Suit

Constitution Petition No.D-2601 of 2009

Present:

Mr. Justice Sajjad Ali Shah

Mr. Justice Naimatullah Phulpoto

Date of hearing: 28^th March 2013

Petitioner: Asif Baigmohammad through Syed Nasir Abbas Rizvi, Advocate.

Respondent 2: Chairman National Accountability Bureau Headquarters NAB through Mr. Noor Muhammad Dayo, ADPG.

Intervenor: M/s. Pakistan Services Limited through M/s. Rasheed A. Razvi & Farhatullah, Advocates.

Land Utilization Department through Mr. Muhammad Ahmed Pirzada, Advocate.

J U D G M E N T

SAJJAD ALI SHAH, J :- The petitioner through instant petition has impugned the order of the Accountability Court dated 26.11.2009 whereby the learned Accountability Court rejected the application of petitioner (who is an accused before the Accountability Court) seeking confirmation that Order dated 07.08.1997 passed by Member Land Utilization cancelling the land in question was an administrative and not a judicial order which stood set aside after decision of Sindh Government Land Committee and further sought an order directing Assessment Committee constituted under Sindh Land Ordinance, 2001 for issuance of challan pertaining to payment of the differential amount.

It is the case of petitioner that a mining license in respect of a piece of land admeasuring 341.68 acres was granted to one Mst. Gulnar Begum by the Government of Sindh, Land Utilization Department, vide letter No.PS/MBR/(L.U.)1032/96, dated 4.7.1996 in Naclass No.Nil Deh Dih, Sea Shore adjoining Malir, at Delta of Malir River for a period of 30 years and, thereafter, the said license was converted into lease of 99 years and the use of land was also changed from mining to industrial/commercial/residential purposes. It is the case of petitioner that on 29.9.1996 said Mst. Gulnar Begum sold the entire land to Marina City Developments, a partnership concern comprising three partners i.e. petitioner having 70% of shareholding, Khalid Masood having 29.9% and Seema Tressa Gill having 0.1% shareholding. It is the case of petitioner that Seema Tressa Gill relinquished her 0.1% share to the partners by executing Deed of Relinquishment. Thereafter, National Accountability Bureau (NAB) filed Reference No.24 of 2002 against Agha Tariq, ex-Minister Mineral Development, Government of Sindh, his wife Mst. Gulnar Begum, Syed Abdullah Shah ex-Chief Minister, Ali Sher Sheikh Secretary Land Utilization Department, Asif Beg Muhammad, petitioner and his partner, Khalid Masood, under Section 18(9) read with Section 24(b) of the National Accountability Bureau Ordinance, 1999.

It is contended by the counsel for the petitioner that after the land was purchased by the petitioner along with his other partners in the name of Marina City Developments, Member Land Utilization Department vide its order dated 9.8.1997 by holding that the lease in favour of Mst. Gulnar Begum was in gross violation of the conditions of sale/policy, cancelled the said land. The petitioner challenged the said cancellation by filing Suit No.970/1997 in this Court, however, the said suit was withdrawn on the basis of representation that Land Utilization Department of the Government of Sindh would issue challan of the differential amount which till date has not been issued. It was further contended that though Mst. Seema Tressa Gill as per unregistered Partnership Deed had only 0.1% share in the said land, which was relinquished by her and, thereafter, the remaining two partners got the partnership registered on 28.7.1997, however, since the sale deed did not provide ratio of share of the partners, therefore, M/s. Pakistan Services Limited on 8.6.2007 managed a Sale Deed of 1/3rd of said land from her to whom Sindh Government Land Committee have issued challan for differential, therefore, the petitioner is entitled to similar treatment. It is lastly contended that since the petitioners are ready to pay the differential amount, therefore, trial Court was bound to issue direction to the Assessment Committee constituted under Sindh Land Ordinance, 2001 for issuance of challan.

On the other hand, Mr. Noor Muhammad Dayo, learned DPG NAB, contends that the petitioner is an accused before the Accountability Court No.II in Reference No.24/2002 pending against Agha Tariq ex-Minister and others and it is not the domain of the Accountability Court to issue such direction, as the petitioner has to pursued remedy in accordance with law and the petition was not maintainable, therefore, was liable to be dismissed.

We have heard the learned counsel for the respective parties and perused the record of the case.

The record reflects that Agha Tariq ex-Minister Mineral Development, Government of Sindh on 4.7.1996 managed excavation license for mineral in respect of 341.68 acres of Government land for a period of 30 years in favour of her wife Mst. Gulnar Begum. He thereafter himself by exploiting his position dishonestly, fraudulently and deceitfully in connivance with other accused by distorting the facts and in violation of law and rules on 4.8.1996 got converted 30 years license for mining purposes into 99 years lease for industrial/residential/commercial purposes and thereafter on 29^th of September 1996 through registered conveyance deed sold the said land to M/s. Marina City Developments, a partnership of M/s. Asif Baig Muhammad, Khalid Masood and Mst. Seema Tressa Gill. The record further reflects that the Secretary Land Utilization Department on 11.7.1997 served notices upon Mst. Gulnar Begum and on her non-appearance taking into account gross violation of the conditions of the sale/policy cancelled the allotment/lease and directed the Deputy Commissioner to resume the said land even if it is in possession of any other person including Marina City Developments to whom the said land was transferred unauthorizedly in complete disregard to the provisions of the Colonization of Government Land Act, 1912.

It further appears from the record that the said cancellation was called in question by Marina City Developments in this Court by filing Suit No.970/1997, however, the said suit was unconditionally withdrawn on 11.5.2006 by moving an application under Order XXIII Rule 1 CPC asserting therein that Marina City Developments have received a letter from the Land Utilization Department about regularization of the land in question. In the meanwhile, the fraudulent act of ex-Minister was already taken note of by the National Accountability Bureau by filing Reference No.24/2002 asserting therein that accused Agha Tariq an Ex-Minister Government of Sindh dishonestly and fraudulently routed an application in his own department through her wife Mst. Gulnar Begum and deceitfully obtained mining license for 30 years over the land admeasuring 341.68 acres in District Malir, Karachi Division in the Malir Delta. It has been further asserted in the reference that the petitioner and accused Khalid Masood were in actively involved in the land scam to obtain pecuniary benefits and consequently Mst. Gulnar Begum moved incomplete application requesting conversion of 30 years licence of the land for mining purposes into 99 years lease for residential/commercial/industrial purposes, which ultimately by distorting the fact and misusing the authority was allowed. The reference questioned the grant as the land in question was situated on the River bed and its disposal was a safety risk and further that it caused unlawful loss to public exchequer and lastly that petitioner and accused Khalid Masood further caused loss to exchequer, as they evaded stamp duty.

The record reflects that the petitioner on 6.12.2005 received a letter from the Section Officer-I, Government of Sindh, Land Utilization Department, asserting therein that the Sindh Government Land Committee has assessed the loss to the exchequer to the extent of Rs.26,62,000/- per acre, however, it further specifies that the land was cancelled through a judicial order passed on 9.9.1997 (referred to above) and since in Suit No.970/1997 (referred to above) status quo has been ordered and unless this order is set aside Land Utilization cannot move further. We wonder what led the petitioner to withdraw the said suit despite assertion of the Land Utilization Department that the order dated 9.9.1997 through which subject land was cancelled by the Secretary Land Utilization Department was a judicial order. The record further reflects that the present petitioner had also filed Const. Petition No. D-2088/2006 seeking regularization of land in question and issuance of challan for payment of differential which was also dismissed by this Court vide its Order dated 07.03.2008. The record further reflects that despite the fact that Reference No.24/2002 filed by the Chairman NAB on 21.6.2002 before the Accountability Court No.II at Karachi was in respect of the entire 341.68 acres of land in District Malir, the third disputed partner of Marina City Developments somehow the other managed sale of 1/3rd of undivided share in the said land, though the petitioner is seriously disputing the entitlement of the third partner Ms. Seema Tressa Gill to the extent of 33% and is further asserting the relinquishment of her 0.1% share, but such disputed questions could not be decided in this petition and, therefore, we would not embark upon such controversy. It further appears from the record that on 27.6.2006 an opinion was obtained from the Advocate General Sindh who after examining the validity of Order dated 09.08.1997 passed by the Secretary Land Utilization Department opined that the order was bad and literally by setting aside the order through the opinion it was suggested that the challan for the differential is bound to be issued. It further appears that the Chairman Sindh Government Land Committee on 18.01.2012 also more or less gave such opinion by relying on the opinion of the Advocate General and suggested that the land be given to the allottees upon payment of differential amount of Rs.26,62,000/- per acre. It is very strange to note that while Advocate General gave the opinion for regularization and issuance of challan on 27.6.2006 Additional Advocate General in C.P.No.D-2088/2006 filed by the petitioner seeking regularization of the subject land made following submissions recorded in order dated 07.03.2008 before this Court: -

“On the other hand, Mr. Muhammad Sarwar Khan, learned AAG, has strongly disputed the claim of the firm on the ground that 341.23 acres of land on which they are fighting was simply a grant for mining purposes and could not be leased for 99 years nor it can be regularized under Ordinance III of 2001 as the same was cancelled before the promulgation of Ordinance III of 2001. He further submits that Chief Minister Sindh has no power to convert the lease from mining to other purposes and that the land is part of delta and it will not be in the interest of the public to lease out such land.”

It appears that in this backdrop Mst. Seema Tressa Gill one of the disputed partner of Marina City Development (which partnership was subsequently converted into a private limited company) on 02.06.2007 entered into an agreement for the sale of her disputed 1/3^rd of undivided land out of 341.68 acres with M/s. Pakistan Services Limited and thereafter executed a Registered Power of Attorney in their favour. Additionally M/s. Pakistan Services Limited have also filed Const. Petition No. D-788 of 2009 agitating grievance against Order dated 11.04.2009 passed by the Accountability Court No.2 declaring the sale (which was made after filing of reference) void in terms of Section 23 (A) of the NAB Ordinance 1999. It appears that M/s. Pakistan Services Limited somehow the other managed issuance of challan on 13.11.2012 and deposited a sum of Rs.295,156,000/- and thereafter on 07.04.2012 through the power of attorney obtained from Tressa Gill got a registered Conveyance Deed executed in the name of M/s. Pakistan Services Limited. This anomaly on the part of Government of Sindh viz. denying issuance of challan for payment of differential in respect of 2/3^rd of the property and issuance of challan for payment of differential for the remaining 1/3^rd of the property led the petitioner to file an application before the Accountability Court seeking directions for issuance of challan with the declaration that the Order dated 07.08.1997 which was passed by Member, Land Utilization cancelling the land well before promulgation of Ordinance 03/2001 (which of course was a hitch in issuance of challan for payment of differential) be declared an administrative order and upon denial of such request through impugned order has approached this Court.

We have totally failed to understand that, as to how, an order which was passed by the Member Land Utilization while exercising power under Section 164 of the West Pakistan Land Revenue Act, 1967 on 07.8.1997 cancelling the entire 341.68 acres of land could be set aside through an opinion, may be of the Advocate General or the Chairman Sindh Government Land Committee specially when it was unsuccessfully called in question before this Court first in Suit No.970/1997 which was also withdrawn and thereafter in Const. Petition No.D-2088/2006 in which also more or less similar relief was claimed. To our mind, since the grant/lease of land in question was cancelled on 7.8.1997 by the Member Land Utilization while exercising power under Section 164 of the West Pakistan Land Revenue Act, 1967, therefore, there was neither any existing grant which could have come to an end by virtue of Ordinance III of 2001 or could have been regularized thereunder. Even otherwise, it was not for the Accountability Court to embark upon such intricate question regarding validity or existence of the grant/lease or to impart direction for issuance of challan for payment of differential specially when the Government on 7.3.2008 in Constitution Petition No.D-2088/2006 itself has pleaded that “Chief Minister Sindh has no power to convert the lease from mining to other purposes and that the land is part of delta and it will not be in the interest of the public to lease out such land”., therefore, in our opinion the request was rightly declined.

We may further add here that Ordinance III of 2001 provides for cancellation of allotments, conversions or exchange of Urban State land obtained or granted for residential or commercial purposes at the rate lower than the market value in violation of law or ban from 1^st January 1985 and empowers a Committee constituted under Ordinance III of 2001 to assess/determine the amount of loss caused to the Government on account of such grant and to call upon the person concerned to pay such amount within a specified time. However, to our mind, the Ordinance III of 2001 envisages regularization of only those lands which were competently granted/allotted, but for a price lower than its market value in violation of law or ban, but does not provide for the regularization of those lands where guarantor lacks the authority. Beside, the question, as to whether, the Chief Minister had the authority to convert a mining licence that too for period of thirty-years into a lease for industrial/residential/commercial purposes and that too for ninety-years or that, as to whether, such land could even otherwise be allotted/granted on account of its location being in the river bed or on account of safety risk is not before us, therefore, we would refrain to embark upon such controversy.

In view of what has been discussed above, we find no irregularity or illegality in the order impugned and, therefore, dismiss the instant petition.

JUDGE