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Official Citation: 2025 CLC 698
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: M/S Al-Safa Golden Co. (Pvt.) Ltd. vs Capital Development Authority And JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-31, officially reported as 2025 CLC 698. In this matter between M/S Al-Safa Golden Co. (Pvt.) Ltd. and Capital Development Authority And JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025 CLC 698
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title:M/S Al-Safa Golden Co. (Pvt.) Ltd. vs Capital Development Authority And
JUDGMENT
Reported As: 2024 IHC 210, 2025 CLC 698 Result: Appeal Allowed Judgment
JUDGMENT SAMAN RAFAT IMTIAZ, J.:- 1. The instant Regular First Appeal has been filed by the Appellant [M/s Al-Safa Golden Company (Pvt.) Ltd.] to assail the Judgment and Decree dated 22-1-2020 ("Impugned Judgment and Decree") passed by the learned Civil Judge 1st Class (West), Islamabad ("Trial Court"), whereby the Suit filed by the Appellant was dismissed. 2. The facts relevant for the disposal of the instant appeal are that the Respondent No.1/CDA [Capital Development Authority, Islamabad] published an Advertisement for the auction (Ex.P1) ("Advertisement") of Plot No.5 Markaz F-7, Islamabad ("Subject Plot") measuring 3777.78 square yards, (DHS) with Floor Area Ratio ("FAR") of 1:5. The Appellant participated in the bidding process and was declared the successful bidder. The Respondent No.2 [Director, Estate Management-II, CDA] issued the Allotment Letter dated 19-05-2010 (Ex.P6) whereby the Subject Plot was allotted to the Appellant subject to certain conditions including FAR of 1:2; two basements; and ground plus four mixed commercial and residential storeys. The possession of the Subject Plot was handed over to the Appellant vide Certificate of Possession dated 27 05-2010 (Ex.P7/2-2). 3. On 11-6-2010 the Appellant submitted the building plan for construction on the Subject Plot for approval for Ground plus 7 floors with three basements after deduction of common/circulation area. The Respondent No.3 [Director, Building Control Section, CDA] intimated the Appellant vide letter dated 14-6-2010 (Ex.P9) that the proposed building plan is contrary to the bye-laws specified in Allotment Letter dated 19-05-2010 (Ex.P6) whereby ground plus four with two basements have
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been allowed only without mention of deduction of common/circulation area. Therefore the Appellant was requested to either amend the plan according to the bye laws or to obtain formal permission for enhanced facility/relaxation of the bye laws. 4. The Appellant wrote a letter dated 16-6-2010 (Ex.P10) to the Deputy D.G. Building Control, CDA seeking deduction of circulation/common area and removal of capping of number of storeys. The Director, Urban Planning Wing, CDA vide letter dated 27-08-2010 (Ex.P11/3-5) addressed to the Appellant and copied to the Deputy D.G. (Planning), Deputy D.G.; Building Control Section; Respondent No.2; Deputy Director (Land Survey Division); P.S. to Member (Planning and Design); and P.S. to FA/Member approved the construction of two basements while informing that the issue regarding deduction of circulation area from the permissible covered area is to be looked into by the Building Control in light of the Board Decision in the case of Avari Hotel. 5. The Respondent No.3/CDA in its Letter dated 8-10-2010 (Ex.P16) copied to the Director EM-II; P.S. to Chairman, CDA; PS to Member Estate; PS Member P&D; PS to Member Finance; Mr. Abdul Qayyum [CEO of the Appellant]; and the Architect [of the Subject Plot] stated that the matter regarding deduction of circulation area from permissible covered area was discussed in the office of the Chairman, CDA and looked into in light of the Board Decision in the case of Avari Hotel as well as for Marakiz and it has been decided to exclude the circulation/service area from the permissible area in case of the Subject Plot thus removing the cap on the number of storeys. 6. Accordingly, the Building Plan consisting of three Basements + Ground + 7 Floors and Top Floor with Mumty was approved by the Deputy Director, Building Control Section, CDA vide letter dated 09-04 2011 (Ex.P12). 7. Notwithstanding the foregoing, the Respondent No. 3/CDA issued Notice dated 18-1-2012 (Ex. D/2) to the Appellant under Section 49-C sub clause (1) of the CDA Ordinance No. XXIII of 1960 in respect of the Subject Plot alleging violation of Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005 ("Building Control Regulations, 2005"). The Respondent No. 3/CDA also issued Notice (Ex. D/4) of even date to the Architect and Structural Engineer. Thereafter another letter was issued by the Respondent No.3/CDA on 20-1-2012 (Ex. D/3) stating that for any additional storey the Appellant was required to apply to the Planning Wing, CDA. 8. The Appellant submitted revised plans for the Subject Plot on 02 02-2012 (Ex. P14) and 30-8-2012 (Ex.P13) to Respondent No.3/CDA. The Respondent No.3/CDA issued Letter dated 16-11-2012 (Ex.P17) to inform the Appellant that its request for readjustment of permissible covered area/FAR was presented before the Design Vetting Committee ("DVC") in its meeting held on 30-10-2012 and it was approved. The Deputy Director, Estate Management-II, CDA vide its Letter dated 12-2 2013 (Ex.P18) instructed the Appellant to pay the outstanding premium of the Subject Plot. 9. Subsequently, the Respondent No. 3/CDA again issued Letters dated 17-2-2014 and 5-3-2014 (Ex.P25) alleging inter alia deviation from the approved plan. The Respondent No.3/CDA then issued a Show Cause Notice dated 24-4-2014 (Ex.P25) under Section 49-C sub clause (1) of the CDA Ordinance No. XXIII of 1960 as to why the illegal/unauthorized construction at the Subject Plot may not be removed/demolished on account of inter alia deviation from the approved plan. Vide Letter dated 23-4-2015 (Ex.P26) the Deputy Director, Respondent No. 3/CDA suspended the approval granted for the adjustment of FAR by alleging deviation from the condition on which the approval was granted. 10. Being aggrieved of the suspension of the revised approved plan the Appellant filed Writ Petition No. 1458 of 2015 before this Court, however, the same was dismissed vide judgment re: M/s Al-Safa Golden Co. (Pvt.) Limited VS. Capital Development Authority through its Chairman, 2015 PLJ 395 Islamabad (Ex.P53). Consequently, the Respondent No. 3/CDA issued Letter dated 23-7-2015 (Ex.P27/4-4) with the direction to remove the un-authorized construction at top floor within 7 days.
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11. On 27-7-2015 (Ex.P28) the Assistant Director, Building Control Section, CDA sealed the Subject Plot due to the alleged violations of the approved building plan, etc. The Appellant filed a Civil Suit for Declaration, Permanent and Mandatory Injunction along with an application under Order XXXIX, Rules 1 and 2, CPC, and further prayed for de-sealing the premises before the learned Trial Court. The learned Trial Court dismissed the application under Order XXXIX, Rule 1 and 2, CPC vide its Order dated 30-7-2016. The Appellant assailed the said order in appeal, however, the appeal was also dismissed vide the Order dated 3-8-2016. 12. Being aggrieved, the Appellant preferred Civil Revision No. 320/2016 before this Court whereby this Court de-sealed the premises with certain conditions vide order dated 15-8-2015 (Ex.P49). This Court vide Order dated 30-8-2016 (Ex.P49) in Civil Revision No. 320/2016 directed the Appellant to approach the Member (Planning), CDA for resolution of the dispute regarding construction of the 8th floor. 13. Pursuant to the said Order the Respondents/CDA convened meetings on 21-9-2016 (Ex.P32) and 7-10-2016 (Ex.P33). The Respondents/CDA decided to cancel the lease of the Appellant as reflected in the Summary for Regularization dated 14-11-2017 (Ex.P31). Thereafter the Respondents/CDA issued Cancellation of Allotment Letter dated 3-1-2018 (Ex.P35) ("Cancellation Letter") informing the Appellant that the Board of the Respondents/CDA in its meeting held on 14-11-2017 have decided to cancel the allotment of the Subject Plot due to the violation of the building bye-laws and construction of building in violation of rules/permissible FAR. 14. Being aggrieved, the Appellant filed the Suit for declaration and Permanent Injunction ("Subject Suit") before the learned Trial Court. The Respondents/CDA filed its written statement on 24-01- 2018. Vide order dated 20-9-2019 the learned Trial Court framed following issues: I. Whether the order of cancellation of lease agreement passed by defendant on 3-1-2018 is illegal, void and contrary to law? OPP II. Whether the plaintiff has made substantiate violation of terms and conditions of allotment and rules, therefore, his allotment letter dated 19-5-2010 is liable to cancelation? OPD III. Relief. The parties led their respective evidence. The learned Trial Court after hearing both the sides passed the Impugned Judgment and Decree dated 22-01-2020 whereby the Suit filed by the Appellant was dismissed. Hence, this Appeal. 15. The learned counsel for the Appellant argued that the real reason for the issuance of the Cancellation Letter was the reference filed by the National Accountability Bureau ("NAB") against various CDA officials i.e. (i) Ghulam Murtaza Malik, Director General, BCS, CDA; (ii) Ammar Idrees, Deputy Director BCS, CDA; (iii) Khalil Ahmed, Director BCS, CDA; and (iv) Khadim Hussain, Assistant Director, BCS, CDA as well as Rana Abdul Qayyum, CEO of the Appellant. In this regard he specifically highlighted the minutes of the meeting held on 21-9-2016 (Ex.P32) wherein it has been recorded that the Member (Planning) CDA conceded that approval was duly granted by CDA as an institution by officers responsible for according the said approvals however there is now an inquiry being conducted against the same officers who accorded those approvals. He relied upon Regulation 3.8.1 of the Building Control Regulations, 2005 according to which a written document along with the approved plan and working drawings signed by the Deputy Director, Respondent No.3/CDA purporting to convey or set forth his sanction, permission approval, order shall be sufficient prima facie evidence of the doing of anything under the Regulations which depends upon the sanction, permission, approval or satisfaction of the Respondents/CDA. He emphasized that as per Letter dated 8-10-2010 (Ex.P16) the matter regarding deduction of circulation area from permissible covered area was discussed in the office of the Chairman CDA and it was looked into in light of the Board Decision in the case of Avari Hotel as well as for Marakaz and it was decided to exclude the circulation/service area from the permissible area in case of the Subject Plot thus
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removing the cap on the number of storeys. He highlighted that by way of the Letter dated 16-11- 2012 (Ex.P17) the Respondent No.3/CDA informed the Appellant that its request for readjustment of permissible covered area/FAR was presented before the DVC in its meeting held on 30-10-2012 and it was approved. Thus he submitted that the construction carried out by the Appellant at the Subject Plot was with approval of the Respondents/CDA and in case such approvals were given in violation of any law the Petitioner is protected by the doctrine of indoor management'. 16. He also drew the Court's attention to the admissions made by DW-2 i.e. Director BCS-I, CDA on cross-examination whereby it was admitted that the Appellant had made an application for exclusion of circulation area and utility areas from the calculation of FAR which was forwarded to the Planning Wing, CDA who in turn opined that the matter would be decided in light of Avari Hotel. DW-2 also confirmed that it is correct that Respondents/CDA has constituted the DVC whose 10 Members looked at the maps of the Appellant and recommended the same for approval. DW-2 also confirmed that he did not recommend cancellation of plot in the summary prepared for the Board. The learned counsel for the Appellant objected that the Impugned Judgment and Decree has not considered the oral testimony on the record at all. 17. He submitted that in any event the Respondent No. 3/CDA by way of Letter dated 23-7-2015 (Ex.P27) directed the Appellant to remove only the un-authorized construction on the top floor i.e. 8th floor. He also referred to the minutes of the meeting held on 7-10-2016 (Ex.P33) to show that the only issue was in respect of the 8th floor. He contended that there was no show-cause notice issued for cancellation of the Subject Plot and the findings in the Impugned Judgment in this regard is against the record. He highlighted that the 2 notices dated 18-1-2012 treated as show cause notices by the learned Trial Court do not specify cancellation of plot as a consequence. He also highlighted that cancellation may be carried out by EM-I and EM-II in routine cases whereas disputed cases shall be decided by Member (Admin) and the appeal against the order of cancellation of allotment of plot may be made to the Member (Admin) within 3 months of cancellation whereas in the case of the Appellant the matter was decided by the Board of the Respondents/CDA before whom the appeal would lie. Lastly, he contended that the Cancellation Letter is devoid of reasons. He relied upon judgment reported as unreported judgments of the Supreme Court titled as M/s Golden Tea Company Vs. Capital Development Authority through its Chairman, Civil Appeal No. 168 of 2018; and Sarmad Faraz Vs. Capital Development Authority (CDA), Islamabad through its Chairman, Civil Appeal No.1265 of 2018. 18. Conversely, the learned counsel for the Respondents/CDA submitted that FAR is to be calculated as laid down in Schedule I to the Building Control Regulations 2005 as per Regulation 2.4.1 and that any excess covered area beyond the prescribed limits in Schedule I shall be demolished as per Regulation 2.4.2. He argued that since FAR was to be 1:5 in the RFQ any approval given in violation thereof was unlawful. The learned counsel submitted that pursuant to Regulation 2.4.3 deviation of rule up to a maximum of 5% is subject to approval of the Respondents/CDA in advance and charges whereas the relaxation given to the Appellant exceeds such upper limit and as such was in contravention of the Building Control Regulations, 2005. He contended that the matter regarding enhancement of FAR in respect of the Subject Plot could not have been submitted to the DVC as the DVC had no authority in this regard and in fact only the Board of the Respondents/CDA could have granted such approval as in the case of the Avari Hotel. He contended that there can be no estoppel against the law and as such an illegality cannot be allowed to persist even if the Appellant was not at fault if the approval was granted in contravention of the applicable regulations. He submitted that such principle is enshrined in Regulation 3.1.1 which provides that the granting of a permit of approval of the drawing and specifications shall in any way relive the owner/allottee from full responsibility for carrying out the work in accordance with the requirements of the bye-laws. He relied upon Regulation 19 of the Islamabad Land Disposal
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Regulations, 2005 to submit that allotment of a plot can be cancelled inter alia on account of violation of Building, Zoning and other Regulations, and other instructions of the Authority. He relied upon judgments reported as Punjab Provincial Cooperative Bank Limited Vs. Member (Colonies) Board of Revenue Punjab, Lahor, 2023 CLC 1331; Ch. Munir Ahmad Vs. Government of Punjab through Chief Secretary, Punjab Lahore, PLD 2022 Lahore 384; Justice Muhammad Farrukh Irfan Khan, Judge Lahore High Court Vs. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division, PLD 2019 SC 509; Shahid Chanzaib Vs. C.D.A., 2017 YLR 411; Sajjad Ahmed Vs. Chairman, Capital Development Authority, 2016 CLC 896; Messrs Al-Safa Golden Co. (Pvt..) Limited Vs. Capital Development Authority, 2016 CLC 210; Suo Moto Case No. 13 of 2009: Action on press clipping from the Daily "Patriot", Islamabad dated 4-7-2009 regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11 Islamabad, PLD 2011 SC 619; Ignees Maria Vs. District Coordination Officer, District Bahawalnagar, 2012 PLC (C.S.) 772; Muhammad Shamim Vs. Mst. Nisar Fatima, 2010 SCMR 18; Farooq Hamid Vs. L.D.A., 2008 SCMR 493; Muhammad Sidiq Vs. Punjab Service Tribunal, Lahore, 2007 SCMR 318; Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretary, 2005 SCMR 1814; Capital Development Authority Vs. Zahid Iqbal, PLD 2004 SC 99, Ayesha Afzal Vs. Chairman, Board of Intermediate and Secondary Education, 2001 CLC 1765; Jamil Ahmed Vs. Karachi Building Control Authority, 2001 MLD 1635; Ardeshir Cowasjee Vs. Karachi Building Control Authority, 1999 SCMR 2883; Muhammad Khurshid Abbasi Vs. Administrator/Assistant Commissioner, Municipal Committee, Murree, 1999 SCMR 2224; Mir Afzal Khan Vs. Karachi Development Authority, PLD 1998 Karachi 283; and Pakistan through Secretary, Ministry of Commerce Vs. Salahuddin, PLD 1991 SC 546. 19. In rebuttal, the learned counsel for the Appellant submitted that promissory estoppel is not attracted as the calculation of FAR is an executive decision and not statutory. He relied upon Capital Development Authority, CDA Vs. Ahmed Murtaza , 2023 SCMR 61 to argue that where CDA officers have acted in contravention of their own policy they cannot expect the court to correct their wrongs. 20. I have heard the arguments advanced by learned counsel for the parties and perused the record with their assistance. The points for determination which arise in the instant appeal are as follows: (i) Whether the learned Trial Court erred in concluding that the two notices dated 18-1-2012 produced as Ex.D/2 and Ex.D/4 constituted Show Cause Notices against cancellation of allotment of the Subject Plot? (ii) Whether the learned Trial Court erred in concluding that cancellation of allotment of the Subject Plot by the Respondents/CDA was not illegal, void and contrary to law by taking into consideration grounds not mentioned in the Cancellation of Lease Order dated 3-1-2018 (Cancellation Letter)? (iii) Whether the Trial Court erred in concluding that the case of Avari Hotel was absolutely different from the instant case for purposes of granting approval for enhancement of FAR? (iv) Whether the Trial Court erred in failing to consider the effect of an approval once given by a public authority? (v) Whether an approval granted by a public authority can be revoked/withdrawn/cancelled/rescinded? (vi) Whether deviation of FAR is illegal? (vii) Whether the Respondents/CDA's approval for enhancement of FAR by excluding common/circulation areas by following the Avari Hotel precedent was without jurisdiction? (viii) Whether violations of the Building Control Regulations, 2005 could result in cancellation of the allotment of the Subject Plot?
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(ix) Whether the learned Trial Court erred in concluding that cancellation of allotment of the Subject Plot was justified due to the violation of Regulation 2.8 of the Building Control Regulations, 2005? 21. I will now take up each of the points for determination in seriatim: (i) Whether the learned Trial Court erred in concluding that the two notices dated 18-1-2012 produced as Ex. D/2 and Ex. D/4 constituted Show Cause Notices against cancellation of allotment of the Subject Plot? 22. The learned Trial Court has held that the notices dated 18-1-2012 produced as Ex. D/2 and Ex. D/4 constitute show cause notices and as such found that the cancellation of allotment vide the Cancellation Letter was not without issuance of prior show cause notice. 23. Whereas the record reflects that after these notices were issued the Respondent No.3/CDA issued another letter on 20-1-2012 (Ex. D/3) stating that for any additional storey the Appellant was required to apply to the Planning Wing, CDA. The Appellant submitted revised plans for the Subject Plot on 02-02-2012 (Ex. P14) and 30-8-2012 (Ex.P13) and Respondent No.3/CDA issued Letter dated 16-11-2012 (Ex.P17) to inform the Appellant that its request for readjustment of permissible covered area/FAR was presented before the DVC in its meeting held on 30-10-2012 and it was approved. Thus the matters raised vide the notices dated 18-01-2012 stood closed/resolved on 30-10-2012. Any subsequent action by the Respondents under such notices was unwarranted. 24. If, for example, the Respondents/CDA subsequently came to the realization that DVC had no authority to issue approval (as has been held by the learned Trial Court and discussed herein below in relation to point No. (vii) the Respondents/CDA should have issued a fresh show cause notice furnishing the Appellant an opportunity to show otherwise failing which the proposed action would be taken. 25. Speaking of proposed action, perusal of the first notice dated 18-1 2012 (Ex. D/2) shows that the Appellant was directed to remove the stipulated violations failing which the violations would be removed through the Enforcement Directorate at the risk and cost of the Appellant. The violations the Appellant was alleged to have committed were as follows: i. Deviation of approved plan at top floor. ii. Covered area on 8th (top floor) is being enhanced above approval of 6526 sft. iii. Required certificates for Architect/Engineers have not been submitted as per condition 6 (a to m) of approval letter dated 9-4-2011. iv. Approved design of covering of Nullah have not been submitted. 26. It may be seen that the alleged deviation from the approved plan was only in respect of the top floor i.e. the 8th floor. The same violations were alleged through second notice dated 18-1-2012 (Ex. D/4) which was issued to the Architect with direction to explain his position within three days failing which the case would be recommended for suspension/cancellation of his CDA License. 27. It is noteworthy that neither of the two said notices was to show cause against cancellation of allotment of the Subject Plot. The Supreme Court of India in the case of Umc Technologies Private Limited Vs. Food Corporation of India, AIR 2021 Supreme Court 166 specified the following ingredients that a show cause notice must contain in order to fulfill the requirements of the principles of natural justice: "(i) The material/grounds to be stated which according to the department necessitates an action; (ii) Particular penalty/action which is proposed to be taken. It is this second requirement which the High Court has failed to omit. We may hasten to add that even if it is not specifically mentioned in the show-cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement." [Emphasis added].
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28. Bare perusal of the notices dated 18-01-2012 shows that neither cancellation of allotment was particularized nor can it be inferred from the contents thereof. Therefore, the learned Trial Court erred in treating the notices dated 18-01-2012 as show cause notices in respect of the Cancellation Letter. 29. Thereafter the Respondent No.3/CDA issued a Show Cause Notice dated 24-4-2014 (Ex.P25) under Section 49-C sub clause (1) of the CDA Ordinance No. XXIII of 1960 as to why the illegal/unauthorized construction at the Subject Plot may not be removed/demolished on account of inter alia deviation from approved plan and suspended the approval granted for the adjustment of FAR vide Letter dated 23-4-2015 (Ex.P26). It bears emphasis that this Show Cause Notice dated 24-4-2014 (Ex.P25) too did not specify cancellation of allotment as a possible consequence. 30. Nevertheless, on 27-7-2015 (Ex.P28) the Assistant Director, Respondent No. 3/CDA sealed the Subject Plot due to the alleged violations of approved building plan, etc. The Subject Plot was de- sealed by order of this Court passed in Civil Revision No. 320/2016. For resolution of the dispute regarding construction of the 8th floor the Appellant was directed to approach the Member (Planning), CDA by this Court vide Order dated 30-8-2016 in Civil Revision No. 320/2016. Pursuant to such order the Respondents/CDA convened meetings including to one on 14-11-2017 wherein it was decided to cancel the allotment of the Subject Plot pursuant to which the Cancellation Letter was issued. 31. The above summary of events shows that no show cause notice against cancellation of allotment was issued to the Appellant by the Respondents at any time prior to the issuance of the Cancellation Letter. The Appellant was never put on notice that failure to remove the alleged violations of the approved plan would result in cancellation of allotment of the Subject Plot. The only issue for which direction was given to approach the Member (Planning), CDA by this Court vide Order dated 30-8-2016 in Civil Revision No. 320/2016 was for resolution of the dispute regarding construction of the 8th floor yet the meetings convened in this respect culminated in the issuance of the Cancellation Letter. Therefore, the learned Trial Court…
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