' ANWAR ZAHEER JAMALI, J. ---I.C.A No,14 of 2007, preferred by the present appellants in order to challenge the legality and merits of the judgment dated 6-12-2006, in Writ Petition No,1664 of 2006, passed by a learned single Judge in chambers of Lahore High Court, Multan Bench, was dismissed by the learned Division Bench of Lahore High Court on the ground of non-maintainability with reference to the availability of remedy of appeal under section 54 of the Land Acquisition Act, 1894 (in short the Act of 1894) qua the provisions of section 3(2) of the Law Reforms Ordinance 1972, relating to the remedy of Intra Court Appeal.
2. Briefly stated, the background of this litigation is that vide notification dated 15-2-1965, an area of 358 canals, 7 marlas and 233 canals and 6 marls situated in Mouza Khairpur and Qasim Baila, Multan, respectively owned by the predecessors of respondents and, others was acquired by the Irrigation Department, Government of Punjab for the purpose of construction of a portion of Shahabad Canal Branch and compensation was accordingly paid. Since some area of this acquired land remained unutilized, therefore, on 14-4-2003, some legal heirs of the original owners of the acquired land moved an application before the District Officer Revenue, Multan for restoration of this unutilized area to them in terms of Rule 14(2)(ii) of the Punjab Land Acquisition Rules, 1983 (in short the Rules of 1983). Such request of the respondents herein was approved to the extent of restoration of land admeasuring 125 canals, 2 marls in mouza Khairpur and 221-kanals, 12- marlas in mouza Qasim Baila, Multan to its original owners. However, during further process, keeping in view the policy of the Government, following two conditions were imposed by the Board of Revenue Punjab, vide its letter dated 18-1-2006:-
(i) Land may be offered to the original land owners at the prevailing market price.
(ii) If the owners are not willing to accept the officer, then land may be auctioned under the policy of Board of Revenue or the Government on the subject.
3. Aggrieved by these conditions, Writ Petition No,1664 of 2006 was preferred by the respondents before the Lahore High Court, Multan Bench on 10-4-2006 with the following prayed- "It is most respectfully prayed that this petition may graciously be accepted, the imposition of condition Nos.(i) and (ii) of the impugned memorandum dated 18-1-2006 (ANNEX. 'A') be declared without jurisdiction, unlawful, without lawful authority and of no legal effect. Consequently, the respondents may please be directed to restore the land as mentioned in the impugned memorandum to the petitioners and all other concerned on refunding the amount paid as compensation less the percent granted for compulsory acquisition by them.
' Any other writ, relief or direction expedient in the interest of justice may also please be granted in favor of the petitioners"
4. This writ petition was heard and decided by the learned Single Judge in chambers vide his judgment dated 6-12-2006 with the observations that once decision for return of unutilized land was taken in terms of section 14(2) of the Rules of 1983 by the concerned authority, the Board of Revenue/Government was not competent to impose such conditions. Appellant being aggrieved by such judgment in favor of respondents, challenged it through Intra Court Appeal No,14 of 2007, which was dismissed by impugned order dated 8-6-2009, mainly on the ground that in view of the availability of remedy of appeal under section 54 of the Act of 1894 qua the provisions of section 3(2) of the Law Reforms Ordinance 1972, I.C.A. Was not maintainable.
5. Mr. Mudassar Khalid Abbasi, Assistant Advocate-General, Punjab in his arguments vehemently contended that the two conditions contained in the letter dated 18-1-2006 issued by the Board of Revenue Punjab, were challenged by the respondents through Writ Petition No,1664 of 2006, on the ground of jurisdiction as it was not an order open to challenge in appeal under the provisions of the Act of 1894. It was in this background that judgment in the said writ petition was rightly challenged by the present appellants through I.C.A. However, learned Division Bench of the Lahore High Court, while passing its impugned judgment, fell in grave error of law in recording its view regarding availability of remedy of appeal under section 54 of the Act of 1894, thereby dismissing the I.C.A. Of the appellants on such unsustainable legal objection, and not deciding the same on merits after considering various grounds urged by the appellants. He further contended that even in terms of Rule 14(2)(ii), restoration of unutilized acquired land to its original owners was subject to the discretion of competent authority, and further to fix its price, if necessary, to be lower than the original rates paid to owners, on the ground of deterioration of land or enhance the rates on the ground that value of land has been improved, but these important aspect of the case, which needed due consideration, were totally overlooked by the Division Bench, while passing its impugned order.
6. Sheikh Zamir Hussain, learned Senior Advocate Supreme Court for the respondents when confronted with the question of maintainability of the I.C.A., candidly stated that the remedy of appeal in terms of section 54 of the Act of 1894 was not available to the parties, therefore, dismissal of I.C.A. On this ground qua reference to section 3(2) of the Law Reforms Ordinance 1972, was due to erroneous view formed by the learned Division Bench.
7. Since the legal position, as regards the maintainability of Intra Court Appeal before the Lahore High Court conversed by the learned Assistant Advocate-General Punjab is not disputed by the learned Senior Advocate Supreme Court for the respondents and in our opinion too, contrary view taken by the learned Division Bench in this regard is based on miss-appreciation of relevant provision of law; without dilating further upon other aspects of the case, we allow this appeal and set aside the impugned judgment dated 5-6-2009, in I.C.A. No,14 of 2007, passed by the learned Division Bench of Lahore High Court, Multan Bench and remand the I.C.A. For its expeditious disposal on merits and in accordance with law.