ISLAMABAD : The Supreme Court on Friday cancelled a sub-lease of 4.958 acres of prime land in Karachi, meant for a playground which remains an amenity plot, to the Makro-Habib Store for commercial activity by the Army Welfare Trust (AWT).
The court directed Makro-Habib to remove its structures and installations from the playground within three months, restore it to the same condition as existed on the date of the sub-lease and hand over its vacant possession to the City District Government Karachi (CDGK).
A short order authored by Justice Jawwad S. Khawaja said, "the Government of Pakistan (acting in the name of the President) had no legal authority to grant leasehold rights in the said land to AWT, the lease dated 19.12.2002 in favour of AWT is without lawful authority, with the result that the same is cancelled and set at naught".
On December 12, 2002, former President Pervez Musharraf, as lessor granted a lease of the land to AWT for 90 years at the yearly rent of Rs 6,020/- only. Thereafter, on July 31,2006, AWT transferred the land to Makro-Habib by way of sub-lease for an initial term of 30 years. Upon execution of the sub-lease AWT received advance rent of Rs 100,000,000 based on a variable annual amount of at least Rs 17,500,000 and a maximum equivalent to 1 percent of the annual turnover of Makro-Habib.
According to AWT and Makro-Habib, the lease and sub-lease aforesaid have created exclusive leasehold rights in favour of Makro-Habib for at least 30 years. As a consequence, Makro-Habib has constructed, what it calls a wholesale centre, on the said land. Earlier, on October 20, a three-member bench of the Supreme Court comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawwad S. Khawaja and Justice Ghulam Rabbani had reserved its judgement over the controversial piece of land.
The court held that the CDGK being the elected local government, representing the people, will develop and maintain the land as a playground or will allow its use for such other purposes permissible under the law. The court also cancelled the lease of the same piece of land to the AWT by the government and held that the President had no legal authority to grant leasehold rights of the same land to the AWT, which is a private trust primarily meant for the benefit of serving and retired personnel of the armed forces of Pakistan and their families.
The court held that the land was included in the area transferred by the government of Pakistan to the Karachi Development Authority (KDA), now the CDGK for the 'Lines Area Project' and was reserved as an open space dedicated for use as a playground in the Master Plan of the Lines Area Project.
It also held that the playground was and remains an amenity plot falling within the jurisdiction and regulatory control of the KDA, which now has emerged as CDGK. It has been held that the lease of the same land by the government (acting in the name of the President) to the AWT on December 19,2002 was without lawful authority, therefore stood cancelled and set at naught.
It has also been declared that the sub-lease made on July 31,2007 by the AWT in favour of Makro-Habib was also without lawful authority, thus stood cancelled and set at naught. "No doubt, it is laudable that the AWT has been established for the welfare of servicemen and their families. But this objective must be achieved through permissible means and not at the expense of the state exchequer or the public at large," the court observed. The court had taken suo motu notice against the establishment of Makro-Habib Store on the playground.
The notice was taken on a newspaper 'column' and converted into a petition under Article 184(3) of the Constitution. Later, a citizen Mehfooz-un-Nabi of the affected area had also been impleaded as party in the matter. Senior advocate Khalid Anwar appeared for Makro-Habib, whereas another senior lawyer Wasim Sajjad represented the AWT.
Copyright Business Recorder, 2009
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