' RAJA SAEED AKRAM KHAN, J.---This appeal, by leave of the Court, has been filed to assail the order passed by the High Court on 23-6-2011, whereby the writ petition filed by the appellant, herein, was dismissed.
2. The precise facts giving rise to this appeal are that respondent No.2 obtained the possession of the land belong to the appellants comprising Survey Nos. 328, 392, 321, 330, 339/300 and 134, measuring 81/2 kanals, situate in village Maldehi, for the construction of Hotreri Road, however, no compensation was paid to the appellants. The appellants filed a writ petition before the High Court seeking a direction against the respondents for payment of the compensation of the land. The writ petition was dismissed by the High Court vide order dated 23-6-2011 which has been assailed through the instant appeal.
3. Sardar Pervaiz Akhtar, Advocate, the learned counsel for the appellants, has argued that the order of the High Court is against law and facts of the case. The High Court has committed gross illegality while dismissing the writ petition without Omission on the ground of laches. He contended that the High Court failed to adhere to the law on the subject. The principle of laches does not apply as in the case in hand the enforcement of fundamental rights is involved. He further submitted that the High Court failed to take into consideration that the valuable land of the appellants was acquired for the construction of the road for which the compensation was also determined and awarded. The learned counsel for the appellants submitted that the payment of compensation is the fundamental right of the appellants guaranteed by the Azad Jammu and Kashmir Interim Constitution Act, 1974. The appellants have been pursuing their case from the pillar to post but failed to, get their redressal. Ultimately, they moved the writ petition before the High Court but the same was dismissed on technical ground instead of deciding the same on merits.
4. On the other hand, Syed Shahid Bahar, Advocate, the learned counsel for the respondent, has strongly refuted the arguments advanced by the learned counsel for the appellants while arguing that the order of the High Court is perfect and no interference is called for by this Court. He argued that the appellants remained mum for a considerable time, therefore, the High Court has rightly dismissed the writ petition on the ground of laches. He urged that the road was constructed in the year 1992 while the appellants filed the writ petition in the year, 2005, i.e., after the lapse of 13 years.
He lastly argued that it is settled principle of law that the litigants should be vigilant to get their rights whereas in the case in hand the appellants remained silent for a considerable time, therefore, the law always helps the vigilant and not the indolent.
5. Ch. Muhammad Manzoor, who also appeared on behalf of the respondents, opted to support the arguments advanced by Syed Shahid Bahar, Advocate.
6. We have considered the arguments of the learned counsel for the parties and also .Perused the record. The land was taken into possession by the respondents for the construction of road in 1992.
It is also apparent from the record that the appellants remained in touch with the concerned authorities for getting the amount of compensation but the matter was lingered on by the respondents on one pretext or the other. Ultimately, disappointed from the attitude of the respondents, the appellants were constrained to file the writ petition for the enforcement of their fundamental right. The right of property has been protected by section 4(4), under Fundamental Rights Nos. 13 and .14 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 which is the supreme law of the land.
' Fundamental Rights No. 13 and 14 of section 4(4) of the Interim Constitution Act are reproduced as under:- "13. Provision as to property. .--- Subject to any reasonable restrictions imposed by law in the public interest, every State Subject shall have the right to acquire, hold and dispose of property.
14. Protection of property. .---(1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation thereof and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given.
(3) Nothing in this paragraph shall affect the validity of---
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public 'health: or
(b) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be evacuee properly under any law: Or
(c) any law permitting the taking over of any property which has been acquired .By, or come into the possession of, any person by any unfair means, or in any manner, contrary to law: or
(d) any law providing for the taking over of the management of any property by the Government for a limited period, either in the public interest or in order to secure the proper management of property, or for the benefit of its owner: or
(e) any law providing for the acquisition of any class of property for the purpose of: ' providing education and medical aid to all or any specified class of State Subjects: or
(ii) providing housing and public facilities and service such as roads, water supply, sewerage, gas and electric power to all or any specified class of State Subjects: or
(iii) providing maintenance to those who,,on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves: or any law in force immediately before the coining into force of this Act.
Explanation.---In sub-paragraph (2) and (31, 'property' shall mean immovable property, or any commercial or industrial-undertaking or any interest in any undertaking."
7. A perusal of the above said provisions of the Interim Constitution Act B reveals that the fuatlamental rights of all the citizens of the State have been fully protected and nobody can be deprived of his property save by the authority of law . And a law made will be invalid if it infringes the above said Constitutional provisions. It is also guaranteed under the above said provisions that no property shall be compulsorily acquired or taken possession of except by the authority of law.
The above referred Constitutional provisions provide that no property of a citizen shall be acquired without payment of compensation.
8. The Constitution vests in all the citizens fundamental right to hold, own and acquire the property.
The property of the citizens cannot be taken away otherwise than in accordance with law and nobody can be deprived of his fundamental right, save in accordance with law. This Court in a landmark case reported as Azad Government of the State of Jammu and Kashmir and another v.
Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139) held as under:-- "34. The whole scheme of section 4 of the Constitution Act is to provide protection for the freedoms and rights mentioned therein against arbitrary measure by the State or its police action. It would ' be a startling irony if the fundamental rights of property were, in effect, to be turned by construction into an arbitrary power .Of the State to deprive a person of his property without compensation in all ways, other than acquisition or taking possession of such property. If the Legislature is to have such arbitrary power, why should compensation and public purpose be insisted upon in connection with what are termed two particular forms of deprivation? What could be the rational principle underlying this differentiation? Compensation is paid to indemnify the owner for the loss of his property. It could make no difference to him whether such deprivation was authorised under sub-para, (1) or sub-para (2). In 'either case his property would be gone and he would suffer loss."
' In another case titled Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others (PLD 1994 SC (AJ&K) 13) it has been held by this Court as under:-- ' According to Fundamental Right No.13 of the Interim Constitution Act, a State subject has right to acquire, hold and-dispose of the property; the word 'hold' implies that he cannot be deprived of the possession of his property without lawful means; similarly, according to Fundamental Right No. 14 a citizen has not only right to receive compensation but it also forbids to acquire or take over the possession of the property without first satisfying the conditions envisaged in the aforesaid provision. It follows from this that the possession of the land in question by the Government and the University is also violative of Constitutional provisions apart from being otherwise unlawful."
' In a case titled Azad Govt. And 2 others v. Muhammad Arif Khan and 2 others 2004 YLR 1787 it was observed as under:-- "....In the same way the appellants have not proved from any document that compensation has been paid to them under section 4 subsection (4) Fundamental Rights Nos. 13 & 14 of the Interim Constitution Act, 1974, in which it has been clearly laid down that no State Subject shall be deprived of his/her property without paying him/her compensation. If the respondents remained silent for sometime that shall not be a sufficient ground to deprive them of the compensation of their property. Under law only through acquisition proceedings the ownership rights of the respondents could be acquired by the Government."
' Similarly from Pakistan jurisdiction in a case titled Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408) has been held as under:-- "....Furthermore, it is well-recognized that no person can be deprived of his fundamental right to hold and acquire property save in accordance with law......... "
9. The Constitutional rights enshrined in section 4(4) of the Interim Constitution Act, 1974 can only be enforced through Court of law. So was held in a case titled Clifton Centre Association (CCA)
Clifton, Karachi through General Secretary v. City District Government through Nazim-e-Aala, Municipal Building, Karachi and 3 others (PLD 2003 Karachi 477), in which it has been observed as under:- "As far as the objections of learned counsel for the defendants that plaintiff has no right which could be. Enforced. In my humble opinion section. 42 of the Specific Relief Act do give a right to institute a suit to any person who has (sic) any right as to any property. As discussed above, such right read with Right of Enjoyment of a property as postulated under section 54 of the Specific Relief Act do give such right to a Plaintiff who could establish that the right to view and exposure of his commercial establishment is of some beneficial interest to him. Right to life as has been expounded by the Hon'ble Supreme Court in Shela Zia's case reported in PLD 1994 SC 693 as approved in 'Costal Livina's case' in 1999 SCMR 2882 that Right to Life is not merely a vegetative living. Likewise, right to property or right to carry on business in a property are also recognized under the Constitution, 1973. Such right to property is not be interpreted in a narrow sense but must be given a broader perspective and meaning more particularly in present commercial environment where every bit of a commercial premises or establishment has its due importance and pecuniary benefit. Injunctive relief is also obtainable in case of invasion of civil right in the nature of Tort. A. Person seeking injunction must make out a case of actual or, of threatened violation of its right. Reliance of learned counsel (1) Cawashah Bomanj.i Parakh, v. Prafullah Nath (AIR 1941 Nagpur 364), (2) P.C.E. Paul v. W. Robson (AIR 1914 P.C. 45). (3) Ushaben v. Bhangyalazmi Chitra Mandir (AIR 1978 Gujrat 13), are of no avail. First two referred cases relates to nuisance and right to light under the Easement Act, last mentioned case relates to construction of building in residential area. Right of enjoyment of a property is independent right and if it is shown that the public functionaries acts in a manner as it may encroach upon a private right which may also be invasion of a public right than individual whose rights ' are encroached may bring an action against such,invasion
10. It is also the matter of record that after getting or acquiring the land, the payment of compensation to the owners of the land is the obligation of the authority which 'has taken/acquired the land and the Constitution gives the payment of compensation to the owners of the land a status of fundamental right. It is the duty of the authority to pay the compensation before taking the possession or soon thereafter within a reasonable time. As we have observed earlier that the enforcement of fundamental rights guaranteed by the Constitution is paramount duty of the Courts being the custodian of the Constitution, therefore, in our view the non-payment of compensation to the land owners is a continuous wrong and in such like cases the doctrine of laches does not apply. Therefore, we can safely hold that the finding of the High Court while dismissing the writ petition on the ground of laChes was not justified. The proper course for the High Court was to admit the writ/ petition for regular hearing and dilate upon the points involved in the case after examining the law and facts of the case on merits. This Court in a case titled Azad Govt. And 2 others v. Muhammad Arif Khan and 2 others 2004 YLR 1787 while dealing with the question of laches, has observed as under:-- ' Admittedly this road is under the control and management of P.W.D. The private vehicle owners are plying public transport over the same and Government is getting road tax from such vehicles. If the respondents have been deprived of the use of their property under an arbitrary and capricious manner it is a 'continuous wrong, the question of laches, therefore, is not attracted in this case."
' In another case titled Custodian of Evacuee Property AJ&K and another v. Fatima Bibi and 15 others (2003 SCR 88), it was observed by this Court as under:--- ' The principle of laches disentitles only those parties from relief in a Court of law who are found negligent in pursuing the remedy in time provided by law."
' In a case titled Messrs Dawood Yamaha Limited, Al-Shahab Building Jinnah Road, Quetta v.
Government of Baluchistan through Secretary Local Government, Quetta and 3 others PLD 1986 Quetta 148 it has been held as under:-- ' Furthermore in a case of continuing wrong, the petitioner may have a cause of action to maintain a petition even after the expiry of a few years at least for the recurring cause of action."
' It was further observed in the above referred case as under:-- " Furthermore, the petitioners have a recurring/continuing cause of action and, therefore the petitioner cannot be said to have suffered from laches in respect of the dues which are still outstanding and are being pressed, nor there would be any question of estoppel and acquiescence in respect thereof."
' Similarly in a case titled Arsala Khan v. Province of Sindh through Secretary, Government of Sindh, Karachi and 3 others (PLD 1976 Karachi 848) it has been held as under:-- " Apart from expressing any opinion on merits whether the action against the petitioner was justified or not, in a case of continuous wrong, the question of laches would hardly arise."
11. As we have observed above that the land of the appellants was taken for the construction of the road and no compensation has been paid to them up till now which is clear deviation from the Constitutional provisions and it is the duty of the Constitutional Court to come forward to enforce the fundamental rights enshrined in the Interim Constitution Act, 1974. Nobody can be refused his right merely on the ground that he approached the Court after a delay of considerable time. We are fortified in our view by a case titled Pakistan v. Sheikh Abdul Hamid (PLD 1961 SC 105) in which it has been held as under: --- "The point of delay in applying for a writ was also raised, but it is quite clear that Sheikh Abdul Hamid was not lacking in diligence in making representations throughout the period from 1949, when he suffered the injury, up to 1957, when he filed the petition in the High Court."
12. The record reveals that the appellants have continuously been pursuing for getting the compensation but when they felt that there is no other forum except to knock the door of the Court, they filed the writ petition for the enforcement of their fundamental right, therefore, we are of the considered view that this is a fit case in which fundamental right guaranteed by the Constitution should be enforced for which the appellants have rightly approached the High Court by filing the writ petition. The issue involved in the writ petition was required to be decided after admitting the writ petition for regular hearing. In these circumstances, the High Court was not justified to apply the doctrine of laches and dismiss the writ petition in limine without admitting the same, for regular hearing.
' In view of the above discussion, this appeal is accepted and while admitting the writ petition for regular hearing, the case is remanded to the High Court for decision afresh on merits preferably within a period of two months from the communication of the order of this Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.