Writ Petition No.4926 of 2013 (Reasonable restrictions on properties situated near military areas)

Date of hearing: 10.10.2017

Court: Lahore High Court

Judges Present: Ibad-Ur-Rehman Lodhi J

Name: Writ Petition No.4926 of 2013 (Zubaida Yaqoob Chaudhry versus. The Military Estates Officer and others)

By Section 3 of The Works of Defence Act, 1903 (VII of 1903) read with Section 7 thereof published on 16.10.1979, the Federal Government imposed restrictions on land situated within a radius of 1143 meters from the perimeter of the works of defence unless approved by the station commander of the relevant station. The petitioner owned a land (2-Kanals, 2-Marlas) at Khasra No.8739, village Niaz Baig, Multan Road, Lahore near which an Ammunition Depot was located. The owner/petitioner had been forbidden from taking any practical steps to erect a building, wall, bank on this land or from altering its nature in any manner, without the express permission of the relevant station commander. These restrictions were imposed in 1979 without stating when they would cease in effect.

In her petition, the petitioner requested that this Ammunition Depot be shifted elsewhere. The Additional Military Estate Officer, Lahore Circle, Lahore Cantt stated that for this an order had been given but shifting had not yet started for reasons best known to the Ministry of Defence. A Senior Joint Secretary from the Ministry of Defence was present for a subsequent hearing of this case a month later, but he was unable to provide a timeline for the shifting of the Ammunition Depot. At a later hearing of the case on 23.05.2017 it was confirmed by the Ministry of Defence that it will take approximately six years to shift the Ammunition Depot but in the present hearing the Deputy Attorney General of Pakistan withdrew this confirmation. He stated that since the new location for the Ammunition Depot had not been suitable it was uncertain when if at all the shift for the Depot would be carried out.

No compensation for this stagnation of the land had been paid to the victim and all that had been done was to restrict the petitioner under orders via a legislation which had been enacted in the era of slaves for masters ruling the subcontinent. Once Pakistan emerged as an independent country its legislature enacted and adopted new laws which guaranteed fundamental rights. Article 23 of the Constitution of Pakistan protects the right to own property in Pakistan subject to reasonable restrictions of the law imposed in public interest. Article 24 allows compulsory deprivation of property except for in accordance with the law, for public purpose where compensation is provided.

Ammunition Depots were used in the more recent past to allow for an exact calculation of the amount of ammunition present by the Americans, particularly during the Soviet-Afghan conflict. Citing the example of the Ojhri Camp incident in April 1988, the court deemed the presence of such ammunition depots in areas inhabited by civilians was a constant threat to human lives, by accident or by malicious intent. Instead of imposing such unreasonable restrictions on the land outside the boundary walls of the ammunition depot, the court ordered acquisition of land suitable for storage of these weapons.

Addressing Section 3 read with Section 7 of The Works of Defence Act, 1903, the court deemed these to be a complete negation of the constitutional articles 23 and 24. It stated that the constitution could not be superseded by laws which would remind the independent nation of Pakistan of the days of slavery where pursuant to this law, rightful owners of property could only stare at their property wistfully. The court noted that constitutional guarantees could be subjected to restrictions imposed by law but a restriction for an indefinite period of time could not be described as a ‘reasonable restriction’ as provided in articles 23 and 24 of the Constitution. Therefore, the court allowed the petition to shift the Ammunition Depot from its present location within one year or to acquire the land from the petitioner in accordance with the provisions of The Land Acquisition Act, 1894 whereby which she would be entitled to compensation for the market value of her property. The respondents were also ordered to pay the petitioner rent for the entirety of the duration her property had been immobilised ending with either the handing over of the land to the owner and terminating the restrictions imposed on it or the legal acquisition of the land, as mentioned above.