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2007 M L D 980

[Lahore]

Before Muhammad Muzammal Khan and Syed Sajjad Hussain Shah, JJ

Mst. NASREEN TARIQ---Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary Housing and Physical Planning


Department and 3 others---Respondents

I.C.A. No.110 of 2006, heard on 15th March, 2007.

Land Acquisition Act (I of 1894)---

----Ss. 5-A, 17 & 54---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court


Appeal---Maintainability---Compulsory acquisition--Legal formalities,
dispensing with---Appellant was aggrieved of acquisition of piece of land
owned by her---High Court in exercise of Constitutional jurisdiction, upheld
the acquisition proceedings---Validity---Acquisition in question was for public
purpose to widen road on account of traffic congestion in the area---
Emergent powers by virtue of S.17 of Land Acquisition Act, 1894 on account
of urgent nature of work of widening and remodeling the road were invoked,
dispensing with other formalities---Appellant was not being subjected to
discrimination, as owners of adjoining property had already received
compensation for their acquired strip of land---Appellant failed to point out
any example of pick and choose by the authorities---Intra-Court appeal was
filed under S.3 of Law Reforms Ordinance, 1972, proviso to which had barred
availability of such right in case the original enactment out of which
proceedings challenged in Constitutional petition emanated, envisaged any
appeal/revision or review---Appeal was provided under S.54 of Land
Acquisition Act, 1894, against award by Land Acquisition Collector, therefore,
judgment passed by High Court was not open to challenge before Division
Bench of High Court---Intra Court appeal was dismissed in circumstances.
Karim Bibi and others v. Hussain Bakhsh and others PLD 1984 SC 344 ref.

Nawaz-ul-Haq Chohan v. The State and others 2003 SCMR 1597 rel.

Sh. Zameer Hussain for Appellant.

Tanvir Iqbal A.A.-G. and Khan Abdul Rashid Khan DPG for Respondents.

Date of hearing: 15th March, 2007.

JUDGMENT

MUHAMMAD MUZAMMAL KHAN, J.---This Intra-Court Appeal is directed


against the judgment, dated 11-9-2006 in Writ Petition No.870 of 2006
whereby appellant's constitutional petition was dismissed.

2. Appellant being co-owner in possession of Properties Nos. 32/1 and 33,


Civil Lines, Rawalpindi, assailed action of acquisition by the respondents
regarding 19 feet wide strip, out of open space of her properties, by filing a
writ petition wherein she challenged the acquisition proceedings, inter alia, on
the grounds that her property is located about 200 meters away towards
Kutchery Chowk; that she was not given a notice in terms of section 5-A of the
Land Acquisition Act, 1894; that she cannot be deprived of her 'private'
property, contrary to constitutional warrantees and that the action ,complained
is arbitrary/discriminatory, as the respondents are acquiring properties out of
pick and choose. The learned Single Judge in Chamber of this Court declined to
intervene on the ground that there is no allegation/proof of malice on part of
the respondents to acquire a part of her property which is needed for public
purpose besides the fact that appellant raised objections before the acquiring
and other authorities which were duly considered.

3. Respondents in response to notice by this Court, appeared and opposed the


appeal by invoking provisions of Proviso to section 3 of the Law Reforms
Ordinance, 1972, as section 54 of the Land Acquisition Act, 1894 provided an
appeal. Reliance was placed on the judgments in the cases of Mst. Karim Bibi
and others v. Hussain Bakhsh and others (PLD 1984 SC 344) and Nawaz-ul-Haq
Chohan v. The State and others (2003 SCMR 1597) refuting appellant's case that
the land subject of acquisition was not needed for public purpose or she was
being subjected to discrimination.

4. We have heard the learned counsel for the parties and have examined the
record. Besides the lawful reasons which weighed with the learned single Judge
in Chamber of this Court in dismissing the appellant's constitutional petition
with the findings that land subject of acquisition is needed for widening and
remodeling of Islamabad International Airport Road from Kutchery Chowk to
Flying Club, Rawalpindi, the acquisition under attack is undisputedly for public
purpose to widen the road on account of traffic congestion in the area. On
account of urgent nature of the work of widening and remodeling the road,
emergent powers by virtue of section 17 of the Act, 1894, were invoked,
dispensing other formalities. We were not impressed by the submission of the
learned counsel for the appellant that she is being subjected to discrimination,
as owners of her adjoining property have already received the compensation for
their acquired strip of land. No example of pick and choose by the respondents
could be pointed out during hearing of the case. The alleged pick and choose,
otherwise is not imaginable/practicable because respondents have to
keep/maintain an alignment of the road. We were informed that acquisition of
strip of 19 feet in width would not obstruct light/air of the main building which
remains intact with a considerable open space left for this use of the appellant.
As regards letter No.RDA/MP&TE/F-245/680, dated 31-3-2006 addressed to
Garrison Commander HQ 10-Corps, Chakala, Rawalpindi, on the basis of this
letter, well-reasoned impugned judgment cannot be set aside, as the concession
shown to the appellant was subsequently withdrawn and does not create any
vested right at the cost of public development work.

5. Acquisition proceedings under the Land Acquisition Act, 1894 were


challenged through a constitutional petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973. This Intra-Court Appeal has
been filed under section 3 of the Law Reforms Ordinance; 1972, Proviso to
which, bars availability of this right in case the original enactment out of which
proceedings challenged in the writ petition, emanated, envisaged any
appeal/revision or review. Section 54 of the Act (ibid) provided an appeal
against Award by the Land Acquisition Collector concerned, thus the impugned
judgment, dated 11-9-2006 is not open to challenge through instant ICA.
Hon'ble Supreme Court in the case of Mst. Karim Bibi and others (supra}
graciously observed as under: --
"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
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 is 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. The word "proceedings" has' been used in different
enactments and has been subject to judicial interpretation in a number
of cases wherein it has received either restricted or wide meaning
according to the text and subject-matter of the particular statute."

(Underlining is by us to highlight the Ratio of the judgment)

Above reproduced part of the erstwhile judgment by the Apex Court left no
room to urge that since the action impugned in the writ petition was not itself
appealable thus Intra Court Appeal was competent. We have minutely
examined the respective stance of the parties and conclude that instant ICA is
not competent.

6. For the reasons noted above, instant appeal is dismissed being meritless and
not maintainable at law.

M.H./N-31/L Appeal dismissed.