2002 PLP 1059 (YLR)

‑‑‑‑S.36(3)‑‑‑Constitution of Pakistan (1973), Art 199‑‑‑Constitutional petition ‑‑‑Review-‑ Jurisdiction of Commissioner to review order more than once‑‑‑Commissioner, after deciding the earlier review application allowed another review application‑‑ Validity‑‑‑Where Commissioner had passed an order on appeal, there arose right of review to any of the parties or a power vesting in the Commissioner himself to suo motu review the order so passed in appeal‑‑‑Once such power had been exhausted either suo motu or on an application, the order in appeal would become final‑‑‑Second review was not competent and the Commissioner acted without lawful authority in entertaining and allowing the same‑‑‑Order passed by the Commissioner in second review application was without lawful authority and the same" was set aside‑‑‑Constitutional petition was allowed in circumstances. Zaheer Bashir Ansari for Petitioners. Malik Muhammad Nawaz Respondents. Dates of hearing: 20th, 21st December, 2001 and 3rd January, 2002. Built up property belonging to the petitioners was acquired by respondent No.1. The matter, regarding the assessment of compensation remained pending and was remanded by the Commissioner, Capital Development Authority vide order dated 11-11‑1986 providing certain guidelines for assessment of the compensation. After the said remand the Deputy Commissioner, Capital Development Authority vide order dated 14‑5‑1986 awarded compensation with the direction that 10% on account of repairs shall not be deducted. The Capital Development Authority filed an appeal against the said order of the Deputy Commissioner, Capital Development Authority which was decided by the Commissioner, Capital Development Authority on 30‑12‑1986. A review application was filed which was decided by the Commissioner, Capital Development Authority vide order dated 27‑9‑1988. He inter alia, awarded that 10% on account of alleged repairs is not to be deducted. Against the judgment passed in review respondent No.1 filed yet another review application where upon the Commissioner, Capital Development Authority vide order dated 13‑2‑1990 reviewed the order and directed that 10% be deducted on account of repairs.

2. Mr. Zaheer Bashir Ansari, learned counsel for the petitioners contended that the second review w as not competent. Further states that it was not the case of the Capital Development Authority that they had carried out any repair and as such there was no question of deduction of any repair charges. Malik Muhammad Nawaz, learned counsel for the respondents, on the other hand, argues that there is no bar under the Capital Development Authority Ordinance on a second review. Further contends that the probable cost of repairs are deductable in terms of the formula devised by respondent No.1 under section 35 of the Capital Development Authority Ordinance, 1960.

3. I have given some thought to the respective contentions of the learned counsel for the parties. It is by now a settled proposition that like an appeal, right of review is a substantive right. Section 36 of CDA Ordinance, 1960 provides for a right of appeal against an award or final order of the Deputy Commissioner to the Commissioner. Section 36(3) of Capital Development Authority Ordinance, 1960 empowers Deputy Commissioner or the Commissioner, Capital Development Authority either suo motu or on an application made in this behalf within five years from the date of award or order made or passed by himself or by any of his predecessor in office, after hearing the parties concerned to review the award or order and pass such order thereon as he may deem fit. According to the learned counsel for the respondents since there is no provision‑in the Capital Development Authority Ordinance that a second review would not be competent, the Commissioner was possessed of jurisdiction to review the order dated 27‑9‑1998 vide the impugned order dated 13‑2‑1990. I am afraid that such a meaning cannot be given to the said provision of law and neither can an intent nor attributed to the legislature that the said provision can be invoked again and again. To my mind, subsection (5) said section 36 of Capital Development Authority Ordinance, 1960 does indicate that an order passed in appeal shall be final subject to the provisions of the said section 36(3). To my mind the only reasonable interpretation that can be placed on the said provisions that when the Commissioner had passed an order on appeal, there would be a right of review to any of the parties or a power vesting in the Commissioner himself to suo motu review the order so passed in appeal and once the said power has been exhausted either suo motu or on application, the order in appeal would become final. Any other interpretation would lead to absurdity and it would not be possible that any proceedings shall ever be finalised. I, therefore, do agree with the learned counsel for the petitioners that the second review petition filed by respondent No.1 was not competent and that the learned Commissioner acted without lawful authority in entertaining and allowing the same.

4. Coming to the said second contention of the learned counsel, it is an admitted position that so far as the respondent Capital Development Authority is concerned, no repair charges had been incurred. The learned counsel for the respondents has sought to argue that a conjectural formula exists for deduction of the repair charges: To my mind, if the conjecture is that the repair was to be effected by the owner, then the logical end I would be that the repairs charges ought to be added to the compensation and not deducted.

5. For all that has been discussed above this writ petition is allowed and the impugned order dated 13‑2‑1990 of Commissioner, Capital Development Authority is declared to be without lawful authority. No orders as to costs. Q.M.H./M.A.K./M‑996/L Petition allowed.