2019 C L C 114
[Balochistan]
Before Jamal Khan Mandokhail, JJ
RAHIM KHAN and 8 others ----Appellants
Versus
STATION COMMANDER, STATION HEADQUARTER, ZHOB CANTT. and
another ----Respondents
Civil Miscellaneous Appeal No. 18 of 2009, decided on 5th September, 2018.
Manoeuvres, Field Firing and Artillery Practice Act (V of 1938) ---
----Ss. 9 & 13--- Constitution of Pakistan, Art. 24---Suit for declaration and permanent
injunction--- Suit land being utilized by the Army for field firing and artillery pra ctices ---
Contention of plaintiffs was that they were owners of suit property but Authorities were interfering in the same ---Suit was dismissed by the Trial Court ---Validity ---Government had
not conducted settlement proceedings in the area to maintain the r ecord but it did not dis -
entitle a person to be owner of an unsettled property ---If a person had proved his ownership
through other sources or evidence then such claim of an ownership and entitlement should not be disbelieved merely because of non- availabi lity of revenue documents ---Suit land was
occupied by a number of people of the area including the plaintiffs ---Federal Government
had issued notification providing facilities for military maneuvers, field firing and artillery practices over the suit land ---Only Provincial Government was competent to issue such a
notification---Owners and occupiers of the notified area should be informed before starting military maneuvers, field firing and artillery practices enabling them to shift to a safer places ---Impug ned notification did not create title or permanent occupancy right nor it could
be acquainted with the lease rather it just allowed the Army to utilize the notified property for limited purpose ---Government should frame rules for utilizing the notified land ---Army
should ensure minimum inconvenience to the inhabitants of the area ---Beneficiary of the said
notification should refrain from interference into the possession of occupier of the notified land---No person should be deprived of his property save in accordance with law ---Impugned
notification did not deprive the plaintiffs and others from utilizing the land in question---Status of defendants was just a temporary beneficiary by using the land in question only for military maneuvers, field firing and ar tillery practices ---Authorities had no authority to
restrain the plaintiffs from using the land in question nor could interfere into their rights except during the period when the execution of military maneuvers, field firing and artillery practices were g oing on ---People of the area would be entitled to resume their routine life
over the land in question after completion of such practices whereafter interference in any manner by the defendants in the suit land would be illegal ---Impugned judgment and decre e
passed by the Trial Court were set aside---Army could utilize the notified land only for execution of military maneuvers, field firing and artillery practices with a special care of the
safety and security of the people---Authorities should not interfere into the possession of
plaintiffs when said practices were discontinued over the land in question ---Appeal was
allowed and suit was decreed accordingly.
H.V. Sri Niras v. Air Force station AIR 2001 Karnataka 479 rel.
Kamran Murtaza and Adnan Ejaz for Appellants.
Muhammad Usman Yousafzai for Intervener.
Hassan Mengal, Assistant Attorney -General and Saifullah Sanjrani Assistant
Advocate -General for Respondents.
Date of hearing: 13th July, 2018.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J ----The appellants file d a suit for declaration and
permanent injunction against the respondents, on 17th May 1999, in the Court of District
Judge, Zhob. In the plaint, it was stated that the appellant is an owner of the land, described in the plaint, herein after called as the land in question. The appellant alleged that the
respondents are not only interfering into the land in question, but have also restrained the appellants/plaintiffs from utilizing and occupying the same. Through his suit, it is prayed as under:
"It is acco rdingly respectfully prayed that an order/decree in favour of the plaintiff
and against the defendant may kindly be passed to the following effect: --
a) to declare that the defendant has no right and title to interfere in the peaceful possession of plainti ff over the property in question,
b) to restrain permanently the defendant and direct him not to interfere, XX dig the ditches, make the firing range over the property in question or do not carry but any kind of work over the property in question,
c) any other relief as deemed fit and proper in the circumstances of the case may also be
awarded to plaintiff with cost of the suit in the interest of justice, equity and fairplay."
2. The suit was contested by the respondents on legal as well as factual grounds, through
written statement and alleged that the land in question is owned by the Army, with which the appellants have no concern. The respondents relied upon a Notification No.DP(Home) -
15(I)180 dated 20th August, 1981 and subsequent Notification S. R.O.128(I)/2000 dated 4th
March, 2000, issued under the Maneuvers, Field Fires and Artillery Practices Act, 1938 (the Act), therefore, no one, including the appellants is permitted to enter into or to do any type of work in it. In the written statement, it is stated that the appellants/plaintiffs have no locus -
standi to file the suit.
3. The trial Court, after framing issues, call the parties to produce their evidence. The
appellants in support of their claim, produced three witnesses, exhibited documents m ostly
related to previous litigations and lastly recorded their statements through attorney. In reply,
the respondents produced the notifications through a witness and recorded a statement of the representative. The trial Court dismissed the suit by means of the judgment and decree dated 23rd June 2009, hence this appeal.
4. Learned counsel for the appellants stated that the land in question situated in a tribal
area, which belongs to the appellants and devolved upon them from their forefathers. He added that it was the responsibility of the Government to have prepared the revenue record of the area, by conducting settlement proceedings, but the needful has not been done, as such, there is no revenue record of the area, for which, the land owners cannot be held responsible. He stated that though the property in question is unsettled, but it does not mean that it is not ownerless property, rather the same belongs to the appellants. According to him, the ownership of the appellant is proved through the judgment s/orders of competent Courts,
passed from time to time, supported by their longstanding possession, therefore, they have all the right to utilize the property in question. The learned counsel in the end stated that the respondents are relying upon the above referred notifications, which simply authorizes the Pakistan Army to use the property only for a limited purpose and for a specific period,
strictly in accordance with the provision of the Act of 38, which does not make the
respondents an owner, nor perm its them to restrain the owners and occupiers of the property
from utilizing the same. The learned counsel in the end added that the trial Court has failed to consider the relevant provision of law, the material and the evidence available on the record, which amounts to mis -appreciation and non- appreciation of the law, facts and
evidence, hence committed an illegality, therefore, the impugned judgment and decree are liable to be set aside. The learned counsel relied upon a judgment passed by this Court in
C.P. No.654 of 2013.
5. The intervener argued that the appellants alone are not the owners of the property,
rather it is a joint property of all the successors of late late Khudai Nazar. According to him, there are village, schools, mosques etc. established upon the land in question since decades,
whereas, the open land is being used by the inhabitants of the village, as pasture and they get other benefits from the same as well. He stated that the respondents are not the owner of the property nor can they re strain the inhabitants of the area from the same.
6. Learned DAG opposed the contention and stated that the land in question is an
unsettled land, whereas, the appellants have not succeeded to prove their ownership, therefore, they have no locus -standi to file the suit. According to him, the property in
question has been assigned by the Federal Government to the Pakistan Army for execution of military maneuvers, field firing and artillery practices, vide notifications mentioned above, issued under the Act of 1938, therefore, the appellants or any other person are not entitled to interfere in it. The learned DAG stated that since the appellants have failed to prove their entitlement in respect of the property, therefore, the suit has rightly been dismissed by the
trial Court.
7. I have heard the learned counsel for the parties and have gone through the record. On
the basis of the material available on the record, the following points are framed for
determination of the appeal:
a. what is the locus -standi of th e appellants to file the suit in respect of the property in
question?
b. What is the status of the respondents, with regard to the land in question? And
whether they can restrain the appellants the inhabitants of the area from using the land?
The appellants claim to be owners in occupation of the property in question, on the
basis whereof, they have filed the present suit. During the pendency of this appeal, a Civil Miscellaneous Application Bearing No.536 of 2010 was filed by an intervener, which was allowed on 5th of November 2015. In the application the intervener alleged that this is a huge
and joint property, which belonged to one Khud- ae-Nazar, who was the predecessor of the
appellants, the intervener and others, upon whom, the property in question ha s been
devolved. Admittedly, settlement of the area has not been conducted by the revenue authorities, therefore, there is no revenue record of the land in question. However, the documents available on the record would reveal that previously some litigations were carried amongst the inhabitant of the areas and between the appellants and the respondents, from
time to time and some of these litigations pertains to a period, before the creation of
Pakistan. Facts and circumstances prove that the land is being claimed by the appellants, the intervener and several others and they are occupying the same as well. Though the Government did not conduct a settlement proceeding in the area to maintain a record, but it does not dis -entitle a person to be owner of an uns ettled property. If he/she proves his/her
ownership through other sources or evidence, such claim of an ownership and entitlement shall not be disbelieved merely because of non- availability of revenue documents. The
evidence and the documents available on the record would shows that a large portion of the property has been occupied by a number of people of the area, including the appellants and the intervener. It is established that several houses, official and religious buildings are built thereon for deca des. The open area is being used as pasture and for other beneficial purposes
by the people of the areas. Under such circumstances, if an owner or occupier of the land in question has any grievance, he/she can approach a competent court of law. Since the appellants have claimed to be owners in possession of the property in question and alleged
their grievance of interference by the hands of the respondents, therefore, they have a locus -
standi to file this suit.
8. The claim of the respondents over the land is based upon the above referral
notification, issued under the Act of 1938, which is reproduced herein- below:
"S.R.O. (I)/2000.- in exercise of the power conferred by subsections (1) and (2) of
section 9 of the maneuvers, field firing and Artillery Pract ices Act, 1938 (V of 1938),
the Federal Government is pleased to define the area specified in the schedule below as the area within which they carrying out of field firing and artillery practices at Zhob Field Firing Range, as well as Maneuvers connected t herewith may -be
authorized for a further period of one hundred years with effect from the date of issue of this notification.
SCHEDULE
RANGE BOUNDARIES ZHOB FIELD FIRING RANGE.
1. Range. The area Zhob -Shinghar bounded by grid references (523688) to (52871 8) to
(540755) to (580800) to (580820) to (655820) to (657783) to (645777) to (638753) to
(610730) to (600725) to (592699) to point 5152. From (5768) to trig point 5194 (5567) to (530637) to (520640) (Reference Map Sheet, 1958, 1,50.000 Sheet Number 59 B/6 , 7, 10 and 11).
2. Maneuvers Area. (The area from which guns may fire on the range). Area between road Zhob- Mir Ali Khel and Roaz Zhob- Shinghar south of the reference line from
grid references (523686) to (565670) and area bounded by grid references (550750) to (600750) to (600720) to (5507) (Reference Map Sheet 1958, 1,50,000 sheet Number 39 E/6,7,10 and 11).
3. Additional Maneuvers Area. Area west of reference (sic.) Zhob Mir Ali Khel bounded by the following grid reference. (sic.) point 4467 (5271) to ( 500720) to (500) to mile
(sic) (519649) inclusive (Reference Map Sheet, 1958, 1,5 (sic.) Sheet Number 39 E/6, 7, 10 and 11).
2. The area of Zhob Field Firing Range as specified in this notification has been reserved for the Defence Force for firing and ma neuvers purposes subject to the
following conditions, namely: -
(a) It shall be ensured that no firing including of small arms takes place in the maneuvers area; and
(b) the Federal Government reserve its rights to cancel this facility at any time after serving a notice of three years without assigning any cause and after compensating for
the construction made by the army authorities."
Though under the Act of 1938, it is the Provincial Government to issue such
notification, but it was the Federal G overnment, which issued the notification, providing
facilities for military maneuvers, field firing and artillery practices over an area specified therein, for a specific period. The power has been exercised under subsections (1) and (2) of section 9 the A ct, which is reproduced as under:
"9. (1) The Provincial Government may, by notification in the local official Gazette, define any area as an area within which [the carrying out]' of field firing and artillery practice may be authorized.
(2) The Provincia l Government may, by notification in the local official Gazette,
authorize the carrying out of field firing and artillery practice throughout a notified area or any specified part thereof
2 [and may, if it thinks fit, specify the period or
periods during w hich such field firing and artillery practice shall be carried out]."
9. The Act of 1938 provides that before starting the practices, the owners and the
occupiers of the notified land should be informed about the time and duration, during which, the practi ces would commence and continue, enable the people of the area to shift to a safer
places. The notification issued under the Act of 1938 does not create title or permanent occupancy right nor it is acquainted with the lease, rather, it just allows the Army to utilize
the notified property for a limited purpose and for a specific period. For utilizing the notified
land, the Government has to frame rule as provided by Sub- Clause (b) of section 13 of the
Act of 1938, which is reproduced as under:
"13.(b) regulating the use under this Act of land for manoeuvres or field firing and artillery practice in such manner as to secure the public against danger and to enable the manoeuvres or practice to be carried out without interference and with the minimum inconveni ence to the inhabitants of the areas affected;
The making of the rules is intended to secure the rights of the public. It has been
ensured that the practices must be carried out with a minimum inconvenience to the inhabitants of the area so affected. It i s thus an obligation of the beneficiary of the
notification to refrain from interference into the possession of occupier of the notified land. Reliance has been placed on the case of H.V. Sri Niras v. Air Force station, reported in (AIR 2001 Karnataka 479) . Relevant portion of the judgment is reproduced as under:
"The purpose of notifying the land under S.9 of the Act by declaring it as a danger zone, is to avoid any casualty to all persons and domestic animals during the times when the discharge of lethal missiles is taking place or there is danger to life or
health. So, under the provisions of the Act, drums and also by means of affixture
notifying the general public about the intention of the defendant to make use of the
land situated in danger zone, to prevent any casualty to the life of a person or
domestic animal during the course of the practice. By making use of the notification under S.9 of the Act, defendant cannot prevent the lawful owners of the property or land either to make use of for cultivat ion or for any other purpose. Therefore, there
cannot be any objection of the defendant to enclose the land in Sy.No.43 by the
plaintiffs by putting a compound at their cost since the land in question is not acquired by the defendant. By virtue of the noti fication, during the course of the
practice of field firing and artillery, plaintiffs or anybody claiming under them are prohibited from enjoying the property. But there is no prohibition for the plaintiffs to construct compound and the defendants cannot o bject for the same."
10. The Act of 1938 has secured the right of the people, which has been elaborated in the
above referred judgment. Besides, the Constitution of the Islamic Republic of Pakistan, 1973 defends the rights of the people and pressurizes tho se, with power, to respect rights and
secure justice. According to Article 24 of the Constitution, "No person shall be deprived of his property, save in accordance with law" Since the notification has been issued under section 9 of the Act of 1938, which does not deprive the appellants and others from utilizing the land in question, therefore, the status of the respondents is just of a temporary beneficiary by using the land in question only for maneuvers, field firing and artillery practices. Hence, the respondents have no authority to restrain the appellants and other occupants from using the land in question, nor can interfere into their rights, except during the period, when the execution of maneuvers, field firing and artillery practices are going on in accordance with
Act of 1938. After completion of such practices, the people of the area are entitled to resume their routine life over the land in question, whereafter, interference, in any manner, with the affairs of the appellants and other occupants an d restraining them from the land in question
by the respondents, is illegal.
Thus, in view of above, the appeal is allowed. The judgment and decree dated 23rd
June 2009, passed by the District Judge, Zhob are reversed, resultantly, the suit is decreed. It
is declared that the Army can utilized the notified land only for execution of military
maneuvers, field firing and artillery practices, with a special care of the safety and security of the people. However, during the period when the practices are discontinued, the respondents
shall not interfere into the peaceful possession of the appellants and other occupants, over the
land in question, nor can they retrain the appellants and the inhabitants of the area from
occupying and utilizing it. In case of incre ase in the population in the notified area, the
respondents may change the firing range to secure the people and to avoid any unwanted and unfortunate incident. The office to prepare a decree sheet accordingly.
ZC/76/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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