occupation holding it to be an independent unit and available for disposal.
6. Respondent No.2, thereupon, filed an appeal before the Additional Settlement Commissioner, who accepted it by his order dated 19-9-1972 holding that the entire shop has been transferred to him which transfer had assumed finality by the issuance of a Permanent Transfer Deed (PTD). The appellant thereupon filed a revision before the Settlement Commissioner which too was dismissed qua his claim. And as for the respondent No.2, it was held that the auction was only with regard to one portion bearing No.182/5. The other portion bearing No. 182/5-H was in possession of Hakim Isher Datt and "shall have to be disposed of separately under the relevant Scheme." Both the appellant and the contesting respondent filed writ petitions Nos. 438-It and 542-R of 1973 respectively against the order dated 26-3-1973 passed by the Settlement Commissioner.
7. The petition filed by the appellant was dismissed while that of respondent No.2 allowed by a common judgment. The High Court held: "'Thus the Deputy Settlement Commissioner and the Settlement Commissioner were wrong in holding without any authentic material about the possession of the petitioner at the relevant time and the description of either part of the shop by mark 'H' and their findings are mainly based or the spot inspection made in the year 1972 which was not tile relevant factor to determine the possession of the persons occupying the shop at the target date i.e. 20-12-1968.
8. The petitioner has been rightly eliminated. But the Settlement Commissioner has acted without jurisdiction to hold a part of the shop as independent portion for disposal under the relevant scheme. His order to that extent is set aside with the result that the order of the Additional.
9. Settlement Commissioner dated 19-9-1972 is restored and the transferee is held an absolute owner of the entire shop for which he was issued P.T.D. On 23-6-1962."
10. It cannot be disputed that the shop had two distinct and independent portions. One was in possession of Hakim Isher Datt and the other in the possession of Muhammad Hussain as would appear from the allotment order dated 1-1-1958. The advertisement for auction dated 17th of June, 1970 also shows that the appellant was in occupation of one portion. The photostat list of properties proposed to be auctioned in 1960 which was filed as an Annexure "B" to the writ petition by the present appellant shows the number of shop as 182/5, the occupant as P.T. Ram Ishwar Datt and the rental as Rs.72/- per month. It is also mentioned as an independent unit. It was this portion which was put to auction on 25-11-1960 and purchased by respondent No.2, who gave the highest bid of Rs.600/-. The other portion which was also an independent unit was for the first time listed for auction on 17-6-1970, but subsequently transferred to the appellant by the Deputy Settlement Commissioner by order dated 22-2-1972 against treating it to be an independent portion. All this shows that the Settlement authorities had treated the two portions as separate and independent units by their manner of disposal. Therefore, the High Court fell into an error in holding that there was one unit and that was auctioned to respondent No.2. This finding is against the settled principle that the discretion of the Settlement authorities cannot be interfered with in the matter of division of property or its being treated as a separate unit in the exercise of constitutional jurisdiction as this would amount to usurpation of discretion required to be exercised by the Settlement authorities under the law. There is, however, an exception to this rule, that is, where the order is arbitrary or capricious, then it is open to review but that is not the case here.
11. We have asked the learned counsel for the respondent No.2 as to whether there was any material to show that the other portion was also transferred to him, but his reply was that apart from the auction material, there was none. In this view of the matter, we are of the view that the Deputy Settlement Commissioner rightly transferred the portion in the occupation of the appellant to him by his order dated 22-2-1972, and the Settlement Commissioner erred in denying to him his right while ordering its auction as an independent portion on the ground that his remedy was foreclosed upon the withdrawal of the writ petition. This was a clear error on the part of the Settlement Commissioner as he was non-suited because he had not filed the form. This could not be regarded as an estoppel if subsequently he had become entitled to its transfer under the revised scheme under which he had duly applied for its transfer.