1998 PLP 1464 (CLC)

(e) to carry out extensive ground water survey to locate sweet‑water points and sinking of wells and tube‑wells for drinking and irrigation purposes; (f) the lay out and construction of town, Mandi village and settlements and their up‑keep and development; (g) the provision of communication facilities, including the lay out and construction of roads and parks; (h) the provision of livestock farms, dairy farms, sheep farms, poultry farms etc; (i) the installation and management, maintenance and encouragement of public utility undertakings, rural trades and crafts, industries and works; (j) arrangements for the marketing of the produce and goods of Cholistan; (k) the conservation, preservation of forests, and multiplication of wildlife and natural vegetation and exploration of mineral resources of Cholistan; (1) the doing of all acts intending to promote health, well‑being and prosperity of the residents of Cholistan and their cattle heads and establishment of civil and veterinary hospitals and dispensaries; (m) the establishment of educational institutions; (n) to advance loans to the owners, occupiers or tenants of land upon such terms and conditions as may be prescribed for breaking up and cultivation of lands, cattle and of agricultural implements and machinery, seed and fodder cattle farm, construction of houses, godowns, and cattle sheds, and for any other purpose allied or subsidiary to agriculture; (o) to promote and undertake, research on any matter; (p) for any other matter with the permission of the Government which may be deemed necessary to promote the general efficiency of a scheme and for the development of Cholistan; (q) to promote tourism and establishment of national parks, holiday camps and villages; and (r) to undertake any function with the Government may assign to it. Section 16. (1) Subject to such rules as may be framed, the Authority shall have full powers to:‑‑‑ (a) incur expenditure for the improvement and development of Cholistan or for completion of any work, plan or scheme undertaken by it within the area of its jurisdiction; and (b) enter into and perform all such contracts as it may consider necessary or expedient for carrying out the purposes of this Act. (2) Without prejudice to the generality of the powers conferred under subsection (1) the authority may: (i) with approval of the Government grant land to any person on any condition it thinks fit and for this purpose issue a statement of conditions on which the Authority is willing to grant land; (ii) resume land so granted or in the alternative impose a penalty not exceeding Rs.500 when the tenant is proved to be satisfaction of the authority to have committed a breach of the conditions of the tenancy and shall resume the grant so made if the land forming the subject matter of the grant was acquired by misrepresentation or concealment of true facts; Provided that before an order under clause (ii) above is made, the tenant shall be given an opportunity to appear and state his objection: Provided further that in a case of resumption, the tenant shall be liable to restore possession of the land to the Authority forthwith, but shall be entitled to compensation for the standing crops and for improvements made by him during his tenancy; (iii) take over and manage Government lands or any other assets and property on such terms and conditions as may be agreed upon between the Authority and the Government; (iv) regulate by general or special order‑‑‑ (a) the use of land and restrict or prohibit the carrying of any offensive for any unwholesome trade or construction of buildings or structures; (b) clearing or breaking up of land for cultivation; (c) the quarrying of stone and the burning of lime and charcoal; (d) the admission, herding, parking and retention of cattle; (e) the filling, girdling, looping, taping, or burning of any tree, timber of vegetable; and (f) the kindling, keeping or carrying of any fire; (v) undertake breaking up of land, planting or trees, construction of water courses and do all necessary acts to bring land vested in it under cultivation; (vi) advance money either by way of grant or by way of loan or partly by way of grant and partly by way of loan to any person in furtherance of the objects of this Act on such terms and conditions as may be prescribed." A bare look at section 15 (ibid) indicates that the Authority, subject to such conditions as Government may impose, may undertake any work for any or all of the functions detailed thereunder within its jurisdictional area; may grant land to any person on any conditions it thinks fit and for the purpose issue statement or statements of conditions; provide means of irrigation and irrigational Channels; provide drinking water for human being and cattle; carry out extensive ground water survey to locate sweet‑water points and sinking of wells and tube‑wells for drinking and irrigational purposes; carry lay out and construction of town, mandi villages .and settlements and their upkeep and development; so on and so forth. Section 16 of the Act empowers Authority of course subject to control of Government to grant land to any person on any condition it thinks fit and for the purpose issue a statement or statements of conditions on which the Authority is willing to grant its land. This section also equips the Authority with powers to resume land granted to tenants or impose penalty not exceeding Rs.500 when grantee/tenant is found to have committed breach of the condition of the tenancy or has acquired the land by misrepresentation or concealment of true facts. As regards sections 17 and 18 of this Act, these are supplemental in nature and lend weight to paramountcy of Authority. Under section 17 (ibid) the Authority is authorised, subject to approval of the Government, to transfer any of its functions and powers to any Departments of Government or a semi autonomous body or a local Authority on such terms and conditions a may be determined by the Government or agreed between the parties. Section 1S postulates that no person or Government Agency can continue or undertake any development worst or a project within the jurisdictional area of Authority without its prior approval and such approval must be in black and white, Chapter‑V of this Act deals with its finances. Section 19 enacts that there shall be a fund to be known as "Cholistan Development Authority Fund" which shall vest in connection with its functions under the Act, including the payment of salaries and other remunerations to its servants and consultants. Subsection (2) of this section enumerates sources by which the Authority may collect funds. Section 20 deals with the powers of the Authority to borrow money from different Institutions except that the Authority will not get any local or foreign loans without the prior sanction of the Government. Section 21 deals with the power of the Authority, of‑course subject to previous sanction of the Government to levy rates, fees and charges to cover expenses for the development of the Cholistan area. Section 22 of the Act authorises it to prepare its annual budget, estimate and submit the same to the Provincial Government by the end of the month of March preceding the commencement of the financial year and the Provincial Government may modify such estimates to such extent as it may consider necessary. Sections 23 and 25 deal with the audit of accounts of the Authority. The net result of above discussion is that Authority is independent, autonomous and a public corporate body; it is instrumentality of State by which function has been assigned to it to develop and colonize Cholistan area. It has been armed with power to make and issue statement/statements of conditions on which it wants to grant land to tenants. It has been given sufficient power to lay down the blue‑print of development of Cholistan. It has authority to undertake any project which is necessary for colonization and administration of its area. It has been even empowered to set up its funds, finances and necessary powers to levy, rates, fees and charges to cover expenses for development of its area. In built mechanisms for its audit and accounts has been provided in the Act. The Government, has been empowered to make rules for carrying out the purpose under this Act. Section 25 clearly says that such rules may provide for any of the matters incidental, consequential or supplemental to the provisions of this Act. Section 28 bars jurisdiction of Courts of preliminary jurisdiction to entertain and decide any matter relating to the disposal of estate land vesting in the Authority. Section 29 says that all sums, due to the Authority, shall be recordable as arrears of Land Revenue. This Authority is now headed by the Chief Minister of the Province.

29. From the above, it clearly follows that the authority is paramount body in the Scheme of this Act. It is neither subordinate nor subservient to any other authority under any other Act. True that this Authority has been made subject to supervisory control of the Government. Subject to that monitoring role of Provincial Government, Authority is paramount body In the process of colonization/administration of Cholistan area. Briefly speaking it is an independent, autonomous and public corporate body owing its existence to an Act and funded by Government of Punjab.

30. Before we proceed further, we are tempted to quote few passages, from 'Treaties on Statute Law' by Craies, 6th Edition by S.G.G. Edgar, published by London Sweet and Maxwell in the year 1963 and from Crowford's 'Interpretation of Laws' published by AI‑Makhzan Printers, Karachi in the year 1989, on the principles of implied repeal, effect of affirmative enactments on each other and new statutory remedies. Craies says at page 365, that; "Where two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier. The Court leans against implying a repeal, 'unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time; a repeal will not be implied. Special Acts are not repealed by general Acts unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in the two Acts standing together,' 'The latest expression of the will of Parliament must always prevail.' It does not matter whether the earlier or the later enactment is public local and personal, or private, or is penal or deals with civil rights only, and the rule is equally applicable to Orders in Council or Rules of Court if they have statutory force and are made under authority empowering the rule‑makers to supersede prior enactments as to procedure." He further says at page 367: "Where a new Act is couched in general affirmative language, and the previous law can well‑stand with it, and of the language used in the latter Act is all in the affirmative, and therefore, the old and the new laws may stand together. " He also says at page 368:‑‑‑ "In R. v. Judge of Essex County Court (1887) 18 Q.B.D. 704, 707), Esher M.R. laid it down as an ordinary rule of construction, that ' where the legislature has passed a new statute giving a new remedy, that remedy alone can be followed.' But the phrase 'new' as applied to a statute is either needless or ambiguous. The old distinction between vetera and nova statuta is obsolete; and 'new' is insensible unless applied to statutes creating rights or remedies unknown to the common law or to previous enactments. And the rule could perhaps be more accurately laid down, thus: In the case of an Act which creates a new jurisdiction, a new procedure, new forms, or new remedies, the procedure, forms, or remedies there prescribed, and no others, must be followed until altered by subsequent legislation." In the later treaties Crawford also deals with above rules in following terms: "Repeals of this type are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes; those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two can remain in force, and those which occur when an act covers the whole subject of an earlier act and is intended to be a substitute therefor. As has been suggested, a repeal takes place under these circumstances, even though the new act contains no repealing clause, and in face of the fact that there may be a Constitutional provision prohibiting the repeal of any law simply by reference to its title or section number. The validity of such a repeal is sustained on the ground that the last expression of the legislative will should prevail. Technically, there is perhaps a violation of the Constitutional provision but from a practical stand‑point the circumvention can be easily justified." The reasons, for the rule that implied repeal will take place in the event of clear inconsistency are well‑settled in a famous case of Crosby v. Patch (18 Calif, 438): "As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v Lease, 5 Hill

226. It is a rule, says Sedgwick, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. "The reason and philosophy of the rule,' says the author, ' is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all." The above noted rules of construction of statutes, were followed by superior judiciary in sub‑continent in Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC 219, Mst. Maryam v. Dost Muhammad PLD 1958 Lah. 229, Abul Aala Maudoodi v. Government of West Pakistan PLD 1964 SC 673, Abdul Samad v. Iqbal Ahmad Khan PLD 1972 Lah. 41, Mehtab Khan v. Rehabilitation Authority PLD 1973 SC 451, Kohinoor Sugar Mills Ltd. v. Market Committee Jauharabad PLD 1976 Lah. 1284, Allah Wasaya v. Federal Land Commission PLD 1979 SC 44, Dharangadhra Chemicals Works v. Dharangadhra Municipality AIR 1985 SC 1729, Mahbub Ahmad v. First Additional District Judge, Karachi PLD 1976 Kar. 978, Emperor v. Ranchhodlal AIR 1948 Bombay, 370, Western Coalfields Ltd. v. Special Area Development Authority AIR 1982 SC 697, J.K. Steel Ltd. v. Union of India AIR 1970 SC 1173, Dolani Ores v. State of Orissa AIR 1975 SC 17 and Mithan Lal v. State of Delhi AIR 1958 SC 682.

31. The consequential questions/points, that arise for consideration, are: What are the interactions between three Acts namely Act XIV of 1976, Punjab Land Revenue Act (No. XVII of 1967) and the Colonization of Government. Lands (Punjab) Act (No. V of 1912); whether the Authority is subject to administrative control of Board of Revenue? Whether the orders, passed by the Managing Director of the Authority, are subject to incident of appeal, review, or revision under Act XVII of 1967 read with section 7 of the Act V of 1912. We will, henceforth proceed, to examine the aforesaid Statutes in the light of rules of Construction noted above. Act V of 1912 was promulgated in Bahawalpur on 2‑5‑1926 to provide provisions for Colonization and administration of Crown land in the Colony areas within Bahawalpur State. This Act comprises of four Chapters. Chapter‑I empowers Government to apply it to any area. Section 7 is important for our purposes. It reads as follows: "7. (1) Applicability of West Pakistan Land Revenue Act, 1967, etc.: Subject to the provisions of this Act the West Pakistan Land Revenue Act, ' 1967, Chapter VII of the Punjab Tenancy Act, 1887 or the corresponding provisions of any other law relating to tenancy for the time being in force in the area where proceedings under this Act are to be taken and the rules thereunder, shall apply to all proceedings under this Act: Provided that nothing in the West Pakistan Land Revenue Act, 1967, the Punjab Tenancy Act, 1887 or any other law relating to tenancy for the time being in force in West Pakistan shall be so construed as to vary or invalidate any condition entered in any statement of conditions issued by the Provincial Government. (2) Nothing in section 6 shall affect the application of the Punjab Tenancy Act, 1887, or any other law relating to tenancy for the time being in force, to any matter or dispute arising between Government tenants and their sub‑tenants to which Government is not a party. " Clearly the above section, on principle of incorporation, borrows provisions of Punjab Land Revenue Act, 1967/Chapter VII of Punjab Tenancy Act, 1987 or the corresponding provisions of any other law relating to tenancies in force at the relevant time. Subsection (1) is followed by proviso which stipulates that nothing contained in West Pakistan Land Revenue Act/Punjab Tenancy Act or any other related law, shall vary and invalidate any conditions/Statement of Conditions issued by the Provincial Government. So, is the effect of subsection (2) of this section. Evidently, this section proceeds on the principle of Incorporation of the provisions of other Statute and by means of it the borrowed provisions became the part of the Act V of 1912. Chapter 11 pertains to provisions relating to tenants. This chapter comprises of nineteen sections out of which sections 10 and 11 are germane to the issues under examination. Section 10 is the most important provision. Subsection (1) states that the Board of Revenue, subject to general approval of the Government may grant and apply to any other on such conditions as it thinks fit. Subsection (2) deals with the powers of provincial Government to issue statement or statements of conditions on which it is willing to grant land in a Colony to tenants. Subsection (3) of this section enacts that where such statements of conditions have been issued, the Collector, subject to control of Board of Revenue, may allot land to any person subject to statement of conditions issued under subsection (2) (ibid). Subsection (4) mandates that no person shall be deemed to be a tenant or to acquire any right or title in the land allotted to him until such written order has been passed and he had taken possession thereof under a written order passed by Collector. This provision is by way of ancillary precautions and is designed to annihilate the possibility of spurious claims. Section 11 postulates the legal effect of statements of conditions issued by Provincial Government under subsection (2) of section 10 (ibid). Suffice it to say that Board of Revenue, in the Scheme of Act V of 1912, is apex authority. Moreover, the provisions relating to appeal, review and revision namely sections 161 to 167, as contained in Chapter XIII have been made part and parcel of Act V of 1912. It is, thus, clear that the Board of Revenue has been made highest authority in Act V of 1912 and the order passed by the Collector had been made subject to incident of appeal, review and revision under the provisions of Act XVII of 1967 and Punjab Tenancy Act. Does these provisions, on the rules noted above, can be read into Act XIV of 1976. Firstly, it is to be noted that at the time of promulgation of Act XIV of 1976, Act XVII of 1967, Punjab Tenancy Act, 1887 and Act V of 1912 were in field in Bahawalpur Division. Punjab Tenancy Act had been made applicable by former Bahawalpur Government on 28‑8‑1913 while the other two Acts were made applicable on 28‑3‑1912 and 2‑5‑1926, respectively. It is necessary to note that the Governor of Punjab had been pleased to apply the provisions of Act V of 1912 to the entire estate falling within the area of Cholistan by means of Notification dated 28‑3‑1912. Does the above notification solves our problem and provides adequate answer to questions under discussion. We regret to say that answer is ' No'. At his juncture we find another Statute which is, we feel, of some assistance, that is the West Punjab Thal Development Act (XIV of 1949). This Act was promulgated with an object to provide for Colonization/administration of the area situated in Mianwali/Muzaffar Garh and Khushab Sub‑Division and Shahpur District. Under section 3, Thal Development Authority was constituted with a status of Body corporate and with common seal. Section 4 of this Act stipulates that the Authority shall consist of not more than 7 members to be appointed by the Provincial Government by Notification and one, out of members so nominated, shall be appointed by the Provincial Government as Chairman of Authority. Subsection (3) it clearly specifies that no person who was/is member of Central or Provincial Legislature, shall be eligible for being appointed as a member of Authority. In order to further the subject of this Act the Provincial Government framed rules known as Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973. Moreover Provincial Government also framed statement of Conditions on which authority was/is to grant land, to tenant. This statement of condition was issued on 15‑2‑1963.

32. The aforesaid juxta‑positional analysis of these Acts namely Act XIV of 1976, Act XVII of 1967 and Act V of 1912, clearly shows that object of Act XIV of 1976 and object of Act V of 1912 have the communality i.e. the colonization and administration of area within its jurisdiction while the subject matter of both is different. Act V of 1912 relates to Colony areas. The whole Act XIV of 1976 concerns Cholistan of Bahawalpur Division. Evidently Act XIV of 1976 is the latest expression of will of Provincial Legislature. It creates an Authority while in the Act V of 1912 the Board of Revenue is the apex Institution on the principle of Reference. Such provision was not put in Act XIV of 1976. We are, therefore, of firm opinion that the principle of partial repeal by implication applies to facts and circumstances of the case in hand. So, without any hesitation we hold that the Authority created under the Act XIV of 1976 is either under the administrative control of Board of Revenue as suggested by the learned A.A.‑G. nor is it an attached Department of Planning and Development Department of Punjab. The Authority, according to our considered opinion is autonomous, independent and' corporate body with common seal and succession and is only subject to monitoring/supervisory control of Provincial Government. We, therefore, find that in absence of rules framed by the Provincial Government, neither the Board of Revenue nor any other authority constituted under Act XVII of 1967 or Punjab Tenancy Act, has powers to hear appeals, review or revisions against the order passed by the Managing Director of the Authority under Act XIV of 1976. This conclusion is in consonance with the rules of incorporation noted above and rule of purposive construction of Statute. Contemporaneously, we find that Act XIV of 1976. Act V of 1912 and Act XVII of 1967 stand together in the field and supplemental to each other where there is repugnancy between them. As already noted, Act XVII of 1967 caters for different subject and has no nexus with Act XIV of 1976 or Act V of 1912.

33. Having found that Cholistan Development Authority is a paramount body into he Scheme of Cholistan Development Authority Act, 1976 and is neither subject to administrative control of Board of Revenue nor is an attached department of Government of Punjab, we herein proceed to determine the vires of scheme enforced in this area. Almost more than 2,44,590 acres in this area have allotted to various persons in following manners:‑‑ S. Scheme No.of Area allotted Remarks No allottees 1 Shahi Mazarian 119 5950 acres Scheme (1950‑51 1 2 Grow More Food Scheme 2091 31041 acres (1959‑60). 3 20‑Years Lease Scheme 2038 25475 acres (1970‑71) . 4 15 years Lease Scheme 11457 143213 acres (1977‑78). 5 Ejected Tenants of 168 2225 acres Rakh Thal Wali District Muzaffargarh (Under Fifteen Years Lease Scheme 1977‑78) 6 Evictees of Pat Feeder 491 6112 acres (Balochistan) Under 15 years Lease Scheme 1977‑78. 7 Evictees of Okara Cantt. 357 4464 acres (15‑Years Lease Scheme 1977‑78). 8 Evictees of Ladamsar 101 399 acres (National Park) Under 15‑Years Lease Scheme 1983.

9. Land Reforms 1976 (Area 1790 22776 acres allotted in Shikargarh.) It must be kept in mind that these figures were given to us by Managing Director of Cholistan Development Authority. These are approximate in nature and should not be taken as mathematically accurate. In so far, Shahi Mazara Scheme, we have already found that it was promulgated by competent Authority but it was to section 29 of Contract Act and was not of any lawful consequence. This rule is also not applicable to Scheme known as Grow More Food/1959‑60 when the Act XIV of 1976 was not in field. This was issued by Government of West Pakistan. This Scheme was, so, validly issued and enforced. Same is our finding with regard to third Scheme, i.e. 20 Years Lease Scheme/1970‑

71. As regards fourth Scheme (15‑Years Lease Scheme/1977‑78) and fifth Scheme of Ejected Tenants of Rakh 'Mal Wali District Muzaffargarh (Fifteen years Lease Scheme/1977‑78), we have found that these were issued by the Government of Punjab. It is not in dispute that Government of Punjab is the owner of area known as Cholistan and so, it was competent within the terms of sections 15 and 16 of Act to issue these Schemes. These are, therefore, valid on the rule of intra vires. We thereon go to. Schemes Nos. 7 and

8. We find that the allottees were granted lands on the basis of circulars issued by functionaries of the Board of Revenue. We have already held that Board of Revenue had no business to issue such circulars/authority. The aforesaid Schemes, are, therefore, ultra vires and we are note able, despite our best endeavours to explore ways, to uphold these Schemes. These Schemes are declared to have been issued without any lawful authority. The above are our answers to Questions Nos. 1, 2, 3, 4 and 5.

34. Having dealt with Questions Nos. 1, 2, 3, 4 and 5 we not turn to question No.6 which is vexing and perplexing one. It pertains to structure of power. The quest for rules of good governance led political thinkers like, John Locke and Missiau Montesquiey Frenchman, to conceive and develop theory of Separation of Power/doctrine of separated Government. The Frenchmen, in his classic Treatise, "Spirit of the Law (1748) said "A constitution ....can be such that no one will be constrained to do things the law does not oblige him to do and not to do things the law permits him. Its end should be political liberty, defined as the tranquillity of spirit that comes from the opinion each has of his safety '(11.6). The Government must be such that one citizen will not fear another citizen. To achieve this, the separation of the 'three sorts of powers' is necessary, and particularly the independence of the 'power of judging. 'The latter punishes crimes or judges differences among individuals, and it must be separated from the other two powers so that the Judge neither legislates nor has the force of an oppressor." This theory was made bedrock of the American Constitution by its founding father, Madison said: "The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self‑appointed, or elective, may justly be pronounced the very definition of tyranny. 'The strength of this political truth' is so, great, writes Madison, that were there any 'dangerous tendency to such an accumulation in the Federal Constitution, 'that Constitution would have to be abandoned. Earlier arguments in the Federalist had established the republic credentials of the Constitution." However, this doctrine is not free from difficulty. Though fascinatingly true, yet it is not possible to precisely mark the boundaries of three Departments of State namely Legislature, Executive and Judiciary. The power is, itself, an obsession. Constitutional rule is system of governance which provides restraint on use of power. Precisely, it was argued on behalf of the petitioner that functions of legislators was/is to fully address themselves to problems of law‑making and not to associate themselves in the administration of laws made by them. The learned A.A.‑G. forcefully propounded that the Cholistan Development Authority was a paramount body in the Scheme of Colonization of Cholistan and so it was highly proper that public representatives be associated with it as members on principle of participatory process. We do not find ourselves in a position to answer the question authoritatively as no adequate assistance was rendered by the learned counsel for all sides. No apt precedents were cited before us. It is true that the theory of separation of Power is anchor‑sheet of our Constitution. It is equally undeniably true that our State is a Federal Parliamentary republic based upon two‑nation theory and based upon golden principles of Islam as enshrined in the Holy Qur'an and Surma. Yet, in the absence of adequate assistance, we are not inclined to answer this question and leave it to some other occasion. We, however, note with commendation that Thal Development Authority Act, 1949, kept in view the above rule. In subsection (3) of section 4 of this Act it was prescribed that‑‑‑ (3) No person who is a Member of the Central or the Provincial Legislature shall be eligible for being appointed as a Member of the Authority and none shall be appointed, who would, if he were a member, be liable to removal under section 9; and a person shall cease to be a Member of the Authority if he is elected a member of Provincial or Central Legislature.." This differentiation was not kept in view by the legislature while passing Act XIV of 1976. We also find, note that composition of the Authority, prima facie, seems to be ad‑hoc in nature. Authority comprises of two classes of members whose continuance in authority is dependent upon terms of their office. This aspect of constitution of Authority needs examination by concerned authorities. The chronological events of this institution reveal that Act XIV of 1976 was promulgated and 21st of July, 1976 and soon thereafter the Authority was constituted within the terms of subsection (2) of section 4 of this Act. The record of this Committee shows that only one meeting of this Authority was held in 1987 under the Chairmanship of the Chief Minister Punjab at Circuit House Bahawalpur. The perusal of the minutes of this meeting shows that no pragmatic work was done; that no Scheme whatsoever was issued by this Authority within the contemplation of sections 15 and 16 of Act XIV of 1976. Add to it, so far no Cholistan Fund has been set up within the terms of section 19 of this Act. On account of this manifest inaction on the part of the Authority, it is evident that the Authority had been in perpetual hybernation and the Act had been implemented by the Managing Director of Cholistan Development Authority with reference to circulars issued by the Planning and Development Department on engineering side. This speaks fairly well for failure of Authority. On above analysis, we are clear in our mind that the Authority had failed to perform its functions under the Act. Therefore, we are inclined to direct the Managing Director, Cholistan Development Authority to put the matter before the Provincial Government so that it can energise it and invigorate Authority in a manner commensurate with dictates of Act XIV of 1976.

35. It is highly relevant to cite the example of Valley Authority. This Authority was created under an Act by the Federal Government in the era of great depression. Its, underlying object was, like Cholistan Development Authority to develop colonize and administer the land around Tennessee River and United States of America. The examination of the Act, under which it was created shows that its membership was small and members were to be nominated by the President of U.S.A., subject to approval of the Senate. The process of approval was open and transparent. The Senate invited/invites objections from the public at large and confronts the nominees of the President right on television in the view of public at large. It further shows that no member of legislature/congress is qualified to become its members proved to be healthy, conducive and congenial to the strength of the Authority. We are told that the said Authority in U.S.A. has progressed by leaps and bounds. It has built so many Damas on the river and is now producing bulk of electricity to various states of USA. We find if such process is adopted in the instant case it will be highly useful. This is our view of recommendatory in nature and we are certain that the Provincial Government will examine it and may like to improve it through process of debate and discussion.

36. We are not able to answer questions Nos.7 and

8. These issues had been subjudice before the Commission set up by the Federal Government on the demise of late Sir Sadiq Muhammad Khan Abbasi. Furthermore, even one of us (Mian Allah Nawaz, J.) did not feel proper to deal with these questions.

37. Before proceeding further, we are inclined to recapitulate the principle of necessity and rule of past and closed transactions. This rule was contained in the Book of Grotius on ' De Jure Beet Pacia' which is as follows: "Now while such a usurper is in possession, the acts of Government which he performs may have a binding force, arising not from a right possessed by him, for no such right exists, but from the fact that one to whom the sovereignty actually belongs, whether people, king, or senate, would prefer that measures promulgated by him should meanwhile have the force of law, in order to avoid the utter confusion which would result from the subversion of laws and suppression of the Courts. " This principle was followed by Supreme Court in Asma Jillani v. Government of Punjab (PLD 1972 SC 139). Dealing with this jurisprudential question his, Lordship Hamood‑ur‑Rehman, C.J., (as he then was) said: "I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine validating the illegal acts of usurpers. In may humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization. Apply this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by reopening them (2) all acts and legislative measures which are in accordance with or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1954, I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives, I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity." The principle of Past and closed transaction was enunciated in Commissioner of Income Tax Karachi v. Eastern Federal Union Insurance Co. PLD 1982 SC 247 and Ghulam Mustafa Khar v. Pakistan PLD 1988 Lah. 49.

38. Guided by the above principle and in the light of our conclusions noted above, we accordingly accept this Constitution petition with grant of following reliefs: Firstly; Declaration is granted to the effect that Cholistan Development Authority, constituted under subsection (2) of section 4 of Act XIV of 1976, is independent autonomous and a body corporate; it is neither subject to administrative control of Board of Revenue nor is an attached Department of Planning and Development Department/Government of Punjab. It is an apex Authority and is invested with necessary powers to further objects of the Act XIV of 1976; that the orders passed by the Managing Director, of Cholistan Development Authority are not subject to incident of appeal, review or revision under the relevant provisions of Punjab Land Revenue Act (XVII of 1967). The Government, however, will be well within the right to make such rules/providing for such remedies; Secondly; Shahi Muzara Scheme issued by the former Government of Bahawalpur is in violent defiance of section 29 of the Contract Act; it is uncertain and cannot be made certain. So all the allotments made under the said Scheme are declared to have been made without lawful authority and hence of no lawful consequence. Thirdly; Neither the Federal Government nor any other Authority except the Provincial Government is competent to give any direction to this Authority for allotment of land to any person or any class of person which such entity may like to be accommodated in Cholistan: Fourthly; we note with regret that the authority has failed to frame statement or statements of conditions on which it wants to grant land to tenants; that it had failed to carry out functions assigned to it by sections 15 and 16 of the Act XIV of 1976. We accordingly direct the Authority to frame statement/statements of conditions on which it wants to grant land to indigenous people of Cholistan known as Chilistanis and thereafter to landless tenants of Bahawalpur Division. The Authority, while doing so shall obtain approval of the Provincial Government. We have further found that this area had a great petential in growth of livestock. Statedly there are about 15 lac animals in it without the infrastructure of supply of drinking water to them. We, therefore, direct the Authority to examine this potential of this Area and issue necessary legal infrastructure, reserve land as Charagah for livestock and convey water to Tobas which are already in existence. Fifthly Applying the rule of necessity enunciated in Asma Jillani's case, (supra) and rule of past and closed transactions, we are inclined to direct the Managing Director of Authority to scrutinise the claim of allottees of Shahi Muzara Scheme which we have adjudged as illegal. The afore-said functionary shall so sort out claims of genuine allottees and submit a report to Government of Punjab as well as Authority for making/issuing statements of conditions under which such genuine allottees may the accommodated. It is made clear that claims of spurious and fraudulent persons must be rejected. We further suggest to Government of Punjab to issue a condition saying that no encroacher will ever be allotted any piece of land in this area. This will deter the encroachers at large from illegally occupying tracts of land in Cholistan. It seems that encroachers have almost taken for granted that their illegal activities will not be punished and ultimately will be rewarded; Sixthly; The Government of Punjab is further directed to constitute a high- powered Commission comprising of Member, Board of Revenue, Punjab, Commissioner, Bahawalpur Division, Bahawalpur and Managing Director, Cholistan Development Authority to survey the activities of Authority from inception upto this date and submit a report to Government/Authority for framing necessary statements of conditions with regard to allotment of land in Cholistan area. We hope that the Provincial Government, which is supported by comfortable majority while providing such infrastructure will ensure the supremacy of the Authority in total transparent manner. Seventhly; as regards other Schemes, we are inclined to hold that allotments made under the Schemes are valid and shall not be re-opened on the principles of past and closed transactions. This, however, will not preclude the Authority from examining such allotments which were made by authorities under spec of fraud and coercion. The Authority, subject to general control of Provincial Government, will do every possible effort to ensure the satisfaction of the rights of the indigenous peoples of this area known as Cholistanis. Eighthly; We were not given the exact details about the illegal occupants of land in Cholistan. The Authority gave different statistics on different occasions. The fact, however, remains that a large number of area in Cholistan is in illegal occupation. We accordingly direct the Managing Director of the Authority to clean the area from illegal occupants within a period of six months it will be well-within his right to seek assistance of local Administration and the Provincial Government.

39. As regards Writ Petition No. 2342, it is sufficient to note that this was filed by the Cholistan Development Authority, Bahawalpur through its Managing Director. It sought to call in question the order of the Managing Director dated 19-8-1993. This order runs as follows: "It is observed that the Shahi Tenants Scheme was promulgated in 1950 by the defunct Bahawalpur State and the same does not appear to have been adopted by the Punjab Government. The Colonization, of Government Lands (Punjab) Act, 1912 was made applicable vide Notification No. Col-2/54(a-55), dated 25-d-1958 regarding allotment of Abadkari condition and then 15 years Lease Scheme In Cholistan area in the year 1974 vide Notification No. 74-74/2589-CL-I, dated 5th July, 1974. It is, thus, clear that the Shahs Maaarain Scheme of the defunct Bahawalpur State has not yet been notified by the Government of Punjab. It, therefore, follows that any such rights allowed to such other tenants on 5-12-1977 also have no legal sanctity. However, it is felt that old settlers under Shahi Muzarain Scheme of the Defunct Bahawalpur State, deserve sympathy. Till such time this Scheme is notified under section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 and a clear policy is chalked out, I allow the petitioners to continue with usual rent and other dues, which they should deposit within six months from the date of receipt of this order. The grant of proprietary rights to the petitioners would be considered after the Scheme (ibid) is notified." We have already held that the Cholistan Development Authority is atonomous body. It is neither subject to administrative control of Board of Revenue nor it is an attached Department of Planning and Development Department; that the order passed by the Managing Director, Authority are not subject to any incident of appeal revision or review of the Board of Revenue. For this reason we accept this petition (W.P. 2342/96) and declare the impugned order of the Member (Colonies) Board of Revenue, dated 19-8-1993 as illegal and without any lawful authority. The aforesaid order is accordingly set aside.

40. As regards Civil Miscellaneous 77 of 1996, it eaters for a different situation. We, therefore, direct the office to enlist it for hearing on 23-6-1998 before any available Bench.

41. Before parting with this judgment, we note our immense appreciation of industry, labour with which the learned counsel for the parties have argued the case on number of occasions. At this juncture, we appreciate laudable contribution of M/s Muhammad Jaffar Hashmi, Masood Ashraf Sheikh, Ijaz Ahmad Chaudhry and so many other Advocates who contributed in the debate with high sense of integrity and loyalty to profession. There shall be no order as to costs.

42. We further direct that the Deputy Registrar (Judl.) of the Lahore High Court, Bahawalpur Bench, Bahawalpur, shall immediately send a copy of this judgment to the Managing Director, Cholistan Development Authority, Bahawalpur/Chief Secretary, Government of Punjab, Lahore. The Chief Secretary shall put this judgment before the Cabinet of Punjab Province so that the Provincial Government may take necessary legislative and consequential remedial measures commensurate with this judgment to make the Authority an effective instrumentality of the Provincial Government. If any delay is caused in this matter, we regret to say that this vast tract of area will become a paradise for encroachers. A.A./R-59/1 Order accordingly