' MUHAMMAD MUZAMMAL KHAN, J.---This Intra-Court Appeal is directed against the judgment, dated 11-9-2006 in Writ Petition No,870 of 2006 whereby appellant's constitutional petition was dismissed.
2. Appellant being co-owner in possession of Properties Nos. 32/1 and 33, Civil Lines, Rawalpindi, assailed action of acquisition by the respondents regarding 19 feet wide strip, out of open space of her properties, by filing a writ petition wherein she challenged the acquisition proceedings, inter alia, on the grounds that her property is located about 200 meters away towards Kutchery Chowk; that she was not given a notice in terms of section 5-A of the Land Acquisition Act, 1894; that she cannot be deprived of her private' property, contrary to constitutional warrantees and that the action complained is arbitrary/ discriminatory, as the respondents are acquiring properties out of pick and choose. The learned Single Judge in Chamber of this Court declined to intervene on the ground that there is no allegation/proof of malice on part of the respondents to acquire a part of her property which is needed for public purpose besides the fact that appellant raised objections before the acquiring and other authorities which were duly considered.
3. Respondents in response to notice by this Court, appeared and opposed the appeal by invoking provisions of Proviso to section 3 of the Law Reforms Ordinance, 1972, as section 54 of the Land Acquisition Act, 1894 provided an appeal. Reliance was placed on the judgments in the cases of Mst. Karim Bibi and others v. Hussain Bakhsh and others (PLD 1984 SC 344) and Nawaz-ul-Haq Chohan v. The State and others (2003 SCM R 1597) refuting appellant's case that the land subject of acquisition was not needed for public purpose or she was being subjected to discrimination.
4. We have heard the learned counsel for the parties and have examined the record. Besides the lawful reasons which weighed with the learned single Judge in Chamber of this Court in dismissing the appellant's constitutional petition with the findings that land subject of acquisition is needed for widening and remodeling of Islamabad International Airport Road from Kutchery Chowk to Flying Club, Rawalpindi, the acquisition under attack is undisputedly for 'public purpose to widen the road on account of traffic congestion in the area. On account of urgent nature of the work of widening and remodeling the road, emergent powers by virtue of section 17 of the Act, 1894, were invoked, dispensing other formalities. We were not impressed by the submission of the learned counsel for the appellant that she is being subjected to discrimination, as owners of her adjoining property have already received the compensation for their acquired strip of land. No example of pick and choose by the respondents could be pointed out during hearing of the case. The alleged pick and choose, otherwise is not imaginable/practicable because respondents have to keep/maintain an alignment of the road. We were informed that acquisition of strip of 19 feet in width would not obstruct light/air of the main building which remains intact with a considerable open space left for this use of the appellant. As regards letter No,RDA/MP&TE/F-245/680, dated 31-3-2006 addressed to Garrison Commander HQ 10-Corps, Chakala, Rawalpindi, on the basis of this letter, well- reasoned impugned judgment cannot be set aside, as the concession shown to the appellant wassubsequently withdrawn and does not create any vested right at the cost of public development work.
5. Acquisition proceedings under the Land Acquisition Act, 1894 were challenged through a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This Intra-Court Appeal has been filed under section 3 of the Law Reforms Ordinance, 1972, Proviso to which, bars availability of this right in case the original enactment out of which proceedings challenged in the writ petition, emanated, envisaged any appeal/revision or review. Section 54 of the Act (ibid) provided an appeal against Award by the Land Acquisition Collector concerned, thus the impugned judgment, dated 11-9-2006 is not open to challenge through instant ICA. Hon'ble Supreme Court in the case of Mst. Karim Bibi and others (supra) graciously observed as under:-- "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 be the one which is under challenge but the test is whether the original order passed in the proceedings is subject to an appeal under the relevant law, irrespective 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."
' (Underlining is by us to highlight the Ratio of the judgment)
' Above reproduced part of the erstwhile judgment by the Apex Court left no room to urge that since the action impugned in the writ petition was not itself appealable thus Intra Court Appeal was competent, We haveminutely examined the respective stance of the parties and conclude that instant ICA is not competent.
6. For the reasons noted above, instant appeal is dismissed being meritless and not maintainable at law.