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Respondents
WRIT PETITION UNDER ARTICLE 199 OF THE
CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973.
Respectfully Sheweth:
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That the petitioner is the President of Human Rights Council of Pakistan in Japan.
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That Pakistan Embassy in Japan was established on a land measuring 2249.10 square meters bearing Estate No. 01-04000050043 at Minito-Ward Moto Azabu 2 Chome bearing Address 2-322-3, Moto Azabu Minato-Ward, Tokyo.
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That the said Embassy of Pakistan was located at the posh area and highly expensive peace of land in Japan.
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That the land in Japan especially in Tokyo attains the value for the number of factors applicable to particular land which includes the locality, number of road crossing on the land, the level of land, its permissible constructions for the purpose of stories etc.
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That the Embassy of Pakistan in Tokyo, Japan, was blessed with all the qualities to be considered as high rated and valuable land, because of its location within the embassies area, the leveled land, a road in the front and also a passing road on the back side, and permissible construction available according to local laws.
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That merely the land of the Pakistan Embassy was more than 12 Billion Yen other than the construction with furniture and fixtures in the year 2006-2007.
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That the Embassy of Pakistan in Japan is directly controlled and managed by respondents No 1 and 2 whereas Respondent No.3 and 4 are responsible for managing the finances of any Govt. owned building and government buildings respectively.
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That the Respondent No. 5 is presently the Ambassador of Pakistan in Japan.
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That the Respondent No. 6 was the Ambassador of Pakistan in Japan from the years 2003 till 2008.
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That the respondent No. 6 in connivance with respondent No. 7 sold out the building and the land of Pakistan Embassy in Japan, for an amount of 6.3 Billion Yen to Respondent No.8.
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That the respondent No. 6 and 7 purchased the land for established of Pakistan Embassy at the Estate No. 010400 57973 measuring 2400.42 square meters at Minato Ward Minami Azabu 4 Chome located at 4-1-8 Minami Azabu Minato Ward Tokyo from Ministry of Finance, Government of Japan on subsidized rates i.e. half of the rate to the tune of 3.7 Billion Yen, whereas it is admitted by the respondents No. 6 & 7 that its actual value was 8.5 Billion Yen.
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That breakup of sale/purchase of Pakistan Embassy in Japan is as under:
Pakistan Embassy sold: 6.3 billion Yen
Land Purchased: 3.7 billion Yen
Construction & other benefits: 2.6 billion Yen
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That during the deal period of Embassy of Pakistan in Japan, in sale and purchase of the land for the Establishment of Embassy of Pakistan in Japan, the Embassy was shifted to the premises, which was located at around 400 Meters from the vicinity of the old building of Pakistan Embassy in Japan.
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That sudden declaration of shifting of Pakistan Embassy from its owned and managed premises to a hired building surprised and shocked the Pakistani community in Japan.
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That the above mentioned deal of sale/purchase of the Embassy land of Pakistan in Japan was kept top secret not only from the eyes of Pakistani community in Japan but also from the local real estate business in Japan.
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That when the petitioner inquired from respondent No 6 & 7 about the details of this deal, respondent No 7 gave the petitioner a copy of Pakistan Embassy’s official news-letter. According to the news letter respondent No 8 gave a proposal to Government of Pakistan exchanging a new 6 story building with Pakistan’s Embassy land. A three member inter-ministerial committee was constituted comprising representatives of respondent No 2, 3 & 4 to look into this proposal which found this proposal appropriate. A deal was struck out between respondent No 8 and respondent No. 1. The Embassy land was exchanged with a new and bigger land and building under swap program. This news letter further declared the advantages of this swap deal including more parking space, establishment of advance premium quality security system, storage space for each apartment, free maintenance, free of cost basic furnishing / interior decoration, fully equipped housing units, free cost of moving of chancellery, rent of two temporary accommodation to be paid by the respondent No 8 with no liability on Government of Pakistan, another shifting from temporary chancellery to new building from contractors and all the fees to complete the transaction of the project be also paid by the respondent No 8. This news letter further stated that even Pakistani Embassy was located in an expensive area but according to local metropolitan rules & regulations there was a handicap with this piece of land that only 3 story building can be built on this land. Respondent No 7 said the same thing in his audio & video interviews that a building not more than 3 stories can only be built on this land. Respondent No 7 gave the petitioner also an evaluation document, according to this document Pakistan Embassy’s land was evaluated at 6.3 Billion yen.
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That all these advantages which were exposed by the then Ambassador of Pakistan in Japan who is arrayed as a respondent No. 6 could not eliminate the clear allegation of corruption and corrupt practice being created, adopted, maneuvered, and done by the respondent No. 6 and 7 in league with respondent No. 1 to 4 to sale out a highly valuable Embassy of Pakistan in Japan at half rates from its actual rates as well as without adopting any legal course of action applicable to sale purchase of the government land anywhere in the world.
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That no bidding, advertisement was ever made in any public newspaper for the sale of land which was located in the posh area of Japan and even if it was ever required to be sold out it should have been done while advertising in the public newspaper with a complete set of proposals that may be required in accordance of law.
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That it is pertinent to mention that the respondent No. 6 and 7 who were in direct command and control of the embassy of Pakistan in Japan initially got sanctioned an exorbitant amount (to the tune of five and half lac US dollars according to information received) on pretext of renovation and maintenance of the embassy of Pakistan in Japan wherein number of selected items including carpets were changed while favoring some of the favorites.
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That on the success of illegal deal on pretext of renovation and maintenance, the sale purchase of land and building was done by the respondent No. 6 and 7 in connivance with respondent No. 8, who is the owner of the land site of old embassy in Japan’s land and successfully got sanctioned 7 stories building site for numerous earnings.
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That Aisha steel mills limited (respondent No 9) with website address www.aishasteel.com is set up in Karachi which is a 100 Million $ project. There are 3 stake holders in this project, (a) Universal Metal Corporation Japan with website address www.Universalmetal.jp (b) Metal One Corporation Japan (c) Arif Habib Group Pakistan. Universal Metal Corporation Japan (respondent No 10, 11, 12, 13, 14, 15) holds 49%, Metal One Corporation Japan 26%, and Arif Habib Group Pakistan 25% stakes in Aisha Steel Mills Limited which implies that respondent No 10 to 15 invested 49 Million $ in this project. Universal Metal Corporation Japan (respondent No 10, 11, 12, 13, 14, 15) apparently worked as front man for respondent No 6 & 7. According to Universal Metal Corporation’s website this company’s total sales in year 2004 was 1.5 billion-yen. If the profit is estimated on 5% to 10% even then it profited only few Million yen in year 2004. However, 49 Million $ ( 4.9 Billion yen ) was invested in Aisha Steel Mills beyond its earnings. Respondent No 6 the then Ambassador of Pakistan to Japan (2003-2008) is now Aisha Steel Mills executive director. Respondent No 6 & 7 apparently is the actual stake holder of 49% in Aisha Steel Mills, while respondent No 10 to 15 is only a front man company, which is required to be properly inquired into by financial inquiry agency.
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That the shady deal struck by respondent No. 6 to 8 was exposed by the incorporation of the respondent No. 9 which cannot be done without the appropriate income of any government officer through its legal earnings.
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That the clauses of contracts and assurances of property authorized by the President of Pakistan to be executed are provided in the General Financial Rules of the Federal Government, Volume 2, appendix1, Part XI in which all the contracts and assurances relating to property in foreign countries be executed by the Pakistani Ambassador in the country of his accredition.
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That more precisely the financial powers of the heads of Pakistan’s mission abroad are given in appendix 3-A, 5 and 8 of the Volume 2 of financial rules of federal government.
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That under rule 6 of appendix 3-A of volume 2 of financial rules of federal government, the heads of mission are specifically authorized to sanction the purchase of land for Pakistan’s Mission abroad and constructions of buildings thereon subject to release of funds with prior approval of the financial advisor. It is very important to note that the heads of missions are not authorized to sale out the land and construction of building thereon of Pakistan, abroad.
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That under 15 (B) (XII) (C) & (D) of financial rules of federal government, the heads of Pakistani Missions abroad are authorized to incur an expenditure upto $400 per annum within a financial year on the repairs of the buildings owned by mission concerned and upto US $ 200 per annum within a financial year on the repairs to the hired and requisitioned buildings.
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That under Para 15 (B)(XXVI) of the said rules, it is provided that the head of the mission may incur miscellaneous expenditure of non-recurring nature upto Rs. 2000 in each case. Any miscellaneous expenditure which involves a recurring liability shall require the prior sanction of Ministry of Foreign Affairs.
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That all the financial rules that have been promulgated from time to time are to lead one conclusion in respect of land and construction thereon that the assets in shape of land and construction thereon are to be purchased, maintained and renovated within the limited resources of the people of Pakistan with the limited powers to be exercised by the heads of Missions abroad so that no loss to the public money could be caused.
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That it is also provided under rule 42, Volume I of the general financial rules of the central government that any financial powers of the federal government which have not been delegated to any other ministry, department or authority, vest in the ministry of finance.
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That the law pertaining to the sale and purchase of property to the extent to sanctioning authority vis-a-vis the level of authority for sanctioning the amount for maintenance and renovation is very clear.
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That respondents No. 1, 2, 5 to 7 are atmost authorized to purchase the land and construction thereon but under no circumstance they were authorized to sell the land without the previous sanction of the respondent No. 3.
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That respondents No. 6 and 7 without adopting the legal course according to rules, regulations, fair and equitable procedure for engaging themselves to safe and secure the public money, public property and public image of Pakistan in Japan, worked out a scheme with illegal and unlawful motives for their respective personal gains.
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That it is because of above mentioned illegal acts that the respondents No. 6 to 8, because of their huge earnings managed to establish one of the most expensive project in Pakistan with name and style of “Aisha Steels Mills Limited” presently arrayed as a respondent No. 9 at the cost of US$ 100 Million.
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That respondent No. 6 & 7 were the active participants in the deal of sale of Pakistan Embassy in Japan along-with respondent No. 8 who then successfully managed to kick-start the huge steel mills business in Pakistan without any sort of financial check from any quarter.
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That the Pakistani community in Japan as well as the local community suffered a lot because of an open attempt of corruption and corrupt practice by the respondents for which they agitated the matter at all the forums but it seems like that none of the government agency has courage to take initiative to unearth and investigate, the clear violation of law and attempt of corruption and corrupt practices, and to proceed against in accordance with law, therefore, petitioner has been filing the present petition also as public interest litigation.
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That the petitioner as a representative of Pakistani community living in Japan and being probono publico is aggrieved on the loss of 6 Billion yen to national exchequer caused by respondent No 1 to 15. Pakistani community living in Japan knocked every possible door in Government circles to get initiated a thorough investigation about this shady deal and suspected kickbacks but to no avail. Pakistani community demonstrated peacefully in front of Pakistan Embassy in Tokyo on 28 November 2008. Around 100 Pakistanis from all over Japan gathered there and demanded a thorough investigation about this deal but their voice fell on the deaf ears of respondent No 1 & 2 and hence this writ petition.
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That there is no effective and efficacious remedy available except to invoke the extra ordinary jurisdiction of this Honourable Court for the redressal of greviances of all the Pakistanis specially living in Japan.
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That the sale and purchase deal done by the respondents of Pakistan Embassy in Japan is null, void, illegal, unlawful and ineffective in the eyes of law and liable to be strike down, the persons involved to be proceeded against and recovery of all the lost public money and assets are liable to be recovered inter-alia upon the following grounds:
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That the respondents have failed to exercise jurisdiction, acted beyond the jurisdiction, in excess of jurisdiction, in colourful exercise of jurisdiction, and/or jurisdiction not vested in them while selling the embassy of Pakistan in Japan.
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That none of the respondents were provided in the rules to sale out the embassy of Pakistan in Japan and sale of Pakistan Embassy was done without any proper authority.
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That the respondent No. 6 & 7 has acted beyond their respective jurisdiction while sanctioning the huge amount on pretext of maintenance and renovation of the Pakistan Embassy in Japan above their authority which is illegal, unlawful and ineffective in the eyes of law and liable to be dealt in accordance with law.
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That the word swap cannot be used in this deal because according to all English dictionaries swap, swop or barter means “ trade by exchanging goods for goods instead of money” but it’s conditional that exchanging goods should be of equal worth. And this is the actual position that Pakistan Embassy worth of 12 Billion yen was bartered away for a land and building worth of 6.3 Billion yen. So it is not a swap but a scam.
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That also the deal cannot be regarded as swap. According to deal respondent No 1 exchanged its property with respondent No. 8, but it wasn’t an exchange. Government of Pakistan bought a piece of land from Government of Japan’s finance ministry not from respondent No 8. If respondent No 8 didn’t own a property then it is cannot be termed as exchange.
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That respondent No 6 & 7 got an evaluation of Pakistan Embassy worth of 6.3 Billion yen. In Japan the evaluation of any piece of land is evaluated on the basis that how much area can be covered or in other words how many stories can be built on this land. 6.3 Billion yen evaluation was based on a supposition that on this piece of land only 3-story building can be built. This evaluation is based on a supposition not on a fact. The fact is that, respondent No 8 is building a 7 stories building on this land now. It’s the most expensive area in Tokyo. One new condominium in this area is usually sold out at the price of 0.20 to 0.30 Billion yen depending on the size and rooms. For example if 50 houses can be built in 3 stories, obviously more than 100 houses can be built in 7 stories. That’s why land in Japan is evaluated on the basis of how many stories can be built. Of course there are few other factors too including level of the land and nearby crossing roads etc. It is also important to mention that at first respondent No 8 were going to build an 8 story building on this land. He got permission from Minato ward office of Tokyo metropolitan to construct an 8-story building but later he modified his plans to 7-story building. Actually respondent No 6&7 connived with respondent No 8 to get this 6.3 Billion-yen evaluation but it’s a false and fictitious evaluation because it is based on a wrong presumption that only 3-story building can be built on this site. If an evaluation was procured on the factual position that on this site an 8-story building can be built which makes the evaluation more than 12 Billion yen.
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That respondent No. 1 to 8 failed to exercise the principle of equity, fair play and justice while dealing with public property in Japan.
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That respondents No 1 to 8 failed to make out a proper feasibility report, appropriate financial proposal, to seek financial and real estate advise from the experts, calling for public tenders, inquiring their reputation, and formal bidding through highly circulated newspaper by the general public.
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That the prices of the land and the building in Japan quoted by respondents clearly shows the loss of half of the price which was public money and a clear element of corruption and corrupt practices done by the respondents.
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That the respondents with mutual collusive arrangements spent a huge amount on pretext of renovation and maintenance of embassy of Pakistan in Japan and then after in no time went out to sell the same property without describing fate of articles which were renovated and maintained.
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That the “Aisha Steel Mills Limited” is a product of sale deal of Pakistan Embassy in Japan with a clear maneuvering of the respondents in league with each other.
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That respondents No. 1 to 8 even violated by law of Japan specially Prohibition of Private Monopolization and Maintenance of Fair Trade through the revision of Act No.35 of 2005 Effective January 4, 2006 wherein term "unfair trade practices" as used in this Act means any act falling under any of following items, which tends to impede fair competition and which is designated by the Fair Trade Commission:
i Unjustly treat other entrepreneurs in a discriminatory manner;
ii Dealing with unjust consideration;
iii Unjustly inducing or coercing customers of a competitor to deal with oneself;
iv Dealing with another party on such conditions as will unjustly restrict the business activities of the said party;
v Dealing with another party by unjust use of one's bargaining position;
vi Unjustly interfering with a transaction between an entrepreneur in competition with it in Japan with oneself or a corporation of which oneself is a stockholder or an officer and another transaction counterparty; or, in case such entrepreneur is a corporation, unjustly inducing, instigating, or coercing a stockholder or an director of such corporation to act against the interests of such corporation.
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That the act of respondents in sale, then renting and then purchase of the land and building of embassy of Pakistan in Japan is null, void, illegal, unlawful, ineffective in the eyes of law, unconstitutional, beyond the jurisdiction, in excess of jurisdiction, in colourful exercise of jurisdiction, and/or jurisdiction not vested in respondents.
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That petitioner may graciously be give leave to add grounds as and when required.
It is therefore, most humbly prayed that an appropriate writ may kindly be issued declaring the sale of the Pakistan Embassy in Japan and purchase of embassy of Pakistan in Japan as null, void, illegal, unlawful, ineffective in the eyes of law, unconstitutional, beyond constitution, in excess of jurisdiction, beyond jurisdiction, in colourful exercise of jurisdiction, and/or jurisdiction not vested in respondents.
It is further prayed that the sale of Pakistan Embassy to respondent No 8 be cancelled.
Also, the respondents No. 1 may kindly be directed to initiate the proper inquiry and proceed with against all the persons who are active participants in the sale and purchase deal of embassy of Pakistan in Japan.
Further also, the proper legal action may kindly be directed to be initiated for recovery of the land and property of Pakistan Embassy in Japan, which has been sold to respondent No. 8 and for recoveries of loss of public money in terms of deal of sale/purchase of Pakistan Embassy in Japan from respondents No. 2 to 15.
Finally, the respondent No. 6 to 15 may kindly be restrained from dealing, disposing off, or alienating the share holdings of Aisha Steels Mills Limited in any manner whatsoever.
Any other relief, which this Honourable Court deems fit and proper, may also be awarded to the petitioner.
Petitioner
Through
Ajam Naz Malik,
Advocate Supreme Court of Pakistan
Saifullah Warrich,
Advocate High Court,
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