IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
 
 
 
 
 
 
PRESENT: 
 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ 
MR. JUSTICE GHULAM RABBANI 
 
SUO MOTU CASE NO. 13 OF 2009 
 
[Action on press clipping from the Daily 
“Patriot”, 
Islamabad 
dated 
04.07.2009 
regarding 
Joint 
Venture 
Agreement 
between 
CDA 
and 
Multi-Professional 
Cooperative Housing Society (MPCHS) for 
development 
of 
land 
in 
Sector 
E-11, 
Islamabad] 
 
ON COURT NOTICE  
 
For the CDA:  
Mr. Khalid Anwar, Sr. ASC  
Raja Abdul Ghafoor, AOR 
Mr. Waqar Ali Khan, Director (Land)  
 
For MPCHS:  
Mr. Zulfiqar Khalid Maluka, ASC  
 
Amicus Curiae:  Mr. Muhammad Akram Sheikh, Sr. ASC  
 
FOR THE APPLICANTS  
 
 
CMA No. 4204/2009: Mr. M. Ikram Chaudhry, ASC  
 
CMA No. 4686/2009: Dr. Aslam Khaki, ASC  
 
 
Dates of hearing:  
8th to 10th & 14th March, 2011  
.-.-. 
 
JUDGMENT 
 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In December 
2008, the Capital Development Authority (CDA) entered into a 
Joint Venture Agreement (JVA) with M/S Multi Professional 
Cooperative Housing Society (MPCHS) for development of 54 
SMC 13-2009 
2 
acres of land located in northern strip of Sector E-11, Islamabad. 
A news report appeared in the DAILY PATRIOT dated 04.07.2009 
stating that prime land belonging to the CDA had allegedly been 
given to MPCHS through an underhand deal. The press clipping 
was registered as Human Rights Case No. 3557-G of 2009 vide 
order dated 06.07.2009 passed by one of us (Iftikhar Muhammad 
Chaudhry, CJ) and a report was called from the Chairman CDA. It 
was, inter alia, stated in the report that originally CDA owned 78 
acres of land at northern strip of Sector E-11, out of which 24 
acres were utilized for adjustment of the outstanding claims of 
the locals as per directions of the High Court and the remaining 
land was under adverse possession, therefore, considering that 
the said land would be consumed to settle the claims, which were 
the subject matter of many petitions pending in different Courts, 
CDA entered into the JVA with MPCHS. It was further stated that 
in pursuance of decision of CDA Board, Expression of Interest 
was invited from interested parties and after due consideration 
and evaluation, the said JVA was signed. The matter was 
registered as Suo Motu Case No. 13 of 2009 and was fixed in 
Court.   
2.  
 
In the concise statement filed on behalf of the CDA, it 
is submitted that in 1968, land measuring 654 acres in Golra 
Revenue Estate comprising Sectors E-11 (203 acres), E-12 (36 
acres), F-11 (45 acres), F-12 (77 acres) and Blue Area (293 
acres) 
was 
exempted 
from 
acquisition 
by 
the 
Federal 
Government with the approval of Field Marshal Muhammad Ayub 
SMC 13-2009 
3 
Khan, the then President of Pakistan. In 1969, the CDA acquired 
land falling in Sector E-11 at a nominal cost of Rs.208/- per 
kanal, but did not announce Award in respect of houses/built up 
property nor any compensation/allotment of plots was made to 
the affectees/occupants. In 1983, the CDA with the approval of 
the then President of Pakistan decided to exchange and 
consolidate in Sector E-11 the land of Golra Revenue Estate 
situated in Sectors F-11, F-12, E-12 and Blue Area. In 1986, six 
Cooperative Housing Societies including the National Police 
Foundation with the approval of CDA purchased land in Sector   
E-11, 
took 
possession 
from 
the 
affectees/occupants 
and 
developed it. Only 78 acres of land located in the northern strip 
of Sector E-11 remained with the CDA. Subsequently, 24 acres 
were allotted to locals against their claims, leaving a balance of 
54 acres.    
3.  
 
It is further stated that in December 1992, CDA in 
exercise of the powers conferred by section 51 read with section 
11 of the CDA Ordinance, 1960 framed with the approval of the 
Federal Government the Islamabad Capital Territory (Zoning) 
Regulation, 1992, hereinafter referred to as ‘the Regulation’. The 
Regulation divided the Capital Territory into five Zones, viz., 
Zones 1 to 5. The development of Zone 1 was entrusted to CDA, 
while private parties were authorized to buy and develop land 
falling in Zones 2 and 5. Although Sector E-11 was located in 
Zone 1 and was to be developed by the CDA itself, but on 
account of consolidation of land, it was provided in regulation 
SMC 13-2009 
4 
4(1)A(iv) of the Regulation that no private scheme of any kind 
whatsoever shall be allowed except in Sector E-11 where the 
schemes would be regulated by the provisions applicable to 
schemes in Zone 2. In June 1993, the CDA framed Modalities and 
Procedures under the Regulation for development of private 
housing schemes in Zones 2 and 5.  
4.  
 
In 2005, the CDA, in exercise of powers conferred by 
section 51 read with section 49 of the CDA Ordinance, 1960 
framed 
the 
Islamabad 
Land 
Disposal 
Regulation, 
2005. 
Regulation 4 thereof provided that the CDA Board may decide to 
enter into JVAs with any private or public sector agency 
regarding property vested in it for any specific project.       
5.  
 
On 30.06.2005, the CDA, by advertisement published 
in 
the 
Daily 
Dawn, 
invited 
Expression 
of 
Interest 
for 
development/construction of high-rise residential apartments, 
commercial, educational, health centres and recreational facilities 
in the northern strip of Sector E-11. Some developers showed 
interest, but the proposal could not mature due to adverse 
possession of the land and built up property in the area.  
6.  
 
On 14.03.2008 the CDA, by advertisement in the Daily 
Dawn and Jang again invited Expression of Interest. Three bids 
from M/S Services Cooperative Housing Society, M/S Golra 
Associates and M/S MPCHS were received. The proposal of 
MPCHS, having been approved by the CDA Board was accepted 
and the JVA dated 02.12.2008, after completion of the codal 
formalities, was signed. The MPCHS got vacated the possession 
SMC 13-2009 
5 
from the occupants, got approval of planning and engineering 
designs and 80% of the work had already been completed. The 
CDA has not spent a single rupee on acquiring possession of 
land, preparation of its master plan, engineering designs and 
execution of development works, etc. It was pointed out that on 
the contrary the CDA had failed to take over possession of the 
acquired land in Bheka Syedan Sector F-11, Sector E-12, Sector 
F-12 and Sector G-12.  
7.  
 
It is pleaded that the other bidders did not object to 
the award of contract to MPCHS. All major projects relating to 
buildings, bridges, flyovers, source development of water supply, 
planning/construction of sewerage treatment plants, etc., were 
carried 
out 
by 
engaging 
specialized 
planners, 
architects, 
consultants and contractors of repute. 
8.  
 
Mr. Khalid Anwar, Sr. ASC who appeared on behalf of 
the CDA submitted that CDA has observed all rules and 
regulations while entering into the JVA in a transparent manner 
and selecting a party. The CDA, by advertisement published in 
the Daily Dawn dated 30.06.2005 invited Expression of Interest 
for construction of high rise apartments in Sector E-11 having 
shopping centre and other facilities such as community centre, 
school, mosque, playfields, health centre in the northern acquired 
strip of land measuring about 70 acres on joint venture basis. 
The Expression of Interest was invited from high profile well-
reputed national and international development firms having vast 
experience in development of housing/construction. However, 
SMC 13-2009 
6 
nobody came forward mainly because of adverse possession on 
the land in question.   
9.  
 
The issue was then considered by the CDA Board in its 
meeting held on 28.02.2008. It was decided that the housing 
societies already working in Sector E-11 and having possession 
of the land will be allowed to have a joint venture with CDA on 
the land which is owned by the CDA, but is in possession of the 
societies. Accordingly, by a fresh public advertisement dated 
14.03.2008, expression of interest was again invited from the 
private parties/real estate developers, societies of good repute to 
develop 54 acres of land in E-11.  It was given out that the 
subject land, though validly owned by CDA, was under adverse 
possession of certain illegal squatters and the selected party 
would have to get the area cleared off and ready for 
development at its own risk and cost. Reference in particular was 
made to clauses 3 and 4 of the advertisement, which are 
reproduced below: -  
“3. 
Preference will be accorded to societies already 
operating in Sector E-11. Such preference will be 
determined, in addition to other parameters, by 
the contiguity and adjacency to the northern 
strip of sector E-11.  
4. 
Only those societies of Sector E-11 which have 
clear, undisputed title and possession will be 
considered. Application of Societies/Parties of E-
11, which possess land in excess of their 
ownership will not be entertained and will be 
summarily rejected.”   
SMC 13-2009 
7 
In response to the above advertisement, three proposals, 
including that of MPCHS were received, which were scrutinized by 
the evaluation committee in its meeting held on 09.07.2008. 
MPCHS was found to be qualified as against the other two firms, 
namely, M/S Services Co-Operative Housing Society and Golra 
Associates (Pvt.) Ltd. who had only submitted expression of 
interest but not the technical and financial bids. The credentials 
of the two firms were checked and it was observed that they did 
not 
fulfil 
the 
conditions 
prescribed 
in 
clause 
4 
of 
the 
advertisement. The CDA Board in its meeting held on 21.07.2008 
approved the proposal of MPCHS and JVA was entered into with 
it. To ensure transparency in the execution of the works by the 
MPCHS, it was agreed, inter alia, that the MPCHS shall, in 
consultation with the CDA, appoint at its sole cost consultant of 
international repute through open advertisement in two leading 
English Daily Newspapers with national circulation for planning, 
designing and supervision of development work of the project 
and the terms of reference shall be formulated in accordance 
with CDA planning requirements/standards. The work will be 
awarded to contractors duly registered with PEC in the respective 
category. After approval of the development plan and as full and 
final consideration for the all actions and activities undertaken by 
MPCHS under the agreement and the letter of intent, including 
without limitation executing development works, the remaining 
area under residential plots, commercial area, medium rise/high 
rise apartment buildings, super store, petrol pump, education 
SMC 13-2009 
8 
centre, health centre and other recreational places like hotel and 
community clubs if and as provided shall be divided between the 
parties on 57 : 43 ratio, though initially MPCHS in the draft JVA 
submitted along with the financial proposal had proposed 50 : 50 
ratio. It being a transparent transaction, the Suo Motu Case be 
disposed of in the interest of justice.  
10.   
Mr. Zulfiqar Khalid Maluka, who appeared on behalf of 
MPCHS submitted that MPCHS was registered with the Registrar 
of Cooperative Societies, ICT, Islamabad. The objectives of the 
society are to promote economic interests of its members on the 
principles of cooperation, self help, on no profit – no loss basis. 
On account of excellent developmental work, integrity and 
experience, MPCHS is registered by Moody International for 
complying with the requirements of ISO 9001:2008 and ISO 
14001:2004. The Senate of Pakistan commended excellent 
performance of MPCHS and rated it next to Defence Housing 
Society. It had completed different schemes for which CDA had 
issued final NOC. The land in Golra Revenue Estate was 
exempted from acquisition as far back as the year 1968-69 by 
the then President of Pakistan as a mark of respect for the Great 
Pir of Golra Sharif. The provision allowing operation of private 
societies in Sector E-11 is to be seen in the context of adverse 
possession and the consolidation in the said sector of land of 
Golra Revenue Estate spread over in different sectors. MPCHS 
had acted in pursuance of the advertisement duly published in 
the 
press 
dated 
14.03.2008 
wherein 
other 
parties 
also 
SMC 13-2009 
9 
participated and the bid offered by his clients was accepted after 
duly verifying its credentials. The JVA was concluded with MPCHS 
as a result of open bidding in the transparent manner at the 
benefits most suitable to CDA.  
11.   
On the other hand, Mr. Muhammad Akram Sheikh, Sr. 
ASC who appeared as an Amicus Curiae on Court’s notice, 
submitted that the Regulation framed by the CDA was ultra vires 
of the provisions of the CDA Ordinance, 1960. The word “agency” 
defined in section 2 of the Ordinance does not include a private 
company. The powers and duties of the CDA are provided in 
Chapter – III of the Ordinance. Section 11 provides for the 
preparation of master plan and master programme. Section 12 
provides that all schemes will be prepared by a local body or an 
agency of the Federal or Provincial Government. The manner and 
form of a scheme to be prepared by the Authority are provided in 
sections 13 and 14 while the enabling powers of the Authority 
are laid down in section 15. The power of the CDA to enter into 
and perform contracts under clause (v) of subsection 2 of section 
15, as also its power under section 49 of the Ordinance to retain, 
lease, sell, exchange, rent or otherwise dispose of any land 
vested in it are not attracted in the instant case.  
12.   
The learned Amicus Curiae has stated that sections 22 
to 32 of the Ordinance empower the CDA to acquire land as per 
procedure laid down therein, while section 49B read with section 
49D provides for summary ejectment of unauthorized occupants 
with police assistance. But, in the present case, the CDA 
SMC 13-2009 
10 
functionaries never tried to exercise such powers. Chapter VII of 
the CDA Ordinance, 1960 provides “Penalty and Procedure” for 
contravention of any provisions of the Ordinance or Rules or 
Regulations made or schemes sanctioned thereunder. The CDA 
has tried to justify its action under regulation 4(1)A(iv) of the 
Regulation, but the said Regulation does not apply to the facts 
and circumstances of the present case as the same applies to 
unacquired sectoral areas whereas the land in question is an 
acquired land and the CDA has its own mechanism of its 
development under the relevant provisions of the Ordinance and 
Rules or Regulations made thereunder. As regards authority to 
enter into the JVA with any private and public sector agency by 
the CDA Board it is provided in section 4 of the Islamabad Land 
Disposal Regulation, 2005, however, the same is not applicable 
to the instant case in view of regulation 2B of the said Regulation 
and section 2(a) of the Ordinance, which defines the word 
“agency” and private & public sector agencies are not included 
therein. Moreover, the first proviso to regulation 4 of the 
Regulation, 2005 is inconsistent with section 51 of the Ordinance 
and thus has no legal sanction and binding force.  
13. 
 
On the issue of transparency in the JVA, the learned 
Amicus Curiae submitted that the aforesaid clause (iv) of 
Regulation 4(1)A seems to have been added to benefit Mr. K. U. 
Faruqui, the President of MPCHS who was then Cabinet Secretary 
to the Government of Pakistan and had prepared summary for 
the Prime Minister of Pakistan and the first proviso to regulation 
SMC 13-2009 
11 
4 of the Regulation also seems to have been added just to 
swindle a public property valuing billions of rupees for the benefit 
of Mr. K.U. Faruqui, which raises many questions on the 
transparency in the JVA and smacks of mala fides on their part. 
In the concise statement, the CDA functionaries have not 
provided exact khasra numbers of the 54 acres land in question 
and have also not provided names of the occupants at the time 
of acquisition of the land in the years 1968-69 and have also not 
provided the names of the occupants of the land at the time of 
entering into the JVA. Nothing has been said about the 
agreement entered into between one Rashid Mehmood Khan and 
MPCHS whereby said Rashid Mehmood Khan had agreed to get 
the land vacated on payment of commission/service charges @ 
3% of the purchase price though the CDA had its own 
Enforcement 
Directorate, 
which 
was 
authorized 
to 
eject 
unauthorized occupants summarily with the assistance of local 
police.  
14.   
Mr. Akram Sheikh next submitted that regulation 
being delegated legislation have to be consistent with the statute 
under which they were framed. Delegated legislation could be 
described as orders, rules, regulations, schemes, licences and 
instruments, the nomenclature used would be the one laid out by 
the enabling Act. A delegated legislation, in this case the 
Regulation, could be struck down as ultra vires on five main 
grounds, namely, if statutory procedure prescribed for making 
them had not been followed; if they were repugnant to provisions 
SMC 13-2009 
12 
of some other statute; if they conflicted with the parent Act 
itself; if they were uncertain; and if they were unreasonable. The 
regulation in question is not within the parameters envisaged by 
the parent Act, therefore, the same is ultra vires. He has referred 
to the definition of “regulation” from Advanced Law Lexicon, 3rd 
Edition 2005, Black’s Law Dictionary, Seventh Edition. He also 
referred to Khawaja Ahmad Hassan v. Government of Punjab 
(2005 SCMR 186), Mian Ziauddin v. Punjab Local Government 
(1985 SCMR 365), Province of East Pakistan v. Nur Ahmed (PLD 
1964 SC 451), Ummatullah v. Province of Sindh (PLD 2010 
Karachi 236) and Kerala Samsthana Chethu v. State of Kerala 
[(2006) 4 SCC 327].   
15.   
We have heard the learned counsel and have gone 
through the relevant provisions of the CDA Ordinance, 1960 and 
the record produced by the CDA.  
16. 
 
The first question, which requires to be determined by 
this Court in the instant case is whether it was permissible for the 
CDA to have framed a Regulation, which was inconsistent with 
the parent statute, i.e. the Ordinance. It may be seen that 
subsection (1) of Section 12 of the Ordinance provides that the 
CDA may, pursuant to the master plan and the master 
programme, call upon any local body or agency operating in the 
Specified Areas to prepare, in consultation with it, a scheme or 
schemes in respect of matters ordinarily dealt with by such local 
body or agency, and thereupon the local body or agency shall be 
responsible for the preparation of the scheme or schemes, 
SMC 13-2009 
13 
whereas, 
subsection 
(5) 
provides 
that 
no 
planning 
or 
development scheme shall be prepared by any person or by any 
local body or agency except with the concurrence of the 
Authority. Under subsection (2), the schemes may relate to land 
use, zoning and land reservation, public buildings, industry, etc. 
Subsection (3) empowers the Federal Government to add to, 
alter or amend the list of subjects (schemes). Under subsection 
(4), the expenditure on the preparation of such schemes is to be 
borne as agreed to between the CDA and the local body or 
agency while under subsection (5), no planning or development 
shall be prepared by any person or by any local body or agency 
except with the concurrence of the CDA. The term “agency”, as 
defined in section 2(a) means any department or organization of 
the Federal or Provincial Government and includes a corporation, 
or other autonomous or semiautonomous body set up by the 
Federal or Provincial Government. The term “local body” as 
defined in clause (j) ibid means the local body, the local council 
or the municipal body as defined in clauses (23) (24) and (27) of 
Article 3 of Basic Democracies Order, 1959 (P.O. 18 of 1959), or 
the Cantonment Board, having jurisdiction in the area concerned, 
and includes an Improvement Trust within such area.  
17.   
The word ‘regulation’ as defined in Advanced Law 
Lexicon referred to by the learned Amicus Curiae means a rule or 
order prescribed by superior for the management of some 
business or for the government or a company or society. It is a 
rule, ordinance or law by which conduct etc., is regulated. It 
SMC 13-2009 
14 
implies a rule for a general course of action, but does not apply 
to a case in which specific instructions are to be given applicable 
to that case alone. According to Black’s Law Dictionary, the term 
‘regulation’ means a rule or order having legal force issued by an 
administrative agency or a local government. In Khawaja Ahmad 
Hassan (supra), it was held as under: -  
“25.  It must be kept in view that “when the 
legislature confers power on Government to frame 
rules it is expected that such powers will be used only 
bona fide, in a responsible spirit and in the true 
interest of the public and in furtherance of the object 
for the attainment of which such powers were 
conferred”. (Land Realization Co. Ltd. v Postmaster-
General (1950) 66 TLR (Pt. 1) 985, 991, per Romer, J. 
(1950) Ch. 435. It is to be noted that rule-making 
authority which falls within the ambit of subordinate 
legislation as conferred upon the Government by 
virtue of section 191 of the Ordinance is neither 
unlimited 
nor 
unbridled 
and 
the 
limitations 
as 
mentioned in section 191 of the Ordinance must be 
adhered to in letter and spirit. 
29.  It is a well-recognized principle of interpretation 
of statutes that if the rules framed under the statute 
are in excess of the provisions of the statute or are in 
contravention of or inconsistent with such provisions 
then those provisions must be regarded as ultra vires 
of the statute and cannot be given effect to. (Barisal 
Cooperative Central Bank v. Benoy Bhusan AIR 1934 
Cal.537; Municipal Corporation v. Saw Willie, AIR 
1942 Rang 70, 74)". 
30.  In the case of statutory rules the Court can 
always examine the question as to whether the same 
are inconsistent with the statute under which they are 
made. In this regard we are fortified by the dictum 
laid down in Hazrat Syed Shah Mustarshid Ali 
Al-Quadari v. Commissioner of Wakfs AIR 1954 Cal. 
436.  
  
31.  A rule-making body cannot frame rules in 
conflict with or derogating from the substantive 
provisions of the law or statute, under which the rules 
are framed. No doubt that the rules-making authority 
has been conferred upon the Government but "a rule, 
which the rule-making authority has power to make 
will normally be declared invalid only on the following, 
grounds: -  
SMC 13-2009 
15 
  
(1) 
Bad faith, that is to say, that powers 
entrusted for one purpose are deliberately used 
with the design of achieving another, itself 
unauthorized or actually forbidden; 
  
(2) 
that it shows on its face a misconstruction 
of the enabling Act or a failure to comply with 
the conditions prescribed under the Act for the 
exercise of the powers; and 
  
(3) 
that it is not capable of being related to 
any of the purposes mentioned in the Act. 
(Shankar Lal Laxmi Narayan Rathi v. Authority 
under Minimum Wages Act, 1979 MPLJ 15 (DB). 
  
Rules cannot go beyond the scope of the Act M.P. 
Kumaraswami Raja AIR 1955 Mad. 326 nor can they, 
by themselves, enlarge the scope of statutory 
provisions. K. Mathuvadivelu v. RT Officer, AIR 1956 
Mad. 143. They cannot also militate against the 
provision under which they were made. (Kashi Prasad 
Saksena ro. State of U. P. AIR 1967 All. 173. 
  
32.  There is no cavil with the proposition that "the 
power of rule making is an incidental power that must 
follow and not run parallel to the present Act. These 
are meant to deal with details and can neither be a 
substitute for the fundamentals of the Act nor can add 
to them. PLD 1975 Azad J&K 81 = PLJ 1975 Azad J&K 
89. There are two main checks in this country on the 
power of the Legislature to delegate, these being its 
good sense and the principle that it should not cross 
the 
line 
beyond 
which 
delegation 
amounts 
to 
abdication and self-effacement. The only requirement 
of law in such situations is to insist that the 
subordinate body charged with the duty of making 
rules must strictly confine itself within the sphere of 
its authority for the exercise of its subordinate 
legislative power and in each case it is the duty of the 
Courts in appropriate proceedings to be satisfied that 
the rules and regulations so made are:-- 
 
(a)  by the authority mentioned in the Act, and 
(b)  that they are within the scope of the power 
delegated therein. (PLD 1966 Lah. 287). 
 
“36. It is a well-recognized principle of interpretation 
of statutes that if the rules framed under the statutes, 
or bye-laws framed under the rules, are in excess of 
the provisions of the statute or are in contravention of 
or 
inconsistent 
with 
such 
provisions 
then 
SMC 13-2009 
16 
these provisions must be regarded as ultra vires of the 
statute and cannot be given effect to. (Barisal 
Cooperative Central Bank v. Benoy Bhusan, AIR 1934 
Ca1.537, 540).”   
 
In Nur Ahmad’s case (supra), it was held that reading the rule in 
the above manner would be tantamount to enlarging its scope by 
depriving the aggrieved party of the right of being heard which 
he has. The Basic Democracies Order does not deprive him of 
that right. The rule-making Authority therefore, cannot clothe 
itself with power which the Statute itself does not give. In Mian 
Ziauddin’s case (supra), it was held that the rules framed under 
the Ordinance could not go beyond and over-reach the Ordinance 
itself. In Ummatullah’s case (supra), it was held that Strong 
presumption as to constitutionality, legislative competence, 
legality, reasonableness and intra vires attached to a statute is 
also 
attached 
with 
full 
force 
to 
subordinate 
legislative 
instruments as well, such presumption though refutable, onerous 
burden is cast on person challenging validity or vires of 
legislative instrument, on any count. In order to strike down a 
subordinate legislative instrument, challenger has to show that 
any of the disqualification exist namely (a) it impinges upon 
fundamental rights guaranteed under the Constitution (b) it is in 
conflict with any Constitutional provision (c) it is beyond the 
legislative competence of the delegatee making it, and or (d) it is 
violative or beyond the scope of the parent or enabling statute. 
(see KBCA v Hashwani Sales and Services Ltd. PLD 1993 SC 210 
@ 228 C, Maharashtra State Board of Secondary Education and 
Higher Secondary Education and another v. Paritosh Bhupesh 
SMC 13-2009 
17 
Kurmarsheth AIR 1984 SC 1543). It was further held that when 
the parent law i.e. Sindh Buildings Control Ordinance 1979 does 
not provide for matter relating to change in land use 
classification, or conversion of one category of land into another 
it cannot through delegated legislative instrument confer, bestow 
or delegate any power and duties on “Concerned Authorities”, 
which powers and performance of duty are not within its own 
domain or scope of authority. It is settled principle of law that 
what cannot be done directly cannot be done or allowed to be 
done indirectly. It is also trite principle of law; what is not 
possessed can neither be conferred nor delegated. In Kerala 
Samsthana Chethu’s case (supra), it was held that the power of 
the Government was to make rules only for the purpose of 
carrying out the purposes of the Act and not dehors the same. In 
other words, rules cannot be framed in matters that are not 
contemplated under the Act. Reference in the above case was 
made 
to 
Bombay 
Dyeing 
& 
Mfg. 
Co. 
Ltd. 
v. 
Bombay 
Environmental Action Group [2006 (3) SCALE 1], wherein it was 
held that a policy decision, as is well known, should not be lightly 
interfered with but it is difficult to accept the submissions made 
on behalf of the learned counsel appearing on behalf of the 
Appellants that the courts cannot exercise their power of judicial 
review at all. By reason of any legislation whether enacted by the 
legislature or by way of subordinate legislation, the State gives 
effect to its legislative policy. Such legislation, however, must not 
be ultra vires the Constitution. A subordinate legislation apart 
SMC 13-2009 
18 
from being intra vires the Constitution should not also be ultra 
vires the parent Act under which it has been made. A subordinate 
legislation, it is trite, must be reasonable and in consonance with 
the legislative policy as also give effect to the purport and object 
of the Act and in good faith. In the case of Vikramaditya Pandey 
v. Industrial Tribunal, Lucknow [(2001) 2 SCC 423] the Indian 
Supreme Court has held that the provisions of the regulations in 
question to the extent of their inconsistency with any of the 
provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur 
Vanijya Adhishthan Adhiniyam, 1962, Workmen Compensation 
Act, 1923 and any other Labour Laws for the time being in force, 
if applicable to any cooperative society or class of cooperative 
societies shall be deemed to be inoperative. By plain reading of 
the said Regulation it is clear that in case of inconsistency 
between the Regulations and the provisions of the Industrial 
Disputes Act, 1947, the State Act, the Workmen Compensation 
Act, 1923 and any other labour laws for the time being in force, if 
applicable to any cooperative society or class of cooperative 
societies to that extent Regulations shall be deemed to be 
inoperative. In other words, the inconsistent provisions contained 
in the Regulations shall be inoperative, not the provisions of the 
other statutes mentioned in the Regulation. 
18.   
From an examination of the above case law it is clear 
that a rulemaking body cannot frame rules in conflict with, or in 
derogation of, the substantive provisions of the law or statute, 
under which the rules are framed. Rules cannot go beyond the 
SMC 13-2009 
19 
scope of the Act. Thus, we are inclined to hold that no rule can 
be made which is inconsistent with the parent statute, whereas, 
no regulation can be made inconsistent with the parent statute or 
the rules made thereunder and the provisions of these rules or 
regulations, as the case may be, to the extent of their 
inconsistency with the parent statute or the rules shall be 
inoperative.  
19.   
The thrust of the arguments on the issue whether the 
CDA was authorized to enter into JVA with a private entity for 
preparation of a scheme in terms of section 12 of the Ordinance 
was that it was allowed to do so in terms of the provision of 
regulation 4(1)A(iv) of the Regulation, which provides that the 
development of land in the zones shall be subject to the following 
conditions: -  
A.  
Un-acquired Sectoral Areas: In these areas of Zone-1, 
 
(i) 
land 
shall 
be 
acquired 
under 
a 
phased 
programme and developed by the Authority in 
accordance with the land use pattern spelled out 
in the Master plan;  
(ii) 
no sale/ purchase of land which entails change in 
land use shall be allowed;  
(iii) no construction of houses or buildings shall be 
allowed. However, repair of old houses and 
expansion of existing houses may be allowed by 
the Authority to the native residents subject to 
the conditions that the site is located within the 
main body of the village. The covered area of 
such construction shall not exceed 1000 Square 
feet including expansion and such permission 
shall not in any way impede the right of the 
SMC 13-2009 
20 
Authority to acquire the property whenever 
needed; and 
(iv) no private scheme of any kind whatsoever shall 
be allowed, except in sector E-11. Schemes in E-
11 will be regulated according to the provisions 
applicable to schemes in Zone 2.    
 
Above clause (iv) is couched in negative terms, inasmuch as it 
provides that no private scheme of any kind whatsoever shall be 
allowed in Zone-1. However, as an exception, a private scheme 
is allowed to be launched in Sector E-11, but the same will be 
regulated by the provisions applicable to schemes in Zone-2.  It 
may be noted that the said provision is not in consonance with 
the mandate and scope of section 12 of the Ordinance, which 
lays down that all schemes pursuant to the master plan and the 
master programme are to be prepared by a local body or agency. 
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 E-11 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) & (j) of the Ordinance is 
SMC 13-2009 
21 
inconsistent with the Ordinance, and hence inoperative. Such an 
arrangement is against the primary aim 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 
SMC 13-2009 
22 
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. 
SMC 13-2009 
23 
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.   
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 
SMC 13-2009 
24 
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. . The award of contract, 
whether it is by a private party or by a public body or 
the State, is essentially a commercial transaction. In 
SMC 13-2009 
25 
arriving at a commercial decision considerations which 
are of paramount are commercial considerations. The 
State can choose its own method to arrive at a 
decision. It can fix its own terms of invitation to 
tender and that is not open to judicial scrutiny. It can 
enter into negotiations before finally deciding to 
accept one of the offers made to it. Price need not 
always be the sole criterion for awarding a contract. It 
is free to grant any relaxation, for bona fide reasons, 
if the tender conditions permit such a relaxation. It 
may not accept the offer even though it happens to be 
the highest or the lowest. But the State, its 
corporations, 
instrumentalities 
and 
agencies 
are 
bound to adhere to the norms, standards and 
procedures laid down by them and cannot depart from 
them arbitrarily. Though that decision is not amenable 
to judicial review, the Court can examine the decision 
making process and interfere if it is found vitiated by 
mala fides, unreasonableness and arbitrariness. The 
State, its corporations, instrumentalities and agencies 
have the public duty to be fair to all concerned. Even 
when some defect is found in the decision making 
process the Court must exercise its discretionary 
power under Article 226 with great caution and should 
exercise it only in furtherance of public interest and 
not merely on the making out of a legal point. The 
Court should always keep the larger public interest in 
mind in order to decide whether its intervention is 
called for or not. Only when it comes to a conclusion 
that 
overwhelming 
public 
interest 
requires 
interference, the Court should intervene.”   
 
In Tata Cellular v. Union Of India (AIR 1996 SC 11) = [(1994) 6 
SCC  651], it was held as under: -   
“85. It cannot be denied that the principles of judicial 
review would apply to the exercise of contractual 
powers by Government bodies in order to prevent 
arbitrariness or favoritism. However, it must be clearly 
stated that there are inherent limitations in exercise of 
that power of judicial review. Government is the 
guardian of the finances of the State. It is expected to 
protect the financial interest of the State. The right to 
refuse the lowest or any other tender is always 
available to the Government. But, the principles laid 
down in Article 14 of the Constitution have to be kept 
in view while accepting or refusing a tender. There can 
be no question of infringement of Article 14 if the 
Government tries to get the best person or the best 
quotation. The right to choose cannot be considered to 
be an arbitrary power. Of course, if the said power is 
SMC 13-2009 
26 
exercised for any collateral purpose the exercise of 
that power will be struck down. 
86.  Judicial quest in administrative matters has been 
to find the right balance between the administrative 
discretion to decide matters whether contractual or 
political in nature or issues of social policy; thus they 
are not essentially justifiable and the need to remedy 
any unfairness. Such an unfairness is set right by 
judicial review.  
89. 
Observance of judicial restraint is currently the 
mood in England. The judicial power of review is 
exercised 
to 
rein 
in 
any 
unbridled 
executive 
functioning. The restraint has two contemporary 
manifestations. 
One 
is 
the 
ambit 
of 
judicial 
intervention; the other covers the scope of the court's 
ability to quash an administrative decision on its 
merits. These restraints bear the hallmarks of judicial 
control over administrative action. 
90. 
Judicial review is concerned with reviewing not 
the merits of the decision in support of which the 
application for judicial review is made, but the 
decision-making process itself.”  
In Sterling Computers Ltd. v. M/s. M. & N. Publications Ltd, (AIR 
1996 SC 51), it was held as under: -  
19. 
While exercising the power of judicial review, in 
respect of contracts entered into on behalf of the 
State, the Court is concerned primarily as to whether 
there has been any infirmity in the “decision making 
process”. In this connection reference may be made to 
the case of Chief Constable of the North Wales Police 
v. Evans, [1982] 3 All ER 141, where it was said that 
“The purpose of judicial review.” 
“... is to ensure that the individual receives fair 
treatment, and not to ensure that the authority, 
after according fair treatment, reaches on a 
matter which it is authorized or enjoined by law 
to decide for itself a conclusion which is correct 
in the eyes of the court.” 
By way of judicial review the court cannot examine 
the details of the terms of the contract which have 
been entered into by the public bodies or the state. 
Courts have inherent limitations on the scope of any 
such enquiry. But at the same time as was said by the 
House of Lords in the aforesaid case, Chief Constable 
of the North Wales Police v. Evans (supra), the Courts 
SMC 13-2009 
27 
can certainly examine whether ‘decision making 
process’ was reasonable, rational not arbitrary and 
violative of Article 14 of the Constitution.  
20. 
If the contract has been entered into without 
ignoring the procedure which can be said to be basic 
in nature and after an objective consideration of 
different options available taking into account the 
interest of the State and the public, then Court cannot 
act as an appellate authority by substituting its 
opinion in respect of selection made for entering into 
such contract. But, once the procedure adopted by an 
authority for purpose of entering into a contract is 
held to be against the mandate of Article 14 of the 
Constitution, the Courts cannot ignore such action 
saying that the authorities concerned must have some 
latitude or liberty in contractual matters and any 
interference by court amounts to encroachment on the 
exclusive right of the executive to take such decision.  
… … … …  
26.  The cases aforesaid on which reliance was placed 
on behalf of the appellants, have also reiterated that 
once the State decides to grant any right or privilege 
to others, then there is no escape from the rigour of 
Article 14; the executive does not have an absolute 
discretion, certain precepts and principles have to be 
followed, the public interest being the paramount 
consideration. It has also been pointed out that for 
securing the public interest one of the methods 
recognised is to invite tenders affording opportunity to 
submit offers for consideration in an objective 
manner. However, there may be cases where in the 
special facts and circumstances and due to compelling 
reasons which must stand the test of Article 14 of the 
Constitution, departure of the aforesaid rule can be 
made. This Court while upholding the contracts by 
negotiation in the cases referred to above has 
impressed as to how in the facts and circumstances of 
those cases the decisions taken by the State and the 
authorities concerned were reasonable, rational and in 
the public interest. The decisions taken in those cases 
by the authorities concerned, on judicial scrutiny were 
held to be free from bias, discrimination and under the 
exigencies of the situation then existing to be just and 
proper. On the basis of those judgments it cannot be 
urged that this court has left to the option of the 
authorities concerned whether to invite tenders or not 
according to their own discretion and to award 
contracts ignoring the procedures which are basic in 
nature, taking into account factors which are not only 
irrelevant but detrimental to the public interest.”  
SMC 13-2009 
28 
25.   
A part of the argument vehemently canvassed at the 
bar was that the main purpose of awarding contract to this party 
was to get the CDA land cleared off from the illegal occupants, 
which the CDA was unable to do. In this behalf, reference was 
made to agreements containing recitals of payment of different 
sums of money made to certain persons in lieu of their vacating 
such land. According to the aforesaid agreements, huge sums of 
money running into millions of rupees were allegedly paid. But, 
surprisingly, no details of payment, such as bank drafts, pay 
orders, cheques, etc. were given in the said agreements. It is not 
believable that such large sums of money were paid in cash. 
Besides, the agreements in question were documents not 
registered in accordance with law. There was, so to say, no valid 
proof of payment furnished to our satisfaction. Further, no details 
of the land allegedly in the illegal possession of the land grabbers 
along with the names/number of encroachers were provided. 
Thus, looked at from any angle, the transaction appears to be a 
sham deal. The whole exercise appears to be an eyewash. This 
also negates the claim of huge investment made by the MPCHS 
in this project.   
26.   
Having held that the CDA was not competent to allow 
private societies to operate in Zone-1, even otherwise the 
transaction could, in no manner, be termed as transparent. There 
was complete absence of fair and open competition in the bidding 
process where only three parties had submitted the expression of 
interest, two of whom did not meet the requirement of 
SMC 13-2009 
29 
submission of technical and financial proposals along with the 
bid/letter of intent, thus practically leaving only one party in the 
field. Such a situation did call for making a fresh advertisement, 
which was not done. On the other hand, the CDA Board, in its 
meeting 
held 
on 
18.07.2009, 
approved 
planning 
and 
development of an area measuring 53.86 acres owned by the 
CDA in the northern strip of Sector E-11 on joint venture basis 
with MPCHS with the following land use: -  
Built up area 
Residential apartments 
14 acres 
25.99 % 
Commercial 
3.73 acres 
6.92 % 
Social Services 
3.41 acres 
6.33 % 
Residential plots 
5.94 acres  
11.03 % 
 
? Roads 
 
 
15.89 acres 
? Green area 
 
2.8 acres 
? Proposed land use analysis of the scheme is given 
below: -  
Schedule of plots 
S. No. 
Use 
Area in kanals 
%age 
1. 
Residential plots  
  47.58 
11.05 
2. 
High rise and medium 
rise plots 
112.05 
25.99 
3.  
Commercial 
  29.86 
  6.92 
4. 
Institutional 
  70.51 
16.35 
5.  
Education & health 
  27.28 
  6.33 
6. 
Roads 
127.12 
29.05 
7. 
Parks & open spaces 
 16.64 
  3.86 
 
Total: 
430.39 
  100 
 
 
 
 
 
The non-saleable CDA area was shown as under: -  
(i) 
Road area, parking & footpath 
102.15 kanal 
(ii) 
Parks, green area & Nullahs 
 
  32.27 kanal 
(iii) 
Mosque  
 
 
 
 
  03.68 kanal 
(iv) 
Facilitation centre  
 
 
  03.04 kanal 
(v) 
Fire station   
 
 
 
  01.89 kanal 
Total: 
 
143.08 kanal  
SMC 13-2009 
30 
 
The break-up of the non-divisible/saleable area is as under: -  
(i) 
Five star hotel plot No. 88 
 
22.28 kanal 
(ii) 
Super Mart plot No. 69  
 
14.95 kanal  
(iii) 
Filling station plot No. 68 
 
  3.61 kanal 
(iv) 
Hospital plot No. 64 
 
 
  6.00 kanal 
(v) 
Education enclave plot No. 63  
21.88 kanal 
(vi) 
Entertainment enclave plot No. 65  21.87 kanal 
 
 
 
 
 
 
 
Total: 
90.59 kanal  
 
The break-up of the divisible/saleable area is as under: -  
 
A 
RESIDENTIAL AND APARTMENTS PLOTS  
 
CDA 57 % 
 
 
 
(i) 
Plot No. 87 G+ 15 
 
 
27.54 kanal  
 
 
(ii) 
Plot No. 86 G+ 15 
 
 
28.46 kanal 
 
 
(iii) Plot No. 82 G+ 6 
 
 
07.93 kanal 
 
 
 
 
 
 
 
Total: 
63.93 kanal  
 
MPCHS 43 % 
 
(i) 
Plot No. 85 G+ 15 
 
 
21.96 kanal 
 
(ii) 
Plot No. 84 G+ 15 
 
 
20.22 kanal 
 
(iii) Plot No. 83 G+ 6 
 
 
05.90 kanal 
 
 
 
 
 
 
 
 
Total: 
48.08 kanal  
 
 
B 
COMMERCIAL PLOTS  
 
CDA 57 % 
 
(i) 
Plot No. 80 G+ 4 size 61’x80’ 
542.22 sq. yds.  
(ii) 
Plot No. 81 G+ 4 size 61’x80’ 
542.22 sq. yds.  
(iii) Plot No. 77 G+ 4 size 70’x90’ 
700.00 sq. yds.  
(iv) Plot No. 72 G+ 4 size 66’x70’ 
513.33 sq. yds.  
(v) 
Plot No. 73 G+ 4 size 66’x70’ 
513.33 sq. yds.  
(vi) Plot No. 70 G+ 4 size 70’x70’ 
544.44 sq. yds.  
(vii) Plot No. 71 G+ 4 size 70’x70’ 
544.44 sq. yds.  
 
 
 
 
Total: 
3899.98 sq. yds. = 06.45 kanal  
 
MPCHS 43 % 
 
(i) 
Plot No. 74 G+ 4 size 66’x70’ 
513.33 sq. yds.  
(ii) 
Plot No. 75 G+ 4 size 66’x70’ 
513.33 sq. yds.  
(iii) Plot No. 76 G+ 4 size 70’x95’ 
738.88 sq. yds.  
(iv) Plot No. 78 G+ 4 size 66’x80’ 
586.66 sq. yds.  
(v) 
Plot No. 79 G+ 4 size 66’x80’ 
586.66 sq. yds.  
 
 
 
 
Total: 
2938.87 sq. yds. = 04.86 kanal  
 
 
 
SMC 13-2009 
31 
C 
RESIDENTIAL PLOTS  
 
CDA 57 % 
 
 
(i) 
Plot No. 61, 62 
 
 
(2 each measuring 35’x80’ = 311.11 sq. yds)  622.22 sq. yds  
 
(ii) 
Plot No. 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 
24, 25, 26, 35, 38, 39, 40, 41, 42, 43 and 44  
 
 
(22 each measuring 50’x90’ = 500 sq yds.)   11000.00 sq yds. 
  
(iii) Plot No. 1, 9, 10, 18, 27, 28, 37 and 45  
 
 
(8 each measuring 60’x90’ = 600 sq yds.)   4800.00 sq yds.  
 
 
 
 
Total: 
16422.22 sq yds. = 27.14 kanal  
 
MPCHS 43 % 
 
 
(i) 
Plot No. 46 to 60 
 
 
(15 each measuring 35’x80’ = 311.11 sq yds.) 4666.65 sq yds.  
(ii) 
Plot No. 2 to 8, 29 to 34  
 
 
(13 each measuring 50’x90’ = 500 sq yds.)      6500.00 sq yds.  
(iii) Plot No. 19 & 36  
 
 
(2 each measuring 60’x90’ = 600 sq yds).      1200.00 sq yds.  
 
 
 
 
Total: 
12366.65 sq yds. = 20.44 kanal  
 
 
D 
SPECIALIZED BUSINESS/OFFICE BUILDING  
 
CDA 57 % 
 
 
 
Plot No. 66 G+18  
 
 
 
15.05 kanal 
 
MPCHS 43 % 
 
 
 
Plot No. 67 G+18  
 
 
 
11.31 kanal 
 
 
 
 
Grand total: 53.87 acres (430.93 kanal)  
 
Terms and conditions, such as the ratio of plots to be offered to 
the 
intending 
bidders, 
etc., 
were 
not 
published 
in 
the 
advertisement and a full picture was not given to them. If the 
advertisement had mentioned the details of the benefits to be 
offered to the bidders, e.g., share in the plots for residential, 
commercial, 5-star hotels and multi-storeyed buildings, certainly 
more parties would have been attracted and so better offers 
would have come.    
SMC 13-2009 
32 
27.   
By the earlier advertisement published in 2005, 
expression of interest was invited from well reputed national and 
international development firms having vast experience. They 
were required to provide the detail of company/consortium, 
experience and list of housing projects/construction projects 
undertaken by them. 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/societies 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 reliable, 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 
SMC 13-2009 
33 
from national and international development firms, private 
parties/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, 
justly 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 
SMC 13-2009 
34 
an evaluation committee consisting of the following officers of the 
CDA: -  
(i) 
Financial Advisor/Member  
(ii) 
Member Estate  
(iii) Member (Planning & Design)  
(iv) Head of Treasury  
(v) 
Director PMO  
(vi) 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 
financial 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 
bid 
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 
SMC 13-2009 
35 
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 
SMC 13-2009 
36 
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 public 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. Right to life has been 
explained and interpreted by the Superior Courts in a large 
number of cases. It includes right to livelihood, right to acquire, 
hold and dispose of property, and right to acquire suitable 
accommodation, which could not hang on to fancies of individuals 
in authority, and includes all those aspects of life which go to 
make a man’s life meaningful, complete and worth living. It 
SMC 13-2009 
37 
implies the right to food, water, decent environment, education, 
medical care and shelter. A fundamental right cannot be 
snatched away or waived off pursuant to any agreement. This 
Court, in the case of Moulvi Iqbal Haider v. Federation of Pakistan 
(PLD 2006 SC 394) dealt with a somewhat similar transaction as 
under: -   
“17. It has been noted that deal between respondents 
Nos.1 and 2 has not been made in a transparent 
manner…… Essentially, when a party makes investment, 
may be meager one, it would make money by granting 
licences, franchise, etc. for which it will enter into 
agreements with local and international parties and the 
burden of the same ultimately is to be borne by the 
general public, in terms of tickets, amusement fee etc. … …  
20. 
At this juncture, to unfold the mala fides on the part 
of respondent No.1 i.e. C.D.A., it is to be noted that in the 
publication, neither specification of the areas of Jubilee 
Park Markaz F-7 was mentioned, on which Mini Golf Course 
was to be developed nor the period for which the lease 
was intended to be given. Inasmuch as, it was not 
disclosed in the publication that what is the reserved lease 
money fixed by the C.D.A. because in absence of such 
information, the genuine bidder could not offer bid 
accurately except those bidders who have the blessings of 
the authority competent to accommodate any one of them 
out of way. It is also important to be kept in mind that 
volume of the lease money depends upon the area of the 
land, as we are of the opinion that if C.D.A. had disclosed 
in publication that an area of 5.05 acres is available for the 
purpose of development of Mini Golf Course, there was 
every possibility of fetching much higher lease money, 
than one, on which it has been given to respondent No.2. 
We are told that the plot is situated in the commercial area 
of Markaz F-7, where the prices of the property are 
extremely on a high side but with ulterior intentions, this 
important information was concealed.  
 
21. 
Be that as it may, out of both the pre-qualified 
interested parties, D M/s. Family Entertainment Centre 
offered 2.5 million (Rs.25 lacs) per annum for the subject 
matter, whereas respondent No.2 offered Rs.6 lacs per 
annum rent for the subject matter for a period of at least 
15 years, with 25% increase on every three years. It is 
stated that the C.D.A. evaluated both the offers and 
rejected the one quoted by M/s. Family Entertainment 
Centre, as it has failed to secure requisite points obtained 
by respondent No.2, as such respondent No.2 was called 
upon to increase/match the bid up to Rs.2.5 million. 
However, the report of evaluation committed is not 
SMC 13-2009 
38 
available to ascertain as to whether it was carried out 
independently or otherwise. Thus it is held that in such like 
situation, C.D.A. if at all was interested to lease out the 
Public Park, instead of developing the same, may have 
invited fresh proposals instead of calling upon respondent 
No.2 to enhance the lease money because in granting 
contracts for the purpose of fetching money to support the 
public exchequer, the competent authority had an 
obligation to adopt such devices on the basis of which 
more money could be procured as it has been held in 
Captain-PQ Chemical Industries (Pvt.) Ltd. v. A.W. 
Brothers (2004 SCMR 1956). C.D.A. seems to be 
interested to grant lease of Jubilee Park to respondent 
No.2, as it is evident from preceding narration of facts. The 
negotiation with respondent No.2 culminated in its success 
because of its agreeing to match the bid to the extent of 
Rs.2.5 million, which was however, subject to extending 
him extraordinary benefit in formulating the conditions of 
agreement, two of them are most important, which may 
be referred to from the conditions reproduced herein above 
i.e. being Nos.4 & 5, which, later on, became part of the 
lease agreement dated 4th June, 2005 as Conditions No.14 
and 15. These concessions were allowed to respondent 
No.2 
contrary 
to 
the 
restriction 
imposed 
in 
the 
advertisement published on 14th August, 2004 namely, no 
heavy civil structure will be allowed, open and soft 
landscaping will be done, whereas contrary to it, 
respondent No.2 has been allowed to construct arcs of 
1000 sq. yards besides 1500 sq. yards for family and 
children activities and eating court, which is impossible 
unless a concrete flooring is made. It is also to be seen 
that nothing was mentioned in the publication in respect of 
concession expected to be available to successful bidders 
in terms of period of lease, the area, as it has been 
pointed out herein above, the period of completion of 
project and commencing date for the purpose of making 
payment of lease money i.e. after a period of about 20 
months, etc. 
 
22. 
It is an unfortunate aspect of the case that prime 
land situated in one of the most posh area of the capital 
city has been leased out in a most opaque manner, 
causing colossal loss to the public exchequer for which 
C.D.A. had no authority, as discussed above. … … …  
……….. 
 
23. 
Thus, in view of above discussion, it is held that the 
mala 
fides 
of 
respondent 
No.1 
in 
concluding 
the 
transaction with respondent No.2 are abundantly apparent 
on record. This Court in the case of Government of West 
Pakistan v. Begum Agha Abdul Kharim Shorash Kashmiri 
(PLD 1969 SC 14) has held that mala fide is to be proved 
on record. This view has been reiterated by this Court in 
the case of Ahmad Hassan v. Government of Punjab (2005 
SCMR 186). Therefore, applying the test laid down in these 
judgments on the facts of the present case, we are inclined 
SMC 13-2009 
39 
to hold that in view of the admitted facts on record, mala 
fides on the part of respondent No.1 in granting lease to 
respondent No.2 are apparent, thus, the lease agreement 
dated 4th June, 2005 is not transparent.”    
 
21.3233.   
For the foregoing reasons, it is held and directed 
as under: -  
(a) 
Clause (iv) of regulation 4(1)A of the Regulation is 
declared to be inconsistent with sections 12 and 13 
read with section 2(a) & (j) and consequently the JVA 
entered with MPCHS is rendered inoperative and 
ineffective qua CDA.  
(b) 
The CDA Board is directed to takeover the project and 
complete the same in accordance with the provisions 
of the Ordinance.  
(c) 
The Chairman CDA shall ensure implementation of the 
above direction and submit compliance report within a 
period of one month from the date of this judgment.  
(d) 
MPCHS will, however, be at liberty to pursue the 
remedy for recovery of any amount spent on the 
project in accordance with law.   
 
 
CHIEF JUSTICE 
 
 
     JUDGE 
 
Islamabad 
 
 
Announced in Court on 15.04.2011.  
 
 
 
 
 
 
 
 
 
C.J.  
 
APPROVED FOR REPORTING