ISLAMABAD The Supreme Court has ordered a wholesale giant in Karachi to close down its huge commercial outlet in the Lines Area in three months and restore the 4.9 acres of land on which the structure was built to its original status of a playground.
'Makro-Habib is allowed three months from the date of this judgment to remove its structures and installations from the playground, restore it to the same condition as existed on the date of the sub-lease and hand over its vacant possession to the city district government, Karachi (CDGK),' a bench comprising Chief Justice Iftikhar Mohammad Chaudhry, Justice Jawwad S. Khawaja and Justice Ghulam Rabbani ordered in their judgment on Friday.
The court had taken suo motu notice of the matter on the basis of an article published in Dawn titled 'A plea to the Lord Chief Justice', by columnist Ardeshir Cowasjee.
The 32-page verdict authored by Justice Khawaja ordered the city government to develop and maintain the land as a playground or use it for any other purpose permissible under the law.
'The playground was and will remain an amenity plot falling within the jurisdiction and zoning/regulatory control of the CDGK,' it held.
It said the federal government, acting in the name of former president Pervez Musharraf, had no legal authority to grant leasehold rights to the Army Welfare Trust (AWT) which later sub-leased the land to Macro-Habib Pakistan (MHPL) to build a cash and carry wholesale outlet.
The court cancelled the lease granted in 2002 in favour of the AWT and also sub-lease of the land to Makro-Habib in July 2006.
The land measuring 4.958 acres is situated in a central and densely populated area of Karachi.
During the proceedings, Karachi-based NGO Shehri, citizen Mehfoozun Nabi and the CDGK contended that the land stood transferred to the city government and was a designated amenity plot dedicated for use as a playground in the master plan for the Lines Area Project.
The government, the AWT and Makro-Habib relied on the Dec 19, 2002, deed whereby the former president had granted lease of the land to the AWT for 90 years at the annual rent of Rs6,020. On July 31, 2006, the AWT transferred the land to Makro-Habib by way of sub-lease for an initial term of 30 years after receiving an advance rent of Rs100 million based on a variable annual amount of at least Rs17.5 million and a maximum equivalent to one per cent of the annual turnover of the outlet.
The court said the AWT, which was also an NGO, had been granted the government land in a wholly opaque and non-transparent manner without any regard to financial interests of the government and without an open invitation to bidders, which could not be treated as a legitimate and permissible exercise of executive powers.
It said the AWT had been set up for a laudable objective of welfare of serving and retired personnel of the armed forces and their families, but it must be achieved through permissible means and not at the expense of the state exchequer or the public at large.
'This guiding principle must inform all decisions taken by state functionaries in the performance of their official duties. This court has repeatedly emphasised the need for state functionaries to act in furtherance of the public interest, as they are fiduciaries ultimately responsible to their paymasters who are the people of Pakistan.
'Unfortunately, in the present case we see that the concerned administrative functionaries have been seriously remiss in the performance of their duty to protect the public interest, whether in the form of providing amenities to the people or of safeguarding the state's financial interests arising from the transfer of rights in state property.
'The people of Pakistan have been blessed with a Constitution and aspire, despite difficulties, to constitutional rule. The Constitution, we can say with certainty, is imbued with an ethos and guiding spirit which underpins it and obliges the organs of the state and their functionaries to act in conformity with such guiding spirit.'
The MHPL issued a press statement saying it had always respected the laws of the country and any ruling of the Supreme Court.
'Makro had all along assumed, in all good faith, that the AWT had lawfully obtained the lease from the defence ministry and invested Rs800 million to set up a store in a backward, depressed and slum area.
'This store provides employment to about 350 families and has played a major part in the economic revival of that highly depressed and slum area,' it said.
Now that the store might have to close down, it said, those families would be out of employment, but it respected all judicial verdicts, especially of the Supreme Court, and would implement the decision.