AJMAL MIAN, J.---By this common order we intend to dispose of the above petitions for . Leave to appeal which are directed against a common judgment dated 9-10-1995 of a learned Division Bench of the Lahore High Court passed in Intra-Court Appels As. Nos.121/1978, 122/1978 and 123/1978, dismissing the same on the ground that the same was not maintainable under section 3 of the Law Reforms Ordinance, 1972, hereinafter referred to as the Ordinance.
2. The brief facts are that certain land was acquired under the Land Improvement Act, 1922, hereinafter referred to as the Act. The Collector gave award in respect thereof on 13-3-1975. The petitioners made an application on 16-9-1975 under section 18 of the Land Acquisition Act, 1894, which was accepted and the matter was referred to the Tribunal constituted under section 58 of the Act. It seems that the Tribunal rendered its decision on 28-5-1977 and thereby enhanced the amount of compensation. Against the above decision the petitioners filed writ petitions which were dismissed by a learned Single Judge of the Lahore High Court through its common judgment dated 28-5-1978 inter alia on the ground of laches. After that the petitioners filed aforementioned Intra-Court Appeals which have been dismissed through the impugned judgment on the above ground. The petitioners have, therefore, filed the present petitions for leave to appeal.
3. In support of the above petitions Mr. Talib H. Rizvi, learned Advocate Supreme Court for the petitioners, has vehemently contended that the learned Judges of the Division Bench erred in holding that the decision of the Tribunal was appealable under section 54 of the Land Acquisition Act, 1894, and hence an Intra-Court Appeal was not competent against the above judgment of the learned Single Judge handed down in exercise of constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution.
4. In order to appreciate the above contention it may be pertinent to quote subsection (2) of section 3 of the Ordinance, which reads as follows:--
3. Appeal to High Courts in certain cases. (1) .........
(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) or Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under sub-paragraph (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.
(3)
(4)
A perusal of the above-quoted subsection indicates that an appeal is competent before a Bench of two or more Judges of the High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution not being an Order made under sub-paragrpah (i) of paragraph (b) of that clause. (It may be pointed out that the latter provision i.e, sub-paragraph (i) of paragraph (b) of clause (1) of Article 199 of the Constitution referred to High Court's jurisdiction in respect of the custody of a person, which is not relevant for the present controversy).
It may further be noticed that the proviso to above subsection (2) places an embargo to the right to file an appeal against an order passed under clause (1) of Article 199 of the Constitution if the proceedings under the latter provision arise out of any proceeding 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 moot question in the case in hand is, as to whether the petitioners had the right of appeal against the original order under the law under which the said order was passed. Reference may be made to the judgment of this Court in the case of Mst. Karim Bibi and others v. Hussain Balchsh and another (PLD 1984 SC 344), in which while construing the above proviso, following observations were made:-
8. After giving our anxious consideration 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 in the relevant statutes. 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 statute commenced."
6. If we were to apply the above test to the instant case it becomes evident that the law under which the original order was passed provided a right of appeal, though the petitioners had not availed of the same. In this regard it may be pertinent to refer to sections 58 and 59 of the Act and section 54 of the Land Acquisition Act, 1894, which reads as under:-- Sections 58 and 59 of the Act:
58. A tribunal shall be constituted as provided in section 60, for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust, under the Land Acquisition Act, 1894.
59. For the purpose of acquiring land under the Land Acquisition Act, 1894, for the Trust--
(a) the tribunal shall (except for the purposes of section 54 of the said Act) be deemed to be the Court, and the president of the tribunal shall be deemed to be the Judge, under the said Act;
(b) the said Act shall be subject to the further modifications indicated in the Schedule to this Act;
(c) the President of the tribunal shall have the power to summon and enforce the attendance of witnesses, and to compel the production of documents, by the same means and (so far as may be) in the same manner as is provided in the case of a Civil Court under the Code of Civil Procedure, 1908; and
(d) the award of a tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894, and shall be final.
Section 54 of the Land Acquisition Act:
54. Appeals in proceedings before Court.- -Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof."
A perusal of the above-quoted section 58 shows that it envisages the constitution of a tribunal for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust, under the Land Acquisition Act, 1894.
It may further be noticed that section 59 lays down that for the purpose of acquiring land under the Land Acquisition Act, 1894, for the Trust, the tribunal shall (except for the purposes of section 54 of the said Act) be deemed to be the Court, and the president of the tribunal shall be deemed to be the Judge under the said Act. It may also be noticed that clause (b) thereof provides that the said Act shall he subject to further modifications indicated in the Schedule of the Act. It will not be out of context to mention here that the Schedule provides certain additions and modifications in the various sections of the Land Acquisition Act, 1894. It is not necessary for the purpose of the present controversy to refer to those additions and modifications.
It may further be pointed out that clause (c) of above section 59 empowers the president of the tribunal to summon and enforce the attendance of witnesses etc. In the manner provided in the Code of Civil Procedure. Whereas clause (d) thereof lays down that the award of the tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894, and shall be final.
It may also be pointed out that section 54 of the Land Acquisition Act, 1894, lays down that subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award or from any part of the award and from any decree of the High Court passed on such appeal as aforesaid, an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure and Order XLV thereof.
7. It may be observed that as the award of the tribunal by virtue of clause (d) a section 59 of the Act is deemed to be the award of the Court under the Land Acquisition Act, 1894, the same is amenable to appeal under section 54 of the Land Acquisition Act, 1894.
8. However, it was urged by Mr. Talib H. Rizvi, learned Advocate Supreme Court for the petitioners, that factually the original order in the case in hand was the first award given by the Collector on 13- 3-1975 and not the award given by the tribunal on 28-5-1977.
9. The above contention is self-destructive. If we were to consider the first award as an original order, in that event, the petitioners could have availed of two remedies, namely, he had referred the matter under section 59 of the Act to the tribunal for review of above original award which culminated in enhancing the amount of compensation, then he had the second right to file an appeal under section 54 of the Land Acquisition Act, 1894, in view of the above deeming provision contained in the aforesaid clause (d), whereby by virtue of fiction of law, the award given by the tribunal is to be deemed to be given by the Court under the Land Acquisition Act, 1894. The fact that the petitioner had not availed of the latter remedy would not make any difference as enunciated in the judgment of this Court in the case of Mst. Karim Bibi (supra). In our view, the impugned judgment of the High Court is unexceptional. Leave is refused.