Who's Vested Interest in DHA & ETPB Issue
13 March, 2014
By Zaheerul Hassan
Real estate business in a very short span of time dominated others businesses that created interest of multiplication of wealth amongst all segments of the society starting from individual to the institutions. DHA is one of the institutions that really brought revolution in real estate business through protecting the rights of the allottees and providing quality life to her members. As result, smaller societies situated on the boundaries and land owners of surrounding areas offered their societies for merging and selling out their lands to DHA. Similar nature of offer has also been made by the Evacuee Trust Property Board (ETPB) to DHA Lahore in 2007. According to a deal 1946 Kanals land was offered to the DHA on 33 % exemption by the ETPB. The offered land was also includes 1017 kanals which was illegally in possession of land mafia. The ETPB authorities include the same in the agreement since their officials probably not interested or unable to recover it from the land grabbers.
However, DHA Lahore adopted legal course of actions and spent almost worth 700 millions of money on recovery of grabbed lands but after Supreme Court verdict of 2013, now it has become the responsibility of ETPB to get the land vacate and hand over to DHA. Thus, some people of land mafia whose interests were compromised had leveled allegations against DHA and officials.
In this regard a leading newspaper (not Frontier Post) of February 17th 2014 titled as "ETPB Land worth billions illegally occupied" has published a self created story full of fabricated facts. He also tried to twist the Supreme Court decision of 2013 in the interest of land mafia, whereas, factual position of the narrated story is quite different from the reality.
At the outset the allegations appearing in the said news item to the extent of DHA, alleging that DHA Lahore is in illegal possession of land belonging to ETPB, are misconceived and denied. Moreover, it is only holding land as per agreement and decided by the Evacuee Trust Property Board (ETPB) in its 272nd meeting.
The decision of ETP Board dated 23.07.2007 was declared as legal and in the interest of ETPB by the Honourable Supreme Court of Pakistan vide Order dated 02.10.2013 in SMC No.9 / 2011. DHA, Lahore is entitled to acquire 1946 Kanal of land of ETPB in Mauza Mota Singhwala, Mauza Lidher & Mauza Dera Chahal, Lahore. Thus, ETPB is obligated to deliver the possession and ownership of agreed land, i.e. 1946 Kanal. So far partial land has been transferred to DHA Lahore in terms of the acquisition arrangement. The balance land is available with ETPB, which must be delivered to DHA Lahore for the implementation of the Order dated 02.10.2013 in letter and spirit.
It does not take much brain to understand that the Honourable Supreme Court of Pakistan vide Order dated 02.10.2103 set-aside the decision of 272nd meeting dated 16-4-2009 of Board of ETPB and held that earlier decision taken by the Board in its 263rd meeting dated 23-07-2007 was in accordance with law.
Paragraph 52 of honourable Supreme Court operative portion of the Judgment is reproduced here to reiterate DHA point of views:
In view of the above discussion, instant petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan is allowed with the following declarations:-
(1) Matter relating to acquisition of Evacuee Trust land situated in Mauza Lidhar, Muaza Mota Singh Walla and Mauza Dera Chahal Tehsil Cantt. Lahore by the Defence Housing Authority Lahore, vide decision dated 16.04.2009 of ETPB taken in its 272nd meeting approving the revised offer of DHA for exemption of 25% residential plots is unlawful, being contrary to section 4(2) of the Evacuee Trust Properties (Management & Disposal) Act, 1975, as the earlier decision taken on 23.07.2007 by ETP Board in its 263rd meeting was in accordance with the law as DHA in its letter has already agreed on 20.07.2007 that ETPB land would be acquired by DHA at 33% exemption of residential plots (measuring 1-Kanal each) as a result whereof DHA had to provide 642 residential plots on acquiring 1946-Kanals of ETPB land, in addition to DHA's offer of 100 x commercial plots on payment as for DHA members i.e. 16% of residential plots instead of 10%.
(2) Prima facie, subject to determination by the investigation agencies, ETPB had to suffer accumulative loss on account of deal under review amounting to Rs.1934.77 million, analysis of which has been noted hereinabove based on report of FIA.
(3) As the decision of the Board with regard to deal of ETPB and subsequent approval given by the Government vide letter No. P (3)/DSP/530/ETPB/07/LHR/ 3266 dated 20.04.2009 is void, and is of no legal consequences. Therefore, option is being given to DHA to accept the ETP Board's decision taken in 263rd meeting dated 23.07.2007 and handover the developed residential and commercial plots, details of which have been given hereinabove, to the ETPB. Acceptance of this offer must be communicated to ETPB within 30 days after receipt hereof, failing which DHA shall be bound to refund the land owned by ETPB situated in Mauza Lidhar, Mauza Mota Singh Wala and Mauza Dera Chahal etc.
(4) It has also come on record that DHA has acquired more land than agreed upon, therefore, Senior Member Board of Revenue, Government of Punjab is directed to make arrangement for the demarcation of the properties owned by ETPB referred to hereinabove and ensure the restoration of the excess land; and on non-acceptance of option noted above, total land so occupied/acquired shall be delivered back to ETPB by DHA by reserving the mutation entries and also cancelling the sale deeds, executed between the parties referred to in the judgment.
(5) DHA shall not be entitled to recover any compensation, if it has paid to obtain the possession from the lessee or on the development of land, as no evidence has been brought on record. However, to substantiate the same, if so advised, DHA has to resort to the Court of law to prove its claim by adducing evidence as it has been held in the matter of Action regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (PLD 2011 SC 619) DHA Islamabad.
(6) The decision of 272nd meeting held on 16.04.2009 as a special agenda is contrary to section 4(2) of the Act, 1975, in view of the principle of law discussed hereinabove.
(7) The Chairman of ETPB and Members of the Board handed over an amount of Rs.986.00 million vide tri-partite agreement dated 08.07.2009 to HLC and EHP. This amount has been recovered in pursuance of order of this Court dated 07.06.2013 and has been deposited in the account of Registrar of the Court, therefore, subject to Supreme Court Rules, 1980, the Registrar shall transfer this amount in the account of ETPB forthwith.
(8) HCL and EPL have entered into a transaction in respect of a joint venture, which absolutely had no existence as despite of receiving the amount noted above the Ranches were not handed over as no land was acquired, however, HLC and EHP got benefit of the amount of Rs.986.00 million owned by ETPB unlawfully, therefore, they are under legal obligation to compensate the ETPB by paying profit/mark-up on this amount, subject to determination by the court of law.
(9) As far as 50 files of Islamabad Ranches, if have been handed over to the ETPB, same shall be returned to the persons/agency from whom these files were received.
(10) We have noticed that in the transactions entered into by ETPB with DHA Lahore and Islamabad, numerous illegalities/irregularities and violation of financial instructions, have been committed alongwith violation of laws; therefore, in the public interest the Secretary, Ministry of Minorities Affairs is directed to arrange forensic audit of the ETPB for the last five years and on the receipt of the report actions, both civil and criminal, should be taken against the delinquents, in accordance with law.
(11) It was informed that at present position of Chairman, Evacuee Trust Properties Board is lying vacant, therefore, the Federal Government is directed to take necessary measures for the appointment of Chairman, in terms of section 3(3) of the Act, 1975 as early as could be possible in the interest of the institution.
(12) In respect of both the transactions i.e. DHA, Lahore land acquiring of Mauza Lidhar, Mauza Mota Singh Wala and Mauza Dera Chahal etc. as well as DHA, Islamabad, call for civil and criminal proceedings against the former Chairman, Mr. Asif Akhtar Hashmi and all others, who were directly or indirectly responsible for the same. The inquiry already initiated by FIA shall be expedited to be concluded as early as could be possible and compliance report shall be sent to the Registrar for our perusal in Chambers for appropriate orders if need be.
It is stated that the alleged report by the Senior Member Board of Revenue Punjab (Report was prepared without associating or involving any representative of DHA Lahore and no details thereof were provided to DHA, Lahore), as it appears from the bare reading of the news item, was not in accordance with the mandate of the Order dated 02.10.2013 and bears no nexus to the directions given by the August Court, while making declarations qua upholding of the decision in 263rd meeting of the Board and extending offer to DHA Lahore to accept and implement said decision.
That subsequent to the passing of the Order dated 02.10.2013, DHA Lahore, within the stipulated 30 days, vide letter dated 02.11.2013 & 11.11.2013 conveyed unconditional and unqualified acceptance of the decision of the Board in its 263rd meeting on 23.07.2007, nipping all speculations and allegations in the bud. The alleged report by the Senior Member Board of Revenue (SMBR) was allegedly prepared without appreciating or examining the acceptance of DHA Lahore, expressing its willingness to acquire 1946 Kanal of land of ETPB, and understanding the order of the Court.
The claim of DHA Lahore qua acquisition of 1946 Kanal of Land of ETPB is legitimate, valid and in line with the Order dated 02.10.2013 hence, it cannot be alleged as "illegal or unlawful". Yes!
If the claim of DHA Lahore or ETPB's land, currently in its possession / occupation, is more than 1946 Kanal then it can be termed as "excessive" but not otherwise. DHA Lahore is running from pillar to post to make, all and the sundry, understand the validity of its claim to the extent of 1946 Kanal of land in Mauza Mota Singhwala, Mauza Lidher & Mauza Dera Chahal, Lahore and Order dated 02.10.2013. Any assertion or allegation that DHA Lahore is in possession of land more than its entitlement (when admittedly it is entitled to acquire 1946 Kanal of land and is currently holding possession of land substantially less than its entitlement) is illogical and illegal.
That the Senior Member Board of Revenue coercively, through sending series of notices and without considering replies thereto, insisted to illegally recover possession of alleged excess land from DHA, without appreciating that at no point in time DHA had held or have claimed possession, acquisition and right upon the land in excess of its entitlement, i.e. 1946 Kanal. Any attempt to recover alleged excess land from DHA, Lahore per se constitutes blatant violation of decision dated 23.07.2007 of 263rd meeting of ETP Board and the Order of the Honourable Supreme Court of Pakistan. Despite representations, the Offices Senior Member Board of Revenue was bent upon encroaching upon the land under legal and contractual possession of DHA, Lahore. An erroneous impression has been created that DHA Lahore is making claim of land beyond its entitlement, i.e. 1946 Kanal.
DHA Lahore was constrained to approach Lahore High Court, Lahore by filing Writ Petition bearing NO. 32503/13 for seeking enforcement of the judgment of Supreme Court of Pakistan. The petition is currently pending adjudication before the Lahore High Court, Lahore. Ironically, despite willingness of DHA Lahore and acceptance of the offer, the order of the Supreme Court of Pakistan dated 02.10.2013 is yet to be enforced in letter and spirit.
In short, the honourable Supreme Court decision and acceptance of DHA damaged the vested interests of certain tycoons of land mafia and their supporters who want to sale out the property with help of black sheep of the certain civil departments. Some of the persons even without realizing the effects are trying to cash this issue while connecting it with the Sikh minority. In this connection a person named Ghulab Singh on the support of local land mafia started claiming the rights over 203 kanal - 13 marlas of the board's land at Dera Chahal. Anyhow the army authorities took soft view and decided not to touch the piece of land where shrine of Bebe Nanki, the sister of Baba Guru Nanak, located. Even Ghulab Singh with the help of some civil official tried to encroach over and above the claimed lands. At the end , I would like to the suggest that the creator of "ETPB Land worth billions illegally occupied" should have consulted DHA before crafting such like factious media piece.
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