Through this single judgment, we intend to decide the instant Intra Court Appeal as well as Intra Court Appeals No.61, 65 and 66 of 2019 as in all these appeals, there is a commonality and similarity on question of facts and law. Moreover , all these appeals are arising out of a common judgment dated 16th September , 2019 passed by the learned Single Judge in Chamber in W rit Petitions No.2466, 2469, 2470 and 2471 of 2019.
2. Facts in brief are that the appellant s are holding tenancy rights in the shops owned by the Municipal Corporation, Jhelum. It is claim of the appellants that they are occupying the shops in question since long and regularly paying the rent. The grievance of the appellants starts with a publication in daily newspaper "Express" dated 24th August, 2019 issued by the respondents No.2 and 3 under the instructions of respondent No.1 for the auction of shops, hotels and buildings etc. of District Jhelum, which includes the shops and buildings under the tenancy of the appellants.
The auction was scheduled w.e.f 16th September , 2019 to 25th September , 2019. The appellants in the instant appeal as well as connected appeals voiced their grievance against the proceed ings of the District Assessment Committee, Jhelum dated 1st June, 2019, the publication dated 24th August, 2019 and auction proceedings through W.P.No.2471 of 2019 W.P.No.2469 of 2019, W.P.No.2466 of 2019 and W.P. No.2470 of 2019. The matter came up before the learned Single Judge in Chamber , who proceeded to dismiss all the constitutional petitions by way of order dated 16 September , 2019, which is now under challenge in these appeals.
3. Learned counsel for the appellants submitted that the proceedings of the assessment committee were without any lawful authority . He added that District Assessment Committee, Jhelum revised the rent without associating the appellants in the process and as such they have remained condemned unheard. It is contended that the auction proceedings have been launched by the respondents in order to benefit their blue eyed. Learned counsel emphasized that in presence of rent agreement, the respondents were precluded to put on auction the shops/th buildings in question. It is argued that the certain material facts escaped notice of the learned Single Judge, which resulted into dismissal of constitutional petitions.
4. Contrary to the submissions made by learned counsel for the appellants, learned Law Officer, at the very outset raised a preliminary objection with regard to the maintainability of these appeals. It is contended that proceedings in question arise out of the Punjab Local Government Act, 2019, which provides remedy of appeal. Learned Law Officer submitted that even otherwise, in terms of arbitration clause in the agreement, the instant appeals are not maintainable.
5. We when confronted this aspect to the learned counsel for the appellants, he submitted that no remedy was available to the appellants against the impugned action of the respondents and even otherwise, there is no order in field against which an appeal would lie.
6. After having heard learned counsel for the appellant and the leaned Law Officer, we deem it appropriate to first examine the aspect of competency of these appeals before this Court.
7. It is an admitted fact that properties in question are ownership of Tehsil Municipal Administration, Jhelum. The appellants are holding tenancy rights under an agreement. The grievance of the appellants emerges from a publication issued by the respondents proposing to auction the properties in quest ion through open competition at the rates determined by the District Assessment Committee, Jhelum in its meeting held on 1 June, 2019.
8. The term "Local Government" was defined in Section 2 (v) of The Punjab Local Government Act, 2013 as under: -
2. (v) "Local Government" means a Union Council, a Municipal Committee, a Municipal Corporation, the Metropolitan Corporation, a District Council or an authority; The Punjab Local Government Act, 2013 was, however, repealed through Section 312 of the Punjab Local Government Act 2019 (Act XIII of 2019) wherein all the local governments constituted or continued under the Punjab Local Government Act, 2013 were dissolved and in place Administrators were appointed. The latter Act provides the definition of "local government" in Section 2 (ss) as under: - 'local government' means a local government constituted under subsection (2) of section 3 of this Act; For the purpose of clarity , Section 3 of the Act ibid is also reproduced below: -
3. Dissolution of existing local governments.- (1) All local governments constituted or continued under the Punjab Local Government Act, 2013 (Act XVIII of 2013) are hereby dissolved.
(2). As soon as may be but not later than one year of the commencement of this Act, the Government shall constitute succeeding local governments in accordance with the provisions of section 15 of this Act.
Section 15 of "The Act, 2019" reads as under:-
15. Constitution of local governments.- (1) The Government shall, having regards to the provisions of subsection (2) of section 3 of this Act, constitute local governments of various classes in the following manner: -
(a) a Metropolitan Corporation for each Metropolitan;
(b) a Municipal Corporation for each Municipality with a population of not less than two hundred and fifty thousand as per the latest censes;
(c) a Municipal Committee for each Municipality with a population of not less than seventy-five thousand as per the latest census;
(d) a T own Committee for each T own; and
(e) a Tehsil Council for each Tehsil in the Punjab.
(2) Every local government shall be a body corporate having perpetual succession and a common seal, and, subject to the provisions of this Act, shall have power to acquire, hold and transfer property, both movable and immovable, to contract and to do all other things necessary for the purposes of its constitution; and shall by its name sue and be sued.
9. The revision in the rate of rent was made by the District Assessment Committee, Jhelum on the mandate of "The Act, 2019". Section 301 of the said Act provides remedy of appeal against any order passed by the local government or its officers or servants or other functionaries. The term "Order" used in Section 301 is nowherest defined in "The Act, 2019". In order to discover the true impact of the term "Order" we thus have to advert to the legal dictionaries. The dictionary meaning of word "Order" in different law dictionaries is given as follows:- a. The Webster's New Twentieth Century Dictionary of the English Language Unabridged (Second Edition):"Order"1. To arrange; to organize; to put or keep in order.
2. To regulate; to manage; to subject to rules or laws.
3. To instruct (another) to do something; to direct; to command; as, the general ordered his troops to advance.
4. To deal with; to treat.
5. To ordain; to admit to holy orders.
6. To request (something) to be supplied; as, to order a carload of goods. b. Black' s Law Dictionary (Tenth Edition): "Order"
1. A command, direction, or instruction.
2. A written direction or command delivered by a government official, esp. a court or judge. The word generally embraces final decrees as well as interlocutory directions or commands.--Also termed Court order; judicial order . c. Cambridge Advanced Learner's Dictionary (4th Edition):"Order" 1. a request to make, supply, or DELIVER food or goods:
2. A product or a meal that has been asked for by a customer:
3. Be on order if something is on order, you have asked for it but have not yet received it 4. Do/make sth to order to do or make something especially for a person who has asked for it:
5. The way in which people or things are arranged, either in relation to one another or according to a particular characteristic;
6. Something that someone tells you you must do: 7.
Be under orders to have been told that you must do something by someone in authority 8. An official instruction telling someone what they can or cannot do, or a written instruction to a bank to pay money to a particular person
9. In order to do sth (also in order that sth) with the aim of achieving something:
10. A situation in which everything is arranged in its correct place.
11. Leave/put sth in order to organize something well:
12. The state of working correctly or of being suitable for use:
13. A situation in which rules are obeyed and people do what they are expected to do:
14. Order . Formal an expression used in parliament or a formal meeting to get peopl e's attention and make them stop talking, so that the meeting or discussion can start or continue
15. A social or political system:
16. A group of people who join together for religious or similar reasons and live according to particular rules 17. A group that people are made members of as a reward for services they have done for their country .
18. The type or size of something:
19. Of the order of (UK also in the order of ) approximately:
20. Specialized (used in the classification of plants and animals) d. Oxford Advanced Learner's Dictionary (New 8th Edition): "Order"
1. The way in which people or things are placed and arranged in relation to each other.
2. The state of being carefully and neatly arranged:
3. The state that exists when people obey laws, rules or authority:
4. Instructions. Something that sb is told to do by sb in authority 5. Goods. A request to make or supply goods 6. Goods supplied in response to a particular order that sb has placed.
7. Food/drinks. A request for food or drinks in a restaurant, bar, etc; the food or drink that you ask for:
8. Money. A formal written instruction for sb to be paid money or to do sth.
9. System. The way that a society, the world, etc. is arranged, with its system of rules and customs:
10. Social class.
11. Biology. A group into which animals, plants, etc. that have similar characteristics are divided, smaller than a class and larger than a family:
12. Religious community. A group of people living in a religious community, especially monks or nuns:
13. Special honour. A group of people who have been given a special honour by a queen, king, president, etc:
14. A BADGE OR RIBBON worn by members of an order who have been given a special honour.
15. A secret society whose members meet for special ceremonies: Synonyms. Tell. Instruct. Direct. Command. Order to use your position of authority to tell sb to do sth: tell to say to sb that they must or should do sth. Instruct to tell sb to do sth, especially in a formal or official ay: direct to give an official order: command to use your position of authority to tell sb to do sth: e. Kitabistan's New Millennium Two-In-One Composite Dictionary: "Order"
1. Tidy arrangement 2. Command by order of, under the orders of (someone's) orders.
3. Written direction to (on bank, post office, etc.) to pay the stated sum 4. Working condition, in good working order, out of order 5. Peaceful atmosphere (in a meeting or country) by obedience to rules or to the law, law and order situation in the country 6. Quiet, silence, be called to order (of the President) to call to order 7. Request to supply (goods) an order (for an amount), an made to order,
8. Social status, group holding it,
9. Group holding it.
10. Authority to a priest on being ordained, take holy orders, in order that, so that in order (to do something), with a view to (doing it) v.t.
1. Give an order to (someone to do something)
2. Place an order for (goods from someone or from some place) 3 arrange (something) neatly .
After going through various definitions of the word "Order", we are unanimous that term "Order" used in Section 301 of "The Act, 2019" cannot be circums cribed into a particular form. Any direction, determination in pursuance to some proceedings like the proceedings of the District Assessment Committee, resulting into finalization of the assessment of the rent can be termed as an order contemplated in the Section 301 of "The Act, 2019".
10. The provisions of Section 301 of "The Act, 2019" are akin and similar to Rule 4 of The Civil Servant (Appeal)
Rules, 1977. The Hon'ble Supreme Court of Pakistan in the case of "ABDUL JABBAR and others v.
GENERAL MANAGER (PERSONNEL) PAKISTAN RAILWAYS and others" (2018 SCMR 64) outlined the term "Order" as under:- "9. Under the circumstances, there has to be an order altering, interpreting to his disadvantage, reducing or withholding maximum pension and allowances of a civil servant for preferring an appeal in terms of Rule 4 of the Civil Servant (Appeal) Rules, 1977. In such grievances/ proceedings no particular form of order is required and even pension fixation notices could be treated as an order for the purposes of availing the remedy of appeal under section 4 of the Civil Servants (Appeal) Rules, 1977. Likewise Section 4 of the Service Tribunals Act, 1973 provides that any civil servant aggrieved by any final order whether original or appellate made by the departmental authority in respect of any of the terms and conditions of his service may within 30 days of the communication of such order to him, prefer an appeal to the Tribunal. The proviso to Section 4 further provides that if an appeal or representation or review preferred to the departmental authority is not decided within a period of 90 days, then such person may prefer an appeal before the Service Tribunal. Consequently, the obvious conclusion which one can draw is that an order which is the root of grievance coupled with an un-responded appeal or representation and/or the order of appellate authority deciding such appeal or representation would entitle a civil servant to approach the Service Tribunal for redressal of his grievance and in this particular case in respect of his pay allowances or pension."
11. There is no cavil that Section 3 of The Law Reforms Ordinance, 1972 (hereinafter referred as "The Ordinance, 1972") provides the remedy of Intra Court Appeal in certain eventualities but no such appeal is available or competent if an application brought before the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 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 . The scope of proviso to Sub-section 2 of Section 3 of "The Ordinance, 1972" when came under consideration before the Hon'ble Supreme Court of Pakistan in the case of "Mst. KARIM BIBI AND OTHERS. V. HUSSAIN BAKHSH AND ANOTHER " (PLD 1984 Supreme Court 344) , it was ruled as under: - "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 or 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 statue which prescribes a hierarchy of officers or authorities for the carrying into effect the purposes of such statue 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 statue. In the facts of the pres ent case the relevant statue 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" occurring 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 the case had arisen out of the order of the Additional Settlement Commissioner passed on 24-11-1973, at which time the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was amended taking away the right of appeal.
8. After giving our anxious consideratio n to the arguments urged in support of this appeal we are, however , not impressed by any of the contentions 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 inthe relevant statue. 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 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 statue 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 statue. I do not consider it necessary to notice the various judgments in which this word was so construed.
Suffice it to refer to the case of Nawab Din v. Member Board of Revenue (1) 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 (2) 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 'proceedings' 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 in 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."
Reference in this respect can also be made to "MUHAMMAD ABDULLAH v. DEPUTY SETTLEMENT COMMISSIONER, CENTRE-I, LAHORE" (PLD 1985 Supreme Court 107) wherein the Hon'ble Supreme Court of Pakistan reiterated the principles laid down in "Mst. KARIM BIBI AND OTHERS supra .
12. Attending the contention of learned counsel for the appellants that in the light of principles laid down in the case of "SECRET ARY TO THE GOVERNMENT OF PUNJAB, REVENUE DEPARTMENT and others v. SAJJAD AHMAD and another" (2012 SCMR 114) Intra Court Appeal is maintainable, it is observed with all reverence that facts of the said case rest on entirely different footings. The proceedings arising out in the said case are from the Punjab Land Acquisition Rules, 1983 wherein no remedy of appeal was provided. Above all, the judgment in the said case was rendered with consent of both the sides. Even otherwise, the judgment in the case of "SECRET ARY TO THE GOVERNMENT OF PUNJAB, REVENUE DEPARTMENT and others v. SAJJAD AHMAD and another"
(2012 SCMR 114) cited by the learned counsel for the appellants was delivered by the Hon'ble Bench comprising of three members whereas the judgment in the case of "Mst. KARIM BIBI AND OTHERS. V. HUSSAIN BAKHSH AND ANOTHER " (PLD 1984 Supreme Court 344) was rendered by four Hon'ble Judges of the Hon'ble Supreme Court of Pakistan.
13. Coming to the binding effect of the judgments, it is observed that in case of conflict between the judgments of Hon'ble Supreme Court of Pakistan on a point of law, the judgment of larger Bench shall prevail. The above principle is annunciated in "FEDERA TION OF PAKIST AN and others v. Mian MUHAMMAD NAWAZ SHARIF and others" (PLD 2009 Supreme Court 284), which was later on followed in "NATIONAL BANK OF PAKIST AN through Chairman v. NASIM ARIF ABBASI and others" (2011 SCMR 446) and "Messrs WAK LIMITED MUL TAN ROAD, LAHORE v. COLLECT OR CENTRAL EXCISE AND SALES TAX, LAHORE (NOW COMMISSIONER INLAND REVENUE, LTU LAHORE) and others" (2018 SCMR 1474 ). Reference in this respect can also be made to "Messrs AL-MAHMUDIA (PVT .) LTD. v. PAKIST AN through Secretary , Ministry of Housing and W orks, Islamabad and others" (PLD 2007 Supreme Court 79) .
14. There is yet another important aspect that matter in issue arises out of rent agreement executed interse parties, which contains an arbitration clause, and provides a mechanism for resolution of disputes interse parties. Though the appellants have not invoked the arbitration clause and instead filed constitutional petition but had they opted to invoke the same that should be proceeded as per mandate of The Arbitration Act, 1940, which provides remedy of appeal in terms of Section 39 of The Act ibid. Even on said premises, appellants were precluded to invoke Section 3 of "The Ordinance, 1972".
15. After having a threadbare discussion, we are of the considered view that the instant Intra Court Appeal as well as Intra Court Appeals No.61, 65 and 66 of 2019 are not maintainable in view of proviso to Subsection 2 of Section 3 of "The Ordinance, 1972" and as such the same are dismissed in limine.