2021 PLP 64 (YLRN)

MOHAMMAD KARIM KHAN AGHA, J.

The brief facts of this case are that Messrs Maxim Properties (Maxim) entered into a joint venture agreement with the Directorate of Estate Projects (the Directorate) in order to create a Housing Scheme known as "Fazaia Housing Scheme, Karachi". During the course of the joint venture, members of the public were given the opportunity to apply for plots in the proposed housing scheme. A large number of members of the public made applications for the allotment of plots in the housing scheme and paid substantial amounts of money in respect of such plots to Maxim.

2. The progress in developing the Housing Scheme was extremely slow which caused great dissatisfaction and concern amongst members of the public who had purchased plots in the scheme out of their hard earned money who became anxious that they would lose their money as the scheme may not reach completion and that they were being cheated. Under these circumstances a complaint was made to the National Accountability Bureau (NAB) under the National Accountability Ordinance, 1999 (NAO) against Maxim and the Directorate for cheating the public at large which resulted in the NAB opening an inquiry into this matter under the NAO.

3. During NAB's inquiry it transpired that neither Maxim nor the Directorate would be able to complete the project and as such in order to safeguard the interest of the members of the public who had paid for their allotments Affidavits/settlement agreements have been made by Maxim and the Directorate whereby the allottees will be refunded all the monies which they paid in respect of their plots and the settlement of all other liabilities related to the Project under the supervision of the NAB. The affidavits of Mr.Tanvir Ahmed son of Chaudhry Bashir Ahmed (Late) who is Managing Director of Maxim are at page-799 and page 917 of the file (C.P.D. No.218/2020) which sets out the terms and conditions of the agreement which Maxim undertakes to comply with in terms of returning the monies to each allottee and the settlement of all other liabilities of the Project. The obligations/ responsibilities which the Directorate have in respect of this settlement agreement are set-out in the Affidavits signed by Flt. Lt Numan Yousaf son of Tariq Javed on behalf of the Directorate at page 855 and page 921 of the file (C.P.D. No.218/2020).

4. National Accountability Bureau is not in favor of such Affidavits/settlement agreements by Maxim and the Directorate and is also against the release of Tanvir Ahmed of Maxim and his son Bilal Tanveer in order to implement Mr.Tanvir Ahmed's Affidavit/settlement agreement although in the end the NAB has stated that this court may pass appropriate orders keeping in view the best interests of justice and the affectees.

5. We have heard learned counsel on behalf of Maxim (petitioners Tanveer Ahmed and Bilal Tanveer), the Directorate, a number of effectees/ allottees and NAB and have considered the Affidavits/settlement agreements and other documents placed on record.

6. We have noted that this case concerns cheating the public at large whereby the real losers are likely to be the effectees/allottees who had invested their hard earned money in a housing scheme which now cannot be constructed and are also out of pocket. According to their counsel their desire is to be repaid the amount of money which they had invested as otherwise they will lose everything.

7. We have noted that cheating public at large cases under the NAO where they have concerned housing schemes have been considered differently by the courts as compared to other offenses under the NAO since the courts seem to have accepted that the paramount consideration is to lessen or, if possible, attempt to ensure that any loss suffered by the effectees/allottees is made good or at least ensure that the housing schemes in which the allottees had invested in are constructed if at all possible. The rationale appears to be to attempt to safe guard the public against irrecoverable losses which will have a dramatic negative personal impact on the remainder of their lives. For example, where their entire life savings have been invested in a housing project which will not be completed which leads to the allottee having no where to live on top of having lost his life savings. For example the Supreme Court in the Bahria Town Karachi case in order to safe guard the interest of the allottees whilst the case was pending before the developer with the NAB. Likewise in the Creek Marina Karachi case and the BNP/Hyatt Regency Islamabad case.

8. National Accountability Bureau in its own written reply has specifically stated that the orders of this court should keep in view the best interests of justice and the affectees.

9. It is notable that the allottees support the Affidavits/settlement agreements of both Maxim and the Directorate as they see this as there only realistic opportunity of getting back most if not all of their investment in a relatively short period of time. As such if we were to reject the Affidavits/ settlement agreements of Maxim and the Directorate then it is extremely likely that this matter would go to a prolonged trial, which experience has shown us is likely to take many years to conclude, with no guarantee of any of the allottees getting any refund at all. In our view as stated by NAB such an out come would not be in the best interests of either justice or the effectees.

10. As such by trying to strike a balance between Maxim, the Directorate and NAB with the paramount consideration of attempting to safe guard the allottees interests we hereby pass the following order: (a) We direct the Chairman NAB to pend any inquiry/investigation into this matter whilst Maxim and the Directorate give effect to their obligations and responsibilities under their respective Affidavits/compromise agreements set out above whereby the allottees will be refunded their monies in full and all other liabilities of the Project are settled. (b) In the event that both the parties, Maxim and the Directorate comply with their obligations/ responsibilities under their respective Affidavits/ settlement agreements and all the allottees are refunded all the monies which they had paid in respect of being allotted land in the Fazaia Housing Scheme, Karachi and all other liabilities of the Project are settled to the satisfaction of the Chairman NAB the Chairman NAB shall close this matter. (c) In the event however that either Maxim or the Directorate fails to comply with their obligations/responsibilities under their respective Affidavits in respect of settlement referred to above and all the allottees are not repaid in full or all the other liabilities of the Project are not settled within 6 months of the date of this order, the Chairman NAB may revive the inquiry/ investigation against the petitioners or any other persons involved in the Fazaia Housing Scheme, Karachi Project in connection with cheating the public at large or any other offence which they may have committed under the NAO. (d) The Chairman NAB shall supervise and facilitate Maxim and the Directorate in giving effect to their respective Affidavits/settlement agreements with a view to safe guarding the interests of the allottees and ensuring that all the allottees are repaid in full and all other liabilities of the Project are repaid within the shortest period of time. (e) In order to facilitate Maxim in giving effect to its Affidavits/ settlement agreement within the shortest possible time the Superintendent Central Prison, Karachi is hereby directed to immediately release Mr.Tanvir Ahmed and Mr. Bilal Tanvir from custody so that they may fulfill their obligations/ responsibilities under the Affidavit/settlement agreements signed by Mr.Tanvir Ahmed. The names of Mr. Tanvir Ahmed and Mr. Bilal Ahmed shall be placed on the ECL by the Federal Ministry of Interior with immediate effect until the Chairman NAB gives his certificate that Mr.Tanvir Ahmed and Mr. Bilal Ahmed have completed their obligations/ responsibilities under Mr. Tanvir Ahmed's Affidavit/ settlement agreement and all the allottees have been repaid in full and all other liabilities of the Project have been settled. (f) In the event that further time is required to carry out the obligations/ responsibilities contained in the Affidavits/ settlement agreements of either Maxim or the Directorate either party or the NAB may approach this court seeking more time to complete its obligations on furnishing reasonable grounds.

11. A copy of this order shall be sent by facsimile to the Chairman NAB, Superintendent Central Jail, Karachi and Secretary Ministry of Interior, Government of Pakistan for compliance.

12. This matter shall come up on 23.11.2020 at 8.30 a.m. when the Chairman NAB shall submit a compliance/ progress report. MH/T-16/Sindh Order accordingly.