Saturday, 27 September 2014

Illegal selling of Auqaf Properties

PLJ 2014 SC 731
[Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ
Suo Motu Case No. 9 of 2011, Const. P. No. 93 of 2012 and Crl. Orig. P. No. 71 of 2013, decided on 2.10.2013.
Constitution of Pakistan, 1973--
----Art. 184(3)--Evacuee Trust Properties (Management and Disposal) Act, (XIII of 1975), Ss. 4(2) & 3--Exercise of suo motu jurisdiction regarding alleged irregularities in the sale of evacuee property "ETP Board" by to "DHA"--Function of--Corruption and corrupt practices--Charitable Institutions--Scope--Request of DHA to acquire evacuee trust land was considered by ETP Board; and approval was given to the proposal that ETP Board's lands be given to DHA in exchange for developed residential and commercial plots; where 33% ownership of the land transferred was to be given to ETP Board in the shape of residential plots in addition to a certain number of commercial plots--Subsequently the ETP Board was twice reconstituted and a new Chairman was appointed on a honourary basis; and the matter was reconsidered and it was agreed by the Board that only 25% of developed residential plots would be given to the ETP Board instead of the 33% per cent as agreed earlier for the reason, inter alia, that due to escalation of charges, DHA had revised its offer--Said proposal was given approval by the ETP Board as well as the Federal Government through the ministry of minorities affairs and an agreement between ETP Board and DHA was concluded, and land was mutated in favour of DHA--Validity--Prima facie could be concluded that without considering earlier recommendations of the Board, that was, exemption of 33% of plots as per offer of DHA and without determining the terms and conditions by Federal Government through the Ministry ETP Board had agreed to accept 25% of exempted residential plots instead of 33%; for which reason colossal loss had been suffered by EPT Board--Deal suffered from corruption, and corrupt practices, and was in violation of rules and regulations applicable thereto and that excess land was being occupied by DHA--After the Evacuee Trust Properties Board was reconstituted; instead of accepting the earlier better terms and conditions; surprisingly, a fresh proposal was introduced after the new Chairman was appointed and DHA revised its offer--Federal Government without negotiation or determining viable terms and conditions gave approval to the same--Such approval reflected the mala fide in the reconstitution of the Board and the Board therefore should not have approved the 25% formula as it was against the interest of a charitable institution--ETP Board, no doubt, had powers to dispose of the properties, but the same must be done in accordance with the law--Decision taken by the ETP Board regarding acquisition of land and accepting revised option of 25% plots was unlawful being contrary to S.4(2) of the Act, whereas earlier decision of the ETP Board whereby exemption of 33% was agreed upon, was lawful and prima facie, subject to determination by investigation agencies, ETP Board had to suffer a loss due to the subsequent decision of the ETP Board--Such subsequent decision of the ETP Board was void and of no legal consequence--Supreme Court gave an option to DHA to accept the earlier decision of the ETP Board and handover developed residential and commercial plots according to the 33% formula as agreed upon in the Board meeting within 30 days, failing which it would be bound to return the entire land mutated in its favour--Supreme Court directed M.B.R. Government of Punjab to make arrangements for demarcation of properties and ensure the restoration of excess land occupied by DHA and in case of failure of DHA to accept the said option; make arrangements to deliver the total land back to the ETP Board by reversing mutation entries and cancelling sale deeds--DHA shall not be entitled to recover any compensation if it had made payments to obtain possession from a lessee or for development of land as no evidence for such expenditures was brought on record--Supreme Court also directed the Ministry of Minorities Affairs to arrange forensic audit of the ETP Board for previous five years' period and on receipt of such audit report, both criminal and civil proceedings be initiated against the delinquents and that FIA should expedite its inquiry and civil and criminal proceedings be initiated against the former Chairman of ETP Board--Petition was disposed of accordingly.    [Pp. 749, 750, 752, 753, 760, 761 & 762] A, B, C, E, F, L, M & P
PLD 1999 SC 26 & PLD 2011 SC 619 rel.
----S. 4--Constitution of Pakistan, 1973, Art. 184(3)--Memorandum titled "Deposit of Working Balances and Investment of Surplus Funds Belonging to Public Sector Enterprises and Local Autonomous Bodies under Federal Government"--Evacuee Trust Property Board, functions of--Power of ETP Board to make investments--Scope--Exercise of suo motu jurisdiction by the Supreme Court regarding alleged irregularities in the investment made by ETP Board as an institutional investor--Evacuee Trust Property Board gave approval for an investment of huge amount in a joint venture of DHA and EHPL and said investment was made vide a tripartite agreement--EHPL had approached DHA Islamabad representing to have rights in the lands to be developed, however it could not fulfil its commitment to provide even the initial land within the specified time period--Government of Pakistan had issued consolidated instructions to the effect, inter alia, that it would be necessary for public sector entities to set up in-house professional treasury management functions and that they would need to have an investment committee with defined investment approval authority and transactions above the approval of the authority would also be subject to approval of the Board of Directors or an equivalent forum--No permission, was obtained for investment in DHA Project in Islamabad which was also contrary to the functions of the ETP Board given under Ss.4(2)(c) and 4(2)(m) of Act, 1975--Law was, therefore, violated by the ETP Board by making payments to the EPHL--Transaction of ETP Board for making investment was contrary to the interest of the ETP Board and was also against instructions of the Federal Government in addition to being against S.4(2) of Act, 1975--ETP Board had entered into a transaction in respect of a joint venture which absolutely had no existence as despite receiving of amount, the Ranches were not handed over as no land was acquired--Elysium Holdings Pakistan Ltd., however, got unlawful benefit of an millions rupees owned by ETP Board, therefore, they were under a legal obligation to return the same and compensate the ETP Board by paying mark-up on the said amount, which was subject to determination by a Court of law--Supreme Court directed that files of Islamabad Benches, if handed over to the ETP Board, be returned to the persons agencies from which the same were received--Ministry of Minorities Affairs was directed to arrange a forensic audit of the ETP Board for previous five years and on receipt of tuch audit report, both criminal and civil proceedings be initiated against the delinquents and that FIA should expedite its inquiry and civil and criminal proceedings be initiated against the former Chairman of ETP Board--Petition was disposed of, accordingly.  [Pp. 757, 758, 760, 761, 762 & 763] G, H, I, J, K, N, O, P & Q
PLD 1999 SC 26 rel.
----S. 3 & Preamble--Constitution of E.T.P. Board--Fixation of tenure of members and chairman of the Board--Scope and purpose--Under 5.3(5) of E.T.P. (Management and Disposal) Act, 1975; a three years tenure for members of Board had been prescribed and before expiry of the same, a member would not be changed unless he resigns earlier from his office under S. 3(6) of the Act, or was removed under S. 3(7) of the Act--Purpose of fixation of the tenure was to ensure consistency in the policies of the ETP Board for purpose of achieving the objects for which the E.T.P. (Management and Disposal) Act, 1975 had been promulgated--Chairman of the E.T.P. Board, on the contrary, was required to hold the office during the pleasure of the Federal Government.    [P. 751] D
Mr. Shehram Sarwar, ASC and Mr. Zulfiqar Khalid Maluka, ASC for Applicants.
Nemo for Asif Akhtar Hashmi, Ex-Chairman ETPB.
Hafiz S.A. Rehman, Sr. ASC, Raja Abdul Ghafoor, AOR and Mr. Junaid Iqbal, Secretary for ETPB.
Mr. Muhammad Azam Khan, Addl. D.G., Qudratullah Khan, Director (Pb) and Mr. Naveed Tareen, Dy. Director, Crime Circle for FIA.
Mr. Asim Hafeez, ASC for DHA, Lahore.
Col (R) Ejaz Hussain, Secretary for DHA Rwp/Islamabad.
Kh. Muhammad Farooq, Sr. ASC with Sharjeel Shah Muhammad, CE (in Crl.O.P No. 71/2013) for M/s. Highland Living Concept.
Mr. Tariq Hassan, ASC, Mr. Atif Amin, ASC, Raja Abdul Ghafoor, AOR with Mr. Hammad Arshad, CE for M/s. Elysium Holdings Pakistan.
Date of hearing: 25.7.2013.
Order
Iftikhar Muhammad Chaudhry, CJ.--Instant case was initiated by exercising suo motu jurisdiction conferred upon this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan, on a letter sent by members of Sikh community stating therein that Mr. Asif Akhtar Hashmi, Chairman Evacuee Trust Property Board had been selling the evacuee property especially attached to their worship places. Copies of the news items published in daily "Jang" Rawalpindi, "The News" Islamabad dated 21-4-2010 and the Herald (March Edition) reporting the irregularities being committed by the Evacuee Trust Property Board (ETPB) were also attached with the letter. Initially, the matter was registered as HRC No. 28464-K/2010 and report was called from Chief Secretary, Government of Punjab on the matter mentioned in the said letter. The report was received from the Secretary, Ministry of Minorities, Government of Pakistan, Islamabad stating therein "that the allegation in the application have already been probed into by Public Accounts Committee, Special Public Accounts Committee, Prime Minister, Inspection Commission and Special Audit. The allegations are nothing but to spoil the name of the department as well as the image of Pakistan. Furthermore, the matter, in issue was also challenged in the Honourable Lahore High Court wherein it was dismissed". On 16-4-2011, the matter was placed before one of us (Chief Justice of Pakistan) in Chambers for necessary orders, thus an order to the following effect was passed:--
"Put up in Court as petition under Article 184(3) of the Constitution. Notice to the applicant and Chairman, Evacuee Trust Board of Pakistan be issued..."
Resultantly, the matter was registered as SMC No. 9 of 2013 and fixed before the Court.
2.  It is to be mentioned that Asif Akhtar Hashmi, former Chairman ETPB appeared in person on 7-5-2013 but on the next date of hearing i.e. 24-5-2013 his counsel appeared and when his attendance was required to be procured by passing a specific order, he did not appear on 7-6-2013. He engaged Mr. Hamid Khan, learned Senior Advocate Supreme Court to appear on his behalf, however, despite issuance of directions he failed to appear in person before the Court. Inasmuch as, his counsel submitted before the Court that the order of this Court, had been communicated to him. At one stage it was pointed out by his counsel that he could not manage to come back toPakistan as he had deposited his passport in Dubai with the Saudi Embassy for performing Umra and sought adjournment enabling the latter to appear in Court. At his request, case was adjourned on different dates and ultimately on 14-6-2013 learned counsel stated that this Court accommodated him twice by adjourning the case with the observations to produce him but despite all his efforts he could not succeed, therefore, in principle it would not be fair for him to make any further request to the Court in this regard, hence, he would be allowed to withdraw from appearing before this Court on his behalf in this case. The request was allowed and at the same time DG, FIA was directed to effect service of the notice upon him. In the meantime, FIA submitted a report stating therein that Syed Asif Akhtar Hashmi was still abroad and the matter had also been referred to Interpol for the service of the notice upon him. Interpol authority in Pakistan, in reply, informed that he has departed from UAE to UK on 14-6-2013, therefore, the matter was referred to Interpol UK and reply is awaited.
3.  The background to the case is that in the Evacuee Trust Property Board's (ETP Board) meeting held on 14-5-2007, the then chairman brought to the knowledge of the Board the request of Defence Housing Authority (DHA), Lahore to acquire three pieces of Evacuee Trust land situated in Mauza Lidhar (75 acres, 2 kanals and 14 marlas),Mauza Mota Singh Wala (142 acres and 14 marlas) and Mauza Dera Chahal (26 acres, 1 kanal and 13 marlas), Lahore Cantonment falling in Phase-VI and VII of DHA. The options offered by DHA in this regard were:--
Option-I
Price of the aforementioned ETPB land be received by the Board.
Option-II
These ETPB lands be handed over to the DHA for development and in exchange developed plots as per laid down procedure will be given to ETPB.
Option-III
ETPB may exchange its aforesaid land with DHA land in mauza Halloki (84 acres, 4 kanals and 10 marlas) adjacent to Khayaban-e-Amin and Doctor's Colony, KahnaRoad/Defence RoadLahore.
4.  In the said meeting, the Chairman sought guidance of the Board for proceeding further with reference to the above proposal and he also apprised the Board about the estimated cost of land prevailing in market of ETPB and DHA. General practice of DHA, regarding allotment of two developed residential plots of one kanal each in lieu of one acre land, was also discussed. The Board, after due deliberations and keeping in view the existing and future potential of the DHA land situated in Mauza Halloki, rejected Option-III. Moreover, after discussing pros and cons of the remaining two options, the Board considered Option-II as more workable due to increase in the cost of developed plots. However, the Board desired that instead of consenting to two developed plots measuring one kanal in return to land measuring one acre to be handed over to DHA (i.e. 25% of land), at least 33% land of developed plots to be claimed. It was further suggested that in addition to residential plots, commercial plots situated on the main roads/nearest to main roads preferably to be claimed.
5.  Subsequent thereto, the ETPB vide letter dated 10-7-2007 issued by Deputy Secretary (P), informed the DHA, Lahore as regards approval of Option-II by the Board. The Option-II, mentioned in the said letter, reads as follows:
Option-II: ETPB lands to be given to DHA in exchange for developed plots. 33% land of developed plots to be given by DHA. (This means that instead of 2 x one kanalplots, 3 x one kanal plots per acre of ETPB land). Besides, 10% of commercial plots to be offered to ETPB on the rates as for members of DHA.
6.  It was further mentioned in the said letter that on 19-6-2007, the matter was discussed on a Courtesy call by the Chairman, ETPB with the Commander 4 Corps and that the Corps Commander appreciated the proposal. It was, therefore, requested that the above proposal be confirmed in order to enable the ETPB to obtain formal approval of the Board and Federal Government, necessary for transfer of ETPB land.
7.  In response to the above mentioned letter, the DHA sent a letter dated 20-7-2007 to the Chairman, ETPB which reads as under:--
"Subject: Acquisition of Evacuee Trust Land
Please refer to ETPB Letter No. P(3)-DSP/530/ETPB/07LHR/ 7789 dated 10 July 2007 on the above subject.
1.         the management of DHA has approved following compensation in lieu of the valuable contribution by Evacuee Trust Property Board and your personal efforts:--
a.         ETPB land will be acquired by DHA at 33% exemption as enunciated in Para 2 of ETPB letter quoted above. The detailed distribution will be as follows:--
(1)        Total land        1946 Kanals (approx)
(2)        Total residential plots to be carved on the land as per DHA standard town planning   973 Residential plots
(3)        Share of Residential Plots
(a)        ETPB   642 Plots
(b)        DHA    331 Plots
2.         The option of 10% commercial plots to be offered to ETPB on the rates as per members of DHA was analysed. It will be appreciated that DHA adds value to its property by maintaining highest standard of town planning thus maintaining a certain ration of open spaces to constructed areas. Similarly a ratio in line with the international standards is maintained in residential area vs. commercial area. Being a welfare organization, DHA acquires the land and develops it for allotment to the landowners (who contribute the land) and a portion of it for armed forces personnel for whom the society is primarily functioning. In this case under consideration, total number of commercial plots being carved out is 194. it is submitted that as per 10% formula DHA is not left with a single plot, therefore, the matter may be reconsidered and an equitable distribution be agreed upon to facilitate early resolution of the issue. The suggested distribution is as following:--
a.         Total commercial plots to be
carved on the land per DHA
std. town planning                               194 Commercial Plots
b.         Recommended Share of Commercial Plots
            (1) ETPB                                              100 Plots
            (2) DHA                                              94 Plots
3.  Foregoing in view, it is requested that above mentioned allotment may please be approved by ETP Board and kindly detail a representative to carry out necessary coordination with DHA at its earliest, please.
            Lt.-Col
            For ADHA
            (Amer Baig Mirza)"
8.  Accordingly, the matter was discussed in the 263rd meeting of the ETP Board held on 23-7-2007 wherein following observation/directions were made:--
"The Board, after due deliberation, rejected Option-III keeping in view the existing and future potential of the DHA land situated in Mauza Halloki.
The Board after discussing pros and cons of the remaining two options, considered Option-II as more beneficial due to increasing trend in the cost of developed plots. However, the Board desired that instead of consenting to two developed one kanal plots for each acre of land to be handed over to DHA (i.e. 25% of land), 33% land of developed plots may be claimed. In addition to residential plots, commercial plots may also be claimed on payment as for member of DHA.
The Board also stressed that as the matter was potentially beneficial to the Board, therefore, pursuing it should be done on priority basis.
The matter was discussed with DHA at various levels.
The DHA vide letter dated 20-7-2007 has intimated that the management of DHA has approved that ETP Board land will be acquired by DHA at 33% exemption of residential plots (measuring 1 kanal each). Thus for 1946 K of ETPB land, DHA would provide 642 residential plots. In addition, DHA has offered 100 commercial plots on payment as for DHA members i.e. 16% of residential plots instead of, 10%."
9.  Later on, the ETPB vide letter dated 11-8-2007 informed the Ministry of Minorities (Minorities Affairs Division), Government of Pakistan through a letter captioned "Acquisition of Evacuee Trust Land by the Defence Housing Authority, Lahore Cantt." about the decision of ETP Board. Paragraph 7 therefrom, being relevant, is reproduced hereinbelow:--
"The matter was then placed before the Board vide Item No. 10 of its 263rd Meeting held on 23-7-2007. The Board decided to proceed further with the arrangement agreed between ETPB and DHA as it was beneficial to the Board due to the increasing value of the developed plots in DHA. Photocopies of working paper and extract of minutes of Item No. 10 of Board's 263rd Meeting held on 23:7-2007 ate attached as Annex `D' & `E' Approval of the Federal Government to the aforementioned decision of the Board may be conveyed to this office to implement the arrangement with DHA".
10.  The Ministry of Minorities responded to the above mentioned letter vide letter dated 28-8-2007 advising the ETPB to furnish information and not to initiate any further action in the matter without prior approval of the Federal Government. The said latter is reproduced hereinbelow:--
"Government of Pakistan
Ministry of Minorities
(MINORITIES AFFAIRS DIVISION)
No. F.4(11)/2007-P-II Islamabad, the 28th August, 2007
The Chairman,
Evacuee Trust Property Board, 9-Court Street,
Lahore
Subject:            ACQUISITION OF EVACUEE TRUST LAND BY THE DEFENCE HOUSING AUTHORITY, LAHORE CANTT.
Please refer to ETP Board's Letter No. P(3)DSP/530/ ETPB/07/LHR/8822 dated 11th August, 2007 on the above subject.
2.         The matter is under process in the Ministry and ETP Board is advised to urgently furnish the following information for proceeding further in the matter:--
(i)         The option of open auction has not been considered by the ETPB. The same may be considered and expected return/income so generated may be compared with the above mentioned option-II approved by the ETP Board.
(ii)        The legal status about the lessees who are on extension and the procedure/terms & conditions to be adopted for settlement of such cases.
(iii)       A copy of DHA's policy according to which developed plots will be given to ETPB.
(iv)       Details of all the lessees clearly mentioning their history whether they are original lessees or changes of tenancy has taken place, subsequently.
(v)        Minutes of the meetings between DHA and ETP Board for warranting the instant recommendations.
3.         ETP Board is further advised that no action will be initiated without prior approval of the Federal Government.
4.         This issues with the approval of the Secretary.
(Naeem Ahmad)
Section Officer (P-II)
Ph.9208487"
11.  The ETPB vide letter dated 11-9-2007 addressed to the Ministry of Minorities Affairs furnished the requisite information. Paragraph 2(b) and (c) wherefrom are reproduced below:--
"2.        ... ...
(a)        ... ...
(b)        Out of total land of 1964(sic.)-Kanals (approx.), 973 residential plots can be carved as per D.H.A Standard. ETPB share would be 642 plots (33% of 1946) and that of D.H.A 331 plots. When developed the value of 642 plots would be approximately Rs.6420 million (@ Rs.10.0 million per plot). This is much more than the price expected from open auction of raw land in its present state.
(c)        It has been agreed by the D.H.A. that is will be their responsibility to get possession of aforesaid land from the lessees of ETPB. D.H.A. would use their resources for the purpose. ETPB would not be involved in this process.
3.         You are requested to expedite approval of the plan as D.H.A. is pressing for an early decision.
4.         This letter is issued with the approval of the Chairman.
(Ch. Riaz Ahmad)
Secretary"
12.  The Ministry of Minorities Affairs vide letter dated 28.9.2007 again asked the ETPB to provide some further information and once again advised it not to initiate any action in this regard without prior approval of the Federal Government. The said letter reads as under:--
"Government of Pakistan
Ministry of Minorities
(MINORITIES AFFAIRS DIVISION)
No. F.4(11)/2007-P-II Islamabad, the 28th September, 2007
The Chairman,
Evacuee Trust Property Board, 9-Court Street,
Lahore
Subject:            ACQUISITION OF EVACUEE TRUST LAND BY THE DEFENCE HOUSING AUTHORITY, LAHORE CANTT.
Please refer to ETP Board's Letter No. P(3)DSP/530/ ETPB/07/LHR/9806 dated 11th September, 2007 on the above subject.
2.         The matter is under process in the Ministry and ETP Board is again advised to urgently furnish the following information for proceeding further in matter:--
(i)         The calculation of plots and expected value to be generated has not been calculated correctly, the same may be done accordingly.
(ii)        Details of all the lessees clearly mentioning their history whether they are original lessees or changes of tenancy has taken place, subsequently.
(iii)       The legal status about the lessees who are on extension and the procedure/terms and conditions to be adopted for settlement of such cases.
(iv)       Minutes of the meetings between DHA and ETP Board for warranting the instant recommendations.
3.         ETP Board is further advised that no action will be initiated without prior approval of the Federal Government.
4.         This issues with the approval of the Secretary.
(Naeem Ahmad)
Section Officer (P-II)
Ph.9208487"
13.  The requisite information was provided by the ETP Board vide letter dated 19-10-2007 addressed to the Ministry of Minorities, wherein it was reiterated that "approval of the Federal Government to the decision of the Board taken vide Item No. 10 of its 263rd meeting held on 23-7-2007 may be conveyed to this office to implement the arrangement with DHA".
14.  In the meanwhile, the ETP Board was reconstituted vide notification dated 14-11-2007 enlisting the following non-official members:
(b)        Non-official Members
(1)        Brig (R) Ijaz Ahmad Shah
(2)        Mr. Muhammad Nawaz Tishna
(3)        Mr. Nayyar Ali Dada
(4)        Mian Yousuf Salauddin
(5)        Mr. M. Fazal Durrani
(6)        Col. (R) S.K. Tressler
(7)        Mr. M. Parkash, Advocate
(8)        Sardar Sham Singh
(9)        Prof. Sajida Haider Vandal
(10)      Mr. Ashraf Ali Khawaja
(11)      Ch. Bashir Ahmad. ,
15.  Thereafter, the Ministry of Minorities vide letter dated 3.12.2007 advised the ETPB to place the matter in question before the newly constituted ETP Board for re-examination and to refer the matter subsequently to the Federal Government for consideration along with recommendations of the Board. The ETPB vide letter dated 26-12-2007 addressed to the Ministry of Minorities claimed that all the queries raised by the Federal Government had been addressed and recommendations were made by a duly constituted Board, hence, there was no justification or rationale for referring the matter back to the Board. It was further averred in the letter that in case decisions of the previous Board were to be revisited merely on the ground of reconstitution of the Board, it would open a Pandora box; hence, the Ministry was requested to indicate illegality in the decisions of the Board, if any. The letter once again ended with a request that "approval of the Federal Government to the decision of the Board taken vide Item No. 10 of its 263rd meeting held on 23-7-2007 may please be conveyed to this office for implementation of arrangements with DHA".
16.  The Ministry of Minorities Affairs vide letter dated 24.1.2008 informed the ETPB that the matter was examined in the Ministry and the orders of the Ministry already conveyed to the ETPB vide letter dated 3-12-2007 were reiterated. It was further ordered that "keeping in view the huge investment and expertise of the new ETP Board, the matter be placed before the new ETP Board under the Chairmanship of the new Chairman, ETPB and then referred to the Federal Government for consideration along with recommendations". Thereafter, vide notification dated 7-12-2008, Asif Akhtar Hashmi was appointed as Chairman, ETPB on honorary basis "with immediate effect and until further orders".
17.  After appointment of the new Chairman, DHA vide letter dated 18-2-2009 addressed to the Chairman, ETPB on the subject "acquisition of Evacuee Trust Property Board's Land" intimated that 33% exemption ration besides, 100 x commercial plots were agreed to by DHA but progress on acquisition of land was held up due to non-acceptance of handing over of clear possession of land by ETPB. It was stated that acquisition of land comprised two aspects namely, handing over of clear possession of the land, and registration of mutation of the land in favour of the party acquiring the land.
18.  It was further expressed that "during the meeting held on 23-9-2008, it was indicated by Chairman ETPB that possession of land to be obtained by DHA which was not agreed to, as it involved taking over of possession after payment of huge amount, besides inviting series of Court cases. Hence, further discussion on the subject remained inconclusive. Moreover, delay in the development work has cost DHA huge amount of idling/escalation charges". In addition, it was requested that "either land be transferred with clear possession to DHA against 33% exemption or 25% exemption without possession may please be agreed to".
19.  The Board was once again reconstituted vide notification dated 10-4-2009 and the following persons were notified as non-official members:--
(b)        Non-Official Members
(1)        Mr. Shahid Sheikh       Lahore
(2)        Mr. Tayyab Rizvi         Lahore
(3)        Mian Muneer Ahmad   Lahore
(4)        Dr. S. M. Yaqoob        Lahore
(5)        Mr. Javed Akbar Butt  Lahore
(6)        Malik Sher Ali Bucha  Multan
(7)        Mr. Muhammad Aqeel Bhutta Multan
(8)        Mr. Naveed Amir Jeeva           Multan
(9)        Rai Saleem-ur-Rehman            Nankana
(10)      Mr. Bishop Daniyal     Sahiwal
(11)      Mr. Ezra B. Shujaat      Sheikhupura
(12)      Sardar Sham Singh       Sindh
(13)      Mr. Parkash, Advocate            Sindh
(14)      Mr. Manzoor Hussain Bhutto   Sindh
(15)      Mr. Muhammad Nawaz Tishna            NWFP
(16)      Mr. Fazal Durrani        Quetta
20.  An important development in the matter took place when on 16-4-2009, 272nd meeting of the ETP Board was held and the Board approved the following additional Agenda as Item No. 8:--
MATTER RELATING TO ACQUISITION OF EVACUEE TRUST LAND SITUATED IN MAUZAS LIDHAR, MOTA SINGH WALA AND DERA CHAHAL ETC. TEHSIL CANTT LAHORE BY THE DEFENCE HOUSING AUTHORITY, LAHORE.
Discussion/decision
The DHA's proposal was apprised to the Board that delay in the development' work had cost DHA huge amount of idling/escalation charges, as such DHA's revised offer was restricted to their usual policy of 25 % exemption of residential plots only. However with the hectic negotiations of the Chairman, ETP Board already held with the DHA authorities, they agreed to further negotiate on the provision of some commercial plots.
The Board unanimously approved the revised offer of DHA for exemption of 25% residential plots with taking over the possession of the land to be the responsibility of the DHA. The Board authorized the Chairman to hold negotiations with the DHA to obtain at least some of the commercial plots in addition to the residential plots agreed to above.
Action By
Secretary (P & L)/DS(L)
21.  It is significant for our purposes to note that there was a visible difference in the offer approved by the ETP Board namely, 25% exemption of residential plots, instead of the 33% earlier offered by the DHA. The Decision of the Board was conveyed to the Ministry of Minorities Affairs by the ETPB through letter dated 25-4-2009.
22.  The Ministry of Minorities Affairs, vide letter dated 28-4-2009 informed the Chairman, ETPB that the Federal Government has accorded concurrence to the decision of the ETP Board taken vide Item No. 8, in its 272nd meeting held on 16-4-2009, subject to observing all legal and codal requirements. Thereafter, ETPB vide letter dated 29-4-2009 intimated the DHA about the concurrence of the Federal Government to the decision of the Board dated 16-6-2009. The said letter is reproduced hereinbelow:--
"EVACUEE TRUST PROPERTY BOARD GOVERNMENT OF PAKISTAN
"No. P(3)DSP/530/ETPB/07/LHR/3266
Dated 29/4/09
To
Col. (Retd) Mr. Muhammad Ashraf,
Director Acquisition,
Defence Housing Authority,
Y-Block Commercial Area Ph.III
Lahore Cantt.
Subject:            ACQUISITION OF EVACUEE TRUST PROPERTY BOARD'S LAND
Please refer to your Letter No. 421/10/ETPB/Acqn dated 18-2-2009, on the above subject.
2.         The matter was placed before the Evacuee Trust Property Board in its 272nd Meeting held on 16-4-2009. The Board and subsequently the Federal Government in the Ministry of Minorities have given concurrence to the proposal put forward by the Defence Housing Authority, Lahore vide above referred letter and agreed to accept 25% exemption of the residential plots as the taking-over the possession of the land will be the responsibility of the DHA.
3.         Besides, DHA's final proposal in Para-3 of the above referred letter is silent about the provision of commercial plots to ETPB on payment as for DHA members. The Board/Federal Government have authorized Chairman, ETPB negotiate the issue with DHA pertaining to the provision of commercial plots.
4.         In view of the above, it is requested that DHA may expedite their process for acquisition of land and coordinate with ETPB to hold negotiations regarding provision of commercial plots at an early date.
(Salim Masih)
Secretary (L & P)"
23.  On the basis of the above mentioned concurrence, an agreement was concluded between ETPB and DHA on 8-5-2009 regarding land measuring 575 kanals and 13marlas of Mauza Lidhar, comprising the following Khasra numbers:--
Khasra             Land    Khasra             Land    Khasra             Land
No.
                  No.                  No.
3065    80-00   3895    05-10   4403    08-00.
3145    06-16   3933    05-10   4406    08-00
3146    07-08   3934    02-02   4407    07-16
3149    07-08   4250    04-13   4408    09-08
3687    09-11   4251    07-13   4409    08-00
3688    07-07   4252    08-00   4410    03-08
3689    07-07   4253    05-10   4411    08-00
3710    08-00   4254    08-02   4412    06-13
3711    08-00   4255    05-12   4413    03-04
3712    08-00   4276    08-00   4414    08-00
3713    04-12   4278    08-00   4415    03-02
3714    06-14   4279    03-12   4417    08-00
3715    08-00   4283    08-00   4418    08-00
3716    08-00   4284    08-00   4420    08-00
3717    08-00   4285    08-00   4421    08-00
3745    08-00   4287    08-00   4423    08-00
3746    08-00   4288    08-00   4425    08-00
3747    08-00   4289    09-06   4426    08-00
3748    08-16   4227    03-18   4428    02-16
3749    10-18   4329    06-00   4430    08-00
3750    08-00   4341    08-02   4431    08-00
3751    08-00   4342    10-04   4437    08-00
3752    08-00   4355    05-06   4438    08-00
3860    08-00   4356    04-01   4439    07-06
3861    08-00   4362    08-00   4443    07-07
3862    08-00   4370    08-00   4520    04-13
3894    05-04   4371    08-00   --          --
24.  Moreover, a conveyance deed was executed by ETPB in favour of DHA on 30-5-2009 regarding land measuring 544 kanals and 06 marlas to the following effect:--
"NOW THEREFORE, THIS CONVEYANCE WITNESSES AS UNDER"
1.         The Vendor has sold the said piece of land measuring 17 Kanals, 18 Marlas vide Parcha Khatooni No. 747/866 of Gurdawara Deh and land measuring 526 Kanals 08Marlas vide Parcha Khatooni No. 748/867 of Samahad Bhai Mann Singh of the year 1992 vide Halqa Patwari Parcha Khatooni Rapt No. 3090 dated 15 May 2009, totalqittat 75 measuring 544 Kanals 06 Marlas situated at Hadbast Mouza Lidhar Tehsil Cantt District Lahore, in consideration of Rs.653160000/- (Rupees Sixty Five Crore Thirty One Lac Sixty Thousand Only), which has been paid by the Vendee to the Vendor toward last and final consideration amount of the said land, receipt whereof is hereby acknowledged, and nothing will be paid before sub-Registrar Aziz Bhatti Town, Lahore, at the time of registration of this sale-deed. The value of land given in the conveyance deed is not the value paid to the land owner but given for the purpose of registration as the land is purchased on 25% exemption in the shape of 1 Kanal/10 Marla residential plots.
2.         The Vendor hereby assures the Vendee of their legally valid title with powers to alienate and sell the said piece of land to the Vendee to consideration mentioned above. The Vendor also assures and hereby undertakes to indemnify and keep indemnifying the Vendee to its entire satisfaction, and any defect in the title against the claim of any third party."
25.  Yet another agreement was executed on 9-6-2009 between ETPB and DHA regarding further 353 kanals and 7 marlas of land situated in Mauza Mota Singh Wala and 203 kanlas and 13 marlas in Mauza Dera Chahal, Lahore Cantt. A conveyance deed in respect to the land mentioned above was executed on 10-7-2009 by the ETPB infavour of DHA. It was in this manner that 3 agreements were executed between the parties (ETPB and DHA) and the possession was delivered to the DHA.
26.  It is to be noted that as per report of the Director, FIA, the ETPB land measuring 1240 kanals had been occupied by the DHA instead of 843 kanals and 15 marlasmutated in favour of DHA by the ETPB. Moreover, the report concluded that "without considering the earlier recommendations of the Board, i.e. 33% exempted developed plots as per offer of DHA dated 20-7-2007 and without determining the terms and conditions, the haphazard approval granted by the Ministry of Minorities Affairs of 25% exempted residential plots/files instead of 33% also shows personal vested interests of DHA Lahore, ETPB and concerned Ministry especially payment of huge amount of Rs.657.77 million approximately to unauthorized persons and thereby caused loss to ETPB".
27.  It was also noted in the said report that, though refunded to ETPB after one and half month, the registration fee amounting to Rs.39 million was paid by ETPB instead of DHA Lahore, being the purchaser, and that "this fact also creates doubts of personal vested interests of ETP Board and DHA Lahore". The report assesses the total loss caused by the DHA at Rs. 1934.77 million.
28.  On behalf of DHA, Lahore there is no denial of the transaction, however, an explanation has been offered that as per agreement DHA would acquire possession of the land at its own expense and cost, where said portion of the land was not in possession of ETPB and against the deal of 151.25 acres of land it could only get the title of land measuring 843K-15M by different instrument, deeds, etc. According to DHA, the consideration of the said land was in the shape of exemption of plot files.
29.  As far as balance of 288K-18M is concerned, both the DHA and ETPB after deliberation agreed as under:--
a.         Any land belonging to Gurdwara shall not be purchased and consequently land measuring 203K-13M of Dera Bebe Naniki Gurdwara was returned back to ETPB by DHA in May 2010. It is pertinent to mention that DHA had made a payment of Rs. 18.800 Million to purchase possession of said land. ETPB has assured DHA to return this amount and the matter is being finalized.
b.         ETPB shall transfer 85K-5M of land situated in Mauza Lidhar (31K-07M) and Mauza Mota Singh Wala (53K-5M) at the earliest.
It has further been explained that in pursuance of above arrangements ETPB was allocated following files in Phase-VI of DHA in consideration of the land acquired/transferred:-
a.         140 x 1 Kanal plot files
b.         31 x 10 Marla plot files
c.         61 x Marla plot files
d.         10x4 Marla Commercial plot files
It may be noted that in the report submitted by DHA, neither any agreement with ETPB has been brought on record to accept the liability of the payments of the development charges nor there is any acceptable document to substantiate that Rs. 18.800 million has been spent by DHA for taking over the possession of the property. Except that ETPB paid Rs.657.77 million approximately to Nazir Hussain (late), Amer Saleh Abbasi, Shah JehanKamran Baig and Imran Ali Bhatti, without any plausible justification. Despite efforts, no justification was offered by the Secretary DHA, Lahore in this behalf.
30.  From the material available on record one can, prima facie, conclude that without considering the earlier recommendations of the Board i.e. exemption of 33% of plots as per offer of DHA dated 20-7-2007, and without determining the terms and conditions by the Federal Government through Ministry of Minorities Affairs, agreed for accepting 25 % exempted residential plots/files instead of 33 %. Essentially, for such reasons colossal loss has been suffered by ETPB.
31.  A comparative analysis of the loss incurred to the ETPB for entering into the deal is reproduced hereinbelow as per report of FIA dated 24-7-2013:
Sr. No  Head/Description         Loss Caused to the ETPB
                        Plot Nos.          Approx per      Total Loss
                                    plot price         Rs.
                                    (Rs)
1          Reducation from 33% exemption        108      9 million          972 millions
            developed to 25% exemption plot                              
            files only
2.         Expenditures being claimed     --          --          18 millions
            by DHA from ETPB for vacation of                           
            Dear Chahal Land       
3.         Developmental charges be       --          --          287 million
            claimed by DHA against exemption
            allotted plot files to ETPB @ 25%
4.         Compensation paid by DHA to            59        9 millions         126.77 +
            unauthorized persons instead                           531=657.77
            of ETPB                                   million
                                    Total    1934.77
                                                millions
Thus, the deal suffered from corruption and corrupt practices and was in violation of rules and regulations.
32.  Learned counsel for DHA Mr. Asif Hafeez, however, has attempted to persuade us that the deal between DHA and ETPB is transparent as huge amount has to be spent by DHA for getting possession of the land from occupants and it so hampered on account of delay in concluding the deal on the part of ETPB, therefore, ETPB in its 272nd meeting held on 16-4-2009 accepted revised offer of DHA for exemption of 25% residential plot instead of 33% which was duly approved by the Ministry, as such, no illegality or irregularity has been committed by DHA.
33.  Learned counsel for DHA, attempted to justify the delay, as it is evident from his arguments noted hereinabove, but without producing any document or material to substantiate its plea on both counts i.e. delay by ETP Board and spending of huge amount by DHA for taking over possession from occupants of the land under question.
34.  It has been noticed that from time to time the Federal Government has constituted the Board. Whereas, under sub-section (5) of Section 3 of the Act, 1975 three years tenure of the Members has been prescribed and before the expiry of the same, a Member would not be changed unless he earlier resigns from his office under sub-section (6) or is removed under sub-section (7) of Section 3 ibid. The only inference is that the purpose of fixation of the tenure is to ensure consistency in the policies of the ETP Board for the purpose of achieving the objects for which the Act, 1975 has been promulgated. Contrary to it, as far as Chairman of the Board is concerned, he is required to hold the office during the pleasure of the Federal Government.

35.  In the instant case, we have noticed that during 263rd meeting of ETP Board held on 23-7-2007 a decision was taken to accept Option No. 2 offered by DHA, namely, ETPB land be handed over to DHA for development and in exchange the developed plots as per laid down procedure, would be given to ETPB, It was also decided that DHA would handover 33% developed plots to ETPB, besides 10% of the commercial plots to be offered to ETPB on the rates as for members of the DHA and this offer was also accepted by DHA on 20-7-2007, but before its final approval, the ETP Board was reconstituted on 14.11.2007. Names of the newly appointed members have also been mentioned hereinabove. As per the requirement of law, these non-official members had to perform their functions for a period of three years i.e. up to 13-11.2010. In the meanwhile, former Chairman ETPB, Mr. Asif Akhtar Hashmi was appointed on 7-12-2008, before expiry of the tenures of the members appointed on 14-11-2007 and the Board was again re-constituted on 10-4-2009. The issue of getting developed residential and commercial plots, decision in respect whereof had already taken place in 263rd meeting dated 23-7-2007, was again placed before the Board for discussion and decision. Surprisingly, instead of accepting the earlier better terms and conditions, fresh proposal was introduced after taking over of office by the newly appointed Chairman and DHA had revised its offer. Inasmuch as, the Federal Government without negotiation or determining

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