' IBADAT YAR KHAN, J.--This Intra-Court Appeal has been filed against the judgment of a learned Single Judge of this Court dismissing a Constitutional Petition which was filed by the appellant questioning the validity of an order of the Settlement Commissioner, Karachi under the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975, (Act XIV of 1975).
2. The respondents' learned counsel has raised a preliminary objection and invites us to dispose of the preliminary objection regarding the maintainability of the appeal before the appeal is taken up to be heard on merits. We proceed to dispose of this preliminary point, but few facts are mentioned to appreciate the point involved The dispute between the parties relates to a house bearing No,A/30/14 situated on Kalimori Masan Road, Hyderabad. This house became evacuee property and in December, 1969 was transferred to the respondent under earmarking scheme by the Settlement authorities. A P.T.O. Was issued on 1-1-196? In favour of the respondent. One Duney Khan, predecessor-in-interest of the appellant challenged the transfer and sought to press his own claim as a claim-holder entitled to the transfer of the house. As the C.H. Form, which Duney Khan averred he had already filed, was not traceable, the Deputy Settlement Commissioner by his order dated 21-10-1961 allowed Duney Khan to file a duplicate C.H. Form. Duney Khan filed the same and house was transferred to him by the Deputy Settlement Commissioner on 21-2-1962. This order was passed without notice to the respondent. When the respondent came to know of this transfer sometime in 1964 he sharply reacted. He applied for annulment of this transfer which was made in favour of Duney Khan first before the Deputy Settlement Commissioner and then by an appeal and revision to the Additional Settlement Commissioner and Commissioner, but remained unsuccessful. Having exhausted his remedy in the Settlement heirarchy the respondent filed Constitutional Petition No,774 of 1965 in the High Court. This Constitutional Petition was heard and disposed of by an order dated 16-6-1971 by a learned Single Judge of this Court. The order dated 21-2-1962 was set aside. An appeal was preferred against this judgment. This appeal being L.P.A.
168/71 was heard and disposed of by judgment dated 6-10-1980. The appellate Bench, while approving that the transfer in favour of Duney Khan without notice to the respondent to whom the house stood already allotted was illegal, remanded the case to the Settlement Commissioner with the direction that while disposing of the claim of Duney Khan, it should also be examined whether after having filed 'E' Form for transfer of another house in Hyderabad, Duney Khan could still press his C.H. Form in respect of the house in dispute.
3. On remand the Authorized Officer acting as Settlement Commissioner, rejected the claim of Duney Khan and re-affirmed the transfer in favour of Mumtaz Baig. The appellants as successor in interest of Duney Khan filed Constitutional Petition No,Si.85/1981 against this order of the authorized officer. This petition was heard and disposed of by a learned Single Judge of this Court by judgment dated 11-10-1983 now under appeal. The learned Judge has dismissed the petition and upheld the order dated 25-10-1981 passed by the Settlement Commissioner. This High Court Appeal is directed against this judgment of the learned Single Judge dated 11-10-1983.
4. Mr. Akhtar Mahmud learned counsel for the respondent has raised a preliminary objection on the maintainability of the appeal. The learned counsel contends that no appeal lies against the judgment of the learned Single Judge of this Court and for this proposition relies on section 3 subsection (2) of the Law Reforms Ordinance of 1972. This provision of law has been amended from time to time. As a result of final amendment brought about by Amendment Act of 1974 on 13-1-1975 section 3(2) assumed its present form. This may be produced in its amended form. It reads as under:- "An appeal shall lie to a Bench of two or more Judges of Court from a decree passed or a final order made by Single Judge of that Court in exercise of its original jurisdiction.
' An appeal shall also lie to a Bench of two or more Judges of High Court from an order made by Single Judge of that Court under clause I of Article 199 Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (1) 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."
5. The original order in favour of Duney Khan predecessor-in-interest of the present appellant was passed on 21-2-1962 under the provisions of the Displaced Persons Rehabilitation and Settlement Act and the same hereunder. Under this Act this order could be challenged in appeal as well as in Revision and indeed both these remedies were availed of by the present respondent before filing the Writ Petition No, 774 of 1965 in the High Court. The contention of the counsel for the respondent is that the present appeal originates from a grievance against an order passed under the Settlement Act, where under an appeal and revision was provided. As such an appeal would not be competent against the order of the learned Single Judge by force of the proviso to section 3, clause (2) of the Law Reforms Ordinance XII of 1972 as amended up to date.
' Learned counsel for the respondent has relied on two cases of the Supreme Court reported in PLD 1984 SC 344 and PLD 1985 SC 107.
6. Learned counsel for the appellant however seeks to make out a distinction between these two cases and the case on hand. His contention is that all the proceedings which terminated in the remand order are to be ignored and the order finally passed by the authorized Officer on 25-10- 1981 and which is being attached in this appeal as well as in the writ petition should be treated to be an "original order". It may be stated that this order was passed by an authorized Officer acting as Settlement Commissioner under section 2, subsection (2) of Evacuee Property and Displaced Persons Laws Repealed Act (XIV) of 1975. Under this Repealing Act the Displaced Persons Compensation and Rehabilitation Act under which the original transfers were made, was repealed and by section 2, sub-clause (2) a provision was introduced for disposal of pending cases. This subsection may be produced as under: - "(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the Officers notified as aforesaid."
It is significant to note that under this Repealing Act no remedy by way of appeal or revision has been provided to agitate a grievance against the order passed by the authorized Officer under section 2, A subsection (2) of this Act. If this order is taken to be an "original order" surely there is no appeal or revision against this order and the present appeal would be out of purview of the bar created by section 3(2) of the Law Reforms (Amendment) Act, 1974 (Act VI of 1975).
' At the first glance argument seems to be attractive, but the controversy has been set at rest by the dictum laid down by the Supreme Court in the case of Muhammad Abdullah v. Deputy Settlement Commissioner reported in PLD 1985 SC 107. This very contention was raised and examined by the Hon'ble Judges of the Supreme Court in paras. 3, 4 and 5 of this judgment.
7. In this case an order was passed by the Deputy Settlement Commissioner on 21-9-1970 in favour of the appellant. This order was subjected to a revision before the Settlement Commissioner who by his order, dated 30-10-1971 set aside the said order and remanded the case to the Deputy Settlement Commissioner who by a fresh order, dated 12-6-1975 disposed of the case. This order, dated 12-6-1975 was challenged in a Constitutional Petition in the High Court.. This petition was dismissed by a learned single Judge of the Lahore High Court by his order, dated 30-5-1975. The petitioner filed an Intra-Court Appeal against this order but the same was dismissed by a Division Bench of that Court on the ground that in view of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 an Intra-Court Appeal against the order of a learned single Judge passed under Article 199 of the Constitution was not available.
' The petitioner filed a Leave Petition against this judgment of the High Court and leave was granted to examine this point. While dismissing the appeal Aslam Riaz Hussain J. Relying on an earlier judgment of the S.C. Examined and disposed of the contention as follows:- "(3) The contention raised by the appellant before us is that the learned Judges hearing the Intra- Court Appeal overlooked the circumstances that in pursuance of the order of the remand, the Deputy Settlement Commissioner actually took up the case sometime in 1975. By then, the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), had been promulgated, whereby the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had been repealed. Upon the repeal of the aforesaid Act all the proceedings which immediately before the repeal were pending before the authorities appointed thereunder, were to stand transferred for final disposal to an officer to be notified by the Provincial Government in the official Gazette for disposal in accordance with the provisions of the. Repealed Act. Under the new law no further appeal, revision or review was available against the orders of such a notified officer.
4. The learned counsel argued that after the repeal, the fresh order passed by the Deputy Settlement Commissioner on 12-6-1975, ought to have been treated as the original order and since the law now applicable did not provide, any revision or review against that order (which was challenged by the appellant through a writ petition, the Intra-Court Appeal filed by him was not hit by the proviso subsection (2) of section 3 of the Act.
5. The above contention however, can no longer be accepted, because, a similar question has been elaborately examined by this Court recently in a settlement case, namely Mst. Karim Bibi v.
Hussain Bakhsh and others, and it was held that the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. It was observed that:- "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 was subject to an appeal under the relevant law."
' The conclusion was expressed thus:- "Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced."
' In view of this clear enunciation of the law, the "original order" in the present case was clearly the order of the Deputy Settlement Commissioner, dated 21-9-1970. As such the view expressed by the learned Judges of the High Court in the impugned judgment that an Intra-Court Appeal was not competent, because the law provided for an appeal against the original order, dated 21-9-1970 is unexceptionable."
8.In view of the observations made above, there can be no escape from the position that an Intra- Court Appeal against the judgment of a single Judge is not competent where the order complained of in the Constitutional Petition was passed .By an Officer under the Displaced Persons (Rehabilitation and Settlement) Act which is the case before us. This appeal is accordingly held to be incompetent and is dismissed as such with no order as to costs.