' JAVED IQBAL, J.---This appeal with leave of the Court is directed against the judgment dated 27- 2-2002 whereby the writ petition preferred on behalf of the Capital Development Authority, Islamabad (C.D.A.) has been dismissed.
2. Leave to appeal was granted by means of order dated 17-12-2003 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- "Raja Muhammad Zaman Khan respondent having failed to execute the contract awarded by the petitioner for construction of 224 'C' Type Flats in Sector 1-8 Islamabad within the prescribed time, the latter invoking clause 3(c) of the Contract got the work completed at the petitioner's risk and cost, subsequently forfeiting the security amount in terms of clause 3(a) ibid. On which count the respondent moved the learned Wafaqi Mohtasib who partly accepting the complaint recommended the petitioner to re-consider the respondent's claim qua refund of the security deposit rejecting the prayer as to the escalation, Review whereof too was dismissed; however, later on accepting the second Revenue Petition granted the escalation claim on 14-9-1994 and upon turning down of the petitioner's Representation by the President of Pakistan, on 25-11-1994 directed the petitioner to implement its order dated 14-9-1994.
2. Legality whereof was assailed in Writ Petition (No,2259 of 1997) before the Lahore High Court, Rawalpindi Bench, primarily contending that the learned Wafaqi Mohtasib having not been vested with the Review jurisdiction, question of second Review Petition was abortive rendering the order a nullity in the eye of law.
3. Which was dismissed in limine vide the impugned order dated 27-2-2000 on a technicality observing that neither the President of Pakistan nor Federation of Pakistan have been impleaded as party, thus order of the learned Waqi Mohtasib does not stand independently nor the jurisdiction plea was urged before the latter.
4. Against which leave to appeal is being sought reiterating the plea, which prima facie raises important question of law warranting examination. Consequently granting the petition converting the same into appeal is allowed and leave is granted to consider the question as to review jurisdiction of the learned Wafaqi Mohtasib, further whether review of the review was entertain able.
5. Meanwhile operation of the impugned judgment is suspended."
3. Mr. Muhammad Arif Chaudhry, learned Advocate Supreme Court appeared on behalf of C.D.A.
And urged with vehemence that the learned Single Judge in Chambers of Lahore High Court, Rawalpindi Bench has failed to appreciate the legal and factual aspects of the controversy in its true perspective which resulted in serious miscarriage of justice and the questions of law agitated before the learned Single Bench were neither dilated upon nor decided. It is contended that the escalation claim of the respondent was rejected by the learned Wafaqi Mohtasib which could not have been granted subsequently as the learned Wafaqi Mohtasib has no jurisdiction to entertain any review of the review and thus the order being void should have been set aside. It is also pointed out that the learned Wafaqi Mohtasib had no jurisdiction even to review his order as no such jurisdiction has ever been conferred upon him vide P.O. 1 of 1983. It is next contended that no decision was found to have been made by the President of Pakistan qua the findings dated 14-9- 1994 as no such record was available with the C.D.A. It is contended that in fact no order was passed by the President which aspect of the matter has not been taken care of by the learned Single Judge in Chambers. It is urged emphatically that order passed by the learned Wafaqi Mohtasib dated 25-11-1996 being coram non judice should have been declared without lawful authority as the learned Wafaqi Mohtasib had no jurisdiction to review the earlier decision made by his predecessor. It is further argued that it was not binding upon the C.D.A. To have complied with the order passed by the learned Wafaqi Mohtasib as the controversy does not fall within the jurisdictional domain of the learned Wafaqi Mohtasib and no interference was made by the predecessor of the learned Wafaqi Mohtasib and the question being decided finally could not have been reopened by the learned Wafaqi Mohtasib. It is argued that there were no estoppels against appellant for filing the writ petition and the view point portrayed by the C.D.A. At one of the time qua implementation of the order of the learned Wafaqi Mohtasib should have been no substantial bearing on the merits of the case.
4. Mr. Abdul Rashid Awan, learned Advocate Supreme Court entered appearance on behalf of the respondent and strenuously controverted the viewpoint as canvassed by Mr. Muhammad Arif, learned Advocate Supreme Court on behalf of appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that at the first instance it was C.D.A. By whom the review jurisdiction of the learned Wafaqqi Mohtasib was invoked and since their review petition was rejected only thereafter the question of objection qua jurisdiction was raised by the C.D.A. Having little value in the eyes of law keeping in view the conduct of the C.D.A. It is also pointed out that after the rejection of the representation preferred on behalf of C.D.A. By the President of Pakistan a categorist assurance was given by the office of Wafaqi Mohtasib that the order passed on 14-9-1994 would be implemented.
5. We have carefully examined the rival contentions as agitated on behalf of parties, scanned the entire record and perused the order passed by the learned Wafaqi Mohtasib on different occasions. The first order was passed on 7-9-1988 relevant portion whereof is reproduced herein below for ready reference:- "In view of the facts of the case stated above, maladministration on the part of the agency for taking unreasonable actions against, the complainant firm is established. I, therefore, recommend that:--
(a) The action of the agency to convert the penal clause against the contractor form 3(c) to 3(a) showed that he was not at fault and therefore, forfeiture of security deposit of the complainant firm is unjustified. The Agency should consider the refund of security deposit.
(b) The Agency should consider not changing the complainant for the material shown to be issued in his name but not received by him or has authorized representative.
6. The complainant's claim for award of escalation involves disputed facts. I do not adjudicate in these as my recommendations are not open to an appeal in a higher Court, in the rights of either party are 'adversely affected by my findings, the party is deprived of an opportunity to seek redress in a higher Court. Therefore no relief is recommended for the escalation claim of the complainant.
This is without prejudice to the rights of the complainant to seek such a relief from a Court of law."
' A bare perusal of above reproduced order would reveal that the action of the C.D.A. To convert the penal clause against contractor 3(c) to 3(a) was held improper with the direction that CDA should consider the refund of security deposit. The claim of escalation was however not accepted due to the disputed facts. It is worth-mentioning that a review was filed on behalf of C.D.A. On 31-10-1988 assailing the said order meaning thereby that the jurisdiction qua review which has been challenged now was involved by the C.D.A. Itself knowingly that no such powers were available to the learned Wafaqi Mohtasib. We are conscious of the fact that no such jurisdiction could have been conferred with the consent of the party as it always conferred by the statute. It is well-settled by now that "right of review is a substantive right and is always a creation of the relevant Statute on the subject. The assumption that a review in appeal is a continuation of the appeal, is not correct, with the result that the further corollary drawn therefrom in favour of existence of a right of review on that score will also consequently fall. Again the theory of continuation of trial or proceeding is not conclusive of the existence of a right to make a previous judgment open for scrutiny whether by a higher Court in the form of appeal or the same Court in the form of a review. For example, it will be appreciated that an appeal is regarded as a continuation of trial, but it is well-settled that a jurisdiction or right of appeal does not exist merely on this theory but is to be created or granted by a Statute. If so granted and if invoked or exercised, the proceedings in an appeal are considered as a continuation of the trial, but the basic fact remains that this jurisdiction is to be bestowed by a statute and statue alone (Emphasis provided). If this is not done then the aforesaid theory by itself will not create any right or a jurisdiction of appeal. Assuming without conceding, that a review is also a continuation of the previous proceeding even then before the proceedings are allowed to further continue, in the form of a review, a jurisdiction to do so in this case also must be similarly conferred by a statute just as it is to be done in the case of grant of a right of appeal. If there is no statutory conferment of jurisdiction of review, like jurisdiction of appeals, the theory of continuation of proceeding will be of no avail." Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others PLD 1970 SC 1, Muzaffar Ali v. Muhammad Shall PLD 1981 SC 94. It may not be out of place to mention here that review was also filed by the respondent against order dated 7-9-1988 passed by the learned Wafaqi Mjohtasib. The lawful course for the C.D.A. Would have been to challenge the order dated 7-9-1988 passed by the learned Wafaqi Mohtasib instead of filing the review. The learned Advocate Supreme Court for appellant was asked pointedly that as to why the initial order dated 7-9-1988 was never challenged but no plausible justification could be furnished. We have also adverted to the order passed by the learned Wafaqi Mohwtasib on 14-9-1994 and perused it carefully relevant portion whereof is reproduced herein below for ready reference:-- "7. I have considered the matter with care. I am in agreement. With Raja Muhammad Zaman that in two identical cases--in Complaint No,REG-1/5284/85 moved by Mr. Muhammad Rafi Butt and in Complaint No,REG-1/7037/85 moved by Haji Abdullah it was observed that the complainant's suffered a loss and this needs to be adequately compensated for escalation due to delays on the part of C.D.A. And C.D.A. May therefore reconsider the case with a view to paying adequate escalation on the basis of work done "W" at agreement rates instead of schedule of rates which is the basis on which the first running payment of adequate escalation was made to the complainant. This was observed in complaint moved by Mr. Muhammad Rafi Butt. In Haji Abdullah's case to the C.D.A. Was required to re-consider the case with a view to paying adequate escalation on the basis of work done instead schedule of rates.
8. Complainant's case has identical complexion with the cases referred to above and I feel to rectify the error apparent. I, therefore, in exercise of the powers conferred on me under Article 11(1) of the President's Order No,1 of 1983 hold that the complainant has suffered a loss for which he has not been adequately compensated for escalation. C.D.A. Is therefore directed to re-consider the case with a view to paying adequate escalation on the basis of work done. "W" on agreement rates instead of schedule of rates which is the basis on which the first running payment of escalation was made.
9. The complaint succeeds in the manner indicated above. Findings shall be implemented within one month from the date of issue. This order shall be considered to be a part and parcel of the original findings.
10. Before parting with the case, I would like to observe that the C.D.A's representation to impeach my findings in view petition stands turned down by the President, but despite this C.D.A. Does not feel advised to implement the findings. This is very sad serious notice of this lapse shall be taken in due course of time.
' The learned Wafaqi Mohtasib in the said order had concluded that respondent has suffered a loss who could not be adequately compensated for escalation while a few other contractors were compensated for escalation and the C.D.A. Ignored the identical complexion of the cases and refused escalation to respondent without any justification. The said order was passed by the learned Wafaqi Mohtasib under Article 11(1) of the President Order No,1 of 1983. The learned Advocate Supreme Court on behalf of C.D.A. Has admitted that the above order dated 14-9-1994 was challenged by way of representation pursuant to provisions as contained in Article 32 of P.O. 1 of 1983 which was rejected by the President of Pakistan and the decision was communicated to C.D.A. Vide letter dated 23rd December, 1993 which is reproduced herein below for ready reference:-- "No,701/93-Law ' Government of Pakistan, Ministry ' of Law, Justice and Parliamentary Affairs ' (Law and Justice Division)
' Islamabad the 23rd December, 1993.
' From: ' Mr. Bashir Ahmed ' Section Officer.
' To
1. Mr. Muhammad Sarwar
2. Section Officer (CDA-1)
3. Cabinet Division, Islamabad.
4. Raja Muhammad Zaman Khan
5. 132-Asghar Mall Scheme
6. Rawalpindi.
Subject: Representation under Article 32 P.O. No,1 of 1983 against the findings/reconmiendations of the learned Wafaqi Mohtasib in Complaint No,Reg.1/5000/85.
' Sir, ' I am directed to refer to the Cabinet Division's representation U.O. No,7/10/93-CDA/1, dated 27 March, 1993, received in the Law and Justice Division on 28-3-1993, on the above subject, addressed to the President of Pakistan, against the learned Wafaqi Mohtasib's Order dated 9-2- 1971, passed on Complaint No,Reg.1/5000/85 and to state that the representation being time- barred has been rejected under the directive of the President (Emphasis provided).
' Yours obedient servant (Sd.)
(Bashir Ahmed)
Section Officer."
' It is worth-mentioning that the representation of C.D.A. Was rejected being barred by time, which depicts the lack of efficiency and vigilance on the part of C.D.A. Had the representation been made in time the position would have been different. In our view such cursory and casual approach must be checked. It would be in the own interest of C . D. A .
6. It must not be lost sight of that after the rejection of representation by the President, preferred on behalf of C.D.A. Under Article 32 of P.0.1 of 1983 in which C.D.A. Has given categorist undertaking to the office of the learned Wafaqi Mohtasib that order dated 14-9-1994 would be implemented in letter and spirit. This categorist assurance was given by means of letter dated 31-8-1995 which is reproduced herein below for ready reference:-- "I am directed to refer to your Letter No,Reg.1/9269/94 dated 8-8-1995 on the subject mentioned in the subject, and to state that after rejection of the representation by the Law and Justice Division, the authorities now implementing the finding/decision of the Hon'ble Wafaqi Mohtasib, Islamabad dated 14-8-1994. As this case is very old hence it will take some time to complete the codal formalities. However this issue will be finalized within shortest possible time." (Emphasis provided).
A bare perusal of the undertaking as given by C.D.A. As reproduced hereinabove would indicate the fact that the representation was mad& by the C.D.A. And its rejection was also admitted and thereafter it was assured that order dated 14-9-1994 passed by the learned Wafaqi Mohtasib shall be implemented and the claim of respondent would be finalized after completion of codal formalities within a short span of time. The learned Advocate Supreme 'Court on behalf of the appellant was pointedly asked that as to why no further action was initiated for the redressal of their grievances, if any, after the rejection of their representation by the President and why a categorist assurance was given to implement the order dated 14-9-1994 of the learned Wafaqi Mohtasib but no answer could be given except that the decision of the President of Pakistan was not available in the record. It is not understandable that if the decision was not available how and why categoric assurance was given to the office of the learned Wafaqi Mohtasib for the implementation of order dated 14-9-1994, no answer could be given by learned Advocate Supreme Court on behalf. Of appellant.
7. We have observed in the same wake of events that respondent meted discrimination as in similar cases escalation had been granted to a few other contractors. In this regard the attention of learned Advocate Supreme Court on behalf of C.D.A. Was invited to the case of Aslam Khan and sons who were awarded escalation as per direction of former Chairman C.D.A. In the similar nature of work. In our considered view different yardsticks could not have been fixed to award compensation and the C.D.A. Has no authority to pass discriminatory orders in an arbitrary manner which aspect of the matter squarely falls within maladministration. It hardly needs any explanation that "Equal protection and equal treatment of citizens similarly placed was guaranteed by provisions of Arts. 4 and 25 of the Constitution. Government and other statutory functionaries in a democratic set-up are bound to act in public matters justly, fairly and in accordance with rules and instructions on the .Subject. Functionaries charged with public functions cannot make any individual distinction for any extraneous reasons. Discretion vested in public functionaries must be free from arbitrariness and caprice." Ihsanullah Bajwa v. Chairman C & R 1991 M LD 1688. It can however be inferred that policy formulated by C.D.A. In this regard was not consistent but based on pick and choose having no legal sanctity cognizance whereof had been taken by the learned Wafaqi Mohtasib. The matter has been dealt with in haphazard manner by the concerned officers of the C.D.A. Who were not well-conversant with certain legal aspects of the controversy. The C.D.A.
Should have not filed a review qua order dated 7-9-1988 passed by the learned Wafaqi Mohtasib but a representation should have been filed pursuant to the provisions as contained in Article 32 of P.O. 1 of 1983 within prescribed period of time and after its rejection further action could have been initiated for the redressed of their grievances. It would be a mockery of law to direct ei er the C.D.A.
Or the contractor to approach the civil Court after expiry of about two decades.
8. We are not persuaded to agree with the learned Advocate Supreme Court on behalf of appellant that matter pertaining to contractual obligations does not fall within jurisdictional domain of the learned Wafaqi Mohtasib as an identical proposition was discm5sed by this Court in case C.D.A. v.
Zahid Iqbal PLD 2004 SC 99 wherein it was held that "the action of the President in setting aside the findings and the declaration of the learned Wafaqi Mohtasib could also not be sustained in law for more than one reason. Accordingly to Article 9 of the Establishment of the Office of the learned Wafaqi Mohtasib (Ombudsman) Order being President's Order No,1 of 1983 it is an obligation of the Mohtasib to undertake an investigation into an allegation of maladministration on the part of any Agency or any of its officers or employees. According to Article 2(2) of the said Order maladministration include an act which was contrary to law rules or regulations. Article 11 of the said Order enjoined upon the Mohtasib to find out whether the complained act did or did not amount to maladministration and ben to communicate his findings to the concerned Agency. No provision either of the said President's Order No,1 of 1983 or of any other law for the time being in force took a matter out of the jurisdiction of the Mohtasib only because the same related to a contractual obligation. If as a result of the investigation conducted by the Mohtasib he came to the conclusion that the complained act was offensive of any law, rules or regulations then the Ombudsman was well within his powers to deal with the said matter in accordance with the provisions of the said Order 1 of 1983. The action of the President in setting aside the findings and recommendations of the Mohtasib only because the matter related to a contractual dispute was thus no reason or ground justifying interference with the findings and the recommendations of the Ombudsman. (Emphasis provided). As has been noticed above the learned Ombudsman had found the act of the cancellation of the sale of the plot in question to be illegal and void not on account of any matter arising out of the terms and conditions of the contract of sale or of the auction which had preceded the said sale but on the ground that the Authority which had cancelled the said sale was not authorized in law to do so. Needless to add here that object of establishing the office of the learned Wafaqi Mohtasib was to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of any Agency. The purpose thus was to undo the administrative excesses from within the administration so that justice could be made available to the wronged persons without such persons being forced to knock at the doors of the Courts of law. Therefore, wide powers"ad been conferred on the Ombudsman through section 9 of Preside 's Order No,1 of 1983 and the only matters which were kept out of is jurisdiction were the matters which were sub judice before some C rt or Tribunal etc. Of competent jurisdiction; matter which related to the external affairs of Pakistan or matters which related to or were connected with the defence of Pakistan. All other matters irrespective of the fact whether they stemmed out of contractual obligations or otherwise were well within the powers of the Ombud sman and a complainant consequently could not be thrown out only because a complained matter emanated from contractual dispute." (Emphasis provided).
9.In view of what has been discussed herein above the CDA cannot be allowed to take complete somersault in view of its categoric undertaking given to the contractor. Being the apex Court having ultimate jurisdiction, certain technicalities and legal intricacies as pressed into service can be examined in any other suitable case." The Supreme Court should have the fullest power to do full justice without fettering itself with any self-imposed restrictions which are no longer necessary in the context of the changed circumstances in which it does now function." Noora v. The State PLJ 1973 SC 150. The appeal being devoid of merit is dismissed.