The CDA could not have extended the scope of section 12 by framing regulation and allowed preparation of schemes by the private organizations even with prior approval of the Federal Government. This is something not envisaged by the Ordinance and something, not permitted by the statute could not be allowed to be done by the subordinate legislation.
20. In the case in hand, as noted earlier, the exception to clause (iv) of Regulation 4(1)A providing for development of a private scheme in Sector E11 falling in Zone 1, which is to be developed by the CDA either itself or through an agency of the Federal or a Provincial Government or a local body in terms of section 12 read with section 2(a) & (1) of the Ordinance is Inconsistent with the Ordinance, and hence Inoperative. Such an arrangement is against the primary alm and object of the Ordinance as reflected in its preamble, viz., the Capital Development Authority is established for making all arrangements for the planning and development of Islamabad within the framework of a regional development plan, which is further reinforced by section 13 of the Ordinance, which provides that the Authority may, pursuant to the master-programme, itself prepare schemes relating to matters enumerated in subsection (2) of section 12 of the Ordinance. In this view of the matter, the JVA with a private organization is not sustainable.
21. The learned counsel appearing for the CDA as well as the learned counsel for the MPCHS made repeated reference to clause (3) of the JVA, which obligates the second party (MPCHS) to clear off from the occupants (affectees/Illegal encroachers) all the area under the northern strip (54 acres) and planned right of way for the construction of north and east service roads of Sector E-11. The stance of the learned Amicus Curiae, on the other hand, was that the CDA was legally and physically equipped with the necessary powers and Infrastructure in the shape of Enforcement Directorate, duly authorized to deal with the situation of the kind in a summary manner and get the land owned by the CDA vacated from the Illegal occupants. Though an attempt was made to depict the inability of the CDA to get cleared its lands from the Illegal occupants in various Sectors, e.g. G-12, F-12, etc., but no reference was made to the countless instances where the CDA had, in exercise of its powers and by use of police force, got vacated its lands in various sectors/other areas, such as Bani Gala, etc. Clearly, It was abdication of the exercise of lawful powers and jurisdiction in favour of the land grabbers, which can hardly be allowed to be pressed into service to the great detriment of the general public. Illegal occupants cannot be allowed to take advantage of their Illegal acts and wrongful gains. Instead of allowing the law to take its course, the approach and the conduct of the CDA appear to be aimed at encouraging Illegal encroachments upon the State lands. In the circumstances, the act of payment to illegal occupants was not warranted by law. The much trumpeted card is not available to the CDA functionaries and no support at all could be drawn from it.
22. It was argued by Mr. Zulfiqar Khalid Maluka, ASC that MPCHS, as provided in its Byelaws of 2005, was a cooperative housing society formed with the objectives of promoting economic interests of its members on the principles of cooperation, self-help, on no profit – no loss basis, such as to arrange, buy or otherwise acquire land, buildings, prepare layout plans, establish, construct and maintain residential colonies, apartments, commercial areas, farm houses, etc. It may be pertinent to mention here that a ‘housing society’, as defined in section 3(h)(4) of the Cooperative Societies Act, 1925, means a society formed with the object of providing its members with dwelling houses on conditions to be determined by its bylaws.
Therefore, the objectives of the society can hardly be pressed Into service to meet the Initial obligation of the CDA either to develop land Itself or get it done through an agency of the Government or a local body. Even otherwise, the learned counsel also failed to show that development of sectoral land was the expertise of MPCHS and it was hardly equipped to undertake construction work.
23. As far as a limb of argument that MPCHS had made huge investment of over one billion rupees, firstly in getting cleared the land from the illegal occupants, and secondly in developing the land in question, therefore, any finding/decision at this stage nullifying the JVA would result in great loss to a private Investor, who had come forward to make investment in the government sector at a time when the economy of the country was passing through a difficult period. Such a decision would discourage investment, which is the lifeblood of any economy, and more particularly of a developing economy. However, the learned counsel failed to place on record any valid documentary evidence in support of their claim. The issue in the case in hand revolves around transparency in a transaction entered into by or on behalf of a public body, which cannot be allowed to be compromised in any event.
24. 1 It is well-settled that in matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied. However, in such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised In larger public interest. It has also been held by the Courts that in matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. It is also a well-settled principle of law that since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The Interference with the decision making process is warranted where it is vitiated on account of arbitrariness, Illegality, irrationality and procedural impropriety or where it is actuated by mala fides. Reference may be made to
(1) Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489; (2) Tata Cellular v. Union of India (1994) 6 SCC 651 = AIR 1996 SC 11; (3) Raunaq International Ltd. v. I.V.R. Construction Ltd. (1999) 1 SCC 492; (4) Air India Ltd. v. Cochin International Airport Ltd. (2000) 2 SCC 617; (5) Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd. (2007) 8 SCC 1] and (6) judgment dated 24.08.2009 of the Andhra High Court in Nokia Siemens Networks Pvt. Ltd. v. Union of India. In Air India Ltd. v. Cochin Int., Airport Ltd. (AIR 2000 SC 801), it was held as under: –
“7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in R. D. Shetty v. International Airport Authority; Fertilizer Corporation Kamgar Union v. Union of India; Asstt. Collector, Central Excise v. Dunlop India Ltd.; Tata Cellular v. Union of India; Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd..
To be Continued…
