HEADNOTE

Constitution of Pakistan —

For Bahria Town:

Salman Aslam Butt, Senior Advocate Supreme Court.

Shoaib Rashid, Advocate Supreme Court.

M. Asif, Internal Legal Advisor, Bahria Town.

Mudassir Mehmood, Financial Advisor, RACO

On Court Notice in CMA No.339/2019:

For Mashreq Bank:

Rashid Anwar, Advocate Supreme Court.

For Government of Sindh:

Hassan Akbar, A.G. Sindh.

M. Saeed Laghari, Deputy Commissioner Malir.

For Survey of Pakistan:

Shah Muhammad, Director.

M. Aqib, Deputy Director.

For MDA:

Muhammad Irfan, Director (Legal) MDA

For SBCA:

Nadir Khan Burdi, Advocate Supreme Court.

For petitioner in CP. 34/23:

Ali Sibtain Fazli, Senior Advocate Supreme Court.

For appellant in CM Appeal No.6 to 8/2020 and applicant in CMA No. 339/2019:

Syed Mehmood A. Naqvi, in person.

For Appellants (allottees) in C.M. Appeal No. 176/2021:

Haseeb Jamali, Advocate Supreme Court (via video link from Karachi).

For Appellant in CM Appeal No. 152/2020:

Dr. M. Shafique (in person)

Date of hearing: 23^rd November, 2023.

ORDER

Qazi Faez Isa, CJ:—Civil Miscellaneous Application (‘CMA’) No.11052/2019 was filed by Bahria Town (Private) Limited (‘Bahria Town’ or ‘BTPL’). Learned Mr. Salman Aslam Butt represents Bahria Town. He submits that pursuant to the order of this Court dated 21 March 2019 Bahria Town was to receive 16,896 acres of land in District Malir in the province of Sindh but only received 11,747 acres of land, that is, there was a shortfall of 5,149 acres. Bahria Town had agreed to pay Rs.460,000,000,000 (460 billion rupees) in installments within a period of seven years, commencing from 1 September 2019 and concluding on 31 August 2026, for the 16,896 acres. Bahria Town was paying the agreed installments but when, learned counsel submits, it discovered the shortfall of 5,149 acres it stopped payments, and through CMA No. 11052/2019 this shortfall was brought to the attention of this Court. CMA No. 11052/2019 was filed on 14 December 2019 on behalf of Bahria Town by its counsel the learned Syed Ali Zafar, but the application remained pending and was fixed for hearing in Court on 18 October 2023, that is, after almost four years. Bahria Town also filed CMA No. 1234/2021 on 16 February 2021 seeking ‘reasonable time/moratorium period … for fulfilling its payment obligations under the Order dated 21-03- 2019’.

2.           In support of his submissions the learned Mr. Butt referred to the abovementioned CMAs, and the documents brought on record through CMAs No.8884/2023 and No.9439/2023. The first document referred to by the learned counsel is Bahria Town’s letter dated 15 May 2019 addressed to the Chairman and Director General of Malir Development Authority (‘MDA’); the letter stated that Bahria Town was in possession of only 11,776.47 acres and cannot sell/develop the following portions, used by utility providers and constituting Goths (villages):

Utility                                                                              Acres

Acres K-IV project of Karachi Water Sewerage Board             345.75

High tension line                                                                303.94

Sui Gas pipelines                                                               8.63

Natural Nallahs (drains)                                                      1528.58

Roads                                                                               2,236.37

Goths                                                                                235.23

3.           We are told that Bahria Town’s letter dated 15 May 2019 was not responded to, however, the learned Mr. Butt states that its contents were admitted in the concise statement (CMA No.3039/2020) filed by MDA through its counsel. Reliance is also placed on letter dated 1 January 2021 of Mukhtiarkar, Taluka Murad Memon, District Malir Karachi and letter dated 3 December 2020 of Mukhtiarkar (Revenue), District Malir, Karachi both of which state that they were written in response to Bahria Town’s letter dated 14 October 2020, but the letter of Bahria Town dated 14 October 2020 has not been filed. Significantly, CMA No. 3039/2020 is not signed by any officer of MDA, let alone its Chairman or Director General. As regards the referred to letters written by Mukhtiarkars, who are junior revenue officials, they do not state that a physical survey of the land had been carried out, therefore, they are not helpful nor relevant to ascertain the land in possession of Bahria Town. Only once the area of land in possession of Bahria Town was determined could it alleged that there was a shortfall. Nonetheless, we wanted to ensure that Bahria Town had not been shortshifted, and that the order of this Court dated 21 March 2019 (‘consent order’) was not disregarded by MDA and/or the Government of Sindh (‘Government’). Therefore, vide order dated 8 November 2023 we ordered that a survey of the land be conducted, the relevant portion from the order is reproduced hereunder:

‘We enquired whether the land had been measured and demarcated and counsel said that subsequent to the filing of these applications this exercise has not been undertaken. Who is in possession and of what area has to be ascertained.’

‘Accordingly, the Government and MDA to undertake this exercise immediately and if they want to take assistance of any organization they may do so. The representative of the Bahria Town, Syed Mahmood Akhtar Naqvi and all other who have made allegations with regard to area and its possession will be notified of the date and time of such survey and may accompany the survey team.’

‘The survey team shall consider these aspects as well and shall clearly specify the land in actual possession of the Bahria Town and if any additional land has been encroached by it to mention that as well. The report to be accompanied by photographs and topographic (Google) map. At this stage the learned counsel representing the Bahria Town states that in addition to the land acquired pursuant to order dated 21 March 2019 Bahria Town had also bought private lands. The survey shall also consider this aspect and should mention the metes and bounds of the land(s).’

4.           Mr. Hassan Akbar, the learned Advocate General of Sindh (‘AG’), states that pursuant to order dated 8 November 2023 a committee was constituted vide notification dated 14 November 2023, comprising of the following: (1) Commissioner, Karachi Division, (2) Director General, MDA, (3) Director General, Sindh Building Control Authority, (4) Deputy Commissioner Malir, (5) Deputy Commissioner Jamshoro, (6) Chief Conservator, Forest & Wildlife Department, (7) Director General, Wildlife, (8) Representative of Survey of Pakistan, (9) Director, Survey & Settlement, Board of Revenue, Sindh, and (10) Representative of Land Utilization Department. The report submitted by the Committee (respectively ‘the Committee’ and ‘the Report’) (CMA No. 9865/2023) comprises of 81 pages and the learned AG read out portions therefrom.

5.           The survey of the land was undertaken by the Survey of Pakistan, and its Director explained that it was done scientifically by using the Global Navigation Satellite System Receivers, which fix a Reference and a number of Rovers. The team which conducted the survey took three days in taking readings and measurements. The survey was carried out in the presence of Bahria Town’s own survey team. The cost of the survey was one million rupees.

6.           The Report states that Bahria Town is in possession of 19,931.63 acres; 17,709.45 acres in District Malir and 2,222.18 acres in District Jamshoro. The unauthorized possession of land in Bahria Town’s possession is 3,035.63 acres and is identified in different patches (pages 22 to 24 of the Report) and shown on the map (page 81 of the Report).

7.           Learned Mr. Butt objected to the Report and sought time to file written objections thereto. The learned AG responded by stating that the survey was conducted because Bahria Town had made the allegation of having less land in its possession, the representative of Bahria Town had accompanied the survey team, the Committee comprised of senior officers of all the relevant departments of the Government of Sindh and the survey was conducted by the Survey of Pakistan, a reputable Federal organization. Therefore, there cannot possibly be any objection to the survey and the Report nor any question to its credibility. Learned Mr. Haseeb Jamali, who represents some of the allottees of Bahria Town, pointed out that Bahria Town had itself filed an application (CMA No.1870/2019, on 2 March 2019) wherein it had submitted annexure-B, which was the ‘Plan containing the boundaries of the land actually in possession of BTPL and developed by BTPL measuring 16,896 acres’. This was just nineteen days before passing of the consent order, therefore, Bahria Town cannot contend otherwise. He submits that the contention of the purported shortfall is a false pretext to stop making payment. He also refers to the following extract from the stipulated terms and conditions mentioned in the consent order:

‘As this order relates to only 16,896 acres of land in (deh) falling within the controlled area of MDA, the Government of Sindh and the MDA shall ensure that any land beyond this stands retrieved and no excess land shall be allowed to be occupied by BTLK. Any violation of this direction shall entail criminal action both against the functionaries of Government of Sindh, Malir Development Authority and the management of BTLK or whosoever is found responsible.’

Learned Mr. Jamali submits that Bahria Town did not relinquish the land in excess of 16,896 acres which it had illegally occupied, and which it had undertaken to surrender. Encroachment and occupation of additional land could not have happened without the complicity of the concerned officers/officials; who lost sight of the fact that they are public servants to serve the people and bartered away the rights and interest of the people and of the province for personal gain. The learned AG states that he was not aware that Bahria Town was in illegal possession of additional land and now that he and the Government have learnt of this appropriate action will be taken by the Government against all those in Government/MDA who were complicit. We are confident that pursuant to the assurance extended to us by the learned AG, on behalf of the Government of Sindh, requisite action will be taken against the recalcitrant and the corrupt officers/officials of the Government and MDA.

8.           The myth of the stated shortfall of land has been fully exposed by the Report and Bahria Town’s own filings in Court. Bahria Town undoubtedly knew that there was no shortfall in the land in its possession because it did not abandon the project and made no effort to have its applications, alleging shortfall, fixed for hearing in Court, nor filed a single application stating that the matter was urgent; such applications are filed daily under the Supreme Court Rules, 1980. It appears that Bahria Town filed the applications, alleging shortfall in land, merely as a pretext to avoid paying the installments which Bahria Town had agreed to pay. The applications were also used as a smokescreen to conceal the additional land in Bahria Town’s possession. Bahria Town’s conduct was an abuse of the process of the Court. Even if the Report is disregarded it would not help Bahria Town, because Bahria Town has not produced any evidence to show, let alone establish, that there was a shortfall in the land. Bahria Town also did not relinquish the excess/additional land in its possession and stopped paying the installments it had agreed to pay.

9.           Bahria Town is a land developer who develops land for its allottees and from them recovers the amounts spent on the land development. As per its own statement, the allottees of Bahria Town numbered 140,000 on 21 March 2019. From the amounts collected from its allottees Bahria Town made payments (clause iv of ‘Mode of Payment’ of the consent order). It is not Bahria Town’s case that its allottees stopped making payments or that it did not have land to allot to them. Bahria Town unilaterally and arbitrarily stopped making payment.

10.         Payments were required to be made by Bahria Town in installments (clause (i) of the ‘Mode of Payment’ of the consent order), as under:

‘Payment shall be made firstly, in forty-eight (48) monthly installments of Rs.2,500,000,000 (Rupees Two billion and Five Hundred million) starting from 1^st September, 2019.

Thereafter, the balance payments shall be made in thirty-six equal monthly installments along with 4% markup charged annually w.e.f. 1^st September, 2023.’

The monthly installments were required to be paid by Bahria Town into the account in the name of Registrar of the Supreme Court maintained with the National Bank of Pakistan. The statement of account issued by the Bank shows that the last installment of Rs.2,500,000,000 (2.5 billion rupees) was paid by Bahria Town on 31 October 2019, and then a number of lesser amounts were paid over a one year period (from November 2019 to October 2020) amounting to Rs.173,849,522, which is less than one monthly installment. Thereafter, no further payment was made.

11.         The cost of the development work to be undertaken by Bahria Town and the cost of the land (460 billion rupees) is recovered by Bahria Town from its allottees, and a portion therefrom was to be paid towards the cost of the land. The consent order had also stipulated that ‘two consecutive installments or three installments in toto, shall constitute a default resulting, inter alia, the whole balance amount shall become due and payable’ (clause (c) of the consent order). Admittedly, Bahria Town is in default, and consequently the entire balance amount has become due and payable.

12.         Bahria Town’s proposal of 2 March 2019 (CMA No. 1870/2019) was accepted by this Court, and, the consent order dated 21 March 2019 was passed. Bahria Town wants the deal and the consent order to be revisited, and has filed Civil Review Petition No.15/2021 (‘CRP’) in this regard. There was no shortfall in land, but assuming there was, Bahria Town’s remedy lay in seeking enforcement of the consent order, but this it did not ask; it could also have called upon this Court to initiate contempt action, but this too it did not do. Instead, the CRP states that this Court should not have passed the consent order. Even if the Members of this Bench have reservations about the consent order, the fact remains that it was on the request of Bahria Town and to its benefit and advantage. Bahria Town is not willing to abide by its obligations, to make payment for the land, which is not a ground on which the CRP could be filed, let alone allowed.

13.         An amount of 166.25 billion rupees (excluding applicable markup) should have by now been paid by Bahria Town, but only 24 billion, or precisely Rs.24,266,037,716, is paid. An amount of about one billion rupees (Rs.1,093,636,493) was also deposited by the allottees in the account in the name of the Registrar of the Supreme Court.

14.         Bahria Town retained the land and collected money from its allottees but did not honour its commitment to make payment, nor apparently honoured its commitment to its allottees, as quite a few of them have come forward to complain. Bahria Town’s excuse to stop payment was that it did not get the agreed acreage of land, which was a false pretext. Bahria Town’s applications were heard in Court on 18 October 2023, then again on 8 November 2023 and today we have heard Bahria Town’s learned counsel for several hours. However, nothing of substance was submitted by the learned counsel of Bahria Town, who repeatedly alleged that there was a shortfall in land, without producing a shred of credible evidence in support thereof. And, when the Committee’s Report thoroughly exposed the false statements made by Bahria Town all that its learned counsel stated was that he wanted time to file objections to the Report. However, even if the Report is discarded, it was for Bahria Town to establish that it has less than 16,896 acres of land in its possession, which it completely failed to. Therefore, Bahria Town’s CMAs No. 11052/2019 and 1234/2021 are dismissed.

15.         We now turn to attend to another matter. It transpired that in the account in the name of the Registrar of the Supreme Court maintained by the National Bank of Pakistan remittances were received from abroad; and as per the information provided by the Bank ten remittances came from the following:

(1)   Fortune Event Limited, Emirates Hill, MC-2, P.O. Box 94359, Dubai, UAE.

(2)   Mubashara Ali Malik, Villa MC-2, Emirates Hills, P.O. Box 94359, Dubai, UAE.

(3)   Bina Riaz and Sana Salman, Villa MC-2, Emirates Hill, Nasreen Street 2, Dubai, UAE.

(4)   Ahmed Ali Riaz, Villa MC-2, Emirates Hill Third, P.O. Box 9435, UAE.

(5)   Mashreq Bank PSC, 1st Floor, 2 London, Wall Building, London.

(6)   Ultimate Holdings MGT LTD, P.O. Box 957, Off Shore Incorporation Road, Town Tortolla, British Virgin Islands.

(7)   Premier Investments Global Ltd., Villa 1, Emirates Hill Third, P.O. Box 94359, Dubai, U.A.E.

(8)   Ahmed Ali Riaz, Villa MC2, Emirates Hill Third, P.O. Box 9435, UAE.

(9)   Premier Investments Global Ltd. Villa 1, Emirates Hill Third, P.O. Box 94359, Dubai, UAE.

(10) Wedlake Bell LLP, 71 Queen Victoria Street, London EC4 V 4AY, GB.

The amount remitted from abroad from the account of eight individuals and entities was about GB Pounds 136 million and about US Dollars 44 million, which at the relevant time was converted to about 35 billion Pakistani rupees. The consent order did not permit payments to be made from abroad or by the aforesaid. Therefore, notices were issued to them vide order dated 18 October 2023, and again vide order dated 8 November 2023. However, only Mashreq Bank PSC, represented by learned Mr. Rashid Anwar, came forward and filed CMA No.9765/2023, attaching documents therewith explaining that it had sent an amount of GBP 19,999,984.27 from the account of Mubashara Ali Malik. Apparently, the National Crime Agency (‘NCA’) of the United Kingdom, set up under the Crime and Courts Act 2013 and conferred additional functions under the Proceeds of Crime Act 2002, had applied for and obtained an ‘Account Freezing Order’ (‘AFO’) from the Westminster Magistrate Court, and consequently Mubashara Ali Malik instructed Mashreq Bank PSC to remit the frozen amount in her account to the Account of the Registrar Supreme Court of Pakistan. Learned Mr. Anwar states that the bank acted on instructions and has no claim on the amount remitted by it.

16.         It is unfortunate that without seeking permission of the Supreme Court amounts were remitted into its account and the Supreme Court was unnecessarily involved with money detected by NCA, which probably were proceeds of criminal activity which was detected by NCA, seized and then frozen by AFOs. The other persons/entities to whom notices were sent (except Mashreq Bank PSC) did not come forward to explain why monies were sent from their accounts to the account of the Supreme Court. Apparently, these monies were used to offset Bahria Town’s stated liability, bringing to mind the idiom – robbing Peter to pay Paul. Therefore, the amount received from abroad and the markup earned thereon be remitted to the Government of Pakistan. The Registrar of the Supreme Court and the National Bank of Pakistan shall do the needful in this regard.

17.         Bahria Town has not deposited into the account of the Supreme Court the installments it had agreed to pay for a considerable time, and is in default of the consent order. Therefore, there is no reason to retain the amounts in the account, and these amounts constituting a portion of the cost of land which is of the people of Sindh should be remitted to the Government of Sindh; in the Non-Food Account No.I of the Government of Sindh, as requested by the learned AG. It is clarified that the amounts received from abroad in foreign currency and the markup earned thereon is to be paid to the Government of Pakistan and the balance amount in the account in the name of the Registrar of the Supreme Court is to be paid to the Government of Sindh. It is further clarified that if any amount has been incorrectly noted herein the record of the National Bank of Pakistan should be treated as correct.

18.         After the payments mentioned above, in paragraphs 16 and 17, have been paid, the National Bank of Pakistan should close the account in the name of the Registrar of the Supreme Court maintained by it. The National Bank of Pakistan should submit a certified complete bank statement of the account and a separate certificate under the signature of the Bank Manager and co-signed by the President of the National Bank of Pakistan stating the amounts that were respectively remitted to the Government of Pakistan and the Government of Sindh and that the said account has been closed.

19.         Learned Mr. Butt states that Bahria Town and Malik Riaz Hussain have also filed CMA No. 9760/2023 which states that the National Accountability Bureau (‘NAB’) constituted under the National Accountability Ordinance, 1999 has issued notices to them and the matter is pending before NAB. We are cognizant of our jurisdiction and consider it inappropriate to comment thereon, let alone to pass any order with regard thereto as it may adversely affect the rights of the parties. Therefore, CMA No. 9760/2023 is dismissed.

20.         Certain issues, pertaining specifically to the allottees of Bahria Town and generally to allottees of all housing/commercial schemes launched by developers/builders were highlighted. These included: (a) allotments are not honoured, (b) duplicate allotments issued to more than one person and (c) allotments are arbitrarily cancelled by developers/builders. This raised the question of the law and/or official procedure which governs allotments issued by developers/builders, but to our disappointment we learnt that the public is left unprotected. It is painful when those who spend their lifelong savings to purchase a piece of land or an apartment are left at the complete mercy of developers/builders. Learned AG states that when a sale or a lease deed is registered pursuant to the Registration Act, 1908 the transaction gets recorded, but, before this stage neither the government nor any official organization maintains the record of the allotments and of their ownership. Allottees suffer in the absence of requisite record keeping. Legislators and governments, who must want to protect the public and ensure proper record keepings will undoubtedly act to fill this lacunae.

21.         In this age of information technology and computerization, record keeping can easily be undertaken with little capital outlay and every transaction can be recorded. Developers and builders, including public sector authorities and societies, should be required to electronically, and automatically, transmit to a designated record keeper every transaction with complete particulars thereto, and to periodically provide a hard copy of the transactions. In addition to protecting the public this would also prevent double book-keeping by developers/builders and will document the economy. Double book-keeping, and the cash received by some developers/builders, facilitates the growth of the undocumented (black) economy, with its attendant ills and criminal activity. On payment of a nominal fee the allottee could also monitor allotments and changes made thereto. The absence of record keeping encourages unscrupulous builders/developers to exploit allottees. Litigation also ensures, adding to the cases already pending and it further overwhelms the courts. In the absence of record keeping of properties courts are faced with the difficult task to ascertain facts and then to determine the respective rights of parties. Such litigation would be avoided if there was proper record keeping of allotments and other transactions. A record keeping mechanism could also be designed to prevent duplicate or multiple allotments in respect of the same plot of land or apartment, and to also prevent arbitrary cancellation of allotments. Learned AG assures us that he will convey the Court’s concerns to the Government of Sindh, and is confident that the province will become the torchbearer for other governments to follow.

22.         The National Bank of Pakistan and the Government of Pakistan are not parties herein, therefore, copy of this order be sent to them for information and compliance. Copies of paragraphs 20 and 21 of this order be sent to the Ministry of Finance, Ministry of Housing and Works, Ministry of Law and Justice of the Federal Government, Federal Board of Revenue, Capital Development Authority, and to the provincial Finance and Housing Departments of all provinces for their consideration. Copy of this order be also sent to the National Crime Agency of the United Kingdom at 1-6 Citadel Place, Tinsworth Street, London SE11 5EF, United Kingdom.

23.         All the listed CMAs, CM Appeals and Constitution Petition No. 34 of 2023 are disposed of, except those filed by the Bahria Town which are dismissed, including Civil Review Petition No. 15/2021 which has already been dismissed. Bahria Town filed frivolous applications and the CRP and wasted the time of this Court, therefore, we impose costs of an amount of one million rupees which should be paid to the Sindh Institute of Urology and Transplantation, which is serving the people of Sindh. Bahria Town should in addition also reimburse to the Government of Sindh the amount of one million rupees regarding the amount spent on the survey conducted by the Survey of Pakistan.

Order accordingly