2014 PLP 73 (YLR)

WAQAR AHMAD SETH, J.

Malik Umer Farooq and another petitioners seek the constitutional jurisdiction of this Court praying for:- "that on acceptance of the writ petition to declare:-- (a) that notifications issued by respondent No.1 for adding the areas of villages Sheikhul Bandi, Nawanshehr (Shamali), Dhamtour, Kakul, Jhangi, Supply, Mirpur, Banda Jat in the limits of respondent No.4 are illegal, without lawful authority and are still existing in the limits of Municipal and District Council areas Abbottabad, as were before creation of Abbottabad Joint Development Board 1962 and then reverted to their old position after dissolution of the Joint Development Board in the year 1971 and are not legally falling in the Cantonment areas, (b) that only such place or places can be declared a Cantonment where any part of the regular Forces or the Regular Air Force of Pakistan is quartered or which being in the vicinity of such place or places is or required for the services of such for as hence respondents Nos.1 and 4 had wrongly termed civil cantonment area by issuance of unauthorized, illegal notification by respondent No.1 and same are required to be declared as null and void and also changer and enlargement of map in 1988 by survey of Pakistan having no legal right over added area and fresh map area, (c) that the notification of respondent No.1 under section 4 of Cantonment Act is in garb of Authority out of the ambit of section 3 of person and property of the petitioners, hence, is liable to be annulled under the fundamental rights of petitioners granted by the Constitution of the Islamic Republic of Pakistan 1973, (d) that respondent No.1 acted with mala fide for ulterior motives was not empowered to issue notification for extending the limits of respondent No.4, (e) that added area by rule-1 outside the scope of Cantonment Act 1924 and are liable to he restored to their original position prior to the formation of Joint Development Board, 1961, MEO and MES Maps and Survey numbers of Cantonment Board and to change in the Maps and survey in the year 1988 is without any legal requirements, area of Contt: Board Abbottabad having khasra No.1 in the record of rights only since 1872 till date and addition/ alteration in map and survey number is of no legal effect on the rights of person/property of the petitioners, (f) that levying/proposed taxes and its recovery/demand by respondent No.4 through its contractors front the petitioners are illegal, without lawful audio city, extension was made with mala fide intention for ulterior motive for grabbing the taxes only."

2. Learned counsel for the parties have been heard at great length and available record gone through with their valuable assistance.

3. In essence, the petitioners assailed the act of respondent No.4 whereby he added/included the suit areas into the limits of Cantonment Board Abbottabad. A perusal of record would reveal that petitioner No.1 is the resident of Kaghan Colony, Mirpur Abbottabad whereas petitioner No.2 is the resident of Iqbal Road, Abbottabad. The petitioners' plea is that their area of residence were of District Council/Tehsil Municipal Administration Abbottabad and now Cantonment Board naming/ declaring the areas as "Civil Area Cantonment" for the purpose of demanding / receiving heavy taxes of different nature. It is also alleged that the areas of villages Kakul, Sheikhul Bandi, Nawanshehr, Jhangi, Dhamtaur, Banda Jats and Mirpur are the ownership of the residents of said villages / purchasers and respondents i.e. Military and Cantonment Lands have got no concern with the property situated in the above said villages as neither the said respondents acquired the suit-land nor any allotment is there on behalf of petitioners or any body else was made, and, as such, called in question the Gazette Notification of 1961. It is further pleaded that section 3 of Cantonments Act applies only to such place or places which can be declared Cantonment where any part of the regular forces or the regular Air Force of Pakistan is quartered or which being in the vicinity of any place or places is or required for the services of such forces only and the added area by Rule-1 is outside the scope of Cantonments Act, 1924.

4. Admittedly, the petitioners have not assailed the vires of Cantonments Act, 1924. Moreover, it is also observed that Notification No.220 dated 18-7-1909, which is the basic one has also not been called in question. The notification of the year 1961 is five decades old. Further, the petitioners got approved their site planes, as annexed with the writ petition, from the Cantonment Board Abbottabad, hence, estopped by their own conduct and law of acquiescence.

5. The record is suggestive that similar Writ Petition No.103 of 2001 regarding addition of areas of some villages was filed but was withdrawn with the permission to file afresh one vide order dated 18-5-2006. Section 4(1) of the Cantonment Act, 1924 reads:-- "Alteration of limit of Cantonments.

(1) The Central Government may, by notification in the official Gazette declare its intention to include within a cantonment any local area situated in the vicinity thereof or to exclude from a cantonment any local area comprised therein". (2) Any inhabitant of a cantonment or local area in respect of which notification has been published under subsection (1) may, within six weeks from the date of the notification, submit in writing to the Central Government through the competent Authority an objection to the notification, and the Central Government take such objection into consideration. (3) On the expiry of six weeks from the date of the notification, the Central Government may after considering the objections, if any, which have been submitted under sub-section (2), by notification in the official Gazette include the local area in respect of which the notification was published under subsection (1), or any part thereof in the cantonment or, as the case may be, exclude such area or any part thereof from the cantonment".

6. There is no denial of the fact that petitioners have not raised any objection as provided under the law, so on this score the writ petition is hopelessly barred by time.

7. A similar controversy had arisen in Writ Petition No. 4 of 2003 decided on 5-3-2003 and it was held as under:-- "No doubt, subsection (1) of section 4 of the Cantonments Act, 1924 states that the Federal Government may by notification in the official Gazette declare its intention to include within the cantonment limit any local area and then on expiry of six weeks from the date of notification the Government after considering the objections, if any, include the area in the Cantonment".

8. In this respect guidance is also obtained from the case of Tehsil Municipal Officer, Abbottabad v. Government of Pakistan, Ministry of Defence and others reported as 2007 SCMR 478, wherein it was held:-- "Inclusion of area in cantonment limits

Notification

Objections Federal Government issued notification under S.4(1) of Cantonments Act, 1924 and invited objections to the proposed inclusion of the area in Cantonment limits

Notification under S.4(3) of Cantonments Act, 1924 was issued after requisite period of six months

Such notification was assailed by petitioner before High Court but without any success

Validity

Notification under S.4(3) of Cantonments Act, 1924 was well within law

Petitioner failed to point out any illegality, misreading or non-reading in the judgment passed by High Court warranting interference by Supreme Court

Leave to appeal was refused".

9. Before addition/inclusion of the area vide Gazette Notification dated 16-6-1961 notice was published in three daily newspapers including "Jang" dated 30-9-1961. Likewise vide S.R.O. No.787(I)/2002 dated 2-10-2002 for inclusion of certain land into Cantonment limit notice was published in three daily newspapers including "AAJ" dated 24-11-2012 and same is the position while including certain areas of Abbottabad vide notification dated 15-2-1952.

10. Consequently, this writ being bereft of merit is hereby dismissed. However, Cantonment Authorities are directed to provide all basic facilities such as roads, water supply, street lights etc. to all the inhabitants, who are residing within the limits of Cantonment Board Abbottabad and from whom heavy taxes were received or being received by it so that the inhabitants/tax payees are left with no grievance. The Cantonment Authorities are directed to comply with the directions in its letter and spirit and no departure or negligence in any case is permissible. Copy of this judgment be sent to the Executive Officer, Cantonment Board Abbottabad forthwith for immediate compliance. No order as to costs. SAK/559/P Petition dismissed.