2024 CLS 15

Other citations: 2022 LHC 2385 = 2024 CLC 114

[Lahore High Court]

Before Mirza Viqas Rauf and Ahmad Nadeem Arshad, JJ

Reham Dad—Petitioner

versus

Province of Punjab through its Chief Secretary and others—Respondents

Intra Court Appeal No. 13 of 2021, heard on 24^th March, 2022.

HEADNOTES

(a)   Law Reforms Ordinance (XII of 1972) —

— S. 3 — Land Acquisition Act (I of 1894), Ss. 18 & 54 — Punjab Land Acquisition Rules, 1983, Rr. 14 & 15 — Intra Court Appeal — Maintainability — Scope — Appellant moved an application under rules 14 and 15 of the Punjab Land Acquisition Rules, 1983 which was dismissed by the Member (Colonies), Board of Revenue, that order was assailed through Constitution Petition with the same result as dismissed by the Single Judge in Chamber vide impugned order — Although, no remedy of appeal, revision or review is provided in the Punjab Land Acquisition Rules, 1983, but the original order of acquisition of appellant’s land provides remedy of reference (section 18) and appeal (section 54) under the Land Acquisition Act, 1894 — The test laid down by the legislature is that whether the original order passed in the proceedings is subject to an appeal under the law or not? — If the law applicable to the proceedings from which the Constitution Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court — The crucial words are the “original order” and meaning of expression “original order” is the order with which the proceedings under the relevant statute commenced — In the light of aforesaid definition the proceedings under the Land Acquisition Act, 1894 would seem to be commenced with the acquisition of appellant’s land and that proceedings ended with ‘Award’ of the Land Acquisition Collector — Against which the remedy of ‘Reference’ under Section 18 and then appeal under Section 54 of the Land Acquisition Act, 1894 were available — The appellant filed application under rules 14 & 15 of the Punjab Land Acquisition Rules, 1983 in respect of acquisition order of his land — In this way this application did not start any new proceedings and order of acquisition is the original order with which proceedings under the Land Acquisition Act, 1894 were commenced and all orders subsequently passed would be treated as orders passed in continuation of said proceedings — Therefore, in view of availability of remedy of appeal under Section 54 of the Land Acquisition Act, 1894 qua the original order of acquisition proceedings, the Intra Court Appeal is not maintainable under proviso of Section 3(2) of the Law Reforms Ordinance, 1972. [Para. No. 10 & 11]

(b)   Law Reforms Ordinance (XII of 1972) —

— S. 3 — Intra Court Appeal — Scope — Section 3 of the Law Reforms Ordinance, 1972 provides the remedy of Intra Court Appeal in certain eventualities but no such appeal is available or competent if an application brought before the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or Authority against the original order. [Para. No. 5]

Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/MD., Karachi (PLD 2001 Supreme Court 182), Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 Supreme Court 344) relied.

(c)   Constitution of Pakistan —

— Art. 189 — Decision of Supreme Court binding on other Courts — Scope — In case of conflict between the judgments of Supreme Court of Pakistan on a point of law, the judgment of larger Bench shall prevail. [Para. No. 15]

Ch. Afrasiab Khan, Advocate for petitioner.

Aamir Azad Khan, Advocate for respondents.

Date of hearing: 24^th March, 2022.

JUDGMENT

Ahmad Nadeem Arshad, J:—This Intra Court Appeal is directed against judgment dated 21.01.2021 passed by learned Single Judge in Chamber whereby the Writ Petition of the appellant against order dated 20.02.2012 passed by Member (Colonies), Board of Revenue, Punjab, was dismissed.

2.           Relevant facts forming background of this Intra Court Appeal are that appellant moved an application under Rules 14 & 15 of the Punjab Land Acquisition Rules, 1983 (hereinafter referred to as “Rules 1983”) for return of acquired land before Senior Member, Board of Revenue, Punjab (respondent No.2), which was dismissed by the Member (Colonies), Board of Revenue, Punjab (respondent No.3), after its entrustment vide order dated 20.02.2012. Appellant assailed said order through Writ Petition No.2907 of 2018 titled as “Reham Dad Vs. Province of Punjab, etc.” which was dismissed by learned Single Judge in Chamber of this Court vide judgment dated 21.01.2021. Being dissatisfied, appellant filed instant appeal.

3.           On 06.09.2021 learned Law Officer questioned the maintainability of this Intra Court Appeal on the ground that same is arising out of the Land Acquisition Rules framed under the Land Acquisition Act, 1894 (hereinafter referred to as “Act 1894”) which provides a remedy of appeal under Section 54 of the “Act 1894” and the case was adjourned for determination of the question of maintainability. Today the learned Law Officer again raised such objection qua maintainability of this appeal by reiterating her stance in the light of law laid down by the august Supreme Court of Pakistan in the case of MST. KARIM BIBI AND OTHERS V. HUSSAIN BAKSH AND ANOTHER (PLD 1984 SC 344). The learned counsel appearing on behalf of the appellant while defending the point of maintainability of instant ICA, states that the proceedings arising out in the case are from the “Rules 1983” wherein no remedy of appeal was provided and while relying upon the case law cited as “Secretary to the Govt. of Punjab, Revenue Department and others V. Sajjad Ahmad and another” (2012 SCMR 114) maintains that in the light of principles laid down by the August Supreme Court of Pakistan in the case referred supra, Intra Court Appeal is very much competent and maintainable.

4.           We have heard learned counsel for the parties at length and perused the record with their able assistance and case laws cited at bar.

5.           There is no cavil with the proposition that section 03 of the Law Reforms Ordinance, 1972, (hereinafter referred to as “Ordinance 1972”) provides the remedy of Intra Court Appeal in certain eventualities but no such appeal is available or competent if an application brought before the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or Authority against the original order. For facility of reference, it would be appropriate to reproduce Section 3 of “Ordinance, 1972”, which reads as under:

3. Appeal to High Court in certain cases.

(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction.

(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 not being an order made under subparagraph (i) of paragraph (b) of that clause:-

Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any court, tribunal or authority against the original order.

(3) No appeal shall lie under sub-section (1) or sub-section (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.

(4) Nothing contained in this Ordinance shall be construed as affecting–

(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance; or

(b) any appeal or petition for leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972.].

6.           The “Ordinance 1972” came into force on the 14^th of April, 1972. Under Section 3(a) of the Ordinance it was laid down that as from the commencement of the “Ordinance 1972” no appeal under the provisions of any Letter Patent, as applicable to a High Court, shall be entertained by such High Court. This had completely done away with the Intra Court Appeal from the judgment of a Single Judge of the High Court to a Bench consisting of two or more Judges of the same Court under the letters patent of the High Court. But then the law in this respect was amended and this section was substituted under the Law Reforms (Amendment) Ordinance XXXIV of 1972, which came into force on the 10^th of August, 1972. Under the newly substituted Section 3(1) of the Ordinance it was laid down that an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. But at the same time Section 3(2) provided that no appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that High Court under clause (2) of Article 201 of the Constitution of the Islamic Republic of Pakistan in a matter arising under any law relating to rehabilitation and settlement of displaced persons. Once again this Section was amended and substituted by Section 3 of the Law Reforms (Amendment) Act (No.VIII of 1972). Although this Section came into force on 12^th of September, 1972 but it had a retrospective effect. Further amendments were introduced into this section by the Law Reforms (Amendment) Act (VI of 1975) which came into force on 13^th of January, 1975.

This section is in two parts. In this connection subsection (1) of Section 3 of the “Ordinance 1972” lays down that an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its Original Civil Jurisdiction.

The mere fact of a matter coming directly before the High Court under a law would not, however, suffice to bring it within the ordinary original civil jurisdiction. The ordinary original civil jurisdiction was given for removal and trial of suits pending or falling within the jurisdiction of Courts subordinate to the High Court. Even other jurisdiction of civil nature conferred by the Letters Patent would, be best described as special jurisdiction or as statutory jurisdiction, since some of those jurisdictions were to be exercised under existing statutes. An order passed by a Single Judge in exercise of the jurisdiction vested in the High Court while dealing with Constitutional petition was not open to appeal before a Bench of two or more Judges.

Under the operative part of subsection (2) of section 3 of the “Ordinance 1972” in general an appeal shall lie to a Bench of two or more Judges of the High Court against an order passed by a Single Judge under clause (1) of Article 199 of the Of the Constitution of Islamic Republic of Pakistan, 1973, not being an order made under sub-paragraph (i) of paragraph (b) of that clause. But this is subject to and controlled by the proviso.

7.           The Hon’ble Supreme Court of Pakistan in its esteemed judgment “Syed Arif Raza Rizvi Versus Messrs Pakistan International Airlines through Chairman/MD., Karachi” (PLD 2001 Supreme Court 182) while interpreting the function of proviso held as under:-

“The proviso lays down that no such appeal to a Bench of two or more Judges of the High Court shall be available or competent if the application brought before the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, arises out of any proceedings in which the law applicable provided for at least one appeal, or one revision or one review to any Court, Tribunal or Authority against the original order. At this stage a short analysis of this proviso shall be helpful. It takes us back to the “proceedings” out of which the petition under Article 199 (1) of the Constitution has arisen, so as to find out the law applicable to those proceedings, and then to see whether that law provided for at least one appeal, or one revision, or one review to any Court, Tribunal or Authority against the ‘original order’. In case this is so, then there shall be no appeal to a Bench of two or more Judges of the High Court from an order made by a Single Judge of the same Court under Article 199 (1) of the Constitution. These are the steps that must be taken before invoking the bar contained in the proviso against an Intra-Court Appeal to a larger Bench from the order of a Single Judge of the High Court. (PLD 1975 Lah. 1339). Where it was contended that order passed under Article 199 of the Constitution (1973) was an order passed by the Court in the exercise of “original civil jurisdiction” and was appealable under subsection (1) of section 3 of the Law Reforms (Amendment) Act. Held, this contention has no force. There is a chain of authorities for the contrary view that in disposing of a Constitutional petition under Article 199 of the Constitution, the High Court does not pass the order in exercise of its civil original jurisdiction. A judgment deciding a Constitutional petition under Article 98 of the Constitution of Pakistan, 1962 (corresponding to Article 199 of the 1973 Constitution), is not a judgment passed by the High Court in the exercise of its civil original jurisdiction within the meaning of subsection (1) of section 3 of the Law Reforms (Amendment) Act, 1972. (PLD 1975 Lah. 1372 + PLD 1974 Karachi. 345). The writ jurisdiction is a Constitutional jurisdiction, and therefore, it follows that a judgment deciding a Constitutional petition would not be a judgment in the exercise of the original civil jurisdiction within the meaning of subsection (1) of section 3 of the said Act. (PLD 1974 Karachi. 345). Subsection (4) of section 3 of the said Act only saves an “appeal under the provisions of the Letters Patent applicable to a High Court…which was pending immediately before the commencement of the Ordinance.” A right of appeal is different from an appeal which is pending, and an appeal can be said to be pending only after it has been filed, therefore, it is clear that Legislature intended to save only those appeals under clause (10) of the Letters Patent which had actually been filed in the High Courts before 11th April, 1972, and this necessarily means that except for the appeals expressly saved all other rights of appeal had been abolished. (PLD 1974 Karachi 345). The proviso to section 3 (2) of the Law Reforms Ordinance (XII of 1972) as amended bars the Intra-Court appeal to a Bench of two or more Judges of the High Court in case the law applicable to the proceedings provide for at least one appeal, revision or review against the original order. In other words the bar under the proviso is applicable, if the law applicable to the proceedings provided for a forum for appeal, revision or review against the original order. This bar under the proviso is attracted in case such a forum is provided under the law applicable even though the aggrieved party did not actually avail of the remedy provided by means of the appeal, revision or review. This is the only rational and harmonious interpretation that can be put on this proviso in consonance with the intention of the Legislature (PLD 1975 Lah. 1339). The proviso in question was not intended to exclude a pending Letters Patent Appeals from the operation of the entire Ordinance but only of the section in which it is to be found. As a general rule a proviso to a section cuts down the meaning of that section as a proviso to a group of sections would cut down the meanings of that group provisos are not generally intended to do more than this (PLD 1975 Kar. 96). This clear purpose of the proviso was to make it plain that, despite section 3, which otherwise abolished Letters Patent Appeals and Second Appeals of a certain category, such matters as were then pending would not be affected. (PLD 1975 Ka. 96). The express “Original Order” in the context of this proviso has been used to distinguish it from the appellate or revisional order, or an order passed in the exercise of review jurisdiction. In order to attract the application of the proviso one has to see if the law applicable to the proceedings (giving rise to the Constitutional petition) provided for at least one appeal, one revision or one review against the original order. It may be that although an appeal, revision or review against the original order was provided by the law but the right was not actually availed of and no appeal, revision or review was, in fact, filed against it. It is immaterial even if no appeal, revision or review against the original order was actually filed as long as the law itself provided for the one against it. (PLD 1975 Lah. 1339). (See also “Law Reforms Ordinance, 1972”, pages 9 to 14 + PLD 1993 Kar. 713 + PLD 1984 SC 344).”

8.           The scope of proviso to subsection (2) of Section 3 of the “Ordinance 1972” when came under consideration before the Hon’ble Supreme Court of Pakistan in the case of “Mst. Karim Bibi and others v. Hussain Bakhsh and another” (PLD 1984 Supreme Court 344), it was ruled as under: –

“7. A plain reading of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance means that no appeal will be available or competent before a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court in a Constitutional Petition, if such petition arises out of “any proceedings” in which the law applicable provided for at least one appeal against the original order. The reference is clearly to the proceedings taken under any statue which prescribes a hierarchy of officers or authorities for the carrying into effect the purposes of such statue including the enforcement of rights, if any, created thereunder. In such a case clearly the law envisages an original order against which the remedy of appeal was provided by the relevant statue.”

8. …… The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the “original order”. It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently, the meaning of the expression “original order” is the order with which the proceedings under the relevant statute commenced. The word “proceedings” has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statute. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue (1) in which this Court had occasion to examine the scope and meaning of the word as it occurs in section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as the meaning of the term “proceedings”. An earlier case of Jan Muhammad and another v. Home Secretary, West Pakistan and others (2) was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case reference was made to the definition of the term “proceedings” in the book “Words and Phrases” which may usefully be reproduced as under:-

“The term ‘proceedings’ is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A ‘proceeding’ would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and include all possible steps in the action under the law, from its commencement to the execution of the judgment.”

9.           “Rules 1983” having been made under section 55 of the “Act 1894” and are only restricted in application to the cases falling within the preview and the acquisitions under the said Act. The rules are the progeny of a statue, which are made by the competent authority in the exercise of its delegated legislative power under such Act and the application thereof is empowered, confined and limited to the law under which those are framed. Reference has been made to the “Province of Punjab V. Rana Zaildar Khan” (2013 SCMR 219).

10.         In the case in hand appellant moved an application under rules 14 & 15 of the Rules, 1983 which was dismissed by the Member (Colonies), Board of Revenue, Punjab, Lahore, that order was assailed through Constitution Petition with the same result as dismissed by the learned Single Judge in Chamber vide impugned order. Although, no remedy of appeal, revision or review is provided in the “Rules 1983”, but the original order of acquisition of appellant’s land provides remedy of reference (section 18) and appeal (section 54) under the “Act 1894”. The test laid down by the legislature is that whether the original order passed in the proceedings is subject to an appeal under the law or not? If the law applicable to the proceedings from which the Constitution Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the “original order” and meaning of expression “original order” is the order with which the proceedings under the relevant statute commenced.

11.         In the light of aforesaid definition the proceedings under the “Act 1894” would seem to be commenced with the acquisition of appellant’s land and that proceedings ended with ‘Award’ of the Land Acquisition Collector. Against which the remedy of ‘Reference’ under Section 18 and then appeal under Section 54 of the “Act 1894” were available. The appellant filed application under rules 14 & 15 of the “Rules 1983” in respect of acquisition order of his land. In this way this application did not start any new proceedings and order of acquisition is the original order with which proceedings under the “Act 1894” were commenced and all orders subsequently passed would be treated as orders passed in continuation of said proceedings. Therefore, in view of availability of remedy of appeal under Section 54 of the “Act 1894” qua the original order of acquisition proceedings, the Intra Court Appeal is not maintainable under proviso of Section 3(2) of the “Ordinance, 1972”.

12.         There is no denial to the fact that appellant moved the application under rules 14 & 15 of the “Rules 1983” before the Senior Member Board of Revenue, Punjab, Lahore (respondent No.2) who entrusted the same to the Member (Colonies), Board of Revenue, Punjab, Lahore (respondent No.3). Respondent No.3 dismissed the application vide order dated 20.02.2012 which was subject matter of the Writ Petition. The Board of Revenue established and constituted under the West Pakistan Board of Revenue Act, 1957, and any order passed by the Member is a judicial order for all intents and would be deemed to be order of the Board (Section 6(2) of the Act, 1957). Section 8 of the West Pakistan Board of Revenue Act, 1957 provides the remedy of review with regard to order passed by the Member, Board of Revenue, Punjab which is reproduced hereunder for reference:-

8. Review of orders by the Board. (1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made , or on account of some mistake or error apparent on the face of the record [or for any other sufficient reason] desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.

(2) Every application for a review of a decree or order under sub-section (1) shall be made within ninety days from the date of that decree or order.

13.         In our opinion, the writ petition was essentially against the order passed by the Member Board of Revenue, against which, remedy of review is available, therefore, even on said premises, appellant was precluded to invoke Section 3 of the “Ordinance 1972”.

14.         Attending the contention of learned counsel for the appellant that in the light of principles laid down in the case of “Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and another” (2012 SCMR 114) Intra Court Appeal is maintainable, it is observed with all reverence that facts of the said case rest on entirely different footing. The proceedings arising out in the said case are from the letter dated 18.01.2006 issued by the Board of Revenue Punjab, whereby keeping in view the policy of the Government two conditions were imposed with regard to restoration of land and said memorandum was challenged through the Constitutional petition, and wherein no remedy of appeal was provided against said letter/memorandum. Above all, the judgment in the said case was rendered with consent of both the sides. Even otherwise, the said judgment was delivered by the Hon’ble Bench comprising of three members whereas the judgment in the case of “Mst. Karim Bibi and others v. Hussain Bakhsh and another” (PLD 1984 Supreme Court 344) was rendered by four Hon’ble Judges of the Hon’ble Supreme Court of Pakistan.

15.         Coming to the binding effect of the judgments, it is observed that in case of conflict between the judgments of Hon’ble Supreme Court of Pakistan on a point of law, the judgment of larger Bench shall prevail. The above principle is enunciated in “Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others” (PLD 2009 Supreme Court 284), which was later on followed in “National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others” (2011 SCMR 446) and “Messrs Wak Limited Multan Road, Lahore v. Collector Central Excise and Sales Tax, Lahore (now Commissioner Inland Revenue, LTU Lahore) and others” (2018 SCMR 1474). Reference in this respect can also be made to “Messrs AL-Mahmudia (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others” (PLD 2007 Supreme Court 79).

16.         After having a thread bare discussion, and following the law laid down by the Honourable Supreme Court of Pakistan in the cases of Mst.Karim Bibi, Syed Arif Raza Rizvi and Province of Punjab (supra), we are of the considered view that the present Intra Court Appeal is not competent and maintainable in presence of proviso to subsection (2) of Section 3 of the “Ordinance 1972” and as such the same is dismissed with no order as to cost.

Appeal dismissed