1. ' SAEEDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is filed by the Capital Development Authority (C.DA.), Islamabad, to call in question the order of learned Judge in chambers of Lahore High Court, Rawalpindi Bench, dated 27-2-1993 whereby the learned Judge accepted a Civil Miscellaneous Application (C.M.) No, 741 of 1992 filed by the respondents in a disposed of Writ Petition No, 382 of 1989, converted it into a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan (hereinafter to be referred to as 'the Constitution' only) and directed the petitioner to make payment of compensation to respondents in respect of their houses on the acquired land according to assessment made, less 15 per cent. Being the cost of 'Malba' which the respondents had carried away. It was further directed that the payment will be made to 326 respondents/affectees within a period of one month from the date of passing of impugned order. Leave was granted in the case to consider the following contentions in the case:- - "Objection was raised by the petitioner before the learned Judge of the High Court who was seized of the matter that it would be just and proper if the matter is pressed before the same Judge who was seized of the main case. It was further stated that the petition was not maintainable and premature because the proceedings were already pending before the District Judge, Islamabad, in pursuance of the earlier consent order of the parties. The petition was challenged to be nothing more than abuse of process of law. The learned Judge in Chamber, however, converted the petition under section 151, C.P.C. Into a Writ Petition by his order dated 27-2-1993 and directed the petitioners therein to make payment of the compensation within one month of the order in respect of 326 respondents assessed by the C.D.A. Minus 15% of the cost of 'malba' ignoring the earlier controversial issue pending decision between the parties.
2. Learned counsel for the petitioner challenged the aforementioned order, inter alia amongst others on the ground that the learned Single Judge of the High Court had assumed jurisdiction illegally in converting the petition under section 151, C.P.C. Into a Writ Petition and whether the learned Judge was within his jurisdiction to sit in review the earlier order of the author Judge who was available.
3. ' The important questions raised in the petition require consideration. Leave to appeal, therefore, is granted. The direction with regard to payment is stayed in the meanwhile. The application for impleadment to be heard alongwith the appeal at any early date, if possible."
4. ' The case has a chequered history of litigation and in order to understand the present controversy, it is necessary to state here the background of the case. In the year 1969 Capital Development Authority, Islamabad; acquired 1584 acres 6 Kanals and 16 Marlas of land situated in village Seri Saral, Tehsil and District Islamabad, through notification dated 23-1-1969. After acquiring the land compensation was paid only in respect of land but no compensation was awarded in respect of superstructure standing on some area of the acquired land. It appears that the C.DA. Prepared a list of 1,612 affectees who had their houses/superstructure on the acquired land and this list was sent to the Deputy Commissioner (D.C.) CDA, Islamabad. This list is described as Appendix 'A' in the ward of D.C., CDA, Islamabad dated 9-2-1988. It appears that besides Appendix 'A' two other lists of the affectees, who had claimed compensation for superstructure on the acquired land, were also filed before D.C., CDA, which are mentioned as Appendix 'B' & 'C' in the award dated 9-2-1988. The D.C., CDA, by his award dated 9-2-1988 allowed the claims of only those affectees whose names were mentioned in Appendix 'A' and deferred the claims of affectees mentioned 'B' & 'C' as he entertained doubts about the genuineness of their claims. The claims of the affectees of Appendix 'B' & 'C' were further enquired into by D.C., CDA, and as result of these enquiries the D.C., CDA gave two more award on 1-10-1988. In one of these awards, he accepted the claim of 59 affectees of Appendix 'B' out of 258 affectes while in the other award of the same date, he allowed the claims of only 8 affectees of Appendix 'C' out of 457. The C.D.A. Filed an appeal under section 36(1) of Capital Development Ordinance, 1960 (hereinafter to be referred as 'the Ordinance' only) before the Commissioner, CDA, against the two awards dated 1-10-1988 given by D.C, CDA but the appeal was dismissed as time-barred on 8-3-1990. Before disposal of the appeal by Commissioner, CDA, a Review Petition was also moved under section 36(3) of the Ordinance before the D.C., CDA, challenging the award in respect of 508 affectees of Village Sari Saral. The D.C., CDA, by its order dated 18-10-1988 declined to entertain the Review Petition and held it not maintainable. It was noted in the above order passed by the D.C., CDA, that a petition filed by 283 affectees of Village Sari Saral was already pending before the Commissioner. Against the order of the D.C., CDA, dated 18-10-1988, C.DA. Filed an appeal before the Commissioner, CDA, Islamabad, which was rejected on 2-9-1989 with the observation that the order passed by the D.C., CDA, on 18-10-1988 was legally justified. Feeling dissatisfied with the order dated 2-9-1988, C.DA. Filed a Review Petition before the.
5. Commissioner, CDA, under section 36(3) of the Ordinance which was dismissed on 13-2-1990. It appears that while the above proceedings were going on before the Commissioner, CDA, the D.C., CDA, started suo motu proceedings and by its order dated 28-9-1988 held that 170 affectees mentioned in the list attached with his award dated 9-2-1988 were not entitled to any compensation in respect of superstructures as these constructions were made illegally. Against the order of D.C., CDA, dated 28-9-1988, the affectees preferred appeal before the Commissioner, CDA, under section 36(3) of the Ordinance which was allowed by order dated 17-1-1989. After the termination of the proceedings as aforesaid before the Commissioner, CDA, the C.DA. Did not agitate the matter any further. In the meantime, 1,679 affectees of the Village Sari Saral (which included 1,612 affectees of Appendix 'A', 59 affectees of Appendix 'B' and 8 affectees of Appendix 'C') filed Writ Petition No, 382 of 1989 before Lahore High Court seeking direction against the C.DA. To make payment of compensation to them in terms of the awards dated 9-2-1988 and 18-10-1988.
6. C.DA. Resisted the above petition and contended before the High Court that in respect of 348 affectees out of 1,679, Review Proceedings were already pending before the Commissioner, CDA.
7. Abdul Majeed Tiwana, J, who heard Petition No, 382 of 1989 disposed of the same as follows:-- "11. In view of the above, the writ petition is accepted but only to the extent of 1,331 expropriated owners/petitioners of Village Sari Saral 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 the 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."
8. ' Against the judgment dated 22-5-1990 passed in Writ Petition No, 382 of 1989, this Court granted leave to appeal on a petition filed by C.DA., by order dated 23-10-1990. However, on 13-3-1991, the C.DA. Withdrew the appeal. It appears that the affectees of Village Sari Saral, who were excluded from the purview of the order dated 22-5-1990 passed in Writ Petition No, 382 of 1989, filed two separate Writ Petitions before Lahore High Court being Writ Petitions Nos.746 and 747 of 1990 complaining that the Review Petitions pending before the Commissioner, CDA, were not being disposed of. These petitions were heard and decided by Riaz Ahmed, J, by order dated 30-1-1993.
9. The learned Judge noted in the above orders that out of 2 Review Petitions filed by C.DA. In respect of 509 and 348 affectees respectively, the review petition relating to 509 affectees was already dismissed by the. Commissioner, CDA, while review petition in respect of 348 affectees was pending. Since these 348 affectees could not be paid compensation on account of pendency of the review petition, the learned Judge directed the Commissioner, CDA, to dispose of the pending Review Petition within 2 months with further direction to the parties to appear before the Commissioner, CDA, on 1-2-1993. While the abovementioned proceedings were going on, a notice was published in the daily `Nawa-i-Waqat' on behalf of the C.DA. On 19-12-1992 in which it was stated that the affectees of Village Sari Saral will not be paid compensation unless they also hand over the 'Malba' of their superstructures to C.D.A. The respondents in the above appeal filed another miscellaneous application (C.M. No, 3187) in Writ Petition No, 382 of 1989 with the prayer that the public notice published in the daily `Nawa-i-Waqat' on 19-12-1992 may be suspended and the order passed by the learned Judge earlier may be clarified. On this application Muhammad Amir Malik, J, called for the comments from the C.DA. And suspended further proceedings on the Review Petition pending before the Commissioner, CDA. C.DA. In the meantime, denotified an area of 99 Kanals and 2 Marlas out of the land which was originally acquired by them in village Sari Saral on 25-4-1991. The denotification of the area was challenged by Ghulam Muhammad son of Mehr Bakhsh and 5 others in Writ Petition No,. 549 of 1991. This petition came up for hearing before Mian Nazir Akhtar, J. On 30-9-1991 and after counsel for the petitioners and C.DA. Made certain statement, which was recorded by the Court, the following order was passed:-- "After obtaining instructions from their clients, Mian Dilawar Mahmood, learned counsel for the petitioners has stated as under:-- 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 CDA must pay compensation to the affectees immediately on taking possession of the properties.
(iii) The CDA 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 their houses.
(iv) The CDA 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 CDA 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 CDA should sell Malba to those petitioners who are desirous to purchase it. The CDA may deduct 15% from the compensation payable to the petitioners. On the other hand, learned counsel for CDA stated as under:--
(i) All the petitions including the one in which validity of the denotification has been assailed, be kept pending.
(ii) The CDA would pay compensation immediately on the spot to the affectees/petitioners who hand over possession of the built-up areas Malba where the superstructures existed. 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 other affectees who hand over possession of the built-up areas or the Malba, in accordance with the Rehabilitation Policy of the CDA, 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 9-2-1988 and judgments of the superior Courts.
10. ' In view of the above statements, made by the learned counsel for the parties, it is ordered that the C.DA. Shall be at liberty to obtain possession of the built-up areas or if the superstructures have collapsed, of the Malba from the petitioners and other affectees immediately as contemplated under section 32 of the C.DA. Ordinance. It is clarified that the stay orders passed by this Court on 22-8-1989 and 30-8-1989, in writ petition No, 382 of 1989, which has since been fmally decided, shall not stand in the way of the C.DA. To obtain possession of the acquired properties. The C.DA.
11. Shall pay compensation to the petitioners and other affectees immediately on the spot while obtaining physical possession of the built-up areas/Malba. Those who are not in a position to deliver possession immediately, be allowed reasonable time extending up to one month for the said purpose and be paid compensation as and when they deliver possession to the C.DA. Within the specified time. The C.DA. Shall allot residential plots to the petitioner as well as other affected persons within a period of one month in Sector I-14 or any other Sector in accordance with the Rehabilitation Policy. The compensation shall be paid by the C.DA. In accordance with the award dated 9th of February, 1988, read with order dated 23rd October, 1990, passed by the Hon'bie Supreme Court of Pakistan in C.P. No, 332 of 1990, captioned "C.DA v. Malik Ghulam Muhammad etc.". In case C.DA. Wants to sell Malba of the built-up properties to the erstwhile owners, it shall be at liberty to do so in accordance with the policy letters holding the field. The case may be kept pending and relisted on 3rd of November, 1991."
12. ' On 3-11-1991 when Writ Petition No, 584 of 1991 again came up for hearing in Court, Mian Nazir Akhtar, J, passed the following order disposing of C.MA. No, 2199/91:-- "With the consent of the learned counsel for the parties, time of one month fixed in the order dated 30-9-1991, is extended up to 15-12-1991.
(2) The District Judge, Islamabad should supervise the work of taking over of possession of the built-up structures/Malbas by the C.DA. 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.DA. Officials/representatives to enable them to take the requisite steps for complying with the order dated 30-9-1991. A copy of this order alongwith the earlier one dated 30-9-1991 be immediately sent to the District Judge, Islamabad as well as the S.P., Islamabad through a special messenger. The C.M. Is disposed of."
13. ' In the meantime another Civil Miscellaneous Application No, 2582 of 1991 was filed in Writ Petition No, 382 of 1989 on behalf of 59 affectees of Appendix 'B' and 8 affectees of Appendix 'C' under section 152, C.P.C. For correction of the judgment dated 22-5-1990. It was contended before the Court that while directing payment of compensation in respect of superstructures to the affectees in terms of the award given by D.C., C.DA., the Court omitted to mention the 2nd awards given by the D.C., C.DA., on 1-10-1988 under which 59 affectees of Appendix 'B' and 8 of Appendix were also entitled to compensation for superstructure. The above application for inclusion of names of 59 and 8 persons of Appendix 'B' and 'C' respectively within the scope of the order dated 22-5-1990 passed in W.P. No, 382 of 1989 was not opposed by the C.DA. However, it was contended by the C.DA. That in view of the orders passed on 30-9-1991 and 3-11-1991 in W.P. No, 549 of 1991, the compensation will be payable to 59 and 8 persons of Appendix 'B' and 'C' respectively, also in accordance with the procedure laid down in the aforesaid orders. Abdul Majid Tiwana, J. Disposed of C.M. No, 2582 clarifying his earlier judgment dated 22-5-1990 in W.P. No, 382 of 1989 as follows:- "Therefore the clarification sought for is allowed subject to the orders dated 30-94991 and 3-11-1991 passed in Writ Petition No, 549 of 1991 of Rawalpindi Bench. Application is disposed of, accordingly."
14. ' Another application bearing C.M. No, 741 of 1992 was filed in Writ Petition No, 382 of 1989 by the present respondents with the following prayers:- "It is, therefore, respectfully prayed that the respondents be directed to make payment of compensation to the petitioners 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.DA. Officials.
15. ' 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."
16. ' This application was disposed of by Riaz Ahmed, J. By the impugned judgment against which leave has been granted by this Court as aforesaid.
17. ' The learned counsel for the appellant has raised following contentions in support of the appeal. It is firstly contended by the learned counsel that C.M. No, 741/92 filed in the disposed of Writ Petition No, 382 of 1989 was not competent as the said Writ Petition was finally disposed of by order dated 22-5-1990 and the controversy raised in the C.M. 741/92 amounted to re-opening and rehearing of the decided Writ Petition. The second contention of the learned counsel for the appellant is that the order passed by Riaz Ahmed, J. On. 27-2-1993 disposing of C.M. No, 741/92 is in conflict with the orders dated 30-9-1991 and 3-11-1991 passed by Mian Nazir Akhtar, J. In W.P. No, 549/91 and as such this order is not sustainable in law. It is further contended that in all propriety Riaz Ahmed, J. Instead of disposing of the C.M. No, 741/92 himself should have either referred the case to Nazir Akhtar, J.
18. Who was dealing with W.P. No, 549/91 or the said Miscellaneous Application (C.M 741/92) should have been placed before Abdul Majid Tiwana, J. Who had decided W.P. No, 382/89. The last contention of the learned counsel of the appellant is that the conversion of a Civil Miscellaneous Application filed in a disposed of case into a petition under Article 199 of the Constitution was wholly unjustified and contrary to law and in any case if the learned Judge was inclined to convert the C.M. No, 741/92 into a Writ Petition, the appellant should have been given a proper notice to enable them to submit their detailed reply on the merits of the case. None of the contention raised by the learned counsel for the appellant has impressed us.
19. ' From the above-stated facts, it is quite clear that D.C., C.DA., gave 3 awards in respect of the superstructure/houses on the land acquired by the C.DA. In the year 1969. These awards were given on 9-2-1988 and 1-10-1988. The first award dated 9-2-1988 related to 1,612 affectees mentioned in Appendix 'A' while the 2nd and 3rd awards dated 1-10-1988 related to 59 and 8 affectees out of Appendix 'B' and 'C' respectively. No appeal was preferred by the C.DA. Against the award dated 9- 2-1988. However, the 2 awards, dated 1-10-1988, were challenged before the Commissioner, C.DA., by the C.DA. In appeals Nos. 160 of 1989 and 162 of 1989. Both these appeals were dismissed as time-barred on 8-3-1990. In respect of 508 affectees covered by aforementioned 3 awards, C.DA.
20. Requested the D.C., C.DA., to initiate suo motu review proceedings against them under section 36(3) of the Ordinance and declare them not entitled to any compensation in respect of superstructures, but the D.C., C.DA., declined to exercise his suo motu powers under section 36(3) of the Ordinance by order dated 18-10-1988. The C.DA. Preferred an appeal against the order of D.C.
21. Dated 18-10-1988 declining to review of his awards dated 9-2-1988 and 18-10-1988, and this appeal was considered on merits but dismissed by the Commissioner, C.D.A, by order dated 2-9-1989. The C.DA. Made yet another attempt to get the orders passed in respect of the abovementioned affectees of Village Sari Sara! Reviewed under section 36(3) of the Ordinance before the Commissioner, C.DA., but this prayer was also declined by order dated 13-2-1990. It is admitted before us that after termination of the proceedings by the order of the Commissioner, C.DA., dated 13-2-1990 no further action was taken by the C.DA and as such the 3 awards given by the D.C., C.DA., on 9-2-1988 and 1-10-1988 attained finality. In the meantime, the D.C., C.DA., in suo motu proceedings, by order dated 28-3-1988, held that out of affectees mentioned in his award dated 9- 2-1988, 170 affectees were not entitled for compensation in respect of their houses-super structures as they had raised illegal construction on the acquired land. This order passed by the D.C., C.D.A., on 28-9-1988, was challenged by the aggrieved affectees before the Commissioner, C.DA., who by his order dated 17-1-1989 accepted the appeal of the affectees and set aside the order of the D.C., C.DA., dated 28-9-1988. It is admitted that against the order of the Commissioner, C.D.A., dated 17- 1-1989 no further proceedings were taken by the C.DA. Authorities with the result that this order also attained finality. Therefore, from whatever angle the case is examined, it is quite clear to us that the 3 awards given by the D.C., C.DA., referred to above became final and binding on C.DA. However, as no payment of compensation was made to the affectees by the C.D.A. In spite of the abovementioned awards, the affectees moved the High Court through Petition No, 382 of 1989 praying for a direction to C.DA. To make payment of compensation to the affectees in accordance with three awards referred to above. This petition was allowed on 22-5-1990 with direction to C.DA.
22. To make payment of compensation to 1,331 affectee of Village Sari Saral in terms of the award of D.C., C.DA. The learned counsel for the appellant very vehemently contended that an area of 99 Kanals and 2 Marlas has already been denotified by the C.DA. And therefore, as a result denotification of 99 Kanals of land, the C.DA. Is not bound to pay any compensation to the respondents herein who have their houses/superstructures on the denotified area. The learned counsel for the respondents in reply to above contention of appellant denied that respondents have any concern with the area of 99 Kanals and 2 Marlas denotified by C.DA. We would refrain from making any observation with regard to above controversy as Writ Petition No, 549 of 1991 concerning the denotification of 99 Kanals of land by C.DA. Is already pending before the High Court. The next contention of the learned counsel for the appellant is that the conversion of Civil Miscellaneous Application No, 741 of 1992 into Writ Petition, under Article 199 of the Constitution, was unwarranted as the subject-matter of the C.M. 741/92 related to the controversy which was covered by the decision in W.P. 382/89. The learned counsel as an alternate submission also contended that in all propriety the C.M. No, 741/92 should have been placed either before Mian Nazir Akhtar, J. Who was seized of Petition No, 549/91 in respect of the same matter or it should have been placed before Abdul Majid Tiwana, J. Who heard and decided W.P. 382/89. No doubt judicial propriety demanded that a Miscellaneous Application filed in a disposed of case be heard by the same learned Judge who decided the case if the learned Judge was available, but since the Miscellaneous Application was treated as a fresh proceedings under Article 199 of the Constitution, it was not necessary that it should have been heard by the same learned Judge who heard the earlier petition. With regard to the objection of the learned counsel for the appellant that the application (C.M. 741/92) should have been heard by Mian Nazir Akhtar, J. Who was hearing a connected W.P. No, 549/91 in order to avoid any conflict of orders, we may observe that controversy in W.P. 549/91 related to only 99 Kanals of denotified land and according to contention of respondents their houses are not situated on that portion. Therefore, subject of the two proceedings being different there was no likelihood of any conflict of decision. The appellant's counsel also challenged the legality of conversion of the Miscellaneous Application into proceedings under Article 199 of the Constitution. We find no merit in the objection raised by the learned counsel. Conversion of proceeding of one kind into another lies within the discretion of the Court. If the learned Judge was satisfied that circumstances of the case justified conversion of Miscellaneous Application filed by the respondents into proceedings under Article 199 of the Constitution and there was no legal bar to such conversion of the proceeding, the technical objection raised by the appellant that the application filed by the respondents was a Miscellaneous Application in a disposed of case, was not sufficient to defeat the proceedings. The learned counsel for the appellant is unable to point out any legal impediment in the way of allowing conversion of Miscellaneous Application into Writ Petition under Article 199 of the Constitution. We, therefore, see no force in the contention of the appellant that, Civil Miscell2neous Application No, 741 of 1992 could not be converted into Writ Petition under Article 199 of the Constitution. The second limb of this objection of the appellant is that if the learned Judge had allowed conversion of the Miscellaneous Application into Writ petition, the appellant should have been allowed opportunity for submitting a detailed reply to the contents of the application. There is nothing on record before us to show that the appellant wanted to submit any reply to the petition filed by the respondents which was denied. The impugned order on the contrary shows that the objections raised by the appellant to the compentency 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 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.DA. 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.DA.
23. We, therefore, find no reason to interfere with the order of the High Court. The appeal is, accordingly, dismissed. However, parties are left to bear their own costs, in the circumstances of the case.