2020 PLP 1005 (CLC)

C.M.No.3/2019. This application seeks restoration of appeal, dismissed for non-prosecution on 20.11.2019. Application is supported by affidavit of the counsel. In view of the reasons pleaded, this application is allowed, and main appeal is restored to its original number. Office is directed to fix main appeal today. With consensus, main appeal is heard. MAIN CASE.

2. This Intra-Court Appeal assails judgment dated 18.12.2018, whereby learned Single Judge-in-Chambers allowed constitutional petition filed by the respondent and directed the appellant society to deliver possession of plot and in case of reduction in measurements of plots, pay compensation at the market rate. Hence, this appeal under subsection (2) of section 3 of Law Reforms Ordinance, 1972.

3. Respondent has objected to the maintainability of this appeal in view of proviso to subsection (2) of section 3 of Ordinance, 1972. He submits that matter brought before this Court, through constitutional petition, has arisen out of proceedings in which applicable law, Punjab Co-operatives Societies Act 1925 ('Act, 1925'), provides for a remedy of appeal, under section 64 of Act, 1925, therefore instant appeal is not maintainable. Further submits that denial of possession of plot constitute infringement of fundamental rights. States that appeal is barred by time, which was otherwise filed without due authorization. Lastly adds that no adequate and efficacious remedy was available, therefore invoking of constitutional jurisdiction is essential. Respondent referred to the cases reported as Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 Supreme Court 344), Lahore Development Authority through Director-General and another v. Commissioner, Lahore Division, Lahore and another (2009 CLC 86), Muhammad Shakoor v. Federal Public Service Commission through its Chairman Islamabad and 2 others [2003 PLC 414], Allah Rakha Choudhary v. Presiding Officer, Vth Sindh Labour Court, Karachi and 2 others (1999 PLC 128), S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/O Housing and Works, Islamabad and others (2013 SCMR 338), Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore (PLD 1985 Supreme Court 107), Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/M.D., Karachi (PLD 2001 Supreme Court 182), National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited (PLD 2015 Lahore 661), Sirajuddin Paracha and 12 others v. Mehboob Elahi and 3 others (PLD 1997 Karachi 276), Ch. Gul Muhammad v. Ashraf Industries (Pvt.) Ltd. (2010 YLR 2974), Millat Tractors Ltd. v. Ch. Tawakal Ullah [NLR 1993 UC (Civil 54], Mian Khaliq ur Rehman v. PTA and others (2019 CLC 555), Ministry of Defence and 3 others v. Muhammad Athar (2013 MLD 1284), and Government of Punjab and others v. Ishtiaq Ahmad Butt and others (2017 MLD 832), "WAPDA and another v. Messrs Ghulam Rasool & Co. (Pvt.) Ltd. through Managing Director" (2005 MLD 1165), "Ch. Gul Muhammad v. Ashraf Industries (Pvt.) Ltd." (2010 YLR 2974), "Abubakar Saley Mayet v. Abbot Laboratries and another" (1987 CLC 367), "Millat Tractors Ltd. v. Ch. Tawakal Ullah' (NLR 1993 UC (Civil) 54), "Syed Hussain Haider v. Government of the Punjab through Chief Secretary, Lahore and others" (2019 PLC (C.S.) 1), "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 SC 255), "Human Rights of Pakistan and others v. Government of Pakistan and others" (PLD 2009 SC 507), "Pakistan Olympic Association through President and others v. Nadeem Aftab Sindhu and others" (2019 SCMR 221), "Muhammad Fahimuddin and others v. Province of Sindh through Secretary, Revenue Department Sindh and 6 others" (2012 MLD 636), "Sheikh Muhammad Tahir v. The State and 2 others" (2012 PCr.LJ 1075), "Messrs Pak Saudi Fertilizers Ltd. v. The Federation of Pakistan and others" (2002 PTD 679), "Haleem ur Rehman v. Province of Sindh and others" (2019 SCMR 1653), "Messrs S.I.S. Corporation (Pvt.) Ltd. v. Federation of Pakistan through Secretary, Ministry of Interior and others" (PLD 2018 Islamabad 150), "Rehmatullah alias Rematoli v. Government of Khyber Pakhtunkhawa through Secretary, Home and Tribal Affairs Peshawar and others" (PLD 2018 Peshawar 17), "Zubair v. Federation of Pakistan through Secretary Establishment Division and 3 others" (2016 PLC (C.S.) 259) and "Aamir Lutuf Ali Zardari v. Province of Sindh and others" (2019 CLC 224).

4. Learned counsel for the appellants contends that failure of the respondent to invoke alternate remedy, effective and adequate, renders constitutional petition incompetent, which critical issue escaped notice while adjudicating upon the petition. To support its contentions, learned counsel referred to the cases reported as Ahmed Khan Floraid Company through owner v. Secretary Mines and Minerals Government of Balochistan and 2 others (2018 YLR 718), Abdul Ghaffar v. Province of Sindh through Secretary Local Government and 9 others (2017 YLR 661), Kausar Shabir v. Station House Officer, Chamkani, Peshawar and 2 others (2018 ICA No.13926/2019 YLR Note 153), Messrs National Highway Authority through Duly Authorised Director (Legal) v. The Chief Secretary, Government of the Punjab, Lahore and 5 others (PLD 2017 Lahore 390), Messrs Jubilee Life Insurance Co. Ltd. v. Federation of Pakistan through Secretary Law, Ministry of Law and Justice Division and others (2018 CLD 903), Syed Wajahat Hussain Zaidi v. Banking Court No.1 and others (2018 CLD 1273), Pir Ishfaq Ahmed v. Deputy Commissioner/Land Acquisition Collector, Charsadda and another (2018 CLC 449), Syed Adil Hussain v. Vice-Chancellor, University of Gujrat and 3 others (2018 CLC Note 5), Abdul Qadir Farooqui v. The Federal Ministry of Finance through Secretary Central Board of Revenue, Islamabad and others (2018 CLC 758), Astaghfirullah v. Secretary Irrigation, Peshawar and others (PLD 2018 Peshawar 47), Salim Javed Baig and others v. Federal Ombudsman and others (PLD 2016 Lahore 248), "Messrs Trust Investment Bank Ltd. through Authorized Officer v. Government of Sindh through Secretary Home and 3 others" (2016 MLD 278), Najeebullah and others v. Director NADRA, Balochistan, Quetta and others (PLD 2016 Balochistan 1) and Abdul Huq and another v. the Province of Sindh and 10 others (2017 CLC 694).

5. Before proceeding to dilate upon the merits of this appeal, it is apt to examine the objection regarding maintainability. In this case no proceedings had commenced, and nor any original order passed. The grievance of the respondent relates to the letters, issued for payment of certain amounts claimed. It is expedient to reproduce the relief claimed, which reads as; "that the writ petition of the petitioner may kindly be accepted and a direction may kindly be issued to the respondents to withdraw the letters dated 28.06.2018 and 02.08.2018 being illegal, without any authority and the possessions of the plots mentioned above may kindly be given/hand over to the petitioner in the interest of justice". To comprehend the issue, it is expedient to reproduce the text of the letters for ease of reference; LETTER DATED 28th JUNE 2018. "Re: TRANSFER OF PLOT MEASURING 14 MARLAS FROM M.SHIP No.12700 TO M.SHIP NO.18190 (2) PLOT NO.1103 BLOCK-BB. Dear Sir/Madam. You have submitted transfer papers for the transfer of the above-mentioned plot. On Scrutiny; it is found that the following below mentioned taxes have not been deposited by you, due to which your transfer of plot procedure is incomplete.

1. CVT and Stamp Duty Rs.119000/-

2. TMA Rs.23800/-.

3. Gain Tax Rs. Nil

4. W. Tax Rs. Nil

5. Advance Tax Rs.Nil You are therefore requested to contact the Society Office and collect Tax Voucher for deposit in the Bank. LETTER DATED 2nd AUGUST 2018. Dear Sir, Reference to your undated letter. 1) It is to inform you that plot No.1103-BB was transferred to you vide provisional transfer letter dated 07.08.2013 and instead of file as stated by you and all the contents of our letter were based on factual position. 2) That in reply to par No.2, it is to inform you that said amount was refunded to you on your request through cheque and you assured/admitted that you will deposit the Government dues and taxes. 3) As stated above, that you admitted that you will deposit all the Government taxes i.e. CVT, Stamp Duty etc by yourself but uptill now you have not deposited the said Government taxes which is compulsory requirement as directed by the Government (as the Society has nothing to do with the Govt. dues etc). 4) It is therefore requested that you should pay all Government taxes etc in Government Treasury without delay so that your case may be finalized".

6. The matter relates to the maintainability of appeal, it is, therefore, expedient to reproduce subsection (2) of section 3 of Ordinance, 1972 and proviso thereto, which reads as; "(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] not being an Order made under sub-paragraph (i) (b) of that clause: 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". [Emphasis supplied]

7. The moot question is that whether application brought before the High Court, in terms of Constitutional petition bearing W.P. No.241634/2018, has arisen out of any proceeding, wherein applicable law provides for a remedy by way of appeal, review or revision against the original order. In all probability the relevant enactment is Punjab Co-operatives Societies Act 1925 (Act, 1925) and remedies of appeal and revision were provided against various orders passed in various kinds of proceedings. Now, pivotal issue is that whether proceedings of any kind were initiated by any of the parties, out of which application has arisen to High Court? No reference was made by the counsels to any proceedings pending, let alone initiated, under the provisions of Act, 1925. In the instant case the matter, at first instance, was brought before the High Court, not in the exercise of its original civil jurisdiction but constitutional jurisdiction of an original kind, as opined by their Lordships of the Supreme Court of Pakistan in the case of 'Ahmad Khan v. Chief Justice and Judges of the High Court of West Pakistan' (PLD 1968 SC 171). At that point in time neither was any proceeding commenced nor any original order in field. The existence of some proceedings and original order therein are critical for determining the question of availability and competency of appeal under subsection (2) of section 3 of Ordinance, 1972. The expression "arises out of the proceedings" as employed in subsection (2) of section 3 of Ordinance, 1972 envisages commencement or existence of some form of proceedings, out of which application / petition has arisen. The scope of the proceedings would enable to identify the original order and remedy provided against it. It is apt to refer to ratio of decision in the case of "Pakistan Oil Fields Limited, Rawalpindi v. Province of Punjab, through Secretary Finance Department, Lahore and others" (2010 SCMR 328), relevant portion whereof is reproduced hereunder; "Another reason which makes the proviso to subsection (2) of section 3 of Law Reforms Ordinance, inapplicable to the instant matter, is that there had not yet been passed any "original order" which could be made basis for filing of departmental appeal. The relevance of significance of the prayer clause of the petition could also not be lost sight of".

8. The expressions "proceedings" and "Original order" manifest close proximity, which expressions are interpreted in various judicial pronouncements. It is apt to refer to the ratio of the decision in the case of Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 Supreme Court 344), relevant portions whereof 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 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 fudges 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" .. 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 Government of 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 'proceeding' 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 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 includes all possible steps in the action under the law, from its commencement to the execution of the judgment". (Emphasis supplied)

9. When the question of maintainability of this appeal is contextualized in the light of the dictum laid, we opine that objection to the maintainability of appeal is without any substance. The judgments referred by the counsels are examined, and ratio of the decisions therein considered threadbare. The principle enunciated is that where application was brought before the High Court, arising out of proceedings where law applicable provides for the remedy of appeal, revision or review against the Original order, appeal in terms of sub-section (2) of section 3 of Ordinance, 1972 was held not maintainable, which is not the case here. In instant matter no proceedings were commenced and no order passed, let alone original order. The facts in the case of "Mst. Karim Bibi and others" (supra) may be different but the ratio laid, when applied to this case, provides basis for holding that instant appeal is maintainable.

10. Now we discuss the merits of this appeal. It is not disputed that provisional transfer letter(s) were issued to the respondent, which were subjected to certain conditionalities, one of which allows the society to make adjustments in the location, size of the provisionally allotted plots. The condition specifically states that prospective adjustments would likely to affect the price of the plots and in which case necessary monetary compensation would be made at the time of possession of the plot. The submission of the respondent that appellant society was not justified to arbitrarily reduce the measurement of respondent's plot, is misconceived. No case of any violation of fundamental rights is made out. Respondent claimed compensation for reduction of measurement of land, if any, which matter can be raised with the appellant society in terms of the provisional transfer letter. These questions / issues are otherwise not amenable to exercise of constitutional jurisdiction. It is admitted by the respondent that only provisional transfer letter(s) were issued, which per-se does not create any enforceable right, hence seeking enforcement thereof by invoking constitutional jurisdiction is not permissible. This aspect of the matter was not properly appreciated. Reference is made to the case of "Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others" (PLD 1969 SC 599). In the absence of any vested right or alleged default in the performance of any statutory obligation, constitutional jurisdiction is not maintainable. The issues raised regarding the delivery of possession and readiness of the society to deliver possession or any inhibitions are otherwise factual in content and cannot be appreciated in the exercise of constitutional jurisdiction. And other objections raised by the respondents are without any substance. The judgments referred are distinguishable and not applicable to the peculiar facts of this case.

11. In view of the above, this appeal is allowed, and impugned order dated 18.12.2018 is set-aside, with no orders as to the costs. MH/S-17/L Intra Court Appeal allowed.