SAJJAD HUSSAIN BHATTI Versus THE STATE
ORDER
1. C.M.A. 8276 of 1998 is an application seeking injunction against the defendants, their agents and officers from taking any adverse, coercive or other action so as to disturb the possession and interfere with the works of the plaintiff in respect of land bearing No.126, 160, 161, 162 and 163 in Deh Khanto, National Highway, District Malir, Karachi, admeasuring 10 acres.
2. Mr. Ch. M. Iqbal for the defendants Nos. 1, 2 and 5 has placed a statement on record stating that in pursuance of the judgment of the Supreme Court in Criminal Petitions Nos.436 and 437 of 1999 where lands were allotted in violation of the rules and policies, the Governor in meeting dated 10‑7‑2000 decided that a law be framed for cancellation of allotments, conversion and exchanges which were allowed by the Government at rates lower than the market value in violation of rules, policy and ban. It is stated in the said letter, dated 14‑12‑2000 attached to the statement that a draft ordinance, namely, the Sindh (Cancellation of Allotments, Conversions and Exchanges), Ordinance has been prepared by the department and has been sent to the Provincial Law Department for its opinion. Mr. Iqbal states that by a notification, dated 3‑1‑2001 such law has been promulgated which is stated to be retrospective and to come into force from 1‑1‑1985. He states under section 3 thereof the allotment, conversion or exchange of Urban State Land obtained or granted for residential, commercial or industrial purposes at rates lower than the market value in violation of law or ban from 1‑I‑1985 shall‑stand cancelled. In view of the above, Mr. Iqbal states that the lease agreement of 15‑2‑1992 for 4 acres and lease agreement of July, 1993 in respect of 6 Acres stood cancelled. He further states that in view of the said cancellation the suit shall abate.
3. Mr. Major Abdul Rauf Khan for the defendants Nos.3 and 4 namely the Commanding Officer of National Logistic Cell and National Logistic Cell states that they had occupied the said area initially in the year 1983 when Battalion 153 Engineering Battalion had come in that area and thereafter, when Battalion No. 101, Transport Battalion had occupied in the year 1985. I had pointed out to him that either he was in lawful possession or not, there was no concept of occupation. He says that the occupation in Pakistan by any part of the Pakistan Army, Navy and Air Force is a valid occupation. He says that N.L.C. is a part of the Pakistan Army, as the occupation even without any lawful authority, permission, lease or document could not be considered illegal. He has referred to the Works of Defence Act, 1903, that for the purposes of defence, that after occupation and possession an automatic restriction is placed on the area in possession of an army unit. He has referred to section 7 of the said Act which imposes restrictions which the Central Government may in its discretion declare for the sake of interpretation, it is necessary to reproduce the said provision:‑‑
4. "7. From and after the publication of the notice mentioned in section 3, subsection (2), such of the following restrictions as the Central 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:
5. 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:
6. 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 cases, 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:
7. 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 or easily destroyed or removed, may be maintained, erected, added to or altered:
8. Provided, also, Thai 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 out 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: .
9. 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. I had pointed out to Mr. Maj. Abdul Rauf Khan that section 7 commences with the words "From and after the publication of the notice, "forced, in section 3, subsection (2) where after the restrictions shall be enforced, and that too that may be declared by the Central Government. I had also invited his attention to sections 3 and 4 of the said Act which provide that before any restriction can be placed in respect of any area an appropriate publication in the official gazette alongwith a sketch/plan was required to be made. It was also pointed out that it is also provided, that it shall be lawful for such officer as the Central Government may by general or special order authorise in this behalf. These are two specific and separate provisions. The first provision namely section 3 categorises the area that has to be taken into possession, and section 4.provides that the officer may be authorised by a general or special order to be published in the manner as provided under section 3(2). There is nothing on record to show that notice or publication under section 3(2) of the specified area has been made in accordance with law. Mr. Rauf states that it is not necessary as the occupation has been on the oral instructions of the General Headquarter (GHQ). The only assertion that has been made by Mr. Abdul Rauf Khan is that because of occupation of land they shall be deemed to have taken over the said property and the restriction imposed under section 7 of the said Act will automatically be attracted. Mr. Abdul Rauf submits that under the Official Secrets Act he is not required to make any publication and refers to the section 5 of the Official Secrets Act where it is provided that it is not essential that notification in respect of such roads, canals, bridges and buildings etc. should have been published under the Works of Defence Act, 1903. The only pre‑requisite in this respect is that a competent witness has to testify that the bridges, roads, canals or any other place to which the information relates is of same military value or have some relation matter of aced forces. The references to the Army Official Secrets Act is not relevant in the present situation since N. L. C. has only been made for the purposes of logistics and no doubt is an essential service but, occupation of land needs to have been stated as to why such is of military value. Otherwise, also Mr. Rauf has not been able to show whether there was any witness or that the Central Government had allotted the land for Military use. Mr. Abdul Rauf has not placed before this Court a notification of the Government of Pakistan Planning and Development Division No.2 (2) Admn. 1/79 and refers to clause (j), that the functions of the National Logistic Board are "acquiring land/building by purchase, rent or lease for use by N.L.C. any where in Pakistan". Admittedly the said land had neither been purchased, rented or leased out to N.L.C. His case is that they have occupied the plot and that too with any lawful authority/document, and because of occupation they have become the owners of the same. I cannot subscribe to this dictatorial attitude. The law has to take its own course. I had tried to explain to Maj. Abdul Rauf that they were required to act in accordance with law and that it is not the job of the Pakistan Army or any unit or force which is under them to act in this manner or otherwise, to take over, acquire or capture any portion of Pakistani territory without the exercise, of lawful authority. It is asserted by Mr. A. Rauf Khan that they have acted in accordance with judgment in the case of Messrs Landing Traders v. Deputy Administrator, Evacuee Trust Property and another 1993 SCMR 1707, where the Supreme Court granted leave to consider whether disposal by inviting bids from all persons amounted to an open auction and whether the appellant had acquired any vested right in the land in dispute. The provision that was under consideration was the Martial Law Regulations which is not under consideration at the present moment; otherwise also it has been held in that case that if a disposal has been made by fraud, misrepresentation or unlawfully only then parties can act. In present case, however, such is not the position. In view of the above, I am inclined to allow this application, whereby I restrain the defendants, their agents, officers or agents from taking 20Y adverse, coercive or other action so as to disturb the possession and interfere with the work of the plaintiff on land bearing Nos. 126, 160, 161, 162 and 163 in Deh Khanto, National Highway, District Malir, Karachi, admeasuring 10 acres.
11. The statement of Mr. Iqbal is that they may be allowed to apply the new ordinance and the law provides that in the event it is clear that a price lesser than the value provided at the relevant time the land can be cancelled.
12. For this evidence has to be led. Otherwise, I do not see how this would apply where third party interest has been created. The purchases were under an unmistaken impression that the ledgers issued by the Government are lawful. They may have thus, on the basis of the valid and enforceable title document, purchased the land lease out. The same would be for value, and the purchaser would be without notice. Such cannot be cancelled simplicitor by enactment. I have serious reservation in respect of the said enactment as being in excess of authority, jurisdiction, and impugning on the fundamental right to property. At this stage, however, unless evidence is led, it will be impossible to determine, whether the plot could be cancelled only on promulgation of the said Sindh Ordinance No.III of 2001, dated 3‑1‑2001. No cancellation can take place otherwise also. I am of the view that where third party interests have been created such law may not act against such third party as valuable rights have been created. The question is whether under Article 23 of the Constitution a person can acquire and can possess the property. Such possession cannot be disturbed only because by an Ordinance the Government chooses to dispossess him or cancel his lease. The lease creates valuable rights and can only be cancelled in terms of the document itself. However, the plaintiff, if in possession shall not for the time being part with possession or create any third party interests.
13. The hearing of other applications is adjourned to 20‑2‑2001.
14. Q.M.H./M.A.K./R‑33/K Application allowed.