• CJP-led bench orders remaining money to be sent to Sindh as payment for Malir land
• Bench terms earlier applications filed by property developer ‘pretext for avoiding compliance’, calls the practice ‘abuse of court process’

ISLAMABAD: The Supreme Court on Thursday ordered that an amount of Rs35 billion, which was remitted to the apex court’s bank accounts maintained in the name of the SC registrar in the Bahria Town settlement, be transferred to the federal government.

The bench consisting of CJP Qazi Faez Isa, Justice Aminuddin Khan, and Justice Athar Minallah had taken up the Rs460 billion Bahria Town Karachi settlement case.

The court also directed the National Bank of Pakistan (NBP) to remit the amount to the government and furnish confirmation to the registrar.

“Since none of the parties to whom notices were issued, except the Mashreq Bank, [came] forward and as March 21, 2019, Supreme Court judgement requires to make the payment, it would be wrong for this court to retain the amount or any amount earned as a mark-up,” said an order dictated by CJP Isa after a prolonged hearing on Thursday.

On Oct 20, the three-judge bench had issued notices to 10 different individuals and entities who allegedly remitted from abroad two seperate amounts of about 136 million pounds and about $44 million — amounting to approximately Rs35 billion at the time.

As per the order of the three-member bench led by Chief Justice Qazi Faez Isa, the two sums (which amount to a total of Rs35 billion when converted to Pakistani currency) will now be returned to the federal government.

Notices were issued to Fortune Event Limited, Emirates Dubai, the UAE; Mubashara Ali Malik, Bina Riaz and Sana Salman, the UAE; Mashreq Bank, London; Ultimate Holdings MGT LTD, British Virgin Islands; Premier Investments Global Ltd, the UAE; Ahmed Ali Riaz, UAE; Premier Investments Global Ltd, UAE; and Wedlake Bell LLP, London, the UK.

But only Mashreq Bank came forward through their counsel Rashid Anwar and told the Supreme Court that they had filed the release notice of Nov 6, 2019, whereby account holder Mubashahara Ali Malik had directed the bank to comply with the account freezing order of Dec 14, 2018 issued by the Westminster Magistrate Court London. Pursuant to the directions, an amount of 19.9 million pounds was remitted to the accounts maintained by the Supreme Court registrar.

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In 2019, the National Crime Agency of the United Kingdom recovered around 190m pounds from the family of Bahria Town owner Malik Riaz, which was repatriated to the state of Pakistan.

However, the amount was later transferred to the SC, with the real estate tycoon claiming the money would go towards the Rs460bn he had to pay for acquiring land in Karachi for a housing scheme.

At the time, Shahzad Akbar, who was heading the Assets Recovery Unit, had said that out of 190m pounds, 140m pounds had been transferred, while the remaining 50m pounds would be received later following the sale of 1 Hyde Park – a property owned by Malik Riaz.

The property was later sold and the amount was remitted to Pakistan as well.

Sindh govt to get money

As per the SC order, the amount remaining in its account after transferring Rs35 billion to the federal government, will be deposited in the account of the Sindh government.

Although Salman Aslam Butt, who was representing Bahria Town, told the court that the real estate developer had furnished Rs65 billion out of the total Rs460 billion.

But it is unclear whether or not the Rs35 billion remitted from abroad is part of the Rs65 billion amount Bahria Town claims to have paid.

According to the schedule, the housing scheme was supposed to furnish a down-payment of Rs25 billion with a monthly instalment of Rs2.5 billion in the first four years. The rest of the amount had to be paid in equal instalments over three years. The deal will mature in 2026.

In case of non-compliance with the order, the court had warned of serious implications. The 2019 judgement had explained that default on the payment of the instalments would trigger the filing of references against the developer tycoon by NAB.

During Thursday’s hearing, Salman Aslam Butt arg­ued that instead of 16,896 acres, Bahria Town was in possession of 11,747 acres, since a considerable chunk of the land would be utilised by projects initiated by the Karachi Water and Sewerage Board, gas pipelines, natural nullahs, roads, and villages etc.

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On the contrary, the Sindh advocate general fur­nished an 81-page rep­ort, stating that in line with earlier court directions, a survey was conducted, which revealed that the housing scheme was in possession of 3,035.63 acres excess land, since a total of 19,931.63 acres of land in Malir and Jamshoro was in its possession.

As per the survey team, most of the land encroached by the housing scheme was in Deh Mole and Kathore of Jamshoro and Malir, respectively.

Mr Butt objected to the report, but could not frame specific objections; though he sought some time to object to the report, the order said.

‘Abuse of court process’

When asked why the realtor stopped making payments unilaterally, the counsel contended that it was done since there was a shortfall in the lands provided to the entity. “[The question] arises, could a party unilaterally not abide by the deal struck that also become a judgement of the court,” the order said, adding that it was surprising that though the housing scheme had furnished a number of applications, it did not file any application seeking the urgent hearing of the case.

“It appears that applications filed by the entity merely were a pretext to avoid compliance of the consent court order and if any party raise any objection to that, the entity has the excuse regarding pending applications,” it added.

“This really constitutes an abuse of process of the court,” the order regretted, also adding that Bahria Town also failed to come up with documents to show that they were short of the required lands. On the contrary what emerges, the scheme was in possession of a considerable size of more lands. “Thus BTPL effectively stopped making payments and also [did] not relinquish the excess lands in its possession,” the order said.

“This could not have happened without complicity of the concerned officials,” the order said, adding that it appeared as if the interest of the people and the province had been surrendered to the functionaries of the government, who misused office for ulterior personal gains.

The court expressed confidence that as per the assurance of the advocate general, the provincial government would take appropriate action against such officials. The court also expressed its concern over the fact that housing societies did not honour the allotment made to the allottees and even allotted the same plot to multiple individuals.

This raises a query regarding laws governing the allotment of lands by private housing schemes, and the court regretted that nothing was available to protect the allottees.

The court expressed confidence that the requisite arrangement or legislative instrument will be made by Sindh and other provinces to ensure that the record of the lands allotted will also be maintained by the concerned departments.

Published in Dawn, November 24th, 2023