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Intra-Court Appeal No. 104 of 1985, decided on 30th November, 1985.

---S. 3(2), proviso-- lntra-Court Appeal--Object of proviso to S. 3- Object of proviso to S. 3(2), Ordinance, 1972, held, is to curtail right of appeal against order passed by Single Judges High Court, before Bench of Judges of High Court where order is passed in exercise of Constitutional jurisdiction in a case arising out of any proceeding in which law applicable provided remedies by way of appeal, revision and review to any Court, Tribunal or Authority against original order- Intention of legislature, is to give finality to order passed by High Court in exercise of Constitutional jurisdiction in such cases.

Mst. Karim Bibi v. Hussain Bux P L D 1964 S C 344; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore P L D 1985 S C 107 and National Bank of Pakistan v. Muhammad Adullah Khan 1985 S C ht R 1392 ref.

---S. 3(2), proviso--Displaced Persons Land Settlement Act (XLVII of 1958), Ss. 10 & 11--Intra-Court Appeal--Competency--"Original order", meaning of--Original order occurring in S. 3(2) proviso of Ordinance, 1972, means first order with which proceedings under relevant statute commenced and all orders subsequently passed, would be treated as orders passed in continuation of proceedings--Order of allotment made in favour of claimant would be construed as original order--Remedy of appeal having been provided under Act, XLVII of 1958, Intra-Court Appeal, held, was not competent in circumstances.--[Words and phrases].

Muhammad Hussain Awan, for Appellant.

Ch. Ghulam Mujtaba for Respondents Nos. 1 and 4.

Nemo for the Remaining Respondents.

Date of hearing: 30th November, 1985.

C. A. RAHMAN, J.--This Intra-Court Appeal against order of learned Single Judge, dated 8-4-1985 passed in Writ Petition No. 106/R of 1977 was admitted to regular hearing on 25-5-1985. On 13-10-1985 when Civil Miscellaneous No. 1/C-85 submitted by the appellant for maintaining status quo in respect of the disputed land came up for hearing, the learned counsel for respondents Nos. 1 to 4 raised a preliminary objection that the Intra-Court Appeal was hit by the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 (hereinafter to be referred as the Ordinance). The case was adjourned to enable the learned counsel for the appellant to examine the legal objection raised by the learned counsel for respondents Nos.1 to 4.

2. Learned counsel for the appellant has submitted that the proviso to subsection (2) of section 3 of the Ordinance is not applicable as the order impugned before the learned Single Judge was passed on 24-11-1976 by the Additional Settlement Commissioner on the application filed by respondents Nos.1 to 4 under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter to be referred as the Act). On the date of passing of the impugned order, no remedy by way of appeal, revision of review was available against the order as the act had been repealed in 1975.

3. Learned counsel for respondents Nos. 1 to 4, on the other hand, has contended that order, dated 24-11-1976 is not the original order for the purpose of proviso to subsection (2) of section 3 of the Ordinance, but the original order is the order of allotment of the disputed land passed in favour of Ghulam Qadir deceased father of respondents Nos. 1 to 4 on 7-11-1961. Proceedings under the Act commenced with the request for allotment of the disputed land by Ghulam Qadir deceased. Subsequent proceedings resulting in cancellation of the disputed land and its allotment to the deceased respondent No.6 on 6-11-1965 and dismissal of application under section 10/11 of the Act, by the Additional Settlement Commissioner on 24-11-1976 are in continuation of the original proceedings initiated by Ghulam Qadir deceased. Learned counsel had relied on Mst. Karim Bibi v. Hussain Bux P L D 1964 S C 344 where the term "proceedings" used in the proviso to subsection (2) of section 3 of the Ordinance has been interpreted and it has been held that 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 property in the pool compensation under schedule and the scheme framed thereunder. In the same judgment, the term "original order" used in the proviso has been explained to mean as the order by which the proceedings under the relevant statute commenced. The above interpretation of the term "original order" has also been referred in Muhammad Abdullah v, Deputy Settlement Commissioner, Centre-I, Lahore P L D 1985 S C 107.

4. Learned counsel for the appellant has cited National Bank of Pakistan v. Muhammad Abdullah Khan 1985 S C M R 1392 and has contended that the bar against lntra-Court Appeal under the proviso to subsection (2) of section 3 of the Ordinance is applicable where any remedy by way of appeal, revision or review was available against the order challenged under the Constitutional jurisdiction. In the aforementioned case, the order challenged by the appellant before the High Court in exercise of its Constitutional jurisdictional could be appealed against under rule 43 of National Bank of Pakistan (Staff Service) Rules, 1953 and, therefore, it was held that the order passed by the learned Single Judge of the High Court in the writ petition was covered by the proviso to subsection (2) of section 3 of the Ordinance and appeal against such order before a Bench of two or more Judge of the High Court was not competent. Learned counsel has also tried to distinguish the case of Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore on facts inasmuch as order, dated 12-6-1975 of the Deputy Settlement Commissioner challenged before the High Court in the writ petition, was passed in a case remanded by the Settlement Commissioner on 30-10-1971 after accepting revision petitioner against order, dated 21-9-1970 by which the disputed plot was auctioned. According to the learned counsel, the order challenged in the High Court was made in continuation of proceedings in which order for auction of the property in question was passed. In the present case order, dated 24-11-1976 challenged in the writ petition was made on an application filed under sections 10 and 11 of the Act. This order cannot be considered to have been made in the proceedings in which the disputed land was allotted to Ghulam Qadir.

5. We have carefully considered the submissions made by the learned counsel for the parties. The object of proviso to subsection (2) of section 3 of the Ordinance is quite evident inasmuch as it curtails the right of appeal against the order passed by a Single Judge of a High Court before a Bench of two or more Judges of that Court where the order was passed in exercise of Constitutional jurisdiction in a case arising out of any proceedings in which the law applicable provides for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order Intention of the legislature was to give finality to the order passed by the High Court in exercise of Constitutional jurisdiction in such cases in so far as the High Court was concerned, as it was considered that remedy by way of appeal, revision or review provided in the statute applicable was a sufficient safeguard against arbitrary or illegal exercise of jurisdiction by the authority concerned and after scrutiny by the High Court in exercise of its Constitutional jurisdiction, there was no justification to re-agitate the matter in the High Court. If the above intention of the Legislature is kept in view, the term "proceedings" used in the proviso to subsection (2) of section 3 of the Ordinance, will have to be given a wider meaning so as to cover the entire period starting from the date of l commencement and ending on the date when final order was passed. The first order passed in these proceedings shall be considered as the original order and all orders passed subsequently, shall be construed as orders passed in continuation of the proceedings. In the present case, proceedings under the Displaced Persons (Land Settlement) Act commenced with the allotment of the disputed land to Ghulam Qadir, deceased. All proceedings which followed the allotment of land to him shall be considered as continuation of original proceedings. For the purpose of the proviso to subsection (2) of section 3 of the Ordinance, the order of allotment made in favour of Ghulam Qadir deceased shall be construed as the original order. An appeal could be filed against the above allottment order under the Act. Order, dated 24-11-1976 by which applications of respondents Nos. 1 to 4 was dismissed by the Additional Settlement Commissioner is an order passed in continuation of proceedings initiated by Ghulam Qadir deceased. The above application under sections 10 and 11 of the act did not start any new proceedings as it was filed in respect of the allotment of the disputed land made in favour of Ghulam Qadir deceased in 1961. Order, dated 24-11-1976 was challenged by respondents Nos.1 to 4 in the writ petition which has been accepted by the learned Single Judge on 8-4-1985. This order cannot be further challenged in this Court in appeal in view of , the proviso to subsection (2) of section 3 of the Ordinance.

6. The above legal position has been made amply clear by the Supreme Court in the two cases relied upon by learned counsel for respondents Nos.l to 4. We, therefore, accept the objection of the learned counsel appearing on their behalf and hold that the present appeal is not competent which is accordingly dismissed The parties are, however left to bear their own costs. ,

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