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Petitioner: (1) Syed Mehmood Akhtar Naqvi (2) Muhammad Sohail (3) Waqas Riffat and others VS Respondent: (1) alik Israr, Sr. Member Board of Revenue Sindh (2) Muhammad Ali Shah, Deputy Commissioner District West Karachi (3) S.M. Akhter Naqvi and another (4) Mehmood Akhtar Naqvi and others
Court Name: Supreme Court of Pakistan Judge(s): Maqbool Baqar, Faisal Arab, Ejaz Afzal Khan Title:(1) Syed Mehmood Akhtar Naqvi (2) Muhammad Sohail (3) Waqas Riffat
and others vs (1) alik Israr, Sr. Member Board of Revenue Sindh (2) Muhammad Ali Shah, Deputy Commissioner District West Karachi (3) S.M. Akhter Naqvi and another (4) Mehmood Akhtar Naqvi and others Case No.:(1) CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011 (2) CIVIL MISC. APPLICATION NO.450-K OF 2014 IN S.M.C. NO.16 OF 2011 (3) CRIMINAL ORIGINAL PETITION NOS.20-K TO 23-K OF 2014 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 (4) CIVIL MISC. APPLICATION NO.275-K OF 2015 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 Date of Judgment:2018-05-04 Reported As: 2018 PSC 869, 2018 SCP 1197 Result: N/A Judgment EJAZ AFZAL KHAN, J.- C.M.A 376-K of 2014 was filed alleging that Malir Development Authority (hereinafter called "MDA") is adjusting the government land pursuant to the notifications issued by the Board of Revenue, Sindh. It was alleged that the value of the government land was far higher than the value of the private land it was exchanged for. The exchange thus effected was looked at with raised eyebrows. A series of orders was passed by this Court in this behalf. The order pass ed on 23.07.2015 is quite significant for the purposes of this case. The relevant part of the order deserves a look and thus runs as under: "The Deputy Commissioner, Malir admits to have signed the plan defining the boundaries of controlled area. According to him the master plan is comprised of 43 dehs. He states that he has merely forwarded the plan to the Senior Member, Board of Revenue. He further states that all the layout plans are routed through him and the schemes of the layout plans whether private or otherwise are signed by him after verifying their title. He is directed to place before us all the schemes whether public or private with their layout plans, which he has forwarded or verified since the day he assumed the office of Deputy Commissioner, Malir before the next date of hearing. Mr. Rasheed A. Rizvi, Senior Advocate Supreme Court for MDA, when confronted as to how the MDA has acquired the title of the land, states that the land is owned by the Provincial Government and there is no notification by the
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Board of Revenue allowing the MDA to utilize this land. He however , relies upon sections 8 and 14 of MDA Act, 1993, which has been amended in the year 2013 for the purposes of acquiring power of allotment. We with respect disagree with this contention of the learned Counsel. The Board of Revenue under law, with the approval of competent authority has the authority to allot land under the Colonization Act and no other procedure provided in law, for allotment of land. Another order having meaningful bearing on this case was passed on 09.03.2016. The relevant part of the order reads as under: "We are informed by the Chief Secretary , Sindh that the Sr. Member , Board of Revenue has proceeded to Islamabad on account of some family emergency and will be back by today evening . Since the matter relates to the Board of Revenue, therefore, we deem it necessary that he should appear before the Court tomorrow before any Order is passed in this matter . We are further informed that in compliance with the Order passed yesterday , Mr. Muhammad Sohail who was assigned the look after as D.C. MDA has been de-notified. The Sindh Government is directed to appoint any officer of their choice, eligible for the post of D.G. MDA, within one week in the intervening period, the Secretary , Local Government will have the additional charge. 3. We restrained the MDA from allotting and/or dealing with the land in any manner whatsoever till further orders. The Sr. Member, Board of Revenue yesterday, while present in Court, has disputed the authority of the MDA to allot or otherwise deal with the land with anyone as, according to him, the land was neither allotted nor given possession to the MDA. According to the Sr. Member, Board of Revenue, the land within MDA is fully owned by Sindh Government. Besides the aforesaid reason, this Court on 28.11.2012 has passed restraining order restricting the powers of authority from allotting state land to anyone. This restraining order also applies to all the authorities under Sindh Government who claimed their title from the state/Board of Revenue." On 24.05.2016, this Court apprehending that things are not done in an open, fair and transparent manner , proceeded to pass the order dated 24.05.2016 by observing as under: "We have heard Mr. Waqas Qadeer Dar, Prosecutor General NAB, Mr. Qamar Abbas Abbasi, Investigating Officer , Mr.Farooq H. Naek, learned Sr. ASC, Mr. Zia-ud-Din Sabir , Director Town Planning, MDA and Mr. Rizwan Memon, Sr. Member , Board of Revenue. 2. NAB has so far not been able to complete the inquiry as directed by this Court on the last date of hearing. However it has filed an interim inquiry report. We have gone through this report and from a cursory glance find that whatever probe that has so far been made is not sufficient to address the issues raised by this Court with regard to allotment of land by Government of Sindh to MDA and its subsequent disposal by MDA. Mr. Waqas Qadeer Dar, Prosecutor General NAB seeks a further period of two months to finalize the inquiry. Time for filing final report is extended by two months, From what has been addressed at the bar today by the learned counsel, we are of the view that inquiry must contain answers to the following questions in order to adequately address the issue which is subject matter of these proceedings. i) Whether the Sindh Government allotte d the state land, which is subject matter of these proceedings to MDA under any legal instrument? Whether the possession of allotted land was handed over by the Sindh Government to MDA in terms of Section 10(4) of the Colonization & Disposal of Government Lands (Sindh) Act, 1912? iii) Whether the issuance of the notification dated 26.12.2013 by which 43 dehs were declared as controlled area of MDA created any title in its favour in the land of such dehs? iv) Whether MDA prepared and issued its master plan after 43 dehs were declared to be its controlled area and if so whether such plan was approved by the competent authority? v) Under what authority MDA can exchange private land within its controlled area with the state land? vi) Whether MDA handed over possession of 11000 acres of state land to private land developers and builders which was neither leased out nor handed over by the Sindh Government to MDA? vii) In what manner MDA transferred the land to Bahria Town or its directors or promoters or to any other private land developer or builder?
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viii) Whether MDA was competent to put private persons and land developers and builders in possession of the state land, which the MDA claims to have been transferred to it, on the basis of exchange and or consolidation scheme? ix) Whether the exchange/ consolidation of the private land with the state land by MDA is permissible under the law and that too beyond the area earmarked by MDA for planning purposes? x) Whether exchange of approximately 11000 acres of the valuable state land located on the superhighway by the MDA with the land of the private person/private developers on the periphery under the garb of exchange and or consolidation scheme was in the interest of the state? xi) Whether Bahria Town or its directors or its promoters or any private developers or private parties lawfully owned and possessed land within the limits of district Malir on the date of inviting applications for allotment from public at large for the Housing Schemes through electronic and print media? xii) Whether before inviting applications for allotments from public at large, Bahria Town, its promoters, directors or other private developers got their Housing Schemes approved from the MDA throu gh Deputy Commissioner Malir? and xiii) Whether Bahria Town or its directors or promoters or any private land developer or builder are in physical possession of land in excess of the land given to them by MDA? 3. The NAB shall proceed with the inquiry in an independent manner without being influenced from any quarter. The inquiry in addition to other factors shall probe into the questions formulated hereinabove. For such purpose it shall examine entire record, including the revenue record, which shall be provided by the relevant authority (Senior Member Board of Revenue) to the officers of NAB who are entrusted with the inquiry in the matter. To come up after two months." Another order which was passed on 01.08.2016 is also quite comprehensive as it not only deals with the controversy emerging before this Court but also refers to other orders which are relevant for understanding the instant case in its correct perspective, therefore, its reproduction is necessary which reads as under: "The Prosecutor General, NAB, has filed interim report dated 25.07.2016 (confidential), along with a copy of the survey report dated 20.07.2015, prepared by the Ministry of 'Defense Directorate of Survey of Pakistan. It is contended by the learned Prosecutor General, NAB, that after the order dated 24.05.2016, passed by this Court, the Survey of Pakistan, was approached by the NAB, for demarcation of the land in actual possession of the Bahria Town. 2. The Director of Survey of Pakistan responded to the request of the NAB and after notices to the Board of Revenue Sindh, Survey and Settlement Department, Sindh, Malir Development Authority (MDA), Deputy Commissioner, Malir, and the Bahria Town Karachi, conducted joint survey in presence of the representatives of the aforesaid organizations and compiled report, copy of which was supplied to the NAB authorities and has been placed before us. The Senior Member, Board of Revenue, states that they have not received any copy of the said report. We direct the NAB authorities to supply copies of the survey report to the Senior Member , Board of Revenue, Mr. Aitzaz Ahsan, learned Sr.ASC, for officials of Bahria Town, Mr. K.A. Wahab, AOR for the Bahria Town and Syed Mehmood Akhtar Naqvi, the Applicant, who request to file their objections if they deem it appropriate. The confidential report dated 25.07.2016 submitted by the NAB, shall be kept in sealed envelopes by the office. 3. According to the survey report, the M.D.A has exchanged! consolidated 9140.260 Acres of land to Bahria Town. The survey report contains a portion of green colour with black lines, reflecting that M.D.A has consolidated a piece of land measuring 244.925 Acres which the Bahria Town has not yet developed. The survey report further shows that the total land consolidated by the M.D.A and handed over to the Bahria Town is 93 85.185 Acres. The portion marked with pink colour as "A" reflects that the Bahira Town has developed 386.276 Acres of land which has not yet been consolidated by the M.D.A. The portion of survey report in pink colour marked as "B" reflects that Bahria Town has developed an area of 1975.059 Acres which though developed by the Bahria Town has not been consolidated by the M.D.A. Another portion of the survey report marked as "C" in pink colour shows that the land measuring 410.444 Acres has been developed by the Bahria Town, but has not been consolidated by the M.D.A. The survey report shows that total land developed/under development but not consolidated by the M.D.A comes
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to 2771.79 Acres. In this respect, total area of land of Bahria Town reflected in the survey report comes to 12156.964 Acres. 4. We have inquired from the Chief Secretary, Senior Member, Board of Revenue, and the Advocate General, Sindh, to satisfy us under which law the M.D.A is competent to exchange private lands with the lands falling in the area which is reserved as corridor area, they could not offer any explanation and submit that no such powers are available with the M.D.A to allot or exchange the private land with the State land. It has come on record that no portion of the land pertaining to the subject matter has ever been allotted and or part in possession under Section 10(4) of the Colonization of Government Lands Act, 1894, by the Sindh Government to the M.D.A, which fact was confirmed by the Senior Member, Board of Revenue and incorporated in the order of this Court dated 09.03 .2016, which has already been reproduced above. This Court after going through the survey report dated 20.07.2016 observed as under: 5. After going through the survey report dated 20.07.2016, we, in order to safeguard the public interest and to avoid multitude of proceedings, are constrained to pass the following interim order:- (i) the Bahria Town is restrained from undertaking any development activity in the area demarcated with green colour with black lines on it measuring 244.925 Acres and or to deal with this portion of land with any person or organization in any manner whatsoever; (ii) the Bahria Town is further restrained from undertaking any development activity on the portion marked as "A" with. pink colour measuring 386.276 Acres, which is not consolidated by the M.D.A, with further restriction to deal with this portion of the land in any manner whatsoever; (iii) the Bahria Town is restrained from undertaking any development activity on the area marked as "B" with pink colour measuring 1975.059 Acres, which as per survey report has not been consolidated by the M.D.A and to deal with the land in any manner whatsoever; (iv) the Bahria Town is further restrained from undertaking any further developmen t activity on the area marked as 'C" with pink colour measuring 410.444 acres and or to deal with the land in any manner whatsoever; (v) the Bahria Town is further restrained from raising any further development activity in area measuring 2771.779 Acres, which has not been consolidated by the M.D.A and to deal with the land in question in any manner whatsoever; (vi) the M.D.A is restrained from consolidating any further portion of the private land of the Bahria Town or any other private enterprise under the garb of exchange of land in exercise of their powers conferred on them under the M.D.A Act or the Rules framed thereunder; (vii) We further restrict the Board of Revenue, Government of Sindh, from dealing with the land of M.D.A or any other Authority which is subject matter of these proceedings in any manner whatsoever in defiance of the order of this Court passed by a five Member Bench of this Court on 28.1 1.2012; (viii) the MD.A is restrained from dealing with the land which are subject-matter of survey report either with Bahria Town or with any other organization in any manner whatsoever; (ix) defiance of the interim orders passed hereinabove by any of the organization whether public or private shall expose them to contempt proceedings. 6. In order to ensure that no further construction or development activity is carried out on the land specified hereinabove, we direct the NAB authoritie s through the Prosecutor General that they should immediately if possible by tomorrow obtain google earth maps/images of the entire land stated to be in possession of the Bahria Town as per the survey report and submit the same for record. What the orders reproduced above prima facie point to is that the provisions of Colonization of Government Land Act 1912 (hereinafter called "COGLA 1912") and Malir Development Authority Act 1993 (hereinafter called "the MDA Act") were flouted by the Board of Revenue, the Malir Development Authority and Bahria Town. But all the three stated to have stayed within the purview and periphery of the enactments mentioned above. 2. Mr. Farooq H. Naek, the learned Sr. ASC appearing on behalf of the Board of Revenue, contended that the entire process underlying exchange conforms to the relevant dispensation; that Malir Development Authority Ordinance,
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1993 was promulgated which was replaced by the Malir Development Authority Act, 1993 (Act XI of 1994); that Malir Development Authority has been established under Section 3 of the MDA Act; that the Authority has been constituted under Section 4 of the MDA Act which is consisting of a Chairman and other members as described in the said provision; what is controlled area, what is a Master Programme and what is a scheme have been defined in Section 2 of the MDA Act, what are the functions of the Authority and how schemes for development of an area are prepared and how the improvement in the socio economic conditions of the people is brought about, what measures are taken by the Authority for carrying out the purposes of the MDA Act and how the land vested in it can be disposed of by sale, lease, exchange or otherwise have been provided in Section 8 of the MDA Act; that the Authority under Section 14 of the MDA Act has the power to declare an area to be a controlled area if it becomes necessary for the prevention of haphazard growth, encroachment and unauthorized construction, etc. and that the Authority has also power to prepare Master Programme for development, improvement, expansion and beautification of such area or such sectors of economy if it is necessary in the opinion of the Authority or the Government. The Authority , the learned Sr. ASC added, may and if directed by the Government shall prepare specific scheme or schemes for controlled areas or part thereof in such form and manner as may be prescribed by Section 17 of the MDA Act; that all the schemes prepared under the MDA Act and operated by or on behalf of the Authority shall be deemed to be schemes for public purpose under Sectio n 25 of the MDA Act and that the Autho rity has the power to acquire by purchase, lease or exchange any moveable or immovable property or any interest therein by entering into an agreement with the party concerned under Section 31 of the MDA Act and that if that cannot be done under the aforesaid section, the Authority can acquire land in accordance with the provisio ns of Hyderabad Development Authority Act as is provided by section 32 of the MDA Act. The provisions of the COGLA 1912, the learned Sr. ASC maintained, do not have much bearing on the provisions contained in the Malir Development Authority Act. The learned Sr. ASC next contended that even COGLA 1912 provides for incremental housing which means a housing scheme sponsored by the government, authority , autonomous body or a company for providing residential land to a family not exceeding 120 yards. Section 10 of COGLA 1912, the learned Sr. ASC maintained, provides for grant of land to any person in a colony; that sub-section 10 (2A) of COGLA 1912 starting with non-obstante clause provides that the land granted under section 10 shall not be exchangeable with private or kabuli land but it would not be of much significance when the provisions of the MDA Act, rules and regulations framed thereunder , in view of section 47 of the MDA Act, would have effect notwithstanding anything contained in any other law, rules or regulations. Section 10-A of COGLA 1912, the learned Sr. ASC argued, also provides that no land shall be disposed of except by the government in accordance with the provisions of COGLA 1912 to an autonomous body, authority, company, a person or group of persons save as otherwise provided under section 10-A (2). The learned ASC next contended that the MDA being a purchaser having paid the entire amount of purchase money could not be deemed to be a tenant in terms of section 15 of COGLA 1912, therefore it could exchange the land so granted to it with private or kabuli land notwithstanding the provision contained in section 10 (2A) and proviso to section 17 of COGLA. The learned Sr. ASC next contended that after the insertion of (ff) in Section 2 of the MDA Act through an Amending Act of 2013 the expression "consolidation" means adjustment by way of exchange or otherwise for the purpose of the scheme, therefore, it has to be taken as such while dealing with the controversy raised in this case. The learned Sr. ASC next contended that nothing in the Transfer of the Property Act 1882 would apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein by or on behalf of the Government to or in favour of any person, therefore, any transfer or adjustment in violation of the said Act cannot be held to be illegal or against law. Malir Development Authority, the learned Sr. ASC stated at the bar is carrying out various schemes such as Shah Latif Town, New Malir Housing Project and Taiser Town by exchanging the government land granted under section 10 of COGLA 1912 with private or kabuli land, therefore, exchange of land granted to the MDA with private or kabuli land is not something unusual or unprecedented. Another objective underlying such schemes, the learned Sr. ASC added, is to ensure planned development and avoid mushroom growth of housing schemes or at random construction of houses. The learned Sr. ASC next contended that how land is to be disposed of and what are the restrictions on its disposal have been provided in paragraph 4 of the notification No. 09-294-03- SO-I/336, dated 25.02.2006 issued by the Government of Sindh under Section 10(2) of
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the COGLA, 1912; what is the procedure for determination of market price has been highlighted in paragraph 8(1)(a) (b) and 8(2)(i)(ii)(iii) and how the Price Committee submits its recommendations to the Scrutiny Committee has been provided by paragraph 8(3) of the statement of conditions issued in 2006. The learned Sr. ASC next contended that the notification mentioned above was modified vide notification No.09-294-03/SO-I/719 dated 10.11.2010, whereunder constitution of the Land Reservation and Allotment Committee was provided as is evident from paragraph 3 of the notification. The learned Sr. ASC next contended that the Board of Revenue also has the power to reserve and grant the land and that reservation and grant are regulated by law. The process of reservation, grant, consolidation, exchange and disposal of land is not unprecedented and that all the decisions taken in this behalf are reflected in the summary of the Chief Minister; that a meeting was convened on 24.01.2014 wherein the Authority was requested to accord approval regarding the work already done and prepare schemes for execution of Master Programme of 32 out of 43 villages; that the Authority accordingly approved a proposal as described in item No. 1; that the Authority also approved item No. 2 for consolidation, exchange and adjustment of private ownership with state land; that the Director General, MDA in his note dated 01.01.2015 highlighted the approval of the competent authority i.e. the Chief Minister , Sindh regarding the reservation of 14617 acres of State Land in favour of MDA for public purpose on price; that the land so reserved for MDA was mutated in favour of the MDA as was communicated by the Deputy Commissioner , Malir vide letter dated 28.01.2014 with the request to approach Member Utilization Department, Board of Revenue, Sindh for payment of price as per procedure agreed upon in the meeting held under the Chairmanship of the Chief Secretary , Sindh on 23.01.2014. The request, learned Sr. ASC stated, for fixation of price amounting to Rs.1,25,000/- per acre was also forwarded. The learned Sr. ASC next contended that summary for the Chief Minister would also show the name of the village, area in acres N.C.No., category , market price per acre notified in the years 2011 and 2012, total market price and final approval of the Chief Minister . The learned Sr. ASC next contended that MDA has made payment of Rs. 1.66 Billion to the Board of Revenue for the land measuring 11068 acres in five villages namely , Karkharo, Langheji, Konkar , Kathore and Bolhari at the rate of 25% of market price out of the nine villages measuring 14617 acres. The learned Sr. ASC went on to argue that the entire process of the land adjustment has been transp arent as it was made after due publication in various newspapers and that the rights of MDA and the interest of government have been fully protected at every step. The learned Sr. ASC lastly contended that where price of the land has been paid, mere fact that conveyance deed has not been executed would not affect the sale. Learned ASC by referring to the chart describing the categories of the land and their prices fixed in 2006 and then in 2011 contended that the latter are on lower side but they were perfectly justified by the ground realities as no town build er in view of the prices fixed in 2006 came forward to invest in the building project. The learned Sr. ASC by elaborating his arguments contended that the aforesaid rationalization being in conformity with the prices of similar land in the market has been rightly accepted by the Chief Minister Sindh. 3.…
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