The Supreme Court on Friday declared that grant of land to Malir Development Authority (MDA) by the Sindh government and its exchange with the land of Bahria Town is illegal. A three-member Supreme Court bench comprising Justice Ejaz Afzal Khan, Justice Maqbool Baqar and Justice Faisal Arab in a 2:1 majority verdict ordered Bahria Town not to sell or purchase any plot, built-up unit, apartment etc after the announcement of this verdict.
The court held that any allotment made after the announcement of this verdict will be considered as void. The court directed the National Accountability Bureau (NAB) to complete investigation within three months and file references in the accountability court against all those who are found responsible for causing loss to the national exchequer.
The court also directed the NAB to pick up the threads from where it left and take its investigation to its logical end. The court ordered NAB not to collect the investigation report, which was submitted in the court on July 25, 2016 and sealed on the court orders, for further action.
The court ruled that the government land would go back to the government and the land of Bahria Town exchanged with the government land would go back to Bahria Town. The court declared that the grant of the land to the MDA, its exchange with the land of Bahria Town and anything done pursuant thereto being against the provisions of COGLA 1912 [Colonization of Government Lands Act, 1912] and statement of conditions are void ab initio (illegal from the outset) and as such have no existence.
"Since a great deal of work has been done by the Bahria Town and a third-party interest has been created in favor of hundreds of allotees, the land could be granted to the Bahria Town afresh by the Board of Revenue under the provisions of COGLA 1912," the court further ruled. The court requested the Chief Justice of Pakistan to constitute a bench for implementation of this judgment in its letter and spirit.
It held that the questions like what would be the terms and conditions of grant?; what would be the price of the land, whether it would be the one at which the Bahria Town sold the land to the people by and large?; how much of government land and how much of the private land have been utilized by Bahria Town and what Bahria Town is entitled to receive in terms of money on account of development of the land?; would be determined by the implementation bench of the apex court.
"As a huge amount on account of allotment of plots, built-up units and commercial buildings is still outstanding against the allottees, some makeshift arrangement has to be made to facilitate the recovery and secure it."
The court directed the Supreme Court's Additional Registrar of the Karachi Registry to open a special account where the outstanding amount against the allotments be deposited. "All the outstanding amount against allotment of plots, built-up units and commercial buildings shall henceforth be deposited by the allottees with the Additional Registrar of the Karachi Registry of this court through pay orders, demand drafts or cross-cheques", the court ordered.
"We have been told that government land has also been allotted land to Defense Housing Authority (DHA) and many other housing societies at cheaper rates like that of Bahria Town case. If so, we would request the Chief Justice of Pakistan to take suo motu action in this behalf so that like be treated alike", the court held.
With regard to Bahria Town Rawalpindi, the court held Bahria Town is responsible for encroachment on forest land in Takht Pari area near Islamabad.
The issue raised in the Takht Pari case was that Bahria Town had 'encroached' upon 1,170 kanals of forest land, while the forest department had 'encroached' on an area measuring 765 kanals of Bahria Town. However, the court struck down this mutual 'encroachment' deal, deeming it illegal and of no effect.
"We declare that the area of Takht Pari is 2,210 acres; that exchange of land purportedly encroached by Bahria Town and the forest department and attestation of mutations in this behalf being based on an erroneous assumption about the area is against the law and the record and as such of no effect and the order passed in SMC No.3 of 2009 is recalled," the verdict reads.
"However, if any third-party interest has been created over the forest land what to do therewith and how to deal therewith shall be decided by the implementation bench," the court held and directed the forest department, the revenue department and the Survey of Pakistan to conduct a fresh demarcation in the Takht Pari area.
The court also issued notices to the forest department and Bahria Town to submit a report within one month before the implementation bench. The court directed NAB to look into who authorized the illegal allotments in Takht Pari area and pursue them in an accountability court.
With regard to New Murree Development Scheme, the court said, "We do not understand how suitable chunks of land were chosen and taken possession of without having recourse to legal proceedings and without the permission of the government in gross, grave and glaring violation of the law governing the partition of such land.
"We do not understand how the trees and bushes running in millions were cut from the shamilat-i-deh [communal land] and how was it converted into a building site. We also do not understand how the government slept over its rights and sat around like an idle spectator when everything was ruined and run amuck by Bahria Town or for that matter any other builder without realizing that fauna and flora are better served by the natural growth of trees than the mountains of iron, cement and concrete," the court noted.
"As a sequel to what has been discussed above, we have no hesitation to hold that any area of shamilat-i-deh broken up for cultivation or any other purpose, partitioned, taken possession of or constructed in violation of the wajib-ul-arz [agreement between settled villagers using the land and the government] and rule 4A and 4B of the Rules mentioned-above, being illegal and unlawful is of no effect."
"The area thus broken up, partitioned, taken possession of or constructed be retrieved by the government forthwith. All construction work in shamilat-i-deh be stopped forthwith. The construction work carried in private ownership would continue only if it is okayed by the Rawalpindi Development Authority and Environment Protection Agency", the court ruled.
The court ordered that the persons and officials of the revenue department be proceeded against and directed NAB to investigate the case and file references against all those who are found responsible for committing, aiding and abetting the crime at any level or in any form.
"If at all a great deal of construction work has been done on the property comprised in shamilat-i-deh, plots have been transferred, superstructure has been raised thereon and third-party interest has been created therein, a spade would remain a spade and an illegal act would remain illegal. However, the questions what to do with the allottees, how to deal with their cases and what remedial measures could be taken in this behalf shall be dealt with by the implementation bench," the court held. The court requested the Chief Justice of Pakistan to constitute an implementation bench in this behalf to deal with the questions mentioned above.
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