MUHAMMAD ASLAM SUKHERA and others vs COLLECTOR LAND ACQUISITION, LAHORE, IMPROVEMENT TRUST, LAHORE and another

' FAQIR MUHAMMAD KHOKHAR, J.---The petitioners seek review of the common judgment dated 28- 10-1997 passed by this Court in Civil Petitions Nos.673, 674 and 675-L of 1996.

2. The land of the petitioners measuring 15 Kanals and 15 Marlas situated at Village Bhakewal, District Lahore, was acquired by the erstwhile Lahore Improvement Trust for Katcha Multan Road Development Scheme of 1600 Acres, known as Allama Iqbal Town, Lahore. The Land Acquisition Collector of the Lahore Improvement Trust after necessary inquiry gave his award on 13-3-1975 for compensation to the landowners. The Lahore Improvement Trust was succeeded by the Lahore Development Authority. On the application of the petitioners for enhancement of compensation, the Collector made a Reference under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act of 1894). The Lahore Development Authority Tribunal, by its award dated 28- 5-1977, enhanced the compensation of the petitioners subject to any exemption that might be made in their favour by the Lahore Development Authority. The petitioners were still dissatisfied as to the quantum, of compensation as awarded by the Tribunal. Therefore, they filed Writ Petitions Nos.2715 to 2717 of 1978 against the award dated 28-5-1977 which were dismissed by a learned Single Judge of the Lahore High Court, Lahore. They preferred Intra-Court Appeals Nos.121 to 123 of 1978 which were also dismissed by a learned Division Bench of the Lahore High Court, by the impugned judgment dated 9-10-1995, as being not maintainable under section 3(2) of the Law Reforms Ordinance, 1972 (hereinafter referred to as the Ordinance). Thereafter, the petitioners filed C.Ps.L.A Nos.673-L to 675-L of 1996 which were also dismissed by this Court by the impugned judgment dated 28-10-1997. Hence these petitions for review of the impugned judgment.

3. The learned counsel for the petitioners argued that only a reference under section 18 of the Act of 1894 had been provided for against an award made by the Land Acquisition Collector under section 12 thereof. Therefore, the award being not appealable or revisable or reviewable, could not furnish any justification for this Court to hold that the Intra-Court appeal under section 3 (2) of the Ordinance, 1972, was not maintainable from the order dated 28-5-1978 passed by a learned Single Judge of the Lahore High Court. The bar against IntraCourt Appeal contained in Proviso to subsection (2) of the section 3 of the ordinance, 1972, was not attracted. The learned counsel relied on the case of Abdul Ghaffar-Abdul Rehmn v. Asghar Ali (PLD 1998 SC 363) in support of his contention that a review petition under Article 188 of the Constitution would lie where the conclusion reached by this Court was wrong because something obvious had been overlooked or it had failed to consider some important aspect of the matter.

4. On the other hand, the learned Assistant Advocate-General, Punjab, submitted that the contentions raised by the learned counsel for the petitioners had already been considered by this Court in the impugned judgment under review and the same were repelled. The petitioners were disentitled to re-agitate the same points by filing the present review petitions. He placed reliance on the case of Haji Muhammad Saifullah Khan versus Federation of Pakistan and others (PLD 1990 S.0 79).

5. The learned counsel for the respondents contended that as provided by section 59(b) and (d) of the Punjab Town Improvement Act No,IV of 1922, the award of the Tribunal was deemed to be an award of the Court under the Act of 1894. Such an award was treated to be a judgment and decree of the Civil Court under section 26 of the Act. The same being an original judgment and decree of the Court was made appealable before High Court under section 54 of the Act of 1894. Therefore, in view of Proviso to section 3(2) of the Ordinance, 1972, the Intra-Court Appeal would not lie before a Bench of two or more Judges against an order passed by a Single Judge of the High Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution. It was lastly submitted that all the points raised by the learned counsel had been duly considered and decided by this Court in the judgment under review.

6. We have heard the learned counsel for the parties as well as the learned Assistant Advocate- General at length. We find that the petitioners had filed their writ petitions specifically against the award dated 28-5-1977 of the Tribunal which was appealable before the High Court under section 54 of the Act of 1894 as original judgment and decree of the Civil Court. A further appeal before this Court has also been provided under the said provisions. The impugned judgment titled as Muhammad Aslam Sukhera and others vs. Collector, Land Acquisition and others (1998 SCM R 167) clearly shows that contentions of the learned counsel for the petitioners were considered and repelled by a three-member Bench of this Court headed by Mr. Justice Ajmal Mian (former Chief Justice of Pakistan) in paragraphs Nos.6 to 9 thereof as under:- ' It may also be pointed out that section 54 of the Land Acquisition Act, 1894, lays down that subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award or from any part of the award and from any decree of the High Court passed in such appeal as aforesaid, an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure and Order XLV thereof.

6. It may be observed that as the award of the Tribunal by virtue of clause (d) of section 59 of the Act is deemed to be the award of the Court under the Land Acquisition Act, 1894, the same is amenable to appeal under section 54 of the Land Acquisition Act, 1894.

7. However, it was urged by Mr. Talib H. Rizivi, learned Advocate Supreme Court for the petitioners, that factually the original order in the case in hand was the first award given by the Collector on 13- 3-1975 and not the award given by the Tribunal on 28-5-1977.

8. The above contention is self-destructive. If we were to consider the first award as an original order, in that event, the petitioners could have availed of two remedies, namely, he had referred the matter under section 59 of the Act to the Tribunal for review of above original award which culminated in enhancing the amount of compensation, then he had the second right to file an appeal under section 54 of the Land Acquisition Act, 1894, in view of the above deeming provision contained in the aforesaid clause (d), whereby by virtue of fiction of law, the award given by the Tribunal is to be deemed to be given by the Court under the Land Acquisition Act, 1894. The fact that the petitioner had not availed of the latter remedy would not make any difference as enunciated in the judgment of this Court in the case of Mst. Karim Bibi (supra). In our view, impugned judgment of the High Court is unexceptional. Leave is refused.

7. There is no doubt in our mind that the award by the Tribunal is treated to be an original judgment and decree within the meaning of section 26 of the Act. Being an original decree, the award has been specifically made appealable before the High Court and then before this Court under section 54 of the Act of 1894. In view of express provisions of section 54 of the Act it is not possible for us to hold otherwise. It cannot be said that the award by the Tribunal is not an original order for the purposes of bar contained in proviso of section 3(2) of the Ordinance. Therefore, it is not necessary for us to determine as to whether the award made by the Collector could also be treated to be an original order or not. The object of Proviso to subsection (2) of section 3 of the Ordinance, 1972, seems to be to bar the remedy of Intra-Court Appeal in those cases in which the relevant law provides the remedies of appeal, revision or review.

8. The word "original" is susceptible to different meanings in the context of a particular statute. It does not always mean "first in order". The expression "original order" in section 3(2) of the Ordinance was used in generic sense in contradistinction to orders passed in appeal, revision or review. In Macmillan and Company Limited versus K. And J. Cooper (AIR 1924 Privy Counsel 75), a case from Bombay jurisdiction, the Privy Council had the occasion to interpret the word "original" in the context of Copyright Act, 1911, as follows:-- "The word "original" does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the opinion of ideas, but with the expression of thoughts; and in the case of "literary work" with the expression of thought in print or writing. The originality which is required relates to the expression of the thought; but the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work-that it should originate from the author."

"The mere process of selecting passages from works readily accessible to the public is not, but difficulty in obtaining access to the originals or skill manifested in making or arranging the selection is sufficient to give the character of an "original literary work" to the selection."

In Re Oriental Bank (54 L.J. Ch. 481) it was held on the construction of a clause in the Charter of that Bank that the words "original-holder" of shares did not mean the first allottee, but meant the immediate transferor to the person holding the shares at the time when the phrase became operative i,e, in that case, the winding-up of the company.

9. The scope of review under Article 188 of the Constitution and Rule 1, Order XXVI of the Supreme Court Rules, 1980, was examined by this Court in a series of cases. In the case of Abdul Sattar-Abdul Ghaffar (supra) referred to by the learned counsel for the petitioners, the following principles, inter alia, for review were laid down by a Bench of five Hon'ble Judges of this Court:-

(i) "That every judgment pronounced by the Supreme Court is presumed to be considered solemn and final decision on all points arising out of the case.

(ii) That if the Court has taken a conscious and deliberate decision on a point of fact or law, review petition will not lie.

(iii) That the fact that the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is sought, is not sufficient to sustain a review petition.

10. In the case of Wasim Sajjad v. Federation of Pakistan through Cabinet Secretary (PLD 2001 SC 233) a larger Bench of 11 Judges of this Court took the view that re-agitation of the same issues through a review petition was beyond the scope of review. In the case of Haji Saifullah Khan (supra) a Bench of 10 Judges of this Court held that mere petitioner's interpretation of the impugned order was not a ground on which the said order could be found to suffer from any error or defect and the same could not be considered for reviewing the previous order. In Syed Ikhlaq Ahmed v.

Administrator (Residual Properties) Additional Commissioner (Revenue), Lahore Division, Lahore and 3 others (2004 SCM R 413), it was laid down that a review petition would not lie where the ground urged by the petitioner in support of the review petition had already been considered at length in the judgment under review and the same had been found without any substance. A somewhat similar view was taken in the cases of Pakistan through Ministry of Finance and Economics Affairs and another v. FECTO Belarus Tractors Limited (PLD 2002 SC 208), Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v.

Muhammad Tariq Pirzada and others (1999 SCM R 2189), Farhat Ali Khan v. Ch. Muhammad Siddique and others (1998 SCM R 2190) and Mst. Zainab Khatoon v. Mst. Ghulam Fatima (1980 SCM R 331).

11. In our view the learned counsel for the petitioners failed to point out any apparent error or defect in the judgment sought to be reviewed. The grounds urged by the petitioners had already been considered by a Bench of three Hon'ble Judges of this Court. We may also observe here that the petitioners, instead of filing Regular First Appeals in the High Court against the award dated 28-5- 1977 and then appeals to this Court under section 54 of the Act of 1894, opted to file Constitutional petitions under Article 199 of the Constitution for the reasons best known to them. The impugned judgment does not suffer from any legal infirmity so as to .Justify a review.

12. For the foregoing reasons, we do not find any merit in these review petitions which are dismissed accordingly.