1999 PLP 1970 (YLR)

S. 7. From and after the publication off' 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 Jama bandis 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 e 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. Q. M. H./M.A.K./M‑1110/L Petition allowed.