THE HIGH COURT OF SINDH KARACHI

C.P. Nos. D-5359 of 2019

Date Order With Signature Of Judges

Present: Mr. Justice Muhammad Iqbal Kalhoro

Mr. Justice Abdul Mobeen Lakho

1. For orders on office objection

2. For hearing of Misc. No. 23537/2019

3. For hearing of Misc. No. 24356/2019

4. For hearing of Misc. No. 24357/2019

5. For hearing of main case

02.02.2022

Mr. Farooq H. Naek advocate along with Mr. Qaim Ali Shah advocate for the petitioners

Mr. Shahbaz Sahotra Special Prosecutor for NAB

Mr. Hakim Ali Sheikh Addl. A.G

I.O NAB Sarfaraz Sheikh

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ABDUL MOBEEN LAKHO, J.- Through this petition, the petitioners, who are limited companies and are engaged in the construction business, have assailed notice whereby caution has been placed by the NAB Authorities under Section 23 of the National Accountability Ordinance, 1999 over all constructions being carried out in Sector 40, Deh Mehran-I, Sub-Division Airport District Malir, Karachi (hereinafter referred to as subject land) with following prayers:

a) Declare that the Notice bearing No. Mukh/ Airport/ Malir/ K/271/2019, Karachi dated 18.06.2019, issued by the respondent No.6 is illegal, unlawful, null and void ab-initio as the petitioner No.1 is the lawful owner of land measuring 30 acres plot of land situated in Sector No.40, Scheme No.33, CDGK (now Airport Sub Division Malir), Deh Mehran, Karachi along with construction/ projects standing thereon and as a consequential relief set aside the said notice.

b) Direct the respondents to acknowledge/accept that the petitioner No.1 is a bonafide purchaser for value of the property viz. land measuring 30 acres plot of land situated in Sector 40, Scheme No.33, CDGK (now Airport Sub Division Malir), Deh Mehran, Karachi and is in lawful possession of the same with construction/project thereon.

c) Quash the malafide, illegal, unlawful and never ending enquiry/investigation being conducted by the respondents No. 4 and 5 from more than five years against the petitioners and their Directors in respect of the land measuring 30 acres plot of land situated in Sector 40, Scheme No.33, CDGK (now Airport Sub Division Malir), Deh Mehran, Karachi and construction thereon.

d) Suspend the operation of notice bearing No. Mukh/ Airport/Malir/K/271/2019, Karachi dated 18.06.2019, issued by the respondent No.6.

e) Restrain the respondents and/or anyone else acting through or under them from taking any adverse or coercive action or cause impediments in respect of land of the petitioners measuring 30 acres plot of land situated in Sector 40, Scheme No.33, CDGK (now Airport Sub Division Malir), Deh Mehran, Karachi as well as against the petitioners, their employees/directors and/or their business and projects/ construction raised or to be raised on the land measuring 30 acres plot of land situated in Sector 40, Scheme No.33, CDGK (now Airport Sub Division Malir), Deh Mehran, Karachi.

f) Cost of the petition.

g) Any other relief deemed fit and appropriate in the facts and circumstances of the case.

2. The facts as set out in the instant petition are that petitioner No.1 purchased subject land from one Bashiri Khatoon w/o Abdul Jabbar vide Agreement to Sell dated 17.04.2006, however, her failure to perform contract/agreement, petitioner No.1 filed Suit No.832/2007 against Bashiri Khatoon and others for Declaration, Damages, Injunction and Specific Performance, later on compromise arrived at between the parties, therefore, a compromise application was moved, which was accepted and the matter was referred to Member (LU) Board of Revenue Sindh, to decide the genuineness of the order dated 20.05.1992 in respect of the subject land, after summoning the then Member (LU) Mr. Ghulam Abbas Soomro, who appeared before Member (LU) BoR and endorsed that he had seen the papers (order No.1586/92 dated 20.05.1992), which were bearing his signatures. Thereafter, Member (LU) Board of Revenue filed statement to that effect. On 17.06.2008 Lease Deed in respect of subject land was executed in favour of the petitioner No.1 and registered with Sub-Registrar, Gadap Town, Karachi by Mst. Bashiri Khatoon. It is further stated that Form-II of the subject land and layout building plan was not being issued by respondents, hence petitioners filed application in the aforesaid suit, seeking directions to Mukhtiarkar and Executive Officer. After hearing said application was allowed and consequently Form-II was issued to the petitioner No.1. After mutation of subject land in the name of petitioner No.1, an application was moved before Deputy District officer (Revenue) Scheme No.33, CDGK, seeking sub-division of the subject land into nine plots, which application was allowed vide letter dated 23.09.2008 and the subject land was divided into nine plots. J.M No.27/2010 was filed against order dated 25.04.2008 passed in the aforesaid suit, however, during pendency of said JM, a meeting of Sindh Government Lands Committee was held on 16.06.2011 wherein separate offer letters for each nine divided plots for regularization along with Challans were issued, which amount was paid, consequently, JM was withdrawn and subject land was regularized and for each sub-divided plots a separate Agreement of Lease was registered between the Government of Sindh, Land Utilization Department and the petitioner No.1. It is further asserted that despite clear title of the petitioners over the subject land, the respondents used every tactic to create hindrance in the construction over the subject plot and ultimately impugned notice has been issued, hence this petition.

3. At the very outset, learned counsel for the petitioners submits that as Reference has been filed before Accountability Court, as such, he would not press prayer clause “c”, but would pray that petitioners may be allowed to carry out construction work on the subject land on their own risk and cost as section 23 of the NAO 1999 does not impose restriction on construction. Lastly, it is submitted that no third party interest would be created till the subject matter is finally decided by the learned Accountability Court in favour of the petitioners.

4. Conversely, learned Special Prosecutor NAB contended that petitioners are accused in the inquiry/investigation, which has culminated into a Reference presently pending before the learned Accountability Court; that there is sufficient cogent evidence available on record connecting the petitioners and others in usurping 129-34 acres of Government land including the subject land situated in different Dehs in connivance with officers/ officials of the Board of Revenue causing colossal loss to the public exchequer, as such, the petitioners are not entitled for any extraordinary relief in constitutional jurisdiction; that the petitioners have deliberately not approached the learned Accountability Court as required under Section 23 of the NAO, 1999, especially when Reference has been filed, therefore, in view of said alternate remedy, the present petition is not maintainable and liable to be dismissed.

5. We have heard learned counsel for the parties and minutely perused the record.

6. Section 23 of the NAO 1999 is an interlocutory measure to prevent persons accused of such offences to frustrate the objects of law by creating third party interest in respect of illegally acquired property, thereby creating hurdles in the object of law i.e. to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto. The purpose behind this power is to preserve the property acquired by the accused through corruption and corrupt practices so that ultimately if the guilt is proved the same can be taken back from him in accordance with law. Section 23 of the Ordinance is also preventive in nature and prescribes penalties for the accused person who attempts to alienate or transfer by any means property after the Chairman NAB has initiated investigation, inquiry or proceedings have commenced against him in an Accountability Court. It is in the nature of protective measures with a view to ensure that the final decision is not rendered redundant.

7. As regards the submission of learned counsel for the petitioners that petitioners may be allowed to raise construction over the subject land on their own risks and cost and they would not create third party interest in the subject land is concerned, record reflects that an inquiry was initiated against officers/ officials of Land Utilization Department and others regarding illegal allotment of State land to Mst. Bashiri Khatoon, from whom the petitioners allegedly purchased the subject land. During such inquiry, caution under Section 23 of the NAO 1999 was imposed upon the subject land on which project in the name of “Fatima Gul Residency” was being constructed by the petitioners. Such inquiry was converted into investigation, which translated into filing of Reference No. 05 of 2021, which is pending adjudication before Accountability Court No.III at Karachi. In the Reference, the title of the owner is under dispute and it is alleged that accused persons including the petitioners occupied the State land on the basis of forged and bogus documents in connivance with the officers/officials of the Board of Revenue, hence colossal loss is caused to the public exchequer. The very criminal charge is pending against accused before Accountability Court and in order to protect the State land from alienation or transfer, caution under Section 23 of the NAO 1999 was invoked by the NAB Authorities. In such circumstances, the question arises why the petitioners are requesting for permission to raise construction at this stage, when the matter is pending adjudication before Accountability Court. In our humble opinion, such request cannot be taken lightly especially when the title of the land is under serious clouds, the repercussion of such permission would be farfetched as the apprehension of creating third party interest at least physically cannot be ruled out. And thus, such permission would defeat the very purpose of imposition of caution by the NAB Authorities over the subject land. The wisdom behind Section 23 of the NAO 1999 is that to preserve the property as it is, as such the petitioners cannot be allowed to alter the status prevalent over the subject land by making construction which may result into multiple litigations and would definitely change the complexion and ground reality of the subject land is not the scheme of law. We, in the present circumstances, while sitting in the constitutional jurisdiction would refrain from deciding such question and leave it for the trial court, especially when Reference has already been filed before Accountability Court, which has the ultimate authority to look into this matter and consider all the above aspects minutely, if approached at proper stage.

8. For the foregoing reasons, we do not see any substance in the instant petition which is dismissed along with listed applications.

JUDGE

JUDGE

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