1. Learned Mr. Salman Aslam Butt states that Bahria Town (Pvt.) Limited ('Bahria Town'), whom he represents, has filed Civil Misc. Application ('CMA') Nos. 11052/2019, 1234/2021, 1235/2021 and 8884/2023 in February and March 2021, but were not fixed for hearing for over two and a half years for no discernible reason. It is submitted that a consent order was passed by this Court on 21 March 2019 under which Bahria Town was supposed to have been given 16,896 acres of land in District Malir but it received only 11,747 acres of land. In this regard he has referred to a letter of Malir Development Authority ('MDA') which, according to learned counsel, supports his stance.
Therefore, since 16,896 acres of land were not delivered to Bahria Town it stopped making payment to which it had consented and that needs to be re-assessed.
2. Learned senior counsel Mr. Farooq H. Naek represents MDA and states that MDA filed concise statement (CMA No. 2039/2020) with regard to CMA No. 11052/2019 which was filed by Bahria Town.
He states that Bahria Town is in possession of 12,237.5 acres of land and the remaining land could not be given to Bahria Town because it was utilized by different utility providers.
3. Syed Mahmood Akhtar Naqvi states that it was on his complaint that this matter was taken note of by this Court. He states that he has filed CMA No. 339/2021 and another application, which has not been numbered, wherein he has alleged that Bahria Town is in possession of 37,777 acres and the contentions of Bahria Town and MDA are not correct. The un-numbered application be numbered and notice of both applications be issued to Bahria Town, to MDA and to the Government of Sindh, who, if they dispute the allegation, may file concise statement with requisite proof.
4. The consent order dated 21 March 2019 had mentioned that 460 billion rupees was the price of the land, the period within which it was to be paid, the mode of its payment, and that if two consecutive installments or three installments in toto were not paid it would constitute a default.
The past/present directors/shareholders/promoters of Bahria Town stood as guarantors of the said amount. In view of Bahria Town's commitment the filing of Reference by National Accountability Bureau was stayed.
5. However, of the agreed amount 460 billion rupees only about 60.72 billion rupees were paid of which Bahria Town paid 24.26 billion rupees and the allottees paid about 1 billion rupees. In response to our query learned Mr. Salman Aslam Butt stated that as per media reports certain amounts were remitted from abroad and paid pursuant to an agreement, and that he will be filing requisite documents in this regard.
6. The following persons, as per the consent order, had guaranteed to make payment if Bahria Town failed to pay:
(1) Malik Riaz Hussain son of Malik Aashiq Hussain,
(2) Ahmed Ali Riaz son of Malik Riaz Hussain,
(3) Mrs. Bina Riaz wife of Malik Riaz Hussain and
(4) Mr. Zain Malik son of Arshad Malik.
Therefore, since the interest of the aforesaid may be affected notices be issued to them.
It would be appropriate to also issue notices to those who had remitted monies from abroad (about UK Pounds 136 million and about US Dollars 44 million), which was converted into Pakistani rupees (about 35 billion rupees), who are as under:
(1) Fortune Event Limited, Emirates Hill, MC-2, P.O. Box 94359, Dubai, UAE.
(2) Mubashara Ali Malik, Villa MC-2, Emirates Hills, P.O. Box 94359, Dubai, UAE.
(3) Bina Riaz and Sana Salman, Villa MC-2, Emirates Hill, Nasreen Street 2, Dubai, UAE.
(4) Ahmed Ali Riaz, Villa MC-2, Emirates Hill Third, P.O. Box 9435, UAE.
(5) Mashreq Bank, PSC 1st Floor, 2 London, Wall Building, London.
(6) Ultimate Holdings MGT LTD, P.O. Box 957, Off Shore Incorporation Road, Town Tortola, British Virgin Islands.
(7) Premier Investments Global Ltd., Villa 1, Emirates Hill Third, P. O. Box 94359, Dubai, U.A.E.
(8) Ahmed Ali Riaz, Villa MC2, Emirates Hill Third, P.O. Box 9435, UAE.
(9) Premier Investments Global Ltd. Villa 1, Emirates Hill Third, P. O. Box 94359, Dubai, UAE.
(10) Wedlake Bell LLP, 71 Queen Victoria Street, London EC4 V 4AY, GB.
Notices to the above be sent through registered post and also through the Pakistan Embassy/High Commission or Pakistan Consulate.
7. Learned Mr. Hassan Akbar, the Advocate-General, Sindh ('AG') seeks time to file concise statement. He further states that the amounts that were paid should be given to the Government of Sindh since the subject land was of the Government of Sindh, and in this regard has referred to CMA Nos. 8038/2020, 3519/2021 and 7469/2021. However, learned Mr. Farooq H. Naek states that MDA is entitled to the said monies as it had bought the land from the Government of Sindh. Since the Government of Sindh and MDA have taken contrary positions, they should file concise statements with supporting documents of ownership/sale of the said land.
8. Learned Mr. Salman Aslam Butt read paragraph 18 of order dated 4 May 2018, and read orders dated 21 March 2019 and 20 October 2020, and its Annex. All the learned counsel and learned AG state that the Commission which had been constituted (detailed in the said Annex) never functioned as the Chief Justice did not appoint its Chairman. The learned AG and the learned counsel to assist whether it is incumbent upon the Chief Justice to appoint such Chairman, and if the Chief Justice does not appoint the Chairman what would become of the Commission; in this regard we look more towards senior counsel to assist and the senior most counsel before us is Mr. Farooq H. Naek. They should also assist on whether the order dated 21 March 2019 can be varied, modified or amended.
9. During the hearing we enquired whether MDA and the Sindh Building Control Authority ('SBCA') had issued requisite approvals to the project of Bahria Town. Mr. Farooq H. Naek stated that he will be submitting documents on behalf of MDA and the learned AG stated he will be submitting the same on behalf of SBCA; MDA and SBCA are directed to do so through their respective concise statements signed by senior most persons of the said organizations.
10. Learned Mian Abdul Rauf states that he does not want to press Civil Misc. Appeal No. 53 of 2020, which was ordered to be fixed in Court. Therefore, the same is dismissed as not pressed.
11. Learned Mr. Haseeb Jamali states that he has filed Civil Misc. Appeal No. 176/2021 on behalf of some of the allottees of Bahria Town, seeking to be arrayed as parties. Learned Mr. Aftab Alam Yasir states that he has filed Civil Misc. Appeal No. 107/2020 wherein a similar prayer is made. Learned Nayab Hassan Gardezi states that he has filed Criminal Original Petition No. 118/2019 on behalf of some allottees. Learned Mr. Salman Aslam Butt strongly opposes entertaining these appeals/petition as it will result in the matter never concluding because there are thousands of allottees and each one may start agitating their individual grievances; the learned AG agrees.
Since there are a very large number of allottees and as this Court is cognizant of the interest of the allottees, therefore, we do not consider it appropriate to array them as parties, but counsel representing the allottees may attend Court proceedings and interject whenever they consider the interest of the allottees is being adversely affected. Accordingly, the applications and the petition are disposed of, however, they may move appropriate applications, if subsequently they deemed it necessary.
12. The abovementioned concise statements/documents must be filed latest by Monday, 6 November 2023, failing which the same may not be considered.
13. Adjourned to Wednesday, 8 November 2023. It is clarified that no request for adjournment will be entertained, and if any counsel cannot attend he or his client shall make alternate arrangements.