P L D 1973 Lahore 318 (PLP)

Nemo for Respondent No.

2. Dates of hearing : 15th, 16th and 21st December 1971. Petitioner, an evictee from Islamabad Development Authority, was allotted land in Chak No. 1/8‑R, Tehsil Khanewal, District Multan, on 2nd February 1966. He belongs to village Beecho, is entitled to 'C' class land and according to the Scheme framed for resettlement of displaced persons from Islamabad he was entitled to State land in Tehsil Kabirwala. In his application dated 1st February 1966, submitted to the A. D. R., Islamabad, he wanted allotment in this Chak on the ground that the 'C' class area in Tehsil Kabirwala was of inferior quality and most of his relations had settled in Tehsil Khanewal. The State land comprising Kdlas Nos. 11/1, 12/1, 13/1, 14/1 and 15/1 of Square No. 67, Killas Nos. 5 to 7, 9, 10, 11/1, 13/1, 14/1 ant 15/1 of Square No. 68 and Killas Nos. 6, 15, 25 of square No. 58, measuring 99 kanals and 15 marlas was allotted to him.

2. Lt.‑Colonel Dost Muhammad Khan's father was allotted` land under the Horse Breeding Scheme in this Chak in the year 1921, out of which an area of about 100 kanals was acquired by the Government for the construction of link canal. He did not like to get compensation in cash and submitted an application on 24th March 1965 to the Collector asking for allotment of equivalent area in order to keep his one square intact under the Horse Breeding Allotment Scheme. His application for this. land was pending when its allotment was made in the name of the petitioner. The respondent filed an appeal before the Additional Commissioner (Revenue) against the order of allotment dated 2nd February 1966, made in favour of the petitioner. The appeal was accepted on 6th July 1966, and the land was cancelled from the petitioner's name. The petitioner filed a revision petition before the Member, Board of Revenue which was dismissed on 22nd November 1967. Hence this petition under Article 98 of the Constitution.

3. It was vehemently contended by learned counsel for the petitioner that the respondent‑allottee, before the acceptance of appeal, agreed to the allotment of some other land in the village and, therefore, at the time of hearing of the appeal be bad no claim left for the disputed land. His next submission was that the order passed by the Additional Commissioner was ex parte against his client and the Member, Board of Revenue has dis regarded the evidence on the record in coming to the conclusion which he did and passed an arbitrary order rejecting the claim of the petitioner.

4. On the other hand Sardar Abdul Jabbar Khan, learned counsel for the respondent‑allottee, submitted that the petitioner had no vested right in this particular piece of land. The order dated 2nd February 1966, was reviewed by the competent authority on 18th August 1966 and, therefore, that has become final since no appeal or revision has been filed against it. Lastly the petitioner is not entitled to the allotment of land under the Scheme. He being entitled to 'C' class area in Kabirwala has been given 'B' class land to this Chak primarily with the consideration that his relations have settled in this Chak. In fact Allah Ditta, his special attorney, has secured allotment of land for him, and his relations. The petitioner would have also sold his land to some one according to the choice of Allah Ditta as has been done in case of all other relations of his. Allah Ditta has sold land to his sons, relations and friends by various mutations. Copies of Mutations Nos. 47, 48, 49, 50 and 51 sanctioned on 10th April 1969, except Mutation No. 50, which was sanctioned on 31st March 1969, have been placed on the record. The petitioner, therefore, cannot claim preference for allotment of land in dispute over Lt.‑Col. Dost Muhammad who has been in the village for the last several years.

5. It has been found by the learned Member, Board of Revenue that the order passed against the petitioner was an ex parte order after proper service. The petitioner, therefore,, cannot make grievance on that score. The main consideration which weighed with the learned Additional Commissioner in accepting the appeal, according to the petitioner, was that the land in question was contiguous to the respondent's land which in fact is incorrect. He has, therefore, misread the record in accepting the appeal. Disputed questions of tact cannot be gone into in the exercise of writ jurisdiction. Moreover, this is not the solitary point on which the appeal has been decided by the Additional Commissioner. He has considered the rights .41 of the parties for allotment of the land in dispute and has come to the conclusion that the respondent‑allottee has a better claim since he is settled in the village long before and the petitioner was in fact entitled to 'C' class land in village Kabirwala. The conclusion, therefore, drawn by him cannot be said to be without lawful authority, for, he has taken into consideration various factors before deciding the appeal. These grievances, however, disappear because the petitioner himself went in revision before the Member, Board of Revenue, who after hearing him and taking into consideration the rights of the parties decided against the petitioner. Learned counsel for the petitioner submitted that this order is arbitrary, for, the Collector was not duty bound to dispose of the application of the respondent‑allottee for this land and in any case the land has been included in the Schedule for allotment to displaced persons from Islamabad by the Collector. In fact according to Mr. G. A. Gondal the respondent‑allottee could not get this Charagah land by virtue of paragraph 321(2) of the Colony Manual, Volume I, which excludes this land from allotment in favour of the respondent‑allottee, the land having been Included in the Schedule for allotment to the Islamabad evictees the petitioner has a genuine claim for the same. On the other hand reliance was placed on 1kram Bus Service and others v. Board of Revenue, West Pakistan (PLD 1963 S C 564) by learned counsel for the respondent in support of the proposition that the respondent allottee had a legal right to claim disposal of his application for allotment of thi3 land under section 10 of the Colonization of Government Lands (Punjab) Act, 1912. His application having not been decided, if the Collector has shown, the land in dispute in Schedule for land reserved for evictees or Islamabad, such an action of the Collector is not justified and cannot take away the respondent‑allottee's claim and if the Member, Board of Revenue and the Additional Commissioner have come to the conclusion that the respondent‑allottee has a better claim in preference to the petitioner such orders cannot be called arbitrary, in fact the petitioner cannot claim any superior right in this particular piece of land. The respondent‑allottee, however, has no grievance if any other land is given to him in the Chak. As explained earlier the main consideration, for which the land was given to the petitioner in this Chak, has evaporated on account of the sale of land by his relations in favour of sons, friends and relations of Allah Ditta who has been the special attorney of the petitioner and his relations.

6. The main question for determination in this petition is as to whether Lt.‑Col. Dost Muhammad having obtained alternative land had waived his right to the land in question and whether the principle of estoppel comes in his way. Sardar Abdul Jabbar Khan, learned counsel for the respondent‑allottee cited a number of authorities and argued that his client's case is not hit by doctrine of estoppel, for he had not waived his claim against the land in dispute, having filed an appeal against the order of allotment in favour of the petitioner. Had he filed the appeal after accepting the alternate land then it could be argued that he had waived his right for the land, but this is not the position. His grievance for allotment of land in question in favour of the petitioner continued. The petitioner cannot be said to have been led to any conclusion adverse to the interest of the respondent‑allottee. Ch. Altaf Hussain and others v. The Chef Settlement Commissioner, Pakistan (P L D 1965 S C 68), Abdul Wahid Khan v. The Custodian of Evacuee Property, West Pakistan, Karachi and others (P L D 1962 Quetta 72) and K. Kochunni v. K. Kuttanunni (P L D 1947 P C 344) refer. My attention was drawn also to paragraphs 343, 379 and 440 of Halsbury's Laws of England, Third Edition, Volume

15. Paragraph 343 deals with mutuality. A portion of it is repro duced hereunder :‑ A maxim which is stated by the old writers as applicable to estoppels generally is that they ought to be mutual" or "reciprocal" which means that they must bind both parties, and that a stranger can neither take advantage of nor be bound by them. This maxim, as will be seen later, has an important bearing on the law of estoppel by record. Similarly paragraph 379 mentions the persons who can take advantage of estoppel by record. They are those who, if the decision had been the other way, would have been bound by it, that is to say, in case of a judgment inter partes, the parties and their privies. Paragraph 440 deals with estoppel, by conduct. A portion of it reads as: The question whether a course of conduct, negligent or otherwise, amounts to a representation, or is such as a reasonable man would take to be a representation meant to be acted on in a certain way, must vary with each particular case; and, with certain exceptions, no general rules can be laid down for answering it. The acceptance of money paid in considera tion of the existence of a certain state of things often estops the receiver, in the absence of some cause unknown to him entitling him to terminate it from denying the existence of that state of things, and affords conclusive evidence of a waiver of any objection to the contract or other matter in respect of which it is paid. Thus the acceptance of premiums with knowledge of circumstances entitling the insurer to avoid the policy estops him from averring that for that reason it is not a valid policy.

7. In all cases of representation capable of raising an estoppel the representation must be shown to have been made with the intention of producing certain state of belief in the mind of the representee. Has the respondent‑allottee in unequivocal, definite and clear manner made any statement relinquishing his right for allotment of the land in dispute? The answer is in the B negative because he has continued with his grievance by filing the appeal. He has not surrendered his claim and by no stretch of imagination it can be assumed that the petitioner was led to believe to the contrary by his conduct of securing an alternative allotment. Mr. G. A. Gondal cited a judgment of B. Z. Kaikaus, J. reported as Ch. Barkat Ali v. Chaman Din (P L D 1955 Lah. 548) and argued that estoppel& are not only of the kind mentioned in sections 115 to 117 of the Evidence Act but there are other estoppels which are of infinite variety and one of which could be the inconsistent posi tions which a litigant seeks in pursuing his remedies. In fact he laid stress that the respondent‑allottee cannot be permitted to approbate and reprobate in asking the selection of land. He cited Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf (P L D 1971 S C 376) and argued with vehemence that the respondent allottee's case is hit by acquiescence. In support of his submission he relied on Qamaruddin Ahmad & Co. v. Haji Din Muhammad and another (1970 S C M R 402), Kodoth Ambu Nair v. Kehikan Charekere Kelu Nazir (A I R 1933 P C 167), Chidambargauda Ramchandragauda Desai and others v. Chanuappa Mahalinlappa and others (A I R 1934 Bom. 329), Hafeezud Din v. Mian Khadim Hussain, Additional Deputy Commissioner, Lahore and another (P L D 1965 Lah. 4309) and Mst. Zainab and others v.Fazal Dad and others (P L D 1966 Lah. 1050).

8. In my humble view in this case there is no waiver of right by Lt.‑Col. Dost Muhammad because he continued his demand for the land in dispute by filing the appeal. His grievance is that he has a preferential claim over the petitioner who is not as of right entitled to allotment in this estate. There being no waiver no estoppel can be pleaded. There is no question of approbation and reprobation involved in this case, for, the respondent‑allottee, did continue his appeal while temporarily selecting some other land which arrangement he made as an abundant caution. He never gave up his claim for this land. If officials in the hierarchy of the Revenue Department have selected him as a person having better right then, whatever considerations weighed with them, the orders cannot be called without lawful authority or arbitrary in any manner. They have considered entire evidence and preferred one version over the other. Appraisal of evidence is not the function of this Court in the exercise of its extraordinary jurisdiction of judicial review of acts of public functionaries. This Court is not a Court of appeal to do so.

9. It is a question of choice and the consideration of right. The respondent‑allottee has never given up his choice for the land in dispute for which he was the earliest applicant in the estate. The petitioner, who according to the scheme, was origi nally entitled to allotment in Kabirwala Tehsil was allotted land mainly on the ground that other relations of his have settled in Tehsil Khanewal. From the mutations produced on the record it is abundantly clear that this condition has also disappeared and the real beneficiaries of these allotments are the relations of Allah Ditta attorney of the petitioner. In this view of the matter the petitioner's claim could not be urged with success for relief under Article 98 of the Constitution.

10. The point raised by Sardar Abdul Jabbar regarding finality of the order of review, was not pressed. Review order in any case cannot be valid for it was passed behind the back of the petitioner.

11. For the foregoing reasons the orders passed by the Additional Commissioner and the Member, Board of Revenue cannot be called to be without lawful authority and no exception can be taken to them. This petition fails and is dismissed leaving the parties to bear their own costs. S.A.H. Petition dismissed.