SYED DEEDAR FRASAIN SHAH, J.---This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 4-10-1999, passed in I.C.A. No,123 of 1989.
2. Brief facts of the case are that the appellant, who is a joint owner having 5/36 share in the property in dispute, on 8-11-1980, moved an application for transfer of the property under para. 30(2) of the Scheme for Management and Disposal of Available Urban Properties. The Member, Board of Revenue dismissed the aforesaid application and directed to dispose of the property by auction vide order dated 10-7-1982. The appellant assailed the validity of the said order through a Constitutional Petition in the Lahore High Court, which was allowed vide judgment dated 4-11-1984 and the case was remanded to the learned Member, Board of Revenue, Punjab to reconsider the appellant's entitlement to transfer of die evacuee share. The learned Member, Board of Revenue, Punjab, on 18-10-1985 ordered the transfer of 31/36 share in the joint property to the appellant. On the other hand, the Town Committee. Eminabad/respondent No,1 also applied to the Deputy Settlement Commissioner for transfer of the disputed property relying on Letter No,S-III/10, dated 27-10-1981, issued by the Government of the Punjab, Local Government and Rural Development Department. Therefore, the Town. Committee challenged the order dated 18-10-1985 passed by the Member, Board of Revenue through Writ Petition No,206/R of 1986 in the Lahore High Court, which was dismissed vide judgment dated 25-6-1989. Therefore, the respondents filed I.C.A. No,123 of 1989, which has been allowed vide impugned judgment dated 4-10-1999 and the case has been remanded to the Notified Officer, Gujranwala, for a decision afresh after hearing the parties concerned. Hence, this appeal.
3. Mr. Abdul Karim Kundi, Senior Advocate Supreme Court for the appellant, inter alia, contended that in view of section 3 of Law Reforms Ordinance 1972, the Intra-Court Appeal before the learned Division Bench of the Lahore High Court was not maintainable; that under section 8 of the West Pakistan Board of Revenue Act, 1957 review was filed which was decided according to the law and that the judgment of the learned Single Judge was well within four corners of the law, which does not require any interference by the learned Division Bench of the High Court. In support of his contentions learned counsel has relied on Malik Ahmad Khan and 315 others v. Iqbal and 8 others (1975 SCM R 275), Muhammad Ashraf Khan v. Administrator (RP)/Settlement Commissioner, Lahore Division and others (1987 SCM R 1358) and Yusuf Ali Khan v. Muhammad Javed lqbal (PLD 1975 Lahore 1339).
4. Conversely, Mr. Maqbool Elahi Malik, learned Senior Advocate Supreme Court for respondent No,1, at the very outset submitted that the I.C.A. In view of the provisions of the relevant law was available before the learned Division Bench and even at the preliminary stage such objection was raised before the learned Division Bench, which was rejected, and it was held that the Intra-Court Appeal was maintainable before it vide order dated 4-3-1990. Learned counsel further referred to section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), which reads as under:- "3. Transfer of property.---(1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal---." He further submitted that by Notification No,37-POL-Sett/84, dated 24-6-1984, in exercise of the powers conferred under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975 (Act No,XIV of 1975) the following amendments were made by the Government of the Punjab in the Scheme for the Management and Disposal of Available Urban Properties:- CHAPTER IV After para. 11 the following shall be added:-- "Provided that the present occupant shall have the first right of purchase." Learned counsel submitted that the above scheme was further amended through Notification bearing No,510-Pol/76 through Gazette of Punjab, Extraordinary, 18th October 1977) which reads as under:-- "No,510-Pol/76.---In pursuance of the provisions of section 3(1)(a)of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (No,XIV of 1975), the Government of the Punjab is pleased to (Make the following amendment in the "Scheme for the Management and Disposal of Available Urban Properties":--
(1) In the headline of para. 30 the words "in public interest" shall be deleted.
(2) Para.30 shall be numbered as sub-para, (1) of para.30 and thereafter the following sub-para.
(2) shall be added:-- Where a property is partly available property and partly owned by any person,. The Member of Revenue (Residual Properties) may transfer the available property on application to such person on payment of transfer price." Learned counsel further referred to section 30 of the Scheme for the Management and Disposal of Available. Urban Properties, which reads as under:-- "30. Powers to transfer properties in public interest.---The Member, Board of Revenue (Residual Properties), may transfer, in public interest any available property in such manner and on such price as he may deem proper." It is argued that the property as defined in the scheme is neither building, nor shop nor normal house, but a fishpond in possession of respondent No,1 since more than three decades and respondent No,1 is holding public auction for the benefit of the public which is its only source of income; that application about the transfer of the disputed property was pending before the Collector concerned which was not decided as per requirement of the law; that the property in any case cannot be segregated and that the appellant is not exclusive owner of the entire property; that the I.C.A. Was rightly filed before the learned Divisions Bench which was correctly entertained and decided by the Court in its impugned judgment. Learned counsel also referred to Mst. Wazir Begum and others v. Member, Board of Revenue/Chief Settlement Commissioner and others (2000 SCM R 989), wherein this Court held that:-- " Provisions of appeal, revision or review having not been provided in Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, order of the dismissal of Intra-Court Appeal could not be upheld---Petition for Leave to appeal was converted into appeal. By Supreme Court and the case was remanded to the High Court for disposing of the Intra-Court Appeal in accordance with law."
5. We have considered the arguments of the learned counsel for the parties and have minutely perused the material available on record. Admittedly, the property has been defined in section 1 (c), (d), (i) and (ii), which reads as under:-- "1. In this Scheme, unless the context otherwise requires: (a)
(b) ......................
(c) "Available properties" mean houses, shops, building sites, hotels, industrial concerns and cinema houses (whether allotted by the Industries, Rehabilitation Board or not) which were available for disposal on and immediately before the first day of July, 1974 or which may thereafter become available for disposal but do not include properties attached to charitable, religious or educational trusts or institutions.
(1)"Building Site" means any vacant plot of land which is not within a well-defined compound of a permanent building and includes-- a site on which the permanent construction, if any, does not exceed in area by 1/8th of the site;
(ii) any site on which any building existed but was completely demolished by floods, fire, incendiary or by any natural calamity." So far as the merits of the case about the disposal of the property is ' concerned, deliberately we refrain from dilating upon this aspect of the case, which may cause prejudice to either of the party because in the impugned judgment the matter has been remanded to the Notified Officer to decide the same afresh after hearing the parties. The learned Division Bench rightly in its own wisdom did not decide the case on merits keeping in view the factual aspects of the case, such as nature of the property and whether the same can be segregated, which aspects of the case can be decided legally after going through the facts by the concerned authority. It would be advantageous to refer here relevant paragraphs of the impugned judgment, which read as under:- - "7. It is an admitted fact that the applications filed by the appellant Town Committee before Notified Officer are still pending and have not been disposed of so far, therefore, we would prefer not to discuss the merits of the case least it may not prejudice the case of any of the parties.
8. For the above said reason this appeal is allowed and the judgment dated 25-6-1999 passed by the learned Single Judge is set aside. Consequently the orders dated 18-10-1985 and 20-2-1986 are declared to have been passed without lawful authority and of no legal consequence and the same are also set aside."
6. The case-law cited by learned counsel for the appellant is quite distinguishable and not helpful; whereas the case-law referred to by the learned counsel for the respondents is relevant and applicable to the case in hand. In our considered view, no loss is caused to any of the contesting party. There is no misreading or non-reading of the material available on record and the impugned judgment is not open to exception.
7. For the facts, circumstances and reasons given above, the appeal is dismissed leaving the parties to bear their own costs.