SC questions land legislation in Bahria Town case

ISLAMABAD: The Supreme Court on Wednesday questioned political connections and intention behind the passage of a law that resulted in the exchange of land between the Malir Development Authority (MDA) and Bahria Town Karachi.

“Who built a big house in Lahore and how the Sindh government doled out prized lands to a third party,” wondered Chief Justice of Pakistan Mian Saqib Nisar while heading a five-member bench that had taken up a petition seeking review of its judgement in the Bahria Town Karachi case.

In its May 4 verdict, the SC had barred the Bahria Town Karachi from selling plots or apartments from the housing scheme and also declared transfer of lands between the MDA and the Bahria Town Karachi as illegal.

Hints at referring the matter to NAB

The CJP observed that the Colonisation of Government Land Act was amended only to consolidate the lands for onward transfer to a third party with retrospective effect due to political connections. The court made it clear that it was not striking down the law. “But to derive true interpretation, we have to go into the intentions behind adopting the law,” the bench observed.

The observation came when senior counsel for Bahria Town Karachi Ali Zafar argued that the court could not question intention of legislators behind the passage of a particular law.

Around 9,385 acres of land in 43 Dehs was consolidated by the MDA and handed over to the Bahria Town Karachi in 2015. The purpose was to build a private housing society at a 25-minute drive from the Jinnah International Airport and nine kilometres from the Karachi toll plaza on the Superhighway.

At the hearing, Bahria chairman Malik Riaz tried to explain his position by claiming that never in the history of Pakistan, a quality living style equivalent to that of a five-star hotel facility — rather better than what was available in the United Kingdom or other developed countries — was available to “middle and lower middle class at affordable prices”.

Mr Riaz asked the CJP to visit the housing scheme and then determine whatever penalty he had to pay to continue with the project. The CJP retorted that he did not want to label him but Robin Hood also used to do many good works by doling out among the poor what he got from the rich.

Also representing the builder, Barrister Aitzaz Ahsan argued that the court should never lose sight of the fact that the Bahria Town Karachi converted a barren desert into a Dubai-like living facility.

Justice Asif Saeed Khosa, however, observed that the court was being asked to close its eyes and consider the quality of work by ignoring the illegality in the entire transaction. Such kind of arguments would not be acceptable in any court of the world, said Justice Khosa, adding that the court could never validate any such illegality.

Justice Khosa repeatedly reminded the counsel pleading the Bahria Town case to understand the gravity of the illegalities. The CJP observed that the court would not allow any individual to swallow or monopolize the public land, because the assets belonged to posterity.

The court, however, floated the proposal that the entire project be taken over by the MDA while assuring those who owned properties in the scheme that they would not be affected, or the builder be asked to pay the penalty, the remaining balance and the profit earned by utilising the lands.

The court also hinted at referring the matter to the National Accountability Bureau (NAB) to determine who were instrumental in the transfer of lands to the third party.

Mr Zafar, the defence counsel, argued that the MDA had transferred 7,068-acre land to the Bahria Town Karachi for the development of a housing scheme in exchange for land of an equal size. The value of the land provided by the MDA to the Bahria Town Karachi was Rs6.2 billion but the land that was given by the Bahria Town Karachi to the MDA in exchange was valued at Rs5.8 billion. Of this, he added, Rs240 million had been paid whereas Rs20 million was still in balance.

When he cited Article 38d of the Constitution that obligates the government to provide basic necessities of life like food, clothing housing, education etc, Justice Khosa said the purpose of that article was to provide such necessities to the destitute or the shelterless and not for the enrichment for big mansions.

Justice Khosa described the interpretation offered by the counsel as ‘beneficial interpretation’.

When the counsel argued that providing housing facilities was part of the public policy, the CJP questioned whether acquisition of land for a third party also part of the public policy.

The counsel, however, argued that proper master plan and zoning for the development of a planned city instead of current haphazard town planning was the need of the day.

The court highlighted that the developer was not selling properties to the destitute but to the rich. The court then postponed further proceedings till Oct 1.

Published in Dawn, September 13th, 2018

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