ISLAMABAD: The Supreme Court on Thursday reserved its ruling on a controversy concerning the lease of railway land for developing Royal Palm Golf and Country Club in Lahore.

A three-judge bench headed by Justice Sheikh Azmat Saeed reserved the judgement after a daylong hearing on the controversy highlighted through a 2011 joint petition by former minister of state for railways Ishaq Khan Khakwani, now Pakistan Tehreek-i-Insaf’s central leader, and one of the founding members of the Pakistan Peoples Party, Dr Mobashir Hassan.

The dispute revolves around the lease of 141 acres of railway land to Messrs Mainland Husnain Pakistan by the Pakistan Railways allegedly in a non-transparent manner and flagrant violation of settled principles to develop the Rs50 billion Royal Palm Golf and Country Club.

During the hearing, incumbent Railways Minister Sheikh Rashid Ahmed pleaded before the court that only the Supreme Court could go after those involved in the scam since the National Accountability Bureau (NAB) did not have the courage to go after the generals.

Railways minister says only the apex court can go after the generals facing accusation of involvement in the scam

And to end the corruption, action must also be taken against the bureaucrats, he argued, adding that the railways department had gone bankrupt and was running in deficit.

Senior counsel Allahyar Nawaz, who represented Ishaq Khakwani, emphasised that the case at hand was a classic case of kleptocracy showing how the powerful and the business class came closer.

He contended that former president retired Gen Pervez Musharraf gave out the railways to generals by appointing retired Lt Gen Javed Ashraf Qazi as chairman first and then elevating him as the federal minister for railways.

The counsel contended that on the directive of former prime minister Shaukat Aziz, the company which was not in the prequalification proceeding was made part of the consortium and Lt Gen Qazi allegedly started private negotiations with the bidder.

He contended that instead of referring the matter to NAB, the apex court should itself proceed against the then railways officials and Lt Gen Qazi allegedly involved in the illegal deal, the counsel argued, adding that he had no faith in NAB as it had filed a reference against the persons involved in the scam only last year — after a delay of seven years.

The counsel requested the court to inflict heavy damage and penalties on the defaulters.

Later, Barrister Syed Ali Zafar, arguing on behalf of Mainland Husnain, contended that firstly each and every allegation made in the petition was mirrored in a reference filed by NAB in this case in an accountability court.

And any finding on any of the issues, whether in favour of or against Mainland Husnain, will prejudice the criminal trial and, therefore, either the apex court should dispose of the petition and wait for the final outcome of the trial in the accountability court or quash the reference and decide the matter itself.

The second question which arises in this case, Barrister Zafar argued, was whether the Supreme Court could proceed in the matter under Article 184(3) of the Constitution without a trial since under Article 10-A, the civil and criminal liabilities of any person had to be decided by fair trial and, therefore, Article 184(3) was not an appropriate remedy.

Thirdly, Barrister Zafar argued, the contract between the parties contained an arbitration clause which provided that all disputes must be settled through arbitration and accordingly this dispute between the railways and Mainland Husnain had to be decided by arbitration.

On merits, Barrister Zafar contended that the railways had kept changing its stance with the change of government which was unfair, adding that a businessman did business with the government and not with any political party and once an agreement was executed it was against all norms of justice to deny its validity.

He submitted that it was a build, operate and manage project in which all the investment was to be made by the investor who was then to manage the project and at the end of the lease the entire beautiful project along with all its buildings, facilities, etc, were to be given back to the railways.

Published in Dawn, April 12th, 2019