N.-W.F.P. Transfer of Government and other Public Immovable Property (Eradication of Malpractices) Ordinance 1997

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NORTH‑WEST FRONTIER PROVINCE TRANSFER OF GOVERNMENT AND OTHER PUBLIC IIVINIOVABLE PROPERTY (ERADICATION) OF MALPRACTICES) ORDINANCE, 1997

An Ordinance to regulate allotment of Government's land to general public

[Gazette of N.‑W.F.P., Extraordinary, 6th February, 1997]

No. Legis. 1(4)/97/903, dated 6‑2‑1997.‑‑The following Ordinance by the Governor of the North‑West Frontier Province is hereby published for general information:‑‑‑

Whereas it is expedient further to regulate transfer of Government and other public immovable property including buildings, land and plots developed by authorities under the supervision and control of Government and to eliminate malpractices, corruption, favouritism, misuse of powers, obtaining or giving undue financial gains and other illegal activities prevailing in the field in this behalf.

And whereas the Provincial Assembly is not in session and the Governor of the North‑West Frontier Province is satisfied that circumstances exist which render it necessary to take immediate action;

Now, therefore, in exercise of the powers conferred by clause (1) of Article 128 of the Constitution of the Islamic Republic of Pakistan, the Governor of the North‑West Frontier Province is pleased to make and promulgate the following Ordinance:

1. Short title, extent and commencement.‑‑(1) This Ordinance may be called the North‑West Frontier Province Transfer of Government and other Public Immovable Property (Eradication of Malpractices) Ordinance, 1997.

(2) It extends to whole of the North‑West Frontier Province.

(3) It shall come into force at once.

2. Definitions. ‑‑‑In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say‑‑‑

(a) "allotment policy" means the allotment policy for residential and non‑residential immovable properties issued by Government from time to time;

(b) "Authority" means a Board or an authority established or constituted under the North‑West Frontier Province Urban Planning Ordinance, 1978 (N.‑W.F.P. Ordinance IV of 1978), the Galiat Development Authority Act, 1996 (N.‑W.F.P. Act VII of 1996), or the Kaghan Development Authority Act, 1996 (N.‑W.F.P. Act VIII of 1996), as the case may be, or any other development authority establishment under any law for the time being in force;

(c) "Code" means‑‑

(i) in the case of an illegal gain, the Code of Civil Procedure, 1908 (VI of 1908); and

(ii) in other cases, the Code of Criminal Procedure, 1898 (V of 1898);

(d) "Director‑General" means the Director‑General or the Managing Director, as the case may be, of an Authority;

(e) "Government" means the Government of the North‑West Frontier Province;

(f) "illegal gain" means any gain obtained by any person at the expense of the Authority on or after the 23rd day of December, 1986 through allotment of immovable property at price lower than the market price for such property and includes illegal gain obtained though‑‑‑

(i) an allotment of a commercial plot whether directly or through exchange with a residential plot;

(ii) an allotment of a residential plot through conversion of a public utility plot;

(iii) an allotment of residential plot in violation of the allotment policy;

(iv) an allotment of a residential plot, by way of exemption, in exchange for land to which the allottee had either no title or his title was disputed; and

(v) an allotment of a residential plot, by way of exemption, in violation of the approved exemption policy for the scheme in which the allotment through exemption had been allowed;

(g) "market price" means the marked price on the date of the order making the allotment;

(h) "person" means the original allottee and his heirs, successor‑in- interest and transferees, whether by operation of law or otherwise;

(i) "prescribed" means prescribed by rules made under this Ordinance;

(j) "scheme" means a scheme prepared, modified and executed under this Ordinance or under the laws mentioned in clause (b), whether initiated by or transferred to an Authority.

3. Categorization of plots.‑‑(1) In a scheme of an Authority, plots available for sale shall be categorized as‑‑‑

(a) residential plots, which shall mean plots on which buildings designed for human habitation, and for no other purpose, are to be constructed including such outhouses as are ordinarily ancillary to the main residential building and used in connection therewith; or

(b) commercial plots, which shall mean plots on which buildings for shops, show‑rooms, offices, hotels, restaurants, banks, petrol pumps .or space for any other commercial use, are to be constructed, which may include residential apartments on one or more floors thereof; or

(c) industrial plots, which shall mean plots on which buildings designed for use as factories or workshops are to be constructed which may include offices for the staff and factories or workshop; or

(d) public utility plots, which shall mean plots on which buildings designed for public use are to be constructed including dispensaries, post offices, police stations, schools, colleges, health centres, hospitals, clinics, community centres, libraries, cultural centres, tonga and transport stands, offices of the Federal, Provincial or Local Government, mosques and other places of worship; institutes of learning, educational centres, marriage halls, graveyards and spaces reserved for any other prescribed public use.

The Authority shall, at the time of sanction of each scheme or any modification of a sanctioned scheme or transfer of a scheme to the Authority for further execution, notify the number of plots in each category together with the area covered by such plots.

4. Disposal of residential plots.‑‑(1) Residential plots in a scheme of an Authority shall be disposed of in the following manner:

(a) sixty per cent. of ten marlas and above sizes, shall be sold through public auction to the highest bidders: and

(b) forty per cent. of such plots and all other plots of less than ten marlas sizes shall be allotted though balloting at reserve prices fixed by the Authority: provided that a person having once been allotted a plot shall not be entitled to apply in subsequent draws.

(2) The Authority may impose restrictions on further transfer of plots allotted at reserve process up to the time of completion of residential buildings thereon, to the satisfaction of the Authority, the contravention whereof shall be punishable with fine up to one hundred thousand rupees or, in default of payment of fine or part thereof, with imprisonment which may extend to three months.

5. Disposal of commercial and industrial plots.‑‑(1) All commercial and industrial plots shall be sold through public auction to the highest bidders in accordance with procedures prescribed by the Authority.

(2) All public utility plots shall be allotted, at reserve prices fixed by the Authority, in accordance with procedures prescribed by the Authority; provided that sites reserved for graveyards may be allotted free of cost.

(3) No public utility plots shall be sold or otherwise transferred to any other person in any circumstances. Such plots may, however, be returned to the Authority on its original price, if not utilized for the purpose it was allotted.

6. Purpose of allotment not to change:‑‑(1) In all schemes of an Authority space reserved for roads, streets, footpaths, drains, parks, playgrounds, parking areas, green belts, service lanes, round‑abouts, traffic islands shall not be converted to any other use.

(2) In all schemes of the Authority, public utility plots shall not be covered to residential, commercial and industrial use.

(3) Contravention of the provisions of this section shall be punishable with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to one hundred thousand rupees, or with both; provided that in default of payment of fine or part thereof, the defaulter shall further be punished with simple imprisonment for a term which may extend to three months.

7. Allotment in violation void.‑‑(1) Any allotment, sale, disposal or conversion of a plot in violation of the provisions of sections 4, 5 and 6 shall be void and the plot together with any building or structure constructed thereon shall be liable to be forfeited to the Authority notwithstanding any further transfer of such plot whether by way of sale, or through operation of law, or otherwise.

(2) It shall be the duty of every purchaser or transferee of a plot to satisfy himself that there has been no violation of the provisions of sections 4, 5 and 6 with respect to such plot, and it shall be no defence to forfeiture under subsection (1) for any purchaser or transferee to claim that he was unaware of such violation.

(3) No order of forfeiture under subsection (1) shall be passed except by the Authority or an officer authorised by it who shall give all persons likely to be affected thereby a reasonable opportunity of showing cause against such order and of being heard in their defence.

(4) An appeal against the order under subsection (3) shall lie to the High Court which shall decide such appeal within six months.

8. Offences triable by Court of Session.‑‑All offences punishable under this Ordinance shall be triable by, a Court of Session.

9. Reference to Court.‑‑(1) If the Director‑General is satisfied on the basis of information placed before him or which comes to his notice, whether through complaint, application, report his subordinates or otherwise, that either there is a prima facie case for holding that a person as obtained an illegal gain, or an allottee has violated the provisions of this Ordinance, the Director‑General shall refer the matter to the Court.

(2) The reference to the Court shall be in the form of plaint, duly verified by the Director‑General, setting out all the material facts including the name of the person under whose order the allotment was made, the names of the officers and officials who dealt with the allotment whether before or after it was made, the manner in which the illegal gain was obtained, the market price on the date of allotment, the actual price at which allotment was made and an estimate of the illegal gain together with the name of the person who has obtained such illegal gain, or the provisions violated by an allottee, as the case may be.

(3) The person who has obtained illegal gain or has violated a provision of this Ordinance shall be named as defendant and if there is more than one such person, the reference shall also state whether they are jointly or severally liable.

(4) The reference shall be accompanied by copies of all documents relied upon in support of the same, duly attested either by the Director‑General or by an officer of the Authority authorized by the Director‑General in this behalf.

(5) The reference shall also be accompanied by a list of witnesses together with the affidavits of such witnesses.

10. Procedure of Court.‑‑(1) On receipt of the reference, the Court shall hold a preliminary hearing and satisfy itself that the requirements of section 9 have been complied with and that a prima facie case has been made out. The Court may, at this stage, require the Director‑General to furnish such further information as the Court may require to satisfy itself that there are sufficient grounds for proceeding further on the reference made to it. '

(2) If the Court is satisfied that there are sufficient grounds for proceeding further, the Court shall issue notice to the defendant through summons in the ordinary course, by registered post acknowledgement due or by publication. Service in any of the three modes shall constitute proper and valid service for the purposes of this Ordinance.

(3) The defendant shall, within 15 days of service of notice, file his reply to the reference together with copies of all documents relied upon by him in support of his reply and list of witnesses, together with their affidavits, that he intends to produce; provided that it will not be necessary for the defendant to file the affidavit of any official witness intended to be summoned through the process of the Court.

(4) If the defendant fails td file his reply within the prescribed period the contents of the reference shall be deemed to be true and correct and the Court shall pronounce judgment and decree in accordance with the provisions of section 13.

(5) On receipt of the reply, the Court shall hold hearing to record; if required, the better statement of the parties, and to determine the facts and documents that stand admitted, the points on which the parties are at variance and the witnesses who need to appear for proving or disproving the matters in issue, and shall then fix a date for the evidence of the parties.

(6) On conclusion of the evidence of the parties the Court may, on its own motion or on the application of either party, take such additional evidence as it may require for the proper adjudication of the matters in issue and in the interests of justice and may, in this behalf, summon and record the statements of the person under whose order the allotment was made and the officers and officials who dealt with the allotment.

(7) The Court shall thereafter set down a date for hearing of the arguments of both parities and may, in this behalf, call for or accept written arguments. On completion of the arguments, the Court shall, as soon as may be reasonably practicable, pronounce the judgment.

(8) The Court shall be deemed to have entered upon a reference on the day reference is filed before it and shall decide the same within 90 days, and for any delay sufficient reasons shall be recorded.

(9) The Court shall not adjourn a hearing to the reference for any reason unless such adjournment is, in its opinion, necessary in the interest of justice, and no such adjournment shall, in any case, be granted for more than 7 days.

(10) A Court shall not, merely by reason of a change of its composition or transfer of a reference under section 11, be bound to recall and rehear any witness who has given evidence, and it may act on the evidence already recorded.

(1 l) All proceedings before a Court shall be conducted in open Court.

(12) Except as otherwise provided in this Ordinance, the Court shall follow the procedure specified in the Code.

11. Transfer of reference.‑‑The High Court may, if it considers it expedient to do so in the interests of justice, transfer any case from one Court of Session to another Court of Session.

12. Proceeding against officials of the Authority.‑‑In case where the Court has summoned and examined the person responsible for making the allotment that led to illegal gain, and the officers and officials who dealt with the allotment, the Court may comment on their conduct and make recommendations to Government and to the Authority for appropriate action against such persons and officials.

13. Execution of decree of Court.‑‑(1) The Court shall, on an application made to it by the Director‑General, enforce execution of its decree in accordance with the provisions of the Code.

(2) The Court may also, on application made to it by the Director -General, order execution of its decree in the manner prescribed for recovery of arrears of land revenue.

14. Restriction on sale, etc. ‑‑If the Court holds that illegal gain has been made on account of the allotment of the plot forming the subject‑matter of reference then further sale, mortgage, gift or other transfer of the said plot shall be subject to such directions, if any, as the Court may give into its judgment and decree.

15. Appeal:‑‑(1) An appeal against the final judgment and decree of the Court shall lie to a Bench of the High Court comprising not less than two Judges provided that‑‑

(a) no appeal shall lie against an order passed under section 14 or against any order that does not finally dispose of the reference before the Court;

(b) no appeal shall be entertained if filed more than 30 days after the date of the final judgment and decree passed by the Court;

(c) in case of an appeal by a person against whom a decree has been passed for recovery of illegal gain from him, the appeal shall not be entertained until such person has deposited in cash with the High Court the amount of the decree or, where the High Court so deems fit, furnished security for the payment of the decretal amount to 4he satisfaction of the High Court.

The High Court shall hear and decide the appeal before it within 90 days of the date of filing.

**16. No Court‑fee, etc. to be charged.‑‑**No court‑fee or any other fee shall be payable on any reference made, reply, application or Vakalatnama filed or document exhibited before a Court or for obtaining copy of any judgment or decree of a Court or for obtaining copy of any document, exhibit or statement made in such Court.

17, Immunity of Government, the Authority, the Director‑General and the officers of Government and the Authority.‑‑No suit, persecution or any other legal proceeding shall lie against Government, the Authority, the Director- General or any officer or official of Government or Authority in respect o1 anything done‑ or purported to have been done in good faith under this Ordinance.

18. Power to make rules.‑‑Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.

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