Stereo.

H C J D A 38
JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W. P. No. 20906 / 2023

Public Interest Law Association of Pakistan

Versus

Federation of Pakistan & 08 others

JUDGMENT

Date of Hearing: 29.05.2023

Mr. Ahmad Rafay Alam, Advocate
Petitioners By: Mr. Fahad Malik, Advocate
Mr. Zohaib Babar, Advocate
M/s. Muhammad Asad Manzoor Butt and
Afzaal Hussain Hashmi, Advocates in
connected W. P. No. 27115 / 2023
Mian Khadim Hussain and Anwar-ul-Haq,
Advocates in connected W. P. No. 20457 /
2023
Mr. Shahid Shahood Randhawa, Advocate /
Petitioner in connected W. P. No. 23256 /
2023
Malik Yasir Abbas Khokhar, Advocate in
connected W. P. No. 28283 / 2023

Mirza Nasar Ahmad, Additional Attorney

Respondents By: General for Pakistan
Mr. Ali Jaffer Khan, Assistant Attorney
General for Pakistan
Khawaja Aurangzeb Alamgir, Assistant
Attorney General for Pakistan
Mr. Muhammad Osman Khan, Assistant
Advocate General assisted by Mr. Sikandar
Nisar Saroya, Assistant Advocate General,
Javed Iqbal, Law Officer, Zafar Iqbal, Dy.
Director, Hafiz Muhammad Ijaz, Section
Officer (Extension), Agriculture
Department; Farrukh Tufail, D.S. Colonies,
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Qamar Abbas, Consultant, Colonies

Department; Abid Hussain Bhatti, Senior
Law Officer, Anwaar-ul-Haq, Conservator
of Forests (RM), Nadeem Ashraf,
Divisional Forest Officer and Muhammad
Javed Gill, Chief Conservator of Forest
(CZ), Forestry, Wildlife and Fisheries
Department; Dr. Syed Nadeem Badar, D.G.
(Planning); Dr. Muhammad Asim, AS
(Planning), Muhammad Badar,
Departmental Representative, office of
Director General Planning; Hassan Ashfaq
and Sehar Ch., Law Officers, Irrigation
Department

ABID HUSSAIN CHATTHA, J: This Judgment shall decide the titled

and four (04) connected W. P. Nos. 20457, 27115, 28283 and 23256 of
2023 involving identical questions of law and facts. In essence, common
challenge is posed to an arrangement between the Government of the
Punjab (the “GOP”) and the Pakistan Army, a branch of the Armed Forces
of Pakistan that envisages the transfer of more than one million Acres of
State land vested in the Province of the Punjab or its Departments to the
Pakistan Army to venture into Corporate Agriculture Farming (the “CAF”)
on profit sharing basis. The plan after passing through legal processes
during the period of caretaker government was accorded approval by the
caretaker Cabinet of the Province of the Punjab (the “Caretaker Cabinet”
or the “Caretaker Government” as the context may admit) on 09.02.2023
and formal notification No. 197-2023/0334-CS.II(IX) dated 20.02.2023
(the “Notification”) was issued under Section 10 of the Colonization of
Government Lands (Punjab) Act, 1912 (the “Colonization Act”). Pursuant
thereto, a Joint Venture Management Agreement dated 08.03.2023 (the
“JVA”) was executed between the GOP and the Pakistan Army. The
process of bestowing State land by the Caretaker Government to the
Pakistan Army for CAF culminating into the Notification, the JVA and
subsequent developments were assailed before this Court.
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I FACTS
2. The unfolded story revealed by the GOP suggests that in order
to address the challenge of food insecurity, the GOP conceived the
proposal to initiate CAF in the year 2021. The concept of CAF connotes
large scale, systematic and organized farming to maximize production with
improved quality. It is not limited to the management of farm and
agriculture alone but also includes distribution, marketing, export, research
and development, better utilization of water resources through innovative
irrigation techniques, growth of livestock and preservation of biodiversity.
The adverse and detrimental effects of climate change heightened the need
to initiate CAF to bring maximum land under cultivation and optimize
crop productivity through economy of scale and transfer of technology
with the ultimate objective to ensure food security.

3. The Colonies Department of the Board of Revenue, Punjab

(the “BOR”) submitted a summary to the elected government headed by
the then Chief Minister, Punjab on 25.06.2021 proposing Statement of
Conditions (the “SOCs”) for CAF. Subsequently, the summary was placed
before the elected Cabinet of the Province of Punjab (the “Elected
Cabinet” or “Elected Government” as the context may admit) in its 51st
meeting held on 28.02.2022 under Agenda No. 19 titled as, “Terms &
Conditions for Corporate Farming under CPEC”. The term CPEC is an
abbreviation of ‘China Pakistan Economic Corridor’ and refers to a long-
term initiative between the Federation of Pakistan (the “FOP” or the
Federal Government as the context may admit) and People’s Republic of
China involving multiple projects. The Senior Member, Board of Revenue,
Punjab (the “SMBR”) briefed the Elected Cabinet that the GOP had
decided to promote CAF on accessible cultivable / fellow State wasteland.
Accordingly, the matter was examined by the BOR and following SOCs
were proposed:-

(Emphasis supplied)
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(i) LEASE
State land shall be granted on lease to the applicant /
company. In case of more than two applicants / companies,
land shall be given on lease through open auction.

(ii) RENT
The current market rent assessed by District Rent Assessment
Committee approved by Provincial Price Assessment
Committee shall be applicable. In case of more than two
applicants / companies, the base rent for auction shall be
assessed by District Rent Assessment Committee and
approved by Provincial Price Assessment Committee.

(iii) INCREASE IN RENT

The rent shall be increase @ 10% after every year. In case of
barren state land, increase shall be made subject to the
recommendation of District Collector concerned and
approved by the BOR.

(iv) PERIOD
The tenancy granted on these conditions shall be for a period
of 20 years.

(v) RENEWAL OF LEASE

The lease may be renewed on the recommendations of
District Collector concerned and approved by the BOR
subject to satisfactory performance according to the terms and
conditions.

(vi) PURPOSE OF LEASE

The land shall be used for the following purposes:-
i. Import substitution
ii. Food security
iii. Standardization & maximization of seed productivity
iv. Any other purpose relating to the Agricultural Sector as
deemed appropriate by the GOP from time to time.

(vii) SIZE OF TENANCY

The ceiling of land shall be five hundred acres or above.

(viii) EQUITY
The companies will be allowed to invest 100% foreign, 100%
local or mix equity with foreign or local sharing both.
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(ix) INCORPORATION IN PAKISTAN

The companies shall be incorporated in Pakistan under
Companies Ordinance, 1984
Or
At least one Joint Venture (JV) shall be registered in Pakistan,
Or
Land shall also be transferred on G 2 G basis.

(x) LOAN FACILITY

The companies may avail loan facility from the scheduled
banks for CAF. The leased State land shall not be pledged for
the loan purposes.

(xi) INCENTIVE
The GOP will request the FOP for grant of relief / reduction
on custom duty, sales tax for agricultural machinery and
equipment.

(xii) OBSERVANCE OF LAWS

The lessees / companies shall abide by Federal and Provincial
laws relating to land, agriculture, farming and labour, etc.

(xiii) PAYMENT OF TAXES

The lessees / companies shall be responsible for all local,
provincial and federal taxes including the Agriculture Income
Tax.

(xiv) TRANSFER / ALIENATION OF LEASED LAND

The lessee shall not be allowed to sub-lease, alienate or
transfer the leased State land.

(xv) SPECIAL PROVISOS

i. No proprietary rights shall be granted to the lessee in
respect of the leased land.
ii. The lessee shall furnish an undertaking to the extent
that terms and conditions shall be abided in letter and
spirit.

(xvi) CANCELLATION OF LEASE

i. In case of mis-statement, concealment of facts and
violation of terms and conditions, lease will be
cancelled.
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ii. The District Collector concerned, after affording an

opportunity of hearing and if he is satisfied, shall
cancel the lease.
iii. The land shall be resumed and superstructure (if any)
shall be forfeited.
iv. The loan shall be recovered from the lessee under the
law.
(xvii) DISPOSAL OF CANCELLED LAND
After cancellation, the land shall be leased out afresh under
these terms and conditions. The ex-lessee shall not be eligible
for lease of land.
(Emphasis supplied)

4. The Elected Cabinet was further apprised that the Chief

Minister was pleased to approve the placement of proposed SOCs before
the Standing Committee of Cabinet on Legislative Business (the
“Standing Committee”) who considered the same in its meeting held on
30.09.2021 and in principle approved the same under the CPEC. It was
importantly recommended by the Standing Committee that the matter be
placed before the Elected Cabinet for consideration after legal vetting of
the draft terms and conditions by Law & Parliamentary Affairs
Department and in addition, the same may also be placed before the
Provincial Assembly for discussion subsequently. During the process of
discussion, the SMBR clarified that the proposal included barren State land
only which will be included in the schedule and the purpose of the
proposal was to attract foreign investment with special focus on transfer of
technology, enhancement in productivity and local employment. The
proposal was not limited to CPEC only. The Elected Cabinet considered
the proposal and in principle approved the SOCs subject to their placement
before the Ministerial Committee consisting of the following members for
finalization:-
(Emphasis supplied)
(i) Minister for Law & PA
(ii) Minister for Agriculture
(iii) Minister for Finance
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(iv) Minister for Livestock

(v) SMBR
(vi) Secretary, Agriculture Department
(vii) Secretary, Law & PA Department
(viii) Secretary, Finance Department
(ix) Secretary, Livestock Department

5. Statedly, meeting of Ministerial Committee was held on

14.10.2022 but admittedly, no minutes of the meeting were recorded. To
address the Court query, reliance was placed on file noting coupled with an
attendance sheet dated 14.10.2022 to demonstrate that such a meeting had
in fact taken place. However, it was claimed that SOCs were approved in
the Ministerial Committee, whereafter, the draft of SOCs was forwarded to
Secretaries of Agriculture, Livestock and Law Departments of the GOP for
their input and further necessary action. Admittedly, only one Minister
attended the meeting as per attendance sheet dated 14.10.2022. The image
of the same is pasted as under:-
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6. After dissolution of the Provincial Assembly of the Punjab,

the Caretaker Cabinet was installed on 22.01.2023. On 08.02.2023, the
Director General, Strategic Projects, Pakistan Army, General
Headquarters, Adjutant General’s Branch, Rawalpindi (the “DGSP”)
(represented in the titled and connected Petitions through the Ministry of
Defence, Islamabad) directly wrote a letter to the SMBR claiming that the
Pakistan Army has rich experience of developing waste barren land placed
on military schedule and has developed a comprehensive land
development strategy. Accordingly, an offer was made to take land for
CAF and proposed a joint meeting with the concerned Departments to
discuss its modalities. The text of the proposal contained in paragraph No.
3 of the said letter is as under:-

“3. Agreed Operational Modalities can be mutually worked

out with Punjab Government, as main stakeholder, in the best
interest of the country. However, suggested timeline to
Initiate the project is as under-

a. Pilot Project - Immediately (10,000 - 15,000 Acre), the

earmarked land should be in following categories:-
(1) Irrigated by canal.
(2) TW Irrigated.
(3) Pond irrigated.

b. Main Project-1 March 2023 (1 Lac Acre)

c. Identification and Lease of 1 Million Acre in Cholistan
Development Authority area of responsibility-April 2023.”

7. The following day, in furtherance of claimed purported

approval of SOCs by the Ministerial Committee, the matter was placed
before the Caretaker Cabinet in its 4th meeting held on 09.02.2023 under
Agenda No. 3. The SMBR apprised the Caretaker Cabinet that in the light
of approval of Ministerial Committee and feedback of Agriculture,
Livestock and Law Departments, SOCs were proposed for approval.
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Accordingly, the Caretaker Cabinet considered and approved the proposed

SOCs mentioned at para 3.3 with the following amendments:

“Under the heading of “lease through single source”

(i) Para 5(1)(c): The provision of having one local
company as a partner by the foreign companies were
deleted.
(ii) Para 5(2)(e): The Government share shall not be less
than thirty-three (33%) percent.”
(Emphasis Supplied)

8. The BOR following the approval of the Caretaker Cabinet

issued the Notification incorporating the SOCs approved by the Caretaker
Cabinet. The SOCs approved by the Elected Cabinet and the Caretaker
Cabinet shall hereinafter be referred to as (the “original SOCs” and the
“new SOCs”), respectively. The Notification is reproduced in verbatim as
under:-

“GOVERNMENT OF THE PUNJAB

COLONIES DEPARTMENT

Dated 20th February 2023

NOTIFICATION

No.197-2023/0334-CS.II(IX).- In exercise of the powers

conferred under section 10 of the Colonization of
Government Lands (Punjab) Act, 1912 (V of 1912),
Governor of the Punjab is pleased to issue the following
Statement of the Conditions for lease of specified State
land for corporate agriculture farming, with immediate
effect:

1. Objectives.- The specified State land may be leased

out for agriculture research and farming, import
substitution, food security, standardization and
maximization of seed productivity, livestock research,
breeding and farming, and, for any other purpose relating
to the agricultural or livestock sector as deemed
appropriate by the Government from time to time.
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2. Definitions.- For the purpose of this Statement of the

Conditions, unless there is anything repugnant in the
subject or context:
(a) "Act" means the Colonization of
Government Lands (Punjab) Act, 1912 (V of
1912);
(b) "barren land" means the kind of land recorded
in revenue record as barren and is not
cultivable;
(c) "Board of Revenue" means the Board of
Revenue established under the Punjab Board
of Revenue Act, 1957 (XI of 1957);
(d) "Cabinet Committee" means a Cabinet
Committee notified by the Government for the
purpose;
(e) "company" means a company as defined in the
Companies Act, 2017 (XIX of 2017) and
includes a foreign company;
(f) "Government" means Government of the
Punjab;
(g) "lessee" means the person to whom the State
land has been leased out under this Statement
of the Conditions;
(h) "State land" means any land owned by the
Government either under the administrative
control of the Collector or in use of any
department of the Government;
(i) "District Rent Assessment Committee" means
a committee duly notified as such;
(j) "Provincial Rent Assessment Committee”
means a committee duly notified as such.

3. General.- (1) All leases under this Statement of the

Conditions shall be subject to the provisions of the Act and
to:
(a) the Federal and Provincial laws relating to
land, agriculture, farming, livestock, forest,
labour and other relevant laws; and
(b) such instructions as may be issued by the
Government for carrying out the purposes of
this Notification.
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(2) The Government may notify the Cabinet Committee

for approval of size of the lot, schedule, base rent etc. and
to take decision regarding export of yield, products and by-
products.

4. Lease through open auction.- (1) The specified State

land shall be leased out through an open auction for a
minimum piece of State land as decided by the Cabinet
Committee subject to this Statement of the Conditions for
any individual or consortium or company.
(2) Any individual or a company or consortium may
participate under this Statement of the Conditions having at
least five years' experience of agriculture farming.

5. Lease through single source.- (1) The Government

may grant a lease of State land placed on the schedule on a
single source basis, without any auction proceedings, to the
following:
(a) Departments of the Federal or Provincial
Governments, their attached departments,
semi-attached department, autonomous
bodies, and institutions;
(b) companies having sole ownership of the
Federal or Provincial Governments; and
(c) Foreign Governments, through their entities,
provided their Embassies in Pakistan certify
that such entity is solely owned by the
Government concerned:
Provided that the foreign company shall sell its
produce in Pakistan and any export shall not be
allowed without prior approval of the Cabinet
Committee and fulfillment of codal formalities
including necessary permission from departments
concerned.
(2) In the case of lease through single source, the Board
of Revenue shall submit the case to the Government for
approval with the following terms and conditions:
(a) details of the State land;
(b) a draft joint venture agreement with the
concerned entity;
(c) a draft proposal for the Board of Management
for each joint venture with a minimum one-
third representation from the Government;
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(d) net profit sharing mechanism and modalities;

and
(e) profit share of the Government shall not be
less than thirty three percent in the proposed
mechanism.

6. Schedule.- (1) The Collector may identify and

recommend suitable piece of State land to the Board of
Revenue which shall be placed in the schedule under this
Statement of the Conditions after approval of the Cabinet
Committee constituted for the purpose.
(2) The Board of Revenue may also include or exclude
any piece of State land, being used by any department, in
the schedule of this Statement of the Conditions.

7. Assessment.- (1) The Collector shall seek the

valuation report of rent of the proposed State land from
three valuers approved by State Bank. The District Rent
Assessment Committee shall assess the base rent of the
land keeping in view the valuers' assessment and the other
parameters and recommend the case to the Provincial Price
Assessment Committee.
(2) The Provincial Price Assessment Committee shall
consider the proposal of the District Rent Assessment
Committee and place its recommendations before the
Cabinet Committee for approval.
(3) The Cabinet Committee may consider the
recommendation so received and grant the approval of the
base rent.

8. Grant of Lease.- (1) The lease shall be made through

open auction on rent which shall not be less than the base
rent approved by the Cabinet Committee.
(2) The Collector shall approve the bid and grant the
lease within thirty days of the date of the auction.
(3) A single bidder, if fulfilling the Statement of
Conditions, may participate in the open auction and qualify
on rent equal to or exceeding the base rent. In such case,
the approval of the bid shall be granted by the
Commissioner concerned within thirty days from the date
of auction.

9. Period of lease.- (1) The State land shall be leased

out for a period of twenty (20) years, extendable for
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another period of ten (10) years, subject to the satisfaction

of the Collector regarding fulfillment of this Statement of
the Conditions.
(2) The lease shall be non-extendable or non-renewable
on completion of thirty (30) years.

10. Purpose of lease.- The lessee shall utilize the leased

State land for the sole and specific purpose for which the
lease has been granted.

11. Rent.- (1) The rent for the first year shall be paid in
advance within ninety (90) days of the approval of the
lease.
(2) The rent for the subsequent years shall be paid in
advance before the 30th of June of each year by the lessee.
(3) The rent shall be increased at the rate of ten (10)
percent annually, applicable on the 1st of July of each year.
(4) In case of barren land to the extent of this category
of State land as certified by the Collector on the
recommendation of District Rent Assessment Committee,
no rent shall be charged for the initial three years. A valid
bank guarantee, equivalent to three years of rent shall be
furnished by the lessee which shall be released on the
payment of rent for the fourth year. The guarantee shall be
forfeited in case of failure to cultivate and develop the
leased land in three years.

12. Equity.- (1) The company shall be allowed to invest

hundred percent foreign or hundred percent local or mix
equity with foreign and local sharing both.

13. Loan facility.- The company may avail of a loan

facility from the scheduled banks for corporate agriculture
farming; however, the leased State land shall not be
pledged for loan purposes.

14. Payment of taxes.- The lessee shall be liable to pay

all local, Provincial and Federal taxes including the
agriculture income tax.

15. Special provisions.- (1) If the whole leased State

land or any part of it is required for a research institute of
Agriculture, Livestock or for public purpose, it shall be
surrendered by the lessee to the Government i.e. Board of
Revenue. The resumption order may be made after
providing reasonable opportunity of being heard.
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(2) The lessee will be required to undertake agriculture

and livestock research and give access to the functionaries
of agriculture and livestock departments to observe the
usage of technology, agricultural and livestock practices,
and for research & development activities.
(3) No proprietary rights shall be granted to the lessee in
respect of the leased State land.
(4) The lessee shall furnish an undertaking to the extent
that terms and conditions shall be abided by in letter and
spirit.

16. Incentive.- The Government may request the Federal

Government for grant of relief or reduction on custom
duty, sales tax for agriculture and livestock machinery and
equipment.

17. Transfer or alienation of leased land.- The lessee

shall not be allowed to sub-lease, alienate or transfer the
leased State land.

18. Arbitration.- In case of any dispute between the

lessee and the Collector / Commissioner / Government, the
Member (Colonies) of the Board shall be the Arbitrator,
whose decision shall be final.

19. Cancellation and resumption.- (1) In case of

misstatement or concealment of facts or violation of any
Statement of the Conditions, the Collector concerned shall
be authorized to cancel the lease after giving the
opportunity of being heard.
(2) In case of cancellation of the lease, the State land
shall be resumed and superstructure, if any, shall be
forfeited in favour of the Government.
(3) The arrears or loan, if any, shall be recovered from
the lessee under the law for the time being in force.
(4) In case of cancellation and resumption, no
compensation shall be granted to the lessee.

20. Disposal of resumed land.- After cancellation and

resumption, State land may be leased out afresh and the ex-
lessee shall not be eligible for lease of such State land in
future.
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21. Compensation.- The lessee shall not, at the expiry of

the lease deed, be entitled to any compensation,
whatsoever, for un-cut and un-gathered crops, buildings,
superstructures, installation and tube wells, etc. existing on
the leased State land.
MEMBER/SECRETARY
GOVERNMENT OF THE PUNJAB
COLONIES DEPARTMENT"

(AHMAD RAZA SARWAR)

SECRETARY
Government of the Punjab
Law and Parliamentary Affairs Department”
(Emphasis Supplied)

9. In the meanwhile, after approval of the new SOCs by the

Caretaker Cabinet and before the date of issuance of the impugned
Notification, the Chief Secretary, Punjab pursuant to the request of the
DGSP vide letter dated 08.02.2023 referred above held a meeting on
15.02.2023 for discussion on draft framework provided by the latter and
survey teams were constituted. The draft framework was accordingly
finalized and decisions were taken.
10. After issuance of the Notification, the matter was placed
before the Caretaker Cabinet under Agenda No. 3 in its 7th meeting held on
25.02.2023. The Caretaker Cabinet was apprised that the Director Lands,
Pakistan Army had requested for provision of one million Acre land to
ensure food security. The Pakistan Army would prepare a tentative
framework for obtaining State land under CAF. A formal request from
DGSP had been received on 08.02.2023 with the proposal to convene a
meeting with different heads of the Departments of the GOP. The
framework forwarded by the Pakistan Army indicates that it has a fleet of
well-trained manpower which relies on latest farming techniques,
technology and tools to focus on greater yield, seed quality, water
management and organic farming. CAF will be a partnership project
between the Pakistan Army and the GOP incorporating all the concerned
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Departments. The State land was lying in various districts with illegal
occupants or in utilized condition which would be handed over to the
Pakistan Army by the GOP after a joint survey. All the initial funding
would be provided by the Pakistan Army and profit sharing with the GOP
will be done on agreed terms. Another meeting was held on 15.02.2023
under the Chairmanship of the Chief Secretary, Punjab which was attended
by the SMBR and other Departmental heads including the representative
of the Pakistan Army, wherein, certain decisions were taken pursuant to
the Notification. It was apprised that the new SOCs approved by the
Caretaker Cabinet provide for single source lease and in this respect,
approval was sought to proposal contained in paragraphs No. 3.7, 3.8 and
3.9 of the summary reproduced below for ready reference which was
readily granted by the Caretaker Cabinet:-
(Emphasis supplied)

“3.7 Furthermore, Pakistan Army had proposed 12,221-

Acres of land, for Pilot Project in five districts namely
Sahiwal, Khushab, Layyah, DG Khan and Muzaffargarh and
84,350-Acres for main project in remaining districts. Director
General Land, Pak Army dated 20.02.2023 had forwarded its
proposal which had been examined in the Colonies
Department, Board of Revenue, Punjab in the light of the
SOCs and submitted to the Chief Minister through a
summary:
Parameters of Proposed Arrangements
SOCs
A Details of the State Pakistan Army authorities had
Land identified:
(i) 12,221 acres’ land in 5
districts for pilot project.
(ii) 84,350 acres’ land in
other 13 districts for
main project.
(iii) Additional state land will
be identified in Cholistan
through Joint Survey
Teams.
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B A draft joint The Pakistan Army had

venture agreement provided draft Joint Venture
with the concerned Agreement.
entity

C A draft proposal of The proposed Board of

the Board of Management for Joint Venture
Management for was given as under:
each Joint Venture It will be consisting of Army
with a minimum representatives:
one-third
representation i. Adjutant General
from the ii. D.G. Strategic projects
Government. iii. D.G. Lands
iv. Director, Lands/CAF
Government of the Punjab will
be represented by:
i. Chief Secretary, Punjab
ii. Senior Member Board of
Revenue
iii. Member(Colonies), BOR
iv. Secretary Law
v. Secretary Finance
vi. Secretary Agriculture
vii. Secretary FW&F
viii. Secretary L&DD
ix. Secretary Irrigation

D Net profit sharing It had been proposed that 20%

mechanism and of the profit will be used for
modalities; and research and development and
remaining will be shared on
50:50 basis between Pakistan
Army and Govt. of Punjab.

E Profit share of the As above

Government shall
not be less than
thirty three percent
in the proposed
mechanism

3.8 The proposals were submitted through the Secretaries,

Agriculture, L&DD, FW&F, Irrigation and Law Department.
The Departments furnished their comments/proposals and the
 18 W. P. No. 20906 / 2023
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Chief Secretary Punjab stated that the proposal of Board of

Revenue, Punjab had been endorsed by the concerned
departments with certain conditions. He further proposed that:
Total land proposed for the Management Agreement with the
Pakistan Army was as under:
i. Total land proposed for the Management
Agreement with the Pakistan Army was as under:
(a) Land under the use of various departments 96571-
Acres (given at para 4(A)/ante.
(b) Land falling within Cholistan = 10,00,000 Acres
(c) Other under-utilized / undeveloped land to be
identified by the BOR.
ii. The land shall be leased to the Pakistan Army on
single source basis under clause 5 of the Terms
and Conditions for Corporate Farming under
CPEC.
iii. The lease period shall be 20 years, extendable
further for ten years as given in the policy
framework.
iv. The leased land shall be utilized purely for
Corporate Agriculture Farming only. However, if
any department of Government of the Punjab
requires land for research purpose, it shall be
surrendered to the concerned department as
required under clause 15 of the Terms and
Conditions. However, a research proposal has to
be approved by the Planning and Development
Department, Government of the Punjab.
v. A Board of Management, as given at shall approve
all the policies for utilization of the land including
its commercial and research use.
vi. The Board of Management may establish
company/companies for running the operations on
the commercial basis.
vii. No violation in the 'restrictions of the land use'
shall be made.
viii. Government of the Punjab will provide land as an
equity and the Pakistan Army will make all
investments on the land (preferable). In case of
any other investment proposal, the arrangement
shall be submitted before the Cabinet for approval.
 19 W. P. No. 20906 / 2023
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ix. The profit sharing formula shall be on 50:50 basis.

x. In addition to the members representing the
Government of the Punjab stated at, Secretary
Finance and Secretary Law may also be included.
xi. The terms and conditions stated by the various
departments i.e. Agriculture Department, Forest
Department, Irrigation Department shall be
incorporated.
xii. The suggestions of the Livestock Department
cannot be considered as those are against the spirit
of the policy framework. As the use of such land is
only for the commercial basis, only encumbrance
free land shall be considered for the purpose.

3.9 It was also informed that the following Committee may

be delegated to negotiate terms and conditions with Pakistan
Army on behalf of Government of the Punjab:
i. Chief Secretary Chairman
ii. SMBOR Member
iii. Secretary Law Member
iv. Secretary Finance Member
v. Secretary Agriculture Member
vi. Secretary Livestock Member
vii. Secretary Irrigation Member
viii. Secretary Forest Member
ix. Member Colonies, BOR Member/Secretary
x. Any other co-opted members(s)
The committee should be empowered to do the followings:
i. Add/delete land owned by the various
departments, to the extent of one million acres,
depending upon the suitability as well as
commercial potential;
ii. Sign Management Agreement with the Pakistan
Army with mutually negotiated Terms and
Conditions while remaining within the
framework of the Terms and Conditions for
Corporate Agriculture Farming.
It was submitted that the draft Joint Venture (JV) agreement
furnished by the Pakistan Army, had been vetted by the Law
Department.”
(Emphasis Supplied)
 20 W. P. No. 20906 / 2023
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11. On 08.03.2023, the JVA was executed between the GOP and
the Pakistan Army consisting of six (06) pages which is reproduced as
under:-

“JOINT VENTURE MANAGEMENT AGREEMENT

This Joint Venture Management Agreement (hereinafter

referred to as the “Agreement”) is made at Rawalpindi on
Wednesday, 8th day of March, 2023.
BETWEEN
Governor of the Punjab, acting through Member (Colonies),
Board of Revenue Punjab (hereinafter referred to as
"Lessor"), which expression shall, whenever the context so
requires or permits, include the successors, legal
representatives and permitted assigns
AND
Pakistan Army, acting through Director General Strategic
Projects, Adjutant General's Branch, General Headquarters,
having its head office at Rawalpindi (hereinafter referred to
as "Lessee"), which expression shall, wherever the context so
requires or permits, include the successors, legal
representatives and permitted assigns.

Lessor and Lessee shall hereinafter individually be referred

to as "the party" and collectively as "the parties".
WHEREAS:
(a) the parties share a mutual interest in long-term
cultivation and productivity of the state land under
the Statement of the Conditions for Corporate
Agricultural Farming Scheme notified vide
Notification No.197-2023/0334-CS.II(IX), dated
20.02.2023, which aims at agriculture research and
farming, import substitution, food security,
standardization and maximization of seed
productively, livestock research, breeding and
farming, afforestation and preservation of
biodiversity, and, for any other purpose relating to
the agricultural or livestock sector as deemed
appropriate by the Government of the Punjab from
time to time; and
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(b) this agreement for lease of state land upto one

million acres is governed by the said Statement of
the Conditions.
NOW, THEREFORE, the parties have agreed to execute the
Agreement to achieve the said purpose in accordance with
the terms and conditions mentioned herein.
1. Term of the Lease:
The state land shall be leased for a period of twenty
(20) years, extendable for another period of ten (10)
years, subject to satisfaction of the Lessor regarding
fulfillment of Statement of the Conditions. The lease
shall be non-extendable or non-renewable on
completion of thirty (30) years.
2. Purposes of Lease:
The Lessee shall utilize the state land for the following
purposes:
(a) agriculture farming (planting, cultivating, and
harvesting of annual or perennial crops, vegetables
or fruits);
(b) survey and development of land;
(c) livestock farming (beef, mutton, poultry and fish);
(d) afforestation and preservation of biodiversity;
(e) research and development activities and other
common activities associated with cultivating crops
and raising livestock; and
(f) construction or use of already constructed
buildings, structures, facilities, ponds, tools and
equipment with the prior permission of the District
Collector. Provincial Government Department
concerned shall make the inventory of all assets in
its ownership at the time of handing over.
3. Responsibilities of Lessor:
Lessor may assist the Lessee to:
(a) provide canal water or electricity (wherever
available);
(b) construct farm to market roads or tracks (on
mutually agreed terms); and
(c) seek benefit from various government subsidy
schemes.
 22 W. P. No. 20906 / 2023
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4. Responsibilities of Lessee:
Lessee shall arrange and pay for all utility costs
relating to water and electricity etc.

5. Profit Sharing:
(a) Lessee shall share the profit after return of his
initial investment as follows:
(1) already cultivated land - after one (01) year
(2) Banjar Qadeem Lands - after three (03) years
(b) Twenty (20) percent of the profit shall be used for
research and development after the approval of
Joint Management Board and remaining profit
shall be shared equally (50:50) between the
parties.
(c) Payments of profit shall be made on yearly basis
before 30th of June every year in a head of account
approved by the Board of Revenue, Punjab.
(d) The annual audit of the accounts including
investment by the parties and profit accrued shall
be got conducted through a renowned Audit Firm.

6. Company/Companies:
The Board of Management may establish or engage
company or companies for running the operations on
commercial basis.

7. Payment of taxes:
The lessee shall be liable to pay all local, provincial
and federal taxes.

8. Special provisions:
(a) If the whole leased state land or any part of it is
required for a research institute of Agriculture,
Livestock or for public purpose, it shall be
surrendered by the lessee to the Government i.e.
Board of Revenue. The resumption order may be
made after providing reasonable opportunity of
being heard.
(b) The lessee shall be required to undertake
agriculture and livestock research and give access
to the functionaries of Agriculture, livestock and
 23 W. P. No. 20906 / 2023
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other relevant departments to observe the usage of

technology, agricultural and livestock practices,
and for research and development activities.
(c) No proprietary rights shall be granted to the lessee
in respect of the leased State land.
(d) The lessee shall furnish an undertaking to the
extent that terms and conditions shall be abided by
in letter and spirit.
(e) The lessee shall abide by the Federal and
Provincial laws relating to land, agriculture,
farming, livestock, forest, labour and other
relevant laws.

9. Cancellation and resumption:

(a) In case of misstatement or concealment of facts or
violation of any Statement of the Conditions, the
lessor shall be authorized to cancel the lease after
giving the opportunity of being heard.
(b) In case of cancellation of the lease, the state land
shall be resumed and superstructure, if any, shall
be forfeited in favour of the Government.
(c) The arrears or loan, if any, shall be recovered from
the lessee under the law for the time being in
force.
(d) In case of cancellation and resumption, no
compensation shall be granted to the lessee.

10. Compensation:
The lessee shall not, at the expiry of the lease deed, be
entitled to any compensation, whatsoever, for un-cut
and un-gathered crops, buildings, superstructures,
installation and tube wells, etc. existing on the leased
state land.

11. Dispute Resolution:

(a) The parties shall make efforts in the spirit of
cooperation and mutual trust, to resolve any
difficulties or misunderstanding.
(b) Any dispute arising out of the Agreement shall be
decided in terms of the Statement of the
Conditions notified on 20.02.2023.
 24 W. P. No. 20906 / 2023
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12. Board of Management or Committee:

(a) The Board of Management comprising of the
following is constituted to approve all the policies
or utilization of the leased state land including its
Commercial and Research use:

Government of the Designation Pakistan Designation

Punjab Reps Army
Reps:
Chief Secretary, Convener Adjutant Co-
Government of the General Convener
Punjab Pak
Army

Senior Member, Member DG Member

Board of Revenue Strategic
Punjab Projects

Member (Colonies), Member / DG Member

Board of Revenue Secretary Lands
Punjab
Secretary, Member Director Member
Government of the Lands /
Punjab, Law & CAF
Parliamentary
Affairs Department
Secretary, Member
Government of the
Punjab, Finance
Department
Secretary, Member
Government of the
Punjab, Forest,
Wildlife &
Fisheries
Department
Secretary, Member
Government of the
Punjab, Agriculture
Department
 25 W. P. No. 20906 / 2023
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Secretary, Member
Government of the
Punjab, Livestock
and Dairy
Development
Department

Secretary, Member
Government of the
Punjab, Irrigation
Department

(b) The Board of Management shall hold its meetings

quarterly.
13. Negotiation Committee:
(a) The following Committee is constituted:
(1) Chief Secretary, Government of the Chairman
Punjab
(2) Senior Member, Board of Revenue, Member
Punjab
(3) Secretary, Government of the Member
Punjab, Law & Parliamentary
Affairs Department
(4) Secretary, Government of the Member
Punjab, Finance Department
(5) Secretary, Government of the Member
Punjab, Agriculture Department
(6) Secretary, Government of the Member
Punjab, Livestock and Dairy
Development Department
(7) Secretary, Government of the Member
Punjab, Forest, Wildlife &
Fisheries Department
(8) Member, Colonies, Board of Member /
Revenue Secretary
(9) Any other co-opted member(s)

(b) The committee is empowered to:

(1) add or delete land owned by the various
departments, to the extent of one million acres,
 26 W. P. No. 20906 / 2023
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depending upon the suitability as well as

commercial potential; and
(2) sign Management Agreement with the
Pakistan Army with mutually negotiated
terms and conditions while remaining
within the framework of the Statement of the
Conditions notified on 20.02.2023.

14. District Management Committee:

(a) The committee shall facilitate for smooth
implementation of the projects:
Ser Board of Revenue Army Reps:
Reps:
(1) Deputy Commissioner Director CAF
(2) Additional Deputy Agronomist
Commissioner
(Revenue)
(3) Assistant Filed Supervisor
Commissioner (one each for 300
acres)
(4) District Head
Department concerned

IN WITNESS WHEREOF, the parties have caused the

Agreement to be signed in their respective names in two
identical counterparts, each of which shall be deemed as the
original, as of the day, month and year first above written.

FOR AND ON BEHALF FOR AND ON BEHALF

OF THE LESSOR OF THE LESSEE

Mr. Muhammad Khan Ranjha Maj Gen Shahid Nazir, HI(M)

Member (Colonies), BOR, Director General Strategic
Govt. of Punjab Projects, Pakistan Army

WITNESS: WITNESS

NABEEL JAVED, Maj Gen M. Yousaf Majoka

Senior Member, DG. Lands”
BOR, Punjab
(Emphasis Supplied)
 27 W. P. No. 20906 / 2023
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12. Subsequent to the JVA, a meeting of the Negotiating

Committee regarding CAF was held on 24.03.2023, wherein, certain
decisions were taken. Paragraphs No. 3 to 8 and decisions taken by the
Negotiating Committee being relevant are reproduced as under:-
“3. Senior Member, Board of Revenue, Punjab briefed the
participants that the Provincial Cabinet, in its meeting held on
25.02.2023, initially approved the transfer of land under the
use of various departments, i.e. 96,571-Acres out of one
million lands proposed by Pakistan Army. Director General
Strategic Project, vide letter No.7778/CAF/LANDS-1, dated
10.03.2023, requested that the following state land measuring
45,267 acres be handed over:-

Sr. District Tehsil Mouza / Department Land in Proposed

No. Rakh Acres Date of
Handing
Over
a. Bhakkar Kalloor Rakh Livestock 10,273 17 March
Kot Ghulaman 2023
b. Bhakkar Kalloor Rakh Forest 23,027 18 March
Kot Gohar 2023
Wala
c. Bhakkar Mankera Rakh Livestock 9,424 15 March
Mahni 2023
d. Khusab Khushab Chak 61 Livestock 981 17 March
MB 2023
e. Khusab Quaidabad Chak 5 Agriculture 837 18 March
MB 2023
f. Sahiwal Quaidabad Chak 13/ Prov Govt. 725 15 March
11L 2023
Total 45267

4. The Senior Member, Board of Revenue, Punjab, also

stated that as per Cabinet decision the Negotiation Committee
is empowered to do the following:
(i) Add / delete land owned by the various departments, to
the extent of one million acres, depending upon the
suitability as well as potential of corporate farming;
(ii) Sign Management Agreement with the Pakistan Army
with mutually negotiated Terms and Conditions while
remaining within the framework of the Terms and
Conditions for Corporate Farming under CPEC.
 28 W. P. No. 20906 / 2023
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5. The Board of Revenue, Punjab, vide letter No.197-

2023/338- CS.II(IX), dated 13.03.2023, requested the
Secretaries, Agriculture, L&DD, FW&F and Irrigation
Departments to furnish views about the above-detailed land of
their department.

6. The L & DD Department proposed the land for

handover under Livestock Experiments Station (LES) at Rakh
Ghulaman measuring 7316 acres out of 10273 acres, at Rakh
Mahni land measuring 7472 acres out of 9424 and at Chak 61
MB, Khushab land measuring 349 acres out of 981 acres
proposed by the Pakistan Army.

7. According to the FW & F Department, the Statement of

Conditions on Corporate Agriculture Farming (CAF) was
approved subject to federal / provincial law compliance. The
Forest Act of 1927 states that forest land can only be used for
afforestation.

8. The Agriculture Department was of the view that their

department had given its consent and focal persons had been
nominated for handing over the land to the Pakistan Army.
DECISIONS:
It was decided that requisite assets of the L&DD Department
and Agriculture Department be handed over to Pakistan Army
for the CAF initiative. It was also decided that all departments
will submit proposals for any land or assets needed for
Research and Development Projects, along with details of
objectives i.e. project name, purpose of the project, land
required for attainment of objective, funds required, and time
required to complete the project etc. The Pakistan Army will
return the required land/assets to the departments for such
research and development projects/proposals. The
departments concerned may however develop joint
management or collaborative arrangements with Pakistan
Army for the projects.

It was also decided that:-

(a) Staff/assets of departments concerned may also be part of
the project after due consultation with the department
concerned.
(b) Government of the Punjab will only pay the monthly
salary to the staff.
 29 W. P. No. 20906 / 2023
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(c) All kinds of maintenance and repair of buildings,

machinery and equipment will be carried out by Pak
Army.
(d) Forest Department land will be used only for biodiversity
preservation and afforestation in CAF Project as per law.
Secretary Forest may hold a meeting with DG Strategic
Projects, GHQ and make an arrangement for land use in
CAF Project on the analogy of MoU already signed in the
case of RUDA.”
(Emphasis supplied)

13. Later, the Colonies Department of the BOR accorded five

sanctions for leasing out State land in Districts Sahiwal, Khushab and
Bhakkar vide letters dated 29.03.2023 in favour of the Pakistan Army,
GHQ Rawalpindi, Ministry of Defence, Government of Pakistan with
respect to CAF for a period of 20 years extendable for another period of 10
years under the new SOCs notified vide impugned Notification in
compliance with the minutes of 7th meeting of the Caretaker Cabinet dated
25.02.2023 and the JVA. It was directed that the ownership would remain
with the GOP, necessary entries be incorporated in cultivation column and
the Pakistan Army / Ministry of Defence would be a lessee subject to the
condition that the land will be utilized only for the purpose it is being
leased out and would be reverted to the Colonies Department when no
longer required for the purpose or on expiry of lease period without any
compensation. It was further directed that lease deed in the prescribed
form may be executed, stamped and registered at the expense of the lessee
by incorporating the necessary terms and conditions mentioned in the new
SOCs and the JVA.

II NATURE OF GRIEVANCES

14. The titled Petition was instituted by Public Interest Law

Association of Pakistan registered under the Societies Act, 1860 through
its duly authorized Member, Mr. Ahmad Rafay Alam, Advocate. The
objects stipulated in its Memorandum of Association, inter alia, include to
promote and pursue public interest litigation in Pakistan; endeavour to
 30 W. P. No. 20906 / 2023
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protect human, public and fundamental rights; seek to provide effective

judicial protection to the weaker sections of the society; to improve
government accountability and transparency; improve governance at all
levels of government and its Departments; and uphold that the State
functionaries abide by the Rule of Law and the Constitution of the Islamic
Republic of Pakistan, 1973 (the “Constitution”). The Petitioner was
intrigued when the revelation of an arrangement of CAF between the GOP
and the Pakistan Army surfaced in a news report of the daily Dawn on
21.03.2023. Hence, the challenge was brought vis-à-vis the constitutional
and legal mandate of the Pakistan Army and the Caretaker Cabinet
regarding the purported arrangement coupled with the prayer to set aside
the Notification and all subsequent developments and pass consequential
directions under the Doctrine of Public Trust.
15. W. P. No. 23256 / 2023 was also instituted in public interest
by the Petitioner, Mr. Shahid Shahood Randhawa who is an Advocate by
profession and naturally has an interest in the preservation and protection
of Rule of Law and the Constitution. CAF arrangement was questioned on
identical lines and premises as in the titled Petition.
16. In W. P. No. 20457 / 2023, it was submitted that vide
notification dated 15.03.2023 issued by Secretary Colonies, BOR, a
livestock farm established in the year 1953-54 for dairy development and
poultry farming spread over 100 Acres of land built with public money
under the Colombo Plan and hosting a number of business projects has
been included in the land allocated to the Pakistan Army for CAF.
Accordingly, it was prayed that a direction may be passed against the
Respondents to exclude the livestock farm ‘Ghulama’s Establishment,
District Bhakkar’ from its handing over to the Pakistan Army for CAF.
17. Conversely, the concerned Respondent / Livestock and Dairy
Development Department in its report and para wise comments submitted
that the Department is running a network of livestock farms across the
Province of Punjab. The purpose of these farms is to conserve livestock
 31 W. P. No. 20906 / 2023
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genetic resources; production and propagation of superior germ plasm;

human resource development through education and capacity building of
staff and farmers; and undertaking research and development in
collaboration with academia. However, these farms are not being utilized
efficiently due to lack of access to modern technologies, inadequate
finances and shortage of skilled labour. Moreover, the farms have vast area
which is beyond actual requirement and remains underutilized. CAF can
address these challenges by introducing modern technologies and
innovative practices leading to increased productivity and improved yields.
CAF has emerged as a viable solution for achieving greater agricultural
and livestock productivity. The large scale commercial farming operations
have potential to achieve the economy of scale. Global Halal Food Market
consists of about three trillion Dollars in which Pakistan has very
negligible share of 0.1%. As such, the livestock farm has been included in
CAF arrangement contemplated by the GOP.
18. Writ Petition No. 27115 / 2023 was filed by Major (R)
Muhammad Ghulam Sarwar, former Member of the Provincial Assembly
of the Punjab against the Notification and the letter dated 10.03.2023 with
respect to CAF. As a distinguishing feature, it was submitted that on
07.12.2021, land measuring 800 Kanals out of 725 Acres was sanctioned
by the BOR in favour of the Livestock and Dairy Development
Department, GOP for the establishment of sub-campus of University of
Veterinary & Animal Sciences at Chichawatni, District Sahiwal for which
public funds had also been allocated and development work had been
initiated. However, the required entries were not made in the revenue
record in the name of the concerned Department. The said land along with
its project has been included in the land proposed to be handed over to the
Pakistan Army for CAF. Accordingly, it was prayed that the impugned
Notification and letter be set aside being contrary to notification dated
07.12.2021.
 32 W. P. No. 20906 / 2023
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19. In rebuttal of concerned Livestock and Dairy Development

Department, it was informed that a development scheme “Establishment of
sub-campus of University of Veterinary and Animal Sciences at
Chichawatni” was incorporated in Annual Development Plan 2021-22.
Consequently, the Department engaged the University of Veterinary and
Animal Sciences and directed to formulate and submit PC-1 regarding the
said development project which was submitted before PDWP for
consideration, accordingly. It was discussed by Planning and Development
Board in its PDWP meeting held on 07.09.2021. It was directed to carry
out the feasibility study of the project prior to its final approval.
Meanwhile, 100 Acres of State land out of total 725 Acres located at Chak
No. 13 / 11-L, Chichawatni was provided by the Colonies Department to
Livestock and Dairy Development, Punjab for the purpose vide letter No.
2960-2021/3880-CS(II) dated 07.12.2021. The feasibility study of the
project was completed. However, meeting was held by Planning and
Development Board regarding rationalization of development portfolio of
production sector wing, wherein, the instant scheme was capped by the
competent authority / forum vide letter No. 8(2)/AC(Food)P&D/2022-23
dated 13.02.2023. It was apprised that although the funds were allocated
during the current financial year in the Annual Development Plan yet the
same were not released due to the present unapproved status of the project.
Hence, 100 Acres of land were still vacant and no development work or
activities were in progress at the site. Consequently, the said land was at
the disposal of the Department for further consideration and can be handed
over by the GOP through the BOR to any person or Department or entity
of the government under the policy of the BOR.

20. W. P. No. 28283 / 2023 was pressed by 167 (one hundred and
sixty seven) Petitioners impugning the Notification and Letter dated
15.03.2023 for transferring of land to the Pakistan Army. Additionally, it
was stated that the dispute relates to sandy land which consists of sand
dunes and banjar State land in District Bhakkar where cultivation is
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difficult. In order to develop land, various schemes were introduced by the

Thal Development Authority (the “TDA”) and lands were taken over
under the provisions of Thal Development Act, 1949 which are liable to be
resumed to the land owners in accordance with the provisions of Section
21 thereof. In the process of development of land, Rakhs were created,
namely, Rakh Ghulaman and Rakh Qasor in Tehsil Klur Kot, District
Bhakkar. Rakh signifies an area reserved for a special purpose. Some area
within the said Rakhs was reserved for specific purpose of dairy items and
livestock to cater the needs of the local inhabitants. However, the excess
area was given to various persons including the Petitioners for breaking the
same and making it neuter. Certain facilities were provided including the
creation of Chaks. The Petitioners have been cultivating the aforesaid area
since their forefathers, made it cultivable and are regularly paying
governmental dues. Various schemes were formulated for granting
proprietary rights to the persons in possession of State land but the
Petitioners have not been granted proprietary rights till today, perhaps for
the reason that Rakhs area was reserved for a specific purpose of dairy and
livestock. The Petitioners claimed that the area in excess of specified
purpose of Rakhs under possession of the Petitioners is liable to automatic
reversion to the State and as such, they are entitled to get proprietary rights
in accordance with Notification dated 19.03.1995. Notwithstanding the
same, pending determination of the claim of proprietary rights, the
Petitioners are continuing possession over the land. Lately, the
Respondents included the land under lawful possession of the Petitioners
and specified for Rakhs in the land proposed for CAF to the Pakistan Army
and are being threatened with dispossession.

21. The stance of the concerned Respondents was that according

to instructions contained in Order No. Thal/LHR/G-104/2261-68 dated
24.05.1971 issued by the Administrator, TDA, undisposed agricultural
land of the TDA was placed under the control of the Colonies Department.
Land measuring 10,273 Acres is under the possession of Rakh Ghulaman
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Livestock & Dairy Development Farm which was managed by the

Livestock & Dairy Development Department. State land is owned by the
GOP and allotted under the policy framed by it. There is no policy for
lease of State land to any individual and State land is disposed of through
restricted auction under Temporary Cultivation Lease Scheme (the
“TCLS”). The Petitioners cannot become tenants on the basis of mere
possession. Proprietary rights are conferred to those persons who hold
legitimate lease under the TCLS issued from time to time by the Colonies
Department and subsequently, held entitled for grant of proprietary rights
in accordance with the terms and conditions of applicable notifications
issued from time to time including Notification No. 1289-1995/843-CL-I,
dated 19.03.1995. However, the Petitioners are not lease holders under any
TCLS and as such, cannot be granted proprietary rights and have no claim
over the land in question. Hence, the Colonies Department as custodian of
State land in terms of the Punjab Government Rules of Business, 2011 (the
“Rules, 2011”) lawfully included land in question for CAF for the Pakistan
Army in the light of new SOCs issued with the approval of the GOP.
However, during arguments, learned Assistant Advocate General conceded
that the Petitioners are Patadars of Livestock & Dairy Development
Department for animal breeding.

III. CONTENTIONS OF THE PETITIONERS

22. Mr. Fahad Malik led the arguments. Addressing the objection
of maintainability, he submitted that Petitioner (Public Interest Law
Association of Pakistan) is a registered society under the Societies Act,
1860 and the objects of its Memorandum of Association empower it to
institute the titled Petition in public interest. The Petitioner has a
remarkable record in this regard and has successfully challenged the State
excesses in projects like the Ravi Riverfront City formulated under the
Ravi Urban Development Project, as well as the elevated Expressway
Lahore Project. The impugned arrangement relates to the lease of more
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than one million Acres of public property and the Petitioner has initiated
the instant proceedings as pro bono publico to ensure that public property
is dealt with strictly in accordance with law since not doing so would result
in grave violations of the fundamental rights of the people of Pakistan in
general, and the citizens of Punjab in particular, including, but not limited
to, violations of Articles 9, 10A, 14, 18, 19A, 24, 25, 37 and 38 of the
Constitution.
23. The jurisprudence regarding such cases relating to the mode
and manner in which public property is to be dealt with has received
liberal interpretation over the years. He quoted paragraph No. 28 from
Habibullah Energy Limited1 case to substantiate his point, wherein, the
Supreme Court of Pakistan after going through several judgments passed
by the constitutional Courts in Pakistan and India concluded as follows:
“An overview of the judgments reproduced or referred to
herein above leaves little room for doubt that it is now a well-
settled principle of law that all public functionaries must
exercise public authority, especially while dealing with the
public property, public funds or assets in a fair, just,
transparent and reasonable manner, untainted by mala fide
without discrimination and in accordance with law, keeping in
view the Constitutional Rights of the Citizens. This would
hold true even in the absence of any specific statutory
provisions setting forth the process in this behalf. Therefore, it
is not really relevant whether the transaction in question was
governed by the Ordinance, 2000 or the-Rules, 2004 or
neither. It is an equally well settled principle of law that such
actions of public functionaries are always subject to Judicial
Review. No doubt, while exercising its jurisdiction, the
Superior Courts neither sit in appeal over the administrative
actions nor interfere on account of inconsequential deviations,
as has been observed in Dr. Akhtar Hassan Khan's case
(supra). However, where the administrative authority acts in a
discriminatory manner and action fails the test of
reasonableness, transparency and/or is otherwise unjust and
unfair or suffer from mala fide, the Courts not only are vested
with the jurisdiction to set aside such action but any failure in
such an eventuality to exercise the power of Judicial Review,

1
Habibullah Energy Limited and another v. WAPDA through Chairman and others
(PLD 2014 Supreme Court 47)
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when invoked, would make the Court a party to such

unreasonable, unfair, mala fide and illegal action.”

24. He emphasized that Atta Ullah Khan2 case extensively

reviewed several judgments passed by the Superior Courts with reference
to the principles applicable in determining maintainability of a Petition
filed as pro bono publico with reference to the disposal of public property
by the State institutions. The following excerpts detail the main findings in
the case:
“15. It is settled on good authority that in matters pertaining to
public interest litigation (also known as "PIL") the rule of
"standing" or "locus standi" or "aggrieved person" has
received a liberal interpretation over the years and any
person/citizen having "sufficient interest" (in the context of
larger public interest) can maintain a petition and pass as an
"aggrieved person" under Article, 199 of the Constitution,
subject to satisfying other requirements of the said Article.

16. Any citizen or person (part of the public) has "sufficient

interest" and is, therefore, an aggrieved person under Article
199 of the Constitution, if public property is being acquired,
held, used, or disposed of by public functionaries in violation
of the law. Public functionaries as trustees of the people,
cannot have any personal interest in any public property,
therefore, if there is any abuse of trust or violation of law, it
qualifies any member of the general public as an "aggrieved
person" with the right to invoke the constitutional jurisdiction
of this Court, subject to fulfilling other requirements of
Article 199.

17. The significance of public interest litigation has special

importance in our country. Even after 63 years of
Independence, we still have fledgling public institutions
because unfortunately they could not be nurtured under the
shade of democracy due to repeated usurpation of our
political space by unelected forces. Lack of democracy over
years has taken a toll on our institutions. Absence of basic
democratic values and democratic culture within public
institutions threatens rule of law and due process breeding
unchecked corruption. Disappointed with the undemocratic
mindset of public functionaries, people have time and again

2
Atta Ullah Khan Malik v. Federation of Government of Pakistan through President of
Pakistan and 3 others (2010 PLD Lahore 605)
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resorted to courts for judicial review through public interest

litigation.

18. It is essential for the public functionaries to understand the

importance and meaning of a democratic welfare state. "What
is democracy? ...It rests on two bases. The first is the
sovereignty of the people. This sovereignty is exercised in
free elections, held on regular basis, in which the people
choose their representatives, which in turn represent their
views. This aspect of democracy is manifested in majority
rule and in the centrality of the legislative body through which
the people's representatives act. This is the formal aspect of
democracy. It is of central importance, since without it the
regime is not democratic...The second aspect of democracy is
reflected in the rule of values (other than the value of majority
rule) that characterize democracy. The most important of
these values are separation of powers, the rule of law, judicial
independence, human rights, and basic principles that reflect
yet other values (such as morality and justice), social
objectives (such as the public peace and security), and
appropriate ways of behaviour (reasonableness good faith).
This aspect of democracy is the rule of democratic values.
This is a substantive aspect of democracy. It too is of central
importance. Without it the regime is not democratic.

21. Public Interest Litigation is therefore a judicial tool to

help resurrect or jump start public institutions on the road to
healthy democratic values and traditions. Unless substantive
democracy takes root in our public administration and our
institutions flourish with democratic maturity, court dockets
will continue to be filled with public interest litigation.
However, the courts will continue to redress public grievance,
with the hope that public institutions will soon come of age.

22. The real test, therefore, in Public Interest Litigation is the

subject-matter of the petition or the abuse of public trust
complained of. Once the court assesses that breach of trust
and violation of law by a public institution has taken place,
the court must. immediately proceed further to rectify the
breach, the identity or antecedents of the petitioner pale into
insignificance. If, on the other hand, the court finds the
petition to be without merit, camouflaged to foster personal
disputes, said petition is to be thrown out. Public Interest
Litigation should not be allowed to be "Publicity Interest
Litigation" or "Private Interest Litigation" or "Politics Interest
Litigation". Reliance is placed on Ashok Kumar Pandey v.
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State of West Bengal and others (AIR 2004 SC 280).

However, if the court is convinced that violation of law has
taken place pertaining to public property or public interest, it
should matter less who brought the complaint before the
Court. Locus standi in such matters stands diluted carrying
only cosmetic significance. This is also so because, Public
Interest Litigation converts adversarial nature of the
proceedings into inquisitorial proceedings. The Court, as
guardian of public interest investigates to decipher the truth.
This unique remedy is the hallmark of a welfare democratic
State, which rests on the principles of social and economic
justice enshrined in our Constitution.

25. Right to information is another corrective tool, which

allows public access to the working and decision making of
the public authorities. It opens the working of public
administration to public scrutiny. This necessitates transparent
and structured exercise of discretion by the public
functionaries. Article 19A empowers the civil society of this
country to seek information from public institutions and hold
them answerable. Article 19A, therefore, enthuses fresh life
into Public Interest Litigation.

26. The rules of standing/locus standi have a close connection

and nexus with the rule of law. Closing the doors of the court
on a petitioner who warns of a public institution's unlawful
action means giving that public body a free hand to act
without fear of judicial review.”

25. In Arshad Waheed3 case, this Court held that even though the
Petition before the Court may not have been otherwise maintainable on
merits, if violations in the disposal of public property and breach of public
trust by public functionaries have been observed, this Court is obligated to
preserve, protect and defend the Constitution and in the circumstances, do
right with all manner of people, without fear and favour.
“36. Non-maintainability of the petition and the power of this
Court to proceed further
Non-maintainability of the petition on merits does not oust the
jurisdiction of this Court to address other violations of public
law which have come to fore during the course of arguments
on the petition and after the perusal of the record. Stark

3
Arshad Waheed v. Province of Punjab and others (PLD 2010 Lahore 510)
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violations in the disposal and transfer of public property and

heartless breach of public trust by the public functionaries
(public trustees) cannot be overlooked. This Court is under
oath to preserve, protect and defend the Constitution and in all
circumstances do right to all manner of people without fear
and favour. For the Court to dismiss the petition on the
ground of maintainability alone would not only result in
failure of justice, it would also make the Court and its
constitutional jurisdiction hostage to technicalities, which
cannot be allowed. Once grave violation of law and
transparency in the disposal/transfer of public property comes
before this court, it transforms the lis into public interest
litigation conferring inquisitorial jurisdiction on this Court.
No constitutional court can shy away from fully discharging
this responsibility. It is useful here to revisit Article
199(1)(a)(ii) of the Constitution, which provides that on as
application of the aggrieved person, the court can make an
order "declaring that any act done or proceedings taken within
the territorial jurisdiction of the Court have been done or
taken without lawful authority and is of no legal affect".
Again, under Article 199(1)(c) this Court can "make an order
giving such directions to any person" within territorial
jurisdiction of the Court for enforcement of fundamental
rights conferred under the Constitution. These are loud
reminders of the jurisdictional expanse enjoyed by this
Constitutional Court. This Court is, therefore, at all times
equipped with the jurisdiction to probe into any public wrong
affecting public at large, when the same has come before it
through a petition. It does not matter if the said wrong has
been specifically agitated or has coincidentally surfaced
during the proceedings. This jurisdiction should not be
confused with suo motu jurisdiction exercised by the august
Supreme Court of Pakistan under Article 184 of the
Constitution, as in the present case jurisdiction of this court
has been invoked through a petition placed before the Court
by an aggrieved party. I, therefore, proceed further to assess if
the Joint Venture Agreement entered into between PUNJMIN
and ERPL passes the test of law and transparency.”

26. Ch. Munir Ahmad case4 was also referred which deals with
the allotment of State land leased to the Pakistan Army under the
Colonization Act.

4
Ch. Munir Ahmad v. Government of Punjab through Chief Secretary, Punjab Lahore
and others (PLD 2022 Lahore 384)
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“6. …Normally a person is considered as aggrieved

person whose vital interest is likely to be effected by
any discriminative perverse order/action of the
executive authority and he may, in absence of any other
swift remedy, approach this Court under Article 199 of
the Constitution for redressal of the grievance of the
citizen in rem. Any citizen being part of society have
interest in public assets/ property which is being
disposed of arbitrarily or in violation of law/policy by
public functionaries, he owes a bounded obligation to
agitate the issue and also to inform the legally
established fora to take judicial review of such
executive order on the touchstone of the
constitutionality/legality of said order of the executive,
as such, the petitioner who is a citizen of Pakistan is
considered as an aggrieved person and he may assail
the adverse order of the authority. Even otherwise once
sufficient tangible, affirmative information or record is
brought before the constitutional Courts who are
mighty guardians of fundamental rights of the citizens
as well as that of the public assets are placed under
unalienable sacred bounded duty to eliminate the
illegality and perversity on the order of the executive
authority.”

27. Learned counsel argued that the perusal of the above

judgements reflects that the concept of the ‘aggrieved person’ and ‘locus
standi’ in matters related to sale, lease and disposal of public land are to be
given an expansive and purposive meaning especially when violations of
law have occurred in the impugned transactions. The contention of the
Respondents that the Petitioner being a juristic person and not a natural
person is estopped from invoking the constitutional jurisdiction of this
Court is absolutely untenable since the stance, if agreed to, would mean
that no organization or association of persons will ever be able to invoke
the extraordinary constitutional jurisdiction of this Court for enforcement
of Chapter 1, Part II of the Constitution which would in effect make host
of judgments pronounced by the High Courts over time as per incuriam.
The opposing argument essentially entails that despite flagrant violations
of the rights of people, such as, their right to life, property and treatment in
a non-discriminatory manner, at the hands of the State, the Court would be
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limbless if the same excesses are being highlighted by a consortium rather

than an individual person. Hence, such an argument has no place in the
constitutional scheme of Pakistan and is diametrically opposed to
established principles of natural justice.
28. Elaborating on the scope of Judicial Review in the instant
matter, it was contended that powers of Judicial Review available with this
Court on the matters enumerated herein must not be exercised on the
standard of Statutes. This is so because the Notification emanates from an
executive action and therefore, is liable to be judged on the same
benchmark as any other executive action, because the same has not gone
through the rigorous accountability of the elected representatives of the
people. This Court must apply the principles applicable to Judicial Review
of executive actions in relation to the lease of public property as gleaned
from the cited Judgments, inter alia, that public property is to be dealt with
in a fair, just, transparent and reasonable manner, untainted by mala fide
and without discrimination; that public property cannot be dealt with in a
manner that allows for governmental representatives to make decisions
regarding the same behind closed doors and with specific entities,
defeating the concept of fair competition; and that infractions, if found, in
the process of disposal (including lease) of public property cannot be
condoned on any account, including, but not limited to, the claim that the
same have resulted in public benefit, therefore, the idea of a ‘beneficial’
deviation from core fiduciary duties of undivided loyalty, prudence and
reasonableness, which the State functionaries owe to the people of
Pakistan must be rejected in the strongest terms. Thus, once the Court
assesses that breach of trust and violation of law by a public institution
have taken place, the Court must immediately proceed further to rectify
such breach leaving behind the identity or antecedents of the Petitioner.
Accordingly, it was urged that objections qua maintainability be discarded.
29. On merits, it was contended that the Elections Act, 2017 (the
“Elections Act”) codified the prevalent judicial pronouncements on the
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scope and extent of powers of a caretaker government. In order to fully

grasp the provision of the Elections Act, it is necessary to peruse the said
Judgments to identify the spirit and intent of the legislation which is that
any caretaker government is severely limited in the performance of its
functions and cannot exercise powers like a democratically elected
government since its sole mandate is to assist the Election Commission of
Pakistan in ensuring the conduct of free, fair and honest elections.
Reference in this regard was made to some relevant excerpts from the
Judgments rendered in this context. The Supreme Court of Pakistan in
Khawaja Muhammad Asif5 case has observed as under.
“13. Essentially, according to the settled and accepted norms/
practice, the Caretaker Government (Prime Minister and
Cabinet) is required to perform its functions to attend to the
day-to-day matters, which are necessary to run the affairs of
the State and also to watch the national interests, etc., in any
eventuality in absence of an elected Government, and such
Government is not authorized to make decisions/appointments
having effect on the working/policies of the future
Government, which is likely to take over after the elections.
Apart from providing assistance to the Election Commission
in organizing free, fair, honest and just elections in the
country, it is not vested with the authority to take decisions
concerning the affairs of the Government, which are bound to
pre-empt the scope and sphere of activity, powers and
jurisdiction of an elected Government. A Caretaker
Government possesses limited powers and authority
particularly in view of the fact that when it is appointed, there
is no National Assembly in place and thus the all important
aspect of accountability is absent. Further, the exercise of
complete powers by the Caretaker Government goes against
the doctrine of separation of powers which is the lifeline of
any vibrant democracy. As noted earlier, the absence of
legislature results in lack of checks and balances. The
Caretaker Government also lacks the mandate of the majority
of people, which is to be acquired by elected government
through the general elections. Therefore, if a Caretaker
Government is allowed to exercise complete powers available
to an elected Government, it may make an attempt to continue
to remain in office for a longer period of time or may take

5
Khawaja Muhammad Asif v. Federation of Pakistan and others (2013 SCMR 1205)
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such decisions which may cause problems for the future

elected government.”

30. A cursory view of the above reflects that the Supreme Court
has restricted the role of a caretaker government to routine, day to day
matters and not much beyond that. In fact, in Abdul Rauf6 case, the Apex
Court held that even if a process was initiated by an elected government,
the caretaker government cannot finalize the same, if material steps to do
so are to be taken by the caretaker government.
“7. There is no denial of the fact that the process of
recruitment may have been initiated by way of publication of
advertisement before the Caretaker Government was put in
place. However, all material steps including processing of
applications, tests (if any) interviews (if any) and
recommendations by the Recruitment Committee were taken
during the Caretaker Government and the elected Government
was practically presented with a fait accompli. The mandate
of a Caretaker Government is to hold the mantle in the
interregnum when the term of the sitting Government has
expired and the new Government is yet to take charge. A
caretaker Government is empowered only to carry out day to
day affairs of the State with the help of available
machinery/resources/ manpower. It cannot take policy
decisions and permanent measures including recruitments,
making appointments, transfers and postings of Government
Servants. It must leave such matters to the elected
Government which takes charge as a result of elections. It was
in this context that in a case reported as Khawaja Muhammad
Asif v. Federation of Pakistan and others (supra) held that a
Caretaker Government/Cabinet has to confine itself to
running day to day administration of the State and to take
decisions required for orderly running the affairs of the State.
However, decisions having far reaching consequences should
only be taken by the elected government having the mandate
to perform such functions as are required of it in exercise of
powers conferred by the Constitution….”

31. The above Judgments received subsequent statutory cover

under the Elections Act, Section 230 whereof is to be read in the light of
the afore-noted Judgments. As such, it can be safely ascertained that the

6
Government of Balochistan through Secretary Services and General Administration
Department and others v. Abdul Rauf and 6 others (2021 PLC (C.S.) 519)
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powers of a caretaker government are restricted to provide assistance to the

Election Commission in organizing free, fair and just elections, to perform
functions only to the extent that is necessary for running day to day affairs
of the government and the functions so performed must be routine, non-
controversial and urgent in nature. A caretaker government must restrict
itself from taking an action or measure of permanent and irreversible
nature, thereby, preempting the powers and jurisdiction of the future
elected government.
32. Various aspects of the impugned transaction show that all the
actions are neither routine, urgent or even non-controversial nor do they
relate to day to day affairs, necessary for running the functions of the
government and are instead of a permanent and irreversible nature, insofar
as the powers of not just the next elected government, but at least of the
next four (4) elected governments (since the lease is for 20 years
extendable by another 10 years) were impaired. In light of the above, any
transaction relating to public policy which violates the above principles of
transparency, fairness, justice and reasonableness would be violative of the
fundamental rights of the citizens of Pakistan, including but not limited to,
their right to life, property, equality and a non-discriminatory treatment, as
guaranteed to them under the Constitution and any decision thereon by a
caretaker government would run contrary to the fundamentals of
democracy enshrined in our Constitution.
33. While elaborating scope of the new SOCs, it was stated that
the new SOCs generally create terms and conditions on which State land is
to be granted to public and private entities for the purpose of ‘agriculture
research and farming’, ‘import substitution’, ‘food security’,
‘standardization and maximization of seed productivity’, ‘livestock
research’, ‘breeding and farming’ and for any other purpose relating to the
agricultural or livestock sectors. The new SOCs allow for grant of State
land on lease through open auction and through single source, provide a
procedure of determining rent to be paid and specify a lease period of 20
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years, extendable up to a maximum of 30 years. Section 10(2) of the

Colonization Act stipulates that the GOP (which means the elected
government) may issue SOCs on which it is willing to grant land to
tenants. Thus, in the light of Mustafa Impex7 case, the GOP is to be
unequivocally understood as the whole Elected Cabinet, including the
Chief Minister. Hence, it is clear that the impugned transaction has not
been approved by the GOP as the same was beyond the mandate and scope
of the Caretaker Government.
34. The new SOCs were approved by the Caretaker Cabinet
which was not empowered to approve and notify any such instrument,
given the scope and magnitude of the provisions contained therein since
formulating a policy or entering into arrangements regarding ‘agriculture
research and farming’, ‘import substitution’, ‘food security’,
‘standardization and maximization of seed productivity’, ‘livestock
research’, ‘breeding and farming’, and for any other purpose relating to the
agricultural or livestock sectors does not fall under the ‘day to day’ affairs.
The new SOCs deal with a subject which is not ‘routine’ since admittedly
this is the first instance that such new SOCs are being issued on single
source basis. The new SOCs create a situation where any lease granted
thereunder cannot be reversed by the future elected government. The new
SOCs deals with an important, but not urgent, matter of public importance
since the facts hereinabove reflect that the previous Elected Government
was proceeding with caution in the matter by ensuring to take input from
all concerned stakeholders and for this purpose was willing to let the
original SOCs remain pending for over two years. The new SOCs make a
policy that preempts the exercise of authority by the future elected
government. The secrecy and undue haste through which the new SOCs
were adopted in breach of explicit constitutional and legal mandate depict
that the same are also controversial especially when they deprive at least

7
Messrs Mustafa Impex, Karachi and others. v. The Government of Pakistan through
Secretary Finance, Islamabad and others (PLD 2016 SC 808)
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four future elected governments from exercising any authority with

reference to leases granted thereunder in a non-reversible manner.
Therefore, it is established in unambiguous terms that the new SOCs could
not have been issued by the incumbent Caretaker Cabinet.
35. Without prejudice to the fact that in view of the Abdul Rauf
case (supra), a process initiated by the elected government cannot be
completed by the caretaker government, if it requires substantive steps
(such as reviewing changes to the same), even otherwise, there was no
unqualified and unconditional approval of the new SOCs notified by the
Elected Government vide the Notification. This is on account of the fact
that the approval ‘in principle’ given by the Elected Cabinet dated
28.02.2022 was conditional in nature and was subject to its placement
before the specifically constituted Ministerial Committee. The perusal of
the above decision reflects that the Elected Cabinet had referred the matter
to the Ministerial Committee comprising both, elected representatives as
well as members of the civil bureaucracy. The said Ministerial Committee
was to review the original SOCs placed before the Elected Cabinet in its
51st meeting held on 28.02.2022 and give its comments thereon. Any
comments, changes or suggestions regarding the original SOCs by the
Ministerial Committee would have required approval from the Elected
Cabinet.
36. Therefore, in light of the Mustafa Impex case (supra) any
changes in the original SOCs by the Ministerial Committee required an
approval from the Elected Cabinet before issuance of the Notification by
the GOP under Section 10(2) of the Colonization Act which is admittedly
absent which fact alone is sufficient to declare the impugned Notification
as unlawful.
37. Without prejudice to the above, and even otherwise, the new
SOCs approved by the Caretaker Cabinet are materially different from the
original SOCs conditionally approved ‘in principle’ by the Elected
Cabinet. Further, the new SOCs as approved by the Caretaker Cabinet are
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also different from the new SOCs notified by the BOR. A comparison of
the material differences which directly go to the heart of the principles of
transparency, fairness and non-discrimination between the original SOCs
placed before the Elected Cabinet in its 51st meeting and the new SOCs as
presented before the Caretaker Cabinet (having never been seen by the
Elected Cabinet) were highlighted as follows:-

New SOCs Original SOCs Material Difference

Objectives Purpose of The Elected Cabinet only
included Lease was considered the SOCs to
agriculture import the extent of the
research and substitution, agriculture sector.
farming, import food security, However, the Caretaker
substitution, food standardization Cabinet have materially
security, and expanded the scope to
standardization maximization include the livestock
and maximization of seed sector as well.
of seed productivity,
productivity, any other
breeding and purpose related
farming, and for to the
any other purpose agriculture
relating to the sector.
agriculture or
livestock sector
Term of lease to Term of a A material change was
be granted was tenancy was made by enlarging the
for 20 years, fixed as twenty period of tenancy from
extendable by years which the Original SOCs.
another 10 years may be Furthermore, the new
subject to District renewed based SOCs made extension as
Collector’s on of right if the new SOCs
satisfaction that recommendatio were complied with by
the new SOCs ns of the the lessee, whereas the
have been met. District Original SOCs gave a
Collector and discretion to the BOR.
the BOR
subject to
satisfactory
performance.
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Lease may be The only form This perhaps is the most

through open of lease material change to the
auction or recognized was original SOCs vis-à-vis
through single a lease through the new SOCs and
source without open auction completely changes the
any transparent and to private scope, nature, and process
open bidding to entities. of leases under the new
certain noted SOCs. This also
governmental introduces conditions
(federal, which are non-
provincial, local transparent,
and foreign) discriminatory towards
entities and State private entities, and
Owned which deny the right to
Enterprises. information of the public
regarding public property
since decisions (as have
been made in the instant
matter) regarding disposal
of public property can
now be taken without any
public participation,
disclosure and
knowledge.
Envisages rent for Only envisages This too is a material
open auction rental income change since it changes
leases, whereas to be earned by the potential of the GOP
profit sharing the GOP with to generate revenue from
model for single no expense, the use of public land by
source. investment or other entities. By
equity of its allowing for a profit
own. sharing model, this
actually creates room for
loss being suffered by
grant of leases of State
land to other government
entities which can in no
manner be deemed
prudent.

No size of a Tenancies were This is a material change

tenancy was to be for five since the original SOCs
provided. hundred acres had some indication of
or above. the size of tenancies to be
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granted. On the other

hand, the new SOCs
presented to the Caretaker
Cabinet contained no
ceiling, meaning thereby,
that an inordinate amount
of land may be provided
thereunder. This is
precisely why a JVA for
up to one million acres of
land has been envisaged.

38. Furthermore, there were two key material differences inter se

the new SOCs approved by the Caretaker Cabinet and later notified by the
BOR, which are as under:-

New SOCs New SOCs Remarks

notified by approved by
BOR Caretaker
Cabinet
No local Required a foreign The change was
partnership was company to enter admittedly made by the
required for a into a JV with a Caretaker Cabinet,
foreign local partner. clearly discounting the
company. claim that the new
SOCs as notified were
approved by the
Elected Cabinet.
Profit share of Profit share of the The change was
the GOP in GOP in (non- admittedly made by the
(non- transparent) single Caretaker Cabinet,
transparent) source lease not to clearly discounting the
single source be below 50%. claim that the new
lease not to be SOCs as notified were
below 33% approved by the
Elected Cabinet and
reducing the minimum
revenue to be earned
therefrom.

39. Accordingly, it was stressed that a perusal of the above tables

reflects that there were material changes in the original SOCs as seen by
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the Elected Cabinet, as presented before the Caretaker Cabinet and as

approved by the Caretaker Cabinet without following any documented
process. Consequently, the Caretaker Cabinet has clearly ventured beyond
its constitutional and statutory powers and therefore, the Notification and
any other arrangements resulting from it are liable to be struck down on
this score alone. Not only was the Caretaker Cabinet barred from
completing a process left incomplete by the Elected Cabinet, they were,
even otherwise, not competent to make material changes irreversible by
the future elected government.
40. Touching upon the mystery relating to the Ministerial
Committee’s meeting, learned counsel recalled that during the course of
proceedings vide order dated 09.05.2023, this Court inter alia, posed the
following query to bridge the gap between the conditional approval of the
original SOCs and the new SOCs:-
“The proceedings of Ministerial Committee as per decision of
the Provincial Cabinet on Agenda No. 19 regarding the
original SOCs taken in its 51st meeting dated 28.02.2022.”

However, vide additional reply, the concerned Respondents submitted the

following in response to the above query:-
“After principle approval of the Provincial Cabinet on
28.02.2022, a Note for Minister for Law was initiated for
obtaining schedule of the meeting of the Ministerial
Committee (Annex A). A Notice for the meeting dated
14.10.2022, was issued on 13.10.2022 (Annex B). A copy of
attendance sheet is placed at Annex C. The draft statement of
conditions was discussed in the meeting and Senior Member
Board of Revenue was directed to put up the amended
Statements of Conditions (SOCs) before the Provincial
Cabinet, however, formal minutes were not issued. This
very fact was mentioned in a Summary for the Cabinet
(Annex D).”
(Emphasis Supplied)

41. In this context, it was submitted that the said response reflects
that no minutes of the Ministerial Committee’s meeting, if any held, were
recorded. Without prejudice to the fact that this is an egregious violation of
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Rules 22, 28 & 29 of the Rules, 2011, the attendance sheet appended with
the Additional Reply which ostensibly reflects that the meeting of the
Ministerial Committee was indeed held does not reflect a meeting of the
Ministerial Committee formed by the Elected Cabinet vide its decision
dated 28.02.2022 on Agenda Item No. 19. This is so because only one
member out of the four Ministers identified by the Elected Cabinet in its
decision dated 28.02.2022 attended the meeting. Therefore, even if it is
assumed that the attendance sheet is authentic, it does not reflect that a
meeting of the Ministerial Committee, as envisaged by the Elected
Cabinet, had been held.
42. The counter stance of the Respondents placing reliance on
Rules 28(8), 28(9) and 28(14) of the Rules, 2011, stating that the
attendance by the Secretaries of the concerned Departments may be treated
as substitute of the absentee Ministers is untenable because this matter was
not so urgent for the Secretaries to not wait for the return of their
respective Ministers since the matter had already remained pending for
several months. The meeting, if at all, clearly took place in an
unreasonable haste, since a matter that had remained pending for over two
years, suddenly required that a meeting thereof be held on one day notice
(the notice of the meeting was issued on 13.10.2022, whereas, the meeting
was ostensibly held on 14.10.2022), violating the prescribed procedure
under the Rules, 2011. Secondly, in any event, the Secretaries were
obligated to submit the matter and the relevant records under Rule 28(14)
of the Rules, 2011 before the concerned Minister once the Minister
became available. That is, the final approval of the items discussed in the
meeting remained subject to the approval by the concerned Ministers,
regardless of their absence from the meeting. However, there is nothing on
record to reflect that such mandatory provisions were followed. In fact,
admittedly no minutes were issued for the meeting and so, the question of
the Minister approving the matters discussed in the meeting does not even
arise. Consequently, the reliance by the Respondents on the
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aforementioned Rules to substitute the attendance of the missing Ministers

is misplaced at best and a disingenuous attempt to mislead this Court, at
worst. This submission is made notwithstanding the fact that the Elected
Cabinet had specifically nominated both the Ministers and Secretaries of
the concerned Departments, separately. The Ministers, in this scenario,
would be deemed to personally constitute as members of the Ministerial
Committee and could not have been replaced in their stead.
43. There is nothing on record to establish that any changes to the
original SOCs reflected in paragraph 3.3 of the minutes of the 4th meeting
of the Caretaker Cabinet held on 09.02.2023, were introduced in the tenure
of the Elected Cabinet. Rather, the same appear to have been introduced by
the concerned Departments of their own accord. Therefore, the changes to
the original SOCs being material in nature are unlawful and liable to be
struck down, for lacking the necessary approval from the previous Elected
Cabinet.
44. Hence, there is no doubt about the fact that the new SOCs that
provided the ground for the JVA were rooted in the action of the Caretaker
Government, rather than the Elected Government which contradicts the
very premise of the Respondents that the JVA is in furtherance of an
exercise taken by the Elected Government. Even otherwise, it appears that
the Caretaker Government materially changed the original SOCs precisely
to accommodate the request made by the DGSP vide letter dated
08.02.2023, i.e. one day before the new SOCs were approved by the
Caretaker Cabinet. As the Caretaker Government had no authority to make
a material amendment of this sort to the original SOCs, the JVA must be
declared unlawful and void ab initio.
45. It was next contented that approval and issuance of the
Notification of the new SOCs by the Governor of Punjab was unlawful.
Section 10(2) of the Colonization Act provides that the Provincial
Government may issue SOCs on which it is willing to grant land in a
colony to tenants. The Notification, on the other hand, has been issued by
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the Governor of Punjab, as is evident from the recital thereto. The power to
issue SOCs vests exclusively with the GOP. However, the Notification is
stated to have been issued by the Governor of the Punjab and is, therefore,
not in accordance with the mandate of the Colonization Act. The
constitutional Courts of Pakistan have repeatedly held that when a law
requires a thing to be done in a particular manner, it should be done in that
manner, or not done at all. It is only the GOP which, needless to say means
the Cabinet as held in Mustafa Impex case (supra) could have issued the
Notification for the new SOCs under Section 10 of the Colonization Act.
Therefore, the new SOCs purported to have been issued by the Governor
of the Punjab are illegal and ultra vires the Colonization Act, hence, are
liable to be declared as illegal and unconstitutional forthwith.
46. Questioning the validity of the JVA, it was contended that the
JVA has been executed between the Governor of the Punjab and the
Pakistan Army as a consequence of the newly added provision for ‘single
source lease’ in the new SOCs. This is a unique document, inasmuch as it
contains no reference to any rent or the other processes required to be
followed under the Colonization Act and the new SOCs. The JVA is,
therefore, also illegal, void-ab-initio and liable to be struck down.
47. Highlighting the grounds of attack to the JVA, learned
counsel contented that firstly, as with the issuance of the new SOCs
themselves (even if it is assumed, without conceding, that the same have
been validly issued), the JVA itself deprives at least four future elected
governments from exercising rights upon any lands granted thereunder
since there is no provision for a ‘no-cause’ termination contained therein,
and the same can only be terminated if the lessee, i.e. the Pakistan Army,
contravenes the provisions of the new SOCs. The claim of the
Respondents that the transaction being between two governments would
always mean that it is reversible, is untenable as the Pakistan Army (or the
Federal Government, as the case should be, and the President, in whose
name the JVA could have been) is not an attached or associated entity of
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the GOP. The latter has no influence on the same and cannot assume that
any request for resumption of land without meeting the conditions of
resumption laid out under the new SOCs and the JVA will be honoured.
This is even otherwise without prejudice to the fact that the new SOCs
only provide for a cancellation of lease if the lessee violates the same itself
or any provincial or federal law and even Clause 8 of the JVA only allows
for resumption in certain circumstances and does not give any power to the
future elected government to cancel the lease simpliciter. This under no
stretch of the imagination can be termed as reversible.
48. Moreover, the provisions of the JVA contradict the provisions
of the Colonization Act and the new SOCs themselves. Section 10(3) of
the Colonization Act stipulates that consequent to issuance of SOCs, the
Collector may, subject to the control of the BOR, allot land to any person,
to be held subject to such SOCs issued by the GOP, as the Collector may
by written order declare to be applicable to the case. No written order has
been placed before the Court, wherein, the Collector may have identified
any land that is to be leased out under the terms of the new SOCs. Despite
this, hundreds of undetermined and unspecified Acres of land is being
leased out to the Pakistan Army under the JVA.
49. The above is without prejudice to the fact that nothing has
been placed on record to reflect that some consultative or decision-making
process was followed either by the FOP under whom the Pakistan Army
operates or by the Pakistan Army itself. Furthermore, the process for single
source lease as provided under the new SOCs has not been followed which
requires that details of State land be specified along with draft JVA and
Board of Management. But the JVA only says that this is for ‘up to one
million Acres’ of land, without identifying exactly where such land is. The
role of the Collector has also been removed in contravention of the parent
Statute which requires the Collector to specify land. However, here, a
‘Negotiation Committee’ has been set up in order to release or reclaim
land. This is in further contradiction to the new SOCs which do not
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provide for resumption simpliciter without their being a violation by the

lessee as a lease has to be for 20 years and further extendable by 10 years.
Furthermore, the JVA includes provisions, such as, ‘afforestation’, which
is wholly outside the purview of the Colonization Act which specifies that
SOCs can be for agriculture and livestock, as recognized by the new SOCs
themselves as well. The grant of Forest Land regarding Rakh Goharwala
thereunder is even more worrying since the same is a protected forest and
cannot be leased out for any purpose.
50. It was pointed out that there appears to have been significant
changes in the role and input of the GOP in the whole process. The matter,
as originally presented to the Caretaker Cabinet (it is pertinent to reiterate
that the Elected Cabinet never even dreamt of such an arrangement)
reflected in paragraph 3.5 of the minutes of its 7th meeting dated
25.02.2023 that ‘initial funding’ shall be provided by the Pakistan Army.
The replies filed by both the GOP and the FOP repeatedly refer to the fact
that the GOP is only contributing its land. However, the letter dated
08.02.2023 sent by the DGSP to the SMBR stated that the Pakistan Army
can provide ‘free tubewells’ and ‘farm-to-market’ roads. Yet, when the
matter was deliberated by the Caretaker Cabinet in its 7th meeting, in
paragraph 3.8 (which was subsequently approved), it was determined that
investment would “preferably” be provided by the Pakistan Army.
Interestingly, there was no deliberation or statement with respect to
tubewells, electricity provision and farm-to-market roads at all in the
matter as presented to the Caretaker Cabinet in its 7th meeting. Yet, the
JVA in Clause 3 obligates the GOP to provide canal water, tubewells and
construct farm-to-market roads, whereas, the lessee, i.e. the Pakistan
Army, would only pay for utility charges. The JVA, therefore, is clearly
beyond anything that was ever considered by the Elected or Caretaker
Cabinet.
51. Furthermore, according to Articles 129 and 139 of the
Constitution, the executive authority of the Provincial Government shall be
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exercised in the name of the Governor. The Respondents have placed a

reliance on the said Articles to substantiate their position that the
Notification was validly issued by the Governor of Punjab. However, it is
to be noted here that Federal Government can also exercise its executive
powers only in the name of the President and no one else. In the instant
scenario, however, while the GOP has entered the JVA in the name of the
Governor, the Pakistan Army has done so through the DGSP instead of the
President. As elaborated earlier, there is no law allowing for such a
deviation from a substantial procedural requirement of this nature, thereby,
raising a question mark over the validity of the JVA on this point alone.
52. The above, in any event, is being submitted without prejudice
to the fact that, under the Constitution and all applicable laws, including
the Rules of Business, 1973 of the Federal Government, (the “Rules,
1973”) and the Pakistan Army Act, 1952 (the “Army Act”), the Armed
Forces of Pakistan or any Department, Division, entity or Directorate
thereof, has no competence to directly enter into any arrangement with any
entity or perform any functions without the express approval of the Federal
Government (i.e. the Federal Cabinet) and that too only to the extent that
the same relates to the defence of Pakistan from external aggression and
while acting in aid of civil powers under any law.
53. The JVA was entered into between the GOP, through the
Governor and the Pakistan Army, through the DGSP consequent to the
notified SOCs, paving way for the ultimate leasing of up to one million
Acres of land to latter. The fundamental requirements of the formation of a
lawful contract in terms of the capacity of the contracting parties to enter
into such an arrangement was in violation of the relevant constitutional
Articles, relevant Rules of the Rules, 1973, the Rules, 2011 and the
Judgments of the Supreme Court of Pakistan which demonstrate that the
DGSP, meaning thereby, the Pakistan Army lacked the capacity to enter
into the JVA with the GOP.
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54. Commenting on the scope of Article 245 of the Constitution,

it was stressed that it clearly lays down the limits to the functions and
powers of the Armed Forces of Pakistan. Its two main functions are to
defend Pakistan against external aggression and to act in aid of civil
power, subject to law, and when called upon to do so. With regard to the
latter, it must be emphasized here that any action in aid of civil power
could be performed by the Armed Forces of Pakistan only when there is a
law allowing for the same and when a specific request to this effect is
made by the Federal Government. Assuming that the Respondents argue
that undertaking the project of CAF falls within the scope of acting in aid
of civil powers, even then there is nothing on record that such assistance
was requested, or approved, in accordance with the Constitution and law.
55. In the instant scenario, there is nothing on record to show that
a request to indulge the DGSP in any commercial venture was made by the
GOP, meaning thereby that the Pakistan Army entered into the JVA of its
own accord, without any approval by the Federal Government either. The
scenario is worsened by the fact that the DGSP is not even one of the
attached Departments of the Federal Government as laid down in Schedule
III of the Rules, 1973. Furthermore, the Respondents have provided no
documents of any sort to explain the process through which the DGSP was
created and the rules that govern it. In essence, an agreement allowing for
the lease of around 2% of the total territory of Punjab has been entered into
by an entity which is surrounded by a total vacuum with regard to the
details regarding the process of its formation, governing laws and
procedures as well as any records substantiating its lawful capacity to enter
the JVA.
56. The only Statute that relates to the conduct and procedures of
the Pakistan Army is the Army Act, wherein, no provision is available
which authorizes or empowers the Pakistan Army to undertake any activity
beyond its composition for the purposes of welfare without the express
permission granted by the Federal Government to do so. The Statute is
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completely silent on the scope of functions and powers of the Pakistan

Army and deals with subjects, such as, appointments, transfers,
termination of the personnel of the Pakistan Army as well as the actions
deemed as officers under the Army’s code of conduct and so on. However,
it speaks nothing about the query at hand, as to whether the Pakistan Army
has the capacity to enter into a contract, such as, the JVA, of its own
accord and without the express involvement and approval of the Federal
Government.

57. The fact that the approval of the Federal Government is

necessary, and that too only if a law specifically allows as such, has been
determined by the Supreme Court of Pakistan and the Islamabad High
Court in multiple Judgments, which are of great significance in
determining the parameters of the powers and the scope of the functions of
the Armed Forces. In the Sindh High Court Bar Association8 case, the
Supreme Court remarked as under:-

“53. On a plain reading of the provisions of Article 245(1),

the functions of the Armed Forces can be bifurcated into two
categories, namely, they shall (1) defend Pakistan against
external aggression or threat of war, and (2) subject to law,
act in aid of civil power when called upon to do so. Under
clause (1) of Article 243, the control and command of the
Armed Forces is vested in the Federal Government, therefore,
in the performance of both the categories of functions, the
Armed Forces act under the directions of the Federal
Government. Thus, the provisions of clause (1A) of Article
243 under which the supreme command of the Armed Forces
vests in the President, does not, in any manner, derogate from
the power of the Federal Government to require the Armed
Forces to defend Pakistan against external aggression or threat
of war, or to act in aid of civil power in accordance with law.”

8
Sindh High Court Bar Association through its Secretary v. Federation of Pakistan
through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009
Supreme Court 879)
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58. The Supreme Court elaborating the role of Armed Forces in

Air Marshal (Retd.) Muhammad Asghar Khan9 case held as follows:-
“83. The role and functions of Armed Forces have been
discussed in detail in Sindh High Court Bar Association’s
case (supra) wherein it has been observed that on a plain
reading of the provisions of Article 245(1), the functions of
the Armed Forces can be bifurcated into two categories,
namely; they shall defend Pakistan against external
aggression or threat of war; and subject to law, act in aid of
civil power when called upon to do so. Under clause (1) of
Article 243, the control and command of the Armed Forces is
vested in the Federal Government, therefore, in the
performance of both the categories of functions, the Armed
Forces act under the directions of the Federal Government.
Thus, the provisions of clause (1A) of Article 243 under
which the supreme command of the Armed Forces vests in the
President, does not, in any manner, derogate from the power
of the Federal Government to require the Armed Forces to
defend Pakistan against external aggression or threat of war,
or to act in aid of civil power in accordance with law. The
Constitution does not envisage any situation where the Armed
Forces may act without any direction by the Federal
Government. Clause (3) ibid, provides that the President shall,
in consultation with the Prime Minister appoint the Chairman,
Joint Chiefs of Staff Committee; the Chief of the Army Staff;
the Chief of the Naval Staff; and the Chief of the Air Staff.
Under Article 244, every member of the Armed Forces makes
oath, inter alia, to the effect that he will bear true faith and
allegiance to Pakistan and uphold the Constitution of
Pakistan, and that he will not engage himself in any political
activities whatsoever. Any action of the Armed Forces
undertaken without a direction by the Federal Government
shall be unconstitutional, illegal, void ab initio and
consequently of no legal effect. Thus, it was held that any
member of the Armed Forces, including the Chairman, Joint
Chiefs of Staff Committee and the three Service Chiefs,
namely, the Chief of Army Staff, the Chief of Naval Staff and
the Air Chief, or any person acting under their authority, or on
their behalf, who acts in the performance of either of his
functions of defending Pakistan against external aggression,
or of acting, subject to law, in aid of civil power without any
direction by the Federal Government acts in violation of the

9
Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig,
Former Chief of Army Staff and others (PLD 2013 Supreme Court 1)
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Constitution and the law and does so at his own risk and
cost.”

59. While adverting to the commercial use of land by the Pakistan

Army in Islamabad, the Islamabad High Court in Prof. Zahid Baig Mirza10
case specifically discussed the status and claim of the RVF Directorate and
its competence to own land and to execute commercial leases. The
following extracts therefrom are of significance:-
“20. The RVF Directorate is an internal office of the General
Headquarters (GHQ) of the Pakistan Army, one of the
branches of the Armed Forces. The GHQ is under the
administrative control of the Ministry of Defence,
Government of Pakistan. The RVF Directorate nor the GHQ
have the legal status under the Constitution or the law to own
State owned land. As will be discussed later, land is allocated
for the use of the branches of the Armed Forces and it is
managed and retained in accordance with the scheme of the
governing law and, that too, by the entities and public
functionaries designated there under.
….In an earlier judgment this Court has elaborately described
the status of the Armed Forces and its locus standi to own and
manage State land and the same is reiterated as follows.
The mandate of the Armed Forces of Pakistan has been
described in Chapter 2 of Part XII of the Constitution. The
three main branches of the Armed Forces are the Pakistan
Army, Pakistan Navy and Pakistan Air Force. Article 243 of
the Constitution provides that the Federal Government shall
have control and command of the Armed Forces. The
supreme command of the Armed Forces vests in the President
of Pakistan. The latter, subject to law, has the power to raise
and maintain the three branches of the Armed Forces. Article
244 makes it a constitutional requirement for every member
of the Armed Forces to take an oath in the form set out in the
Third Schedule, which includes a solemn pledge and
commitment to uphold the Constitution and to serve as
required by and under the law. Sub Article (1) of Article 245
explicitly provides that the Armed Forces shall, under the
directions of the Federal Government, defend Pakistan against
external aggression or threat of war and, subject to law, act in
aid of the civil power when called upon to do so. The Rules of

10
Prof. Zahid Baig Mirza v. Capital Development Authority through Chairman &
others (PLD 2022 Islamabad 398)
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Business, 1973 enjoys constitutional backing and section 3

thereof describes how business is to be allocated amongst the
Ministries and Divisions listed in Schedule-1 thereto. Sub
section (3) provides that the business of the Government shall
be distributed amongst the Divisions in the manner indicated
in Schedule- II. The Armed Forces of Pakistan i.e. the
Pakistan Army, Pakistan Navy and Pakistan Air Force are the
administrative responsibility of the Ministry of Defence /
Defence Division. It is noted that the administration of
Military Lands and Cantonments Group is also under its
administrative control. The august Supreme Court, in the case
titled “Justice Hassnat Ahmed Khan and others v. Federation
of Pakistan/State“ [PLD 2011 SC 680] has held that under
Article 245(1) of the Constitution, the Armed Forces of
Pakistan are bound to remain under the direction of the
Federal Government to defend Pakistan against external
aggression or threat of war and, subject to law, act in aid of
the civil power when called upon to do so. It has been further
held that non-adherence to the constitutional provisions,
prima-facie, tends to establish denying the oath to uphold the
Constitution. It has been further held that deviation from the
constitutional mandate by members of the Armed Forces
cannot be condoned by the superior courts. In the case titled
“Sindh High Court Bar Association v. Federation of Pakistan”
[PLD 2009 SC 879] the apex Court has elaborated the scheme
of the constitution and has observed that, on a plain reading of
Article 245(1), the functions of the Armed Forces can be
bifurcated into two categories, i.e. to defend Pakistan against
external aggression or threat of war and, subject to law, act in
aid of civil power when called upon to do so. Moreover, it has
been observed that under clause (1) of Article 243, the control
and command of the Armed Forces is vested in the Federal
Government, therefore, in the performance of both the
categories of the aforementioned functions, the Armed Forces
act under the directions of the Federal Government. Reliance
is placed on the cases titled “Air Marshal (Retd.) Muhammad
Asghar Khan v. General (Retd.) Mirza Aslam Baig, former
Chief of Army Staff and others” [PLD 2013 SC 1], “Sh.
Liaquat Hussain and others v. Federation of Pakistan through
Ministry of Law, Justice and Parliamentary Affairs,
Islamabad and others” [PLD 1999 SC 504], Page - 21 W.P.
No. 1772 of 2020. “District Bar Association, Rawalpindi and
others v. Federation of Pakistan and others” [PLD 2015 SC
401].
The Pakistan Army Act, 1952 [hereinafter referred to as
the “Act of 1952”], the Air Force Act 1953 [hereinafter
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referred to as the “Act of 1953”] and the Pakistan Navy

Ordinance, 1961 [hereinafter referred to as the “Ordinance of
1961”] have been promulgated to regulate the respective
branches of the Armed Forces and its discipline. The
aforementioned statutes regulate the discipline and internal
working of the respective branches of the Armed Forces but
does not empower the officers to undertake any activity
beyond the establishments. There is no provision under the
afore mentioned laws which authorizes or empowers the
Pakistan Army to undertake, directly or indirectly, activities
beyond its composition for the purposes of welfare, unless the
Federal Government has expressly granted permission to do
so. As a corollary, the Pakistan Army has no power nor
jurisdiction to, directly or indirectly, engage in business
ventures of any nature outside its composition nor to claim the
ownership of state land.
… There could be multiple eventualities requiring the Armed
Forces to act in aid of the civil power e.g. internal security,
natural calamities such as floods, earthquakes etc. The
secondary function to act in aid of the civil power is subject to
law and can only be undertaken if 'called upon to do so'. In
case of both the functions the Armed Forces cannot act on its
own. These are the only two constitutional functions
mandated to the Armed Forces. Since the command and
control of the Armed Forces vests in the Federal Government,
therefore, no branch can undertake any activity or perform
functions outside their respective establishments unless
expressly directed or called upon to do so. The unique
responsibilities have been prescribed under the Constitution
and, therefore, obedience to the provisions ibid and law is an
inviolable obligation of every branch and member of the
Armed Forces as provided under Article 5. The branches of
the Armed Forces and their members take a constitutional
oath in the name of Allah to uphold the Constitution and to
honestly and faithfully serve Pakistan as required by and
under the law. Violation of law by members of the Armed
Forces is definitely a breach of their constitutional oath and a
transgression from the prescribed functions. The Pakistan
Army nor its officers are authorized or mandated to
undertake, directly or indirectly, any activity such as leasing
government land for commercial purpose.
The next crucial question is whether the Pakistan Army
or its officers are empowered to acquire, own or, in any other
manner, deal with immovable property for commercial
purposes. The scheme of the Constitution and the relevant
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laws regarding acquiring land for the use of the Armed Forces
is unambiguous. Article 173 of the Constitution explicitly
declares that the executive authority of the Federation shall
extend, subject to any Act of the appropriate legislature, to the
grant, sale, disposition or mortgage of any property vested in,
and to the purchase or acquisition of property on behalf of the
Federal Government or, as the case may be, the Provincial
Government and to the making of contracts. Sub Article (2) of
the Article 173 explicitly provides that all properties acquired
for the purposes of the Federation or of a Provincial
Government shall vest in the Federal Government. Sub
Article (3) of Article 173 further provides that all contracts
made in the exercise of the executive authority of the
Federation or of a Province shall be expressed to be made in
the name of the President or, as the case may be, the Governor
of the Province. The Cantonment Act 1924 [hereinafter
referred to as the “Act of 1924”], The Cantonment Lands and
Administration Rules, 1937 [hereinafter referred to as the
“Rules of 1937”] and the Rules for the Acquisition, Custody,
Relinquishment etc., of Military Lands (A.C.R. Rules) 1944
[hereinafter referred to as the “A.C.R. Rules”] govern the
manner in which immovable property can be acquired for and
put to use for the branches of the Armed Forces. As already
noted, it is the mandate of the constitution that property
acquired for the purposes of the Federation shall exclusively
vest in the Federal Government.
…..The urge of State institutions to act as a state within the
state is obvious from the above discussed facts. The
authorities entrusted with statutory powers to guard against
violations seem to be helpless or complacent. The acts and
stance of the RFV Directorate and the GHQ of the Pakistan
Army have profound consequences for the rule of law. They
acted on their own and while doing so they have seriously
undermined the rule of law in derogation to their declared
functions under the Constitution...”

60. Similar conclusions were drawn in Mrs. Zeenat Salim11 case.

Therefore, it is established beyond doubt that any organ of the Armed
Forces cannot undertake any activity outside its composition without an
express approval of the Federal Government and in any event, they may
not be able to resume any land which does not fall under the category of

11
Mrs. Zeenat Salim v. Pakistan Naval Farms, etc. (PLD 2021 Islamabad 138)
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cantonment lands and deal with the same on commercial basis. The JVA is
thus liable to be set aside on this score alone.
61. The Respondents have placed reliance on Article 147 of the
Constitution to make a case that the Province can entrust the Federal
Government and its officers with regards to a matter that otherwise falls in
the domain of the Province. The said Article is not attracted on several
accords. Firstly, neither there is anything on record to show that any
request was made by the GOP to the Federal Government with regard to
asking for facilitation in entering an arrangement related to CAF, nor any
record shows that consent to any such request was given by the Federal
Government. Moreover, what further dents the stance of the Respondents
is that, as is evident from the proviso of the said Article, it assumes the
existence of a Provincial Assembly which shall then ratify such a request.
However, in the present scenario of the Province being governed by a
Caretaker Cabinet, the question of ratification by the Provincial Assembly
does not even arise.
62. The crux of the above discussion is that the Pakistan Army,
acting through the DGSP, lacked the capacity to enter the JVA as firstly, it
is restricted to do so due to the limitations placed on the scope of its
powers and functions by the Constitution. Secondly, even if it is assumed
(without conceding) that the Pakistan Army could undertake such a project, it
could not have entered the contract of its own accord and an express
request for indulging it by the GOP and an approval to the same by the
Federal Government were the minimum requirements for the JVA to be a
valid contract. However, as nothing on record proves compliance with any of
the said procedural requirements, the JVA is liable to be held void ab initio.
63. It was vehemently argued that there is nothing on record to
reflect that the Federal Government had any input in the decision-making
process which led to the Pakistan Army entering into a commercial
arrangement with the GOP, which is a gross violation of the mandate of
Article 245 of the Constitution. The attempt on the part of the Respondents
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to differentiate ‘executive’ and ‘commercial’ functions of the State to

demonstrate that CAF initiative being a commercial function did not
envisage any role of the Federal Government is not borne from the Rules,
1973 and the Army Act and is, even otherwise, violative of the express
determinations reached by the Superior Courts.
64. Mr. Ahmed Rafay Alam, Advocate supplemented the
arguments by contending that even otherwise, the new SOCs and the JVA
executed thereunder, both contradict and conflict with stated Federal and
Provincial policies as well as international best practices. Without
prejudice to the fact that even if it is assumed, without conceding in any
way, shape or form, that the new SOCs have been validly issued and that
the JVA has been competently entered into and that the same is not in
contradiction to the original SOCs and the Colonization Act, the argument
that the same are to protect ‘food security’ raised by the Respondents is
contradictory to their own stated policies and liable to be declared illegal,
being unreasoned, on this score alone. To this effect, it was submitted that
Vision, Mission, Goals and Strategic Framework of National Food
Security Policy, 2018 do not mention increase in arable land or need for
CAF.
65. Pakistan’s National Climate Change Policy, 2012 (updated in
2021) states that Pakistan’s vulnerability to climate change may lead to
food security issues and proposes policy measures. None of the policy
measures include CAF and as a general measures, it is proposed to
promote horizontal expansion of cultivable lands through development of
wastelands and rainwater harvesting through community-based approaches
to development. Thus, as a policy measure thrust is upon expansion of
arable land through development of wastelands but through community
participation and not CAF. Similarly, it seeks to ensure food security based
on livestock and pasture management and makes policy measures in this
regard which do not include CAF or increasing pastureland but adopts as a
policy measure to protect the rights of indigenous peoples.
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66. Punjab Agriculture Policy, 2018 does not once mention CAF.
A key focus in addressing the agriculture related issues of growth, poverty
reduction and food security is strengthening the voice and status of women
in the rural Punjab. It further seeks to employ Climate Smart Agriculture to
ensure food security. It was further informed that Pakistan adopted UN
SDGs in 2016. SDG is Zero Hunger (“End hunger, Achieve Food Security,
Improve Nutrition and Promote Sustainable Agriculture”) and in this
respect, GOP’s Zero Hunger SDG goals do not include CAF or increasing
arable land.
67. He argued that there are several examples of success in terms
of reducing hunger, transforming the agriculture sector and enhancing
smallholder productivity. The thrust of international best practices have
been to support small farm holdings and to support vulnerable farmers.
Thus, the idea that CAF is the answer for food security appears to be
misplaced and a thorough research is required regarding the basis of CAF
initiative.
68. Finally, it was concluded that the Superior Courts have
evolved a ‘Doctrine of Public Trust’ relating to the regulation and
consumption of natural resources. This doctrine was approved by the
Supreme Court of Pakistan in case of Cutting of Trees for Canal Widening
Project, Lahore12. The doctrine was first introduced by the Sindh High
Court in Sindh Institute of Urology and Transplantation13 case. The
doctrine set out briefly in Muhammad Tariq Abbasi14 case, enjoins the
State to preserve and protect the public interest in beaches, lakeshores etc.
and that this Court has recognized the ‘Public Trust Doctrine’ extending it
to the natural resources, viz, air, sea, water and forests, which being a gift
of nature should be made freely available to everyone irrespective of

12
Cutting of Trees for Canal Widening Project, Lahore: In the matter of Suo Motu
Case No. 25 of 2009 (2011 SCMR 1743)
13
Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited
and others (2005 CLC 424)
14
Muhammad Tariq Abbasi and others v. Defence Housing Authority and others (2007
CLC 1358)
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status. Further, the Supreme Court, in Maulana Abdul Haque Baloch15 case
declared that minerals in land are in the nature of public trust and that
mineral rules ‘act as guardians of the said public trust’. The upshot of the
above reflects that, even otherwise, the ‘public good’ argued by the
respective governments in allowing the transaction impugned herein is
misleading. This is even otherwise without prejudice to the fact that an
illegal arrangement cannot be condoned in the public good.
69. Mr. Shahid Shahood Randhawa, Advocate while endorsing
the aforesaid submissions, highlighted the legal and social dangers
associated with the impugned transaction. He said that the new SOCs were
in fact tailored with mala fide intention to accommodate the Pakistan
Army as a preconceived plan by thwarting the constitutional and legal
mandate. The Pakistan Army used its undue influence and coercion as a
powerful and dominant institution to usurp State land under the garb of the
impugned transaction. As such, the institution which is essentially created
for the protection and security of the State and its people went beyond its
constitutional and legal mandate to usurp the public property in breach of
the fundamental rights of the people. He explained that the concept of
lease and joint venture are completely different and the latter is in conflict
with the scheme of law envisaged in the Colonization Act which only
allows disposal of State land through a transparent and non-discriminatory
leasing scheme. An arbitrary and self-serving definition of lease was
deliberately inserted in the new SOCs to assign a new meaning to the
concept of ‘lease’ in derogation to applicable law. The JVA is also void for
being uncertain as it relates to unidentified and undisclosed public property
in terms of Section 29 of the Contract Act, 1872. He stressed that the
impugned transaction has been executed under black clouds of secrecy in a
deeply non-transparent manner without advertisement in order to achieve
the sinister design of extending extraordinary and undue favour to the

15
Maulana Abdul Haque Baloch and others v. Government of Balochistan through
Secretary Industries and Mineral Development and others (PLD 2013 Supreme Court
641)
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Pakistan Army by the Caretaker Government. The impugned transaction is

fraudulent within the contemplation of provisions contained in Section 23
of the Contract Act, 1872 as it defeats the express provisions of the
Constitution and law, is unconscionable and inflicts irreparable injury to
public property. Hence, the transaction is opposed to public policy being in
breach of public trust and as such, is not condonable. The undue haste
shown in the approval of the impugned transaction by the Caretaker
Cabinet in absence of any mandate itself testifies that the transaction is
fraudulent. The sovereignty and independence of the future elected
government was compromised by conferring its powers to the Negotiating
Committee which tantamount to confiscation of executive and legislative
prerogatives of the future elected governments. He relied upon case of
District Bar Association, Khanewal; and Suo motu case No. 13 of 200916.
He rested his case by urging that public policy especially with respect to
the State immovable property must be non-discriminatory carried out
through advertisement in open auction mode with a specified ceiling so
that most of the people can get benefit out of it. The following passage of
John Steinbeck’s “Grapes of Wrath” was cited in terms of Paragraph No.
13 of Brig. Muhammad Bashir17 case:-
“And the great owner, who must lose their land in an
upheaval, the great owners with access to history, with eyes to
read history and to know the great fact: when property
accumulates in too few hands it is taken away. And that
companion fact: when a majority of the people are hungry and
cold they will take by force what they need. And the little
screaming fact that sounds through all history repression
works only to strengthen and knit the repressed. The great
owners ignored the three cries of history. The land fell into
fewer hands the number of the dispossessed increased and

16
Province of Punjab through Secretary Revenue and others v. District Bar
Association, Khanewal and others (2014 SCMR 1611); and Suo Motu Case No. 13 of
2009: In the matter of Action on press clipping from the Daily “Patriot, Islamabad
dated 04.07.2009 regarding Joint Venture Agreement between CDA and Multi-
Professional Cooperative Housing Society (MPCHS) for development of land in Sector
E-11, Islamabad) (PLD 2011 Supreme Court 619)
17
Brig. Muhammad Bashir v. Abdul Karim and others (PLD 2004 Supreme Court
271)
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every effort of the great owners was directed at repression.

The money was spent for arms for gas to protect the great
holdings, and spies were sent to catch the murmuring of revolt
so that it might be stamped out The changing economy was
ignored, plans for the change ignored, and only means to
destroy revolt were considered, while the causes of revolt
went on.”

70. Learned counsels representing the Petitioners in connected

Petitions adopted the above arguments and additionally discussed the
distinguishing features of their respective grievances. It was essentially
stated that in case CAF initiative is allowed despite constitutional and legal
challenges thereto, even then the subject-matter lands highlighted in the
connected Petitions are liable to be excluded from CAF initiative for due
protection of rights and interests asserted by the Petitioners therein.

IV. CONTENTIONS OF THE RESPONDENTS

71. Mr. Muhammad Osman Khan, learned Assistant Advocate

General led the arguments on behalf of the Respondents. Questioning the
maintainability of the Petitions, it was pointed out at the outset that under
the garb of public interest litigation or acting pro bono publico, the titled
Petition has been filed by a Karachi based NGO, source of funds and intent
whereof remains unclear. Similarly, connected W. P. No. 23256 / 23 has
been filed by a practicing Advocate. Both the Petitions clearly fail to meet the
basic requirement of Article 199(1)(a) of the Constitution as none of the
Petitioners therein is an aggrieved person. Similarly, the other Petitioners in
the connected Petitions are not aggrieved persons as the land is vested in the
GOP and the latter has every right to deal with it in the best public interest.
72. It was vehemently argued that this Court lacks power to
undertake Judicial Review of the impugned transaction for the reason that
the same falls within the exclusive policy domain of the GOP. It was
stressed that the constitutional scheme is based upon the trichotomy of
powers entrenched in our legal jurisprudence and is liable to be honoured
by this Court. In this regard, he quoted paragraph No. 12 of the Judgment
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passed by the Supreme Court in Syed Azam Shah18 case which is

reproduced as under:-
“12. …The compass and magnitude of judicial review of
governmental policy is now well settled and defined in which
neither the court can act or represent as appellate authority
with the aim of scrutinizing the rightness, fittingness and
aptness of a policy nor may act as advisor to the executives on
matters of policy which they are entitled to formulate. The
extensiveness of judicial review of a policy is to test out
whether it violates the fundamental rights of the citizens or is
at variance to the provisions of the Constitution, or opposed to
any statutory provision or demonstrably arbitrary or
discriminately. … In the case of Abdul Hameed and others. v.
Water and Power Development Authority through Chairman,
Lahore and others (2021 SCMR 1230), this Court held that
the roles of each organ of the State are defined within the
Constitution of the Islamic Republic of Pakistan, so also in
different laws. It is not the role of the Courts to interfere in
policy decisions, unless it is manifest that such a policy
decisions are the outcome of arbitrary exercise of power, mala
fides, patently illegal or manifestly unreasonable. The court
placed reliance on the case of Asaf Fasihuddin Khan v.
Government of Pakistan (2014 SCMR 676), in which it was
held that the duty of the Court is to confine itself to the
question of legality, whether a decision making authority
exceeded its powers; committed an error of law; committed a
breach of the rules of natural justice; reached a decision which
no reasonable tribunal would have reached or abused its
powers.”

73. Further, the case of Messrs Power Construction Corporation

of China Ltd.19 relates to a Chinese Company which participated in the
Hydropower Project whose name was included in the pre-qualification
bidders but was subsequently deleted and the company was declared
disqualified. The following was importantly observed by the Supreme
Court in the said case:-

18
Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division,
Cabinet Secretariat, Islamabad and another (2022 SCMR 201)
19
Messrs Power Construction Corporation of China Ltd. through Authorized
Representative v. Pakistan Water and Power Development Authority through Chairman
WAPDA and 2 others (PLD 2017 Supreme Court 83)
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“27. …It appears that a pragmatic commercial decision was

taken not to jeopardize the funding from the IDA and thereby
putting the entire project at risk. Such decision falls within the
realm of the Public Policy and the Courts in the exercise of
their powers of judicial Review, ordinarily, do not interfere
therewith and exercise judicial restrain, as has been held by
this Court not only in the case, reported as Dossani Travels
Pvt. Ltd and others v. Messrs Travels Shop (Pvt.) Ltd. and
others (PLD 2014 SC 1) but also in the judgment, reported as
Cutting of Trees for Canal Widening Projects, Lahore: In the
matter of Suo Motu Case No.25 of 2009 (2011 SCMR 1743).
… as in our opinion, the Constitutional Petition filed by the
Petitioner Company was not maintainable, as it sought to
encroach into the domain of the Policy Matters in respect
whereof the judicial restrain is to be exercised.”

74. Learned Assistant Advocate General stressed that this Court

in exercise of power of Judicial Review could not scrutinize the policy
decision or substitute its own opinion instead of the GOP. Reliance was
placed on Wattan Party20 case. Paragraph No. 57 thereof is reproduced as
under:-
“57. The next question is in respect of the judicial review of
the policies of the Government. It is well settled that normally
in exercise of the powers of judicial review this Court will not
scrutinize the policy decisions or to substitute its own opinion
in such matters as held in Messrs Elahi Cotton Mills ibid.
Likewise in the case of Balco Employees ibid, the Supreme
Court of India observed as follows:

“Process of disinvestments is a policy decision

involving complex economic factors. The Courts have
consistently refrained from interfering with economic
decisions as it has been recognized that economic
expediencies lack adjudicative disposition and unless
the economic decision, based on economic
expediencies, is demonstrated to be so violative of
constitutional or legal limits on power or so abhorrent
to reason, that the Courts would decline to interfere. In
matters relating to economic issues, the Government
has while taking a decision, right to "trial and error" as

20
Wattan Party through President v. Federation of Pakistan through Cabinet Committee
of Privatization, Islamabad and others (PLD 2006 Supreme Court 697)
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long as both trial and error are bona fide and within
limits of authority.”

75. Leveling a serious concern on the locus standi of the

Petitioners, learned Law Officer argued that the Petitioners have no
legitimate right and standing to question an important initiative of CAF
which goes to the roots of food security for the people of Punjab and in
fact, the initiation of the project is in public interest which could not be
jeopardized through judicial intervention. Frivolous Petitions are liable to
be discouraged and thrown out to foster public interest. To substantiate his
point, he referred the judgment passed by the Supreme Court in the case of
Dr. Akhtar Hassan Khan21. The relevant paragraph thereof is reproduced as
under:-
“50. While holding that these petitions are maintainable, we
would like to strike a note of caution. The Court has to guard
against frivolous petitions as it is a matter of common
observation that in the garb of public interest litigation,
matters are brought before the Court which are neither of
public importance nor relatable to enforcement of a
fundamental right or public duty. In Ashok Kumar Pandey v.
State of West Bengal (AIR 2004 SC 280) the Court was
seized of such a petition when it observed as follows:-
“Public interest litigation is a weapon which has to be
used with great care and circumspection and the
judiciary has to be extremely careful to see that behind
the beautiful veil of public interest an ugly private
malice, vested interest and/or publicity seeking is not
lurking. It is to be used as an effective weapon in the
armory of law for delivering social justice to the
citizens. The attractive brand name of public interest
litigation should not be used for suspicious products of
mischief. It should be aimed at redressal of genuine
public wrong or public injury and not publicity oriented
or founded on personal vendetta. As indicated above,
Court must be careful to see that a body of persons or
member of public, who approaches the court is acting
bona fide and not for personal gain or private motive or
political motivation or other oblique consideration. The
21
Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012
SCMR 455)
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Court must not allow its process to be abused for

oblique considerations. Some persons with vested
interest indulge in the pastime of meddling with
judicial process either by force of habit or from
improper motives. Often they are actuated by a desire
to win notoriety or cheap popularity. The petitions of
such busy bodies deserve to be thrown out by rejection
at the threshold, and in appropriate cases with
exemplary costs.”

He further relied upon the case of Ashok Kumar Pandey22. The germane
extract therefrom is reproduced hereunder:-
“The Court has to be satisfied about (a) the credentials of the
applicant; (b) the prima facie correctness or nature of
information given by him; (c) the information being not vague
and indefinite. The information should show gravity and
seriousness involved. Court has to strike balance between two
conflicting interests; (i) nobody should be allowed to indulge
in wild and reckless allegations besmirching the character of
others; and (ii) avoidance of public mischief and to avoid
mischievous petitions seeking to assail, for oblique motives,
justifiable executive actions. In such case, however, the Court
cannot afford to be liberal. It has to be extremely careful to
see that under the guise of redressing a public grievance, it
does not encroach upon the sphere reserved by the
Constitution to the Executive and the Legislature. The Court
has to act ruthlessly while dealing with imposters and busy
bodies or meddlesome interlopers impersonating as public-
spirited holy men. They masquerade as crusaders of justice.
They pretend to act in the name of Pro Bono Publico, though
they have no interest of the public or even of their own to
protect.
Courts must do justice by promotion of good faith, and
prevent law from crafty invasions. Courts must maintain the
social balance by interfering where necessary for the sake of
justice and refuse to interfere where it is against the social
interest and public good. (See State of Maharashtra vs.
Prabhu, (1994 (2) SCC 481), and Andhra Pradesh State
Financial Corporation vs. M/s GAR Re-Rolling Mills and
Anr., (AIR 1994 SC 2151). No litigant has a right to unlimited
drought on the Court time and public money in order to get
his affairs settled in the manner as he wishes. Easy access to
justice should not be misused as a licence to file misconceived

22
Ashok Kumar Pandey v. The State of West Bengal (AIR 2004 SC 280)
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and frivolous petitions. (See Dr. B.K. Subbarao vs. Mr. K.

Parasaran, (1996) 7 JT 265). Today people rush to Courts to
file cases in profusion under this attractive name of public
interest. They must inspire confidence in Courts and among
the public.
As noted supra, a time has come to weed out the petitions,
which though titled as public interest litigations are in essence
something else. It is shocking to note that Courts are flooded
with large number of so called public interest litigations
where even a minuscule percentage can legitimately be called
as public interest litigations. Though the parameters of public
interest litigation have been indicated by this Court in large
number of cases, yet unmindful of the real intentions and
objectives, Courts are entertaining such petitions and wasting
valuable judicial time which, as noted above, could be
otherwise utilized for disposal of genuine cases….”

To further substantiate his points, he also cited other case law23.

76. He vehemently stated that mandamus can only be invoked by

an aggrieved person while the Petitioners lack this mandatory
characteristic. Hence, the Petitions are not maintainable before this Court
on this score alone. To supplement this argument, the following passages
were quoted:-
“Note:
11. As the writ petitions filed before the Lahore High Court,
eventually leading to the judgments under review, were for
the issuance of either writ of Certiorari or Mandamus, they
could have been maintained only by an aggrieved person

23
Ministry of Information Technology and Telecommunications, Islamabad and
another v. C.M. PAK (Pvt.) Ltd., Islamabad and another (PLD 2020 Supreme Court
551); Miss Mahnum Hussain and other v. British Council Pakistan and other (2021
CLC 1583); Shoaib Asghar Gujjar v. Commissioner Sargodha Division and others
(2023 PLC (C.S.) 415); 7C’S Corporate Services v. Oil and Gas Development
Company Limited and others (PLD 2017 Islamabad 115); Muhammad Shafique Khan
Sawati v. Federation of Pakistan through Secretary Ministry of Water and Power,
Islamabad and others (2015 SCMR 851); Ms. Imrana Tiwana and others v. Province of
Punjab and others (PLD 2015 Lahore 522); Muntizma Committee, Al-Mustafa Colony
(Regd.), Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others (PLD
1992 Karachi 54); S.P. Gupta and others v. President of India and others (1982 AIR
(SC) 149); Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 Supreme
Court 192); Balochistan Medical Association through President v. Government of
Balochistan through Secretary Health and others (2017 CLC 1195); and Sheikh Ahsan-
ud-Din and 2 others v. Federation of Pakistan through Secretary Ministry of Interior
and others (PLD 2018 Islamabad 182)
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within the meaning of Article 199 of the Constitution. As held

above, neither Noor Elahi nor Syed Khurram Ali Shah
fulfilled that condition. The writ petitions filed by these two
persons were, therefore, not maintainable…”24

“19. In order to invoke Constitutional jurisdiction under

Article 199 of The Constitution of the Islamic Republic of
Pakistan, seeking relief by way of writ of "Mandamus" or
"Certiorari" there must be an "aggrieved party" calling in
question "Action" or "Omission" of a person, functioning in
connection with affairs of the Federation, a province or a local
authority provided no other adequate remedy is available to
such party.”25

He also relied upon the cases of M. Ghulam Nabi Awan, Advocate and
Peshawar University Teacher’s Association (PUTA)26.

77. On merits, it was submitted that the summary for the Chief
Minister, Punjab qua the original SOCs was moved during the tenure of
the Elected Government on 25.06.2021 which after passing through
different stages including the Standing Committee was eventually
approved ‘in-principle’, in the 51st meeting of the Elected Cabinet held on
28.02.2022. Placing the matter before the Provincial Assembly was not
mandatory as CAF initiative did not require any specific legislation to be
passed, as such, the only requirement of approval by the GOP was duly
met through approval by the Elected Cabinet as envisaged under Section
10(2) of the Colonization Act. After the in-principal approval, the Elected
Cabinet desired the placement of original SOCs before the Ministerial
Committee which was duly held on 14.10.2022 in which the original SOCs
were further considered and thrashed out and ultimately placed before the
Caretaker Cabinet in its 4th meeting held on 09.02.2023. With regard to

24
Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others
(PLD 2009 Supreme Court 644)
25
Bank of Punjab through Group Head of its Special Projects v. Accountability Court
No.1, Lahore and 2 others (PLD 2014 Lahore 92)
26
M. Ghulam Nabi Awan, Advocate v. Government of Pakistan and 3 others (2003
MLD 90); and Peshawar University Teacher’s Association (PUTA) through General
Secretary and 3 others v. Government of Khyber Pakhtunkhwa through Chief Secretary
and 4 others (2015 CLC 265)
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non-issuance of minutes of meeting of the Ministerial Committee created

by the Cabinet, it was stated that the Special Committees of the Cabinet
are constituted under the command of Rule 25(3) of the Rules, 2011 which
reads as follows:-

“The Cabinet may constitute Standing or Special Committees

of the Cabinet and may assign to each a class of cases or a
particular case.”
78. As is evident from a bare reading of above, the Committees
are creatures of the Cabinet in order to assist and aid the Cabinet as and
when required. The Committees do not have an independent constitutional
or statutory existence or mandate since they are created by the Cabinet for
assistance in its day to day working. These Committees cannot be said to
have any independent role in executive decision making of the GOP which
is the sole prerogative and function of the Cabinet. Therefore, input from
these Committees is but only for the consumption of the Cabinet. Further,
the Cabinet can take any executive decision on any matter of the Province
without referring the same to any of these Committees, considering that
the role of the latter is but only to further thrash out any case referred to
them by the Cabinet. Even otherwise, non-issuance of minutes was
brought into the knowledge of the Caretaker Cabinet, which then
proceeded to take the decision, therefore, non-issuance thereof had been
virtually rendered of no legal consequence, since the Caretaker Cabinet
being a higher body had taken cognizance of the matter and passed a
decision exercising its constitutional mandate.
79. The procedure regarding proceedings of the Committees of
the Cabinet is provided in Rule 29 of the Rules, 2011, whereby, provisions
of Rules 26 and 28 thereof apply mutatis mutandis to the Committees as
well. Further, reference was also made to the sub Clauses (8), (9) & (14) of
Rule 28 of the Rules, 2011, to contend that the said provisions are
abundantly clear that a Secretary shall attend every meeting of the Cabinet
(unless otherwise directed) and may also, attend a meeting of the Cabinet
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in place of his Minister. As such, a Secretary can also attend the meetings
of a Ministerial Committee and such a meeting would be deemed to have
been held. It may also be highlighted that every organization of a
Department, as per Rule 4 of the Rules, 2011, consists of a Minister and a
Secretary and such other officials as may be determined by the GOP.
80. As regards the specific facts of meeting of Ministerial
Committee dated 14.10.2022, it was submitted that a note for Minister of
Law and Parliamentary Affairs for placing the matter before the
Ministerial Committee was moved on 10.08.2022 by the Member
(Colonies), BOR. Then the Minister of Law vide noting dated 07.09.2022
sought a clarification as to who shall chair the meeting of Ministerial
Committee i.e. the Minister of Law, Punjab or the Minister for
Parliamentary Affairs, Punjab? It may be pointed out that previously, Law
and Parliamentary Affairs was constituted as one portfolio with one
Minister. However, after redistribution of portfolios, there were two
Ministers, that is, Minister for Law (Mr. Khurram Shahzad Virk) and the
Minister for Parliamentary Affairs (Mr. Muhammad Basharat Raja). As
such, upon clarification from the then Chief Minister, Punjab dated
30.09.2022, the Minister of Parliamentary Affairs gave his nod vide noting
dated 04.10.2022, for convening the meeting of Ministerial Committee on
14.10.2022. In this regard, letter dated 13.10.2022 was issued by the BOR
being the Department concerned. Thereafter, meeting of Ministerial
Committee was held on 14.10.2022 as depicted from the Attendance Sheet
placed on record. As such, the meeting took place lawfully and non-
issuance of minutes thereof can, at best, be taken as a procedural
irregularity and therefore, of no legal consequence since through the
formal summary, the matter was brought into the knowledge of the higher
forum i.e. the Caretaker Cabinet, which, accordingly took decision.
81. Learned Law Officer submitted that the term ‘in principle
approval’ is of great significance as the same was accorded by the Elected
Cabinet in the year 2022 and the new SOCs were notified during the tenure
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of the Caretaker Cabinet after input from all the relevant Departments. The
phrase ‘in principle’ means ‘in theory’27 or ‘theoretically or in essence’28.
As per online Collins Dictionary, the term ‘in principle’ means that ‘if you
agree with something in principle, you agree in general terms to the idea of
it, although you do not yet know the details or know if it will be possible’.
82. In view of the foregoing, it was submitted that the term ‘in
principle approval’ as used by the GOP while considering a novel project
signifies its approval in ‘essence’ qua any project under consideration
while details and possible dimensions were left to be further thrashed out
by the relevant stakeholders. Since the principle approval qua CAF project
was granted during the tenure of the previous Elected Government, the
concerned Departments completed the spadework and only placed it before
the Caretaker Cabinet on 09.02.2023 for its nod qua notification of the new
SOCs so prepared by the relevant Departments.
83. Responding to the argument that the new SOCs ought not to
have been issued or notified by the Governor Punjab, he submitted that
conjunctive reading of Articles 129 and 139 of the Constitution leads to
the conclusion that the executive authority of the Province ought to be
exercised in the name of the Governor. Further, Article 139(3) mandates
the making of rules for allocation and transaction of the business of the
Province. It is under the command and in furtherance of this provision that
the GOP made the Rules, 2011. Apart from the above constitutional
provision, while meeting the mandate and express command thereof, Rule
12(1) of the Rules, 2011 provides as follows:
“All executive actions of the Government shall be expressed
to be taken in the name of the Governor.”

84. Further, as per the Third Schedule, Part-A to the Rules, 2011,
a list of cases has been provided that require orders of the Governor. It
may be clarified that the issuance of SOCs has not been mentioned or

27
Oxford Dictionary, Twelfth Edition, Page 1140
28
Webster’s New World College Dictionary, Third Edition, Page-1070
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provided in the said list. As such, after getting the requisite approval from
the Caretaker Cabinet and satisfying the essence of Mustafa Impex Case as
well, the new SOCs were issued on 20.02.2023 in exercise of powers
conferred vide Section 10 of the Colonization Act. Stating the scope of
Article 139 of the Constitution, he relied upon the following dicta laid in
29
Aftab Ali case:
“11. …As already pointed out, though the executive
authority of the province is to be exercised in the name of the
Governor, but it is to be exercised by the Provincial
Government through the Chief Minister, the other Ministers
or the officers to whom powers of Provincial Government
may have been delegated under clause (2) of Article 139 of
the Constitution. Rule 5 of the Sind Government Rules of
Business provides that the cases enumerated in Schedule III
of the Rules shall be submitted to the Governor for approval.
The learned Additional Advocate General conceded that this
Schedule does not include cases of remission and suspension
of sentences granted by the Provincial Government under
section 401, Cr. P. C. In Venkatesh Yeshwant Deshpande v.
Emperor(I) (AIR 1938 Nag. 513), Deshpande had prayed to
the High Court for an order for being set at liberty on the
ground that in view of the remission earned by him, including
the remissions granted by the Local Government and the
Premier of the Province, he was entitled to be released but
was nevertheless being illegally detained. It was contended on
behalf of the Government that though, in view of the
remissions earned by Deshpande, he was entitled to be
released, but two days before the date of his release, the Local
Government had varied its previous order and directed that he
should not be released until further orders, Deshpande mainly
relied, in support of his claim for release, on an order
remitting one year of his sentence. This order was made in the
name of the Governor but was not issued or approved by him.
A Full Bench of the Nagpur High Court held the order of
remission to be valid and observed as follows:-
It is perhaps necessary to explain that though the order
is in the name of the Governor, that is the
Constitutional form it has to take. It is in reality an
order of the Provincial Government. In view of the
general misunderstanding on this point the Provincial
Government felt it necessary, after it had issued its

29
Aftab Ali v. The State and 2 others (PLD 1978 Karachi 807)
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order of cancellation dated 28th May, 1938, to issue a

press communique explaining this difference. It should
be understood that what is here involved are the acts,
powers and privileges of the Provincial Government
and not of His Excellency the Governor.”

85. With regard to the question of previous instances of issuance

of SOCs by the Governor himself, learned Assistant Advocate General
placed on record copies of following three notifications to contend that all
the executive authority is exercised in the name of the Governor:-
(i) SOCs issued vide Notification No. 2104-2019/751-
CL(II) dated 13.09.2019 for Grant of Lease to
Charitable Institutions or Organizations;
(ii) SOCs issued vide Notification No. 1835-2019/625-
CS(II) dated 13.09.2019 for Disposal of abandoned
paths, passages and water courses or ponds falling
within the private housing schemes; and
(iii) SOCs issued vide Notification No. 1610-2022/1400-
CSIII dated 14.04.2022, whereby, SOCs vide
Notification No. 1835-2019/625-CS(II) dated
13.09.2019 were amended as provided therein.

86. As such, in view of the foregoing, it was submitted that the

new SOCs have been issued validly which do not suffer from any legal
infirmity. It was also highlighted in this respect that the Colonies
Department has been authorized vide Second Schedule to Rules, 2011,
under the head of “Board of Revenue – (a) Colonies Department”, Entry
No. 9 to transfer the State land from one Department to another and to the
Federal Government.

87. It was next contended about the powers of a caretaker

government that if the intent of the law-makers was confined to the
conduct of elections only, this function could have best been performed by
the Election Commission itself. However, a careful and open-minded
reading of Section 230 of the Elections Act shall bring forth certain
unmistakable and equally important role and functions of the Caretaker
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Government. Section 230 of the Elections Act mandates or provides both

positive and negative covenants. The decision taken by the Caretaker
Cabinet is fully covered within the ambit and scope of the aforesaid
provision of law as the same was necessary to run the day to day business
of the GOP; was non-controversial; urgent; in public interest; and
reversible by the future elected government. At this juncture, several
important questions crop up: (i) If ensuring food security in the most
populous Province of Pakistan, i.e. Punjab, shall not be a ‘day-to-day
function of the GOP’, what else is? (ii) If the ever-increasing challenge qua
food security does not constitute an ‘urgent and non-controversial’ affair,
then what else does? (iii) If a project aimed at ensuring food security, not
only in the Province but also in the country (as Punjab is considered to be
the bread basket of Pakistan), does not constitute a matter of ‘public
interest’, what else shall? and lastly (iv) since as per Clause 8 titled
‘Special Provisions’ of the JVA, whereby, no proprietary rights shall
accrue to the lessee, tenure of the lease is for a fixed period of 20+10 years
(neither extendable nor renewable) and the land (whole or any part thereof)
can be resumed at any time even before the expiry of the JVA, how can the
arrangement be regarded as irreversible? Further, the new SOCs qua CAF
can be reversed by the future elected government through a simple policy
notification to such an effect. As such, the new SOCs and the JVA do not
constitute irreversible activities.

88. Similarly, in case of negative covenants as contained in

Section 230(2) of the Elections Act, each stipulation is qualified with an
exception. The provision states that a caretaker government shall not take
major policy decisions, except on urgent matters. If food security does not
constitute an urgent matter, what else does? Since the new SOCs and the
JVA constitute an arrangement arising therefrom that is reversible and not
permanent coupled with the fact that under the Punjab General Clauses
Act, 1956, the new SOCs can be withdrawn by the future elected
government, the new SOCs and the JVA constitute a reversible
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arrangement for all intents and purposes and do not prevent the exercise of
authority by the future elected government.

89. Interpreting ‘shall not enter into a major contract or

undertaking if it is detrimental to public interest’, he explained that the
word ‘if’ is of immense significance in this sentence as it signifies that a
caretaker government can enter into a major contract or undertaking as
long as it is not contrary to public interest. Hence, given the reversible and
urgent nature of CAF project, principle approval whereof had been granted
by an Elected Government, if same is not outrightly in public interest,
what else is? The fact that the matter relates to ‘food security’ makes an
imperative for any government regardless of its status since the same also
derives its validity and force from Article 38(d) of the Constitution which
mandates the State to provide basic necessities of life, such as food,
clothing, housing, education and medical relief, for all such citizens,
irrespective of sex, caste, creed or race, as are permanently or temporarily
unable to earn their livelihood on account of infirmity, sickness or
unemployment. Reliance was also placed on the Principles of Policy
enshrined in Articles 29 & 30 of the Constitution. He explained that the
importance of Principles of Policy has been highlighted in Miss Benazir
Bhutto 30 case in the following words:-

“This ideal can only be achieved under the rule of law by

adopting the democratic way of life as ensured by
Fundamental Rights and Principles of Policy. The intention of
the framers of the Constitution is to implement the principles
of social and economic justice enshrined in the Principles of
Policy within the framework of Fundamental Rights. Chapters
I and II of Part II of the Constitution which incorporate
Fundamental Rights and directive principles of State policy,
respectively occupy a place of pride in the scheme of the
Constitution, and these are the conscience of the Constitution,
as they constitute the main thrust of the commitment to socio
economic justice. The directive principles of State Policy are
to be regarded as fundamentals to the governance of the State
30
Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 Supreme
Court 416), esp. P-489
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but they are not enforceable by any Court. Nonetheless, they

are the basis of all legislative and executive actions by the
State for implementing the principles laid down therein. As
the principles of democracy are not based on dogmas and also
do not accept the theory of absolutes in any sphere of socio-
economic justice, therefore, the authors of the Constitution,
by enumerating the Fundamental Rights and the Principles of
Policy, apparently did so in the belief that the proper and
rational synthesis of the provisions of the two parts would
lead to the establishment of an egalitarian society under the
rule of law. However, while implementing the directive
Principles of Policy, the State should not make any law which
takes away or abridges the Fundamental Rights guaranteed by
Chapter I in view of the embargo placed by Article 8(1) and
(2). Necessarily, therefore, the directive principles of State
Policy have to conform to and to operate as subsidiary to the
Fundamental Rights guaranteed in Chapter 1, otherwise the
protective provisions of the Chapter will be a mere rope of
sand. Law, in the achievement of this ideal, has to play a
major role, i.e., it has to serve as a vehicle of social and
economic justice which this Court is free to interpret.”

90. Similarly, right to food has been declared as a fundamental

right in various Judgments of the Superior Courts, the relevant portions
whereof were relied upon which are reproduced herein below:
“3. … Learned Additional Attorney-General stated that it is
job of the provincial governments to control prices in terms of
The Price Control and Prevention of Profiteering and
Hoarding Act, 1977 read with Foodstuffs (Control) Act 1958
which is applicable to all the Provinces. There is no doubt that
food security has to be ensured by the Federal Government
and for this purpose a Ministry in the name of National Food
Security and Research has been created and this Ministry has
fixed the price of wheat as Rs. 1200 per 40 k.g. for the year
2012-2013 meaning thereby that ordinarily at the cost of
Rs.30 per k.g. wheat shall be made available and the
Provincial Governments are also duty bound to ensure that the
wheat/Ata is supplied and being sold at the subsidized rates.
Section 3 of the Foodstuffs (Control) Act, 1958 confers
powers upon the Government to control supply, distribution
etc. of foodstuffs….
4. It is also to be noted that under Article 38 of the
Constitution of Islamic Republic of Pakistan it is
responsibility of the State to secure the well-being of the
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people by raising their standard of living, by preventing the

concentration of wealth and means of production and
distribution in the hands of a few to the detriment of general
interest and to make adequate livelihood with reasonable rest
and leisure. Clause (d) of the same provides that the State
shall make available basic necessities of life, such as food,
clothing, housing, education and medical relief for all such
citizens irrespective of sex, caste, creed or race. But, prima
facie, it appears that no such mechanism has been adopted so
far by the Government in this respect.”31
“2. …and now in continuation thereof it is well settled that
right to food, water, decent environment, education, medical
care and livelihood are inherent in right to life; which also
encompasses within its fold right to social security…”32
“11. Our courts have expanded the right to life over time and
held that it includes "the right to legal aid; the right to speedy
trial; the right to bare necessities of life; protection against
adverse effects of electro-magnetic fields; the right to pure
and unpolluted water; the right of access to justice;" the right
to livelihood, the right to travel, the right to food, water,
decent environment, education and medical care…”33

91. Since, food is not only a matter as provided in Principles of

Policy of the Constitution but in the light of above dicta of the Superior
Courts, it is also amply clear that the same constitutes a fundamental right
and any policy made in furtherance of the goal to secure this cardinal right
for the people of Pakistan, shall qualify for all the functions as well as
exceptions as provided within the scope of Section 230 of the Elections
Act.
92. Although, the arguments and averments of Petitioners’ side
relied on a selective reading of the text of various law(s) and stipulations
of the impugned new SOCs and the JVA, however, as per the dicta of the
Superior Courts as well as in accordance with jurisprudence as has
developed in the matter, the Courts are more inclined to adopt and further

31
Regarding enormous increase in the price of Flour: In the matter of Constitutional
Petition No. 52 of 2013 (2014 SCMR 329)
32
Nestle Pakistan v. Director PESSI and others (PLD 2019 Lahore 515)
33
Hafiz Awais Zafar v. Judge Family Court, Lahore and 2 others (PLD 2022 Lahore
756)
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an approach of purposive and harmonious interpretation of Statues so as to

give full meaning and effect to various provisions of law. In this regard,
reliance was placed on JS Bank Limited34 case, wherein, it was held in
paragraph No. 13 as under:-
“13. Moreover, the legal text must be interpreted in the
context of its purpose. This Court has consistently ruled that a
purposive rather than a literal approach to interpretation is to
be adopted while interpreting Statutes. An interpretation
which advances the purpose of the Act is to be preferred
rather than an interpretation which defeats its objects.
Reference can be made to the judgments reported as "Saif-Ur-
Rehman v. Additional District Judge, Tuba Tek Singh and 2
others" (2018 SCMR 1885) and "Rab Nawaz Dhadwanai
Advocate and others v. Rana Muhammad Akram Advocate
and others" (PLD 2014 Lahore 591).”

Further reliance was place on the cases of Saif-ur-Rehman; Messrs Sui

Southern Gas Company Limited; Hudabiya Engineering (Pvt.) Limited;
and Dr. Tariq Iqbal35. It was importantly held in referred Dr. Tariq Iqbal
case as under:-

“8. Before embarking upon the exercise for attempting to

interpret the aforesaid provision, it may be appropriate to
restate the cardinal and well settled principle of interpretation,
which requires that a purposive rather than a literal approach
of interpretation be adopted as has been held by this Court
inter alia, in the judgment reported as Federation of Pakistan
through Ministry of Finance and others v. Messrs Noori
Trading Corporation (Private) Limited and 14 others (1992
SCMR 710), Hudabiya Engineering (Pvt.) Limited v. Pakistan
through Secretary, Ministry of Interior, Government of
Pakistan and 6 others (PLD 1998 Lahore 90) and Saif-ur-
-Rehman v. Additional District Judge, Toba Tek Singh and 2
others (2018 SCMR 1885).

34
JS Bank Limited, Karachi and others v. Province of Punjab through Secretary Food,
Lahore and others (2021 SCMR 1617)
35
Dr. Tariq Iqbal and 8 others v. Government of Khyber Pakhtunkhwa through
Secretary Administration Peshawar and others (2019 SCMR 859); Saif-ur-Rehman v.
Additional District Judge, Toba Tek Singh and 2 others (2018 SCMR 1885); Messrs
Sui Southern Gas Company Limited through Attorney v. Oil and Gas Regulatory
Authority through Chairperson and 2 others (PLD 2021 Islamabad 378); and
Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of
Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90)
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11. It is in the above backdrop, the contention of the learned

Additional Advocate General, KPK that a person employed
by any department, office or agency that has its own pool of
residential accommodation is not entitled or eligible for
allotment of accommodation in the general pool even though
he is also not entitled to be considered for allotment of
residential accommodation in the department, office or
agency where he is currently employed cannot be occupied.
Such an interpretation would disentitle such persons from
residential accommodation both in the department, office or
agency as well as in the general pool. Such interpretation
could not be considered to be either logical, purposive or
beneficial. When viewed in its true perspective, it is clear and
obvious that section 7(3) of the Act of 2018 merely provides
that a public office holder can either be entitled to or eligible
for allotment in the general pool or in the pool of his own
department, office or agency if it has such a pool but a public
office holder not eligible for allotment under the pool of his
department, office or agency, is obviously, eligible for
allotment in the general pool, as it cannot be the intention of
the legislature to totally exclude such public office holder
from any and all official residential accommodations.”

93. As such, interpretation of extant provisions of law has to be

undertaken with a more purposive approach with regard to various
challenges qua laws and their scope especially in situations, where an
apparent limited scope of a particular provision of law may result in a
situation that may defeat the very purpose of that law.
94. In this regard, Lord Denning in the case of Seaford Court
Estates, Ltd.36 expressed the view regarding the principle laid down in
Winchester Court37 case in the following terms:-
“Whenever a statute comes up for consideration it must be
remembered that it is not within human powers to foresee the
manifold sets of facts which may arise, and, even if it were, it
is not possible to provide for them in terms free from all
ambiguity. The English language is not an instrument of
mathematical precision. Our literature would be much the
poorer if it were. This is where the draftsmen of Acts of
Parliament have often been unfairly criticized. A Judge,
36
Seaford Court Estates, Ltd. v. Asher (1949 All E.L.R. 155 (Vol.2))
37
Winchester Court Ltd. v. Miller (1944 All E.L.R. Annotated 106 (Vol.2))
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believing himself to be fettered by the supposed rule that he

must look to the language and nothing else, laments that the
draftsmen have not provided for this or that, or have been
guilty of some or other ambiguity. It would certainly save the
judges trouble if Acts of Parliament were drafted with divine
prescience and perfect clarity. In the absence of it, when a
defect appears a judge cannot simply fold his hands and
blame the draftsman. He must set to work on the constructive
task of finding the intention of Parliament, and he must do
this not only from the language of the statute, but also from a
consideration of the social conditions which gave rise to it and
of the mischief which it was passed to remedy, and then he
must supplement the written word so as to give “force and
life” to the intention of the legislature…. A judge should ask
himself the question how, if the makers of the Act had
themselves come across this ruck in the texture of it, they
would have straightened it out? He must then do as they
would have done. A judge must not alter the material of
which the Act is woven, but he can and should iron out the
creases.”

95. In another case of Tirath Singh38, the Indian Supreme

Court quoting a passage from Maxwell on the Interpretation of Statutes,
Twelfth Edition, expressed and recognized it as a well-established rule of
interpretation. The passage is as follows:-

“Where the language of a statute, in its ordinary meaning and

grammatical construction, leads to a manifest contradiction of
the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably
not intended, a construction may be put upon it which
modifies the meaning of the words and even the structure of
the sentence.”

96. Taking heed from above, it is obvious that the need and
pertinence of a caretaker setup in the Province is but cardinal when the
elections to the Provincial Assembly are to take place in order to ensure
and safeguard not only a free, fair, transparent and non-partisan elections
for the establishment of a representative government but also to ensure
good governance and smooth functioning of the government in the
38
Tirath Singh v. Bachittar Singh & others (1955 AIR (SC) 830)
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interregnum period. As such, interpretation of extant provisions has to be

done keeping in view the above.

97. He further emphasized that the principle of “Casus Omissus”

meaning that cases of omission, that is, an omission in Statute cannot be
supplied by construction does not stand in the way of this Court which is
called upon to remedy a mischief in matters of cardinal and urgent public
interests as held by the Indian Supreme Court in the case of National Taj
Traders39, in paragraph No. 10 that:

“Two principles of construction-one relating to casus omissus

and the other in regard to reading the statute as a whole-
appear to be well settled. In regard to the former the following
statement of law appears in Maxwell on Interpretation of
Statues (12th Edn.) at page 33:
In other words, under the first principle a casus omissus
cannot be supplied by the Court except in the case of clear
necessity and when reason for it found in the four corners of
the statute itself but at the same time a casus omissus should
not be readily inferred and for that purpose all the parts of a
statute or section must be construed together and every clause
of a section should be construed with reference to the context
and other clauses thereof so that the construction to be put on
a particular provision makes a consistent enactment of the
whole statute. This would be more so if literal construction of
a particular clause leads to manifestly absurd or anomalous
results which could not have been intended by the Legislature.
"An intention to produce an unreasonable result", said
Danckwerts L.J. in Artemiou v. Procopiou, "is not to be
imputed to a statute if there is some other construction
available". Where to apply words literally would "defeat the
obvious intention of the legislation and produce a wholly
unreasonable result" we must "do some violence to the
words" and so achieve that obvious intention and produce a
rational construction. (Per Lord Reid in Luke v. I.R.C., 1963
AC 557 where at p. 577 he also observed: "this is not a new
problem, though our standard of drafting is such that it rarely
emerges….”

39
Commissioner of Income-Tax, Central Calcutta v. National Taj Traders (AIR 1980
Supreme Court 485)
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98. Thus, where every attempt must be made to preserve the law
as enacted, the Courts while interpreting the same must not loose sight of
underlying intent of such a provision of law, especially if it may defeat
other extant and equally (if not more) pertinent provisions of law, while
having due regard to the very need and therefore, intent of such a
legislation. Further, a caretaker government is after all, also a government
and is obligated to perform certain functions inherent to any government
within the scope and mandate of Section 230 of the Elections Act.
99. Since the State is a continuous entity and does not come to an
end, its functions too are of permanent nature and cannot be suspended
during any interregnum period, especially when confronted with a function
as primary as ensuring ‘food security’. The scope and extent may vary of
course and the same have been dealt amply within the body of Section 230
of the Elections Act but the impugned new SOCs and the JVA do not
constitute any deviation from the said or any other provision of law.
100. Lastly, it was pointed out that during the course of arguments
on behalf of the Petitioners, an attempt had been made to give an
impression as if the entire land of the Province had been allocated for CAF
project at the cost of rights of individuals. This, at the best, is an over
statement being far-fetched and in complete divorce to the actual facts of
the matter. In fact, CAF project is being undertaken in furtherance of rights
of the people of Pakistan qua ‘food security’. Further, apart from the said
project, there are several ongoing schemes for the consumption and benefit
of people of Punjab. One such Scheme is the TCLS announced in the year
2019. Under the TCLS, land has been leased out to eligible individuals as
per the following statistics up-till now:-

Land leased out within the 26,400 Acres in 4,218 Lots

Prohibited Zone:
Land leased outside the 233,676 Acres in 16,842 Lots
Prohibited Zone:
Total land leased out 260,076 Acres in 21,060 Lots
under the said scheme so
far:
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101. As evident from above, a total of 21,060 lots have been leased
out to people under the TCLS and the process is ongoing. Even otherwise,
apart from the TCLS, there are several other ongoing schemes which are as
follows:
- Lease of State land for NGOs / Charitable Institutions.
- Lease of State land under Petrol Pump Scheme.
- Disposal of State land under utilization of Shops (state
land is disposed of either through lease or sale through
open auction).
- Exchange of State land in shape of abandoned paths /
passages and channels.
- Lease of State land in favour of Divisional Public Schools.
- Transfer of State land in favour of Provincial Government
Departments under extant laws.
- Transfer of State land in favour of Federal Government
Departments under extant laws.

102. Mirza Nasar Ahmad, learned Additional Attorney General of

Pakistan while addressing the constitutional and legal mandate of the
Pakistan Army submitted that Article 243 of the Constitution deals with
the establishment of Armed Forces of Pakistan and divides them into three
separate forces i.e. Army, Navy and Airforce. Article 245 of the
Constitution deals with duties of Armed Forces in terms of protection of
the country against external aggression and war and subject to any law, to
act in aid of civil power. The overall control and command of the Armed
Forces is with the Federal Government in terms of Article 243 of the
Constitution. There is, however, nothing in the Constitution or law under
which limits are placed on the scope of operations of the Pakistan Army
except that all the acts of the Pakistan Army must be under the supervision
and control of the Federal Government. In this regard, it may be mentioned
that the Constitution is not the source of power or authority of the State or
its institutions but it only regulates and limits powers, functions and
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authority of the State and its institutions. In the absence of express or

implied limitations, the State and its institutions can carry out any function,
business and project as long as they are not interfering in the lives of third
parties or persons. Thus, it is explicitly clear that under the Constitution
and law, there is no limitation on the Pakistan Army to carry out project
envisaged under the JVA. Further, there is no direction or instruction of
the Federal Government prohibiting the Pakistan Army to be part of such
an arrangement. With reference to requirement of approval of the Federal
Cabinet by the Pakistan Army or any of its Directorate before entering into
a contract, such as the JVA, it was stated that the Constitution itself
recognizes a distinction between contracts executed in exercise of
executive authority and those which are not in exercise of such authority.
Added that bare reading of Article 173 of the Constitution shows that
while contract regarding disposition of property will always be in exercise
of executive authority but no such restriction is placed on business
contracts or projects. Reliance was placed on Rai Sahib Ram Jawaya
Kapur40 case. The Mustafa Impex case (supra) relates to executive
authority of the Federation which in turn pertains to execution or
implementation of law and performing such other sovereign functions of
the State which do not come in the legislative or judicial domain. Any
project or business that can be performed or carried out by a private person
or company even if performed by a government will not fall within the
scope of executive authority and thus, will not be covered by the principles
settled in the said case. Consequently, no Cabinet approval was required
for such an act by the Federal Government or any of its institution.
Needless to state that carrying out a CAF project is not within the scope of
sovereign functions of the executive.

103. Learned Federal Law Officer also contended that in terms of

Article 243 of the Constitution read with Section 8(2) of the Army Act, the

40
Rai Sahib Ram Jawaya Kapur and others v. State of Punjab (1955 AIR (SC) 549)
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Chief of Army Staff (the “COAS”) is the sole commanding officer having
complete authority over the institution of the Pakistan Army. As such, he
can either himself or through delegation of powers may authorize any
officer on his behalf to grant permission for entering into an agreement
with any government, different departments and public / private bodies or
companies. In the instant case, the COAS authorized the DGSP on his
behalf to enter into the JVA with the GOP. Even otherwise, the question
regarding competence or authority of the person executing the document
can only be raised by a party to the document and not by the Petitioners.
Since in the instant case, neither the COAS nor the GOP has raised any
objection to the authority of the DGSP to execute the JVA, therefore, the
objection is liable to be discarded.

104. Learned Federal Law Officer also clarified that the Pakistan
Army is not investing any money in the project from its sources or tax
payer money, rather, the investment will be made by the local as well as
international investors and the Pakistan Army would merely facilitate the
project, to ensure food security. Further, in the light of Clause 5 of the
JVA, 20% of the total profit shall be used for research and development
after the approval of Joint Management Board as visualized in the JVA.
The remaining profit shall be shared equally between the parties. The
Pakistan Army will re-invest its profit share in CAF for its development on
international standards and return the fertile and developed land along with
infrastructure after completion of lease period to the GOP as per objective
enshrined in Clause 2 of the JVA, that is, the development plan of the
leased land which includes farming, raising of Livestock, Research and
Development activities and raising of infrastructure. Differentiating the
role of Lands Directorate and the DGSP of the Pakistan Army, he clarified
that Lands Directorate deals with different matters of military lands
including lands for welfare of Shuhada while the DGSP was established to
deal with projects of strategic nature having national importance which
include development of infrastructure and food security. Hence, the
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arrangement between the Pakistan Army and the GOP being in line with
the constitutional and legal framework is liable to be endorsed.
105. The able assistance of each one of the learned counsels for the
Petitioners and the Respondents is duly acknowledged and this Court
expresses its gratitude, accordingly.

V. POINTS OF DETERMINATION

106. The rival contentions of the Petitioners and the Respondents

in the titled and connected Petitions have been considered in the light of
case law relied upon by them. The following points of determination
emerge for decision by this Court.

(i) Whether the Petitions are not maintainable as the Petitioners

lack locus standi to invoke the jurisdiction of the Court and
the impugned transaction falls within the exclusive policy
making domain of the GOP?
(ii) Whether the impugned transaction approved by the Caretaker
Cabinet is within the ambit of Section 230 of the Elections
Act, particularly in view of previous ‘in principle’ approval
by the Elected Cabinet?
(iii) Whether approval of the new SOCs by the Ministerial
Committee in its meeting dated 14.10.2022 can be presumed
valid in absence of minutes of the meeting?
(iv) Whether the new SOCs approved and notified by the
Caretaker Government can be regarded as extension of the
original SOCs approved by the Elected Cabinet?
(v) Whether undue haste in the approval of the impugned
transaction exposes the bona fide intentions of the GOP?
(vi) Whether the impugned Notification is beyond the scope and
mandate of Section 10 of the Colonization Act?
(vii) Whether the impugned Notification issued by the Governor is
in violation of Section 10 of the Colonization Act?
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(viii) Whether the Pakistan Army in terms of its constitutional and

legal mandate is barred to venture into the impugned
transaction?

VI FINDINGS
Objection qua locus standi of the Petitioners

107. There is no cavil to the proposition that in order to invoke the

jurisdiction of this Court under Article 199(1)(a) and (c) of the
Constitution, the Petitioners are required to cross the caveats of ‘aggrieved
person’ or ‘locus standi’ and the absence of ‘adequate remedy provided by
law’. At the same time, Article 199(2) of the Constitution emphasizing the
importance of fundamental rights provides that subject to the Constitution,
the right to move a High Court for the enforcement of any of the
fundamental rights conferred by Chapter I of Part II shall not be abridged.
Determination of the eligibility of a person to invoke jurisdiction of the
Court under Article 199 of the Constitution is vested, in the first instance,
with the Court itself. The rule of locus standi has over the time received
liberal interpretation and any person or citizen of the State having
‘sufficient interest’ in the larger public interest has always been entertained
to maintain his grievance under Article 199 of the Constitution subject to
satisfying the other requirements of the said Article. The rule is
discretionary and no hard and fast rule can be laid down with respect to
determination of locus standi of a person to knock the door of this Court
under Article 199 of the Constitution. The discretion is exercised on the
basis of sound and established judicial principles depending on the facts
and circumstances of each case in the light of nature, substance and gravity
of the issues raised vis-à-vis their implications upon the rights and interests
of the people.

108. Importantly, when the matter brought to this Court relates to

breach or enforcement of any of the fundamental rights affecting the
citizens of the State as a whole including the person who has come forward
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to move the Court, the general and traditional rule to question the locus
standi of such person is relaxed and dispensed with in favour of an
exceptional rule and procedure available in public interest litigation
provided it is established that the person approaching the Court is acting
with bona fide and in all sincerity to protect the collective rights of the
people. It is well established that the scope and mandate of Article 199 of
the Constitution is discretionary, extraordinary and equitable. The rights
accruing to the citizens of the State may be in the nature of their personal
or collective rights. The initiative may, therefore, come from a concerned
citizen regarding the enforcement of a collective right of the society, which
of course, is also his own personal right being a member and part of the
society. In the instant case, the challenge aims to protect and preserve the
State property which, in essence, belongs to the people of Pakistan. Surely,
every citizen has ‘sufficient interest’ to protect and preserve property of
the State or at least ensure that it is put to use in the best interest of the
people. The Atta Ullah Khan Malik case (supra) extensively deliberated
the scope of public interest litigation with reference to public property. It
was held that any citizen or person has ‘sufficient interest’ and is therefore,
an ‘aggrieved person’ under Article 199 of the Constitution, if public
property is being acquired, held, used or disposed of by public
functionaries in violation of the law since public functionaries as trustees
of the people cannot have any personal interest in any public property.
Therefore, if there is any abuse of trust or violation of law, it confers a
right upon any member of the general public as an ‘aggrieved person’ to
invoke the constitutional jurisdiction of this Court, subject to fulfilling
other requirements under Article 199 of the Constitution.

109. Extensive case law was cited by the learned counsels

representing the Petitioners and the Respondents on the question of locus
standi of the Petitioners which has been sufficiently penned in the earlier
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parts of this Judgment relating to their respective contentions. Some other

important cases41 are also of significance.

110. Suffice is to hold that ultimately, the impugned action is

adjudged on the touchstone of principles of fairness, justness,
transparency, non-discrimination, reasonableness, diligence, bona fide, due
process, adherence to constitutional and legal provisions, processes and
lawful discharge of duties by the functionaries as trustees of public rights
and property. Measured on the aforesaid yardstick, if the impugned action
does not sustain, the person approaching the Court crosses the bridge of
locus standi. The quantum of public State land, sanctioning of the
impugned transaction by the Caretaker Government and the quest of the
Pakistan Army to venture into CAF are unusual aspects of this case which
warrant Judicial Review. The rule of ‘Standing’ is further diluted when
other Petitions were instituted in which the Petitioners were directly
affected from the impugned actions of the Respondents. Hence, this Court
is constrained to hold that objection of the Respondents qua
maintainability of the titled and connected Writ Petitions with respect to
locus standi of the Petitioners is without substance and the same is
overruled.

Objection qua executive exclusivity in policy making

111. The scheme of trichotomy of power envisaged under the

Constitution distributes core functions between the three organs of the
State, that is, the Parliament, the Executive and the Judiciary in terms of
legislation, exercise of executive authority and adjudication of rights and

41
Human Rights Case No. 11827-S of 2018: In the matter regarding Selling of National
Assets including PIA at Throwaway Price (2019 SCMR 1952); Dr. Imran Khattak and
another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others (2014 SCMR
122); Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 Supreme Court 52);
Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another (2004 PLC
(C.S.) 1142); Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD
1969 Supreme Court 223); and Mrs. Ifrah Murtaza and another v. Government of
Pakistan and others (PLD 2019 Lahore 565).
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interests of the people, respectively. The normal rule is that policy making
being an executive function is not amenable to Judicial Review by the
Courts unless the policy falls in any of the exceptions to the general rule.
The exceptions include if a policy is shown to be in violation of
fundamental rights, inconsistent to constitutional and statutory provisions,
or demonstrably arbitrary, capricious, mala fide, discriminatory or
unreasonable opposed to public policy. The challenge to the impugned
transaction revolved around breach of several fundamental rights including
non-discrimination, equality before law, due process, right to information
and protection of public property. Further, serious allegations were raised
with respect to various aspects of the impugned transaction qua
inconsistency to constitutional and legal provisions, breach of mandatory
legal procedures and processes and incapacity of the Respondents to
undertake and enter into the impugned transaction in terms of express
constitutional and legal limitations. The challenge extended to arbitrariness
and unreasonableness of the impugned transaction on the score that it
infringes all cannons of transparency, openness, non-discrimination, public
trust by fiduciaries and as such, is opposed to public policy. In such
circumstances, refusal to exercise the power of Judicial Review with
respect to the impugned transaction would constitute a breach of
constitutional duty imposed upon this Court. The Courts in Pakistan as
ultimate guardian and custodian of the rights and interests of the people
have always taken cognizance of violations in the disposal and transfer of
public property in order to protect, preserve and defend the Constitution. It
is always better if such cognizance is taken at the outset of a contemplated
transaction as it allows the government to take remedial measures and
protects the parties from colossal loss and injury. Therefore, the objection
qua maintainability of the titled and connected Petitions on the score that
the impugned transaction being a policy decision is not amenable to
Judicial Review by this Court, is turned down.
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Constitutional and legal mandate of the Caretaker Government

112. The concept of ‘caretaker government’ connotes that it is

installed for an interim or interregnum period when an elected or
legitimate government is not in place to achieve two-fold objectives, that
is, to provide continuity to the business of the State and ensure neutrality
to all political stakeholders who may contest the elections to form a future
government. ‘Caretaker government’ is defined as a government that is in
power temporarily until an election is held42. Similarly, another definition
describes ‘caretaker government’ as a temporary government
commissioned by the Governor General or a State Governor, usually for a
short period, until a stable government can be formed43. Therefore, it
follows that a caretaker government is generally established during the
time of uncertainty when either an elected or legitimate or stable
government, for any reason, is not in place. By its inherent nature, it is
temporary in character to be replaced with an elected or legitimate or
stable government. Thus, it is generally well established that there are
limitations and restrictions with respect to any caretaker government in
terms of its powers, functions and duties. Normal rule is that a caretaker
government limits itself to routine business of the State and in principle,
must refrain from making policy decisions.

113. The concept of ‘caretaker government’ in Pakistan is rooted

in Articles 224 and 224-A of the Constitution which entails that upon
dissolution of the National Assembly or a Provincial Assembly, as the case
may be, on completion of their term, or in case, they are dissolved earlier
in accordance with the Constitution, the President or the Governor, as the
case may be, shall appoint a caretaker Cabinet. The explicit reason of
installing and providing for a caretaker Cabinet is to fill the vacuum
created due to absence of an elected government during the limited or
interregnum period when the National Assembly or any Provincial
42
Dictionary of Politics and Government (Third Addition), P.H. Collin (P-33)
43
A Dictionary of Australian Politics, Robert Corcoran and Jackie Dickenson (P-29)
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Assembly is dissolved due to completion of its term or is earlier dissolved

in accordance with other provisions of the Constitution. Needless to state,
that the Constitution does not envisage any period when an elected
government is not in place in the country or in any Province except due to
expiry of term or where any of them stand dissolved in accordance with
the Constitution. Therefore, the ‘caretaker government’ under Articles 224
and 224-A of the Constitution is meant only for an interregnum period of
elections in accordance with the Constitution primarily as a neutral set-up
to the political stakeholders taking part in the elections and to provide for
continuity to the business of the State during the interregnum period. The
powers, functions, duties, limitations and restrictions of the ‘caretaker
government’ are spelled out in Section 230 of the Elections Act which is
reproduced as under:-

“Functions of caretaker Government.— (1) A caretaker

Government shall—
(a) perform its functions to attend to day-to-day
matters which are necessary to run the affairs of
the Government;
(b) assist the Commission to hold elections in
accordance with law;
(c) restrict itself to activities that are of routine, non-
controversial and urgent, in the public interest
and reversible by the future Government elected
after the elections; and
(d) be impartial to every person and political party.

(2) The caretaker Government shall not—

(a) take major policy decisions except on urgent
matters;
(b) take any decision or make a policy that may have
effect or pre-empt the exercise of authority by
the future elected Government;
(c) enter into major contract or undertaking if it is
detrimental to public interest;
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(d) enter into major international negotiation with

any foreign country or international agency or
sign or ratify any international binding
instrument except in an exceptional case;
(e) make promotions or major appointments of
public officials but may make acting or short
term appointments in public interest;
(f) transfer public officials unless it is considered
expedient and after approval of the Commission;
and
(g) attempt to influence the elections or do or cause
to be done anything which may, in any manner,
influence or adversely affect the free and fair
elections.

(3) The Prime Minister, Chief Minister or a Minister or any

other members of a Caretaker Governments shall, within three
days from the date of assumption of office, submit to the
Commission a statement of assets and liabilities including
assets and liabilities of his spouse and dependent children as
on the preceding 30th day of June on Form B and the
Commission shall publish the statement of assets and
liabilities in the official Gazette.

(4) In this section, ‘caretaker Government’ means the

caretaker Federal Government or a caretaker Provincial
Government.”
(Emphasis supplied)

114. Section 230 of the Elections Act contains both positive and
negative covenants, the conjunctive reading of which conclusively
establishes that there are serious limitations and restrictions imposed by
the Parliament upon the caretaker government in terms of its powers and
functions. The mandate or scope of a caretaker government is limited to
perform functions with respect to day-to-day affairs deemed to be
necessary to run the government which cannot be postponed to a future
date. It is obligated to assist the Election Commission of Pakistan to hold
elections in accordance with law. It is equally under a legal duty to
consciously restrict itself to routine, non-controversial and urgent matters.
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Such caveats or principles were introduced to necessarily refrain it from

taking any action which is not reversible by the future elected government.
The Parliament in order to ensure that the caretaker government does not
exceed its scope and mandate put in place an embargo upon the caretaker
regime not to take major policy decisions except on urgent matters or
make a policy which would have the effect to pre-empt the exercise of
authority by the future elected government. The caretaker government is
also barred from entering into any major contract or undertaking
detrimental to public interest. The statutory standards have been
elaborately interpreted in various factual contexts by the Superior Courts
and some of the observations with respect to the interpretation of Section
230 of the Elections Act have already been quoted in Part III of this
Judgment by the Petitioners that need not be reiterated to avoid repetition.
Section 230 of the Elections Act provides this Court a statutory yardstick
to opine on any decision, act or action taken by a caretaker government in
exercise of power of Judicial Review depending upon the facts and
circumstances of each case.

115. There is no denial of the fact that CAF is a major policy

initiative. The importance and significance of CAF was pleaded as a long-
term policy response by the Elected Government to the challenge of food
insecurity. Accordingly, the formation of the policy was triggered by
moving a summary to the Chief Minister, Punjab on 25.06.2021 initially as
a part of CPEC. It is apparent that the GOP was considering to open the
agriculture sector to attract foreign investment in order to bring the barren
accessible State land under cultivation to enhance agricultural productivity
and employment with focus on transfer of technology. It may not be out of
place to mention that concept of Agriculture Promotion Companies was
also introduced under Section 457 of the Companies Act, 2017 to provide
for specialized corporate vehicle to facilitate investment in the agriculture
sector. After passing through governmental procedures, the original SOCs
were approved by the Elected Cabinet in its 51 st meeting held on
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28.02.2022. A lease and rental model in conformity with the mandate of

Section 10 of the Colonization Act was developed. The minimum
threshold of five hundred Acres with no cap on the upper ceiling and
minimum lease period of 20 years was fixed with an option of renewal
subject to certain conditions as an incentive to attract investment.
Importantly, 100% foreign equity was allowed along with some other
facilities. Lease was permissible to a company or companies who could
form a joint venture amongst themselves. One of such companies, as a part
of joint venture, was obligated to register or incorporate in Pakistan. The
option of transferring land from government to government was
recognized. However, conspicuously, only lease through open auction on
rental basis was visualized. Though there is no specific stipulation to this
effect yet it is quite apparent from the overall reading of the original SOCs
that the option of leasing by the GOP to another government was
incorporated with reference to foreign governments and their entities as the
major purpose of the initiative was to attract foreign investment and seek
transfer of technology. Importantly, there was no concept of transfer of
land on lease to any government or its entity on ‘single source’ and a
uniform competitive process was stipulated. The Elected Cabinet
conditionally approved the original SOCs, in principle, by directing to
place the same before the specifically constituted Ministerial Committee
consisting of nine members including four Ministers and five bureaucrats.

116. It is noted that the Elected Government was treading upon

CAF initiative with care, caution and responsibility considering the gravity
and magnitude of the policy measures. Eight months were taken from the
date of moving the summary from the Chief Minister, Punjab to its
conditional approval by the Elected Cabinet. It was still ordered to be
placed before the Ministerial Committee and had also to be placed before
the Provisional Assembly for consideration as per the recommendation of
the Standing Committee. The aforesaid facts clearly signify that matter in
the opinion of the previous Elected Government was neither a day-to-day
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routine affair nor of an urgent nature, rather, was such a major long-term
policy decision having social and economic impact that it required
thorough deliberation and consideration before it could be finalized. The
importance of CAF policy can be judged from the fact that it was a first
policy of its own kind. All previous policies of the GOP regarding leasing
land to tenants were for small holdings to alleviate poverty and generate
livelihood for maximum households. In the CAF Policy, the size of
holding was to be substantially increased to achieve economy of scale. As
such, it was a major policy shift from past practices. The lease of a
minimum period of 20 years with conditional right of renewal was surely
an irreversible policy decision, for once rights were created in favour of
lessees, the same could not have been arbitrarily reversed at the whims or
option of any future government. There is no doubt that the objective of
securing food security is an important public interest but the same imposes
a corresponding duty on the public representatives and governmental
functionaries as fiduciaries to safeguard public interest as custodians of
public property. The decision of the Caretaker Cabinet to approve the new
SOCs definitely had the effect to pre-empt the exercise of authority by the
future elected governments. As such, the act of the Caretaker Government
to pick the thread from where it had been left by the previous Elected
Government and proceed further was beyond its scope and mandate in
terms of Section 230 of the Elections Act and was a blatant attempt to
encroach upon the domain of the future elected governments.

Validity of approval of the new SOCs by the Ministerial Committee

117. The case of the Respondents is that the Caretaker Government

was well within its mandate to approve the new SOCs as the same had
already been approved ‘in principle’ by the previous Elected Government
and the former had merely implemented the unfinished task, as such, had
not taken any new policy decision at all. To examine the contention, the
alleged meeting of the Ministerial Committee carries utmost importance
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for the reason that it was alleged that the original SOCs were thrashed out
by the Ministerial Committee and duly approved in the form and substance
of the new SOCs which were later approved by the Caretaker Cabinet and
as such, the latter was merely implementing an approved initiative which
fell in the day-to-day routine affairs of the Caretaker Government being an
urgent measure to ensure food security in public interest.

118. In the original replies filed by the Respondents, there was no

record of the minutes or proceedings of the Ministerial Committee.
However, when the Respondents were directed to place the proceedings of
the Ministerial Committee’s meeting on record, the Respondents failed to
do so. It was vigorously claimed that such a meeting was indeed held but
candidly conceded that no minutes with reference to the meeting of the
Ministerial Committee could be recorded. An attendance sheet pasted in
the factual part of this Judgment along with file noting was relied upon to
substantiate the claim. A feeble attempt was made to persuade this Court
that Secretaries as Departmental Representatives validly represented the
nominated absentee Ministers which was permissible under the Rules,
2011 and that the Ministerial Committee had approved the original SOCs
with certain amendments which were later approved by the Caretaker
Cabinet.

119. It is noted that Cabinet is empowered under Rule 25(3) of the

Rules, 2011 to constitute Standing or Special Committees and may assign
to each a class of cases or a particular case. Unless the Cabinet authorizes
otherwise, the decisions of a Committee formed by the Cabinet are subject
to ratification of the Cabinet under Rule 25(2) of the Rules, 2011, thus,
mandating that after consideration of the matter by the Standing or Special
Committee, another approval from the Cabinet in the form of ratification is
warranted even if there are no changes or amendments in the matter under
consideration by any such Committee. The conjunctive reading of Rule 28
of the Rules, 2011 ordains that the Secretary is ordinarily required to
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attend the Cabinet meeting in the presence of the Minister unless otherwise
directed. However, the Secretary, in the absence of the Minister, is
required to invariably attend the meeting of the Cabinet, if an item relating
to his Department is on the agenda. In the case of absence of the Minister,
the Secretary can request for postponement of an agenda. When the
Secretary attends a Cabinet meeting in the absence of the Minister, the
record of minutes of the meeting regarding relevant items are sent to the
Secretary, instead of the Minister, on account of absence of the latter so
that the Secretary attending may point out any mistake or omission.

120. The Secretary as administrative head of the Department is

under the control of his Minister-in-charge and is obliged to work under
his direction and supervision keeping him informed of all important
matters, particularly proceedings attended by the Secretary in the absence
of the Minister. In fact, the Secretary under Rule 10(1)(e) of the Rules,
2011 is mandatorily required to submit, with the approval of Minister,
proposals for legislation to the Cabinet. In the instant case, the concerned
Secretaries attending the Ministerial Committee’s meeting did not take any
approval of their respective Ministers. Rather, in the absence of minutes,
there was no question of obtaining any approval. Moreover, the Ministerial
Committee consisted of specified persons including Ministers and officers
who could not have been substituted by anyone else except without cause
which act of absence was subject to mandatory subsequent approval. The
mere presence of a Minister and the Secretary in a meeting or the
entitlement of the Secretary to represent the Minister in his absence does
not mean that the office of Secretary and Minister are synonym or inter-
changeable in performance of their constitutional and legal functions. The
Rules, 2011 merely allow representation in case of absence for the smooth
conduct of official business. In any event, the Rules, 2011 framed under
the Constitution are mandatory procedural stipulations for the conduct of
official business and do not pre-empt the specific constitutional
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and legal duties imposed by the Constitution and law upon the holders of
any constitutional and public office. Therefore, the claim of approval of
the new SOCs by the Ministerial Committee by substituting or amending
the original SOCs in the absence of minutes and without three out of four
Ministers in the absence of their subsequent approval exposes the
hollowness and callousness of the assertion and illuminates the dangers
associated to any caretaker regime. The claim is in flagrant and blatant
disregard of all accepted cannons of transparency and reasonableness even
decency. Thus, the averment of approval of the new SOCs by the
Ministerial Committee is, at best, based on a presumption on which the
entire edifice of legal and executive superstructure in terms of their
approval by the Caretaker Cabinet, issuance of the impugned Notification,
execution of the JVA and sanctioning of vesting of some chunks of
identified land in favour of the Pakistan Army was raised. It is regretted
that no member of the Caretaker Cabinet questioned the propriety of the
transaction which was completely based on a presumptive hypothesis. The
mere fact of non-recording of minutes of the Ministerial Committee was
enough for any man of ordinary prudence acting with minimum threshold
of wisdom and reasonableness to raise an objection thereto, especially
when such record was the bridging trail between the original SOCs and the
new SOCs. This Court is, therefore, constrained to hold that the claim of
approval of the new SOCs by the Ministerial Committee vide meeting
dated 14.10.2022 is a nullity in the eyes of law.

The original SOCs vis-à-vis the new SOCs

121. The new SOCs approved by the Caretaker Cabinet and the
subsequent incorporation of the same in the impugned Notification under
Section 10 of the Colonization Act manifestly depicts that there were
conspicuous and material policy deviations from the original SOCs
approved by the Elected Cabinet. The objective of CAF initiative was
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extended from agricultural sector to the livestock sector. The CAF

initiative was no longer limited to barren cultivable or accessible land but
‘State land’ subject to its availability for CAF was defined to mean any
land owned by the GOP under the administrative control of the Collector
or in use of any Department of the GOP. The GOP was conferred power to
establish a Cabinet Committee through a notification for approval of size
of the lot, schedule and base rent etc. and to take decision regarding export
of products and by-products, meaning thereby, that a fair amount of
flexibility was being achieved through delegation of executive authority.

122. The concept of ‘lease’ through open auction was no longer,

the only mode of conferring land since the same was supplemented by
‘lease through single source’. The introduction of this new facet
completely and substantively altered the original SOCs. Lease through
single source was made possible without any auction proceedings in
favour of the Departments of the Federal or Provincial Governments and
their attached Departments, semi-attached Departments and institutions or
companies having sole ownership of the Federal or Provincial
Governments and foreign governments through their entities. The BOR
was allowed to submit the case of lease through single source directly to
the GOP for approval of its terms and conditions including details of the
State land, a draft joint venture agreement, a draft proposal for the board of
management for each joint venture with a minimum one-third
representation from the GOP, net sharing mechanism and modalities and a
profit share of the GOP which shall not be less than 33% in the proposed
mechanism. As such, not only Clause 5 of the Notification was a clear
departure from the original SOCs approved by the Elected Government but
was also self-contradictory in terms that a profit-sharing mechanism
cannot be termed as a lease. Hence, a completely new methodology of
utilizing State land under a joint venture was introduced as a policy
measure. The option of forming a joint venture under the original SOCs
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was reserved for the participating lessees but here the GOP itself was
conceived to become a joint venture partner. A ‘joint venture’, in essence,
is a partnership between two and more entities and is a separate business
model which cannot be termed as a ‘lease’. It appears that the use of the
word ‘lease’ was merely used or deliberately inserted due to statutory
requirement of Section 10 of the Colonization Act which will be discussed
in later part of this Judgment. Power was also conferred upon the BOR to
include or exclude any piece of State land being used by any Department
in the schedule of the new SOCs after approval of the Cabinet Committee
constituted for this purpose. Therefore, two different models, ‘lease
through open auction on rental model’ and ‘joint venture on profit-sharing
model’ were made part of the new SOCs. Moreover, as a policy measure,
it had the potential to completely exclude public participation giving rise to
the question as to whether it was detrimental or beneficial to public
interest. The policy also had serious financial implications for the GOP
and the people of the Punjab as the profit-sharing formula is based on a
presumption that the joint venture model would always be profitable.
Given the checkered history of ‘State Owned Enterprises’ in our country,
the claim is highly objectionable and offends public policy for if there are
losses or no profits, who would be responsible to the people as the
caretaker Cabinet is not elected by the people and is not accountable to the
Provincial Assembly. Clause 5(a) of the JVA importantly states that the
Pakistan Army as lessee shall share the profit after return of its initial
investment. Needless to state that such initial investment which is also
unspecified may never be returned. Importantly, size of the tenancy under
the original SOCs was fixed for five hundred Acres or above which
normally signify that except in exceptional cases, the ceiling would be
adhered to enjoining greater public participation but the new SOCs
eliminated the threshold of ceiling altogether. The power of resumption
under Clause 15 of the Notification with respect to the new SOCs
regarding the leased land was also introduced, in case, the same was
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required by a research institute of Agriculture and Livestock Departments

or for public purpose which also appears to be directly in conflict with the
initial period of lease of 20 years in terms of Clause 9 thereof since no
consequences flowing out of such resumption are stipulated in the
Notification vis-à-vis the corresponding vested right of lease in favour of a
lessee in terms of the latter’s loss of investment. Therefore, it is safely
concluded that the new SOCs were drastically and fundamentally distinct
and different in terms of policy measures in comparison to the original
SOCs in manifold ramifications, and as such, were beyond the mandate
and scope of the Caretaker Cabinet. Even otherwise, any change in the
original SOCs required mandatory approval by an Elected Cabinet before
the issuance of the impugned Notification in terms of statutory stipulation
under Section 10 of the Colonization Act and the Mustafa Impex case
(supra). In fact, even if there had been no change in the original SOCs by
the Ministerial Committee, the Elected Cabinet was required to
unconditionally approve or ratify it again since the Elected Cabinet as a
whole is not bound by any ‘recommendations’ or ‘no recommendations’ of
the Ministerial Committee and itself holds the final authority regarding
approval of a proposal in its final and conclusive terms. Therefore, the
argument that the Caretaker Cabinet was merely implementing an already
approved CAF initiative of the previously Elected Government in
furtherance of ‘in principle’ approval of the latter is a mere fantasy. Hence,
the approval of the new SOCs by the Caretaker Cabinet was unlawful and
of no legal effect.

Undue haste

123. It is equally disturbing to note the undue haste with which the
impugned transaction went through different stages of its approval. The
Pakistan Army as potential lessee directly approached the GOP seeking
land for CAF through letter dated 08.02.2023 even before the approval of
the new SOCs by the Caretaker Cabinet and the issuance of the
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Notification. The claim of the Pakistan Army having rich experience in

development of waste barren land was not supported by any empirical or
statistical data. It was merely a bald claim coupled with a thrust for its self-
acclaimed help and cooperation for CAF initiative. It triggered a swift
meeting dated 15.02.2023 by the Chief Secretary constituting survey teams
in compliance of the communicated desire. All the Departments readily
came on board, the partnership proposal in the nature of joint venture was
formulated and presented to the Caretaker Cabinet which was duly
approved. Interestingly, 96,671 Acres of identified State land belonging to
different Departments of the GOP coupled with commitment for the
provision of one million Acres of State land in Cholistan was approved.
The proposed Board of Management for joint venture containing four in-
service ex-officio Army Officers i.e. Adjutant General, DGSP, Director
General Lands and Director Lands along with a number of bureaucrats as
representatives of the GOP was allowed, thereby, completely excluding the
elected representatives. The sanctioned proposal also carried a
commitment for other unutilized and undeveloped land which was to be
identified by the BOR. It was conspicuously stated that the Board of
Management under the JVA shall approve all the policies for utilization of
State land including its commercial and research use and that the Board of
Management may establish companies for running the operations on
commercial basis. It was clarified that the GOP will provide land as an
equity investment and the Pakistan Army will make investment on the land
(preferably). The profit-sharing formula was approved on 50:50 basis after
excluding 20% profit for research and development work. Importantly, a
Negotiating Committee was also set-up under the chairmanship of the
Chief Secretary containing all the bureaucrats which was empowered to
add or delete land owned by various Departments to the extent of one
million Acres depending upon the suitability of State land. The
Negotiating Committee was also given the power to sign Management
Agreement with the Pakistan Army with mutually negotiated terms and
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conditions within the ambit of the new SOCs. The JVA was also approved
and later executed between the Governor of the Punjab acting through the
Member Colonies, BOR and the Pakistan Army acting through the DGSP.
The GOP assumed the responsibility to provide canal water or electricity
wherever available, construct farm to market roads on mutually agreed
terms and conditions and seek benefit from various subsidy schemes. A
District Management Committee was also set-up under the JVA for
smooth implementation of the project in each District. The Negotiating
Committee hurriedly convened a meeting on 24.03.2023 and approved the
transfer of readily available 45,267 Acres of the agricultural State land in
the use of various Departments out of agreed 96,571 Acres of
Departmental land as approved by the Caretaker Cabinet. This was
followed by sanction of the said State land in Districts Sahiwal, Khushab
and Bhakkar vide letters dated 29.03.2023 in favour of the Pakistan Army
and the name of Pakistan Army / Ministry of Defence was directed to be
incorporated as a lessee in the cultivation column of revenue record. Thus,
the stalled initiative during the period of Elected Government was
reignited on 08.02.2023 and was completed on 29.03.2023 to the extent of
45,267 Acres land and CAF as a policy initiative under the complete
control and hegemony of the GOP and the Pakistan Army was set in
motion for more than one million Acres of land in complete oblivion and
exclusion of the future elected governments and elected representatives of
the people. The undue haste, abhorrent and horrendous fashion with which
the impugned transaction regarding CAF initiative involving huge
quantum of public immovable property was approved is extremely
deplorable and is perhaps unprecedented by any caretaker government
entailing serious breaches of fundamental rights, transparency,
reasonableness and openness which is deeply lamented, regretted and
accordingly, disapproved.
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Scope and mandate of Section 10 of the Colonization Act

124. Legal shelter was provided to CAF initiative under the

Colonization Act, an examination whereof, reveals that it was promulgated
to make better provision for the colonization and administration of the
GOP lands in the Punjab. Section 3 of the Colonization Act defines
‘Tenant’ as any person holding land in a colony as a tenant of the GOP.
Section 4 of the Colonization Act ordains that the GOP has the power
through a notification to extend its application to any other land which at
the time of notification is the property of the GOP. Therefore, the
Colonization Act has an effective domain to regulate all lands of the GOP,
subject to control and directions of the latter. The impugned Notification
providing legal sanction to the transaction was issued under Section 10 of
the Colonization Act which importantly reads as under:-
“Issue of statements of conditions of tenancies.– (1) The
Board of Revenue subject to the general approval of the
Government may grant land in a colony to any person on such
conditions as it thinks fit.
(2) The Provincial Government may issue a statement or
statements of the conditions on which it is willing to grant
land in a colony to tenants.
(3) Where such statements of conditions have been issued, the
Collector may, subject to the control of the Board of Revenue,
allot land to any person, to be held subject to such statement of
conditions issued under sub-section (2) of this section as the
Collector may by written order declare to be applicable to case.
(4) No person shall be deemed to be a tenant or to have any
right or title in the land allotted to him until such a written
order has been passed and he has taken possession of the land
with the permission of the Collector. After possession has
been so taken, the grant shall be held subject to the conditions
declared applicable thereto.”
(Emphasis Supplied)

125. It follows that under Section 10(1) of the Colonization Act,

the legislature delegated the power upon the BOR subject to the approval
of the GOP to grant land to ‘any person’ on ‘such conditions as it thinks
fit’. The BOR in exercise of such power was entitled to present a proposal
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to the GOP for grant of land in favour of any person. The proposal was
subject to the mandatory condition of approval by the GOP which in the
light of Mustafa Impex case (supra) was required to be extended by the
Cabinet. This provision is limited to ‘grants’ only and it may be invoked to
confer land to the Departments or any other person to achieve the public
purposes as deemed appropriate by the GOP. In contrast, Section 10(2)
relates to ‘tenants’ and it proclaims that land can be granted to tenants only
by the GOP itself subject to issuance of a legislative instrument under the
doctrine of delegated legislation in the nature of SOCs determining the
terms of grant of land in favour of tenants. Therefore, the scope of Section
10(2) is limited to grant of land to ‘tenants’. The provision is more
stringent than mere grant of land under Section 10(1) and allows for
structured discretion in terms of conditions to ensure equality, non-
discrimination and transparency vis-à-vis the tenants through the SOCs.
Needless to state that the GOP was directly delegated both executive and
legislative authority by the Provincial Assembly while promulgating the
Colonization Act. The exercise of power of subordinated legislation in
terms of issuance of SOCs to grant land to tenants was required to be
exercised by the Cabinet in light of Mustafa Impex case (supra). Secondly,
the power to issue a notification by the GOP was also required to be
exercised precisely in the manner conferred by law44. Once a valid
notification is issued, the Collector subject to the control of the BOR may
allot land to any person with the caveat that land cannot be allotted in
contravention of SOCs in terms of Section 10(3) of the Colonization Act.
The Collector may declare in his written order of allotment as to which of
the terms stipulated in SOCs would apply to the allottee. However, the
allotment order must be confined to SOCs and anything beyond that would
be unlawful. The significance of the written order of allotment by the
Collector is spelled out in Section 10(4) of the Colonization Act which

44
Abdur Rehman v. Secretary to the Government of West Pakistan Colony Department
and others (1980 CLC 1042); and Menghay Khan and others v. Karam Din and others
(PLD 1978 Rev. 66)
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unequivocally declares that no person is recognized as a tenant or can

claim any right or title in the allotted land in the absence of written order
of the Collector and must take possession of allotted land with the
permission of the Collector. Importantly, the text of Section 10(1), (3) and
(4) of the Colonization Act uses the word ‘person’, whereas, Sub-section
(2) thereof employs the word ‘tenants’. Taken as a whole, Section 10(1) &
(2) of the Colonization Act are mutually exclusive as the former relates to
‘grants only to any person’, whereas, the latter pertains to ‘grants to
tenants only’. Section 10(3) & (4) of the Colonization Act are in
furtherance to the controlling Sub-Section (2) of Section 10 of the
Colonization Act. The controlling provision limits the power of the GOP
to grant land to ‘tenants only’ and the furthering provisions spell out the
methodology of allotment and possession along with attached covenants.
The intentional use of the word ‘tenant’ in Section 10(2) of the
Colonization Act is clarified by the legislature by using the term ‘no
person shall be deemed as a tenant’ employed in Section 10(4) of the
Colonization Act leaving no doubt that land can only be granted under
Section 10(2) of the Colonization Act to ‘tenants’ only and ‘person’ in
terms of Sub-sections (3) & (4) of Section 10 of the Colonization Act is no
one else but a ‘tenant’. The interpretation is in conformity with the cardinal
principle of interpretation of Statutes which provides that word or subject
used in the charging or controlling Section would control the word or
subject used in the procedural or subservient provisions.
126. Section 11 of the Colonization Act further recognizes the
‘grant of tenancy’ pursuant to and in accordance with any SOCs and later
provisions of the Colonization Act deal with various rights and obligations
of tenancy confirming beyond doubt that the law primarily relates to
regulation of the GOP lands in terms of grants and tenancy. The exercise
of power of resumption under Section 24 of the Colonization Act is only
possible in case of breach of terms of SOCs. Section 30 of the
Colonization Act recognizes the power of the GOP to confer proprietary
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rights and as such, the rights of tenancy can culminate into proprietary
rights.
127. The first question confronting this Court is that can the
contemplated transaction under challenge be categorized as tenancy in
terms of the scheme of law encapsulated in the Colonization Act. In
dictionary meaning, ‘tenancy’ refers to a legal arrangement in which the
lessee has a right to use the property owned by someone else in exchange
for paying rent to its owner. It would be advantageous to reproduce the
definitions of ‘lease’, ‘rent’, ‘tenant’, ‘tenancy’, ‘joint venture’ and
‘partnership’ as follows:-
“A “lease” of immovable property is a transfer of a right to
enjoy such property, made for a certain time, express or
implied, or in perpetuity, in consideration of a price paid or
promised, or of money, a share of crops, service or any other
thing of value, to be rendered, periodically or on specified
occasions to the transferor by the transferee, who accepts the
transfer on such terms45.”

“Rent” means whatever is payable to a landlord in money,

kind or service by tenant on account of the use or occupation
of land held by him; but it shall not include any cess, village
cess or other contribution or due or any free personal service;

“Tenant” means a person who holds land under another

person, and is or, but for a special contract, would be liable to
pay rent for that land to that other person;

“Tenancy” means a parcel of land held by a tenant or landlord

under one lease or one set of conditions46”

“Joint Venture” means a business undertaking by two or more

persons engaged in a single defined project. The necessary
elements are (1) an express or implied agreement; (2) a
common purpose that the group intends to carry out; (3)
shared profits and losses; and (4) each member’s equal voice
in controlling the project47”

45
Chapter V, Section 105 of the Transfer of Property Act, 1882
46
Sub-Sections (3) (5) & (8) of Section 4 of the Punjab Tenancy Act, 1887 (Act No.
XVI of 1887)
47
Black’s Law Dictionary (Tenth Edition), Bryan A. Garner (P-967)
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“Partnership” is the relation between persons who have

agreed to share the profits of a business carried on by all or
any of them acting for all48.

128. It follows that the scope of Section 10(2) of the Colonization

Act is limited to tenants who become lessee of the GOP under SOCs and
are obliged to pay rent to the GOP. Partnership and joint venture are
distinguished from each other in terms that former is an arrangement based
on profit and loss sharing between two or more persons within one firm,
whereas, a joint venture is a combination of two or more natural or juristic
persons, as such, distinct legal entities that seek the development of a
single enterprise or project for profit, sharing the risks associated with its
development. As a corporate model, it is generally used between two or
more entities when they wish to combine such resources which they may
not possess separately but deem it necessary for the success of the project.
For example, one party has the required investment while the other
possesses technology, the combination of which is deemed imperative by
both the parties. Thus, ‘lease on rent basis’ and ‘joint venture on profit
sharing basis’ are two separate models, the latter being effectively
excluded from the purview of Section 10(2) of the Colonization Act.

129 The impugned contemplated transaction is admittedly a joint

venture between the GOP and the Pakistan Army. It is established on
record that GOP was willing to grant land as equity and the Pakistan Army
was willing to develop and make use of it for CAF. The Pakistan Army
was not under any obligation to pay rent or lease money for the land vested
in the GOP. Rather, a profit-sharing formula was put in place. The reason
of the joint venture was cited as special expertise of the Pakistan Army to
undertake the venture and all the specialized Departments of the GOP
including Agriculture and Livestock acquiesced to their respective lack of
capacity and expertise in this regard. The impugned Notification was

48
Chapter II, Section 4 of the Partnership Act, 1932
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admittedly issued under Section 10(2) of the Colonization Act as SOCs for
grant of State land can only be issued under the said provision. It is quite
obvious that a joint venture on profit-sharing basis was beyond the scope
of Section 10(2) of the Colonization Act as its mandate was limited to
creation of tenancy. However, in order to forcibly bring the transaction
within the scope of the controlling provision of Section 10(2) of the
Colonization Act, several provisions were incorporated in the Notification
forgetting that SOCs cannot travel beyond the scope of the controlling
provision and the Colonization Act as a whole. A definition of ‘lessee’
was inserted in the new SOCs to include any person to whom State land
was leased under the new SOCs. This was apparently done to assign a
nomenclature of ‘lessee’ to the Pakistan Army as a joint venture partner to
circumvent the limited mandate of Section 10(2) of the Colonization Act.
Lease through single source was regarded a ‘lease’ under the new SOCs
yet it was subjected to a profit-sharing formula in contrast to a lease
through open auction which was based on a rental model. The
incorporation of two separate models in the new SOCs itself testifies that
the provisions of the impugned Notification travelled beyond the scope of
Section 10 of the Colonization Act as the parent Statute. The arrangement
is thus held ultra vires and unlawful.

Issuance of Notification by the Governor

130. The procedural aspect of the impugned Notification relates to

its issuance. Its opening part reads as under:
“In exercise of the powers conferred under section 10 of the
Colonization of Government Lands (Punjab) Act, 1912 (V of
1912), Governor of Punjab is pleased to issue the following
Statement of the Conditions for lease of specified State land
for corporate agriculture farming, with immediate effect:”

(Emphasis Supplied)
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131. In order to address the question, it would be beneficial to

reproduce Articles 173, 137, 138 and 139 of the Constitution in this
respect which reads as under:
“173. (1) The executive authority of the Federation and of a
Province shall extend, subject to any Act of the appropriate
Legislature, to the grant, sale, disposition or mortgage of any
property vested in, and to the purchase or acquisition of
property on behalf of, the Federal Government or, as the case
may be, the Provincial Government, and to the making of
contracts.
(2) All property acquired for the purposes of the Federation
or of a Province shall vest in the Federal Government or, as
the case may be, in the Provincial Government.
(3) All contracts made in the exercise of the executive
authority of the Federation or of a Province shall be expressed
to be made in the name of the President or, as the case may
be, the Governor of the Province, and all such contracts and
all assurances of property made in the exercise of that
authority shall be executed on behalf of the President or
Governor by such persons and in such manner as he may
direct or authorize.
(4) Neither the President, nor the Governor of a Province,
shall be personally liable in respect of any contract or
assurance made or executed in the exercise of the executive
authority of the Federation or, as the case may be, the
Province, nor shall any person making or executing any such
contract or assurance on behalf of any of them be personally
liable in respect thereof.
(5) Transfer of land by the Federal Government or a
Provincial Government shall be regulated by law.

137. Subject to the Constitution, the executive authority of

the Province shall extend to the matters with respect to which
the Provincial Assembly has power to make laws:
Provided that, in any matter with respect to which both
Majlis-e-Shoora (Parliament) and the Provincial Assembly of
a Province have power to make laws, the executive authority
of the Province shall be subject to, and limited by, the
executive authority expressly conferred by the Constitution or
by law made by Majlis-e-Shoora (Parliament) upon the
Federal Government or authorities thereof.
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138. On the recommendation of the Provincial Government,

the Provincial Assembly may by law confer functions upon
officers or authorities subordinate to the Provincial
Government.

139. (1) All executive actions of the Provincial Government

shall be expressed to be taken in the name of the Governor.
(2) The Provincial Government shall by rules specify the
manner in which orders and other instruments made and
executed in the name of Governor shall be authenticated, and
the validity of any order or instrument so authenticated shall
not be questioned in any court on the ground that it was not
made or executed by the Governor.
(3) The Provincial Government shall also make rules for
the allocation and transaction of its business.”

132. It is evident from the above that an act of grant, sale,

disposition or mortgage of any property in itself is an executive function
and is included in the executive authority of a Province. However, it is
importantly subject to the Act of appropriate Legislature as in this case, the
Colonization Act. Thus, it is pertinent to discover the nature and substance
of the executive act. As already stated above, the power conferred upon the
GOP under Section 10(2) of the Colonization Act is in the nature of
delegated legislation. Any notification to be issued thereunder by the GOP
is a legislative instrument. The process of issuance of Notification involves
exercise of partly executive and partly legislative authority. For instance,
the making of proposal by the BOR, its submission to the Chief Minister,
Departmental inputs, consideration and approval by the Cabinet are
executive acts but once the same are concluded, the process of issuance of
notification under Section 10(2) is a pure legislative act since a notification
is a legislative instrument falling within the purview of subordinate or
delegated legislation. Once issued, further executive authority is exercised
by the functionaries of the GOP as per stipulations listed in such a
notification. This is precisely what Article 173(1) holds.
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133. Thus, when the legislature delegated the executive and

legislative authority under the doctrine of delegated legislation in terms of
Section 10 of the Colonization Act, the executive authority of exercising
the grant of lease or for that matter, the legislative authority in terms of
issuance of any notification would be regulated as per the express terms of
Section 10 of the Colonization Act. Article 139 of the Constitution further
ordains that all executive actions of the Provincial Government shall be
expressed in the name of the Governor in accordance with the Rules, 2011.
Rule 12(1) of the Rules, 2011 requires that no order shall be issued without
the approval of the Governor in cases mentioned in Part-A of Third
Schedule thereof. However, no item therein relates to delegated legislative
instruments such as the impugned Notification. Rather, the matter squarely
falls under Rule 14(1) of the Rules, 2011 read with Item No. 19 of Part-A
of Seventh Schedule thereof being a case pertaining to ‘policy decision’
and ‘delegated legislation’ requiring approval of the Chief Minister
through the Cabinet. The case was required to be submitted to the
Governor only for information under Rule 13(4) read with Third Schedule,
Part B, item No. 3 of the Rules, 2011 which requires that summaries for
the Cabinet, minutes and decisions of its meetings will be placed before
the Governor for his information. The administration of the Colonization
Act fell within the ambit of the Colonies Department of the BOR in terms
of distribution of business under Rule 3(3) read with Second Schedule of
the Rules, 2011 and the Notification was required to be issued by the
Secretary of the Colonies Department on behalf of the GOP. It is noted
that it is well entrenched in our jurisprudence that when a law requires a
thing to be done in a particular manner, it should be done in that manner,
or not done at all. As such, the act of issuance of a notification under
Section 10(2) of the Colonization Act is not an executive act but a
legislative act which is required to be issued accordingly. Therefore, the
impugned Notification was required to be issued by the GOP in exercise of
powers conferred by the Colonization Act. On the same corollary and
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without prejudice to legal challenges on other grounds, the execution of

the JVA being an executive act, by the GOP expressed in the name of
Governor was lawful and that by the Pakistan Army not expressed in the
name of the President was unlawful. Therefore, the issuance of
Notification by the Governor was unlawful. Several notifications were
placed before this Court during the course of arguments under Section 10
of the Colonization Act which showed that some were issued by the
Governor while some were issued by the GOP through the Secretary
Colonies such as notification No. 947-91/3319-CL-(II) dated 17.10.1991.
The confusion, thus, stands clarified, accordingly.

Constitutional and legal mandate of the Pakistan Army

134. The evolution and development of the institution of ‘State’ is

perhaps the most acclaimed, celebrated and cherished achievement of
human race in political and social history. Its premises is rooted in
dominant human instinct to live an orderly and disciplined life, sine qua
non, for progress, prosperity and peace of any society. The proclivity to
dwell together and form associations culminated into tribes and ultimately
evolved into the State. The history of Western State can be traced in
ancient Greece. Plato and Aristotle wrote of the polis or city-state, as an
ideal form of association, in which the whole community's religious,
cultural, political and economic needs could be satisfied. This city-state,
characterized primarily by its self-sufficiency, was seen by Aristotle as the
means of developing morality in human character. The Greek idea
corresponds more accurately to the modern concept of the nation i.e., a
population of a fixed area that shares a common language, culture and
history. Similarly, the Roman res publica, or commonwealth, is akin to the
modern concept of the State. The res publica was a legal system whose
jurisdiction extended to all Roman citizens, securing their rights and
determining their responsibilities. With the fragmentation of the Roman
system, the question of authority and the need for order and security led to
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a long period of struggle between the warring feudal lords of Europe.

Eventually, the struggle culminated into the establishment of a modern
State in a form of political association or polity that is distinguished by the
fact that it is not itself incorporated into any other political association,
though it may incorporate other associations. The State is, thus a supreme
corporate entity because it is not incorporated into any other entity, even
though it might be subordinate to other powers (such as another State or an
empire). One State is distinguished from another by having its own
independent structure of political authority and an attachment to separate
physical territories. The State as a modern political construction which
emerged in early modern Europe has been replicated in all other parts of
the world. The most important and distinct aspect of the State that
separates it from other forms of political associations is its abstract quality
that it is an overarching and exclusive corporate entity in a defined
territory on which it exercises internal and external sovereignty with
respect to a permanent population by establishing a Government having
the capacity to maintain internal order and enter into relations with other
sovereign States. The State consists, most broadly, upon the agreement of
the individuals on the means, whereby, resources are employed in the
interest of the people to achieve their will and disputes are settled in the
form of laws.49 In essence, the agreement is a social contract between the
people backed by their will and sanction.

135. Pakistan is a State governed by a written Constitution. It is set

up as Islamic Republic which envisages a federal structure and trichotomy
of powers between the Parliament, the Executive and the Judiciary.
Various institutions are created under the overarching constitutional
scheme which play a crucial role in the governance of the nation and
discharge of State obligations, duties, and functions towards the people. It
is universally accepted that the primary responsibility of any State is to
49
https://www.britannica.com/topic/state-sovereign-political-entity. For various aspects
of statehood, also see, International Law, 4th Edition by Malcolm N. Shaw.
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maintain law and order which falls within the executive organ of the State.
The State of Pakistan is of no exception. Recognizing the same, the
preamble of the Constitution unequivocally declares that the territories of
Pakistan forming the FOP and all its rights on land, sea and air, shall be
safeguarded. The objective is achieved by exercise of power and authority
through the chosen representative of the people in accordance with the
principles of democracy, freedom, equality, tolerance and social justice.
The purpose is to enable the citizens to order and fashion their lives in the
individual and collective spheres in accordance with their beliefs in a
manner that guarantees fundamental rights including equality of status,
opportunity and before law, social, economic and political justice, freedom
of thought, expression, belief, faith, worship and association subject to law
and public morality so that the people of Pakistan may prosper amongst
the nations of the world and make their full contribution towards
international peace and progress and happiness of humanity. 50

136. The institution of the Armed Forces of Pakistan was

conceived to discharge the pivotal duty of the State in terms of protection
of its frontiers and its citizens against external aggression and internal
disturbances which may impair the collective will of the people of Pakistan
to live an orderly and disciplined life regulated by law. Accordingly,
Articles 243 to 245 were enacted in the Constitution in the following
terms:-
“243. (1) The Federal Government shall have control and
command of the Armed Forces.

(2) Without prejudice to the generality of the foregoing

provision, the Supreme Command of the Armed Forces shall
vest in the President.

(3) The President shall subject to law, have power—

50
Preamble of the Constitution
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(a) to raise and maintain the Military, Naval and Air

Forces of Pakistan; and the reserves of such
Forces; and
(b) to grant Commission in such Forces.

(4) The President shall, on advice of the Prime Minister,

appoint—
(a) the Chairman, Joint Chiefs of Staff Committee;
(b) the Chief of the Army Staff;
(c) the Chief of the Naval Staff; and
(d) the Chief of the Air Staff,
and shall also determine their salaries and allowances.

244. Every member of the Armed Forces shall make oath in

the form set out in the Third Schedule.

245. (1) The Armed Forces shall, under the directions of the
Federal Government defend Pakistan against external
aggression or threat of war, and, subject to law, act in aid of
civil power when called upon to do so.
(2) The validity of any direction issued by the Federal
Government under clause (1) shall not be called in question in
any court.
(3) A High Court shall not exercise any jurisdiction under
Article 199 in relation to any area in which the Armed Forces
of Pakistan are, for the time being, acting in aid of civil power
in pursuance of Article 245: Provided that this clause shall not
be deemed to affect the jurisdiction of the High Court in
respect of any proceeding pending immediately before the day
on which the Armed Forces start acting in aid of civil power.
(4) Any proceeding in relation to an area referred to in
clause (3) instituted on or after the day the Armed Forces start
acting in aid of civil power and pending in any High Court
shall remain suspended for the period during which the
Armed Forces are so acting.”

137. It is evident from the bare reading of the aforesaid

constitutional provisions that the institution of the Armed Forces was
created by the Constitution itself under the control and command of the
Federal Government. Realizing the importance of the Armed Forces with
respect to its foremost duty regarding the protection of citizens against
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external aggression or internal disturbances, the supreme command was

vested in the institution of the President who is the symbol of unity of the
State, although the executive authority of the FOP is exercised through the
Prime Minister and the Federal Cabinet in terms of Articles 90 and 91 of
the Constitution. The Armed Forces are divided into three branches, that
is, the Army, Navy and Air Forces corresponding to the duty of the State
to protect land, sea and air of Pakistan. Considering the peculiar
composition of the institution of Armed Forces, it is required by the
Constitution that each and every member of the Armed Forces shall make
an oath swearing faith and allegiance to Pakistan, to uphold the
Constitution embodying the will of the people, to refrain from engaging in
any political activities, whatsoever and honestly and faithfully serve
Pakistan as required by and under the law. Article 245 of the Constitution
without doubt clarifies that the Armed Forces shall defend Pakistan against
external aggression and threat of war under the directions of the Federal
Government and can only act in aid of civil power when called upon to do
so subject to law. Thus, it is manifestly clear that the Constitution
emphasizes that the Armed Forces are always subject to the Constitution
and law and directions of the Federal Government.

138. The Army Act has been promulgated for the effective
operation and functioning of the Pakistan Army and is employed to run the
institution. There is no provision therein which allows the Pakistan Army
to undertake any function beyond the prescribed constitutional mandate in
Article 245 of the Constitution. Thus, there is not a single act beyond the
internal functioning of the institution which can be undertaken by the
Armed Forces on their own without the directions or approval of the
Federal Government or the command of law. As is customary with every
military of the world, Article 260 of the Constitution while defining
“members of the Armed Forces” states that the term does not include
persons who are not, for the time being, subject to any law relating to the
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members of the Armed Forces. Hence, the pride of any member of the
Armed Forces is that as a member thereof, such person is under the law
regulating the particular branch of the Armed Forces and in terms of his
functions, is not subjected to ordinary law of the land which is applicable
to the civilian population. The rationale of the aforesaid dictate is rooted in
the cardinal principle that the Armed Forces being a disciplined and armed
force in terms of its peculiar duties must be effectively separated from the
civilian functioning of the State. Therefore, the members of the Armed
Forces as a principle should not be assigned any permanent civilian role
which allows their interaction with the civilian population or with the civil
administration of the State to avoid disputes and differences which are
inherent in any civilian disposition so that each member of the Armed
Forces can function beyond political divide and perform his duties in a
neutral and non-partisan manner. Such is the importance of this rule that
Article 245(3) of the Constitution even ousts the jurisdiction of the High
Court under Article 199 of the Constitution in relation to any area in which
the Armed Forces of Pakistan, for the time being, are acting in aid of civil
power in pursuance of Article 245 of the Constitution. Similarly, Article
199 of the Constitution which provides constitutional remedy to the
citizens of Pakistan for the enforcement of their fundamental rights also
ordains in sub-Article (3) thereof, that the High Court shall not make an
order under sub-Article (1) thereof, on application made by or in relation
to a person who is a member of Armed Forces of Pakistan or who is for the
time being subject to any law relating to any of those Forces, in respect of
his terms and conditions of service, in respect of any matter arising out of
his service, or in respect of any action taken in relation to him as a member
of the Armed Forces of Pakistan or a person subject to such law. The
above articulation postulates that the institution of Armed Forces of
Pakistan as an institution of the State is to be kept in segregation or
oblivion to all other civil institutions of the State so that it can focus upon
its primary responsibility of defending Pakistan and protecting its people
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without being involved in any kind of political, social or economic divide

which may erode its professional capability, neutrality, prestige and pride.
139. The scope and mandate of the Armed Forces of Pakistan have
been exquisitely interpreted in the cases of Sindh High Court Bar
Association; Air Marshal (Retd.) Muhammad Asghar Khan; and Prof.
Zahid Baig Mirza (supra) which are extensively quoted in Part-III of this
Judgment under the head ‘contentions of the Petitioners’ and need not be
reiterated for the sake of brevity. Suffice is to reiterate that it has been
rightly concluded therein that any action of the Armed Forces undertaken
without the direction or approval by the Federal Government shall always
be unlawful, unconstitutional, void ab initio and consequently, of no legal
effect. It has also been aptly determined that the Armed Forces fall under
the control of the Ministry of Defence. Various Directorates have been set
up by the General Headquarters of the Pakistan Army for its internal
functions. The Directorate or Department dealing with lands has a
restricted mandate with respect to land allocated for the use of branches of
Armed Forces or the Pakistan Army in order to manage and retain it
according to the scheme of governing law. The administration of military
lands and cantonments group is also under the administrative control of the
Ministry of Defence. Therefore, it is evident from record that the venture
to adventure into CAF initiative by the DGSP was not approved by the
Federal Government as admittedly no approval of the Federal Cabinet as
per the mandate of Mustafa Impex case was placed on record. Although,
there is also no approval of the COAS authorizing the DGSP to undertake
CAF initiative yet during arguments it was claimed that the DGSP acted
under the approval of CAF initiative by the COAS. It is safely concluded
that even if there is any such approval, the same without the approval of
the Federal Government was unconstitutional and unlawful.

140. The Respondents by conceding that no approval of Federal

Government was obtained submitted that CAF initiative being a
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commercial venture did not require approval of the Federal Government.

As already discussed above that the Pakistan Army cannot do anything of
its own, it is held that the restricted mandate of the Pakistan Army in terms
of Article 245 of the Constitution is comprehensive and extends to every
function of the Pakistan Army and includes all commercial activities. The
Pakistan Army is funded out of public money through budgetary
allocation. Learned Additional Attorney General when confronted that
how the Pakistan Army undertook to make investment in the CAF
initiative as it is not a profit earning institution, submitted that investment
was to be received through local and foreign partners and the Pakistan
Army was to facilitate such investment for CAF. Again, even the quest for
such a role is unlawful and beyond comprehension. Therefore, the
contention that CAF initiative being a commercial contract did not require
the approval of the Federal Government is misconceived being in flagrant
disregard of Article 245 of the Constitution and the holding of the Apex
Court to the effect that the Armed Forces cannot do anything of their own
without the approval or direction of the Federal Government.

141. The argument of learned Additional Attorney General that the

scheme may be construed in terms of Article 147 of the Constitution which
empowers the GOP with the consent of the Federal Government to entrust,
either conditionally or unconditionally, to the Federal Government, or to
its officers, functions in relation to any matter to which the executive
authority of the Province extends provided that the Provincial Government
shall get the function so entrusted ratified by the Provincial Assembly
within 60 days, is inherently flawed and misconceived. This is for the
reasons that neither any request of the GOP or the consent of the Federal
Government is on record and more so, the Provincial Government is not in
existence to ratify the same. This is notwithstanding that such entrustment
with respect to CAF initiative would also be in breach of the restricted
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mandate of the Caretaker Government in terms of Section 230 of the

Elections Act as well as the mandate of the Pakistan Army.
142. It is universally established and accepted principle that no
institution can operate or perform any function beyond the express
mandate conferred by the Constitution or law and the moment it steps
outside its given mandate, its operation or performance of that function
would be unconstitutional or unlawful. Of course, the Pakistan Army is of
no exception. The institution of the Armed Forces of Pakistan was
established with a clear, restricted and limited mandate. In the modern
world, a credible institution takes pride in its excellence in terms of its
specialized knowledge, training, expertise and achievements in the field of
its activity or defined ambit vis-à-vis other competing institutions within
the same field. Conversely, it negatively and adversely reflects upon the
reputation and professionalism of an institution that in oblivion to its duties
endeavours to assume role assigned to other institutions. The seldom
departure by the Pakistan Army may occasion in the peculiar context of
history marred with military interventions that blurred the conceived
segregation of the Armed Forces from civilian administration of the State.
The interference into civilian realm, is therefore, liable to be rectified by
the Armed Forces through conscious steps for unwanted historical chapters
can be set at naught through affirmative and positive acts of the present
and future. The real purpose of Judicial Review by the Courts is not
limited to examine the impugned transaction but it affords an opportunity
to every institution or functionary whose acts and actions are under
scrutiny to redress its transgressions through effective steps and reforms to
ensure that such violations are prevented in future leading to an
illuminated way forward in conformity with the Constitution and law. The
people of Pakistan have the foremost right to expect and demand that the
Armed Forces being the foremost institution for the protection of their life,
liberty and property may rise to the occasion and be regarded as the most
professional, focused and respected militaries of the world. The objective
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can only be achieved by strict adherence to its constitutional role. The act
of the GOP and the DGSP to undertake CAF initiative under a joint
venture being beyond the constitutional mandate of the Pakistan Army is,
accordingly, held as unconstitutional and unlawful.

VII CONCLUSION

143. The constitutional scheme imposes an obligation on the State

to ensure the elimination of all forms of exploitation and the gradual
fulfillment of the fundamental principles, from each according to his
ability to each according to his work. The Constitution guarantees that
every person shall have the right to be treated in accordance with law and
no action shall be taken which is detrimental to the life, liberty, body,
reputation or the property of any person except in accordance with law.
The State comprises of the Federal Government, the Parliament, a
Provincial Government, Provincial Assembly and such local or other
authorities in Pakistan as are by law empowered to impose any tax or
cess.51 The Constitution confers a number of important fundamental rights
upon the people including the right of every citizen to acquire, hold or
dispose of the property subject to the Constitution and any reasonable
restrictions imposed by law in the public interest.52 All State resources
including immovable property vested in the State belong to the people of
Pakistan. The Government and its functionaries are custodians of the State
property and are accountable to the people through their chosen
representatives. There are corresponding obligations upon them to be
always loyal to the Constitution and in turn, the people of Pakistan and as
trustees and fiduciaries, to always hold and dispose of property in
accordance with dictates of the Constitution and law. Chapter 2 of Part-II
of the Constitution enunciates the directive Principles of Policy and
declares that it is the responsibility of each organ and authority of the State
and of each person performing functions on behalf of an organ or authority
51
Articles 1, 3, 4 and 7 of the Constitution
52
Articles 23 and 24 of the Constitution
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of the State, to act in accordance with those principles in so far as they

relate to the functions of the organ or authority. The President in relation to
the affairs of the Federation and the Governor of each Province in relation
to the affairs of the Province is obligated to get a report prepared and lay it
before each House of the Parliament or as the case may be, the Provincial
Assembly, regarding implementation and observance on the Principles of
Policy.53
144. Importantly, Article 37(f) of the Constitution obligates the
State to enable the people of different areas through education, training,
agriculture and industrial development and other methods to participate
fully in all forms of national activities including employment in the service
of Pakistan. Similarly, Article 38 of the Constitution requires that the State
shall endeavour to secure the well-being of the people, irrespective of sex,
caste, creed or race by raising their standard of living, preventing the
concentration of wealth and means of production and distribution in the
hands of a few to the detriment of general interest and by ensuring
equitable adjustment of rights between employers and employees and
landlords and tenants. The State is equally under a duty to distribute the
available resources in a manner that generates livelihood so that the
citizens can have access to the necessities of life such as food, clothing,
housing, education and medical facilities. The underlying principle is to
reduce disparity in the income and earning of its citizens.54
(Emphasis Supplied)

145. It, therefore, follows that the directive Principles of Policy

unequivocally expect the governments in the country to frame policies
keeping in view the underlying objectives. The impugned policy of CAF is
inherently in violation of the guiding principles listed above for the reason
that State land comprising more than one million Acres was reserved for
one particular entity, thereby, concentrating holding in one hand, whereas,
53
Article 29 of the Constitution
54
Articles 37 & 38 of the Constitution
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it is possible and equitable to frame a policy that calls for inclusion of

maximum number of persons to ensure that they may earn their livelihood
by taking State land on lease. Further, through the impugned policy, the
cultivators of State land would become employees instead of being direct
lessees which shall reduce their earnings and means of livelihood. The
objective of CAF initiative can be well achieved by fixing a ceiling and
making a transparent competitive policy so that State land could be
divested as lease to maximum beneficiaries who may get benefit from
transfer of technology and collaborate with foreign entities willing to
invest in the sector. This was precisely the model which was being
considered by the previous Elected Government. An equally important
policy consideration is that State property may be disposed of in a manner
that fetches maximum return to the State because in the last resort the
property belongs to the nation as a whole and not to a few beneficiaries of
a particular scheme. In this context, the Superior Courts have repeatedly
emphasized competitive, published, open and transparent processes to
fetch maximum price. The profit-sharing model envisaged by the
Caretaker Cabinet with inherent risk of loss is against such dictates.
Therefore, the impugned policy does not adhere to the guiding Principles
of Policy enshrined in the Constitution. It is also noted that on account of
various economic, social and cultural aspects of the policy, it was aptly
and rightly recommended by the Standing Committee that it may be
considered by the Provincial Assembly.
146. In view of the foregoing, it is safely concluded that the
Caretaker Cabinet manifestly acted beyond its legal mandate under a
misconceived notion that it was merely completing the legal process
regarding an already approved CAF initiative by the previous Elected
Cabinet. In the process, the GOP committed serious and flagrant breaches
of substantive law and legal processes leading to introduction of the new
SOCs which were materially and substantially different from the original
SOCs approved by the previous Elected Cabinet. The permission to grant
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land under CAF initiative under ‘single source lease’, opened a door for
conferring State land in a non-transparent, non-competitive, arbitrary and
unreasonable manner, offending the directive Principles of Policy and
infringed the fundamental rights of the people to life, dignity, equality, due
process and property enshrined in the Constitution. It is, therefore, ordered
as follows:-
I. For the reasons recorded as aforesaid, the titled and connected
Petitions are allowed;
II. The impugned transaction consisting of the decisions taken
and approval accorded to the new SOCs in the Ministerial
Committee’s Meeting dated 14.10.2022, the 4th meeting of
Caretaker Cabinet on Agenda No. 3 dated 09.02.2023, the
Notification dated 20.02.2023 issued under Section 10 of the
Colonization Act, the 7th meeting of Caretaker Cabinet on
Agenda No. 3 dated 25.02.2023, the JVA dated 08.03.2023
and all subsequent developments including the sanction or
transfer of State land in favour of the Pakistan Army are
declared unlawful and of no legal effect and are set aside,
accordingly. Resultantly, all State land shall stand reverted to
the GOP, the Departments and persons as per its previous
status. The SMBR is directed to ensure compliance by
amending the revenue record, if required, and submit
compliance report to the Deputy Registrar (Judicial) of this
Court within fifteen days from the date of this Judgment.
III. It is declared that the Caretaker Government lacks
constitutional and legal mandate to take any decision
regarding CAF initiative and policy in any manner
whatsoever, in terms of Section 230 of the Elections Act;
IV. It is directed that the future elected government may resume
the CAF initiative after the stage of its conditional approval
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by the previous Elected Cabinet in its 51st meeting dated

28.02.2022 and proceed in accordance with law;
V. It is declared that the Armed Forces including the Pakistan
Army and / or its subordinate or attached Departments /
offices lack constitutional and legal mandate to indulge and
participate in CAF initiative and policy in terms of Article
245 of the Constitution; and
VI. It is directed that office shall transmit certified copy of this
Judgment to the Federal Government through Secretary
Cabinet Division; Secretary, Ministry of Defence; the
Chairman, Joint Chiefs of Staff Committee; the COAS; the
Chief of the Naval Staff; and the Chief of the Air Staff. It is
expected that the FOP in concert with the afore-mentioned
officers will evaluate all activities and projects of the Armed
Forces and if required, take appropriate and necessary
remedial steps to ensure that they are in conformity with the
constitutional and legal mandate of the Armed Forces.
Further, necessary steps will also be taken to sensitize each
member of the Armed Forces regarding the constitutional and
legal mandate of the Armed Forces in the light of prescribed
Oath in the Constitution and consequences arising from
possible violations thereof, under the Constitution and law.

(Abid Hussain Chattha)

Judge
Approved for reporting.

Judge

Announced in open Court on 21.06.2023.

Judge
*WaqaR*