' KHALIL-UR-REHMAN KHAN, I.-This judgment will dispose of IntraCourt Appeal Nos. 44 of 1979, 96 of 1982 and 185 of 1982, as a common preliminary objection that these appeals are not competent under section 3(2) of the Law Reforms Ordinance, 1972, was taken.
2. The facts of each of these appeals, relevant for the purposes of the objection, may be stated.
I. C. A. No, 44 of 1979 Shafique Ahmad Butt, appellant, was serving in the Faletti's Hotel when on 11th August, 1976 his services were terminated. This order was challenged by the appellant before the Labour Court by filing a petition under section 25-A of the Industrial Relations. Ordinance, 1969. The Labour Court vide order dated 24th December, 1977 dismissed the petition and the appeal filed against the order of Labour Court was also dismissed by the Punjab Labour Appellate Tribunal vide order dated 14th October, 1978. The appellant invoked constitutional jurisdiction to assail these two orders as well as the order of termination of service passed by the employer, and on dismissal in limine of the constitution petition vide order dated 17th January, 1979 the present appeal under section 3 of the Ordinance was filed. The precise objection taken in this appeal was that in view of the provisions contained in the proviso to subsection (2) of section 3 of the Ordinance, the appeal filed was incompetent as the law applicable provided for an appeal and the said remedy was actually availed by the appellant.
I. C. A. No, 96 of 1982 ' The constitution petition filed by Muhammad Bashir, appellant, was dismissed vide order dated 24th March, 1982 by a learned Single Judge of this Court. The grievance made in the petition was that the Income-tax Officer, respondent, was illegally attempting to re-assess the appellant to income-tax for the third time for the assessment year 1978-79, and that with the view of such re- assessm ent, had issued notices under section 61 of the Income-tax Ordinance, 1979, and also notices under sections 22(4) and 23(2) of the Repealed Income-tax Act, 1922. The factual background of issuance of the impugned notices was that initially the appellant had not filed any return for the year 1978-79 but he did file later a `nil' return in pursuance to the notices issued to him on the basis of the report dated 3rd February, 1980 of the Survey Inspector. In this return, the position taken was that the appellant had not carried out any business during the year in question.
The Income-tax Officer examined his wealth statement and found that he had constructed a house on a plot of 5 marlas during the investment year and he declared its value as Rs, 2.50,000.
The appellant, when asked to disclose the source from where he had obtained the money, took the position that he had sold some gold ornaments and had also received remittance from abroad.
The Income-tax Officer being not satisfied with the vouchers produced, made his own estimate of income and assessed him at an amount of Rs, 13,000. This order was not agitated against by the appellant. Later, a notice was served under section 66-A of the Income-tax Ordinance by an Inspecting Assistant Commissioner as he was of the view that the receipt produced showing sale of gold ornaments was forged one. He after giving an opportunity to explain the position added the value of house i. e. Rs, 2,50,000 to the net income already found by the Income-tax Officer and assessed the appellant at an income of Rs, 2,63,000. This order was challenged and the Commissioner, Income-tax vide order dated 11th May, 1981 set aside the order of the Inspecting Assistant Commissioner solely on the ground of jurisdiction. The matter was not allowed to rest there as on 22nd October, 1981 the Income-tax Officer issued notice to the appellant under sections 62 and 65 of the Ordinance calling upon him to show cause why his assessment should not be modified by making a correct valuation of the property and treating all the investments made therein as income from undisclosed source. This was the notice the legality of which was challenged in the writ petition which, as noted above, was dismissed by the learned Single Judge.
Intra-Court Appeal was then filed to assail the order of dismissal of the constitution petition.
' The precise objection as to maintainability of the appeal was that the very orders which were being set up as a bar to the issuance of the impugned notice, show that the law applicable to the proceedings, out of which constitution petition arose, provided for appeal and revision and that in fact the order dated 11th May, 1981 was passed on revision filed by the appellant himself. It was further argued that even against the order to be passed by the Income-tax Officer in pursuance to the impugned notice, remedy of appeal, etc. Will be available under the law and, as such Intra Court Appeal would not be competent in view of the proviso to subsection (2) of section 3 of the Ordinance.
I. C. A. No, 185 of 1982 ' The constitution petition, out of which this Intra-Court Appeal arose, was filed to assail the order dated 27th May, 1981 passed by an Additional Settlement Commissioner with powers of Chief Settlement Commissioner as Notified Officer under sections 10 and 11 of the Displaced Psrsons (Land Settlement) Act, in pursuance to the order dated 10th July, 1979 passed by the High Court in Writ Petition No 539-R/1978 and 1433.-R/1977. Against this very order, a petition for special leave to appeal was filed in the Supreme.. Court and the same was dismissed vide judgment dated 13th November, 1979. The observations made by the Supreme Court, which have assumed importance in context of the controversy raised before us, may be quoted :- "The High Court in this context was justified in quashing the order impugned before it which obviously suffered from omission to take the relevant facts and factors into consideration and was passed without hearing Amanullah Qureshi". (See PLD 1980 SC 1).
' The facts have been given in the report but the salient facts relevant for the purposes of the objection may be recapitulated. These are that Assistant Rehabilitation Commissioner on 2nd January, 1953 in implementation of the Order dated 13th November, 1952 of the Rehabilitation Commissioner had temporarily allotted land measuring 48 kanals 11 marlas situated in village Nawan Shahpur, Gujrat City, to the appellants and then on 28th March, 1966 a proposal for regular allotment was also drawn in the R. L. II Register. The land could not, however, be confirmed because as per notification dated 19th Jaunary, 1970 the land was declared "building site" and a note to this effect was also recorded on aforesaid Khata on 24th February, 1971. A constitution petition was filed to challenge, this declaration and the same was allowed vide order dated 20th April, 1973. During the pendency of this petition, on 10th January, 1972 the land in dispute was allotted by the then Additional Settlement Commissioner (L) Gujrat to the successors-in-interest of the vendors- respondents. The allotment so made was then challenged by filing three writ petitions. All these three petitions were heard together and by quashing the orders impugned therein the case was remanded to the Notified Officer appointed under section 2(2) of the Evacuee Property and Displaced Persons Laws Repeal Act (Act XV of 1915) to deal with the same after examining the question whether the concerned allottees (vendors) had obtained the allotment by fraud or misrepresentation. It was further observed that if the finding to be returned goes in favour of the present appellants, then the proposal made in their favour be given effect to in preference to the earlier allottees or other purchasers. This order was then unsuccessfully challenged before the Supreme Court as indicated above. The Notified Officer then passed the order dated 27th May, 1981 which was impugned in Writ Petition No, 63-R of 1981, which was dismissed vide order dated 25th April, 1982 of the learned Judge observing that in the present case there was a definite finding that fraud has not been proved. Moreover, in the opening part of the judgment it was observed, "the learned Judge in his order dated 10th July, 1979 passed in the three connected petitions had rejected the contention of the appellants (petitioners before me) that they had preference over the respondent and that the case was remanded to the Notified Officer to examine the allegations of fraud and that the question of fraud was then taken up by Mr. Shaukat Ali, Additional Settlement Commissioner in his capacity as a Notified Officer and that in the impugned order he came to the conclusion that the allegation of fraud on the part of respondents had not been proved". This order of dismissal of the writ petition was subjected to challenge by filing this Intra-Court' Appeal.
' The precise objection in this case was that the order dated 2nd January, 1953 of the Assistant Rehabilitation Commissioner making temporary allotment of the land in dispute was the original order passed in this case and as this order was subject to incidents of appeal and revision provided by the Rehabilitation Laws, then in force, and as against the order of allotment dated 10th January, 1972 made in their favour, remedies of appeal and revision were provided for by the Displaced Persons (Land Settlement) Act, 1958, no appeal lay under section 3(2) of the Ordinance against the order passed in Constitution petition. The objection as to non-maintainability of the appeals is based on the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972.
Section 3(2) as amended from time to time, reads as under : "Section 3(2)---An appeal shall also lie to a Bench of two or more 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 ' Provi1ed 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."
3. Mr. M. Arif, learned counsel for the respondents, in Amanullah Qureshi's appeal, argued that the word "proceedings" includes all steps to be taken with regard to finalization of the action. According to him, the action of allotting the land which is subject-matter of the entire controversy commenced with the order of temporary allotment made in 1953 and that the allotment made in 1972 in favour of the respondent allottees, formed part of the same action or transaction which culminated with the order dated 27th May, 1981 passed by the Notified Officer. He argued that the proceedings conducted by the Notified Officer was not new proceedings but the proceedings held in remand and if the various orders passed at different stages are treated as steps taken with regard to finalization of the action of settling the land, then these would amount to one and the same proceedings and the law applicable having provided the remedy of appeal etc. This Intra- Court appeal would be incompetent. Reliance was placed on the unreported judgments delivered in the following lntra-Court Appeal. In I. C. A. No, 83/82 the order of remand dated 12th December, 1973 passed by the Settlement Commissioner was not interfered with upto the Supreme Court and in pursuance to the remand orders, the Notified Officer passed the order on 15th April, 1981. This order was challenged in constitutional jurisdiction but was not interfered with by the High Court.
Intra-Court Appeal was dismissed being incompetent as remedy of appeal provided by the law applicable was in fact availed of. In L. P. A. No, 201 of 1975 decided on 23rd December, 1975 and I. C.
A. No, 132 of 1981 decided on 1st April, 1981 the appeals were held to be incompetent as the proceedings arose in one case under Displaced Persons (Compensation & Rehabilitation) Act and in the other under Displaced. Persons (Land Settlement) Act and both these laws had provided remedies of appeal and revision. Reference was also invited to Ahmad Khan v. Iqbal. In this case, the parties had availed of the remedies of appeal as well as revision upto the Board of Revenue.
The relevant observation of the Supreme Court reads as under :- "On the facts set out above the proviso to subsection (2) of section 3 of the Law Reforms (Amendment) Act VIII of 1972, is plainly applicable. The writ petition in the High Court arose out of proceedings in which the West Pakistan Consolidation of Holdings Ordinance VI of 1960 provides for one appeal and two further revision petitions to the higher revenue authorities. As seen all the three remedies were fully availed by the petitioners. No further appeal from the order passed by the learned Single Judge, therefore, lay to a Bench of two or more Judges in the case."
' Learned counsel, particularly, relied on Inayat Bibi v. Settlement Commissioner. The learned Judges of the Division Bench made specific note of the facts that the respondents before them had filed revision petition against the order dated 18th July, 1973 passed in the proceedings arising out of the verification of claims and allotment made in 1952. This revision petition was accepted by an order dated 19th November, 1973 of the then Settlement Commissioner. It was argued that as the appellant was not a party to the proceedings, the Intra-Court Appeal was competent. This contention was repelled with the following observations :- "The contention of the learned counsel has no force, inasmuch as, in terms of the proviso to subsection (2) of section 3 of the Ordinance, an appeal is not competent where at least one appeal or one revision or one review is available before any Court, Tribunal or authority against the original order. The original order, in the instant case is the allotment made in favour of respondents Nos. 2 and 3 as back as in 1952 against which revisional jurisdiction has been admittedly exercised and therefore, on this short ground alone, the present appeal is not competent, irrespective of the fact whether or not the appellant was or was not a party to the revision petition."
' According to record, respondents in Inayat Bibi's case had obtained allotment of land in the year 1952, but vide order dated 11th March, 1966 the allotment was reduced from 55 kanals 10 marlas to 19 kanals 3 marlas of Khata No, 150 and from 55 kanals 6 marlas to 19 kanals 18 marlas of Khata No,
151. Despite this order, the respondents remained in possession of the entire land. Subsequently, one Syed Ghulam Hussain instituted proceedings against Inayat Bibi, etc. With the allegations that the claim on the basis of which the allotments were obtained was never verified by the Central Record Office. In these proceedings, 0. S. D. Central Record Office vide order dated 28th July, 1973 directed cancellation of the claim. This was challenged in revision and the same was accepted1 2 vide order dated 19th November, 1973 with the observation that the informant Syed Ghulam Hussain Shah may take up the matter under sections 10/11 of the Displaced Persons (Land Settlement) Act for obtaining cancellation of bogus allotment. Thereafter, Mukhbari application under section 10/11 of the aforesaid Act was filed on 11th December, 1973 not by aforesaid Syed Ghulam Hussain but by Inayat Bibi, etc. And the order of cancellation was passed on 11th November, 1975 by the then Settlement Commissioner. This order of the Settlement Commissioner was challenged by filing a constitution petition which was accepted taking note of the fact that the order dated 11th November, 1975 was passed on the ground that claim of the petitioners had been cancelled by the 0. S. D. Vide order dated 28th July, 1973 though against the said order a revision petition was filed and was accepted. Learned Single Judge further observed that "the revision against the order of the 0. S. D. Cancelling the entitlement of the petitioners having been accepted, that order was out of the way, the earlier verification of the petitioners would survive and consequently, the small allotments made in their favour excepting to the extent that these were reduced by an order of the Deputy Settlement Commissioner dated 11th March, 1966 shall remain intact". It is pertinent to note at this stage that the proceedings regarding cancellation of the verified claim and the availing of remedy of revision in the said proceedings and the order of allotments made in 1952 were referred to for holding that the appeal was not competent irrespective of the fact that the appellant was not a party to the revision petition.
' Learned counsel relying on the view taken in Inayat Bibi's case, submitted that in the appeal of Amanullah Qureshi also the allotments were made in 1953 and in 1972 and as appeal against both the orders was available under the law, the Intra-Court Appeal was incompetent. Likewise, in Intra- Court Appeal of Bashir Ahmad, it was argued that assessment order passed earlier was challenged in revision and thus it was apparent that law applicable to the proceedings provided for the remedy of revision. Consequently, in view of the proviso to subsection (2) of section 3 of the Ordinance, appeal was not maintainable.
4 Learned counsel for the appellants, in reply argued that the words "any proceedings" used do not denote all or every proceeding held in respect of the subject-matter of a petition or the controversy raised in a given constitution petition. According to them, there has to be close nexus between the "proceeding" and the "original order" and that every order passed in respect of the right claimed or the subject-matter in dispute would not bar the right of Intra-Court Appeal even if the law applicable provides for a remedy of appeal, revision or review. They argued that the question of maintainability of appeal was not examined from this angle in Inayat Bibi's case and, as such, the view taken does not lay down correct law. It was further argued that the remedy of appeal, revision or review should have been provided before judicial or quasi-judicial forum and in case the law applicable provides administrative appeal or revision, the same should in all fairness be not treated as a bar for filing appeal against the order passed in a constitution petition.
5. With regard to the last submission noted above, reference may be invited to the case of Allah Bakhsh Sabri v. The Commissioner, Bahawalpur Division. In this case, constitution petition arose out of the proceedings held under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. The learned Division Bench held the appeal to be incompetent as the aforesaid rules provide for a departmental appeal. Even Supreme Court in the case of Muhammad Haroon v. District Food Controller upheld the judgment of the Hight Court whereby the appeal before it was held to be barred, with the following observations :- "After hearing the learned counsel for the parties at length we have reached the conclusion that the petitioners could have filed an appeal to the Deputy Director under the law applicable to the matter. The judgment of the Division Bench of the Lahore High Court holding the appeal before, it to be barred, is, therefore, perfectly correct."3 4 ' In view of the above-noted rule enunciated by the Supreme Court the question need not be examined by us. Moreover, this question does not arise in the present appeals.
6. The question of interpretation of the words "any proceedings" and the words "original order" used in the proviso to section 3 (2) of the Law Reforms Ordinance have received our serious consideration. The questions which are relevant to the issue are whether the words "any proceedings" encompass within the ambit, proceedings held at any point of time in respect of the subject-matter of the dispute, or the right claimed in the litigation, or whether there has to be a nexus, a close connection between the original order and the proceedings which gives rise to a given constitution petition, and whether the "original order" includes an interlocutory order or an order merely taking cognizance or seizing of the matter against which an appeal may or may not have been provided for or the words "original order" mean, determinative order passed in those very proceedings against which the law applicable provides for at least one appeal, review or revision. The word "any" prefixed with the word "proceedings" indicates that civil, criminal, revenue, administrative or executive proceedings all, would A fall within the ambit of the word "proceedings".
The meaning of the word "proceedings" given in the Oxford Dictionary, Vol. VIII at page 1470, are as under :- "(a) The action of going onward, advance, onward movement or course. The carrying on of an action or series of actions : action, course of action, conduct behaviour, (b) A particular" action or course of action ; a piece of conduct or behaviour ; a transaction, most usually in pl. : Doings, actions, transactions, space. The instituting or carrying on of action at law ; a legal action or process ; any act done by authority of a Court of law ; any step taken in a cause by either party.
The action of going on with something already begun, continuance of action ; advance, progress, advancement".
' According to Black's Law Dictionary, word "proceedings" amongst others, means ;- "In a general sense, the form and manner of conducting juridical business before a Court or judicial officer ; regular and orderly progress in form of law ; including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunal, bureaus or the like. A prescribed mode of action for carrying into effect a legal right. All the steps or measures adopted in the prosecution or defence of an action. A proceeding includes action and special proceedings before judicial tribunals as well as proceedings pending before quasi-judicial officers and board."
' According to California Evidence Code "proceedings" means :- "Any action, hearing, investigation, inquest or enquiry whether conducted by a Court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law in which, pursuant to law, testimony can be compelled to be given."
' Coming to precedent, section 3 of the Law Reforms Ordinance was considered in the case of Yusuf Ali Khan v. Muhammad Javed Iqbal Cheema para. 9 of the judgment tbeing relevant to the question under consideration, may be reproduced in extenso "Now what is exactly meant by the "proceeding" giving rise to the constitution petition under Article 199 of the Constitution in the context of this proviso. This term has been construed in a general sense differently in different contexts. In Deb Narain Dutt v. Narandra Krishna I L R 16 Cal. 267 (1) it was observed that the word "proceedings" was a very general one, that was not limited to proceedings connected with Civil suits, but included proceedings other than civil proceedings, and civil proceedings other than suits When applied to suits, that might be used to mean the suit as a whole, or that might be used, and often was used, to express the separate steps taken in the course of a suit the aggregate of which made up the suit. Now how does this ratio apply, to the facts of the instant case before us. In its application to the circumstances of this case the term "proceedings" may mean the whole suit filed by the appellant against the respondents or in a5 narrower sense it may simply connote the application dated 9th September, 1974 made by the appellant under rule 5 of the Order XIV of the Code of Civil Procedure in the suit for framing the additional issue. It is out of that the petition under Article 199 (1) arose. In case the suit itself is regarded as the "proceedings' for the purpose of the proviso then the law applicable to it is the Code of Civil Procedure, 1908. But if on the other hand the application made by the appellant for framing the additional issues constitutes the "proceedings" for the purposes of the proviso then the law applicable to it may be merely the provisions contained in rule 5 of Order XIV of the Code. Both these interpretations appear to be tenable".
' The term "original order" used in the proviso to section 3 (2) of the Ordinance also came under consideration and in para. 10 the learned Judges observed as under :- "The expression "original order" in the context of this proviso has been used to distinguish it from the appellate or revisional order, or an order passed in the exercise of review jurisdiction. In order to attract the application of the proviso one has to see if the law applicable to the proceedings (giving rise to the constitutional application) provided for at least one appeal or one revision or one review against the original order."
' The effect of section 3 of the Ordinance on the Letters Patent Appeal PLD 1975 Lah, 1339 (now known as Intra-Court Appeal discussed in Fakharuddin v. Hasinuddin Qureshi, etc. in para. 8 of the judgment, as under :- "The changes brought about by the last two amending laws could, however, not revise the right under clause 10 which had been extinguished by the original provision of section 3 of Ordinance XII of 1972, except to the extent that until the coming into force of that Act on 13th January, 1975 an Intra-Court appeal could lie if the law applicable to the for a review or revision but in no case such an appeal could be brought if the law applicable to the proceedings provided for an appeal".
' In the Karachi case of Bata Shoe Company v. Registrar of Trade Unions and others proceedings out of which constitution petition arose were regulated by the provisions of Industrial Relations Ordinance, 1969. The law applicable provided for right of appeal and that right was actually availed of. The Intra-Court Appeal was held to be not competent.
7. From the above discussion, it is abundantly clear that whey the constitution petition arises out of proceedings in which the law applicable provided for at least one appeal or one revision or one review against the original order, whether that remedy was actually availed of or not, Intra-Court Appeal would not be competent. The law has been finally settled up to the level of the Supreme Court. In the case of I. C. A. No, 44 of 1979, admittedly, as against the order passed by the Labour Court in the grievance petition filed by the appellant, an appeal was available under the Industrial Relations' Ordinance and an appeal was actually filed and was dismissed vide order dated 14th October, 1978 of the Labour Appellate Tribunal. These very orders were challenged in the constitution petition and, D therefore, no appeal lay to a Division Bench of this Court against the Order passed by the learned Single Judge dismissing the constitution petition. We, therefore, hold that this appeal is incompetent and dismiss the same accordingly.
8. As regards the other questions noted above, we have not been able to persuade ourselves to agree with the view taken in Inayat Bibi's case. We would like to record that the words "the application brought before the High Court under Article 199 arisen out of any proceedings" would not mean every proceeding or all proceedings held relating to the subject-matter or the right or the obligation in question. The words "original order" against which the law applicable provides for at least one appeal, etc., would be the one passed in the proceedings, held at a particular point of time, in connection with the right claimed or the grievance made and determined in these very proceedings. The para. Quoted from the judgment in Yousal Ali Khan's, case is instructive in this respect. It would not bring into its ambit any or every order which may have been passed or is existing on record. In our humble view, such a wide interpretation cannot be given to the proviso6 7 under consideration. Our reasons for arriving at the aforesaid conclusion are that according to well-settled rule of interpretation of statutes, every provision which has the effect of taking away the right of appeal is to be construed strictly and in case there is any doubt as to availability of the right of appeal that doubt is be resolved in favour of the existence of the right of appeal. Reference may be made to Muhammad Hussain v. The Additional District Judge and Wahid Bus and Mailsi Transport Co. Ltd. v. Afro! Transport Co. Ltd.. Again, a proviso is not to be interpreted so as to have greater effect than strict construction of the proviso render necessary (See PLD 1976 Kar. 723). To our mind, the words "original order" do not mean an order existing on the record passed by an authority, Court or tribunal in its original jurisdiction or at the lowest rung of the hierarchy of Courts or authority set up or appointed under the law to deal with the matter, as distinguished from an order passed in appellate or revisional jurisdiction. This order must have nexus with the proceedings or a particular action or step or course of action, initiated in respect of a particular transaction, right, obligation or grievance, out of which the constitution petition arose. The fact that the same subject, transaction, right; obligation or grievance was the subject-matter of some earlier proceedings and some order was also passed therein would be of no consequence for the purposes of the proviso under consideration. What is to be seen is that there exists between the proceedings and the original order, a close and proximate connection and order was passed in these very proceedings which gave rise to the constitution petition. Again, the terminus a quo and the terminus ad quern of the proceedings is to be determined with reference to the mode and manner of initiating the proceedings, the nature of the proceedings, the power and the authority invoked, the right claimed, the obligation sought to be enforced or the grievance sought to be redressed at the particular point of time. It may be added that if there exists any order of a competent Court, tribunal or authority in respect of the same subject-matter, right or obligation, then the effect of the same and the proceedings in which any said order was passed on the fresh action or proceedings, may be examined if otherwise relevant, but it cannot be said that the proceedings initiated at a subsequent stage invariably are the continuation of the proceedings earlier held. Each case will have to be examined on the basis of its own peculiar facts and circumstances and in the light of the factors narrated above. To illustrate the point, let us examine the various phases of settlement of refugee claimants. The refugees were provided land under the laws enforced in 1948-49 for maintenance purposes irrespective of the fact whether they had abandoned any land in India or not. Thereafter, temporary allotments were made under the Rehabilitation Scheme of the year 1952 in anticipation of verification of the claim. In the same year, claims for the land abandoned in "Agreed Areas" were invited and claims in respect of land abandoned in "Non-agreed Areas" were invited under the Claims Registration Act, 1956. The same year, Rehabilitation Settlement Scheme, 1956, was enforced for allotment of evacuee land in lieu of the verified claims. By these allotments, quasi-permanent rights were created in favour of the allottees in the allotted land. It was, thereafter, that a compensation pool was created under the Displaced Persons (Land Settlement) Act, 1958 and absolute rights were permanently conveyed to the claimants. It will be seen that at different points of time, proceedings were held and orders were passed with reference to Scheme of Law then prevailing. Such proceeding under each phase was held with a different intent and content. Can then be said that an original order passed in the proceedings held earlier with different content would be the original order for the purposes of the proceedings initiated and held later on and out of which constitution petition arose, merely, because the subject-matter of both the enquiries proceedings was the same or right. Grievance, or claim made in both the proceedings was respecting the same property, subject, or right, or the provisions of the same law were invoked. To illustrate it, take the example of village "X," where the evacuee land was allotted to the refugees in the year 1952-53 and permanently settled on the claimants in the year 1964-65 after disposal of appeals, etc., filed against the orders then passed.8 9 In the year 1976 on the basis of the application filed in 1973, a Settlement Commissioner cancels the allotments made in exercise of power vesting in him under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. Can it be said in this case that proceedings initiated to cancel the land are part of the proceedings held for making allotment orders. The answer must be returned in the negative. Now take a case of 'A' a claimant to whom land was allotted in the year 1972. Mr. 'S', another claimant filed appeal but the same was dismissed. He then filed a revision which was accepted and the matter was remanded for fresh decision. Against order of remand Mr. 'A' filed a constitution petition but the same was dismissed. In pursuance to remand order, a fresh order was passed in 1970 by the Notified Officer. In this case, the order passed in 1978 would be the terminus ad quem of the proceedings and the original order would be the order of allotment passed in 1972. In lnayat Bibi's case however, the view taken was contrary to the one expressed above. It appears that the attention of our learned brothers was not drawn to the above-noted aspects.
9. We would also like to point out another distinction which in our view should be maintained while applying the proviso under discussion. In the appeal of Amanullah Qureshi, the orders passed by the Settlement Authorities were quashed by the learned Single Judge in the constitution petition and the effect of that order, as noted by the learned Judges of the Supreme Court, was as under :- "The High Court in this context was justified in quashing the order impugned before it which obviously suffered from omission to take the relevant facts and factors into consideration and was passed without hearing Amanullah Qureshi.........."
"In this context we must observe that the order of the learned Single Judge appears to us to be quite just and equitable because it will give opportunity to both sides to get their entitlement comparatively thrashed out in a proper manner after allowing them an opportunity of leading such relevant evidence on the subject as they think proper in support of their respective contentions, as highlighted by the learned Single Judge in his order........ "
' It was argue ' that the effect of quashing the earlier orders was to obliterate an wipe off everything which had earlier existed and thus rendered the . To clean and, as such, the orders passed earlier which may be appeal 'Ile, cannot be set up as a bar. It is true that a case, where orders are quashed on the ground that the same were passed without lawful authority and the matter had been remanded for fresh decision, stands on different footing from the case of ordinary remand. It will be noted that in cases where orders have been quashed on the ground that the same were passed without lawful authority, such orders do not exist in law and such non-existent orders cannot be revived or treated to be in existence for the purposes of the proviso and for determining the question whether the law applicable provided for an appeal etc., against such order passed in original jurisdiction. However, in case where a higher Court or tribunals set aside an order of lower Court or tribunals and remands the case for fresh decision, the order though does not hold the field, yet it does not get obliterated from the record and such setting aside of the order would not make any difference as what is to be seen is not that an original order is operative or not but that whether the law applicable provided for an appeal, revision or review against the original order passed.
10. In the situation that we have not been able to persuade ourselves to agree with the view taken in Inayat Bibi's case, the course open to us according to the rule laid down in the Province of East Pakistan v. Dr. Azizul Islam (1) is either to refer the matter to a larger Bench or while following the precedent, leave the matter to be raised in appeal before the Supreme Court. We were informed that Amanullah Qureshi and others, appellants in I. C. A. No, 185 of 1982 have already filed a petition for special leave to appeal and the hearing of the said petition was adjourned as these appeals were being heard by us. As the matter has already been the matter has already been taken to Supreme Court, we deem it appropriate in the circumstances to follow the view taken in Inayat Bibi's case. As a consequence there is no alternative but to hold both these appeals as incompetent in terms of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972, as in the case of Amanullah Qureshi and others remedy of appeal as well as revision was available against the allotment order passed in 1953 and 1972. Likewise, in the case of Muhammad Bashir remedy of revision available under law was actually availed of by filing a revision petition.
11. Before parting with this judgment, we may add that in view of the above situation, we have not touched the other preliminary objections or the merits of the appeals. In the circumstances of the case, parties are left to bear their own costs. 1975 SCMR 27 PLD 1982 Lah. 98 PLD 1983 Lab. 167 1980 SCMR 720 PLD 1980 Lah. 778 1982 CLC 1884 PLD 1966 Lab. 128 PLD 1966 Lab. 684 PLD 1963 SC 296