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Petitioner: RAUF AHMED GHORI VS Respondent: MANAGING DIRECTOR, CHOLISTAN DEVELOPMENT JUDGMENT
Court Name: Lahore High Court Judge(s): Mian Allah Nawaz, Muhammad Islam Bhatti Title:RAUF AHMED GHORI vs MANAGING DIRECTOR, CHOLISTAN DEVELOPMENT
JUDGMENT
Reported As: 1998 CLC 1464 Result: Order accordingly Judgment JUDGMENT MIAN ALLAH NAWAZ, J.---Geographically, Cholistan is a vast sandy area spreading over approximately 26,000 Sq. Kilometers. It so physically constitutes 2/3rd of Bahawalpur Division; its length is about 48 kilometers and breadth varies from 32 kilometers to 192 kilometers. Its total area is 60,55,360 (sixty lacs fifty five thousand three hundred and sixty) acres. Out of it, 40,28,160 (forty lacs twenty eight thousand one hundred and sixty) acres is in Bahawalpur District, while the remaining is in Rahimyar Khan and Bahawalnagar Districts respectively. It meets the boundaries of former Bikaner and Jaisalmer States (now India) and the Thar desert in Sindh. It has two parts known as smaller Cholistan and greater Cholistan. Smaller Cholistan has alluvial flat land with small sand-ridges. Reportedly, it measures approximately 20,00,000 (twenty lacs) acres, while the Greater Cholistan is in the south and is covered by high sand dunes. It is almost 40 lack acres. Climatically, it is an arid zone with scanty rainfalls, high temperature, low relative humidity and strong summer winds. This area is, so, known as Cholistan/an expression originating from Turkish expression 'Chillastan'/meaning waterless waste land. This area is still unsettled and falls outside the boundary of irrigation system known as Sutlaj Valley irrigation net-works. 2. Historically, this area was/is continuation of famous desert known as "Thar". Its inhibitants led nomadic life in highly oppressive conditions. The present inhahitants of this area lead the same life and breed live-stock like sheep, cows, camels and other animals. Approximately, there are about 16 lacs animals in Cholistan. Briefly speaking, this was occupied by one ruler after the other. Bahawalpur State was founded in 1802 and this area fell under the suzerainty of Abbasides. Bahawalpur State was subjected to Sikhs incursions and so the Abbasides went into British
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tulegage. Abbasides ruler tried to green this area but in vain. In 1879, Bahawalpur State/Division had no permanent system of irrigation. This condition is painted by Mr. Barns as under:- "Most of the people were leading a nomadic way of life shifting their abodes every now and then according to the vagaries of nature. When their fields were flooded with waters, they used to leave the place and came back when water receded. But it was the future of the land which was disturbing the minds of Bahawalpur Amirs. Now, the permanent settlements were being planned at different places of the State and those had to be safeguarded from the destruction of floods, most of those proposed sites being on the fringe of rivers." (See p. 248 of "Legacy of Cholistan" by Nurul Zaman Ahmad Auj.). 3. Sutlaj Valley project, at this stage, was conceived and was forwarded to concerned units including Bahawalpur. Abbasides ruler at that time, tried to get water for this area but in vain. When this project was completed, it laid the foundation of permanent, organized weir-controlled irrigation to a sizable portion of Bahawalpur State. Ill-luck would have it, this system did not provide any needed relief to this area and so the fate of this waste land did not undergo any change. The famous Mr. Penderal Moon, the then Revenue Minister of Bahawalpur State, depicts this episode in following words:--- "It soon became apparent that the Bahawalpur Authorities had been right". The supplies of water, it was found were insufficient for the designed capacity of the canals; at the Sulemanki and Islam Weirs in particular the shortage at the critical seasons of the year was wearies and chronic. In the end, large areas of land which it had been intended to bring under cultivation had to be given up. Miles of canals dug through the desert of Bahawalpur were later abandoned, and Rest houses built for the accommodation but never occupied, crumbled away forlornly in a barren wilderness. The effect on Bahawalpur finances was very serious. To meet the share of the capital cost of the Project, which turned to be nearly two and a half times the original estimate, the State had to borrow Rs,12 crores from the Government of India". (See p. 251 of "Legacy of Cholistan by Nurul Zaman Ahmad Auj.) 4. With the establishment of Pakistan, Bahawalpur State joined it; it became part of West Pakistan in 1954/1955 and then after its break-up, it became the part of Punjab. This is its brief historical background with which we are.Now concerned. In 1946, Bahawalpur State endeavoured to improve-this area by putting it under the control of one Assistant Commissioner. The Colonization of Government Lands Act was applied to this area and schemes framed thereunder were made applicable to it. This arrangement, however, did not serve the purpose and so ultimately Cholistan Development Authority Act (XIV of 1976) was promulgated with effect from 21st July, 1976. It created an authority with objects to undertake colonization of this area, improve the socio-economic conditions of its residents known as Cholistanis and so the process of allotment of a part of small Cholistan commenced. Mr. Munir Akbar Khan, former Managing Director of Cholistan Development Authority (hereinafter described as Authority) appeared in Court and gave us following information with regard to the allotments made from 1950 to 1978: {{TABLE}} S.No, Name of Scheme Area allotted under Scheme. Year of Allotment Shahi Muzara Scheme 5,750 acres 1950/51 Grow More Food Scheme 31,041 acres 1959/60 20 years' Lease Scheme 25,475 acres 1970/71 15 years' Lease Scheme 182,324 acres 1978/79 Total Area: 2 44 590 1. Soon thereafter, this area became the focal point of greedy eyes. Groups of encroachers, with active collusion of the functionaries of State, Irrigation Department and powerful political influences started to occupy vast tracts of land from this area. The Additional Deputy Commissioner
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(General) was appointed as an Enquiry Officer who conducted the probe and reported that number of persons, coming from Bahawalpur Division and outside, occupied various pieces of land in area known as Shikargah/which was the part of Cholistan; that Chak No, 121/DRB, Chak No,122/DRB and Chak No,123/DRB had been allotted to persons of questionable antecedents and that these encroachers were receiving irrigation canal water through minor known as Salari" through unlawful courtesy of irrigation authorities who were/are being regularly paid. This enquiry report was submitted to the District Magistrate on 14-11-1995 which was sent to the Commissioner for initiating necessary action. The report of the Enquiry Officer and the Note of District Magistrate Bahawalpur shall form part of this judgment as Appendix I and II. It was in this background that Mr. Rauf Ahmad Ghauri, a learned Member of High Court Bar Association Bahawalpur, invoked the Constitutional jurisdiction of this Court with a prayer to clean this area from encroachers and save this divine bonanza from avaricious orientations/onslaughts of miscreants. 6. This petition came up for hearing before one of us (Mian Allah Nawaz, J.), on 3-4-1996; parawise comments, submitted by authority, dated 7-4-1996, did not exude confidence, the respondents were directed to submit fresh comments. Resultantly, these were submitted on 11-4-1996 and it was found that the vast area of Cholistan was under illegal occupation of so many persons; that these persons were being provided with the facility of irrigation water; that almost 525 cases were pending against the Authority in different Courts of Bahawalpur Division. In view of the aforesaid circumstances, my lord the then Chief Justice of the Lahore High Court constituted a larger Bench comprising of myself and Mr. Justice Abdul Hafeez Cheema. This petition was so admitted to regular hearing by so constituted Bench. On that date, this Bench was informed that more than 400 cases were pending in different Courts of plenary jurisdiction in Bahawalpur Division; that in these cases, Authority was incapable to defend these cases and so Civil Miscellaneous No,2 of 1996 was moved on 30-6-1996, wherein a prayer was made to implead all the persons enumerated in Appendix thereto. This Civil Miscellaneous was allowed and the petitioner was directed to file an amended petition. On 9-7-1996, the Authonty made a request that Cholistan Development Authority be transposed as a petitioner. Alongwith this application, Civil Miscellaneous No,4 and Civil Miscellaneous No, 192 to 204 of 1996 were moved. It was complained in these Civil Miscellaneous that 612 persons were illegal occupants; that they had obtained injunctive orders from the Courts of plenary jurisdiction that the controversy in the said suits and this petition was common and so all the aforesaid persons be impleaded as party. The aforesaid C.Ms. Were allowed with the consent of all the parties. Civil Miscellaneous Nos.192 to 204 of 1996 were filed by M/s Roshan Din, Taj Din, Muhammad Sharif, Raj Din, Mubarik Ali, Hassan Muhammad, Nawab, Qadir Bakhsh, Sultan Ahmad, Boota, Maalik Ali, Abdul Hakim and Muhammad Sharif. They stated that they were tenants under Shahi Muzara Scheme; that they were necessary parties and so they be impleaded as respondents. Their prayer, too, was allowed with the consent of the parties. With the consent of all the parties, the Court decided to hear this petition alongwith Civil Revisions Nos.799- D of 93, 1006-D of 96, 77 of 96, 182-D of 96, 858-D of 94, 517-D of 95, 1045-D of 94 and 1046-D of 94. This petition alongwith the civil revisions was heard on so many dates. On 30-10-1996, one of us (Mian Allah Nawaz, J.), said that he would not like to hear the controversy with regard to Shikargah. ' This matter was in issue in the instant writ petition as well as in Writ Petition Nos.2342 of 1996, Civil Revisions No, 799-D of 1994, 1006 of 1996, 77 of 1996, 162-D of 1996, 858-D of 1994, 517-D of 1995, 1045- D of 1994 and 1046-D of 1994, Mr. Abdul Majeed Bhatti appeared on behalf of M/s. Roshan Din, Taj Din, Muhammad Sharif, Raj Din, Mubarak Ali, Hassan Muhammad, Nawab, Qadir Bakhsh, Sultan Ahmad, Boota, Maalik Ali, Abdul Hakim and Muhammad Sharif and stated that original orders of allotment in favour of his clients were not on the files and so Suits Nos.59 to 107 of 1995 be allowed to be withdrawn with permission to refile the same. In view of this position, he stated that the order, dated 14-10-1996 be recalled and aforesaid persons be deleted from array of parties; prayer was
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allowed and the names of the aforesaid persons were deleted from the array of the respondents. Thereafter, the arguments of learned counsel were heard and these cases were reserved for orders. 7. On 8-9-1997, we felt it necessary to re-hear the aforementioned cases and so there cases were listed for hearing on 10-9-1997. On this date the learned counsel for petitioners in Civil Revisions No, 162/D of 1996, 858/D of 1994, 517/D of 1995, 799/D of 1994, 1045/D of 1994 and 1046/D of 1994 stated that the controversy in these petitions was being heard by the Managing Director, Cholistan Development Authority in pursuance of order of remand passed by the Member Board of Revenue dated 16-7-1997 and so these petitioners did not want to pursue these petitions. It was so prayed that these petitions be dismissed as not pressed. Resultantly, Civil Revisions Nos.102-D of 1996, 858/D of 1994, 517/D of 1995, 799/D of 1994, 1045/D of 1994 and 1046/D of 1994 were dismissed as unpressed and so only matters surviving for decision are now Writ Petitions Nos.1006 of 1996, 2342 of 1996 and Civil Miscellaneous No,77 of 1996. As the Bench felt necessity to hear the view points of the parties on certain points these cases were again listed for rehearing on 13-4-1998. 8. Mr. R.A. Ghauri, Advocate appeared alongwith Mr. Ijaz Ahmad Chaudhry, Advocate Arguments, advanced by petitioner, can be conveniently summarised as below: ' Firstly; that petitioner is the senior member of High Court Bar Association Bahawalpur was elected President of High Court Bar Association Bahawalpur and District Bar Association; that he as a citizen of this country, had locus standi to file instant petition in order to save the State land from encroachers. Reliance was placed on Cilicon (Pvt.) Ltd. v. Federal Government of Pakistan etc. 1996 MLD 705 and 1994 SCMR 1758). ' Secondly; That numerous persons from outside Bahawalpur Division and inside Bahawalpur Division had illegally occupied the pieces of land falling within the jurisdiction of Cholistan Development Authority (hereinafter described as Authority). Reliance was placed upon parawise comments furnished by Authority dated 4-4-1996/mark 'H' wherein it was stated that many unscrupulous persons encroached upon Cholistan Land and were perpetuating their illegal possession by means of litigation in different Courts; that necessary action had been initiated against them; that warrants of evictions were issued against 298 encroachers; that 199 such warrants had been executed and 1109 acres of Cholistan land had been got vacated from such illegal occupants; that 977 warrants, issued by the Authority, had been stayed by different Courts of plenary jurisdiction. It was further stated that comments furnished by Authority dated 20-6-1996 indicated that Authority had launched eviction operation against 480 persons; that District Magistrate had issued Notification under section 144, Cr.P.C. In order to discourage unauthorised occupation of Cholistan land; that the major encroached area fell within the Shikargah; that Federal Inquiry Commission had been constituted to determine the properties of late Amir of Bahawalpur; that the legal heirs of late Ameer of Bahawalpur were selling the land falling in Shikargah on plain papers at the rate of 50,000 to one lac rupees per square; that due to the above practice a large number of persons had occupied this area. The petitioner also placed reliance on a list given by Authority wherein the names of illegal occupants had been given. On the strength of above facts, it was represented that functionaries of Authority were not performing their duties and were aiding encroachers. On the above scenario, it was suggested that Authority be directed to formulate comprehensive policy for dealing with this national wealth. ' Thirdly; That the Cholistan Development Authority Act (XIV) of 1976 was promulgated with effect from 21st July, 1976. ' According to the petitioner, an Authority was constituted under section 4 of the Act; that under section 15, Authority has the power to grant land to any person on any condition it thinks fit and for that purpose issue statement or statements of conditions; that under section 15(b), it was to provide means of irrigation and irrigational channels; drinking water for human beings and cattle;
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to carry out extensive ground water survey to locate points where sweet water was available and sinking of wells and tube-wells for drinking and irrigation purposes. The learned counsel further relied upon section 16 to say that Authority was given power to grant land to any person on any conditions it thinks fit with the approval of the Government. On the basis of above, it was suggested that Authority had failed to perform its duties. From the point of its creation uptil now, Authority has not issued any statement of conditions whatsoever. The schemes known as Grow More Food Scheme 1959-60 and 20 years lease Scheme of 1970 were issued by Government of Punjab Colony Department. Similarly, another scheme known as Allotment of State land in Cholistan by Private Treaty dated 5th March, 1970 was also issued by the Government of Punjab. The petitioner, so, submitted that on a number of occasions Authority was directed to accommodate different persons under different schemes. On the strength of the above, it was stressed that Authority had not been allowed to function as an autonomous body but has been subjected to dictation from Colony Department. This, according to learned counsel was in contravention of underlying object of Act of 1976. ' Fourthly; That the Authority was autonomous body which had been given a corporate character under section 4 of the Act. This Authority was headed by Chief Minister Punjab and was to comprise of members of Provincial Legislature and National Assembly of Pakistan to be nominated by the Governor, while the other members of the Authority were the Heads of various departments in Bahawalpur Division. Serious exception was taken to the presence of members of Legislatures on the ground that this simply was in violation of the theory of separation of power which was bed- rock of constitution; that the members of Parliament or Provincial Assembly were legislators and were not required to become members of the Authority which was invested with executive authority to implement the provisions of the Act (XIV) of 1976. ' Fifthly; That the office of Managing Director was a tenure post and the Managing Director had to be appointed by the Government for a period of three years on such terms and conditions as determined by it. This provision was being flagrantly violated and the Managing Directors were being appointed from time to time and moment to moment without any reason and rhyme. Furthermore, it was pointed out that Authority was being run on the dictation of Colony Department through the Board of Revenue. This, too, clearly destroyed the autonomous/ corporate character of the Authority. 9. Mr. Muhammad Iqbal Khichi, learned A.A.-G., entered appearance on behalf of Provincial Government. Representing the Provincial Government, he filed written statement and written note. He raised following points:--- ' Firstly; That the Act of 1976 was passed by the Punjab Assembly on 7th July, 1976, and was made effective from 21st July, 1976; that in subsection (2) of section 1 of the Act, Cholistan area was defined; that vide a Notification dated 14-11-1977, provisions of Colonization of Government of Lands Act, 1912, were applied to Cholistan and that section 7 of the said Act made the provisions of Punjab Land Revenue Act, 1967 and Punjab Tenancy Act applicable to Cholistan. On the strength of the above Notification, it was suggested that the total hierarchy provided under Punjab Land Revenue Act and remedial provisions relating to appeal/revision/review were made applicable to this area. On the strength of above submissions, it was argued that any order passed by Managing Director/ Collector C.D.A. Was subject to incident of appeal/ revision/review under the provisions of Punjab Land Revenue Act; ' Secondly; That the Board of Revenue is empowered to frame statement of conditions with regard to allotment of Cholistan land. Reference was made to rule 2(III) of Punjab Government Rules of Business of 1974. ' Thirdly; Rule 2 (IV) of Government Business Rules, 1974 was relied in support of submissions that expressions 'business' meant work done by the Government; that under rule 3 the Government
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business had been distributed among several departments in manner detailed in Schedule-2; that Board of Revenue figured in Schedule 2 and has been assigned the task of administration of State/Colony land under Colonization of Government Lands Act and Punjab Board of Revenue Act; that the Deputy Secretary to the Colony Department was/is competent to sign an order of Government and communicate it to the Managing Director. On the strength of the above line of reasonings, it was suggested that Government wielded overall control over the activities of Authority. ' Fourthly; That Managing Director has to perform such duties as may be prescribed by the Government and as assigned by the Authority under section 15(b). According to the learned A.A.- G., the Authority may grant land to any person on any conditions it thinks fit and for that purpose issue statement/statements of conditions. He further pointed out that section 15 enumerates the functions of the Authority, whereas section 16 lays down its powers. Continuing, he argued that the Government may direct the Authority to grant land to any person on terms and conditions prescribed by it and that in such case, preparation of Scheme was not required. He further pointed out that under section 4(7) of the Act, not act or proceeding of authority becomes invalid merely by any vacancy or defect in the authority. ' Fifthly; That the Scheme known as Shahi Muzara Scheme was not a valid scheme; that it did not give any description of land and so allotments under the said scheme were invalid under section 29 of the Contract Act. Reference was made to Abdul Khaliq v. Sher Muhammad (PLD 1961 BJ 79). ' Sixthly; That section 30 of the Colonization of Government Lands Act, needed to be interpreted in the light of Article 2A of the Constitution; that the State land was/is of trust property; that it shall not be given away at throw away prices; that the land in Cholistanis should be distributed through open auction. According to the learned A.A.-G., this mechanism will minimise the corrupt practices and contribute to exchequer of Provincial Government. ' Seventhly; and lastly; That according to record of Irrigation Department, a Scheme for providing 2- 1/2 months irrigational water has been sanctioned for 2.18 lacs acres; that out of Cholistan land, 31.041 acres were allotted under Grow More Food Scheme 1959-60 and 23,626 acres under Twenty Years Lease Scheme. He further informed the Court that according to report of Deputy Land Commissioner, Bahawalpur, 2,78,171 acres formed Shikargah which had been transferred to C.D.A. In the year 1978; that out of this land 24,269 acres were allotted to the Cholistanis while the remaining was in illegal occupation of 215 encroachers; that Mr. Munir Akbar Khan has issued 61 Patta Malkiyyat during the span of 19 days in the month of October, 1996; that even these title-deeds were given in presence of a restraint order passed by this Court. The learned A.A.-G. Firmly stated that these aspects presented dismal picture and that Government was aware of these acts of malfeasance and misfeasance and will deal with them sternly. 10. Mr. Muhammad Jaffar Hashmi, Senior Advocate, assisted by Mr. Masood Ashraf Sheikh, Advocate, entered the debate on behalf of Cholistan Development Authority and raised the following points:--- (i) That Mr. Rauf Ahmad Ghauri was a Member of High Court Bar Association, Bahawalpur. Neither he was resident of Cholistan nor was he grantee of any land in this area. On the above facts, it was strongly contended that the petitioner had no right to file instant petition; (ii) that the area, which was under illegal occupation fell within Shikargah. The illegal occupants of this area fell into two categories. Firstly, these who have come and occupied the land by sheer use of power under the very nose of administration. Secondly, those, who had occupied a vast area on account of some agreement of sale executed in their favour by the heirs of Sir Sadiq Muhammad Khan Abbasi. According to the learned counsel, legal heirs of late Sir Sadiq Muhammad Khan Abbasi were selling these lands at the rate of Rs,50,000 per square; that C.D.A. Practically had no control over this area as the same is the subject matter of litigation before a Tribunal constituted
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by the Federal Government for the purpose of resolving the dispute between the heirs of late Amir of Bahawalpur/Sir Sadiq Muhammad Khan Abbasi. He even stated that these illegal occupants were receiving illegal supply of irrigational water with the courtesy of irrigation authorities. On the strength of the above circumstances, it was submitted that the commission be directed to resolve the dispute which had been pending adjudication since more than two decades. It was pointed out that if this decision was not made, the land, falling within the Shikargah, will be simply misappropriated by miscreants. Mr. Muhammad Jaffar Hashmi, Advocate also placed emphasis on the parawise comments furnished by the authority, particularly, para No,5 to demonstrate that the functionaries of Authority were endeavouring to protect the Cholistan land from the illegal encroachers. He further pointed out that under Shahi Muzara Scheme, 1951, permits were issued to 836 persons to the extent of 50 acres of land and allotments made to these persons were resumed in 1955 by the Director Agricultural, Bahawalpur, vide order, dated 21-2-1955. Out of these, 115 persons got their allotments restored through the judgment and decrees of Civil Courts, while 721 persons were yet busy in Court. Mr. Hashmi concurred with the view taken by the learned A.A.-G. That Shahi Muzara Scheme did not…
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