' MUHAMMAD YUNUS SURAKHVI, ACTG. C.J.--- This appeal by way of leave of the Court, has been directed against the impugned judgment passed by the High Court on 12-7-2001, whereby the writ petition filed by the respondent was accepted.
2. The necessary facts, giving rise to the present appeal, are that respondent herein purchased land measuring 3 Kanals, comprising survey No,51 (old), new Nos.643-min and 644-min, situate in Village Chatter Domel, from one Haji Shah for a consideration of Rs,15,00,000 through a sale-deed executed on 20-1-2000. The respondent wanted to construct a Petrol Pump on the site for which it is claimed that he obtained No Objection Certificates from the Highway Division of P.W.D. On 3-4- 2000, the Development Authority, Muzaffarabad on 5-4-2000, the Municipal Corporation, Muzaffarabad on 10-4-2000, the Custodian of Evacuee Property on 1-1-2000 and from the Military Estate Officer on 18-1-2000. When the respondent started the construction work on spot he was stopped by the Police Post Jalalabad under the direction of the Chief Secretary, appellant No,2. It is also alleged that a letter was written by the Home Department which is headed by the Chief Secretary to the Chairman Development Authority, Muzaffarabad directing that no construction shall be undertaken from Neelum Bridge to Board, of Trustees (BOT) Petrol Pump on 11-4-2000. And a copy of the same was endorsed to the District Magistrate, Muzaffarabad who issued a prohibitory order under section 144 of Cr.P.C. On 14-4-2000 to stop the respondent from carrying on the construction work. On a representation made by respondent, the Chief Secretary constituted a Committee to look into the matter and for submission of report which was duly submitted suggesting that the construction of Petrol Pump on the site would be a violation of master plan and as the construction involves earth cutting, it would result in the landsliding and would be dangerous for Upper Chatter Housing Scheme. Besides the, land in dispute being situated adjacent to the Bridge Headquarter and the proposed Bridge, the construction of Petrol Pump would be a security risk. When ultimately the respondent was not allowed ,to raise the construction, he filed a writ petition in the High Court seeking the quashment of orders, dated 11-4-2000 and 14-4-2000 the report of Committee constituted by the Chief Secretary, the order of the Home Secretary, dated 5- 6-2000 and the order of the District Magistrate, Muzaffarabad, dated 10-6-2000 and also sought a direction to respondents-officials (appellants herein) not to interfere in the lawful construction on the land in dispute.
3. The learned Chief Justice of the High Court vide his impugned judgment by accepting the writ petition filed by respondent issued a direction to the appellants herein restraining them from causing any obstacle in the construction to be raised by respondent in accordance with the map/plan subject to the supervision of the relevant authorities recalling the construction. It was suggested by the High Court that the appellants may acquire the land for public purpose if they so desire. However. If the construction work is again stopped after one month of the announcement of judgment, the Chief Secretary shall pay Rs, 1,000 as recurring loss to the respondent for each day of delay in raising, the construction. It is the aforesaid judgment of the High Court, dated 12-7-2001 which is the subject-matter of present appeal.
4. Raja Muhammad Hanif Khan, the learned counsel for the appellants, vehemently contended that none of the authorities granting No Objection Certificate to the respondent allowed him to construct a Petrol Pump on the site in question so it was factually incorrect that construction of Petrol Pump was allowed by the concerned authorities. The learned counsel contended that the M.D.A. Vide its No Objection Certificate "PC/1" issued the same for levelling the land and imposed certain conditions such as that it would be incumbent upon the respondent to keep with himself a photostat copy of the approved plan so that the same may be produced to any authority in case any encroachment is made. Similarly a condition was imposed that before starting the construction a permission had to be sought from the Estate Officer Town Planning for the proper measurement of the land. Another condition was imposed that if the construction is carried on against the proposed site plan then the Authority will be competent to impose fine upon the respondent and he will have to raise the construction in accordance with the amended plan. The learned counsel contended that neither the M.D.A. Nor the Municipal Corporation issued a plan in favour of respondent. It was also emphasized that the Municipal Corporation, Muzaffarabad granted sanction in favour of respondent for levelling the land and for construction of boundary wall subject to certain conditions. Out of them Condition No,7 was that for levelling the plot and before starting the construction work it would be necessary for the respondent to get the plan approved. In the No Objection Certificate alleged to have been issued by the Highway Division it was categorically mentioned that the respondent could not be granted the permission of constructing Petrol Pump and it was made clear to the respondent that from the center of road 40 feet space is to be left open before starting the construction. The Committee constituted by the Chief Secretary also reported in terms that on survey of land in dispute the same is not found fit for construction of a Petrol Pump in accordance with the Highway Act. In case of cutting of land, there is a lot of possibility of sliding of land which may cause damage to the public at large. Finally it was opined that the construction of Petrol Pump on the site is impossible in the prevailing situation. It was further observed that the disputed land in the master plan has been shown as open space, therefore, the construction on the same shall be a deviation from the master plan. It was also reported by the Committee that by earth cutting, the Upper Chatter Housing Scheme is likely to be adversely affected. The learned counsel also contended that in the averments made in the writ petition it was never alleged by the respondent that he wanted to construct a Petrol Pump. It was simply alleged by the respondent that he wants to dig the land and raise certain construction-but the nature of construction was not disclosed. Similarly in the relief para of the writ petition there is no prayer for allowing the respondent to construct a Petrol Pump. The learned counsel submitted with vehemence that no plan or map was ever approved by the concerned Authorities nor the same was submitted to the relevant Authorities for its approval. Therefore, the impugned judgment passed by the High Court is outside the scope of pleadings of the parties and is a nullity in the eye of law. The learned counsel strenuously argued that the construction of Petrol Pump is regulated by a different law and the respondent has not obtained any approval for construction of Petrol Pump from the competent Authority which is vested with the powers to approve the establishment of Petrol Pump. The learned counsel contended that the West Pakistan Highway Act, 1948 has been adapted in Azad Kashmir in 1950. In exercise of the powers under the provisions of aforesaid law the Government has defined the Highway Authorities vide notifications, dated 25-4-1968 and 20-1- 1965 and the Government had imposed a ban on construction of buildings on either side within 40 feet from the middle of the main highways within municipal limits. The West Pakistan Highway Ordinance, 1959 was adapted through an Ordinance on 15-121982 in Azad Jammu and Kashmir.
Sections 6 and 8 of the West Pakistan Highway Ordinance were substituted by new sections.
Therefore, in exercise of powers under the said Ordinance, the Government notification, dated 8-7- 1984 was amended vide notification dated 21-12-1998 imposing ban upon raising construction of any nature within the municipal limits up to 40 feet on either side from the middle of the highway.
Therefore, the permissions even if granted by the Executive Engineer, Development Authority and Municipal Corporation, referred to above, were violative of aforesaid provision of law. The learned counsel also contended that even otherwise the construction within the municipal limits of Muzaffarabad was being regulated through an Ordinance called Imposition of Restriction Ordinance, 1980. In accordance with the provisions of aforesaid law, notifications, dated 2-4-1980, 2-8-1980 and 23-8-1980 were promulgated. The learned Judge in the High Court has not taken into consideration the provisions of aforesaid law. Furthermore, the Development Authority in exercise of powers under section 11 is authorized to pass orders for any area for which master plan is being contemplated or is under preparation and restrict or prohibit by general or special order any change in the use of land. Keeping in view the nature of the land, the Chief Secretary who is empowered under rule 7(c) and (d) of the Rules of Business, 1985, had to take steps into the matters affecting the public tranquillity; therefore, directed the Highway Authorities and all concerned to take immediate steps into the matter. Thus it is incorrect to say that the Chief Secretary has acted illegally. The learned counsel further maintained that if the respondent is allowed to continue earth cutting in the land in dispute which is steeper than 60 degree in slope then the main highway leading between Muzaffarabad City and Chatter Secretariat was to be closed due to earth cutting and removing the brust-wall which was raised by the P.W.D. For the protection of the highway from the erosion of the land towards the highway. The aforesaid act of the respondent naturally affects the public tranquillity, therefore, the Chief Secretary was empowered to take immediate steps. The learned Judge in the High Court, according to the learned counsel for the appellants, relied upon Fundamental Rights Nos.8 and 14 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The appellants have no cavil with the aforesaid Rights; however, the fact remains that the aforesaid Fundamental Rights provide that the freedom of trade, business or profession and the protection of property is allowed save in accordance with law. The learned counsel also pressed into service the submission that the learned Judge in the High Court allowed the respondent to raise construction in accordance with the map/plan subject to supervision of relevant authorities. Since the respondent never obtained the approval from the appellants with respect to the map/plan of the proposed project, the construction work, therefore, could not have been carried on in vacuum. The learned counsel contended that the High Court was wrong to observe that the Chief Secretary shall pay Rs,1,000 for the delay of each day in raising construction to the respondent. The aforesaid order could not have been passed keeping in view the pleadings of the respondent and the relief claimed by him. Furthermore, the directives for acquisition of land are also uncalled for. The learned counsel submitted that the Chief Secretary in good faith acted in order to achieve the object of public tranquillity, therefore, he could not be ordered to pay Rs,1,000 for delay of each day to the respondent in any manner.
5. Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondent, by controverting the arguments raised by the learned counsel for the appellant, submitted that the answering respondent is the owner of disputed land as he had purchased the same from its original owner on the basis of a sale-deed executed in his favour on 20-1-2000. The respondent being lawful owner of property in question cannot be deprived of the same, hence no illegality in the impugned judgment of the High Court has been committed. The learned counsel contended that all the departments of Government including appellants Nos.5 to 8 conceded that the respondent cannot be deprived of the landed property and the Public. Works Department and the Chairman, Development Authority also issued No Objection Certificates in favour of respondent for the construction on the suit land, hence the respondent was justified to carry on the construction who was restrained unlawfully under the pressure of the Chief Secretary. The orders of the Chief.
Secretary restraining the respondent from construction on his own land were coram no judice and void ab initio, as such rightly set aside by the High Court as being contrary to the provisions of Azad Jammu and Kashmir Interim Constitution Act. The learned counsel contended that the District Magistrate, the Public Works Department and the Development Authority, Muzaffarabad allowed the respondent to carry on the construction who could not later on turn round as they were estopped to do so. The respondent started construction by leaving 40 feet place from the center of main road, as such the appellant cannot deprive him of the lawful construction,
6. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the High Court probably proceeded on the assumption that the respondent has secured No Objection Certificate for construction of Petrol Pump on the site in question whereas, as pointed out by the learned counsel for the appellants, the same appears to be factually incorrect and none of the Authorities granting No Objection Certificate to respondent allowed him to construct a Petrol Pump on the site in question. The Development Authority, Muzaffarabad vide its No Objection Certificate Annexure "PC/I" issued the same for levelling the land and imposed certain conditions such as that it would be incumbent upon the respondent to keep with himself a photostat copy of approved plan so that the same may be produced before any authority in case any encroachment is made. Similarly a condition was also imposed that before starting the construction, permission had to be sought from the Estate Officer, Town Planning for proper measurement of land. Another condition was also imposed that if the construction is carried on against the proposed site plan, then the authority will be competent to impose fine upon the respondent and he will have to raise construction in accordance with the approved plan. Even the Municipal Corporation issued no such plan in favour of respondent as claimed by him. The Municipal Corporation, Muzaffarabad granted sanction in favour of respondent for levelling the land and for construction of boundary wall subject to certain conditions. In Condition No,7 it was unequivocally stated that for levelling the plot and before starting the construction work it would be necessary for respondent to get the plan approved. The Highway Division made it clear to respondent that he could not be granted permission of constructing a Petrol Pump. Similarly the Committee constituted by the Chief Secretary also reported that the land in dispute was not fit for construction of Petrol Pump as in accordance with the Highway Act in case of cutting of land there is a lot of possibility of sliding which may damage the public at large and the construction would be a deviation from the master plan. It was also reported by the Committee that by earth cutting the Upper Chatter Housing Scheme is likely to be adversely affected.
7. We have also noticed that in the writ petition filed by the respondent he never averred that he wanted to construct a Petrol Pump on the land in question. However, during the arguments it was submitted by the learned counsel for the respondent that he wanted to construct a Petrol Pump on the site. In the pleadings it was simply alleged by the respondent that he wanted to dig the land and raise certain construction but the nature of construction was not disclosed. Similarly in the relief para. Of writ petition there is no prayer for allowing the respondent to construct a Petrol Pump.
From the record it also transpires that no plan or map was ever approved by the concerned authorities nor the same was submitted to the relevant authorities for its approval. Therefore, the impugned judgment passed by the High Court besides being outside the scope of pleadings of the parties is a result of non-reading, misreading and non-application of judicial mind and the same cannot be construed to be a judgment in the eye of law.
8. The contention raised by the learned counsel for the appellants that the West Pakistan Highways Act, 1948 has been adapted in Azad Jammu and Kashmir in 1950 and in exercise of powers under the provisions of the aforesaid law, the Government has defined the Highway Authorities vide notifications dated 25-4-1968 and 20-1-1965 and the Government had imposed a ban on construction of buildings on either side within 40 feet from the middle of the highways within Municipal limits. The West Pakistan Highway Ordinance, 1959 was adapted through an Ordinance in Azad Jammu and Kashmir on 15-12-1982. The Government vide its notification, dated 21-12-1998 amended the notification dated 8-7-1998 and imposed ban upon raising construction of any nature within the Municipal limits up to 40 feet on either side from the middle of the Highway seems to be correct. The Development Authority in exercise of powers under section 11 is authorized to pass orders for any area for which master plan is being contemplated or is under preparation and restrict or prohibit by general or special order any change in the use of land. Under rule 7(c) and (d) of the Rules of Business, 1985, the Chief Secretary had to take steps in the matters affecting the public tranquillity; therefore, he directed the Highway Authorities and all concerned to take immediate steps in the matter. Thus it is incorrect to say that the Chief Secretary has acted illegally.
9. The learned Judge in the High Court relied upon Fundamental Rights Nos.8 and 14 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. We have no cavil with the aforesaid Fundamental Rights, however, the fact remains that the aforesaid. Fundamental Rights provide that the freedom of trade. Business or profession and the protection of property is allowed save in accordance with law. It may also be pointed out that the High Court allowed the respondent to raise construction in accordance with the map/plan subject to supervision of relevant authorities.
Since the respondent never obtained the approval from the relevant authorities with respect to the map/plan of the proposed project, the construction work, therefore, could not have been carried on in vacuum.
10. Another objection raised by the learned counsel for the appellants is that in view of nature of controversy, the Azad Government of the State of Jammu and, Kashmir was a necessary party in the instant case. The respondent without impleading the Government as party to the writ petition has obtained a relief which is ineffective and unexecutable. Due to non-impleadment of Government on the one hand the writ petition was incompetent and on the other the Government is not bound by the aforesaid judgment, dated 12-7-2001.
The High Court vide its judgment even did not set aside the impugned orders challenged by the respondent before it. At the time of admission of petition for leave to appeal we also felt advised to appoint a Commission headed by Syed Nazir Hussain Shah Kazmi, a Senior Advocate of Supreme Court, alongwith a technical expert Syed Zahir Hussain Gardezi, Additional Project Director and Superintending Engineer Local Government and Rural Development Authority, directing them to visit the spot and submit their report to this Court before the next date of hearing with a direction that they should report: (i) as to whether by digging the land in question the Upper Chatter Housing Scheme is likely to be adversely affected or not; and (ii) whether by digging the same due to nature of land, the brust-wall is likely to be adversely affected which may result into erosion. The Commission vide its report, dated 18-9-2001 has reported in terms that according to Highway Laws, the construction within 40 feet of road is prohibited. It was suggested by the Commission that if the proposed construction is to be made 20 feet away from the brunt-wall even then the sliding of upper land is most probable and some area of the Housing Scheme shall be adversely affected. It was also suggested by the Commission that if the construction is to be made on the site in dispute that could only be done by removing the brust-wall in which case the danger of landsliding is definitely going to occur.
12. The report of the Commission, appointed by the Court, exactly tallies with the report of Committee headed by the Chief Secretary. In this view of the matter, in our view the construction started by the respondent without the approval of the site plan, according to his whims and wishes, is likely to damage the Upper Chatter Housing Scheme and there is a great possibility of land sliding which may adversely affect the public interest at large. If at all the respondent wants to raise construction or wants to dig his land, he should seek permission by getting No Objection Certificates from the relevant authorities and the approved plan by the relevant authorities who may issue the same if the situation of the land in dispute so demands. Therefore, by setting aside the impugned judgment of the High Court, we accept the appeal filed by the appellants.
Consequently, we order the dismissal of writ petition filed by the G respondent. In the circumstances of the case we pass no order as to costs.