However, in the advertisement of 2008, the terms and conditions were changed drastically to the effect that the expression of Interest was invited from private parties/real estate developers/socletles of good repute. They were required to submit precise mode of partnership, specifying method and quantum of benefits to be shared with CDA. It was stated that most rellable, credible and beneficial formula would be preferred. The purpose was the development of northern strip of Sector E-11. In the said advertisement, it was also stated that preference would be accorded to Societies already operating in Sector E-11. Only those societies of E-11 which had clear, undisputed possession would be considered. Those who had land in excess of their ownership would not be entitled and the parties would be responsible for clearing off the strip at their own risk and cost. It seems that this device was adopted to keep the Interested parties out of competition, except MPCHS who fulfilled the said conditions.
28. It was argued by the learned counsel for the CDA that changes were brought about in the terms and conditions offered in the advertisement in terms of the decision of the CDA Board dated 28.02.2008. In the first advertisement, bids were invited from national and International development firms, private partles/real estate developers/societies and preference was be accorded to Societies already operating in Sector E-11. It is to be seen whether the CDA Board could have, In all fairness, agreed to terms and conditions, which were totally different from those mentioned in the advertisement and render the transaction bereft of the essential attributes of transparency and fairplay, The Governmental bodies are Invested with powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc., where they are expected to act fairly, jusély and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner. Transparency lies at the heart of every transaction entered into by, or on behalf of, a public body. To ensure transparency and fairness in contracts, inviting of open bids is a prerequisite. The reservations or restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which by themselves are reasonable and not discriminatory.
29. In the case in hand, in response to the advertisement dated 14.03.2008, three parties, namely, M/S Services Coop Housing Society Islamabad, M/S Golra Associates (Pvt.) Ltd., Islamabad and MPCHS submitted their bids. The first two parties only submitted application/letter along with the requisite pay order. M/S Golra Associates also filed one map along with the application. MPCHS alone submitted financial and technical proposals. To evaluate the bids, the Chairman CDA constituted an evaluation committee consisting of the following officers of the CDA: –
i. Financial Advisor/Member
ii. Member Estate Member (Planning & Design)
iii. Head of Treasury Director PMO
iv. Director (Land & Rehabilitation)
The Evaluation Committee, In Its meeting held on 09.07.2008, examined the bids and found that the first two firms had only submitted their expression of Interest without technical and bids, therefore, the same did not fulfil the conditions prescribed in clause 4 of the advertisement, hence their expression of Interest was not accepted. The Committee recommended that MPCHS, at that initial stage, was qualified for further processing of the case. Thereafter, the CDA Board, in its meeting dated 21.07.2008 approved that Director Lands & Rehabilitation to issue letter of Intent to MPCHS.
30. Though it was an open bld invited through advertisement in the press, but only three parties came forward out of which two did not submit the financial and technical proposals along with their applications, which depicted their non- seriousness in the matter. Only one firm, MPCHS submitted the application accompanied by the financial and technical proposals, which was accepted by the CDA authorities. Thus, with only one party left in the field, practically there was no competition. The non-submission of financial and technical proposals, in the circumstances, appeared to be collusive and mala fide. In such a situation, the CDA, instead of going for further advertisement of the tender, chose to be content with the one and the only party In the field and thus deprived of the advantage of competitive bidding. This action of the CDA functionaries contravened the provisions of Article 18 of the Constitution and caused a great detriment to the public exchequer as well.
31. In the case of Fast Food outlet in F-9 Park Islamabad titled as Human Rights Cases No. 4668/06, etc. (PLD 2010 SC 759), having noted that the spaces reserved for cuisine area, bowling alley, etc., in the un-approved Master Plan did not have the proper legal sanction at their backing and the CDA authorities thus rendered bereft of the power to go ahead with the preparation of schemes in relation thereto, as envisaged by section 13 of the CDA Ordinance, 1960, it was held that the Issuance of licence to M/S S&S Enterprizes was illegal and unsustainable and liable to be withdrawn/cancelled. It was further held that regulation 12(3) of the Islamabad Land Disposal Regulation, 1993 obligated the CDA to Itself develop and maintain public parks, playing fields and graveyards, which the CDA violated by awarding lease/licence in favour of M/S S&S Enterprizes and M/S Siza Foods. Earlier, this Court In the case of Iqbal Haider (supra) noticed that In the Capital territory, a master plan was prepared at the time of Its Inception and subsequently under different schemes, different sectors were set up. In this behalf, reference to the preamble and sections 11 and 12 of the Ordinance, 1960 was made. It was noted that in the scheme of a sector, some of the areas were earmarked as public parks for the general public, playing fields and graveyards and according to Article 12(3) of the Regulation, the same were to be developed and maintained by the CDA. Thus, It was concluded that during the classification of the plots, under Article 3 of the Regulation, if a piece of land was earmarked as a pubile park, it could not be leased out and CDA Itself was bound to develop the same.
32. It is important to note that Islamabad being the Capital of the country, each Inch of its land belongs to the entire public of Pakistan. Admittedly, it is a prime land situated in Sector E-11, which is a most expensive location of the capital city. The CDA, which is a statutory body, established by law, is mandated not only to make arrangements for the planning and development of the Capital City, but is to be authorized/compelled to perform functions of a Municipal Committee, inter alia, to promote interests of different sections of the society including taxpayers. Any transaction, which is not transparent, and goes against the interests of the general public constitutes violation of Article 9 of the Constitution, which guarantees right to life to all persons.
To be Continued..
