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P L D 2009 LAHORE 240

CH. MUHAMMAD ISHAQUE ADVOCATE

Vs

CANTONMENT EXECUTIVE OFFICER, CHUNIAN, DISTRICT KASUR

Constitution of Pakistan (1973) Arts. 23, 8 & 199–

r/w Works of Defence Act (VII of 1903) Ss. 7, 39(4) & 3–

Works and Defence Rules, R. 556–Army Regulation, Vol. II

(1991), Instructions–

Learned Deputy Attorney General, has not been able to satisfy us, if the declaration/notification in terms of the above provision has ever been made regarding the land of the appellant.  The only reference to rule 556, which has been framed under section 44 of the Act, is not shown to be independently applicable to the situation and the proposition in hand i.e. if the frontage of the appellant’s land can be blocked by a wire/hedge, by leaving a small passage for the access.  Because section 7 of the Act, is quite germane in this behalf, which enunciates that it is from and after the publication of the notice mentioned in section 3, subsection (2) that such of the restrictions referred to in this section, (which does not even otherwise provide for the fixation of wire), as the Federal Government may in its discretion declared and attached with reference shall be

applicable.  Admittedly, when no restrictions have been imposed under any provisions of the present law (the ‘Act’), how can be rule, which is subservient thereto, be invoked to imply the restriction.

The other argument of the learned Deputy Attorney General that as the land of the appellant falls within A-Class zone, and therefore, notwithstanding section 3 or 7 of the Act, besides, the reasons earlier given thus it cannot be so done, it has not been established that certain restrictions upon its use can be validly imposed, suffice it to say that notwithstanding the above the land in question is not shown to be located in

A-Class zone, which has to be notified, but admittedly the needful is not done.  Resultantly, we are not  convinced that the action of the respondents to put wire/hedge against the appellant’s property is under any lawful authority.  [p. 244] A

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