' The appellant filed a writ petition claiming to be the owner of land in question and urging that in the garb of the acquisition of a sma ll parcel of his land the remaining has been forcibly and unauthorizedly taken over by the respondents on the pretext of having also been acquired. Besides, it is mentioned in paragraph 15 of the petition that "the respondents have illegally installed the 'hedge' upon the said land while they have no right or title to do so as such they may please be directed to remove the hedge." The learned single Judge-in-Chambers, vide order dated 7-10- 2005, without issuing notice to the respondents dismissed the petition in limine holding that the grievance voiced by the appellant in the petition require factual inquiry, which cannot be conducted in the Constitutional jurisdiction, therefore, the petitioner may avail appropriate remedy by maintaining a suit for possession or for recovery of compensation of the land. Hence this appeal.
2. In response to a notice, the respondents have put in appearance and when questioned if the land has been acquired for the respondents or is in their possession, the answer is in the negative.
It is, however, stated by the learned Deputy Attorney General appearing for the respondents, that as the appellant's land is situated in the cantonment area close to some sensitive defence installations, therefore, in order to prevent any mischief a barbed wire has been fixed along with the land, but an adequate passage has been provided, through which the appellant has an easy access to his property. In view of the above, the basic grievance of the appellant that he has been deprived of the possession of his land is not well-founded and even this part of the claim raised in the petition has not been further pressed before us. However, it has been argued by the appellant's counsel that according to Article 23 of the Constitution of the Islamic Republic of Pakistan, 1973 it is the fundamental right of every citizen to acquire, hold and dispose of his property, and therefore, any circumvention upon the use thereof by installing a hedge or the barbed wire is violative of such right, moreover, that the right of the appellant to have free and full excess form the road cannot be curtailed by the respondents.
3. Before proceeding further, it may be expedient to mention that on one of the last dates of hearing the respondents had also taken up the plea that the land of the appellant is at the rear; the other owners having the land abutting the road, around which the wire/hedge has been installed, have not approached this Court, therefore, the appellant cannot maintain a cause of action in this- regard. Therefore, vide order dated 29-10-2008, Rana Muhammad Anwar, advocate was appointed as a local commission to inspect the site and submit his report, about the location of the appellant's land, the extent of the wire etc., which has been duly filed and is made part of the record.
4. From the report it is clear that the appellant's land, which has a considerable frontage towards the road, has been blocked due to the barbed wire and only a small access has been left for the entry. We have asked the learned Deputy Attorney-General, if the respondents have any objection to the report, the reply is in the negative, except that the distance recorded by the commission about the location of helipad and Tank shed is not accurate, because it is much closer to the land of the appellant than as recorded in the report. Anyhow, in order to justify the fixation of the wire/hedge, it has been argued by the learned Deputy Attorney General that according to Rule 556, framed under the Works of Defence Act, 1903 (the 'Act') and the Army Regulations Volume II (Instructions) 1991, a restriction can be imposed within 2000 yards upon the use of the land in vicinity of the defence installations. Reference in this behalf has also been made to section 39(4) of the Act ibid.
5. Heard. The object clause of The Works of Defence Act, 1903, prescribes "Whereas it is expedient to provide for imposition restrictions upon the use and enjoyment of land in the vicinity of works of defence in order that such land may be kept free from buildings and other obstructions and for determining the amount of compensation to be made on account of such imposition." - ' Section 3 of the Act provides the mode according to which the declaration, the notice and the extent of the restriction shall be imposed, and is reproduced as below:-- "(1) Whenever it appears to the (Federal Government) that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defense 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 land, which shall be prepared on a scale not smaller than six 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 the given at convenient place in the locality.
(3) The said declaration shall be conclusive proof that it is necessary to keep the land free form buildings and other obstructions."
6. Learned Deputy Attorney General, has not been able to satisfy us, if the declaration/notification in terms of the above provision has ever been made regarding the land of the appellant. The only reference to rule 556, which has been framed under section 44 of the Act, is not shown to be independently applicable to the situation and the proposition in hand i,e, if the frontage of the appellant's land can be blocked by a wire/hedge, by leaving a small passage for the access.
Because section 7 of the Act, is quite germane in this behalf, which enunciates that it is from and after the publication of the notice mentioned in section 3, subsection (2) that such of the restrictions referred to in this section, (which does not even otherwise provide for the fixation of wire), as the Federal Government may in its discretion declared and attached with reference shall be applicable. Admittedly, when no restrictions have been imposed under any provisions of the present law (the 'Act'), how can the rule, which is subservient thereto, be invoked to imply the restriction.
7. The other argument of the learned Deputy Attorney General that as the land of the appellant falls within A-Class zone, and therefore, notwithstanding section 3 or 7 of the Act, besides, the reasons earlier given thus it cannot be so done, it has not been established that certain restrictions upon its use can be validly imposed, suffice it to say that notwithstanding the above the land in question is not shown to be located in A-Class zone, which has to be notified, but admittedly the needful is not done. Resultantly, we are not convinced that the action of the respondents to put, wire/hedge against the appellant's property is under any lawful authority.
8. Examining the impugned action of the respondents on the touchstone of Article 23 of the Constitution of Islamic Republic of Pakistan, 1973, it may be held that the fundamental rights enshrined by the Constitution are the most sacred rights, which are far above the ordinary rights conferred under the law and thus have special significance and sanctity attached thereto; the importance of these rights can be gauged and spelt out form the provisions of Article 8 of the Constitution, which declares that any prevalent law inconsistent with the fundamental rights shall be void and that the State shall not make any law which takes away or abridge these rights; furthermore, for the enforcement of the rights, extraordinary jurisdiction has been conferred upon the High Courts in terms of Article 199(1)(c), to make orders and giving such direction to any person or authority including any government exercising any power or performing any function in relation to the State, which are appropriate. Article 184(3) is also in the same direction.
9. While construing and enforcing such rights, generous and purpose interpretation should be made and fullest possible meaning and amplitude must be given conforming to the real spirit of these rights, thus keeping the above principles in view, the expression/word "HOLD" appearing in Article 23 does not simply mean to "keep", "retain" or "occupy" the property rather in its true sense, it entails its use by an owner in the manner, he chooses to, with all the rights to enjoy the benefits of the property which necessarily flows and are pertinent and appurtenant to his ownership. Thus, when a restriction, which is not otherwise imposed by the law, is thrusted upon the owner qua the free user of his property, it is a clear case of the breach of his fundamental rights. Reliance can be placed on Ramhari Mandal v. Nilmoni Das AIR (39) 1952 Cal. 184, Bhaurao Atmaram Patil v. Sub- Divisional Officer, Chandur-Morsi and another AIR 1955 Nag. 1, Nasirabad Properties Ltd. v.
Chittagong Development Authority and another PLD 1966 Dacca 472. Besides, it has been held in the judgments reported as The Municipal Board, Manglaur v. Mahadeoji Maharaj AIR 1965 SC 1147, Pakistan National Oils and another v. Sattar Muhammad 1980 SCMR 686 and Lahore Cantonment Cooperative Housing Society Limited through Secretary v. Messrs Builders and Developers (Pvt.) Ltd.
And another PLD 1999 Lah. 305, that access by a person from public road cannot be curtailed and in our view on account of the action of the respondents, not only that the appellant's fundamental right has been breached, but his right to way has been violated. Therefore, while allowing this Intra court appeal, the impugned order passed by the learned single Judge is set aside, the action of the respondents in fixing/installing the wire/hedge across the frontage of the appellant's land is declared as without lawful authority, with the direction to the respondents to remove the wire/hedge with immediate effect.