LAHORE DEVELOPMENT AUTHORITY through DirectorGeneral and another vs COMMISSIONER, LAHORE DIVISION, LAHORE and another

' HAFIZ TARIQ NASIM, J.--- The backdrop of this Intra-Court Appeal is that the appellant L.D.A.

Acquired land under the Punjab Acquisition of Land (Housing) Act, 1973 including Khasra No,1088 situated in village Ajudhiapur, Tehsil Cantt. Lahore for the purpose of developing a housing scheme known as Muhammad Ali Johar Town. The initial notification was issued in the year 1980-81. Khasra No,1088 was not mentioned in the initial notification. Deputy Commissioner issued a corrigendum to include this Khasra number, however, out of total area of this Kharsa number the possession of only 2 Kanals, 3 Marlas was taken over by L.D.A. On 16/17-6-1981. No award of this Khasra number was issued.

' Respondent No,2 claimed that he was owner in possession of 1 Kanal out of the above Khasra number which he purchased from Yagoob Ali through registered sale-deed No,8579 Behi No,1, Volume No,1788 dated 22-9-1993 and Mutation No,6228 dated 30-7-1996 was sanctioned in his favour and on his request the Collector of District Lahore directed carving out a "Tatimma" in respect of the mutation in question vide order dated 31-5-1997. This was done and L.D.A's share was given Khasra No,1088/2-Min. Respondent No,2 applied to the Commissioner for withdrawal of acquisition proceedings to the extent of his ownership viz. 1 Kanal. The application was contested with particularity of lack of jurisdiction of the Commissioner, however, vide order, dated 26-1-1999 the Commissioner accepted the application on the ground that the petitioner before him was in possession of his land as owner for the last 18 years and it would be unfair to oust him from the land in question, particularly when exclusion of this land was not affecting the housing scheme. In addition to this, the learned Commissioner held that under the provisions Punjab Acquisition of Land Housing (Repeal) Act, 1985 read with Schedule to the Ordinance (XXXI of 1961), he had the jurisdiction. Aggrieved by this L.D.A. Filed a writ petition before this Court and the learned Judge in Chamber dismissed the same through judgment, dated 18-7-2002 which caused a grievance to the appellant, who assailed the same in the present I.C.A.

3. Learned counsel for the appellant argued the case at length, however, the learned counsel for the respondent raised a preliminary objection in respect of maintainability of Intra Court Appeal.

We are of the view that the objection of maintainability of I.C.A. Being the most important issue is to be resolved first.

4. Learned counsel for the respondent referred the law laid down by the apex Court reported as Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344, Muhammad Aslam Sukhera and others v. Collector, Land Acquisition and others 1998 SCM R 167 and Ch. Nazir Ahmad v.

Moulvi Masood-ur-Rehman Khan and others PLD 2008 Lah.

405. Learned counsel submits that the impugned proceedings in the process of acquisition were appealable and as such the judgment of the learned Single Judge cannot be challenged in I.C.A.

As per terms of section 3(2) of Law Reforms Ordinance.

5. In order to appreciate the contentions of both the parties, it shall be advantageous to reproduce the law laid down by the Honourable Supreme Court of Pakistan in the case of Mst. Karim Bibi which was followed by the Honourable Supreme Court in the case of Muhammad Aslam Sukhera.

' Honourable Supreme Court in the case of Mst. Karim Bibi (supra) has observed:--- "A plain reading of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 means that no appeal will be available or competent before a Bench of two or more Judge 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 statute which prescribes a hierarchy of officers or authorities for the carrying into effect the purposes of such statute 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 statute."

' The apex Court in the case of Muhammad Aslam Sukhera (supra), after quoting the provisions of subsection (2) of section 3 of the Ordinance, has found that: "A perusal of the above quoted subsection indicates that an appeal is competent before a Bench of two or more Judges of the High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution not being an order made under sub-paragraph (i) of paragraph (b) of that clause.

' It may further be noticed that the proviso to above subsection (2) places an embargo to the right to file an appeal against an order passed under clause (1) of Article 199 of the Constitution if the proceedings under the latter provision arise out of any proceeding 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."

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