MIAN ALLAH NAWAZ, J.---Geographically, Cholistan is a vast sandy area spreading over approximately 26,000 Sq. Kilometers. It so physically constitutes 2/3rd of Bahawalpur Division; its length is about 48 kilometers and breadth varies from 32 kilometers to 192 kilometers. Its total area is 60,55,360 (sixty lacs fifty five thousand three hundred and sixty) acres. Out of it, 40,28,160 (forty lacs twenty eight thousand one hundred and sixty) acres is in Bahawalpur District, while the remaining is in Rahimyar Khan and Bahawalnagar Districts respectively. It meets the boundaries of former Bikaner and Jaisalmer States (now India) and the Thar desert in Sindh. It has two parts known as smaller Cholistan and greater Cholistan. Smaller Cholistan has alluvial flat land with small sand-ridges. Reportedly, it measures approximately 20,00,000 (twenty lacs) acres, while the Greater Cholistan is in the south and is covered by high sand dunes. It is almost 40 lack acres.
Climatically, it is an arid zone with scanty rainfalls, high temperature, low relative humidity and strong summer winds. This area is, so, known as Cholistan/an expression originating from Turkish expression 'Chillastan'/meaning waterless waste land. This area is still unsettled and falls outside the boundary of irrigation system known as Sutlaj Valley irrigation net-works.
2. Historically, this area was/is continuation of famous desert known as "Thar". Its inhibitants led nomadic life in highly oppressive conditions. The present inhahitants of this area lead the same life and breed live-stock like sheep, cows, camels and other animals. Approximately, there are about 16 lacs animals in Cholistan. Briefly speaking, this was occupied by one ruler after the other.
Bahawalpur State was founded in 1802 and this area fell under the suzerainty of Abbasides.
Bahawalpur State was subjected to Sikhs incursions and so the Abbasides went into British tulegage. Abbasides ruler tried to green this area but in vain. In 1879, Bahawalpur State/Division had no permanent system of irrigation. This condition is painted by Mr. Barns as under:- "Most of the people were leading a nomadic way of life shifting their abodes every now and then according to the vagaries of nature. When their fields were flooded with waters, they used to leave the place and came back when water receded. But it was the future of the land which was disturbing the minds of Bahawalpur Amirs. Now, the permanent settlements were being planned at different places of the State and those had to be safeguarded from the destruction of floods, most of those proposed sites being on the fringe of rivers." (See p. 248 of "Legacy of Cholistan" by Nurul Zaman Ahmad Auj.).
3. Sutlaj Valley project, at this stage, was conceived and was forwarded to concerned units including Bahawalpur. Abbasides ruler at that time, tried to get water for this area but in vain. When this project was completed, it laid the foundation of permanent, organized weir-controlled irrigation to a sizable portion of Bahawalpur State. Ill-luck would have it, this system did not provide any needed relief to this area and so the fate of this waste land did not undergo any change. The famous Mr. Penderal Moon, the then Revenue Minister of Bahawalpur State, depicts this episode in following words:--- "It soon became apparent that the Bahawalpur Authorities had been right". The supplies of water, it was found were insufficient for the designed capacity of the canals; at the Sulemanki and Islam Weirs in particular the shortage at the critical seasons of the year was wearies and chronic. In the end, large areas of land which it had been intended to bring under cultivation had to be given up.
Miles of canals dug through the desert of Bahawalpur were later abandoned, and Rest houses built for the accommodation but never occupied, crumbled away forlornly in a barren wilderness. The effect on Bahawalpur finances was very serious. To meet the share of the capital cost of the Project, which turned to be nearly two and a half times the original estimate, the State had to borrow Rs,12 crores from the Government of India". (See p. 251 of "Legacy of Cholistan by Nurul Zaman Ahmad Auj.)
4. With the establishment of Pakistan, Bahawalpur State joined it; it became part of West Pakistan in 1954/1955 and then after its break-up, it became the part of Punjab. This is its brief historical background with which we are.Now concerned. In 1946, Bahawalpur State endeavoured to improve-this area by putting it under the control of one Assistant Commissioner. The Colonization of Government Lands Act was applied to this area and schemes framed thereunder were made applicable to it. This arrangement, however, did not serve the purpose and so ultimately Cholistan Development Authority Act (XIV of 1976) was promulgated with effect from 21st July, 1976. It created an authority with objects to undertake colonization of this area, improve the socio-economic conditions of its residents known as Cholistanis and so the process of allotment of a part of small Cholistan commenced. Mr. Munir Akbar Khan, former Managing Director of Cholistan Development Authority (hereinafter described as Authority) appeared in Court and gave us following information with regard to the allotments made from 1950 to 1978: {{TABLE}} S.No, Name of Scheme Area allotted under Scheme. Year of Allotment Shahi Muzara Scheme 5,750 acres 1950/51 Grow More Food Scheme 31,041 acres 1959/60 20 years' Lease Scheme 25,475 acres 1970/71 15 years' Lease Scheme 182,324 acres 1978/79 Total Area: 2 44 590
1. Soon thereafter, this area became the focal point of greedy eyes. Groups of encroachers, with active collusion of the functionaries of State, Irrigation Department and powerful political influences started to occupy vast tracts of land from this area. The Additional Deputy Commissioner (General) was appointed as an Enquiry Officer who conducted the probe and reported that number of persons, coming from Bahawalpur Division and outside, occupied various pieces of land in area known as Shikargah/which was the part of Cholistan; that Chak No, 121/DRB, Chak No,122/DRB and Chak No,123/DRB had been allotted to persons of questionable antecedents and that these encroachers were receiving irrigation canal water through minor known as Salari" through unlawful courtesy of irrigation authorities who were/are being regularly paid. This enquiry report was submitted to the District Magistrate on 14-11-1995 which was sent to the Commissioner for initiating necessary action. The report of the Enquiry Officer and the Note of District Magistrate Bahawalpur shall form part of this judgment as Appendix I and II. It was in this background that Mr. Rauf Ahmad Ghauri, a learned Member of High Court Bar Association Bahawalpur, invoked the Constitutional jurisdiction of this Court with a prayer to clean this area from encroachers and save this divine bonanza from avaricious orientations/onslaughts of miscreants.
6. This petition came up for hearing before one of us (Mian Allah Nawaz, J.), on 3-4-1996; parawise comments, submitted by authority, dated 7-4-1996, did not exude confidence, the respondents were directed to submit fresh comments. Resultantly, these were submitted on 11-4-1996 and it was found that the vast area of Cholistan was under illegal occupation of so many persons; that these persons were being provided with the facility of irrigation water; that almost 525 cases were pending against the Authority in different Courts of Bahawalpur Division. In view of the aforesaid circumstances, my lord the then Chief Justice of the Lahore High Court constituted a larger Bench comprising of myself and Mr. Justice Abdul Hafeez Cheema. This petition was so admitted to regular hearing by so constituted Bench. On that date, this Bench was informed that more than 400 cases were pending in different Courts of plenary jurisdiction in Bahawalpur Division; that in these cases, Authority was incapable to defend these cases and so Civil Miscellaneous No,2 of 1996 was moved on 30-6-1996, wherein a prayer was made to implead all the persons enumerated in Appendix thereto. This Civil Miscellaneous was allowed and the petitioner was directed to file an amended petition. On 9-7-1996, the Authonty made a request that Cholistan Development Authority be transposed as a petitioner. Alongwith this application, Civil Miscellaneous No,4 and Civil Miscellaneous No, 192 to 204 of 1996 were moved. It was complained in these Civil Miscellaneous that 612 persons were illegal occupants; that they had obtained injunctive orders from the Courts of plenary jurisdiction that the controversy in the said suits and this petition was common and so all the aforesaid persons be impleaded as party. The aforesaid C.Ms. Were allowed with the consent of all the parties. Civil Miscellaneous Nos.192 to 204 of 1996 were filed by M/s Roshan Din, Taj Din, Muhammad Sharif, Raj Din, Mubarik Ali, Hassan Muhammad, Nawab, Qadir Bakhsh, Sultan Ahmad, Boota, Maalik Ali, Abdul Hakim and Muhammad Sharif. They stated that they were tenants under Shahi Muzara Scheme; that they were necessary parties and so they be impleaded as respondents. Their prayer, too, was allowed with the consent of the parties. With the consent of all the parties, the Court decided to hear this petition alongwith Civil Revisions Nos.799- D of 93, 1006-D of 96, 77 of 96, 182-D of 96, 858-D of 94, 517-D of 95, 1045-D of 94 and 1046-D of 94.
This petition alongwith the civil revisions was heard on so many dates. On 30-10-1996, one of us (Mian Allah Nawaz, J.), said that he would not like to hear the controversy with regard to Shikargah.
' This matter was in issue in the instant writ petition as well as in Writ Petition Nos.2342 of 1996, Civil Revisions No, 799-D of 1994, 1006 of 1996, 77 of 1996, 162-D of 1996, 858-D of 1994, 517-D of 1995, 1045- D of 1994 and 1046-D of 1994, Mr. Abdul Majeed Bhatti appeared on behalf of M/s. Roshan Din, Taj Din, Muhammad Sharif, Raj Din, Mubarak Ali, Hassan Muhammad, Nawab, Qadir Bakhsh, Sultan Ahmad, Boota, Maalik Ali, Abdul Hakim and Muhammad Sharif and stated that original orders of allotment in favour of his clients were not on the files and so Suits Nos.59 to 107 of 1995 be allowed to be withdrawn with permission to refile the same. In view of this position, he stated that the order, dated 14-10-1996 be recalled and aforesaid persons be deleted from array of parties; prayer was allowed and the names of the aforesaid persons were deleted from the array of the respondents.
Thereafter, the arguments of learned counsel were heard and these cases were reserved for orders.
7. On 8-9-1997, we felt it necessary to re-hear the aforementioned cases and so there cases were listed for hearing on 10-9-1997. On this date the learned counsel for petitioners in Civil Revisions No, 162/D of 1996, 858/D of 1994, 517/D of 1995, 799/D of 1994, 1045/D of 1994 and 1046/D of 1994 stated that the controversy in these petitions was being heard by the Managing Director, Cholistan Development Authority in pursuance of order of remand passed by the Member Board of Revenue dated 16-7-1997 and so these petitioners did not want to pursue these petitions. It was so prayed that these petitions be dismissed as not pressed. Resultantly, Civil Revisions Nos.102-D of 1996, 858/D of 1994, 517/D of 1995, 799/D of 1994, 1045/D of 1994 and 1046/D of 1994 were dismissed as unpressed and so only matters surviving for decision are now Writ Petitions Nos.1006 of 1996, 2342 of 1996 and Civil Miscellaneous No,77 of 1996. As the Bench felt necessity to hear the view points of the parties on certain points these cases were again listed for rehearing on 13-4-1998.
8. Mr. R.A. Ghauri, Advocate appeared alongwith Mr. Ijaz Ahmad Chaudhry, Advocate Arguments, advanced by petitioner, can be conveniently summarised as below: ' Firstly; that petitioner is the senior member of High Court Bar Association Bahawalpur was elected President of High Court Bar Association Bahawalpur and District Bar Association; that he as a citizen of this country, had locus standi to file instant petition in order to save the State land from encroachers. Reliance was placed on Cilicon (Pvt.) Ltd. v. Federal Government of Pakistan etc. 1996 MLD 705 and 1994 SCMR 1758).
' Secondly; That numerous persons from outside Bahawalpur Division and inside Bahawalpur Division had illegally occupied the pieces of land falling within the jurisdiction of Cholistan Development Authority (hereinafter described as Authority). Reliance was placed upon parawise comments furnished by Authority dated 4-4-1996/mark 'H' wherein it was stated that many unscrupulous persons encroached upon Cholistan Land and were perpetuating their illegal possession by means of litigation in different Courts; that necessary action had been initiated against them; that warrants of evictions were issued against 298 encroachers; that 199 such warrants had been executed and 1109 acres of Cholistan land had been got vacated from such illegal occupants; that 977 warrants, issued by the Authority, had been stayed by different Courts of plenary jurisdiction. It was further stated that comments furnished by Authority dated 20-6-1996 indicated that Authority had launched eviction operation against 480 persons; that District Magistrate had issued Notification under section 144, Cr.P.C. In order to discourage unauthorised occupation of Cholistan land; that the major encroached area fell within the Shikargah; that Federal Inquiry Commission had been constituted to determine the properties of late Amir of Bahawalpur; that the legal heirs of late Ameer of Bahawalpur were selling the land falling in Shikargah on plain papers at the rate of 50,000 to one lac rupees per square; that due to the above practice a large number of persons had occupied this area. The petitioner also placed reliance on a list given by Authority wherein the names of illegal occupants had been given. On the strength of above facts, it was represented that functionaries of Authority were not performing their duties and were aiding encroachers. On the above scenario, it was suggested that Authority be directed to formulate comprehensive policy for dealing with this national wealth.
' Thirdly; That the Cholistan Development Authority Act (XIV) of 1976 was promulgated with effect from 21st July, 1976.
' According to the petitioner, an Authority was constituted under section 4 of the Act; that under section 15, Authority has the power to grant land to any person on any condition it thinks fit and for that purpose issue statement or statements of conditions; that under section 15(b), it was to provide means of irrigation and irrigational channels; drinking water for human beings and cattle; to carry out extensive ground water survey to locate points where sweet water was available and sinking of wells and tube-wells for drinking and irrigation purposes. The learned counsel further relied upon section 16 to say that Authority was given power to grant land to any person on any conditions it thinks fit with the approval of the Government. On the basis of above, it was suggested that Authority had failed to perform its duties. From the point of its creation uptil now, Authority has not issued any statement of conditions whatsoever. The schemes known as Grow More Food Scheme 1959-60 and 20 years lease Scheme of 1970 were issued by Government of Punjab Colony Department. Similarly, another scheme known as Allotment of State land in Cholistan by Private Treaty dated 5th March, 1970 was also issued by the Government of Punjab. The petitioner, so, submitted that on a number of occasions Authority was directed to accommodate different persons under different schemes. On the strength of the above, it was stressed that Authority had not been allowed to function as an autonomous body but has been subjected to dictation from Colony Department. This, according to learned counsel was in contravention of underlying object of Act of 1976.
' Fourthly; That the Authority was autonomous body which had been given a corporate character under section 4 of the Act. This Authority was headed by Chief Minister Punjab and was to comprise of members of Provincial Legislature and National Assembly of Pakistan to be nominated by the Governor, while the other members of the Authority were the Heads of various departments in Bahawalpur Division. Serious exception was taken to the presence of members of Legislatures on the ground that this simply was in violation of the theory of separation of power which was bed- rock of constitution; that the members of Parliament or Provincial Assembly were legislators and were not required to become members of the Authority which was invested with executive authority to implement the provisions of the Act (XIV) of 1976.
' Fifthly; That the office of Managing Director was a tenure post and the Managing Director had to be appointed by the Government for a period of three years on such terms and conditions as determined by it. This provision was being flagrantly violated and the Managing Directors were being appointed from time to time and moment to moment without any reason and rhyme.
Furthermore, it was pointed out that Authority was being run on the dictation of Colony Department through the Board of Revenue. This, too, clearly destroyed the autonomous/ corporate character of the Authority.
9. Mr. Muhammad Iqbal Khichi, learned A.A.-G., entered appearance on behalf of Provincial Government. Representing the Provincial Government, he filed written statement and written note.
He raised following points:--- ' Firstly; That the Act of 1976 was passed by the Punjab Assembly on 7th July, 1976, and was made effective from 21st July, 1976; that in subsection (2) of section 1 of the Act, Cholistan area was defined; that vide a Notification dated 14-11-1977, provisions of Colonization of Government of Lands Act, 1912, were applied to Cholistan and that section 7 of the said Act made the provisions of Punjab Land Revenue Act, 1967 and Punjab Tenancy Act applicable to Cholistan. On the strength of the above Notification, it was suggested that the total hierarchy provided under Punjab Land Revenue Act and remedial provisions relating to appeal/revision/review were made applicable to this area.
On the strength of above submissions, it was argued that any order passed by Managing Director/ Collector C.D.A. Was subject to incident of appeal/ revision/review under the provisions of Punjab Land Revenue Act; ' Secondly; That the Board of Revenue is empowered to frame statement of conditions with regard to allotment of Cholistan land. Reference was made to rule 2(III) of Punjab Government Rules of Business of 1974.
' Thirdly; Rule 2 (IV) of Government Business Rules, 1974 was relied in support of submissions that expressions 'business' meant work done by the Government; that under rule 3 the Government business had been distributed among several departments in manner detailed in Schedule-2; that Board of Revenue figured in Schedule 2 and has been assigned the task of administration of State/Colony land under Colonization of Government Lands Act and Punjab Board of Revenue Act; that the Deputy Secretary to the Colony Department was/is competent to sign an order of Government and communicate it to the Managing Director. On the strength of the above line of reasonings, it was suggested that Government wielded overall control over the activities of Authority.
' Fourthly; That Managing Director has to perform such duties as may be prescribed by the Government and as assigned by the Authority under section 15(b). According to the learned A.A.- G., the Authority may grant land to any person on any conditions it thinks fit and for that purpose issue statement/statements of conditions. He further pointed out that section 15 enumerates the functions of the Authority, whereas section 16 lays down its powers. Continuing, he argued that the Government may direct the Authority to grant land to any person on terms and conditions prescribed by it and that in such case, preparation of Scheme was not required. He further pointed out that under section 4(7) of the Act, not act or proceeding of authority becomes invalid merely by any vacancy or defect in the authority.
' Fifthly; That the Scheme known as Shahi Muzara Scheme was not a valid scheme; that it did not give any description of land and so allotments under the said scheme were invalid under section 29 of the Contract Act. Reference was made to Abdul Khaliq v. Sher Muhammad (PLD 1961 BJ 79).
' Sixthly; That section 30 of the Colonization of Government Lands Act, needed to be interpreted in the light of Article 2A of the Constitution; that the State land was/is of trust property; that it shall not be given away at throw away prices; that the land in Cholistanis should be distributed through open auction. According to the learned A.A.-G., this mechanism will minimise the corrupt practices and contribute to exchequer of Provincial Government.
' Seventhly; and lastly; That according to record of Irrigation Department, a Scheme for providing 2- 1/2 months irrigational water has been sanctioned for 2.18 lacs acres; that out of Cholistan land, 31.041 acres were allotted under Grow More Food Scheme 1959-60 and 23,626 acres under Twenty Years Lease Scheme. He further informed the Court that according to report of Deputy Land Commissioner, Bahawalpur, 2,78,171 acres formed Shikargah which had been transferred to C.D.A. In the year 1978; that out of this land 24,269 acres were allotted to the Cholistanis while the remaining was in illegal occupation of 215 encroachers; that Mr. Munir Akbar Khan has issued 61 Patta Malkiyyat during the span of 19 days in the month of October, 1996; that even these title-deeds were given in presence of a restraint order passed by this Court. The learned A.A.-G. Firmly stated that these aspects presented dismal picture and that Government was aware of these acts of malfeasance and misfeasance and will deal with them sternly.
10. Mr. Muhammad Jaffar Hashmi, Senior Advocate, assisted by Mr. Masood Ashraf Sheikh, Advocate, entered the debate on behalf of Cholistan Development Authority and raised the following points:---
(i) That Mr. Rauf Ahmad Ghauri was a Member of High Court Bar Association, Bahawalpur. Neither he was resident of Cholistan nor was he grantee of any land in this area. On the above facts, it was strongly contended that the petitioner had no right to file instant petition;
(ii) that the area, which was under illegal occupation fell within Shikargah. The illegal occupants of this area fell into two categories. Firstly, these who have come and occupied the land by sheer use of power under the very nose of administration. Secondly, those, who had occupied a vast area on account of some agreement of sale executed in their favour by the heirs of Sir Sadiq Muhammad Khan Abbasi. According to the learned counsel, legal heirs of late Sir Sadiq Muhammad Khan Abbasi were selling these lands at the rate of Rs,50,000 per square; that C.D.A. Practically had no control over this area as the same is the subject matter of litigation before a Tribunal constituted by the Federal Government for the purpose of resolving the dispute between the heirs of late Amir of Bahawalpur/Sir Sadiq Muhammad Khan Abbasi. He even stated that these illegal occupants were receiving illegal supply of irrigational water with the courtesy of irrigation authorities. On the strength of the above circumstances, it was submitted that the commission be directed to resolve the dispute which had been pending adjudication since more than two decades. It was pointed out that if this decision was not made, the land, falling within the Shikargah, will be simply misappropriated by miscreants. Mr. Muhammad Jaffar Hashmi, Advocate also placed emphasis on the parawise comments furnished by the authority, particularly, para No,5 to demonstrate that the functionaries of Authority were endeavouring to protect the Cholistan land from the illegal encroachers. He further pointed out that under Shahi Muzara Scheme, 1951, permits were issued to 836 persons to the extent of 50 acres of land and allotments made to these persons were resumed in 1955 by the Director Agricultural, Bahawalpur, vide order, dated 21-2-1955. Out of these, 115 persons got their allotments restored through the judgment and decrees of Civil Courts, while 721 persons were yet busy in Court. Mr. Hashmi concurred with the view taken by the learned A.A.-G.
That Shahi Muzara Scheme did not fulfil preconditions of curtain Scheme, that it was in violation of section 29 of the Contract Act; that the land at the relevant time was unspecified, unsettled; that only a Chit, issued was cancelled as back as in 1955; that no one agitated against the order of cancellation. Yet decrees were passed by the learned Courts in 1985. The learned counsel relied upon the extract from 'Bahawalpur Prospective' issued by the Government of Punjab in November, 1974 (Annexure B) with written arguments furnished by Mr. Muhammad Uzair Chughtai, Advocate, to point out that the Scheme known as Shahi Muzara Scheme was introduced in 1951 by former Government of Bahawalpur for allotment of Cholistan land; that bona fide residents of Cholistan were entitled to get their names recorded as Shahi Muzara in village/Toba at the rate of Rs,4 per ( ) and acquired right of cultivation of 50 acres of land falling in the area of village Toba on payment of Rs,4 per.{{URDU TEXT}} (). He was allowed to purchase land under his cultivation on payment of Rs,4 per acre after 10 years; that the land measuring 41800 were allotted to 836 Muzaras in 1951-52 for farming that only 57 tenants were found in possession of 2901 acres in Dahar, Bahadurwala, Mauza Sheikh Naseer, Mauza Khanuwala, Dahar Madhuwali, Jagaitpur, Dahar Haranwala and Gonarwala. It was stated that the allotment of remaining allottees had been cancelled. The aforesaid extract was shown to demonstrate that the aforesaid Scheme suffered from inherent defects and so could not be put into practice. The cancellation was made on 2-7-1955. Reliance was placed on S.P. Gupta and others v. President of India and others AIR 1982 SC 149, Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802, Darshan Masih v. State PLD 1990 SC 513. Reliance was also placed on Karim Bakhsh v. Mubarik Jan PLD 1970 Peshawar 169, Muhammad Aslam Saleem v. Pak.
Television Corporation PLD 1977 Lah. 852, and Fatehyab Ali Khan, President, Pakistan Mazdoor Kissan Party v. Pakistan Broadcasting Corporation and Pakistan Television Corporation and others 1991 CLC Note 197 at p.153. Mr. Masood Ashraf Sheikh, Advocate, who assisted Mr. Muhammad Jaffar Hashmi, Advocate, adopted his line of arguments.
11. From the foregoing factual/legal canvass, the following points emerge for consideration:
(1) Whether the petitioner has locus standi to file the instant petition?
(2) Whether Shahi Muzara Scheme, promulgated by the Government of Former State of Bahawalpur, is a valid Scheme which is enforceable?
(3) Whether the Authority is an autonomous body and is subject to incident of appeal, review or revision as embodied in the provisions of Punjab Land Revenue Act and subject to control of Board of Revenue?
(4) Whether the Federal Government had powers to issue directions to Cholistan Development Authority to grant land to any person or class of persons on the premises that they were victim of some unforseen/ unfortunate calamities?
(5) Whether the Schemes promulgated by the Government of Punjab for the distribution of Cholistan land as valid in the eyes of law?
(6) Whether the Members of Provincial or National Assembly can become member of Cholistan Development Authority?
(7) Whether the land, forming part of Shikargah, in part and parcel of Cholistan?
(8) Whether the heirs of Sir Sadiq Muhammad Khan Abbasi have authority to sell the same?
12. The stage is, now, set to deal with the aforenoted questions in seriatum. As regards first point, it is hardly necessary to reiterate that this constitution petition has been filed as 'public interest litigation'. The strategy of this action had been evolved by the Courts with object to bring justice within the reach of a poor and disadvantaged section of society. The first case in this direction was Gideon's case (372 N.S. 335). In January, 1962, the Supreme Court of United States received a hand written scrawl wherein it was stated that the applicant was a pauper and it was prayed that his agony be looked into; that Florida Trial Court had refused to appoint counsel for his defence and that was contrary to the constitution. This letter was treated as a petition and allowed by the Supreme Court of United States by Majority of 9:0. This case was followed by the Supreme Court in number of cases. The Supreme Court of India took notice of the above case and said in Mumbal Kamgar Sabha v. Abdulbhai (AIR 1976 SC 1455): "Test litigation, representative actions, pro bono publico and like broadened forms of legal proceeding are in keeping with the current accent on justice to common man and a necessary disincentive to those who wish to bypass the real Public Interest is promoted by a spacious construction of locus standi in our socio economic circumstances and conceptual latitudinarianism permits taking liberties With individualisation of the right to invoke the higher Courts where the remedy is shared by a considerable number, particularly when they are weaker, Less Litigation, consistent with fair process, is the aim of adjective law."
' The rule laid down above was followed by the Supreme Court of India in Sunit Batra v. Delhi Administrative (AIR 1980 SC 1579), Municipal Council, Ratlam v. Varchichand (AIR 1980 SC 1622) and Akhil Bharatiyaa Soshit Karamchari Sangh (Railway) v. Union of India (AIR 1981 SC 298). However, the scope of public interest litigation was elaborately examined in S.P. Gupta v. Union of India (AIR 1982 SC 149). Speaking for the Bench his Lordship Mr. Justice Bhagwati, said:-- "It would, in my view, be grave lacuna in our system of public law of a pressure group, like the federation or even single public spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the explanation of the Court to indicate this rule of law and get the unlawful conduct stopped. It is not, in my view, a sufficient answer to say that judicial review of the action of officers or Departments of Central Government is unnecessary because they are accountable to parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy and of that Parliament is the sole Judge. They are responsible to a Court of justice for the lawfulness of what they do and of that the Court is the only Judge."
' The rule propounded therein was followed in People Union for Democratic Rights v. Union of India (AIR 1982 SC 1473), Bihar Legal Support Society v. Chief Justice of India (AIR 1987 SC 38) and Bondhya Mukti Morcha v. Union of India (AIR 1984 SC 802). In Bandhya Mukti Morcha v. Union of India Pathak, J. Cautioned against over-excessive use of this device in following terms:- "Grave danger is inherent in a practice where a mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility can, without anything more, be attributed to the communication....The Court must be ever, vigilant to the abuse of its process....While this Court has readily acted upon letters and telegrams in the past, there is need to insist now on an appropriate verifications of the petition or other communication before acting on it...."
' The above rule was also proved by our apex Court in Darshan Masih v. State PLD 1990 SC 513) and Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). This class of social action has now been evolved and Courts are now using this action to alleviate the sufferings of needy and impoverished class.
13. It is true that expression "aggrieved party" employed under Article 199 of the Constitution of Pakistan (1973) was given rigid construction by this Court under the heading 'locus standi' /aggrieved party/standing in the context of variety of the circumstances. The cases reported as A.K.M. Fazalul Quader Chowdhury v. Government of Pakistan (PLD 1957 Dacca 342) Saeed Khan v.
Chairman, District Council of Bannu (PLD 1967 Pesh. 347), Standard Vacuum Oil Company v.
Trustees of the Port of Chittagong (PLD 1961 Dacca 289)., Miss Asima Jillani v. Government of the Punjab (PLD 1972 SC 139, Muhammad Boota v. Commissioner, Sargodha Division PLD 1973 Lah. 580), Ramamoorthi (AIR 1953 Mad. 94) Abonindra Kumar v. A.K. Mujumdar (AIR 1956 Ca1.273), Charanjit Lal v. Union of India (AIR 1951 SC 41) and M/s Associated Cement Co. Ltd. v. Pakistan (PLD 1978 SC 151) are the authorities in support of the proposition that Article 199 does not confer any substantive right on a party but provides a party only an additional remedy under the extraordinary jurisdiction of this Court conferred by the Constitution provided he is able to show that any of his personal or proprietary rights as recognised by law has been invaded or denied to him. However, with the passage of time the superior judiciary in our country has not followed that rigid view but has accorded liberal construction to the word aggrieved party. In Mian Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 SC 223), it was held that right considered sufficient for maintaining a proceeding is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which is not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. Even the question of locus standi had been examined by superior Courts in Foreign countries with liberal and positive approach. We are tempted to quote the words of Earl Warren, Chief Justice of Supreme Court of America which are as follows: "Our Judges are not monks or scientists but participants in the living stream of national life our system faces no theoretical dilemma, but a single continuous problem; how to apply to Never- changing conditions the never changing principle of freedom."
' We are also persuaded to quote a passage from the Law of Economic Development in Sub- Saharan Africa by Prof. Robert which is as follows: "If there are to be some reasonable norms for administrative behaviour in Africa, the formulation of codes of administrative law is desirable. But such codes are self-enforcing. Without institutional devices to support them they become meaningless (see "Wisconsin Law Review, VI.1966,999 at .1064).
' Continuing, he further said:- "If the tone of public life is sufficiently honest and fair-minded, formal norms are relatively unneeded. This is not the position in Africa; on the exercise of State power. This betrays itself most blatantly in the widespread West Africa. When corruption permeates the entire fabric of Government, legality is the first sufferer, for State power is exercised on ground unrelated to the nominal purpose."
' The learned Professor goes on to say: "In English speaking Africa, the devices for enforcement of the few standards of administrative probity that exist are in the common law tradition. In some cases there are internal administrative appeals. Resort to the Courts for relief is theoretically available if any ascertainable norms has been violated. Relief can be sought in a civil action brought by the extreme cases. In a criminal action brought by the director of public prosecutions.
' The Civil remedies, for administrative wrongs, thus, depend upon the action of individual citizens.
In such an action, the individual is pitted against the State always an unequal contest. The individual does not have even the few procedural devices that the common law imports into criminal actions to try to redress the balance. At his own expense, he must challenge the vast monopoly of State power, with all its resources in personnel, money and legal talent, by a civil action for a declaratory judgment or for an' extraordinary remedy.... Injunction, writ of mandamus, or writ of prohibition. Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering, as a result of these impediments, in the United States, where almost the sole institutional protection against administrative error or arbitrariness is such an action, usually only great corporations or individual who are supported by large voluntary association have been able to carry through litigation. To rely upon such individual actions as the primary means of policing administrative action in Africa is to rely upon what is nonexistence. "
(See Wisconsin Law Review-VI, 1966, p.1065).
' Even this problem was attended to by a Jurist by the name of Black in New Zealand. He said-- " Today it is unreal to suggest that a person looks to the law solely to protect his interest in a narrow sense. It is necessary to do no more than read the newspapers to see the breadth of the interest that today's citizen expects the law to protect, and he expects the Court where necessary to provide that protection. He is interested in results, not procedural niceties. (Black "The Right to be Heard", New Zealand L.J. No,4, 1977 p.66).
17. The survey of the opinions of jurists on this subject will not be complete without mention of opinion of Australian Law Reform Commission which is as follows:-- "Widened standing rules may assist consumers in attaining relevant injunctive or declaratory relief but they do not assist in recovering losses inflicted by illegal trading practices, nor do they threaten the illegal trades where he is most hurt, his pocket book. The most potent legal instrument in that regard so far devised is the modern class action, to some an 'engine of destruction', to others a might force for good. Consider the New York Commissioner of Consumer Affairs giving evidence before a United States Senate Committee in 1970. (Evidence of Mrs. Bess Myerson, Commissioner of Consumer Affairs of the City of New York, before the Consumer Sub-Committee of the U.S. Senate Committee on Commerce, No,91-48, at 172."
18. This question came up for consideration before our Supreme Court in Miss Benazir Bhutto's case PLD 1988 SC 416. In this case Benazir Bhutto, the Co-Chairperson of Pakistan People's Party filed a petition in the Supreme Court, under Article 184 of the Constitution of Islamic Republic of Pakistan, 1973, challenging the Amendment made in Political Parties Act, 1962 as violative of Articles 17 and 25 of the Constitution and vires of the Freedom Association Orders, 1978 (P.0.20 of 1978) as being un- Constitutional, for the reason being void ab initio. On behalf of the Federation of Pakistan, the learned Attorney General took objection to the maintainability of petition on the ground that the petitioner neither has suffered any proprietary right nor any personal right, as such is not an aggrieved party. It was further contended by the Attorney-General on facts and circumstances, if the petitioner had some remedy, it was under Article 199 of the Constitution and not under Article 184 (ibid.) After surveying the whole case-law on t he subject, the objection was repelled on the ground of dictum laid down in Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223). The survey of the case law will not be completed without mention of Darshan Masih case (PLD 1990 SC 513). In this case the Hon'ble Chief Justice of Supreme Court received a telegram on 30th July, 1988 sent by Darshan Masih and 20 others stating therein that the applicants were working on a brick-kiln; that they were being illegally detained; that the lives of their children and women were in danger. This application was treated as petition under Article 184 read with 199 of the Constitution and the Apex Court came to the rescue of the applicants. While dealing with this case, his Lordship Muhammad Afzal Zullah, J. The then Chief Justice of Pakistan endorsed the view taken in Bandhya Mukti Morcha v. Union of India and others (AIR 1984 SC 1099 & 802) In following words:- "There is good reason to suppose that treating with public interest litigation requires more than legal scholarship and a knowledge of text book law. It is of the utmost importance in such cases that when formulating a scheme of action, the Court must have due regard to the particular circumstances of the case, to surrounding realities including the potential for successful implementation, and the likelihood and degree of response from the agencies on whom the implementation will depend. In most cases of public interest litigation, there will be neither precedent nor settled practice to add weight and force to the vitality of the Court's action. The example of similar cases in other countries can afford little support. The successful implementation of the orders of the Court will depend upon the particular social force in the backdrop of local history, the prevailing economic pressures the duration of the stages involved in implementation, the momentum of success from stage to stage, and acceptance of the Court's action at all times by those involved in or affected by.It."
19. From the foregoing examination, the following rules are deducible:- ' Firstly: the traditional rule of locus standi has been widened. The right of third party, to invoke Constitutional jurisdiction of this Court, has been recognized. This had happened on account of division of society into various classes, namely, rich and poor; haves and have-nots in our State.
The poor/destitutes make the bulk of society. This class is without the means of sustenance and are so financially handicapped that they are not able to have any access to the Courts in the scheme of administration of justice. Our State, no doubt, was created on the basis of noble principles enshrined in the Holy Qur'an and Sunnah. These principles ensure equality before laws and its equal protection to every citizen. Seen in this context, it is in line with the rule of Muslim jurisprudence that traditional doctrine of locus standi/standing be liberally taken and right of third party namely/public spirited person/organization be recognized. Such parties should be given a right to come to the Court if they can show that the officials/functionaries of the State/local authorities have invaded that public rights of such classes. This right has been recognized in United States and United Kingdom and even in our neighbour i,e, India. Resultantly we are pursuaded to agree with the above approach that any public spirited person/organization, motivated by interest of public at large, can come to this Court in order to claim access to due process of law under Article 199 of Constitution. This is known as public interest litigation.
' Secondly: with the growth of activities of State, this approach was adopted as an instrument of social engineering for the purpose of coming to help the disadvantaged and destitute class. The procedural rules were even relaxed and telegrams sent by the aggrieved persons were treated as petitions.
' Thirdly: this rule is, however, subject to well-known limitations that the petitioners must come to Court with clean hands and in the aid of public at large and not in the furtherance of litiguous orientations. Add to it, the Courts, while deciding such petitions, should remain within the frontiers of their jurisdiction and should not probe into the areas which are specifically reserved for the executive.
Applying the above rules to facts and circumstances of the petition in hand, it is quite clear that Mr. Ghauri, the petitioner, was/is the Member of District Bar Association, Bahawalpur, and Lahore High Court Bar Association, Bahawalpur Bench; that he had been elected as President of both the institutions; that he had been the member of Punjab Bar Council; that he had come to this Court in order to show that the functionaries of Cholistan Development Authority and Irrigation Authorities were in collusion to held the encroachers; that the Cholistan Development Authority itself conceded that its vast areas were under the possession of encroachers. Moreover, the perennial ailments of authority were pointed out by Mr. Ghauri. We are satisfied that the petitioner had locus standi to file the instant petitions. The point/question No,1 is answered accordingly.
20. Having answered question/point No,1, we turn to examine question No,2 and 3. These relate to the validity/vires of Shahi Muzara Scheme dated 4-11-1950. This scheme was issued/promulgated by Government of Bahawalpur vide Notification No,66. It contains 25 conditions out of which five are germane by these issues that is:- ' Condition No,1 is prefatory in nature and it read as follows:- {{URDU TEXT}} ' Condition No,2 postulates that no body will be registered as Shahi Muzara till he is prepared to pay Rs,5 () per plough ( (j1 ). On registration, said person will be entitled to seek allotment of land to the extent of 50 acres. Condition No, 4 says that no applicant shall secure registration for more than one plough. However, the father and adult son will be entitled to seek registration in their own rights. Condition No,5 states that Shahi Muzara will be able to get proprietary rights if he continuously pays aforementioned fee till ten years. Condition No,6 specifies that order of allotment will be issued by Cholistan Development Officer with the permission of Minister for Agriculture. Condition No,12 enacts that applicants will be entitled to get land within the area of the Toba/Estate (URDU TEXT) in which the name of the applicant is registered.
21. The vires of this scheme depends upon its source as well as the relevant provisions of Colonization of Government Lands Act and Contract Act. It is not in dispute that the provisions of Colonization of Government Lands Act and Crown Grant Act (XV) 1895 were made applicable to Bahawalpur State. Being owner of the land, Government of Bahawalpur was empowered to sell, alienate, dispose of its land and issue the statement and conditions of such transfers. Clearly, the Bahawalpur Government had an authority to issue Notification No,66 containing Shahi Muzara Scheme. No exception, so, can be taken regarding its vires on the premises of its source. It is hardly necessary to reiterate that grant of land by Crown/State to grantee is a transfer of land within the terms of section 6 of Transfer of Property Act. The word 'grant' has been defined by Blacks Law Dictionary at page 629 in the following terms:- "A conveyance, i,e, transfer of title by deed or other instrument. Dearing v. Brush Greek Coal Co.
182. Tenn. 302, 186 S.W. 2-D 329, 331. Transfer of property real or personal by deed or writing.
Commissioner of Internal Revenue v. Plestcheeff C.C.A.9, 100 F.2-D 62,64,65. A generic term applicable to all transfers of real property, including transfers by operation of law as well as voluntary transfers. White v. Rosenthal, 140 Cal. App. 184, 35 P.2D 154,
155. A technical term made use of in deeds of conveyance of lands to import of transfer. A deed for an incorporeal interest such as reversion."
' The word "grant" has been defined in Stroud's Judicial Dictionary in following terms:- "This word is taken largely, where any thing is granted or passed from one to another. And in this sense it doth comprehend feoffments, bargains and sales, gifts, leases, charges and the like, for he that doth give, or sell, doth grant also. And, thus, it is some times in writing or by deed, and sometimes it is by word without writing. But the word being taken more strictly and properly, it is the grant, conveyance, or gift by writing of such an incorporeal thing as lieth in grant, and not in livery and cannot be given or granted by word only without deed. Or it is the grant by such person as cannot pass anything from them but be deed, as the kind, bodies Corporate & C. And this albeit it may be made by other words, yet it is most commonly made by this word (grant) as being most proper to this purpose' (Touch. 228). As regards that part of the above definition which is italicised, it is to be observed that, since October 1, 1845 all corporeal hereditaments (as well as those incorporeal)' lie in grant as well as in livery' (Real Property Act 1845 (C. 106), S.2), on which see Savill v. Bethall (1902) c Ch. 539, 540; Taylor v. British etc.".
' From the above, it clearly follows that grant of Crown/Government land made by the Government of Bahawalpur was transfer of land; conditions of Shahi Muzara Scheme were terms of transfer.
22. This, however, does not conclude the matter. It is settled that an agreement is not a binding contract if it lacks certainty due to vagueness or because its terms cannot be ascertained. (See law of Contract by G.H. Trietel at page 47 International Student Edition 1995 by Sweet and Maxwell).
Necessarily, an agreement comes into being with the consent of the parties. It must be certain, unambiguous or be made certain. This rule of common law was embodied in section 29 of the Contract Act (IX of 1872). It clearly postulates that agreement, the meaning of which is not certain or capable of being made certain, is void. This provision was considered in weekly Law Reports (Volume I) page 1025 in Harvey v. Pratt. In this case there was uncertainty in contract with regard to the period of lease, rate of rent and its commencement. It was held therein that agreement was uncertain and incapable of enforcement. This rule was followed in Indian cases Volume LXIII page
49. Barkat Ram v. Anant Ram (AIR 1915 Lahore 328) and Bishop & Baxter. LD (Law Reports 1944 page 12). Seen on this touchstonte, it is clear that Shahi Muzara Scheme was enforced to colonize Crown waste land which was unmeasured and unsettled.
23. It was not disputed that on 4-11-1950 Cholistan was unmeasured, unsettled Government Land.
Admittedly, it has not been subjected to settlement as prescribed in Chapter III of Colony Manual (Revised Edition by Ilyas Muhammad) Published by Pakistan Civil and Criminal Law Publication and Settlement Manual by J/M Douie. Para. No,100 of this chapter casts duty upon colonization authorities to undertake preliminary survey and demarcation of land to be colonized, fix the number of squares, allocate numbers of killas with numbers. The colonization authorities are to carve out map of revenue estate, subject to their settlement and thereafter start their colonization.
There is hardly any necessity to state that no such process had taken place in year 1950. At the relevant time, Cholistan was admittedly waste land without any settlement. Shahi Muzara Scheme was issued and promulgated without aforesaid preconditions. This tantamounted to nefarious commencement of colonization of Cholistan. We are, therefore, on the basis of above survey, very clear that impugned scheme was in defiance of section 29 of the Contract Act and was void ab initio. Therefore, allotments made thereunder were/are destitute of any legal efficacy.
24. Our foregoing conclusions are completely fortified by the ground-realities. The relevant record, in possession of the authority was shown to us in the presence of all the learned counsel for the parties during the course of arguments. We were informed that authority was in possession of ten registers. The first register contained the names of allottees under this scheme. According to the authority, there were 830 persons who were issued chits of allotment. We were told that original register was/is missing. We had given opportunity to the authority to trace out the register but they failed to do so. Register No,3 was not produced before us. So, is the case of register No,10. The listed of allottees shows that about 830 persons were allotted land around various tobas. There is no record of any order by competent Authority regarding the delivery of possession of lands to grantees. Height of it is, even there is no record with the authority with regard to payment of fees which was condition precedent for allotment. We were further told that these chits were issued in 1950. The allotments in favour 595 persons were cancelled in 1951, obviously, without giving any notice to grantees Interestingly, there is no record with regard to the allotment in favour of grantees by competent Authority. The chits were issued by Colonization Officer. There is no order under section 10 of Colonization of Government Land Act for the passing over of possession of grants to the grantees. The stance of the authority was/is that none of the grantees factually took possession of grants and did not pay a single penny to the Treasury. We were further informed that in some cases Member, Board of Revenue had regularized some allotments and had given right to the successor-in-interest of such grantees to acquire proprietary rights.
25. From the material shown to us in the presence of the learned counsel for the parties, we find that even there was no record with the authority or its predecessor/Cholistan Department with respect to Tobas. On the above survey, it is, thus, clear that Shahi Mazaria Scheme was promulgated without the aforesaid conditions-precedent. Neither any lands were specified in the Chits of allotment nor it could be on account of the existing ground realities of the Cholistan. This being the position, we have no option but to hold that Shahi Mazaria Scheme, promulgated on 4- 11-1950 by Government of Bahawalpur, was nullity in the eyes of law and allotments so made thereunder were of no lawful consequence. These were clearly in contravention of section 29 of the Contract Act.
26. As regards questions Nos.3, 4 and 6, which are inter-connected, suffice it to note that the Cholistan Development Authority Act (No, XIV of 1976) was enforced with effect from 21-7-1976. The Authority, constituted under this Act, is the highest entity. In order to understand its legal status, powers and its interaction with other laws it is expedient to have a rapid survey of the Act. The object of this Statute, in the words of Legislature, was to establish an authority for the speedy development and better administration of Cholistan area of Bahawalpur Division.
' Section 4, in Chapter-H of the Act, prescribes its establishment and constitution. This section has four subsections. Subsection (1) says that Government shall, by notification in official gazette, establish Cholistan Development Authority. Subsection (2) states that the Authority, so constituted, shall be a body corporate and shall have the powers to acquire, hold property, both movable and immovable with perpetual succession and common seal. It further postulates that the Authority shall be entitled to sue and to be sued. Subsection (3) describes composition of the Authority. A bare look at this subsection, indicates that the Authority comprises of members belonging to two classes, firstly from elected representatives; secondly from administrative heads of various Departments of Government operating in Bahawalpur Division. The Managing Director is the member and Secretary of the Authority. Obviously, the Cholistan Development Authority is a corporate body. What do we mean by a corporate character. Conceptually, a Corporation is an artificial person or a legal entity created by or under the authority of the laws. A Corporation, which is created by the State for political purposes and to act as agency in the administration of civil Government is known as public corporation. Legally speaking, public corporations are instrumentalities of State founded and owned by it in public interest, supported by public funds and governed by managers deriving their authority from State. See Van Campen v. Olean General Hospital (205 MY. S. 554, 555, 210 App. Div. 204). A public corporation was defined by an American Court in Ogden City v. Bear Lake and River Water Works and Irrigation Co., (52 P. 697, 699, 16 Utah, 440, 41, LRA, 305); as under: "A public corporation is not a legal entity, or a person, whose interest can be considered separate and apart from the people. It is but an instrumentality created and perpetuated for their benefit. Its officers, as such, are nothing more than agents of the public. They must act within the scope of their authority, and their acts outside are perfectly impotent." (See p. 122 of "Words & Phrases"
Permanent Edn. 35).
27. Seen from the above angle, it is manifestly clear to us that Cholistan Development Authority, constituted under section 4(1) of the Act, enjgys status of a body corporate with autonomous character and with a high composition. It stands at apex in the organizational Scheme of the Act.
Chapter IV of this Act enumerates the functions, powers and duties of the Authority. In order to have its better insight, we are inclined to reproduce its sections 15 and 16 hereunder: "Section 15: Subject to such conditions as Government may impose, the Authority may undertake any work for any or for all of the functions detailed below within the area of its jurisdiction:---
(a) The breaking up to, cultivation, afforestation, plantation, levelling or reclamation of land for the production of foodgrains, fruits, vegetables, fuel, fodder and the like;
(b) to grant land to any person on any conditions it thinks fit and for that purpose issue statement or statements of conditions;
(c) to provide means of irrigational and irrigational channels;
(d) to provide drinking water for human beings and cattle;
(e) to carry out extensive ground water survey to locate sweet-water points and sinking of wells and tube-wells for drinking and irrigation purposes;
(f) the lay out and construction of town, Mandi village and settlements and their up-keep and development;
(g) the provision of communication facilities, including the lay out and construction of roads and parks;
(h) the provision of livestock farms, dairy farms, sheep farms, poultry farms etc;
(i) the installation and management, maintenance and encouragement of public utility undertakings, rural trades and crafts, industries and works;
(j) arrangements for the marketing of the produce and goods of Cholistan;
(k) the conservation, preservation of forests, and multiplication of wildlife and natural vegetation and exploration of mineral resources of Cholistan;
(1) the doing of all acts intending to promote health, well-being and prosperity of the residents of Cholistan and their cattle heads and establishment of civil and veterinary hospitals and dispensaries;
(m) the establishment of educational institutions;
(n) to advance loans to the owners, occupiers or tenants of land upon such terms and conditions as may be prescribed for breaking up and cultivation of lands, cattle and of agricultural implements and machinery, seed and fodder cattle farm, construction of houses, godowns, and cattle sheds, and for any other purpose allied or subsidiary to agriculture;
(o) to promote and undertake, research on any matter;
(p) for any other matter with the permission of the Government which may be deemed necessary to promote the general efficiency of a scheme and for the development of Cholistan;
(q) to promote tourism and establishment of national parks, holiday camps and villages; and
(r) to undertake any function with the Government may assign to it. Section 16.
(1) Subject to such rules as may be framed, the Authority shall have full powers to:---
(a) incur expenditure for the improvement and development of Cholistan or for completion of any work, plan or scheme undertaken by it within the area of its jurisdiction; and
(b) enter into and perform all such contracts as it may consider necessary or expedient for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the powers conferred under subsection (1) the authority may:
(i) with approval of the Government grant land to any person on any condition it thinks fit and for this purpose issue a statement of conditions on which the Authority is willing to grant land;
(ii) resume land so granted or in the alternative impose a penalty not exceeding Rs,500 when the tenant is proved to be satisfaction of tlW authority to have committed a breach of the conditions of the tenancy and shall resume the grant so made if the land forming the subject-matter of the grant was acquired by misrepresentation or concealment of true facts; ' Provided that before an order under clause (ii) above is made, the tenant shall be given an opportunity to appear and state his objection: ' Provided further that in a case of resumption, the tenant shall be liable to restore possession of the land to the Authority forthwith, but shall be entitled to compensation for the standing crops and for improvements made by him during his tenancy;
(iii) take over and manage Government lands or any other assets and property on such terms and conditions as may be agreed upon between the Authority and the Government;
(iv) regulate by general or special order---
(a) the use of land and restrict or prohibit the carrying of any offensive for any unwholesome trade or construction of buildings or structures;
(b) clearing or breaking up of land for cultivation;
(c) the quarrying of stone and the burning of lime and charcoal;
(d) the admission, herding, parking and retention of cattle;
(e) the filling, girdling, looping, taping, or burning of any tree, timber of vegetable; and
(f) the kindling, keeping or carrying of any fire;
(v) undertake breaking up of land, planting or trees, construction of water courses and do all necessary acts to bring land vested in it under cultivation;
(vi) advance money either by way of grant or by way of loan or partly by way of grant and partly by way of loan to any person in furtherance of the objects of this Act on such terms and conditions as may be prescribed."
' A bare look at section 15 (ibid) indicates that the Authority, subject to such conditions as Government may impose, may undertake any work for any or all of the functions detailed thereunder within its jurisdictional area; may grant land to any person on any conditions it thinks fit and for the purpose issue statement or statements of conditions; provide means of irrigation and irrigational Channels; provide drinking water for human being and cattle; carry out extensive ground water survey to locate sweet-water points and sinking of wells and tube-wells for drinking and irrigational purposes; carry lay out and construction of town, mandi villages and settlements and their upkeep and development; so on and so forth. Section 16 of the Act empowers Authority of course subject to control of Government to grant land to any person on any condition it thinks fit and for the purpose issue a statement or statements of conditions on which the Authority is willing to grant its land. This section also equips the Authority with powers to resume land granted to tenants or impose penalty not exceeding Rs,500 when grantee/tenant is found to have committed breach of the condition of the tenancy or has acquired the land by misrepresentation or concealment of true facts.
' As regards sections 17 and 18 of this Act, these are supplemental in nature and lend weight to paramountcy of Authority. Under section 17 (ibid) the Authority is authorised, subject to approval of the Government, to transfer any of its functions and powers to any Departments of Government or a semiautonomous body or a local Authority on such terms and conditions as may be determined by the Government or agreed between the parties. Section 18 postulates that no person or Government Agency can continue or undertake any development work or a project within the jurisdictional area of Authority without its prior approval and such approval must be in black and white.
' Chapter-V of this Act deals with its finances. Section 19 enacts that there shall be a fund to be known as "Cholistan Development Authority Fund" which shall vest in connection with its functions under the Act, including the payment of salaries and other remunerations to its servants and consultants. Subsection (2) of this section enumerates sources by which the Authority may collect funds. Section 20 deals with the powers of the Authority to borrow money from different Institutions except that the Authority will not get any local or foreign loans without the prior sanction of the Government. Section 21 deals with the power of the Authority, of-course subject to previous sanction of the Government to levy rates, fees and charges to cover expenses for the development of the Cholistan area. Section 22 of the Act authorises it to prepare its annual budget, estimate and submit the same to the Provincial Government by the end of the month of March preceding the commencement of the financial year and the Provincial Government may modify such estimates to such extent as it may consider necessary. Sections 23 and 25 deal with the audit of accounts of the Authority.
' The net result of above discussion is that Authority is independent, autonomous and a public corporate body; it is instrumentality of State by which function has been assigned to it to develop and colonize Cholistan area. It has been armed with power to make and issue statement/statements of conditions on which it wants to grant land to tenants. It has been given sufficient power to lay down the blue-print of development of Cholistan. It has authority to undertake any project which is necessary for colonization and administration of its area. It has been even empowered to set up its funds, finances and necessary powers to levy, rates, fees and charges to cover expenses for development of its area. In built mechanisms for its audit and accounts has been provided in the Act. The Government has been empowered to make rules for carrying out the purpose under this Act. Section 25 clearly says that such rules ay provide for any of the matters incidental, consequential or supplemental to the provisions of this Act. Section 28 bars jurisdiction of Courts of preliminary jurisdiction to entertain and decide any matter relating to the disposal of estate land vesting in the Authority. Section 29 says that all sums, due to the Authority, shall be recordable as arrears of Land Revenue. This Authority is now headed by the Chief Minister of the Province.
29. From the above, it clearly follows that the authority is paramount body in the Scheme of this Act.
It is neither subordinate nor subservient to any other authority under any other Act. True, that this Authority has been made subject to supervisory control of the Government. Subject to that monitoring role of Provincial Government, Authority is paramount body in the process of colonization/administration of Cholistan area. Briefly speaking it is an independent, autonomous and public corporate body owing its existence to an Act and funded by Government of Punjab.
30. Before we proceed further, we are tempted to quote few passages, from 'Treaties on Statute Law' by Craies, 6th Edition by S.G.G. Edgar, published by London Sweet and Maxwell in the year 1963 and from Crowford's 'Interpretation of Laws' published by Al-Makhzan Printers, Karachi in the year 1989, on the principles of implied repeal, effect of affirmative enactments on each other and new statutory remedies. Craies says at page 365, that "Where two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier. The Court leans against implying a repeal, 'unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time; a repeal will not be implied.
Special Acts are not repealed by general Acts unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in the two Acts standing together,' '
The latest expression of the will of Parliament must always prevail.' It does not matter whether the earlier or the later enactment is public local and personal, or private, or is penal or deals with civil rights only, and the rule is equally applicable to Orders in Council or Rules of Court if they have statutory force and are made under authority empowering the rule-makers to supersede prior enactments as to procedure."
' He further says at page 367: "Where a new Act is couched in general affirmative language, and the previous law can well-stand with it, and if the language used in the latter Act is all in the affirmative, and therefore, the old and the new laws may stand together."
' He also says at page 368:- "In R. v. Judge of Essex County Court (1887) 18 Q.B.D. 704, 707), Esher M.R. Laid it down as an ordinary rule of construction, that 'where the legislature has passed a new statute giving a new remedy, that remedy alone can be followed.' But the phrase 'new' as applied to a statute is either needless or ambiguous. The old distinction between vetera and nova statuta is obsolete; and ' new' is insensible unless applied to statutes creating rights or remedies unknown to the common law or to previous enactments. And the rule could perhaps be more accurately laid down, thus: In the case of an Act which creates a new jurisdiction, a new procedure, new forms, or new remedies, the procedure, forms, or remedies there prescribed, and no others, must be followed until altered by subsequent legislation."
' In the later treaties Crawford also deals with above rules in following terms: "Repeals of this type are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes; those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two can remain in force, and those which occur when an act covers the whole subject, of an earlier act and is intended to be a substitute therefor. As has been suggested, a repeal takes place under these circumstances, even though the new act contains no repealing clause, and in face of the fact that there may be a Constitutional provision prohibiting the repeal of any law simply by reference to its title or section number. The validity of such a repeal is sustained on the ground that the last expression of the legislative will should prevail. Technically, there is perhaps a violation of the Constitutional provision but from a practical stand-point the circumvention can be easily justified."
' The reasons, for the rule that implied repeal will take place in the event of clear inconsistency are well-settled in a famous case of Crosby v. Patch (18 Calif, 438): "As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v Lease, 5 Hill 226. It is a rule, says Sedgwick, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. "The reason and philosophy of the rule,' says the author, 'is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all."
' The above noted rules of construction of statutes, were followed by superior judiciary in sub- continent in Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC 219, Mst. Maryam v. Dost Muhammad PLD 1958 Lah. 229, Abul Aala Maudoodi v. Government of West Pakistan PLD 1964 SC 673, Abdul Samad v. Iqbal Ahmad Khan PLD 1972 Lah. 41, Mehtab Khan v. Rehabilitation Authority PLD 1973 SC 451, Kohinoor Sugar Mills Ltd. v.
Market Committee Jauharabad PLD 1976 Lah. 1284, Allah Wasaya v. Federal Land Commission PLD 1979 SC 44, Dharangadhra Chemicals Works v. Dharangadhra Municipality AIR 1985 SC 1729, Mahbub Ahmad v. First Additional District Judge, Karachi PLD 1976 Kar. 978, Emperor v. Ranchhodlal AIR 1948 Bombay, 370, Western Coalfields Ltd. v. Special Area Development Authority AIR 1982 SC 697, J.K. Steel Ltd. v. Union of India AIR 1970 SC 1173, Dolani Ores v. State of Orissa AIR 1975 SC 17 and Mithan Lal v. State. Of Delhi AIR 1958 SC 682.
31. The consequential questions/points, that arise for consideration, are: What are the interactions between three Acts namely Act XIV of 1976, Punjab Land Revenue Act (No, XVII of 1967) and the Colonization of Government. Lands (Punjab) Act (No, V of 1912); whether the Authority is subject to administrative control of Board of Revenue? Whether the orders, passed by the Managing Director of the Authority, are subject to incident of appeal, review, or revision under Act XVII of 1967 read with section 7 of the Act V of 1912. We will, henceforth proceed, to examine the aforesaid Statutes in the light of rules of Construction noted above. Act V of 1912 was promulgated in Bahawalpur on 2-5- 1926 to provide provisions for Colonization and administration of Crown land in the Colony areas within Bahawalpur State. This Act comprises of four Chapters. Chapter-I empowers Government to apply it to any area. Section 7 is important for our purposes. It reads as follows: "7. (1) Applicability of West Pakistan Land Revenue Act, 1967, etc.: Subject to the provisions of this Act the West Pakistan Land Revenue Act, ' 1967, Chapter VII of the Punjab Tenancy Act, 1887 or the corresponding provisions of any other law relating to tenancy for the time being in force in the area where proceedings under this Act are to be taken and the rules thereunder, shall apply to all proceedings under this Act: ' Provided that nothing in the West Pakistan Land Revenue Act, 1967, the Punjab Tenancy Act, 1887 or any other law relating to tenancy, for the time being in force in West Pakistan shall be so construed as to vary or invalidate any condition entered in any statement of conditions issued by the Provincial Government.
(2) Nothing in section 6 shall affect the application of the Punjab Tenancy Act, 1887, or any other law relating to tenancy for the time being in force, to any matter or dispute arising between Government tenants and their sub-tenants to which Government is not a party."
' Clearly the above section, on principle of incorporation, borrows provisions of Punjab Land Revenue Act, 1967/Chapter VII of Punjab Tenancy Act, 1987 or the corresponding provisions of any other law relating to tenancies in force at the relevant time. Subsection (1) is followed by proviso which stipulates that nothing contained in West Pakistan Land Revenue Act/Punjab Tenancy Act or any other related law, shall vary and invalidate any conditions/Statement of Conditions issued by the Provincial Government. So, is the effect of subsection (2) of this section. Evidently, this section proceeds on the principle of Incorporation of the provisions of other Statute and by means of it the borrowed provisions became the part of the Act V of 1912. Chapter II pertains to provisions relating to tenants. This chapter comprises of nineteen sections out of which sections 10 and 11 are germane to the issues under examination. Section 10 is the most important provision. Subsection (1) states that the Board of Revenue, subject to general approval of the Government may grant and apply to any other on such conditions as it thinks fit. Subsection (2) deals with the powers of provincial Government to issue statement or statements of conditions on which it is willing to grant land in a Colony to tenants. Subsection (3) of this section enacts that where such statements of conditions have been issued, the Collector, subject to control of Board of Revenue, may allot land to any person subject to statement of conditions issued under subsection (2) (ibid). Subsection (4) mandates that no person shall be deemed to be a tenant or to acquire any right or title in the land allotted to him until such written order has been passed and he had taken possession thereof under a written order passed by Collector. This provision is by way of ancillary precautions and is designed to annihilate the possibility of spurious claims. Section 11 postulates the legal effect of statements of conditions issued by Provincial Government under subsection (2) of section 10 (ibid).
Suffice it to say that Board of Revenue, in the Scheme of Act V of 1912, is apex authority. Moreover, the provisions relating to appeal, review and revision namely sections 161 to 167, as contained in Chapter XIII have been made part and parcel of Act V of 1912. It is, thus, clear that the Board of Revenue has been made highest authority in Act V of 1912 and the order passed by the Collector had been made subject to incident of appeal, review and revision under the provisions of Act XVII of 1967 and Punjab Tenancy Act. Does these provisions, on the rules noted above, can be read into Act XIV of 1976. Firstly, it is to be noted that at the time of promulgation of Act XIV of 1976, Act XVII of 1967, Punjab Tenancy Act, 1887 and Act V of 1912 were in field in Bahawalpur Division. Punjab Tenancy Act had been made applicable by former Bahawalpur Government on 28-8-1913 while the other two Acts were made applicable on 28-3-1912 and 2-5-1926, respectively. It is necessary to note that the Governor of Punjab had been pleased to apply the provisions of Act V of 1912 to the entire estate falling within the area of Cholistan by means of Notification dated 28-3-1912. Does the above notification solves our problem and provides adequate answer to questions under discussion. We regret to say that answer is 'No'. At his juncture we find another Statute which is, we feel, of some assistance, that is the West Punjab Thal Development Act (XIV of 1949). This Act was promulgated with an object to provide for Colonization/administration of the area situated in Mianwali/Muzaffar Garh and Khushab Sub-Division and Shahpur District. Under section 3, Thal Development Authority was constituted with a status of Body corporate and with common seal.
Section 4 of this Act stipulates that the Authority shall consist of not more than 7 members to be appointed by the Provincial Government by Notification and one, out of members so nominated, shall be appointed by the Provincial Government as Chairman of Authority. Subsection (3) it clearly specifies that no person who was/is member of Central or Provincial Legislature, shall be eligible for being appointed as a member of Authority. In order to further the subject of this Act the Provincial Government framed rules known as Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973. Moreover Provincial Government also framed statement of Conditions on which authority was/is to grant land, to tenant. This statement of condition was issued on 15-2- 1963.
32. The aforesaid juxta-positional analysis of these Acts namely Act XIV of 1976, Act XVII of 1967 and Act V of 1912, clearly shows that object of Act XIV of 1976 and object of Act V of 1912 have the communality i,e, the colonization and administration of area within its jurisdiction while the subject-matter of both is different. Act V of 1912 relates to Colony areas. The whole Act XIV of 1976 concerns Cholistan of Bahawalpur Division. Evidently Act XIV of 1976 is the latest expression of will of Provincial Legislature. It creates an Authority while in the Act V of 1912 the Board of Revenue is the apex Institution on the principle of Reference. Such provision was not put in Act XIV of 1976. We are, therefore, of firm opinion that the principle of partial repeal by implication applies to facts and circumstances of the case in hand. So, without any hesitation we hold that the Authority created under the Act XIV of 1976 is either under the administrative control of Board of Revenue as suggested by the learned A.A.-G. Nor is it an attached Department of Planning and Development Department of Punjab. The Authority, according to our considered opinion is autonomous, independent and corporate body with common seal and succession and is only subject to monitoring/supervisory control of Provincial Government. We, therefore, find that in absence of rules framed by the Provincial Government, neither the Board of Revenue nor any other authority constituted under Act XVII of 1967 or Punjab Tenancy Act, has powers to hear appeals, review or revisions against the order passed by the Managing Director of the Authority under Act XIV of 1976.
This conclusion is in consonance with the rules of incorporation noted above and rule of purposive construction of Statute. Contemporaneously, we find that Act XIV of 1976. Act V of 1912 and Act XVII of 1967 stand together in the field and supplemental to each other where there is repugnancy between them. As already noted, Act XVII of 1967 caters for different subject and has no nexus with Act XIV of 1976 or Act V of 1912.
33. Having found that Cholistan Development Authority is a paramount body into he Scheme of Cholistan Development Authority Act, 1976 and is neither subject to administrative control of Board of Revenue nor is an attached department of Government of Punjab, we herein proceed to determine the vires of scheme enforced in this area. Almost more than 2,44,590 acres in this area have allotted to various persons in following manners:-- {{TABLE}} S. Scheme No,of Area allotted Remarks No, allottees Shahi Mazarian 119 5950 acres Scheme (1950-51).
Grow More Food Scheme 2091 31041 acres (1959-60).
20-Years Lease Scheme 2038 25475 acres (1970-71).
15 years Lease Scheme 11457 143213 acres (1977-78).
Ejected Tenants of 168 2225 acres Rakh Thal Wali District Muzaffargarh (Under Fifteen Years Lease Scheme 1977-78).
Evictees of Pat Feeder 491 6112 acres (Balochistan) Under 15 years Lease Scheme 1977-78.
Evictees of Okara Cantt. 357 4464 acres (15-Years Lease Scheme 1977-78).
Evictees of Ladamsar 101 399 acres (National Park) Under 15-Years Lease Scheme 1983.
Land Reforms 1976 (Area allotted in Shikargarh.) 1790 22776 acres {{TABLE}} ' It must be kept in mind that these figures were given to us by Managing Director of Cholistan Development Authority. These are approximate in nature and should not be taken as mathematically accurate. In so far, Shahi Mazara Scheme, we have already found that it was promulgated by competent Authority but it was to section 29 of Contract Act and was not of any lawful consequence. This rule is also not applicable to Scheme known as Grow More Food/1959-60 when the Act XIV of 1976 was not in field. This was issued by Government of West Pakistan. This Scheme was, so, validly issued and enforced. Same is our finding with regard to third Scheme, i,e, 20 Years Lease Scheme/1970-71. As regards fourth Scheme (15-Years Lease Scheme/1977-78) and fifth Scheme of Ejected Tenants of Rakh Thal Wali District Muzaffargarh (Fifteen years Lease Scheme/1977-78), we have found that these were issued by the Government of Punjab. It is not in dispute that Government of Punjab is the owner of area known as Cholistan and so, it was competent within the terms of sections 15 and 16 of Act to issue these Schemes. These are, therefore, valid on the rule of intra vires. We thereon go to. Schemes Nos. 7 and 8. We find that the allottees were granted lands on the basis of circulars issued by functionaries of the Board of Revenue. We have already held that Board of Revenue had no business to issue such circulars/authority. The aforesaid Schemes, are, therefore, ultra vires and we are note able, despite our best endeavours to explore ways, to uphold these Schemes. These Schemes are declared to have been issued without any lawful authority. The above are our answers to Questions Nos. 1, 2, 3, 4 and 5.
34. Having dealt with Questions Nos. 1, 2, 3, 4 and 5 we not turn to question No,6 which is vexing and perplexing one. It pertains to structure of power. The quest for rules of good governance led political thinkers like, John Locke and Missiau Montesquiey Frenchman, to conceive and develop theory of Separation of Power/doctrine of separated Government. The Frenchmen, in his classic Treatise, "Spirit of the Law (1748) said "A constitution....Can be such that no one will be constrained to do things the law does not oblige him to do and not to do things the law permits him. Its end should be political liberty, defend as the tranquility of spirit that comes from the opinion each has of his safety ' (11.6). The Government must be such that one citizen will not fear another citizen. To achieve this, the separation of the 'three sorts of powers' is necessary, and particularly the independence of the 'power of judging. ' The latter punishes crimes or judges differences among individuals, and it must be separated from the other two powers so that the Judge neither legislates nor has the force of an oppressor."
' This theory was made bedrock of the American Constitution by its founding father, Madison said: "The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. ' The strength of this political truth' is so, great, writes Madison, that were there any 'dangerous tendency to such an accumulation in the Federal Constitution, 'that Constitution would have to be abandoned. Earlier arguments in the Federalist had established the republic credentials of the Constitution."
' However, this doctrine is not free from difficulty. Though fascinatingly true, yet it is not possible to precisely mark the boundaries of three Departments of State namely Legislature, Executive and Judiciary. The power is, itself, an obsession. Constitutional rule is system of governance which provides restraint on use of power. Precisely, it was argued on behalf of the petitioner that functions of legislators was/is to fully address themselves to problems of law-making and not to associate themselves in the administration of laws made by them. The learned A.A.-G. Forcefully propounded that the Cholistan Development Authority was a paramount body in the Scheme of Colonization of Cholistan and so it was highly proper that public representatives be associated with it as members on principle of participatory process. We do not find ourselves in a position to answer the question authoritatively as no adequate assistance was rendered by the learned counsel for all sides. No apt precedents were cited before us. It is true that the theory of separation of Power is anchor- sheet of our Constitution. It is equally undeniably true that our State is a Federal Parliamentary republic based upon two-nation theory and based upon golden principles of Islam as enshrined in the Holy Qur'an and Sunna. Yet, in the absence of adequate assistance, we are not inclined to answer this question and leave it to some other occasion. We, however, note with commendation that Thal Development Authority Act, 1949, kept in view the above rule. In subsection (3) of section 4 of this Act it was prescribed that---
(3) No person who is a Member of the Central or the Provincial Legislature shall be eligible for being appointed as a Member of the Authority and none shall be appointed, who would, if he were a member, be liable to removal under section 9; and a person shall cease to be a Member of the Authority if he is elected a member of Provincial or Central Legislature."
This differentiation was not kept in view by the legislature while passing Act XIV of 1976. We also find, note that composition of the Authority, prima facie, seems to be ad-bloc in nature. Authority comprises of two classes of members whose continuance in authority is dependent upon terms of their office. This aspect of constitution of Authority needs examination by concerned authorities.
The chronological events of this institution reveal that Act XIV of 1976 was promulgated and 21st of July, 1976 and soon thereafter the Authority was constituted within the terms of subsection (2) of section 4 of this Act. The record of this Committee shows that only one meeting of this Authority was held in 1987 under the Chairmanship of the Chief Minister Punjab at Circuit House Bahawalpur.
The perusal of the minutes of this meeting shows that no pragmatic work was done; that no Scheme whatsoever was issued by this Authority within the contemplation of sections 15 and 16 of Act XIV of 1976. Add to it, so far no Cholistan Fund has been set up within the terms of section 19 of this Act. On account of this manifest inaction on the part of the Authority, it is evident that the Authority had been in perpetual hybernation and the Act had been implemented by the Managing Director of Cholistan Development Authority with reference to circulars issued by the Planning and Development Department on engineering side. This speaks fairly well for failure of Authority. On above analysis, we are clear in our mind that the Authority had failed to perform its functions under the Act. Therefore, we are inclined to direct the Managing Director, Cholistan Development Authority to put the matter before the Provincial Government so that it can energise it and invigorate Authority in a manner commensurate with dictates of Act XIV of 1976.
35. It is highly relevant to cite the example of Valley Authority. This Authority was created under an Act by the Federal Government in the era of great depression. Its, underlying object was, like Cholistan Development Authority to develop colonize and administer the land around Tennessee River and United States of America. The examination of the Act, under which it was created shows that its membership was small and members were to be nominated by the President of U.S.A., subject to approval of the Senate. The process of approval was open and transparent. The Senate invited/invites objections from the public at large and confronts the nominees of the President right on television in the view of public at large. It further shows that no member of legislature/congress is qualified to become its members proved to be healthy, conducive and congenial to the strength of the Authority. We are told that the said Authority in U.S.A. Has progressed by leaps and bounds. It has built so many Damas on the river and is now producing bulk of electricity to various states of USA. We find if such process is adopted in the instant case it will be highly useful. This is our view of recommendatory in nature and we are certain that the Provincial Government will examine it and may like to improve it through process of debate and discussion.
36. We are not able to answer questions Nos.7 and 8. These issues had been subjudice before the Commission set up by the Federal Government on the demise of late Sir Sadiq Muhammad Khan Abbasi. Furthermore, even one of us (Mian Allah Nawaz, J.) did not feel proper to deal with these questions.
37. Before proceeding further, we are inclined to recapitulate the principle of necessity and rule of past and closed transactions. This rule was contained in the Book of Grotius on 'De Jure Beet Pacia' which is as follows: "Now while such a usurper is in possession, the acts of Government which he performs may have a binding force, arising not from a right possessed by him, for no such right exists, but from the fact that one to whom the sovereignty actually belongs, whether people, king, or senate, would prefer that measures promulgated by him should meanwhile have the force of law, in order to avoid the utter confusion which would result from the subversion of laws and suppression of the Courts."
' This principle was followed by Supreme Court in Asma Jillani v. Government of Punjab (PLD 1972 SC 139). Dealing with this jurisprudential question his, Lordship Hamood-ur-Rehman, C.J., (as he then was) said: "I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine validating the illegal acts of usurpers. In may humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization.
' Apply this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by reopening them (2) all acts and legislative measures which are in accordance with or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1954, I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives, I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity."
' The principle of Past and closed transaction was enunciated in Commissioner of Income Tax Karachi v. Eastern Federal Union Insurance Co. PLD 1982 SC 247 and Ghulam Mustafa Khar v.
Pakistan PLD 1988 Lah.
49.
38. Guided by the above principle and in the light of our conclusions noted, above, we accordingly accept this Constitution petition with grant of following reliefs: ' Firstly; Declaration is granted to the effect that Cholistan Development Authority,, constituted under subsection (2) of section 4 of Act XIV of 1976, is independent autonomous and a body corporate; it is neither subject to administrative control of Board of Revenue nor is an attached Department of Planning and Development Department/Government of Punjab. It is an apex Authority and is invested with necessary powers to further objects of the Act XIV of 1976; that the orders passed by the Managing Director, of Cholistan Development Authority are not subject to incident of appeal, review or revision under the relevant provisions of Punjab Land Revenue Act (XVII of 1967). The Government, however, will be well within the right to make such rules/providing for such remedies; ' Secondly; Shahi Muzara Scheme issued by the former Government of Bahawalpur is in violent defiance of section 29 of the Contract Act; It is uncertain and cannot be made certaiq. So all the allotments made under the said Scheme are declared to have been made without lawful authority and hence of no lawful consequence.
' Thirdly; Neither the Federal Government nor any other Authority except the Provincial Government is competent to give any direction to this Authority for allotment of land to any person or any class of person which such entity may like to be accommodated in Cholistan: ' Fourthly; we note with regret that the authority has failed to frame statement or statements of conditions on which it wants to grant land to tenants; that it had failed to carry out functions assigned to it by sections 15 and 16 of the Act XIV of 1976. We accordingly direct the Authority to frame statement/statements of conditions on which it wants to grant land to indigenous people of Cholistan known as Chilistanis and D thereafter to landless tenants of Bahawalpur Division. The Authority, while doing so shall obtain approval of the Provincial Government. We have further found that this area had a great petential in growth of livestock. Statedly there are about 15 lac animals in it without the infrastructure of supply of drinking water to them. We, therefore, direct the Authority to examine this potential of this Area and issue necessary legal infrastructure, reserve land as Charagah for livestock and convey water to Tobas which are already in existence.
Fifthly Applying the rule of necessity enunciated in Asma Jillani's case, (supra) and rule of past and closed transactions, we are inclined to direct the Managing Director of Authority to scrutinize the claim of allottees of Shahi Muzara Scheme which we have adjudged as illegal. The afore-said functionary shall so sort out claims of genuine allottees and submit a report to Government of Punjab as well as Authority for making/issuing statements of conditions under which such genuine allottees may the accommodated. It is made clear that claims of spurious and fraudulent persons must be rejected. We further suggest to Government of Punjab to issue a condition saying that no encroacher will ever be allotted any piece of land in this area. This will deter the encroachers at large from illegally occupying tracts of land in Cholistan. It seems that encroachers have almost taken for granted that their illegal activities will not be punished and ultimately will b rewarded; Sixthly; The' Government of Punjab is further directed to constitute a high-powered Commission comprising of Member, Board of Revenue, Punjab, Commissioner, Bahawalpur Division, Bahawalpur and Managing Director, Cholistan Development Authority to survey the activities of Authority from inception upto this date and submit a report to Government/Authority for framing necessary statements of conditions with regard to allotment of land in Cholistan area. We hope that the Provincial Government, which is supported by comfortable majority while providing such infra structure will ensure the supremacy of the Authority in total transparent manner.
Seventhly; as regards other Schemes, we are inclined to hold that allotments made under the Schemes are valid and shall not be re-opened on the principles of past and closed transactions.
This, however, will not preclude the Authority from examining such allotments which were made by authorities under spec of fraud and coercion. The Authority, subject to general control of Provincial Government, will do every possible effort to ensure the satisfaction of the rights of the indigenous peoples of this area known as Cholistanis.
' Eightly; We were not given the exact details about the illegal occupants of land in Cholistan. The Authority gave different statistics on different occasions. The fact, however, remains that a large number of area in Cholistan is in illegal occupation. We accordingly direct the Managing Director of the Authority to clean the area from illegal occupants within a period of six months it will be well- within his right to seek assistance of local Administration and the Provincial Government.
39. As regards Writ Petition No, 2342, it is sufficient to note that this was filed by the Cholistan Development Authority, Bahawalpur through its Managing Director. It sought to call in question the order of the Managing Director dated 19-8-1993. This order runs as follows: "It is observed that the Shahi Tenants Scheme was promulgated in 1950 by the defunct Bahawalpur State and the same does not appear to have been adopted by the Punjab Government. The Colonization of Government Lands (Punjab) Act, 1912 was made applicable vide Notification No, Col-2/54(a-55), dated 25-6-1958 regarding allotment of Abadkari condition and then 15 years Lease Scheme in Cholistan area in the year 1974 vide Notification No, 74-74/2589-CL-I, dated 5th July, 1974. It is, thus, clear that the Shahi Mazarain Scheme of the defunct Bahawalpur State has not yet been notified by the Government of Punjab. It, therefore, follows that any such rights allowed to such other tenants on 5-12-1977 also have no legal sanctity. However, it is felt that old settlers under Shahi Muzarain Scheme of the Defunct Bahawalpur State, deserve sympathy. Till such time this Scheme is notified under section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 and a clear policy is chalked out, I allow the petitioners to continue with usual rent and other dues, which they should deposit within six months from the date of receipt of this order. The grant of proprietary rights to the petitioners would be considered after the Scheme (ibid) is notified."
We have already held that the Cholistan Development Authority is atonomous body. It is neither subject to administrative control of Board of Revenue nor it is an attached Department of Planning and Development Department; that the order passed by the Managing Director, Authority are not subject to any incident of appeal revision or review of the Board of Revenue. For this reason we accept this petition (W.P. 2342/96) and declare the impugned order of the Member (Colonies)
Board of Revenue, dated 19-8-1993 as illegal and without any lawful authority. The aforesaid order is accordingly set aside.
40. As regards Civil Miscellaneous 77 of 1996, it eaters for a different situation. We, therefore, direct the office to enlist it for hearing on 23-6-1998 before any available Bench.
41. Before parting with this judgment, we note our immense appreciation of industry, labour with which the learned counsel for the parties have argued the case on number of occasions. At this juncture, we appreciate laudable contribution of M/s Muhammad Jaffar Hashmi, Masood Ashraf Sheikh, Ijaz Ahmad Chaudhry and so many other Advocates who contributed in the debate with high sense of integrity and loyalty to profession. There shall be no order as to costs.
42. We further direct that the Deputy Registrar (Judi.) of the Lahore High Court, Bahawalpur Bench, Bahawalpur, shall immediately send a copy of this judgment to the Managing Director, Cholistan Development Authority, Bahawalpur/Chief Secretary, Government of Punjab, Lahore. The Chief Secretary shall put this judgment before the Cabinet of Punjab Province so that the Provincial Government may take necessary legislative and consequential remedial measures commensurate with this judgment to make the Authority an effective instrumentality of the Provincial Government. If any delay is caused in this matter, we regret to say that this vast tract of area will become a paradise for encroachers.