' SYED QALB-I-HASSAN, J.--- This judgment will dispose of Writ Petition No,1511 of 2003, Writ Petition No,3074 of 2003 and Writ Petition No,3076 filed by the Capital Development Authority, Islamabad to call in question the order of Deputy Commissioner, I.C.T./ Commissioner, C.D.A., Islamabad whereby respondent No,1 accepted the appeal of private respondents against suo motu review under section 36(3) of C.D.A. Ordinance, 1960 in respect of awards of built-up property of village Sri Sarral dated 9-2-1988 and 1-10-1988 given by D.C., C.D.A..
2. Learned counsel for the petitioner after narrating the facts contends that respondent No,1 accepted the appeals of private respondents on assumptions, surmises and conjectures without going into the facts of the cases. The suo motu review order was passed by D,C., C.D.A. In pursuance of order of the Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi and a detailed and well-reasoned review order passed within limitation was set aside by respondent No,1 in a slipshod manner without any justification which resulted in miscarriage of justice.
3. Learned counsel for the respondent has placed on record different judgments passed by the Honourable Lahore High Court and Supreme Court of Pakistan on the same subject between the petitioner and private respondents and supported the impugned order on the strength of above said judgments. Learned counsel further contended that in view of above referred judgments passed by the Honourable superior Courts respondent No,2 has no jurisdiction to open the matter through suo motu review or any review petition moved by the petitioner and prayed for dismissal of the writ petitioner.
4. In order to understand the present controversy it is necessary to state here background of the case. The petitioner (C.D.A.) acquired 1584 acres, 6 Kanals and 6 Marlas of land situated in village Sri Sarral, Tehsil and District Islamabad. The award of the built-up property was separately announced on 9-2-1988. The said award dated 9-2-1988 contain three different Appendixes i,e, "A", "B" and "C". The Deputy Commissioner, C.D.A. By his award dated 9-2-1988 allowed the claims of only those affectees whose names were mentioned in appendix "A" and deferred the name of affectees mentioned in Appendix "B" and "C" on the ground of ingenuineness of their claims. The claims of the affectees of appendixes "B" and "C" were further enquired into by D.C., C.D.A. And then he announced two more awards dated 1-10-1988. In one of these awards, he accepted the claim of 59 affectees of appendix "B" out of 250 affectees while in the other award of the same date, he allowed the claim of only 8 affectees of appendix "C" out of 457. The petitioner (C.D.A.) filed an appeal under section 36(1) of C.D.A. Ordinance, 1960 before the Commissioner, C.D.A. Against the above said two awards dated 1-10-1988 but the appeal was dismissed on 8-3-1990 being time- barred. During the pendency of above said appeals, the petitioner C.D.A. Also moved a review petition under section 36(3) of the Ordinance before D.C., C.D.A. And challenged the awards but the same was dismissed on 18-10-1988. Against the said order the petitioner filed an appeal before the Commissioner, C.D.A. Islamabad which was rejected on 2-9-1989 with the observation that the order passed by D.C., C.D.A. On 18-10-1988 was legally justified. The petitioner once again filed a review petition before the Commissioner, C.D.A. Against the order dated 2-9-1988 under section 36
(3) of the Ordinance but the same was dismissed on 13-2-1990. In the meanwhile the Deputy Commissioner, C.D.A. Started suo Motu proceedings vide his order dated 28-9-1988 and 170 affectees mentioned in the list attached with the award dated 9-2-1988 were excluded on the ground that they have raised the construction illegally. The said order was impugned by the affectees before Commissioner, C.D.A. And the same was accepted on 17-1-1989. Thereafter the petitioner, C.D.A. Did not agitate the matter any further. However, the compensation with regard to built-up property annexed with awards dated 9-2-1988 and 1-10-1988 was not paid to the affectees, therefore, 1679 affectees of village Sri Sarral (compromised 1612 affectees of appendix "A", 59 of appendix "B" and 8 affectees of appendix "C") filed Writ Petition No,382 of 1989 before the Honourable Lahore High Court, seeking direction against the C.D.A. To make payment of compensation to them in terms of awards dated 9-2-1988 and 1-10-1988. The petitioner contested the writ petition on different grounds and one of the grounds taken by the petitioner was that in respect of 348 affectees out of total 1679 review proceedings were pending before Commissioner C.D.A., therefore, they are not entitled to file the writ petition, however, the said writ petition was disposed of as follows:-- "In view of the above, the writ petition is accepted but only to the extent of 1,331 expropriated owners/petitioners of village Sari Sarral whose correct list (after the exclusion of 348 persons from 1,679 persons) shall be provided by the learned counsel for the petitioners and they shall be paid compensation by respondent No,2, in accordance with the award given by respondent No,3 and upheld by respondent No,2, within a period of two months from the date of receipt of copy of such list. On the receipt, of such list, the Office shall immediately remit its copy to respondent No,1 and cause the same to be delivered to it in lieu of an acknowledgement. Respondent No,1 shall also pay the costs of the petitioners."
5. That the petitioner filed C.P.L.A. Against the above said judgment passed in Writ Petition No,382 of 1989. Although the leave to appeal was granted with the observation which reads as follows:-- "The compensation to 662 claimants/owners vis-a-vis, 662 Abadi units regarding which there is no dispute and the petitioner admits its liability, shall be made within one month from today. If there is any unsurmountable hurdle depending upon the act or order of another authority, the petitioner shall explain the difficulty to Mr. S.M. Zafar learned counsel for the respondent; who on his satisfaction regarding each day beyond one month would be at liberty to grant more time to the petitioner on behalf of his client. Regarding the remaining amount which is disputed in respect of the disputed number of Abadi units, it is agreed that if the petitioner is found liable to pay any such disputed additional amount, the petitioner shall pay a further amount in addition to the due amount as compensation for withholding and use of the said additional amount for the period from today, at the rate of 12 per cent per annum."
6. The petitioner withdrew the above said C.P.L.A. Converted into appeal on 13-3-1991. That in the meanwhile the affectees of village Sri Sarral, who were excluded from the purview of the order, dated 22-5-1990 passed in Writ Petition No,382 of 1989 on the ground that review petitions against them were pending before the Commissioner, C.D.A., filed Writ Petitions Nos.746 and 747 of 1990 complaining that the review petitions pending before the Commissioner, C.D.A. Were not being disposed of. However, during the pendency of the above said writ petitions it was revealed that in respect of 509 affectees review petitions have been dismissed while review petition in respect of 348 affectees was pending therefore, vide order dated 30-1-1993 the Honourable High Court directed the petitioner to dispose of the pending review petitions within two months with further direction to the parties to appear before the Commissioner, C.D.A. On 1-2-1993. While the above said proceedings were pending in the Lahore High Court, the petitioner published a notice in "Daily Nawa-e-Waqat" on 19-12-1992 to the effect that the affectees of village Sri Sarral will not be paid compensation unless they handover the Malba of their structures to the present petitioner and simultaneously denotified an area of 99 Kanals, 2 Marlas out of the land which was originally acquired by them in village Sri Sarral on 25-4-1991. The said notice published in "Daily Nawa- eWaqat" and denotification of the area was challenged by the affectees through C.M. No,3187 and Writ Petition No,549 of 1991 respectively. However, on appearance of the petitioner before the Honourable Court a consent order was passed by the Honourable Court as under:-- "After obtaining instructions from their clients, Mian Dilawar Mahmood, learned counsel for the petitioner has stated as under:--
(i) The impugned notification dated 25th of April, 1991, denotifying the built-up areas should first be declared to be without lawful authority.
(ii) The petitioners agree to hand over possession of the built-up properties or Malba of the superstructure but the C.D.A. Must pay compensation to the affectees immediately on taking possession of the properties.
(iii) The C.D.A. Should allot residential plots to the petitioners/affectees as per the Rehabilitation scheme in a developed sector so that after the shifting from the present premises they may build- up their houses.
(iv) The C.D.A. Should pay the amount fixed in the award plus 12% in addition thereto with effect from 23rd October, 1990 till the handing over of the possession of the built-up areas to the C.D.A. In compliance with the order dated 23rd October, 1990 passed by the Supreme Court of Pakistan.
(v) The petitioners/affectees who are unable to vacate at once, may be given reasonable time to shift to some other place.
(vi) In view of the policy letter, the C.D.A. Should sell Malba to those petitioners who are desirous to purchase it. The C.D.A. May deduct 15% from the compensation payable to the petitioners. On the other hand, learned counsel for the C.D.A. Stated as under:-
(i) All the petitions including the one in which validity of the denotification has been assailed, be kept pending.
(ii) The C.D.A. Would pay compensation immediately on the spot to the affectees/petitioners who hand over possession of the built-up areas Malba where the superstructure existed.
(iii) Those who need time will be allowed reasonable time from one week to one month and compensation will be paid to them immediately on obtaining possession of the built-up property from them.
(iv) Residential plots shall be allotted to the petitioner and another affectee who hand over possession of the built-up area or the Malba, in accordance with the Rehabilitation Policy of the C.D.A., within a period of one month in Sector 1-14 or any other sector:
(v) Compensation will be paid to the affectees petitioners according to the award dated 9-12-1988 and judgment of the superior Courts."
7. The proceedings were adjourned to 3-11-1991. Another C.M.
' No,2199 of 1991 was moved which was disposed of on 3-11-1991 and the Honourable High Court passed the following order:-- "With the consent of the learned counsel for the parties, time of one month fixed in the order dated 30-9-1991, is extended upto 15-12-1991.
(2) The District Judge, Islamabad should supervise the work of taking over of possession of the built-up structures/Malba by the C.D.A. And payment of compensation to the owners/affectees in compliance with the order of this Court passed on 30-9-1991. The Superintendent of Police, Islamabad should provide sufficient police force to the C.D.A. Officials/representatives to enable them to take the requisite steps for complying with the order dated 30-9-1991. A copy of this order along with the earlier one dated 30-9-1991 be immediately submitted to the District Judge, Islamabad as well as the S.P., Islamabad through a special messenger. The C.M. Is disposed of."
8. That a Civil Miscellaneous application was filed in Writ Petition No,382 of 1989 on behalf of 59 and 8 affectees of appendix "B" and "C" respectively with the contention that while directing payment to the affectees of Appendix "A" their 'claim was denied on the ground that review petitions against them were pending for payment of compensation of their built-up property. The said application was not opposed by the present petitioner, however, it was contended that in view of the orders passed on 30-9-1991 and 3-11-1991 in Writ Petition No,549 of 1991 (already reproduced above). The compensation will be payable to them in accordance with the procedure laid down in the aforesaid order. Therefore, the following order was passed:--- "Therefore the clarification sought for is allowed subject to the orders dated 30-9-1991 and 3-11-1991 passed in Writ petition No,549 of 1991 of Rawalpindi Bench, application is disposed of accordingly."
9. That yet another Civil Miscellaneous No, 741 of 1992 was filed by the affectees in Writ Petition No,382 of 1980 in the following prayer:-- ' It is, therefore, respectfully prayed that the respondents be directed to make payment of compensation to the petitioner in terms of the awards after deducting 15% from the same on account of the price of Malba/debris which was removed by them from the sites with the permission of the C . D . A . Officials.
' It is further' prayed that the respondents be directed to pay additional interest at the rate of 12% per annum on the compensation due to the petitioners in terms of the order, of the Supreme Court of Pakistan passed on 23rd of March, 1990.
10. The Honourable Single Judge converted the above civil miscellaneous into writ petition and disposed of the same with the following observations:-- "To sum up the position it is crystal clear that the Awards dated 9-2-1988 and 1-10-1988 had attained the finality. The C.D.A. Had challenged the same in the appeal before the Commissioner, a functionary under the C.D.A. Ordinance but the same was withdrawn; secondly after the disposal of Writ Petition No,382 of 1989, the question for compensation of the houses arose, the C.D.A. Then filed an appeal in the Supreme Court and after obtaining leave to appeal, the same was withdrawn; thirdly, the C.D.A. Then attempted to denotify the area belonging to the petitioners and this denotification was challenged in Writ Petition No,549 of 1991 and the denotification was disallowed; fourthly that in view of the established policy of the C.D.A. Dated 2-6-1971 which was withdrawn on 7-6-1989, option- to purchase Malba was available to the petitioners and they having acted under the same took away the Malba and were thus entitled to the payment of compensation of the houses minus 15% of the said assessment as costs of the Malba. Finally, it cannot be believed that the claims of the petitioners were fraudulent and bogus and were made in connivance with the C.D.A. Officials. In fact, the case of each of the petitioners was verified, assessed at the spot by not one functionary of the C.D.A. But its entire technical staff and furthermore on the same pattern, the compensation of adjoining five villages had been. Paid. It is thus obvious that with a mala fide intention, the C.D.A. Is not honouring its commitment and in final analysis, the C.D.A. Has estopped by its conduct to resile from its commitment or to go behind the awards which have attained finality."
11. The present petitioner filed C.P.L.A. Against the above said judgment passed by the Honourable High Court and along with other grounds challenged the said judgment of the Honourable High Court on a specific ground which reads as follows:- "The second contention of the learned counsel for the appellant is that the order passed by Riaz Ahmad, J. On 27-2-1993 disposing of Civil Miscellaneous No,741 of 1992 is in conflict with the orders dated 30-9-1991 and 3-11-1991 passed by Mian Nazir Akhtar, J. In Writ Petition No,549 of 1991 and as such this order is not sustainable in law."
12. The Honourable Supreme Court of Pakistan dismissed the appeal and observed as follows:-- "The impugned order on the contrary shows that the objections raised by the appellant to the competency of the application as well as on, merits were duly considered by the learned Judge in chambers. Even before this Court, the learned counsel for the appellant has not filed or brought on record any document to show that the facts stated in the impugned order were incorrect or that of any of the contentions of the appellant raised before the learned Judge in chambers was not considered. The learned Judge in chambers, by the impugned order, has only directed for making payment of compensation to the respondents as assessed by the C.D.A. Minus 15% cost of Malba which the respondents have carried away. The above order, in our view, does not come in conflict with the order passed in Writ Petition No,549 of 1991 as the compensation is to be paid to the respondents on the basis of the assessment made by the C.D.A. We, therefore, find no reason to interfere with the order of the High Court. The appeal is, accordingly dismissed."
13. It appears that when the controversy was ended in the Honourable Supreme Court in the above said appeal the petitioners were constrained to pay compensation of the affectees, however, sortie of the affectees were paid compensation but all of sudden the petitioner initiated suo motu review proceedings under section 36(3) of C.D.A. Ordinance, 1960 against the award dated 9-2-1988 and two other awards dated 1-10-1988 and excluded the names of all the private respondents of writ petition from the awards through suo motu review order. The private respondents filed three appeals against the said suo motu review proceedings which were accepted by respondent No,1 and three writ petitions have been filed to challenge the validity of order passed by respondent No, 1.
14. The argument of the learned counsel for the petitioner that during the process of implementation of the orders dated 30-9-1991 and 3-11-1991 it was observed by, Deputy Commissioner, C.D.A, that a large number of houses included in the award never existed at all and all such persons whose houses did not exist were not covered by the order dated 30-9-1991 of Lahore High Court in Writ Petition No,549 of 1991 and in order to cheat and get compensation with fraud raised a large number of dummy houses without any proper foundations, roofs, doors and widows etc. In connivance with the staff of C.D.A. Got included their names in Awards. The learned counsel further stated that upon a fair hearing by D.C., C.D.A, the private respondents in these writ petitions were failed to justify their claims of built-up property on the basis of which their names were included in the awards, therefore, respondent No,1 has felt into a grave error while setting aside the order passed in suo motu proceedings under section 36(3) of C.D.A. Ordinance, 1960 by the D.C., C.D.A.
15. Learned counsel for the private respondents vehemently resisted the contentions raised by the learned counsel for the petitioner and argued that the petitioner by misinterpretation of orders dated 30-9-1991 and 3-11-1991 with mala fide intention started the suo motu review proceedings, after a period of 4 years and 364 days meaning thereby on the last date of period of limitation for exercising the power of review upon the matter already decided by the Honourable High Court in a number of writ petitions and the Honourable Supreme Court upheld the judgments of the Honourable High Court, but only to deprive of the legitimate rights and compensation of the private respondents whose built-up properties were acquired as back as 1988, suo motu review proceeding was initiated and private respondents are excluded when, their names were not only included in awards but also adjudged by superior Courts. Learned counsel contended that exclusion of names of the private respondents is based on out and out mala fides of the petitioner.
16. I have heard the arguments of the learned counsel for the parties and perused the record.
17. From the above stated facts it is quite clear that D.C., C.D.A. Gave three awards in respect of built-up property, one on 9-2-1988 and two on 1-10-1988 and no appeal was preferred by the petitioner against the award dated 9-2-1988. However, the petitioner challenged two awards dated 1-10-1988 through appeals which were dismissed on 8-3-1990. A review petition moved in respect of 508 affectees under section 36(3.) of C.D.A. Ordinance, 1960 was also dismissed on 18-10-1988.
The appeal preferred against the order dated 18-10-1988 was dismissed on 2-9-1989. Another review petition was again dismissed on 13-2-1990 and no further action was taken by C.D.A. And as such the three awards given by Deputy Commissioner, C.D.A. On 9-2-1988 and 1-10-1988 attained finality but again D.C., C.D.A. In suo motu proceedings excluded 170 affectees of award dated 9-2- 1988 but appeals filed against the suo motu review proceedings were accepted on 17-1-1989. It is established on the record that the petitioner has not challenged the above said proceedings anymore which attained finality.However, the affectees filed writ petitions praying for direction to the present petitioner to make payment of compensatidn and the petitioner misinterpreted order dated 30-9-1991 and 3-11-1991 passed in Writ Petition No,549 of 1991. Orders dated 30-9-1991 and 3- 11-1991 passed in Writ Petition 549 of 1991 were to the effect that the petitioner would pay compensation immediately on the spot to the affectees who hand over possession of the built-up property/Malba where superstructure existed. The District Judge, Islamabad will supervise the work of taking over possession and built-up structure/Malba by the C.D.A. Learned counsel for the private respondents submitted that the above said orders were passed with the background that some of the affectees/private respondents had opted to remove the Malba under the policy of the petitioner and those affectees who removed the Malba will be entitled to 15% less of their compensation of built-up property and some of the private respondents/affectees were residing in their built-up properties/houses and obviously development could not be undertaken in the presence of built-up property in possession of private respondents, therefore, the above said orders were passed, however, it was not the intention of the Honourable High Court to exclude the private respondents from the award validly made by the petitioner after the strict inspection on the spot and said awards were already adjudged by the Honourable High Court. However, the private respondents in order to clarify the position moved Civil Miscellaneous No,741 of 1992 in Writ Petition No,382 of 1989 which was converted into a writ petition and the Honourable Single Judge had clarified the position. The operative para. Of the civil miscellaneous has already been reproduced in para. No,9 of this judgment and the same was upheld by Honourable Supreme Court in Civil Appeal No,317 of 1993 decided on 14-2-1994. The Honourable Judge of the Lahore High Court in Civil Miscellaneous No,741 of 1992 has observed that two Assistant Directors and three Sub-Engineers were deputed by the C.D.A. To verify and examine the superstructure of the houses in accordance with measurement register already prepared by the technical staff of the C.D.A. The record also reveals that after receiving the reports, the Deputy Commissioner, a functionary, under the Ordinance, himself visited the site and inspected the existence of the houses and the structures and thereafter according to the policy of the C.D.A. Affectees opted to remove the Malba of the building subject to deduction of 15% of the value of the houses.
18. Now in view of the above observations which were upheld by the Honourable Supreme Court, D.C., C.D.A. Has acted with mala fide intention to further delay the legitimate payment of the compensation which is not justified on any legal or moral grounds.
19. Now reverting back to section 36(3) of C.D.A. Ordinance under which the D.C., C.D.A. Has initiated suo motu proceedings, the said section reads as follows:-- "The Deputy Commissioner or the Commissioner, either of his own motion or on an application made in this behalf, at any time within five years from the date of an award or order made or passed by himself or by any of his predecessors in office, including an award or order made or passed before the commencement of the Capital Development Authority (Amendment)
Ordinance, 1966, may, after giving the parties concerned a notice and au opportunity of being heard, review the award or order and pass such order thereon as he may deem fit: ' Provided that an order under this subsection shall not, except in so far as it corrects an arithmetical, clerical or patent error or mistake in the award or order under review, enhance the amount of compensation."
20. From the plain perusal of section 36(3) of the Ordinance, the D.C., C.D.A. Is not empowered to exclude the name of the affectees from the award while exercising powers of suo motu review under it, moreover, when the awards were adjudged valid and proper by the Honourable Supreme Court of Pakistan.
' In view of what has been discussed above, the Writ Petition No,3076 of 2003, Writ Petition 1511 of 2003 and Writ Petition 3074 of 2003 are dismissed.