Mst. KARIM BIBI AND OTHERS vs HUSSAIN BAKHSH AND ANOTHER

' ZAEFAR HUSSAIN MIRZA, J.-This appeal by special leave is directed against the judgment dated 17- 6-1975 whereby a Division Bench of the Lahore High Court at Lahore dismissed the High. Court Appeal (L. P. A. No, 86 or 1976) filed by the appellants on the preliminary point as incompetent.

2. The property In dispute consists of two shops which are part and parcel of House S-XX-5-S-61, Canal Park, Lahore which was transferred by the Deputy Settlement Commissioner in favour of the predecessor-in-interest of the appellants and a P. T. D. Was issued on 30-11-1962. According to the appellants the transferee converted the two front rooms of the aforesaid house into shops and let them out to respondent Hussain Bakhsh on rent. However, in 1970 the appellants came to know that the shops were transferred to the first respondent by the Deputy Settlement Commissioner as per his order dated 24.8-1963 as a building site under Settlement Scheme No, VI and a P. T. 1). Had also been issued in his favour on 24-11-1964. As the property including the disputed two shops originally forming part of the property as rooms had already been permanently transferred in favour of the predecessor-in-interest of the appellants, they challenged the subsequent transfer orders by means of a representation before the Chief Settlement Commissioner, who referred the matter to the Settlement Commissioner for 'examination and action, if anv, in exercise of his suo mote revisional power under section 2, (3) of the Displaced Persons (Compensation and Rehal ilitation)

Act. Eventually the, matter was dealt with by Mr. Muhammad Azam, Additional Settlement Commissioner, Head Quarters, Lahore, who by his order dated 24-11-1973 held the subsequent transfer of the two shops in favour of the first respondent "to be unlawful and without jurisdiction as the property in question had already been disposed of and the Department had become functus officio to issue any P. T. D with regard to any property which stands validly disposed of". The first respondent thereupon tiled a Constitutional Petition in the Lahore High Court and a learned Sir-le Judge by his order dated 8-7-1974, set aside the order of the Additional Settlement Commissioner and remanded the case to the Settlement Commssioner for being decided afresh. The appellants filed a Letters Patent Appeal against that judgment which was dismissed by a Division Bench by the impugned judgment dated 17-6-1975, on the short ground that it was incompetent in view of section 3 (2) of the Law Reforms Ordinance, 1972.

3. Leave was granted in order to examine the following two contentions;

(1) that by Evacuee and Displaced Persons Law (Amendment) Act, 1973, section 19 of the Displaced Persons (Compensation and Rehabilitation) Act which related to the provision of appeal was omitted and, tbertfore, there was no right of appeal provided by the Act against the order of the Settlement Commissioner dated 24-11-1973 and on this view of the matter, section 3(2) of the Law Reforms Ordinance, as it stood amended, could not be a bar for entertaining a Letters Patent Appeal.

(ii) That the Letters Patent Bench held the appeal to be incompetent as an appeal was provided under the Displaced Persons (Compensation and Rehabilitation) Act against the original order dated 25-7-1960 but failed to consider that the knowledge of the order came to light only in 1970 and the order impugned was dated 24-11-1973 against which there was no right of appeal as by that time section 19 of the Displaced Persons (Compensation and Rehabilitation) Act had been deleted and that this was the crucial date on which it had to be seen whether the appeal was provided by the Statute."

4. The questions raised in this appeal turn on the interpretation of 3 (2) of the Law Reforms Ordinance XII of 972, as amended by Ordinance No, XXXIV of 1972 and Act VIII of 1972. As a result of the Law Reforms Ordinance, 1972 promulgated on 13-4-1972, the Letters Patent Appeal was wholly abolished under section 3 (a), but by the subsequent Ordinance, promulgated on 10-8-1972 with retrospective operation from the commencement of the main Ordinance, section 3 of the original Ordinance was substituted, abolishing the Letters Patent only in certain category of cases which, it is not material to set forth in detail here, as by Act VIII of 1972 the law was further amended with retrospective effect whereby section 3 of the Law Reforms Ordinance was again substituted so that the material-part of which read as under ; "3. Appeal to High Court in certain cases.-

(1) .....................

(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from and 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 subparagraph (1) 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.

(3) ..............................................................................................

5. The Letters Patent Appeal in this case was filed by the a pedants on 31-8-1974 on which date section 3 (2) of the Law Reforms Ordinance stood amended and substituted by Ordinance XXXIV of 1972 and read as follows : "No appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that High Court under clause (2) of Article 101 of the interim Constitution of the Islamic Republic of Pakistan in a matter arising under any law relating to the Rehabilitation and Settlement of Displaced Persons or from an order so made under sub-paragraph (i) of paragraph

(b) of that clause."

' Therefore, on that date Letters Patent Appeal before a Division Bench o the High Court against the order made by a Single Judge of the same High Court in the constitutional jurisdiction pertaining to matters arisin under any law, inter alia, relating to Settlement of Displaced Persons was manifestly not available. There was, therefore, no justification for appellants to present a Letters Patent App al in the present case before the High Court. However, this aspect of the matter does not seem to have been pointed out and was not attended to by the learned Judges of the Division Bench as the law further amended with retrospective o eration from the date of the commencement of the main Ordinance on 12-9-1972 by Act VIII of 19721 which has been reproduced above. We have, therefore, considered the law' as it finally stood amended by the last ment oned Act, particularly because retroactive effect was given to it from 14-4-1972.

6. According to the view taken by the learned Judges of the Division Bench the impugned order dated 24-11-1973 by the Additional Settle meat Commissioner was passed in proceedings arising out of the original adder,. 'dated 25-7.1960 by which property was initially transferred in favour older the predecessor-in-interest of the app Hants and in that view of the matter, as the Displaced Persons (Compensation and Rehabilitation) Act, 1958 contained provisions for appeal etc. The bar contained in the proviso to subsection (2) of section 3 of the Law Reforms Ordinance as amended was plainly applicable and no Letters Patent Appeal was, therefore, competent.

7. A plain reading of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance means that no appeal will be available of competent before a Bench of two or more Judges 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. In the facts of the present case the relevant statute is the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which had created a hierarchy of officers to deal with the rights created thereunder in favour of persons entitled under the said Act and the Schemes framed thereunder, inter alia, to the transfer of erstwhile Evacuee Properties from the compensation pool of such properties constituted under the provisions of the Act. By section 19 of the said Act a right of appeal was provided to the next higher officer in rank from the original order passed by an officer of the settlement establishment. Apart from the remedy of appeal so provided the Act also vested powers of revision in the higher officers of the settlement establishment under section 20 as well as the power of review. However, by the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 which came into force on 30-7-1973 section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was omitted with the result that remedy of appeal was abolished with effect from the said date. The Constitutional Petition was filed by the first respondent hereinbefore the High Court much later on 8-12-1973 which was allowed by the learned Single Judge on 8-7-1974. The Letters Patent Appeal, as already stated, was presented by the appellants in the High Court on 31-8-1974. It is urged on behalf of the appellants that the relevant date for the application of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance would be the date on which the Constitutional Petition was filed in the High Court and construing the provisions of the proviso accordingly, the Letters Patent Appeal was competent in law inasmuch as, on that date no appeal lay from the original order passed in the proceedings. It was further argued that the word "proceedings" occur-ling in the proviso is used in the restricted sense and would connote, in the present case, the proceedings commenced by the Additional Settlement Commissioner by issuing notice of the suo motu revision to the parties and as there was no appeal provided against the order passed in suo motu revision, in terms of the proviso the Letters Patent Appeal was competent. Learned counsel for the appellants also advanced an alternative argument that the proceedings in this case had arisen out of the order of the Addi tional Settlement Commissioner passed on 24-11-1973, at which time the Displaced Personas .

(Compensation and Rehabilitation) Act, 1958 was amended taking away the right of appeal.

8. After giving our anxious condsideration to the arguments urged in support of this appeal we are, however, not impressed by any of the conteticns 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 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 he 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, ii respective 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 of the particular statute. 1 do not consider it necessary to notice the various judments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue in which this Court had occasion to examine the scope and meaning of the word as it occurs in section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. 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, West Pakistan and others 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 'proceedings' 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 or 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 hi 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."

9. In the light of the aforesaid definition the proceedings under the Displaced Persons (Compensation and Rehabilitation) Act would seem to commence with the application of a person entitled to the transfer of a property in the compensation pool under the Schedule and the Schemes framed thereunder. Normally the application will be disposed of by an order passed by the Deputy Settlement Commissioner which will apparently be the original in the proceedings. Any party agggrieved by such an order may then invoke appellate or revisional jurisdiction conferred under the statute before the higher authorities or officers. In such a case the proceedings remain the same until their conclusion by the order of the final authority as all the intermediary stages are steps taken towards the further progess of a cause or towards the objective to be achieved, the1 2 transfer of ,a particular property to the person entitled thereto under the relevant provisions of law.

Before the amendment of the Displaced Persons (Comensation and. Rehabilitatian) Act in 1973 there was a right of appeal provided by section 19. Therefore, no Letters Patent Appeal was then competent against the order of a Single Judge of the High Court to a larger Bench of the same High Court. Similarly there can be no dispute that in cases in which the original order was passed after the aforesaid amendment of law such appeal was competent as the' right of appeal under the Displaced Persons (Compensation and Rehabilitation) Act was taken away by the amendment.

10. The original order in this case was obviously the one passed by the Deputy Settlement Commissioner in favour of Sher. Muhammad predecessor-in-interest of the appellants on 25-7- 1960. The portion of the pro-party in dispute consisting of the two shops was subsequently transferred to the first respondent by the Deputy Settlement Camtnissioner on 24.8-1963, which order was set aside by the Additional Settle nent Commissioner vide his order dated 24-11.49/3 suo rnotu' revisional. Jurisdiction, which order was impugned in the Constitutional Petition filed by the said respondent. Therefore, at the time the original order dated 25-7-1960 in favour of the predecessor-in-interest of the appellants was passed by the Deputy Settlement Commissioner as well as at the time the subsequent order dated 24-8-1963 was passed by him, the law as it. Stood provided for an appeal. The Constitutional Petition arose out of the proceedings with regard to the transfer of the property in dispute in favour of the predecessor-in-interest of the appellants, inasmuch, as the final order passed by the Additional Settlement Cominissioner restoring the transfer in his favour was challenged in the Constitutional Petition and the original order was subject to appeal when it was passed. This is sufficient to satisfy the requirements of the proviso which is thereby attracted to the present case. There is, therefore, in our opinion, no basis for considering the subsequent changes made in the law whereby the tight of appeal was taken away long after the expiry of the period of limitation for filing of appeal against that order and considering the changed position of law with reference to the date of the institution of the Constitutional Petition. We cannot read anything in the language of the proviso to construe it in such a manner. The obvious intention underlying the provision was to abolish Intra-Court Appeal in cases in which the impugned order in, the Constitutional Order arises out of the proceedings in which the. Original order was appealable. Necessarily therefore, the question whether the original order was appealable or not will be determinable with reference to the law that was applicable on the date of such original order and not the date when the matter came before the High Court in Constitutional jurisdiction. Similarly we are unable to see any force in the contention that the word "proceedings" should be given restricted meaning so as to confine it to the proceedings before the authority which passed the order under challenge in the Constitutional Petition which in the present case was the suo moru proceedings .Commenced by the Settlement Commissioner. By no stretch can the order passed in revision be construed as the original order as contemplated by the proviso under co sideration, It is also possisle to construe the language of the proviso to hold that the relevant date for determining whether appeal lay against the original order passed by the Settlement Authorities, or not was the date when the impugned order was passed by the Additional Settement Commissioner on 24-11-1973.

11. Learned counsel for the appellants finally submitted that in case it is found that the Letters Patent Appeal filed by the appellants was not competent then this Court may treat the present appeal as an appeal against the judgment and order of the learned Single Judge of the High Court in the Constitutional Petition, and the merits of the case may be examined. But The petition out of which this appeal has arisen was filed long after the limitation period for the same had expired qua the judgment of the learned Single Judge and there is no good ground for condoning the delay since there was hardly any ambiguity with regard to the maintainability of the Letters Patent Appeal. There is, therefore, no substance in this argument also.

12. For all the aforesaid reasons we find no merit in this appeal and accordingly dismiss the same but in the circumstances of the case leave the parties to bear their own costs. PL D 1979 SC 846 PLD 1968 Wt. 1455