' MUHAMMAD KHALID MEHMOOD KHAN, J.---With the consent of parties, these two petitions (i,e, Writ Petition No,3327 of 2003 and Writ Petition No,8433 of 2005) are being decided as pacca case as same question is involved in these two petitions.
' The petitioners are owners of sma ll plots of land, detailed in the petitions in Mauza Niaz Baig, Multan Road; Lahore (hereinafter referred to as "suit-land"); they purchased the suit-land for the purpose of construction of a house, when they started to construct house, Military Authorities stopped them to raise construction on their land directing that suit-land falls in the restricted area, petitioners averred that, initially, the respondents informed that they are willing to purchase the land adjacent to Ammunition Depot but no positive steps were taken by them so far. Respondents on 16-10-1979 issued a notification published in Gazette of Pakistan imposing restrictions that land within the radius of 1143 meter of Ammunition Depot could not be occupied and utilized by the owners without their possession, after that, another Notification under section 4 of the Land Acquisition Act, 1894 was issued on 16-12-1981, showing that 888-K 16M land in the vicinity of Ammunition Depot has been acquired for public purpose, but the land remain un-acquired nor any compensation was paid to petitioner/land owners. On 16-3-1985 the Collector Lahore District Lahore de-notified the Notification dated 16-12-1981 published in Extra Ordinary Punjab Gazette dated 13-3-1985. It is further averred that earlier Notification dated 16-10-1979 has come to an end after expiry of 3-years, whereas second Notification dated 16-12-1981 has been withdrawn vide Notification dated 16-3-1985, but in spite of above facts respondents are not permitting the petitioner to construct their house or utilized the suit-land otherwise. It is also stated that up to 30- 6-1994 respondents have paid rent/compensation to petitioner of Writ Petition No,3327 of 2003 amounting to Rs,273,960 but after 30-6-1994 they have refused to pay the same and no compensation was paid to the petitioners of Writ Petition No,8433 of 2005.
2. The petitioner thus prayed as under:-- "Respondents may kindly be directed either to pay the compensation of the said land or to vacate the possession of the same. It is also prayed that if the respondents are unable to deliver the- possession of the above said property then they may kindly be directed to provide alternate land according to the prevailing market value. "
3. Notices were issued to respondents, they filed report and parawise comments, admitting the petitioners" ownership, categorically stated that petitioners are still owner of suit-land, however, it is admitted that they have imposed restrictions vide Notification No,S.R.O. 939(1)/1979 dated 2-10- 1979 against the suit-land and the suit land falls in the restricted zone. It is admitted that notice under section 4 of Land Acquisition Act only conveys the intention to acquire land but no final acquisition has been made by the Ministry of Defence, Government of Pakistan in the present case, it is stated that suit-land has not been acquired and only restrictions have been imposed by the Federal Government, no compensation is payable to petitioner on account of non-utilization of the petitioner's land.
4. Learned counsel for petitioner submits that petitioners are owner of suit-land; respondents are admitting that they have not acquired the suit-land but restrictions have been imposed for raising construction on the plots, meaning thereby property owned by petitioners became useless for them. Learned counsel submits that it is the fundamental right of petitioners to construct their own house and to live peacefully therein and to deal with it according to his choice, and no restrictions could be imposed against fundamental right of petitioner. He further submits that it is the highhandedness of respondents that they have imposed restrictions but are not paying any compensation. Learned counsel submits that under Article 24 of the Constitution of the Islamic Republic of Pakistan 1973 no person can be deprived of his property except in accordance with law.
Learned counsel adds that restrictions imposed by respondents thus are illegal and are without any lawful authority.
5. Learned Deputy Attorney-General for Pakistan submits that imposition of restrictions is perfectly in accordance with law and are in public interest. He submits that as the property belonging to petitioner has not been acquired hence no question of payment of any compensation arose.
Learned DAG submits that Federal Government is within its powers under the Works of Defence Act
(VII) of 1903 to impose restrictions in the interest of public.
6. Heard, record perused.
7. It is an admitted fact between the parties that petitioners are absolute owners of suit-land but dispute between them is about the imposition of restriction against the legitimate use of suit-land.
It is a proven fact that suit-land is enjoying the character of urban land and different owners of land have constructed Housing Colonies in the vicinity of Ammunition Depot as is evident from the report of local commissioner dated 26-4-2010, the admitted document between the parties.
Notification dated 2-10-1979 shows that it has been issued under section 3 of the Works of Defence Act, 1903. Section 3 of the Works of Defence Act, 1903 provides as under: "3.---(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 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 building 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 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."
"7. From and after the publication of the notice mentioned in section 3, subsection (2),such of the following restrictions as the [Federal Government] may in its discretion declare therein shall attach with reference to such land, namely:--
8. The record shows that an Award No,10 of 1989 was announced by the Land Acquisition Collector Lahore on 19-12-1989; under section 12 of the Works of Defence Act, 1903 while announcing the award, following order was 'made:- "8. The land revenue including all kinds of taxes will be paid by the landowners/interested persons irrespective of the fact that the Military Department has imposed restrictions on the land in question as the ownership rights vest with the land owners/interested persons.
"CERTAIN LAND AROUND THE AMMUNITION DEPOT NIAZBEG, LAHORE ON WHICH THE RESTRICTIONS UNDER 'THE WORKS OF DEFENCE ACT, 1903 HAVE BEEN IMPOSED IS HEREBY TAKEN FOR A PUBLIC PURPOSE, FOR DEFENCE PURPOSE, FOR THE MILITARY DEPARTMENT i,e, MILITARY ESTATES OFFICER, LAHORE CIRCLE, LAHORE CANTT. IN LAHORE DISTRICT AND SHALL STAND TRANSFERRED UNDER THE SAID ACT, TO THE MILITARY DEPARTMENT FREE FROM ALL ENCUMBERANCES."
9. The argument of learned Deputy Attorney-General for Pakistan is that in award the word certain has been mentioned which denotes that land under the said award is not specified and as such it could not be said that suit-land is the part of words "certain land". The argument of learned Deputy Attorney-General is not tenable for the following reasons that under section 3 of the Act of 1903 ibid the Collector has to declare the intention of Federal Government to the interested parties for "the use and enjoyment of land in the vicinity of any work of defence" or the use of land or the acquisition of land for work of defence, for keeping the land free from buildings and other obstructions. After the declaration under section 3, under section 7 of the Act of 1903, the Collector can impose restrictions. For clarification section 7 is reproduced as under:-- Provided that, with the written approval of the Commanding Officer and on such conditions as he may prescribe, [a building or other construction on the surface may be maintained and] open railings and dry brush-wood fences may be exempted from this prohibition."
10. After completing the process of sections 3 and 7 under section 12 the Collector after holding enquiry have to announce the award.
' Award 10 of 1989 was announced on 19-12-1989 under section 12 of the Act of 1903 as under:-- "5. After considering all the relevant factors of the case, 1 reject the contention of the Military Estates Officer, Lahore circle, Lahore Cantt. As well as the arguments advanced by the landowners/interested persons and the contention of the Consolidation Officer, Lahore city as he quoted no rule, law, instructions, etc. On the point in support of his contentions. Keeping in view the relevant sections 23 and 24 of the Works of Defence Act, 1903, the Settlement Manual paragraph 461(9) of Appendix XV, 1 see no reason to award the annual rent compensation at the more rate than that of 4% of the market price of land in question. 1, therefore, award the annual rent compensation at the rate of 4% of the market price of land on which the restrictions have been imposed by the Military Department around Ammunition Depot, Niazbeg, Lahore, prevailing on the site on 16-10-1979, and on the same date falling on the following years, on the year wise market price of the said land to be. Worked out by the field staff, to onward till the removal of the restrictions by the Military Department.
6. The annual rent compensation at the rate of 4% of the price of land mentioned above will be apportioned according to the said rate of 4% of the price of land in question to the effected landowners/interested persons out of the deposited amount with this office and out of the amount still to be deposited by the Military Department in regard of the remaining land owners/interested persons who have come forward and who will he coining forward for the said object in future, after the receipt of afresh "Qabzal Wasool" and "Statement of Award-11" from the field staff as the previous, ones have become useless, to be prepared at the rate of 4% as mentioned above."
11. The Award shows that Collector has finally announced the award for payment of annual rent compensation to owners of land, the said award is still in force and is admitted document between the parties, a specific note commencing from "CERTAIN and ended with all encumbrances" shows that it is applicable for those landowners whose possession was to be taken by the respondent without acquiring the ownership of land, whereas the first portion pertains to those landowners who will remain in possession of their land subject to conditions imposed. Hence it is clear that all land falling with the radius of 1143 meters from parapet of Ammunitions Depot will be deemed to be within the domain of award.
12. Now the question arose, what is the impact of restrictions imposed by the respondents under the award.
13. The Works of Defence Act, 1903 authorized the respondents to impose conditions/restrictions for defence purpose. The preamble of Act 1903 ibid shows that:-- "An Act to provide for imposing 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.
WHEREAS it is expedient to provide for imposing 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; "
14. The definition of "WORKS" or "WORK OF DEFENCE" under the said Act is under section 2 (j) which is read as under:-- "the expression "work" or "work of defence" means any defence establishment and include a naval dockyard, an airfield, a runway, an emergency landing ground or any area declared by the Federal Government to be a "work" or "work of defence"
15. Under section 3 of the said Act, Federal Government is empowered to issue declaration for imposition of restrictions. Section 5 of the Act provides the payment of damages- with reference to declaration under section 3 of the Act.
16. The preamble of said Act specifically shows that restrictions can be imposed for the works of defence but said restrictions are subject to payment of G compensation. The words used in the preamble are, for imposing 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.
17 Section 2(j) of the Act ibid provides the definition of works of defence. The works of defence as per definition of section 2(j) are for the purpose of defence or any defence establishment. The defence of the Country is prime in all respects and Federal Government enjoyed the powers under the Act ibid to impose conditions against the property owned by any citizen of Pakistan but said imposition is against payment of compensation as per Act of 1903.
18. The impact of imposition of conditions as referred in Award No,10 of 1989 dated 19-12-1989 is that condition so imposed practically debarred the petitioner to utilize his land for his residential purpose or otherwise, it is a proven fact that suit-land is situated in the urban area and is in small pieces of land which could not be used for agricultural purpose.
19. No doubt the ownership of land after imposition of said conditions is with the petitioner but the said ownership became encumbered until and unless the restrictions are not removed or withdrawn.
20. The imposition of restrictions is within jurisdiction of Federal Government and is in the prime interest of State and as such it could not be termed in violation of fundamental rights of petitioner or any other citizen of Pakistan but Federal Government/Military Establishment are bound to pay compensation to petitioner till that time the restrictions are not withdrawn or removed under the Act of 1903 ibid.
21. The argument of learned D.A.-G. That respondents have not taken over the possession of land and as such they are not liable to pay compensation, has no force. The words used in section 3 of the Act ibid are the imposition of restrictions or acquisition of ownership of land, the effect of imposition of restrictions is that petitioner is unable to use the land for his own benefit, he is bound to keep it open for the purpose of defence works till that time respondents withdrew the restrictions Under the law, respondents are within their rights to continue with the restrictions for a period determined by them. It is an admitted fact that respondents are maintaining their Ammunition Depot adjacent to the petitioner's property and they have rightly imposed the restrictions for maintaining the Ammunition Depot. It is not denied by learned D.A.-G. That up to the radius of 1143 meters from the parapet wall of works of Ammunition Depot, the restrictions are not applicable and award under section 12 of the Act ibid has been withdrawn. No doubt, as per report of local commission, the petitioner's property is situated out of boundary walls of the Ammunition Depot but it falls within the radius of 1143 meters and as such petitioner is entitled for compensation. The Award No,10 of 1989 shows that when it was announced, the compensation for the land was fixed and respondents have deposited the said compensation with LAC.- Letter dated 10-3-1995 by the Military Estate Officer, Lahore Circle Lahore Cantt. Authorized the Assistant Commissioner Land Acquisition Collector for payment of compensation to land owners around Ammunition Repot. The respondents have not denied the petitioner's assertion that respondents continue to pay compensation to petitioner up to 30-6-1994 and after that they have refused to pay on the pretext that land has not been acquired, the ownership is with the petitioner and as such petitioner is not entitled for payment of compensation, thus act of respondents shows that award has been implemented and will remain in force unless withdraw or cancelled.
22. As discussed above, under the Works of Defence Act, 1903 the respondents have not acquired land but they imposed restrictions against the suit land which falls in the restricted area of 1143 meters, the suit land falls in the area of 1143 meters from the parapet wall of Ammunition Depot and as such petitioners are entitled for payment of compensation.
23. In view of above, the act of respondents for not paying the compensation after 30-6-1994 to petitioners is declared without lawful authority. The respondents are bound to pay compensation as already fixed until the restrictions remain in field.
24. With these observations, both the petitions (Writ Petition No,3327 of 2003 and Writ Petition No,8433 of 2005) are allowed.