' Through the instant Constitutional writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 legality and propriety of notice No,415/Enc-1/x/Q-6, dated 10-12-1998 has been challenged whereby the respondents have initiated proceedings against the present petitioners regarding removal of alleged illegal construction near P.O.L. Depot, Sehala.
2. Briefly stated the facts are that petitioners and others are owners of land described fully in para. One of the writ petition. They allege that they have raised construction of 21 shops, mosque and well in an area of 5 Kanals in Khasra No,2737 for the last more than 10 years, that similarly petitioner No,2 has built 18 shops, a well and residential portions in Khasra Nos.2733, 2796/2797 for the last more than nine years and different businesses are going on the said shops, that a hotel is, also being run in the property of petitioners Nos.2 to 5, that all of a sudden a notice, dated 10-12-1998, was sent by respondent No,1 purportedly issued under S.R.O. No,418(1)/95, dated 29-5-1995 of the Ministry of Defence directing the petitioners to remove the construction within 7 days as the same has been raised within 200 yards from the outer parameter fence of P.O.L. Depot, Sehala, that on 20-12-1998, a big contingent of Army and Police personnel came at the site and demolished 10 and 5 shops of petitioner No,1, petitioners Nos.2 to 5 respectively and caused damage to 2 shops of the petitioners, that none of the constructions were raised after the issuance of alleged S.R.O.
No,418(11/95, so the action of respondents is illegal, mala fide and without jurisdiction. It was thus prayed that Notice No, 415/Enc.1/x/Q-6, - dated 10-12-1998, be struck down by declaring the same as illegal and without lawful authority. The petitioners prayed that respondents be directed to restore the property or they be allowed to reconstruct the same at the costs of respondents. They further prayed that registration of criminal case be ordered against the respondents for damaging their property.
3. The respondents have controverted the contention of the petitioners in their comments filed on 9-1-1999 and 29-4-1999 and asserted that they have taken the action in accordance with law on the basis of S.R.O. No,418(1)/95, dated 29-5-1995 issued by the Ministry of Defence. They asserted that petitioners have raised the construction within 200 yards from the outer parameter fence of POL Depot, Sehala, so they were justified in demolishing the said construction as the petitioners had not acted upon notice served upon them.
4. Arguments have been heard and record perused.
5. The only point which requires determination in the instant writ petition is if the action of respondents on the basis of notice, dated 10-12-1998 is clothed with legality.
6. The stand of petitioners is that the construction on the shop had been raised much prior to issuance of said S.R.O. No,418(1)/95, dated, 29-5-1995 so the same could not be demolished on the basis of that S.R.O. They further contend that S.R.O. No,418(1)/95, dated 29-5-1995 was prospective and as such it could be pressed into service in respect of construction to be raised thereafter and it could not be made applicable to the constructions raised prior to its enforcement. To prove their stand that construction had been raised prior to issuance of S.R.O. Referred above, they have referred to Jamabandi 1989-90 wherein Khasra No,2737 measuring 5 Kanals has been shown as Maira. Similarly out of Khasra Nos.2733, 2796/2797, Khasra Nos.5600/2448/2733 measuring 11 Marlas have been shown as Maira and Khasra Nos.2796/2797 measuring 11 Marlas have been shown as Ghairmumkin Makan. To supplement their stand they have also brought on record Khasra Gardawari from Kharif 1989 to Rabi 1998 where'. Khasra No,2737 measuring 5 Kanals has bail shown to be Ghairmumkin mosque and Ghairmumkin Chah, Aab Noshi. This position continues from Rabi 1992 up to date. Same is the case in respect of other Khasra numbers referred above. They have also brought on record photo stat of electricity bills pertaining to different shops constructed on the land referred above.
6-A. In rebuttal the stand of respondents is that action vide notice, dated 10-12-1998 has been initiated on the basis of S.R.O. No,418(1)/95, dated 29-5-1995. Their further stand is that they could take such action even on the basis of letter, dated 30-4-199(sic).
7. Now let us analyse the contentions of the parties and see, if action of respondents stands protected by S.R.O. No,418(1)/95, dated 29-5-1995.
8. A perusal of S.R.O. No,418(1)/95, dated 29-5-1995 reveals that the same has been issued in exercise of the powers conferred by section 3 read with section 7 of the Works of Defence Act 1903 (VII of 1903) which read as follows:-- 'S.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 buildings and other obstructions, a shall be made to that under the signature of a Secretary to such Government or of some officer duly authorised 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 place 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. S.
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:--
(a) Within an outer boundary which, except so far as is otherwise provided in section 39, subsection (4), may extend to a distance of two thousand yards from the crest of the outer parapet of the work,-- (i) no variation shall be made in the ground-level, and no building, wall, bank or other construction above the ground shall be maintained, erected, added to or altered otherwise than with the written approval of the General Officer Commanding the Division, and on such conditions as he may prescribe;
(ii) no wood, earth, stone, brick, gravel, sand or other material shall be stacked, stored or otherwise accumulated: ' Provided that, with the written approval of the General Officer Commanding the Division and on such conditions as he may prescribe, road-ballast, manure and agricultural produce may be exempted from the prohibition: Provided also that any person having control of the land as owner, lessee or occupier shall be bound forthwith to remove such road-ballast, manure or agricultural produce, without compensation, on the requisition of the Commanding Officer;
(iii) no surveying operation shall be conducted otherwise than by or under the personal supervision of a public servant duly authorised in this behalf, in the case of land under the control of Military Authority, by the Commanding Officer and, in other case, by the Collector with the concurrence of the Commanding Officer; and
(iv) where any building, wall, bank or other construction above the ground has been permitted under clause (i) of this subsection to be maintained, erected, added to or altered, repairs shall not without the written approval of the General Officer Commanding the Division, be made with materials different in kind from those employed in the original building, wall, bank or other construction.
(b) Within a second boundary which may extend to a distance of one thousand yards from the crest of the outer parapet of, the work, the restriction enumerated in clause (a) shall apply with the following additional limitations, namely`--
(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 conditions as he may prescribe, and no 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; and
(ii) live hedges, rows or clumps of trees or orchards shall not be maintained, planted, added to or altered otherwise than with the written approval of the General Officer Commanding the Division and on such conditions as he may prescribe.
(c) Within a third boundary which may extend to a distance of five hundred yards from the crest of the outer parapet of the work, the restrictions enumerated in clauses (a) and (b) shall apply with the following additional limitation, namely-- ' no building or other construction on the surface and no excavation building or other construction below the surface, shall be maintained or erected: ' Provided that, with the written approval of the Commanding Officer and on such condition on the surface may be maintained and open railing and dry brush-wood fences may be exempted from this prohibition.
A perusal of this section 3 reveals that it authorises the Federal Government to impose restriction upon the use and enjoyment of land in the vicinity of any work of defence or intended to be used or acquired for any such work. It does not authorise the Federal Government to demolish such land.
Similarly section 7 (ibid) deals with a number of restrictions which can be imposed upon the use of land which are situated within certain parameter of the defence installations. Now the impugned Notice No .415 . /Enc-1/x/Q-6, dated 10-12-1998 has been issued in exercise of powers conferred upon by section 9 of Works of Defence Act, 1903 (VII of 1903) which reads as follows:-- ' S.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 Federal Government may, by notification in the official Gazette, direct in this behalf, the Collector shall cause public 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 restriction 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 objection (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 authorised 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.
' It is evident from a bare reading of section 9 (ibid) that it revolves around the powers of the Collector and it does not authorise the respondent to take any such action. Had the said notice been issued in exercise of powers conferred by section 9 read with section 7 then it could be said that respondents have the power to take such action. Even otherwise the language of S.R.O.
No,418(1)/95, dated 29-5-1995 evinces that it is prospective in nature and it has no retrospective effect. It is thus clear that action on the basis of impugned notice could be taken in respect of buildings which have been raised after the promulgation of said S.R.O. No,418(1)/95, dated 29-5- 1995. According to the Jamabandis 1989-90 as well as. Khasra Gardawari, it is established that construction on the spot had been raised much prior to 29-5-1995 when the S.R.O. No,418(1)/95 was issued.
9. Since the construction which is going to be demolished, has been raised prior to the issuance of S.R.O. No,418(1)/95, dated 29-5-1995, so the respondents could not take any action on the basis of that S.R.O., as it could not be made applicable retrospectively. Accordingly writ petition is accepted and the notice, dated 10-12-1998 is declared illegal, void and ineffective upon the rights of the petitioners.