MUHAMMAD ABDULLAH vs DEPUTY SETTLEMENT COMMISSIONER, CENTREI, LAHORE

' ASLAM RIAZ HUSSAIN, J.-This appeal, by leave of this Court is directed against the judgment of a Division Bench passed by the Lahore High Court, dated 25-3-1976, whereby Letters Patent Appeal of the Appellant was dismissed.

' The said appeal was dismissed on the ground that it was not competent as it was hit by a proviso to section 3 of the Law Reforms Ordinance, 1972, subsection (2) of section 3 whereof is in the following terms :- "(2) An appeal shall also lie to a Bench of two 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 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 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."

2. In this case, an order was passed by the Deputy Settlement Commissioner on 21-9-1970, in favour of the appellant whereby the plot in question which is alleged by the other side to be a part of the main house, was auctioned in his favour. That order was subjected to a revision which was disposed of by the learned Settlement Commissioner on 30-10-1971, who set aside the said order and remanded the case to the Deputy Settlement Commissioner. The Deputy Settlement Commissioner disposed of the case, remanded to him, by his order dated 12-6-1975. The appellant filed a writ petition against the said order but the same was dismissed on 30-5-1975 by a learned Single Judge of the Lahore High Court. The appellant then filed an Intra-Court Appeal to challenge correctness of the said order. But the Division Bench dismissed it, on the ground that in view of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972, an Intra-Court Appeal against the order of a learned Single Judge, passed under Article 199 of the Constitution, was not available in this case because the original order of the Deputy Settlement Commissioner was subject to a revision.

3. The contention raised by the appellant before us is that the learned Judges hearing the Intra- Court Appeal overlooked the circumstances that in pursuance of the order of the remand, the Deputy Settlement: Commissioner actually took up the case sometime in 1975. By then, the Evacuee Property and Displaced Persons Laws (Repeal) Act (No, XIV) 1975, had been promulgated, whereby the Displaced Persons (Compensation & Rehabilitation) Act, 1958, had been repealed.

Upon the repeal of the aforesaid Act all the proceedings which immediately before the repeal were pending before the authorities appointed thereunder, were to stand transferred for final disposal to an officer to be notified by the Provincial Government in the official Gazette for disposal in accordance with the provisions of the repealed Act. Under the new law no further appeal, revision or review was available against the orders of such a notified officer.

4. The learned counsel argued that after the repeal, the fresh order passed by the Deputy Settlement Commissioner on 12-6-1975, ought to have been treated as the original order and since the law now applicable did not provide any revision or review against that order (which was challenged by the appellant through a writ petition), the Intra-Court Appeal filed by him was not hit by the proviso to subsection (2) of section 3 of the Act.

5. The above contention, however, can no longer be accepted, because a similar question has been elaborately examined by this Court recently in a settlement case, namely Mst. Karim Bibi v.

Hussain Bakhsh and others (1), and it was held that the meaning of the expression 'original order' is the order with which the proceedings under the relevant statute commenced. It was observed that :- "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

(1) P L A 1984 SC 344 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 was subject to an appeal under the relevant law."

' The conclusion was expressed thus :- "Apparently the meaning of the expression "original" order" is the order with which the proceedings under the relevant statute commenced."

In view of this clear enunciation of the law, the "original order" in the present case was clearly the order of the Deputy Settlement Commissioner dated 21-9-1970. As such the view expressed by the learned Judges of the High Court in the impugned judgment that an Inter-Court Appeal was not competent, because the law provided for an appeal against the original order dated 21-9-1970 is unexceptionable.

' The result is that this Appeal must fail and is accordingly dismissed hereby, leaving the parties to bear their own costs.