Courtesy LHC
The Lahore High Court (LHC) on Wednesday struck down a decision of the caretaker Punjab government granting over 45,000 acres of land in three districts of the province to the Army on a 20-year lease for “corporate agriculture farming.”
The Army had sought “barren” land in Bhakkar, Khushab and Sahiwal for Corporate Agriculture Farming (CAF) under the China-Pakistan Economic Corridor (CPEC), with discussions over it commencing under the previous government of the Pakistan Tehreek-e-Insaf (PTI). However, the deal—which granted the option to extend the lease for 10 years—was finalized under the interim government of Mohsin Naqvi.
“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,” read the detailed verdict of Justice Abid Hussain Chattha on four identical petitions filed by the Public Interest Law Association of Pakistan and others.
Declaring as unlawful and of no legal effect the entire transaction, the ruling stated that all subsequent notifications and developments, including the sanction or transfer of state land in favor of the Pakistan Army, were null and void.
Noting the caretaker cabinet’s decision to grant the land to the Army amounted to preempting the exercise of authority by elected governments in future, Justice Chattha wrote that the caretaker government’s taking up of the issue from where it had been left by the previous elected government was beyond its scope and mandate under Section 230 of the Elections Act, 2017. “It was a blatant attempt to encroach upon the domain of future elected governments,” he ruled, rubbishing the argument that the caretaker cabinet was merely implementing an already approved corporate farming initiative of the previously elected government.
Commenting on the apparent “haste” of various approval stages, Justice Chattha noted the Pakistan Army, as a potential lessee, had directly approached the Punjab government for the land through a letter dated Feb. 8, even before the approval of new statement of conditions by the caretaker cabinet. He wrote that the Army’s claim that it had experience in developing 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,” he wrote.
“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,” he noted, adding that while the execution of the joint venture agreement by the Government of Punjab in the name of the governor, was lawful, 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,” he added.
On the administration of military lands and cantonments being under the administrative control of the defense ministry, Justice Chattha said the record shows that the CAF initiative was not approved by the federal cabinet. He noted that during arguments it was claimed the CAF initiative was approved by the chief of army staff, adding: “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.”
Describing as misconceived a claim that the federal government’s approval was not required for a commercial contract, the ruling said this was in flagrant disregard of Article 245 of the Constitution and a Supreme Court ruling stating the armed forces could not do anything without the approval or direction of the government. As the joint venture was beyond the Army’s mandate, it stated, it was unconstitutional. “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,” read the judgment.
As a consequence of the lease agreement being struck down, said Justice Chattha, all the land shall stand reverted to the government, departments and persons as per its previous status. He also hoped that the federation of Pakistan, in concert with the Army, Navy and Air Force chiefs, would evaluate all activities and projects of the Army 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, he hoped, “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.”