' SYED QALIB-I-HASSAN, J. The facts as disclosed in the petition are that the respondents invited qualification documents from the local and International organizations/Consortia for the construction of a five star hotel on plot of land behind Islamabad Marriott Hotel, Sector F-5. The petitioner submitted its request for qualification, the request was accepted, vide letter dated 24-7- 2007, and the petitioner was also provided the bye laws for the construction of the said hotel.
Respondent No,1 held open bidding for the plot on 31-7-2007. The petitioner participated and was declared successful highest bidder on offer of Rs,77,000.00 per square yard and consequently an offer letter was issued to the petitioner on 18-8-2007. The respondent further informed the petitioner that the offer of construction of the hotel will be subject to approval of C.D.A. Board and schedule of payment will be submitted after approval of the C.D.A. Board. It is submitted that respondent No,2 conveyed the approval of its Board, vide letter dated 14-9-2007 to the petitioner.
The petitioner in the meanwhile entered into an agreement with Meinhardt (Pakistan) Private Limited for Principal Consultancy and Project Management Services and started process for obtaining the finance for the project which was approved in principal by the Askari Bank. The foreigner investors along with petitioner staff visited the spot and found some encroachment at the site by the hotel next to the plot. It is stated that the neighbours have placed heavy containers, air-conditioning plant and machinery at the plot and portion of the said plot was also converted into a parking area, therefore, the said investors along with petitioner requested C.D.A. And showed their concern about the encroachment on the plot. The petitioner also requested for grant of some time in view of continuing unrest in the country for the fulfilment of initial requirements for the completion of project. The case of the petitioner is that the respondents instead of co-operation have cancelled the offer letter with mala fide intention in arrogation of powers not vested in them under the law and forfeited the bidding amount of rupees 10 million and thus acted without any lawful authority irrationally, unreasonably, without procedural proprietary and in violation of the duty imposed on them to act fairly. The petitioner with this background has challenged the vires of the order passed, vide judgment letter dated 24-3-2008, whereby the allotment of plot made in favour of the petitioner was cancelled.
2. Learned counsel for the petitioner contended that impugned letter cancelling the offer of allotment of plot and forfeiting the bidding amount of rupees 10 million are arbitrary, illegal and in arrogation of powers not vested in respondent No,2 or any of his officers. It is contended that the matters connected with the allotment, sale and cancellation fell exclusively within the domain of Chairman, C.D.A. And these functions could not be assigned/delegated to any member or to any other officer of the respondent-Authority, therefore, the impugned letter of cancellation of offer is null and void and has no effect on the rights of the petitioner. The petitioner has not been granted fair opportunity of hearing and in such event the principle of natural justice has also been violated.
It is further contended that respondent No,2 has clearly acted with mala fide intention in connivance and collusion with other bidder who had participated in the bidding and were not succeeded because of the highest bid of the petitioner. The learned counsel contended that the main grievance of the petitioner is that the respondent was not in position to hand over the vacant possession of the plot for which the petitioner has already deposited sum of Rs,10 million and in view of the prevailing circumstances in the country the respondents should have granted some time for the payment of initial premium to the petitioners. Learned counsel to support his contention relied upon Messrs Essem Hotels (Pvt.) Ltd. Through Director v. Capital Development Authority, Islamabad through Chairman and 2 others (1998 CLC 1453) and Capital Development Authority through Chairman and another v.Zahid Iqbal and another (PLD 2004 SC 1999).
3. Learned counsel for the respondent while reiterating their stance taken in parawise comments has contended that the petitioner despite grant of several extensions and passage of considerable period has miserably failed to deposit even the initial payment of 25 per cent of the premium whereas it is specifically mentioned in the offer letter that possession of the land shall be made and detailed terms and conditions shall be issued after receipt of the initial payment of 25 per cent of the premium. It is further contended that the petitioner has issued a cheque of initial payment of 25 per cent of the premium which was dishonoured on the grounds of insufficient fund, signature differs and missing of company's rubber stamp and in this view of the matter the petitioner has committed a criminal act, therefore, the petitioner is not entitled for any discretionary relief from this Court in extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. Learned counsel submitted that the earnest money was forfeited according to accounting procedure of the Authority and normal practice of Real Estate Transaction.
4. Arguments heard record perused.
5. The petitioner participated in open bidding and consequently declared as highest bidder. The offer of allotment was issued to the petitioner, vide letter dated 18-8-2007 and the prominent clauses of the offer letter read as follows:-- "Subject:--Offer Letter For Construction of 5 Star Hotel Behind Marriot Hotel.
'Please refer to your bid dated 31st July, 2007 for the construction of 5 Star Hotel behind Marriott Hotel Sector F-5, measuring 162, 500square feet (18,055.56 square yards) in Islamabad, which was finalized at Rs,77,000.00 (Rupees Seventy Seven Thousand only) per square yard.
2. It is hereby informed that your bid has been accepted and the following are the terms and conditions for payment:--
(a) The premium for the subject plot of land will be Rs,1,390,278,120,00 (Rupees one Billion, three Hundred and Ninety Million, Two Hundred and Seventy Eight Thousand, one Hundred and Twenty only) Rs,77,000.00 per square yard.
(b) 25% of the premium mentioned above, i.e, Rs,347,569,530 (Rupees Three Hundred and Forty Seven Million, Fine Hundred and Sixty Nine Thousand Five Hundred and Thirty Only), less the earnest money of Rs,10 million, which comes to Rs,337,569,530.00 (Rupees Three Hundred and Thirty Seven Million, Five Hundred and Sixty Nine Thousand, Five Hundred and Thirty only) shall have to be paid within 15 days from the issuance of this offer letter.
(c) The remaining 75% of the premium, amounting to Rs,1,052,708,590 (Rupees one Billion, Fifty Two Million, Seven Hundred and Eight Thousand, Five Hundred and Ninety only) shall be paid within 90 days following the initial payment of 25%.
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5. Possession of the land shall be made and detailed terms and conditions shall be issued after receipt of the initial payment of 25% of the premium, mentioned above. In para. 2(b). The above mentioned specifications of land and payment are subject to exact measurement at the time of handing over possession.
'Respondent's Board has approved the highest bid of the petitioner, vide letter dated 14-9-2007, and directed the petitioner to make the initial payment of the premium till 2-10-2007. The petitioner through their lawyers Messrs Qube Legal Solicitors made various queries. The said letter was duly replied by the respondents, vide letter dated 19-9-2007. The relevant clauses of the reply for the purposes of dispute in writ petition are as under:-- "Subject:-- Re Ref: Due Diligence Confirmation from C.D.A. Islamabad.
' In response to the letter you received from your legal firm, Messrs Qube Legal Solicitors, consider the following reply:--
(1) Payment Schedule:--
(a) Total Price is Rs,1,390,278,120.00 (Rupees One Billion, Three Hundred and Ninety Million, Two Hundred and Seventy Eight Thousand, one Hundred and Twenty only)
(b) Payment schedule is as per our letter No, C.D.A./D (PMO)/122/ 2007/4866 dated 24th July, 2007 (copy attached).
(c) SGM Group shall be in possession of the said property after payment of the first 25% of the above-mentioned price
(d) Construction shall be allowed to commence after signing of the agreement, and approval of design drawings by relevant C.D.A. Directorates (Building Control Section)
(e) Transfer of property shall take place once completion certificate is issued by the Authority and the lease deed is signed.
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'On receipt of the above said letter the petitioner issued a cheque of Rs,337,569,530 (Rupees Three Hundred and Thirty Seven Million , Five Hundred and Sixty Nine Thousand, Five Hundred and Thirty only) with certain reservations against the terms and conditions of offer letter, however, the said cheque was also dishonoured on the grounds of insufficient funds, signature differs and missing of company's rubberstamp. Respondent again duly informed the petitioner about the dishonouring of the cheque and further directed to pay the requisite initial premium till 27-12-2007. The petitioner instead of paying the requisite amount have further asked for another four weeks to fulfil its obligation. The respondents extended 15 days' time for the payment of the requisite amount and also warned the petitioner that in case of its failure to pay the amount within 15 days of receipt of letter dated 18-1-2007 the respondent-Authority reserves right to cancel the offer letter by retaining the bidding fee of rupees 10 million. The petitioner throughout failed to fulfil the requirement of the offer letter and time extended to it.
6. Now the contention of the learned counsel for the petitioner that the respondents have failed to deliver possession of the plot to the petitioner with clear title and free of encroachments resulted in delay of payment of premium price has no force in view of clause 5 of the offer letter that the possession of the land shall be made and detailed terms and conditions shall be issued after receipt of the initial payment of 25 per cent of the premium and the said clause was repeatedly mentioned by the respondents but the petitioner has miserably failed to pay the initial payment of 25 per cent of the premium in accordance with the clause 5 of the offer letter and thereafter time to time when extension was made for the payment of initial amount prescribed in the offer letter.
The petitioner also issued cheque with mala fide intention of an account with insufficient funds and with different signatures without the stamp of the petitioner company which was dishonoured. The judgment Messrs Essem Hotels (Pvt.) Ltd. Through Director v. Capital Development Authority, Islamabad through Chairman and 2 others (1998 CLC 1453) relied upon by the petitioner is not applicable to the fact of this case. The plot in dispute in the above said judgment was admittedly the subject-matter of litigation on the date of auction and in that case the Capital Development Authority demanded the entire balance amount belong with delayed payment charges but in the instant case the plot was not subject-matter of any litigation. The contents of the petitioners' letter dated 20-12-2007 reads as follows:-- "Sub: Continuing Political unrest and deteriorating law and order in Pakistan.
Dear Sir, ' This is with reference to the 5-Star Hotel plot acquired in open bidding on 18-8-2007.
' We appreciate the cooperation extended to us by C.D.A. In helping us take the project forward and in realizing our investment plans in Pakistan and we would like to re-iterate our commitment to this project and to our planned FDI of $ 350 million over the next three years in Pakistan.
' Due to the unfortunate political unrest and the security concerns in Pakistan at the moment, our team is facing difficulties in travel to the country. There is a travel advisory in place with no travel or airline insurance available for our personal visiting Pakistan. This has prevented us from working on the project even though we have already put in place our project development team.
' We understand that this situation is temporary and that things will settle down after there elections. We have remained committed to the project and also visited your chairman last month during the imposition of emergency rule in the country.
' However, under the continuing circumstances we would request you to allow us time of 4 weeks till after the holding of elections in order to fulfil our obligations towards the project.
' Your understanding and continued cooperation in this regard is highly appreciated.
' Sincerely,".
7. The petitioners demanded extension of time for 4 weeks in view of political unrest in the country and in the said letter they have not agitated that the possession of the plot was not with the respondents. The respondents have again extended 2 weeks' time vide their letter dated 18-1-2008 for the payment of initial 25 per cent of the premium but the offer letter was cancelled on 24-3- 2008 and till then the petitioners have failed to deposit the amount. The alleged political unrest in the country if any to my mind would not have been any hurdle for the petitioners to deposit the initial amount of premium. The respondents/ Authority has provided sufficient time and opportunities to the petitioners to fulfil the obligation enshrined in the offer letter but the petitioners have failed to show their bona fide in any respect.
8. In view of what has been discussed above, the writ petition has no force and E the same is dismissed with no order as to costs.