One Constitution Avenue case: Flats built, sold were illegal

IHC verdict says CDA, BNP group, federal govt all violated city’s laws

ISLAMABAD: The Islamabad High Court declared on Friday that the Capital Development Authority (CDA), the BNP group and the federal government had blatantly violated the law since neither the civic agency nor the government could justify its regulatory failure and negligence in allowing BNP to illegally sell flats on the property.

The court, though, dismissed all petitions challenging CDA’s move to cancel the lease of the One Constitution Avenue, upholding the civic agency’s July 2016 decision.

“The construction of residential apartments on the plot and the purported sale thereof is illegal, void and in flagrant abuse and violation of the Ordinance of 1960 read with the Zoning Regulations, Building Regulations and the Building Control Regulations,” stated Justice Athar Minallah in his verdict released on Friday as he bound the CDA and the federal government to ensure the rights of people who had bought flats to secure compensation.

He noted that this was a classic case where the CDA and the BNP blatantly violated rules and regulations of CDA’s Ordinance of 1960.

There is nothing on record to even remotely indicate as to how a someone who had not participated in the bidding process was permitted to execute the lease deed and, thereafter, construct a building on the plot, the court noted.



“It appears from the correspondence between the parties, he stated, “that at a belated stage the authority [CDA] had realised this material irregularity.”

In the order, Justice Minallah said that widows, retired officials and many expatriates were among the 240 victims who had been deceived that the two buildings were being built lawfully.

All correspondence between the parties refers to the construction of a ‘Five Star Hotel’, the verdict revealed, adding that BNP had failed to present a single document which remotely indicated that the plot was created, offered for sale or advertised as a building other than a ‘Five Star Hotel’, let alone a multi-unit building with residential apartments.

The 240 buyers, the court noted, had been “robbed” of their hard earned savings owing to the regulatory failure and negligence of CDA and the federal government.

It is, therefore, he said, the duty of the civic agency and the government to ensure that the rights of the purchasers to the extent of being compensated is protected and enforced.

Justice Minallah noted that the case revealed the most conspicuous example of undermining the rule of law by regulatory authorities. Moreover, he added that the federal government too cannot ignore its duty in the case under section 5 of the CDA Ordinance.

The judgment stated that it was a challenge for the federal government, CDA, concerned standing committees of the parliament and all other organs of the state to work in unison to enforce the provisions of the ordinance and make the Islamabad Capital Territory a bastion of rule of law.

“It is the statutory duty of the government to ensure that the sanctity of the [Islamabad] Master Plan is restored in compliance with the intent of the legislature, by enforcing the provisions of the ordinance.”



The court observed that those who bought the flats would not have fallen into the trap had the federal government and the CDA had not been negligent or complicit. It is, therefore, the duty of the federal government to ensure that the purchasers do not suffer due to their wrongful actions and omissions, particularly when the regulatory failure of the CDA stands admitted.

It added that the federal government is also expected to take immediate and appropriate measures to ensure that the public is not duped by developers in the future.

“There is nothing on record to show that from the execution of the lease deed in 2005 till the cancellation of the plot,” Justice Minallah stated, “the relevant authorities had complied with the mandatory obligations under the Building Regulations and the Building Control Regulations.”

“Bank guarantee nor the performance guarantee were kept alive,” he noted.

The judge noted that BNP, admittedly, had collected Rs5.398 billion from buyers while at the same time had been asking for extensions in their payment schedule, and the CDA extended this schedule in violation of the terms and conditions.

The court noted that the officials have been bending over backwards, extending undue benefits to BNP in complete disregard of the regulations, thus causing loss to the exchequer on the one hand and on the other enabling BNP to defraud and deceive the public.

“With respect, it speaks volumes for procedural impropriety, arbitrariness and disregard for the legislative intent in enacting the Ordinance of 1960,” he stated, adding that CDA evidently breached its fiduciary duties and obligations in holding, disposing and managing the property vested in it for the benefit of the people.

“The Chairman and each Member of the Board of the Authority [CDA] are jointly and severally responsible … accountable for any loss caused on account of regulatory failure or negligence,” it read.

The court further noted that BNP had committed fraud since the record unambiguously established that they were conscious the plot was never meant for the construction and sale of residential apartments.

“The construction of ‘residential apartments’ on the plot is illegal, void and a negation of the rule of law,” Justice Minallah stated.



However, the court noted that those who bought the flats did so by taking a risk since they did not make enquiries from the CDA, probably because a reasonable and prudent person would have been justified in not believing that the construction could manoeuvre illegally. Hence, ignorance of the law cannot be pleaded as a valid ground for making the purchase.

Nisar hails IHC verdict

Terming the decision of the Islamabad High Court (IHC) in the One Constitution Avenue case as ‘landmark’, Interior Minister Chaudhry Nisar Ali Khan said the decision gives a message that there are still people in Pakistan who are a bulwark against corruption, be it in public organisations or government departments.

He added that it was great to that there were still people who can take just decisions based on merit and raze to the ground the walls of wrong-doings, corruption and political clout.

Equally heartening, he said, it was to see that no matter how difficult and long the journey to justice may be, but ultimately it ends with justice prevailing.

Nisar called the One Constitution Avenue a ‘building of corruption’ but a landmark decision had razed to the ground the entire edifice of corruption.

WITH ADDITIONAL INPUT FROM OUR CORRESPONDENT

Published in The Express Tribune, March 4^th, 2017.