Updated May 04, 2018 07:02pm

Supreme Court finds massive illegalities in land acquired by Bahria Town for housing projects

Dawn.com | Haseeb Bhatti

In three separate yet equally searing verdicts delivered on Friday, the Supreme Court (SC) came down hard on Bahria Town's illegal procurement of land for its housing projects across the country, in each case declaring all such transfers null and void.

Justice Ejaz Afzal Khan authored the hard-hitting majority judgements in each case, which were heard by a single three-member bench. He was accompanied by Justices Maqbool Baqar and Faisal Arab.

Each order was passed 2-1, with Justice Maqbool Baqar dissenting in each case.

Bahria Town Karachi

The apex court barred Bahria Town from selling or allotting land in the Bahria Town Karachi project after declaring that the allotment of land to the company by the Sindh government and a massive land swap with the Malir Development Authority (MDA) was done illegally.

"[...] We are constrained to declare that the grant of the land to the MDA, its exchange with the land of Bahria Town and anything done pursuant thereto being against the provisions of COGLA 1912 [Colonization of Government Lands Act, 1912] and statement of conditions are void ab initio and as such have no existence," the court ruled.

Read more: Bahria Town — Greed unlimited

"The government land would go back to the government and the land of Bahria Town exchanged for the government land would go back to Bahria Town," the court ordered.

The bench hearing the case further directed the National Accountability Bureau to file references against those responsible for illegally transferring and allotting land and to take action against them within three months.

The court also considered the interests of those people Bahria Town has already sold the land to.

"Since a great deal of work has been done by the Bahria Town and a third-party interest has been created in favour of hundreds of allotees, the land could be granted to the Bahria Town afresh by the Board of Revenue under the provisions of COGLA 1912."

"What would be the terms and conditions of grant, what would be the price of the land, whether it would be the one at which the Bahria Town sold the land to the people by and large, how much of government land and how much of the private land has been utilized by the Bahria Town, and what Bahria Town is entitled to receive in terms of money on account of development of the land are the questions to be determined by the implementation bench of this court."

"We, therefore, request the Honorable Chief Justice of Pakistan to constitute a bench for the implementation of this judgement in its letter and spirit," it asked.

"Bahria Town shall not sell any plot, built-up unit, apartment etc after the announcement of this judgement. Any allotment made after the announcement of this judgement shall be void," the court ordered.

"The National Accountability Bureau (NAB) shall pick up the thread from where it left and take its investigation to its logical end. The investigation report which was submitted in the Court and sealed under its order may now be collected for further action. The investigation be completed within a period of three months from the date of announcement of this judgement and a reference be filed in the Accountability Court against all those who are found responsible for causing loss to the state exchequer," the court further ruled.

"We have been told that government land has also been allotted to DHA and many other societies on cheaper rates as compared to the rates in this case. If so, we would request the Honourable Chief Justice of Pakistan to take suo moto action in this behalf so that like be treated alike."

Read more: The DHA juggernaut rolls on in the name of development

Bahria Town Rawalpindi

Separately, the SC also held Bahria Town responsible for encroachment on forest land in the Takht Pari area near Islamabad.

The issue raised in the Takht Pari case was that Bahria Town had 'encroached' upon 1,170 kanals of forest land, while the forest department had 'encroached' on an area measuring 765 kanals of Bahria Town.

However, the court struck down this mutual 'encroachment' deal, deeming it illegal and of no effect.

"We declare that the area of Takht Pari is 2,210 acres; that exchange of land purportedly encroached by Bahria Town and the forest department and attestation of mutations in this behalf being based on an erroneous assumption about the area is against the law and the record and as such of no effect and the order passed in S.M.C.No. 3 of 2009 is recalled."

"However, if any third-party interest has been created over the forest land what to do therewith and how to deal therewith shall be decided by the implementation bench," it ruled.

The court then directed the forest department, the revenue department and the Survey of Pakistan to conduct a fresh demarcation in the Takht Pari area.

It also issued notices to the forest department and Bahria Town to submit a report within one month before the SC implementation bench.

NAB was also directed to look into who authorised the illegal allotments in the Takht Pari area and pursue them in an accountability court.

New Murree Development Scheme

In a third order issued the same day, the Supreme Court also struck a death blow to the New Murree Development Project/Scheme, which had been roundly criticised by environment protection agencies for endangering the forests and land around Islamabad.

"We do not understand how suitable chunks of land were chosen and taken possession of without having recourse to legal proceedings and without the permission of the government in gross, grave and glaring violation of the law governing the partition of such land.

"We do not understand how the trees and bushes running in millions were cut from the shamlat-i-deh [communal land] and how was it converted into a building site. We also do not understand how the government slept over its rights and sat around like an idle spectator when everything was ruined and run amuck by Bahria Town or for that matter any other builder without realizing that fauna and flora are better served by the natural growth of trees than the mountains of iron, cement and concrete," Justice Ejaz Afzal Khan wrote.

"[...] As a sequel to what has been discussed above, we have no hesitation to hold that any area of shamilat-i-deh broken up for cultivation or any other purpose, partitioned, taken possession of or constructed in violation of the wajib-ul-arz [agreement between settled villagers using the land and the government] and rule 4A and 4B of the Rules mentioned-above, being illegal and unlawful is of no effect."

"The area thus broken up, partitioned, taken possession of or constructed be retrieved by the government forthwith. All construction work in shamilat-i-deh be stopped forthwith. The construction work carried in private ownership would continue only if it is okayed by the Rawalpindi Development Authority and Environment Protection Agency."

"The persons and officials of the revenue department be proceeded against. The NAB is directed to investigate the case and file references against all those who are found responsible for committing, aiding and abetting the crime at any level or in any form."

"If at all a great deal of construction work has been done on the property comprised in shamilat-i-deh, plots have been transferred, superstructure has been raised thereon and third-party interest has been created therein, a spade would remain a spade and an illegal act would remain illegal. However, the questions what to do with the allottees, how to deal with their cases and what remedial measures could be taken in this behalf shall be dealt with by the implementation bench.

"We, therefore, request the Honourable Chief Justice of Pakistan to constitute an implementation bench in this behalf to deal with the questions mentioned above.

"It is, however, added that the provincial government and the Forest Department take care of the areas of the shamilat-i-deh to develop it by afforestation."

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