' ABDUL SHAKURUL SAI AM, J.-This order will dispose of I. C. A. No, 64 of 1982 and Criminal Original No, 147/W-82 as these are connected matters.
2. The appellant (Mst. Hajran1 claimed to be in possession of some land. It was allotted to the respondent No, 1 (Ghulam Sarwar Khan) as an evictee from Chashma Barrage vide order dated 2- 7-1973. The appellant made applications to the administrative authorities at the highest level too that she and her relatives being in possession were wrongly deprived of the land. The Member, Board of Revenue passed an order on 18-10-1975 to the effect that "the land previously earmarked for Messrs Ghulam Sarwar Khan and Alam Sher Khan, has been fine iy leased out to r11st. Hajran.
Member (Colonies), Board of Revenue, has desired that the two petitioners should be made available 15 acres each within one month, preferably according to the choice of the petitioners."
This was challenged by the respondent No, 1 by means of a Constitutional petition No, 2851 of 1975 which has been accepted by the learned Single Judge vide order, dated 3-3-1982. Hence this appeal.
3. Learned counsel for the parties point out that the aforesaid writ petition was heard along with another Writ Petition No, 2852 of 1975 and a consolidated order was passed. The appellant challenged the order in the second petition by means of 1. C. A. No, 125 of 1982 which was dismissed on the ground of being barred by time and also on the ground that no I. C. A. Against the revisional order of the Member, Board of Revenue was competent, vide order, dated 27-9-1982. Against this order, the appellant filed C. P. S. L. A. No, 582 of 1982 in which a letter from the Board of Revenue was produced before the learned Supreme Court to the effect that the order of the Member, Board of Revenue dated 18-10.1975 impugned in the writ petition was passed on the executive side ; and, therefore, that was original and against that on the dismissal of the writ petition, the writ petitioner was entitled to file an I. C. A. The petitioner in that case has been granted a stay order and the matter is still pending. On merits, the learned counsel for the appellant submitted that the appellant has been in possession of the land in dispute for a number of years and was rightly allotted the land by the Member, Board of Revenue.
4. Learned counsel for the contesting respondent No, 1 has submitted that this 1. C. A. Is not competent for the reason that the appellant, against the order of allotment in favour of respondent No, 1 had filed an appeal which was dismissed by the Additional Commissioner (Revenue) and in a case in which an appeal is competent or has been filed, if the matter is brought before the High Court under Article 199 of the Constitution, then no I. C. A. Is competent in view of the proviso to section 3 of the Law Reforms Ordinance, 1972. The contention of the learned counsel for the appellant that the order of the Member, Board of Revenue dated 18-10-1975 brought before the High Court under the said Article was an executive/original order, is not correct.
5. It is quite correct that if against an order, an appeal or revision is competent and the matter is brought before the High Court under Article 199 of the Constitution, then the decision arrived at by a learned Single Judge is not further appealable before a Division Bench of the High Court in view of the proviso to subsection (2) of section 3 of Law Reforms Ordinance, 1972. The subsection is as follows :- "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) or Article 199 of the Constitution of the Islamic Republic of Pakistan) not being an Order made under subparagraph (i) of paragraph (b) of that clause ' Provided 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."
A plain reading of the proviso would show that an appeal before the Division Bench will not be competent if the Constitutional petition brought before the High Court "arises out of any proceedings" in which the law applicable revided for at least one appeal etc. To any Court, Tribunal or authority against "the original order". This means that if against an original order an appeal or revision has been provided for and the proceedings conclude, then if the matter is brought before a learned Single Judge, no appeal will be competent before the Division Bench. It does not however mean that if an original order has been passed and an appeal or revision is provided for or disposed of, then if all these proceeding are annulled or ignored as if by side-wind through an executive fiat and th executive order is not even challengeable by way of an appeal or revision etc., the appeal before the Division Bench would be incompetent. The matter brought before the High Court, in the case in hand, did not an out of "any proceedings". Proceedings mean judicial or quasi- judicial proceedings in which rights of the parties are adjudged. Proceedings do not mean an executive order vassed in office ignoring or annulling judicial order. Therefore, the matter brought before the High Court was the executive order which was not even challengeable by way of appeal etc. In the hierarchy of the statutory functionaries. Consequently, the appeal against the order of the learned Single Judge is quite competent in the circumstances of the case. We have been apprised of the fact that the order under appeal passed against another person was dismissed by a learned Division Bench of this Court on the ground that the order of the learned Member, Board of Revenue was passed in revisional jurisdiction and therefore, no I. C. A. Was competent. Against that order of the learned Division Bench, the appellant has taken the matter before the learned Supreme Court of Pakistan and it is pending there. A request was made that this case may be kept pending until the decision of the learned Supreme Court of Pakistan. However, on the application of the appellant a direction has been issued by the learned Cbief Justice that this case should be disposed of by hearing day-to-day. The matter has not been dealt with on merits in the presence of the parties at any stage. Therefore, it appears to be just and in the interest of the parties that the matter is finalized on merits as soon as possible.
6. In view of what has been stated above, the order of the learned Member, Board of Revenue dated 18-10-1975 declared to be without lawful authority and of no legal effect by the learned Single Judge is quite right. But, in the circumstances of the case, it appears to us that the appropriate order should have been that after the order of the learned Member, Board of Revenue which had been passed in favour of the appellant at the back of the respondent No, 1, was declared to be without lawful authority, the matter was referred to the learned Member, Board of Revenue for re-hearing in the presence of both the parties or after due notice to them. It is so directed. Ali the pleas as to whether the appellant was entitled to the lease of the land, or, that the respondent No, 1 was rightly allotted the land at the time when that was done, or what is the effect of the events which have subsequently occurred as would appear from the original file which we have perused, are matters which the parties can raise before the learned Member, Board of Revenue who shall decide the case in accordance with law. For expeditious disposal of the matter, the parties are directed to appear before the learned Member, Board of Revenue on 2-2-1985. The appeal is thus disposed of leaving the parties.To bear their own costs.
8. In view of the decision in the appeal, the Criminal Original No, 147/W of 1982 is not pressed by the learned counsel for the applicator. It is, accordingly, dismissed.