MUHAMMAD HAROON vs DISTRICT FOOD CONTROLLER, BAHAWALPUR AND ANOTHER

ORDER

1. ' NASIM HASAN SHAH. J.-This order will dispose of Civil Petitions for Special Leave to Appeal Nos. 1048 and 1049 of 1979 as the contesting respondents in both the petitions are the same and the questions of law arising in both the petitions are also similar.

2. ' Briefly the facts are that Mohammad Haroon (petitioner in C. P. S. L.A. No, 1048179) and Mohammad Islam Beg (petitioner in C. P. S. L. A. No, 1049/79) were issued, by the District Magistrate, Bahawalpur, licences for running Ration Depots. These were subject to the confirmation of the District Allotment Committee. On 2nd October, 1977, these authorisations were cancelled by the order of the District Food Controller, Bahawalpur. The orders are in identical terms which read as follows :- "In pursuance of Martial Law Instruction No, 22, issued by Martial Law Administrator Zone 'A', Lahore, your Ad hoc/temporary appointment as Ration Depot Holder is hereby terminated on the recommendation of the Depots Allotment/Review Board constituted for the scrutiny as to whether your appointment was regular or not. Anyhow, you are at liberty to apply for the allotment of a depot for which the applications are being invited separately. This order is issued after concurrence of E. M. L. A."

3. ' Feeling aggrieved by the above orders, the petitioners in both the Civil Petitions for Special Leave to Appeal moved the Lahore High Court by filing separate writ petitions ; that of Mohammad Haroon being W. P. No, 3463/77 and that by Mohammad Islam Beg being W. P. No, 3461/77. Both the petitions were dismissed in limine by a learned Single Judge of the' High Court, through separate judgements, on the ground that the record indicated that the depots were allotted by the District Magistrate subject to the con: rmation of District Allotment Committee which Committee had refused confirmation. Consequently, the petitioners had no cause of action.

4. ' Dissatisfied, both the petitioners then filed Inter-Court Appeals (1.-C. A. 2/78 by Muhammad Islam Beg and I.-C. A. 3/7S by Muhammad Haroon) which were dismissed by a Division Bench of the Lahore High Court on 3rd December, 1979 on the ground that these were incompetent in view of the terms of the proviso of subsection (2) of section 3 of the Law Reforms Ordinance, 1972, namely "3(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 (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub-paragraph (i) of paragraph (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 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court Tribunal or Authority against the original order."

5. ' The question in these petitions is whether an appeal was competent against the order of the District Food Controller, Bahawalpur dated 2nd October, 1977 under the law applicable.

6. ' Mr. M. M. Bhatti, learned counsel for the petitioners has submitted before us that the law applicable did not provide for any appeal to any Court, Tribunal or Authority against the original order as it was passed in pursuance of a Martial Law instruction and not under the provisions of the West Pakistan (Foodstuffs) Distribution Order, 1967, against which no appeal lay. Hence the I.-C. A. Was competent. He addressed a comprehensive argument on this aspect of the matter.

7. ' The learned Advocate-General, Punjab, who appeared on notice, was also heard in this connection and he submitted before us that the petitioner could file an appeal before the next higher authority provided in sub-clause (2) (h) of Clause (6) of the West Pakistan (Foodstuffs)

8. Distribution Order. 1967 i. e. The Deputy Director.

9. After hearing the learned counsel for the parties at length we have reached the conclusion that the petitioners could have filed an appeal to the Deputy Director under the law applicable to the matter. The judgment of the Division Bench of the Lahore High Court holding the appeal before it to be barred is, therefore, perfectly correct. However, there is also no doubt that the point of view advanced by Mr. Bhatti that no appeal was competent under the law applicable could bona fide be taken. Therefore, if the petitioners are so advised they can still file appeals before the relevant authority and plead in excuse of limitation to the circumstance that the time spend in agitating their grievance before the High Court was spent in pursuing a remedy in a wrong forum bona fide.

10. These petitions, with the above observations, are hereby dismissed.