ISLAMABAD: The Supreme Court (SC) will hear a petition filed by the management of One Constitution Avenue on Thursday, challenging the CDA’s cancellation of its lease and the rejection of its writ petition and intra-court appeal by the Islamabad High Court (IHC).
In a civil petition for leave to appeal (CPLA) filed through Barrister Ali Zafar against the two judgements rendered on March 2, 2016, and Sept 3 this year, the BNP has highlighted overlooked facts related to the case and pointed the finger at unnamed political figures in Lahore who allegedly conspired to destroy the project involving the construction of a luxury hotel and serviced apartments.
The petition pointed out that the Federal Investigation Agency closed its inquiry into alleged irregularities in the project but reopened proceedings in Lahore.
Civil petition challenges CDA’s cancellation of BNP’s lease and rejection of writ petition, intra-court appeal by IHC
“There was no rational explanation as to why this investigation was moved to Lahore, when the subject matter of the investigation, and all the material relating to it was situated in Islamabad.
“It is abundantly clear that the only reason why this investigation was moved to Lahore was to harass the petitioners and to ensure oversight by certain political powers that resided in Lahore,” the petition stated.
It said the impugned judgements suffer from errors of fact and law that are apparent on the face of the record and float on the surface.
It said it was erroneous and against the record to find that the federal government had not granted approval for the amendment of the master plan and corresponding relaxation in zoning regulations to provide for a luxury hotel at the project site.
It pointed to a federal cabinet decision dated July 2, 1997 that approved amendments to the master plan and relaxations in the 1992 zoning regulations for the construction of a “five star hotel, shopping mall, etc” adjacent to the Convention Centre in Zone III.
The petition said the government had the authority to amend the master plan and pleaded that if the original master plan was to be strictly followed most of the recent developments that have taken place in Islamabad would have to be reversed.
It cited the examples of 9th Avenue, E-11, Serena Hotel, Centaurus Mall, Lake View Park, Monal Restaurant and the metro bus project.
The petition also referred to an SC judgement in a suo motu case from 2008 that declared that by-laws and CDA regulations could be amended for development purposes, which it said was binding on high courts.
It pointed out that a single judge of the IHC decided not to follow the judgement and instead observed:
“It appears that the august Supreme Court has not been assisted…”
The petition said the law does not permit a learned single judge to decline to apply an SC precedent simply because he feels the conclusion the SC reached was on account of insufficient assistance.
On the objection that the BNP was authorised to build serviced apartments but built residential ones instead, which the Capital Development Authority (CDA) used as the basis of the termination of the lease, the petition said the petitioner built serviced apartments in compliance with the advertisement, the lease agreement and the CDA’s requirements.
It said the lease agreement contained two reasons for which it could be cancelled; default in payments of illegal use of the building.
Neither of these conditions were applicable nor formed the basis of the CDA’s July 29, 2016 decision.
The petition stated that the July 3, 2016 judgement concluded that the lease agreement could not have been amended, the amendments to the lease lacked transparency and that the lease was executed in favour of the BNP. Thereafter, due to a change in circumstances that were beyond BNP’s control, the BNP proposed the rescheduling of payments.
It added that a summary was sent by the CDA chairman to the cabinet’s Economic Coordination Committee (ECC) to approve the proposal, and the ECC reverted with the observation that it was within the CDA board’s purview to approve the proposal. Following the ECC’s decision, the CDA board approved the proposal and the lease was amended accordingly.
The second amendment to the lease was made due to a reduction in the project’s height from 47 to 23 floors.
A settlement was reached between the BNP and the CDA with the intervention of the National Accountability Bureau (NAB).
The CDA board ratified the settlement on Feb 7, 2012, and the second amendment to the lease was executed on Dec 13, 2012.
The petition said the amendments to the lease were made with the approval of the CDA board after negotiations. It said it is trite law that negotiation is not forbidden by the principal of transparency.
In both cases the amendments were necessitated at best by a fundamental change in circumstances or at worst by unilateral breaches of contract by the CDA.
It said there was no evidence before the courts to show that the BNP had committed any illegalities, but had been made to suffer on the basis of purported irregularities by the CDA. However, the courts have not directed any investigations into any CDA officials.
Instead, the illegal cancellation of the lease was upheld by the impugned judgements, it said.
The CDA has been declared the beneficiary of the project without any compensation to the petitioners or the third party lessors, it said, adding that the single judge did not recognise the settled principle of law that where vested rights have accrued they cannot be taken away on the basis of procedural errors, if at all.
Published in Dawn, October 25th, 2018
Download the new Dawn mobile app here:
