One Constitution Avenue: Top court likely to take up appeal today

Building’s management claims Lahore-based political figures behind plot to ‘destroy’ project

ISLAMABAD: The top court is expected to take up on Thursday (today) a petition which challenges the civic agency’s decision to cancel the land lease for an upscale, multistoried building — known as One Constitution Avenue.

The Islamabad High Court (IHC) has already upheld the Capital Development Authority’s (CDA) move to cancel the land lease for the project while an intra-court appeal filed on the matter was also defeated.

BNP (private) limited — the management of the iconic building — has filed a ‘civil petition for leave to appeal’ (CPLA) in the Supreme Court (SC) through Barrister Ali Zafar against the judgments rendered on March 2, 2016, and September 3, 2018.

The company has highlighted what it deems are key facts relating to the case but were allegedly overlooked by the courts. It has also pointed fingers at un-named political figures from Lahore who allegedly conspired to destroy the project.



In their appeal, the company points out that the Federal Investigation Agency (FIA) had closed its inquiry into alleged irregularity in the project but the probe was re-initiated with the proceedings taking place in Lahore.

“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 is located 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,” Barrister Zafar has contended in the petition.

The petition further adds that the impugned judgments suffer from errors of fact and law which are apparent on the face of the record and float on the surface.

It urged the top court to stop the CDA from unilaterally cancelling the lease deed.

The land had been leased by the BNP group through an auction on March 9, 2005.

CDA told the court the first bidding process for construction of the five-star hotel was cancelled on August 2, 2004, while the CDA started the auction process afresh on September 28, 2004.

Interestingly, it said that certain changes were made in the terms and conditions of the auction, including extension of the original lease period from 33 years to 99 years, reducing payment of initial bid money from 25 per cent to 15 per cent within 45 days and balance payment within 15 years instead of the stipulated 120 days.

On March 9, 2005, CDA auctioned the 13.5-acre plot to the BNP Group for Rs4.88 billion. CDA’s Board handed over possession of the plot the same year after receiving just Rs800 million.

So far, BNP has paid CDA Rs1.02 billion while the remaining Rs3.85 billion is recoverable in instalments until 2026.

The Public Accounts Committee had earlier noted that the BNP Group had earned over Rs3 billion in profits from selling residential units in the building all the while the CDA has yet to receive even half of the total receivable sum.

Lease for the 13.5 acre plot, on which the high-rise hotel building of One Constitution Avenue had been built, was cancelled by the CDA on July 29, 2016.

Officials of the civic agency maintained that the builders of the building had created third-party interest without adhering to CDA’s by-laws.

A single bench of the Islamabad High Court (IHC), headed by Justice Athar Minallah, had on March 3, 2017, upheld the CDA’s action of terminating the lease contract and sealing the building, declaring the construction of luxury apartments on land meant for a hotel as illegal.

Although Justice Minallah had dismissed all the petitions challenging cancellation of the land lease, he held that it was a classic case where the CDA and BNP had blatantly violated rules and regulations of CDA’s Ordinance of 1960.

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



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

All the correspondence between the parties refers to the construction of a ‘five star hotel’, the verdict had revealed, adding that BNP has not been able to show a single document even remotely indicating that the plot was created, offered for sale or advertised as for the construction of any building other than a ‘five star hotel’, let alone for a multi-unit building for residential apartments.

The 240 purchasers, in this case, have been ‘robbed’ of their hard-earned savings solely due to regulatory failure and negligence of CDA and the federal government as well. It is, therefore, he said, their duty to ensure that the rights of the purchasers to the extent of being compensated is protected and enforced.

Last month, IHC’s division bench, comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani, dismissed the intra-court appeals of BNP and of 27 flat owners — including Prime Minister Imran Khan — and upheld single bench’s judgment.

Published in The Express Tribune, October 25^th, 2018.