HIGH COURT CASE

CONSTITUTION-01
(GRAND HAYAT HOTEL)

CAPITAL DEVELOPMENT AUTHORITY

LAW WING

Subject: - ENGAGEMENT OF SENIOR COUNSEL IN W.P. 2621/2023 TITLED

BNP (PVT.) LTD. AND ANOTHER -VS-FEDERATION OF
PAKISTAN AND ANOTHER (REGARDING CONSTITUTION ONE
AVENUE, IMPUGNS UNILATERAL TERMINATION OF LEASE
CONTRACT BY CDA)

AND

WRIT PETITION NO: 1014/2023 TITLED BNP (PRIVATE)

LIMITED AND OTHERS VERSUS MR. NOOR ALAM KLHAN AND
OTHERS REGARDING CONSTITUTION 01, GRAND HAYAT
HOTEL.

It is submitted that the Writ Petition No. 1014/2023 case was fixed for
hearing before the Honourable Islamabad High Court, Islamabad on 11-08-2023
wherein following order has been passed:- (Flag-A)
“CM No.2359 of 2023.
This is an application seeking permission to withdraw the CM
No.1733 of 2023 and also to file a fresh writ petition against the cancellation
of lease as well as application for execution.
2. Learned counsel for the applicant/ petitioner submits that since
the last date of hearing, the Hon’ble Supreme Court of Pakistan has issued
the detailed judgment in the review application, hence the instant
application for permission to withdraw and file a fresh execution petition.
3. In light of the submissions made by the learned counsel for the
applicant/petitioner and for the reasons stated therein, the application is
allowed. The CM No.1733 of 2023 is dismissed as withdrawn. The
petitioner may file a fresh execution application as well as a writ petition
against the cancellation of lease, if so advised.”

2. Background of the matter is that in the year 2004 the authority published an
advertisement in leading daily newspaper, inviting requests for pre-qualification
from interested parties for the construction of a five star hotel along-with serviced
apartments and related facilities at plot measuring 13.5 acres 65098 sq. Yards
situated at the end of the constitution avenue. Four distinct judicial persons had
collusively submitted a bid under the name BNP group and was pre-qualified:
 BISMISLLAH TEXTILE PVT LTD
 NIAGARA MILLS PVT LTD
 PARAGON CITY PVT LTD
 BELHASA CITY PVT LTD

A bid dated 09-03-2005 for Rs. 75,000/- per sq. yards was accepted by the authority
and declared as successful bidder the total consideration required to be paid in 15
years instalments was Rs, 4,888.235 million. The acceptance of bid was subject to
furnishing an irrevocable bank guarantee and a performance guarantee and was
required to pay 15% of the bid amount in 45 days. Later on after the 2005
earthquake the company applied to the prime minister for rescheduling of payment
and Resultantly on 16-08-2007 the authority approved the rescheduling of payment
whereupon the company paid 120 million and remaining amount was to be paid in
12 equal yearly installments of Rs. 334833125/-. Building plans were approved on
23-03-2008 which included hotel tower, apartments and service apartments. Total
apartments 200 and approval was valid for 05 years. The civil aviation authority
raised an objection and instructed that not to construct more than a 33.40 feet tall
building as the approved plans allowed construction upto 725 feet in height. Later
on 07-12-2012 a settlement was reached between authority and the company and
the board approved new terms whereby the payment clause was amended. On 07-
12-2012the 2nd amended lease deed was executed, having the effect of extending
payment of installments till 2026 and the height was reduced from 45 story to 23
story. In audit report for year 2011-2012 it was alleged that authority illegally
altered the terms of the lease deed since the terms of the contract once entered into
could not be varied. Resultantly PAC issued directives. NAB sent letter to state
bank of Pakistan and separate inquiry was initiated by FIA. On 08-03-2016 the
board of the authority held its meeting and constituted a committee to afford an
opportunity for hearing to the petitioner / company. On 01-07-2016 the board of the
authority in its meeting considered the report submitted by the committee. On 19-
07-2016 the company through its authorized representative appeared before the
board and explained its position. On 29-07-2016 the board, in its meeting decided to
cancel the lease deed of the company for violating the byelaws and the regulations.
240 apartments were sold for an amount 7171.101 million out of which 5398.050
million was received by the company. Cancellation of plot led to the filing of W.P
No. 3043/2016 titled “BNP PVT LTD etc vs CDA” was filed in the Honourable
Islamabad high court, Islamabad assailing the decision of the board of the CDA in
its 13th meeting, whereby plot (measuring 13.5 acres 65098 sq. Yards situated at the
end of the constitution avenue) allotted on the basis of lease to MS BNP (PVT) ltd
has been cancelled. BNP along-with other parties who paid sale consideration for
the respective apartments in the building. WP NO. 3043/2016 was dismissed with
cost by the Honourable Islamabad high court vide order dated 03-03-2017. ICA
NO. 140/2017 TITLED SARMAD FARAZ VS CDA and another was filed
against order dated 03-03-2017 and the same was dismissed being without merits
vide order dated 03-9-2018. Against order dated 03-09-2018 CPLA NO. 3739/2018
along-with connected petitions was filed before the Honourable supreme court of
Pakistan wherein leave to appeal was granted vide order dated 25-10-2018. CIVIL
APPEAL NO. 1265 TO 1282 /2018 along-with connected appeals was fixed for
hearing before the Honourable court on 09-01-2019 wherein the Honourable court
set-aside the impugned judgments subject to payment of a total sum of Rs.17.5
billion (which includes the amount already paid) by one of the appellants, i.e. BNP
(PVT) LTD within a period eight years from today in equal yearly installments.
Different review petitions were filed against the above said judgment dated 09-01-
2017. The stance of the authority / board decision dated 04-01-2020 was submitted
in the Honourable court and lastly CMA / report on behalf of the authority
regarding different aspects of the case was submitted in the Honourable court on
14-12-2022. The Honourable Supreme Court of Pakistan dismissed all the Review
Petitions and miscellaneous applications as having become infructuous. (Flag-B)
1. The subject Writ Petition has been filed by BNP Pvt Ltd before the
Honourable Islamabad High Court, Islamabad regarding Constitution Avenue
Project impugns the actions of the Chairman of the Public Accounts Committee
along-with CM No. 1733/2023 under Section 12(2) CPC whereas CM No.
1733/2022 has been withdrawn by the Petitioner with the request to file a fresh Writ
Petition against the cancellation of lease vide order dated 11-08-2023.
4. Now the main Writ Petition is pending wherein Mr. Shehriyar Tarrar,
Advocate / Addll. Legal Advisor and Muhammad Khalid Mehmood Khan,
Advocate/CDA Counsel are appearing on behalf of CDA. As a huge amount of
CDA is involved in the matter, therefore, it is appropriate that a Senior Advocate
may be engaged in the subject Case to defend the stance of CDA. Following names
of Senior Advocates are proposed:-
i. Ashtar Ausaf Ali, Sr. ASC
ii. Muhammad Munir Paracha, Sr.ASC
iii. Kashif Ali Malik, ASC

5. The instant file may be referred to worthy Chairman CDA through Member
(Admin) for accord of approval regarding engagement of Sr. Counsel in the subject
case against professional fee amounting to Rs.__________________ under item
No. 05(b) of Revised Schedule of Administrative Powers-2007.
 CAPITAL DEVELOPMENT AUTHORITY
LAW WING

NO. CDA-41(59)(5781)-Law/2023/ Islamabad: October___,2023.

BRIEF
Subject: - WRIT PETITION NO: 1014/2023 TITLED BNP (PRIVATE)
LIMITED AND OTHERS VERSUS MR. NOOR ALAM KLHAN AND
OTHERS REGARDING CONSTITUTION 01, GRAND HAYAT
HOTEL.

Ref:- Section Office (MCI), Ministry of Interior, Government of Pakistan letter

No.F.No.9-5/2023-CDA-II dated 11-10-2023.

The case relates to a project commonly known as “Grand Hayat Hotel”

(BNP) situated at the end of Constitution Avenue alongside the Convention Center. In the
year 2004 the location measuring 13.5 Acres 65098 Sq. Yards was leased out to the
Company namely BNP (Pvt) Ltd for the purpose of construction of five star hotel along-
with serviced Apartments and related facilities later on some alteration were made in the
drawing and the apartments were increased and offered to the general public on
commercial basis. This infamous case remained under litigation and investigation from
considerable time. At the end the Honourable Supreme Court of Pakistan decided the
matter in the following terms:-

“…the impugned Judgment(s) is set aside, subject to payment of a total

sum of Rs. 17.5 billion (which includes the amount already paid) by one of
the appellants, i.e. BNP (Pvt) Ltd (BNP) within a period of eight years
from today in equal installments. An unconditional bank guarantee to
secure each installment shall be furnished by the said company in favour
of Capital Development Authority (CDA). CDA shall have the right to en-
cash the guarantee in case BNP defaults in payment of any installment on
its due date….”
2. All the parties including CDA, BNP and Private Parties field Review
Petitions in the Honourable Supreme Court of Pakistan and the same was dismissed as
infructuous as the matter was subjudice in the Honourable Islamabad High Court. In the
meanwhile CDA cancelled the lease due to non-payment. Further on the direction of Public
Accounts Committee (PAC) investigation were ordered but the same was challenged in the
Honourable Islamabad High Court and obtained the stay order. In this case the Petitioner
(BNP) sought direction of the Honourable Court to convert the Writ Petition to an
Execution Petition and to execute the Supreme Court order dated 09-01-2019 in the manner
proposed in this application. This Application has now been withdrawn and fresh subject
Writ Petition No. 2621/2023 and Execution Petition no. 2/2013 have been filed and were
fixed for today i.e. 29-08-2023 on urgent basis wherein the Honourable Court has issued
notices and stay order is ordered to be maintained to the extent of operation of lifts and
other electrical equipment installed therein. Copy of Court order is awaited.

3. So far as Writ Petition No. 1014/2023 is concerned, MS BNP Private

Limited has filed this Writ Petition in the Honourable Islamabad High Court Islamabad
against the

(Contin..)
 :02:

Directives issued by the Chairman PAC to FIA to start fresh investigation in the project.
The case was fixed for hearing for 22-03-2023 and passed the following order on the stay
application:- (Copy enclosed)

“Notice. Meanwhile, respondent No. 02 to 09 shall not act pursuant to the

directives issued by the respondent No.01, however, they would be at liberty to
continue with any investigation or inquiry prior to the directives.”

4. Respondents including CDA were directed to submit report & parawise

comments on the Petition which has been done and copy thereof is appended herewith for
perusal, as desired please.

Dy. Director (Law),CDA

(Ghulam Fareed)
Section Officer (MCI),
M.O.I, Government of Pakistan
 :02:

3. As huge stake of the Authority is involved some Senior Advocate would

require to be engaged to tackle the matter appropriately in the Court of Law. It is, therefore,
proposed that one of the following Counsels may be considered for approval to appear on
behalf of CDA:-

i. Ashtar Ausaf, Sr. ASC (Lahore Based)

ii. Muhammad Munir Paracha, Sr.ASC
iii. Hafiz Arafat Ahmed Ch. Sr.ASC
iv. Kashif Ali Malik, ASC
v. Shehriyar Tariq, Advocate

4. The Counsel at Serial No. 01 & 02 were remained Attorney General for
Pakistan and High Court Judge respectively. The Counsel at Serial No.03 is Senior
Advocate of Supreme Court and is on the Panel of CDA. Mr. Kashif Ali Malik was once
remained Legal Advisor of the CDA and has a good reputation in the Legal Fraternity and
was also remained Associated with this case in the past. Mr. Shehriyar Tariq, Advocate is
currently Additional Legal Advisor, CDA.

5. The fees of the Counsel at serial No. 01 would be very high, however, the
matter may be referred to worthy Chairman CDA through Member (Admin) for
consideration regarding engagement of Sr. Counsel in the subject case so that fee could be
negotiated.

Assistant Director (Law),CDA

Director (Law-II), CDA

D.G (Law), CDA.

 CAPITAL DEVELOPMENT AUTHORITY
LAW WING

NO. CDA-41(59)(5781)-Law/2023/ Islamabad: October__,

2023.

Subject: - WRIT PETITION NO: 1014/2023 TITLED BNP (PRIVATE)

LIMITED AND OTHERS VERSUS MR. NOOR ALAM
KLHAN AND OTHERS REGARDING CONSTITUTION
01, GRAND HAYAT HOTEL.

Ref:- Section Office (MCI), Ministry of Interior, Government of

Pakistan letter No.F.No.9-5/2023-CDA-II dated 11-10-2023.

Please find enclose herewith a comprehensive brief along-with

enclosures regarding subject Court case for further perusal, as desired.

Dy. Director (Law),CDA

(Ghulam Fareed)
Section Officer (MCI),
M.O.I, Government of Pakistan
 CAPITAL DEVELOPMENT AUTHORITY
LAW WING

BRIEF
Subject: - WRIT PETITION NO: 1014/2023 TITLED BNP (PRIVATE)
LIMITED AND OTHERS VERSUS MR. NOOR ALAM KLHAN AND
OTHERS REGARDING CONSTITUTION 01, GRAND HAYAT
HOTEL.

The case relates to a project commonly known as “Grand Hayat Hotel”

(BNP) situated at the end of Constitution Avenue alongside the Convention Center. In the
year 2004 the location measuring 13.5 Acres 65098 Sq. Yards was leased out to the
Company namely BNP (Pvt) Ltd for the purpose of construction of five star hotel along-
with serviced Apartments and related facilities later on some alteration were made in the
drawing and the apartments were increased and offered to the general public on
commercial basis. This infamous case remained under litigation and investigation from
considerable time. At the end the Honourable Supreme Court of Pakistan decided the
matter in the following terms:-

“…the impugned Judgment(s) is set aside, subject to payment of a total

sum of Rs. 17.5 billion (which includes the amount already paid) by one of
the appellants, i.e. BNP (Pvt) Ltd (BNP) within a period of eight years
from today in equal installments. An unconditional bank guarantee to
secure each installment shall be furnished by the said company in favour
of Capital Development Authority (CDA). CDA shall have the right to en-
cash the guarantee in case BNP defaults in payment of any installment on
its due date….”

2. All the parties including CDA, BNP and Private Parties field Review
Petitions in the Honourable Supreme Court of Pakistan and the same was dismissed as
infructuous as the matter was subjudice in the Honourable Islamabad High Court. In the
meanwhile CDA cancelled the lease due to non-payment. Further on the direction of Public
Accounts Committee (PAC) investigation were ordered but the same was challenged in the
Honourable Islamabad High Court and obtained the stay order. In this case the Petitioner
(BNP) sought direction of the Honourable Court to convert the Writ Petition to an
Execution Petition and to execute the Supreme Court order dated 09-01-2019 in the manner
proposed in this application. This Application has now been withdrawn and fresh subject
Writ Petition No. 2621/2023 and Execution Petition no. 2/2013 have been filed and were
fixed for i.e. 29-08-2023 on urgent basis wherein the Honourable Court has issued notices
and stay order is ordered to be maintained to the extent of operation of lifts and other
electrical equipment installed therein. Copy of Court order is awaited.
3. So far as Writ Petition No. 1014/2023 is concerned, MS BNP Private
Limited has filed this Writ Petition in the Honourable Islamabad High Court Islamabad
against the Directives issued by the Chairman PAC to FIA to start fresh investigation in the
project. The case was fixed for hearing for 22-03-2023 and passed the following order on
the stay application:-

(conti..)

:02:

“Notice. Meanwhile, respondent No. 02 to 09 shall not act pursuant to the

directives issued by the respondent No.01, however, they would be at liberty to
continue with any investigation or inquiry prior to the directives.”

4. Respondents including CDA were directed to submit report & parawise

comments on the Petition which has been done and copy thereof is appended herewith for
perusal, as desired please.

Dy. Director (Law),CDA.