• Caretakers’ decision to continue previous elected govt’s initiative was ‘beyond its mandate’, LHC rules • Lands to revert to ownership of govt or department that previously held them

LAHORE: The Lahore High Court struck down on Wednesday a decision by the interim government of Punjab to hand over 45,000 acres of land in three districts to the army on a 20-year lease, saying that the agreement was beyond the mandate of both — the caretakers and the military.

The army wanted ownership of land in Bhakkar, Khushab and Sahiwal for the purpose of Corporate Agriculture Farming (CAF) under the China-Pakistan Economic Corridor (CPEC).

“The caretaker government lacks constitutional and legal mandate to take any decision regarding the CAF initiative and policy in any manner whatsoever, in terms of Section 230 of the Elections Act 2017,” Justice Abid Hussain Chattha ruled in a detailed verdict on four identical petitions.

The petitions were filed by the Public Interest Law Association of Pakistan (Pilap), a not-for-profit legal organisation, and others.

Ahmad Rafay Alam, Fahad Malik and Zohaib Babar represented the petitioners.

The caretaker government of Punjab had agreed to hand over 45,267 acres of land to the army in Bhakkar, Khushab and Sahiwal districts on a 20-year lease. There was also an option to extend the deal for another 10 years.

Justice Chattha had stayed the impugned transaction on March 29 and reserved the final verdict on May 29.

The judge declared as unlawful and of no legal effect the transaction consisting of decisions taken, and approval accorded to the new Statements of Conditions (SOCs) in a meeting of a ministerial committee on Oct 14 last year and in a meeting of the caretaker cabinet on Feb 9.

All subsequent notifications and developments, including the sanction or transfer of state land in favour of the Pakistan Army, were null and void as well, Justice Chattha observed.

Domain of elected govt

The LHC judge observed that the decision of the caretaker cabinet to approve the new SOCs amounted to pre-empting the exercise of authority by elected governments in future.

He said 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 of 2017. “It was a blatant attempt to encroach upon the domain of future elected governments.”

Therefore, the judge observed, the argument that the caretaker cabinet was merely implementing an already approved corporate farming initiative of the previously elected government in furtherance of ‘in principle’ approval of the latter is a mere fantasy.

Commenting on the “haste” with which the impugned transaction went through different stages of approval, Justice Chattha noted that the Pakistan Army, as a potential lessee, directly approached the Punjab government seeking land for the CAF through a letter on Feb 8, even before the approval of new SOCs by the caretaker cabinet.

The judge said the claim of the Pakistan Army that it had experience in development of 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,” Justice Chattha added.

“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.”

The judge ruled that execution of the joint venture agreement (JVA) by the government of Punjab, expressed in the name of the governor, was lawful, but the Pakistan Army’s failure to not express the deed in the name of the president was unlawful.

“Therefore, the issuance of notification by the Governor was unlawful,” Justice Abid Chattha maintained.

The judge noted that the administration of military lands and cantonments was under the administrative control of the defence ministry and record shows that the venture into CAF initiative by the Director General of Strategic Projects (DGSP) of the adjutant general’s branch GHQ was not approved by the federal cabinet.

The judge said it was claimed during arguments that the DGSP acted on the basis of approval of CAF initiative by the chief of army staff.

“It is safely concluded that even if there was any such approval, the same without the approval of the federal government was unconstitutional and unlawful,” the judge held.

Misconceived contention

Justice Chattha described as misconceived a contention that since the CAF initiative was a commercial contract, it did not require the federal government’s approval. The argument was 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 government.

The judge declared that the act of the government and the DGSP to undertake the corporate farming initiative under a joint venture was unconstitutional as it was beyond the army’s mandate.

“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,” Justice Chattha wrote in his 134-page judgement.

Striking down the impugned lease agreement, the judge said all the land shall stand reverted to the government, departments and persons as per its previous status.

He expressed the hope that the federation of Pakistan, in concert with the army, navy and air force chiefs, will evaluate all activities and projects of the army. They must be ready to take remedial steps in order to ensure that the activities are in conformity with the constitutional and legal mandate of the armed forces, Justice Chattha observed.

Published in Dawn, June 22nd, 2023