ISLAMABAD: The Supreme Court Thursday reserved its verdict in a caseregarding lease of Railway land to M/s Mainland Husnain relating to RoyalPalm Golf & Country Club, Lahore.
A three-member bench of the court headed by Justice Sheikh Azmat Saeed andcomprising Justice Faisal Arab and Justice Ijaz Ul Ahsan heard the casefiled by former Minister Ishaq Khan Khakwani challenging the validity ofthe land lease contract between Pakistan Railways and Mainland Husnain.During the course of proceedings, Barrister Syed Ali Zafar counsel forMainland Husnain submitted that firstly each and every allegation made inthe petition is mirrored in a reference filed by NAB in this very case inthe Accountability Court.
He said that any finding on any of the issues, whether in favour of oragainst Mainland Husnain, will prejudice the criminal trial and, therefore,either the Court should dispose of the petition and wait for the finaloutcome of the trial in the Accountability Court or quash the reference anddecide the matter itself. Upon this Justice Azmat Saeed remarked that howmany accused were nominated in NAB reference.
The counsel for NAB appraised the court that NAB had nominated 14 accusedin the case. The counsel for the petitioner said that the accountabilitywatchdog did nothing during last eight years.
He pleaded the court to decide the case instead of the NAB. Justice AzmatSaeed remarked that whether it would be appropriate that the court holdproceedings after filing of reference by NAB. Justice Ijaz Ul Ahsanremarked that if the court announced any finding in the case it couldaffect the NAB reference.
The accused would get free if the top court termed the contract valid andif the court cancelled the contract then there would be difficulties forthe accused, he added. The counsel for the petitioner said that preciousland of the Railway was given in throwaway price. He said marriage hallswere constructed after demolition of poor employees houses.
He said that people sitting in the Parliament House were not representingthe people.
Ali Zaffar said that whether the Supreme Court could proceed in the matterunder Article 184(3) without a trial. He said that under Article 10-A ofthe Constitution, the civil and criminal liabilities of any person have tobe decided by fair trial and therefore Article 184(3) is not theappropriate remedy.
He said that the contract between the parties contained an arbitrationclause which provided that all disputes must be settled througharbitration,and accordingly this dispute between Pakistan Railways andMainland Husnain has to be decided by arbitration.
Barrister Zafar submitted that Pakistan Railways has kept changing itsstance with the change of Government which is unfair. A businessman doesthe business with a government not with any political party and once anagreement is executed with the government, it is against all norms ofjustice to deny its validity, he added.
He said that Pakistan Railways entered into the contract and now once theproject has been built, it is claiming that the original contract is wrongand trying to benefit from their own faults by claiming that the fullybuilt project be given back to them.
As regards the allegation regarding land, Barrister Zafar submitted thatthe advertisement and bidding documents clearly specified that PakistanRailways has the site of 162 acres which also contained golf course of 103acres and that proposals were invited from parties for the best possibledesign to build a golf course and other facilities along with club house,tennis court, swimming pools, restaurants etc.
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He submitted that it was a built, operate and manage project in which allthe investment was to be made by the investor who was then to manage theproject and at the end of the lease, the entire beautiful project alongwith all its buildings and facilities etc. were to be given back toPakistan Railways.
As part of the contract, Pakistan Railways was also entitled to share inthe revenues apart from land usage charge and commitment fee etc. Hence theproject was a win win situation for Pakistan Railways, he added. BarristerZafar explained that the golf course cannot be equated with a commercialland value and hence the argument of Pakistan Railways that the rates ofland usage could have been better is absurd.
Barrister Zafar further argued that the taste in the pudding is in eatingit and in this case the fact is that the investors have not run away butrather developed an excellent project which is an icon of Lahore andfulfilled all their obligations.
As regards the allegation that in the bidding documents the lease periodwas 33 years while in the contract the lease period was increased to 49years, Barrister Zafar submitted that the bid contained an offer of 66years but the same was reduced by Pakistan Railways after negotiation for49 years.
He submitted that if the Court feels that the lease period should be 33years then the Court may reduce the period to which the Petitioner has noobjection.However he argued that the approach of the Court should beconstructive rather than punishing and if after 20 years the contract isbeing called in question due to procedural technicalities, this willtotally erode all confidence in the investment climate.
Why would somebody invest in Pakistan or in a project with the Governmentafter all that has been done and when small issues and procedural errors ofthe Government could lead to cancellation of the project? Barrister Zafarsaid that the Petitioner has spent billions of rupees, built up the nameand reputation of the club with more than 3000 members and employedthousands of families and has paid crores of rupees in taxes and hugeamounts to PR.
He submitted that before the contract Pakistan Railway was running theRailways Club and had given it to someone for Rs.12/- per annum.
Now that a great project has been set up, PR has become greedy and wants totake it over which cannot be allowed.
PR or the Government of Pakistan cannot be given any advantage beyond whatis used for a normal otherwise it will lead to discrimination under Article25.
