' This reference under Article 4 of the Parliament and Provincial Assemblies (Disqualification of Membership) Order, 1977, (PPO No, 17 of 1977) has been made by the President of Pakistan hereinafter called the referring authority.
2. The facts as disclosed in the Reference shortly stated are that the respondent Mrs. Benazir Bhutto was elected as Member of the National Assembly from Constituency No, 166 Larkana-III during the general elections held on 16-11-1988 under the Constitution of the Islamic Republic of Pakistan and held the office of Prime Minister of Pakistan. It has been alleged that Para. 16 of the CDA Land Disposal in Islamabad Regulations, 1988 provided that all Commercial and Business Plots were to be sold through public auction excepting plots reserved/to be earmarked for University or any other agency by the Government. It is also provided that the bidder was at liberty to bid for any plot put to auction but the CDA was authorised to reject any bid without assigning any reason and could also resort to open negotiations in case the auction bid fell below the reserved price and had been rejected. According to this Regulation the standard plot size for a Five Star Hotel was 5 acres in Islamabad.
3. It goes on stating that IGTC a London based Firm with no hotel management background or construction experience applied directly to the respondent on 17-10-1989 when she was the Prime Minister for allotment of 287 acres of land north of Rawal Lake in Islamabad for construction of a 350-room hotel plus other facilities. It has been pleaded that the said land formed part of an area reserved for the National Athletic Centre in the Master Plan which was meant for such athletic installations like rowing, canoeing and yachting and a standard size Gold Course. It was alleged that one Muzaffar Mustafa Khan a first cousin of the respondent was a Director of the said Club. On 8-11-1989 the Additional Secretary to the Prime Minister in respect of the said IGTC proposal requested that Secretary Cabinet, Chairman CDA and Mr. Javed Pasha, Chairman, Prime Minister's Project Evaluation Committee, may go through this proposal and formulate views for a subsequent meeting and presentation to the Prime Minister. The exact date and time for the meeting and presentation to the Prime Minister would be conveyed by the Military Secretary to whom a separate reference had been made. According to the referring authority Mr. Shafi Muhammad Sewhani, Member Planning, CDA, opposed the proposal as per his note dated 23-11-1989 pointing out that the proposed site was not for hotels but a reserved area under the CDA Master Plan and that list of parties desirous of setting up 5-Star Hotels had already been submitted to the Prime Minister for "planned sites" for such hotels to which IGTC's name may be added. Allegedly a Committee was constituted in pursuance of letter dated 8-11-1989 which met on 30-11-1989 and the Cabinet Secretary, Acting CDA Chairman and Mr. Javed Pasha, together with Miss Seema Aleem, decided that the questions, inter alia, of land use and planning be discussed within 3-4 days. In the absence of permanent incumbent on leave Mr. Inamul Haq, Additional Secretary, Cabinet Division was informally holding additional charge of CDA.
4. It has further been stated that before the said second meeting could be held the respondent gave additional charge of Chairman of CDA to Mr. Iqbal Jaffar on 3-12-1989 who at that time was the Additional Secretary in the Prime Minister's Secretariat. Within a few days i,e, on 9-12-1989 Mr. Iqbal Jaffar Acting Chairman, CDA directed that a note be prepared for the Prime Minister regarding the said hotel project in pursuance of which a draft note was prepared and submitted by the CDA on 11-12-1989 on the same lines as the note dated 23-11-1989 by the Member Planning.
This was not acted upon and instead on 2-1-1990 the new CDA Chairman sent a note to the Prime Minister's Secretariat fully supporting IGTC's proposal with slight changes. The procedure prescribed was not followed for the change of land use and the Master Plan whereas previously such changes were placed before the Cabinet for approval.
5. It has also been alleged that Mr. Sewhani the member Planning was removed from CDA on 14-1- 1990. The new CDA Chairman discussed the matter on 13-2-1990 with one Rafi-ud-Din representing IGTC and the same day the Chairman CDA sent a note to Mr. Javed Pasha, Chairman Prime Minister's Project Evaluation and Monitoring Committee wherein, inter alia, the allotment of the said land on leasehold basis was suggested. To hasten the finalization of the deal and without even waiting for the response of Javed Pasha, Mr. Jaffar the CDA Chairman discussed the matter with the Prime Minister and within 24 hours, on 14-2-1990 he recorded his minute as under:-- "The proposal made in the letter dated 13-2-1990, addressed to Mr. Javed Pasha was discussed by me with the Prime Minister on the same day. The Prime Minister was pleased to approve the general idea of the proposal made in the letter. The letter of intent may now be issued to the sponsors containing the proposal made in the said letter."
' The letter of intent was prepared and handed over to Mr. Rafi-ud-Din in the office of the Chairman again within 24 hours on 15-2-1990. On the next working day, on the move of Mr. Rafi-ud-Din, Mr. Wahid, Director PE&C, CDA, immediately worked out the cost of land with the approval of the Chairman. The rates were communicated to IGTC through Mr. Rafi-ud-Din which were as follows:-- "(a) Land under hotel/towers/buildings Rs,1,008 per square yards
(b) Recreational land and other areas Rs,400 per square yards
(c) Green Area/Golf Course Rs,17 per square yard
(d) Annual. Ground Rent Rs,0.25 per square yard."
6. It was alleged that the prices particularly for the hotel land, were far below even the reserved price for commercial property sold by the CDA and for sales through auction the prevailing rates were, in fact, Rs,15,000 approximately per square yard of commercial land in 1987, thus involving a potential loss to the CDA and the Exchequer of hundreds of crores of Rupees. According to the reference the entire processing of the case was made without consultation of the Law Officer of the CDA though the same was requirement of the rules. The advice tendered by the Planning was totally disregarded and other Branches of CDA to play their legitimate role. A draft allotment letter was submitted to the Chairman CDA on 1-3-1990 and in the meantime the matter had been reported in the Press and an Adjournment Motion had also been moved in the National Assembly. A draft allotment letter was submitted by the Cabinet Secretary to the Prime Minister with a summary dated 10-3-1990. It pointed out that the letter of intent was issued by the CDA to IGTC after obtaining the approval of the Prime Minister and that, the contents Of draft Allotment Letter were almost the same as that of the Letter of Intent in respect of 287.5 acres of land for the proposed project. This draft Allotment Letter was then further processed by Mr. Muhammad Nawaz Malik, Additional Secretary Prime Minister's Secretariat, who, inter alia, made the following observations:-- "A big chunk of land located in the National Park Area is proposed to be allotted for Hotel. It is not indicated anywhere on the file documents whether the approved Master Plan of Islamabad allows such use. If not, whether permission of the competent authority has been obtained for such a deviation.
' The site of the proposed hotel is located in the most prized/exclusive area with the Constitution Avenue and the Diplomatic Enclave on the North and Rawal Lake on the South. The land in this area is known to be very costly. The rates quoted in para. 2 of the Draft Allotment Letter and in other available papers do not suggest whether they are competitive. It can be safely presumed that, by auction, the proposed land would fetch much higher return."
' On receipt of the aforesaid note of Mr. Muhammad Nawaz Malik, the respondent noted:-- "Views of CDA be sought on points raised above and then resubmitted."
' A Committee was formed including Finance Minister as one of its members. The said Committee met on 6-5-1990 and at this stage, sponsors were asked to produce documents showing their financial position and other details. After this no meeting of the Committee took place. It was alleged that the respondent's actions throughout were not in the public interest because had the deal gone through it would have caused a loss of hundreds of crore of Rupees to the CDA and the Exchequer and equivalent undue gain to M/s. IGTC. According to Referring Authority this amounted to an act of misconduct within the meaning of PPO 17 of 1977.
7. The charges/allegations were denied by the respondent. Evidence has been recorded. In the evidence an attempt was made to prove that the proposed disposal of land for construction of Five Star Hotel was in violation of Master Plan inasmuch as the land was reserved for other purposes and no Hotel could be allowed to be constructed over such land. It has also come in ,the evidence that the said land was part of National Park. An attempt was also made that had this deal gone through and land given to IGTC it would have caused pollution in the Rawal Lake from where drinking water was supplied to the residence of Rawalpindi and Islamabad and that the same was being disposed of through negotiations which was also violative of the Regulation which provided the sale of all the commercial plots through public auction.
8. As is evident from the bare reading of the Reference itself that on none of the documents the respondent has been shown to have written any note in her hand. It was alleged that it was the Additional Secretary Prime Minister's Secretariat who with reference to discussion with the Prime Minister had been dealing with the matter. According to the Rules of Business framed by the Federal Government under the Constitution the oral orders of the Prime Minister after compliance were required to be reported to the Prime Minister for information and record. No evidence has been brought on the record that whatever notes were written by the Additional Secretary to the Prime Minister's Secretariat with reference to oral orders passed by her in this matter were subsequently brought to her notice as required by the Rules of Business.
9. Mr. Shafi Muhammad Sehwani was examined as P.W.
1. He was a Member Planning in CDA. An allegation has been made that he was transferred from the said post on account of having disagreed with the proposed allotment to IGTC. He admitted that he was appointed as Member Planning on 6-2-1984 and that the tenure of service of a Member in CDA as prescribed was four years. He admitted that there was no special reason for his transfer from CDA. He did not state that he was transferred from his post in CDA before the completion of the tenure as a matter of victimisation. He, however, stated that the file was received by him from Mr. Iqbal Jaffar the Acting Chairman of CDA with the endorsement that I should prepare a note for the Prime Minister stating in detail as to what conditions should be imposed to take care of environmental problems and other possible adverse effects on the Lake if the permission is given to build a hotel at the proposed site and he sent the file to Deputy Director- General, Planning, to comply with the said orders immediately. He admitted that in the new proposed site of the hotel, the objection regarding the pellucidly of Lake would not be available. He admitted that according to his opinion a Golf Course around Rawal Lake could be located under the Master Plan. According to the new proposed site it was suggested by the Chairman that if the building of the Hotel was shifted from Rawal Lake side to the Constitution Avenue the pellucidly of Lake would not be affected.
10. In the cross-examination this witness made such admissions which goes a long way to prove that the allegations about violation of Master Plan were absolutely misconceived and baseless. He admitted that buildings like Rest Houses, Islamabad Club, were closer to the Rawal Lake than the new proposed site of the Hotel. He also admitted that some motels were located closer to the Lake than the new proposed site. He also admitted that new proposed site was closer to be Diplomat enclave where there were 70-80 Embassies some of which had residential facilities as well. The new proposed site according to him was closer to the Ministry of Foreign Affairs in which 100 people were working and the employees were about 500. He admitted that the building in which the Ministry for Foreign Affairs was located used to be a hotel known as `Shehrzad Hotel' some time before. He when suggested categorically stated that he had not received any message/directions from the then Prime Minister i,e, respondent in connection with this case. He further admitted that nobody from the side of the respondent ever got in touch with him in connection with this case.
When questioned he admitted as correct that CDA allowed variations in Sector F/7 in the ground- plan by creating plots for Pir Sahib Pagara, for Mr. Ilahi Bakhsh Soomro and for Brig. Durrani etc. He further admitted that Hotels Holiday Inn, Islamabad Hotel and Ambassador Hotel were situated inside the city. He stated that though the hotel business is an industry yet it could be located in residential areas. He admitted that the sister of Mr. Iqbal Jaffar's wife was married to him but he divorced her on account of which there was lot of bitterness between his family and the family of Mr. Iqbal Jaffar. He admitted that Facto Cement Factory was established in the area during the regime of late General Muhammad Ziaul Haque.
11. Qanaat Ali, Director Estate Management, CDA stated that Hotel Holiday Inn was 5-Star Hotel and excepting that there was no 5-Star Hotel in Islamabad and the plot on which it had been constructed was not auctioned and instead it was allotted. CDA according to him did not impose any condition for the construction of the said Hotel as was attached to the proposed hotel in dispute. He stated that it was not in his knowledge that any objection to the proposal for building a hotel by IGTC with the facilities, mentioned in the document P.W.2/7 was raised by any person in CDA. He also admitted that allotment to Hotel Holiday Inn initially was made at the rate of Rs,100 per square yard which was later on raised to Rs,300 per square yard. He admitted that CDA did not have any hotel, rest house or guest house where it could accommodate any Head of the State or any guest of Ministerial level. He admitted that MNAs' Hotel did not have any central air- conditioning or International ,Telephone Exchange. He stated that he was pressurised by the Chairman, CDA to sign document Exh. P.W.2/1 but admitted that he did not record anywhere that he was so compelled. He admitted that he did not try to verify from the Prime Minister's Secretariat whether the then Prime Minister had issued any direction or not in respect of the proposed Hotel. He stated that till the date of recording of his evidence he did not record anywhere that he was in disagreement with the proposal Exh. P.W.2/1. He admitted that according to the rule while dealing with the affairs of the Government, objections had to be recorded in writing. The effort was made to make out a case that this officer was compelled and pressurises to sign document Exh. P.W.2/1 in acknowledgement of his agreement with the proposals contained therein.
12. Mr. Abdul Wahid Shahid P.W.3 the Director Programming Evaluation and Costing, Capital Development Authority, Islamabad who was the most important and concerned person but according to his admission, was not examined by any other agency like F.I.A. Or police in respect of this case till the time he was appearing before this Court, therefore, his views were neither before the Care Taker Prime Minister when he tendered advice to the President for making this Reference nor it was available to the Referring Authority though he was available at the relevant time because according to him he remained in Pakistan from August 1990 to December, 1990. This Reference was made during this period. He admitted that towards South of Islamabad Club was Capital Lodge Motel on the Murree Road within the National Park. He also admitted that there was Lake View Motel situated on the Murree Road to the south of the Capital Inn Motel within the National Park. He also confirmed that to the south was situated Dream Land Motel within the National Park area and in all these three Motels there were residential rooms and toilet facilities. He admitted that Gawala Colony and Poona Faqiran Model village are in the National Park area which were closer to Murree Road. He also admitted that there was a Paradise Poultry Farm and also Sports Complex in the National Park. According to him there were hotels as well as toilets in these Complexes. He admitted that the land measuring 287 acres in question was neither mentioned nor included in any of the planned scheme. He admitted that none of the hotel built so far in Islamabad or site earmarked for Five Star Hotels include any of the following:-
(1) Hotel
(2) Car Parking (Inc. Underground Parking)
(3) Golf Course with sixteen V.I.P. Residences
(4) Conference Hall
(5) Diplomatic Centre
(6) Lakeside Club and Floating Restaurant
(7) Sports Complex
(8) Swimming Pool
(9) Fitness Centre-Tennis Club
(10) Tennis Courts
(11) Golf Club
(12) Stables/Riding Centre
(13) Heliport
(14) Main Entrance/Security
(15) Clay/Target Shooting
(16) Polo Club
(17) Water Gardens ' He stated that he did not know that any of the Five Star Hotel in Islamabad contained Presidential suites, six suites for Foreign Ministers, 50 singles and double rooms to accommodate the Members of Delegation such as Security and Military Security etc. International Conference Hall to accommodate 1000 participants, auditorium for one thousand seats. Banquet Hall to seat 500 people. Reception Hall for 1000 people. Two small reception halls with the capacity 50. Offices for Protocol and Security, Medical Centre, Parking facilities at least 250 vehicles. Garrages for 20 vehicles. Complete catering facilities and Cold Storage arrangement. Comptroller office and lodge lane and garden for holding abovementioned functions. He also admitted that the site earmarked for race course, golf club, Polo ground or swimming pools would not be commercial places and cannot be termed as commercial plots. According to him out of total land of 287 acres, built area was to be 12 acres and 25 acres was reserved for single-storey building. According to him Presidential suites and other V.I.P. Suites were included in the area of 12 acres. He admitted that it was a big project and was not a hotel simpliciter. He admitted that River Korang falls into Rawal Dam which originated from Ayyubia and on its way to Rawal Dam so many small Nallas fall into it and there were number of villages/towns from Rawal Dam to Murree Hills.
13. It is evident from EA. P.W.1/4 that the CDA fully supported the proposal. The construction of the said Hotel it appears was the need of the CDA because they did not have any accommodation for the stay of Heads of the State, visiting Pakistan and other dignitaries. The matter was still under consideration and it could not be assumed that the same ultimately would have been approved in violation of the Master Plan or other Regulations. It is apparent from Exh. P.W.2/3 that a Committee was set up to examine the proposal of which among others Minister Finance was also one of the members who raised certain objections. If the proposal had the blessings of the Prime Minister the Minister of Finance would not have objected to it. In the meeting of the Committee held on 6-5- 1990 it was decided which fact has also been admitted in the Reference that the IGTC were asked to satisfy as regards their financial position. Though an attempt has been made to show that the respondent was getting this matter processed hastily as she was interested but the documents placed on the record belie this plea. There is a note written by the Director (RP) which is to the following effect:-- "This case has been taken from the office of the Director for submission of fresh receipt of Prime Minister's Secretariat. It has been informed vide PUC that the Secretary to Prime Minister has made the following observations on Chairman's U.O. Note recorded at pages Nos. 11-12/C.
' The case should be processed by the CDA/Cabinet Division in the normal course."
' In the presence of this it could not by any stretch of reasoning be urged that the respondent was in a hurry for she wanted to show favour to the applicant.
14. It was stressed in the Reference that the Chairman of the CDA was removed on account of having opposed the grant of this land for construction of a Hotel. The Referring Authority did not examine the Chairman of the CDA to support this plea though he was in the service of Federal Government from which fact it can safely be presumed that had he been examined he would not have supported the Referring Authority. The allegation that the procedure was not followed for the change of use of land and the Master Plan appears to be premature inasmuch as the matter was still being processed and if ultimately it was decided to grant land the concerned authorities might have suggested changes in the land use and Master Plan as was admittedly done earlier. This allegation appears to have been based on mere conjectures. As regards allegation for removal of Mr. Sehwani, the Member Planning it may be observed that it has established through evidence that so far as he was concerned he never opposed the proposed grant of land to the applicant for construction of Hotel, therefore, the very assumption that he was removed on account of that was absolutely baseless. As observed above he was transferred as he had completed his tenure against the post.
15. No objection could be raised as regards the price on which the land was proposed to be granted inasmuch as it is in the note of Mr. Muhammad Nawaz Malik, Additional Secretary Prime Minister's Secretariat a portion of which has been reproduced in the reference itself that the matter was referred back specifically as regards the settlement of price by pointing out that the Draft Allotment Letter did not show or suggest that the price offered to the applicant was competitive and in auction the same could fetch higher rate. In these circumstances how could it be assumed that the land was intended to be allotted at a price lower than the market price or the price on which the same could be given under the law. It may be prominently emphasized here that from the evidence it appears that the land was being granted on lease. The price of the land as regards sale would certainly be higher than the price of leasehold rights. Additionally limitations were to be imposed on the applicant to raise construction according to the requirements of the CDA and the Federal Government and in such a case the applicant certainly could claim corresponding benefits. It is in the evidence that when the land was granted to the Holiday Inn Hotel no limitation was imposed as regards the nature of construction to be raised on it. It has been fully established from the evidence produced by the Referring Authority that there was no departure from or violation of Master Plan as also the law inasmuch as it was admitted that though hotel business was an industry but the same under the law could be constructed in a residential area. As regards pollution on the objection raised by the CDA the entire Scheme as regards construction was changed and it was admitted by Mr. Sehwani that with the modified plan of construction the objection as regards pollution was no longer there. The Referring Authority miserably failed to prove allegations/charges against the respondent.
16. Before parting with this judgment it may be observed that according to the oath of the Prime Minister as also the President prescribed by the Constitution, while taking decision in any matter, coming up before them they were required to act judiciously. It appears that full and correct facts were not placed before them and there was no application of mind at all muchless judicial determination before making the reference which has rendered the entire exercise of power as colourable. The reference in the facts and circumstances as discussed above should not have been made at all as no case of misconduct was made out on the basis of the material attached with the reference and the evidence produced.
17. No case of even any attempt or abetment of misconduct as contemplated by PPO 17 has even been made out. It may be observed here that merely because an application received from a party or person for allotment/transfer of land if was ordered to be processed by the concerned authorities by itself could not be a case of attempt or abetment unless it was coupled with some overt act on behalf of the respondent to pressurise the subordinate authorities to show favour to the applicant against the rules and the regulations. It has already been observed that the witness examined by the referring authority who was the concerned officer to deal with the matter and examine the case categorically stated that he was never contacted from the respondent's side throughout the period the case remained pending with him in this regard. From the evidence produced on the record and the other material attached with the reference by the referring authority it is demonstrably clear that the respondent wanted that due care and caution should be taken when the case was being processed that no deviation from the Master Plan and other rules and regulations as regards use of the land, pollution, price and mode of disposal should be made.
If the provisions of PPO 17 are allowed to operate in the manner as the referring authority had desired in this reference the same would become instrument of oppression and nothing else. If mere direction by the Prime Minister or the Minister on the application of a person for allotment of land to the concerned authorities to process the case is held to be an attempt or abetment of misconduct I am afraid no Prime Minister or the Minister would be in a position to perform his functions under the Constitution.
18. For the foregoing reasons the reference has no merits which is answered accordingly and rejected.
Reference rejected.