2022 PLP 1195 (MLD)

ABID AZIZ SHEIKH, J.

Through this Intra Court Appeal (ICA) under section 3 of the Law Reforms Ordinance, 1972 (Ordinance), the appellant has assailed the order dated 25.03.2015 whereby his constitutional petition was dismissed by the learned Single Bench.

2. Relevant facts are that on 14.05.2014, notification under section 4 of the Land Acquisition Act, 1894 (Act) was published in the official gazette for the acquisition of land measuring 232-Kanal and 09-Marla for public purpose i.e. for establishment of Nawaz Sharif Medical College. On 23.01.2015, a notification under sections 17(4) and 6 of the Act was issued by the District Collector and the land was acquired for above public purpose. The appellant being aggrieved, challenged the above notifications dated 14.05.2014 and 23.01.2015, however, the writ petition was dismissed through impugned order on 25.03.2015, hence this appeal.

3. The learned Law Officer at the very outset raised preliminary objection to the maintainability of this appeal on the ground that being remedy of appeal available against the original order under section 54 of the Act, this ICA is not maintainable. On merits, he submits that award has already been passed on 07.04.2015 after fulfilling all legal requirements, therefore, the appellant should challenge the award under the provision of the Act, instead of filing instant appeal.

4. The learned counsel for the appellant in response to preliminary objection submits that appellant has challenged the notifications dated 14.05.2014 and 23.01.2015 in the writ petition against which no appeal is provided under the Act, therefore, this ICA is maintainable. He further submits that the aforesaid notifications were issued malafidely after withdrawing earlier notification dated 18.02.2009 in respect of land in different Khata, therefore, the writ petition could not be dismissed.

5. Heard. Before touching merits of the case, we would like to decide threshold question of maintainability of this appeal. Admittedly the appellant challenged the notifications dated 14.05.2014 and 23.01.2015 issued under sections 4, 6 and 17(4) of the Act. There is no dispute that said notifications have already been culminated into award dated 07.04.2015 and section 54 of the Act provides an appeal in the proceedings before the Court. In such scenario the moot question required determination is that whether ICA is maintainable under section 3 of the Ordinance.

6. In this context, for convenience, proviso to subsection (2) of section 3 of the Ordinance is reproduced hereunder:- "Provided that the appeal referred to in this subsection 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." The plain reading of above proviso shows that appeal shall not be available or competent under section 3 of the Ordinance before Division Bench, of this Court if the petition brought before High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), arises out of any proceedings in which the law applicable provided for at-least one appeal, one revision or one review to any Court, Tribunal or authority against the original order. This means that the relevant order may not necessarily be the one which is impugned in the writ petition but the test is that whether the original order passed in the proceedings is subject to appeal, revision or review under the relevant law.

7. The same view was also expressed by the honourable Supreme Court in Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344). The relevant observations are reproduced hereunder:- "

8. After giving our anxious consideration to the arguments urged in support of this appeal, we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from 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 challenged 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 or the particular statute."

8. The honourable Supreme Court in Muhammad Aslam Sukhera and others v. Collector, Land Acquisition and others (1998 SCMR 167) upheld the learned Division Bench order of this Court of dismissing the ICA being not maintainable in land acquisition matter and while relying upon Mst. Karim Bibi' case supra held that award of the Tribunal in land acquisition matter by virtue of section 59(d) of the Act is deemed to be the award of the Court under the Act and therefore, same is amenable to appeal under section 54 of the Act. The above Judgement was challenged in review and august Supreme Court in Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another (PLD 2005 SC 45) while interpreting the word "original order" under proviso to subsection (2) of section 3 of the Ordinance held that the expression "original order" in section 3(2) of the Ordinance, is used in generic sense in contradistinction to orders passed in appeal, revision or review. The apex Court further held that it cannot be said that the award by the Tribunal under the Act is not an "original order" for the purposes of bar contained in proviso to section 3(2) of the Ordinance.

9. The same view was also expressed by the Division Bench of this Court in Lahore Development Authority through Director-General and another v. Commissioner, Lahore Division, Lahore and another (2009 CLC 86) as under:- "

6. In the present controversy undisputedly the impugned proceedings were commenced under the provisions of Land Acquisition Act and in case an order is passed in such proceedings, a right of appeal is available to the aggrieved party as per provisions of section 54 of the Land Acquisition Act, 1894.

7. When the ground reality is undisputed as discussed above, then we cannot proceed with the present Intra Court Appeal and thus, following the law laid down by the Honourable Supreme Court of Pakistan in the case of Mst. Karim Bibi and Muhammad Aslam Sukhera (supra) and keeping in view the rule of consistency, following the law laid down in Ch. Nazir Ahmed (supra), we hold that this Intra Court Appeal is not competent. Accordingly, the same dismissed with no order as to costs." Similarly in Mst. Nasreen Tariq v. Government of Punjab through Secretary Housing and Physical Planning Department and 3 others (2007 MLD 980) the learned Division Bench held as under:- "

5. Acquisition proceedings under the Land Acquisition Act, 1894 were challenged through a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This Intra-Court Appeal has been filed under section 3 of the Law Reforms Ordinance, 1972, Proviso to which, bars availability of this right in case the original enactment out of which proceedings challenged in the writ petition, emanated, envisaged any appeal/revision or review. Section 54 of the Act (ibid) provided an appeal against Award by the Land Acquisition Collector concerned, thus the impugned judgment, dated 11-9-2006 is not open to challenge through instant ICA."

10. In present case, admittedly the notifications dated 14.05.2014 under section 4 and dated 23.01.2015 under sections 6 and 17(4) of the Act, impugned in the writ petition were issued in the proceedings, in which the right of appeal is provided under section 54 of the Act against the original order i.e. award, therefore, the ICA is not maintainable under proviso to subsection (2) of section 3 of the Ordinance.

11. In view of above discussion, the preliminary objection is sustained and the instant appeal is dismissed being not maintainable. ZH/L-5/L Appeal dismissed.