Islamabad High Court on Friday rejected the plea of Hotel Grand Hyatt seeking remedy against Capital Development Authority's cancellation of lease deed of 13.5 acres of land allotted to BNP, a company, for construction of the five-star hotel. The court also turned down a number of pleas filed by the purchasers of service apartments from the BNP's under-construction hotel, situated at one of the most prime locations of the capital as well as adjacent to the Convention Centre.
The BNP was allotted 13.5 acres of land at the end of the Constitution Avenue where it had been constructing a five-star hotel and entered into third party lease agreement of service apartments. Announcing its 48-page reserved judgement in the matter, a single-member bench comprising Justice Athar Minallah ruled that construction of the residential apartments on the said 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.
Citing apex court's verdict of 2003 SCMR 1505 in response to the arguments of the company's counsel that since regulatory failure and violation of mandatory regulations are common phenomenon across the jurisdiction of the CDA, Justice Athar Minallah ruled that no person can justify an illegality by contending that similar other illegal activities were going on.
Justice Athar Minallah also quoted from a report of the Commission on the location of the Capital of Pakistan, constituted in 1959, "The Capital of a country is not merely just another city; it is a leader among cities. To this city come leaders of administration and politics, commerce and trade, literature and art, religion and science. From this city flows the inspiration which pulsates life into the nation. It is a symbol of our hopes. It is a mirror of our desires. It is the heart and soul of the nation. It is, therefore, essential that the environment of the capital should be such as to ensure continued vitality of the nation."
Justice Athar Minallah announced the detailed judgement which was reserved earlier. The IHC bench dismissed the petition of the BNP Pvt Ltd challenging its lease cancellation by the Capital Development Authority (CDA) in July 2016 and endorsed the lease cancellation decision of the CDA board. It is pertinent to mention that the IHC verdict has not only exposed lacklustre performance of the CDA but it has also held that a person investing in an illegal scheme cannot claim right as remedy.
The verdict said, "This case has brought to surface the most conspicuous example of undermining the rule of law by one of the most important regulatory authorities established under the Ordinance of 1960. The government also cannot ignore its statutory duty mandated under section 5 of the Ordinance of 1960. The documents placed on record by both the parties have brought to surface the urgent need to enforce the law in letter and spirit. It is a challenge for the government, the authority, concerned standing committees of the Parliament and all other organs of the state to work in unison to enforce the provisions of the Ordinance of 1960 and make the Islamabad Capital Territory a bastion of rule of law." Giving its finding in response to the pleas of the purchasers of the service apartments of the hotel, the court said, "This court definitely sympathises with the victims who have been made to suffer either because of complicity or regulatory capture of the authority as a regulator. Rights cannot be claimed on the basis of an illegality. No right had accrued in favour of the purchasers since the title of the petitioner/company was contingent upon obtaining a completion certificate under the provisions of the Ordinance of 1960 read with the Building Regulations and the Building Control Regulations."
The verdict further says, "Expectations may give rise to a right if it can be shown that they are legitimate. An illegal and void foundation cannot create a right and any superstructure built thereon would equally remain illegal and void." The court said, "Purchasers would not have fallen in the trap of the petitioner/ company if the government and the Authority had not been negligent or complicit. It is, therefore, a duty of the government to ensure that the victims, the purchasers, do not suffer due to its own wrongful actions and omissions, particularly when the regulatory failure of the authority stands admitted. The government is also expected to take immediate and appropriate measures to ensure that the members of the general public do not suffer in future at the hands of developers."
Comments
Comments are closed.