The top court has banned construction of shops and shopping centres on public playgrounds and directed a supermarket chain owner to clear out an amenity plot in Karachi.
The Supreme Court had already rejected the review petitions, filed by Makro-Habib, Army Welfare Trust (AWT) and others, against the court’s earlier ruling, wherein Makro-Habib was directed to close down its Lines Area outlet in the port city within three months and restore the 4.9 acres, on which the structure was built, to its original state of a playground.
The lease for the land was issued for 90 years at the annual rent of Rs6,020. On July 31, 2006, the AWT transferred the land to Makro-Habib by way of sub-lease for an initial term of 30 years after receiving an advance rent of Rs100 million based on a variable annual amount of at least Rs17.5 million and a maximum equivalent to one per cent of the annual turnover of the outlet.
In 2009, the apex court had taken suo motu notice of the matter on the basis of an article by now-deceased columnist Ardeshir Cowasjee.
Justice Qazi Faez Isa, authoring the written order regarding the dismissal of Makro-Habib’s plea, observed that investments should be made on land that has been legally acquired, and that if anybody chooses to do so on public land, he cannot complain that his investment has been wasted.
The order also stated that the federation assails the determination by the court that the government had no legal authority to grant lease hold rights of the said land to the AWT and the lease dated December 19, 2002 in favour of the AWT is without lawful authority; as a result, it is cancelled.
But the bench remarked that the review jurisdiction is not meant to permit the rehearing of the case as has been sought, adding that since the contention that has been advanced before the court had already been considered and was specifically incorporated by the bench in the judgment, the federation cannot be permitted to repeat the same.
The court has also rejected the federal government’s argument that if the lease executed in favour of the AWT is cancelled, the property would revert to the centre and the court should not have directed that its possession be handed over to the City District Government Karachi (CDGK).
“Once a conscious and deliberate decision on both points of fact and law has been made, no exception can be taken; therefore, the review petition on this ground too fails,” added the verdict.
Regarding the objection of Makro-Habib’s counsel over the SC’s suo motu proceedings in this case, the order stated that if a matter is of public importance and requires the enforcement of fundamental rights, the provision of jobs will be completely irrelevant.
“In conclusion, we may add that vide the judgment of December 18, 2009, Makro-Habib was granted three months to remove its structure and installations from the playground, restore it to the same condition as existed on the date of the sub-lease and hand over its vacant possession to the CDGK. However, Makro-Habib continued to be in possession for a further period of six years, during which period the citizens of Karachi continued to be deprived of their playground,” said the top court.
Published in The Express Tribune, September 25th, 2015.
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