11-06-2009, 08:30 AM
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Zardari land deal raising legal issues
By Ansar Abbasi
ISLAMABAD: The controversial land purchase deal of 2,460 kanals by a company, owned by the president and his son, is also raising a number of legal questions pertaining to this transaction.
The News had reported on Tuesday that the company had purchased 2,460 kanals of prime land in Islamabad in March 2009, valued at a CDA price of over Rs02 billion, at just Rs62 million.
According to a source, the court decree in favour of the Park Lane Estate (Pvt) Ltd also raises the fundamental question if the law, regulating specific performance suits, is not misused. The source, who is a legal expert and presently doing a job that does not allow him to come on the record, said that sub-Section 2 of Section of Civil Procedure Code (CPC) defines term decree and clearly reflects that for awarding of a decree, there must be a controversy between the parties on an issue or issues.
In other words there must be a cause of action with an individual against another to establish it in a court of law. It is universal canon of law that no case lies in court if there is no cause of action. Under sub-rule (a) of order 7 rule 11 of code, a plaint/case shall be out rightly rejected by the court if it does not discloses a cause of action.
In the Park Lane Estate case, the source said the case was brought against Nasir Khan for specific performance of an agreement on the ground that he has denied execution of agreement to sell for which he had received substantial amount and only Rs01 million remained unpaid. Defendant Nasir Khan admitted the claim as and when he filed written statement. Thus there remained no matter in dispute between the parties as they had nothing to agitate before the court. In this view of the matter, the source insists that the suit was barred under rule 1 of order 15, which says that parties not at issue. Where at the 1st hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the court may at once pronounce judgment. It is said that there are a plethora of case laws, which deprecates granting of consent decrees to parties for the purpose of evasion of government dues and taxes. As the awarding of consent decree is alien to code; therefore, no appeal lies there against under sub-Section 3 of Section 96 of the code.
On the question of maintainability of an execution petition of a consent decree, the source added, the Lahore High Court in case titled Ghulam Mohd Vs Zubaida Begum has held that consent decree is non appealable and non-executable as at the most a decree for consent connotes parties willingness towards performance of an agreement. He said that the same has repeatedly been upheld by superior courts as reported in 1984 CLC 874, P 1996 D 234,A 1932 B 466.
The source disclosed that former Chief Justice of the Peshawar High Court, Justice Usman Ali Shah, had to issue a general circular in 1988 throughout the province, directing courts to stop forthwith passing consent decrees brought for evasion of taxes through recording lesser values of lands against prevailing market rates.
Senior Supreme Court lawyer Akram Shaikh, talking to The News, said that despite the court’s decree, any local resident of the Sangjani, Islamabad, can file a civil suit in the court of law for his right of pre-emption over the land purchased by the president’s company at throwaway prices.
http://www.thenews.com.pk/top_story_detail.asp?Id=25408