' SYED QALB-I-HASSAN, J.---The facts in brief of the case are that Government of Pakistan in order to establish a research development and training centre for nuclear sciences and technology acquired about 354 acres, 5 kanals and 5 marlas of land in 1961 and subsequently more acquisitions of land were made and now the total land acquired by the Government is about 877 acres 19 kanals and 16 marlas. The major objectives of the aforesaid establishment are:
(i) Keeping pace with the ever expanding frontiers of knowledge in the nuclear field through research that meets international norms and standards.
(ii) Serving at the cutting edge of the PAEC's technological development for peaceful applications of nuclear energy.
(iii) Producing radioisotopes and radiopharmaceuticals for catering to the needs of nuclear medical centres, industry and research establishments.
(iv) Promoting applications of radiation and isotope technological disciplines to support the national programmes.
(v) Providing appropriate trained manpower through training to the exacting and demanding standards of nuclear sciences.
(vi) Undertaking limited production of sophisticated equipment and special nuclear materials.
(vii) Working on important non-nuclear fields, which are crucial for the development of science and technology in the country.
(viii Extending hi-tech support in the form of technical services to industry and other organizations.
2. It is further stated in the petition that whenever the land was required for extension etc. Of the institute, the same was acquired through Land Acquisition Act, however, on 26-3-2007 respondents have issued a notification i,e, S.R.O.279(I)/2007 under the provisions of section 3 of the Works of Defence Act, 1903 which provided that the owners of the land, houses, shops etc. Within the radius of 2000 yards from the outer parapet of PINSTECH can do nothing such as dig, build, alter, erect etc. On their lands, houses, shops and other structures unless prior approval is granted by respondent No,2. The petitioners are resident of the area located in Zone 4. Of the CDA and owned houses, land and other properties situated in the area surrounding the boundaries of PINSTECH and are directly affected by the said S.R.O. As they are not able to enjoy the fruits of their properties in any manner whatsoever including the sale/purchases in the area. The petitioners further pleaded that approximately 1000 acres of area is affected by the impugned notification which has approximately population of 30000 and there are 5400 houses, 87 markets, 110 poultry farms, 53 mosques, 23 schools and colleges, 160 bed double storey hospital and two government basic health units meaning thereby the impugned notification has paralyzed the entire vicinity.
3. It is further averred in the petition that the provisions of Works of Defence Act, 1903 are ultra vires to the Constitution and thus the notification is unlawful and is without any legal authority. The restrictions imposed through the impugned notification are neither envisaged nor relatable to any of the purposes of the Act 7 of 1903. That the aforesaid Act is not applicable in the instant case as its objectives are for limited purpose to safeguard the area surrounding Naval Dockyard, an Airfield, a Runway, an Emergency Landing Ground and other works of the same nature, therefore, the PINSTECH establishment even does not fall within the definition of Works of Defence. The impugned notification is nullity in the eye of law as it does not provide and entitled the petitioners to ask for compensation against the declaration under section 3 of the Works of Defence Act, 1903 and restrictions for unlimited period are against the constitutional guarantees provided under Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973. In this background the learned counsel prayed that the impugned notification may be declared to be ultra vires of the Constitution of Pakistan and without lawful authority and of no legal effect.
4. Respondents Nos.2 & 3 submitted report and parawise comment and opposed the writ petition on different legal and factual grounds. It is alleged that Pakistan Atomic Energy Commission
(PAEC) is a Government Organization constituted under the Pakistan Atomic Energy Commission Ordinance, 1965 (approved by the National Assembly on 21st July, 1965). Its functions are to do all acts and things, including research work, necessary for the promotion of the peaceful uses of atomic energy. The PINSTECH and PAEC are closely connected with defence, therefore, they are placed under the Development Control Committee of the National Command Authority and its Secretariat, the Strategic Plans Division (SDP) and functions under the command of National Command Authority its Secretariat, the Strategic Plans Division. The PINSTECH Complex for reasons, is closely connected with defence, therefore, the PINSTECH Complex has been declared to be a "Work of Defence" under section 2(J) of the Work of Defence Act, 1903. This was absolutely necessary because of sensitive and strategic research, and development work is carried out in the workshops and laboratories in the PINSTECH Complex. The Works of Defence Act, 1903 is an existing law under Article 268 of the Constitution of the Islamic Republic of Pakistan (1973). This was also an existing law under Article 225 of the Constitution of Islamic Republic of Pakistan, 1962. Similarly this was an existing law under Article 224 of the Constitution of Islamic Republic of Pakistan, 1956. The learned counsel further submitted that this Act is not ultra vires of the Constitution of Islamic Republic of Pakistan, 1973, nor does it offend the fundamental rights. The declaration/notification under this Act can also not be termed as oppressive/suppressive in any way due to the following:-
(i) The restrictions under this Act are imposed for State necessity.
(ii) The affectees, if any, under this Act are entitled to the compensation under a laid down procedure.
(iii) This declaration/Notification is not only in the interest of the respondents but is also beneficial for the safety of the people of the restricted area.
(iv) Under the said Notification itself, the affectee can proceed with the restricted activities after due approval of DG, SPD which clearly shows that the restrictions are not arbitrary one but can be reconsidered on case to case basis, if any of the affectees applies for the same.
5. It is further stated that the writ petition is not maintainable as the impugned Notification dated 26-3-2007 has been issued by the Federal Government quite in accordance with the Works of Defence Act, 1903 as admissible under Article 23 of the Constitution of Pakistan, 1973. It is submitted that in the instant case, the land is not being acquired on ownership basis but for protection of the highly sensitive nuclear-cumdefence installations at PINSTECH Complex, imposition of limited restriction is also being sought for the safety of the people in the vicinity under the Works of Defence Act, 1903. It is stated that in accordance with the notification issued, the owners of the land within the vicinity of the Work of Defence can apply to the General Officer Commanding for erecting, adding or altering buildings, walls banks, or other constructions above the ground level and such approval can be granted on such conditions as may be prescribed by the General Officer Commanding. It is further submitted that no restrictions have been imposed on the sale and purchase in the area as alleged by the petitioners.
6. The Works of Defence Act, 1903 is not ultra vires of the Constitution. It is a valid existing law under Article 268 of the Constitution of 1973 and has been enacted for the security of the State. The notification clearly declares the PINSTECH Complex at Nilor as a work of defence; therefore, under the provisions of the Works of Defence Act, 1903, restrictions can be imposed on the use and enjoyment of land within the vicinity of this complex. It is submitted that under section 2(J) of the Works of Defence Act, 1903, there is no legal bar to declare the specified area around PINSTECH Complex as restricted one, as has been done in the instant matter by the Federal Government vide notification dated 26-3-2007. In view of above submissions, learned counsel for the respondents prayed for dismissal of the writ petition.
7. Learned standing counsel on behalf of Government of Pakistan (in response to notice issued to Attorney General of Pakistan) and learned counsel for CDA supported the contentions raised by learned counsel for contesting respondents Nos. 2 and 3.
8, The first question for the determination of this Court is whether by virtue of definition of Works of Defence provided in section 2(j) of the Works of Defence Act, 1903 establishment of PINSTECH falls under the definition of "Defence establishment".
' Section 2(j) of Act of 1903 reads as under:-- "The expression 'Works' or 'Work of defence' means any defence establishment and include a naval dockyard, an airfield, a runway, an emergency land ground or any area declared by the Central Government to be a 'work' or 'work of defence.' ."
9. The learned counsel for the petitioner argued that from the perusal of definition of Works of Defence itself the Act of 1903 is not applicable to the properties of petitioners as its objectives are for limited purposes to safeguard the area surrounding naval dockyard, an airfield., a runway, an emergency landing ground and other works of the same nature, therefore, PINSTECH does not fall in the definition of the Works of Defence. The learned counsel by referring Jamat-i-Islami Pakistan Versus Federation of Pakistan PLD 2000 SC 111 argued that the principle of doctrine of ejusdem generis is applicable only to the persons or things of the same general nature or class as those enumerated, unless an intention to the contrary is clearly shown. Learned counsel for respondents Nos. 1 and 2 argued that the bare reading of definition of works of defence makes it clear that "any defence establishment" can be declared by the Central Government as Works of Defence since PINSTECH complex was established for sensitive nuclear-cum-defence installations and also placed under the command of National Command Authority, therefore, falls under the definition of works of defence. The learned counsel for the respondents Nos. 2 and 3 contended that Pakistan Atomic Energy is a government organization under Pakistan Atomic Energy Commission Ordinance and PINSTECH Complex was established for sensitive nuclear-cum-defence installations, therefore, PINSTECH and PAEC are closely connected with defence and also placed under the command of National Command Authority and its secretariat.
10. The learned counsel for the respondents Nos. 2 and 3 also placed on record National Command Authority Ordinance and section 2(d) of the above Ordinance defines the strategic organization as under:-- "Strategic Organization" means such body notified by the authority to be a strategic Organization and includes Pakistan Atomic Energy Commission. Dr. A.Q. Khan Research Laboratories (KRL) and Space and Upper Atmosphere Research Commission. "
11. In view of the definition of Works of Defence in section 2(j) and section 2(d) of the Ordinance 2007, no doubt PINSTECH falls under the definition of works of defence.
12. The learned counsel for the petitioners, Syed Iftikhar Hussain Gillani next argued that the petitioners and other owners are residing in the vicinity of PINSTECH for the last over 60 years and have raised construction for their residences and business but all of sudden the respondents have imposed unjustified restrictions and paralyzed 30,000 population with their 5400 houses, markets, poultry farms, mosques, schools and colleges, therefore, they are estopped by their conduct on the ground that the respondents have acquiesced the existence of construction for such a long time where existence of locality with built up property was not considered for any danger for the establishment for such a long time and now such construction could not be considered danger for the PINSTECH and relied upon AIR 1922 A11.86(1) to support his contention. The learned counsel further contended that at any event the restrictions imposed through impugned notification are ultra vires of the Constitution as no restrictions can be placed for unlimited period for a compensation assessed for once that too after a period of the years as provided in section 9 of the Act of 1903.
13. The learned counsel next contended that the stand of respondents, that temporary restrictions have been imposed for the safety measures of highly sensitive installations of nuclear-cum- defence, is against the very spirit of Act, 1903, however, the temporary restrictions as imposed for unlimited period are not reasonable as envisaged in Article 23 of the Constitution and in order to draw a distinction between reasonable and unreasonable restriction referred sections 35 and 36 of he Land Acquisition Act which reads as follows:--
35. Temporary occupation of waste or arable land-Procedure when difference as to compensation exists.-(1) Subject to the provisions of Part-VII of this Act, whenever it appears to the Provincial Government that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a Company, the Provincial Government may direct the Collector to procure the occupation and use of the same for such term as it shall think fit, not exceeding three years from the commencement of such occupation.
(2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof for such term as aforesaid, and for the materials (if any) to be taken therefore, pay to them such compensation either in a gross sum of money, or by monthly or other periodical payments as shall be agreed upon in writing between him and such persons respectively.
(3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the collector shall refer such difference to the decision of the Court.
36. Power to enter and take possession, and compensation on restoration.---(1) On payment of such compensation, or on executing such agreement or on making a reference under section 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice.
(2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage (if any) done to the land and not provided for by the agreement, and shall restore the land to persons interested therein: ' Provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require, the Provincial Government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a Company.
14. The learned counsel with reference to sections 35, 36 of the Land Acquisition Act contended that the Land Acquisition Act has also provided temporary occupation and use of any waste or arable land needed for any public purpose not exceeding three years from the commencement of such occupation and after expiry of the said period, the land either has to be restored to the land owners or will be acquired on permanent basis. The learned counsel on the analogy of above said two sections argued that restrictions for unlimited period without adequate compensation is against the guarantees provided in the Constitution of Pakistan.
15. Learned counsel for the respondents Nos. 2 and 3 resisted the above said arguments on the grounds that due to the most sensitive installations of nuclear-cum-defence installations in the PINSTECH and in view of the peculiar situation of the world and especially in the country, the temporary restrictions are imposed for the safety of installations and public at large, however, the learned counsel referred different sections of Act of 1903 and argued that the owners are entitled for compensation for the damage caused to the land as well as to the built up property.
16. Now there is no cavil with the proposition that for sovereignty and integrity of Pakistan any land or property can be acquired by the Government or even temporary restrictions can be imposed by different laws of the country but the important question here is that the word `temporary' is neither defined nor any definite period is described in the Act of 1903 that how long such restrictions will be applicable after imposition of restrictions to the area under impugned notification, therefore, the next question for determination is whether the restrictions imposed by impugned notification are reasonable restriction under Article 23 of the Constitution. To know the controversy relevant provisions of Act 1903 are to be taken into consideration which reads as under:-- ' Section 3.---(1) Whenever it appears to the Central Government that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to. That effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders.
(2) The said declaration shall be published in the official Gazette and shall state the district or other territorial division in which the land is situate and the place where a sketch plan of the inches to the mile and shall distinguish the boundaries referred to in section 7, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality.
(3) The said declaration shall be conclusive proof that it is necessary to keep the land free from buildings and other obstructions.
' Section-7(b)(i).--No building, wall, bank or other construction of permanent materials above the ground shall be maintained otherwise than with the written approval of the General Officer Commanding the Division and on such building, wall, bank or other construction shall be erected: ' Provided that, with the written approval of the General Officer Commanding the Division and on such conditions as he may prescribe, huts, fences, or other constructions of wood or other materials, easily destroyed or removed, may be maintained, erected, added to or altered: ' Provided, also, that any person having control of the land as owner, lessee or occupier shall be bound forthwith to destroy or remove such huts, fences or other constructions, without compensation, upon an order in writing signed by the General Officer Commanding the Division.
' Section-9.--(1) At any time before the expiration of--
(a) the period of eighteen months from the publication of the declaration referred to in section 3, or
(b) such other period not exceeding three years from the said publication as the Central Government, may, by Notification in the official Gazette, direct in this behalf, the Collector shall cause notice to be given at convenient places on or near the land, stating the effect-of the said declaration and that claims to compensation for all interests in such land affected by anything done or ordered in pursuance of such declaration may be made to him: ' Provided that, where anything has been done in exercise of the powers conferred, in case of emergency, by section 6, subsection (3), the notice prescribed by this section shall be given as soon as may be thereafter.
(2) Such notice shall state the particulars of any damage ordered to be done or, in the case referred to in section 6, subsection (3), done in exercise of any of the powers conferred by the said section, and the particulars of any restrictions attaching to the land under section 7, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for damage to such interests and their objections (if any) to the measurements made under section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business.
' Section-23.--(1) In determining the amount of compensation to be awarded for damage caused, or to be caused, or for restrictions imposed under this Act, the Court shall take into consideration-- -
(a) the actual decrease in market value of the land owing to the publication of the declaration relating thereto under section 3 and any damage caused or to be caused under section 6;
(b) the damage sustained by the person interested, by reason of the removal of any standing crops in the exercise of any power conferred by section 6;
(c) the damage (if any) sustained by the person interested, by reason of ceasing to be able to use such land conjointly with his other land.
(d) the damage (if any) sustained by the person interested by anything done or ordered under sections 6 and 7 injuriously affecting his other property, moveable or immoveable, in any other manner, or his earnings; and,
(e) if, in consequence of the imposition of restrictions, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change.
(2) In addition to the amount representing the actual decrease in the market value of the land as above provided, the Court shall in every case award a further sum of fifteen per centum on such amount.
17. Now the above referred provisions prescribed the mode of restrictions and compensation for any damage caused by the restrictions. Sections 3 and 7 prescribe the mode of restrictions whereas section 9 of the Act prescribed that within a period of 18 months to three years from the publication of declaration under section 3 of the Act the Collector shall cause notice for compensation to all interested persons affected by anything done by the restrictions imposed on the property and section 23 prescribed the factors for assessment of compensation to the affected persons.
18. The respondents have admitted in their written comments that the land is not being acquired on ownership basis but the restrictions have been imposed for the safety of highly sensitive nuclear cum defence installations and for the people of the vicinity meaning thereby that the restrictions are imposed under the Act without mentioning the period for the said restrictions. Learned counsel for the petitioner has argued that section 9 of the Act although prescribed the period to receive claims for compensation for any damage caused to the land within three years but there is no provision to prescribe the time limit of restrictions imposed by the impugned notification as shown in sections 35 and 36 of the Land Acquisition Act 1894 or whether they will reassess the compensation after three years. The Act of 1903 is absolutely silent about it, therefore, the restrictions imposed for unlimited period are not reasonable restrictions as enshrined in Article 23 of the Constitution. The arguments raised by the learned counsel for the petitioners have also force that the respondents have not objected to the construction raised by the people for the last 60 years and now all of a sudden a notification is issued to impose restrictions on the entire vicinity without prescribing the time limit to keep the public in lurch for an indefinite period.
19. In view of what has been discussed above restrictions imposed by the impugned notification for indefinite period are not reasonable restrictions and taking guidance from the analogy of sections 35 and 36 of the Land Acquisition Act, 1894 the respondents are directed to prescribe any definite period for temporary restrictions but not exceeding three years from the date of notification otherwise the notification will be deemed to have been lapsed after a period of three years, however, respondents are entitled to acquire the property in accordance with the procedure laid down in Land Acquisition Act 1894 after the period of three years from the date of impugned notification if deemed necessary in the interest of sovereignty of Pakistan.
' With the above observations the writ petition is disposed of.